United States v. Vaughan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 21 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 02-3307 and 02-3312
v. (D. Kan.)
DENNIS W. VAUGHAN III, (D.C. No. 01-CR-20111-01-KHV)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL and TYMKOVICH , Circuit Judges, and HEATON , ** District
Judge.
Dennis Vaughan was convicted and sentenced for criminal contempt,
conspiracy to commit wire fraud, and money laundering. On appeal he argues
that (1) the district court erred by (a) imposing a sentence that exceeds the
statutory maximum because of a clerical error, and (b) failing to allow
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Joe Heaton, District Judge, United States District Court for the Western
District of Oklahoma, sitting by designation.
substitution of counsel, and that (2) the government breached its plea agreement.
He also argues in supplemental briefing that (3) his sentence violated his Sixth
Amendment rights as interpreted by the Supreme Court in Blakely v. Washington,
__U.S. __,124 S. Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm but remand for
the limited purpose of correcting a clerical error related to sentencing.
I. Background
In the mid-1990s, Vaughan and others operated Parade of Toys, Inc., a
company that sold toy distributorships. Through Parade of Toys, Vaughan
devised a scheme to defraud potential customers: When potential customers
would inquire into purchasing a toy distributorship, Parade of Toys would refer
them to employees posing as past customers; these employees, after falsely
representing to the potential purchasers that the employees’ fictional
distributorships had performed well, would then recommend investing in one. In
this way, Parade of Toys fraudulently increased its sales.
The Federal Trade Commission (FTC) filed a civil injunction against
Vaughan in 1997 in the District of Kansas. In 1998, the district court entered an
Order of Permanent Injunction banning Vaughan from promoting or selling
business ventures and requiring him to notify the FTC within 30 days of any
change in his business employment for a period of seven years. One year later,
however, Vaughan initiated a similar marketing scheme on behalf of a company
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called Government Careers Center, Inc.
In early 2001, Vaughan was charged with criminal contempt in violation of
18 U.S.C. § 401 in the District of Kansas. The indictment alleged that Vaughan
had violated the 1998 injunction by selling business ventures and failing to notify
the FTC of his change of employment. Later in 2001, Vaughan was charged in a
separate indictment with conspiracy to commit wire fraud in violation of 18
U.S.C. §§ 1343 and 1371 and money laundering in violation of 18 U.S.C. § 1957.
Vaughan retained as his criminal defense counsel a Philadelphia lawyer,
Walter Cohen. Cohen helped negotiate a plea agreement with the government
attorneys prosecuting each case. After Vaughan signed a written plea agreement,
separate plea hearings as to each case took place in district court on January 22,
2002. Cohen arranged for a local attorney, Glenn Froelich, to represent Vaughan
at both plea hearings in Kansas. Vaughan pled guilty to all charges at each
hearing. The district court later consolidated the two cases for sentencing.
On April 26, 2002, Froelich filed two motions. First, he filed a motion on
Vaughan’s behalf to appoint a public defender to replace Cohen. The motion
alleged that Vaughan had been unable to communicate with Cohen since the
January plea hearing, and, although Cohen had been paid for legal services,
Vaughan was now indigent and could not pay future legal expenses. Second,
Froelich filed a motion on his own behalf to withdraw on the grounds that he (i)
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had not yet been paid for his legal services, (ii) did not believe he could
effectively represent Vaughan as solo counsel without Cohen’s assistance, and
(iii) was having trouble communicating with Cohen. The United States opposed
the motions.
At a hearing on the motions, the court found, first, that Vaughan had
already paid Cohen for Cohen’s legal services and that Froelich’s failure to be
paid was therefore a civil matter between him and Cohen. Second, the court
found that Froelich was competent to represent Vaughan as co-counsel at
sentencing. Third, after a colloquy with Froelich, the court found that no
complete breakdown of communication that could not be cured had yet occurred
between Froelich and Cohen. To address the lack of communication between
Froelich and Cohen, the court ordered Cohen to meet with the Probation
Department if asked and to attend all future court proceedings in person. Because
Froelich and Cohen could continue to jointly represent Vaughan in future
proceedings, the court denied Froelich’s motion to withdraw and denied the
request for substitute counsel.
Just before the sentencing hearing, Froelich moved on Vaughan’s behalf to
withdraw his guilty pleas. At a hearing on the motion, the court denied the
motion as a case “of buyer’s remorse” and proceeded to sentence Vaughan to
concurrent sentences of 60 months on four counts of criminal contempt, 60
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months on one count of conspiracy to commit wire fraud, and 84 months on three
counts of money laundering. In its judgment and commitment order, however, the
court erroneously recorded Vaughan’s 84-month sentence as being for each of the
counts.
