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United States v. Velazquez

United States Court of Appeals, Ninth Circuit

May 1, 2017

United States Of America, Plaintiff-Appellee,
Guadalupe Velazquez, Defendant-Appellant.

          Argued and Submitted November 18, 2016 San Francisco, California

         Appeal from the United States District Court No. 2:12-cr-00877-JAT-4 for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

          Michael J. Bresnehan (argued), Law Offices of Michael J. Bresnehan P.C., Tempe, Arizona, for Defendant-Appellant.

          Keith E. Vercauteren (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: Alex Kozinski, Ronald Lee Gilman, [*] and Michelle T. Friedland, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The panel vacated the defendant's convictions that resulted from her guilty plea, and remanded for further proceedings, in a case in which the defendant argued that she was constructively denied her right to counsel.

         The panel held that the district court abused its discretion by denying the defendant's requests to substitute counsel without conducting an adequate inquiry. The panel observed that (1) the defendant did everything in her power to alert the court to her belief that she was receiving inadequate assistance of counsel, and the district court never conducted any meaningful inquiry into her concerns about her counsel or their relationship; (2) the record reflects serious breakdowns in communication and trust; (3) the defendant's two motions to substitute counsel, and three attempts to argue that her attorney had not advised her on the plea, were all made in advance of her plea deadline and more than a month before trial; and (4) even if her motions could be considered untimely, the court's failure to conduct an adequate inquiry and the extent of the conflict outweigh any untimeliness.

         Rejecting the government's argument that any concerns the defendant had about her counsel were remedied by meetings she had with him, the panel wrote that there is a substantial risk that the defendant agreed that she was satisfied with her attorney's performance because the magistrate judge pressured her to accept the plea and she knew that she had to make that statement to enter the plea.

         Concurring, Judge Kozinski wrote only to note that the judges below acted with what they believed to be the defendant's best interest at heart.


          FRIEDLAND, Circuit Judge.

         Guadalupe Velazquez seeks to vacate a guilty plea on the ground that she was constructively denied her right to counsel when the district court denied her motions to substitute counsel without conducting an adequate inquiry. We agree that the district court abused its discretion in denying Velazquez's motions and thus vacate the convictions that resulted from her plea.

         I. BACKGROUND


         Guadalupe Velazquez was in her late teens and on a scholarship at Arizona State University when she began dating Hector Ortiz, Jr. At some point, Ortiz and his father began running a drug-trafficking organization that shipped marijuana across the United States and laundered the proceeds. Local police and federal agents compiled evidence against the organization, including photographs and videos of Velazquez dropping off marijuana shipments at UPS. When police executed a search warrant on the home that Velazquez shared with Ortiz, they found guns, ammunition, and large quantities of marijuana.

         Ortiz, his father, Velazquez, and nine other associates were indicted on various charges stemming from their participation in the organization. District Judge Teilborg of the United States District Court for the District of Arizona presided over the resulting criminal proceedings.


         Velazquez was initially represented by Craig Orent, a court-appointed attorney. Orent moved to withdraw and to have new counsel appointed on the basis of irreconcilable conflict and a breakdown in communications. Velazquez then filed a pro se motion requesting the removal of Orent, a hearing on that request, and the appointment of substitute counsel. After a four-minute hearing in which the district court refused Velazquez's request to speak, the court granted counsel's motion to withdraw. The court then appointed Kenneth Countryman to represent Velazquez.


         Because the course of Velazquez's relationship with Countryman and the circumstances of her eventual guilty plea are central to her arguments on appeal, we recount both in detail.

         In September 2013, Ortiz's counsel filed two motions to suppress wiretap evidence. On Velazquez's behalf, Countryman filed requests to join in each motion. On October 1, the court denied all motions to join another defendant's motion to suppress, but allowed the defendants to file their own suppression motions within five business days. Countryman missed that deadline. On November 8, in a motion to extend the deadline, Countryman stated that he "did not discover the Court's Order . . . until recently" because he had been in trial. He also filed a motion to suppress wiretap evidence and a motion to sever. Later that day, the court denied all three motions, and the Government offered Velazquez a plea agreement.

