Opinion
21-50209
11-09-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TYROME LEWIS, AKA Boobie, AKA Tyrome Dynell Lewis, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2022 Pasadena, California
Appeal from the United States District Court for the Central District of California D.C. No. 2:19-cr-00149-JAK-4 John A. Kronstadt, District Judge, Presiding
Before: O'SCANNLAIN, WATFORD, and HURWITZ, Circuit Judges.
MEMORANDUM [*]
Tyrome Lewis was convicted after a bench trial of robbery, conspiracy to commit robbery, conspiracy to distribute drugs, and brandishing a firearm in furtherance of an act of violence. On appeal, he challenges the district court's failure to substitute counsel and the validity of his jury-trial waiver. We review the denial of a motion to substitute counsel for abuse of discretion, United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001), and whether jury trial was knowingly, voluntarily, and intelligently waived de novo, United States v. Shorty, 741 F.3d 961, 965-66 (9th Cir. 2013). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.
1. On January 27, 2020, Lewis wrote to the district court claiming a lack of communication with appointed defense counsel Gregory Nicolaysen and seeking new counsel. After conducting an ex parte hearing on the request and learning that there was a dispute between Nicolaysen and Lewis about presentation of an unspecified defense, the district court appointed Mark Chambers to independently advise Lewis on the defense. At a subsequent hearing, the court heard from Lewis and both counsel, but deferred ruling on the substitution request until a later hearing to allow the three to have further discussions.
At the third hearing, Chambers proposed that he and Nicolaysen act as cocounsel, that Chambers would thereafter "deal with Mr. Lewis exclusively," present the opening statement, and "prepare him to testify if he chooses," while Nicolaysen would handle other portions of the defense. Chambers noted that he had not yet had the opportunity to discuss this arrangement with Lewis and sought an opportunity to do so "one-on-one to lay the groundwork out." The court then suggested that Chambers and Lewis confer off the record outside the presence of Nicolaysen, and Lewis stated he had no objection to doing so.
After that conference, Chambers stated that "Mr. Lewis and I talked and he's agreeable to the format that I outlined for the Court," and he asked the court to adopt it. The court then asked Lewis if he agreed "with what Mr. Chambers just stated," and Lewis replied "Yes, I do, Your Honor." After Nicolaysen confirmed that the arrangement was acceptable to him, the court stated that "I appreciate the work that the three of you have done" and accepted the plan "subject to any further developments" before the next scheduled hearing, instructing Lewis and Chambers to have a "meaningful discussion" in advance of that hearing. Lewis never again raised an objection below to the co-counsel arrangement or expressed any dissatisfaction with either lawyer.
2. On this record, Lewis waived any contention that he was entitled to substitution of counsel rather than the co-counsel arrangement to which he expressly agreed. Chambers and Lewis confirmed that Lewis agreed to the arrangement after it had been explained to him both on and off the record. The withdrawal of the objection was therefore "tantamount to a waiver" of the issue for appeal. United States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995).
3. Our decision in United States v. Ceja, 23 F.4th 1218 (9th Cir. 2022), does not compel a different result. In that case, the court expressly denied the defendant's motion for new counsel. Id. at 1225 n.1. Although the defendant withdrew a second motion for new counsel, the panel declined to treat that withdrawal as a waiver of objection to the denial of the original motion. Id. In contrast, the district court in this case deferred any ruling on Lewis's motion and instead, during a hearing at which it had indicated that it was prepared to rule on the motion, was told by Lewis that he had agreed, after consultation with independent counsel, to an alternate approach.
4. Nor did the court err by accepting Lewis's jury-trial waiver. Waiver of jury trial must be (1) in writing; (2) consented to by the government; and (3) accepted by the trial court. Fed. R. Crim. P. 23(a). A written waiver is presumed to be knowing, voluntary, and intelligent. Ceja, 23 F.4th at 1224. We have encouraged district courts to inform defendants considering waiver that "(1) twelve members of the community compose a jury; (2) the defendant may take part in jury selection; (3) jury verdicts must be unanimous; and (4) the court alone decides guilt or innocence if the defendant waives a jury trial." Id. (quoting United States v. Cochran, 770 F.2d 850, 852-53 (9th Cir. 1985)).
Here, the court twice confirmed that Lewis had adequate time to confer with counsel about the waiver and explained that (1) Lewis had "a right to a jury trial"; (2) twelve jurors would be selected; (3) those jurors "would have to be unanimous in any verdict" reached; (4) "if all 12 couldn't agree . . . the trial would end," and the case may be retried; (5) the court would make evidentiary rulings and know of otherwise excluded evidence; and (6) jury trials would be restarted "in the coming weeks." On all points, Lewis said that he understood and still wished to waive his right to a jury. No "salient fact" put the court on notice that this waiver was not knowing, voluntary, and intelligent. Ceja, 23 F.4th at 1224.
AFFIRMED.
WATFORD, Circuit Judge, dissenting:
Tyrome Lewis proceeded to trial with an attorney, Gregory Nicolaysen, with whom he could not communicate. The two had long before, in the view of Nicolaysen, reached a point of no return. Given the extent of their conflict, it was an abuse of discretion for the district court not to grant Lewis's request for substitute counsel. I would therefore reverse Lewis's convictions and remand for a new trial.
