United States Court of Appeals For the First Circuit
No. 14-2246
UNITED STATES OF AMERICA,
Appellee,
v.
RENÉ MÁRQUEZ-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Lipez, Circuit Judges.
Lydia J. Lizarríbar-Masini, with whom Camille Lizarríbar-Buxó and Lizarríbar Law Office were on brief, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
August 30, 2016 HOWARD, Chief Judge. A fair proceeding before a fair
tribunal is a basic requirement of due process. See In re
Murchison, 349 U.S. 133, 136 (1955). Claiming that judicial
misconduct, inadequate preparation time, and attorney
ineffectiveness denied him a fair proceeding, René Márquez-Pérez
asks us to vacate his conviction and sentence. We hold that the
judge's conduct of the trial, though in one instance unfortunate,
did not prejudice Márquez; and that the judge did not deny him
adequate preparation time. We are less sanguine about counsel's
performance; because we find sufficient signs of ineffectiveness,
we remand this case to the district court for further proceedings.
I.
A federal jury convicted Márquez of possessing drugs
with intent to distribute, see 21 U.S.C. § 841(a)(1), and
possessing a firearm in furtherance of a drug trafficking crime,
see 18 U.S.C. § 924(c). See generally United States v. Márquez-
Perez, 44 F. Supp. 3d 175 (D.P.R. 2014). The district court
sentenced Márquez to fifty-three months for the drug convictions
and sixty months for the firearm conviction, totaling 113 months,
or roughly nine-and-a-half years. Márquez timely appealed his
conviction and sentence.
II.
Márquez first contends that the district judge's
courtroom behavior denied him a fair trial. Although the judge's
- 2 - comportment was flawless in most respects throughout the trial, he
overreacted once, when, in response to counsel's attempt to object,
he commanded the courtroom security officer to forcibly seat
counsel down. Nevertheless, we sustain Márquez's conviction for
lack of prejudice.
A.
Due process guarantees a fair trial, not a perfect one.
See United States v. Ayala-Vazquez, 751 F.3d 1, 23-24 (1st Cir.
2014). To prevail on a judicial misconduct claim, a party must
show that (1) the judge acted improperly, (2) thereby causing him
prejudice. See United States v. Lanza-Vazquez, 799 F.3d 134, 143
(1st Cir. 2015). We consider both elements in light of the whole
record. See Ayala-Vazquez, 751 F.3d at 23. We may address the
elements in either order, and need not reach both if a party fails
on one. See id. at 25.
Our cases have generally confronted two types of
judicial misconduct during a trial. The first occurs when judges
commit errors of law, as by performing acts categorically beyond
their authority. For example, judges exceed their authority when
they testify as witnesses, or add to or distort the evidence. See
Quercia v. United States, 289 U.S. 466, 471-72 (1933); United
States v. Rivera-Rodríguez, 761 F.3d 105, 122 (1st Cir. 2014);
United States v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989). They
also exceed their authority by opining to the jury on the
- 3 - credibility of witnesses, the character of the defendant, or the
ultimate issue. See Quercia, 289 U.S. at 471; Ayala-Vazquez, 751
F.3d at 28. Such acts are per se misconduct, although the judgment
may still be sustained for lack of prejudice. See Ayala-Vazquez,
751 F.3d at 27; Paiva, 892 F.2d at 159.
The second type of misconduct occurs when judges abuse
their discretion. See Ayala-Vazquez, 751 F.3d at 23. The judge
is the governor of the trial, and has broad discretion to
participate in it. See Lanza-Vazquez, 799 F.3d at 143. A judge
may "question witnesses"; "analyze, dissect, explain, summarize,
and comment on the evidence"; and otherwise elicit facts that he
deems necessary to a clear presentation of the case. Ayala-
Vazquez, 751 F.3d at 24. Judges may also maintain the pace of the
trial and ensure its proper conduct. See Lanza-Vazquez, 799 F.3d
at 143-44. They may criticize counsel, and express "impatience,
dissatisfaction, annoyance, and even anger": "a stern and short-
tempered judge's ordinary efforts at courtroom administration" are
not error. Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Where one party's conduct warrants a relatively heavier hand, the
judge may intervene with proportional vigor and frequency. See
Lanza-Vazquez, 799 F.3d at 143-44; United States v. Rodríguez-
Rivera, 473 F.3d 21, 27 (1st Cir. 2007); United States v. Gomes,
177 F.3d 76, 79-80 (1st. Cir 1999).
- 4 - Nonetheless, judges may not misemploy these powers, as
by favoring one party or appearing partial. See Rivera-Rodríguez,
761 F.3d at 111; Ayala-Vazquez, 751 F.3d at 24. They should be
most cautious in front of the jury, which may be vulnerable to
judges' "lightest word or intimation." Ayala-Vazquez, 751 F.3d at
28.
