USA v. Guadalupe Velazquez

Filing

FILED OPINION (ALEX KOZINSKI, RONALD LEE GILMAN and MICHELLE T. FRIEDLAND) VACATED; REMANDED. Judge: AK Concurring, Judge: MTF Authoring. FILED AND ENTERED JUDGMENT. [10416145]

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 1 of 40

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GUADALUPE VELAZQUEZ,
Defendant-Appellant.

No. 14-10311
D.C. No.
2:12-cr-00877JAT-4
OPINION

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Filed May 1, 2017
Before: Alex Kozinski, Ronald Lee Gilman, * and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland;
Concurrence by Judge Kozinski

The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
*

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 2 of 40

2

UNITED STATES V. VELAZQUEZ
SUMMARY **
Criminal Law

The panel vacated the defendant’s convictions that
resulted from her guilty plea, and remanded for further
proceedings, in a case in which the defendant argued that she
was constructively denied her right to counsel.
The panel held that the district court abused its discretion
by denying the defendant’s requests to substitute counsel
without conducting an adequate inquiry. The panel observed
that (1) the defendant did everything in her power to alert the
court to her belief that she was receiving inadequate
assistance of counsel, and the district court never conducted
any meaningful inquiry into her concerns about her counsel
or their relationship; (2) the record reflects serious
breakdowns in communication and trust; (3) the defendant’s
two motions to substitute counsel, and three attempts to
argue that her attorney had not advised her on the plea, were
all made in advance of her plea deadline and more than a
month before trial; and (4) even if her motions could be
considered untimely, the court’s failure to conduct an
adequate inquiry and the extent of the conflict outweigh any
untimeliness.
Rejecting the government’s argument that any concerns
the defendant had about her counsel were remedied by
meetings she had with him, the panel wrote that there is a
substantial risk that the defendant agreed that she was
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 3 of 40

UNITED STATES V. VELAZQUEZ

3

satisfied with her attorney’s performance because the
magistrate judge pressured her to accept the plea and she
knew that she had to make that statement to enter the plea.
Concurring, Judge Kozinski wrote only to note that the
judges below acted with what they believed to be the
defendant’s best interest at heart.
COUNSEL
Michael J. Bresnehan (argued), Law Offices of Michael J.
Bresnehan P.C., Tempe, Arizona, for Defendant-Appellant.
Keith E. Vercauteren (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
United States Attorney’s Office, Phoenix, Arizona; for
Plaintiff-Appellee.
OPINION
FRIEDLAND, Circuit Judge:
Guadalupe Velazquez seeks to vacate a guilty plea on the
ground that she was constructively denied her right to
counsel when the district court denied her motions to
substitute counsel without conducting an adequate inquiry.
We agree that the district court abused its discretion in
denying Velazquez’s motions and thus vacate the
convictions that resulted from her plea.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 4 of 40

4

UNITED STATES V. VELAZQUEZ
I. BACKGROUND

Guadalupe Velazquez was in her late teens and on a
scholarship at Arizona State University when she began
dating Hector Ortiz, Jr. At some point, Ortiz and his father
began running a drug-trafficking organization that shipped
marijuana across the United States and laundered the
proceeds. Local police and federal agents compiled
evidence against the organization, including photographs
and videos of Velazquez dropping off marijuana shipments
at UPS. When police executed a search warrant on the home
that Velazquez shared with Ortiz, they found guns,
ammunition, and large quantities of marijuana.
Ortiz, his father, Velazquez, and nine other associates
were indicted on various charges stemming from their
participation in the organization. District Judge Teilborg of
the United States District Court for the District of Arizona
presided over the resulting criminal proceedings.

Velazquez was initially represented by Craig Orent, a
court-appointed attorney. Orent moved to withdraw and to
have new counsel appointed on the basis of irreconcilable
conflict and a breakdown in communications. Velazquez
then filed a pro se motion requesting the removal of Orent, a
hearing on that request, and the appointment of substitute
counsel. After a four-minute hearing in which the district
court refused Velazquez’s request to speak, the court granted
counsel’s motion to withdraw. The court then appointed
Kenneth Countryman to represent Velazquez.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 5 of 40

UNITED STATES V. VELAZQUEZ

5

Because the course of Velazquez’s relationship with
Countryman and the circumstances of her eventual guilty
plea are central to her arguments on appeal, we recount both
in detail.
In September 2013, Ortiz’s counsel filed two motions to
suppress wiretap evidence.
On Velazquez’s behalf,
Countryman filed requests to join in each motion. On
October 1, the court denied all motions to join another
defendant’s motion to suppress, but allowed the defendants
to file their own suppression motions within five business
days. Countryman missed that deadline. On November 8,
in a motion to extend the deadline, Countryman stated that
he “did not discover the Court’s Order . . . until recently”
because he had been in trial. He also filed a motion to
suppress wiretap evidence and a motion to sever. Later that
day, the court denied all three motions, and the Government
offered Velazquez a plea agreement.
On November 18, 2013, Velazquez filed a pro se request
for new counsel, arguing that Countryman’s representation
of her was “beset by failed communications and inexcusable
inattentiveness.” Specifically, she cited Countryman’s
failure to file timely pretrial motions despite multiple
warnings of the deadline from the court and Velazquez
herself, a breakdown in communications, and an unspecified
conflict of interest. She also “respectfully request[ed the]
Court hold a hearing and conduct [an] inquiry into” her
claims. On November 19, a second superseding indictment
was issued and Velazquez filed five pro se motions relating
to discovery, trial timelines, and the court’s jurisdiction.
On December 3, the district court held a six-minute
hearing on the pro se motions. After listing the motions,

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 6 of 40

6

UNITED STATES V. VELAZQUEZ

Judge Teilborg stated, “I have reviewed those motions and
. . . they are denied . . . as lacking any merit whatsoever,”
and he adjourned the proceeding. The following exchange
then occurred:
The Defendant: Excuse me, sir. May I say
something?
The Court: I’m sorry?
The Defendant: May I say something?
The Court: What is it you wish to say?
The Defendant: Did you – sorry. I need
clarification. . . . So basically are you telling
me that you denied all my motions outright,
even the request to conduct an inquiry as to
the conflict of interest with Mr. Ken
Countryman?
The Court: I have denied the motions, and I
went through them one by one, so each of
them has been denied.
The Defendant: Okay. So I’m not – there’s
absolutely no way I can address the Court?
The Court: I’m sorry?
The Defendant: There’s – Your Honor, I need
– I – I – I need to make a record, Your Honor,
I absolutely need to make a record of his
failure of communications, the fact that I
have a plea deadline today and he has failed

