Monday, February 13, 2017

The Right to Counsel of Choice

   In United States v. Powell, the Sixth Circuit held the district court abused its discretion by allowing one but not both of defendant Earnest Proge's attorneys to withdraw as counsel. Mr. Proge raised his dissatisfaction with counsel during the final pretrial conference. He took issue with what he perceived to be his attorneys' efforts to force him to enter into a plea agreement. Subsequently, counsel briefed its request to withdraw as counsel.

While the district court concluded that Mr. Proge was free to reject his counsel's advice and so there was no breakdown in the attorney-client relationship, the Sixth Circuit held the record supported a different conclusion. Mr. Proge's attorneys told him they had not been retained to represent him at trial, were not prepared or equipped for trial, and would not represent him if he chose to go to trial. Writing for the majority, Judge Guy held, "The conflict between Proge and his attorneys resulted in a complete lack of communication that weighs strongly in his favor."

The Sixth Circuit also noted the need to balance the defendant's right to counsel of choice with the public's interest in the efficient administration of justice. Because the district court put off making an inquiry, despite a specific request for new counsel, it was partly responsible for the short time between the denial of Mr. Proge's request and trial. In holding that Mr. Proge's Sixth Amendment rights were violated, the Sixth Circuit relied on the timely initial request for new counsel, the adequate but delayed inquiry of the district court, and the complete breakdown in the attorney-client relationship.

Judge Moore wrote a separate opinion, concurring in part and dissenting in part, in which she asserted co-defendant Carlos Powell should also have obtained relief from the district court's denial of his Faretta motion seeking self-representation. She also concluded that Mr. Proge's conflict with his counsel, absent any other factors, "should have impelled the district court to grant Proge's request to substitute counsel.

Sunday, February 05, 2017

Court Affirms Admission of "Prior Bad Acts" Against Sexual Assault Defendant.

In my blogs, I frequently try to write a humorous quip about the defendant, defense counsel, or the courts.  I can find nothing, however, humorous in the facts found in United States v. LaVictor.

In this case, the defendant, LaVictor, and his girlfriend, returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation after a night of heavy drinking.  Early the following morning, LaVictor contacted emergency services and told them his girlfriend was bleeding from her vagina.  Subsequent medical examinations revealed evidence of sexual assault, which the girlfriend confirmed in her statements to the authorities.  The girlfriend subsequently repeated her allegations before a federal grand jury, which returned a five-count indictment charging LaVictor with: (1) attempted sexual abuse in violation of 18 U.S.C. § 2242(2)(B); (2) aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); (3) assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6); and (4) domestic assault by a habitual offender in violation of 18 U.S.C. § 117.

After filing various pre-trial motions, LaVictor proceeded to trial.  During the trial, the Government called LaVictor's girlfriend as a witness.  The girlfriend subsequently recanted her testimony and testified that she consented to sex with LaVictor, even if he was "rough."  Over LaVictor's objection, the district court admitted the girlfriend's grand jury testimony as evidence of her prior inconsistent statements.  Additionally, after conducting a Daubert hearing, the district court permitted the Government to offer the testimony of an expert witness to testify about victim recantation.  As a final blow to LaVictor's defense, the court permitted the Government to introduce several of LaVictor's former girlfriends, who testified about uncharged episodes of prior sexual abuse.  It took the jury less than three hours to return guilty verdicts on all six counts.

LaVictor raised several arguments in favor of a reversal on appeal, including, among other things, the district court's decision to admit prior bad act evidence under FRE 404(b) and the entire grand jury transcript.  In a lengthy published opinion, the Court affirmed LaVictor's conviction.

Of the many interesting holdings in the Court's opinion, it first dealt with the testimony of the recantation expert.  Although it prior pronouncements on this issued had "been more muted," the Court held that expert testimony regarding a domestic violence victim's propensity to recant was relevant and not unduly prejudicial in LaVictor's case.

The Court then addressed the district court's decision to permit three of LaVictor's previous girlfriends to testify that they had previously been sexually assaulted by him, although they never reported the incidents to the police, and the police never charged him with a crime.  Although the Court acknowledged such testimony is generally prejudicial in a sexual assault case, it held that the district court did not err in concluding the evidence was probative to show LaVictor's intent to sexually assault his then-girlfriend and that the assault was not an accident or mistake.  The Court further held that the probative nature of the testimony outweighed the prejudice it caused under FRE 403.  Finally, and perhaps most importantly, the Court concluded that even if the district court had erred, any error in admitting the testimony was harmless in that it would not have affected the jury's verdict.

As a final note, the Court made an interesting holding regarding the definition of an "intimate partner" under the habitual domestic assault statute, 18 U.S.C § 117.  On appeal, LaVictor argued that the statute did not apply to him because he was not living with his girlfriend at the time he committed the sexual assault.  Noting that the Sixth Circuit had not yet defined the term "intimate partner," the Court examined similar language found in 18 U.S.C. § 2266 -- a statute requiring states to recognize protection orders issued in other states -- and concluded that the term applied to LaVictor and his girlfriend since they had previously been engaged in a lengthy, romantic relationship.

While the facts of this case are sad and represent an all too common occurrence, the Court's lengthy opinion provides a great road map of the many issues counsel might face in defending a sexual assault case in Federal court.  Counsel engaged in such a case should review this decision.

Thursday, February 02, 2017

Untimely Pre-Trial Motions: Clarification for "Unwary Counsel"

The Court has had a relatively quiet week with few published opinions.  One opinion, however, is worth a brief discussion.  In United States v. Trujillo-Molina, the defendant, who had been indicted for possessing a firearm while being illegally and unlawfully present in the United States, filed a motion to dismiss the indictment arguing that he was not, in fact, illegal because he had received relief from removal under ICE's Deferred Action for Childhood Arrivals ("DACA") program.  The problem, however, was that he filed the motion one month after the district court's pre-trial motions deadline.  The District Court subsequently denied the motion as untimely pursuant to Fed. R. Crim. P. 12.  

On appeal, the Court held, in an unpublished opinion, that the District Court did not abuse its discretion in denying the defendant's motion to dismiss as untimely.  While the Court's main holding was no surprise, the Court attempted to clarify, in a footnote, a point that it worried would cause confusion for "unwary counsel."  In particular, the Court reiterated that a party who fails to make a timely motion pursuant to Rule 12(b)(3) does not necessarily waive the issue he failed to raise in the motion.  Instead, the Court will review the issue for plain error.  Thus, the failure to timely file a timely pre-trial motion does not necessarily foreclose appellate review of the issue, although a defendant will have a difficult time in any appeal challenging the district court's denial of his pre-trial motion.