United States v. Maldonado , 708 F.3d 38 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1012
UNITED STATES,
Appellee,
v.
JOSE LUIS MALDONADO,
a/k/a Edward de Jesus Meija Nunez,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
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.
February 13, 2013
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
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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
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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
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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
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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
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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
generally Fed. 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
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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
situation); United States v. McIntosh, 380 F.3d 548, 555 (1st Cir.
2004) (same).
"In all criminal prosecutions," the Sixth Amendment
declares, "the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const. amend. VI.
That, of course, includes the right to retain counsel of one's
choosing. See, e.g., United States v. Gonzalez-Lopez, 548 U.S.
140, 144 (2006); United States v. Gaffney, 469 F.3d 211, 216 (1st
Cir. 2006). But as important as that right is, it is not absolute.
See, e.g., Wheat v. United States, 486 U.S. 153, 159 (1988);
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Gaffney, 469 F.3d at 216.1 It must be balanced against the judge's
need to ensure the orderly progress of the trial, for example.
See, e.g., Gaffney, 469 F.3d at 216; United States v. Woodard, 291
F.3d 95, 106 (1st Cir. 2002). And ultimately, a defendant's right
to select his own counsel "cannot be insisted upon in a manner that
will obstruct reasonable and orderly court procedure." United
States v. Neal, 36 F.3d 1190, 1205-06 (1st Cir. 1994) (internal
quotation marks omitted).
Now, trial judges are busy people, obviously, operating
under extreme pressure to manage exploding dockets fairly and
efficiently. See, e.g., United States v. Saccoccia, 58 F.3d 754,
770 (1st Cir. 1995). Necessarily, then, they must have "broad
discretion" to control their calendars by granting or denying
continuance motions – and because they do, "only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the assistance
of counsel." See Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(internal quotation marks omitted). It surely goes without saying
– but we say it anyway – that our review is for abuse of
discretion, see, e.g., United States v. DeCologero, 530 F.3d 36,
78-79 (1st Cir. 2008), which occurs if no reasonable person could
1
See also United States v. Proctor, 166 F.3d 396, 402 (1st
Cir. 1999) (noting that, in the right situation, a district judge
may make a defendant pick between going "to trial with an unwanted
attorney and representing himself").
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agree with the judge's ruling, see Hutchinson ex rel. Julien v.
Patrick, 636 F.3d 1, 15 (1st Cir. 2011). Also and importantly, to
win here, the party denied the continuance must show that the
judge's decision caused specific, "substantial prejudice."
Saccoccia, 58 F.3d at 770.
Moving from the general to the particular, Maldonado
complains that the judge kept his preferred attorney, Cicilline,
from representing him, which, he contends, robbed him of his
constitutional right to chosen counsel. He could not be more
wrong. With jurors, witnesses, and lawyers (the prosecutor, plus
Watt and Espinosa) ready to go, the judge made it crystal clear
that Cicilline could enter his appearance but that the trial would
proceed as planned, noting (among other things) that Maldonado had
already received nine continuances and had gone through three
attorneys before hiring Watt and Espinosa (his fourth and fifth
lawyers). And it was Cicilline who balked at entering the case on
those terms. Critically, nothing in the Sixth Amendment gave
Maldonado the right to insist on the one-month continuance that
Cicilline demanded as a precondition for his entry – at least
Maldonado cites no case, and we know of none, that holds otherwise.
