U.S. v. Swanson

• Decision Date: 27 August 1991
• Docket Number: No. 90-10085,90-10085
• Citation: 943 F.2d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brent Paul SWANSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1070

943 F.2d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Brent Paul SWANSON, Defendant-Appellant.

No. 90-10085.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1991.

Decided Aug. 27, 1991.

Dennis Jones, Phoenix, Ariz., for appellant.

Janet L. Patterson and Darcy A. Cerow, Asst. U.S. Attys., Washington, D.C., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, ALARCON and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Brent Paul Swanson appeals from his conviction and sentence for bank robbery. We must decide whether a court appointed defense counsel's concession, during closing argument, that no reasonable doubt exists regarding the only factual issues in dispute, constitutes a deprivation of the right to due process and the effective assistance of counsel that is prejudicial per se. We conclude that we must reverse because counsel's abandonment of his client's defense caused a breakdown in our adversarial system of justice.

PERTINENT FACTS

On February 22, 1989, Swanson was indicted on one count of bank robbery, pursuant to 18 U.S.C. § 2113(a). Swanson initially pleaded guilty on April 17, 1989. Swanson made a motion to withdraw his plea of guilty after reading the recommendation in the presentence report that he should be sentenced as a career offender. The motion was granted and the court selected a date for a trial by jury.

The jury trial commenced on July 25, 1989. Swanson was represented at trial by David Ochoa, who was appointed by the trial court under the Criminal Justice Act. 18 U.S.C. § 3006A(b). Mr. Ochoa rested after the close of the Government's case in chief, without calling any defense witnesses.

Before counsel presented their arguments, the trial court gave the jury instructions to assist it in considering the evidence in the case. The jury was admonished that "[t]he Government has the burden of proving every element of a charge beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict as to the charge." The Government concluded its opening argument by stating, "[b]ased on all [the] evidence, the Government has proven to you beyond any reasonable doubt that Mr. Swanson robbed Citibank on January 20th, 1989."

Mr. Ochoa began his argument by stating that it is a defense attorney's "job" to make the Government prove its case beyond a reasonable doubt. Mr. Ochoa told the jurors that in this country a person has a right to stand by his plea of not guilty. Mr. Ochoa then stated that the evidence against Swanson was overwhelming and that he was not going to insult the jurors' intelligence.

Prior to discussing the inconsistencies in the testimony of the Government's identification witnesses, Mr. Ochoa stated, "[a]gain in this case, I don't think it really overall comes to the level of raising reasonable doubt." After pointing out that the witnesses had varied in their recollection of the length of time the perpetrator was in the bank, Mr. Ochoa told the jury, "the only reason I point this out, not because I am trying to raise reasonable doubt now, because again I don't want to insult your intelligence...." He concluded his argument by telling the jurors that if they found Swanson guilty they should not "ever look back" and agonize regarding whether they had done the right thing. ¹

DISCUSSION

Swanson contends that he was denied his right to the effective assistance of counsel because his court appointed attorney conceded in his argument to the jury that there was no reasonable doubt regarding the only factual issues in dispute. "Whether a defendant received ineffective assistance of counsel is a legal question reviewed de novo." Smith v. Ylst, 826 F.2d 872, 875 (9th Cir.1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988).

The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The Supreme Court has instructed that "[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).

Although ineffective assistance of counsel claims are frequently presented in collateral attacks on judgments in criminal matters, we are not prevented from considering such contentions on direct appeal where "the record is sufficiently complete to allow us to decide the issue." United States v. O'Neal, 910 F.2d 663, 668 (9th Cir.1990). Where the record on appeal is not adequate to determine whether there has been a deprivation of the sixth amendment's protection, "[t]he customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255." United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d 472 (1984). In a habeas corpus proceeding, the petitioner may present facts that are not reflected in a record of the proceedings of a trial on the issue of guilt. United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir.1988); United States v. Kazni, 576 F.2d 238, 242 (9th Cir.1978). In pursuing his claim of ineffectiveness of counsel, Swanson relies solely on the reported statements made by Mr. Ochoa during final argument. Accordingly, the record is sufficient for a review of the merits of Swanson's constitutional claim on this direct appeal. Under these circumstances, we are required to resolve the effectiveness of counsel claim now. There is no reason to delay resolution of this issue in this matter for the presentation of facts outside the trial record.

The Government argues that Swanson's ineffective assistance of counsel claim must fail because there is no showing that Mr. Ochoa's closing argument was prejudicial under the test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that a defendant is required to show (1) deficient performance by counsel, and (2) prejudice to the defense. Id. at 687, 104 S.Ct. at 2064. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided on the same date as Strickland, "the Supreme Court created an exception to the Strickland standard for ineffective assistance of counsel and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed." Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir.1991) (en banc) (citing Cronic, 466 U.S. at 658, 104 S.Ct. at 2046). "Cronic presumes prejudice where there has been an actual breakdown in the adversarial process at trial." Toomey v. Bunnell, 898 F.2d 741, 744 n. 2 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 390, 112 L.Ed.2d 400 (1990). In Cronic, the Supreme Court stated:

[T]he adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." Anders v. California, 386 U.S. 738, 743 [87 S.Ct. 1396, 1399, 18 L.Ed.2d 493] (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel may Cronic, 466 U.S. at 656-57, 104 S.Ct. at 2045-46 (footnotes omitted).

                have made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred.   But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated
                

A criminal defendant is also protected from unfairness in the criminal process by the due process requirement that his guilt be proved beyond a reasonable doubt. The Supreme Court has explicitly held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The Supreme Court has also stated that "[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt. " Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958) (emphasis added). When a defense attorney concedes that there is no reasonable doubt concerning the only factual issues in dispute, the Government has not been held to its burden of persuading the jury that the defendant is guilty.

The Supreme Court recognized in Cronic that there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. The Court identified the complete denial of counsel or the deprivation of effective representation at a critical stage of an accused's trial as justifying a presumption of prejudice. Id. at 659, 104 S.Ct. at 2047. The Supreme Court stated that

[c]ircumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.

Id. at 659-60, 104 S.Ct. at 2047.

The Strickland test, requiring a showing of prejudice caused by counsel's ineffectiveness, is applicable (1) in cases where the record reflects that an attorney's errors or omissions occurred during an inept attempt to present a defense, or (2) that he or she engaged in an...