United States District Court, W.D. North Carolina, Asheville Division
October 6, 2014
UNITED STATES OF AMERICA,
DENNIS L. HOWELL, Magistrate Judge.
THIS CAUSE came on to be heard before the undersigned, pursuant to letters (#49) sent by Defendant to the undersigned, one dated September 15, 2014 and one dated September 19, 2014. In the letter of September 15, 2014, Defendant requests that counsel be substituted for his present attorney, Jason Hayes. In the letter of September 19, 2014, Defendant requests that the letter of September 15, 2014 be disregarded.
At the call of this matter on for hearing, it appeared that Defendant was present with his attorney, Mr. Hayes, and the Government was present and represented by Assistant United States Attorney Don Gast. From the statements of Defendant and Mr. Hayes, the Court makes the following findings.
Findings. After calling this matter, the undersigned excluded all persons from the courtroom, including the Assistant United States Attorney and conducted a sealed proceeding for the purpose of conducting an ex parte discussion with Defendant. The Court was concerned that during the discussion of the requests of the Defendant that confidential communications could be disclosed. After conducting a sealed proceeding and making an inquiry as to Defendant's requests, it appeared that Defendant now wished to have counsel substituted for Mr. Hayes. The sealed proceeding and the inquiry by the undersigned with the Defendant shall appear of record.
The undersigned also conducted an inquiry with Mr. Hayes and Mr. Hayes unequivocally stated he did not wish to represent the Defendant further in this matter and wished that he be allowed to withdraw.
An examination of the file in this matter shows that Defendant was indicted on August 5, 2014 and charged in counts one, five, six, seven and eight with violations of 21 U.S.C. § 841(a)(1) regarding the distribution of heroin. Mr. Hayes was appointed to represent the Defendant and appeared for the Defendant on September 5, 2014 for an arrangement hearing.
Discussion. An indigent Defendant has no right to have a particular lawyer represent him or her and can demand a different appointed attorney only with good cause. U.S. v. Allen , 789 F.2d 90, 92 (1st Cir. 1986). The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing state interest in proceeding on schedule. Morris v. Slappy, 461 U.S.
1 (1983). In considering the motion herein, the undersigned has considered the following factors: (1) timeliness of the motion; (2) inquiry as to the reasons why the Defendant has requested that counsel be substituted for Mr. Hayes; and (3) whether or not there is such a conflict between the Defendant and Mr. Hayes that is so great it has resulted in a total lack of communication preventing an adequate defense. United States v. Gallop , 838 F.2d 105 (4th Cir. 1988).
The request of Defendant for substitution of counsel has been made within a short period of time after the appointment of Mr. Hayes to represent Defendant. As a result, the undersigned will weigh this factor in favor of granting the request of Defendant.
The undersigned has attempted to make inquiry as to the reasons for any conflict between the Defendant and Mr. Hayes. As shall appear in the sealed proceedings, it appears there is a direct conflict between Defendant and Mr. Hayes to the degree that Mr. Hayes does not desire to represent Defendant. As a result, the undersigned has determined to weigh this factor in favor of appointing substitute counsel for Defendant.
The undersigned has further examined this matter to determine whether or not there is such a conflict between Defendant and Mr. Hayes that there is a lack of communication that could prevent an adequate defense. As shall appear in the sealed proceeding, it appears there is a direct and pointed conflict between Defendant and Mr. Hayes that could prevent an adequate defense for Defendant.
After considering all of the above referenced factors, it appears that the request of the Defendant has come at an early stage of the proceedings and counsel can be substituted without delaying proceedings in this matter. As a result of the inquiry made by the Defendant it appears there is sufficient reason to appoint another attorney to represent Defendant. After weighing all factors, the Court has determined that their weight should be granted in favor of appointing new counsel in place and in stead of Mr. Hayes.
Based upon the foregoing, the undersigned will enter the following Order for appointment of substitute counsel.
IT IS, THEREFORE, ORDERED that the letters (#49) of Defendant which have been considered as a motion for substitution of counsel and the oral request of Mr. Hayes that he be allowed to withdraw is hereby ALLOWED. It is further ORDERED that the Federal Defenders of Western North Carolina is directed to appoint substitute counsel to represent Defendant in this matter.