US v. Ademaj
Case Date: 03/07/1999
Court: United States Court of Appeals
Docket No: 97-2352
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FOR THE FIRST CIRCUIT No. 97-2352 UNITED STATES OF AMERICA, Appellee, v. FREDI ADEMAJ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Lynch, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge. John J. Barter for appellant. Theodore B. Heinrich, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee. March 4, 1999 CYR, Senior Circuit Judge. Defendant Fredi Ademaj challenges various district court rulings relating to his trial and conviction on three counts of distributing cocaine, see 21 U.S.C. 841(a)(1), and two counts of conspiring to distribute cocaine, see id. 846. We affirm the district court judgment in all respects. I BACKGROUND The evidence showed that Ademaj had been involved in a wholesale cocaine distribution operation in the Boston area. During May 1996 the Drug Enforcement Agency ("DEA") began using a cooperating witness, nicknamed "Bob," to investigate Stefanos Meraklis, Ademaj's brother-in-law. During the DEA investigation, "Bob" engaged in undercover cocaine transactions with both Meraklis and Meraklis' cocaine supplier. Some transactions were tape- recorded and Ademaj served as a go-between in certain transactions. For the most part, the recorded conversations were conducted in Greek. II DISCUSSION Ademaj presents six claims, which we discuss in turn. A. Constructive Deprivation of Right to Trial Counsel Initially, Ademaj filed a pro se motion requesting replacement counsel three days prior to trial, arguing that since he and his court-appointed counsel spoke different languages their inability to communicate resulted in a constructive deprivation of his Sixth-Amendment right to trial counsel, in that "there was no opportunity for effective trial preparation." Cf. Strickland v. Washington, 466 U.S. 668, 685-87 (1984). Thereafter, on the first day of trial, court-appointed counsel moved for a continuance on the ground that "it was evident that [Ademaj] did not understand the federal court procedures, as [counsel] had previously explained to this Albanian defendant in English . . . ." Counsel further represented to the court: "Unfortunately, I don't think that Mr. Ademaj has understood everything I have indicated to him about the trial process." Although counsel acknowledged that an interpreter had been made available previously, he added that initially he had thought "Ademaj had understood certain things and now I'm not sure if he . . . actually did." For his part, Ademaj asserted that he was not prepared to proceed to trial because there was evidence which he had not yet been able to obtain. Asked what further evidence he sought, Ademaj simply responded: "[M]y evidence." The district court heard and rejected these motions the day trial was scheduled to begin. Shortly thereafter, as the petit jury entered the courtroom to begin the trial, defense counsel once again requested a continuance, which was denied. The court then informed Ademaj and counsel that an interpreter would be available should they wish to confer further prior to trial. During jury empanelment, Ademaj indicated that he wished to proceed without counsel. The court responded that he would be allowed to proceed without counsel, but that replacement counsel would not be appointed. After Ademaj advised the court that he had no confidence in court-appointed counsel, the request for replacement counsel was denied once again and Ademaj decided against proceeding pro se. As an initial matter it is not at all clear that a criminal defendant represented by court-appointed counsel may assert a "constructive" denial-of-counsel claim under the Sixth Amendment separate and apart from the conventional ineffective- assistance-of-counsel claim. Ademaj cites no apposite authority, nor have we found any. As a conceptual matter, moreover, such a claim would appear redundant in the instant context, given that ineffective assistance by court-appointed counsel would constitute a denial of the Sixth Amendment right to counsel in the sense that the trial itself could not be relied upon to produce a just result in such a circumstance. See Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994). At bottom, then, this constructive denial-of-counsel claim is simply an ineffective-assistance-of-counsel claim wherein Ademaj asks the court to presume prejudice. We decline to do so. Instead, we inquire whether the absence of an interpreter prior to trial actually prejudiced Ademaj's defense. See United States v. Cronic, 466 U.S. 648, 659 n.26 (1984) (dicta) (noting: "[a]part from [certain limited] circumstances . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."). We have held that a presumption of prejudice under the Sixth Amendment is "the exception, not the rule |