United States v. Lopesierra–Gutierrez

• Decision Date: 08 May 2013
• Docket Number: No. 07–3137.,07–3137.
• Citation: 708 F.3d 193
• Parties: UNITED STATES of America, Appellee v. Samuel Santander LOPESIERRA–GUTIERREZ, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

708 F.3d 193

UNITED STATES of America, Appellee

v.Samuel Santander LOPESIERRA–GUTIERREZ, Appellant.

No. 07–3137.

United States Court of Appeals,District of Columbia Circuit.

Argued Dec. 12, 2012.

Decided March 1, 2013.

Rehearing En Banc Denied May 8, 2013.

Appeal from the United States District Court for the District of Columbia (No. 02cr00392–11).

Carmen D. Hernandez, appointed by the court, argued the cause and filed the brief for appellant.

Vijay Shanker, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Lanny A. Breuer, Assistant Attorney General.

Before: TATEL and KAVANAUGH, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Samuel Santander Lopesierra–Gutierrez, a Colombian national, was extradited for, charged with, and convicted of conspiracy to distribute cocaine with the knowledgeor intent that it would be imported into the United States in violation of 21 U.S.C. §§ 959(a), 960, and 963. The district court sentenced Lopesierra to 300 months' incarceration. On appeal, he mounts numerous challenges to his conviction and sentence. Most significantly, he maintains that his trial attorney suffered from a conflict of interest that deprived him of his Sixth Amendment right to conflict-free representation and that excessive trial delays violated his constitutional and statutory speedy-trial rights. For the reasons given below, neither claim has merit. As to the rest of his claims, we conclude either that the district court made no error or that any such error was harmless.

I.

In October 2002, Samuel Santander Lopesierra–Gutierrez, a member of the so-called Osorio drug-trafficking network, was arrested in Colombia and extradited to Washington, D.C. Upon arrival, he was arraigned and charged with conspiracy to distribute cocaine, knowing or intending that it would be imported into the United States. See21 U.S.C. §§ 959(a), 960, 963. Over the next few years, fourteen other members of the Osorio gang were extradited from Colombia and charged with related offenses. By the end of an extended period of negotiation and discovery, most of Lopesierra's alleged coconspirators had pled guilty. The trial of the remaining defendants, Lopesierra and another man, Dolcey Padilla, began nearly four years after Lopesierra's initial arrest.

At trial, Lopesierra never seriously disputed that he trafficked in large quantities of cocaine—indeed, he conceded as much during closing argument. But Lopesierra maintained his innocence of the crime charged, claiming that he neither knew nor intended that the cocaine was bound for the United States. See21 U.S.C. §§ 959(a). The government, seeking to demonstrate that Lopesierra had the requisite mens rea when he distributed cocaine, introduced testimony focusing on several key transactions, including a 462–kilogram shipment to Puerto Rico. The government argued that this evidence, along with evidence of prior drug-importation activity and of money laundering in the United States, demonstrated Lopesierra's awareness that at least some of the cocaine he conspired to distribute would be imported to the United States. After a nearly two-month trial, during which Lopesierra never testified, the jury found him guilty of conspiracy to distribute five kilograms or more of cocaine knowing or intending that the cocaine would be imported into the United States. See21 U.S.C. §§ 959(a), 960, 963. The district court imposed a below-guidelines sentence of 300 months.

Lopesierra appeals both his conviction and his sentence on myriad grounds. Two of his arguments—that he was denied his Sixth Amendment right to conflict-free representation and that the extensive trial delays violated his constitutional and statutory speedy-trial rights—merit in-depth analysis. We shall address these in Sections II and III and then consider his remaining nine arguments, running the gamut from evidentiary challenges to sentencing claims, in Section IV.

II.

