Filed: May 05, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7419 UNITED STATES OF AMERICA, Petitioner – Appellee, v. THOMAS BLACKLEDGE, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:09-hc-02118-D-JG) Argued: January 30, 2014 Decided: May 5, 2014 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Vacated and remanded by published opinion. Judge Gregory wrote the m
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7419 UNITED STATES OF AMERICA, Petitioner – Appellee, v. THOMAS BLACKLEDGE, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:09-hc-02118-D-JG) Argued: January 30, 2014 Decided: May 5, 2014 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Vacated and remanded by published opinion. Judge Gregory wrote the ma..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7419
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
THOMAS BLACKLEDGE,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:09-hc-02118-D-JG)
Argued: January 30, 2014 Decided: May 5, 2014
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Judge Keenan joined. Judge Shedd
wrote a dissenting opinion.
ARGUED: Richard Croutharmel, Raleigh, North Carolina, for
Appellant. Denise Walker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas G. Walker, United States Attorney, Rudy A. Renfer, Edward
D. Gray, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
GREGORY, Circuit Judge:
Respondent-Appellant Thomas Blackledge has been civilly
committed as a sexually dangerous person under the Adam Walsh
Child Protection and Safety Act of 2006 (“Adam Walsh Act”),
codified at 18 U.S.C. §§ 4247-48. Prior to a hearing on his
commitment, Blackledge successfully moved for the appointment of
an expert forensic examiner, who opined that he was indeed a
sexually dangerous person. Blackledge then sought the
appointment of a second expert and an extension of the deadline
for discovery. A magistrate judge denied both motions without
prejudice, and when counsel renewed the motions after the
discovery deadline had passed, the motions were again denied.
Citing an internal ethical conflict, Blackledge’s attorney later
moved to withdraw as counsel, which the magistrate judge denied.
Counsel appealed the ruling to the district court and filed a
second motion to withdraw, this time also noting that Blackledge
had filed a bar complaint against her. The district court
denied both the appeal of the magistrate judge’s ruling and the
second motion to withdraw.
On appeal, Blackledge challenges the denial of the motions
to extend and reopen the discovery period, motions to withdraw
as counsel, and motions to appoint a second expert. Because we
find that the district court abused its discretion in denying
the motions to withdraw as counsel, we vacate and remand.
2
I.
As relevant to these proceedings, we briefly summarize
Blackledge’s criminal history. 1 In 1960, at age 15, Blackledge
was convicted of first-degree murder in Wyoming for bludgeoning
his 15-year-old girlfriend to death after she rebuffed his
sexual advances. He was sentenced to life imprisonment, but
released at age 23 after serving 8 years in state prison. On
October 22, 1986, Blackledge was sentenced in the United States
District Court for the District of Colorado to 12 years of
imprisonment and 5 years of probation for several counts of
mailing and producing child pornography. For the same conduct,
he was also sentenced to 20 years’ imprisonment for sexual
exploitation of children in Larimer County, Colorado and in Weld
County, Colorado, to run concurrently with his federal sentence.
Blackledge also self-reported several undetected incidents of
child molestation, involving between eight and twelve child
victims ranging from age 5 to age 17.
Following his release, Blackledge violated the terms of his
probation by possessing images of nude children on his home
computer. He was consequently sentenced on April 27, 2005 to 6
1
The following pertinent factual findings are not disputed
except as otherwise noted, and to the extent that there is a
dispute, we construe the evidence in the light most favorable to
the Government as the prevailing party before the district
court. See United States v. Antone, 742 F.3d 151, 155 n.1 (4th
Cir. 2014).
3
years’ imprisonment by the United States District Court for the
District of Colorado. He was also sentenced to 6 years’
imprisonment in Weld County, Colorado on May 3, 2004 for one
count of sexual exploitation, to run concurrent with the federal
sentence for the probation violation. Blackledge had an
expected release date of September 23, 2009. On September 15,
2009, however, the Government filed a Certification of a
Sexually Dangerous Person (“Certification”) pursuant to 18
U.S.C. § 4248(a) in the United States District Court for the
Eastern District of North Carolina, and his release was stayed.
The court appointed the Federal Public Defender’s Office to
represent Blackledge, and on March 11, 2011, Sonya Allen
(“Attorney Allen”) entered an appearance on Blackledge’s behalf.
Attorney Allen moved for the appointment of Dr. Terrence
Campbell as an expert forensic examiner, which a magistrate
judge granted on August 4, 2011. After interviewing Blackledge
and considering various materials, Dr. Campbell opined that he
was indeed a sexually dangerous person under the Adam Walsh Act.
On October 11, 2011, Attorney Allen moved for the
appointment of a second expert, Dr. Joseph Plaud, and requested
an extension of the time for discovery. The magistrate judge
denied the motions on November 4, 2011 without prejudice,
finding that Blackledge failed to show the need for the
appointment of a second expert. The magistrate judge granted a
4
later request to extend discovery until December 22, 2011, and
the district court set a bench trial for June 14, 2012. On
April 17, 2012, two additional attorneys entered appearances as
Attorney Allen’s co-counsel, and the court continued the trial
until August 2, 2012. On June 14, 2012, Attorney Allen filed a
sealed motion renewing Blackledge’s request to appoint Dr. Plaud
and asking the court to reopen discovery and continue the trial.
The magistrate judge denied the motions on July 2, 2012, finding
that Blackledge again failed to show good cause for the
appointment of a second expert, and that appointment at that
stage would disrupt the court’s prior scheduling orders.
On July 10, 2012, Attorney Allen filed a motion to withdraw
as counsel on the ground that an internal conflict had arisen
and she could “no longer continue to ethically represent”
Blackledge. J.A. 80. Speaking carefully to avoid violating
client confidences or revealing trial strategies, Attorney Allen
represented at a hearing on the motion that her internal ethical
conflict arose from the fact that Blackledge requested to see
certain items that she could not provide him. She added that
Blackledge wished to proceed with new counsel and that she had
located a panel attorney experienced in § 4248 hearings who
could take over the matter immediately. Blackledge also stated
at the motions hearing that Attorney Allen had failed to provide
5
him certain documents he requested, and that he felt ignored by
her, which made it very difficult for them to communicate.
Blackledge complained in particular about Attorney Allen’s
failure to obtain a second expert, and Attorney Allen explained
that she did not renew the motion earlier because she thought
she had more time to do so. While Attorney Allen asserted that
Dr. Plaud said only that it was possible that he would find
Blackledge not to be a sexually dangerous person, her co-counsel
represented that Dr. Plaud had preliminarily indicated that he
could testify favorably for Blackledge. Attorney Allen asserted
that she had failed at allaying Blackledge’s concerns about his
defense, and that, as a result of her error, they no longer had
a rapport that allowed him to trust her. When asked if she
could represent Blackledge zealously if the motion were denied,
Attorney Allen stated that “it would be with great difficulty,”
though she is a professional and “would certainly do [her] job.”
J.A. 101. She opined that increasing the frequency of
communications would not repair their relationship since she
could not change her prior failure to timely renew the motion,
which was the content of the discussions.
The magistrate judge denied the motion to withdraw, finding
that it was untimely and that there was no breakdown in the
attorney-client communications that prevented an adequate
defense. On July 23, 2012, Attorney Allen appealed the
6
magistrate judge’s ruling to the district court, and on July 30,
2012, she filed a second motion to withdraw. The second motion
asserted that Blackledge had filed a state bar grievance against
her, causing a conflict of interest where she could not defend
against the bar complaint while also representing Blackledge.
The bench trial began on August 2, 2012, and the district
court first took up the appeal of the magistrate judge’s ruling
and the second motion to withdraw. Attorney Allen described her
relationship with Blackledge as follows: “our relationship has
deteriorated to a point that we cannot discuss his case,
strategies of his case. We cannot effectively communicate.
That has tied my hands with regard to being able to represent
him effectively.” J.A. 148-49. She continued: “One of the
essential parts of defending someone would be whether they
decide to testify or not and how you would go about preparing
them for that testimony. That’s not even something I can
discuss with Mr. Blackledge, so we have not been able to address
that appropriately.” J.A. 151. Blackledge also explained to
the court that he had not “even really had any trial preparation
with [Attorney Allen]” and that he had not seen her “for quite
sometime [sic].” Id. Attorney Allen added that the bar
complaint had put her “at odds with” Blackledge. J.A. 149.
The district court told Blackledge that he might have to
proceed pro se if the motions were granted, and Blackledge
7
stated that he would proceed with Attorney Allen if forced to
because he could not defend himself. The court denied the
appeal and the second motion, finding that Attorney Allen had
not abandoned Blackledge as he claimed and that there was not a
breakdown in communications that would prevent an adequate
defense. Attorney Allen moved to bifurcate the trial so that
the available witnesses could testify, but Blackledge would be
allowed to later present an expert opinion from Dr. Plaud. The
court denied the motion to bifurcate, and the trial proceeded.
At trial, the Government presented the testimony of two
expert witnesses, Dr. Christopher North and Dr. Campbell, and
the written report of a third expert witness, Dr. Tonya Cunic.
All three experts diagnosed Blackledge with pedophilia —
sexually attracted to boys and girls, non-exclusive type — among
other psychiatric disorders. All three experts concluded that
Blackledge met the criteria for a sexually dangerous person
under § 4248. Blackledge did not testify or present evidence.
On August 10, 2012, the court found by clear and convincing
evidence that Blackledge is a sexually dangerous person under
the Adam Walsh Act and ordered his commitment. The court
specifically found that Blackledge engaged in child molestation
and sexually violent conduct, suffers from pedophilia and
antisocial personality disorder, and, as a result, would have
serious difficulty refraining from reoffending.
8
II.
