U.S. v. Sanchez-Barreto

• Decision Date: 02 April 1996
• Docket Number: 95-1299,95-1300,QUINTERO-FIGUERO,95-1303,D,GARCIA-CRU,LOPEZ-AYAL,PEREZ-GARCIA,ARROYO-REYE,Nos. 95-1297,95-1306 and 95-1404,SANCHEZ-BARRET,s. 95-1297
• Citation: 93 F.3d 17
• Parties: UNITED STATES of America, Appellee, v. Juan Manuelefendant, Appellant. UNITED STATES of America, Appellee, v. Jacksonefendant, Appellant. UNITED STATES of America, Appellee, v. Jorge L., a/k/a Pito Caballo, Defendant, Appellant. UNITED STATES of America, Appellee, v. Luisefendant, Appellant. UNITED STATES of America, Appellee, v. Eligioefendant, Appellant. UNITED STATES of America, Appellee, v. Juan Carlosefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 17

93 F.3d 17

UNITED STATES of America, Appellee, v. Juan Manuel SANCHEZ-BARRETO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jackson QUINTERO-FIGUEROA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jorge L. PEREZ-GARCIA, a/k/a Pito Caballo, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Luis GARCIA-CRUZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Eligio LOPEZ-AYALA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Juan Carlos ARROYO-REYES, Defendant, Appellant.

Nos. 95-1297, 95-1299, 95-1300, 95-1303, 95-1306 and 95-1404.

United States Court of Appeals First Circuit.

Heard April 2, 1996.

Decided Aug. 21, 1996.

Jose A. Pagan Nieves, with whom Jose A. Pagan Nieves Law Offices was on brief, for appellant Sanchez-Barreto.

Carmen R. De Jesus, for appellant Quintero-Figueroa.

Rafael F. Castro Lang, for appellant Perez Garcia.

Lydia Lizarribar-Masini, on brief, for appellant Garcia-Cruz.

Eduardo Caballero Reyes, for appellant Lopez-Ayala.

Victor P. Miranda Corrada, for appellant Arroyo-Reyes.

Miguel A. Pereira, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, were on brief, for appellee.

Before SELYA and CYR, Circuit Judges, and GERTNER, ^* District Judge.

CYR, Circuit Judge.

Appellants Juan Carlos Arroyo-Reyes ("Arroyo"), Luis Garcia-Cruz ("Garcia"), Eligio Lopez-Ayala ("Lopez"), Jorge Perez-Garcia ("Perez"), Jackson Quintero-Figueroa ("Quintero"), and Juan Sanchez-Barreto ("Sanchez") contend, among other things, that the district court erred in denying their requests to withdraw their guilty pleas. See Fed.R.Crim.P. 32(e). We remand the Sixth Amendment claim presented by Perez and affirm the district court judgments against the remaining appellants.

I BACKGROUND

On March 9, 1994, a federal grand jury in Puerto Rico returned a five-count indictment charging appellants with, inter alia, conspiracy to distribute not less than fifty grams of cocaine base, five kilograms of cocaine, and one kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994), and with using or carrying firearms in connection with a drug offense, in violation of 18 U.S.C. § 924(c)(1) (1994). A superseding indictment alleged that appellants belonged to a twenty-six member gang that operated a "drug point" in Toa Baja, Puerto Rico, and used firearms to defend against rival gangs and discourage honest citizens from informing the police.

Appellants initially pled not guilty to the charges. Just before trial, however, with the advice of counsel, appellants entered guilty pleas to the drug conspiracy and firearms counts and the government agreed to dismiss the remaining counts. After the district court accepted their guilty pleas, and before sentencing, see Appendix A, appellants sought to withdraw their pleas. See Fed.R.Crim.P. 32(e) ("If a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason."). The district court denied their motions and imposed sentences consistent with their respective plea agreements.

II DISCUSSION

A. The Perez Appeal

Perez claims that he was denied effective assistance of counsel at the hearing on his pro se motion to withdraw his guilty plea. See U.S. Const. amend. VI. The government responds that Perez (1) did not ask the court to appoint new counsel, and (2) has not shown that appointed counsel, Jose R. Aguayo, Esquire, labored under an actual conflict of interest within the meaning of United States v. Soldevila-Lopez, 17 F.3d 480 (1st Cir.1994).

1. Waiver

The Sixth Amendment right to effective assistance of counsel inheres at all "critical stages" of a criminal proceeding unless competently waived. United States v. Mateo, 950 F.2d 44, 47 (1st Cir.1991). A plea withdrawal hearing is a "critical stage" in the criminal proceeding. United States v. Crowley, 529 F.2d 1066, 1069 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976). The right to counsel is not contingent upon a request by the defendant; rather, "we presume that the defendant requests the lawyer's services at every critical stage of the prosecution." Michigan v. Jackson, 475 U.S. 625, 633 & n. 6, 106 S.Ct. 1404, 1409 & n. 6, 89 L.Ed.2d 631 (1986). In all events, Perez requested counsel at the outset, and the district court appointed Jose R. Aguayo, Esquire.

