Free Motion to Vacate - District Court of Arizona - Arizona

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MICHAEL L. FREEMAN 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 843-9653 Office (602) 285-1224 Facsimile e-mail: [email protected] State Bar No. 010237 Attorney for Defendant HARRIS REED

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff, v. CAROLYN A. HARRIS REED, Defendant. 1. ) ) ) ) ) ) ) ) ) Case No. CR03-00421-SMM MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY PERSON IN FEDERAL CUSTODY

Name and location of court which entered the judgment of conviction under attack,

United States District Court, District of Arizona. 2. 3. 4. Date of Judgment of Conviction: September 7, 2005. Length of sentence: 60 months. Nature of offense involved : Conspiracy to distribute Cocaine and Cocaine Base, Felon in Possession of Firearm 5. What was your plea? (Check one) (b) Guilty to Count One modified Conspiracy to possess with Intent to Distribute 500 grams of cocaine, a class B felony. The remaining charges were dismissed. 8. 9. Did you appeal from the judgment of conviction? Yes (X) No ( ) If you did appeal, answer the following: (a) Name of court United States Court of Appeals, for the Ninth Circuit. (b) Result: Withdrew Appeal January 10,2006 10. Other than a direct appeal from the judgment of conviction and sentence, have you

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previously filed any petitions, applications or motions with respect tot his judgment in any federal court? Yes ( ) No (X) 12. State concisely every ground on which you claim that you are being held unlawfully.

Summarize briefly the facts supporting each ground.

ISSUE: The guilty plea was not voluntary due to the totality of circumstances of interrelated coercive factors including ineffective assistance of counsel, hidden package nature of plea agreement and coercion placed on her by co-defendants.
14. Do you have any petition or appeal now pending in any court as to the judgment under

attack? Yes ( ) No (X ) 15. Give the name and address, if known, of each attorney who represented you in the

following stages of the judgment attacked therein: (a) At preliminary Hearing: Barbara Spencer (b) At arraignment and plea : Barbara Spencer (c) At Change of Plea: Barbara Spencer (d) At sentencing; Richard Juarez (e) On appeal : Michael L. Freeman (f) In any post-conviction proceeding: Michael L. Freeman 320 East Virginia, Suite 200 Phoenix, Arizona 85004 16. Were you sentenced on more than one count of an indictment, or on more than one

indictment, in the same court and at approximately the same time? Yes ( ) No (X ) 17. Do you have any future sentence to serve after you complete the sentence imposed

by the judgment under attack? Yes ( ) No (X ) Pursuant to USC 28-2255, Carolyn prays that the Court vacate her sentence, release her from custody and reset this matter for trial before a jury. Respectfully Submitted this 17th day of August, 2006.

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/s/ Michael L. Freeman MICHAEL L. FREEMAN Attorney for Defendant HARRIS REED e-mail: [email protected] 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 843-9653 Office (602) 285-1224 Facsimile State Bar No. 010237

Four cases support the relief requested by Carolyn: 8 1. 9 the District Court did not adequately inquire into the nature of the package plea and the co10 defendants pressuring the defendant to change plea to guilty. 11 2. 12 interest occurs when trial counsel is asked to prove her own ineffectiveness and lack of preparation. 13 3. 14 at five factors in deciding whether to grant motion to withdraw from the plea :1) totality of 15 circumstances if plea were knowing, voluntary and intelligent within Rule 11; 2) the plausibility of 16 the reasons prompting the requested change of plea; 3) the timing of the Defendant's motion; 4) the 17 existence of an assertion of innocence; and 5) any demonstrable prejudice accruing to the 18 Government if plea is withdrawn. 19 4. 20 appointed to address the specific malpractice allegations in the pro se motion without any waiver 21 of the Sixth Amendment right to counsel. Counsel's personal or professional interests might preclude 22 effective assistance in addressing the defendant's allegations against the counsel. In addition, the 23 pro se motion is a critical stage of the proceeding where it involves the decision to proceed to trial, 24 plead guilty or fend for himself. 25 SUMMARY OF FACTS 26 On the day of trial, with a jury waiting outside the courtroom, Defendant Carolyn Harris 27 28 -3Document 578 Filed 08/17/2006 Page 3 of 30 United States v. Barreto, 93 F. 3d 17 ( 1st Cir. 1996) Counsel should have been United States v. Martinez-Molina, 64 F.3d 719 (1st Cir.1995) The Court should look United States v. Del Muro, 87 F. 3d 1078( 9th Cir. 1996) An inherent conflict of United States v. Caro, 997 F. 2d 657( 9th Cir. 1993) The plea was involuntary since

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Reed (Carolyn) entered a plea of guilty. Her guilty plea then triggered plea offers to her codefendants, brother John Harris and his girlfriend Sonia Brown. The written agreement did not express the offer was a package where all defendants had to plead guilty or none would be given offers by the Government. The Court did not make any inquiry into the package nature of the plea. The Court was not advised that the co-defendants attorneys had met privately with Carolyn to convince her that Carolyn's guilty plea would be in their clients best interests. The co-defendants attorneys also advised Carolyn that she would receive a life sentence if she did not plead since they did not believe her attorney, Barbara Spencer, was adequately prepared to prevail at trial. The codefendants attorneys also advised Carolyn that Carolyn's brother John would face life in prison unless Carolyn saved him by changing her plea to guilty. Carolyn had attempted to represent herself but did not have the ability to properly present the issues to the Court. Carolyn had raised concerns for months that her attorney was not prepared, had not been working on defenses and had refused Carolyn access to the evidence­specifically, the actual recorded conversations. Two days earlier, Carolyn and her attorney Barbara Spencer appeared in Court to address specific allegations of malpractice against Barbara Spencer. Although unable to effectively present this information to the Court, Carolyn had been recording her problems with her attorney Barbara Spencer through certified letters, written correspondence and secretly recorded conversations. Carolyn had been in the legal system before but had never represented herself. She found herself needing to file several pro per motions that were both unintelligible and inconsistent with her requested relief. Carolyn had consistently claimed she was innocent to her attorney and the Court until the actual entry of the guilty plea on January 7, 2005. Carolyn had asserted her innocence at the hearing on January 5. After her guilty plea on January 7, 2005 she immediately recanted to the pre-sentence writer and then to the Court at the time of sentencing. The Court gave great weight to Carolyn's guilty plea, under oath; however, the actual litany shows Carolyn had no choice but to agree to her attorney's competency or have her and her brother risk life sentences in prison. Carolyn has also stated that her statements, under oath, were not true -4Document 578 Filed 08/17/2006 Page 4 of 30

