USA v. Fugate

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA PLAINTIFF
vs. No. 6:19-cr-60037
CHRISTOPHER FUGATE DEFENDANT
ORDER
On April 20, 2020, Defendant, CHRISTOPHER FUGATE, filed a pro se Motion for
Ineffective Counsel. ECF No. 22. Defendant was previously appointed competent counsel, namely
Mr. Matthew Hill of the Federal Defender’s office for the Western District of Arkansas. ECF No.
7. The Court Ordered Mr. Hill to respond to the Motion for Ineffective Counsel, and Mr. Hill has
filed his Response, ex parte and under seal as directed by the Court. ECF No. 27. Mr. Hill also filed
a separate Motion to Withdraw (ECF No. 28) based on the facts set out in his Response. Both of
these Motions have been referred to the undersigned for decision.1
1. Background:
Defendant was found indigent on September 26, 2019 at his first appearance. ECF No. 5.
The Court on that date appointed the Federal Defender, specifically Mr. Matt Hill, to represent the
Defendant. ECF No. 7. On April 20, 2020, Defendant filed his “Motion for Ineffective Counsel.”
With this Motion, the Defendant seeks appointment of new counsel and alleges the following:
a. Counsel has “lost all trust in his attorney because he has failed to investigate the
case”;
b. The search of his backpack and vehicle at the time of his arrest was not proper;
c. The police report detailing his arrest was not accurate;
1Mr. Hill’s Motion to Withdraw has also been filed in the separate case of United States v.
Fugate, 6:14-cr-60005. In that case, Defendant is charged by Petition with violation of conditions of a
previously imposed term of supervised release. The Court will enter a separate Order addressing the
Motion to withdraw in that case.
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d. Counsel failed to “investigate the defects in the indictment”;
e. Counsel is “working with the other imposing [sic] party and also trying to help
convict” the defendant”; and
f. Counsel is “over loaded with cases and can not defend defendant.”
These six allegations are the sum total of Defendant’s Motion. On May 5, 2020, the Court
conducted an ex parte hearing with Defendant and Counsel regarding the allegations of Counsel’s
deficient performance.2 The Court will summarize the statements of Defendant, taking care not to
disclose any specific communication between Defendant and Counsel.
At the hearing, Defendant stated he did not believe Counsel was “fighting for him.” He was
generally dissatisfied with the status of his case. The Court inquired about the specific allegations
of the Motion for Ineffective Counsel. Defendant admits Counsel has communicated with him
regarding the discovery provided by the Government and a plea bargain negotiation with the
Government. Defendant was unable to identify any specific defensive motion he believed Counsel
should file. Defendant believes he has factual defenses to the charges in the Indictment, yet has
clearly not been willing to fully discuss the facts of the case with Counsel. Defendant was not
satisfied with the fact Counsel relayed to him the communications Counsel has had with the
Government’s lawyers in this case.
Counsel in his ex parte Response, discusses each of these assertions made in the Motion for
Ineffective Counsel in detail. ECF No. 27. The Court will not set out those specific responses to
the extent they involve either specific attorney client communication or attorney work product. It
2Because of the ongoing COVID-19 pandemic, this hearing was conducted by video conference.
While Defendant did not sign a written waiver of personal appearance, he did agree to waive personal
appearance for the purpose of the hearing on the instant Motion. Defendant did specifically reserve his
right to personal appearance for all future proceedings. On May 4, 2020, the Government, through email
communication with the Court was informed of the upcoming ex parte hearing and indicated it did not
desire to file any response to Defendant’s Motion for Ineffective Counsel.
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is clear from the statement of Defendant and the Response of Counsel, that the allegations of
ineffective counsel have no basis in fact. Counsel has conducted a thorough investigation of this
case. A review of the Indictment here (ECF No. 10) shows three counts alleging violation of
Federal criminal law.3 For each of the three counts, the Indictment sets out in a clear fashion the
crime charged, the essential elements of the crime, and is signed by both the foreperson of the Grand
Jury and the Assistant U.S. Attorney prosecuting the case. The Indictment is not flawed. Counsel
has discussed possible trial strategy, possible defenses, and the potential for a change of plea with
Defendant. Counsel has undertaken extensive plea negotiations with the Government on
Defendant’s behalf and communicated the same to Defendant. Finally, Counsel represents to the
Court that his case load is reasonable, well managed and he stands ready to fully represent Defendant
in this case.
