Vines v. U.S.

• Citation: 28 F.3d 1123
• Decision Date: 17 August 1994
• Docket Number: No. 92-4419,92-4419
• Parties: Miguel VINES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1123

28 F.3d 1123

63 USLW 2182

Miguel VINES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-4419.

United States Court of Appeals Eleventh Circuit.

Aug. 17, 1994.

Harvie S. DuVal, Greenfield & Duval, Miami, FL, for appellant.

Linda Collins Hertz, William Xanttopoulos, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and BIRCH, Circuit Judges, and SMITH, ^* Senior Circuit Judge.

COX, Circuit Judge:

This appeal arises out of the denial of Miguel Vines's Sec. 2255 motion. On this appeal we must determine whether the temporary absence of a defendant's trial counsel during the presentation of evidence necessarily gives rise to an irrebuttable presumption of prejudice that mandates vacation of that defendant's conviction. We conclude that the temporary absence of counsel during the presentation of evidence is not per se violative of the Sixth Amendment right to the assistance of counsel.

I. BACKGROUND

In June of 1988, a senior Customs inspector examined the shipping documents of a shipment of ninety-one boxes of fresh fish that had arrived at the Miami International Airport on a flight from Panama. Not recognizing the company listed as the shipment's consignee, and suspicious of the address to which the shipment was to be delivered, the Customs inspector determined that the shipment should be physically inspected. An inspection revealed that at least one of the ninety-one boxes contained cocaine. Based on that discovery, the entire shipment was placed under surveillance by Customs.

Several men arrived at the airport and loaded the ninety-one boxes onto a truck and transported the boxes to a warehouse. At the warehouse, two men unloaded the boxes under the direction of a third man, Manuel Casas. Eighty-five of the boxes were moved inside the warehouse and the other six were loaded into a small pickup truck driven by Jorge Fabal. Fabal drove the truck to an apartment complex.

At the complex, Fabal exited the truck and entered an apartment. Shortly thereafter, Fabal left the apartment with his brother-in-law, Miguel Vines. Vines entered a van parked next to the truck that Fabal had driven. With Vines's assistance, Fabal moved the six boxes from the truck to the van. A short time passed, and Fabal reloaded the six boxes into the truck. Then, Vines moved the truck and Fabal parked a car next to the van. At that point, Fabal and Vines moved several opaque plastic items from the van to the trunk of the car.

After that final transfer, Customs agents arrested Vines and Fabal. Agents recovered from the trunk of the car five or six packages wrapped tightly in yellow tape and covered with plastic. The packages contained 95.33 kilograms of 81% pure cocaine. Other Customs agents arrested Casas at the warehouse and proceeded to search the warehouse pursuant to a search warrant.

A federal grand jury returned a two-count indictment charging Casas, Vines and Fabal with: (1) conspiracy to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. Sec. 846, and (2) possession of at least five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. (Ex. 1-1). Casas and Vines were tried together. ¹ The trial lasted two days. At about 4:15 p.m. on the first day of trial, the court excused Vines's counsel for the remainder of the day. ² Prior to Vines's counsel's departure, the court instructed the jury: "Members of the jury, Mr. Shapiro [Vines's attorney] has got another important matter that he has to attend to. This witness won't testify as to his particular client. His client has waived his presence for the remainder of the afternoon, so we will excuse Mr. Shapiro at this time." (Ex. 2 at 142-43). ³ During Vines's counsel's absence, two witnesses testified for the prosecution: Special Agent Hank Blair and Donald Evans. ⁴

Blair's testimony centered around the arrest of Casas and the search of the warehouse. (Ex. 2 at 143-160). Blair testified about items found in Casas's briefcase at the warehouse. In addition, Blair testified, over Casas's attorney's objection, that the items discovered in the briefcase and the manner of shipping employed in this case fit the modus operandi of contraband smugglers. Casas's attorney cross-examined Blair about the arrest of Casas, the search, the evidence secured from that search, and Blair's opinion regarding the specific facts of this case vis-a-vis drug smuggling operations generally. (Ex. 2 at 160-176).

