# United States v. Barbara Mouzin, United States of America v. Alfonso Carvajal

> Court of Appeals for the Ninth Circuit · March 18, 1986 · 785 F.2d 682

URL: https://www.frixlaw.com/law-library/cases/9474608

## Case

- **Full name:** UNITED STATES of America, Plaintiff/Appellee, v. Barbara MOUZIN, Defendant/Appellant; UNITED STATES of America, Plaintiff/Appellee, v. Alfonso CARVAJAL, Defendant/Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 18, 1986
- **Citations:** 785 F.2d 682; 20 Fed. R. Serv. 390; 54 U.S.L.W. 2533; 1986 U.S. App. LEXIS 23133
- **Precedential status:** Published
- **Opinion:** Dissent by Ferguson
- **Judges:** Sneed, Poole, Ferguson
- **Cited by:** 115 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474608

## How later opinions describe it (automated extraction)

- holding that the mere presence of a ledger in a co-conspirator’s residence could not “constitute an adoption of its contents,” and rejecting the proposition that “possession of a document is tantamount to an adoption of its contents”
- holding that representation by a lawyer suspended from practice by a state bar does not result in per se denial of the right to counsel, and requiring that a defendant show actual errors and omissions by counsel that prejudiced him
- noting this court is “constrained to defer to the district court’s reading [of the applicable general orders] to the extent that such a construction does not involve conflict with an order of this court, the Federal Rules of Civil Procedure, case or statutory law, or the Const…
- observing that suspension does not per se constitute ineffective representation and looking instead to counsel's trial performance

## Opinion text

FERGUSON, Circuit Judge,
dissenting from Part IV:
I would reverse Carvajal’s conviction because his right to Due Process and right to counsel were violated. When a district court and a criminal defense attorney have an in camera discussion about the attorney’s disbarment and its effect on his continued representation of the defendant, I believe that the defendant has the right to be informed and present. A criminal defendant’s constitutional right to be informed that his or her attorney has been disbarred from the trial court in which the prosecution is pending and the court to which any appeal would be made greatly outweighs the majority’s concerns of judicial convenience. I must therefore dissent.
I.
On March 15, 1983, this circuit permanently disbarred Carvajal’s attorney, Victor Palacios, for failing to meet deadlines in pending appeals, failing to prosecute an appeal, and writing a bad check to a court reporter. United States v. Cortes-Carvajal, No. 82-1700 (9th Cir. Mar. 15, 1983). Rule 2.6.2 of the Local Rules for the United States District Court for the Central District of California provides that the district court “shall immediately impose a like order” disbarring an attorney on receiving reliable information that another court or any administrative agency has disbarred the attorney. Despite the rule’s language giving automatic effect to disbarment, the district court permitted Palacios to continue practicing before it and complete the trial. When the court learned of the Ninth Circuit disbarment order, the district judge met with counsel, informed him of the order and the effect of the local rules, and warned him to take some action to appeal the circuit court’s order. He further stated that although Palacios would be permitted to continue with the trial, he was “under an obligation to talk to [his] client about it.” Despite the court’s warning, Palacios did not inform Carvajal of his disbarment. 1
*701 II.
The most obvious reason for reversing Carvajal’s conviction is that his Sixth Amendment right to counsel was violated. The right to counsel contains several guarantees, including the right to competent counsel, the right of a defendant to participate meaningfully in the defense and make important decisions, the right to receive important information, and the right to a loyal attorney, free from conflicting interests. The Majority misanalyzes this case by considering it only as a right to competent counsel situation.
One of the Sixth Amendment’s most fundamental guarantees is the right of a criminal defendant to representation by competent counsel. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052, 2063 , 80 L.Ed.2d 674 (1984); United States v. Tucker, 716 F.2d 576, 579 (9th Cir.1983). “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland, 104 S.Ct. at 2063 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275 , 63 S.Ct. 236, 240 , 87 L.Ed. 268 (1942)).
Equally important, however, is the defendant’s right to participate in the defense. The Sixth Amendment
does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ and who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’
Faretta v. California, 422 U.S. 806, 819 , 95 S.Ct. 2525, 2533 , 45 L.Ed.2d 562 (1975). The defendant’s right to participate in the defense includes the right to make important decisions, such as waiving attorney representation, see Faretta, 422 U.S. at 821 , 95 S.Ct. at 2534 , and waiving a jury trial, see United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985) (court must ensure defendant’s waiver of jury trial is made voluntarily, knowingly, and intelligently). The need to protect the individual’s role in the defense is punctuated by the fact that it is the defendant and no one else who confronts a loss of liberty. Faretta, 422 U.S. at 834 , 95 S.Ct. at 2540 .
