United States v. Diaz

• Decision Date: 25 February 2020
• Docket Number: No. 18-2157,18-2157
• Citation: 951 F.3d 148
• Parties: UNITED STATES of America v. Evans Samuel Santos DIAZ, Appellant
• Court: U.S. Court of Appeals — Third Circuit

951 F.3d 148

UNITED STATES of America

v.Evans Samuel Santos DIAZ, Appellant

No. 18-2157

United States Court of Appeals, Third Circuit.

Argued November 12, 2019

Opinion Filed: February 25, 2020

Sean A. Camoni (Argued), Evan J. Gotlob, Office of the United States Attorney, 235 North Washington Avenue, P.O. Box 309, Suite 311, Scranton, PA 18503, Counsel for Appellee

Jacob Schuman (Argued), Brett G. Sweitzer, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge:

Appellant Evans Santos Diaz challenges his conviction for conspiracy to distribute and possess with intent to distribute heroin and cocaine, raising three distinct objections. While we are concerned that the District Court may not have been as attentive to Diaz’s complaints regarding his counsel as it should have been, and concerned as well that certain testimony by a government witness violated Rule 701, we will nonetheless deny his request for a new trial. We also conclude that the District Court did not clearly err when it attributed more than 20 grams of heroin to Diaz at sentencing. Accordingly, we will affirm.

I. Background

Evans Santos Diaz was charged, along with five co-defendants, with conspiracy to distribute and possess with intent to distribute drugs. One of the co-defendants, Jeffrey Guzman, orchestrated the conspiracy. He distributed to co-defendants Richard Chalmers, Louis Bracey, Landy Then, and Diaz, and periodically involved his mother, co-defendant Magdalena Alvarez, as well. All five of Diaz’s co-defendants pled guilty, but Diaz chose to exercise his right to a trial.

A. Pretrial Complaints about Counsel

After being indicted, Diaz represented that he could not afford counsel, and a magistrate judge assigned Criminal Justice Act (CJA) counsel, Deborah Albert-Heise to represent him. A few months later, however, Ms. Albert-Heise accepted a position as an assistant district attorney and withdrew. The District Court then appointed Joseph O’Brien on July 13, 2016.

Dissatisfied with O’Brien, Diaz requested new counsel in an August letter to the Clerk of Court. Diaz stated that O’Brien pressured him to plead guilty, did not accept Diaz’s advice on submitting pretrial motions, and failed to turn over discovery to him. In response to Diaz’s pro se motion, the District Court promptly held a hearing to inquire into the problems with the representation. At the hearing, the Court asked both O’Brien and Diaz about the issues and attempted to explain to Diaz that O’Brien was an excellent lawyer. Diaz still insisted that he wanted the Court to appoint new counsel, and the District Court appointed Joseph Kalinowski on August 29, 2016.

On December 5, 2016, Diaz wrote to the District Court to request certain documents and informed the Court that he had not received anything from counsel. In response, the Court issued an order acknowledging receipt of Diaz’s letter and directing the Clerk to forward a copy of the letter to counsel for a response. The record does not reflect any response from counsel.

On February 7, 2017, Diaz again wrote to the Court to request assistance obtaining discovery and advised that he was concerned about Kalinowski’s failure to communicate with him. In response to this letter, on February 14, 2017, the District Court ordered Kalinowski to file a response to Diaz by February 21. Kalinowski never complied with that order.

On February 22, following Kalinowski’s failure to comply with the February 21 deadline, Diaz requested new counsel. In a pro se letter, he wrote that Kalinowski "fails to answer my letters and requests for discovery materials. ... I am requesting that you consider appointing me new counsel." App. at 94. The Court did not then seek any additional information from Kalinowski or Diaz, nor did it inquire further or schedule any hearing to address the request to replace Kalinowski.

One month after the request for new counsel, on March 24, Kalinowski filed a motion for continuance in which he represented:

The Defendant has submitted a letter to the Court which is being considered as a request for new counsel. After a meeting between counsel and the Defendant on March 23, 2017, all issues between counsel and the Defendant have been resolved and the Defendant wishes to continue with counsel’s representation.

App. at 102–03. The District Court granted the continuance without commenting on Diaz’s request for new counsel. Diaz and Kalinowski then appeared together on April 7 for a pretrial conference. At the conference, neither Diaz nor Kalinowski raised any issue related to the request or the representation.