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 7 of 40

UNITED STATES V. VELAZQUEZ
to communicate the plea with me. I mean, I
have evidence upon evidence, I have
recorded e-mails, calls, everything, Your
Honor, that he has continuously failed me.
We have not gone through any of the
discovery. He’s lied to the Court and told you
that –
The Court: I considered everything that was
in writing that you filed with the Court and
ruled on them. All right?
The Defendant: So there’s absolutely nothing
we can do now, even though he has not met
with me, he hasn’t done anything.
The Court: As I said, I reviewed what you put
in writing and have ruled on it.
The Defendant: Okay. May I ask another
thing, Your Honor, please, so I can state this
on the record? I have a deadline for my plea.
Okay? Today. If he stays on my case, that
plea expires at five o’clock. Mr. Ken
Countryman has never met with me and told
me anything about the plea, never, Your
Honor, absolutely never.
The Court: I’ve taken up the only thing before
the Court at this time, and he, as your counsel,
I’m sure, will do what he is obligated to do.
The Defendant: But he hasn’t done that, Your
Honor.

7

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 8 of 40

8

UNITED STATES V. VELAZQUEZ
The Court: Very well.

Following this hearing, it appears that the prosecution
granted Velazquez an extension to respond to its proffered
plea deal. On December 4, Velazquez appeared for
arraignment on the second superseding indictment before
Magistrate Judge Bade. As Countryman was stating his
appearance, Velazquez interjected that she and Countryman
were “at great odds,” and explained that he had given
Velazquez only a few minutes to review the indictment, did
not know what her charges were, and had missed several
deadlines. Judge Bade responded that she was not going to
consider those issues because Judge Teilborg had already
denied Velazquez’s motions, including her motion to
appoint new counsel. Judge Bade then told Velazquez that
she could file another motion for new counsel with Judge
Teilborg and rescheduled the arraignment.
In accordance with Judge Bade’s suggestion, Velazquez
filed another motion for new counsel on December 10 and
requested an evidentiary hearing.
She alleged that
Countryman had not conducted any independent
investigation of her case, had not given her access to the
discovery, and could not answer basic questions about the
charges against her. She claimed that he repeatedly fell out
of contact for months at a time, met with her only in public
places like restaurants, and lied to her about deadlines, when
she needed to appear in court, and what motions he had filed.
She asserted that he had filed confidential information
without her permission.
She further claimed that
Countryman’s paralegal—a disbarred attorney—“used
tactics of intimidation, humiliation, and sexual harassment
to scare her to not go to trial” and told her that he, not
Countryman, would be the one to file motions on her behalf.
Finally, she alleged that Countryman had not discussed her

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 9 of 40

UNITED STATES V. VELAZQUEZ

9

plea offer with her because he said that he had been too busy
to read it. She concluded that she would be committing
perjury if she agreed as part of a plea that she had received
effective representation.

On December 10, Velazquez appeared before thenMagistrate Judge Logan for her rescheduled arraignment.
The tensions between Velazquez and Countryman were
evident from the beginning of the hearing. After stating his
appearance, Countryman said, “Your Honor, I met with my
client about the indictment. . . . [B]ecause of the nature of
our communications, I’m not inclined to waive a reading [of
the indictment] . . . . [W]e’ve been unable to meet and
communicate and have any kind of productive meeting, and
the last meeting we had I terminated.” When Velazquez
tried to bring up her motion for new counsel, Judge Logan
said:
The first thing is Judge Teilborg, he’s a senior
judge in this building, and he’s an Article III
district judge, and he’s a higher level judge
than I am. I can’t overrule what he’s already
done. If he’s already listened or taken
consideration of the situation as it relates to
your representation of Mr. Countryman, and
he’s already ruled on the issue in terms of Mr.
Countryman being the person that will
represent you, you can talk for the next two
hours, and there’s no way for me to change
anything.
Judge Logan then explained each of the charges.
Velazquez indicated that she understood the charges but
stated that her attorney did not. The judge disagreed: “He

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 10 of 40

10

UNITED STATES V. VELAZQUEZ

understands the nature of your charges, and you certainly
understand the nature of your charges now.” Although
Judge Logan observed, “it’s pretty clear to me that you don’t
wish to plead guilty to anything in this case,” he began to
address the plea offer.
Velazquez interjected to raise concerns about her
counsel. She explained that she had not yet reviewed the
plea with Countryman. She also alerted Judge Logan that
she had filed another motion to substitute counsel with Judge
Teilborg and had attached supporting exhibits. She
explained that she had recorded her last meeting with
Countryman “because of our mistrust, because of the
breakdown in relationship,” and offered the recording as
proof of her claims.
Judge Logan declined to review the exhibits or recording
and instead began explaining that Velazquez would not have
received a more favorable plea agreement with different
counsel. He stated that a defense attorney “can’t make the
executive branch, the federal government, do anything.” He
added, “If I were standing next to you as a defense counsel,
it wouldn’t change anything that the U.S. Attorney’s Office
was willing to do.” The judge went on:
The Court: So there’s a plea agreement here
that I’ve received . . . . [W]hen I read through
the indictment and I read the plea offer, I see
a few things in here that really popped out.
And there were agreements, you know, to
basically dismiss . . . Counts 2, 3, 7, 9, 13, 14,
26, 27, 28, 29, which led me to believe that
the United States Government was seeking to
have you plead guilty to Count No. 1 and
Count No. 10 of the second superseding
indictment. What that told me is your lawyer

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 11 of 40

UNITED STATES V. VELAZQUEZ
clearly had some kind of interaction with the
United States Government because the
United States Government could have been
seeking a plea of guilt to everything that’s in
the indictment. Mr. Vercauteren, what’s her
exposure if she goes to trial and she’s
convicted of all of these counts?
Mr. Vercauteren [the Prosecutor]: She’s
looking at over 40 years, I would say, pretty
easily, and that’s I think, under the
Guidelines, not statutorily. Statutorily she
could be facing life imprisonment.
The Court: So she’s facing natural life in
prison if she’s convicted statutorily. And,
ma’am, you wouldn’t receive natural life.
But if the [G]overnment, because what’s
driving the indictment, you have the
conspiracy, you have the possessions, the
money laundering, it’s a lot of time but not as
much as the big chunks with the drug
conspiracy. But you have some . . . counts
involving the guns which push the numbers
up pretty much. So without getting into the
actual negotiations, I would assume – and
correct me if I’m wrong – as part of trying to
resolve this case, the [G]overnment has
agreed not to go forward with the [gun]
counts. Is that right?
Mr. Vercauteren: That’s correct. Those are
being dismissed as part of the agreement
under Section 4A.