An individual in the custody of the Federal Bureau of
Prisons may be civilly committed under § 4248 if the Government
proves in a hearing that the person is a sexually dangerous
person. 18 U.S.C. § 4248(d). The Government must prove each of
the following by clear and convincing evidence: (1) the person
“has engaged or attempted to engage in sexually violent conduct
or child molestation” (“prior conduct” element); (2) the person
“suffers from a serious mental illness, abnormality, or
disorder” (“serious mental illness” element); and (3) “as a
result of” such condition, the person “would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released” (“volitional impairment” element). 18
U.S.C. §§ 4247(a)(5), (6), 4248. United States v. Hall, 664
F.3d 456, 458 (4th Cir. 2012). Blackledge has stipulated that
he engaged in sexually violent conduct or child molestation or
attempted to do so, and that he suffers from pedophilia, a
serious mental illness, abnormality, or disorder. The trial
thus centered on whether he satisfies the volitional impairment
element.
Blackledge argues on appeal that the court abused its
discretion in denying his motions to extend and reopen
discovery, motions to withdraw as counsel, and motions to
appoint Dr. Plaud. We hold that the court did abuse its
9
discretion in denying the motions to withdraw and remand for the
court to reconsider these motions by engaging in a thorough
inquiry as to the extent of Attorney Allen’s conflict. We
therefore need not address Blackledge’s remaining arguments.
III.
A.
We review the denial of a motion to withdraw for abuse of
discretion. United States v. Johnson, 114 F.3d 435, 442 (4th
Cir. 1997) (citing United States v. Mullen,
32 F.3d 891, 895
(4th Cir. 1994)). Blackledge argues that Attorney Allen
abandoned his case during the time in which she should have
renewed the motion to appoint Dr. Plaud, and thus had a
significant conflict presented by her interest in protecting her
own professional reputation thereafter. He maintains that
because he has a right to counsel under the Adam Walsh Act, 2 this
right necessarily includes a due process right to the effective
assistance of counsel. Blackledge asserts that the court abused
its discretion when it denied the motions because it forced him
to proceed with ineffective assistance of counsel.
2
“At a hearing ordered pursuant to [the Adam Walsh Act] the
person whose mental condition is the subject of the hearing
shall be represented by counsel and, if he is financially unable
to obtain adequate representation, counsel shall be appointed
for him pursuant to section 3006A.” 18 U.S.C. § 4247(d).
10
The Government argues in response that Blackledge was not
prejudiced by the denial of the motions because he remained
represented by one of Attorney Allen’s co-counsel, 3 and because
Attorney Allen indicated that she was capable of representing
him despite her asserted internal ethical conflict and the bar
complaint, albeit with great difficulty. The Government further
argues that Attorney Allen ably represented Blackledge, filing
motions on his behalf during the time in which he says he was
abandoned and cross-examining the relevant witnesses at trial.
B.
In deciding whether a district court has abused its
discretion in denying a motion to withdraw or to substitute
counsel, we consider three factors: (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. Gallop, 838 F.2d 105, 108 (4th Cir. 1988)
(internal citations omitted). If the court abused its
discretion, the ruling is subject to harmless error review. See
United States v. Horton,
693 F.3d 463, 467 (4th Cir. 2012). We
review the court’s factual findings for clear error and its
legal conclusions de novo.
Hall, 664 F.3d at 462. “A finding
3
The second co-counsel, attorney Katherine Shea, withdrew
as co-counsel on July 24, 2012.
11
is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” Id. (internal citations omitted).
Turning to the first factor, it appears that at least the
second motion to withdraw was untimely. Attorney Allen filed
the first motion on July 10, 2012, slightly more than three
weeks before trial. The magistrate judge noted the court’s
difficulty in scheduling hearings so that all the necessary
witnesses could be available, and Blackledge acknowledged that
granting the motion would require another continuance so that
new counsel could prepare. Consistent with our prior holding
that a motion to substitute counsel filed two weeks before the
relevant hearing was timely, the initial motion to withdraw in
this case was likely timely. See United States v. Jennette, 387
F. App’x 303, 307 (4th Cir. 2010). However, the second motion
was filed on July 30, 2012, only three days before trial. The
district court noted that it had a very busy trial calendar for
August and September, and that granting the motion at that point
would frustrate its scheduling orders. Although the district
court was certainly on notice that Attorney Allen wished to
withdraw as counsel after the first motion was filed, “[i]n
considering timeliness when a defendant requests substitution of
counsel, ‘the court is entitled to take into account the . . .
12
public interest in proceeding on schedule.’” Mullen, 32 F.3d at
895 (internal citations omitted). As such, this factor weighs
somewhat in favor of the court’s ruling.
Turning to the second factor, however, the record reveals
that the district court failed to engage in an adequate inquiry.
“When a defendant raises a seemingly substantial complaint about
counsel, the judge ‘has an obligation to inquire thoroughly into
the factual basis of defendant’s dissatisfaction.’” Id. at 896
(internal citations omitted). “An inquiry into the reasons for
a defendant’s dissatisfaction with his or her lawyer is
necessary for the trial court to determine whether good cause
for substitution of counsel exists.”
Id. (internal citations
omitted). “The district court is far better situated than we
are to observe and inquire into the state of the relationship
between a defendant and his appointed counsel, and thus, where
the district court has met its ‘obligation to inquire thoroughly
into the factual basis of defendant’s dissatisfaction,’ . . . we
apply the ordinary standard of review to its factual findings:
clear error.” United States v. Smith,
640 F.3d 580, 590 (4th
Cir. 2011) (citing
Mullen, 32 F.3d at 896). While motions to
substitute counsel often arise at the defendant’s urging, when
the attorney also seeks to withdraw, the court must thoroughly
inquire into the factual basis of any conflicts asserted by
counsel.
13
In this case, the district court did not meet its
obligation to thoroughly inquire into the extent of the
communications breakdown or the basis of the asserted conflict.
Despite the representations from Attorney Allen and Blackledge
on the morning of trial that they had not done any trial
preparation or spoken about whether Blackledge would testify,
the court did not ask when they had last seen each other or
communicated about the case. 4 Tasked with reviewing the motions
de novo, the district court erred in failing to examine how the
communications between Blackledge and Attorney Allen had fared
since the magistrate judge’s inquiry two weeks earlier. The
court emphasized Attorney Allen’s competence as a lawyer, but an
attorney’s competence cannot cut short the inquiry because,
“[e]ven if a defendant’s counsel is competent, a serious
breakdown in communication can result in an inadequate defense.”
United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000).
4
Despite Attorney Allen’s assertion that she and Blackledge
could no longer effectively discuss his case, the dissent infers
that they were indeed able to communicate from the fact that she
filed proposed findings of fact and conclusions of law on July
26, 2012. However, the fact that Attorney Allen filed this
pleading on Blackledge’s behalf does not establish that they
were actually able to communicate at this time, and indeed, such
an inference is undermined by the fact that she filed the second
motion to withdraw only four days later. Had the district court
followed the “best practice” of making “an express finding on
the record about the state of communication between defendant
and counsel,” Smith, 640 F.3d at 594, then perhaps this Court
would not be left wondering when Attorney Allen and Blackledge
had last meaningfully communicated about his defense.
14
Most significantly, the district court failed entirely to
inquire about the internal ethical conflict that Attorney Allen
had earlier raised and whether this had been resolved since the
first hearing. The court’s failure to probe deeply into the
basis of Attorney Allen’s conflict seriously undermines its
decision, and this factor weighs heavily against the court’s
ruling.
Turning to the third factor, because the district court
failed to engage in an adequate inquiry, its factual
determination that there was not a total breakdown in
communication preventing an adequate defense is not entitled to
clear error review. See Smith, 640 F.3d at 590. Even if we
were to review this finding for clear error, however, this
factor likewise weighs against the district court’s ruling.
Firstly, a conflict of interest emerged once Attorney Allen
failed to timely renew the motion to appoint Dr. Plaud before
the discovery deadline passed. We find useful the Supreme
Court’s decision in Maples v. Thomas, in which a post-conviction
petitioner’s attorneys abandoned their representation of him and
missed a critical deadline, thereby causing a procedural default
of the petitioner’s claims. 132 S. Ct. 912, 916-25 (2012).
While dicta, the Supreme Court found in Maples that “a
significant conflict of interest arose for the firm once the
crucial deadline passed” because “the firm’s interest in
15
avoiding damage to its own reputation was at odds with [the
client’s] strongest argument” for excusing the procedural
default. Id. at 925 n.8.
In this case, we need not decide whether Attorney Allen
actually abandoned Blackledge as in Maples because a conflict
arose from the fact that the alleged abandonment was
Blackledge’s strongest argument for excusing the untimeliness of
the renewed motion. Indeed, we recently recognized in the
context of federal habeas proceedings that “a clear conflict of
interest exists in requiring . . . counsel to identify and
investigate potential errors that they themselves may have made
. . . .” Gray v. Davis, 526 F. App’x 331, 334 (4th Cir. 2013).
This conflict exists irrespective of whether the attorney is
ultimately found to have erred. See id. at 334-35. Likewise, a
conflict existed here, because, in order to argue that the
lateness of the renewed motion should be excused, Attorney Allen
would have had to assert her own ineffectiveness. This conflict
further undermined Blackledge’s trust in Attorney Allen and
strained their ability to communicate. 5
5
As our dissenting colleague points out, the magistrate
judge asked Blackledge whether his dissatisfaction was largely
because of the court’s rulings denying Dr. Plaud’s appointment,
to which Blackledge replied that he had been “laboring under the
assumption” that Attorney Allen was in the process of obtaining
an expert until he learned that the request was “precluded by
the Court.” J.A. 107. Although the dissent cites this exchange
(Continued)
16
Secondly, in her second motion to withdraw, Attorney Allen
explained that Blackledge had recently “indicated that he
intends to file a complaint with the North Carolina State Bar
against counsel because of her failure to obtain an expert in
his case, unless she removes herself from his case.” J.A. 120.
