I 2014AUG-5 A 9 05 2
3 COURT 4
5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM, 8 CRIMINAL CASE NO. CF 0023-14 V. 9 JOSE WHITE LONGA, FRANCIS 10 CHARLIE MADEUS, MINORICHY DECISION AND ORDER
11 NISAR T. RUGANTE
12 Defendants. 13
15 INTRODUCTION 16 This matter came before the Honorable Arthur R. Barcinas on the 1St day of August, 17 2014, for hearing on the Motion to Withdraw as Counsel filed by counsel for Defendant 18 Minorichy Nisar T. Rugante. Assistant Attorney General Matthew Heibel represented the 19
20 People, and Attorney Mark S. Smith represented the Defendant. For the reasons set forth below,
21 the Motion to Withdraw as Counsel is DENIED. 22 BACKGROUND 23 The Defendant Minorichy Nisar T. Rugante has been charged with and indicted for first 24 degree criminal sexual conduct and kidnapping. On Ma r ch 21, 2014, the People moved to 25
26 compel the Defendant and his co-defendants to submit to a DNA sample. The Court granted the 27 motions from the bench on May 27, 2014, and issued written orders the following day. On June 28 11, 2014, the Defendant's counsel submitted a Motion for Reconsideration, with an Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
accompanying Declaration. In the Declaration Mr. Smith declared that he had advised the 1
2 Defendant against submitting the DNA, that the Defendant believed his DNA sample would
3 serve as exculpatory evidence, and that the Defendant had not wished to oppose the People's 4 motion. On July 23, the Court denied the motion from the bench on the basis that the Defendant 5 had consented to give the DNA sample. A bench order to this effect followed on July 28. 6 Also on July 23, Mr. Smith moved to withdraw as the Defendant's counsel, arguing that 7
8 it was impossible for him to effectively represent his client. The Court held a closed hearing on 9 the matter on August 1, 2014. The Court first heard from Mr. Smith, and then heard from the 10 Defendant out of Mr. Smith's presence. 11 DISCUSSION 12
13 An attorney may seek leave to withdraw from representing a client under Rule 1.16 of
14 the Guam Rules of Professional Conduct, which states in relevant part: "Rule 1.16: Declining or 15 Terminating Representation... (b) Except as stated in paragraph (e), a lawyer may withdraw 16 from representing a client if:... (6) the representation will result in an unreasonable financial 17 burden on the lawyer or has been rendered unreasonably difficult by the client." Guam Rules of 18
19 Professional Conduct, Rule 1,16 (b) (2012). Attorney Mark S. Smith moves to withdraw as
20 counsel pursuant to Rule 1.16(b)(5). Mot. 1-2, Jul. 23, 2014. 21 Criminal defendants have a constitutional right to the effective assistance of counsel. 22 See U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 687 (1984); see People 23 v. Moses, 2007 Guam 5 ¶ 41. The Defendant is indigent and Attorney Smith represents him by 24
25 the Court's appointment. Notice of Court Appointed Counsel, Feb. 6, 2014.
26 The leading Guam Supreme Court case on motions to withdraw or motions to substitute 27 counsel in the criminal Sixth Amendment context is Chargulaf v. Camacho, WHC04.-001, Order 28
Page 2 of 6 41 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
(Supreme Court of Guam, Oct. 4, 2004). Mr. Chargulaf sought a writ of habeas corpus, in part I
2 based on the trial court ' s denial of his motion to substitute counsel. See Chargulaf at 6. The
3 Supreme Court adopted the Ninth Circuit's test for reviewing whether a trial court abused its 4 discretion by denying a defendant ' s motion to substitute counsel, to wit: "(1) the adequacy of 5 the court's inquiry into the defendant's complaint, (2) the extent of conflict between the 6 defendant and counsel, (3) the timeliness of the motion and the extent of the resulting 7
8 inconvenience or delay." Chargulaf at 6 (quoting United States v. Gonzalez, 113 F.3d 1026, 9 1028 (9th Cir. 1997)); see also U .S. v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (restating 10 and applying the test). II A trial court commits error when it fails to make any inquiry at all. United States v. 12 Musa, 220 F.3d 1096, 1102 (91h Cir. 2000). Inquiries are also inadequate if they are minimal. 13
14 United States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998). The court may not decide whether 15 the motion will be granted before the inquiry. N u en, 262 F.3d at 1002. However, the court's 16 basis for reaching an informed decision may arise from the defendant's description of the 17 problem and the judge's observations. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 18
19 1986).
