United States v. Brown , 40 F. App'x 697 ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-23-2002
    USA v. Brown
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 01-2342
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    Recommended Citation
    "USA v. Brown" (2002). 2002 Decisions. Paper 426.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/426
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 01-2342
    UNITED STATES OF AMERICA
    v.
    H. KAREN BROWN a/k/a HYACIENT BROWN,
    Hyacient Brown,
    Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF DELAWARE
    (D.C. Crim. No. 99-cr-00066)
    District Judge:   Honorable Joseph J. Farnan, Jr.
    ____________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    July 16, 2002
    Before:   McKEE, WEIS, and DUHı* Circuit Judges.
    (Filed: July 23, 2002)
    OPINION
    * The Honorable John M. Duh, Jr., United States Senior Circuit Judge,
    United States Court of Appeals for the Fifth Circuit, sitting by designation.
    WEIS, Circuit Judge.
    In October 2000, a jury convicted defendant of one count of conspiracy to
    import cocaine and one count of conspiracy to import hashish. The District Court
    sentenced her to 151 months imprisonment and three years of supervised release. The
    sole challenge raised in this appeal is to the trial judge’s refusal to appoint new counsel
    to represent defendant during her sentencing proceeding.
    Although sentencing was to have taken place in February, the district judge
    granted a continuance, rescheduling the proceeding for May 16, 2001. In a letter to the
    Court dated May 11 of that year, defendant requested that an attorney from the public
    defender’s office be appointed to represent her at sentencing, rather than her retained
    counsel. She complained that she had no money to pay the fee requested by her private
    attorney, nor the funds necessary to obtain a psychiatrist to testify in support of her effort
    to reduce her sentence under a theory of diminished capacity.
    At the sentencing hearing, the District Court invited defendant to explain
    her dissatisfaction with her attorney’s representation. She testified that counsel had not
    visited her in prison to discuss her sentence and that he did not adequately advise her
    before her trial began that pleading guilty would result in a lower sentence. She also
    complained that he had asked for additional fees in response to her request to hire a
    psychiatrist in support of her diminished capacity argument.
    Counsel responded that he had visited defendant and, at her request, had
    consulted a psychiatrist and advised defendant that the fees for that expert’s testimony
    would be approximately $7,000. Although defendant had previously stated that her ex-
    husband would provide the money, apparently that assurance proved not to be correct.
    Defendant also complained that her counsel refused to attend her post-trial
    meetings with the prosecutor, during which she disclosed information in hopes of
    securing a sentence reduction. Although nothing defendant told the prosecution during
    these "proffer" sessions had been of assistance, the United States Attorney advised the
    judge that he would be willing to meet with the defendant post-sentencing to discuss her
    further cooperation.
    After an extended hearing, the district judge found that defendant would
    not be unduly prejudiced by the continued representation of her retained attorney and had
    not established good cause to substitute another lawyer at that point.
    Turning to the matter of sentencing, the defendant and her counsel
    contended that the pre-sentence report mistakenly included a past arrest. The Court
    withdrew that item from the sentence calculation, thereby reducing the range to 121 to
    151 months. The judge remarked that defendant was involved at a high-ranking level of
    drug distribution, recruiting people at the low end of society to work for her at great risk
    to them. He continued, "I’m going to take you out of society for as long as I can," and,
    accordingly, sentenced her to 151 months imprisonment.
    After sentencing, the Court appointed the federal public defender to
    represent defendant on this appeal. She now contends that the District Court erred as a
    matter of law in refusing a continuance and appointment of new counsel, or, in the
    alternative, abused its discretion in the circumstances.
    Defendant argues that the District Court improperly relied on United States
    v. Welty, 
    674 F.2d 185
    (3d Cir. 1982), rather than United States v. Goldberg, 
    67 F.3d 1092
    (3d Cir. 1995). We find no merit to this argument; the two cases are entirely
    consistent in their approach. Indeed, Goldberg affirmed the continued vitality of the
    Welty holding, but cautioned courts to be mindful of the countervailing government
    interests involved where a defendant files a last-minute motion to substitute counsel.
    Both Goldberg and Welty recognize the duty of the trial judge to inquire as
    to the reason for the defendant’s dissatisfaction with counsel and determine whether
    good cause exists for granting a continuance and substituting another lawyer. Good
    cause, according to these cases, would include a conflict of interest, a complete
    breakdown in communication, or a defendant’s irreconcilable conflict with his attorney.
    