As in Maples, this threat and the subsequent filing of a bar
complaint against Attorney Allen for her conduct thus put her
own professional interests directly at odds with those of her
client’s interests. Certainly, not every bar complaint against
an attorney by her client will result in a conflict of interest,
and we have previously expressed our unwillingness to “invite
[those] anxious to rid themselves of unwanted lawyers to queue
up at the doors of bar disciplinary committees on the eve of
trial.” United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.
1993). However, in this case, Blackledge threatened and
ultimately submitted a seemingly non-frivolous grievance against
Attorney Allen that forced her to choose between protecting her
own reputation and arguing in her client’s best interest that
in order to suggest that Blackledge’s conflict with his lawyer
was really only a grievance with the court’s rulings,
Blackledge’s response actually demonstrates that Attorney Allen
had failed to effectively communicate with him regarding her
efforts to have Dr. Plaud appointed, thereby leaving him with
the false assumption that the process was underway.
17
Blackledge should not be made to bear the consequence of her own
errors in submitting the renewed motion to appoint Dr. Plaud.
Thirdly, Attorney Allen also asserted an internal ethical
conflict, and because the district court failed to conduct an
adequate inquiry, it is unclear if this conflict was ever
resolved prior to trial. Moreover, the district court made no
inquiry whatsoever into the scope and nature of this conflict.
As a result, we have no way of knowing whether Attorney Allen’s
internal ethical conflict was indeed so significant that it
required her withdrawal as counsel. The fact that she told the
magistrate judge that she would represent Blackledge zealously
“with great difficulty” if the motion were denied, J.A. 101, is
of little help, because, having been made aware of its
existence, the court had a sua sponte obligation to examine the
extent of this conflict. See Mickens v. Taylor, 240 F.3d 348,
357-58 (4th Cir. 2001) (“[A] trial court must inquire into a
conflict of interest ‘when it knows or reasonably should know
that a particular conflict exists.’”) (quoting Cuyler v.
Sullivan,
446 U.S. 335, 347 (1980)). Indeed, to the extent that
Attorney Allen did opine that she could continue to represent
Blackledge, this assertion cannot be isolated from her repeated
protestations that she could not do so ethically.
Notwithstanding this lack of clarity as to the extent of
the internal ethical conflict, Attorney Allen’s delay in
18
renewing the motion to appoint Dr. Plaud and the bar complaint
against her, taken together, created a conflict of interest. As
such, we must consider whether the conflict resulted in a total
breakdown in communications preventing an adequate defense. “A
total lack of communication is not required,” Johnson, 114 F.3d
at 443 (emphasis added), but rather our concern is with “a
‘breakdown’ of attorney-client communication so great that the
principal purpose of the appointment — the mounting of an
adequate defense incident to a fair trial — has been
frustrated.”
Smith, 640 F.3d at 588.
The most telling evidence of the extent of the breakdown
and its impact on Blackledge’s defense is the assertion from
Attorney Allen and Blackledge on the morning of the trial that
they failed to engage in trial preparation or discuss whether
Blackledge would testify. The dissent overstates the extent to
which Attorney Allen conferred with Blackledge about whether he
would testify, as she declined the court’s offer to take a
recess in order to do so, citing the fact that she had spoken
with him “just briefly” in deciding not to present any witnesses
or evidence. J.A. 233. In Jennette, we held that a court
abused its discretion in denying a motion to substitute counsel
prior to a sentencing hearing in light of the fact that both
counsel and the defendant “stated that they had not had a chance
to review the PSR together, and indeed had not really spoken
19
since the trial concluded, certainly a fundamental step for
adequate representation at sentencing.” 387 F. App’x at 307.
In this case, Attorney Allen labored under a conflict of
interest that caused her communications with Blackledge to be so
broken that a “fundamental step for adequate representation” —
basic trial preparation — failed to occur. As we have
previously noted, “it is the marriage of the attorney’s legal
knowledge and mature judgment with the defendant’s factual
knowledge that makes for an adequate defense.” Smith, 640 F.3d
at 588. In this case, because of the communications breakdown,
Blackledge presented no evidence or testimony in proceedings
that, like a sentencing hearing, often turn on mitigating
evidence as to the respondent’s continued dangerousness. This
factor therefore weighs against the court’s ruling.
Weighing all three Gallop factors, we hold that the
district court abused its discretion. The second motion to
withdraw was untimely, as the district court found. However,
the motions do not appear to be a “transparent plot to bring
about delay,” and “we have never found [untimeliness] a bar when
a substitution claim is otherwise meritorious.” Smith, 640 F.3d
at 596 (internal citations omitted). The district court failed
to perform an adequate inquiry here, but the record before us
nonetheless reveals that the above-discussed conflict resulted
in a communications breakdown that prevented Attorney Allen and
20
Blackledge from mounting an adequate defense. As such, the
court abused its discretion in denying the motions to withdraw.
C.
A district court’s abuse of discretion in denying a motion
to substitute counsel is subject to harmless error review.
Horton, 693 F.3d at 467. Although Horton does not explicitly
prescribe how to proceed with this harmlessness analysis, we
cited a Seventh Circuit case holding that a court’s error in
denying a motion for new counsel was harmless because the
defendant had not shown that his counsel was constitutionally
ineffective under the Sixth Amendment.
Id. (citing United
States v. Wilks,
46 F.3d 640, 644 (7th Cir. 1995)). Blackledge
acknowledges that he does not have a right to effective
assistance of counsel under the Sixth Amendment, and we need not
and do not decide here whether he has an analogous right under
the Due Process Clause. However, even if we were to consider
whether the court’s error was harmless in light of our cases
applying the Sixth Amendment right to effective assistance of
counsel, it is evident that Blackledge was harmed by being
forced to proceed with Attorney Allen as his counsel.
In Horton, we assumed without deciding that the district
court abused its discretion since the court’s failure to conduct
any inquiry left us with an incomplete record upon which to
determine the extent of the communications breakdown and whether
21
it prevented an adequate defense. 693 F.3d at 467. Still, we
found that the error was harmless, noting that the defendant had
not identified “any specific way in which his defense was
hampered by any lack of communication with his counsel,” and,
indeed Horton later indicated that he had an ample opportunity
to discuss his case with his lawyer, had done so, and was fully
satisfied with his
representation. 693 F.3d at 467. In
Blackledge’s case, however, his representation was undoubtedly
hampered by his lack of communication with Attorney Allen since
it prevented them from preparing for trial or discussing whether
he would testify, 6 and neither Blackledge nor Attorney Allen
indicated that their communications had improved. The fact that
Attorney Allen cross-examined the Government’s witnesses and
moved for a directed verdict does not by itself mean that she
was fulfilling her obligations as counsel, especially in light
of her own vigorous claims that she would have great difficulty
6
The dissent questions that Blackledge could have had any
relevant testimony to offer on the ground that “resolution of
th[e] [volitional impairment] element depended on expert
testimony, not on Blackledge’s testimony.” Dissenting Op., at
36 (emphasis in original). However, as we have recently
explained, a respondent’s own testimony and the testimony of
those who have had sustained contact with him during his
incarceration may indeed be significant to the evaluation of
this element. See Antone, 742 F.3d at 165-66. Further, in
making this predictive judgment about Blackledge’s ability to
control his urges, the district court evidently did not find his
testimony to be as irrelevant as the dissent supposes since it
received his deposition testimony into evidence. J.A. 166.
22
zealously representing Blackledge. See Smith, 640 F.3d at 589
(“Where a defendant’s communication with an appointed attorney
has so frayed that a court determines the mounting of an
adequate defense to be impossible, the defendant is neither
‘be[ing] heard by counsel’ nor receiving ‘the Assistance of
Counsel for his defence.’”) (alteration in original).
Further, we rejected the argument that the denial of a
motion to substitute counsel was harmless in Jennette, where
defense counsel failed to go over the PSR with his client prior
to the sentencing hearing, despite the fact that the court
actually reviewed the PSR with the defendant in open court. 387
F. App’x at 307-08. “Although laudable,” we noted that “going
over the PSR with the district judge in open court can hardly be
said to substitute for a private, attorney-client-privileged
conversation with counsel before sentencing even begins.” Id.
at 308. Even if such an action could have rendered the court’s
abuse of discretion harmless in Jennette, there was no such
attempt to cure the deficiencies in Blackledge’s representation
caused by the breakdown in communications, nor could there have
been here other than to allow conflict-free counsel to take
Attorney Allen’s place. 7
7
Notably, while Attorney Allen had co-counsel, Attorney
Allen was the lead attorney and she alone represented Blackledge
at the trial on his commitment.
23
In total, in proceedings that could result in lifelong
incarceration for a person who has already served his full
sentence, Blackledge was forced to be represented by a lawyer
asserting multiple conflicts of interest with whom he had not
prepared for trial because of their inability to communicate.
We cannot conclude that the court’s abuse of discretion in
requiring Attorney Allen to continue as counsel was harmless.
We therefore vacate the court’s judgment as to the motions to
withdraw and remand for the court to reconsider these motions
after engaging in the appropriate inquiry regarding the extent
of Attorney Allen’s conflicts.
IV.
For the foregoing reasons, we vacate the district court’s
judgment denying the motions to withdraw and remand for further
proceedings consistent with this opinion. In light of this
ruling, we need not consider at this time Blackledge’s remaining
arguments regarding the motions to reopen and extend discovery
and to appoint Dr. Plaud.
