United States of America v. Gary Hicks

United States Court of Appeals
For the First Circuit
No. 06-2731
UNITED STATES OF AMERICA,
Appellee,
v.
GARY HICKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Edward E. Eliot for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Sandra R.
Beckner, Assistant United States Attorney, were on brief, for
appellee.
June 26, 2008

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Because one of Hicks's contentions is that his guilty plea was 1
not voluntary and intelligent, we will note differing versions of
the facts as we relate them. We do not, however, express thereby
any opinion about the strength of Hicks's claim.
The parties disagree about whether the buyer was a "DEA agent" 2
or a "DEA informant," but the disagreement is not material to our
discussion.
The government asserts that the proposed plea deal would have 3
prevented the government from filing a sentence enhancement
information pursuant to 21 U.S.C. § 851. Hicks claims on appeal
that the nature of the deal is unclear.
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HOWARD, Circuit Judge. Gary Hicks pled guilty to two
counts of possession with intent to distribute cocaine base, in
violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B). He seeks to have
that guilty plea invalidated on a number of grounds, all of them
related to problems with his counsel and consequent irregularities
in the proceedings surrounding his plea and sentencing. We hold
two of his allegations meritless and two others better suited for
collateral proceedings. We therefore affirm the district court.
I. Facts1
The defendant was indicted for selling crack cocaine on
two occasions. Hicks's appointed counsel obtained a continuance 2
to review the discovery, which included videotape of the drug
transactions. Hicks received a proposed plea agreement from the
government, but it expired without his acceptance of the terms
proposed. There is some disagreement about the extent of Hicks's 3
discussions with his counsel about the plea agreement. Hicks
initially told the district court that counsel met with him at

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As noted below, during the plea colloquy, Hicks again 4
acknowledged that his counsel had reviewed the proposed plea
agreement with him prior to the day it expired.
Counsel said: 5
Early on during the course of my
conversations with this defendant, and because
of his lack of willingness to accept any of
the advice I have given him, I mentioned to
him that perhaps the thing I should do would
be to file a motion to withdraw.
In considering that myself personally, I
decided not to do that because I thought the
Court would be very reluctant to grant such a
motion. This afternoon when he was brought in
the courtroom, he asked me whether or not I
had made such a motion. I told him I had not.
Out of an abundance of caution and
because of his perceived distrust and lack of
cooperation with me and refusal to take my
advice, I would now make such a motion.
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10:30 in the morning saying the deal would be off the table at 4:00
that afternoon. On further questioning Hicks conceded that counsel
had gone over the plea agreement "very quickly" with him once prior
to that date. Defense counsel stated for the record that he had 4
met with Hicks and discussed the plea agreement three separate
times before the deadline passed. In any event, the plea offer
expired, the government filed an information, and the case was set
for trial.
On the day of jury empanelment, Hicks addressed the
court. He offered to waive his speedy trial right in order to
secure a continuance, but the motion was denied. His counsel moved
to withdraw. The district court questioned both Hicks and his 5
counsel about their relationship. Hicks said he was dissatisfied

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with counsel because of the short timeline for accepting or
rejecting the plea deal, and because of counsel's advice that he
accept the plea deal. The district court assured Hicks that his
counsel was "one of the most experienced criminal lawyers in the
entire state" and that "if [he] is giving you legal advice, you can
rest assured that he knows what he's talking about." The court
then denied the motion, saying, "[I]f the reason you're asking him
to get out of the case is because you don't agree with something
that was in the plea agreement, that's not a valid basis for me to
grant the motion." Jury empanelment proceeded without further
issue.
On the morning that the presentation of evidence was to
begin, Hicks once more expressed dissatisfaction with his counsel
and declared that he did not wish to go forward with the trial. On
further questioning by the court, Hicks asserted a conflict of
interest with counsel as well as a lack of confidence in counsel.
The district court put to Hicks that he had two choices: go to
trial with his appointed counsel or plead guilty without the
benefit of a plea agreement. Hicks consulted with counsel twice,
at his own request. Counsel stated that Hicks merely kept
repeating that he did not wish to go forward with the trial. Once
more the district court assured Hicks that his counsel was
competent, calling him "one of the five top criminal defense

