Seventh Circuit Merits Panel Overrules Motion Panel, Revoking Appointment of Appellate Counsel That Resulted in “Forbidden” Hybrid Representation

In United States v. Njos, No. 21-3412 (7th Cir. May 22, 2023), a Seventh Circuit holds – in the fullness of time – that the court’s motion panel should not have appointed counsel in behalf of a criminal defendant to pursue an argument that the defendant expressly waived, and therefore grants the defendant’s motion to dismiss counsel.

“Counsel in criminal appeals and their clients sometimes disagree about which issues to raise on appeal. Unresolved disagreements can pose problems for defendants, their lawyers, and the appellate court. This appeal presents an unusual version of those problems. This court helped create the problem when we denied the defendant’s motion to dismiss his appellate counsel and allowed a form of ‘hybrid’ representation on appeal by allowing appellant to file his own brief. We have said before, though, that such hybrid representation is ‘forbidden’ on appeal.”

Defendant Njos was in federal district court for allegedly “violat[ing] the condition of supervised release not to commit another federal, state, or local crime.” (During his three-year period of supervised release, Njos was charged and eventually convicted at the state level with robbery. He was also charged with “test[ing] positive for illegal substances, fail[ing] to report to his probation officer, and fail[ing] to report for drug testing and mental health treatment.”) “Njos proceeded pro se during the revocation process after the district court confirmed that his decision to represent himself was knowing and voluntary.”

Njos principally wished to get the federal prosecution expedited so he could be remanded to state prison for further mental health treatment. So he did not object when the federal court entered his sentence (for 82 months) in a written order rather than in a face-to-face hearing. Indeed, “Njos thanked the judge for speeding up the process, and neither Njos nor the government objected to proceeding in this fashion.”

But on appeal, Njos’s appointed appellate counsel (Johanna M. Christiansen of the Office of the Federal Defender) wished to pursue was “whether the district court erred by imposing a prison sentence upon revocation in a written order rather than face-to-face in a hearing with the defendant present in person” in violation of Fed. R. Crim. P. 32.1(b)(2). “When counsel was not receptive to raising the other issues that Njos wished to argue, he filed a motion to dismiss counsel along with a brief setting forth his preferred arguments. We denied Njos’s motion to dismiss counsel but allowed him to file the supplemental brief pro se.”

The Seventh Circuit panel was thus presented with two principal briefs for the defendant, including one (by counsel) that made an argument that the defendant himself disavowed. The panel allows that entering Njos’s sentence in abstentia likely violated his rights; even “the government does not even try to defend the district court’s choice to impose the prison sentence in writing, without having the defendant in court.” Instead, “[t]he government argues that Njos waived any basis for relief from the district court’s error” both below and on appeal.

The panel breaks the logjam by relieving counsel from the appointment. “We … understand counsel’s reluctance to concede that her client’s statements in this court amount to waiver. Yet it is now clear that this court’s and counsel’s effort to balance counsel’s obligations to her client and the court with Njos’s right to represent himself has become untenable.”

“The most prudent step is to reconsider our earlier decision that placed the defendant and counsel in this position. A merits panel may re-examine a ruling by a motions judge or panel . . . . In this case, events since the initial ruling let us appreciate better the effect of the conflict between client and counsel here. On our own initiative, therefore, we reconsider the order of August 19, 2022, denying defendant-appellant’s motion to discharge court-appointed counsel. The motion is hereby granted, and counsel’s representation of Njos is terminated.”

“We commend counsel for her vigorous representation of her now-former client and her efforts to preserve, despite the difficult circumstances, the important argument about a criminal defendant’s right to be sentenced in person for a revocation of supervised release.” The panel thus holds that the defendant waived the right to be sentenced in person and otherwise affirms the sentence.

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