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United States v. Cruz

decided: February 28, 1989.


Appeal from the United States District Court for the Eastern District of Wisconsin, No. 85 CR 116 -- Robert W. Warren, Chief Judge.

Cummings, Coffey and Manion, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge

Prior to his conviction, the defendant, Armelio De La Cruz, resided in this country as a conditional entrant, having arrived by boat after his exile from Cuba. On August 20, 1985, he was indicted in the Eastern District of Wisconsin for possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was released from custody after posting a $50,000 bond on August 28, 1985. Further prosecution of the defendant was delayed by his failure to appear at a September 11, 1985, hearing to review his bail. De La Cruz was arrested over a year later in New York on December 18, 1986. On July 15, 1987, he entered a guilty plea to the crime charged in the indictment and was sentenced to fifteen years' imprisonment on October 19, 1987, the maximum prison term allowed under the statute, to run consecutively with his sentence of eighteen months' imprisonment for failure to appear.*fn1 On appeal, defendant contests the validity of his sentence, alleging that the district judge improperly considered the defendant's nationality and method of entrance into this country.

The defendant's road to appeal has been peppered by his counsel's repeated attempts to withdraw from representing De La Cruz on appeal. Defendant retained attorney Michael F. Hupy of the Milwaukee bar for representation in the district court. Following the filing of defendant's appeal on October 28, 1987, Hupy moved to withdraw on November 4, 1987. On November 5, 1987, the district court ordered Hupy to assist the defendant in the preparation of a motion in forma pauperis and allowed the attorney to withdraw from representation of defendant on November 17, 1987. This Court vacated the order allowing Hupy to withdraw in light of United States v. Flowers, 789 F.2d 569 (7th Cir. 1986), which held that the court of appeals, not the district court, is the proper forum for determining whether appointed counsel may withdraw from representing a defendant on appeal. On January 15, 1988, defendant's counsel asked this Court for permission to withdraw. His motion was denied on February 2, 1988, and his motion for rehearing en banc was denied on May 16, 1988. On June 2, 1988, this Court also denied Hupy's request to stay proceedings on defendant's appeal while the attorney filed and awaited the disposition of his petition for a writ of certiorari to the Supreme Court. Hupy attempts to renew his challenge to serving as appointed counsel for defendant on appeal by attacking the constitutionality of Seventh Circuit Rule 4 under which counsel was required to continue his representation of the defendant on appeal. Indeed that is the principal issue raised on appeal.*fn2

I. Validity of Appointment of Defendant's Appellate Counsel

It is unfortunate that defendant's counsel on appeal devotes only six pages of the defendant's briefs to discussion of De La Cruz's challenge to the sentence, usurping the remaining nine pages for counsel's challenge to Circuit Rule 4*fn3 under which he was appointed. Counsel subordinates the interests of his client to his own interest by boot-strapping to defendant's briefs Hupy's challenge to Circuit Rule 4 requiring him to serve as defendant's counsel on appeal. Counsel's argument has been thrice rejected by this Court through denial of his motion to withdraw as counsel on appeal, his motion to rehear en banc, and his motion for a stay. Through De La Cruz's appeal, his counsel reiterates his argument that Circuit Rule 4 violates the Fifth Amendment's due process clause and the Thirteenth Amendment's prohibition of involuntary servitude by requiring him against his will to represent an indigent defendant at an unfair level of compensation. Counsel feebly attempts to implicate the interests of his client by arguing that under Circuit Rule 4 defendants such as his client will no longer be able to secure competent counsel in the trial court if such counsel is required to continue through representation upon appeal for a purportedly inadequate level of compensation.

Counsel's attempt to invoke the nebulous interest of his client and others similarly situated does not prevent this Court from appreciating counsel's argument for what it is: a complaint that he is not being adequately paid under the Criminal Justice Act (18 U.S.C. § 3006A) for representing an indigent defendant. This argument is easily answered. It is axiomatic that in return for membership in the professional bar, an attorney must accept court appointments to represent an indigent like De La Cruz in order to preserve his Sixth Amendment right to counsel. Compensation is not required under this constitutional mandate. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. Counsel's additional claim that his continued representation on appeal forces him to violate Rule 1.2 of the American Bar Association Model Rules of Professional Conduct is untenable.*fn4 Hupy asserts that he and the defendant entered into an employment agreement prior to defendant's trial under which Hupy agreed to represent defendant in the trial court, specifically excluding representation upon appeal. Counsel contends that Rule 1.2 prevents him from representing a client in a matter for which the client expressly agreed in writing not to be represented by this counsel on appeal. It is worth noting that De La Cruz has not objected to his representation by Hupy on appeal nor attacked his representation as ineffective.

We need not, however, address Hupy's arguments further because this Court lacks jurisdiction to review his challenge to Circuit Rule 4 since counsel's challenge has already been adjudicated here. Counsel is not a party to this appeal. One who is not a party to the record and judgment is not entitled to appeal therefrom. Rogers and Rogers v. National Union Fire Insurance Company, , F.2d , , No. 87-1868, slip op. 5 (7th Cir. December 30, 1988); Akins v. Board of Governors, No. 87-1961, slip op. 2-3 (7th Cir. January 30, 1989). Despite the attempts of counsel to cloak his challenge to Circuit Rule 4 in the interest of his client, the conclusion is inescapable that it is Attorney Hupy who is purportedly harmed by Circuit Rule 4, not De La Cruz.

Hupy's motion for reconsideration en banc was denied by this Court. This Court will not consider for a third time Hupy's request to withdraw through his client's present appeal. Hupy's remedy was to seek Supreme Court review of this Court's denial of his motion to withdraw, rather than attempting to consolidate his appeal with that of his client. In contrast to United States v. Wilkins, 659 F.2d 769, 771 n.1 (7th Cir. 1981), certiorari denied, 454 U.S. 1102, 102 S. Ct. 681, 70 L. Ed. 2d 646 where we postponed ruling on counsel's motions to withdraw and responding to client's letters requesting appointment of new counsel until the client's case was considered, this Court has already disposed of the attorney's motion to withdraw. Hupy has exhausted his avenues for review in this Court rendering his present challenge non-justiciable. Indeed, counsel recognized the correct procedural route when he filed a motion for a stay of this Court's proceedings pending the filing and disposition of a petition for a writ of certiorari by the Supreme Court. That motion was denied by this Court on June 2, 1988. The matter was closed then and will not be reopened now.

II. Validity of Evidence

At the time of defendant's sentencing, a conviction under 21 U.S.C. § 841(a)(1) carried a maximum penalty of fifteen years' imprisonment, a $125,000 fine, and a three-year special parole term. Judge Warren imposed the maximum prison sentence in spite of the fact that the government recommended ten years' imprisonment in return for defendant's guilty plea.

Defendant contends that the district judge took into consideration improper factors in his sentencing determination.*fn5 Specifically, defendant points to the remarks of Judge Warren regarding the defendant's status as a Cuban "boat person" contained in his presentencing comments:

No. 1, I am inclined to agree with the government that we know a lot more about Mr. De La Cruz now than we did the first time he was through court, and it doesn't make ...

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