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lawyers in the state." Hicks repeated that he did not have
confidence in his counsel. He elaborated:
I don't think he's properly prepared. I told
him several times of witnesses that he should
subpoena for this trial. He has not mentioned
one witness that I told him about. . . . He
hasn't even conferred with me on how he's
going to defend me. I think that's pretty
important. I think I should know how I'm
going to be defended in a trial that has to do
with me. He came to visit me Friday for four
minutes. Four minutes.
The district court then directed counsel to confer with
Hicks and explain how he intended to conduct Hicks's defense.
After this third conference, with Hicks still unwilling to proceed
to trial, the district court began the plea colloquy.
During the plea colloquy Hicks elaborated on his lack of
confidence in his counsel. He acknowledged that counsel had
presented the plea agreement to him on two occasions, and admitted
that "the plea agreement was, in turn, not that bad of a deal." He
explained that counsel did warn him that refusing the plea
agreement might double his sentence, but that counsel had not been
able to speak in concrete terms about the sentence Hicks might
face. The district court explained to Hicks that counsel was
right.
Although Hicks said of his counsel, "I don't blame him
for anything," later in the colloquy Hicks took issue with "the way
the message was being delivered." He said that although he had
been arrested on May 15, counsel did not visit him until "well

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after" June 26, despite what Hicks characterized as "continuous"
requests from Hicks's family members that counsel go and see him.
After the colloquy, the district court found Hicks's plea
to be knowing, voluntary and intelligent and entered a judgment of
guilty on both counts. Sentencing was scheduled for December 1,
2006.
At sentencing, the district court inquired as to several
objections Hicks made to the pre-sentence report. One of these
merits discussion here. Hicks, by himself, claimed that the plea
should be set aside as involuntary. His counsel stated he did not
know of any ground on which he could argue that the plea was
involuntary, and suggested that Hicks might wish to address this
himself. The district court treated this as a motion to withdraw
a guilty plea and denied it, reiterating that the guilty plea had
been knowing, voluntary and intelligent. After Hicks exercised his
right of allocution, the district court sentenced him to the
statutory mandatory minimum: incarceration for 120 months followed
by 8 years of supervised release.
II. Discussion
Hicks raises several claims on appeal. He contends that
the district court improperly participated in plea discussions by
vouching for defense counsel and asserting that whatever advice he
was offering was sound advice. In the specific context of this
case, Hicks argues, this amounted to judicial pressure to plead

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Hicks cites neither Federal Rule of Criminal Procedure 11 nor 6
any cases decided thereunder, but we take this to be his argument.
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guilty. He also makes a cluster of arguments that all relate to
the adequacy of his representation: that the district court should
have allowed his counsel to withdraw and appointed new counsel,
that counsel was ineffective, and that the guilty plea was
involuntary because counsel's lack of trial preparation coerced the
plea.
Our examination of the record convinces us that the
district court did not improperly participate in plea negotiations.
Nor did the district court abuse its discretion in refusing to
allow counsel to withdraw. The other claims, of coercion in his
plea and ineffective assistance of counsel, are properly brought in
a collateral proceeding; the record here is insufficient to find
inadequate representation, which is the issue central to the
remaining claims. Consequently, we affirm the district court.
A. Improper judicial participation in plea negotiations
Hicks claims that the district court improperly
participated in plea negotiations. He argues that the district 6
court indirectly recommended that Hicks plead guilty when it told
Hicks that whatever advice counsel was giving him was good advice.
Federal Rule of Criminal Procedure 11 governs plea
negotiations. It permits the government and defendant's counsel
to discuss a plea agreement and explicitly provides, "The court

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Hicks does not venture beyond asserting that the district 7
court's comments amounted to "judicial coercion": he cites no
relevant rule, and only one case. But we sketch the contours of
our thinking in order to put to rest the idea that any impropriety
occurred.
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must not participate in these discussions." Id. at § 11©). In
this case, however, the district court's comment came in the
absence of any plea agreement discussions. Indeed, defense counsel
admitted that the proposed plea agreement had "gone by the boards
weeks ago." Consequently, the strictures of Rule 11(c) are not
applicable.
Judicial coercion of defendants to plead guilty, even in
the absence of plea agreement discussions, is a matter of serious
concern. Hicks cites Longval v. Meachum, 693 F.2d 236 (1st Cir. 7
1982), for the proposition that a district court can taint
proceedings by impermissibly pressuring a defendant to plead
guilty. That case held that comments from the bench that could
have created a "reasonable apprehension of vindictiveness" required
remand for resentencing after the defendant declined the trial
judge's invitation to plead, was convicted by a jury, and sentenced
much more harshly than the plea agreement would have provided. Id.
at 237 (quoting Blackledge v. Perry, 417 U.S. 21, 28 (1974)).
Here, however, there is nothing to support that kind of
apprehension. Contrary to Hicks's assertion on appeal, the
district court did not tell Hicks he "should listen to [counsel's]
advice." Rather, the transcript reveals different language: "He's