Cutting to the chase, we see no hint of an abuse of
discretion here. Again, the continuance request came on the day
set for the trial to begin – after the court had granted not one,
not two, but nine continuances (as we have said, with tireless
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repetition), delaying matters for months on end.2 The jury had
already been picked. Witnesses and lawyers (the prosecutor and the
Watt/Espinosa tandem) had arranged their schedules to be there.3
So had the judge. But Maldonado took a defiant stance, pulling out
all the stops to jam-up the proceedings. Recall how he had smeared
his bodily waste on himself and had brawled with marshals. Recall
also how the judge – having lived with the case for some time (so
he knew the protagonists fairly well) and having held multiple
conferences to sort out this sorry tangle – expressly found that
Maldonado's day-of-trial bid to switch out Watt and Espinosa for
Cicilline was nothing but obstructionism. And recall too how
Maldonado's desperate attempt to game the system had caused the
2
See, e.g., DeCologero, 530 F.3d at 79 n.27 (calling a
continuance motion made on the first day of trial "untimely");
United States v. Rodriguez-Marrero, 390 F.3d 1, 22 (1st Cir. 2004)
(similar for a motion made the day before trial); Neal, 36 F.3d at
1205-06 (ditto for a motion made ten days before trial); see also
United States v. Ademaj, 170 F.3d 58, 64-65 (1st Cir. 1999)
(calling a challenge to a continuance motion made on the first day
of trial (after there had been "a nine-month delay resulting from
five previous continuances") "frivolous").
3
See, e.g., Morris, 461 U.S. at 11 (holding that
inconvenience to jurors, witnesses, and lawyers is a key factor for
judge's deciding continuance motions in the counsel-of-choice
context); United States v. Gaya, 647 F.3d 634, 636 (7th Cir. 2011)
(Posner, J.) (noting that granting a continuance "after a jury is
picked would, by marooning the jury, enable a defendant unhappy
with that jury to try his luck with a new one," since the time
needed for him to get his new counsel "up to speed would be too
great for the original jury to be kept waiting for trial to
begin").
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judge to send jurors and witnesses home two days in a row.4 Sure,
as a newcomer to the case, Cicilline no doubt had his reasons for
wanting a 30-day continuance (as opposed to a shorter term), though
he did not spell them out on the record before the judge ruled.
But having measured that request against the appropriate factors –
including the lateness of the plea, the amount of time previously
available for preparation (thanks to nine other previously-granted
continuances), the extent to which Maldonado's own actions caused
his claimed predicament, the inconvenience to others should another
continuance follow, and the availability of assistance from Watt
and Espinosa – the judge was justified in drawing a line in the
sand. Cf. Saccoccia, 58 F.3d at 770-71 (discussing the balancing
of factors).
On top of that, Maldonado makes no showing of specific
and compelling prejudice necessary to win here. He vaguely
suggests that his pined-for sixth attorney (Cicilline) would have
pursued different pretrial strategies – moving to suppress his
incriminating statements, disputing the authenticity of the state
judge's signature on the search warrant, striking a different
potential juror. But he does not persuade us that these hinted-at
maneuvers had any realistic prospect of success, let alone that
4
See, e.g., Gaffney, 469 F.3d at 216 (stressing that a
defendant cannot use the right to counsel as a means to manipulate
the court "or hamper the prosecution") (internal quotation marks
omitted); Woodard, 291 F.3d at 106 (similar).
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they could in any way have affected the verdict, so his argument
fails. See, e.g., id. at 771 (rejecting a defendant's prejudice
theory because it lacked "any colorable basis for assuming that his
supposition was anything more than the most remote of
possibilities").
Given this concatenation of circumstances, we cannot say
that the judge acted in an unreasoning and arbitrary way.
Undaunted, Maldonado spends some time discussing United States v.
Allen, 789 F.2d 90 (1st Cir. 1986) – too much time, actually.
Allen outlines factors relevant in reviewing denied motions to
replace appointed counsel. Id. at 92. The catalog includes the
timeliness of the substitution motion; the adequacy of the judge's
inquiry into why the attorney-client relationship supposedly
soured; and whether their beef was so profound that it caused a
"total" breakdown in communication, preventing counsel from
effectively presenting an "adequate defense." Id. Abuse-of-
discretion review applies to that issue too. Id.Though he tries mightily, Maldonado can get no mileage
from Allen. For starters, we have our doubts about whether the
Allen factors apply in cases like this one involving privately-
retained counsel. See Woodard, 291 F.3d at 107 (raising that very
question and explaining why the Allen factors may not be a good fit
for this situation). But we need not resolve them, because even
assuming that the Allen test holds sway here, Maldonado has not
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shown any reversible error, given the events described above:
Again, his effort to jettison Watt and Espinosa came too late in
the day. Also, the judge conducted a thorough and thoughtful
inquiry. See, e.g., Woodard, 291 F.3d at 108 (noting that "[t]he
extent and nature of the inquiry may vary in each case; it need not
amount to a formal hearing"). Finally, regarding the nature of the
alleged conflict between counsel and client, Maldonado basically
says that he had lost trust in team Watt/Espinosa. But that, by
itself, is not sufficient, as he candidly admits – instead, the
defendant must offer up a "legitimate reason for his loss of
confidence." Id.; see also United States v. Myers, 294 F.3d 203,
206 (1st Cir. 2002) (adding that "[g]ood cause depends on objective
reasonableness; it cannot be gauged solely by ascertaining the
defendant's state of mind"). And this is where he gets tripped up.
