United States v. Pryor

275 F. App'x 99
CourtCourt of Appeals for the Third Circuit
DecidedApril 21, 2008
DocketNo. 07-1018
StatusPublished
Cited by1 cases

This text of 275 F. App'x 99 (United States v. Pryor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pryor, 275 F. App'x 99 (3d Cir. 2008).

Opinion

OPINION

COWEN, Circuit Judge.

Defendant-Appellant Rashid Pryor pled guilty to one count of conspiracy to possess cocaine with the intent to distribute. He was sentenced to a within-Guidelines term of 100-months imprisonment with five years of supervised release. Pryor appeals from his sentence, claiming that the District Court violated his Sixth Amendment right to be represented by the counsel of his choice.

The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Our review is under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The Sixth Amendment claim is renewable by us because it is not within the scope of the appellate waiver provision of Pryor’s plea agreement. However, because Pryor raises this claim for the first time on appeal, we review only for plain error. United States v. Merlino, 349 F.3d 144, 161 (3d Cir.2003).

Pryor argues that the District Court violated his Sixth Amendment right to his counsel of choice when it coerced him into accepting the representation of Donna Newman over that of Paul Bergrin. He contends that the coercion consisted of the District Judge delaying his sentencing on numerous occasions, and conducting lengthy and unnecessary waiver colloquies. Because we find no error, plain or otherwise, in the District Court’s approach in the case, we affirm.

Rashid Pryor, along with co-defendants Atif Amin and Oscar Larsen, was charged in a federal criminal complaint with distribution of narcotics. Pryor agreed to plead guilty, and was scheduled to enter his plea before United States District Judge Faith S. Hochberg on May 18, 2005. Here, the potential conflict of interest arose because Paul Bergrin, Pryor’s attorney, had also represented Jason Hannibal, one of Pryor’s alleged co-conspirators, in a prior state court prosecution arising out of the same narcotics conspiracy as that underlying Pryor’s case.1

Judge Hochberg was first alerted to the potential conflict when the Government moved to disqualify Bergrin as Pryor’s counsel a few weeks prior to Pryor’s scheduled plea hearing. At the May 18, 2005 hearing, Judge Hochberg inquired about the problem, and engaged in a colloquy with Pryor about the conflict. After being informed of the situation, Pryor proffered a conflict waiver, which the Court accepted. Thereafter, Judge Hoch-berg conducted the requisite Rule 11 plea colloquy, and indicated she would accept Pryor’s plea as long as Hannibal also waived the conflict. Hannibal subsequent[101]*101ly did so. Pryor’s sentencing was then scheduled for September 11, 2006.

In the summer leading up to Pryor’s sentencing, Judge Hoehberg presided over a lengthy narcotics conspiracy trial involving Hakeem Curry, during which two additional developments raised questions about the adequacy of Pryor’s legal representation. First, a witness at trial testified that Bergrin was “house counsel” for the Curry drug organization, and that regardless of whom he purported to represent, Bergrin’s loyalty was always with Curry. Second, at one point during the trial, Curry’s attorney sought to call Pryor as a witness, and stated to the Court that Bergrin had no objections to Pryor testifying. Since Bergrin was not present during this discussion, Judge Hoehberg assigned Donna Newman as special counsel to Pryor for the limited purpose of advising him as to his role as a potential witness. But, upon consultation with Newman about his Fifth Amendment rights, Pryor indicated that he would not testify for Curry. Curry’s attorney ultimately opted not to call Pryor to the stand.

As a result of these developments, Judge Hoehberg began Pryor’s September 11, 2006 sentencing hearing with an inquiry into the nature of Bergrin’s relationship with Curry and affiliates. Bergrin denied that he was currently representing anyone in connection with the Curry case, and stated that he had not represented Curry in “three or four years.” JA at 74. The Court then explained the situation to Pryor, who indicated that he understood but still wanted to proceed with Bergrin. However, for reasons unrelated to the conflicts issue, the District Court adjourned the sentencing proceeding at Bergrin’s request.

Soon thereafter, the Government discovered and submitted to the District Court an August 2006 letter in which Bergrin affirmatively stated that he was represent-

ing Curry on appeal. In light of this letter, the Government argued that the Court should appoint Pryor independent counsel for sentencing. On November 20, 2006, Judge Hoehberg questioned Bergrin about this letter; Bergrin again denied that he represented Curry, and contended that the letter was in error. Nevertheless, upon motion of the Government, the Court appointed Newman as special counsel, allowed her to meet privately with Pryor to discuss the matter, and reconvened the sentencing proceeding for later that same day. After consulting with Newman, Pryor again sought to waive the conflict. However, Newman then questioned whether the potential Curry-Pryor conflict was waivable at all, and if so, whether Curry would also have to waive. Because none of the attorneys present could answer these questions, Judge Hoehberg adjourned the proceeding so that the issues could be fully briefed.

After reviewing the briefs, the Court concluded that Pryor could waive the conflict, and that Curry did not also have to waive. On December 18, 2006, the District Court proceeded to sentencing. Judge Hoehberg began by recounting all of the relevant facts with regard to the conflict issue, after which Pryor indicated that he wanted to proceed with Newman as his counsel, and made clear that his decision was made of his own volition. JA at 200-01 (“The Court: And do you understand that it is solely your choice as to whether you wish to proceed to sentencing represented by either Mr. Bergrin or by counsel appointed by the court for you? The Defendant: Yes ... The Court: What is your wish? The Defendant: I’m going to go with Miss Newman ... The Court: Has anybody pressured you to make that decision? The Defendant: No, ma’am. Not at all.”). Finally, after hearing arguments from both sides on the various Guidelines issues, the District Court imposed sentence.

[102]*102The Sixth Amendment’s guarantees encompass the right to be represented by one’s counsel of choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). However, this right is not absolute, as the Sixth Amendment also ensures that every defendant will receive conflict-free representation. United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.1996) (right not unconditional); United States v. Moscony, 927 F.2d 742, 748 (3d Cir.1991) (right to effective assistance of counsel includes “the right to the attorney’s undivided loyalty free of conflict of interest”). Thus, the presumption in favor of one’s counsel of choice “may be overcome not only by a demonstration of actual conflict [of interest] but by a showing of a serious potential for conflict.” Wheat v.

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275 F. App'x 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pryor-ca3-2008.