Vaughan then filed a pro se notice of appeal. Both Cohen and Froelich
filed motions to withdraw as counsel, which the court granted. A federal public
defender was appointed to represent Vaughan on appeal.
II. Clerical Error in the Judgment and Commitment Order
When a judgment and commitment order contains a clerical error, we may
remand for correction. Fed. R. Crim. Proc. 36 (“After giving any notice it
considers appropriate, the court may at any time correct a clerical error in a
judgment, order, or other part of the record, or correct an error in the record
arising from oversight or omission.”). Although at the hearing the district court
sentenced Vaughan to 60 months on one count of conspiracy to commit wire fraud
and 84 months on three counts of money laundering, the judgment and
commitment order mistakenly described Vaughan’s sentence as 84 months on all
four of the counts. Id. 1 The parties agree that this was an error by the court.
Given that the sentences will run concurrently rather than consecutively, a
1
The district court also sentenced Vaughan in the other case to 60 months
on the four counts of criminal contempt.
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correction will not reduce the amount of time Vaughan will spend in prison. We
nonetheless remand for the limited purpose of correcting the error.
III. Substitution of Counsel
We review for abuse of discretion a district court’s refusal to substitute
counsel. United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). To warrant
a substitution of counsel, the defendant must show good cause, such as a conflict
of interest, a complete breakdown of communication, or an irreconcilable conflict
which leads to an apparently unjust verdict. United States v. Padilla, 819 F.2d
952, 955 (10th Cir. 1987).
Retained Counsel Cohen. Vaughan first argues that a breakdown of direct
communications with Cohen compromised his defense. Throughout these
proceedings, however, Vaughan had two lawyers, and he does not argue that he
was unable at any time to at least communicate with Froelich, his local counsel.
And the record shows, in any event, that Froelich was communicating with Cohen
at the time of the request for new counsel. More notably, Cohen never moved to
withdraw as counsel. Vaughan thus could communicate with at least one member
of his defense team at all times.
We must also reject Vaughan’s specific contention that he could not
communicate effectively with Cohen. We determine whether a complete
breakdown of communications has occurred by examining, among other things,
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(1) whether the defendant’s request was timely; (2) whether the trial court
adequately inquired into defendant’s reasons for making the request; (3) whether
the defendant-attorney conflict was so great that it led to a total lack of
communication precluding an adequate defense; and (4) whether the defendant
substantially and unreasonably contributed to the communication breakdown.
Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000).
Vaughan claims that his difficulties in communicating with Cohen satisfy
all four Romero factors. There is no real dispute as to the first, second, and
fourth factors, as the motion was timely, the court conducted a prompt hearing,
and Vaughan did not contribute to the communication problems. As to the third
factor, however, we agree with the district court that Vaughan has not shown a
total lack of communication precluding an adequate defense.
At the time the district court conducted a hearing on the motion for
substitution of counsel, no evidence existed that any failure of communication
had affected Vaughan’s substantial rights. Vaughan had already entered his guilty
pleas before any alleged communications difficulties and the court had not yet
proceeded to sentencing. Therefore, any communication problems at that point
could not have materially affected Vaughan’s ability to mount an adequate
defense.
As for the upcoming sentencing hearing, the district court found that it
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could cure any future communication difficulties by ordering Cohen to (a)
“personally attend all future court hearings in this matter,” (b) “meet with the
Probation Office personally if the Probation Office requests such a meeting for
purposes of working out any objections to the PSIR,” and (c) “discharge all of his
ethical obligations to his client and to participate to the full extent in whatever
sentencing proceedings remain to be conducted in this case and to zealously
protect the rights of his client.” We have held that curative instructions can be
used by trial judges to remedy claims of ineffective communication between
client and lawyer. See United States v. Anderson, 189 F.3d 1202, 1210 (10th Cir.
1999). It is undisputed that Cohen complied with the district court’s orders in
this case.
Cohen and Froelich both appeared at the sentencing hearing and made
arguments on Vaughan’s behalf. Furthermore, Vaughan has not shown that any
communication difficulties prevented either Cohen or Froelich from preparing for
the hearing. In sum, Vaughan has not satisfied the third Romero factor with
respect to Cohen’s representation. Therefore, the district court did not abuse its
discretion in failing to grant substitution of counsel with respect to Cohen.