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and were made in order to reduce her brother's punishment. STATEMENT OF FACTS Carolyn Harris Reed was indicted in 2003 and then subsequently had two superseding indictments with twelve co-defendants. The final indictment occurred December 7, 2004 and Carolyn was charged with Count One, Conspiracy to Possess with the intent to distribute Cocaine and Count Two, Conspiracy to Possess with the intent to Distribute Cocaine Base. Both crimes had penalties of ten years to life and were alleged from February 2001 to May 8, 2003. She was also indicted on a felon in possession of a firearm and ammunition in Count 17 with a penalty of ten years and alleged to occur on May 8, 2003. The Government had also alleged an enhanced punishment provision based on her two prior felony convictions for Possession of Narcotic Drugs for sale. This allegation was made on July 20, 2004 and exposed her punishment to a mandatory minimum of twenty years and possibly a term of life imprisonment. On November 27, 2004, Carolyn sent Ms. Spencer a letter detailing her belief that Ms. Spencer was neither getting prepared for her defense nor providing relevant information to Carolyn. On December 6, 2004, Carolyn sent a letter detailing her dissatisfaction with Ms. Spencer and her lack of preparation. On January 4, 2005, Carolyn, PRO PER filed a Notice Rejecting Court's Plea; Notice of SelfDefense; Demand for Dismissal; or Demand to Continue Trial date. This notice outlined Carolyn's dissatisfaction with her representation by Barbara Spencer. A. Ms. Spencer had refused to provide Carolyn with either the CD recordings of the numerous conversations or to allow her to even listen to the CD recordings. These conversations, recorded from wiretaps, were the bulk of the Government's case. B. Ms. Spencer had failed to prepare any defense for the upcoming trial. The pro per motion did not provide any remedies, under the law, that the Court could grant -5Document 578 Filed 08/17/2006 Page 5 of 30

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such as a complete dismissal. In addition, the seven-page document Stated " this document is NOT a motion; NOT a request; NOT a prayer; NOR an application, to the Court". The document asked for a complete dismissal or an unknown amount of time to prepare her own defense. The request to delay the trial was accompanied by her statement that " no time should be excluded from speedy trial because the circumstances making the continuance necessary are not due to any fault of mine". On January 5, 2004, the Court addressed the document and denied the pro per requests that the case be dismissed or delayed to allow Carolyn reasonable time to prepare her own defenses while having the speedy trial clock continue to run. On January 7, 2005, Carolyn entered a plea of guilty. The Court delayed her plea since she had apprehensions and needed more time.( P.6). A meeting among all the defendants and attorneys became an attack on Carolyn to persuade her to plead guilty so that the codefendants would receive a lenient offer. Attorney Barbara Spencer left the room in order to allow the other attorneys to better persuade Carolyn since Carolyn did not trust barbara Spencer. The other attorneys stated that Barbara Spencer was not prepared and that Carolyn would lose and receive life in prison. The attorneys also said that Carolyn would also be forcing her brother into a trial that he did not want and that he would receive thirty years in prison. Only Carolyn could prevent her brother from being sent to prison for thirty years. The attorneys stated that their own clients desperately wanted to plead but it all hinged on Carolyn. Close Friend Timothy Anderson prepared an affidavit with these facts: On January 07, 2004, the Judge sent the Jury out. The U.S. Marshals secured the courtroom entrances, and only Carol and three lawyers were allowed in and out. During this two plus hour ordeal, the 3 lawyers pressured Carol to take the plea, exited and re-entered the closed

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At one point Halverson and Smith remained inside talking to Carol, while Spencer left for a time and went down in the elevator. Carol exited several times to consult with us, me, my wife and daughter, relatives, and friends, who had come for the trial. Our majority recommendation was trial. Every time she came to me I was against accepting any plea, and the government had given her no terms. The lawyers and government were attempting to have Carol agree to plea at the moment while the plea was being drawn (or re-drawn) before the terms were revealed. At one point when Carol and I were speaking outside, Attorney Michael Smith came out and rudely interrupted telling Carol to come back in, they were running out of time. After I asked him on what schedule, and pointed out his rudeness, he apologized, and went back into the courtroom. I still recommended to Carolyn to stand upon the strength of her innocence and rejecting the loss of her rights under a plea agreement. Michael Smith came out and attempted to convince me, since Carol trusts and relied on my opinion, that in trial Carol did not "stand a chance". He repeated in front of us all, Michael Smith told us that Carol could not get a fair trial with a an older white conservative jury of Arizona, in their minds, being Black and with drugs, she was guilty the moment she walks into

20 21 22 23 24 Barbara Spencer that Carol had no defense and no chance to win at trial. 25 26 27 28 Before her final re-entrance to the courtroom conference room, Carol came out and cried on my shoulder saying she was "between a rock and a hard place", and that they said her baby -7Document 578 Filed 08/17/2006 Page 7 of 30 the courtroom. He said it's not fair that's the reality she faces. Carolyn's own attorney had given her similar advice that I taped with that same threat at a meeting with Spencer, over a phone conference previously. Michael Smith also said, with

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would be twenty years old when she got out of prison. I still recommended she take her innocence to trial. She wiped her tears and went back Carol was under extremely extra ordinary pressure as a defendant/client, mother, sister, and child, to take the plea to save her bother and

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 with the plea but that ....I just need­and I let her sign. It's just I need­we need something to go 20 21 22 23 24 transcript p.12) Changes were made while Carolyn stood before the Court. 25 26 27 28 Barbara Spencer advised the Court that there were no other agreements except for the written plea agreement. (1-7-05 transcript p. 16) -8Document 578 Filed 08/17/2006 Page 8 of 30 over, obviously , while you're talking to her." ( Transcript pp.8-9) The Court then observed that the charges were wrong on the written agreement since the plea said possession but the plea would be to conspiracy and not to possession of drugs. (1-7-05 The Court was advised that the remaining two defendants were going to be pleading guilty but their plea would be after Carolyn since the Government needed additional time to prepare their actual written agreement.(1-7-05 transcript pp.6-7) After the recess, attorney Barbara Spencer stated that Carolyn would be "going ahead" She had no choice, but to accept the plea bargain as a matter of self-preservation. She was afraid that if her sibling received a life sentence, due to carol's not accepting the joint offer, that there would be problems for her children if Carolyn were also convicted. of kids and self and sibling.\par (Affidavit of Timothy Frank Anderson) Sonya. They would receive a life sentence unless Carolyn took the agreement. Carol needed her family to support her since they would be taking care of her children. Her family also pressured her to take the agreement for the benefit of her brother and Sonya.

