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United States v. Hester

United States District Court, S.D. California

June 26, 2017



          HON. MICHAEL M. ANELLO United States District Judge

         Defendant 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.

         Procedural Background

         Hester 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.[1] The Court denied the renewed motion, and trial proceeded as to all Defendants. Id. at 6.

         On 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. 479.

         On 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.[2] 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.

         Relevant Facts

         A grand 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. ¶ 3.

         On May 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.[3] See Doc. No. 319.

         According 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.

         In the 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.

         DeGabrielle 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.

         At 8:41 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.

         The 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.

         Prior 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.

         DeGabrielle 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.[4] 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.

         Legal Standard

         Pursuant 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)).


         Hester 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 ...

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