                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                  JUL 8 2002
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.

 ROBERTO RAMOS, (originally indicted                         No. 00-5089
 as Roberto Ramos then amended to reflect               (D.C. No. 99-CR-66-C)
 true name of Roberto Rivera Ramos in               (Northern District of Oklahoma)
 California) a/k/a Robert Rivera Ramos;
 a/k/a Robert Ramos,

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY,
Circuit Judge


      A jury sitting in the United States District Court for the Northern District of

Oklahoma convicted Roberto Ramos (“the defendant”) of conspiracy to possess with an

intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 and 21 U.S.C. §

841(a)(1) and (b)(1)(A)(ii) and (viii). The defendant was later sentenced to imprisonment



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
for 235 months, five years supervised release, and a $100 special monetary assessment.

The defendant appeals his conviction and sentence. On appeal, counsel raises one ground

for reversal, which he frames as follows: “The district court erred when it failed to inquire

into the possibility of a conflict of interest between Ramos and his appointed trial counsel

prior to trial.” In this regard, we find no reversible error, and therefore affirm.

       Since the sufficiency of the evidence is not challenged on appeal, we need not

detail the evidence adduced by the government at trial. It is sufficient for present

purposes to simply state that it was the government’s theory of the case that the defendant

was a “mule” or courier of methamphetamine from suppliers in California for delivery to

mid-level drug dealers in the Tulsa, Oklahoma, area, and then he collected cash payments

from the dealers and returned the cash thus received to his suppliers in California.

       On June 21, 1999, the defendant appeared before a Magistrate Judge with a court

appointed attorney (Gordon S. Harman (“Harman”)) and he entered a plea of not guilty.

The district court received a letter, dated July 15, 1999, from defendant requesting a new

attorney. (The letter itself is apparently not in the record on appeal.) On July 20, 1999,

Harman filed a motion with the district court to withdraw as defendant’s attorney, stating

therein that the “defendant has demanded a replacement attorney and refuses to discuss

the case against him since learning that his attorney [Harman] cannot guarantee him a

specific and/or certain sentence upon entering a plea in the case.” On the face of that

motion, the district court on July 22, 1999, wrote “Motion to Withdraw as Counsel


                                             -2-
Denied.”

       On July 29, 1999, the district court received a pro-se “Motion to Replace Counsel”

from the defendant, and as grounds therefor he wrote as follows:

                                       - - - - Facts - - - -
              (1) Counsel Gordon S. Harman has been asked for lab results
              of the drugs. He stated it does not matter, USSC states that
              the type of drug is used to base your time in the Guidelines.
              My attorney has offered me a plea bargain. This is ineffective
              do to lab results.
              (2) I have asked my attorney to remove me from the
              inditement and be placed on a separate inditment alone.
              Being I did know nothing of this. He said this can not be
              done. I fill my counsel is not working for my behalf, due to a
              plea bargain.
              (3) I have asked counsel for lab reports a numberous amout of
              times he states that this does not matter.
              (4) My attorney has failed to file any motions to supress. I fill
              he has not represented me in this case. Its possible for a plea
              bargain to be made in this case but will not be able to happen
              with this counsel , and will not have a fair trial due to counsel
              not filing proper motions on time.
              Werefore Defendant prays that the court will remove counsel
              at this time and grant motions to be filed.

       On August 17, 1999, defendant was arraigned before a Magistrate Judge on a

superseding indictment, his attorney, Harman, being present, at which time defendant

pleaded not guilty and asked that a new attorney be appointed. On August 20, 1999,

defendant filed another pro se “motion to withdraw attorney,” in which he claimed that

Harman had “lied” to him and was “work[ing] with the prosecution.” That motion was

denied on September 30, 1999. On August 26, 1999, Harman filed a second “motion to

withdraw as attorney of record,” stating, inter alia, that defendant had requested him to

                                            -3-
arrange for a plea bargain but had insisted that he be given a “guarantee” of a “specific

and/or certain sentence upon entering a plea in this case.” That motion was denied by

minute order on September 7, 1999.

