USA v. Alwyn Stewart, Jr.

Filing

UNPUBLISHED OPINION FILED. [15-30429 Affirmed] Judge: WED, Judge: FPB, Judge: PRO. Mandate pull date is 01/05/2017 for Appellant Alwyn Nord Stewart Jr. [15-30429]

Case: 15-30429

Document: 00513798637

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Date Filed: 12/15/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-30429
Summary Calendar

FILED
December 15, 2016
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALWYN NORD STEWART, JR.,

Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:12-CR-257-1
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Alwyn Nord Stewart, Jr., appeals his guilty plea conviction and sentence
for conspiracy to possess with intent to distribute methamphetamine,
challenging specifically the denial of his pretrial motion to dismiss his counsel,
Stephen Glassell, and to appoint new counsel in his stead. 1 According to the
relevant motion, Glassell told Stewart that he would not work for a “dope
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Glassell was Stewart’s third attorney in the court below. Stewart’s previous two
attorneys had withdrawn–one at counsel’s request and the other at Stewart’s request.
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dealer” and that he instead worked “for the state[,] negro.” Stewart contends
that the level of hostility exhibited by Glassell’s remarks raises serious
questions about his loyalty to Stewart that, in turn, cast doubt on the
correctness of the district court’s denial of the motion appoint new counsel. He
seeks remand to allow the district court to make factual findings with respect
to the truth of his allegations against Glassell.
The Sixth Amendment does not guarantee indigent defendants a right
to appointed counsel of their choosing. United States v. Mitchell, 709 F.3d 436,
441 (5th Cir. 2013). A district court “is constitutionally required to provide
substitute counsel only if there is a substantial conflict or problem affecting
the ability to represent the defendant.” Id. A substantial conflict or problem
exists where there is “a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict which led to an apparently unjust
verdict.”

Id. (internal quotation marks and citation omitted).

Where

appointment of new counsel is not mandatory, a district court abuses its
discretion if it fails to inquire into a “seemingly substantial complaint about
counsel” and the court “has no reason to suspect the bona fides of the
defendant” or if the court refuses to replace counsel with whom it finds the
defendant is justifiably dissatisfied. United States v. Young, 482 F.2d 993, 995
(5th Cir. 1973) (citation omitted).
Contrary to Stewart’s contention, the record before the district court
sufficed to allow it to adequately appraise the nature of the alleged conflict of
interest and its potential impact on Glassell’s ability to represent Stewart. See
United States v. Fields, 483 F.3d 313, 352 (5th Cir. 2007). That evidence
refutes Stewart’s allegation that Glassell was, purportedly by his own
admission, working on the Government’s behalf and not his. In addition to
having filed largely fruitful pretrial motions on behalf of Stewart, Glassell

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successfully counseled Stewart to accept a favorable plea agreement that
assured him a maximum sentence of 20 years instead of the mandatory life
sentence he faced if he proceeded to trial. There is simply no evidentiary basis
for finding that Glassell was laboring under a conflict of interest, and Stewart
has not shown that the district court would have, to that end, “learned
anything material from [greater] inquiry.” Fields, 483 F.3d at 352. As the
record offered no basis for dismissing Glassell as counsel, the district court’s
election not to inquire further into Stewart’s allegations was not reversible
error. Id. at 352-53.
However, even if the district court should have inquired further into
Stewart’s complaint, reversal is unwarranted because “the record as a whole
reflects that [Stewart’s] claim was insubstantial and that he received vigorous
and able representation at trial.” Young, 482 F.2d at 995-96. Nothing in the
record suggests a breakdown of the adversarial process. See United States v.
Wild, 92 F.3d 304, 307 (5th Cir. 1996). By going to trial, Stewart faced a
mandatory life sentence as well as strong evidence of guilt. That he was able
to plead guilty to a maximum sentence of 20 years refutes his argument that
Glassell failed to zealously advocate on his behalf.
Stewart fails to show that, as a result of Glassell’s alleged remarks, there
existed “a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict which led to an apparently unjust verdict.” Mitchell, 709
F.3d at 441 (internal quotation marks and citation omitted). Nor does he
“demonstrate how substitute counsel could have performed any differently
under the circumstances.” Id. Therefore, the district court did not abuse its
discretion in denying his motion to appoint new counsel, even to the extent it
did so without making a specific factual finding or inquiring further about
Stewart’s allegations against Glassell. See id.; Young, 482 F.2d at 995. The

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judgment of the district court is therefore AFFIRMED.

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