Argued and Submitted, Pasadena, California December 9, 2014.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-CR-217-ODW-1. Otis D. Wright, II, District Judge, Presiding.
The panel affirmed a conviction for wire fraud and money laundering, vacated the sentence, and remanded for resentencing before a different judge.
The panel held that the defendant's Sixth Amendment right to counsel was violated by the district court's decision to proceed with victim allocution in the absence of trial counsel during a portion of the defendant's critical sentencing stage. The panel held that the denial of counsel was structural error, that the error was complete when the right to counsel was denied, and that no additional showing of prejudice was required.
The panel held that the district court did not abuse its discretion in denying the defendant's motion to withdraw his guilty plea.
The panel concluded that reassignment to a different judge for resentencing is advisable to preserve the appearance of justice because the trial court committed structural error by proceeding with victim allocution while defense counsel was not present, and because the victim's statements were highly significant in the judge's sentencing consideration.
Concurring in part and dissenting in part, Judge Bea agreed with the majority that the denial of the defendant's motion to withdraw his guilty plea should be affirmed, but disagreed that the district court committed plain error when it permitted one victim to allocute without the defendant's preferred counsel present.
Sean K. Kennedy, Federal Public Defender, and Gail Ivens, Deputy Federal Public Defender, Los Angeles, California, for Defendant-Appellant.
André Birotte, Jr., United States Attorney, Robert E. Dugdale and Jamie A. Lang, Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee.
Before: Barry G. Silverman, Carlos T. Bea, Circuit Judges, and Robert Holmes Bell, District Judge.[*] Opinion by Judge Bell; Partial Concurrence and Partial Dissent by Judge Bea.
Robert Holmes Bell, District Judge:
Steven Yamashiro appeals his conviction and sentence for wire fraud and money laundering. We affirm his conviction, but vacate his sentence as a result of structural error and remand for resentencing before a different judge.
I. Factual Background
From December 2005 to December 2007, Steven Yamashiro, a registered investment advisor and securities agent, engaged in a scheme to defraud his clients. The scheme involved more than ten victims and more than $3.5 million. Yamashiro was charged with eight counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of money laundering in violation of 18 U.S.C. § 1957, and two asset forfeiture claims pursuant to 18 U.S.C. § § 981(a)(1)(C) and 982. On December 27, 2011, Yamashiro pleaded guilty to two counts of wire fraud (Counts 1 & 6) and one count of money laundering (Count 10). Yamashiro waived
any right to appeal his convictions, except a claim based on an involuntary plea. He also waived his right to appeal a sentence of 78 months or less.
The Probation Office calculated a total offense level of 26 and a criminal history category of I, resulting in a Sentencing Guidelines range of 63-78 months of imprisonment. The Probation Office recommended a low-end sentence of 63 months.
On September 17, 2012, the day scheduled for sentencing, Yamashiro requested a substitution of counsel. The district court granted the motion, set a new date for sentencing, and released Yamashiro's original counsel from further representation. Although Yamashiro's newly substituted counsel had not yet arrived in court, the court agreed to listen to allocution from the victim witnesses who were in attendance so that their travel to court would not be in vain. The court requested Yamashiro's original counsel who had just been released to stay for the victim allocution until Yamashiro's newly substituted counsel arrived, but advised him that he did not have to do anything.
Glenn Hale, the first victim witness, described his relationship of trust with Yamashiro, and the devastating consequences the fraud had on his life. He requested that the court impose the maximum penalty. After Hale completed his allocution, Yamashiro's new counsel arrived in ...