Thus, contrary to the government's suggestion, nothing in the record remotely indicates that Perez knowingly and voluntarily waived his Sixth Amendment right to counsel at the plea withdrawal hearing. Compare United States v. Saccoccia, 58 F.3d 754, 771-72 (1st Cir.1995) (defendant repeatedly waived representation by conflict-free counsel), cert. denied, --- U.S. ----, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996); see also United States v. Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.) (discussing waiver elements), cert. denied, 502 U.S. 959, 112 S.Ct. 421, 116 L.Ed.2d 441 (1991). Finding no waiver, we next consider whether Perez has demonstrated that court-appointed counsel failed to afford effective assistance at the plea withdrawal hearing.

2. Conflict of Interest

The government contends that Perez must demonstrate "an actual conflict of interest adversely affect[ing] his lawyer's performance." Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)). Thus, the government says, Perez was required to show that court-appointed counsel could have pursued a plausible alternative tactic or strategy were it not for an inherent conflict of interest or other loyalties that caused him not to do so. Id.; Guaraldi v. Cunningham, 819 F.2d 15, 17 (1st Cir.1987).

We noted in Soldevila-Lopez that "[c]ourts have recognized actual conflicts of interest between an attorney and his client when pursuit of a client's interests would lead to evidence of an attorney's malpractice." Soldevila-Lopez, 17 F.3d at 486 (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir.1991)). The absence of any malpractice or ethics complaint in Soldevila-Lopez nonetheless led us to conclude that a conflict-of-interest finding should not be based solely on an inference that the client might have benefited had defense counsel raised the client's mental incompetency claim prior to trial. Id. at 486-87.

The government's contention that Perez' Sixth Amendment claim is indistinguishable from that in Soldevila-Lopez is untenable, since Perez plainly alleged facts amounting to malpractice, if found to be true. That is, the Perez motion to withdraw his guilty plea alleged that Aguayo had pressured him into pleading guilty at the earlier Rule 11 change-of-plea hearing in order to "hide [Aguayo's] lack of preparation" for trial. Perez further alleged that Aguayo had not made even "minimum" efforts to "act as his counsel or defender" and was only interested in a fee, but see infra note 1, thus leaving no doubt that Perez wanted replacement counsel.

In United States v. Ellison, 798 F.2d 1102 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), the district court was presented with a virtually identical situation in which the defendant had filed a pro se motion to withdraw a guilty plea, alleging that court-appointed counsel had persuaded him to forgo trial (despite Ellison's assertions of innocence) because counsel "did not want to make waves with the federal prosecutors with whom he would be working in the future." Id. at 1106. The district court neither appointed new counsel nor obtained a competent waiver, but instead rejected the plea-withdrawal motion because defense counsel denied Ellison's accusations at the plea-withdrawal hearing.

The Seventh Circuit held that defense counsel's "representation" at the plea-withdrawal hearing did not meet the Sixth Amendment minima:

First, counsel was not able to pursue his client's best interests free from the influence of his concern about possible self-incrimination.... [I]f the allegations in defendant's motion were true, his actions would be tantamount to malpractice. Any contention by counsel that defendant's allegations were not true would (and did) contradict his client. In testifying against his client, counsel acted as both counselor and witness for the prosecution. These roles are inherently inconsistent.

Id. at 1107 (citation omitted); see also Lopez v. Scully, 58 F.3d 38, 41 (2d Cir.1995) (holding that a pro se motion to withdraw a guilty plea based on alleged attorney coercion created an actual conflict of interest). The identical logic fully warrants the conclusion that Aguayo may have been laboring under an actual conflict of interest at the hearing on the pro se plea-withdrawal motion, which alleged that Aguayo had coerced Perez' guilty plea in order to conceal his unpreparedness for trial. Nevertheless, we think the appropriate course in this case is to remand for further factfinding on the merits of the Perez allegations against Aguayo.

As we recognized in Soldevila-Lopez, 17 F.3d at 486, a claim that counsel was disabled by an actual conflict of interest at a critical stage in the criminal proceeding amounts to an ineffective assistance claim not normally appropriate for consideration on direct appeal. See United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991), cert. denied, 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). Moreover, the district court record is not "sufficiently developed to allow reasoned consideration" of the merits of the pro se plea-withdrawal motion itself, Soldevila-Lopez, 17 F.3d at 486 (quoting Natanel, 938 F.2d at 309), since its underlying conflict-of-interest allegations against Aguayo were...