United States v. Jennette

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 2, 2010
• Docket: 07-4382
• Status: Unpublished

Opinion

UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 2003, Jennette was hired to work as the

facilities security officer at Object Science 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 with his former

1 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”). Through Sadler, Jennette

met Aiesha Horton (“Horton”). 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 card to make purchases at restaurants, gas stations,

furniture stores and Wal-Mart. 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 where they bought electronics and tools to

resell and pawn. 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). Counts Six through Eight and Eleven were dismissed by

the court upon motion by the government prior to trial.

Jeanette was tried by a jury. During trial, he took the stand

in his own defense. 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 burden the victims who

wanted to testify at sentencing. 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. Defense counsel represented that when he met with

Jennette to go over the presentence report (“PSR”), their

communication broke down so significantly that he did not

believe they could cooperate going forward. 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 the representation that I have

received from counsel.” J.A. 1080-81. In particular, Jennette

was dissatisfied with counsel’s failure to raise certain issues

important to him at trial and their inability to agree on

objections to the PSR. Indeed, Jennette stated that they had

been unable to even 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 harm suffered, because not every employee’s

information was stolen and used and there was no basis

whatsoever for fixing the loss at $1000 per person. The court

continued the sentencing in order to have time to consider the

motion for upward departure.

6 On March 30, 2007, the court reconvened and imposed

sentence. The court granted the government’s motion for upward

departure 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 to ninety-seven months. Jennette was then

sentenced to ninety-seven months imprisonment on Counts One

through Five and twenty-four months on Count Nine to run

consecutively. Jennette timely appealed.

II.

The denial of a motion for substitution of counsel is

reviewed for abuse of discretion. United States v. Corporan-

Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).

III.

Jennette argues on appeal that his sentence should be

vacated because the district court abused its discretion in

denying his motion for substitution of counsel. 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. The government argues that

mere allegations of 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. We, however, agree

with Jennette and hold that the 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

the administration of justice.” United States v. Gallop, 838

F.2d 105, 108 (4th Cir. 1988). It then follows that a

defendant’s right to receive substitute counsel after the

court’s initial appointment is similarly limited. Thus, a

defendant must show good cause as to why he should receive

substitute counsel. Id. In general, good cause exists when

denying substitute counsel would deny the defendant a

constitutionally adequate defense. United States v. Johnson,

114 F.3d 435, 443 (4th Cir. 1997) (“A total lack of

communication is not required. 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 to decide whether

substitution of counsel is proper. 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 motion to substitute. First,

Jennette’s motion was timely. 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. Compare Mullen, 32 F.3d at 896 (holding that a motion

for 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 multi-

defendant trial was untimely). The government’s argument

regarding the other codefendants and coordination with the

victims that wished to make a statement is somewhat

disingenuous. The government can point to no particular victim

that it anticipated testifying, and indeed no testimony was

presented at sentencing. Additionally, Jennette had never made

a motion for 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. See Gallop, 838 F.2d at 108 (discussing how a

prior motion for substitution and continuance followed by

another motion for substitution five days prior to trial

betrayed the defendant’s motivation to delay the trial and

rendered his request untimely). 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 the cause of the problems between

counsel and the defendant. Mullen, 32 F.3d at 896 (“When a

defendant raises a seemingly substantial complaint about

counsel, the judge has an obligation to inquire thoroughly into

the factual basis of defendant’s dissatisfaction.” (citation

10 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 factor, the extent of the breakdown in communication

between Jennette and his counsel was so significant that it

mandated substitution of counsel under the third factor. 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 before the district court was that

communication had broken down between the defendant and his

counsel so significantly that they could not come to 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 there was a “total lack of

communication” in this case. Gallop, 838 F.2d at 109. 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. This argument

must fail for two reasons. 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. The district court’s assumption of this

role demonstrated 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 said to substitute for a private,

attorney-client-privileged conversation with counsel before

sentencing even begins. Additionally, though defense counsel

did make objections, those objections cannot be said to have

been effective because they were pro forma and without the

benefit of consultation with the defendant beforehand. 3 See

3 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 detailed above, we vacate Jennette’s

sentence and remand his case to the district court for

resentencing.

VACATED AND REMANDED

counsel likely would have introduced testimony from several witnesses, including Jennette’s family and supervisors at work.