U.S. v. Ewing

Full title: UNITED STATES of America, Plaintiff-Appellee v. Stephen Michael EWING…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 26, 2009

334 F. App'x 697 (5th Cir. 2009)

Opinion

No. 08-10740 Summary Calendar.

June 26, 2009.

Alan M. Buie, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, Ronald C.H. Eddins, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Robert N. Udashen, Sorrels, Udashen Anton, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:07-CR-30-2.

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Stephen Michael Ewing appeals his jury trial convictions for conspiracy to defraud the Internal Revenue Service and multiple counts of tax evasion, mail fraud, making a false statement to a government agency, and making false statements in relation to health care matters. On appeal, Ewing argues only that his previously retained counsel provided ineffective assistance during pre-indictment discussions with the Government. Ewing asserts that his counsel failed to advise him of the risks of his cooperation with the Government and failed to negotiate any sort of immunity agreement in return for his cooperation.

In the absence of a right to counsel, a defendant has no constitutional right to the effective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). The Supreme Court has held that the "right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant." United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Adversary judicial proceedings may begin "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

In the instant case, although Ewing was warned in 2004 that he might have some criminal exposure, "adversary judicial proceedings" did not commence until an indictment was filed 2007. See Gouveia, 467 U.S. at 187, 104 S.Ct. 2292; Kirby, 406 U.S. at 689, 92 S.Ct. 1877. Because Ewing's Sixth Amendment right to counsel had not yet attached, he had no constitutional right to the effective assistance of counsel during his pre-indictment discussions with the Government. See Coleman, 501 U.S. at 752, 111 S.Ct. 2546.

AFFIRMED.