       Some time in August, 1999, the district court apparently made a phone call to the

Federal Public Defender’s office and asked that office “to look into the matter to try to

determine if new counsel would be appropriate.” By an “after-the-fact” affidavit filed on

January 3, 2001, by the Public Defender, he stated that, upon the telephone request of the

court, he and Harman had conferred with defendant for several hours in the local jail on

or about “late August or early September [1999]” about the matter of new counsel and he

concluded his affidavit with the following comment:

                     5. As a result of meeting with Mr. Ramos and
              discussing his grievances, I concluded that the problem was
              not that irreconcilable differences existed between Mr. Ramos
              and Mr. Harman but rather that Mr. Ramos was frustrated
              about the potential sentence he was facing should he be
              convicted and the failure to achieve a plea agreement that
              would ensure a sentence that Mr. Ramos believed was
              appropriate. Mr. Harman appeared to have done as much as
              possible on Mr. Ramos’ behalf and that there was no reason to
              believe Mr. Ramos’ assertions that Mr. Harman had failed to
              do certain things, such as provide copies of the discovery
              materials. I reached the conclusion that the same issues
              would exist even if new counsel was appointed.

                      6. After the meeting, I then contacted Judge Cook and
              informed him of what had happened and of my impressions
              regarding the attorney-client relationship. While Mr. Ramos
              still wanted new counsel, it did not seem to me that
              substitution of counsel would solve the problems raised in the
              motions. Rather, Mr. Ramos would still want a plea

                                            -4-
             agreement that the government was not going to offer and
             thus new counsel would be unable to obtain, which was my
             impression was the reason for Mr. Ramos’ displeasure with
             Mr. Harman.

      A hearing was held on September 30, 1999, at the conclusion of which the district

court, inter alia, denied all pending motions for new counsel. During that hearing,

Harman advised the court as follows:

             THE COURT: Yes, Mr. Harman?
             MR. HARMAN: Not necessarily a matter of legal issue, but I
             think I’m obligated to advise the Court of some facts in regard
             to Mr. Ramos since we’ve had some problem in his
             understanding the guidelines and how the process proceeds.
                    I want to advise the Court that I have reviewed all of the
             discovery information that the government has provided. I
             have made copies of everything there that involves or pertains
             to Mr. Ramos in addition to some documents that do not; have
             provided him copies of those, some of which I provided very
             early on, within the first couple of weeks, and as they became
             available and as the government developed those, provided
             others, including copies of transcriptions of the tapes,
             telephone conversation, wires, everything involved. I
             provided him a copy of a tape recorder to listen to the tapes
             while in custody.
             THE COURT: Copy of a tape recorder to listen to them?
             MR. HARMAN: Yes, sir, I made special provisions with the
             –
             THE COURT: I can understand copies of tapes, but I never
             heard of a copy of a tape recorder.
             MR. HARMAN: I’m sorry. I provided a tape recorder. I
             misspoke. Provided him a tape recorder for a short period of
             time. It malfunctioned in that the batteries died. I offered to
             replace those, and he said it wasn’t necessary, he had heard
             from other inmates what was on them, he knew what was on
             the tapes and they correlated with the transcripts. Therefore I
             feel he is well informed as to the discovery that the
             government has.

                                           -5-
                     I have gone over the guidelines with him more than
             once, showing him an anticipated end result of the guideline
             sentencing upon plea, which was discussed early on. I also
             provided him a guideline schematic of what he could expect
             as a sentence if he were to go to trial and be convicted, and
             told him at the same time that if he went to trial and was not
             convicted, of course it wouldn’t apply.
                     I saw nothing in the discovery that compelled me to
             file any motions since everything was pretty plain. He made a
             confession early on to certain matters which were something I
             felt couldn’t be controverted, so I saw no need for motions,
             although the motions were considered at length numerous
             times, and rather than file frivolous motions and take up the
             Court’s time, none were filed because none were appropriate.
                     But I want the Court to know that in light of the things
             that have arisen with Mr. Ramos, that every effort has been
             made to inform him.
             THE COURT: This letter was sent last July.
             MR. HARMAN: Yes, sir.
             THE COURT: And it probably was when matters hadn’t been
             completed.
             MR. HARMAN: As Your Honor knows from my motion to
             withdraw, his initial problem was he didn’t want to cooperate
             in a Rule 11 conference unless we could guarantee a sentence.
             That was attempted three times, aborted twice, and we did get
             there the third time, and that was, I felt, somewhat successful
             on his part in that he revealed information. However, it was
             rejected by the government.
             THE COURT: Thank you.