VACATED AND REMANDED
24
SHEDD, Circuit Judge, dissenting:
If the record supported the majority’s narrative that the
district court failed to investigate Attorney Sonya Allen’s
asserted conflicts of interest and forced Blackledge to
participate in the civil commitment hearing without meaningful
assistance of counsel, I would join the decision to vacate the
judgment. However, the record establishes quite the contrary.
During two separate hearings, the magistrate judge and the
district judge thoroughly considered Attorney Allen’s motions to
withdraw as counsel, both of which were untimely, and gave
Blackledge and Attorney Allen ample opportunity to address the
purported conflicts. After personally observing their in-court
interaction, the magistrate judge found that Blackledge and
Attorney Allen were able to communicate adequately in his
defense; that finding – which was reviewed by the district judge
- is not clearly erroneous. Moreover, the district judge
explained why the purported conflicts did not prevent Attorney
Allen from representing Blackledge, and both judges recognized
the prejudicial impact that granting the withdrawal motions
would have on the government and the administration of justice.
Further, Attorney Allen fully represented Blackledge at the
commitment hearing, filing a prehearing brief, cross-examining
witnesses, conferring with him about whether he would testify or
present evidence, and making a closing argument.
25
Simply put, the district court did not abuse its discretion
in denying the withdrawal motions. Because the court committed
no discernible error, I dissent from the majority’s decision to
vacate the judgment.
I
I begin with an overview of pertinent aspects of the Adam
Walsh Child Protection and Safety Act, 18 U.S.C. § 4248. Enacted
in 2006, the Act is “a modest addition to a set of federal
prison-related mental-health statutes that have existed for many
decades,” 1 but it “differs from earlier statutes in that it
focuses directly upon persons who, due to a mental illness, are
sexually dangerous.” United States v. Comstock, 560 U.S. 126,
137, 141 (2010). The purpose of the Act is “to protect the
public from the dangers posed by releasing sexually dangerous
persons from federal custody,” United States v. Broncheau,
645
F.3d 676, 683 (4th Cir. 2011), and if the district court “finds
by clear and convincing evidence that the person is a sexually
dangerous person, the court shall commit the person to the
custody of the Attorney General,” 18 U.S.C. § 4248(d) (emphasis
added).
A § 4248 hearing is “civil in nature,” and “the
constitutional rights to which a defendant in a criminal trial
1
See 18 U.S.C. §§ 4241-4246.
26
is entitled do not adhere to [the] respondent in [the]
commitment hearing.” United States v. Wood, 741 F.3d 417, 423
(4th Cir. 2013) (citation and internal quotation marks omitted).
Moreover, “[a]s compared to the goal of a criminal trial, the
goal of a commitment hearing is far different.” United States v.
Baker,
45 F.3d 837, 844 (4th Cir. 1995). The “basic issue” in a
criminal case “is a straightforward factual question — did the
accused commit the act alleged?” Addington v. Texas,
441 U.S.
418, 429 (1979). A criminal trial serves “to uncover the truth
by examining rigorously the reliability of conflicting evidence
presented and then engaging in extensive factfinding,” and the
“rights of cross-examination and confrontation, as well as the
right to effective assistance of counsel, are all directed
toward this goal.”
Baker, 45 F.3d at 844. In contrast, the
primary inquiry in a commitment hearing “involves a question
that is essentially medical,” Vitek v. Jones,
445 U.S. 480, 495
(1980), and it is based primarily upon the theoretical opinions
of experts,
Baker, 45 F.3d at 845. “The aim of cross-examination
is changed accordingly: its goal is not to ‘poke holes’ in the
testimony of a witness, but to test the expert opinion given and
determine its basis and its limits.”
Id.
When the government initiates a § 4248 civil commitment
proceeding, the district court “may order that a psychiatric or
psychological examination of the defendant be conducted, and
27
that a psychiatric or psychological report be filed with the
court pursuant to the provisions of [18 U.S.C. §§] 4247(b) and
(c).” 18 U.S.C. § 4248(b). If the court finds more than one
examiner “appropriate,” it may appoint additional examiners. 18
U.S.C. § 4247(b). Each examiner is designated by the court,
except “upon the request of the defendant an additional examiner
may be selected by the defendant.” Id. Regardless of whether the
defendant selects the examiner, however, the § 4247(b) examiner
serves as an “officer of the court, not responsible to
prosecution or defense,” In re Harmon,
425 F.2d 916, 918 (1st
Cir. 1970), and must file his report with the court and provide
copies to government and defense counsel, 18 U.S.C. § 4247(c). 2
At the commitment hearing, the defendant “shall be
represented by counsel and, if he is financially unable to
obtain adequate representation, counsel shall be appointed for
him pursuant to § 3006A.” 18 U.S.C. § 4247(d). Additionally, the
defendant “shall be afforded an opportunity to testify, to
present evidence, to subpoena witnesses on his behalf, and to
2
A § 4247(b) examiner differs from an expert authorized
under 18 U.S.C. § 3006A. As one court has recognized, an
examination conducted by an order of the court “is conducted to
serve the court in a completely nonpartisan manner. . . . The
expert appointed under § 3006A, however, is not originally and
primarily an aide to the court, but rather is intended to serve
the interests of the defendant.” United States v. Chavis, 476
F.2d 1137, 1141-1142 (D.C. Cir. 1973); see also United States v.
Reason,
549 F.2d 309, 311 (4th Cir. 1977); United States v.
Taylor,
437 F.2d 371, 377 (4th Cir. 1971).
28
confront and cross-examine witnesses who appear at the hearing.”
Id.
To civilly commit an individual under § 4248, the
government must prove by clear and convincing evidence that the
person: (1) engaged in or attempted to engage in sexually
violent conduct or child molestation (the “prior conduct
element”); (2) suffers from a serious mental illness,
abnormality, or disorder (the “mental illness element”); and (3)
because of the serious mental illness, abnormality, or disorder,
would have serious difficulty in refraining from sexually
violent conduct or child molestation if released (the “serious
difficulty element”). United States v. Francis,
686 F.3d 265,
274 (4th Cir. 2012).
When a district court determines (as a preliminary factual
matter) that the government has proven the “prior conduct”
element, it must then consider the “mental illness” and “serious
difficulty” elements. These latter two elements “ensure that
commitment is limited to inmates with a volitional impairment —
inmates whose mental illness renders them dangerous beyond their
control.” United States v. Wooden, 693 F.3d 440, 442 (4th Cir.
2012) (citation and internal quotation marks omitted).
Therefore, the court must evaluate “the individual’s present
mental condition and the likely prospective effect of that
mental condition on his volitional control;” this evaluation
29
depends “on the significance of the factual information as
viewed by the expert psychiatrists and psychologists.” Francis,
686 F.3d at 275. Compared to the first two elements, the
“serious difficulty” element is “more complicated” because “it
requires the court to issue a predictive judgment: has the
Government met its burden by presenting clear and convincing
evidence that, in the uncertain future, the respondent will have
serious difficulty in refraining from sexually violent conduct
or child molestation?” United States v. Antone,
742 F.3d 151,
159 (4th Cir. 2014) (internal quotation marks and citation
omitted).
II
With this backdrop in mind, I now turn to the pertinent
facts. In my view, proper evaluation of the decision to deny the
withdrawal motions requires a complete understanding of the
facts of this case, but many critical facts are not acknowledged
by the majority, and these facts tend to fatally undermine the
majority’s decision.
A.
Blackledge has a substantial criminal history, which spans
45 years and includes a conviction for first degree murder,
multiple convictions for producing and mailing child
pornography, a conviction for sexual exploitation of a minor,
and a probation violation for possessing child pornography.
30
Based on this record, the government filed a “Certificate of
Sexually Dangerous Person” against Blackledge in September 2009.
In June 2010, the district court appointed the Federal Public
Defender’s Office (“FPDO”) to represent Blackledge. Shortly
thereafter, Blackledge moved to dismiss the case. The court
denied that motion in January 2011. Initially, other FPDO
attorneys represented Blackledge, but in March 2011, FPDO
Attorney Allen replaced those attorneys.
Attorney Allen actively represented Blackledge in pretrial
matters. As one of her discovery efforts, she obtained the
appointment of Dr. Terence Campbell to provide a forensic
evaluation of Blackledge pursuant to § 4247(b). Unfortunately
for Blackledge, Dr. Campbell concluded that Blackledge meets the
sexual dangerousness criteria for civil commitment. Upon
receiving Dr. Campbell’s report, Attorney Allen attempted to
have Dr. Joseph Plaud appointed as an additional forensic
examiner, but the magistrate judge denied the motion without
prejudice based on his finding that Blackledge had failed to
establish a need for an additional court-appointed examiner.
Blackledge did not appeal this order to the district judge. The
deadline for discovery was December 22, 2011.
On March 28, 2012, the district judge scheduled the
commitment hearing for June 14. On April 17, FPDO Attorneys
Katherine Shea and Debra Graves formally joined the case to
31
represent Blackledge along with Attorney Allen. One month later,
on May 16, Blackledge moved to reschedule the June 14 hearing
based specifically, and only, on the fact that Attorneys Shea
and Graves were unavailable because of prior commitments. The
district judge granted this motion and rescheduled the trial for
August 2.
On June 14, Blackledge filed a “renewed motion” to have Dr.
Plaud appointed, to reopen discovery, and to reschedule the
August 2 commitment hearing. Blackledge asserted that “securing
an expert to testify favorably . . . is of paramount importance
to putting on an adequate defense.” J.A. 306. Opposing this
motion, the government argued that Blackledge “has not shown a
need for a second additional examiner, aside from the stated
desire to secure an expert to testify favorably [for him]. Such
a purpose falls outside the statutory provisions governing
court-appointed examiners in this proceeding.” J.A. 77. In a
subsequent reply memorandum supporting the motion, Blackledge
asserted that this is a “battle-of-the-experts case” and that
his ability to defend himself would be prejudiced without a
favorable expert. J.A. 310.
