                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2002

USA v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2342




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"USA v. Brown" (2002). 2002 Decisions. Paper 426.
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                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 01-2342


                     UNITED STATES OF AMERICA

                                v.

               H. KAREN BROWN a/k/a HYACIENT BROWN,

                         Hyacient Brown,

                                         Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF DELAWARE
                  (D.C. Crim. No. 99-cr-00066)
        District Judge:   Honorable Joseph J. Farnan, Jr.
                           ____________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                          July 16, 2002
         Before:   McKEE, WEIS, and DUHı* Circuit Judges.

                      (Filed: July 23, 2002)


                             OPINION



          * The Honorable John M. Duh, Jr., United States Senior Circuit Judge,
United States Court of Appeals for the Fifth Circuit, sitting by designation.


WEIS, Circuit Judge.
          In October 2000, a jury convicted defendant of one count of conspiracy to
import cocaine and one count of conspiracy to import hashish. The District Court
sentenced her to 151 months imprisonment and three years of supervised release. The
sole challenge raised in this appeal is to the trial judge’s refusal to appoint new counsel
to represent defendant during her sentencing proceeding.
          Although sentencing was to have taken place in February, the district judge
granted a continuance, rescheduling the proceeding for May 16, 2001. In a letter to the
Court dated May 11 of that year, defendant requested that an attorney from the public
defender’s office be appointed to represent her at sentencing, rather than her retained
counsel. She complained that she had no money to pay the fee requested by her private
attorney, nor the funds necessary to obtain a psychiatrist to testify in support of her effort
to reduce her sentence under a theory of diminished capacity.
          At the sentencing hearing, the District Court invited defendant to explain
her dissatisfaction with her attorney’s representation. She testified that counsel had not
visited her in prison to discuss her sentence and that he did not adequately advise her
before her trial began that pleading guilty would result in a lower sentence. She also
complained that he had asked for additional fees in response to her request to hire a
psychiatrist in support of her diminished capacity argument.
          Counsel responded that he had visited defendant and, at her request, had
consulted a psychiatrist and advised defendant that the fees for that expert’s testimony
would be approximately $7,000. Although defendant had previously stated that her ex-
husband would provide the money, apparently that assurance proved not to be correct.
          Defendant also complained that her counsel refused to attend her post-trial
meetings with the prosecutor, during which she disclosed information in hopes of
securing a sentence reduction. Although nothing defendant told the prosecution during
these "proffer" sessions had been of assistance, the United States Attorney advised the
judge that he would be willing to meet with the defendant post-sentencing to discuss her
further cooperation.
          After an extended hearing, the district judge found that defendant would
not be unduly prejudiced by the continued representation of her retained attorney and had
not established good cause to substitute another lawyer at that point.
          Turning to the matter of sentencing, the defendant and her counsel
contended that the pre-sentence report mistakenly included a past arrest. The Court
withdrew that item from the sentence calculation, thereby reducing the range to 121 to
151 months. The judge remarked that defendant was involved at a high-ranking level of
drug distribution, recruiting people at the low end of society to work for her at great risk
to them. He continued, "I’m going to take you out of society for as long as I can," and,
accordingly, sentenced her to 151 months imprisonment.
          After sentencing, the Court appointed the federal public defender to
represent defendant on this appeal. She now contends that the District Court erred as a
matter of law in refusing a continuance and appointment of new counsel, or, in the
alternative, abused its discretion in the circumstances.
          Defendant argues that the District Court improperly relied on United States
v. Welty, 674 F.2d 185 (3d Cir. 1982), rather than United States v. Goldberg, 67 F.3d
1092 (3d Cir. 1995). We find no merit to this argument; the two cases are entirely
consistent in their approach. Indeed, Goldberg affirmed the continued vitality of the
Welty holding, but cautioned courts to be mindful of the countervailing government
interests involved where a defendant files a last-minute motion to substitute counsel.
          Both Goldberg and Welty recognize the duty of the trial judge to inquire as
to the reason for the defendant’s dissatisfaction with counsel and determine whether
good cause exists for granting a continuance and substituting another lawyer. Good
cause, according to these cases, would include a conflict of interest, a complete
breakdown in communication, or a defendant’s irreconcilable conflict with his attorney.
Goldberg, 67 F.3d at 1098; Welty, 674 F.2d at 188.
          In the case before us, the district judge allowed both defendant and counsel
to explain why the dispute had arisen. After hearing considerable testimony from both,
he found no conflict of interest, nor any breakdown in counsel’s performance or
communication that was unduly prejudicing defendant. He concluded, therefore, that
defendant had not satisfied Welty’s good cause standard. We review that determination
for clear error, Goldberg, 67 F.3d at 1098, and find none.
          Defendant’s complaints about her trial attorney’s conduct were not
particularly relevant to the sentencing hearing. Indeed, counsel successfully argued
during that proceeding that part of the pre-sentence report was erroneous, and the District
Court reduced her sentencing range accordingly,
          It appears that the request for the appointment of a public defender was
substantially motivated by defendant’s unexpected inability to pay for a psychiatrist to
testify that she should be granted a downward departure based on diminished capacity,
pursuant to section 5K2.13 of the Sentencing Guidelines.
          That provision allows district courts, in their discretion, to make a
downward departure from the applicable guideline range if the defendant committed the
crime "while suffering from a significantly reduced mental capacity." U.S.S.G.
5K2.13. This discretion is not available, however, if the reduced mental capacity was
caused by defendant’s voluntary use of drugs, if the offense involved actual violence or a
serious threat of violence, or if the defendant’s criminal history indicated a need for
incarceration in order to protect the public. Id. Moreover, a court need not hear expert
testimony to establish diminished mental capacity where either the second or third
element negating the court’s discretion is present. United States v. Cravens, 275 F.3d
637, 640-41 (7th Cir. 2001).
          Although not formally presented with a section 5K2.13 motion for
downward departure, the Court was aware of the defendant’s history of mental health
difficulties. The pre-sentence report noted that she had been admitted to Crozier Mental
Center in Chester, Pennsylvania, in 1987 and 1990 following bouts of depression and
attempted suicide. Antidepressant medications were prescribed and defendant had not
undergone mental health treatment since 1991.
          Indeed, defendant had apparently been well enough to carry on two jobs
during the 1990s. In addition to graduating from cosmetology school in 1990 and
carrying on a hair styling business, she also obtained work through a temporary
employment agency.
          It was the defendant’s "serious involvement" in a "pretty sophisticated"
criminal operation, and her recruitment of "the very edge of the low end of society" to
work for her, that persuaded the district judge to remove defendant from society for as
long as possible. Noting that "what you were importing into this country is what kills
kids every single day," the Court was obviously motivated by a desire to protect the
public. We are satisfied that even if defendant had formally moved for a section 5K2.13
downward departure, the motion would have been denied.
          Finding no legal error or abuse of discretion, we will affirm the judgment
of the District Court.
______________________________
TO THE CLERK:

          Please file the foregoing Opinion.



                                     /s/ Joseph F. Weis
                              United States Circuit Judge
                              July 22, 2002


          TO:       Marcia Waldron, Clerk
          U.S. Court of Appeals

          FROM:     Judge Weis

          RE:       USA v. H. Karen Brown, No. 01-2342


Dear Ms. Waldron:

           Please file the attached Not Precedential Opinion in the above case,
together with the Judgment. The signed originals are being mailed to you this date.
Thank you.

                              Sincerely,



                              Joseph F. Weis, Jr.
                              United States Circuit Judge



          cc:       Judge McKee
          Judge Duh
          Pacrats