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given you advice. You can rest assured it's sound and good legal
advice." Further, this was not in the context of whether to plead
guilty or proceed to trial: it took place immediately before jury
empanelment, with no deal on the table and no guilty plea on the
horizon. The context was a motion to withdraw, and Hicks was
explaining why he wanted new counsel. In this context, Hicks
offered his prior disagreement with counsel's advice about the plea
agreement as evidence that communications had broken down, and the
district court's response was addressed to that argument, not to
the merits of the expired plea deal, let alone to the merits of an
open plea no one anticipated.
B. Adequacy of counsel
Four of Hicks's claims on appeal boil down to an attack
on the adequacy of his representation: 1) his appeal of the denial
of counsel's motion to withdraw; 2) his ineffective assistance
claim based on a conflict of interest that allegedly arose when
Hicks refused his counsel's advice; 3) Hicks's assertion that a
failure to seek reinstatement of a lapsed offer for a plea bargain
was ineffective assistance of counsel; and 4) his contention that
the guilty plea was involuntary because it was coerced by counsel's
ineffective representation. The first of these we can resolve; the
others we will not address on direct review. We sketch Hicks's
asserted problems with his counsel before discussing each claim in
turn.

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Because we find Hicks's claim unavailing on direct review in 8
any event, we need not adopt the position, urged by the government,
that under the Tollett doctrine a guilty plea constitutes a waiver
of the right to appeal a motion for substitute counsel or a motion
to withdraw. See Tollett v. Henderson, 411 U.S. 258, 267 (1973)
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In general, although Hicks claimed his counsel was
unprepared, he offers only his observation that counsel had not
subpoenaed the witnesses Hicks had proposed. Without more, this
might reflect a difference of opinion about trial strategy, but not
a lack of preparation amounting to ineffective assistance. Hicks
alleges no admission by his counsel that counsel was in fact
unprepared. Nor did counsel represent to the court that he was
unready for trial. The district court noted that counsel had
represented Hicks ably at every step of the process up to trial.
Without specific, colorable allegations, Hicks could not convince
the district court that counsel was unready, nor can he convince
us. Hicks alleges that communication had broken down, but the only
breakdown on the record is that Hicks did not like the advice he
was getting. We address each of Hicks's specific arguments below,
but they all suffer from the same infirmity: there is no evidence
that his counsel failed in his duties.
First, Hicks argues that the district court should have
granted counsel's motion to withdraw. In our view, the district
court appropriately inquired of both Hicks and his counsel to
determine the nature and extent of the problem, and decided the
matter well within its discretion. In reviewing the denial of a 8

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(holding that a guilty plea waives later challenge to racial
composition of grand jury). The government urges us to follow the
trail blazed by the Ninth Circuit in United States v. Foreman, 329
F.3d 1037, 1038-39 (9th Cir. 2003). That case held that a guilty
plea constituted a waiver of the right to appeal a denial of a
motion for substitute counsel. But Foreman was careful to exclude
from its holding cases where the voluntariness of the guilty plea
was also attacked. Id. at 1039 ("[T]he right to appeal a pre-plea
motion for substitution is waived by an unconditional plea, unless
the plea itself is challenged." (emphasis added)). Hicks does
challenge the voluntariness of his guilty plea. These matters are
better left for collateral proceedings, but we note in passing that
the Sixth Amendment right to counsel is closely linked to the
guilty plea itself, and therefore this case presents a less
comfortable fit for the strictures of Tollett.
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motion for new appointed counsel, or a motion to withdraw in a case
with appointed counsel, we examine "(1) the timeliness of the
motion; (2) the adequacy of the court's inquiry into the
defendant's complaint; and (3) whether the conflict between the
defendant and his counsel was so great that it resulted in a total
lack of communication preventing an adequate defense." United
States v. Van Anh, 523 F.3d 43, 48 (1st Cir. 2008) (internal
quotation marks omitted) (quoting United States v. Allen, 789 F.2d
90, 92 (1st Cir. 1986)) (articulating test in the context of denial
of motion for new counsel); see United States v. Reyes, 352 F.3d
511, 515 (1st Cir. 2003) (applying same test for counsel's motion
to withdraw). Here, the motion was made the day of jury
empanelment, the district court conducted a thorough inquiry, and
the record does not show a complete breakdown of communication.
Accordingly, the district court did not abuse its discretion in
denying the motion to withdraw.