Márquez claims that the judge denied him a fair trial by
repeatedly rebuking his counsel. These reproaches ranged from
characterizing counsel's questions as "misleading," to chiding him
to do his "homework," to directing the security officer to forcibly
seat him. Excepting this last event, they were no more than "a
stern . . . judge's ordinary efforts at courtroom administration."
Liteky, 510 U.S. at 556. And although the judge rebuked counsel
more often than he did the prosecutor, counsel's behavior warranted
the added criticism.
For example, Márquez complains that the judge repeatedly
interrupted counsel's cross-examination of a police officer and
characterized counsel's questions as "misleading." Here, the
court permissibly exercised its authority over the examination of
witnesses to avoid juror confusion. See United States v. Ofray-
Campos, 534 F.3d 1, 33 (1st Cir. 2008); Rodríguez-Rivera, 473 F.3d
at 27. In one instance, counsel asked the officer whether "these
are the pills you are referring to, correct?" The court
characterized this as "misleading" because "[t]hat wasn't [the
- 5 - officer's] testimony." Subsequently, counsel rephrased his
question, and the court allowed it. Although the court could have
spoken more mildly, it permissibly intervened to deter jury
confusion.
Márquez also complains that the judge told counsel, at
sidebar, that he needed to "do [his] homework." Here, the court
permissibly exercised its discretion to rebuke counsel. See
Liteky, 510 U.S. at 555-56; Ofray-Campos, 534 F.3d at 33. Counsel
had asked the government's expert whether marijuana could be used
as medicine, implying a permissible reason for Márquez's
possession. The court called for sidebar, stated that marijuana
is illegal in the jurisdiction, and admonished counsel to stop
this line of questioning. Perplexingly, counsel responded that
marijuana is legal in Colorado. The court retorted, "That's State.
Do your homework." This assessment was supportable: marijuana's
legality under Colorado state law was irrelevant to this federal
prosecution for drug trafficking in Puerto Rico. Despite its
gratuitous cheek, the court acted within its discretion in
criticizing counsel.
In one instance, however, the judge overstepped his
authority: in response to counsel's attempt to object, he ordered
the security officer to force counsel to sit down. This took place
during counsel's cross-examination of a police officer. The
prosecutor had objected to a question, and midway through the
- 6 - objection, counsel objected to the objection, igniting a judicial
flareup:
THE COURT: Wait a minute. You are objecting to an objection?
MR. BURGOS: Yes, sir.
THE COURT: No, you are not. [Government, c]ontinue with your objection.
MR. WALSH: Our understanding is, in his testimony he mentions -- he said he did not - -
MR. BURGOS: Objection.
THE COURT: Sit down and shut up. Sit down and shut up while he makes his objection. Mr. Burgos, sit down.
MR. BURGOS: Your Honor --
THE COURT: Sit down.
MR. BURGOS: We prefer --
MR. BURGOS: We prefer to go to the record.
THE COURT: Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.
MR. BURGOS: We would like the jury to be --
THE COURT: Sit down, Mr. Burgos. Have a seat, Mr. Burgos. Have a seat, Mr. Burgos.
MR. BURGOS: Let the record show --
THE COURT: Have a seat, Mr. Burgos.
MR. BURGOS: -- the marshals are forcing me to my seat.
- 7 - (emphasis added).
Subsequently, the back-and-forth continued, with counsel
continuing to interrupt; and the judge threatening to find counsel
in contempt, again ordering the courtroom security officer to seat
him, and eventually removing the jury. Upon the jury's return,
the judge gave curative instructions.
Counsel's actions were plainly contumacious. Initially,
counsel had the right to press his claim, "even if it appear[ed]
farfetched and untenable." Sacher v. United States, 343 U.S. 1,
9 (1952). "But if the ruling is adverse, it is not counsel's right
to resist it or to insult the judge -- his right is only
respectfully to preserve his point for appeal." Id. Counsel's
repeated interruption of the court transgressed this basic
precept.