Evans, as part owner and operator of the warehouse, simply testified about leasing the space where the fish shipment was delivered. (Ex. 2 at 176-182). Evans could not identify the individuals to whom he had leased the space. (Ex. 2 at 179). Casas's attorney briefly cross-examined Evans about the nature of the relevant lease. (Ex. 2 at 182). Thereafter, the court called a recess. (Ex. 2 at 182-83). The trial resumed the following Monday morning with Vines's counsel present.

Casas was convicted on both Counts I and II. (Ex. 1-53). Vines was acquitted on Count I, the conspiracy charge, and convicted on Count II, the distribution charge. (Id.).

On direct appeal, Vines and Casas challenged the sufficiency of evidence supporting their convictions. Vines also contested the use of a modified Allen ⁵ charge and claimed ineffective assistance of counsel because of the absence of his attorney during the taking of evidence. In an unpublished opinion, we affirmed the convictions but declined to address Vines's claim of ineffective assistance of counsel, noting that it should be raised in a 28 U.S.C. Sec. 2255 motion. United States v. Casas, 897 F.2d 535 (11th Cir.1990) (Ex. 1-98 at 8, 9 n. 5).

Thereafter, Vines, proceeding pro se, filed a Sec. 2255 motion. (R.1-100). Therein, Vines advances two arguments in support of his contention that his Sixth Amendment right to counsel has been violated. First, Vines argues that he did not voluntarily and knowingly waive his right to counsel. (Id. at 5). Second, Vines asserts that he was denied effective assistance of counsel based on his trial counsel's absence during the taking of evidence. (Id.). Without an evidentiary hearing, a magistrate judge recommended that Vines's Sec. 2255 motion be denied. (R. 1-116 at 12). In so recommending, the magistrate judge concluded that Vines waived his right to counsel, that the temporary absence of his counsel did not warrant a presumption of prejudice, and that Vines suffered no prejudice as a consequence of his counsel's temporary absence during trial. (Id. at 9, 11-12). Vines objected to the magistrate judge's report and recommendation. (R. 1-117). The district court denied Vines's Sec. 2255 motion "[f]or the reasons stated in the report of the Magistrate Judge." (R. 1-118). This appeal follows.

II. CONTENTIONS OF THE PARTIES & ISSUE ON APPEAL

Vines contends that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. In support of that contention, Vines argues that under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the temporary absence of counsel gives rise to an irrebuttable presumption of prejudice and his conviction must therefore be vacated. In the alternative, Vines argues that his conviction must be vacated because prejudicial testimony was taken while his trial counsel was absent. The Government counters that no prejudicial testimony was taken during Vines's counsel's absence and that Vines is not entitled to a presumption of prejudice under Cronic. ⁶ Accordingly, the Government argues that the district court's denial of Vines's Sec. 2255 motion should be affirmed and Vines's conviction should stand.

III. STANDARD OF REVIEW

The claim that the temporary absence of trial counsel during the taking of evidence constitutes a Sixth Amendment violation presents a mixed question of law and fact and, as such, is subject to plenary review. See Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir.1989) (concluding that an ineffective assistance of counsel claim, which presents a mixed question of law and fact, is subject to plenary review), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805 (1990).

IV. DISCUSSION

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence." U.S. Const. amend. VI. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). To establish a claim of ineffectiveness of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must demonstrate (1) that his counsel's performance was deficient and (2) that his counsel's deficient performance resulted in prejudice. Id. at 687, 104 S.Ct. at 2064. Under Strickland, prejudice means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

Vines argues that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context. Strickland is therefore inapplicable in this case. ⁷

In the companion case to Strickland, United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court carved out a narrow exception to the two prong Strickland test. Cronic recognizes that there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. 466 U.S. at 658, 104 S.Ct. at 2046. Cronic teaches that...