         On November 18, 2013, Velazquez filed a pro se request for new counsel, arguing that Countryman's representation of her was "beset by failed communications and inexcusable inattentiveness." Specifically, she cited Countryman's failure to file timely pretrial motions despite multiple warnings of the deadline from the court and Velazquez herself, a breakdown in communications, and an unspecified conflict of interest. She also "respectfully request[ed the] Court hold a hearing and conduct [an] inquiry into" her claims. On November 19, a second superseding indictment was issued and Velazquez filed five pro se motions relating to discovery, trial timelines, and the court's jurisdiction.

         On December 3, the district court held a six-minute hearing on the pro se motions. After listing the motions, Judge Teilborg stated, "I have reviewed those motions and . . . they are denied . . . as lacking any merit whatsoever, " and he adjourned the proceeding. The following exchange then occurred:

The Defendant: Excuse me, sir. May I say something?
The Court: I'm sorry?
The Defendant: May I say something?
The Court: What is it you wish to say?
The Defendant: Did you - sorry. I need clarification. . . . So basically are you telling me that you denied all my motions outright, even the request to conduct an inquiry as to the conflict of interest with Mr. Ken Countryman?
The Court: I have denied the motions, and I went through them one by one, so each of them has been denied.
The Defendant: Okay. So I'm not - there's absolutely no way I can address the Court?
The Court: I'm sorry?
The Defendant: There's - Your Honor, I need - I - I - I need to make a record, Your Honor, I absolutely need to make a record of his failure of communications, the fact that I have a plea deadline today and he has failed to communicate the plea with me. I mean, I have evidence upon evidence, I have recorded e-mails, calls, everything, Your Honor, that he has continuously failed me. We have not gone through any of the discovery. He's lied to the Court and told you that -
The Court: I considered everything that was in writing that you filed with the Court and ruled on them. All right?
The Defendant: So there's absolutely nothing we can do now, even though he has not met with me, he hasn't done anything.
The Court: As I said, I reviewed what you put in writing and have ruled on it.
The Defendant: Okay. May I ask another thing, Your Honor, please, so I can state this on the record? I have a deadline for my plea. Okay? Today. If he stays on my case, that plea expires at five o'clock. Mr. Ken Countryman has never met with me and told me anything about the plea, never, Your Honor, absolutely never.
The Court: I've taken up the only thing before the Court at this time, and he, as your counsel, I'm sure, will do what he is obligated to do.
The Defendant: But he hasn't done that, Your Honor.
The Court: Very well.

         Following this hearing, it appears that the prosecution granted Velazquez an extension to respond to its proffered plea deal. On December 4, Velazquez appeared for arraignment on the second superseding indictment before Magistrate Judge Bade. As Countryman was stating his appearance, Velazquez interjected that she and Countryman were "at great odds, " and explained that he had given Velazquez only a few minutes to review the indictment, did not know what her charges were, and had missed several deadlines. Judge Bade responded that she was not going to consider those issues because Judge Teilborg had already denied Velazquez's motions, including her motion to appoint new counsel. Judge Bade then told Velazquez that she could file another motion for new counsel with Judge Teilborg and rescheduled the arraignment.

         In accordance with Judge Bade's suggestion, Velazquez filed another motion for new counsel on December 10 and requested an evidentiary hearing. She alleged that Countryman had not conducted any independent investigation of her case, had not given her access to the discovery, and could not answer basic questions about the charges against her. She claimed that he repeatedly fell out of contact for months at a time, met with her only in public places like restaurants, and lied to her about deadlines, when she needed to appear in court, and what motions he had filed. She asserted that he had filed confidential information without her permission. She further claimed that Countryman's paralegal-a disbarred attorney-"used tactics of intimidation, humiliation, and sexual harassment to scare her to not go to trial" and told her that he, not Countryman, would be the one to file motions on her behalf. Finally, she alleged that Countryman had not discussed her plea offer with her because he said that he had been too busy to read it. She concluded that she would be committing perjury if she agreed as part of a plea that she had received effective representation.