Confronted with this transgression, the trial judge had
broad discretion to restore "dignity, order, and decorum"
"essential to the proper administration of criminal justice."
Illinois v. Allen, 397 U.S. 337, 343 (1970). A judge is entitled
to verbally rebuke counsel. See Ofray-Campos, 534 F.3d at 33.
And the judge may remove the jury and, as proper, threaten to or
actually sanction counsel, find counsel in contempt, or report
counsel for violating professional ethics rules. See Logue v.
Dore, 103 F.3d 1040, 1046 (1st Cir. 1997); United States v. Polito,
856 F.2d 414, 417 (1st Cir. 1988).
- 8 - A judge may even command physical force when "justified
by an essential state interest -- such as the interest in courtroom
security -- specific to the defendant on trial." Deck v. Missouri,
544 U.S. 622, 624 (2005). Absent an imminent physical threat,
this generally means that judges may use force only "as a last
resort." Id. at 628 (quoting Allen, 397 U.S. at 344). From these
principles, it follows that a judge should not use physical force
to subdue counsel's verbal arguments, while in the jury's presence,
except in the most extraordinary circumstances. See United States
v. Elder, 309 F.3d 519, 520 (9th Cir. 2002); Johnson v. Maryland,
722 A.2d 873, 875, 879-81 (Md. 1999) (collecting cases).
Here, for aught that appears, the trial judge did not
command force to counter a physical threat or else as a last
resort.1 Rather, he directed the security officer to forcibly seat
counsel to resolve a verbal dispute that had erupted just moments
earlier. The judge did so in the presence of the jury, and without
first exhausting other options, such as removing the jury and
1 We need not decide whether a merely verbal rebuke of "sit down" and "shut up" in the jury's presence would have been misconduct. See generally Ofray-Campos, 534 F.3d at 33 (holding that similar rebuke made at sidebar was not judicial misconduct). Nor do we address whether a judge's threat to find contempt in the jury's presence would be error. Compare Sacher, 343 U.S. at 10 ("To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client."), with Polito, 856 F.2d at 417-19 (holding that threat, made in the jury's presence, to report counsel for violating professional ethics rules was not prejudicial).
- 9 - pronouncing a stern warning of sanction or contempt. Under these
circumstances, the judge used force not as a last resort, but
nearly as a first one. We are not indifferent to the difficult
task that a trial judge sometimes faces in maintaining control of
a courtroom, nor to the reality that a judge's demeanor while
exercising that control will not always project unruffled
serenity. On this record, however, we conclude that the judge's
speedy resort to use of force was not consistent with "the very
purpose of a court system to adjudicate controversies . . . in the
calmness and solemnity of the courtroom according to legal
procedures." Sheppard v. Maxwell, 384 U.S. 333, 350-51 (1966)
(internal formatting omitted).
B.
Nonetheless, we sustain Márquez's conviction for lack of
prejudice. Our prior decisions have consistently required proof
of "serious prejudice," which we recently defined as "requiring 'a
reasonable probability that, but for the claimed error, the result
of the proceeding would have been different.'" Lanza-Vazquez, 799
F.3d at 145 (quoting Rivera–Rodríguez, 761 F.3d at 112); see also
Logue, 103 F.3d at 1045 ("An inquiry into the judge's conduct of
the trial necessarily turns on the question of whether the
complaining party can show serious prejudice."). A reasonable
probability is a probability "sufficient to undermine confidence
in the outcome." United States v. Dominguez Benitez, 542 U.S. 74,
- 10 - 83 (2004) (citing Strickland v. Washington, 466 U.S. 668, 694
(1984)).
In analyzing prejudice, our cases regularly weigh three
factors: (1) the nature and context of the error, (2) the presence
of curative instructions, and (3) the strength of the evidence in
support of the judgment. First, error is more likely to be
prejudicial when a judge expresses or implies his own view of the
case: of the relevant evidence, a witness's credibility, the
defendant's character, or the ultimate issue. See Quercia, 289
U.S. at 471-72; Lanza-Vazquez, 799 F.3d at 145; Rivera-Rodríguez,
761 F.3d at 120; Ayala-Vazquez, 751 F.3d at 28. By contrast, a
judge's mere displeasure at an attorney's litigation conduct is
unlikely to prejudice a party. See Liteky, 510 U.S. at 555-56;
Ayala-Vazquez, 751 F.3d at 20 n.16; Gomes, 177 F.3d at 80.
