Two questions that often come up in criminal cases are can a defendant withdraw his/her guilty plea and, if the defendant has an appointed counsel, can he/she fire the attorney and get another appointed attorney. Both questions are discussed in the Second Circuit case, United States v. Carreto, et al.

Josue Flores Carreto, Gerardo Flores Carreto, and Daniel Perez Alonso smuggled Mexican women, some of whom were under eighteen years old, into the United States and forced them into prostitution. They were indicted on November 14, 2004. They turned down all plea offers. On December 20, 2004 Alonso requested that he receive a new appointed attorney, claiming that his attorney had no interest in the case. The court held a hearing in which Alonso’s lawyer testified that he had seen him seven times for approximately one hour each. The court found no basis for the complaint and denied the request.

The appellate court found that the trial judge did not commit any error in denying Alonso’s request for a new attorney. Under Second Circuit law, the court must consider “the timeliness of defendant’s request for new counsel; (2) the adequacy of the trial court’s inquiry into the matter; (3) whether the conflict resulted in a total lack of communication between the defendant and his attorney; and (4) whether the defendant’s own conduct contributed to the communication breakdown.” The Second Circuit found that the trial judge fully considered the matter and that there did not appear to be a complete breakdown in communications. As a result it upheld the trial court’s decision.

On April 4, 2005 a jury was selected. The next day the defendants said they wanted to plead guilty. The judge carefully told them that there was no plea agreement on the table and that if they plead guilty they could receive a greater sentence that if they went to trial and lost. They insisted that they wanted to plead guilty and the court took their pleas to all twenty-seven counts.

Sentencing was continued and they were not sentenced for approximately a year. On the day of sentencing, Alonso had a new retained attorney and he moved to withdraw Alonso, guilty plea. The basis for the motion was that: “(1) defendants were not adequately advised of their right to testify at trial, (2) the court did not verify that the
plea was voluntary, and (3) counsel were ineffective in failing to obtain relevant documents from Mexico.” The court denied the motion on the grounds that nothing in the motion indicated that the defendants were innocent. While the law changes somewhat from jurisdiction to jurisdiction the rule in the Second Circuit requires that the defendants show a “fair and just reason” to withdraw their plea. Specifically the court must consider whether the defendant assert their innocence, the amount of time between the plea and the request to withdraw it and the prejudice to the government of a withdraw. The court found there was no evidence of a claim of innocence, that over a year passed between the plea and the motion to withdraw the plea. Furthermore the lengthy period between the plea and the motion to withdraw it would make it difficult for the government to find witnesses. The court also pointed to the extensive colloquy held at the time of the plea. Furthermore the transcript showed that they had been told about their right to testify. According to the court the Mexican transcript were not relevant to the question of guilt or innocence.

The Carretos were sentenced to 50 years each and Alonso was sentence to 25 years.