United States v. Maldonado

• Decision Date: 13 February 2013
• Docket Number: No. 12–1012.,12–1012.
• Parties: UNITED STATES, Appellee, v. Jose Luis MALDONADO, a/k/a Edward de Jesus Meija Nunez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

708 F.3d 38

UNITED STATES, Appellee,

v.Jose Luis MALDONADO, a/k/a Edward de Jesus Meija Nunez, Defendant, Appellant.

No. 12–1012.

United States Court of Appeals, First Circuit.

Feb. 13, 2013.

John F. Cicilline for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before THOMPSON, SELYA, and LIPEZ, Circuit Judges.

THOMPSON, Circuit Judge.

Backdrop

On an April morning in 2009, federal agents armed with a warrant searched suspected drug dealer Jose Maldonado and his apartment in Warwick, Rhode Island. They found plenty, coming up with bags of crack and powdered cocaine, over $6,500 in cash, a digital scale, and a driver's license indicating that he lived in nearby Cranston. Arrested and Mirandized, Maldonado talked to agents at the scene—telling them how much the crack taken from his jacket pocket weighed, describing the digital scale, and explaining how he ran his drug business from Warwick to shield his family in Cranston from the dangers associated with his line of work. Agents then asked for and received Maldonado's consent to search his Cranston home. And during that search they found pistols, ammunition, heroin, digital scales, drug presses, and materials that are mixed with crack and heroin in preparing them for sale at retail.

Later that day, Maldonado gave a tape-recorded confession, saying that he had been dealing drugs for about a year, that he had cooked the crack cocaine himself, and that the pistols were his. Agents then turned off the recorder, satisfied that they had gotten what they needed and ready to start the next phase of the investigation. But Maldonado kept talking, saying that he had actually been selling drugs for about eight years and that he would usually buy about a kilogram of cocaine every two weeks for $33,000 a pop. He also gave up some details about his drug sources.

Searching Maldonado's car the next day (a search done pursuant to a warrant, by the way), agents spotted a secret compartment behind the dashboard. In it they found more crack cocaine, powdered cocaine, and heroin.

Eventually charged in a multicount indictment with drug and weapons offenses, Maldonado pled not guilty and later moved unsuccessfully to suppress the evidence seized at the Warwick and Cranston locales. After many unusual twists and turns (more on this in a moment), a jury convicted him on all counts. The district judge denied his new-trial motion without an evidentiary hearing and sentenced him to a total of 181 months in prison plus 5 years of supervised release. Maldonado now appeals his convictions, but not his sentence, raising a slew of issues for our review. None carries the day, as we shall see.

Issues and Rulings

Maldonado's leadoff argument is that the district judge deprived him of his Sixth Amendment right to choose his own counsel. To put that issue in context, we must go a little deeper into the facts.

After Maldonado's arrest, the district court appointed an assistant federal public defender named Kevin Fitzgerald to represent him. Four months later, Maldonado retained private counsel, Steven DiLibero, and Fitzgerald withdrew from the case. About three months after that, DiLibero withdrew, and court-appointed counsel Robert Mann took over. Mann stayed on for nine months, withdrawing after Maldonado hired attorneys Robert Watt and Jose Espinosa. For those keeping track, that makes five lawyers for Maldonado in a little over a year. And while we are tossing around numbers, by the time his trial was set to start, Maldonado had asked for and received nine separate continuances, resulting in months and months of delays.

On what was supposed to be the first day of trial, the jurors, witnesses, and lawyers arrived at the courthouse bright and early. But Maldonado threw a monkey wrench into the proceedings by refusing to leave his cell. After talking with counsel, the district judge asked Watt and Espinosa to go meet with Maldonado in prison.

During a telephone conference held later that day, Watt and Espinosa (reporting from a prison conference room) explained that Maldonado had said that he did not want them representing him and that John Cicilline was now his lawyer. Answering a question from the judge, Espinosa stressed that he believed Maldonado was competent to stand trial. Maldonado joined Watt and Espinosa at some point and told the judge that, yes, neither Watt nor Espinosa was his attorney. “You have attempted to manipulate the Court on past occasions,” the judge stressed, and “I cannot allow you to disrupt the proceeding and to insult the dignity of this judicial process....” But Watt and Espinosa are “incompetent,” Maldonado fired back. “I don't want them, period.” The duo, the judge said, “are very skilled” lawyers who are “doing everything that they can do in your interest, even though you are making it very difficult for them.” And, the judge reminded Maldonado, “Cicilline has not entered this case on your behalf,” so “[h]e is not your attorney as far as the Court is concerned.” Clearly agitated, Maldonado demanded that he be taken back to his cell.