The magistrate judge denied this motion on July 2, finding
that it was untimely and that Blackledge failed to show that
appointment of Dr. Plaud was necessary. The magistrate judge
explained that Blackledge made “no representation that Dr. Plaud
32
has reached a preliminary opinion that [he] does not qualify as
a sexually dangerous person or that the other evaluations under
§ 4248 are somehow flawed based on a review of the records
without a clinical interview. Such a record review [by Dr.
Plaud] would not require court approval.” J.A. 314-15.
Blackledge did not appeal this order to the district judge.
On July 10, just over three weeks before the scheduled
trial date, Attorney Allen moved for an order allowing her and
the entire FPDO to withdraw. In the motion, Attorney Allen
asserted without further explanation that “an internal conflict
has arisen and the undersigned can no longer ethically continue
to represent” Blackledge. J.A. 80. After the government filed a
memorandum opposing this motion, Attorney Allen filed a reply
memorandum, in which she stated: “To clarify the position of
Respondent, Mr. Blackledge personally wishes to proceed in this
matter with new counsel.” J.A. 86. Apart from this statement,
Attorney Allen offered no further explanation for the motion,
but she did ask for a hearing if the court desired additional
information.
On July 17, Attorney Graves filed a notice that she had
withdrawn from the case. The notice contains no explanation for
her withdrawal.
33
B.
On July 18, the magistrate judge held a hearing on the
withdrawal motion. The hearing lasted almost one hour, and
Attorneys Allen, Graves, and Shea appeared on behalf of
Blackledge. See J.A. 89. The magistrate judge began by
confirming that Blackledge joined in the motion and was seeking
new counsel. The magistrate judge then asked Attorney Allen to
explain the “internal conflict” underlying the motion. Attorney
Allen responded that “there are some things that [Blackledge]
wants to see that I am not going to be able to help him with and
because of that there’s a conflict that we just will not be able
to resolve.” J.A. 91.
After Attorney Allen spoke, the magistrate judge placed
Blackledge under oath and asked him to explain his concerns.
Blackledge stated that he had trouble getting documents from his
attorneys and that he had “no confidence, or little confidence
left in, that they can provide the kind of defense I need.” J.A.
93. The magistrate judge asked Blackledge to elaborate on that
point, and Blackledge responded that it was “the fact that, just
in getting documents and so forth from home. You ask for a copy
and you never get any.” Id. When the magistrate judge asked what
documents Blackledge wanted, he responded that “it’s very
difficult to reveal what it is without showing my hand.” J.A.
95. At this point, the magistrate judge paused the hearing in
34
order to allow Attorney Allen and Blackledge to confer. Id. When
the hearing continued, Blackledge stated that although he
initially could communicate with Attorney Allen, the
relationship had become “strained,” and it was “very difficult .
. . to talk to someone . . . you’ve lost confidence in. It’s
difficult to share, . . . if you think it’s going to be ignored,
or you’re given short shrift.” J.A. 96. In response to the
magistrate judge’s question, Blackledge stated that his attorney
communication problems began “over six months ago.”
Id. When
asked why he did not raise the matter sooner, Blackledge
admitted that he “let things go and I think I let them go too
long in this case.” J.A. 97.
At this point, the magistrate judge asked Attorney Allen
about possible replacement counsel. Attorney Allen stated that
she understood a private attorney would accept the case, but
that the attorney would not be prepared to go forward with the
August 2 hearing. The magistrate judge then paused the hearing
in order to permit Attorney Shea to confer with Blackledge. J.A.
99. When the hearing resumed, Attorney Allen stated that she
understood why Blackledge had lost confidence in her, but she
acknowledged that she could represent him “with great
difficulty.” J.A. 101. The magistrate judge then spent some time
explaining to Blackledge the role of a lawyer, after which the
government attorney briefly stated the government’s position.
35
Following the government’s statement, Blackledge expressed
his concern that he did not have an adequate defense because he
did not have an expert witness who would testify on his behalf
at the hearing. Blackledge also alluded to “other matters” but
stated that he could not discuss them “because they are a part
of my defense that were mishandled.” J.A. 106. Blackledge then
stated that all he wanted was “a level playing field and a fair
shake and I don’t think I’m getting it the way things are now.”
Id. The magistrate judge observed that Blackledge’s complaint
was really about the orders denying Dr. Plaud’s appointment, to
which Blackledge responded that he had been “laboring under the
assumption” that Attorney Allen had procured a new expert
examiner for him, only to find out that another expert had been
“precluded by the Court.” J.A. 107. The magistrate judge
explained that there was no basis under the circumstances for
Blackledge to have another court-appointed examiner.
In response, Attorney Graves (who had previously withdrawn
from the case) stated that Dr. Plaud had given “a preliminary
determination . . . that he could potentially clear” Blackledge
for commitment. Id. Attorney Allen then admitted that she had
neglected to move for another expert to be appointed in a timely
manner, and she noted that this was “another conflict” and “one
of the reasons” for the withdrawal motion. J.A. 108. Attorney
Allen also stated that “[w]ith no expert, there’s very little
36
reason for [Blackledge] to have a trial and he understands
that.” J.A. 109. Finally, she acknowledged that Dr. Plaud was
not “totally committed” to finding in Blackledge’s favor but was
“willing to look at it.” Id.
The magistrate judge raised the possibility of conducting
an ex parte hearing with Blackledge and Attorney Allen. J.A.
111. However, the magistrate judge asked Blackledge if he had
anything further to add regarding his relationship with Attorney
Allen, and Blackledge responded that he had adequately conveyed
his position.
Id. With that concession, the magistrate judge
then announced his ruling from the bench.
Denying the motion, the magistrate judge first found that
it was untimely. As the magistrate judge explained: “Mr.
Blackledge . . . states that he’s had concerns about his counsel
going back for months and yet this motion is filed in a matter
of weeks before the hearing in this case.” J.A. 113. The
magistrate judge then noted the difficulties involved in
scheduling commitment hearings and that a continuance would be
necessary if the motion was granted. Finally, the magistrate
judge stated that after considering the information presented,
he had a “full picture of the nature of the problem” between
Attorney Allen and Blackledge, and he did not believe that there
was a breakdown in communication that would prevent an adequate
defense. J.A. 114. In support of this point, the magistrate
37
judge pointed out that Blackledge and Attorney Allen conferred
“at Mr. Blackledge’s initiation in court today.” Id.
C.
On July 23, Attorney Allen filed an appeal of the
magistrate judge’s order denying the withdrawal motion. As
grounds for the appeal, Attorney Allen stated that the
magistrate judge’s order is “contrary to law,” J.A. 119,
specifically Maples v. Thomas,
132 S. Ct. 912 (2012). 3 Although
Blackledge had not cited or argued Maples to the magistrate
judge, Attorney Allen argued that Maples stands for the
proposition “that if court-appointed counsel in a civil habeas
case misses an important deadline, that counsel thereafter has
an irreparable conflict.” J.A. 119. Attorney Allen also stated
that she had met with Blackledge, and he informed her that he
“intend[ed] to file a complaint with the North Carolina State
Bar against counsel because of her failure to obtain an expert
in his case, unless she removes herself from his case.” J.A.
120. Attorney Allen acknowledged that allowing her to withdraw
would disrupt the hearing schedule and cause the government
3
In Maples, counsel appointed to represent a state habeas
petitioner abandoned the case without notice, thereby causing
the petitioner to miss a filing deadline. Because the petitioner
missed the deadline, his federal habeas claim was dismissed on
grounds of procedural default. The Supreme Court held that the
attorneys’ abandonment of the petitioner constituted sufficient
cause to excuse the default.
38
“expense and inconvenience,” but she maintained that the
government’s interests “cannot trump [Blackledge’s] right to
effective counsel.” Id.
The following day, Attorney Shea filed a notice that she
had withdrawn from the case. As with Attorney Graves, the notice
contains no explanation for Attorney Shea’s withdrawal.
On July 26, Blackledge sent a handwritten letter to the
district court stating that he had “written the bar association
to dismiss the team of Shea, Graves, and Allen” and that he was
“serious about wanting new blood and attentiveness to [his]
defence [sic].” J.A. 129 (emphasis in original). Blackledge did
not include a copy of his bar complaint with the letter, and he
provided no further explanation about it.
That same day, Attorney Allen filed Blackledge’s proposed
findings of fact and conclusions of law. Evidently, she had
discussed some aspects of the case with Blackledge because she
foreshadowed his expected hearing testimony, stating (in
predictive form) that he “denied possession and use of any drugs
while incarcerated” and testified “with regard to the sex
offender treatment and drug treatment he received in the past
and his prior convictions for sexual conduct,” “about his
conduct while incarcerated,” and “that he has received no
infractions of any nature, sexual or otherwise” during his time
at FCI-Butner. Respondent’s Proposed Findings of Fact and
39
Conclusions of Law, No. 5:09-HC-2118-D-JG (E.D.N.C. July 26,
2012) (pages 14-15).
On July 30, Attorney Allen filed a “second motion” to
withdraw as counsel. In this motion, she referenced Blackledge’s
complaint with the state bar and stated that she believed she
could no longer represent him.
On July 31, the parties’ Second Amended Joint Proposed Pre-
Trial Order was filed. Attorney Allen signed the document on
Blackledge’s behalf. In this document, Blackledge stipulated
that “he has engaged in or attempted to engage in sexually
violent conduct or child molestation” and that “he suffers from
a serious mental illness, abnormality or disorder, specifically
pedophilia.” J.A. 137. Based on these stipulations regarding the
“prior conduct” and “mental illness” elements, Blackledge agreed
there was only one issue to be decided at the commitment
hearing: i.e., whether he would “have serious difficulty in
refraining from sexually violent conduct or child molestation if
released.” J.A. 138. Among other things, the government listed
Blackledge as a potential witness, and it also designated his
deposition transcript as potential discovery material to be used
at the hearing.
