USA. v. Gonzalez
| Decision Date | 26 September 2001 |
| Docket Number | No. 99-50152,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,ADELZO-GONZALE,99-50152 |
| Citation | 268 F.3d 772 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,, v. CARLOS |
| Court | U.S. Court of Appeals — Ninth Circuit |
Phillip A. Trevino, Law Offices of Phillip A. Trevino, Beverly Hills, California, for the defendant-appellant.
John S. Gordon and Michael S. Lowe, Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California Carlos R. Moreno, District Judge, Presiding D.C. No. 98-0790-CRM
Before: Before: Hug and Betty B. Fletcher, Circuit Judges, and Illston, District Judge.*
Carlos Adelzo-Gonzalez appeals his conviction following a plea of guilty to criminal charges of hostage taking, transporting illegal aliens, and harboring illegal aliens. At issue is whether the district court abused its discretion in denying Adelzo-Gonzalez's repeated requests for appointment of substitute counsel. We conclude that the district court did not make an adequate inquiry and failed to recognize the material breakdown in trust and communication between defendant and his court-appointed attorney. Despite clear indications of an irreconcilable conflict between defendant and his attorney, the district court denied Adelzo-Gonzalez's requests for a new attorney on three occasions. We hold that this was an abuse of discretion and accordingly reverse and remand.
Adelzo-Gonzalez was arrested on July 13, 1998 in Los Angeles, California, in connection with a scheme to kidnap illegal aliens and demand ransom payments from their families. The government initially charged defendant with conspiracy to harbor illegal aliens, transporting illegal aliens, and harboring and concealing illegal aliens, but substituted more serious counts of hostage taking in a superseding indictment. The district court appointed a private attorney to represent defendant throughout the criminal proceedings.
Adelzo-Gonzalez is a native of Guatemala and required a Spanish interpreter to communicate with his attorney and the trial judge. He was dissatisfied with his appointed counsel from early in the representation and made three motions for appointment of a new attorney. All of the motions were denied.
The district court heard Adelzo-Gonzalez's first motion after arraignment on the first superseding indictment on October 29, 1998. Shortly before the arraignment, Adelzo-Gonzalez had sent a letter directly to the court requesting a new attorney. There was already some indication of a rift between Adelzo-Gonzalez and his appointed counsel at the arraignment. Defendant had hesitated in entering his plea and appeared not to understand the nature of the proceeding, when the appointed counsel stated to the court:
I feel he understands the nature of the proceedings. I also feel, though, that he has been advised by someone, or has his own ideas, as far as what he wants to do. At this point, I tried to explain to him that he should enter a plea of guilty or not guilty--I'm sorry. He should enter a plea of guilty or not guilty. And I'm running into the same problem that I run into ad nauseam, in lockup, which is -it's like a computer spins, and the answer comes out again, "I do not understand, I do not understand, " but I feel he does understand.
Appellant's Excerpts of Record ("ER") 17-18. Before finally entering his plea, Adelzo-Gonzalez asked the trial judge if the appointed counsel would continue as his lawyer if he pleaded not guilty.
After completing arraignment, the district court asked the prosecutor to leave and considered defendant's motion for appointment of new counsel. The court acknowledged Adelzo-Gonzalez's letter and asked if he wanted to add anything. Defendant declared that he and his appointed counsel were unable to understand each other. He further explained that animosity had arisen in their relationship. As an example, defendant recounted an occasion where the appointed counsel used bad language and threatened defendant:
When I asked him whether he could give me the indictment, he said why the fuck did I want the indictment . . . . And he told me that if I did not accept the agreement, that there would be -he was going to try to sink me for 105 years so that I wouldn't be able to see my wife and children.
Appellant's ER 21-22.
The court then heard from the appointed counsel, who responded:
I am sufficiently prepared [to present a defense], Your Honor. I am fully informed as to the facts of the case. There is nothing that would cause me to relinquish -to cause me to ask this Court to relinquish my role in this case. For the record, the things that were said are lies. And, unfortunately, it appears that the fellow is perfectly coached by someone, all with the exception of, Your Honor, for the use of the expletive deleted. He and I have had a few words, but this young man's life is in my hands.
Appellant's ER 22-23. Without further inquiry, the district court denied the motion to substitute counsel, finding that there was no breakdown of communication and that the appointed counsel "not only is willing to proceed with a vigorous defense, but he is more than capable of doing so, with or without [defendant's] cooperation."
Adelzo-Gonzalez made his second motion, again by written letter to the court, less than four weeks later, which the district court treated as a continuation of the prior motion for appointment of substitute counsel. The court provided a copy of Adelzo-Gonzalez's letter to his appointed counsel, who had not seen it before, and once again held an ex parte hearing to address anything defendant wanted to add. Defendant only asked questions concerning the nature of the charges against him. The court told Adelzo-Gonzalez to direct any questions concerning his defense to his attorney and conducted no further inquiry into the basis of the motion. The district court made no findings and did not explicitly rule on the motion.
At the final pretrial status conference on December 14, 1998, Adelzo-Gonzalez made his last request for substitution of counsel. In the course of the conference, defendant indicated to his attorney that he wanted to address the court. The appointed counsel interjected, stating, The court nonetheless allowed Adelzo-Gonzalez to speak and the following exchange ensued:
First, as to your relationship with [the appointed counsel], I'm going to deny that request. One, it's untimely. We're just talking about jury selection proceedings, and it's doubtful that any other lawyer would ever be able to get ready for trial.
Second, you really haven't explained to me in sufficient detail what it is about his representation of you that shows that he is not a competent lawyer and prepared to fully defend you. You've raised issues about profanity which don't, frankly, shock me. My sense here, for the record, is that you've been unwilling to listen to him, and, evidently, you didn't wish to consider a lower charge. That is, that would have given you 24 to 30 months.
Because of the delay in accepting that, the charges are now higher, and that causes you to believe somehow that [the appointed counsel] is responsible for that, when simply he's just giving you the sad news that the prosecutor has raised the stakes.
Appellant's ER 53, 56-57.
The district court next turned to Adelzo-Gonzalez's request to discharge the appointed counsel and proceed pro se. Adelzo-Gonzalez explained, "If you do not grant me another attorney . . . I rather just plead guilty right now, and not go to trial." Appellant's ER 59. When the court clarified that defendant wanted to proceed pro se just to plead guilty, the appointed counsel interrupted again: Appellant's ER 60. The court advised defendant that it was in his best interest to keep his attorney if he wanted to plead guilty.
Adelzo-Gonzalez agreed to plead guilty to all counts with the appointed counsel staying on as his attorney. He continued, however, to display dissatisfaction with his appointed counsel during the pleading colloquy. When asked whether he had sufficient time to discuss all aspects of his case with his attorney, Adelzo-Gonzalez replied, "[e]ven if I haven't," and indicated that the appointed counsel never asked him about the case and was not truthful about prior...
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