      On October 21, 1999, the district court received an additional letter from

defendant, still requesting a new attorney. Jury trial thereafter ensued on November 16,

17, and 18, 1999, with Harman representing defendant.

      At the outset of our discussion it should be emphasized that we are here dealing

with a pretrial request that court appointed counsel be removed from the case and new


                                           -6-
and different counsel be appointed. We are not here concerned with a post trial

proceeding where a defendant claims that he had ineffective assistance of counsel

because of a conflict of interest.

       The Sixth Amendment guarantees one’s right to have the assistance of counsel in a

criminal proceeding. This applies to both the rich (persons who can pay for their own

counsel) and the poor (persons who cannot pay). The right to counsel means the right to

“effective” assistance of counsel. An attorney who has a “conflict of interest” vis-a-vis

his client’s interest, is presumptively “ineffective.” Holloway v. Arkansas, 435 U.S. 475,

487-91 (1978) and Selsor v. Kaiser, 81 F.3d 1492, 1497 (10th Cir. 1996). A conflict of

interest most often occurs when one attorney is representing two or more defendants who

themselves have conflicting interests. But that is not the only fact situation in which there

can be a conflict of interest. Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988).

Conceivably there could be a conflict of interest between the attorney and the client.

When the matter of a probable risk of conflict of interest is raised before trial, a court has

a duty to make appropriate inquiry to ascertain whether there is such a conflict of interest

as would require withdrawal of counsel and appointment of new counsel or whether the

risk is too remote to require substitute counsel. Holloway, 435 U.S. at 484. A

personality conflict is not a conflict of interest. Hale v. Gibson, 227 F.3d 1298, 1313

(10th Cir. 2000).

       In the present case, the defendant and his attorney, Harman, who was appointed


                                             -7-
under the Criminal Justice Act, both advised the district court on several occasions of the

disagreement existing between the defendant and Harman. The main area of

disagreement, as we understand it, was the fact that the defendant, though not adverse to

entering into a plea agreement with the government wherein he would plead guilty to

some charges, wanted, in return, a “specific and/or certain” term of imprisonment set

forth in the agreement, and that when advised such was not possible, the defendant

refused to accept this fact. Counsel in his brief suggests that the defendant believed his

attorney was “colluding” with the prosecution. The defendant in one of his pro se pre-

trial motions did state that he believed Harman was “work[ing] with the prosecution.”

We note that most plea bargains require considerable negotiation between the prosecution

and defense counsel.

       Be that as it may, the district court in the present case thereafter requested the

Federal Public Defender to look into the matter and report back, which the defender did,

after checking with the prosecutor and after interviewing the defendant for several hours

in the presence of his appointed counsel. The defender memorialized the results of his

investigation in an affidavit which is a part of the record on appeal. Then on September

30, 1999, the district court held a hearing at which time defendant’s various motions for

substitute counsel and Harman’s several motions to withdraw were discussed, along with

other pending pre-trial matters. At that time Harman made a detailed statement to the

court as to the area of disagreement between defendant and himself. It was in this setting


                                             -8-
that the district court denied or perhaps reaffirmed its earlier denials of Harman’s motions

to withdraw and defendant’s motions for substitute counsel. As indicated, Harman

thereafter represented defendant at his trial on November 16, 17 and 18, 1999. At that

time, defendant elected not to testify and counsel called no witnesses. The defendant’s

theory of the case was that many of the government’s witnesses, who were co-

conspirators, had testified falsely in the hope of receiving favorable treatment at their own

sentencing.

       It is doubtful that defendant’s several motions for substitute counsel set forth a

colorable claim of a conflict of interest. But in any event, contrary to counsel’s

suggestion, the district court did make adequate inquiry into the matter and did not abuse

its discretion when it denied defendant’s motion for substitute counsel.1

       By post trial motion, the defendant claimed that Harman’s representation of him at

trial was ineffective. Hearing was held on that motion and the district court concluded

that Harman’s representation of defendant was not unconstitutionally ineffective.

Defendant has not appealed that ruling of the district court.




       1
        “We review a district court’s denial of a motion to appoint substitute counsel for
an abuse of discretion.” United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.
1999), citing United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992).

                                            -9-
Judgment affirmed.

                     Entered for the court,


                     Robert H. McWilliams
                     Senior Circuit Judge




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