United States 1st Circuit Court of Appeals Reports
U.S. v. SEGARRA-RIVERA, 05-1582 (1st Cir. 1-11-2007) UNITED
STATES OF AMERICA, Appellee, v. JUAN SEGARRA-RIVERA,
Defendant, Appellant. No. 05-1582. United States Court of
Appeals, First Circuit. January 11, 2007.
Appeal from the United States District Court for the
District of Puerto Rico [Hon. Salvador E. Casellas, U.S.
District Judge].
Ignacio Fern??ndez de Lahongrais, by appointment of the
court, for appellant.
Nelson P?©rez-Sosa, Assistant United States Attorney (Chief,
Appellate Division), with whom Rosa Emilia Rodr?guez-V?©lez,
United States Attorney, was on brief, for appellee.
Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge,
and HOWARD, Circuit Judge.
SELYA, Circuit Judge.
Defendant-appellant Juan Segarra-Rivera (Segarra) asks that
we remand for an evidentiary hearing on his asserted right
to withdraw his guilty plea. Segarra premises this entreaty
on the ground that he was entitled, under the Sixth
Amendment, to be represented at his plea-withdrawal hearing
by conflict-free counsel. For all practical purposes, that
rule is ironclad; the question here is whether the district
court, when faced with a colorable claim of an actual
conflict of interest, should have invoked that rule.
Concluding, as we do, that the court acted in derogation of
Segarra’s Sixth Amendment rights by proceeding as it did,
we remand for further factfinding consistent with this
opinion.
We rehearse here only those facts necessary to place this
appeal into perspective. On August 28, 2003, a federal
grand jury, in a superseding indictment, charged Segarra
with conspiracy to distribute multi-kilograms of controlled
substances. See 21 U.S.C. §§ 841(a)(1), 846.
The thrust of that count was that Segarra managed and
supervised a booming business in the sale of drugs at a
housing project in Juncos, Puerto Rico. The superseding
indictment also contained a second (derivative) count
seeking criminal forfeiture.
After some preliminary skirmishing, not relevant here,
Segarra pleaded guilty to both counts of the indictment
pursuant to a written plea agreement (the Agreement). See
Fed.R.Crim.P. 11(c)(1)(A)-(B). The instant appeal concerns
the circumstances surrounding Segarra’s decision to plead
guilty and his subsequent endeavors to withdraw his guilty
plea.
During the relevant time frame, Attorney Rafael
Anglada-L??pez (Anglada) represented Segarra by appointment
of the district court.[fn1] On August 17, 2004, Anglada
visited Segarra in prison and secured his signature on the
Agreement. A change-of-plea hearing, held the next day,
proceeded without incident. In pertinent part, Segarra,
through an interpreter, confirmed that he understood both
the nature of the charges and the consequences of
confessing guilt to them. He stated that he had entered
into the Agreement of his own accord and without pressure
from anyone; that he had discussed the terms of the
Agreement with his attorney before signing it; and that he
was satisfied with Anglada’s representation.
On December 8, 2004, Segarra initiated a series of pro se
motions aimed at vitiating his plea. He claimed that he had
not been fully informed of the consequences of pleading
guilty and that his entry into the Agreement was neither
knowing nor voluntary; to the contrary, he signed the
Agreement and responded on cue during the change-of-plea
colloquy only because Anglada had coerced and manipulated
him.
With respect to this last-mentioned claim, Segarra offered
a number of particulars. He asserted, for example, that
Anglada took advantage of his lack of education, his
inability to speak English, and his debilitated physical
and mental condition. He also asserted that, during
Anglada’s prison visit, the lawyer had insisted that he
would not leave empty-handed but “had to come away with the
[A]greement signed.” In order to ensure Segarra’s
acquiescence, Anglada ambushed him with a surprise visit
from his wife, Yolanda Vega, whom Segarra had not seen in
three months. Vega, convalescing in a wheelchair, allegedly
implored Segarra through a veil of tears to follow
Anglada’s lead. Segarra further noted that Anglada had not
performed the rudimentary preparatory work needed to try the
case and, thus, was adamantly unreceptive to Segarra’s
insistence on a jury trial. Finally, Segarra charged that
Anglada had concealed exculpatory evidence from the court.
As a result of these foibles, Segarra stated, he signed the
Agreement and went through the change-of-plea colloquy in a
state of confusion.