The context of the error also matters. Misconduct in
the jury's presence is more likely to prejudice than that at
sidebar. See Lanza-Vazquez, 799 F.3d at 144. Further, misconduct
during the presentation of critical evidence is more likely to
prejudice than that during testimony irrelevant to the defendant.
Compare Rivera-Rodríguez, 761 F.3d at 123, with Ofray-Campos, 534
F.3d at 34. And a cumulative pattern of misconduct may cause
prejudice where isolated misconduct would not. See Glasser v.
United States, 315 U.S. 60, 83 (1942); Rivera-Rodríguez, 761 F.3d
at 112.
- 11 - Second, subsequent instructions may cure the taint.
Curative instructions should remind the jury that it is the trier
of fact, and that the conduct of neither counsel nor the judge is
evidence or any indication of how to weigh the evidence or decide
the case. See Ayala-Vazquez, 751 F.3d at 25-26. The court should
give instructions promptly after a potential error, or in the final
jury charge, or -- ideally -- at both times. See id. Some severe
errors, however, cannot be cured. See Quercia, 289 U.S. at 472;
Rivera-Rodríguez, 761 F.3d at 124 n.19.
Lastly, the stronger the evidence supporting the
judgment, the lesser the risk of prejudice. See Lanza-Vazquez,
799 F.3d at 145; Rivera-Rodríguez, 761 F.3d at 120; Ayala-Vazquez,
751 F.3d at 26-27.
Márquez has arguably waived his claim for lack of
adequate argument. See Lanza-Vazquez, 799 F.3d at 145. In any
event, we find no prejudice.
First, the judge's ire "was directed solely to counsel's
courtroom conduct and carried no suggestion that the defense case
was weak or that the judge sided with the prosecutor." Gomes, 177
F.3d at 80. True, the error did take place in the jury's presence;
this is the sole factor that weighs in favor of prejudice. But
the error did not affect critical evidence, or otherwise deter
Márquez from presenting his case; indeed, the judge eventually
overruled the government's objection in favor of Márquez. And
- 12 - Márquez has not shown cumulative error, but only this single
instance.
Second, the judge gave curative instructions both
promptly after the error, and at the final jury charge. Each time,
the court admonished the jury to disregard the court's rebukes.
Finally, the evidence against Márquez -- video,
testimonial, and physical evidence -- was overwhelming. The
government introduced, among other evidence, surveillance videos
showing Márquez testing a firearm immediately before furtively
selling small items hidden in handkerchiefs; physical evidence,
seized from Márquez's car and his mother's house, including three
guns, large amounts of drugs packaged in baggies, and drug
paraphernalia (scales, empty baggies, a sieve, and weights); and
police officer testimony that Márquez confessed to owning the drugs
and guns, and to being a drug dealer. See Márquez-Perez, 44 F.
Supp. 3d at 182-86.
Weighing these factors, we find no prejudice, so we deny
Márquez's judicial misconduct claim.
III.
Next, Márquez claims that the district court abused its
discretion in denying his motion to continue the trial date. He
argues that he needed a one-day continuance to watch the
government's video evidence, and that but for the denial of his
motion, he would have seen the videos and pled guilty, resulting
- 13 - in a lesser sentence. Finding no abuse of discretion, we reject
Márquez's claim.
Having adequate time to prepare a defense is implicit in
due process and the right to counsel. See Ungar v. Sarafite, 376
U.S. 575, 589 (1964). Nevertheless, "[t]rial judges necessarily
require a great deal of latitude in scheduling trials." Morris v.
Slappy, 461 U.S. 1, 11 (1983). To prevail on appeal, a party must
show that the denial was an "unreasoning and arbitrary insistence
upon expeditiousness in the face of a justifiable request for
delay," such that "no reasonable person could agree with the
judge's ruling." See United States v. Robinson, 753 F.3d 31, 41
(1st Cir. 2014) (citing Morris, 461 U.S. at 11-12). We first
consider the reasons presented to the district court in support of
the continuance request. See Ungar, 376 U.S. at 589; United States
v. Delgado-Marrero, 744 F.3d 167, 195 (1st Cir. 2014). We may
also weigh other relevant factors such as the moving party's
diligence in light of the complexity of the case, the time
available for preparation, the timeliness of his motion, and other
available assistance; the party's contribution to his perceived
predicament; and the extent of inconvenience to others, including
the court, the other party, and witnesses. See Delgado-Marrero,
744 F.3d at 195-96. In addition, the moving party must show a
reasonable probability of specific prejudice, see id. at 199,
whether through evidence presented contemporaneously to the
- 14 - district judge or later-developed evidence consistent with the
original request, see United States v. Rodríguez-Dúran, 507 F.3d
749, 765 (1st Cir. 2007).