D.
On August 2, the parties appeared before the district judge
for the commitment hearing. As the hearing began, Attorney Allen
40
asked the district judge to consider the withdrawal issue. The
district judge responded that he had “read everything” and was
prepared to “listen to anything you would like to add.” J.A.
148.
Attorney Allen stated that she had a conflict that could
not be resolved and that Blackledge “feels he cannot get proper
representation if [she] were to continue, and our relationship
has deteriorated to a point that we cannot discuss his case,
strategies of his case. We cannot effectively communicate.” J.A.
148-49. The district judge then asked Attorney Allen how her
ability to cross-examine the expert witnesses would be impacted
by her relationship with Blackledge. Without specifically
answering this question, Attorney Allen referred to the state
bar complaint, which she admitted she had not seen, and asserted
that “it has certainly affected my ability to feel as if I can
do everything in this case that is needed because I can’t even
effectively communicate with my client.” J.A. 149-50.
The district judge noted that the case had been pending for
a considerable period and that he was “very familiar with the
record.” J.A. 150. Continuing, the district judge stated: “I
have listened to the hearing that [the magistrate judge] had on
the original motion to withdraw and I understand all the issues
associated with Dr. Plaud and the scheduling order.” Id. The
district judge observed that because of Blackledge’s
41
stipulations, the case essentially boiled down to “an evaluation
fundamentally of the experts and their persuasiveness,” id., and
he pointed out (based on his prior case experience) that because
the government bore the burden of proof, Blackledge could
potentially prevail without an expert witness. The district
judge asked Attorney Allen if she had anything else to add to
the motion. She responded that she had not been able to
“appropriately” address with Blackledge the issue of whether he
should testify. J.A. 151.
At the district judge’s invitation to speak, Blackledge
stated that he was “being given a short shrift” and that the
“playing field is not level.” Id. Blackledge also complained
generally about Attorney Allen’s alleged failure on his behalf
during discovery. Responding to a question from the district
judge, Blackledge stated that, if pushed to the choice, he would
rather be represented by Attorney Allen than proceed pro se.
In denying the motions, the district judge began with a
thorough recitation of the history of the case. See J.A. 151-57.
The district judge specifically detailed the hearing before the
magistrate judge and the bases for the magistrate judge’s order
denying the first withdrawal motion. The district judge stated
that he had reviewed the magistrate judge’s order de novo and
had fully considered the second withdrawal motion.
42
The district judge found that the motions were untimely and
“[a]ny further delay would substantially prejudice the
government and . . . the public interest.” J.A. 159. The
district judge explained that the trial dockets for the next
several months were full, indicating that the delay caused by
granting the motions would be lengthy.
The district judge then found that a thorough inquiry had
been made into the issues. As the district judge explained, the
magistrate judge “thoroughly engaged in an inquiry with Mr.
Blackledge and Ms. Allen and the government,” and “[t]he issues
associated with Dr. Plaud have been exhaustively examined.” J.A.
160.
The district judge further found that there was not a
breakdown between Attorney Allen and Blackledge that would
prevent an adequate defense. The district judge noted that the
government bore the burden of proof at the commitment hearing,
and Attorney Allen was prepared to cross-examine the expert
witnesses. Moreover, the district judge pointed out that the
government “ha[d] the ability to call Mr. Blackledge as a
witness and had planned to . . . for some time.” J.A. 161. The
district judge also explained that Maples was inapplicable
because Attorney Allen had not abandoned Blackledge. Finally,
the district judge observed that he had “looked into this whole
issue of a bar disciplinary grievance” – which was “an undefined
43
grievance but apparently just a dissatisfaction with how the
case came out.” Id. The district judge explained that the bar
complaint did not create a per se conflict, and neither
Blackledge nor Attorney Allen had presented any specific
evidence to establish a conflict arising from the complaint.
After the district judge ruled on the withdrawal motions,
Attorney Allen moved to bifurcate the commitment hearing to
allow Blackledge the “opportunity to be examined by Dr. Plaud”
and “an opportunity to possibly present a defense in the
future.” J.A. 162. The government opposed the motion, and the
district judge denied it, explaining that “there’s been no
evidence that I have seen that [Dr. Plaud] would actually reach
a different conclusion, other than apparently just perhaps the
belief, to my knowledge, that he’s never found anyone in a 4248
case tried in the Eastern District of North Carolina subject to
civil commitment.” J.A. 163. The district judge also noted that
the motion was “inconsistent with the scheduling order and the
public interest.” J.A. 163-64.
Thereafter, the commitment hearing proceeded on the merits.
During the hearing, two expert witnesses – Dr. Christopher North
and Dr. Terence Campbell – testified, and the forensic report of
a third expert witness – Dr. Tonya Cunic – was admitted into
evidence. Additionally, in lieu of calling Blackledge to the
stand to testify, the government submitted his deposition.
44
Receiving the deposition into evidence, the district judge noted
that “to the extent there was an issue associated with trial
preparation, I know that Mr. Blackledge appeared at that
deposition with counsel and was prepared for that deposition by
counsel.” J.A. 166. The district judge stated that this fact
“further mitigates issues associated with any prejudice on the
motion to withdraw.” Id.
Attorney Allen vigorously represented Blackledge. Among
other things, she cross-examined Drs. North and Campbell, see
J.A. 197-204, 220-33; conferred with Blackledge about whether he
was going to testify, see J.A. 233; unsuccessfully moved for
judgment as a matter of law, see J.A. 234; and presented a
closing argument, see J.A. 241-45. Ultimately, the district
judge found that Blackledge meets the § 4248 commitment
criteria. The district judge explained its reasoning in detail,
see J.A. 247-86, noting (among other things) that he read
Blackledge’s deposition testimony as part of his consideration
of the evidence, see J.A. 261-62.
III
On appeal, Blackledge does not challenge the district
court’s finding that he meets the § 4248 criteria. Instead, he
bases his arguments on the court’s denial of Attorney Allen’s
withdrawal motions and his requests for the appointment of Dr.
Plaud as an additional examiner. Specifically, he contends: (1)
45
based on Maples, the court clearly erred in finding that
Attorney Allen had not abandoned him; (2) because Attorney Allen
abandoned him, the court abused its discretion by failing to
equitably toll the discovery deadline to allow him to seek the
appointment of Dr. Plaud; 4 (3) the court abused its discretion by
failing to allow Attorney Allen to withdraw based on her
conflict of interest; and (4) the court used an erroneous
standard and, therefore, abused its discretion by refusing to
grant his motion to appoint Dr. Plaud.
The majority grounds its decision to vacate the judgment
only on the third issue, finding that the district court abused
its discretion in denying the withdrawal motions. Before I
address that issue, I believe that it is necessary to address
the issues involving Dr. Plaud, which appear to be the genesis
of Blackledge’s dissatisfaction with the proceedings below. As
noted, Blackledge and Attorney Allen have argued throughout the
case that he cannot avoid civil commitment without an expert
testifying in his favor. See, e.g., J.A. 109 (Attorney Allen
4
I would hold that the district judge correctly found that
Attorney Allen did not abandon Blackledge. Attorney Allen’s
representation of Blackledge is in no sense comparable to the
attorneys’ conduct in Maples. In any event, I would also hold
that the alleged abandonment did not prejudice Blackledge
because the magistrate judge denied the second motion for the
appointment of Dr. Plaud for two reasons, one of which was
Blackledge’s failure to demonstrate a need for the appointment.
That reason is independent of the question of the timeliness of
the motion, and it therefore moots the abandonment issue.
46
stating that “[w]ith no expert, there’s very little reason for
[Blackledge] to have a trial and he understands that”).
Blackledge emphasizes this point most succinctly in his
appellate brief:
Blackledge had no experts to help him . . . and it
seems highly probable that had he testified, his
testimony would have failed to persuade the district
court judge that he could refrain from further acts of
sexual violence or child molestation. . . . In
essence, the district court completely denied
Blackledge a defense when it refused to allow him the
opportunity to pursue an additional expert forensic
examiner.
Opening Brief of Appellant, at 34 (emphasis added). Given
Blackledge’s view, I suspect that on remand this issue will
almost certainly come up again.
In considering this issue, it is important to recall that
the district court granted Blackledge his § 4247(b) right to
select an examiner. Faced with an unfavorable diagnosis by his
chosen examiner, Blackledge sought to have Dr. Plaud appointed
in the hope that he would render a more favorable diagnosis.
Although Blackledge’s desire to have an examiner testify
favorably for him is understandable, nothing in § 4247(b)
suggests that he is entitled to select multiple court-appointed
examiners or, for that matter, to select an examiner who will
testify on his behalf. See generally Wilson v. Greene, 155 F.3d
396, 401 (4th Cir. 1998) (noting that due process “reflects
primarily a concern with ensuring a defendant access to a
47
psychiatrist or psychologist, not with guaranteeing a particular
substantive result” (emphasis in original)). 5 Moreover, as the
magistrate judge and the district judge observed, Blackledge has
never presented any reason to suggest that Dr. Plaud will render
a favorable diagnosis. See generally Taylor, 437 F.2d at 376
(“Where an examination has been conducted so recently as to
furnish a basis for a determination of present competence, there
is ordinarily no reason to order another.”).