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The Court then advised Carolyn that she needed to say that she was satisfied with her counsel's representation. If she did not then " I'm going to call the jury back up here." Transcript p. 18) The following factual basis was placed on the record: The Court: Did you agree to put cellular phones in your name, pay bills, so that the cellular

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9Document 578 Filed 08/17/2006 Page 9 of 30 (1-7-05 transcript pp.31-32) The Court: Has anyone forced you in any way to enter this plea of guilty? Carolyn: No than 500 grams but no more than a thousand grams, and that you knew the cocaine was being trafficked and sold for redistribution, is that correct? Carolyn: Yes for trafficking in cocaine, is that correct? Carolyn: Yes The Court: And so you...agree that the Government could prove that the cocaine...would be more cocaine? Carolyn: Yes The Court: And so when you did this, you knew that this would be in furtherance of his activities connection of these phones would be concealed? Carolyn: Yes The Court: And were you aware that your brother, John Harris, was involved in trafficking in

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The Court then stated that You have to bear the consequences of the decision and no one else. No one else serves this sentence but you.( 1-7-05 Transcript pp.34-35) On February 25, 2005, the presentence report was filed outlining the allegations detailing specific phone calls by Carolyn on March 22, 2003; March 24, 2003; April23, 2003 that indicated knowledge of illegal activity. Specific allegations were that Carolyn paid the bills of the cell phone used by John Harris and had the phone placed in her name to assist his purchasing 1000 grams of cocaine. The presentence writer recorded that Carolyn denied these actions to the presentence writer and stated she pled guilty only to assist her brother in getting a more lenient sentence. Carolyn's parents have provided the following facts in their affidavit: Our son John, and Sonya Brown, could not get a plea bargain to lower their sentences unless Carolyn would take a plea first. We kept the pressure on for her to take the plea. We all know she was not part of the things she was charged for, but the lawyers all kept telling her that it was no good for her to go to trial anyway, because she can't win with her lawyer Barbara Spencer. The other lawyers told Carolyn and us that Barbara Spencer was not prepared to win the trial for her

19 20 21 22 23 24 25 26 27 28 - 10 Document 578 Filed 08/17/2006 Page 10 of 30 The only way John and Sonya can get a plea offer was for Carol to plead guilty. We kept on Carolyn's back every time that we spoke to her to take that plea agreement in order to save her brother and Sonya from maybe life in the penitentiary. defense. Carolyn was repeatedly told that if she went to trial that John and Sonya would not get a plea offer. They would both be convicted and they will get from 20 years to life.

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We told Carolyn that if she wouldn't take the plea to save John then who was going to keep her kids for all the years when she is found guilty at trial. . We are both too elderly to expect we could keep her kids for 20 years. We would need help from other family members who

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 counsel. After reviewing them, Carolyn realized the government transcripts and summaries were 21 22 23 24 25 26 27 28 - 11 Document 578 Filed 08/17/2006 Page 11 of 30 incorrect On March 25, 2005, Carolyn filed another pro per motion to continue sentencing due to lack of representation and counsel. On April 19, 2005,Barbara Spencer filed an Ex parte Request to Substitute Counsel . On April 26,2005 Carolyn filed a response to Attorney's Motion to Withdraw detailing conflict." On March 17, 2005, Carolyn sent a letter to Ms. Spencer detailing further dissatisfaction and Ms. Spencer filing a motion with the Court but not providing a copy to the Defendant. Carolyn was given access to the actual recordings of the crimes after she pled guilty. Carolyn had been asking to review the recordings for months and had been denied by her (Affidavit of Freedie Harris Sr. And Minnie Harris) On March 15, 2004, the Court denied Spencer's motion to withdraw. The Court noted that" Ms. Spencer has not filed a request for substitution of counsel on Defendant's behalf, nor has she stated that defendant is not satisfied with her representation or that they are embroiled in would resent Carolyn's decision that would send John to prison for life. We would be almost 90 years old after 20 years, We could not care for our grandchildren by ourselves and we insisted that Carolyn had to take the plea for the entire family and we kept on her until she agreed to accept the agreement.

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the satisfaction. On April 27, 2005, Ms. Spencer attached the April 26, 2005 Response as an addendum to her Request for Substitution.

4 5 6 7 8 9 10 11 12 13 14 15 16 certain facts. But one of the ­her problems, as you know, is her prior scrape with the law." (P.21 17 18 19 20 21 22 23 24 25 26 27 28 - 12 Document 578 Filed 08/17/2006 Page 12 of 30 On September 6, 2005,Carolyn stated that she had done nothing illegal. She also said "she had been advised that if she didn't take a plea [then], nobody gets one . Your brothers and them looking at 20 to 30 years. I mean, so basically a person have to be guilty for something transcript) Finally, the Court delayed the sentencing to September 6, 2005 so he could give "it a little more thought." The Judge also stated that " I would be the first one to acknowledge that I'm sure the consideration of family members, trying [sic] you to resolve your case for their benefit, had some effect on you. ( Transcript p.35) in a bad sense, but when she entered the agreement, I know there was­you know, a lot of things go through your mind at that time. It's very difficult. But she did admit to certain facts in this case that are very problematic for her. I mean, that's what got her here to begin with. But she did admit those under oath at the time."( pp.16-7,transcript) Later, the Court interrupted another witness and stated: "But you know, she did admit to On July 6, 2005, Carolyn filed a pro per motion to provide copies of materials from Barbara Spencer and to rule on April 26 2005 motions. On August 29, 2005, Carolyn appeared for sentencing. ( Transcript 8-29-05) Numerous witnesses appeared and asked the Court to show mercy and not separate Carolyn from her children. The Court interrupted the witnesses and Stated "you understand, and I don't mean this

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they didn't do because how the prosecutor came at it, meaning I had to take a plea or everybody­nobody got one.( Transcript p.50) Carolyn also talked about being advised by the codefendants attorneys;

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 Document 578 Filed 08/17/2006 Page 13 of 30 or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. Viewed in this light, both of the Strickland standards are clearly met here. Barbara Spencer filed no substantive motions, advised her client that they would formulate a defense during the trial, had refused to consider defense witnesses or discuss the merits of a defense with her client. Barbara Spencer did not provide the actual 1.This Honorable Court Should Vacate The Sentence and Plea Based on the Plea Being Involuntary and A Manifest Injustice In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Court held that a claim of ineffective assistance of counsel requires a showing that: (1) counsel was not "reasonably competent"; and (2) the client was actually prejudiced by counsel's failures. Further, "[A] verdict Carolyn was given a delayed surrender date and has been receiving mental health counseling and medication. Her treating doctor discusses his concern for stress and the detrimental effect on Carolyn. p.53) It goes back to I had four other lawyers, other than my own, to hammer me; You're not gonna make it....Michael Smith{attorney for codefendant}....you're not gonna win."( Transcript p.54) The Court responded "package plea agreements are authorized by the law." ( Transcript

