Opinion
No. S1 02 Cr. 1059 (LTS).
May 26, 2005
MEMORANDUM ORDER
This matter comes before the Court on the renewed application of defense counsel John P. Cooney, Jr. ("Cooney," or "current defense counsel"), dated May 19, 2005, for permission to withdraw from the above-captioned case and to have new counsel appointed to represent Defendant Juan Avendano ("Avendano"). The renewal of Cooney's motion, which had originally been made orally on the record on December 7, 2004, the day Avendano's trial commenced, and was denied on that same date, was prompted by a pro se "Declaration in Support of a Post Trial Motion to Set Aside Jury Verdict, and to Reconsider the Pretrial Order Denying the Motion to Dismiss the Indictment," dated April 29, 2005, which Avendano sent to the Court and the undersigned forwarded to defense and Government counsel.
In his pro se submission, Avendano makes two principal arguments. First, Avendano contends that the Court should reconsider its November 7, 2002, decision denying an earlierpro se application by Defendant to dismiss the indictment as untimely under the Speedy Trial Act, 18 U.S.C. § 3161(b). In that earlier application, which the Court addressed in light of the unusual communications and relational problems that had already become apparent in Avendano's dealings with defense counsel, Avendano argued that the indictment should have been dismissed because it had been returned more than 30 days after Defendant's arrest. The Court denied the application, noting that orders, finding that exclusion of time from speedy trial computations was in the interest of justice in light of discussions between the defense and the Government concerning a possible disposition of the case, had been timely entered pursuant to 18 U.S.C. § 3161(h)(1). Avendano now asserts that his defense counsel and the Government mislead the Court as to the existence of disposition discussions prior to the return of the indictment, warranting vacatur of his conviction on speedy trial and Sixth Amendment ineffective assistance of counsel grounds. Avendano represents that no discussions concerning a possible disposition occurred until on or about October 20, 2003, when the Government proposed a written plea agreement.
See Memorandum Order in United States v. Avendano, No. 02 Cr. 1059 (LTS), 2002 WL 31496219 (S.D.N.Y. Nov. 7, 2002).
Id. The first of these orders was entered on June 10, 2002. The Court notes that the thirtieth day following Defendant's May 10, 2002 arrest was a Sunday. Pursuant to Fed.R.Crim.P. 45(a)(3), the time for indicting Defendant or further extending the time period in which to indict Defendant was extended to the following day, June 10.th See United States v. Melendez-Carrion, 790 F.2d 984, 991 (2d Cir. 1996) (time computation provisions of Rule 45(a) may be applied to time periods prescribed in statutes). Furthermore, the Magistrate Judge had scheduled a preliminary hearing for May 28, 2002, at the May 13, 2002, first appearance. See 18 U.S.C. § 3161(h)(1)(J) (automatic exclusion of time during which proceeding concerning defendant is under advisement).
Second, Avendano asserts that his current defense team (i. e., Mr. Cooney and members of his law office) provided ineffective assistance of counsel in connection with plea negotiations in October 2003, by giving him inappropriate advice and failing to adequately inform him of the potential ramifications of his refusal to accept the plea agreement offered to him by the Government. Specifically, Avendano alleges in his Declaration that he declined the Government's offer of a plea agreement that would have called for a sentence of 10 years of imprisonment on the advice of counsel, and that he was not informed that his failure to accept the plea agreement would expose him to a mandatory minimum sentence of 20 years of imprisonment upon conviction. Had he been informed of the disparities in the potential sentences, Avendano asserts, he would have accepted the Government's proposed plea agreement. Arguing that his Sixth Amendment right to effective assistance of counsel has been violated, he seeks vacatur of his conviction and an opportunity to accept the plea agreement that the Government had offered to him in October 2003.
Seeking leave to withdraw, Cooney contends that Avendano's arguments raise issues under Disciplinary Rules 5-102 and 2-110(B)(2), 2-110(C)(2), and 2-110(C)(1)(D). Disciplinary Rules 5-102(c) and (d) address withdrawal of a lawyer as a factual advocate where the lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client concerning a significant issue. The cited provisions of Rule 2-110 address withdrawal where the lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule, or where the client "renders it unreasonably difficult for the lawyer to carry out employment effectively." Cooney contends that Avendano's factual assertions in his Declaration have raised the possibility that an evidentiary hearing may be required during which Cooney might need to be called to testify as to a significant issue. Avendano's assertions are, however, so inconsistent with the facts of record in this case as to make his application patently meritless and evidentiary proceedings involving Cooney's testimony clearly unnecessary.