Beginning with the reasons presented to the district
court, Márquez alleged that he needed one extra day to watch the
government's videos with defense counsel. He had been unable to
watch the videos earlier due to software issues at the detention
facility, despite repeated attempts to resolve these issues with
the government. He allegedly needed to watch the videos to decide
whether to change his plea. Moreover, he did not benefit from
counsel's advice about the videos because counsel had not watched
them either: although counsel could have watched the videos by
himself, he admitted to the district judge that he "decided not to
see them, for the record."
Márquez's desire to review the videos with defense
counsel is understandable, as is his frustration with the perceived
delay in the government's repair of its technology. Nonetheless,
counsel's admission that he simply "decided not to see" the videos
practically concedes that Márquez's (or more precisely, his
counsel's) lack of diligence contributed significantly to his
predicament. Due process does not demand a continuance when
- 15 - "counsel knowingly put himself in this situation." United States
v. Flecha-Maldonado, 373 F.3d 170, 175 (1st Cir. 2004).2
Counsel's dilemma was exacerbated by his tardiness in
filing the motion. He filed the motion to continue at 5:40 p.m.
on the last working day before the start of trial -- an untimely
filing. See United States v. Maldonado, 708 F.3d 38, 43 & n.2
(1st Cir. 2013); United States v. DeCologero, 530 F.3d 36, 79 n.27
(1st Cir. 2008); United States v. Rodríguez-Marrero, 390 F.3d 1,
22 (1st Cir. 2004). And he offered no explanation for his belated
motion; nor was the reason for the delay in filing evident, for
the perceived predicament "would have been apparent long before."
United States v. Rosario-Otero, 731 F.3d 14, 18 (1st Cir. 2013).
Indeed, he had received the bulk of the videos two months before
trial and knew of the software issues three weeks before trial.
Cf. United States v. Orlando-Figueroa, 229 F.3d 33, 41 (1st Cir.
2000) (finding no abuse of discretion where defendants had received
government tapes two months before trial).
Nor were the videos so complex or lengthy as to
objectively warrant a longer preparation period. See Rodríguez-
Dúran, 507 F.3d at 765. Márquez contends that some of the videos
2 Although seemingly unfair to Márquez in this instance, "[u]nder our system of representative litigation, 'each party is deemed bound by the acts of his lawyer-agent.'" Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92 (1990)).
- 16 - were produced just over a week before trial and that they totaled
"hours" in length. In fact, thirty of the thirty-four videos were
produced two months prior to trial;3 and the government had
notified Márquez of the specific clips, just "several minutes"
long, that it intended to use at trial. In analogous
circumstances, we have affirmed a district court's judgment that
a month was sufficient to review hours of calls and 700 pages of
documents. See United States v. Williams, 630 F.3d 44, 48 (1st
Cir. 2010).
Márquez has also failed to show that he was prejudiced
in deciding whether or not to plead guilty.4 Even if we assume
that prejudice to a defendant's plea decision is cognizable in
3 The thirty videos comprise all of the surveillance and firearm test videos. The four subsequently produced videos show the police executing search warrants. 4 The government argues that Márquez has waived this argument because he failed to raise it below, relying on United States v. Desir, 273 F.3d 39, 43 (1st Cir. 2001). We are not convinced that Márquez failed to raise this claim below, and even if we were, we would review for plain error. See United States v. Lopez-Lopez, 295 F.3d 165, 169 (1st Cir. 2002). In any event, even applying the more defendant-friendly standard for preserved claims, we find no error in the district court's denial. Relatedly, however, we do deem waived any argument that Márquez was prejudiced in his preparation for trial or motions to suppress. Márquez addresses these in one sentence of his opening brief, so they are waived for lack of adequate development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). To the extent that Márquez asks us to consider arguments raised in his district court filing by merely citing the filing in his brief, those arguments are also waived. See United States v. Burgos- Montes, 786 F.3d 92, 111 (1st Cir. 2015).