11

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 12 of 40

12

UNITED STATES V. VELAZQUEZ
The Court: And, Mr. Vercauteren, I know
you’re not Judge Teilborg, but I’m pretty sure
you have an idea if she pled guilty to this
offense – And, Mr. Countryman, my
recollection is your client doesn’t have any
criminal history; is that right?
Mr. Countryman: She has zero, Judge.
The Court: Okay. So –
Mr. Countryman: She’d be – she should have
zero points on her criminal history, category
I.
The Defendant: I asked him what level I was
at, and he couldn’t tell me. I asked him what
is the total amount of the contraband they
were alleging. He couldn’t tell me. And I
have that all recorded.
Mr. Countryman: Well, first of all, Judge,
anytime somebody sits in front of you and
puts a bag in front of you, you ought to know
that they’re surreptitiously recording you, so
it comes as no surprise. I would be shocked
that she would submit that to the Court, given
her behavior during that instance, but that’s
up to her. I’m sure she probably deleted that
section.
The Defendant: It’s all there.
Mr. Countryman: I told her very clearly
during that meeting that she was a level 26 to

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 13 of 40

UNITED STATES V. VELAZQUEZ
start. We could not get into how far she’d go
up and down because I’m not going to meet
with somebody who’s yelling at me.
***
The Court: . . . Well, not every defendant and
defense lawyer like each other. But I want to
make sure that you understand something,
and this is very, very important for you to
understand. If you don’t like your lawyer and
if the Judge allows you to get another lawyer,
it doesn’t mean that your contract changes.
This is a plea agreement that the executive
branch is offering you. Okay.
The Defendant: I –
The Court: Ma’am, let me just finish. Mr.
Vercauteren, I’m just going to ask you if she
for some reason received another lawyer,
does the plea offer get better?
Mr. Vercauteren: No.
The Court: Do you understand that?
The Defendant: Yes, Your Honor. But the
thing here is it’s not about us liking each
other, if he likes me or I don’t like him. The
point is the record will show, Your Honor,
that he did not do one thing for my case,
absolutely not one thing. I mean, he
defaulted, procedurally defaulted on
timelines, on the pretrial motion timeline.

13

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 14 of 40

14

UNITED STATES V. VELAZQUEZ
Over a month, I believe, that’s how late he
was. And with all due respect, Judge
Teilborg, I mean I know he’s –
***
The Court: The Article III district judge has
already decided, whether you enter a plea of
guilty or you go to trial, Mr. Countryman will
be standing next to you. Okay? . . . I don’t
want you to feel pressured in any way,
because you need to maintain your
innocence. If you did nothing wrong and the
marijuana in the house you never saw, the
bundles in the bathroom, you never saw a
single firearm, you never saw anything, you
never did anything, the cameras were wrong,
it wasn’t you, whatever the situation may be,
if you feel that you’ve done nothing wrong,
maintain your innocence and go to trial if
that’s what’s best for you and your family. I
want to make sure that you . . . understand
that the United States Government – it
doesn’t matter who’s standing there – they’ve
offered you a disposition that will give you
an opportunity to enter a plea if you choose
to.
The Defendant: Okay.
The Court: So the fact that Mr. Countryman
didn’t answer a question about the sentencing
table, I can answer any question you need to
know about a sentencing table. . . . But Mr.
Countryman has been practicing law for a

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 15 of 40

UNITED STATES V. VELAZQUEZ
long, long time. And, ma’am, the things that
you allege can get a lawyer in a position
where, you know, they may have some
difficulty. So I don’t know what happened
between the two of you, and if you feel the
need to file another motion with Judge
Teilborg, I can’t tell you what to do. . . . So,
ma’am, you seem to think that if you can
show me that Mr. Countryman is the bad guy
in terms of he’s not helping you, you get
another lawyer or this whole thing goes
away.
The Defendant: Your Honor, thank you for,
you know, the information that you’re
sharing with me, but I’m not here asserting
that if I get a different attorney, my plea will
change. That’s not what I’m here to say. . . .
My issue here is that because of his right to
effectively assist me or represent me, that’s
where it’s been a conflict. How can, if he
really doesn’t know the case, how can he tell
me or advise me on what’s the best thing to
do, whether it’s to go to trial or to take the
plea? My issue about going to trial is that I
don’t think that he’s going to serve as an
advocate for me, given his track record.
Now, the thing about Mr. Ken Countryman
right from the beginning, we did get
along. . . . But getting along is one thing.
Doing something on a case is another thing.
And this goes back to, you know, the whole
issue with him not doing anything for me.
It’s not saying like, oh, I don’t like Mr. Ken

15

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 16 of 40

16

UNITED STATES V. VELAZQUEZ
Countryman; he’s not getting me a plea that I
want. That’s not it, Your Honor.
The Court: Okay. This is where I’m
confused. How is it that you have – Mr.
Vercauteren, this plea offer – I think I’ve
asked before – does this offer get any better?
If she had three retained lawyers and two CJA
panel lawyers, does the offer from the United
States Government get any better?
Mr. Vercauteren: No.
The Defendant: And I get that, Your Honor.
But the thing is it’s such a big range, right,
from 5 to 40 years – and then it goes into . . .
is my attorney going to effectively, you
know, represent me and fight for me and
make sure that I don’t get that much time?
That’s what it all plays into. It’s not about the
plea and not being good enough. And then
also, about the plea, I have to commit perjury.
Everything else aside–I’m not going to
comment on that–I’m only going to comment
on the fact that I have to–
The Court: Ma’am, I can tell you right now
I’m pretty confident that Mr. Countryman
and Mr. Vercauteren aren’t advocating for
anyone to come in here and perjure
themselves and commit a crime, an additional
crime.
The Defendant: Okay. And I get that, but in
the plea it –

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 17 of 40

UNITED STATES V. VELAZQUEZ
The Court: No, no, no, you don’t get that,
because if you just placed on the record that,
you know, you would have to commit
perjury, I would love to hear about that. Who
asked you to commit perjury?
The Defendant: No. Sorry. I misspoke. I’m
sorry. I apologize. What I meant to say is
that at the end of the plea, it says that I have
to submit and say I have been . . . that “I am
satisfied that my defense attorney has
represented me in a competent manner,” . . .
I don’t want – I’m scared to go to trial
because I don’t think that he’s going to, you
know, put a fight for me. Your Honor, he
didn’t submit any pretrial motions at all.
***
The Court: . . . This is all I need to know from
you, ma’am. You’ve been arraigned on the
second superseding indictment. I’ve also
informed you of your trial date. Do you wish
to go forward with the change of plea
hearing? Yes or no.
The Defendant: Do I have to have the clause
in there about my attorney?
Mr. Vercauteren: Yes. You’re asking me?
The Court: Yes, you do.
asking?