As to Avendano's argument concerning whether discussions of a possible disposition took place between his arrest and the time he was indicted, the relevant events clearly took place well before April 30, 2003, when Cooney was appointed to represent Avendano. Therefore, the Court finds that there is no reason to believe, even in the event a hearing were to be required on the issue, that Cooney ought to be called as a witness. Further, it has previously been established, in connection with pretrial motion practice, that Avendano entered into a Proffer Agreement with the Government on May 23, 2002. That agreement expressly contemplated the possibility of a cooperation, plea, immunity or non-prosecution agreement. Avendano and his then-counsel conducted proffer sessions with the Government on May 23 and June 24, 2002. The first order excluding time on account of discussions of a possible disposition was signed on June 10, 2002. A second such order was signed a month later. While it may or may not be true that the Government offered no specific written plea agreement until October 2003, the proffer documentation is consistent with the June 10 and July 10, 2002, judicial findings that exclusions were in the interest of justice due to the existence of discussions concerning a possible disposition of the case.
Due to difficulties well documented in the record and in the several psychological and psychiatric reports that have been prepared in this case, Cooney was the third CJA lawyer appointed to represent Avendano. Avendano and his original retained counsel parted ways upon his indictment.
See Memorandum Opinion and Order in United States v. Avendano, No. 02 Cr. 1059 (LTS), 2003 WL 22454664 (S.D.N.Y. Oct. 29, 2003).
Avendano's assertion that he was not adequately informed of the consequences of not accepting the plea agreement that was offered to him in or about October 2003 is similarly contradicted by the facts of record. The transcript of an October 22, 2003, conference before Magistrate Judge James C. Francis IV, which was convened at defense counsel's request in order to ensure that Avendano had a full opportunity to understand the terms under which the Government had offered to agree to a plea and the ramifications of rejecting that offer, documents explanations by defense counsel and Judge Francis that Avendano would face a twenty-year mandatory minimum sentence if he turned down the agreement and was later convicted. At that conference, which was attended by Avendano, Cooney's colleagues, and counsel for the Government and which took place shortly before the Government filed a prior felony information in this case, both Judge Francis and defense counsel explained to Avendano in plain terms 1) that the Government had not offered any plea option that would carry a penalty of less than ten years' imprisonment, 2) that, under the Government's proposal, he could choose to plead guilty to fewer than all of the charges in the superseding indictment and face a 10-year mandatory minimum sentence, and 3) that the Government had indicated that, if he did not accept the proffered plea agreement, the Government would file a prior felony information that would moot the opportunity to obtain a ten-year sentence and instead expose Avendano to a twenty-year mandatory minimum sentence upon later conviction, whether pursuant to a guilty plea or on account of a verdict at trial. (Tr. of 10/22/03 Conference at 4-5, 19.) Indeed, Cooney's colleague Neil Potischman stated specifically:
Counsel originally requested that the undersigned participate in the conference. In view of the provisions of Fed.R. Cr. P. 11(c)(1), the undersigned requested that Magistrate Judge Francis, a judicial officer of this District who had no authority over the disposition of the case, accommodate counsel's request.
[I]t's my view that this all gets back to the same decision that Mr. Avendano has to make today, which is to plead guilty according to the plea agreement that the Government has provided and face a ten-year sentence, or go to trial. At trial we can make a range of factual and legal arguments on Mr. Avendano's behalf, but if he is convicted he will face a sentence of twenty years.
(Id. at 16-17 (emphasis supplied).) Avendano's current assertions that he was not advised of the twenty-year mandatory minimum, and that counsel advised him to reject the ten-year offer, are so patently inconsistent with the documented discussions at the relevant time as to make it clear that no evidentiary proceedings involving testimony on the subject by his current counsel are necessary or appropriate.
Accordingly, defense counsel is not required to withdraw on account of considerations described in Disciplinary Rule 5-102. Nor is withdrawal appropriate pursuant to Disciplinary Rules 2-110(B)(2) and (C)(2), as no other Disciplinary Rule violation appears to be in prospect. While the Court acknowledges that Avendano's behavior does make this representation extraordinarily difficult, the Court does not find it unreasonably so, particularly since Avendano's past behavior and the conclusions of the mental health professionals who have examined him suggest that similar issues would almost certainly arise were the Court to grant Cooney's withdrawal application and appoint a fifth lawyer to represent Avendano for sentencing.
Cooney's renewed motion to withdraw from this matter and to have new counsel for Avendano appointed is therefore denied. In addition, even though the Court as a matter of practice does not consider the merits of pro se motions filed by criminal defendants who are represented by counsel, the Court denies Avendano's April 29, 2005, motion for the reasons set forth above.
SO ORDERED.