U.S. v. Torres, 85-1208
| Decision Date | 19 June 1986 |
| Docket Number | No. 85-1208,85-1208 |
| Parties | UNITED STATES of America, Appellee, v. Gilbert TORRES, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Robert R. Berluti, Boston, Mass., by Appointment of the Court, for appellant.
Joseph F. Savage, Jr., Sp. Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass. was on brief, for appellee.
Before COFFIN and BOWNES, Circuit Judges, and MALETZ, * Senior Judge.
In a three-count superseding indictment returned on November 28, 1984, Gilbert Torres was charged with two counts of possession of cocaine with intent to distribute and distribution of cocaine, 21 U.S.C. Sec. 841(a)(1) (1982), and with one count of assaulting, resisting, and interfering with federal officers in the performance of their official duties by use of a deadly and dangerous weapon, 18 U.S.C. Sec. 111 (1982). 1 On January 28, 1985, Torres pleaded guilty to counts 1 and 2--the cocaine charges. Torres went to trial on the assault charge of count 3 on February 12, 1985, and the jury returned a guilty verdict later that day.
Ten days later, the district court sentenced Torres to concurrent four-year prison terms and concurrent three-year special parole terms on the narcotics counts. Additionally, Torres was sentenced to two years' imprisonment on count 3, consecutive to the concurrent sentences on counts 1 and 2. In this appeal, Torres challenges the judgment of conviction entered on count 3, arguing that the district court violated his sixth amendment rights by failing to grant a continuance and his right to a fair trial by limiting the interpreter's translation of certain statements. For the reasons that follow, we find Torres' contentions without merit and therefore affirm.
On November 9, 1984, in Brockton, Massachusetts, Kathleen Bennett, a special agent of the Drug Enforcement Administration (DEA) working in an undercover capacity, met with Torres for the purpose of buying cocaine from him. When she gave a signal to Special Agents Herbert Lemon and Stephen Assarian, they sought to arrest Torres, who was at the wheel of his automobile. After the agents identified themselves, Torres put his vehicle in drive and chased Assarian, eventually striking him. Assarian discharged his revolver, hitting Torres and thus causing him to stop his car.
Torres, a native Mexican, speaks Spanish but not English. The court found Torres indigent and on November 15, 1984, two days after the initial arraignment, appointed Attorney Raymond Gillespie to represent him. On November 30, Torres pleaded not guilty to all counts of the superseding indictment, but on January 28, 1985 he changed his plea to guilty on the two narcotics counts. During the January 28 allocution, the district court inquired into Torres' satisfaction with his representation by Gillespie: 2
After accepting the guilty plea on counts 1 and 2, the court set trial on count 3 for February 12 and continued bail.
Three days before trial, Torres advised Gillespie that he wanted to retain private counsel. On February 12, the morning of the trial, Gillespie, at Torres' request, moved to withdraw. The district court, which had received no prior indication that Torres wanted to replace Gillespie, inquired into the reasons for Torres' dissatisfaction with his attorney. Torres alleged that there was a "conflict of interest" because he had not received an adequate explanation of the case and Gillespie had not fought for his rights by securing the release of his personal belongings. 3 In his brief, Torres characterizes Gillespie's application as more than a motion to withdraw. Thus, the brief states: "Concommitant [sic ] with the motion to withdraw was Torres' motion (stated or implied) for a continuance to try the case at a later date with new counsel." However, our review of the record does not reveal--and Torres does not point out--a stated motion for a continuance. 4
After Torres listed his reasons for wanting to dismiss his attorney, Gillespie indicated to the court that he had met with Torres on at least five separate occasions; spent approximately eight hours conferring with him; filed pretrial motions; hired a private investigator; obtained a transcript from a pretrial hearing; and obtained all grand jury minutes and discovery from the government.
The district court, after finding no conflict of interest and denying the motion to withdraw, offered Torres the option of proceeding with Gillespie as his attorney or of proceeding pro se. The court told Torres that it was in his best interest to have a lawyer 5 and added that, in the event Torres chose to proceed pro se, Gillespie would be ordered "to be here in case you change your mind and want to ask him legal questions."
Among its preliminary remarks to the prospective jurors, the court stated I am not sure from talking to Mr. Torres and Mr. Gillespie whether Mr. Torres will represent himself or use the services of Mr. Gillespie who has been his attorney up until today. In any event, I have arranged to have Mr. Gillespie available to Mr. Torres during the entire trial, and the estimate of the lawyers is that we will finish this trial either today or tomorrow morning.
Torres objects to the following statement of the court, made shortly thereafter as jury selection continued:
Mr. Torres, as I said earlier, is the gentleman at the rear counsel table in a leather jacket. He is represented by Attorney Gillespie, who is seated beside him.
At trial, Special Agents Lemon, Assarian, and Joseph Ritucci were the only government witnesses; Torres was the only defense witness. While Gillespie made one objection and attended all bench conferences, Torres exercised his right to a peremptory challenge during jury selection; delivered an opening statement; cross examined government witnesses; testified in his own defense; and delivered a closing argument.
During his cross examination of the DEA agents, Torres twice ventured beyond asking questions and instead made statements. On these occasions, the district court instructed the interpreter not to translate Torres' statements. The first such instance occurred during the testimony of the government's first witness, Agent Lemon:
Q. But he said that the door was open--
MR. SAVAGE [Assistant United States Attorney]: Objection.
Q. --and i say That it was closed.
As the transcript demonstrates, Torres asked no questions of Agent Lemon after the court's instructions to the interpreter. The second instance took place during Torres' cross examination of the government's second witness, Agent Ritucci:
Following this colloquy, there was a discussion off the record; immediately thereafter, the government called its final witness, Agent Assarian, whom Torres did not cross examine. Thus, as far as the record before us indicates, Torres had no further questions of Agent Ritucci--or of any other witness--after the district court's second instruction to the interpreter not to translate the defendant's affirmative representations.
Torres contends that the district court abused its discretion in not granting a continuance of the trial so that he could obtain counsel of his choice. The Supreme Court has stated: "[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). In deciding whether denial of a continuance constitutes an abuse of...
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