Who are you

The Defendant: Just – I don’t know.

17

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 18 of 40

18

UNITED STATES V. VELAZQUEZ
The Court: Well, you turned to Mr.
Vercauteren. That’s part of [Federal Rule of
Criminal Procedure] 11, ma’am, because you
have to be satisfied with the representation
and understand the terms and conditions of
your plea agreement. But in terms of
satisfied with the representation, it doesn’t
mean – There’s – In terms of competent
representation, it doesn’t mean that Mr.
Countryman has to look at and touch every
single aspect of the case. If Mr. Vercauteren
reached out to Mr. Countryman and said,
okay, count number one and count number
ten, which happen to be what we’re seeking
your client’s guilty plea on, here’s the
discovery information that directly relates to
Count 1 and Count 10. If he reviews that,
that’s a diligent lawyer who’s doing what
he’s supposed to be doing.

The court then held a sidebar with the attorneys and
asked Vercauteren to recount his evidence against
Velazquez and his negotiations with Countryman that led to
omitting from the plea a gun charge that would have
increased her sentence.
Following that sidebar, the
discussion in open court continued:
The Court: Ma’am, you have an opportunity.
Mr. Vercauteren is standing right there in
front of you. Is there anything you would like
to ask of him?
The Defendant: Why is it the fact that even if
I’m willing to take the plea, that clause about
him, about my attorney? Why do I have to

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 19 of 40

UNITED STATES V. VELAZQUEZ
submit to the fact that he competently, you
know, advised me in the matter? . . .
The Court: Rule 11, there’s certain things that
must happen if a person says I wish to plead
guilty. As part of Rule 11, you have to
believe that your lawyer is competent and has
represented you properly.
The Defendant: Your Honor, I don’t believe
that, but at the same time I’m scared to go to
trial with him because I don’t think that he’s
going to do me justice.
The Court: Well, ma’am–and I’m not going
to advocate in terms of what I believe you
need to do, because that’s not my role. Only
you can decide that. But I’ll tell you this. If
you have videotape and other co-defendants
or whatever the evidence will show that says,
yes, ladies and gentlemen, I’m sworn under
oath, and yes, that lady in the video right
there, that’s Guadalupe Velazquez, and if the
[G]overnment says do you see this woman in
the courtroom, and the witnesses say, yeah,
she’s right there, whether they’re agents, lay
witnesses, co-accused, that’s difficult
evidence to get around. You could be the best
defense counsel ever, but if there’s a
videotape and people say yes, the woman
with the box is Ms. Velazquez, and the box
contains marijuana or the package contains
cash money, and yes, that’s her voice on the
video audio, and she’s talking about
structuring cash amounts for deposit in an

19

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 20 of 40

20

UNITED STATES V. VELAZQUEZ
FDIC bank, that’s devastating. But I’m not
saying that you’ll be convicted, but your
lawyer’s job is to make sure that you
understand that if you take that risk and
ultimately you’re convicted, that’s a lot of
time. . . .
Mr. Countryman: And just for the record,
Judge, I have advised her that if she doesn’t
take the plea, there will probably be more
evidence against her that I haven’t received
yet.
The Court: Well, ma’am, the only thing I can
say about that part is Mr. Vercauteren, he just
stood up and said it’s today or it’s gone.
There’s no plea after today from what Mr.
Vercauteren has said, so –
The Defendant: Is there any way, Your
Honor, that my attorney and I could have a
few days so we can, like, go over the plea?
The Court: What I can do – I can’t give you
– Well, the [G]overnment has already placed
on the record that if the plea –
The Defendant: Can we ask him?
The Court: If the plea is not placed on the
record today, they’re withdrawing. Is that
correct, Mr. Vercauteren?
The Defendant: Please, can we just have –

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 21 of 40

UNITED STATES V. VELAZQUEZ

21

Mr. Vercauteren: Judge, I’ve delayed this so
often. . . . And so she’s had this plea for a
long time. It’s time to make a decision. . . .
The Defendant: Well, see, Your Honor, the
plea was forwarded to me November 8th. My
attorney and me, we still haven’t met. Like
we haven’t gone through, okay, what would
be my corner if we were to go to trial? What
are the witnesses that he would like to call?
What can really hurt me? What can go
against me? And talk about the pros and cons
of the plea. That’s the only thing that I’m
asking for, Your Honor. I’m not trying to
delay anything. Yes, it was forwarded to me
on November 8th. Have I sat down with my
attorney and have we really like, delved into
it? No, we have not. So how can I
competently sign something which I really
don’t know anything about because he hasn’t
advised me to it?
The Court: Mr. Countryman, I don’t know
how much of that is lacking, but if she hasn’t
had a chance to sit down with you and go
through it –
Judge Logan then cleared the courtroom of the
prosecutor and observers. Countryman reported that he had
tried to advise Velazquez about her Guidelines level and the
possibility of an exception to a mandatory minimum
sentence. Countryman also raised mitigating arguments
about Velazquez’s education and work ethic, and Judge
Logan responded that “Judge Teilborg would certainly listen

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 22 of 40

22

UNITED STATES V. VELAZQUEZ

to” such arguments at the sentencing stage. The dialogue
then continued:
Mr. Countryman: And just for the record, I
mean, everyone’s agreed to enter a plea but
Ms. Velazquez. And a lot of these defendants
who filed these suppression motions entered
pleas before that hearing because, in my
opinion, they knew what the result of that was
going to be. And if they went to hearing, they
weren’t going to have pleas. So I just want
the record clear about that. However, I mean,
she can do what she wants.
The Defendant: And then –
Mr. Countryman: She’s smart. She has her
own PACER account. She understands. And
if she doesn’t want to plead, I understand.
But it’s a lot of time she’s looking at, and it’s
a lot of evidence.
The Court: Go ahead, ma’am.
The Defendant: Your Honor, we go back to –
we just go back to the core of everything. We
go back to the basis of, you know, I don’t feel
that Ken has tried to put any work into my
case. . . . [W]e don’t have any pretrial
motions in, Your Honor, in respect to my
case. I have given him leads upon leads upon
leads that he never followed up with. . . . But
at the end of the day, Your Honor, the only
thing I’m asking is, again, I’m not trying to
delay. It’s just, like, I cannot make a decision

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 23 of 40

UNITED STATES V. VELAZQUEZ
right now. I can’t. I can’t decide whether I’m
going to sign the plea or go to trial. I just
can’t right now, Your Honor. I just can’t.
***
Mr. Countryman: She needs to understand
that Mr. Vercauteren’s very serious about her
and putting her on trial. He would have no
problem with her getting 38 to 42 years, none
whatsoever. The fact that I –
The Defendant: But what have you done to
push back, Ken? What have you done to push
back, with all due respect?
Mr. Countryman: . . . This is a mountain of
evidence against her, and the motions that she
wanted submitted, she filed them. The Judge
denied them on the merits. She filed them pro
se.
***
The Court: Ms. Velazquez, is there anything
else you would like to tell me?
The Defendant: Your Honor, I just can’t
competently make a decision whether I want
to waive the plea. I know that he’s already
said that. But I don’t really want to go to trial
because I’m scared, you know. And it is a lot
of time to face.