In response to Segarra’s allegations, Anglada filed a
motion requesting an evidentiary hearing on the
plea-withdrawal request. In that motion, Anglada admitted
that, after entering the plea, Segarra repeatedly beseeched
him (Anglada) to move to set it aside. Anglada had not,
however, heeded his client’s wishes.
The district court considered Segarra’s serial motions on
January 28, 2005 (without convening an evidentiary
hearing). At that time, Segarra submitted a signed
statement that a fellow inmate had helped him draft. That
statement reiterated much of what he had disclosed in his
pro se motions, including his claims that Anglada had
concealed exculpatory evidence and manipulated him into
signing the Agreement. In its peroration, Segarra’s
statement declared:
I have never accepted the agreement that counsel
Anglada[] made me sign. Counsel Anglada[] never brought me
the evidence in the case and I always insisted to counsel
Anglada[] on my desire to go to trial. Counsel Anglada[]
merely limited himself to put “undue pressure” so that I
would sign, so much so that he brought my wife, Yolanda
Vega, in the conditions that I have already reported. . .
.
Segarra also requested that the district court appoint new
counsel to represent him at the plea-withdrawal hearing and
thereafter throughout the case.
Faced with this statement and request, the district court
solicited comments from both the prosecutor and Anglada.
The prosecutor argued that the attempted plea withdrawal
constituted no more than second-guessing sparked by what
seemed likely to be a stiff sentence. For his part, Anglada
insisted that he had explained the Agreement fully to
Segarra in Spanish and that Segarra had understood him. He
maintained that his sole contact with Vega had been the
receipt of desperate telephone calls from her. He also
suggested that video cameras at the prison would bear out
the absurdity of the charge of coercion. While he conceded
that he had been unresponsive to Segarra’s persistent
instructions that he seek to vitiate the plea, he explained
that he had hoped to persuade his client not to pursue such
a course.
Anglada proceeded to disparage Segarra’s stated basis for
retraction of the plea, indicating to the court that
Segarra had understood the nature and consequences of his
actions. He even pointed out that Segarra, in his pro se
motions, had failed to assert his innocence. He then stated
cryptically that he wished he could call Vega and Segarra’s
brothers as witnesses because they would “know whether
[Segarra] is guilty or not.”
In a written rescript, the district court denied Segarra’s
motions to withdraw his guilty plea and for new counsel.
See United States v. Segarra-Rivera, Crim. No. 03-188
(D.P.R. Mar. 4, 2005) (unpublished). Following the
imposition of a 135-month incarcerative sentence, Segarra
— represented by new counsel — prosecuted this
timely appeal.
The lower court’s rescript focused on whether Segarra
should be allowed to withdraw his guilty plea. In our view,
this focus puts the cart before the horse. There is a
logically antecedent question: was Segarra entitled to
representation by counsel other than Anglada at the
plea-withdrawal hearing? If he was, then his request for the
appointment of new counsel should have been honored
— and the failure to honor it would cast doubt upon
the validity of the record on which the district court
ruled. Consequently, we start with this antecedent question.
The Sixth Amendment guarantees that, in all felony cases,
an accused has a right to the assistance of counsel. U.S.
Const. amend. VI. Unless knowingly and intelligently
waived, this right attaches at every critical stage of the
criminal process. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004).
The entry of a guilty plea is one such critical stage, see
id. at 81, and a plea-withdrawal hearing is another, see
United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir.
1996).
Here, Segarra’s Sixth Amendment challenge, as presented to
the district court, had two related but conceptually
distinct aspects. One aspect rested upon an argument that
counsel performed ineffectively or incompetently. See,
e.g., Strickland v. Washington, 466 U.S. 668, 687-88
(1984). That aspect is not pursued on this appeal and, in
all events, is not properly before us. Claims of
ineffective assistance of counsel simpliciter, including
claims of substandard performance, are routinely
adjudicated in collateral post-conviction proceedings. See
United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir.
2006); see also 28 U.S.C. § 2255. While there are
exceptions to this praxis, see, e.g., United States v.
Theodore, 354 F.3d 1, 3 (1st Cir. 2003); United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991), Segarra makes no
developed argument supporting the applicability of any such
exception here.