The right to participate in one’s defense becomes meaningless without the concomitant right to be informed of important developments in the case. Without information, the defendant cannot make intelligent decisions. Courts have repeatedly recognized the need for meaningful communications between attorney and client. See, e.g., Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976) (sequestering defendant during recess between direct and cross-examination improperly interfered with right to counsel); *702 Mastrian v. McManus, 554 F.2d 813, 821 (8th Cir.) (recognizing right to private consultation with attorney), cert. denied, 433 U.S. 913 , 97 S.Ct. 2985 , 53 L.Ed.2d 1099 (1977); United States v. Allen, 542 F.2d 630, 633 (4th Cir.1976) (right to counsel violated when defendant denied consultation with attorney during recess), cert. denied, 430 U.S. 908 , 97 S.Ct. 1179 , 51 L.Ed.2d 584 (1977). Furthermore, courts have invalidated convictions of defendants incapable of communicating effectively with their attorneys regardless of the strength of the government’s case. See, e.g., Drope v. Missouri, 420 U.S. 162, 171 , 95 S.Ct. 896, 903 , 43 L.Ed.2d 103 (1975) (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”). 2
The constitutional right to counsel also imposes ethical obligations on attorneys. Rules of professional responsibility require an attorney to provide the client with all information needed to make decisions. See, e.g., Martin v. Texas, 694 F.2d 423, 425 (5th Cir.1982) (failure to inform client of right to appointed counsel on appeal constitutes ineffective assistance of counsel); Gairson v. Cupp, 415 F.2d 352, 353 (9th Cir.1969) (failure to inform client of right to appeal constitutes ineffective as-
sistance of counsel); Model Rules of Professional Conduct Rule 1.4; American Bar Association Standards for Criminal Justice, The Defense Function § 3.5(a) (1971) (“At the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant’s selection of a lawyer to represent him.”). The attorney also owes a duty of loyalty to the client. See, e.g., United States v. Alvarez, 580 F.2d 1251, 1256 (5th Cir.1978) (“[W]e have always considered the undivided loyalty of counsel as essential to due process.”); United States v. Jeffers, 520 F.2d 1256, 1262-63 (7th Cir.1975) (Sixth Amendment requires not only minimum competency but also “counsel whose undivided loyalties lie with his client”), cert. denied, 423 U.S. 1066 , 96 S.Ct. 805 , 46 L.Ed.2d 656 (1976). This duty of loyalty requires the attorney to place the client’s interests above the attorney’s personal or monetary interests.
The Majority reviews Carvajal’s claim under the traditional ineffective assistance of counsel standard. 3 The majority thus equates the seriousness of the ethical and constitutional violations involved with a counsel’s failure to call a witness, for example, or to object to an improper line of questioning. The right to be informed of disbarment strikes at more fundamental concerns than whether an attorney proved to be “incompetent.” 4
*703 Using the traditional ineffective assistance of counsel standard is inappropriate when the attorney’s actions, as here, threaten the foundation of the adversary process. The situation here more closely resembles a question of conflict of interest than one of effective assistance of counsel, because this case does not involve an assessment of whether the attorney performed competently. 5 As the court reasoned in Alvarez, 580 F.2d at 1256-57 (footnote omitted):
Unlike competency of representation, where an attorney’s conduct may fall anywhere along a continuum ranging from the incompetent to the superlative, conflict-laden representation is not susceptible of such fine gradations. Such representation is invidious, often escaping detection on review, and is tantamount to a denial of counsel itself.
An attorney’s refusal to disclose his or her disbarment to the client creates a conflict of interest, rather than being merely ineffective assistance of counsel. Withholding from Carvajal information that Palacios was disbarred so thoroughly violated Palacios’ ethical obligations that his representation became meaningless. This nondisclosure, probably more than any other act, illustrates the true allegiance of those attorneys who place their own financial reward above the duties they owe to their clients. This situation presents the worst sort of conflict of interest; attorney deception and self-interest surely destroy the fiduciary relationship with the client. This inherent violation of the Sixth Amendment’s right to counsel, present when a person masquerades as a practicing attorney, has prompted the two circuits addressing this issue to adopt per se rules about such attorney conduct. Both courts reversed a conviction under such circumstances, without requiring any showing of prejudice. Solina v. United States, 709 F.2d 160, 168 (2d Cir.1983) (reversing conviction despite overwhelming evidence of guilt); Harrison v. United States, 387 F.2d 203, 212 (D.C.Cir.1967), rev’d on other grounds, 392 U.S. 219 , 88 S.Ct. 2008 , 20 L.Ed.2d 1047 (1968). 6 When attorney misconduct is so severe as to offend one’s sense of justice or is so contrary to the notion of ethical behavior as to completely *704 undermine the trust relationship, reversal of a conviction should be automatic.
