U.S. v. Vasquez

• Decision Date: 23 March 2009
• Docket Number: No. 07-1248.,07-1248.
• Citation: 560 F.3d 461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Delapaz VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

560 F.3d 461

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Delapaz VASQUEZ, Defendant-Appellant.

No. 07-1248.

United States Court of Appeals, Sixth Circuit.

Submitted: March 12, 2009.

Decided and Filed: March 23, 2009.

ON BRIEF: Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant. Jennifer J. Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Alfredo DeLaPaz Vasquez appeals his convictions and sentencing in the district court. After Vasquez was arrested in 2001 in an undercover narcotics investigation, he fled the jurisdiction. He was apprehended again in 2006. A jury then convicted Vasquez of (1) conspiracy to possess with intent to distribute more than five kilograms of cocaine, and (2) aiding and abetting in the distribution of 500 grams or more of cocaine. He was sentenced to 240 months of imprisonment on each count, to be served concurrently, and to four years of supervised release. Vasquez contends on appeal that the district court committed reversible errors during his trial and sentencing. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Vasquez was arrested in December 2001 in an undercover drug-bust operation in Saginaw, Michigan. He had arranged, together with Jose Ove Montes, Jr. and Vasquez's brother Juan Delgado Vasquez (Juan), to deliver seven kilograms of cocaine to Detective Michael Winters, who was then serving as an undercover narcotics officer, and to Robert Mason, a government informant. Montes, Vasquez, and Juan had traveled from Texas to Michigan to deliver the cocaine. The record shows that Vasquez actively participated in negotiations over the price of the drug and in arranging other details of the delivery. Shortly after the delivery of one kilogram of cocaine to Winters at a gas station, Vasquez and his confederates were arrested.

Vasquez was released the day following his arrest when he agreed to cooperate with the government in investigating and prosecuting other drug offenders. But after making a controlled delivery to another buyer, Vasquez fled from Michigan to Texas and then to Mexico. Later in December 2001, indictments were issued against Vasquez for (1) conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine (Count 1), and (2) aiding and abetting the distribution of 500 grams or more of cocaine (Count 2). An arrest warrant was also issued for him at the time. Vasquez remained a fugitive for almost five years. He was apprehended in May 2006 in Texas.

The district court appointed attorney Eric Proschek to represent Vasquez at trial pursuant to the Criminal Justice Act. Vasquez and the government subsequently entered into a written plea agreement. During the first plea hearing on August 3, 2006, Vasquez told the district court that he did not understand English very well and requested an interpreter. The court continued the hearing so that an interpreter could be provided. An interpreter was present at the second plea hearing on August 8, 2006, but Vasquez indicated that he was not ready to plead guilty because he had not reviewed an audio recording of his phone calls in the drug transaction.

At the hearing, Vasquez also requested a new attorney, telling the court: "Every time [Proschek and I] meet we don't understand each other. I don't feel that he trusts what I do with the way we talk." The court denied the request, informing Vasquez that "you can have an attorney of your own choice if you can afford to hire one.... If you cannot afford a lawyer, I will appoint one for you and the one that has been appointed by the court is Mr. Proscheck. So those are your options." Thereafter, the court once again continued Vasquez's plea hearing, directed Proschek to use an interpreter when communicating with Vasquez, and instructed Proschek to inform the court within one week whether Vasquez wanted to enter a guilty plea or proceed to trial.

Vasquez did not reach a plea agreement with the government. After another continuance and reassignment to another judge, his trial commenced in October 2006. During voir dire, the district court addressed the parties regarding correspondence that the court had received from Vasquez requesting the substitution of counsel. Vasquez claimed that Proschek had told him "to lie to the judge and lie to the court," declined to file motions of his behalf, would not bring evidence to him, showed up without an interpreter, and refused to provide him with all the discovery obtained from the government. Proschek denied the accusations and stated that he had attempted to meet with Vasquez, but that Vasquez had refused to speak to him even when he was accompanied by an interpreter, that Vasquez and Proschek had no difficulty communicating in English when Vasquez wished to do so, that Vasquez wanted Proschek to present arguments and motions unsupported by the law or the evidence, and that the only discovery he had not discussed with Vasquez was the information he received during the time that Vasquez had refused to speak with him. After hearing from Vasquez and Proschek, the district court denied Vasquez's request.

