United States v. Geno Plummer

FILED
NOT FOR PUBLICATION AUG 05 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10160
Plaintiff - Appellee, D.C. No. 3:11-cr-08099-PGR-1
v.
MEMORANDUM*
GENO PLUMMER, AKA Gene Orrin
Plummer,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted June 8, 2015
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.
Defendant-appellant Gene Orrin Plummer appeals his jury trial conviction
for assault in Indian country in violation of 18 U.S.C. §§ 113(a)(6) and 1153. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plummer argues the district court abused its discretion and constructively
denied him his Sixth Amendment right to representation when it denied his pretrial
motion to substitute counsel. We consider the timeliness of the motion, the
adequacy of the district court’s inquiry into the conflict, and the extent of the
conflict to determine if the district court erred in denying the substitution. United
States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2000); see also United States v.
Moore, 159 F.3d 1154, 1158–59 & n.3 (9th Cir. 1998) (applying the same three
factors when evaluating whether denial of substitution constructively denied a
defendant’s Sixth Amendment right to counsel).
The first factor weighs in Plummer’s favor because his motion was timely.
He filed the motion seven days after his indictment was entered, and before
discovery had begun. At that early stage in the case, granting the motion was
unlikely to cause substantial delay.
The second factor also weighs in Plummer’s favor. The district court
appropriately held an ex parte hearing with Plummer and his counsel, but it was
replete with misunderstandings. Plummer had prepared his own motion to
substitute, complaining that his counsel had been to visit him zero times since
Plummer had been in custody. The motion was obviously a form document, and
did little to explain Plummer’s individual basis for seeking new counsel. Further,
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the court was confused as to how long Plummer had been in custody and
represented by counsel, because the record before the court showed that Plummer
had been indicted on the assault charge only ten days before. Plummer had been in
jail for almost four months, however, due to revocation of his supervised release
arising out of the same incident. The district court’s misunderstanding about the
pre-hearing sequence of events is understandable because, at first glance, it
appeared likely that Plummer had filed a motion to substitute counsel only about a
week after counsel had been appointed, while in fact, four months had gone by.
Plummer had a real concern he was attempting to voice, and the transcript reflects
he was not heard.
Because the district court did not fully comprehend Plummer’s custody
status, the court did not adequately inquire into counsel’s failure to communicate
with Plummer during the preceding months. When the court asked Plummer about
the nature of the problem, Plummer referred to his counsel not having received
discovery that Plummer had obtained in an earlier proceeding. The court
interpreted the professed problem to be the government’s failure to provide formal
discovery, and thus attempted to resolve it by ascertaining that defense counsel had
recently filed a discovery motion that the government had not yet had an
opportunity to comply with. This inquiry unfortunately did not address the
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communication problems that existed between Plummer and his counsel resulting
from lack of contact over a long period of time. See United States v. Adelzo-
Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001) (“Before ruling on a motion to
substitute counsel due to an irreconcilable conflict, a district court must conduct
such necessary inquiry as might ease the defendant’s dissatisfactions, distrust, and
concern. The inquiry must also provide a sufficient basis for reaching an informed
decision.”) (citations and internal quotation marks omitted).
The third factor also weighs in Plummer’s favor because the record shows
that the extent of the conflict between Plummer and his counsel caused a
breakdown in communication between them. See Stenson v. Lambert, 504 F.3d
873, 886 (9th Cir. 2007); Adelzo-Gonzalez, 268 F.3d at 779. Plummer was not
arrested until 14 months after the assault and it took almost another four months
for him to be indicted. Counsel explained that he had not spoken to his client
because he was basically “camped out waiting to see if this [i]ndictment was going
to come down.” It is troubling that Plummer’s trial counsel saw no need to work
on preparing a defense—or to hear his client’s story—while awaiting the
indictment. The failure to communicate with Plummer and interview witnesses is
particularly concerning in this case because there had already been an extensive
delay before Plummer was arrested, and the underlying assault took place when
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just about everyone present had been drinking. The circumstances surrounding the
assault made it likely that, at best, witnesses would be challenged to accurately
recall the events that transpired that night. Appointed counsel did not use this time
to talk to his client, much less to develop a defense strategy, perform any necessary
investigation, or work to discourage the Government from filing an indictment. Cf.
Crandell v. Bunnell, 144 F.3d 1213, 1217 (9th Cir. 1998) (in the more stringent
habeas context, finding ineffective assistance of counsel where the public defender
failed to confer with defendant for 63 days before discovery began), overruled on
other grounds by Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).
This record further indicates that the breakdown in communication between
Plummer and his counsel led to a loss of plea opportunities. During the final pre-
trial conference, the government offered a time-served plea agreement. Plummer
nevertheless insisted on going to trial, reflecting his counsel’s inability to
communicate to him the advantages of a plea agreement. While the district court
indicated it would not have accepted a time-served deal, it would have accepted
some deal, and the court expressed dismay with Plummer’s decision to go to trial,
emphasizing that he would lose advantageous sentencing adjustments as a result.
The record as a whole thus shows that all of the relevant factors we apply for
considering whether there has been an abuse of discretion in denying substitution
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of counsel and more seriously, whether there has been a constructive denial of the
right to counsel, weigh strongly in Plummer’s favor. This convinces us that the
denial of Plummer’s motion for substitution of counsel constructively denied him
his right to counsel under the Sixth Amendment. We therefore vacate his
conviction and remand for a new trial. See Moore, 159 F.3d at 1161.
REVERSED and REMANDED.
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