Lopesierra's first and most serious contention is that his trial counsel suffered from a conflict of interest that amounted to a Sixth Amendment violation that prejudiced his defense. Here's what happened. Quite literally on the eve of trial, the government discovered that a cooperating witness would testify that, in the course of laundering money in the United States for Lopesierra, he had sent $96,000 to Lopesierra's attorney to cover legal fees. This testimony was part of the government's evidence regarding the statutorily required nexus between Lopesierra's activities and the United States. The government informed the court about the potential conflict of interest, explaining that the witness's testimony had spawned a Department of Justice investigation into whether the attorney had violated 18 U.S.C. § 1957, which criminalizes monetary transactions in property derived from unlawful activity. Arguing that the testimony and resulting investigation created an actual conflict of interest, the government moved to disqualify the attorney.

At a status conference the next day, Lopesierra's attorney insisted that he had no intention of withdrawing, that the witness could testify without identifying him as the recipient of the laundered funds, and that Lopesierra could waive any conflict. Speaking for himself, Lopesierra told the court that he was happy with the attorney's work and wanted him to continue. Following the conference, Lopesierra filed a response to the government's motion, which was signed by both the purportedly conflicted attorney and a law professor from whom the attorney had sought advice. In that response, Lopesierra maintained that he had the right to continued representation by his counsel of choice notwithstanding the alleged conflict of interest. According to Lopesierra, the conflict could be avoided so long as the witness never mentioned the attorney by name. He also emphasized that he wished to waive any potential conflict of interest. In response, the government agreed that Lopesierra could waive the conflict—so long as he did so knowingly and voluntarily. The government also acquiesced to a stipulation about the laundered funds that omitted the attorney's identity.

The district court then held another status conference, at which Lopesierra was represented by appointed conflict counsel and at which the law professor appeared by telephone. Both lawyers, as well as the government, agreed that Lopesierra could waive any conflict of interest. After considering both parties' statements and submissions, the district court concluded that any conflict of interest was in fact waivable. It then proceeded to engage Lopesierra, again represented by conflict counsel, in a detailed waiver colloquy. In response to the court's questioning, Lopesierra assured the court that he was aware of the source of the conflict, that he understood its nature, and that he knew he had a right to conflict-free representation. Lopesierra confirmed that he had been thoroughly advised by conflict counsel, insisted that he had carefully considered his waiver decision, and made clear that he understood he was waiving his right to later claim that he had been prejudiced by a conflict of interest. Given all this, the district court found that Lopesierra had “knowingly, intelligently, [and] voluntarily waived any conflict of interest.” Lopesierra's original attorney went on to represent him at trial.

On appeal, Lopesierra, now represented by new counsel, argues that he was denied his Sixth Amendment right “to have the Assistance of Counsel for his defence,” U.S. Const. amend. VI, which includes a “correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Lopesierra begins by attempting to demonstrate that “an actual conflict of interest adversely affect [ed] the adequacy of [his] representation.” United States v. Taylor, 139 F.3d 924, 930 (D.C.Cir.1998) (citing Cuyler v. Sullivan, 446 U.S. 335, 349–51, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Only then does he turn to the question whether his waiver bars his claim. We begin with the decisive issue: waiver.

Criminal defendants frequently waive their constitutional rights. By entering a guilty plea, for instance, a defendant waives rights as fundamental as the “privilege against compulsory self-incrimination, [the] right to trial by jury, and [the] right to confront his accusers.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Of course, such waivers are subject to strict oversight by the court, which must find that they are made knowingly and voluntarily. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Like these other constitutional rights, the Sixth Amendment right to conflict-free representation is subject to knowing and voluntary waiver. See Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); see also United States v. Childress, 58 F.3d 693, 734–36 (D.C.Cir.1995) (per curiam). A defendant's power to waive this right is grounded in another right situated in the Sixth Amendment: the right to counsel of choice. See Wheat, 486 U.S. at 160, 108 S.Ct. 1692.

In cases like this, where a defendant's chosen counsel suffers from a conflict of interest, the two Sixth Amendment rights come into clear conflict. Also implicated are the court's own institutional interests, as guaranteeing conflict-free counsel protects not just defendants' rights, but also the “[f]ederal courts['] ... independent interest in ensuring that criminal trials are conducted within the ethical standards of the [legal] profession and that legal proceedings appear fair to all who observe them.” Id. at 161, 108 S.Ct. 1692. Taking the court's interests into consideration, the Supreme Court has held that a defendant's counsel-of-choice right may sometimes be...