Memorandum of Points and Authorities

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recordings and then abandoned her client during a joint defense meeting designed to coerce Carolyn to change her plea to guilty. Barbara Spencer did not advise the Court of the package nature of the plea. Barbara Spencer also had a conflict of interest when Carolyn asserted Barbara

4 5 6 7 8 9 10 11 12 13 14 15 16 THAT WAS NEITHER PLACED ON THE RECORD NOR ADEQUATELY EXAMINED 17 18 19 20 21 22 the result of force or threats or of promises apart from a plea agreement." Because a "package 23 24 25 26 27 28 - 14 Document 578 Filed 08/17/2006 Page 14 of 30 deal" plea bargain, as was made in this case, poses an additional risk of coercion among codefendants, this court must make a more careful inquiry into voluntariness. See United States v. Caro, 997 F.2d 657, 659 (9th Cir.1993).(error harmless absent BY THE COURT The Ninth Circuit standard on allowing Carolyn to enter into a package deal can be found in United States v. Caro,997 F. 2d 657( 9th Cir. 1993) and in Federal Rule of Criminal Procedure 11(d). Rule 11(d) requires the sentencing court to determine "that the plea is voluntary and not Cir.1976) ( per curiam ) (same)). A guilty plea cannot be withdrawn after sentencing unless a "manifest injustice" would result. United States v. Baker, 790 F.2d 1437, 1438 (9th Cir.1986). (There can be no manifest injustice in refusing to permit a defendant to withdraw a guilty plea when there is no serious contention that the defendant is innocent of the crimes charged.) a. THE GUILTY PLEA OCCURRED THROUGH AN IMPROPER PACKAGE DEAL Spencer was neither prepared nor effective with trial less than one week away. A defendant who seeks to withdraw his plea after sentencing faces the post-sentencing standard rather than the more liberal standard prior to sentencing.' " United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir.1991) (applying post-sentencing standard to defendant whose codefendant had already been sentenced) (quoting United States v. Kay, 537 F.2d 1077, 1078 (9th

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showing of pressure by co-defendants). In Caro, the Court stated:

"Though package deal plea agreements are not per se impermissible, they pose an 4 5 6 7 8 9 10 In Caro, the Ninth Circuit reversed a denial of a motion to set aside a guilty plea because additional risk of coercion not present when the defendant is dealing with the government alone." 997 F.2d at 659. Consequently, we have held that "the trial court should make a more careful examination of the voluntariness of a plea" in these circumstances. Caro, 997 F.2d at 659

11 the district court was unaware of the package nature of the plea agreement and thus did not 12 conduct a "more careful examination of voluntariness." Id. at 660. The Court found that the 13 14 15 to the agreement was not harmless error because it "could well have affected his decision to enter district court's failure to investigate whether co-defendants pressured the defendant into signing on

16 the plea." 997 F. 2d at 660 17 18 19 20 21 22 23 Information, which charged Caro only with possession with intent to distribute. Caro pled guilty 24 25 to that count and, after the customary colloquy, the district court accepted the plea. In multiple-defendant cases, the government sometimes negotiates a "package deal" plea agreement, under which each defendant must agree to the deal before any will be allowed to partake of it. We consider whether such a plea is valid where the district court does not make its voluntariness inquiry with regard to the package nature of the bargain. The Appellant Caro pled not guilty to conspiracy to distribute cocaine and possession of cocaine with intent to distribute. At a change of plea hearing, the government filed a Superseding

26 But this wasn't a run-of-the-mill plea bargain. Caro pled along with three other defendants 27 pursuant to a "package deal" plea agreement. Under such agreements, several confederates plead 28 - 15 Document 578 Filed 08/17/2006 Page 15 of 30

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1 together and the government gives them a volume discount-a better deal than each could have 2 3 bound together: If one defendant backs out, the deal's off for everybody. This may well place 4 5 additional pressure on each of the participants to go along with the deal despite misgivings they gotten separately. Consistent with the package nature of the agreement, defendants' fates are often

6 might have. 7 8 9 The government's obligation to abide by the terms of this plea agreement is expressly The Caro agreement read:

10 conditioned upon each defendant's performance of the agreement as to him or her. If any 11 defendant fails to abide by the terms of the plea agreement, or fails to make a factual basis for his 12 or her guilty plea as required by this agreement, then the agreement is void as to all defendants. 13 14 15 district court to set aside his guilty plea pursuant to Fed.R.Crim.Proc. 32(d). The district court Caro claimed his codefendants had pressured him into going along with the deal and asked the

16 refused, and Caro appealed. 17 18 19 Daniels, 821 F.2d 76, 80 (1st Cir.1987) As a result, the court made no inquiry into whether the 20 21 22 23 24 25 26 27 28 codefendants pressured Caro to go along. Though package deal plea agreements are not per se impermissible, they pose an additional risk of coercion not present when the defendant is dealing with the government alone. See United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987), aff'd,486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Castello, 724 F.2d 813, 814-15 (9th Cir.), cert. denied,467 U.S. 1254, 104 S.Ct. 3540, 82 L.Ed.2d 844 (1984). Quite possibly, one defendant will be happier with the package deal than his codefendant(s); looking out for his own best interests, the lucky one may try to force his codefendant(s) into going along with the deal. The Supreme Court has therefore observed that tying defendants' plea - 16 Document 578 Filed 08/17/2006 Page 16 of 30 Because of the prosecutor's ambiguous description of the agreement, we have no reason to believe the district court knew Caro had entered a package deal. See, e.g., United States v.