True, he blasts his lawyers for not doing what he says they should
have done – seeking to suppress his damning statements, contesting
the state judge's signature on the warrant, and using the final
peremptory challenge differently. Remember, though, that Espinosa
explained the thinking behind his and Watt's approach (partly
during a sealed sidebar) – explanations that the judge accepted,
finding that Maldonado's complaints "don't have any real merit."
And that dooms Maldonado's Allen-based argument, given that counsel
is not required "to pursue weak options when it appears, in light
of informed professional judgment, that a defense is implausible or
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insubstantial." Woodard, 291 F.3d at 108 (internal quotation marks
omitted).
The bottom line is that we see no reason to second-guess
the judge's decision on the choice-of-counsel issue. So we soldier
on.
Next up is Maldonado's claim that the judge slipped in
finding him competent for trial without first ordering a
psychiatric exam. To succeed, Maldonado must show facts that
create "a real, substantial and legitimate doubt" about his
competency. United States v. Brown, 669 F.3d 10, 17 (1st Cir.
2012) (internal quotation marks omitted). Reviewing the judge's
findings, we see nothing resembling an abuse of discretion, which
is the standard that applies when a judge denies a request for a
competency evaluation, see United States v. Maryea, No. 11-2239,
2013 WL 150316, at *11 (1st Cir. Jan. 15, 2013). We explain
briefly.
Competency here requires that the defendant have the
ability both to comprehend the nature of the proceedings and to
assist counsel in preparing his defense. See, e.g., Dusky v.
United States, 362 U.S. 402, 402 (1960); United States v. Widi, 684
F.3d 216, 220-21 (1st Cir. 2012) (noting that "[a] defendant may
have serious mental illness while still being able to understand
the proceedings and rationally assist his counsel"). With that in
mind, we have good reasons to leave the judge's competency decision
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alone. For one thing, Maldonado's own privately-selected lawyer
(Espinosa) considered Maldonado competent – something that carries
"great weight" with us, given "counsel's unique vantage." Widi,
684 F.3d at 220 (internal quotation marks omitted); see also Brown,
669 F.3d at 17. For another, the judge got to see and hear
Maldonado firsthand (they interacted quite a bit, the reader will
recall), and Maldonado was hardly incoherent (as a review of the
transcripts confirms) – a factor that also supports the judge's
ruling. See, e.g., Widi, 684 F.3d at 220; United States v.
Sanchez-Ramirez, 570 F.3d 75, 81 (1st Cir. 2009). Also, the record
reveals that Maldonado had no trouble consulting with and assisting
counsel at different stages – yet one more consideration showing
that his incompetency theory will not fly.5 See, e.g., Brown, 669
F.3d at 17-18.
Searching for a way around all this, Maldonado again
talks about the time that he covered himself with feces and urine.
Only a plainly incompetent person would have done that, he
suggests. But as the judge supportably found, that was just
5
Given the stunts that Maldonado had pulled, the judge
purposely kept a close eye on him during court proceedings. And "I
have to say," the judge later said, "that I never at any time
observed anything to give me the slightest bit of concern about
[his] ability to participate effectively in his own defense with
counsel." Actually, "there were many, many times when [Maldonado]
was communicating with trial counsel," the judge added, showing
that "he was more than fully engaged" as events played out.
