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United States v. Williamson

United States Court of Appeals, Tenth Circuit

June 6, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BRETT J. WILLIAMSON, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 2:13-CR-20011-KHV)

          Melody Brannon, Kansas Federal Public Defender, Topeka, Kansas, for Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), Office of the United States Attorney, Kansas City, Kansas, for Appellee.

          Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

          TYMKOVICH, Chief Judge.

         Brett Williamson was charged with and convicted of various child pornography offenses. Prior to trial, it came to light that his defense counsel and the prosecutor trying the case had a history together: they were divorced and shared custody of their child. For that and numerous other reasons, Williamson asked for new counsel, his third, but the district court denied his request. He ultimately chose to proceed to trial without an attorney and was convicted and sentenced to life in prison. Williamson now argues that the district court should have inquired into his defense counsel's potential personal conflict of interest to determine if the relationship might have affected his right to a fair trial, and that failure to do so requires automatic reversal.

         We disagree, and decline to extend the automatic reversal rule from Holloway v. Arkansas, 435 U.S. 475 (1978), beyond its traditional application in multiple representation cases. And since Williamson has failed to make a showing that his counsel was laboring under an actual conflict of interest, we reject his conflict of interest argument based on his defense counsel's personal relationship with the prosecutor. We also reject Williamson's alternative arguments for new counsel: that his filing of a criminal complaint against his counsel constituted an actual conflict of interest, and that Williamson demonstrated a complete breakdown of communications between his attorney and himself.

         We also reject Williamson's claim that the district court erred in allowing him to conduct his trial and sentencing pro se, since he voluntarily, knowingly, and intelligently waived his Sixth Amendment right to the assistance of counsel.

          Finally, we affirm the district court's denial of Williamson's motion to suppress evidence recovered during the search of his Indiana home. We therefore affirm the district court's decision in its entirety.

         I. Background

         Williamson was charged with multiple counts of attempting to entice and coerce a minor to both engage in sexually explicit conduct and to film the assault. On these charges, he faced a potential sentence of life imprisonment.

         Williamson was appointed a federal public defender from Kansas City, Kansas, who asked to withdraw as counsel seven weeks before the scheduled trial date. The district court granted that motion, continued the trial date, and appointed Robin Fowler, a local private attorney, as defense counsel. In February 2014, three months before the rescheduled trial, Mr. Fowler also filed a motion to withdraw as Williamson's counsel, citing a "total breakdown of communication between counsel and Mr. Williamson." R., Vol. 1 at 109. In his motion, Mr. Fowler stated that the breakdown was "so severe that it [was] irreconcilable" and that it had led to a "complete lack of trust" between himself and Williamson. Id.

         During the hearing on his motion to withdraw, Mr. Fowler informed the court that he had told Williamson, as he tells all of his clients, that he and the Assistant United States Attorney assigned to the case, Kim Martin, were divorced and have a child together. He stated, "[t]hat's not an ethical dispute or an ethical problem and things like that happen a lot in smaller towns but I still make it clear. I don't know if that adds to [Williamson's distrust of my advice] or not." R., Vol. 2 at 10. The court denied Mr. Fowler's motion to withdraw, finding the request untimely because it was close to trial and the court had previously granted the federal public defender's request to withdraw close to trial. The court also found that counsel had not shown a total breakdown in communication, any disagreement appeared to be "strategic disagreement" over who should control the case, and Williamson was "substantially and unreasonably" contributing to any breakdown in communication. R., Vol. 2 at 54-56; 63-64.

         Less than two weeks before trial, Williamson filed a pro se motion for new counsel. After holding an expedited hearing on the motion, the district court denied Williamson's request, finding that if there was a conflict between Williamson and Mr. Fowler, Williamson was substantially and unreasonably contributing to the breakdown in communication, and the disagreements between the two boiled down to a strategic disagreement about how the case should be defended.

         The court rescheduled the trial date, but approximately two weeks before the rescheduled date, Williamson filed a 12-page letter with the district court complaining further about his relationship with defense counsel. In the letter, Williamson alleged that he no longer trusted his lawyer and-for the first time-raised Mr. Fowler's relationship with the prosecutor as a potential conflict of interest in his case. The letter stated, "I have explained to many people that my appointed attorney is divorced from the attorney for the government and everyone has agreed, inmate and guard alike, that this is a conflict of interest . . . . Does the law allow me to be represented by such adversaries as friends or family of the [prosecutor]?[1] I think the court has erred by appointing Mr. Fowler to me." R., Vol. 1 at 239; see also id. at 229 ("My court appointed attorney is Robin Fowler, who is divorced from AUSA Kim Martin (the prosecutor assigned to my case), [and] is purposely sabotaging my defense in motions and at hearings . . . ."). The letter also stated that Williamson had filed criminal charges against Mr. Fowler and was likely to file civil claims as well, and it questioned whether Mr. Fowler could continue to represent Williamson while those charges were pending. Williamson also added complaints about the district court's impartiality, alleging that the district court judge was also involved in the conspiracy between Mr. Fowler and the prosecutor.

         The district court construed the letter as a motion for new counsel and held a hearing at which Mr. Fowler supported Williamson's request for new counsel. Neither the district court nor Williamson-when given the opportunity to speak on the record-addressed the issue of Mr. Fowler's relationship with the prosecutor as a potential conflict of interest in the case. The district court again denied Williamson's motion, concluding he had failed to show a complete breakdown of communication with counsel, and-to the extent there were disagreements with counsel-they were matters of strategic disagreement. The district court also concluded Williamson had substantially and unreasonably contributed to any communication problems with counsel by insisting that Mr. Fowler raise what appeared to be frivolous issues.