The majority holds that Lewis waived his right to challenge the failure to remove Nicolaysen. But waiver in this context is evaluated through the same lens as waiver of a constitutional right-a high bar that is not met here. As we recently explained in rejecting a virtually identical waiver argument from the government, "courts should make every reasonable presumption against a finding of waiver of constitutional rights." United States v. Ceja, 23 F.4th 1218, 1225 n.1 (9th Cir. 2022). To find waiver here, we must conclude that there is "evidence that the defendant was aware of the right he was relinquishing and relinquished it anyway." United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).
The majority finds waiver based on the following colloquy between attorney Mark Chambers, Lewis, and the district court:
MR. CHAMBERS: Your Honor, Mr. Lewis and I talked and he's agreeable to the format that I outlined for the Court. That is what I would
ask the Court to do ....
THE COURT: All right. Mr. Lewis, do you agree with what Mr. Chambers just stated?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: Okay. Thank you.
That brief exchange cannot overcome Ceja's presumption. The district court did not, for example, explain that by agreeing to the unusual arrangement Chambers and Nicolaysen had proposed, Lewis might be giving up the right to challenge on appeal the district court's failure to grant his request for new counsel. The district court did not even inquire whether Lewis was in fact withdrawing his request. In other words, the colloquy is not "sufficient evidence of waiver." Id.
To be sure, Lewis could have more clearly stated any lingering misgivings or dissatisfaction he may have had. But the circumstances surrounding the colloquy nevertheless demonstrate that waiver's stringent requirements, particularly in light of Ceja's presumption, are not satisfied here. Before the colloquy, the district court had twice declined to grant Lewis's request for new counsel, despite agreement from attorney and client that their relationship had completely broken down. Lewis learned of the alternative arrangement in real time, on the very same video call during which it was proposed to the court.
And, most importantly, Lewis was, as a functional and constitutional matter, unrepresented when he purportedly consented. He could not communicate with his attorney, Nicolaysen, and, although he had the benefit of consulting with a different attorney, that attorney was not his attorney. Chambers was authorized to examine discovery materials and confer with Lewis, but his job was to make a recommendation to the district court, so that the court would not need to get into the details of the defense that Nicolaysen and Lewis had initially disagreed about. At the very least, Chambers's status as Lewis's zealous representative is ambiguous.
The majority attempts to distinguish Ceja because, in that case, the defendant withdrew his second motion for substitute counsel and subsequently appealed the denial of his first motion. But, by withdrawing his second motion, Ceja surely "led the trial judge to understand that [he] was satisfied," Johnson v. United States, 318 U.S. 189, 200 (1943)-just as the government argues that Lewis did here. If the government's sweeping waiver argument were correct, Ceja would have come out the other way.
Turning to the merits of Lewis's claim, I would hold that the district court abused its discretion by failing to grant Lewis's request for new counsel. This court weighs three factors in reviewing the denial of a motion for substitute counsel: "(1) the extent of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion." United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998). In this case, the district court's inquiry was adequate, and Lewis's motion was undoubtedly timely as he requested new counsel almost two months before his scheduled trial date. See id. at 1161 (holding that attempts to substitute counsel one month before trial and again two weeks before trial were timely). The inquiry thus turns on the remaining factor-the extent of the conflict. In my view, that factor weighs heavily in Lewis's favor.
If "the relationship between lawyer and client [has] completely collapse[d], the refusal to substitute new counsel violates" the Sixth Amendment. Id. at 1158. The record here reflects a serious breakdown in communication and trust. At the first of three hearings on Lewis's motion, Nicolaysen, an experienced panel attorney who could not recall the last time he had asked to be relieved, told the court in no uncertain terms that his recommendation was to give Lewis new counsel. He explained that there had been a breakdown in the relationship, that the relationship was beyond repair, and that Lewis needed a fresh start with someone new because Nicolaysen could no longer get through to him.
In clear and consistent representations to the court, Lewis likewise affirmed the existence of an irreconcilable conflict. At the first hearing, Lewis explained that every time he and Nicolaysen spoke, they disagreed. As a result, interacting with Nicolaysen was very uncomfortable for Lewis. At the second hearing, Lewis again told the court that he could not even speak with his attorney. At the end of that hearing, when the court again ordered Lewis to work with Nicolaysen, Lewis responded that he did not wish to have any further communication with him.
On this record, our cases make clear that it was an abuse of discretion not to relieve Nicolaysen. See, e.g., Daniels v. Woodford, 428 F.3d 1181, 1198 (9th Cir. 2005) ("Where a criminal defendant has, with legitimate reason, completely lost trust in his attorney, and the trial court refuses to remove the attorney, the defendant is constructively denied counsel."); Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970) (finding sufficient conflict when a defendant "was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate").
The majority asserts that Lewis never raised a second objection to Nicolaysen or expressed further dissatisfaction with either lawyer. But "[t]his sort of ex post argument must be rejected." United States v. D'Amore, 56 F.3d 1202, 1206 (9th Cir. 1995), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999) (en banc). Whether conflict persisted throughout the trial is immaterial because "we review the district court's decision based on the evidence before the court at the time it made its ruling." Id. In this case, the district court never formally ruled on Lewis's request for new counsel, but, as a practical matter, it twice declined to grant the request. The abuse of discretion occurred at the end of the second hearing because, at that point, "the evidence showed a complete breakdown of communication." Id.
The extent of the conflict between Lewis and Nicolaysen warranted granting substitution of counsel. In my view, the district court abused its discretion by instead appointing Chambers to serve as co-counsel alongside Nicolaysen. We should have reversed and remanded for a new trial.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.