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Segarra-Rivera concerned only whether the district court erred 9
in refusing to hold an evidentiary hearing with new counsel on the
conflict-of-interest claim, and did not address the merits of the
claim. After remand and a hearing, Segarra abandoned his motion to
withdraw his guilty plea, and the district court cleared original
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Next, Hicks argues that his refusal to heed counsel's
advice to plead guilty created a conflict of interest that only
deepened every time Hicks expressed his dissatisfaction with
counsel. Due to this conflict of interest, Hicks claims, he did
not receive the effective representation that is his right under
the Sixth Amendment.
We have on occasion entertained such claims on direct
appeal, but only when facts point to specific, colorable evidence
of actual misconduct. See United States v. Segarra-Rivera, 473
F.3d 381, 385 (1st Cir. 2007) (direct review of conflict of
interest appropriate where there is a colorable claim of actual
misconduct). In Segarra-Rivera, for instance, the defendant
alleged that his guilty plea had been coerced by his counsel, who
had "ambushed" him with a visit from his tearful wife, refused to
leave without a signed plea agreement, and was wholly unprepared
for trial. Counsel then argued against his client's motion to
withdraw the guilty plea, pointing out flaws in the motion and
intimating that witnesses could prove his client's guilt. Id. at
383-84. We remanded for an evidentiary hearing on the conflict of
interest issue, relying on our conclusion that the misconduct
alleged was more than professional negligence. Because Hicks has 9

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counsel of any impropriety. United States v. Segarra-Rivera, 485
F. Supp. 2d 21, 22 (D.P.R. 2007).
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made no such showing, this claim must await a collateral
proceeding.
Hicks also confronts the adequacy of his counsel more
squarely in advancing two garden-variety ineffective assistance of
counsel claims. He claims that when he elected to plead guilty
after the jury had been empaneled the morning of trial, counsel
should have requested that the government again extend to Hicks its
original offer; he further claims that counsel should have filed a
formal motion to withdraw the guilty plea. These alleged lapses as
well must be presented first to the trial court for factual
development. Massaro v. United States, 538 U.S. 500, 505 (2003)
("[I]neffective-assistance claims ordinarily will be litigated in
the first instance in the district court, the forum best suited to
developing the facts necessary to determining the adequacy of
representation during an entire trial."). "In all but
extraordinary circumstances, . . . a claim of ineffective
assistance that is raised for the first time in this court will not
be entertained." United States v. Martins, 413 F.3d 139, 155 (1st
Cir. 2005). Although this is not an absolute rule, we are not
confronted here with one of the "cases in which trial counsel's
ineffectiveness is so apparent from the record that" the issue may
be decided on direct appeal. Massaro, 538 U.S. at 508.

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Finally, Hicks claims that because his counsel was
unprepared for trial, his guilty plea was involuntary and the
district court committed reversible error in finding otherwise, an
error the court compounded when it denied Hicks's motion to
withdraw his guilty plea at sentencing. This claim logically
depends on the allegations of misconduct, conflict of interest and
ineffective assistance in the other claims, and so must fare as
they do.
III. Conclusion
"'We have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court.'" United States v. Leahy, 473 F.3d 401, 410 (1st
Cir. 2007) (quoting United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993)). Hicks may choose to pursue his allegations that his
counsel was conflicted and ineffective in a collateral proceeding.
Regardless, on direct review, there is not enough to support his
claims. The district court neither abused its discretion in
denying counsel's motion to withdraw, nor improperly participated
in plea negotiations. Affirmed.

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