Local Counsel Froelich. Vaughan also argues that Froelich showed “good
cause” to withdraw under United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.
2002). He claims that Froelich’s lack of experience in criminal matters created
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circumstances that lead to an inadequate defense. Again, we disagree.
Although Froelich, a tax lawyer by specialty, claimed that he was
inexperienced in criminal sentencing matters and stated that he was “in over his
head,” Aplt. Br. at 42, the district court found that he could still render effective
legal assistance. In particular, the court told Froelich that nothing in the case
“really requires [special] expertise in the criminal law. You’ve [Froelich] second
chaired Mr. Cohen, you’ve conducted this hearing, you did a fine job with that,
there’s no particularly sophisticated issues of criminal law that were involved
here today. So it seems to me that what we do is get Mr. Cohen back here to
finish his representation, you continue to serve as second chair, and we’ll get this
sentencing completed . . . .”
We have held that “[a]n attorney with little or no prior experience certainly
can render effective assistance.” Cooks v. Ward, 165 F.3d 1283, 1293 n.5 (10th
Cir. 1998); see also Fields v. Gibson, 277 F.3d 1203, 1215 n.7 (10th Cir. 2002)
(“[C]ompetent defense may be accomplished by inexperienced counsel.”). At the
hearing on the motion to withdraw, neither Vaughan nor Froelich could point to
any instance in which Froelich made a mistake or otherwise proved ineffective.
Vaughan did not renew his motion prior to the sentencing hearing or after the
court’s sentencing order. Indeed, he enjoyed the full participation of both Cohen
and Froelich at sentencing, and they made numerous objections to the
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government’s position under the sentencing guidelines.
In sum, the record makes clear that Vaughan had the services of both of his
lawyers at critical times throughout his case. Neither the alleged lack of
communication between his retained and local counsel nor the inexperience of his
local counsel required substitution or withdrawal under our cases. Accordingly,
the district court did not abuse its discretion in denying the motions.
IV. Breach of Plea Agreement
We review de novo whether the government breached a plea agreement.
United States v. Fortier, 180 F.3d 1217, 1223 (10th Cir. 1999).
Vaughan alleges that the government failed, as promised in the plea
agreement, “fully to inform the Court of the nature, extent, and value of any
cooperation rendered by the defendant.” In particular, he alleges that the
government failed to inform the district court that he met with and provided
information to several government agents. Nothing in the record, however,
supports this claim, see Aplt. Br. at 33 n.10 (“The government memorandum
describing Mr. Vaughan’s cooperation is not part of the record on appeal.”), nor
does Vaughan point to any other evidence that the government breached the plea
agreement. Therefore, we have no basis to remand for resentencing on the
grounds that the government breached the plea agreement.
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V. Blakely v. Washington
Finally, Vaughan argues in a Supplemental Opening Brief that his sentences
for money laundering and conspiracy to commit wire fraud should be vacated in
light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L.Ed.2d 403(2004). In particular, he argues that the United States Sentencing Guidelines “are
unconstitutional in toto” and that therefore he “must be sentenced under a purely
discretionary scheme.” Aplt. Supp. Open. Br. at 16. 2
Given that Vaughan did not raise this argument at the sentencing hearing,
we review only for plain error. Under plain error review, we will correct an error
in the following circumstances: (1) there is an error; (2) that is plain; (3) that
affects substantial rights; and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625,
631 (2002). When a defendant raises a Blakely issue on appeal, the fourth prong
of the plain error test is not met if the evidence underlying the sentencing
enhancements was “overwhelming” or was conceded by the defendant. United
States v. Maldonado-Ramires, 384 F.3d 1228, 1231 n.1 (10th Cir. 2004); United
States v. Badilla, 383 F.3d 1137, 1143 n.4 (10th Cir. 2004).
2
We are aware that United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
and United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004) are
currently pending in the Supreme Court.
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Vaughan’s sentence was enhanced for (i) causing an amount of consumer
loss over $10 million, (ii) defrauding more than one victim, (iii) committing an
offense through mass marketing, (iv) violating a prior order, and (v) leading a
criminal activity involving five or more participants. Vaughan admitted in the
plea agreement to all five of these facts. Under these circumstances, therefore,
Vaughan has failed to show that any sentencing error under an extension of
Blakely would seriously affect the fairness, integrity, or public reputation of the
judicial proceedings in this case. Therefore, we decline to vacate his sentence
under plain error review.
VI. Conclusion
For the foregoing reasons, we AFFIRM and REMAND for correction of the
judgment and commitment order.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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