The Sixth Amendment guarantees more than a disbarred attorney must perform competently for a conviction to stand. Carvajal had a right to know of conversations between his attorney and the judge. The district court even recognized Palacios’ serious ethical obligations and instructed him to inform Carvajal. By not informing his client of the disbarment or his conversation with the district court, Palacios violated Carvajal’s Sixth Amendment rights.
Our obligation to uphold democratic principles and justice demand that we reverse Carvajal’s conviction. The legitimacy of the adversary system depends on a trusting attorney-client relationship. When we ignore the failure of that crucial relationship in a particular case, we undermine our entire criminal justice system. The Majority today ignores that Palacios no longer represented Carvajal’s interests.
III.
An independent reason for reversing Carvajal’s conviction is that his constitutional right to be present at the conference between Palacios and the district judge was violated. The Constitution guarantees a criminal defendant the right to be present at every critical stage of a trial. See, e.g., United States v. Gagnon, — U.S. -, 105 S.Ct. 1482, 1484 , 84 L.Ed.2d 486 (1985) (right guaranteed by Due Process Clause); Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970) (right guaranteed by Confrontation Clause); see also Fed.R.Crim.P. 43. The Constitution guarantees the right of the accused to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934).
Of course, a defendant is not entitled to be personally present at every proceeding in the case. In confining the right to be present to critical stages, courts assume that the defendant’s attorney will represent the defendant’s interests in noncritical proceedings. See, e.g., United States v. Vasquez, 732 F.2d 846, 849 (11th Cir.1984) (no right to be present at bench conference attended by defendant’s attorney to discuss cross-examination of defendant); United States v. Williams, 455 F.2d 361, 365 (9th Cir.) (notice of conferences need not be sent to defendant because court assumes attorney represents defendant’s interests) (following United States v. Alper, 449 F.2d 1223 (3d Cir.1971)), cert. denied, 409 U.S. 857 , 93 S.Ct. 140 , 34 L.Ed.2d 102 (1972); United States v. Jorgenson, 451 F.2d 516, 521 (10th Cir.1971) (no right to be present at in camera conference on evidence questions when attorney present), cert. denied, 405 U.S. 922 , 92 S.Ct. 959 , 30 L.Ed.2d 793 (1972).
Due Process thus assures a right of presence unless such presence “ ‘would be useless, or the benefit but a shadow.'" United States v. Christopher, 700 F.2d 1253, 1262 (9th Cir.) (quoting Polizzi v. United States, 550 F.2d 1133, 1138 (9th Cir.1976)), cert. denied, 461 U.S. 960 , 103 S.Ct. 2436 , 77 L.Ed.2d 1321 (1983). Even the ablest attorney cannot replace the defendant at certain critical proceedings, at which the defendant’s presence can never be “useless." See, e.g., Henderson v. Morgan, 426 U.S. 637, 647 , 96 S.Ct. 2253, 2258 , 49 L.Ed.2d 108 (1976) (defendant must be apprised of charge before guilty plea may be accepted); Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir.1984) (defendant may never waive right to be present in capital case), cert. denied, — U.S.-, 105 S.Ct. 2344 , 85 L.Ed.2d 858 (1985).
This right includes the right to be present during ex parte communications between a judge and the defense counsel that so vitally affect the trial. Discussions about Palacios’ disbarment and its effect on his ability to continue representation in the ease surely qualifies as such a vital communication. 7 Most important, we can *705 not assume that the attorney represents the defendant’s interests in such a proceeding, or that the defendant’s presence would be “useless.” A defendant must have the opportunity to attend such a conference.
