United States District Court, W.D. North Carolina, Asheville Division
L. Howell, United States Magistrate Judge
MATTER came on to be heard before the undersigned pursuant to
a letter (#342) written by Defendant to the Court which the
undersigned has considered as a motion for substitution of
counsel. At the call of this matter on for hearing it
appeared that Defendant was present with his attorney David
Belser, and the Government was present through AUSA John
Pritchard. From the statements of Defendant as shall appear
on the sealed record, and the arguments of Mr. Belser and Mr.
Pritchard, the undersigned makes the following findings.
call of this matter on for hearing, the undersigned presented
the issue of whether or not, during the hearing of the
motion, there could possibly be disclosed confidential
communications between Defendant and his counsel. The
undersigned indicated there was a high likelihood that such
communications could be disclosed and it was the intent of
the Court to conduct a sealed proceeding so the Court could
make inquiry of Defendant to determine the reasons why
Defendant had filed his motion for substitution of counsel
without disclosing any attorney/client privileged
communications between Defendant and his counsel. Mr.
Pritchard stated he had no objection and the Court then
excluded the public and Mr. Pritchard and conducted a sealed
proceeding with Defendant, which shall appear of record.
examination of the file in this matter shows that Defendant
entered a plea of guilty on October 18, 2016 to count one as
contained in the bill of indictment, that being a charge that
Defendant entered into a conspiracy to distribute cocaine
base, in violation of 21 USC § 841(a)(1) and 21 USC
§ 846. On January 13, 2017, a Presentence Investigation
Report (#317) was filed in this matter. On January 19, 2017
Defendant called Mr. Belser's office concerning the
Presentence Report and was told that the report had been
filed. On January 26, 2017, a copy of the Presentence Report
was delivered to Defendant by a deputy at the detention
facility where Defendant was held. Mr. Belser did not discuss
the Presentence Report with Defendant at that time. By letter
dated February 21, 2017, Defendant reported that he had been
attempting to contact Mr. Belser and left messages concerning
the Presentence Report at Mr. Belser's office but Mr.
Belser had not been to see him or go over the report with
Defendant. The Defendant stated in his letter that the report
had errors contained within it. On February 28, 2017, Mr.
Belser's secretary, who the Defendant referred to as
“Miss Emma”, but whose name may be
“Emily”, came to the detention facility to
discuss the report with Defendant. Mr. Belser did not discuss
the report with Defendant until he met with Defendant at the
hearing of Defendant's request for substitution of
counsel on March 6, 2017.
final report (#324) that was filed on January 30, 2017 does
contain errors. It appears that the report on page 48 refers
to discussing a plea of Defendant to breaking & entering
and larceny references a defendant named
“McAfee”. (¶ 39.) There is an additional
reference to a person named “McAfee” on page 57
in paragraph 75. Defendant argued to the Court there are
errors in regard to the calculation of his criminal history
sentencing hearing in this matter has not been scheduled.
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. US v. Allen, 789 F.2d
90, 92 (1st Cir. 1986). The determination of whether or not a
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) made an inquiry as to the
reasons why the Defendant desires to have a new attorney
appointed in this matter; and (3) whether or not there is
such a conflict between the Defendant and Mr. Belser 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).
request of Defendant has been filed after the filing of the
final Presentence Report and shortly before sentencing has
been scheduled. The undersigned weighs this factor against
granting the motion.
undersigned in a sealed proceeding, discussed the matter of
substitution of counsel with Defendant. That discussion shall
appear of record. As a result of that discussion, the
undersigned finds that Defendant has stated reasonable
concerns concerning the representation in this matter and the
undersigned weighs that factor in favor of granting the
undersigned has further attempted to determine whether or not
there is such a conflict between the Defendant and Mr. Belser
that is so great it is resulting in a total lack of
communication preventing an adequate defense. The undersigned
also weighs that factor in favor of granting Defendant's
considering all of the above referenced factors, it appears
there is little time before sentencing within which to
appoint other counsel who has knowledge of the case that Mr.
Belser possesses. However, as a result of further inquiry,
the undersigned finds there is sufficient reason to appoint
new counsel to represent the Defendant as there does appear
to be a lack of communication between Mr. Belser and the
Defendant that could prevent an adequate defense.
upon the foregoing, the undersigned has determined to enter
an Order allowing the motion for substitution of counsel and
will order that counsel be appointed in place and ...