United States District Court, S.D. California
REDACTED ORDER DENYING DEFENDANT HESTER'S MOTION
FOR A NEW TRIAL BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL
[SEALED DOC. NO. 663]
MICHAEL M. ANELLO United States District Judge
Edward Susumo Azano Hester (“Hester”) moves for a
new trial based on the ineffective assistance of counsel.
See SEALED Doc. No. 663. The parties appeared before
the Court on June 2, 2017 for a hearing on the motion.
See Doc. No. 721. Subsequent to the hearing, the
Court took the motion under submission for further
deliberation. Having considered the parties' briefs, the
pertinent portions of the record, and the oral arguments of
counsel, the Court DENIES Hester's motion.
is charged in a 39-count Third Superseding Indictment with
one count of conspiracy to violate campaign finance laws
(Count 1), one count of donation and contribution by a
foreign national (Count 3), and 12 counts of falsification of
records related to campaign finance (Counts 6-17).
See Doc. No. 336. Hester was tried on all counts
during the course of a six-week trial, July 26, 2016 through
September 1, 2016. Prior to trial, Hester moved in
limine for a severance of his trial from that of his
co-Defendants, citing a serious personal health condition.
See Doc. No. 341. After holding a two-day hearing,
the Court denied Hester's motion. See Doc. No.
358. Hester renewed his motion to sever on the second day of
trial, citing the retention of new counsel and the need for
additional time to prepare his defense. See
Reporter's Transcript (“RT”) (SEALED
Side Bar Conference), Doc. No. 653-5 at 5. The Court denied
the renewed motion, and trial proceeded as to all Defendants.
Id. at 6.
September 9, 2016, a jury found Hester guilty of the
conspiracy and donation and contribution charges (Counts 1
and 3). See Doc. No. 480. With respect to the
falsification charges, the jury acquitted Hester on Counts 6,
8, 9, 10, 11, and 12. Id. The jury deadlocked
regarding Counts 7, 13, 14, 15, 16, and 17, and the Court
declared a mistrial as to those counts. See Doc. No.
December 5, 2016, Hester retained new counsel of record.
See Doc. No. 528. Hester now moves for a new trial
based on the ineffective assistance of his former attorneys,
Donald DeGabrielle and John Kinchen. See SEALED Doc. No.
663. The government filed a response in opposition to the
motion, to which Hester replied. See Doc. No. 690;
SEALED Doc. No. 707.
jury indicted Hester on March 4, 2016. See Doc. No.
252. A member of the local defense bar and his associate
represented Hester at arraignment and an initial status
conference before this Court. See Doc. Nos. 257,
263. Attorney Donald DeGabrielle of Chaffe McCall LLP in
Houston, Texas, first appeared on Hester's behalf at a
status hearing held on March 22, 2016. See Doc. No.
269. On March 25, 2016, the Court approved DeGabrielle's
pro hac vice application to represent Hester, along with a
pro hac vice application submitted by attorney Michael Wynne
of McDermott Will & Emery LLP, in Houston, Texas, to
represent Hester's father and co-Defendant Jose Susumo
Azano Matsura (“Azano”). See Doc. Nos.
271, 272. DeGabrielle designated San Diego attorney Richard
Norton of Norton Moore and Adams LLP, as associate local
counsel for Hester. Id.; see also SDCivLR
83.3.c.4, CrimLR 1.1.e.21. Norton is primarily a business and
bankruptcy attorney who has represented Azano in connection
with Azano's business ventures. See Norton Decl.
9, 2016, DeGabrielle and Wynne jointly filed a series of
motions on behalf of their clients seeking various forms of
relief. See Doc. Nos. 293, 295, 296, 299.
Approximately five weeks later, on June 20, 2016, Wynne and
DeGabrielle jointly filed pretrial motions in limine
on behalf of Azano and Hester. See Doc. No. 319.
to Norton, DeGabrielle “was told that there were
concerns about his XXXXX”
approximately one “month before trial commenced.”
Norton Decl. ¶ 6. This concern caused Norton to meet
with local criminal defense attorneys in an attempt to retain
alternative representation for Hester prior to trial.
Id. For example, in late June, Norton approached San
Diego attorney Earl Pott of Klinedinst PC about representing
Hester at trial. See Pott Decl. ¶ 3. On July
11, 2016, after some consideration, including discovery
review, Pott declined to undertake the representation based
on the upcoming trial date and the complexity of the case.
See Id. ¶¶ 3-5.
meantime, on July 20, 2016, DeGabrielle filed a motion to
sever Hester's trial based on Hester's “severe
medical issues” and possible need for surgery. Doc. No.
341 at 2. In support of the motion, Hester contended that due
to his “serious health condition since June 23, 2016,
” he was “unable to meet with counsel to discuss
the ongoing discovery provided by the Government consisting
of over one thousand pages.” Id. DeGabrielle
appeared before the Court on Thursday, July 21, 2016, at the
pretrial motions in limine hearing. See
Doc. No. 329. The Court held a further hearing on Friday,
July 22, 2016, in order to hear argument and receive evidence
regarding Hester's motion to sever. See Doc. No.
351. Norton observed the proceedings; in his estimation,
DeGabrielle perform poorly. See Norton Decl. ¶
11. Earl Pott was approached that day regarding his
willingness to represent Hester. See Pott Decl.
