US v. Xavier V. Jennette, No. 07-4382 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4382 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XAVIER VIDAL JENNETTE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:06-cr-00147-BR) Argued: May 14, 2010 Decided: July 2, 2010 Before GREGORY, AGEE, and DAVIS, Circuit Judges. Vacated and remanded by unpublished opinion. Judge Gregory wrote the opinion, in which Judge Agee and Judge Davis joined. ARGUED: Samuel A. Forehand, SAMUEL A. FOREHAND, PA, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. GREGORY, Circuit Judge: Xavier Jennette ( Jennette ) appeals the sentence imposed after he was convicted of aggravated identity theft and wire fraud in the Eastern District of North Carolina. In particular, Jennette argues that the district court abused its discretion in denying his motion for substitute counsel. We hold that the district court erred in denying Jennette substitute counsel for his sentencing, and thus vacate his sentence and remand his case to the district court for resentencing. 1 I. In October facilities 2003, security Jennette officer was at hired Object to work Science as the Corporation ( OSC ), a government information technology contracting firm. In that capacity, he managed employees personal information that was sent to the Department of Defense in order to maintain the employees security clearances. He alone managed the access to the secure personal information database. In November 2004, Jennette left OSC and moved to New Bern, North Carolina. There, he reconnected 1 with his former As we vacate Jennette s sentence because he was denied substitute counsel, we do not address the other two arguments he raises: that the district court clearly erred in applying offense level enhancements and departing above the guidelines range; and that delays in filing his transcript on appeal denied him due process. 2 girlfriend, Toya Sadler ( Sadler ). met Aiesha Horton ( Horton ). Through Sadler, Jennette In July 2005, he asked Horton to obtain a mobile phone for him and provided her with a list of names and social security numbers to use to set up the account. The list contained the personal information of employees of OSC. Jennette selected Kimberly Barrus name and information from the list to use to obtain the phone. Horton ended up procuring six phones that day in Barrus name. Because he was successful in using another person s information to obtain phones, Jennette found other ways to use the list. With Sadler, he acquired a Wal-Mart Discover Card using Jessica Nelson s information on July 10, 2005. They used the stations, card to make purchases at furniture stores and Wal-Mart. restaurants, gas After Jennette was arrested, some of the furniture they purchased was found at his mother s house. Horton kept a copy of the list that Jennette had showed her when she obtained the phones, and Anthony Wallace ( Wallace ), her boyfriend, used it to obtain credit. Wallace, with Jennette s help, bought between fifty and seventy mobile phones, which they resold on the street. They made additional money by calling the phones that they sold and asking for payment for the phone service while posing as a Sprint representative. Finally, Wallace and Jennette used the list to obtain credit at Target, 3 Sears and Lowe s resell and pawn. where they bought electronics and tools to After Wallace was arrested, a printout from the database used to store OSC employees personal information was found in his car. Jennette was indicted with Sadler, Horton, and Wallace in a eleven-count indictment charging them with conspiracy (Count One), wire fraud (Counts Two through Eight), aggravated identity theft (Counts Nine and Ten), and obstruction of justice (Count Eleven). the Counts Six through Eight and Eleven were dismissed by court upon motion by Jeanette was tried by a jury. in his own defense. the government prior to trial. During trial, he took the stand He explained that he often printed copies of the list of OSC employees and their personnel information for his weekly meetings with personnel managers. As for the list found in Wallace s car, Jennette acknowledged that he was the one who printed it, but he denied any knowledge of the identity theft scheme. He stated that he did not know how the list was removed from OSC and how Sadler and the others had come to possess it. He testified that the mobile phone and furniture were both gifts from Sadler. The jury found him guilty on all of the remaining counts. Jennette was scheduled for sentencing on March 7, 2007. On February 21, 2007, approximately two weeks before sentencing, his counsel moved for a continuance and moved to withdraw from 4 representation because communications between counsel and the defendant have broken down to the point that it would be best for all parties if new counsel from outside the Office of the Federal Public Defender represents Mr. Jennette. J.A. 1057. 