United States v. Reyes ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALIRIO REYES, a/k/a Seco,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, Senior
District Judge. (1:04-cr-00381-TSE-1)
Submitted: August 8, 2007 Decided: September 4, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Cummings, WILLIAM B. CUMMINGS, P.C., Alexandria,
Virginia, for Appellant. Morris Rudolph Parker, Jr., Assistant
United States Attorney, Patrick Friel Stokes, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alirio Reyes pled guilty to murder in aid of racketeering
and was sentenced to life imprisonment. On appeal, his attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), concluding that there are no meritorious issues for appeal
but raising the issue of whether the district court abused its
discretion in denying Reyes’ motions for substitution of counsel.
Reyes has filed a pro se supplemental brief, challenging evidence
presented at his trial, which was aborted when he decided to plead
guilty.
Whether a motion for substitution of counsel should be
granted is within a district court’s discretion. United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). A defendant
does not have an absolute right to substitution of counsel. United
States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). In evaluating
whether the trial court abused its discretion in denying a
defendant’s motion for substitution of counsel, we consider:
(1) the timeliness of the motion; (2) the adequacy of the inquiry;
and (3) whether the attorney/client conflict was so great that it
resulted in total lack of communication preventing an adequate
defense. See United States v. Reevey, 364 F.3d 151, 156 (4th Cir.
2004).
Although Reyes’ four motions to substitute counsel were
timely and the court did not conduct extensive inquiries, the
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record does not reflect a total lack of communication preventing an
adequate defense. Reyes’ motions were all filed within a five
month period prior to the actual setting of dates for pre-trial
motions and for the start of trial. After Reyes’ last motion was
denied, the deadline for pre-trial motions was still three months
away. Essentially, Reyes was complaining about one of his
attorney’s failure to present a vigorous defense before such time
as discovery and the rest of the defense began in earnest. In
fact, two of the motions were filed before co-counsel was even
appointed. Once the motions and trial dates were set, Reyes never
again complained about his attorneys.* Six months passed between
the filing of Reyes’ last motion and the start of trial, without
comment or objection by Reyes. In addition, Reyes testified at
both his Fed. R. Crim. P. 11 hearing and his sentencing hearing
that he was satisfied with his attorneys. Given Reyes’ sworn
testimony and the timing of his motions, we find that the district
court did not abuse its discretion in denying his motions and
determining that there was not a total breakdown in communication
between Reyes and his attorneys.
Reyes has filed a pro se supplemental brief, challenging
the testimony and evidence presented at trial. However, because
*
In fact, he had never complained about co-counsel who was
appointed after Reyes had filed two motions for substitution.
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Reyes knowingly and voluntarily pled guilty, he has waived any
errors in the aborted trial.
In accordance with Anders, we have reviewed the record
and found no meritorious issues for appeal. Accordingly, we affirm
Reyes’ conviction and sentence. This court requires that counsel
inform his client, in writing of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. We dispense
with oral argument, because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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