U.S. v. Williams

• Decision Date: 24 April 1996
• Docket Number: 95-5031,Nos. 94-5854,s. 94-5854
• Parties: 44 Fed. R. Evid. Serv. 444 UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1321

81 F.3d 1321

44 Fed. R. Evid. Serv. 444

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee WILLIAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee WILLIAMS, Defendant-Appellant.

Nos. 94-5854, 95-5031.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1996.

Decided April 24, 1996.

Appeals from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (CR-93-72-BO)

ARGUED: Sema E. Lederman, Raleigh, North Carolina, for Appellant. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North Carolina, for Appellee.

Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge HALL and Judge HAMILTON joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Jimmy Lee Williams appeals his conviction and sentence on forty-seven counts of committing bank fraud in violation of 18 U.S.C. § 1344(1) and aiding and abetting in violation of 18 U.S.C. § 2. He contends that he was denied his right to counsel of his choice, that the testimony of his wife was erroneously admitted at trial, and that the district court applied the wrong Guidelines range at sentencing. Because the district court did not abuse its discretion in disqualifying Williams's chosen counsel and because the admission of Williams's wife's testimony was not plain error, we affirm Williams's convictions. We also find that the district court applied the correct Guidelines range and so affirm Williams's sentence.

I.

Williams wrote forty-seven bad checks and deposited them in the Wachovia Bank account of his then girlfriend, Fannie Martin, between May 6 and July 24, 1990. He endorsed each check by signing Martin's name, deposited the checks by way of automated teller machines, and withdrew money from the account by machine as well. The deposits totaled about $69,000, and the withdrawals totaled a little over $11,000 before Wachovia discovered and halted the scheme.

The FBI began investigating in the summer of 1990, but progress was apparently slow. Martin and Williams married in November of 1991, although the authorities do not seem to have learned of the marriage until long after its occurrence, and only in March of 1992 did the government send Martin a letter informing her that it would seek an indictment against her in the case. She employed a lawyer, Jack Crawley, who represented her while the FBI continued to look for Williams. The government did not find Williams until June, 1993, when he was discovered in local detention awaiting a bond hearing. FBI Agent Brian Warren contacted Williams's then-lawyer and arranged to meet with Williams. On June 4, 1993, immediately before his bond hearing and in the presence of his lawyer, Williams spoke to Agent Warren and confessed in detail to his planning and execution of the entire scheme. He also exculpated Martin, who by then was his wife and had changed her name to Williams. As a result, the government indicted Mr. Williams in November, 1993 but indicated that it would not proceed further against his wife.

In March of 1994, Jack Crawley, the same lawyer who had represented Ms. Williams when she was under investigation, undertook to represent Mr. Williams, who apparently had had at least two other lawyers in this case before that date. A magistrate judge held a pretrial hearing on a government motion to have Crawley disqualified on the grounds that there was a conflict of interest in his representing both Mr. Williams and Ms. Williams, who was expected to be a witness in the case. At that hearing, Crawley said that he no longer represented Ms. Williams, that he would be glad to get another lawyer to do any cross-examination of Ms. Williams that might prove necessary at trial, and that he would not share any information that derived from his representation of Ms. Williams with that auxiliary lawyer. The magistrate judge approved that arrangement.

On the day scheduled for trial, the government renewed its motion to have Crawley disqualified. Notwithstanding the arrangement to bring in auxiliary counsel, the district court granted the motion, finding an obvious conflict of interest between Crawley's former representation of Ms. Williams and his current representation of her husband against whom Ms. Williams was to testify. The court then postponed the trial for three months to allow Williams to get a new lawyer.

Ten days before the rescheduled trial was to begin, Williams filed a motion in limine asserting that he had reason to believe that Ms. Williams would assert a marital-communications privilege and requesting that any such assertion of privilege by her be done out of the presence of and kept from the knowledge of the jury. Three days before the trial date, Ms. Williams sent an "Affidavit" to the district court, declaring her "desire not to be an adverse witness," requesting the protection of any applicable privilege, and requesting that the district court "accept this informal notice to the court as I do not have legal counsel and cannot afford to retain one."

On the day of trial, the government sought to have the question of Ms. Williams's spousal privilege ruled on. It argued that under an established exception to the spousal privilege, spouses might be required to testify to objective facts that had occurred prior to marriage. The district court accepted this argument and gave the government permission to call Ms. Williams for that limited purpose. Mr. Williams did not object to that ruling nor offer counterargument. During the trial, the government called Ms. Williams and elicited testimony that she had not endorsed or deposited the checks herself, nor authorized the signing of or deposit of the checks.

Williams was convicted on all counts. He then filed a pro se motion to set aside the verdict on the grounds of ineffective assistance of his court-appointed lawyer. That motion was denied. He then filed two pro se notices of appeal on November 1 and December 16, although he had not yet been sentenced.

During Williams' sentencing hearing, the district court initially expressed uncertainty about whether Williams's offense level should be 13, as determined by the total amount of loss he had intended to inflict on the bank, or 11, as suggested by Williams, who relied on a complex "attempt" cross-reference in the Guidelines. In the end, the court opted for level 13 but sentenced Williams to the low end of that range, thirty-three months, which, he noted, was also the high end of level 11. The sentencing judge then announced that he would have sentenced Williams to the same thirty-three months even if he had concluded that the proper offense level was 11.

This appeal followed. Williams challenges his conviction on the grounds that he was denied counsel of choice (Crawley) and that the district court erred in requiring Ms. Williams to testify against him despite her assertion of spousal privilege. He challenges his sentence on the grounds that a proper reading of the Guidelines makes his applicable offense level 11 and not 13.

II.

The general principles to be applied in reviewing a district court's disqualification of counsel are laid out in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In that case one alleged member of a drug conspiracy had sought to retain a lawyer who had already represented and might again represent two other alleged members of the conspiracy. The government moved to disqualify this lawyer because a conflict of interest might well develop between the lawyer's duties to this defendant and his duties to the other two men. The district court agreed and disqualified counsel, notwithstanding that all three clients had waived their right to conflict-free representation. Upholding the decision to disqualify, the Supreme Court emphasized that the Sixth-Amendment right to counsel has more to do with ensuring the fairness and integrity of the adversarial process generally than with vindicating a defendant's desire to have the particular lawyer that she or he most wants. Id. at 159, 108 S.Ct. at 1697. And, the court observed that when a district court detects conflicts of interest, that court must take whatever steps are necessary "to ascertain whether the conflicts warrant separate counsel." Id. at 160, 108 S.Ct. at 1697. Moreover, even if one or all defendants provide explicit waivers of their rights to conflict-free representation and thus declare themselves willing to risk the harm that might come from a hedged cross-examination or a failure to object to admission of a piece of evidence or similar failures of counsel, the court must yet be free to insist on separate representation in order to vindicate its own "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 160, 108 S.Ct. at 1698.

Wheat thus requires a district court to exercise its own independent judgment as to whether the proceedings are likely to have the requisite integrity if a particular lawyer is allowed to represent a party. And, it made plain that for this purpose the court must have sufficiently broad discretion to rule without fear that it is setting itself up for reversal on appeal either on right-to-counsel grounds if it disqualifies the defendant's chosen lawyer, or on ineffective-assistance grounds if it permits conflict-infected representation of the defendant. Id. at 161-64, 108 S.Ct. at 1698-1700.

We have rigorously applied Wheat 's rationale--which emphasizes the primacy of the court's concern for integrity of the process--to the point of reversing for abuse of discretion a district court's refusal, because of pa...