- 17 - this context, see Rodríguez-Dúran, 507 F.3d at 766, a defendant
must show that, but for the denial, there was a reasonable
probability that (1) the plea offer would have been consummated by
the defendant, the government, and the court; and (2) the plea
would have been to a lesser conviction or sentence than that
actually imposed, see Lafler v. Cooper, 132 S. Ct. 1376, 1385
(2012).
Márquez makes two arguments. First, during his
presentence interview after his conviction, he told the probation
officer that, had he seen the videos before trial, he "may have
considered the option of pleading guilty." Second, although the
government offered Márquez a plea deal of thirteen years (or 156
months, which is more than his actual sentence of 113 months),
Márquez may have been able to negotiate the proposed sentence
downward. Notably, he contends that the government's offer
comprised three years for the drug offenses and a mandatory minimum
of ten years for the firearm count, see 18 U.S.C. §
924(c)(1)(B)(i). But as the government realized before trial, the
relevant ten-year mandatory minimum provision expired in 2004, so
Márquez was subject only to a five-year mandatory minimum. See
United States v. Laureano-Velez, 424 F.3d 38, 40 n.1 (1st Cir.
2005); 18 U.S.C. §§ 921 note, 924 note (citing Pub. L. No. 103-
322, 108 Stat. 1796, § 110105(2) (1994)). Accounting for this
- 18 - discrepancy, Márquez could potentially have sought to negotiate a
lesser sentence of eight years, or 96 months.
Notwithstanding these considerations, "the possibility
that a plea bargain acceptable to all could have been reached
within a reasonable period of time is too speculative." Rodríguez-
Dúran, 507 F.3d at 766. It is unclear whether Márquez would have
pled guilty at all.5 Further, the parties apparently had yet to
engage in plea negotiations after the government's initial offer,
and the government could have well refused to engage in them on
the first day of trial. See id. at 764. The government also
maintains that it would not have agreed to a sentence less than
what Márquez eventually received. Additionally, the court's
previously announced plea deadline had passed, and it may have
rejected any plea as untimely. See United States v. Gamboa, 166
F.3d 1327, 1331 (11th Cir.1999); United States v. Ellis, 547 F.2d
863, 868 (5th Cir. 1977). In short, Márquez has not shown a
reasonable probability that the parties would have reached an
agreement within a single day, that such an agreement would have
5 During the trial, a Deputy U.S. Marshal sua sponte informed the judge that Márquez would have pled guilty had he seen the videos prior to trial. The judge then asked Márquez whether he had said this to the marshal and whether he would have pled had he seen the videos. Márquez responded, "no." The government contends that this shows that Márquez would not have pled, while Márquez says that he meant "no, he did not tell this to the marshal." Regardless of which construction we adopt, Márquez has not affirmatively shown that he would have chosen to plead guilty.
- 19 - been to a lesser sentence, and that the district court would have
agreed to the untimely plea.
In these circumstances, the district court was not
obliged to rescue Márquez from his largely self-inflicted
quandary. We find no abuse of discretion.
IV.
Lastly, Márquez claims that his trial attorney denied
him effective assistance of counsel by neglecting to review the
government's video evidence before trial. Similar to his
continuance claim, Márquez argues that, but for counsel's failure
to watch these videos and advise Márquez accordingly, Márquez would
have pled guilty, resulting in a lesser sentence. Although Márquez
has not conclusively shown ineffectiveness on the record before
us, we find sufficient signs to remand for an evidentiary hearing.
The Sixth Amendment right to counsel entitles a
defendant to effective counsel during plea negotiations. See
Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); Lafler, 132 S.
Ct. at 1384. We assess a claim of ineffectiveness in plea
negotiations under the two-part test of Strickland v. Washington,
466 U.S. 668 (1984), under which a defendant must show deficient
performance and prejudice. Lafler, 132 S. Ct. at 1384. We measure
deficient performance against an "objective standard of
reasonableness" "under prevailing professional norms," considering
the totality of the circumstances and deferring heavily to
- 20 - counsel's judgments. Strickland, 466 U.S. at 688. Prejudice
exists if there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. at 694.
When faced with an ineffective assistance claim on
direct appeal, we typically deny the claim due to an insufficiently
developed record, leaving defendants to bring a collateral attack
under 28 U.S.C. § 2255. See United States v. Constant, 814 F.3d
570, 578 (1st Cir. 2016). In rare cases where the record is
sufficiently developed, we may resolve the claim on direct appeal.