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another desperate ploy to avoid trial. So it does not change our
conclusion.
Neither does his complaint that his lawyers should have
gotten his psychiatric records from a community-health center –
records that he says would have shown his unfitness for trial.
This is really a claim that his attorneys provided ineffective
assistance, which typically requires a showing that counsel
performed deficiently and prejudiced the outcome of the case. See,
e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984). And that
is a problem for Maldonado, because our practice is not to review
ineffective-assistance claims on direct appeal, except in the rare
instance when the record is sufficiently developed for us to weigh
in. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)
(laying out the rationale for this practice in exquisite detail).
Maldonado's claim falls within the general rule, not the seldom-
seen exception to it, given that we do not know for sure why
counsel did what they did, for example. See United States v.
Moran, 393 F.3d 1, 10-11 (1st Cir. 2004) (finding an ineffective-
assistance claim pressed on direct appeal premature because it was
impossible to tell whether counsel's decision was strategic or an
oversight). The upshot is that if Maldonado wants to pursue this
claim, he must do so by filing a motion under 28 U.S.C. § 2255.
See Mala, 7 F.3d at 1063 (holding that when the lower-court record
is too skimpy to be helpful, "we have routinely dismissed the
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relevant portion of the appeal without prejudice to the defendant's
right to litigate his ineffective assistance claim through the
medium of an application for post-conviction relief"); see also
United States v. Guerrier, 669 F.3d 1, 9 (1st Cir. 2011) (similar,
collecting additional cases).
The same is true for four of his other claims. The first
three should be familiar to the reader by now: his knocking
counsel for not moving to suppress his incriminating comments, not
questioning the genuineness of the state judge's signature on the
warrant, and not using the last peremptory strike against another
potential juror. The fourth concerns his claim that he did not
testify at trial because of counsel's bad advice (they had a warped
view of the evidence, he says) – advice given when (he says) he was
too affected by prescription drugs to make a wise choice. These
claims are actually ineffective-assistance claims. And here too
there are too many unknowns to permit meaningful review – unknowns
like what motivated counsel to make the choices that they made
(Espinosa offered rationales for the tack he and Watt took, but
some of that happened during a sealed sidebar), and who said what
to whom and when, and what state Maldonado was really in when it
mattered, and (assuming errors in the defense) whether there is a
reasonable probability of a different result. We reject these
claims, then, though he can renew them (if he wishes) in a § 2255
petition. See, e.g., Mala, 7 F.3d at 1063.
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Which brings us to Maldonado's last issue, whether the
judge stumbled in denying his new-trial motion – a question we
review for abuse of discretion.6 See, e.g., United States v. Hall,
557 F.3d 15, 19 (1st Cir. 2009). Stripped to its essentials, his
new-trial theory is little more than a repackaging of his counsel-
of-choice, competency, and judicial-signature arguments that we
already have brushed aside. Given this, we cannot say that the
judge abused his discretion here.7 See, e.g., United States v.
Kelly, 722 F.2d 873, 882 (1st Cir. 1983) (holding that because
"[t]he grounds for this [new-trial] motion were mainly the same
contentions already discussed" and rejected, the judge did not
"abuse [her] discretion in denying defendant's" new-trial request).
Conclusion
Our review over, we affirm the judgment below but without
prejudice to Maldonado's right to raise his ineffective-assistance
claims (if he so chooses) in a § 2255 petition. Naturally, we take
no position on how a petition like that might fare.
6
The government suggests that Maldonado may have filed his
new-trial motion beyond the limits set in Fed. R. Crim. P.
33(b)(2). But, commendably, the government also says that we
should skip over the timeliness issue because prosecutors did not
raise that concern below, and so we shall. See generally United
States v. Alverio-Meléndez, 640 F.3d 412, 423 n.6 (1st Cir. 2011)
(bypassing a timeliness argument because the new-trial arguments
failed "on the merits").
7
Maldonado criticizes the judge for not holding an
evidentiary hearing on his new-trial motion. But he does not
seriously develop that argument, offering us no authority for it,
so we deem it waived. See, e.g., United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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