23

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 24 of 40

24

UNITED STATES V. VELAZQUEZ
The Court: 40 years is a lot of time. You’re
correct. Five years is a lot of time. Any time
is a lot of time.
The Defendant: Any time is a lot of time,
Your Honor. I just can’t make the decision
right now. I just can’t. I don’t want to say no
to the plea. I just can’t make the decision.

Velazquez then conferred with Countryman, who informed
the judge that Velazquez wanted to take the plea agreement
but needed more time to make her decision. The prosecutor
agreed to give Velazquez one more day to review the
agreement with her counsel. Judge Logan then adjourned
the change of plea hearing until the next day.
Judge Logan reconvened the hearing on December 11.
Without interruption, the judge proceeded with a standard
plea colloquy, including reading the charges, explaining the
plea agreement, explaining what rights Velazquez would
waive by pleading guilty, and asking whether she
understood. Toward the end of the hearing, Judge Logan
raised the issue of Velazquez’s satisfaction with her
attorney.
The Court: Ma’am, are you fully satisfied
with all the assistance your lawyer Mr.
Countryman’s provided you?
(The defendant and her counsel confer off the
record.)
Mr. Countryman: Just one moment, Judge.
The Court: Of course.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 25 of 40

UNITED STATES V. VELAZQUEZ
(The defendant and her counsel confer off the
record.)
The Court: Ma’am, is there anything else you
would like to tell me?
Mr. Countryman: No, Judge, no, there’s – We
don’t want to address this particular issue. I
think the question the Court posited had to do
with counsel, so if the Court could repeat that.
The Court: Of course. Mr. Countryman, your
lawyer –
The Defendant: Yes.
The Court: – are you fully satisfied with all
the assistance that he’s provided you?
The Defendant: Yes.
The Court: And, ma’am, yesterday that
wasn’t the case. What’s changed?
The Defendant: Well, he – Well, I’m going
to, you know – extended my arm in good faith
that even though –
The Court: You extended your arm?
The Defendant: I meant to say – I meant to
say –
Mr. Countryman: I think she’s trying to say
we had a –

25

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 26 of 40

26

UNITED STATES V. VELAZQUEZ
The Defendant: Tried to have a fresh start.
Mr. Countryman: Right. We had a meeting
yesterday and today and –
The Defendant: Fresh start.
Mr. Countryman: – work together and move
forward –
The Defendant: Yeah.
Mr. Countryman: – and try to get the best
possible outcome at sentencing.
The Court: So you believe that the extra time
that you had with Mr. Countryman allowed
you to sit down with him, and it allowed Mr.
Countryman to answer the questions you had
about this document that you’ve had for a
month?
The Defendant: Yes.
The Court: And he’s answered all those
questions?
The Defendant: Yes.
The Court: So you’re fully satisfied with all
the assistance he’s provided you in your
case?
The Defendant: Yes, yes.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 27 of 40

UNITED STATES V. VELAZQUEZ

27

The plea agreement contained a waiver of the right to
appeal. Judge Logan confirmed during the hearing that
Velazquez understood the appeal-waiver section and that she
did not have any questions about it.

On December 13, 2013, without holding any hearing,
Judge Teilborg denied Velazquez’s December 10 motion for
new counsel as moot or, in the alternative, on the merits. The
order stated that the court had reviewed her motion and her
testimony at the change-of-plea proceeding, “at which she
admitted she is fully satisfied with all the assistance she has
received from her counsel.” On January 2, 2014, the district
court adopted Judge Logan’s recommendation to accept
Velazquez’s guilty plea.
On March 14, 2014, Juan Rocha, an attorney Velazquez
retained, substituted in for Countryman. At the sentencing
hearing in June, after asking Velazquez “Have you been
satisfied with your lawyer” and receiving the response “yes,”
Judge Teilborg imposed a sentence of 121 months. Rocha
did not at any point try to withdraw Velazquez’s guilty plea.
II. STANDARDS OF REVIEW
We review de novo the validity of an appeal waiver.
United States v. Portillo-Cano, 192 F.3d 1246, 1249 (9th
Cir. 1999). We review a denial of a motion for substitution
of counsel for abuse of discretion. United States v. ReyesBosque, 596 F.3d 1017, 1033 (9th Cir. 2010).

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 28 of 40

28

UNITED STATES V. VELAZQUEZ
III. DISCUSSION

To begin, the Government contends that we should
dismiss Velazquez’s appeal without reaching the merits
because she waived her right to appeal as part of the plea
agreement. We decline to do so.
“[W]aivers of appeal must ‘stand or fall with the
agreement of which they are a part.’” United States v.
Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (quoting
United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)).
In Portillo-Cano, the defendant challenged “the soundness
of his plea allocution under Rule 11,” which provides the
procedure for accepting pleas in criminal cases. Id. We
explained that such an error “goes to the heart of whether his
guilty plea, including the waiver of appeal, is enforceable.”
Id. As a result, we concluded that “we must determine
whether the plea was valid in order to determine if appeal is
permitted.” Id. Here, Velazquez asserts that Judge
Teilborg’s denials of her motions to substitute counsel
constructively denied her the right to counsel, and she also
challenges Judge Logan’s compliance with Rule 11.
Because, as explained below, we agree that she was
constructively denied counsel, we hold that her appeal
waiver is unenforceable.