Speaking with those who remained, the judge called Maldonado's attempted firing of counsel a “subterfuge” intended to “undermine these proceedings.” “It's not a sincere dismissal,” the judge found, and he suggested that the trial go forward with Watt and Espinosa as counsel. The assistant United States attorney prosecuting the case agreed, and so did Espinosa, who announced that he was ready, willing, and able to defend Maldonado. But because Maldonado would not leave his cell—to make things more difficult, he had taken off his clothes after getting off the teleconference—the judge sent the jury home for the day.

At a chambers conference the next morning, the judge disclosed that federal marshals had reported that Maldonado had spread his own feces and urine over his body in a bid to keep them from taking him to court. Marshals tried to get him to court later that day. But he put up a fight, and he ended up needing some medical attention for a broken nose. So the judge sent the jury home for a second time. Cicilline then put on the record that he had told Maldonado that he would not enter an appearance in the case unless the judge granted a one-month continuance, and the judge explained that he would not grant a one-month continuance—particularly given that the jury was “in the box” and Maldonado had run through multiple attorneys already. “[T]he record is now replete” with examples of Maldonado's “resistence,” the judge found, adding that “all of the conduct, frankly, has been designed towards obstruction.”

The following day, Maldonado finally appeared in court. Espinosa told the judge that Maldonado wanted him to pursue certain trial strategies that he (Espinosa) thought inappropriate. And, Espinosa added, Maldonado made no bones about the fact that he wanted Cicilline to represent him. Maldonado told the judge that he respected Watt and Espinosa, but he criticized them for not doing two things, principally: asking the court to suppress his statements to police (he faulted the police for not having a Spanish-speaking officer present), and challenging a prospective juror whose husband worked for the Rhode Island State Police, though he was not a trooper, apparently. Speaking up, Espinosa said that Maldonado also faulted him and Watt for not subpoenaing to a suppression hearing the state judge who had purportedly signed the search warrant (Maldonado believed that someone else had signed the judge's name on that document). And he explained the reasoning behind their decisions. On the juror issue, for example, Espinosa stressed that he had been down to his last peremptory, that the prospective juror whom Maldonado had fixated on had proven her honesty and had shown that she would keep an open mind, and that another person needed to be stricken. Espinosa spoke to the other issues too. But that portion of the transcript is sealed, and, based on our review of the record ( e.g., the transcript order form), we see that Maldonado never had that part transcribed. See generallyFed. R.App. P. 10(b)(1)(A), (c) (requiring an appellant to procure the “transcript of such parts of the proceedings ... as the appellant considers necessary” or, if no transcript is available, to “prepare a statement ... of the proceedings from the best available means, including appellant's recollection”); Real v. Hogan, 828 F.2d 58, 60 (1st Cir.1987) (explaining that “it is the appellant who must bear the brunt of an insufficient record on appeal”). Anyway, having taken it all in, the judge found no merit in any of the matters Maldonado had asked Watt and Espinosa to raise and no reason to grant an eve-of-trial continuance so yet another lawyer could take over. Consequently, the judge gave Maldonado two choices: continue with Watt and Espinosa (who were doing an “excellent” job, the judge said) or represent himself.

In a last-ditch effort to avoid trial, Maldonado claimed that he suffers from and receives treatment for schizophrenia. He asked Espinosa to ask the judge for a mental-health evaluation, and Espinosa obliged. But having observed Maldonado firsthand and heard counsel say that Maldonado was competent, the judge found that this was just another delay tactic and ruled that the trial would go forward—and it did, with Watt and Espinosa representing Maldonado.

With this background in place, we take on Maldonado's perceived counsel-of-choice problem. First, though, we should say that the government insists that Maldonado forfeited this issue by not developing it adequately below, meaning it is reviewable only for plain error—or so the government argues. But because Maldonado's claim is clearly meritless, we can and do bypass the government's forfeiture theory. See, e.g., United States v. Henry, 482 F.3d 27, 32 (1st Cir.2007)(taking that tack in a similar...