Sunday, May 07, 2017

Case o' The Week: Ninth Inspired When Counsel Not Fired - Velazquez and Motions for New Counsel

The Honorable Judge Michelle Friedland

  As any experienced district judge knows, some prosecutions are two-attorney cases.
  And some, explains the Ninth, are three.
United States v. Velazquez, 2017 LEXIS 7674 (9th Cir. May 1, 2017), decision available here.

Players: Decision by Judge Friedland, joined by Judge Kozinski and (Sixth Circuit) Judge Gilman.

Facts: Guadalupe Velazquez, a teenager attending Arizona State University on a scholarship, dated a man involved in a marijuana importation conspiracy. Id. at *3. She was charged federally, along with her boyfriend and a dozen or so others. Id. at *4. 
  Her first appointed withdrew after an irreconcilable conflict. Id. 
  Her second attorney, Countryman, was appointed. Id. Countryman missed a deadline to file a suppression motion. Id. Velazquez filed a pro se motion seeking new counsel, citing the missed deadline. She also filed pro se motions related to discovery, trial timelines, and jurisdiction. Id. All motions – including the request for a hearing on new counsel – were denied. Id. at *6. 
  Velazquez later renewed her motion for new counsel. Id. at *8. A magistrate judge engaged in a long dialogue with Velazquez (recounted at length), where the defendant detailed her dissatisfaction with her counsel. Id. at *8-*22. The court continued the hearing. 
  The next day Velazquez accepted an exploding plea offer: she was later sentenced to 121 months. Id. at *6. Id. at *27.

Issue(s): “Quadalupe Velazquez seeks to vacate her guilty plea on the ground that she was constructively denied her right to counsel when the district court denied her motions to substitute counsel without conducting an adequate inquiry.” Id. at *2-*3.

Held:We agree that the district court abused its discretion in denying Velazquez’s motions and thus vacate the convictions that resulted from her plea.” Id. at *3. 
   “Taken together, the factors weigh in favor of finding an abuse of discretion. . . . [T]he district court abused its discretion by denying Velazquez’s requests to substitute counsel without conducting an adequate inquiry. The result was a constructive denial of counsel that requires us to vacate Velazquez’s guilty plea.Id. at *38.

Of Note: With forty-to-life hanging over her head (despite her lack of any priors), will young Ms. Velazquez get hammered when she returns to the district court and withdraws her plea? That prospect has occurred to Judge Kozinski. He concurs with Judge Friedland's opinion, and muses, “I hope and trust that the government will accept her choice [regarding withdrawal of the plea] with generosity and compassion.” Id. at *41 (Kozinski, J., concurring). 
  We hope so too.

How to Use: This is a well-written and thorough decision –much to mull for defense counsel wrestling with the problem of a dissatisfied client. 
  Judge Friedland acknowledges that this was Velazquez’s second counsel-firing, but this didn’t obviate the need for an inquiry by the district court given her “specific and serious” allegations. Id. at *32. 
  Note that the detailed Rule 11 colloquy – including a specific inquiry into the relationship with counsel – didn’t immunize the plea from finding of a constructive denial of counsel. Id. at *37-38. Though the judges may have “acted with what they believed to be Velazquez’s best interest at heart,” id. at *41 (Kozinski, J., concurring), when the judges urged the deal they crossed the line into prohibited plea negotiations. Id. at *39-*40. 
  Awaiting on our horizon are more lousy deals, more “exploding offers,” and more understandably-frustrated indigent clients (see “For Further Reading” infra.”) Velazquez is worth a close read before the melee begins.
AUSA Steven H. Cook
For Further Reading: In 2016, an AUSA from Knoxville Tennessee was disgruntled with President Obama’s efforts to secure sentencing reform. So disgruntled, in fact, that he took vacation time and went to Congress to (successfully) lobby against his boss’s reform initiatives. 
  This former police officer defended the old crack mand-min sentences, blamed crack sentencing reform for (allegedly) increased crime rates, and assured us that racial bias plays no role in who gets federally prosecuted. 
  The prosecutor? Steven H. Cook. See April 2016, "Knoxville News Sentinel" article here; see also video here (where Mr. Cook explains, "I've dealt with these thugs.").
  Many changes, in the year since Mr. Cook's first lobbying efforts. He is now a “top lieutenant” in A.G. Sessions’ DOJ: “Cook’s new perch speaks volumes about where the Justice Department is headed.” See Washington Post article here

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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