The remaining aspect of Segarra’s Sixth Amendment challenge
is of a different genre. In mounting this attack, Segarra
does not rely upon allegations of attorney ineffectiveness
or incompetence per se; rather, he maintains that Anglada
concealed exculpatory evidence and manipulated him into
signing the Agreement in order to avoid a trial for which
he (the lawyer) had neglected to prepare. If Segarra’s
allegations are true — a matter on which we take no
view — then Anglada would have had a very real
incentive, at the plea-withdrawal stage, to cover up his
misconduct. This would mean that Anglada was laboring under
an actual conflict of interest in undertaking to represent
Segarra. See United States v. Burgos-Chaparro, 309 F.3d 50,
52 (1st Cir. 2002) (distinguishing ineffectiveness and
conflict of interest claims). That type of claim, unlike an
ineffectiveness claim, is not routinely relegated to
collateral review.[fn2]
We add a caveat. Not every bare allegation of a
disagreement between lawyer and client is enough to trigger
a right to new counsel. see, e.g., United States v.
Mota-Santana, 391 F.3d 42, 47 (1st Cir. 2004); United
States v. Myers, 294 F.3d 203, 206-08 (1st Cir. 2002). An
even smaller subset of such disagreements will (even
arguably) amount to an actual conflict of interest. Lawyers
ordinarily aspire to do their best for clients. Thus, an
“actual conflict,” for Sixth Amendment purposes, entails a
conflict of interest sufficient to displace that presumption
— one “that adversely affects counsel’s
performance.” Mickens v. Taylor, 535 3U.S. 162, 172 n. 5
(2002).[fn3]
Here, more than a mere disagreement is at issue. Segarra’s
conflict of interest claim was seasonably raised below. The
charge is one of improper and unethical conduct, not merely
professional negligence. And, finally, the record provides
enough indicia of an actual conflict of interest to make
the claim colorable. Hence, the claim warrants review on
direct appeal. Cf. United States v. Col??n-Torres, 382 F.3d
76, 84-85 (1st Cir. 2004) (discussing, under the rubric of
ineffectiveness, the appropriateness of direct review of
conflict of interest claim).
This brings us to why we believe that Segarra made a
sufficient showing of an actual conflict to render his
claim colorable and justify further inquiry by the district
court. He alleged, with specificity, that Anglada used
improper means — for example, concealing exculpatory
evidence from the court, brainwashing Segarra’s ailing wife
and bringing her to prison without any forewarning, and
refusing to leave without Segarra’s signature on a
pre-prepared agreement — to secure his acquiescence
in a plea he did not want. Segarra describes a motive for
the misconduct — the attorney’s eschewal of any
semblance of meaningful trial preparation — that is
not implausible on its face. The indirect evidence, such as
the fact that Segarra made his retraction request soon
after the change-of-plea hearing, lends some credence to
the charges. While it may well be that Segarra’s
accusations will melt away in the crucible of adversarial
testing, we think that he offered enough to warrant a
hearing. Cf. Mota-Santana, 391 F.3d at 45, 47 (declining to
grant relief sought — there, reversal for district
court’s refusal to appoint new counsel — upon
undeveloped and purely conclusory accusation that attorney
“deceived” defendant).
The non-evidentiary hearing held by the district court did
not suffice. Segarra’s charges, if founded, embody conduct
different in both kind and degree from a defense attorney’s
customary encouragement to his client — even strong
encouragement — to avoid a trial by entering into a
negotiated arrangement with the government. The charges
impute to Anglada conduct that is both 4improper and
unethical.[fn4] An attorney who has committed such
misconduct — and we again emphasize that the alleged
misconduct remains to be proven — would have a very
powerful incentive to sweep it under the rug.
In such a situation, an inevitable tension arises between
advancing the client’s interests and preserving the
attorney’s reputation (and, perhaps, his livelihood). See
Col??n-Torres, 382 F.3d at 90; Sanchez-Barreto, 93 F.3d at
21. That tension is enough to sow the seeds for an actual
conflict of interest. See Sanchez-Barreto, 93 F.3d at 20
(recognizing actual conflict of interest when “pursuit of a
client’s interests would lead to evidence of an attorney’s
malpractice”).
The way in which Anglada responded to Segarra’s charges
reinforces our intuition that Anglada could not
appropriately represent Segarra at the plea-withdrawal
hearing. Although Anglada admitted that Segarra had
clamored, over and over, to withdraw his plea, beginning
soon after it was entered, he made no effort to carry out
his client’s wishes until a frustrated Segarra forced his
hand by filing the first of a series of pro se motions with
the district court. Then, at the hearing itself, Anglada
opposed retraction of the plea; attempted to undermine the
factual basis on which the plea-withdrawal request rested;
dodged Segarra’s charges of coercion; and went so far as to
proffer evidence contradicting 5Segarra’s version of the
relevant events.[fn5] With Anglada so busily engaged in
defending his own integrity and the bona fides of the plea
that he had orchestrated, his interests and Segarra’s were
clearly at odds.