¶ 6. He once again declined. Id. According to
Norton, Wynne recommended that his law partner, John Kinchen,
replace DeGabrielle, based on DeGabrielle's ostensibly
poor performance at the hearing. See Norton Decl.
¶ 13. Norton was informed on Sunday, July 24, 2016, that
Kinchen had agreed to represent Hester at trial. Id.
appeared before the Court again on Monday, July 25, 2016, for
a continued evidentiary hearing regarding Hester's
severance motion. Kinchen was not present, and had not yet
entered an appearance on Hester's behalf. See
Doc. No. 358. Norton entered a formal appearance, sat at
counsel table, and once again observed DeGabrielle perform
poorly. See Norton Decl. ¶ 16. During the
hearing, Wynne attempted to cross-examine a key witness in
place of DeGabrielle, but the Court disallowed it due to the
conflict of interest created by Wynne's representation of
Azano. See RT, Doc. No. 359 at 47. Norton completed
the witness examination. Id. at 48-59.
a.m. on Tuesday, July 26, 2016, the first day of trial,
counsel for the parties provided their appearances for the
record. See RT, Doc. No. 653-3 at 4. Norton appeared
on behalf of Hester, indicated that DeGabrielle was
“running a little late, ” and stated he did not
believe it was necessary to wait for DeGabrielle to arrive.
Id. Norton advised the Court that he and DeGabrielle
would sit at counsel table during trial. See Id. at
5. Moments later, Wynne corrected Norton, and advised the
Court that DeGabrielle was “being replaced” by
John Kinchen. Id. at 6. Kinchen arrived in San Diego
later that morning, and entered a general appearance on
behalf of Hester just prior to the beginning of jury
selection. See LaBella Decl. ¶ 16.
Kinchen submitted a pro hac vice application to represent
Hester, designating Norton as associate local counsel.
See Doc. No. 356.
next morning, prior to the opening arguments of counsel,
Kinchen requested a side bar conference with counsel and the
Court. See RT, Doc. No. 653-5 at 4. Kinchen advised
the Court regarding DeGabrielle's XXXXX Id. at 5. According to Kinchen, it
appeared during the time leading up to trial that DeGabrielle
had been suffering from XXXXX and
therefore DeGabrielle and Hester had not been able to
adequately prepare for trial. Id. at 5-6. Kinchen
did not request a continuance on behalf of his client, but he
did renew Hester's motion for a severance based on his,
Hester, and DeGabrielle's collective inability to
adequately prepare for trial. Id. at 6. Kinchen
advised the Court that he had “stepped into the
facts” the previous Friday, due to the concerns
regarding DeGabrielle's fitness to represent Hester.
Id. The government opposed Hester's request for
a severance, and the Court denied the renewed motion.
Id. at 7.
to the conclusion of the side bar conference, the government
pointed out that Hester had signed a conflict waiver, which
made it apparent that he had voluntarily elected to go
forward with Kinchen as trial counsel prior to XXXXX Id. at 9. The pertinent section of
the waiver provides:
SUSU [aka Hester] has requested representation by the Firm
(specifically, by John Kinchen) on the eve of trial (July 24,
2016). SUSU acknowledges that he has been advised of the
risks involved in terminaing his prior counsel (Donald
DeGabrielle) on the eve of trial and hiring new counsel (John
Kinchen) who has very limited time to review discovery and
prepare for trial. SUSU understands those risks, and,
nonetheless, desires and requests that John Kinchen represent
him at trial. The parties further acknowledge that SUSU's
prior counsel (Mr. DeGabrielle) was unable to review
discovery with SUSU because of SUSU's medical condition.
Norton Decl., Ex. 1 ¶ 9. Hester and Azano signed the
agreement, waiving “any actual or potential conflict of
interest” arising out of Wynne and Kinchen's firm
representing them both at trial. Id. ¶ 4.
did not make any further appearances before this Court. He
did not sign a written substitution of counsel, nor did he
move to withdraw as counsel of record for
Hester. Kinchen and Norton represented Hester at
trial. Hester filed a Notice of Substitution of Counsel on
December 5, 2016, relieving Kinchen and Norton as counsel of
record. See Doc. No. 528.
to Federal Rule of Criminal Procedure 33, “[u]pon the
defendant's motion, the court may vacate any judgment and
grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). Rule 33 “does
not define ‘interest of justice' and the courts
have had little success in trying to generalize its
meaning.” United States v. Kuzniar, 881 F.2d
466, 470 (7th Cir. 1989). It is well-settled, however, that a
district court's power to grant a motion for new trial is
“much broader than its power to grant a motion for
judgment of acquittal.” United States v.
Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). If the
court determines “that a serious miscarriage of justice
may have occurred, it may set aside the verdict, grant a new
trial, and submit the issues for determination to another
jury, ” id. at 1211-12, irrespective of
“the abstract sufficiency of the evidence to sustain
the verdict.” Id. (quoting United States
v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)).
moves for a new trial based on the ineffective assistance of
counsel. The claim is two-pronged. First, Hester argues that
the totality of the circumstances surrounding Donald
DeGabrielle's pretrial performance, failure to appear on
the first day of trial, and failure to assist his successor,
John Kinchen, combined with Kinchen's inability to
adequately prepare for trial, resulted in a violation of his
Sixth Amendment right to the effective assistance of counsel.
On this basis, Hester contends that he is entitled to a
presumption of prejudice and a new ...