A jury subsequently found Vasquez guilty on both counts of the indictment. Based upon Vasquez's possession of at least three and a half, but less than five, kilograms of cocaine, the Presentence Report (PSR) set Vasquez's base offense level at 30. With a base offense level of 30 and a criminal history category of III, Vasquez's initial Sentencing Guidelines range was 121 to 151 months of imprisonment. Vasquez did not lodge any objections to the PSR. But the government filed five objections, contending that (1) Vasquez's base offense level should be 32 because his offense involved seven kilograms of cocaine; (2) Vasquez should receive a two-level adjustment for obstruction of justice; (3) Vasquez should receive a two-level adjustment for his leadership role in the offense; (4) Vasquez's total offense level should be 36 based upon objections (1) through (3); and (5) Vasquez's Guidelines range should be 235 to 293 months of imprisonment based upon a total offense level of 36 and a criminal history category of III. All of these objections were sustained by the district court, which sentenced Vasquez to 240 months of imprisonment. This timely appeal followed.

II. ANALYSIS

A. Motion for new counsel

1. Standard of review

We review a district court's decision regarding an indigent defendant's motion for substitute counsel under the abuse-of-discretion standard. United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir.2007). An abuse of discretion occurs where the district court "relies on clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal standard." United States v. Chambers, 441 F.3d 438, 446 (6th Cir.2006). A defendant seeking the substitution of counsel must "bring any serious dissatisfaction with counsel to the attention of the district court." Benitez v. United States, 521 F.3d 625, 632 (6th Cir.2008) (citation and internal quotation marks omitted). Once a defendant expresses his dissatisfaction with counsel, the district court is obliged to conduct an inquiry into the defendant's complaint to determine whether there is good cause for substitution of counsel. Id. This court in United States v. Mack, 258 F.3d 548 (6th Cir.2001), set forth the factors to be considered:

When reviewing a district court's denial of a motion to withdraw or substitute counsel, we generally must consider: (1) the timeliness of the motion, (2) the adequacy of the court's inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public's interest in the prompt and efficient administration of justice.

Id. at 556 (citation omitted).

The Supreme Court has held that "[t]rial judges necessarily require a great deal of latitude in scheduling trials.... Consequently, broad 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, 75 L.Ed.2d 610 (1983) (citation and internal quotations marks omitted). "[W]hen the granting of the defendant's request would almost certainly necessitate a last-minute continuance, the trial judge's actions are entitled to extraordinary deference." United States v. Whitfield, 259 Fed.Appx. 830, 834 (6th Cir.2008) (citation and internal quotation marks omitted).

2. Analysis

Vasquez argues that the district court abused its discretion by denying his motion for new appointed counsel. After Vasquez was indicted in December 2001, he fled the jurisdiction before his trial could be scheduled. When he was apprehended more than four years later (in May 2006), his trial was set for August 15, 2006. Vasquez requested a Spanish-speaking interpreter at his first plea hearing on August 3, 2006, causing his hearing to be continued until August 8, 2006. At the August 8 hearing, one week before the trial was scheduled to begin, Vasquez first requested another attorney. The court denied Vasquez's request, but granted Vasquez additional time to meet with Proschek and to decide whether to enter a guilty plea. Vasquez's trial was subsequently rescheduled for August 29, 2006. After Vasquez decided not to enter a guilty plea, the court granted his motion to reschedule his trial for a second time. The trial was reset for October 17, 2006.

Less than two weeks before his rescheduled trial was due to begin, Vasquez again requested substitute counsel in...