United States v. Glover

8 F.4th 239

UNITED STATES of America, Plaintiff – Appellee,

v.Tekoa Tobias GLOVER, Defendant – Appellant.

No. 19-4801

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: August 9, 2021

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellant. Ezra Addison Gantt, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and QUATTLEBAUM, Circuit Judges.

Remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Keenan concurred. Judge Quattlebaum concurred in the judgment and wrote a concurring opinion.

GREGORY, Chief Judge:

Tekoa Glover raises two independent claims for relief from his mandatory-minimum, 120-month sentence following his guilty plea: First, he argues that we should vacate his conviction and remand this case for a hearing on whether the government wrongly seized untainted assets needed to hire the counsel of his choice. Second, he argues that his counsel should have been substituted at his plea withdrawal hearing because his attorney was laboring under a conflict of interest. A prior decision of this Court forecloses Glover's first claim. But we agree with Glover that his attorney had a conflict of interest at his plea withdrawal hearing and that substitute counsel should have represented him there. We accordingly remand this case for a plea withdrawal hearing with new counsel.

***

Glover appeals his sentence for conspiracy to possess with intent to distribute 500 grams or more of a drug containing cocaine, heroin, fentanyl, methamphetamine, and marijuana; and conspiracy to conduct financial and monetary transactions involving proceeds of unlawful activity. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)–(D) ; 21 U.S.C. § 846 ; 18 U.S.C. § 1957. Pursuant to a plea agreement, Glover pleaded guilty to two of five counts in a third superseding indictment before being sentenced.

When he was first facing charges, and long before he pleaded guilty, Glover attempted to hire an attorney in Atlanta to represent him. Glover's friends and family sent the attorney tens of thousands of dollars as an advance for his services. But instead of using the funds to prepare Glover's defense (or returning them), the attorney sent them to the Drug Enforcement Administration. The attorney apparently believed the funds were drug proceeds. The government subsequently seized the funds under 21 U.S.C. §§ 881(a)(6) (subjecting to seizure and forfeiture funds traceable to drug proceeds).

Immediately and persistently, Glover began filing pro se motions arguing that the funds were not tainted; that he could only hire counsel with the seized funds; and that he was entitled to counsel of his choosing if he could afford it. See J.A. 29–32; 34; 39; 61. During this period, Glover's relationship with his first appointed lawyer deteriorated, and the district court assigned him new appointed counsel, Hank Ehlies. Both Glover and Ehlies requested a hearing pursuant to United States v. Farmer , 274 F.3d 800 (4th Cir. 2001), on the subject of the seized funds. Thereafter, the government filed a response titled "Possible Farmer Hearing Concerning Seizure of Assets," which expressly noted that "a hearing pursuant to United States v. Farmer ... might be necessary in order to confirm the propriety of any seizures in this case." J.A. 140.

Instead of setting such a hearing, the district court held a hearing five months after Glover's first Farmer request focused in relevant part on Glover's frequent pro se motions and whether Glover wanted to continue to be represented by counsel or represent himself—something Glover persistently declined to do. The district court stated that it was "not going to get into" the Farmer issue and would not appoint new counsel. J.A. 161. For his part, Glover continued to contend that the funds were inappropriately seized and that the seizure was interfering with his right to counsel, but the Court made clear that it would not address the issue unless Glover chose to represent himself. Glover responded:

To me, it feels like my lawyer is not working for me. ... I am still pushing to the point that I want to be represented by counsel of choice, and the only way we can get to that aspect of the case is [to] have a hearing about the money. I think that without that, I am still forced to keep Mr. Ehlies because I am not prepared, I am not knowledgeable enough [about] the system to be coming in court fighting against everybody.

J.A. 166–67.

Glover pleaded guilty three days later. J.A. 174. He had an extensive Rule 11 colloquy that included the following exchange:

Q. Are you satisfied with the services of your attorney?

A. Yes.

Q. Have you had enough time to meet with your lawyer and to discuss your case?

A. Yes, sir.

Q. Has your attorney advised you of your rights and explained the court process to you?

A. Yes.

Q. Has your attorney explained the possible consequences that may take place as a result of this proceeding?

A. Yes.

Q. Have you told your attorney everything that you want to tell him?

A. Yes.

Q: Has your attorney done everything that you have asked him to do?