The violation of a defendant’s right to be present at the proceeding does not necessarily require automatic reversal of a conviction. In many situations, appellate courts may affirm a conviction “if in the particular case the defendant’s absence was harmless beyond a reasonable doubt.” Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.), modified on other grounds, 768 F.2d 1090 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1271 , 89 L.Ed.2d 579 (1986). The harmless error rule does not apply, however, when “societal interest in seeing that the forms of trial are preserved” demands reversal of the conviction. Badger v. Cardwell, 587 F.2d 968, 978 (9th Cir.1978). 8 For example, courts employ a per se reversal rule when a defendant is absent from the jury selection process, because the defendant has an absolute prerogative to exercise peremptory challenges. See, e.g., United States v. Washington, 705 F.2d 489, 497 (D.C.Cir.1983).
I believe that the present situation warrants automatic reversal. As in the jury selection cases, Carvajal had an absolute prerogative to dismiss his disbarred attorney. Moreover, cases finding harmless error in right to be present cases do so because the court found that the attorneys adequately represented the defendants’ interests. See, e.g., Miller, 757 F.2d at 995 ; United States v. Stratton, 649 F.2d 1066, 1080 (5th Cir.1981). Here, not only did Palacios fail to protect Carvajal’s rights, but his interests directly conflicted with Carvajal’s. I would reverse Carvajal’s conviction because his right to be present at the conference between Palacios and the district judge was violated.
The standard that this dissent suggests is neither novel nor cumbersome. It simply recognizes that a client-defendant in a criminal action has the right to be informed that his or her attorney has been disbarred. This right does not require any affirmative action on the part of the court, except , the duty to ensure that the client has been notified once the court has been informed of the disbarment and to permit the defendant to attend any conferences on the issue. The decision to proceed with disbarred counsel lies with the client. If the client wishes to obtain other counsel, a continuance or mistrial motion may then be appropriate. I do not suggest what standard should govern the trial court’s review of such a motion. But I hasten to add that judicial convenience should be a low priority when the right to counsel has been so thwarted.
. Technically, Palacios may not have been disbarred from practicing in the district court because no formal disbarment order was entered despite the court rules’ requirements. However, courts have overlooked technical defects in attorney status in right to counsel cases. See, e.g., Solina v. United States, 709 F.2d 160, 167 (2d Cir.1983) (”[W]e do not intimate that any technical defect in the licensed status of a defendant’s representative would amount to a violation of the Sixth Amendment.’’); Wilson v. People, 652 P.2d 595 (Colo. 1982) (failure of attorney to take oath for admission to state bar did not constitute ineffective assistance of counsel). Likewise, we should overlook the technical defect in Palacios disbarment status.
Even if the local rules gave the district court the discretion to allow Palacios to continue his representation through the trial, Palacios was a disbarred attorney in all but name. He certainly Would not have been permitted to practice before the court on any other matter. Indeed, if it had not been for the ongoing trial, the district court likely would have immediately issued the *701 disbarment order required by the local rules. Permitting Palacios to complete the trial might be considered a stay of enforcement of the automatic disbarment; but for purposes of the Constitution, Palacios was a disbarred attorney.
The Majority contends that the district court’s action was not unreasonable because there was "an ongoing jury trial of two defendants who were charged with multiple and very serious criminal offenses” and because the trial was at its "closing stages.” Slip op. at 695. However, the news of Palacios’ disbarment came in the second week of an eight week trial — hardly the “closing stages."
The Majority’s characterization of the circumstances underscores the importance of protecting individual rights without regard to our own predelictions of the individual. Constitutional rights do not, and should not, depend on the seriousness of the government’s allegations. If anything, the seriousness of the crime charged justifies the need for greater scrutiny of, not greater deference to, trial court errors. Cf. House v. Balkcom, 725 F.2d 608, 615 (11th Cir.) (seriousness of charge must be considered in assessing counsel's performance), cert. denied, - U.S. -, 105 S.Ct. 218 , 83 L.Ed.2d 148 (1984).
In any event, I do not resolve whether the trial court was correct in delaying the enforcement of Palacios' disbarment because I conclude that a client has Due Process and Sixth Amendment rights to be present at an in camera discussion of the disbarment issue and to be informed of the disbarment from both the trial and appellate courts.
. There are some limitations. For example, the Sixth Amendment is not violated when the defendant’s actions raise the barrier to effective communications. See, e.g., Shaw v. United States, 403 F.2d 528, 529 (8th Cir.1968) (defendant’s refusal to cooperate precludes ineffectiveness of counsel claim). In addition, some communications would endanger a third party. United States v. Howell, 527 F.2d 1373, 1374 (5th Cir.) (prohibiting disclosure of jury bribery investigation to client-defendant not violative of Sixth Amendment), cert. denied, 429 U.S. 838 , 97 S.Ct. 109 , 50 L.Ed.2d 105 (1976). Any such circumstances are obviously absent in this case.
