United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Ignacio
Salcido's request that Jeffrey Lahann no longer represent
him in this matter, including at the February 28, 2019,
sentencing hearing, due to issues in communication. As
background, the Court notes that this hearing was originally
set in October 2017. (Doc. 66). On September 5, 2018, the
Court found Mr. Salcido competent to stand trial. (Doc. 129).
Court has appointed four attorneys to Mr. Salcido, and each
attorney is competent. The number of attorneys appointed in
this case is highly unusual, though the Court has endeavored
to ensure Mr. Salcido have representation. More important
than the number of attorneys appointed thus far, the Court
construes Mr. Salcido's conduct as his clear
unwillingness to accept representation.
Court has also received twenty-eight letters directly from
Mr. Salcido, prepared without counsel, and it appears counsel
was not copied. (Docs. 93, 98, 103, 105, 114, 122, 125, 130,
133-35, 137, 141, 143, 146, 150-153, 158, 163, 165-171). Mr.
Salcido has continued to send letters to the Court in
violation of the Court's order to communicate with the
Court only through his attorney. Moreover, Mr. Salcido's
statements, both in his letters and his outbursts in open
court unreasonably complaining of his counsel, whoever he
happened to be, further clearly indicate Mr. Salcido's
unwillingness to accept representation.
addition, the Court remains persuaded that Mr. Salcido is
competent as required by law. Though Mr. Salcido's
written and verbal statements may be somewhat rambling, he
communicates intelligently and coherently, and, based on my
observations of Mr. Salcido in open court, he remains
Court acknowledges that "[t]he Sixth Amendment
guarantees the right to counsel during all 'critical
stages of the prosecution,' and that this right is
applicable during sentencing hearings." United
States v. Veras, 51 F.3d 1365, 1369 (7th Cir.1995)
(citations omitted). Nonetheless, criminal defendants do not
have a right to appointed counsel of their choice.
Yohey v. Collins, 985 F.2d 222, 228 (5th Cir.1993)
Court is guided by the Seventh Circuit, which has explained
that a defendant can waive the right to counsel as follows:
A defendant can waive his right to counsel through conduct as
well as words. Because representation by counsel and
self-representation are mutually exclusive entitlements, the
assertion of one right constitutes a de facto waiver
of the other.
Additionally, we held in United States v. Irorere,
228 F.3d 816, 826 (7th Cir.2000), that a defendant may waive
the right to counsel through his own "contumacious
conduct." There, we upheld the district court's
refusal to appoint counsel for the defendant's sentencing
hearing because the defendant had already frustrated four of
the court's attempts to provide counsel for him. See
Id. at 827. The facts of Irorere are strikingly
similar to those of Traeger's case. Traeger went through
three lawyers, firing them for questionable reasons. In the
process, he managed to delay his sentencing for almost 2
years. We review the district court's refusal to appoint
counsel for abuse of discretion and will not reverse unless
the failure to do so would result in fundamental unfairness
impinging on due process rights. See Id. Under these
circumstances, the district judge did not even come close to
abusing his discretion in refusing to appoint a fourth lawyer
to represent Traeger.
United States v. Traeger, 289 F.3d 461, 475 (7th
Cir. 2002) (citations omitted).
sentencing hearing, the Court determined that Mr. Lahann be
allowed to withdraw as counsel for Mr. Salcido due to
communication issues. The Court also determined that Mr.
Salcido waived his right to another appointed counsel. In
making that determination, the Court finds that Mr. Salcido:
1. attempted to represent himself, for example, through a
multitude of letters to the Court, while he had appointed
2. caused considerable delay in this case by going through
four competent lawyers, rejecting them for "questionable
reasons," and, in doing so, delaying the sentencing
hearing well over a year.
other words, Mr. Salcido de facto waived his right
to appointed counsel by engaging in self-representation and
through his own "contumacious conduct" waived the
right to appointed counsel.
waived the right to appointed counsel, Mr. Salcido had two
options for proceeding: retaining counsel or
self-representation. First, Mr. Salcido made it clear at the
sentencing hearing that he did not intend to retain counsel.
Even if he did intend to retain counsel, "[i]n the Sixth
Amendment context, 'last minute requests' to retain
new counsel are not only 'disfavored,' but ...