A. Pretty much.

Q. Is there anything that you would like for your attorney to do for you at this time before we proceed any further with your case?

A. No, sir.

Q. Do you authorize and request your attorney to speak on your behalf today?

A. Yes, sir.

J.A. 179–80.

The court accepted Glover's plea pursuant to a plea agreement. Relevant to this appeal, that agreement included the following language: "The Defendant ... waives the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceedings under 28 U.S.C. § 2255. This waiver does not apply to claims of ineffective assistance of counsel[.]" J.A. 220.

After the plea hearing but before sentencing, Glover filed a pro se motion requesting to withdraw his plea. Such requests are contemplated by the Federal Rules of Criminal Procedure, though a district court need only grant them if they are filed for a "fair and just reason." See Fed. R. Crim. P. 11(d)(2)(b) ("A defendant may withdraw a plea of guilty or nolo contendere ... after the court accepts the plea, but before it imposes sentence[,] if ... the defendant can show a fair and just reason for requesting the withdrawal."). Glover's motion contained numerous allegations of misconduct by Ehlies. Glover asserted (among other things) that his counsel told him to take the plea because refusing would "upset" and "offend" the judge and result in him receiving a life sentence. J.A. 230, 231. Glover also alleged that Ehlies indicated his defense would be severely hamstrung if he chose not to take the plea. Specifically, Glover alleged that Ehlies said he had not prepared for a suppression hearing that was scheduled to take place the day after the change-of-plea hearing, and that Glover would not be able to receive a continuance for Ehlies to prepare for the hearing if Glover decided not to take the plea. J.A. 231. Prior to sentencing, the court scheduled a hearing on Glover's plea withdrawal motion and other matters.

There, Glover requested new counsel and asserted that Ehlies had a conflict of interest in representing him in the hearing given his allegations. The district court declined to appoint new counsel, instead determining that Glover could either proceed pro se (which he again declined to do) or be represented by Ehlies. The district court stated:

[A] request for change in counsel cannot be considered justifiable if it proceeds from a transparent plot to bring about delay. ... [W]e have been over this numerous times, the Defendant is on his third lawyer. I have told him he is free to hire anybody he wants to hire, he has indicated to me that he does not want to represent himself. ...

The motion to relieve Mr. Ehlies and appoint substitute counsel is denied. And again, although I am repeating myself, there is no hybrid representation in this case.

J.A. 308.

Ehlies subsequently told the district court that his client's Rule 11 colloquy was appropriate and that a plea withdrawal hearing was not in Glover's best interest. He said that he had "considered that and his request, and I have looked through Rule 11, it is perfectly well done, and it is not in his best interest, and that is why I did not endorse or file such a motion." J.A. 309.¹ Ehlies went on to inform the district court that he could say more in a hearing under 28 U.S.C. § 2255 ; that there were reasons that he believed the plea agreement was very favorable to his client; that those reasons were related at least in part to fact development in the case; and that he was not "surprised" that his client had agreed to the plea deal. J.A. 317–18.

The district court concluded that Glover's statements about Ehlies were not credible; that Glover's statements in the Rule 11 colloquy were credible; and that it would not grant Glover's pro se motion to withdraw the plea. J.A. 322–29. This appeal followed.

I.

Glover first argues that his conviction should be vacated and this case remanded for the Farmer hearing that he requested so many times below. "[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire." Luis v. United States , ––– U.S. ––––, 136 S. Ct. 1083, 1090, 194 L.Ed.2d 256 (2018) (plurality op.); see also id. at 1096 (Alito, J., concurring) (agreeing that "a pretrial freeze of untainted assets violates a criminal defendant's Sixth Amendment right to counsel of choice"). When a defendant sufficiently alleges that the government may have wrongly seized assets needed to hire counsel of choice, due process requires a hearing where the defendant may prove by a preponderance of the evidence that the seized...