United States v. Luis Alberto Lara Salomon ( 2020 )


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  •             Case: 18-13347   Date Filed: 03/04/2020   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-13347
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 0:17-cr-60041-BB-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    LUIS ALBERTO LARA SALOMON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (March 4, 2020)
    Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    Case: 18-13347     Date Filed: 03/04/2020    Page: 2 of 8
    Luis Salomon was convicted by a jury of making false statements with the
    intent to secure a passport, in violation of 18 U.S.C. § 1542; making a false
    statement and representation of material fact to a United States agency, in violation
    of 18 U.S.C. § 1001(a)(2); and making a false statement in an application for a
    passport, in violation of 18 U.S.C. § 1028A(a)(1). In this appeal from those
    convictions, he argues that the district court erred by denying his motion to dismiss
    his trial counsel and his counsel’s motion for admission pro hac vice of an out-of-
    state attorney. Salomon also attempts to raise an ineffective-assistance-of-counsel
    claim against his trial attorney. He concedes that the lack of a fully developed
    record precludes appellate review of this claim and that such a claim is typically
    brought on collateral review. However, he asserts that we should remand to the
    district court to develop the record on this claim. Otherwise, Salomon asserts, he is
    effectively denied an appeal as a matter of right on this claim by 28 U.S.C.
    § 2253(c)(1)(B)’s requirement that he obtain a certificate of appealability (COA)
    before appealing the denial of a § 2255 motion. We conclude that the district court
    properly denied Salomon’s motions and decline to consider his ineffective-
    assistance-of-counsel claim; thus, we affirm his convictions.
    I.
    Salomon retained Florida attorneys Ovide Val and Beresford Landers to
    represent him in district court. Landers filed a motion to continue the first trial
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    date because he needed additional time to review discovery with Salomon. The
    district court granted the continuance. Val then filed a motion asking the district
    court to allow Isaac Wright, a New Jersey attorney, to appear pro hac vice and
    represent Salomon “for all purposes relating to the proceedings.” In the motion,
    Val left blank the space where the designated local attorney’s name should appear,
    although he signed the signature line and included his Florida Bar number at the
    end of the motion. The district court denied the pro hac vice motion because it
    failed to indicate the designated local counsel’s name, as required by the Southern
    District of Florida’s Local Rule 4(b).
    Landers appeared on Salomon’s behalf at the start of the jury trial. Landers
    told the court Salomon had sent the court a letter stating that he did not want
    Landers or Val to represent him anymore and, instead, wanted a public defender.
    The court stated that it had not received the letter and asked Salomon if he still
    wanted to discharge his retained attorneys; Salomon affirmed. Salomon initially
    stated, through an interpreter, that Landers had not spoken with him since the case
    was set for trial. However, after Landers refuted this, Salomon stated that Landers
    had later met with him to discuss a plea, but the meeting had only lasted 15
    minutes. Landers stated that he had met with Salomon several times, reviewed
    discovery and discussed defenses with him, and was ready and willing to defend
    him at trial. The district court stated that it did not find any conflicts and that it
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    believed Landers and disbelieved Salomon. The case proceeded to trial, and the
    jury convicted Salomon on all counts.
    Before sentencing, Salomon moved to discharge his attorneys and requested
    a public defender. The district court held a hearing on the motion. Wright
    appeared by telephone, but the court told him that, because it had denied the pro
    hac vice motion, he could not appear on Salomon’s behalf. Landers did not
    appear. The court appointed a public defender to represent Salomon at sentencing
    and on appeal. The court ultimately sentenced Salomon to 39 months’
    imprisonment.
    II.
    If a district court conducts an inquiry into the merits of a defendant’s motion
    for new counsel, then we review the district court’s denial of that motion for an
    abuse of discretion. United States v. Calderon, 
    127 F.3d 1314
    , 1343 (11th Cir.
    1997). Typically, we also review for an abuse of discretion a district court’s denial
    of a motion for admission pro hac vice if that motion was denied for procedural
    reasons or for conduct which occurred in the presence of the district court. See
    Schlumberger Techs., Inc. v. Wiley, 
    113 F.3d 1553
    , 1558 (11th Cir. 1997).
    However, the Sixth Amendment places certain limitations on a district court’s
    discretion in a criminal case. United States v. Dinitz, 
    538 F.2d 1214
    , 1223 (5th Cir.
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    1976). 1 Thus, a district court may only deny a motion for admission pro hac vice
    on its merits if it first grants the attorney a hearing and gives him adequate notice
    and time to defend his misbehavior. In re Evans, 
    524 F.2d 1004
    , 1008 (5th Cir.
    1975). We defer to a district court’s credibility findings unless its “understanding
    of the facts appears to be unbelievable.” United States v. Ramirez-Chilel, 
    289 F.3d 744
    , 749 (11th Cir. 2002) (internal quotation mark omitted).
