United States District Court, D. Arizona
ORDER
Hornable David C. Bury United Stated District Judge
The
Government asks the Court to reconsider its ruling granting
Defendant's Motion to Suppress Evidence for violation of
the Sixth Amendment to the United States Constitution. The
Defendant has filed a Response, and the Government seeks
leave to file a Reply. The Court has reviewed the transcript
of record for the interrogation and from the evidentiary
hearing on the Defendant's pretrial motions to suppress
for violations of both the Fifth and Sixth Amendments. The
Court grants the Government's Motion for Reconsideration
and denies the Defendant's Motion for Suppression for
Sixth Amendment violations.
At the
outset, the Court notes that motions to reconsider are
appropriate only in rare circumstances: if the Court
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J, Multnomah
County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir.1993). A motion for reconsideration should not be used to
ask a court “to rethink what the court had already
thought through, rightly or wrongly.” Above the
Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99,
101 (E.D.Va.1983). The Court grants the Government's
Motion for Reconsideration to avoid a manifest
injustice.[1] The Court has reviewed the transcript from
the interrogation carefully and believes that its
interpretation of its tenor was accurate, but what was
actually said and what actually happened was that Heraclio
asked to have “my attorney” present and when
Pimentel arrived, Heraclio did in fact speak with him
privately and did in fact answer questions upon the advice
and with the assistance of Pimentel. This was enough for the
Court to find that there was no violation of the Fifth
Amendment. The Court finds the Government's argument
persuasive that this must also be enough to satisfy the Sixth
Amendment.
The
Defendant replies: no, as this Court said the two interests
differ and it cannot be true as the Government asserts
“that any ‘lawyer' such as Pimentel Ramirez,
who the government must concede is not admitted to practice
in any jurisdiction in the United States, regardless of
qualifications, education or experience, can serve the
important Sixth Amendment protection of the United States
Constitution.” (Response (Doc. 788) at 2.) But this is
not the Government's argument. On reconsideration, the
Government argues that Heraclio chose Pimentel to assist him
in his defense. This is consistent with this Court's
finding regarding the Fifth Amendment claim. The Court found
that the record reflected Heraclio asked for “my
attorney” and by his words and actions of proceeding
with the assistance of Pimentel, and more so by his lack of
any objection or any evidentiary showing that Pimentel was
not who he was referring to when he said “my attorney,
” the Court found the Fifth Amendment satisfied. This
same finding must apply to the Sixth Amendment. It was not
just any attorney: Heraclio asked for “my
attorney” who this Court found was Pimentel. In other
words, Heraclio chose Pimentel to be his attorney. This
finding of fact must apply equally to both the Fifth and
Sixth Amendment analysis.
When
Heraclio invoked his right to counsel for his defense, he
chose an attorney, Pimentel. The Supreme Court has held that
an erroneous deprivation of a criminal defendant's choice
of counsel is a violation of the 6th Amendment
right to counsel. United States v. Gonzalez-Lopez,
548 U.S. 140 (2006). The Supreme Court in
Gonzales-Lopez reversed a criminal conviction where
the trial court erred in denying a defendant his choice of
counsel. The Court explained that the right to select counsel
of one's choice is not derived from the Sixth
Amendment's purpose of ensuring a fair trial; [i]t has
been regarded as the root of the meaning of the
constitutional guarantee.” Id. at 147-148
(citing see Wheat v. United States, 486 U.S. 153,
159 (1988)), [2] cf. Powell v. Alabama, 287 U.S.
45, 53 (1932), [3] (further citations omitted). “Where
the right to be assisted by counsel of one's choice is
wrongly denied, [], it is unnecessary to conduct an
ineffectiveness or prejudice inquiry to establish a Sixth
Amendment violation. Deprivation of the right is
‘complete' when the defendant is erroneously
prevented from being represented by the lawyer he wants,
regardless of the quality of the representation he
received.” Id. at 148. “To argue
otherwise is to confuse the right to counsel of choice-which
is the right to a particular lawyer regardless of comparative
effectiveness-with the right to effective counsel- which
imposes a baseline requirement of competence on whatever
lawyer is chosen or appointed.” Id. at 148. In
Gonzales-Lopez, “the Government conceded that
the District Court erred [] when it denied respondent his
choice of counsel, ” and this fact alone established
the violation of the 6th Amendment right to
counsel of choice. Id. at 152.[4]
Here,
the Defendant expressly invoked his right to choice of
counsel under the 6thAmendment by asking for
“my attorney.”
Accordingly,
IT
IS ORDERED that the Motion for Reconsideration (Doc.
787) is GRANTED.
IT
IS FURTHER ORDERED RECONSIDERING Order (Doc. 786) as
follows: the Motion to Suppress for Sixth Amendment Violation
(Doc. 763) is DENIED.
IT
IS FURTHER ORDERED that the Motion for Leave to File
Reply (Doc. 789) is DENIED.
IT
IS FURTHER ORDERED that as soon as possible the
Defendant shall file any Response to the Government's
Motions In Limine which were not previously responded to
because of this Court's now reconsidered decision to
suppress the interrogation, especially the Government's
intention to introduce prior bad acts admitted by the
Defendant during the interrogation.
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Notes:
[1] The Government is correct that the
Court considered issues not urged by the Defendant in his
suppression motion, (Motion for Reconsideration (Doc. 787) at
4, 8-10), without affording the Government an opportunity to
address these issues except upon reconsideration-which it did
...