“Where a criminal defendant has, with legitimate reason,
completely lost trust in his attorney, and the trial court
refuses to remove the attorney, the defendant is
constructively denied counsel.” Daniels v. Woodford,
428 F.3d 1181, 1198 (9th Cir. 2005) (citing United States v.
Adelzo-Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001)). “A

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 29 of 40

UNITED STATES V. VELAZQUEZ

29

defendant need not show prejudice when the breakdown of
a relationship between attorney and client from
irreconcilable differences results in the complete denial of
counsel.” United States v. Moore, 159 F.3d 1154, 1158 (9th
Cir. 1998); see also Perry v. Leeke, 488 U.S. 272, 280 (1989)
(‘“[A]ctual or constructive denial of the assistance of
counsel altogether’ is not subject to . . . prejudice analysis.”
(quoting Strickland v. Washington, 466 U.S. 668, 692
(1984))). Because the Sixth Amendment’s guarantee of
effective assistance of counsel applies at the plea-bargaining
stage, Missouri v. Frye, 566 U.S. 133, 143–44 (2012),
constructive denial of counsel can occur at that phase just as
it can at trial. See Appel v. Horn, 250 F.3d 203, 212 (3d Cir.
2001).
To evaluate whether a district court abused its discretion
in denying a motion to substitute counsel, we consider three
factors: “(1) the adequacy of the district court’s inquiry;
(2) the extent of the conflict between the defendant and
counsel; and (3) the timeliness of defendant’s motion.”
United States v. Reyes-Bosque, 596 F.3d 1017, 1033 (9th
Cir. 2010).
1.
With respect to the adequacy of the district court’s
inquiry, the Supreme Court has emphasized that, in most
cases, “courts cannot properly resolve substitution motions
without probing why a defendant wants a new lawyer.”
Martel v. Clair, 565 U.S. 648, 664 (2012); see also United
States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000) (finding
error where the district court “made no inquiry at all” into
the request to substitute); United States v. Gonzalez,
113 F.3d 1026, 1028–29 (9th Cir. 1997) (holding that the
trial court abused its discretion by refusing to hold an
evidentiary hearing on the motion to substitute). Failure to

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 30 of 40

30

UNITED STATES V. VELAZQUEZ

conduct an inquiry is not necessarily an abuse of discretion
if the trial court has sufficient information to resolve the
motion. See Martel, 565 U.S. at 664–66; United States v.
Smith, 282 F.3d 758, 764–65 (9th Cir. 2002); United States
v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Even so,
“[t]here is no question that our case law favors an inquiry
when a party seeks substitute counsel.” Smith, 282 F.3d at
764.
We have held that, “[w]hen a trial court is informed of a
conflict between trial counsel and a defendant, ‘the trial
court should question the attorney or defendant privately and
in depth, and examine available witnesses.’” Daniels,
428 F.3d at 1200 (quoting United States v. Nguyen, 262 F.3d
998, 1004 (9th Cir. 2001)). In Adelzo-Gonzalez, for
example, the district court denied motions to substitute
counsel despite obvious antagonism between the attorney
and defendant. 268 F.3d at 777–78. We held that the district
court had failed to conduct an adequate inquiry into the
attorney-client relationship and put “too much emphasis on
the appointed counsel’s ability to provide adequate
representation.” Id. at 778. Similarly, in Moore, the parties
alerted the court to a conflict on three occasions before the
court conducted any inquiry. 159 F.3d at 1160. When the
court finally inquired, it gave both parties a chance to speak,
but “made no inquiries to help it understand the extent of the
breakdown.” Id. We found that this inquiry was inadequate
and that, as a result, the court had failed to identify the
irreconcilable conflict between the defendant and his
attorney. Id. at 1160–61.
In cases in which we have held that the adequacy-ofinquiry factor was satisfied, the district court typically held
at least one hearing during which it asked specific questions.
See Reyes-Bosque, 596 F.3d at 1034; United States v.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 31 of 40

UNITED STATES V. VELAZQUEZ

31

Mendez-Sanchez, 563 F.3d 935, 943–44 (9th Cir. 2009);
United States v. McKenna, 327 F.3d 830, 843–44 (9th Cir.
2003); Smith, 282 F.3d at 763; United States v. CoronaGarcia, 210 F.3d 973, 977 (9th Cir. 2000).
Here, Velazquez clearly and consistently raised concerns
about her representation, and the district court’s response
was clearly and consistently insufficient. Judge Teilborg
summarily denied Velazquez’s first motion to replace
Countryman. When Velazquez tried to present supporting
evidence and to argue the motion in court on December 3,
he refused to consider anything beyond Velazquez’s pro se
written motion. Velazquez said that her plea deadline was
that day and that her attorney had not yet met with her about
it. Judge Teilborg replied that Countryman “will do what he
is obligated to do.” When Velazquez responded that
Countryman “hasn’t done that,” the judge merely replied,
“[v]ery well,” and concluded the exchange.
On December 10, Velazquez filed her second pro se
motion for new counsel and requested “an evidentiary
hearing before the Court.” As described above, this motion
detailed a serious breakdown in the attorney-client
relationship as well as claims of intimidation and
harassment. It also attached supporting exhibits, including
emails documenting Countryman’s failures to respond to her
inquiries.
On December 13, Judge Teilborg denied the December
10 motion for new counsel as moot or, in the alternative, on
the merits. He held no hearing and made no inquiry into
Velazquez’s allegations. Instead, he relied on her testimony
at the December 11 change-of-plea proceeding, “at which
she admitted she is fully satisfied with all the assistance she
has received from her counsel.”

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 32 of 40

32

UNITED STATES V. VELAZQUEZ

Velazquez did everything in her power to alert the court
to her belief that she was receiving inadequate assistance of
counsel. She filed two motions and supporting exhibits,
raised her concerns before three judges at three different
hearings, and was dogged in placing her concerns on the
record. Despite all of this, the district court never conducted
any meaningful inquiry into Velazquez’s concerns about her
counsel or their relationship.
Because Velazquez previously replaced an attorney
based in part on a breakdown in communications, the district
court, upon seeing her motion to replace Countryman, might
have assumed that the conflicts stemmed from
unreasonableness on Velazquez’s part. See MendezSanchez, 563 F.3d at 944. But our precedent required at least
an inquiry into the relationship between Velazquez and
Countryman. See, e.g., Smith, 282 F.3d at 764. Given the
specific, serious allegations that Velazquez had made about
her counsel, the district court’s lack of any inquiry at all, let
alone a “meaningful attempt to probe more deeply into the
nature” of the attorney-client relationship, Adelzo-Gonzalez,
268 F.3d at 778, left Velazquez’s right to counsel in
jeopardy. The “adequacy of the district court’s inquiry”
factor thus weighs in favor of finding an abuse of discretion.
Reyes-Bosque, 596 F.3d at 1033.
2.
The second factor we consider is the extent of the
conflict between the attorney and client. See id. We ask
whether “there was a serious breach of trust and a significant
breakdown in communication that substantially interfered
with the attorney-client relationship.” Adelzo-Gonzalez,
268 F.3d at 779.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 33 of 40

