and Submitted November 18, 2016 San Francisco, California
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.
E. Vercauteren (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; United States
Attorney's Office, Phoenix, Arizona; for
Before: Alex Kozinski, Ronald Lee Gilman, [*] and Michelle T. Friedland,
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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
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
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.
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
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.
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
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.
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.
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