2 The government opposed the motion on the basis that the motion to withdraw did not state a valid reason for withdrawal, it was untimely, and the continuance would wanted to testify at sentencing. burden the victims who A week later, the government made a motion for an upward departure from the guidelines on the basis that the guidelines sentence understated the harm caused. In particular, the government argued that Jennette harmed 124 current and former OSC employees who were not considered victims under the guidelines. At sentencing, the district court took up the motion to withdraw. Jennette Defense counsel represented that when he met with to communication go over broke the down presentence so report significantly believe they could cooperate going forward. ( PSR ), that he did their not Counsel stated that the root of the problem was that Jennette believed that he was cast aside at trial, and as a result they had not even been able to agree on what factual issues to challenge at sentencing. The court asked Jennette for his view and he stated, Well your 2 J.A. __ refers to the joint appendix submitted by the parties on appeal. 5 honor, since, before, during, and after the trial, I have been severely dissatisfied with received from counsel. the representation J.A. 1080-81. that I have In particular, Jennette was dissatisfied with counsel s failure to raise certain issues important to him at trial objections to the PSR. been unable to even and their inability to agree on Indeed, Jennette stated that they had review the PSR because they could not communicate effectively. The court denied the motion and decided to give Jennette the chance to make all of his objections to the PSR in open court by going through it with the judge. Jennette represented that he had already written down all of his objections, but that the paper was at the jail because he was told that he could not bring anything to court. As the judge went over the PSR, defense counsel made objections for Jennette; Jennette did not speak at all. Defense counsel objected to all the sentencing enhancements. He also argued against the government s motion for upward departure on the basis that it was only speculation as to the information harm was suffered, stolen and because used and not every there was whatsoever for fixing the loss at $1000 per person. employee s no basis The court continued the sentencing in order to have time to consider the motion for upward departure. 6 On March sentence. 30, 2007, the court reconvened and imposed departure The court granted the government s motion for upward on the basis that Jennette occupied a position of trust with respect to the victims and caused substantial harm to at least thirty-nine victims, resulting in a guidelines range of seventy-eight sentenced through to Five to ninety-seven ninety-seven and consecutively. months. months twenty-four Jennette imprisonment months on on Count was then Counts One Nine to run Jennette timely appealed. II. The denial of a motion for substitution reviewed for abuse of discretion. of counsel is United States v. Corporan- Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). III. Jennette vacated argues because the on appeal district that court his sentence abused its denying his motion for substitution of counsel. should be discretion in Both he and his attorney represented that there had been a complete breakdown of communication between them such that they had not even reviewed the PSR together before sentencing. mere allegations of The government argues that dissatisfaction with counsel are insufficient to trigger the appointment of substitute counsel, 7 and if there was any error it was harmless because the district court went over the PSR with the defendant. with Jennette and hold that the We, however, agree district court abused its discretion in denying the motion. A. While a criminal defendant has a right to counsel of his own choosing, that right is not absolute. Powell v. Alabama, 287 U.S. 45, 52 (1932); Sampley v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir. 1986). In particular, a defendant s right to choose his own counsel is limited so as not to deprive the courts of the exercise of their inherent power to control United States v. Gallop, 838 the administration of justice. F.2d 105, 108 defendant s court s right initial defendant (4th must Cir. to 1988). receive appointment show good denying counsel similarly limited. is counsel as would constitutionally adequate defense. F.3d 435, 443 (4th follows to why he that after should a the Thus, a receive In general, good cause exists when Id. 114 then substitute cause substitute counsel. substitute It Cir. communication is not required. deny the defendant a United States v. Johnson, 1997) ( A total lack of Rather an examination of whether the extent of the breakdown prevents the ability to conduct an adequate defense is the necessary inquiry. ); United States v. Mullen, 32 F.3d 891, 897 (4th Cir. 1994). 8 The district court has discretion substitution of counsel is proper. to decide whether Gallop, 838 F.2d at 108. In making its decision, the district court must consider both the defendant s reason for seeking substitution and the government s interest in proceeding without a continuance. Morris v. Slappy, 461 U.S. 1, 11-12 (1983); United States v. Reevey, 364 F.3d 151, 157 (4th Cir. 2004). In reviewing the district court s decision on a motion for substitution, this Court looks at three factors: the [t]imeliness of the motion; [the] adequacy of the court s inquiry into the defendant s complaint; and whether the attorney/client conflict was so great that it had resulted in a total lack of communication preventing an adequate defense. Gallop, 838 F.2d at 108. B. The Gallop factors counsel that the district court abused