UNITED STATES V. VELAZQUEZ

33

In situations similar to the one presented here, we have
held that the extent of the conflict warranted granting
substitution of counsel. In United States v. Williams,
594 F.2d 1258 (9th Cir. 1979) (per curiam), for example, we
held that the district court abused its discretion when it
denied substitution of counsel despite strong evidence of
irreconcilable conflict between counsel and the defendant.
Id. at 1261. There, it was “clear from the transcript that
client and attorney were at serious odds and had been for
some time.” Id. at 1259. Moreover, the defendant’s
allegations of a lack of communication were unrefuted and
“the response of counsel tended to confirm that the course of
the client-attorney relationship had been a stormy one with
quarrels, bad language, threats, and counter-threats.” Id. at
1260. In Adelzo-Gonzalez, we likewise found an extensive
conflict where, among other things, the attorney threatened
to testify against his client, “virtually abandoned his
representation of [the client] with respect to the motions to
substitute counsel,” and left him “to make the motions by
himself, while the appointed counsel took an adversary and
antagonistic stance.” 268 F.3d at 779.
The record here reflects serious breakdowns in
communication and trust. Before Judge Teilborg on
December 3, Velazquez asserted that her attorney had not
advised her on her plea deal, even though the offer was set
to expire that day. Her December 10 motion before the
district court contained multiple specific, troubling
allegations of a breakdown in communications, a failure to
independently investigate the case, lies about deadlines and
filings, and intimidation and harassment.
The transcript of the hearing on December 10 is also
replete with evidence of a dysfunctional attorney-client

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 34 of 40

34

UNITED STATES V. VELAZQUEZ

relationship. 1
Countryman began the December 10
arraignment by reporting problems communicating with his
client. Velazquez described recording their conversations
out of a lack of trust; Countryman admitted to cutting
meetings short because Velazquez yelled at him; they openly
bickered in court. Countryman did not help Velazquez
present her motions to substitute counsel. At times he
actually argued against her position by trying to convince the
magistrate judge that he had adequately advised her. He also
made gratuitous statements about there being a mountain of
evidence against her and the fact that the prosecutor would
have “no problem with her getting 38 to 42 years, none
whatsoever.”
There was evidence that a “significant breakdown” in the
attorney-client relationship had occurred. As a result, the
“extent of the conflict” factor also weighs in favor of finding
an abuse of discretion.
3.
The third factor we evaluate is the timeliness of the
defendant’s request to substitute counsel. Reyes-Bosque,
596 F.3d at 1033. In this inquiry, the court “balance[s] ‘the
resulting inconvenience and delay against the defendant’s
We recognize that Judge Teilborg did not preside over the
December 10 hearing. In his order denying Velazquez’s December 10
motion to substitute counsel, however, he cited her testimony at the
December 11 change-of-plea hearing as support for the denial. In the
same passage of the December 11 transcript that Judge Teilborg cited,
the magistrate judge referred to the fact that Velazquez had said on
December 10 that she was not satisfied with her counsel, and Velazquez
and Countryman described having tried during meetings on December
10 and 11 to have a fresh start. These statements should have alerted
Judge Teilborg that the December 10 hearing contained information
relevant to ruling on the substitution motion.
1

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 35 of 40

UNITED STATES V. VELAZQUEZ

35

important constitutional right.’” Moore, 159 F.3d at 1161
(quoting United States v. D’Amore, 56 F.3d 1202, 1206 (9th
Cir. 1995), overruled on other grounds by United States v.
Garrett, 179 F.3d 1143 (9th Cir. 1999)). This factor must
always be evaluated in the context of the litigation in
question, so no precise amount of advance notice is required
to render a request timely. Compare, e.g., Moore, 159 F.3d
at 1161 (holding that attempts to substitute counsel one
month before trial and then again two weeks before trial
were timely even when they would have required
continuances), and D’Amore, 56 F.3d at 1206 (holding that
an attempt to contact the court ten days before a hearing and
a motion one day before the hearing were timely), with
Mendez-Sanchez, 563 F.3d at 942 (holding that a motion two
weeks before a trial was not timely because trial had already
been continued twice, “involved significant discovery,” and
would have required a further continuance). This is in part
because “sometimes a defendant would be unable to make a
motion until shortly before trial—such as in a case where a
defendant realized his or her counsel was not prepared.”
Mendez-Sanchez, 563 F.3d at 942.
Here, Velazquez filed her first motion to substitute
counsel ten days after it became clear that Countryman had
defaulted on the pretrial-motion deadline. In the week
before her plea deadline, she filed another motion and made
three attempts to argue in court that Countryman had not
advised her on the plea. She made all of these efforts more
than a month before the trial.
Although this was a complex case with voluminous
discovery that might have required a continuance if new
counsel were appointed, Velazquez filed her motions
promptly. The third factor thus also favors holding that the
district court abused its discretion.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 36 of 40

36

UNITED STATES V. VELAZQUEZ
4.

Even if her motions could be considered untimely—a
reason the district court never relied on in its rulings on the
motions to substitute—the court’s failure to conduct an
adequate inquiry and the extent of the conflict outweigh any
untimeliness in the balance of factors. Taken together, the
factors weigh in favor of finding an abuse of discretion. We
thus conclude that the district court abused its discretion by
denying Velazquez’s requests to substitute counsel without
conducting an adequate inquiry.
The result was a
constructive denial of counsel that requires us to vacate
Velazquez’s guilty plea. 2 See Perry, 488 U.S. at 280;
Moore, 159 F.3d at 1158.

The Government argues against this result, asserting that
any concerns Velazquez had about her counsel were
remedied by meetings she had with him on December 10 and
11. The Government points out that Velazquez stated during
the December 11 change-of-plea hearing that she had
resolved the problems with her counsel during those
meetings. Even if meetings the day before a plea hearing
could potentially remedy serious and longstanding
2
In contrast to Musa, in which there was no record on the nature of
conflict, 220 F.3d at 1099, 1102–03, here we have substantial
information regarding Velazquez’s concerns about her counsel. As a
result, unlike in Musa, it is unnecessary for us to remand for a further
inquiry into Velazquez’s concerns before deciding whether her guilty
plea should be vacated. In any event, the Government has not argued
that vacatur of the plea is inappropriate if Velazquez succeeds on her
substitution-of-counsel claim, and any argument to that effect is
therefore waived.