See id. Moreover, even on an inchoate record, we will sometimes
remand for an evidentiary hearing where the defendant has
identified in the record "sufficient indicia of ineffectiveness."
Id.; accord United States v. Colon-Torres, 382 F.3d 76, 85 (1st
Cir. 2004); United States v. Theodore, 354 F.3d 1, 3 (1st Cir.
2003).6
6 We at times have also remanded for an evidentiary hearing when the defendant affirmatively makes out a colorable claim of ineffectiveness, see United States v. De Alba Pagan, 33 F.3d 125, 18 (1st Cir. 1994); accord United States v. Bell, 708 F.3d 223, 225 (D.C. Cir. 2013); United States v. Meacham, 567 F.3d 1184, 1187 (10th Cir. 2009), or else demonstrates "special circumstances," United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir. 2005). We have not addressed the relationship between these standards. Nor have we confronted whether our discretion to remand an action on direct appeal extends to every case in which
- 21 - Because Márquez has identified sufficient signs of
ineffectiveness, we remand for an evidentiary hearing. First,
counsel's neglecting to review the government's video evidence
indicates deficient performance. The Sixth Amendment requires
counsel to "make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 691. The American Bar Association
Standards for Criminal Justice -- which are among those standards
that the Supreme Court has said may help guide our assessment of
what is reasonable, see Frye, 132 S. Ct. at 1408 -- require counsel
to
conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities.
1 ABA Standards for Criminal Justice 4-4.1 (3d ed. 1993); accord
Rompilla v. Beard, 545 U.S. 374, 387 & n.6 (2005).
Under these principles, defense counsel generally must
review documents where (1) "counsel knows the prosecution will
an evidentiary hearing would be warranted on a post-conviction motion to vacate under 28 U.S.C. § 2255, see Owens v. United States, 483 F.3d 48, 61 (1st Cir. 2007); Rivera Alicea v. United States, 404 F.3d 1, 4 (1st Cir. 2005). The parties have not briefed these issues, and we need not decide them; regardless of which standard we apply, we would remand.
- 22 - probably rely" on the documents to present its case, and (2) the
documents are easily accessible. Rompilla, 545 U.S. at 377, 389-
90. In Rompilla, the Supreme Court found ineffective assistance
where defense counsel neglected to examine a public court file of
the defendant's prior convictions, despite knowing that the state
would seek the death penalty based on the convictions. See id. at
384-85, 387.
Here, counsel's failure to watch the videos appears to
fall below Rompilla's standard. First, counsel knew that the
government probably would rely on the videos because the government
formally designated the videos as evidence-intended-for-trial.
See Fed. R. Crim. P. 12(b)(4). Counsel's failure to watch the
videos was exacerbated by his own beliefs, as expressed in a motion
that he filed, that the videos contained exculpatory evidence.
Second, the videos were easily accessible because the government
produced them in discovery, presenting most of the videos to the
defense two months before trial.
We also find signs of prejudice. Similar to his
continuance challenge, Márquez argues that, but for his attorney's
deficient performance, he would have pled guilty and received a
lesser sentence. This prejudice argument is, however, stronger
than the other for two reasons.
First, the timing is different. In challenging the
denial of his motion for a continuance, Márquez asks us to
- 23 - speculate that the parties would have reached an agreement to a
lesser sentence in a single day, and that the district court would
have accepted the agreement notwithstanding the past plea
deadline. These tenuous inferences do not infect his
ineffectiveness challenge, for competent defense counsel could
have apprised Márquez of the videos' content at an earlier date.
Second, the burdens of proof differ. To ultimately
prevail on either a continuance or ineffective assistance claim,
a defendant must show a reasonable probability of a better outcome.
To secure a remand for a hearing on his ineffectiveness claim,
however, he need only show sufficient signs of ineffectiveness as
a whole. Márquez has met this lesser burden by setting forth clear
markers of deficient performance and potential markers of
prejudice. As explained above, there is evidence in the record
that Márquez would have considered pleading guilty had he seen the
videos before trial, and that the government had reason to offer
him a more favorable plea to reflect the lower mandatory minimum
on the firearm count.
Accordingly, we AFFIRM Márquez's conviction, but we
REMAND the action to the district court for further proceedings
not inconsistent with this opinion. The district court should
conduct a hearing to assess whether counsel provided ineffective
- 24 - assistance, and, if so, grant the proper remedy. See Lafler, 132
S. Ct. at 1388-90.
- 25 -