Although I believe that Blackledge’s appellate arguments
regarding Dr. Plaud likely fail on the merits, we need not reach
them. Both of Blackledge’s motions seeking the appointment of
Dr. Plaud were nondispositive, and they were referred to the
magistrate judge. Following the denial of the motions,
Blackledge did not appeal either magistrate judge order to the
district judge.
Rule 72(a) of the Federal Rules of Civil Procedure provides
that a party may serve and file objections to a magistrate
judge’s order on a nondispositive matter within 14 days after
being served with a copy, but the party “may not assign as error
a defect in the order not timely objected to.” By failing to
5
Blackledge’s position raises an obvious question: how many
examiners must the court appoint? Apparently, he would answer
that the court must appoint as many examiners as it takes until
one will testify in his favor. Otherwise, without such
testimony, any commitment hearing would be, in his view, unfair.
The absurdity of this position is self-evident.
48
appeal the magistrate judge orders to the district judge,
Blackledge has waived appellate review of the orders denying his
motions to have Dr. Plaud appointed. See McDonald v. City of
Saint Paul, 679 F.3d 698, 709 (8th Cir. 2012). 6
IV
I now turn to the withdrawal issues. In deciding whether to
permit court-appointed counsel to withdraw, or to substitute
court-appointed counsel on the defendant’s request, the district
court must be guided by the “interests of justice.” See 18
U.S.C. § 3006A(c); Martel v. Clair, 132 S. Ct. 1276, 1285 (2012);
see also United States v. Perez,
661 F.3d 189, 191 (4th Cir.
2011) (using a “good cause” standard). This is a “peculiarly
context-specific inquiry” that is “so fact-specific [that] it
deserves deference.”
Martel, 132 S. Ct. at 1287. We must accept
the court’s factual findings unless they are clearly erroneous,
see United States v. Keita,
742 F.3d 184, 188 (4th Cir. 2014),
and we may overturn a denial of a withdrawal motion only for an
abuse of discretion,
Martel, 132 S. Ct. at 1287, bearing in mind
that “[t]he district court is far better situated than we are to
observe and inquire into the state of the relationship between a
6
Attorney Allen asked the district judge to bifurcate the
commitment hearing and asserted that bifurcation would allow Dr.
Plaud the opportunity to examine Blackledge. However, that
request was not an appeal of the magistrate judge’s orders, and
it did not place the issue of whether Dr. Plaud should have been
appointed before the district judge.
49
defendant and his appointed counsel,” United States v. Smith,
640 F.3d 580, 590 (4th Cir. 2011), and that the court has “wide
latitude” in limiting a defendant’s right to counsel of choice
based upon fairness and the demands of the court’s calendar,
United States v. Gonzalez-Lopez,
548 U.S. 140, 152 (2006).
As with any abuse-of-discretion review, we are obligated to
exercise a “healthy measure of judicial restraint,” Evans v.
Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 323 (4th
Cir. 2008), reserving our power to correct only those district
court decisions that “stray[] too far from the mark,”
id. at
322. Therefore, we may properly find abuse of discretion where
the district court has acted arbitrarily or irrationally, failed
to consider judicially recognized factors constraining its
exercise of discretion, relied on erroneous factual or legal
premises, or committed an error of law. United States v.
Thompson-Riviere,
561 F.3d 345, 348 (4th Cir. 2009).
We have identified three relevant factors to consider in
determining whether a district court abused its discretion in
denying a withdrawal motion: (1) the timeliness of the motion,
(2) the adequacy of the court’s inquiry into the matter, and (3)
whether the client and counsel experienced a total lack of
communication preventing an adequate defense. United States v.
Reevey, 364 F.3d 151, 156 (4th Cir. 2004). We weigh these
50
factors against the district court’s interest in the orderly
administration of justice. Id. at 157.
The majority holds that the district court abused its
discretion in denying Attorney Allen’s withdrawal motions.
Applying the pertinent factors, the majority finds that the
timeliness factor “weighs somewhat” in support of the district
court’s ruling, Majority Op., at 13, but it concludes that the
other two factors do not. Specifically, the majority finds that
“the district court did not meet its obligation to thoroughly
inquire into the basis of the asserted conflict,” id. at 14, and
this “failure to probe deeply into the basis of Attorney Allen’s
conflict seriously undermines its decision,”
id. at 15. Further,
the majority finds that “Attorney Allen labored under a conflict
of interest that caused her communications with Blackledge to be
so broken that a ‘fundamental step for adequate representation’
– basic trial preparation – failed to occur.”
Id. at 20.
Explaining why the district court’s purported error is not
harmless, the majority states: “[I]n proceedings that could
result in lifelong incarceration for a person who has already
served his full sentence, Blackledge was forced to be
represented by a lawyer asserting multiple conflicts of interest
with whom he had not prepared for trial because of their
inability to communicate.”
Id. at 24.
51
In my view, the record conclusively establishes that the
district court did not abuse its discretion, much less err at
all, in denying the withdrawal motions. Indeed, as I explain
below, each of the relevant factors fully supports the district
court’s ruling. Moreover, Blackledge received a full and fair
commitment hearing, and any purported defect in the district
court’s consideration of the withdrawal motions is harmless.
A.
First, the findings by the magistrate judge and the
district judge that the motions were untimely are not clearly
erroneous. By his own admission, Blackledge lost confidence in
Attorney Allen no later than early 2012. In July, a mere three
weeks before the August 2 commitment hearing, and after
Blackledge had previously obtained a continuance of the
commitment hearing, 7 the issue of Blackledge’s purported
dissatisfaction with Attorney Allen and her “internal conflict”
finally came to light when she filed the first withdrawal
motion. Despite the magistrate judge’s specific inquiry, neither
7
In April 2012, Attorney Graves and Attorney Shea joined
the case on Blackledge’s behalf, giving him three FPDO attorneys
of record. The following month Blackledge successfully obtained
a continuance of the scheduled June 14 commitment hearing.
Presumably, Attorney Graves and Attorney Shea were important to
Blackledge’s case because he used their inability to attend the
June 14 hearing as justification to obtain the continuance.
Despite this fact, he presented no reason why they could not
represent him in lieu of Attorney Allen.
52
Blackledge nor Attorney Allen offered any real justification for
the delay in bringing the matter to the district court’s
attention. Moreover, they did not challenge the magistrate
judge’s finding of untimeliness in the appeal of the magistrate
judge’s order to the district judge. 8
B.
Second, the district court’s inquiry into the motions was
more than adequate. Our caselaw illustrates that the district
court conducts an adequate inquiry if it gives the defendant and
counsel the opportunity to be heard regarding the nature of
their relationship and the reason underlying the motion,
considers what the attorney and defendant say in the context of
the case as a whole, and explains the basis for its
determination. See Perez, 661 F.3d at 192. We review the
adequacy of the court’s inquiry in its totality, and when the
attorney-client issue has been raised at different stages of the
litigation, the court need not revisit each aspect of the issue
at every stage. See
Smith, 640 F.3d at 594-95.
The magistrate judge, who had been very involved in the
case, spent almost one hour hearing from Blackledge and Attorney
Allen, and he afforded them every opportunity to present their
8
The majority appears to agree that the second withdrawal
motion, filed just days before the commitment hearing, was
untimely. See Majority Op., at 12.
53
arguments. The magistrate judge specifically inquired about the
purported internal ethical conflict, and he listened as Attorney
Allen described it as arising from the fact that “there are some
things that [Blackledge] wants to see that I am not going to be
able to help him with.” J.A. 91. The magistrate judge then
listened as Blackledge expressed his general dissatisfaction
with Attorney Allen and his defense, with the fact that she had
not provided him with certain unspecified documents, and with
the fact that he did not have another expert examiner. At the
end of the hearing, the magistrate judge inquired and even
offered to conduct an ex parte hearing, and Blackledge told him
that he had nothing more to say on the matter.
When the district judge considered the appeal of the denial
of the first motion, along with the second motion, he conducted
a de novo review and similarly afforded Blackledge and Attorney
Allen ample opportunity to argue their position. 9 The district
judge stated that he was familiar with Blackledge’s attempts to
have Dr. Plaud appointed, was aware of Blackledge’s bar
9
The majority states that “the district court made no
inquiry whatsoever into the scope and nature of” the “internal
ethical conflict.” Majority Op., at 18. This assertion ignores
the magistrate judge’s thorough inquiry and the district judge’s
subsequent review of that inquiry. Moreover, as is apparent from
the record, the purported “ethical” conflict involved nothing
more than Blackledge’s general disgruntlement about Attorney
Allen, his inability to see certain material, and his inability
to obtain another court-appointed examiner.
54
complaint, had read all of the filed material, and had listened
to the audio of the magistrate judge hearing. Both judges
explained their rulings in great detail, illustrating their
careful attention and consideration. There simply is no
reasonable basis to condemn this inquiry as being inadequate.
C.
Finally, the findings by the magistrate judge and the
district judge that there was not a total breakdown in
communication that would prevent Blackledge from mounting an
adequate defense are not clearly erroneous. The standard by
which we must judge the denial of a withdrawal motion is
objective, and it therefore does not depend solely on the
defendant’s dissatisfaction with his attorney’s performance.
United States v. Myers, 294 F.3d 203, 206 (1st Cir. 2002). As we
have explained, the “breakdown” of communication between an
attorney and the defendant must be “so great that the principal
purpose of the appointment – the mounting of an adequate defense
incident to a fair trial – has been frustrated.”
Smith, 640 F.3d
at 588.