         Two days before trial, Williamson filed a pro se Motion to Relieve Counsel and Continue Pro Se. The district court denied the motion, concluding Williamson's decision to proceed pro se was "a procedural ploy to obtain new counsel, " for which Williamson "relie[d] on the flawed premise that his current counsel is ineffective." R., Vol. 1 at 267. On the morning of jury selection, Williamson renewed his request to proceed pro se, and a different district court judge presided over the proceedings. The court advised Williamson that if he wanted to proceed pro se, he would be responsible for all aspects of the trial. The court carefully reviewed the charges and statutory penalties with Williamson, and strongly cautioned him against proceeding pro se. But Williamson insisted on proceeding pro se anyway, and the court granted his motion.

         Williamson then represented himself at his trial and sentencing. The jury found him guilty on all counts, and the district court sentenced him to life in prison.

         II. Analysis

          Williamson alleges that the district court erred: (1) in denying his motion for new counsel; (2) by allowing him to waive his right to counsel and proceed pro se at trial and sentencing; and (3) in denying his motion to suppress evidence recovered from a search of his residence. We address each argument in turn and, finding jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision in full.

         A. Motion for New Counsel

         Williamson challenges the district court's denial of his motion for new counsel based on irreconcilable conflicts. First, he claims the court should have examined whether defense counsel, Mr. Fowler, had a conflict of interest stemming from his ongoing co-parenting relationship with his former wife, the Assistant United States Attorney prosecuting Williamson's case. Alternatively, Williamson argues that his filing of a criminal complaint against Mr. Fowler created a conflict of interest between counsel's self-interest and his duties to represent his client. Lastly, he maintains that he established a complete breakdown of communication with Mr. Fowler, and the court abused its discretion in denying the motion on that basis.

         1. Defense Counsel's Conflict of Interest

         Williamson first argues that Mr. Fowler had an irreconcilable conflict of interest because of his former marriage to the prosecutor and their ongoing co-parenting relationship. He claims this conflict of interest, along with the strained attorney-client relationship between Williamson and Mr. Fowler, created a high risk of the denial of his right to counsel.

         The Sixth Amendment's guarantee of the right to counsel "includes the right to representation that is free from conflicts of interest." Gardner v. Galetka, 568 F.3d 862, 886 (10th Cir. 2009). A conflict of interest is "a division of loyalties that affected counsel's performance, " Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002), and demonstrating a conflict of interest is one way for a defendant to show good cause to warrant substitution of counsel, United States v. Porter, 405 F.3d 1136, 1140 (10th Cir. 2005).

         This case requires us to harmonize a series of Supreme Court cases addressing conflicts of interest in a variety of circumstances. A typical potential conflict can arise from joint or multiple representation situations when more than one codefendant is represented by the same attorney.[2] For example, one defendant might be advantaged in accepting a plea offer or testifying against his codefendant, but the second defendant could be disadvantaged if the first defendant chooses to do so. Multiple representation conflicts may arise at any point in the criminal process, from the plea bargaining stage to sentencing, even if the codefendants' interests initially appear to converge. Wayne R. LaFave, et. al, 3 Crim. Proc. § 11.9(a) (4th ed. 2016 update).

         Other types of conflicts can arise from an attorney's relationship with other clients, witnesses, victims, or-as here-the prosecution. And although all of the above situations give rise to a potential conflict of interest, that potential will only be converted to an actual conflict of interest if, over the course of litigation, the defendant's interests actually clash with his attorney's interests. See id. An actual conflict of interest therefore means a "conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171 (emphasis added). In other words, an actual conflict exists when "counsel [is] forced to make choices advancing other interests to the detriment of his client." United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998).

         An actual conflict can support an ineffective assistance of counsel claim where the conflict prejudiced the defendant's representation. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Generally, a defendant must demonstrate prejudice flowing from the conflict, but in some circumstances, a court will presume prejudice when the conflict amounts to the complete denial of counsel. See id. at 692; United States v. Cronic, 466 U.S. 648, 658-60 (1984).

         So far, the Supreme Court has applied the "presumed prejudice" rule only for conflicts of interest in multiple representation cases. Beginning with Holloway v. Arkansas, 435 U.S. 475 (1978), the Court established that whenever a trial court improperly requires counsel to represent multiple codefendants over counsel's timely objection, reviewing courts will apply an "automatic reversal" rule. Id. at 476-91. The Court explained that while "joint representation[] is not per se violative of constitutional guarantees of effective assistance, " defendants are entitled to representation free of a conflict of interest. Id. at 482. In sum, a court has a "duty to inquire" into a potential joint representation conflict of interest when defense counsel informs the court of the alleged conflict prior to trial, and "whenever a trial court improperly requires joint representation over timely objection reversal is automatic." Id. at 488; see also LaFave, supra, at § 11.9(b).

         Two years later, however, the Supreme Court declined to apply the automatic reversal rule when the defendant did not raise the conflict of interest prior to trial. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court distinguished Holloway, noting that trial courts necessarily rely on the judgment of defense counsel to bring these matters to their attention, and that counsel "is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." Id. at 347. Therefore, "[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Id. (quoting Holloway, 435 U.S. at 485) (emphasis added). In other words, absent a credible indication of an actual conflict of interest before trial, a trial court's duty to inquire is limited. Prejudice will not be presumed, and the automatic reversal rule will not apply.

         The most recent and important Supreme Court decision in this line of cases is Mickens v. Taylor, 535 U.S. 162 (2002). In that case, the Court considered a conflict of interest raised on habeas review. Mickens's lead defense counsel had been representing the juvenile victim on unrelated charges when he was allegedly murdered by Mickens. The juvenile court judge who dismissed the pending charges against the victim upon the victim's death then appointed the same defense counsel to represent Mickens on the murder charge. Counsel did not disclose his prior ...


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