its discretion in denying the Jennette s motion was timely. motion to substitute. First, The motion was filed two weeks before his sentencing was scheduled. Though at the time it was filed there were only two days before the defendant s objections to the PSR were due, the motion was still timely because it gave plenty of time for new counsel to be appointed and sentencing to continue. for Compare Mullen, 32 F.3d at 896 (holding that a motion substitution filed twenty-three days before trial was timely), with United States v. Dukes, 1998 W.L. 188634, at *4 9 (4th Cir. Apr. 21, 1998) (unpublished) (holding that a motion for substitution filed ten days before the start of a multidefendant trial regarding the victims that it untimely). other to motion anticipated for make and a government s coordination statement argument with is the somewhat The government can point to no particular victim testifying, presented at sentencing. a The codefendants wished disingenuous. that was and indeed no testimony was Additionally, Jennette had never made substitution or a continuance before. When a defendant makes a successive motion for continuance, the court may often scrutinize his reasons for seeking the substitution more carefully. prior motion another betrayed for motion the See Gallop, 838 F.2d at 108 (discussing how a substitution for and substitution defendant s five motivation rendered his request untimely). continuance to days followed prior delay the to by trial trial and Instead, here Jennette s motion to substitute counsel was timely and was his only request to do so. As to the second Gallop factor, the district court did make an adequate inquiry into counsel and the defendant. defendant raises a the cause of the problems between Mullen, 32 F.3d at 896 ( When a seemingly substantial complaint about counsel, the judge has an obligation to inquire thoroughly into the factual basis of defendant s dissatisfaction. 10 (citation and internal quotation marks omitted)). The district judge here asked both defense counsel and the defendant about the problems they were experiencing, both in terms of cause and effects, and received lengthy replies on the record. Although the district court adequately addressed the second Gallop between factor, the Jennette extent and his of the counsel breakdown was so in communication significant that mandated substitution of counsel under the third factor. it As stated above, the defendant must have good cause for seeking substitute counsel, and a breakdown in communication which denies the defendant an adequate defense constitutes good cause. Here, the evidence communication counsel so had before broken significantly the down district between the they could that court was defendant not that and come to his an agreement on what objections to make to the PSR, and indeed had not even had the chance to go over it together. The government argues that instead of a breakdown in communication, Jennette only generally disagreed with how counsel had handled the trial. While generalized disagreement with counsel is not a sufficient reason for substitution, here the adverse impact was beyond mere disagreement, such that communication in this case. there was a total lack Gallop, 838 F.2d at 109. of Both defense counsel and Jennette stated that they had not had a chance to review the PSR together, and indeed had not really 11 spoken since the trial concluded, certainly a fundamental step for adequate representation at sentencing. We must therefore determine whether that lack of communication deprived the defendant of an adequate defense at sentencing. The government argues that because the district judge went over the PSR with Jennette in open court, any error in failing to substitute counsel was harmless. must fail for two reasons. This argument First, the district court must have found a significant problem with communication between Jennette and his counsel, as the district court conducted what otherwise would have been counsel s duty, the initial review of the PSR with the defendant. role demonstrated The district court s assumption of this that it had found merit in counsel s and Jennette s claim that there was a breakdown in communication. Although laudable, going over the PSR with the district judge in open court can hardly be attorney-client-privileged sentencing even begins. said to substitute conversation with for a private, counsel before Additionally, though defense counsel did make objections, those objections cannot be said to have been effective because they were pro forma and without benefit of consultation with the defendant beforehand. 3 3 the See Indeed, counsel represented at oral argument that during sentencing, had counsel and Jennette been able to work together, (Continued) 12 Mullen, 32 F.3d at 897 (discussing how the inability to confer with the defendant before trial denied the defendant an adequate defense). Therefore, given the effects of the breakdown in communication, the failure to substitute Jenette s counsel was an abuse of discretion. IV. For the reasons sentence and remand detailed his case above, to the we vacate district Jennette s court for resentencing. VACATED AND REMANDED counsel likely would have introduced testimony from several witnesses, including Jennette s family and supervisors at work. 13
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