United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING MOTION FOR SUBSTITUTION
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Timothy Scott Wenk
("Wenk" or "Defendant") and his
attorneys' Motion to Withdraw as Attorneys and Appoint
Counsel. ("Motion," ECF No. 62.) Defendant's
attorneys are presently Assistant Public Defenders Nia Vidal
and Mary Maguire (collectively "Defendant's
attorneys"). For the reasons that follow, the Motion
will be denied.
Government began its case against Defendant by filing a
Criminal Complaint on June 13, 2017. Defendant was arrested
on June 15, 2017, and Assistant Public Defender Vidal was
appointed as his counsel the same day. On July 11, 2017, the
Grand Jury returned an Indictment (ECF No. 10) charging
Defendant with a single count of wire fraud in violation of
18 U.S.C. § 1343, and on August 7, 2017, Assistant
Public Defender Maguire entered a Notice of Appearance as
co-defense counsel. On September 6, 2017, the Grand Jury
returned a Superseding Indictment (ECF No. 14) charging
Defendant with sixteen counts of wire fraud in violation of
18 U.S.C. § 1343. Thereafter, the Government and
Defendant reached a Plea Agreement (ECF No. 43) pursuant to
which Defendant entered a plea of guilty to Counts One and
Twelve of the Superseding Indictment on December 7, 2017.
Court originally set a sentencing date of March 23, 2018.
After granting four requests for continuance (ECF Nos. 51,
56, 59, 61), the sentencing was scheduled for June 26, 2018.
Defendant filed the Motion presently before the Court on June
12, 2018, and the Court held a hearing on June 14, 2018
("Hearing"). A significant portion of the Hearing
was conducted outside of the presence of counsel for the
Government, Assistant U.S. Attorney Brian Hood. However, all
parties, including counsel for the Government, were given the
opportunity to argue their respective positions. In order to
adequately address the issues raised in the Motion, the Court
has continued Defendant's sentencing for the fifth time.
STANDARD OF REVIEW
Sixth Amendment to the U.S. Constitution guarantees a
defendant in a criminal prosecution the right to the
assistance of counsel. Importantly, however, criminal
defendants requiring court-appointed counsel do not have the
right to select a counselor of their choosing. United
States v. Gonzalez-Lopez, 548 U.S. 140, 153 (2006).
Rather, once competent counsel is appointed, district courts
maintain a significant degree of discretion in deciding
whether subsequent events support a substitution of counsel.
United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988) (citing Morris v. Slappy, 461 U.S. 1, 13
(1983)). In making such a decision, a district court can
weigh its own interest "in the orderly administration of
justice." United States v. Reevey, 364 F.3d
151, 157 (4th Cir. 2004). The Fourth Circuit has outlined
three factors that are relevant to whether a district court
has abused its discretion in ruling on a motion to substitute
counsel: "(1) timeliness of the motion; (2) adequacy of
the court's inquiry; and (3) 'whether the
attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate
defense.'" United States v. Blackledge, 751
F.3d 188, 194 (4th Cir. 2014) (quoting Gallop, 838
F.2d at 108).
and his attorneys filed the present Motion approximately two
weeks before Defendant's sentencing was scheduled to take
place. The Government concedes that the Motion is timely
based upon guiding Fourth Circuit case law. (Gov't Resp.
Opp'n 3, ECF No. 64.) As stated above, the Court held the
Hearing on June 14, 2018 to discern whether the issues
dividing Defendant and his attorneys had led to such a
deterioration of the attorney-client relationship that
Defendant's attorneys lacked "the ability to conduct
an adequate defense." United States v. Johnson,
114 F.3d 435, 443 (4th Cir. 1997). In order to facilitate
forthright communication by Defendant and his attorneys
without fear of prejudicially divulging privileged
information, the Court excused counsel for the Government
from a significant portion of the Hearing.
Court is mindful of the potentially detrimental effect that
revealing details from the ex parte portion of the
Hearing may cause to the Defendant. Accordingly, the Court
will describe the relevant disputes at a sufficient level of
generality that Defendant will not be prejudiced. First and
foremost, it is clear from both the tone and tenor of the
Hearing that the relationship between Defendant and his
attorneys has not eroded to the point where communication is
impossible. Indeed, from the representations of the
Defendant, Defendant's attorneys, and the Government, it
appears that Defendant and his attorneys have communicated
with frequency from the inception of this case through the
issue presently before the Court.
crux of Defendant's argument for substitution of counsel
is a disagreement with his attorneys over the strategy to
employ at sentencing. An adequate defense requires "the
marriage of the attorney's legal knowledge and mature
judgment with the defendant's factual knowledge."
United States v. Smith, 640 F.3d 580, 588 (4th Cir.
2011). Defendant's disagreement with "counsel's
[sentencing] strategy and tactics ... does not constitute a
breakdown in communications sufficient to warrant new
appointed counsel." Id., at 589 (citing
Johnson, 114 F.3d 443-44). Defendant's attorneys
have digested thousands of documents and spent countless
hours communicating with both Defendant and the Government in
preparation for Defendant's sentencing. They undoubtedly
are intricately familiar with the nuances of Defendant's
complicated fraud scheme and the entirety of this case.
Consequently, Defendant's attorneys will certainly be
able to capably provide the "adequate defense"
required by the Fourth Circuit.
against this disagreement over strategy and any attendant
communication difficulties is the Court's interest in
administering justice in an orderly fashion. In this case,
that interest is substantial. As described above,
Defendant's attorneys have spent an immense amount of
time and effort preparing for sentencing and have required
multiple continuances to do so. (See ECF Nos. 56,
61.) Any newly appointed counsel would undoubtedly be
required to duplicate a significant portion of the work
already done by Defendant's attorneys, in order to
develop a sentencing strategy compatible with Defendant's
expectations. In all likelihood, this would take months, not
merely a few days or weeks. Allowing such a delay in this
case, or similar cases, would not only hamper this
Court's ability to operate effectively, but would also be
a disservice to the approximately 47 victims in this case who
together, these factors do not support appointing substitute
counsel for Defendant. The dispute highlighted by Defendant
does not demonstrate that he and his attorneys are unable to
communicate; instead, it is shows that they disagree over the
strategy to employ at sentencing. There is no reason to
believe that new counsel would approach it differently.
Defendant's attorneys are seasoned trial lawyers who have
tried numerous complex cases before this Court. They have
clearly expended substantial effort familiarizing themselves
with the facts of the case. This Court has a significant
interest in keeping this case on a steady course. This matter
has now been continued five times, and the appointment of new
counsel would require another significant delay. Accordingly,
the Motion will be denied.