20 In determining the extent of conflict between the defendant and counsel, a court 21 determines whether there was, "a serious breach of trust and a significant breakdown in 22 communication that substantially interfered with the attorney-client relationship." United States 23 v. Adelzo-Gonzales , 286 F.3d 772, 779 (9th Cir. 2001). The Supreme Court cited cases of 24
25 egregious behavior as illustrations of such a breakdown. Charaulaf at 9. These included: a
26 defense counsel calling his client a liar and threatening to deliberately lose the case, Adelzo- 27 Gonzalez, 268 F.3d at 1159; an attorney using a racial slur against his client, Frazer v. United 28
Page 3 of 6 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
States, 18 F.3d 778, 783 (9th Cir. 1994); and a defendant threatening to sue his attorney for 1
2 malpractice such that the attorney would no longer be able to practice law, Moore, 159 F.3d at
3 1159. In contrast, cases in which the conflict centers around defense and litigation tactics do not 4 rise to an irreconcilable conflict. Chargulaf at 10 (citing United States v. Franklin, 321 F.3d 5 1231, 1239 (9th Cir. 2003)). 6 Analysis of the timeliness of the motion includes looking to the extent of inconvenience 7
8 or delay it will cause. See United Sates v. Gonzalez, 113 F.3d 1026, 1028 (9th Cir. 1997). Denial 9 of the motion may be warranted if the motion was made "for the purpose of delay." United 10 States v. George, 85 F.3d 1433 , 1439 (9th Cir. 1996). However, a court may not prioritize its 11 own schedule over the defendant ' s Sixth Amendment rights. U.S. v. Nguyen, 262 F.3d 998 (9th 12
13 Cir. 2001 ) ( finding that the trial court had improperly balanced the defendant's rights against
14 the delay resulting from granting the motion when the judge stated in open court, "I didn't 15 travel halfway around the world to continue this trial."). 16 At the hearing, the Court first asked Mr.
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I 2014AUG-5 A 9 05 2
3 COURT 4
5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM, 8 CRIMINAL CASE NO. CF 0023-14 V. 9 JOSE WHITE LONGA, FRANCIS 10 CHARLIE MADEUS, MINORICHY DECISION AND ORDER
11 NISAR T. RUGANTE
12 Defendants. 13
15 INTRODUCTION 16 This matter came before the Honorable Arthur R. Barcinas on the 1St day of August, 17 2014, for hearing on the Motion to Withdraw as Counsel filed by counsel for Defendant 18 Minorichy Nisar T. Rugante. Assistant Attorney General Matthew Heibel represented the 19
20 People, and Attorney Mark S. Smith represented the Defendant. For the reasons set forth below,
21 the Motion to Withdraw as Counsel is DENIED. 22 BACKGROUND 23 The Defendant Minorichy Nisar T. Rugante has been charged with and indicted for first 24 degree criminal sexual conduct and kidnapping. On Ma r ch 21, 2014, the People moved to 25
26 compel the Defendant and his co-defendants to submit to a DNA sample. The Court granted the 27 motions from the bench on May 27, 2014, and issued written orders the following day. On June 28 11, 2014, the Defendant's counsel submitted a Motion for Reconsideration, with an Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
accompanying Declaration. In the Declaration Mr. Smith declared that he had advised the 1
2 Defendant against submitting the DNA, that the Defendant believed his DNA sample would
3 serve as exculpatory evidence, and that the Defendant had not wished to oppose the People's 4 motion. On July 23, the Court denied the motion from the bench on the basis that the Defendant 5 had consented to give the DNA sample. A bench order to this effect followed on July 28. 6 Also on July 23, Mr. Smith moved to withdraw as the Defendant's counsel, arguing that 7
8 it was impossible for him to effectively represent his client. The Court held a closed hearing on 9 the matter on August 1, 2014. The Court first heard from Mr. Smith, and then heard from the 10 Defendant out of Mr. Smith's presence. 11 DISCUSSION 12
13 An attorney may seek leave to withdraw from representing a client under Rule 1.16 of