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 37 of 40

UNITED STATES V. VELAZQUEZ

37

breakdowns in an attorney-client relationship in a
complicated case—a question we need not decide—we do
not believe that Velazquez’s statements at the December 11
hearing are a reliable indication that productive meetings
between Velazquez and her counsel had occurred. As
explained below, we think it is likely that her statements
instead were caused by the magistrate judge’s discussion of
the plea the day before. 3 See United States v. Anderson,
993 F.2d 1435, 1438 (9th Cir. 1993) (explaining that when a
judge improperly participates in a plea negotiation, the
defendant’s “responses to the judge’s questioning during the
formalistic colloquy do not allay our concerns regarding
voluntariness”), abrogated on other grounds by United
States v. Davila, 133 S. Ct. 2139 (2013).
Federal Rule of Criminal Procedure 11(c)(1) prohibits
any participation by a judge in plea negotiations. See United
States v. Bruce, 976 F.2d 552, 555–56 (9th Cir. 1992),
abrogated on other grounds by Davila, 133 S. Ct. 2139.
This includes magistrate judges even when they are neither
“the sentencing judge nor the judge presiding over the
defendant’s criminal case.” United States v. Myers, 804 F.3d
1246, 1253 (9th Cir. 2015). One of the reasons for Rule 11’s
ban on judicial participation in plea discussions is to avoid
the “high and unacceptable risk of coercing a defendant to
accept the proposed agreement and plead guilty.” Bruce,
976 F.2d at 556.
Because we have concluded that Velazquez’s plea must be vacated
on Sixth Amendment constructive-denial-of-counsel grounds, we need
not address the Government’s arguments that any Rule 11 violation is
subject to plain error review, and that Velazquez has failed to show
sufficient prejudice to meet that standard. We address Rule 11 only to
respond to the Government’s argument that her statements on December
11 indicated that the constructive denial of counsel had been remedied.
3

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 38 of 40

38

UNITED STATES V. VELAZQUEZ

In Bruce, for example, we were concerned that the
judge’s involvement, even though well-intentioned, carried
an undue risk of coercion. Id. at 556, 558. In that case, the
judge asked the prosecutor to summarize the plea offer and
state the range of possible sentences based on the charges.
Id. at 555. After confirming that the defendants understood
they were facing a possible life sentence if they proceeded
to trial, the judge asked them, “You don’t want to think about
that some more, the two of you?” Id. He continued, “I
would think seriously about it, both of you. Life in prison is
a long time. It is really nothing to play with.” Id. We
observed that the judge’s comments made “unambiguously
clear [his] preference that the defendants accept the plea
bargain and plead guilty,” despite the fact that the judge
never explicitly advised the defendants to do so. Id. at 556
n.2. We emphasized that any judicial involvement in plea
discussions carries an “unacceptably high risk of coercion.”
Id. at 556.
It is this risk that leads us to treat Velazquez’s statements
at the December 11 hearing as unreliable. Even after
explicitly recognizing that Velazquez was disinclined to
plead guilty, Judge Logan proceeded for over an hour to
effectively urge acceptance of the plea deal. He repeatedly
asserted that the Government would not change the terms of
its offer if Velazquez received a new lawyer. He elicited
comments from the prosecutor on the deal’s advantages. He
emphasized that Judge Teilborg had already decided that
Countryman would be her attorney should she go to trial and
tried to assuage her concerns about his performance. Judge
Logan speculated that the evidence against her at trial could
be “devastating,” but that, if she pleaded guilty, Judge
Teilborg would be receptive to arguments that would shorten
her sentence. And, finally, when Velazquez asked why the
plea agreement required her to agree that she was satisfied

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 39 of 40

UNITED STATES V. VELAZQUEZ

39

with her attorney, Judge Logan answered that Rule 11
required it. 4 Although Judge Logan periodically stated that
he was not interfering with the parties’ negotiations or
advising Velazquez what to do, the full picture that
Velazquez must have taken away from the December 10
hearing is apparent: the only way to avoid facing a mountain
of devastating evidence at trial with an attorney she did not
trust was to plead guilty, and to plead guilty she must attest
that she was satisfied with her attorney. 5
As a result, Velazquez’s two meetings with her attorney
after the December 10 hearing and her “responses to the
judge’s questioning during the formalistic colloquy” on
December 11 affirming her satisfaction with her attorney “do
not allay our concerns.” See Anderson, 993 F.2d at 1438.
We conclude that there is a substantial risk that Velazquez
agreed that she was satisfied with her attorney’s performance
because the magistrate judge pressured her to accept the plea
and she knew that she had to make that statement to enter the
plea. Her December 11 statement thus does not undermine

Of course, we do not fault the magistrate judge for accurately
responding to Velazquez’s question about Rule 11. We include this
because it is an important part of the message that Velazquez received.
4

The Government suggests that the fact that a day passed between
the December 10 hearing and her December 11 plea allowed any
coercion to dissipate. We disagree. See United States v. Sanya, 774 F.3d
812, 818, 822 (4th Cir. 2014) (finding a Rule 11 violation where plea
changed five days after Rule 11 violation); Anderson, 993 F.2d at 1438–
39 (finding a Rule 11 violation where plea changed two days after
violation); Bruce, 976 F.2d at 554–56 (finding a Rule 11 violation where
plea changed day after violation).
5

Case: 14-10311, 05/01/2017, ID: 10416145, DktEntry: 87-1, Page 40 of 40

40

UNITED STATES V. VELAZQUEZ

our conclusion that the denial of Velazquez’s motion to
substitute counsel was an abuse of discretion. 6
IV. CONCLUSION
For the foregoing reasons, we VACATE Velazquez’s
convictions and REMAND for further proceedings.

KOZINSKI, Circuit Judge, concurring:
I join Judge Friedland’s thorough opinion without
reservation. I write only to note that the judges below acted
with what they believed to be Velazquez’s best interest at
heart. Even now, withdrawing from the plea may not be
wise, but it’s Velazquez’s choice to make. I hope and trust
that the government will accept her choice with generosity
and compassion.

The transcript of the hearing on December 11 and Velazquez’s
actions after it serve only to strengthen this assessment. On December
11, when Judge Logan asked whether Velazquez was satisfied with her
attorney, she hesitated to respond. She and Countryman conferred off
the record. He then said, “We don’t want to address this particular
issue.” When the judge asked her again, Velazquez said she was
satisfied. But only two months later, a privately retained attorney
substituted in for Countryman. Taken together, these facts suggest that
Velazquez was not, in fact, satisfied with Countryman’s performance.
6