Ten days after the pretrial conference, on April 17, Diaz again wrote to the District Court complaining of Kalinowski’s failure to adequately represent him or to provide discovery. In the letter, he reminded the Court that Kalinowski never responded to the Court’s February 14 order and again stated that Kalinowski neither responded to Diaz’s letters nor visited him. On June 29, Diaz wrote to the Court complaining of Kalinowski’s failure to respond, repeated motions for continuance, and failure to provide discovery. Diaz did not, however, renew his request for new counsel either before or at trial. On August 16, the case proceeded to trial with Kalinowski representing Diaz.

B. Officer Gula’s Testimony at Trial

At trial, the government introduced evidence of Jeffrey Guzman’s conspiracy and Diaz’s role in it, including the testimony of Drug Enforcement Administration (DEA) Task Force Officer Jason Gula. The government asked Officer Gula about the members of the conspiracy and requested that he "briefly describe in summary how each of these individuals were involved." App. at 254. Gula testified that Guzman was the head of the operation; that Landy Then, Richard Chalmers, and Louis Bracey bought drugs from Guzman and sold them to their own customers; and that Guzman’s mother helped move and deliver the drugs. The government then asked, "how about the Defendant, Evans Samuel Santos Diaz, how is he involved in this case?" App. at 256. Gula responded, "Evans Santos Diaz through the investigation we identified as being basically a subordinate of Jeffrey Guzman, working at the direction of Jeffrey Guzman, bagging up drugs for Jeffrey Guzman, distributing on behalf of Jeffrey Guzman, and also distributing to his own customers, which we learned through the investigation." Id .

Gula also testified about intercepted communications between Diaz and others and between others talking about Diaz. He repeatedly testified as to the meaning and significance of those communications. After the testimony of several other witnesses, including co-defendants Guzman and Alvarez, and the introduction of text messages and recorded phone calls, the jury convicted Diaz of conspiring to distribute and possess with intent to distribute heroin, cocaine, and crack.¹

C. Sentencing

According to the presentence investigation report (PSR), Diaz’s offense involved 30 grams of heroin and 1 gram of cocaine. This resulted in a base offense level of 16. U.S.S.G. § 3C1.1. Diaz objected to the drug quantity determination, arguing that the evidence only supported a finding of 15 grams. The District Court considered the arguments of Diaz and the government. Based on the text messages and intercepted communications related to Diaz introduced at trial and on the fact that all of Diaz’s co-conspirators were responsible for much greater amounts, the Court concluded that 30 grams was an appropriate amount to attribute to Diaz. After adopting the PSR’s conclusion that the drug quantity made the proper base offense level 16, with an enhancement for obstruction of justice bringing the adjusted offense level to 18, the District Court sentenced Diaz to 33 months imprisonment and three years of supervised release.

II. Discussion

Diaz raises three issues on appeal: (1) the District Court’s failure to inquire into his motion for appointment of new counsel, (2) the improper admission of Officer Gula’s testimony, and (3) the Court’s attribution of more than 20 grams of heroin to Diaz at sentencing. We address each in turn.

A. The District Court’s Failure to Inquire

We review for abuse of discretion a district court’s decision not to permit substitution of counsel. See United States v. Goldberg , 67 F.3d 1092, 1097 (3d Cir. 1995). Generally, "[w]hen a defendant requests a substitution of counsel ... the district court must engage in at least some inquiry as to the reason for the defendant’s dissatisfaction with his existing attorney." United States v. Welty , 674 F.2d 185, 187 (3d Cir. 1982). In the course of the inquiry, the defendant must demonstrate good cause for appointment of new counsel, "such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with his attorney." Id. at 188. Although the requisite inquiry may consider a variety of sources and need not include a one-on-one colloquy with the defendant, we have noted the importance of allowing the defendant, as well as counsel, the opportunity to be heard on the matter. See United States v. Hodge , 870 F.3d 184, 202 (3d Cir. 2017).

Under our precedent concerning district courts’ obligation to inquire when a defendant lodges complaints regarding counsel’s representation, the facts here present a close case. Initially, the District Court appears to have made little or no effort to probe Diaz’s request that Kalinowski be replaced. Typically, if a district court fails to make "any on-the-record inquiry as to the reasons for the defendant’s dissatisfaction with his existing attorney," it abuses its discretion. McMahon v. Fulcomer , 821 F.2d 934, 944 (3d Cir. 1987) ; Goldberg , 67 F.3d at 1098 ; Welty , 674 F.2d at 190. We have not made that obligation dependent upon the number of times a defendant has...