14 the Guam Rules of Professional Conduct, which states in relevant part: "Rule 1.16: Declining or 15 Terminating Representation... (b) Except as stated in paragraph (e), a lawyer may withdraw 16 from representing a client if:... (6) the representation will result in an unreasonable financial 17 burden on the lawyer or has been rendered unreasonably difficult by the client." Guam Rules of 18
19 Professional Conduct, Rule 1,16 (b) (2012). Attorney Mark S. Smith moves to withdraw as
20 counsel pursuant to Rule 1.16(b)(5). Mot. 1-2, Jul. 23, 2014. 21 Criminal defendants have a constitutional right to the effective assistance of counsel. 22 See U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 687 (1984); see People 23 v. Moses, 2007 Guam 5 ¶ 41. The Defendant is indigent and Attorney Smith represents him by 24
25 the Court's appointment. Notice of Court Appointed Counsel, Feb. 6, 2014.
26 The leading Guam Supreme Court case on motions to withdraw or motions to substitute 27 counsel in the criminal Sixth Amendment context is Chargulaf v. Camacho, WHC04.-001, Order 28
Page 2 of 6 41 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
(Supreme Court of Guam, Oct. 4, 2004). Mr. Chargulaf sought a writ of habeas corpus, in part I
2 based on the trial court ' s denial of his motion to substitute counsel. See Chargulaf at 6. The
3 Supreme Court adopted the Ninth Circuit's test for reviewing whether a trial court abused its 4 discretion by denying a defendant ' s motion to substitute counsel, to wit: "(1) the adequacy of 5 the court's inquiry into the defendant's complaint, (2) the extent of conflict between the 6 defendant and counsel, (3) the timeliness of the motion and the extent of the resulting 7
8 inconvenience or delay." Chargulaf at 6 (quoting United States v. Gonzalez, 113 F.3d 1026, 9 1028 (9th Cir. 1997)); see also U .S. v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (restating 10 and applying the test). II A trial court commits error when it fails to make any inquiry at all. United States v. 12 Musa, 220 F.3d 1096, 1102 (91h Cir. 2000). Inquiries are also inadequate if they are minimal. 13
14 United States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998). The court may not decide whether 15 the motion will be granted before the inquiry. N u en, 262 F.3d at 1002. However, the court's 16 basis for reaching an informed decision may arise from the defendant's description of the 17 problem and the judge's observations. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 18
19 1986).
20 In determining the extent of conflict between the defendant and counsel, a court 21 determines whether there was, "a serious breach of trust and a significant breakdown in 22 communication that substantially interfered with the attorney-client relationship." United States 23 v. Adelzo-Gonzales , 286 F.3d 772, 779 (9th Cir. 2001). The Supreme Court cited cases of 24
25 egregious behavior as illustrations of such a breakdown. Charaulaf at 9. These included: a
26 defense counsel calling his client a liar and threatening to deliberately lose the case, Adelzo- 27 Gonzalez, 268 F.3d at 1159; an attorney using a racial slur against his client, Frazer v. United 28
Page 3 of 6 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
States, 18 F.3d 778, 783 (9th Cir. 1994); and a defendant threatening to sue his attorney for 1
2 malpractice such that the attorney would no longer be able to practice law, Moore, 159 F.3d at
3 1159. In contrast, cases in which the conflict centers around defense and litigation tactics do not 4 rise to an irreconcilable conflict. Chargulaf at 10 (citing United States v. Franklin, 321 F.3d 5 1231, 1239 (9th Cir. 2003)). 6 Analysis of the timeliness of the motion includes looking to the extent of inconvenience 7
8 or delay it will cause. See United Sates v. Gonzalez, 113 F.3d 1026, 1028 (9th Cir. 1997). Denial 9 of the motion may be warranted if the motion was made "for the purpose of delay." United 10 States v. George, 85 F.3d 1433 , 1439 (9th Cir. 1996). However, a court may not prioritize its 11 own schedule over the defendant ' s Sixth Amendment rights. U.S. v. Nguyen, 262 F.3d 998 (9th 12