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decisions together "might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider." Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978) (dictum). We, in turn, have recognized that "the trial court should make a more careful examination of the voluntariness of a plea when [it might have been] induced by ··· threats or promises" from a third party. Castello, 724 F.2d at 815. We make it clear today that, in describing a plea agreement under Rule 11(e)(2), the prosecutor must alert the district court to the fact that codefendants are entering a package deal.... Because the district court was not aware of the package nature of the deal, its voluntariness inquiry was not the "more careful examination" of voluntariness our precedents require when a plea bargain is conditioned on the cooperation of more than one defendant. Castello, 724 F.2d at 815. The government contends that its error in describing the plea was harmless. "Any variance from the procedures required by this rule which does not affect substantial rights shall be

11 disregarded." Fed.R.Crim.Proc. 11(h). Whether the plea is voluntary and intelligent is the 12 touchstone for determining whether substantial rights have been violated in the acceptance of a 13 guilty plea. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied,484 U.S. 870, 14 15 16 17 pressured Caro into signing on to the agreement could well have affected his decision to enter the plea. Voluntariness is therefore called into question, and we cannot say the error was harmless. 108 S.Ct. 198, 98 L.Ed.2d 149 (1987)..... Here, the failure to investigate whether codefendants

18 We remand to the district court for a "full hearing on [Caro's] motion to withdraw the plea. 19 Specifically, the court shall find whether Caro entered his plea because of threats or pressures 20 21 baseless, the error at the Rule 11 stage will be rendered harmless." 22 23 24 25 26 27 28 - 17 Document 578 Filed 08/17/2006 Page 17 of 30 United States v. Caro In Carolyn's case, several facts exist that parallel Caro. First, the codefendants repeatedly pressured her to plead guilty since it was to their direct benefit. Second, the Court did not conduct any special inquiry concerning either the package of the nature of the plea or of the coercion from his codefendants. If the district court finds Caro's assertions of codefendant pressure

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1 applied by her codefendants. Third, the plea agreement was being changed and signed essentially 2 3 4 Additional facts unique to Carolyn's situation weigh in her favor. First, the coercion of in front of the Judge. Fourth, the defendant had resisted taking any guilty plea for months.

5 the codefendant was a family member who was facing thirty years in prison. Both defendant John 6 Harris and other family members made Carolyn aware that he could have twenty years shaved 7 from his sentence, and possibly more, if Carolyn would change her plea. Second, the 8 9 10 advice; however, their ethical duty was to get the best deal for their client and not Carolyn. Third, codefendants attorneys were also allowed to persuade Carolyn under the guise of giving her

11 the package nature WAS NOT written in the plea agreement and was not expressly disclosed to 12 the Court on the record. The Court conducted an inquiry that focused entirely on Carolyn facing 13 her own prison term and her personal benefit in terms of her own limited exposure. There was no 14 15 law. 16 b. Carolyn's situation in trying to get new counsel and have her own counsel admit ineffectiveness was similar to Del Muro where the Ninth Circuit found the district court 18 created an inherent conflict of interest by forcing trial counsel to prove his own ineffectiveness which deprived Del Muro of his Sixth Amendment right to effective 19 assistance of counsel (See United States v. Del Muro,87 F.3d 1078 (C.A.9 Cal.,1996.) Also 20 see United States v. Barreto, 93 F. 3d 17(1st cir. 1996) 17 21 22 ineffective assistance by failing to interview or subpoena witnesses suggested by Del Muro. Del 23 24 Muro requested that the court appoint substitute counsel to present the motion on his behalf. The Del Muro filed a Rule 33 motion for new trial, claiming trial counsel had rendered inquiry into Carolyn's action directly reducing the punishment to her brother and future sister-in-

25 district court denied the request. 26 27 28 - 18 Document 578 Filed 08/17/2006 Page 18 of 30 The court held an evidentiary hearing on the motion at which it reviewed declarations and

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1 heard live testimony of the potential witnesses. The court required trial counsel to examine the 2 3 two others prejudiced Del Muro's case. The court then denied the motion on the ground the 4 5 6 witnesses' testimony would not have affected the outcome of the trial. Del Muro successfully argued on appeal that the district court created an inherent conflict witness who testified and argue that counsel's own failure to investigate and call this witness and

7 of interest by forcing trial counsel to prove his own ineffectiveness and thereby deprived Del 8 9 10 Carolyn's case has major differences. Carolyn entered a plea rather than trial. She filed, Muro of his Sixth Amendment right to effective assistance of counsel.

11 prior to the plea, a document that listed many of the same concerns that Del Muro had. She did 12 not request an attorney to represent her at he hearing that was held the following day. She did not 13 14 15 gave Carolyn a choice to act on her behalf or to work with Spencer. The Court relied on make a specific offer of proof or act as if she were her own competent counsel. Rather the Court

16 Spencer's avowal that she was not committing malpractice. Spencer made no effort to put herself 17 in a bad light or to assist Carolyn in getting new counsel. Carolyn asserts that the Sixth 18 Amendment rationale on a motion for new trial can be analogized to a pre-trial motion where the 19 20 the same allegations are made before, during or after trial. Carolyn asserts that she should have 21 22 23 24 25 26 27 28 "In Jackson v. Ylst, 921 F.2d 882 (9th Cir.1990), the Ninth Circuit declined to adopt a rule requiring the automatic appointment of substitute counsel whenever a motion for new trial is based on trial counsel's incompetency, Id. at 887-88, Criminal defendants have a constitutional right to counsel at a new trial hearing. See Menefield v. Borg, 881 F.2d 696, 699 (9th - 19 Document 578 Filed 08/17/2006 Page 19 of 30 had an attorney to represent her in the hearing. The Ninth Circuit observed in DelMuro: same assertions are being made. An attorney does not have any less inherent conflict of interest if

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1 2 3 4 5 6 7

Cir.1989). To establish a Sixth Amendment violation, Del Muro must show "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). A defendant who establishes an actual conflict "need only show that some effect on counsel's handling of particular aspects of the trial was `likely.' " United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992). There was an actual, irreconcilable conflict between Del Muro and his trial counsel at the hearing on the motion for new trial. The interests of counsel were diametrically opposed to those

8 of Del Muro. The trial court's determination that an evidentiary hearing was warranted heightened 9 the conflict. When Del Muro's allegedly incompetent trial attorney was compelled to produce new 10 evidence and examine witnesses to prove his services to the defendant were ineffective, he was 11 12 13 communicate candidly with his client. The conflict was not only actual, but likely to affect burdened with a strong disincentive to engage in vigorous argument and examination, or to

14 counsel's performance. 15 When the trial court, as here, orders an evidentiary hearing,FN3 it is virtually impossible for

16 a reviewing court to determine what evidence would have been presented if substitute counsel had 17 18 conflicting interest. Under these circumstances, we will presume prejudice, since Del Muro has 19 20 shown a conflict of interest. Miskinis, 966 F.2d at 1268; Cuyler, 446 U.S. at 348-50, 100 S.Ct. at been appointed, or how the presentation of testimony might have been affected by trial counsel's

21 1718-19; Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 1180-82, 55 L.Ed.2d 426 22 (1978)....Del Muro was entitled to appointment of disinterested substitute counsel to examine the 23 24 25 26 27 28 substitute counsel." Carolyn asserts that the numerous letters made as part of the Court file, the specific facts - 20 Document 578 Filed 08/17/2006 Page 20 of 30 witnesses, develop the evidence, and argue the merits of the motion. We remand for district court to conduct a hearing on Del Muro's motion for new trial with Del Muro represented by appointed