    The “essential aim of the [Sixth] Amendment is to guarantee an effective
    advocate for each criminal defendant rather than to ensure that a defendant will
    inexorably be represented by the lawyer whom he prefers.” Wheat v. United
    States, 
    486 U.S. 153
    , 159 (1988). However, a defendant who is represented by
    retained counsel may substitute this counsel, or he may substitute appointed
    counsel for retained counsel, “regardless of the quality of the representation he
    received.” United States v. Jimenez-Antunez, 
    820 F.3d 1267
    , 1270 (11th Cir.
    2016). Because a defendant may discharge his retained counsel without
    implicating his right to effective representation, a district court may not require that
    defendant to show “good cause” for dismissing his retained counsel. 
    Id. at 1271.
    Whether that defendant will later request or require retained counsel also does not
    abridge the right to discharge his retained counsel. 
    Id. Therefore, a
    court may
    1
    See Bonner v. City of Pritchard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc) (holding that
    decisions of the United States Court of Appeals for the Fifth Circuit handed down prior to the
    close of business on October 1, 1981 are binding precedent in the Eleventh Circuit.
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    refuse a defendant’s request to substitute counsel only if that substitution would
    “interfere with the fair, orderly, and effective administration of the courts.” 
    Id. at 1272
    (internal quotation mark omitted). “For example, a defendant may not
    substitute counsel to delay court proceedings.” 
    Id. In Jimenez-Antunez,
    we
    ultimately reversed the district court because it improperly required the defendant
    to show good cause; it offered no reasons why granting Jimenez-Antunez’s motion
    would have disrupted the fair, orderly, and effective administration of the courts;
    and this Court could not “necessarily infer any reasons from the record.” 
    Id. at 1272
    –73.
    A district court has “wide latitude” to balance a defendant’s right to choose
    his own counsel “against the needs of fairness” and “the demands of its calendar.”
    United States v. Gonzalez-Lopez, 
    548 U.S. 140
    , 152 (2006). We have held that
    there are six factors to consider when a district court is deciding whether to
    continue trial to allow a defendant to obtain substitute counsel: “(1) the length of
    the delay, (2) whether the counsel who becomes unavailable for trial has associates
    adequately prepared to try the case, (3) whether other continuances have been
    requested and granted, (4) the inconvenience to all involved in the trial,
    (5) whether the requested continuance is for a legitimate reason, and (6) any
    unique factors.” United States v. Bowe, 
    221 F.3d 1183
    , 1190 (11th Cir. 2000).
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    Additionally, we “give[] great deference to a district court’s interpretation of
    its local rules.” United States v. Ochoa-Vasquez, 
    428 F.3d 1015
    , 1026 n.9 (11th
    Cir. 2005) (quotation marks omitted). The Southern District of Florida’s Local
    Rule 4(b), governing pro hac vice appearances, states that a motion for admission
    pro hac vice “shall designate at least one member of the bar of [Florida] . . . with
    whom the [c]ourt . . . may readily communicate.” S.D. Fla. L.R. 4(b)(3).
    Here, the district court did not abuse its discretion when it denied Salomon’s
    motion to discharge his retained counsel because inferences drawn from the record
    demonstrate that granting Salomon’s motion would have disrupted the fair,
    orderly, and effective administration of the courts. See 
    Jimenez-Antunez, 820 F.3d at 1272
    –73. Specifically, Salomon’s motion was presented at the start of trial and
    after the district court had already granted one continuance. Thus, the district court
    could reasonably infer that Salomon’s request was made with a dilatory motive.
    Furthermore, the district court did not abuse its discretion when it denied
    Salomon’s counsel’s motion for admission pro hac vice because counsel failed to
    state the designated local attorney’s name, as required by the Southern District of
    Florida’s local rule, and never refiled the motion in compliance with those rules.
    See 
    Ochoa-Vasquez, 428 F.3d at 1026
    n.9. Therefore, we affirm the district court’s
    denial of Salomon’s motion to dismiss counsel and counsel’s motion for admission
    pro hac vice.
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    III.
    Generally, we will not consider ineffective-assistance-of-counsel claims on
    direct appeal “where the district court did not entertain the claim nor develop a
    factual record.” United States v. Patterson, 
    595 F.3d 1324
    , 1328 (11th Cir. 2010).
    Instead, the preferred method for raising an ineffective-assistance claim is through
    a § 2255 motion. 
    Id. A movant
    may not appeal the results of his § 2255 motion
    unless this Court or the district court grants a COA. 28 U.S.C. § 2253(c)(1)(B).
    We will not consider Salomon’s ineffective-assistance-of-counsel claim on
    direct appeal because, as he concedes, the factual record concerning his claim is
    not fully developed. See 
    Patterson, 595 F.3d at 1328
    . Further, there is no injury
    that we can redress regarding Salomon’s argument that § 2253’s COA requirement
    is unconstitutional as he has yet to file a § 2255 motion and, therefore, he is not yet
    subject to the limitations of the COA requirement.
    AFFIRMED.
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