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.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?