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1 alleging Barbara Spencer's incompetence including the need to send her own counsel certified 2 3 should have been held. The failure to have new counsel appointed left Barbara Spencer to 4 5 establish her own ineffectiveness. This situation increased the lack of options and lack of mail and surreptitiously record their meetings established enough of a conflict that a hearing

6 voluntariness in Carolyn's final decision to change her plea to guilty. 7 c. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO WITHDRAW 8 FROM THE PLEA AND FOR NOT PLACING ON THE RECORD THE PACKAGE NATURE OF THE AGREEMENT WHICH RESULTED IN AN INADEQUATE INQUIRY 9 INTO THE VOLUNTARINESS OF THE PLEA 10 Carolyn's case can be analogized to the analysis used in U.S. v. Martinez-Molina

11 64 F.3d 719 C.A.1 (Puerto Rico),1995. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Martinez-Molina, the Court held that to gauge whether the asserted ground for withdrawal meets the Rule 32(d) standard, a court must look at the totality of the circumstances, especially whether the defendant's plea was knowing, voluntary, and intelligent within the meaning of Rule 11. See Cotal-Crespo, 47 F.3d at 3-4; United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992); Pellerito, 878 F.2d at 1537. Other factors the court may consider include (1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant's motion; and (3) the existence or nonexistence of an assertion of innocence. Cotal-Crespo, 47 F.3d at 3-4. Lastly, even where a defendant appears to meet the strictures of this four-part test, the court still must evaluate the proposed plea withdrawal in relation to any demonstrable prejudice that will accrue to the government if the defendant is permitted to change his plea. United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994) (citing Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537). In Martinez-Molina, all three appellants contended that their codefendants and attorneys coerced them into accepting the package plea agreement at joint meetings immediately prior to the plea hearings. It is beyond dispute that a guilty plea is involuntary and therefore invalid if it is obtained "by actual or threatened physical harm or by coercion overbearing the will of the defendant." Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970). The Supreme Court has also explained that "a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the risks a defendant must consider."*733 Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, - 21 Document 578 Filed 08/17/2006 Page 21 of 30

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

669 n. 8, 54 L.Ed.2d 604 (1978) (dictum). This concern applies to package plea agreements because, "[q]uite possibly, one defendant will be happier with the package deal than his codefendant(s); looking out for his own best interests, the lucky one may try to force his codefendant(s) into going along with the deal." United States v. Caro, 997 F.2d 657, 659-60 (9th Cir.1993). Package plea deals therefore impose special obligations: the prosecutor must alert the district court to the fact that codefendants are entering a package deal, Fed.R.Crim.P. 11(e)(2); United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir.1987); see also Caro, 997 F.2d at 659-60, and the district court must carefully ascertain the voluntariness of each defendant's plea. See United States v. Buckley, 847 F.2d 991, 1000 n. 6 (1st Cir.1988), cert. denied,488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); Daniels, 821 F.2d at 79-80; see also Caro, 997 F.2d at 660. Here, it is clear from the record that the district court was fully aware of the package nature of the defendants' plea agreements. We nevertheless must determine whether the district court conducted a proper voluntariness inquiry, or otherwise erred in concluding that none of the three appellants had asserted a "fair and just reason" for withdrawing his plea. Both Vélez and Travieso maintain that they were coerced into accepting the package plea agreement. We need not reach the issue of whether their pleas were in fact coerced because we find that the district court failed to conduct a full and direct voluntariness examination in open court, thereby compromising one of Rule 11's "core concerns" and undermining the validity of their guilty pleas. See Allard, 926 F.2d at 1244-45 (explaining that Rule 11's core concerns are 1) absence of coercion, 2) understanding of the charges, and 3) knowledge of the consequences of the guilty plea).... Rule 11(d) states: "The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement." Fed.R.Crim.Proc. 11(d) (emphasis added). Here, the district court conducted only a partial inquiry into the voluntariness of Travieso's and Vélez' guilty pleas. Specifically, it asked them whether they had "entered into [the] plea agreement without compulsion or any threats or promises by the-from the U.S. Attorney or any of its agents." It did not, however, ask whether the defendants were pleading guilty voluntarily or whether they had been threatened or pressured by their codefendants into accepting the package

23 plea agreement. Under these circumstances, the district court's inquiry was incomplete because, 24 regardless of whether Travieso's and Vélez' guilty pleas were actually coerced by their 25 codefendants, the literal answer to the court's question could still have been "yes." 26 27 28 The Supreme Court has similarly expressed the importance of direct interrogation by the - 22 Document 578 Filed 08/17/2006 Page 22 of 30

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1 district court judge in determining whether to accept the defendant's guilty plea: 2 3 through personal interrogation, he not only facilitates his own determination of a guilty plea's 4 5 voluntariness, but he also facilitates that determination in any subsequent post-conviction To the extent that the district judge thus exposes the defendant's state of mind on the record

6 proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined 7 in proportion to the degree the district judge resorts to "assumptions" not based upon recorded 8 responses to his inquiries. 9 10 11 Where a district court has only partially addressed one of Rule 11's core concerns, we must McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).

12 reverse a determination that there was no fair and just reason to set the plea aside unless the 13 irregularities in the plea proceeding do not affect "substantial rights" of the defendant. See Cotal14 Crespo, 47 F.3d at 7 (discussing application of Rule 11(h)'s harmless error standard when plea15 16 package-type plea agreements increase the risk that one defendant will coerce another to plead 17 18 guilty, the district court was obligated to ascertain carefully whether the defendants were in fact taking errors result in a "partial failure" to address one of Rule 11's core concerns). Because

19 entering their pleas without compulsion. See Daniels, 821 F.2d at 79-80; United States v. Buckley, 20 847 F.2d at 1000 n. 6. Here, the district court made no effort whatsoever to determine whether 21 22 lacked a fair and just reason for plea withdrawal, especially since the court's lapse arguably 23 24 affected their substantial rights. The advisory committee's notes make clear that Rule 11(h)"was Travieso's and Vélez' pleas were coerced. Under these circumstances, we cannot say that they

25 not intended to allow district courts to ignore Rule 11['s] express commands." Medina-Silverio, 26 30 F.3d at 4 (citation omitted). Rather, Rule 11(h)'s harmless error provision is intended to excuse 27 28 - 23 Document 578 Filed 08/17/2006 Page 23 of 30

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1 "minor and technical violation [s]" and cannot be invoked where the court's deviation effectively 2 3 1983 amendment. Vélez' and Travieso's guilty pleas must therefore be set aside and the case must 4 5 6 be remanded for further Rule 11 proceedings or trial." United States v. Martinez-Molina. Carolyn faced coercion from the codefendants, their attorneys and her own family. The "nullif[ies] important Rule 11 safeguards." Fed.R.Crim.Proc. 11(h) advisory committee's note to

