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Court of Appeal:

No Right to Counsel Violation When Officers Present for Chat

Opinion Says Inmate Failed to Show Deliberate Interference, Prejudice by Marshals Being in Courtroom During Only Conversation With Lawyer in Case Involving Rare Language Translation Issues

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals held Friday that the Sixth Amendment rights of a criminal defendant—who spoke a rare language requiring a remote translator—were not violated by the fact that his only conversation with his attorney occurred in the courtroom in the presence of law enforcement officers, finding no structural violation and the absence of prejudicial deliberate indifference.

In a memorandum opinion, signed by Circuit Judges Gabriel P. Sanchez, Holly A. Thomas, and District Court Judge James Donato of the Northern District of California, sitting by designation, the court said the defendant had failed to show structural error or deliberate indifference where the judge offered to allow counsel to put the case over until the end of the day to allow the opportunity for a private conversation.

However, the jurists criticized what they described as the “cursory treatment of serious questions regarding Felipe-Zavala’s ability to speak privately with his counsel” by then-Magistrate Judge Michael J. Seng of the Southern District of California (now retired and working as a private arbitrator). The jurists acknowledged that Seng had offered counsel more time but were concerned that he did not conduct a “thorough inquiry” into the facts underlying the claim.

Donato wrote separately to state his views “about the boundaries of the decision” and to “highlight a lesson drawn from the…court’s conduct,” having remarked during oral argument that Seng “ran this thing like an express train” and suggesting that the case should have been continued to allow for fuller consultation.

Illegal Entry

Appealing his conviction was Feliciano Felipe-Zavala, who was convicted of committing a misdemeanor illegal entry under 8 U.S.C. §1325(a) in March 2020. Felipe-Zavala hails from Mexico but speaks only Purépecha, an indigenous language.

Speaking with his attorney, identified in court records as Kara L. Hartzler of Federal Defenders of San Diego Inc., required a relay interpretation from Purépecha to Spanish to English, and, because the only available translators of the native language reside in Mexico, communication could only be accomplished through phone conversations.

Hartzler contended that cellphones were not permitted in the jail or the holding area of the courthouse, forcing her to communicate with her client in the courtroom, in the presence of deputies with the U.S. Marshals Service and border patrol agents, when he made an appearance on his case.

After speaking with him, she acknowledged that he was considering a guilty plea but orally moved that the “case be dismissed based on…Sixth Amendment, due process and equal protection” principles, arguing:

“As far as an opportunity to explain all of the rights that Mr. Felipe had and would be giving up, I was able to cover all of that. However, my concern falls more in line with the fact that because Mr. Felipe and I did not have a safe space to talk about things, I cannot know what he did or did not…tell me or explain.”

Seng denied the motion, saying he was “not satisfied” that the purported violation was “anything more than theoretical” and asked if counsel wanted more time with her client. She responded by saying that Felipe-Zavala “would like to plead guilty.” After accepting his plea, Seng sentenced the defendant to time served.

Senior District Court Judge William Q. Hayes of the Southern District of California affirmed the judgment of conviction after Felipe-Zavala filed a notice of appeal of the magistrate judge’s opinion.

Ninth Circuit’s View

The judges noted that the defendant cites two Ninth Circuit decisions in the Nordstrom v. Ryan case, decided in 2014 and 2017, in which the court held that an inmate’s Sixth Amendment claims, filed under 42 U.S.C. §1983, were dismissed in error where a prison policy called for a page-by-page review of confidential outgoing legal mail to his attorney.

Felipe-Zavala argues, based on the Nordstrom decisions, that the right to assistance of counsel is violated when the government interferes with the confidential relationship between a defendant and his counsel, and the intrusion causes substantial prejudice. Applying this standard, the panel wrote:

“The record here does not substantiate Felipe-Zavala’s assertion that the government deliberately interfered with his confidential communication….Felipe-Zavala references…policies that allegedly prohibit the use of cell phones in the jail…and require the presence of law enforcement in the courtroom. Felipe-Zavala contends that he was effectively deprived of the opportunity to communicate confidentially with his counsel because of these policies. However, Felipe-Zavala does not offer these policies for the court’s review….Instead, the record shows only that it was Felipe Zavala’s counsel’s belief that these policies would render futile additional steps to request more time and ensure confidentiality.”

Previously Unaware

Pointing out that “both the prosecution and the court were previously unaware of the problems” communicating with his attorney, they concluded that “[t]he record shows, at most, passive government involvement in the issues Felipe-Zavala faced, which is insufficient to demonstrate deliberate interference.”

As to substantial prejudice, they rejected the defendant’s assertion that “he need not show prejudice…because the deprivation of his right to confidential communication amounted to structural error,” saying:

“[T]he facts of this case differ significantly from those where structural errors have been found.”

However, they added:

“Although Felipe-Zavala has not demonstrated a violation of his Sixth Amendment rights, the magistrate judge’s cursory treatment of serious questions regarding Felipe-Zavala’s ability to speak privately with his counsel is concerning….An alleged violation of this right warrants a thorough inquiry into the factual circumstances underlying this claim and the proactive use of the remedial tools available to judges to ensure that conferral rights and confidential communication are safeguarded.”

Concurring Opinion

Donato took issue with analyzing the case under the framework announced in the Nordstrom opinions, highlighting the fact that the case involved a civil matter.

He commented that “[t]his case is different from Nordstrom” in that it “entails a challenge to a conviction based on an alleged intrusion into the attorney-client relationship and communications, a circumstance which both Nordstrom panels took pains to distinguish,” but wrote:

“Felipe-Zavala himself fully and repeatedly embraced the deliberate interference and prejudice standard stated in the Nordstrom cases, and our decision today correctly concludes that standard is not met on this record. But I do not read our decision to decide that the Nordstrom standard is, in fact, the correct standard to evaluate confidential-communication claims under the Sixth Amendment on direct appeal from a judgment of conviction. Nor do I read our decision to suggest that, if a defendant advanced a different argument more directly grounded in the text of the Constitution, he or she could not succeed on appeal with a record like this one.”

Little Substance

Saying that the Sixth Amendment’s guarantee “has little substance if it does not safeguard a criminal defendant’s right to communicate with a lawyer privately and outside the presence of government agents,” he argued that “[i]f similar circumstances arise…in the future, a criminal defendant…may be well advised to make the case that a defendant need not demonstrate deliberate interference by the government which substantially prejudiced his defense.”

Addressing Seng’s consideration of the Sixth Amendment claim, he cautioned:

“I agree with the majority that the district court was by no means cavalier with respect to Felipe-Zavala’s situation. Even so, it should have done more to provide him with a secure setting to talk with his lawyer privately, with relay interpretation, free of the presence of government agents or other third parties….A little extra effort along these lines would have made all the difference with respect to the right to counsel.”

The case is U.S. v. Felipe-Zavala, 23-2840.