Fourth Circuit Determines Conflict of Interest in Glover

Glover:  Conflict of Interest Case in Fourth Circuit, 19-4801

Glover was charged with conspiracy to possess with the intent to distribute drugs.  He tried to hire an attorney and sent that attorney thousands of dollars in advance for his services.  The attorney sent the money to the DEA believing that they were drug proceeds. 

The government seized the money and designated it subject to forfeiture.   Glover started filing pro se motions indicating that the money was not tainted and asked for a Farmer hearing (note:  a Farmer hearing is when an accused person who has had money seized [because the government thinks that the money was attained through criming] works to prove that some or all of the money was attained through legal means.  A person would ask for a Farmer hearing because they want some of all of their money to get “unseized” so they can hire a lawyer).

Instead of setting the Farmer hearing, the district court held a hearing five months after the Farmer request “focused in relevant part on Glover’s frequent pro se motions and whether Glover wanted to continue to be represented by counsel or represent himself—something Glover persistently declined to do. The district court stated that it was “not going to get into” the Farmer issue and would not appoint new counsel.”

Glover stated the following about the case:

“To me, it feels like my lawyer is not working for me. . . . I am still pushing to the point that I want to be represented by counsel of choice, and the only way we can get to that aspect of the case is [to] have a hearing about the money. I think that without that, I am still forced to keep Mr. Ehlies because I am not prepared, I am not knowledgeable enough [about] the system to be coming in court fighting against everybody.”

Glover pled guilty and had a Rule 11 hearing where he stated that he had enough time to talk to his lawyer about everything and discussed the case with the lawyer. 

Soon after, Glover filed a motion to withdraw the plea:

“Glover asserted (among other things) that his counsel told him to take the plea because refusing would “upset” and “offend” the judge and result in him receiving a life sentence.”  Glover also indicated that there was an upcoming suppression hearing that his lawyer was not ready for and Glover would not be able to get a continuance for the hearing. 

At the hearing Glover indicated that his lawyer had a conflict of interest given the allegations.  Again the court stated that either Glover could proceed pro se or be represented by the court appointed lawyer.  The court denied Glover’s request to withdraw the plea.  He was sentenced to 120 months.  The calculated guideline range was 292 to 365 months. 

The Farmer Hearing

The court noted that “The [Farmer] hearing is the means by which the district court may determine whether a potential Sixth Amendment problem is infecting an ongoing criminal proceeding and determine appropriate next steps.”  Although the money was ultimately seized administratively, the court indicated that there should have been a Farmer hearing in the District court. 

However the court noted that “in United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010),” the 4^th Circuit held that “[w]hen a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea” and “has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea [under Rule 11].”  This would include the counsel of choice argument that he made as well as the Farmer hearing claim.  

The Conflict/Ineffective Assistance of Counsel Issue

Glover also indicated that there was a conflict of interest at his plea withdrawal hearing.  Because an actual conflict of interest constitutes ineffective assistance of counsel, the question became one of ineffective assistance.  Because this was a direct appeal instead of a Motion to Vacate, the question became if counsel’s ineffectiveness conclusively appeared on the face of the record.  The court determined that the answer to that question was yes. 

The court noted that “in cases where an attorney has an actual conflict of interest, prejudice is presumed if the defendant “demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’”

Further, in Christeson v. Roper, 574 U.S. 373, 378 (2015), the court noted that “Lawyers ‘cannot reasonably be expected to make’ arguments advancing a client’s claim that, in essence, ‘denigrate their own performance.’” 

““Significant conflict of interest[s]”’ arise[ ] when an attorney’s ‘interest in avoiding damage to [his] own reputation’ is at odds with his client’s ‘strongest argument—i.e., that his attorneys had abandoned him.’”  Further, “when a defendant files a pro se motion to withdraw her plea based on alleged misconduct by her attorney, it puts her attorney in exactly this position.”  This is what happened here.  Glover’s pro se motion to withdraw his plea was based on allegations that his lawyer inappropriately coerced him into taking it by not getting ready for a suppression hearing and telling Glover that he would not be able to get a continuance. 

The lawyer argued against Glover’s motion to withdraw the plea by defending the Rule 11 colloquy and stating that the motion was not in Glover’s best interest to withdraw the plea and stated that he did not endorse the motion.  These things made it clear that there was a conflict of interest: “A defendant is entitled to counsel “whose undivided loyalties lie with his client.”

 The record shows that there were statements by the attorney against his client’s motion to withdraw the plea.  Counsel basically said that the client was better off with the plea and that there were not problems with the rule 11 colloquy. The court reasoned that this could equal malpractice.  

The court indicated that the case should be remanded back and that there should be a plea withdrawal hearing.  At that hearing “his new attorney will investigate the claims; present what she finds, as well as an argument supporting her client’s motion, to the district court; and leave to the district court the decision whether Glover is entitled to withdraw his plea based on the evidence presented.” 

The Fourth Circuit Remanded the Case back down to the District Court with instructions to have a new plea withdrawal hearing and direct that conflict-free counsel represent Glover.