7 Court asked a single question during the guilty plea litany." Has anyone forced you in any way to 8 9 10 concerns that she was pleading guilty not because she was guilty but for other reasons such as enter this plea of not guilty?"( 1-7-05 transcript p. 31) This question did not address the real

11 concern for her brother who faced over three times the penalty unless Carolyn pled guilty. This 12 minimum inquiry does not meet the minimal inquiry in Martinez-Molina that saw the Appellate 13 Court order an evidentiary hearing on this issue. Carolyn does not assert physical force was used 14 15 decisions by counsel to not place that agreement on the record to allow this Court to conduct a 16 17 complete inquiry. against her so her answer was correct. It does not address the package deal concerns or the

18 d. CAROLYN WAS DENIED EFFECTIVE ASSISTANCE AT A CRITICAL STAGE OF THE PROCEEDING see United States v. Barreto 93 f. 3d 17( 1st Cir. 1996) 19 In Barreto , the codefendant Perez claimed that: 20 21 22 23 24 25 26 27 28 "he was denied effective assistance of counsel at the hearing on his pro se motion to withdraw his guilty plea. SeeU.S. Const. amend. VI. The government responds that Perez (1) did not ask the court to appoint new counsel, and (2) has not shown that appointed counsel, José R. Aguayo, Esquire, labored under an actual conflict of interest within the meaning of United States v. Soldevila-Lopez, 17 F.3d 480 (1st Cir.1994)....The Sixth Amendment right to effective assistance of counsel inheres at all "critical stages" of a criminal proceeding unless competently waived. United States v. Mateo, 950 F.2d 44, 47 (1st Cir.1991). A plea withdrawal hearing is a "critical stage" in the criminal proceeding. United States v. Crowley, 529 F.2d 1066, 1069 (3d Cir.), cert. denied,425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976). The right to counsel is not contingent upon a request by the defendant; rather, "we presume that the defendant requests the lawyer's services at - 24 Document 578 Filed 08/17/2006 Page 24 of 30

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every critical stage of the prosecution." Michigan v. Jackson, 475 U.S. 625, 633 & n. 6, 106 S.Ct. 1404, 1409 & n. 6, 89 L.Ed.2d 631 (1986).... The government contends that Perez must demonstrate "an actual conflict of interest adversely affect[ing] his lawyer's performance." Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)). Thus, the government says, Perez was required to show that court-appointed counsel could have pursued a plausible alternative tactic or strategy were it not for an inherent conflict of interest or other loyalties that caused him not to do so. Id.; Guaraldi v. Cunningham, 819 F.2d 15, 17 (1st Cir.1987). We noted in Soldevila-Lopez that "[c]ourts have recognized actual conflicts of interest between an attorney and his client when pursuit of a client's interests would lead to evidence of an attorney's malpractice." Soldevila-Lopez, 17 F.3d at 486 (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir.1986), cert. denied,479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir.1991)).... The government's contention that Perez' Sixth Amendment claim is indistinguishable from that in Soldevila-Lopez is untenable, since Perez plainly alleged facts amounting to malpractice, if found to be true. That is, the Perez motion to withdraw his guilty plea alleged that Aguayo had

15 pressured him into pleading guilty at the earlier Rule 11 change-of-plea hearing in order to "hide 16 [Aguayo's] lack of preparation" for trial. Perez further alleged that Aguayo had not made even 17 "minimum" efforts to "act as his counsel or defender" and was only interested in a fee, but see 18 19 In United States v. Ellison, 798 F.2d 1102 (7th Cir.1986), cert. denied,479 U.S. 1038, 107 S.Ct. 20 21 893, 93 L.Ed.2d 845 (1987), the district court was presented with a virtually identical situation in infra note 1, thus leaving no doubt that Perez wanted replacement counsel.

22 which the defendant had filed a pro se motion to withdraw a guilty plea, alleging that court23 appointed counsel had persuaded him to forgo trial (despite Ellison's assertions of innocence) 24 25 be working in the future." Id. at 1106. The district court neither appointed new counsel nor 26 27 28 obtained a competent waiver, but instead rejected the plea-withdrawal motion because defense - 25 Document 578 Filed 08/17/2006 Page 25 of 30 because counsel "did not want to make waves with the federal prosecutors with whom he would

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1 counsel denied Ellison's accusations at the plea-withdrawal hearing. 2 3 hearing did not meet the Sixth Amendment minima: 4 5 First, counsel was not able to pursue his client's best interests free from the influence of his The Seventh Circuit held that defense counsel's "representation" at the plea-withdrawal

6 concern about possible self-incrimination···· [I]f the allegations in defendant's motion were true, 7 his actions would be tantamount to malpractice. Any contention by counsel that defendant's 8 allegations were not true would (and did) contradict his client. In testifying against his client, 9 10 11 inconsistent. Id. at 1107 (citation omitted); see also Lopez v. Scully, 58 F.3d 38, 41 (2d Cir.1995) counsel acted as both counselor and witness for the prosecution. These roles are inherently

12 (holding that a pro se motion to withdraw a guilty plea based on alleged attorney coercion created 13 an actual conflict of interest). The identical logic fully warrants the conclusion that Aguayo may 14 have been laboring under an actual conflict of interest at the hearing on the pro se plea-withdrawal 15 16 unpreparedness for trial. Nevertheless, we think the appropriate course in this case is to remand 17 18 19 for further factfinding on the merits of the Perez allegations against Aguayo. As we recognized in Soldevila-Lopez, 17 F.3d at 486, a claim that counsel was disabled by motion, which alleged that Aguayo had coerced Perez' guilty plea in order to conceal his

20 an actual conflict of interest at a critical stage in the criminal proceeding amounts to an ineffective 21 22 Natanel, 938 F.2d 302, 309 (1st Cir.1991), cert. denied,502 U.S. 1079, 112 S.Ct. 986, 117 23 24 L.Ed.2d 148 (1992). Moreover, the district court record is not "sufficiently developed to allow assistance claim not normally appropriate for consideration on direct appeal. See United States v.