13 Cir. 2001 ) ( finding that the trial court had improperly balanced the defendant's rights against
14 the delay resulting from granting the motion when the judge stated in open court, "I didn't 15 travel halfway around the world to continue this trial."). 16 At the hearing, the Court first asked Mr. Smith to state his reasons for moving to 17 withdraw. He stated that he had trouble communicating with the Defendant, and that the 18
19 Defendant was not taking his advice. In particular, Mr. Smith mentioned that the Defendant
20 favored a litigation strategy that Mr. Smith thought would be unpersuasive, and to that end the 21 Defendant had consented to give his DNA though Mr. Smith advised him not to. The Court then 22 queried the Defendant outside of Mr. Smith' s presence. The Defendant stated that he had met 23 with Mr. Smith twice, for less than an hour each time, and was usually unable to reach Mr. 24
25 Smith by telephone. Although the Defendant did leave a voice message asking Mr. Smith to
26 withdraw from the representation, the Defendant still believed he could work with his attorney. 27
Page 4of6 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
The motion to withdraw was filed on July 23, the same day the Court issued its bench I
2 ruling denying the Defendant's counsel's motion for reconsideration of the Court's prior order
3 to compel the Defendant to produce a DNA sample. Def.'s Mot. Jul. 23, 2014. This motion was 4 prompt, and nothing in the record indicates a purpose of delay or suggests that the motion was 5 not filed in good faith. The current scheduling order sets the pre-trial conference on September
3, 2014, and jury selection and trial a week later on September 10, 2014. Criminal Scheduling 7
8 Order, Mar. 7, 2014. The Court concludes that if it were to grant the motion to withdraw, 9 substitute counsel could still be ready at this trial date, if the trial was not delayed for some 10 other reason. Neither granting nor denying the motion is determinative of the current trial 11 schedule. 12
13 However, the Court's inquiry has not revealed a serious enough conflict to warrant
14 granting the motion and relieving Mr. Smith as the Defendant's counsel. The disagreement does 15 not rise to the level of, "a serious breach of trust and a significant breakdown in 16 communication." See United States v. Adelzo-Qonzales, 286 F.3d 772, 779 (9th Cir. 2001). 17 Rather, the disagreement over the wisdom of the Defendant consenting to produce a DNA 1s 19 sample is a disagreement over defense and litigation tactics. ee Chargulaf at 10 (citing United
20 States v. Franklin, 321 F.3d 1231, 1239 (9th Cir. 2003)). To the extent that the Defendant may 21 not fully trust his counsel's advice regarding the best litigation strategy, it is less indicative of a 22 fundamental breakdown of trust and communication, and more indicative of insufficient time 23 and effort to develop trust. The disagreement over litigation tactics is not the type or magnitude 24
25 of egregious misbehavior such that Mr. Smith must be replaced to protect the Defendant's 26 constitutional right to effective assistance of counsel. To the extent communication difficulties 27 exist, they can be remedied with further effort to develop trust within the attorney-client 28
Page 5 of 6 Decision and Order CF0023-14; People v. Longa, Madeus, and Rugante
relationship. Mr. Smith has not brought any information to the Court's attention that indicates 1
2 any other attorney the Court might appoint to represent the Defendant would be differently
3 situated in developing an effective attorney-client relationship. 4 CONCLUSION 5 For the reasons set forth above, the Motion to Withdraw as Counsel is DENIED. 6
10 IT IS SO ORDERED this day of AUG052014 11
13 HONORABLE'T HUR R. B INAS 14 Judge, Superior Court of Guam 15
25 SERVICE VIA couR'rBOX 26 I acknowledge thiwtoq*at the original hereto wea- ieftdn the 27 court box of:
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