The government suggests that the statements made by Segarra
during the change-of-plea hearing undercut his Sixth
Amendment challenge. This suggestion is not frivolous: from
time to time, we have looked to such statements as a basis
for denying plea withdrawals. See, e.g., United States v.
Alegria, 192 F.3d 179, 186 (1st Cir. 1999) (explaining
that, ordinarily, “a defendant who asserts a fact in answer
to a judge’s question during a change-of-plea proceeding
ought to be bound by that answer”). That principle,
however, does not apply in “exceptional circumstances.” Id.
This case potentially fits within that exception. On
Segarra’s theory of what transpired, clearly articulated in
the court below, the statements that he made at the
change-of-plea hearing were the product of Anglada’s
manipulative conduct rather than proof of the absence of
improper manipulation. Given Segarra’s preliminary showing,
he was entitled to have that theory advanced by
conflict-free counsel and evaluated by the district court.
The short of it is that the Sixth Amendment entitled
Segarra to the assistance of counsel at his plea-withdrawal
hearing. He did not receive that assistance. Despite having
made a timely request for new counsel and a colorable
showing that his then-attorney was hampered by an actual
conflict of interest, Segarra was left to fend for himself
at this critical stage in the proceedings. That was
constitutionally impermissible. See Col??n-Torres, 382 F.3d
at 90; Sanchez-Barreto, 93 F.3d at 22. This shortcoming
taints the district court’s determination that Segarra
failed to adduce sufficient evidence of manipulation or
coercion.
That leaves uncertain the nature of the remedy. In this
instance we choose, in the exercise of our discretion, to
leave the sentence intact and remand to the district court
for the appointment of conflict-free counsel so that the
court can hold a full hearing 6on Segarra’s plea-withdrawal
motion.[fn6] If Segarra prevails in that proceeding, the
district court should then vacate his sentence, annul his
guilty plea, and conduct such further proceedings as may be
necessary. If, however, the government prevails, the
district court, if requested to do so by Segarra, shall
vacate the existing sentence pro forma and immediately
reimpose the same sentence, thereby giving Segarra an
opportunity to appeal the court’s denial of his
plea-withdrawal motion.
We need go no further. For the reasons elucidated above, we
remand this matter for further proceedings consistent with
this opinion. We express no opinion as to the outcome of
the anticipated plea-withdrawal hearing.
So Ordered.
[fn1] Anglada was Segarra’s second court-appointed lawyer.
He was appointed on June 15, 2004, after Segarra’s original
attorney, Francisco M. Dolz-S??nchez, was permitted to
withdraw. In connection with that switch, Segarra had
alleged that Dolz-S??nchez “wants me to sign an agreement,
which in my opinion is unfair, because I haven’t seen the
evidence.”
[fn2] Apart from justiciability concerns, there is another
important distinction between the two types of claims. When
a defendant’s claim rests solely on allegations that
counsel performed ineffectively or incompetently, the
defendant must also show prejudice. See Strickland, 466
U.S. at 692-93; Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir.
1994). When, however, a defendant makes a timely and
colorable showing that his counsel labored under an actual
conflict of interest, he may be entitled to relief without
regard to proof of prejudice. See Cuyler v. Sullivan, 446
U.S. 335, 349-50 (1980); Torres-Rosario, 447 F.3d at 64.
[fn3] Mickens -a habeas case — narrowed the
precedential orbit of Cuyler v. Sullivan, 446 U.S. 335
(1980), upon which this court, like many courts of appeals,
had relied in resolving conflict of interest cases. See
Mickens, 535 U.S. at 174-75. While this opinion draws upon
principles extracted from pre- Mickens case law, neither
Mickens nor Sullivan is directly applicable.
[fn4] This, among other things, distinguishes this case
from Torres-Rosario, in which the defendant alleged that
the prosecutor had been guilty of improper conduct. See 447
F.3d at 64-65.
[fn5] We fully appreciate that Anglada may have felt it
necessary to take these steps in order both to defend his
own reputation and to fulfill what he sincerely believed to
be his obligations as an officer of the court. But that is
precisely the point: if either or both of these concerns
were paramount, Anglada could hardly be expected to
represent Segarra’s interests. A lawyer burdened with
conflicting allegiances to two masters serves neither well.
[fn6] We suggest that the district court may wish to
consider asking Segarra’s appellate counsel, who has ably
represented him in this court, to accept that appointment.