    Goldberg, 67 F.3d at 1098
    ; 
    Welty, 674 F.2d at 188
    .
    In the case before us, the district judge allowed both defendant and counsel
    to explain why the dispute had arisen. After hearing considerable testimony from both,
    he found no conflict of interest, nor any breakdown in counsel’s performance or
    communication that was unduly prejudicing defendant. He concluded, therefore, that
    defendant had not satisfied Welty’s good cause standard. We review that determination
    for clear error, 
    Goldberg, 67 F.3d at 1098
    , and find none.
    Defendant’s complaints about her trial attorney’s conduct were not
    particularly relevant to the sentencing hearing. Indeed, counsel successfully argued
    during that proceeding that part of the pre-sentence report was erroneous, and the District
    Court reduced her sentencing range accordingly,
    It appears that the request for the appointment of a public defender was
    substantially motivated by defendant’s unexpected inability to pay for a psychiatrist to
    testify that she should be granted a downward departure based on diminished capacity,
    pursuant to section 5K2.13 of the Sentencing Guidelines.
    That provision allows district courts, in their discretion, to make a
    downward departure from the applicable guideline range if the defendant committed the
    crime "while suffering from a significantly reduced mental capacity." U.S.S.G.
    5K2.13. This discretion is not available, however, if the reduced mental capacity was
    caused by defendant’s voluntary use of drugs, if the offense involved actual violence or a
    serious threat of violence, or if the defendant’s criminal history indicated a need for
    incarceration in order to protect the public. 
    Id. Moreover, a
    court need not hear expert
    testimony to establish diminished mental capacity where either the second or third
    element negating the court’s discretion is present. United States v. Cravens, 
    275 F.3d 637
    , 640-41 (7th Cir. 2001).
    Although not formally presented with a section 5K2.13 motion for
    downward departure, the Court was aware of the defendant’s history of mental health
    difficulties. The pre-sentence report noted that she had been admitted to Crozier Mental
    Center in Chester, Pennsylvania, in 1987 and 1990 following bouts of depression and
    attempted suicide. Antidepressant medications were prescribed and defendant had not
    undergone mental health treatment since 1991.
    Indeed, defendant had apparently been well enough to carry on two jobs
    during the 1990s. In addition to graduating from cosmetology school in 1990 and
    carrying on a hair styling business, she also obtained work through a temporary
    employment agency.
    It was the defendant’s "serious involvement" in a "pretty sophisticated"
    criminal operation, and her recruitment of "the very edge of the low end of society" to
    work for her, that persuaded the district judge to remove defendant from society for as
    long as possible. Noting that "what you were importing into this country is what kills
    kids every single day," the Court was obviously motivated by a desire to protect the
    public. We are satisfied that even if defendant had formally moved for a section 5K2.13
    downward departure, the motion would have been denied.
    Finding no legal error or abuse of discretion, we will affirm the judgment
    of the District Court.
    ______________________________
    TO THE CLERK:
    Please file the foregoing Opinion.
    /s/ Joseph F. Weis
    United States Circuit Judge
    July 22, 2002
    TO:       Marcia Waldron, Clerk
    U.S. Court of Appeals
    FROM:     Judge Weis
    RE:       USA v. H. Karen Brown, No. 01-2342
    Dear Ms. Waldron:
    Please file the attached Not Precedential Opinion in the above case,
    together with the Judgment. The signed originals are being mailed to you this date.
    Thank you.
    Sincerely,
    Joseph F. Weis, Jr.
    United States Circuit Judge
    cc:       Judge McKee
    Judge Duh
    Pacrats
    

Document Info

Docket Number: 01-2342

Citation Numbers: 40 F. App'x 697

Filed Date: 7/23/2002

Precedential Status: Non-Precedential

Modified Date: 1/12/2023