This standard requires us to consider whether the defendant
has justifiable dissatisfaction with his appointed attorney,
which includes a serious conflict of interest or an
irreconcilable conflict. Id. at 588 n.4. However, justifiable
dissatisfaction “is not established merely by a defendant’s
55
frustration with counsel’s performance or disagreement with his
tactical decisions.” United States v. Boone, 437 F.3d 829, 839
(8th Cir. 2006). Moreover, the district court is not always
required to substitute counsel even where a real conflict
exists. For example, the court may properly deny substitution
“when the defendant’s own behavior creates a conflict.” United
States v. Morsley,
64 F.3d 907, 918 (4th Cir. 1995); see also
Smith, 640 F.3d at 591 (noting that a “defendant’s obstinacy”
cannot force the district court to substitute counsel).
The magistrate judge personally observed the in-court
interaction between Blackledge and Attorney Allen during the
hearing on the first withdrawal motions, and he expressly found
(based on his observation) that they were able to communicate
about the case in a manner that allowed Blackledge to conduct an
adequate defense. This finding – based on the magistrate judge’s
direct observation - is not clearly erroneous. 10
The district judge was aware of this finding, as well as
the fact that Attorney Allen had communicated in some respects
with Blackledge after the July 18 hearing and had filed pre-
hearing documents on his behalf. Other than referring to the bar
complaint and rehashing the same arguments they previously made,
10
The record shows that the magistrate judge paused the
July 18 hearing on two occasions in order to allow Blackledge to
confer with Attorney Allen and Attorney Shea.
56
neither Blackledge nor Attorney Allen presented any additional
information to establish that she could not adequately represent
him. 11 Moreover, the district judge observed that, based on the
parties’ stipulations, the only issue to be litigated during the
commitment hearing would be the “serious difficulty” element of
the civil commitment analysis, and resolution of that element
would boil down to the testimony and cross-examination of the
expert witnesses. Of course, that is what Attorney Allen and
Blackledge have repeatedly asserted during their attempt to have
Dr. Plaud appointed. Notably, when asked by the district judge,
11
The majority correctly states that “not every bar
complaint against an attorney by her client will result in a
conflict of interest.” Majority Op., at 17. As we noted in
United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993), “to
hold otherwise . . . would invite criminal defendants anxious to
rid themselves of unwanted lawyers to queue up at the doors of
bar disciplinary committees on the eve of trial.” Yet, the
majority simply accepts the premise that Blackledge’s bar
complaint against Attorney Allen “forced her to choose between
protecting her own reputation and arguing in her client’s best
interest that Blackledge should not be made to bear the
consequence of her own errors in submitting the renewed motion
to appoint Dr. Plaud.” Majority Op., at 18. This assertion is
not supported by the record, however, as Attorney Allen
acknowledged on multiple occasions that she erred by not moving
sooner for Dr. Plaud’s appointment. For example, she told the
magistrate judge at the July 18 hearing that she neglected to
seek the appointment in a timely manner and that this was one
reason that Blackledge wanted another attorney. See J.A. 108.
Likewise, in the appeal of the magistrate judge’s order denying
the withdrawal motion, she cited Maples and implicitly admitted
(albeit incorrectly) that she had abandoned Blackledge. See J.A.
at 119. In short, there is no evidence to establish that
Attorney Allen’s ability to represent Blackledge was compromised
by the bar complaint.
57
Attorney Allen could not explain how her ability to cross-
examine the experts was impacted by her relationship with
Blackledge.
D.
The foregoing discussion amply illustrates that the
district court did not abuse its discretion in denying the
withdrawal motions. 12 Even assuming otherwise, however, the
record makes it clear that the court’s error is harmless.
In United States v. Horton, 693 F.3d 463 (4th Cir. 2012),
the defendant filed a timely motion to substitute counsel, and
the district court did not inquire into the reasons for the
defendant’s dissatisfaction with his attorney. We assumed,
without deciding, that the court abused its discretion, but we
nonetheless found the error harmless. As we noted,
notwithstanding the defendant’s dissatisfaction, the attorney
provided an adequate defense: “For example, he filed pre-trial
motions in limine, he cross-examined government witnesses, and
he strongly advocated for his client throughout” the trial
12
The pertinent factors strongly support the district
court’s ruling, and there is no reason to weigh them against the
court’s interest in the orderly administration of justice.
However, for what it is worth, both the magistrate judge and the
district judge explained that allowing Attorney Allen to
withdraw would delay the commitment hearing, thereby prejudicing
the government and its witnesses and impacting the court’s
docket. Weighing this factor, therefore, also supports the
court’s ruling.
58
proceedings. Id. at 467. Moreover, we recognized that the
defendant did not “identify – let alone show – any specific way
in which his defense was hampered by any lack of communication
with his counsel.”
Id.
Here, the record reflects that Attorney Allen fully
represented Blackledge at the commitment hearing. She filed a
pre-trial brief, cross-examined the expert witnesses, moved for
judgment as a matter of law, conferred with Blackledge about
whether he wished to testify or present evidence, and made a
closing argument. Although the majority concludes that the
alleged communication breakdown prevented Blackledge from
preparing for the commitment hearing or discussing whether he
would testify, those general assertions – even if true - simply
do not establish that the hearing was unfairly tainted by the
attorney-client relationship.
Notably, Blackledge has not offered any reason why he could
not have testified or, more importantly, what relevant testimony
or other evidence he would have presented had his relationship
with Attorney Allen been better. Importantly, Blackledge
stipulated to the first two elements of the civil commitment
analysis, so there was no relevant evidence he could have
offered on those elements. As the district judge correctly
observed, the issue of civil commitment boiled down to one
question: whether the government proved the “serious difficulty”
59
element. Consistent with what Attorney Allen and Blackledge have
repeatedly asserted, our caselaw establishes that resolution of
this element depended on expert testimony, not on Blackledge’s
testimony. 13 Perhaps the most telling observation concerning the
irrelevance of any testimony he may have offered comes from
Blackledge: “[I]t seems highly probable that had he testified,
his testimony would have failed to persuade the district court
judge that he could refrain from further acts of sexual violence
or child molestation.” Opening Brief of Appellant, at 34.
In any event, regardless of whether they communicated
before the hearing, and regardless of whether any of his
testimony would be relevant, Attorney Allen had the opportunity
to confer with Blackledge about testifying during the hearing,
and he chose not to testify. Further, the district court
reviewed Blackledge’s deposition testimony during his
deliberations and was aware of the substance of what he would
likely say at the hearing. Moreover, the district judge noted,
and Blackledge does not dispute, that Blackledge was prepared by
13
The majority analogizes a commitment hearing to a
sentencing hearing, observing that it often “turn[s] on
mitigating evidence as to the respondent’s continued
dangerousness.” Majority Op., at 20. This analogy fails,
however, because it ignores the fact that expert testimony is
the relevant evidence for the “serious difficulty” element.
Moreover, unlike a sentencing hearing, where a plea in
mitigation can sway a district court towards leniency, the
court’s duty to commit a defendant is mandatory if the
government proves the elements by clear and convincing evidence.
60
counsel before the deposition and represented by counsel during
the deposition. 14
E.
Apart from my disagreement with the majority’s abuse-of-
discretion and harmless error determinations, I also question
its instruction on remand for the district court to “reconsider”
14
The majority asserts that the admission of Blackledge’s
deposition into evidence indicates that the district judge found
Blackledge’s testimony to be relevant as to the “serious
difficulty” element. See Majority Op., at 22 n.6. The majority
is incorrect for at least two reasons. First, we have a good
indication that the district judge did not consider Blackledge’s
testimony to be relevant to the “serious difficulty” element
because the judge correctly noted early in the commitment
hearing that the outcome of the commitment hearing hinged on
expert testimony. Because Blackledge did not object to the
government’s subsequent attempt to admit the deposition into
evidence, the district judge had no reason at that time to
address whether it was relevant to the “serious difficulty”
element or to exclude it for any reason; in this posture, the
admission of the deposition simply accords with our admonition
that most evidence should be admitted in non-jury proceedings.
See Multi-Med. Convalescent and Nurs. Ctr. of Towson v.
N.L.R.B., 550 F.2d 974, 977-78 (4th Cir. 1977). Second, and more
importantly, the deposition was in fact relevant, but just not
as the majority contends. Specifically, both of the experts who
testified at the hearing relied on the deposition in part to
form their opinions regarding whether Blackledge meets the
commitment criteria, and they utilized the deposition during
their testimony to help explain their opinions. See J.A. 184,
186, 187, 195, 215-16. The admission of the deposition was thus
entirely consistent with the well-settled principle that the
“serious difficulty” element “turns on the significance of the
factual information as viewed by the expert psychiatrists and
psychologists.”
Francis, 686 F.3d at 275. Regardless, it bears
repeating that to whatever extent the district judge may have
believed Blackledge’s testimony was relevant, the judge had
Blackledge’s deposition testimony before him, and Blackledge has
not explained what additional relevant testimony he would have
given at the commitment hearing.
61
the withdrawal motions “after engaging in the appropriate
inquiry regarding the extent of Attorney Allen’s conflicts.”
Majority Op., at 24. I suspect that on remand the district court
will ask the same question that I have: What is left to
consider?
As I have noted, the majority has found that “Attorney
Allen labored under a conflict of interest that caused her
communications with Blackledge to be so broken that a
‘fundamental step for adequate representation’ – basic trial
preparation – failed to occur,” Majority Op., at 20, and that he
was “forced to be represented by a lawyer asserting multiple
conflicts of interest with whom he had not prepared for trial
because of their inability to communicate,” id. at 24. Given the
definitive nature in which the majority has spoken, I fail to
understand how the district court can “reconsider” these
appellate findings or how it can do anything on remand other
than appoint Blackledge new counsel and conduct another
commitment hearing. I suspect that if the district court
“reconsidered” the motions on remand and denied them, my
colleagues in the majority – to be consistent with the majority
opinion - will overturn the district court’s decision if there
is a subsequent appeal.
62
V
Based on the foregoing, I dissent. I would affirm the
judgment of the district court.
63