. Reviews of Sixth Amendment challenges to ■ the effectiveness of attorney representation often involve courts determining the attorney’s competence. To avoid second-guessing an attorney’s strategic decisions, courts must use a fairly stringent standard for reversing a conviction for ineffective assistance of counsel. For such challenges, the defendant must show (1) “that counsel's performance was deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland, 104 S.Ct. at 2064 .
. The Majority concedes that some one never admitted to practice cannot provide effective representation, but asserts that the same reasoning does not apply when one is disbarred. Slip op. at 698. The distinction between a never-admitted attorney and a disbarred one makes little sense. The discipline imposed against the attorney in this case was for failing to protect his client’s right to appeal, a classic example of refusing to represent a client’s interests. Although Palacios proved that he was sufficiently competent to pass a bar exam, he was utterly incapable of representing his clients. Such *703 proven inability as a lawyer is not required to reverse a conviction under the Majority’s reasoning.
But even if the ineffectiveness standard were proper for this case, I would conclude that Palacios refusal to inform his client of the disbarment constituted such incompetence, especially in light of the district court’s order to do so.
. The Supreme Court noted in Strickland that the prejudice requirement is presumed when there has been ”[a]ctual or constructive denial of the assistance of counsel altogether.” 104 S.Ct. at 2067 . Such a denial occurs when counsel breaches a duty of loyalty owed to the client by representing conflicting interests. See id.; Cuyler v. Sullivan, 446 U.S. 335, 345-50 , 100 S.Ct. 1708, 1716-19 , 64 L.Ed.2d 333 (1980).
. The Majority’s reliance on United States v. Hoffman, 733 F.2d 596 (9th Cir.), cert. denied, - U.S. -, 105 S.Ct. 521 , 83 L.Ed.2d 409 (1984), is misplaced. The factual circumstances in Hoffman are inapposite to this case. The attorney in Hoffman had been merely suspended from practice by the Florida State Bar for six months; in the decision, this court emphasized the limited duration of the suspension, id. at 600 . In addition, the client-defendant probably knew of the disbarment. Id. at 598 n. 2. By contrast, Palacios was permanently disbarred from the Ninth Circuit and the district court, and it is conceded that the defendant did not know of the disbarment order.
Moreover, the attorney in Hoffman could not be disbarred by the district court without a separate hearing. The rules in Theard v. United States, 354 U.S. 278 , 77 S.Ct. 1274 , 1 L.Ed.2d 1342 (1957), required a hearing prior to disbarment because a state court had suspended the attorney, and therefore prevented the local rules from taking effect automatically. The legal circumstances in this case are quite distinguishable. Whereas the Hoffman attorney was suspended by a state court, a fact found crucial in Theard, 354 U.S. at 281 , 77 S.Ct. at 1276 , Palacios was disbarred by a court in the same judicial system.
Finally, the fact that Palacios had been disbarred by the very court to which the appeal had to be taken is relevant. At the very least, Palacios’ refusal to inform Carvajal that he would be unable to represent him on appeal violated his ethical obligations. Any counsel in Palacios’ position, even if permitted by the district court to continue through the trial, would have had little incentive to perfect the record on appeal since the appellate court had prohibited him from practicing.
. The conference between Palacios and the district court judge was not a general disbarment *705 proceeding. The conference directly related to the defendant’s representation in the pending criminal trial. I do not decide whether a defendant has a right to be present at a disbarment proceeding wholly separate from the underlying criminal matter.
. We have recognized that the right of presence not only protects the integrity and reliability of the judicial process, but also prevents " 'the loss of confidence in courts as instruments of justice which secret trials would engender.’ ’’ Badger, 587 F.2d at 978 (quoting United States v. Gregorio, 497 F.2d 1253 , 1258 & n. 10 (4th Cir.1974)). Badger involved a defendant representing himself who was excluded from the courtroom for asking repetitive and irrelevant questions.
The reasoning in Badger controls the present case. I can envision few instances in which public confidence in our judicial process will be so severely affected. This case represents a classic situation of a "secret trial”; the district judge and the defendant's attorney decided that the attorney — though permanently disbarred by the Ninth Circuit — would be permitted to continue his representation in this case. Such callous disregard for the defendant’s rights in the matter is exactly what the Badger court warned against.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474608. Public record. Not legal advice.