25 reasoned consideration" of the merits of the pro se plea-withdrawal motion itself, Soldevila26 Lopez, 17 F.3d at 486 (quoting Natanel, 938 F.2d at 309), since its underlying conflict-of-interest 27 28 - 26 Document 578 Filed 08/17/2006 Page 26 of 30

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1 allegations against Aguayo were never subjected to factfinding in the district court. 2 3 intelligent and competent waiver" of his Sixth Amendment right to counsel before the court 4 5 proceeded to hear the plea-withdrawal motion with Perez acting pro se. See Mateo, 950 F.2d at The district court failed to determine, in the first instance, whether Perez had made "an

6 47. Instead, it opened the plea-withdrawal hearing with questions to Aguayo about the pro se plea7 withdrawal motion. Whereupon Aguayo extolled the benefits of the plea agreement, stated that 8 there were no errors in the earlier Rule 11 plea colloquy conducted by the district court, nor bases 9 10 11 the plea bargain, given the unlikelihood that he could prevail at trial. Summing up, Aguayo stated: in law for Perez' pro se plea-withdrawal motion, and, in all events, that Perez was better off with

12 "I really don't understand why [Perez] wants to withdraw [the plea agreement]." Compare *22 13 United States v. Daniel, 962 F.2d 100, 102 (1st Cir.1992) (attorney argued vigorously and 14 successfully for client after raising potential conflict). Whatever their independent merit,FN1 the 15 16 advocated by Perez in the pro se motion to withdraw his guilty plea. Thus, the Rule 32(e) hearing 17 18 record leaves no doubt that Perez was left to fend for himself, without representation by counsel. views expressed by Aguayo at the plea-withdrawal hearing directly contradicted the position

19 But see Crowley, 529 F.2d at 1069 (plea withdrawal hearing is "critical stage" in criminal 20 proceeding). Consequently, Perez was denied effective assistance at the plea-withdrawal hearing. 21 22 23 24 25 26 27 28 FN1. The record discloses cause for Aguayo's concerns for his client (and for the district court's concern as well) since upon conviction Perez would face a ninety-year minimum term of imprisonment, rather than the seventeen-year maximum term negotiated for him under the plea agreement. [4] In many instances a trial court may have no reason to question whether counsel's personal or professional interests might preclude "effective assistance" to - 27 Document 578 Filed 08/17/2006 Page 27 of 30 See Soldevila-Lopez, 17 F.3d at 486; Ellison, 798 F.2d at 1106-08.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

the defendant. In such circumstances, fair and efficient criminal justice may depend in significant part upon the ethical obligation of defense counsel to inform the court whenever a conflict of interest arises in the course of the proceedings. Guaraldi, 819 F.2d at 18.FN2 On the other hand, when the trial court learns or has reason to know that there is a colorable conflict, it should initiate an appropriate inquiry to safeguard the accused's Sixth Amendment rights. Soldevila-Lopez, 17 F.3d at 487; United States v. Allen, 789 F.2d 90, 92 (1st Cir.) ("Where the accused voices objection to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction."), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986); see generally 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.4(b), at pp. 36-37 (1984) (replacement of appointed counsel); cf. Fed.R.Crim.P. 44(c) (mandating inquiry into joint representation). FN2. Were there any substance to Perez' allegations against Aguayo, a matter yet to be addressed by the district court, D.P.R. Loc. R. 211.4 would appear to have required that Aguayo observe Model Rule of Professional Conduct 1.7(b), prohibiting representation where personal or professional interests materially restrict counsel's freedom of action in support of a client's interests. See also id. Rule 1.16(a)(1) (imposing duty to terminate representation). In all events, at the outset of the plea-withdrawal hearing, Aguayo promptly indicated that he intended to withdraw as counsel. The district court nonetheless proceeded with the hearing, took no action on Aguayo's withdrawal suggestion and, for all intents and purposes, continued to treat Aguayo as Perez' counsel, without first determining the disputed facts underlying the Perez allegations against Aguayo. Thus, the linchpin to the ineffective assistance claim-whether Aguayo in fact labored under a conflict of interest-has yet to be subjected to fact finding. Given the clarity and specificity of the malpractice allegations in the pro se plea-

19 withdrawal motion filed by Perez, and Aguayo's sua sponte attempt to terminate his representation 20 at the outset of the plea-withdrawal hearing, the appropriate course for the district court was to 21 22 Moreover, absent a proper waiver of the Sixth Amendment right to counsel, and a knowing and 23 24 voluntary election to proceed pro se on the Rule 32(e) motion, see Ellison, 798 F.2d at 1108-09; resolve the factual dispute in keeping with the adversarial nature of the plea-withdrawal request.

25 United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.1987), appointment of replacement 26 counsel was the only appropriate course. As the hearing transcript plainly demonstrates, the 27 28 - 28 Document 578 Filed 08/17/2006 Page 28 of 30

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1 failure to conduct the required factual inquiry resulted in an unconstitutional breakdown in the 2 3 4 On remand, the district court shall appoint replacement counsel for Perez at a pleaadversarial process, which compels a remand for further proceedings....

5 withdrawal hearing reconvened for fact finding purposes to determine the merits of Perez' 6 allegations against Aguayo, so as to enable its ultimate determination whether the guilty plea itself 7 was rendered involuntary by a violation of Perez' Sixth Amendment right to counsel at all critical 8 9 10 11 12 13 14 Pursuant to USC 28-2255, Carolyn prays that the Court vacate her sentence, release her 203 (1985)*23 (ineffective assistance during bargaining may render plea involuntary). United States v. Barreto, 93 F. 3d 17 ( 1st Cir. 1996) SUMMARY AND RELIEF REQUESTED stages of the proceeding. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d

15 from custody and reset this matter for trial before a jury. 16 17 18 19 20 21 22 23 24 25 /s/ Michael L. Freeman MICHAEL L. FREEMAN Attorney for Defendant HARRIS REED e-mail: [email protected] 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 843-9653 Office (602) 285-1224 Facsimile State Bar No. 010237 Respectfully Submitted this 17th day of August, 2006.

Carolyn Harris reed has reviewed and approved this petition. Her signature has not been attached since unknown logistical problems have caused her letters and emails to not be received 26 in a timely manner. 27 28 - 29 Document 578 Filed 08/17/2006 Page 29 of 30

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1 2

CERTIFICATE OF SERVICE

I, Michael L. Freeman, certify that on the 17th day of August, 2006, I electronically transmitted the foregoing document to the Clerk of the United States District Court, District of 3 Arizona, using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 5 Keith Vercauteren

6 Email: [email protected] 7 Assistant United States Attorney Two Renaissance Square 8 40 North Central Avenue, Suite 1200 9 Phoenix, Arizona 85004-4408 10 Attorney for the Government 11 12 13 14 Carolyn Harris Reed 15 Defendant 16 /s/ Michael L. Freeman 17 18 19 20 21 22 23 24 25 26 27 28 - 30 Document 578 Filed 08/17/2006 Page 30 of 30 By Michael L. Freeman, Esq. Copy of the foregoing mailed this 17th day of August, 2006, to:

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