2. Discussion:
A motion for new counsel is committed to the sound discretion of the trial court. See United
States v. Webster, 84 F.3d 1056, 1062 (8th Cir.1996). To prevail on a motion for new counsel, a
defendant must show “justifiable dissatisfaction” with appointed counsel. United States v. Boone,
437 F.3d 829, 839 (8th Cir. 2006). “Justifiable dissatisfaction” sufficient to warrant new counsel
includes “a conflict of interest, an irreconcilable conflict, or a complete breakdown in
communication between the attorney and the defendant.” United States v. Exson, 328 F.3d 456, 460,
(8th Cir.) cert. denied, 540 U.S. 1011 (2003). “The court must conduct an adequate inquiry into the
nature and extent of an alleged breakdown in attorney-client communications.” United States v.
Barrow, 287 F.3d 733, 738 (8th Cir.), cert. denied, 537 U.S. 1024 (2002).
3Count 1 charges Defendant with violation of 18 U.S.C. § 922(g), being a prohibited person in
possession of a firearm. Count 2 charges Defendant with violation of 21 U.S.C. § 841(a), possession of
less than 50 kilograms of marijuana. Count 3 charges Defendant with violation of 18 U.S.C. § 924(c),
possession of a firearm in furtherance of a drug trafficking offense.
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“The defendant's right to counsel ... does not involve the right to a ‘meaningful relationship’
between an accused and his counsel.” United States v. Swinney, 970 F.2d 494, 499 (8th Cir.1992),
citing Morris v. Slappy, 461 U.S. 1, 13–14 (1983). Thus, frustration with appointed counsel's
performance or disagreement with counsel's tactical decisions is not justifiable dissatisfaction. “The
proper focus in evaluating claims of dissatisfaction with counsel is on the quality of advocacy.”
Exson, 328 F.3d at 460. The fact that counsel is on friendly terms with the prosecutor, that counsel
refuses to file motions which he considers baseless, or that a defendant is generally dissatisfied with
counsel’s performance, are not sufficient reasons to warrant granting a motion for new counsel. See
id.
In this case, it is clear Defendant is unhappy with his situation generally. However, his
Counsel did not create the facts of this case. Counsel has properly refused to file a motion to dismiss
the Indictment as any such motion would almost certainly be denied as baseless. There is no conflict
of interest preventing Counsel from representing the Defendant here. Counsel is an assistant Federal
Defender for the Western District of Arkansas. As such, his sole job is defending persons such as
the Defendant who are charged with crimes in Federal Court in this District. Further, there has been
no breakdown in communication between Defendant and Counsel. Rather, Defendant does not like
the information Counsel has presented to him: the strength of the Government’s case, the nature of
the plea bargain offered by the Government, and the likelihood the Government will obtain a
conviction here. These reasons are not “justifiable dissatisfaction” sufficient to require the Court
to appoint new counsel.
Defendant is entitled to competent counsel. Defendant is not entitled to counsel he likes,
counsel he agrees with, counsel who tells him what he wants to hear, or counsel of his choice. He
has been appointed and is represented by very competent counsel. The pro se Motion for New
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Counsel should be denied.
Counsel has also filed a Motion to Withdraw as Counsel based on Defendant’s statement he
has lost faith in appointed Counsel. ECF No. 28. For the same reasons set forth above, this Motion
to Withdraw should be denied.
3. Conclusion:
IT IS ORDERED Defendant’s pro se Motion for Ineffective Counsel (ECF No. 22) and
Counsel’s Motion to Withdraw (ECF No. 28) are in all respects DENIED.
While Defendant’s Motion for new counsel is denied, the Court advises Defendant that he
may proceed pro se in this matter and represent himself if he so desires. Should Defendant wish to
proceed pro se and represent himself he must notify the Court in writing of his desire to do so. The
Court does not encourage Defendant to proceed pro se.
ENTERED this 5th day of May 2020.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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