         On December 10, Velazquez appeared before then-Magistrate Judge Logan for her rescheduled arraignment. The tensions between Velazquez and Countryman were evident from the beginning of the hearing. After stating his appearance, Countryman said, "Your Honor, I met with my client about the indictment. . . . [B]ecause of the nature of our communications, I'm not inclined to waive a reading [of the indictment] . . . . [W]e've been unable to meet and communicate and have any kind of productive meeting, and the last meeting we had I terminated." When Velazquez tried to bring up her motion for new counsel, Judge Logan said:

The first thing is Judge Teilborg, he's a senior judge in this building, and he's an Article III district judge, and he's a higher level judge than I am. I can't overrule what he's already done. If he's already listened or taken consideration of the situation as it relates to your representation of Mr. Countryman, and he's already ruled on the issue in terms of Mr. Countryman being the person that will represent you, you can talk for the next two hours, and there's no way for me to change anything.

         Judge Logan then explained each of the charges. Velazquez indicated that she understood the charges but stated that her attorney did not. The judge disagreed: "He understands the nature of your charges, and you certainly understand the nature of your charges now." Although Judge Logan observed, "it's pretty clear to me that you don't wish to plead guilty to anything in this case, " he began to address the plea offer.

         Velazquez interjected to raise concerns about her counsel. She explained that she had not yet reviewed the plea with Countryman. She also alerted Judge Logan that she had filed another motion to substitute counsel with Judge Teilborg and had attached supporting exhibits. She explained that she had recorded her last meeting with Countryman "because of our mistrust, because of the breakdown in relationship, " and offered the recording as proof of her claims.

         Judge Logan declined to review the exhibits or recording and instead began explaining that Velazquez would not have received a more favorable plea agreement with different counsel. He stated that a defense attorney "can't make the executive branch, the federal government, do anything." He added, "If I were standing next to you as a defense counsel, it wouldn't change anything that the U.S. Attorney's Office was willing to do." The judge went on:

The Court: So there's a plea agreement here that I've received . . . . [W]hen I read through the indictment and I read the plea offer, I see a few things in here that really popped out. And there were agreements, you know, to basically dismiss . . . Counts 2, 3, 7, 9, 13, 14, 26, 27, 28, 29, which led me to believe that the United States Government was seeking to have you plead guilty to Count No. 1 and Count No. 10 of the second superseding indictment. What that told me is your lawyer clearly had some kind of interaction with the United States Government because the United States Government could have been seeking a plea of guilt to everything that's in the indictment. Mr. Vercauteren, what's her exposure if she goes to trial and she's convicted of all of these counts?
Mr. Vercauteren [the Prosecutor]: She's looking at over 40 years, I would say, pretty easily, and that's I think, under the Guidelines, not statutorily. Statutorily she could be facing life imprisonment.
The Court: So she's facing natural life in prison if she's convicted statutorily. And, ma'am, you wouldn't receive natural life. But if the [G]overnment, because what's driving the indictment, you have the conspiracy, you have the possessions, the money laundering, it's a lot of time but not as much as the big chunks with the drug conspiracy. But you have some . . . counts involving the guns which push the numbers up pretty much. So without getting into the actual negotiations, I would assume - and correct me if I'm wrong - as part of trying to resolve this case, the [G]overnment has agreed not to go forward with the [gun] counts. Is that right?
Mr. Vercauteren: That's correct. Those are being dismissed as part of the agreement under Section 4A.
The Court: And, Mr. Vercauteren, I know you're not Judge Teilborg, but I'm pretty sure you have an idea if she pled guilty to this offense - And, Mr. Countryman, my recollection is your client doesn't have any criminal history; is that right?
Mr. Countryman: She has zero, Judge.
The Court: Okay. So -
Mr. Countryman: She'd be - she should have zero points on her criminal history, category I.
The Defendant: I asked him what level I was at, and he couldn't tell me. I asked him what is the total amount of the contraband they were alleging. He couldn't tell me. And I have that all recorded.
Mr. Countryman: Well, first of all, Judge, anytime somebody sits in front of you and puts a bag in front of you, you ought to know that they're surreptitiously recording you, so it comes as no surprise. I would be shocked that she would submit that to the Court, given her behavior during that instance, but that's up to her. I'm sure she probably deleted that section.
The Defendant: It's all there.
Mr. Countryman: I told her very clearly during that meeting that she was a level 26 to start. We could not get into how far she'd go up and down because I'm not going to ...

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