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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA CRIMINAL NO. 09-CR-00234

VERSUS JUDGE DEE D. DRELL

ROY EUGENE HEBRON, ET AL MAGISTRATE JUDGE KIRK

MOTION TO RECONSIDER RULING DENYING TRIAL COUNSEL OF CHOICE

WITH INCORPORATED MEMORANDUM OF AUTHORITIES

NOW INTO COURT, through undersigned counsel, comes

Defendant/Mover, Roy Hebron (hereinafter Mr. Hebron) who with respect

represents that:

1.

Mr. Hebron is charged with conspiracy, major disaster fraud and theft of

government property or money. Trial is scheduled to commence on February 2,

2011.

2.

Mr. Hebron is represented by attorneys J. Michael Small and Henry H.

Lemoine, Jr. However, Mr. Hebron hired Mr. Small with the clear understanding

that Mr. Small, not Mr. Lemoine, would be his trial counsel. Mr. Small’s expertise

as trial counsel in federal criminal trials is well-known. It was precisely because

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of that expertise and skill that Mr. Hebron, at considerable personal expense,

hired Mr. Small to represent him at trial. While Mr. Lemoine is an experienced

state litigator, it was never the intention of Mr. Hebron, Mr. Small or Mr. Lemoine

that Mr. Lemoine would act as lead counsel in this federal criminal trial.

3.

At a conference in chambers on December 7, 2010, Mr. Small was not

present because he was actually in another trial in New Orleans. The prosecutor

is the individual who advised the Court that Mr. Small was scheduled to begin

another federal criminal trial on January 10, 2011 in Monroe, Louisiana, that was

expected to last several weeks, and although the prosecutor is not involved in that

matter, did not know if Mr. Small’s trial scheduled before Judge Robert G. James

would be completed in time to begin the trial involving Mr. Hebron. Mr. Lemoine

was present and immediately requested that the Court be aware of the problem

if Mr. Small was not available to properly prepare and try the case, and the Court

stated that the trial would go forward regardless of Mr. Small’s presence or not.

Mr. Lemoine urged the Court to reconsider making it perfectly clear that Mr. Small

had been retained after Mr. Lemoine was involved in the case, therefore it is

perfectly clear that Mr. Hebron chose Mr. Small to be lead counsel. Mr. Lemoine

does not believe that his level of experience provides Mr. Hebron with counsel of

his choice. Mr. Lemoine shows that he actually referred Mr. Hebron to Mr. Small

because of his knowledge of Mr. Small’s abilities and simultaneously Mr.

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Lemoine’s inexperience in the federal system.

4.

Mr. Hebron reiterates his objection to this ruling, and requests that the

Court reconsider it. Mr. Hebron has a constitutional right to be represented at

trial by counsel of his choice, and this Court’s ruling will deprive him of that right.

5.

In United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165

L.Ed.2d 409 (2006), the United States Supreme Court held that the erroneous

deprivation of a criminal defendant’s choice of counsel is a structural error

requiring reversal. 126 S.Ct. at 2564. In that case, the trial court disqualified the

defendant’s counsel of choice. The High Court noted, “The Sixth Amendment

provides that ‘in all criminal prosecutions, the accused shall enjoy the right ... to

have the Assistance of Counsel for his defense.’ We have previously held that an

element of this right is the right of a defendant who does not require appointed

counsel to choose who will represent him.” 126 S.Ct. at 2561. The Court ruled

that “the Sixth Amendment right to counsel of choice...commands, not that

a trial be fair, but that a particular guarantee of fairness be provided - to wit, that

the accused be defended by the counsel he believes to be the best.” 126 S.Ct.

at 2562 (emphasis added). Mr. Hebron believes that Mr. Small is the counsel who

will best defend him at trial; indeed that is exactly why he retained Mr. Small.
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6.

The Court in Gonzalez-Lopez continued, “The right to select counsel of

one’s choice ... has never been derived from the Sixth Amendment’s purpose of

ensuring a fair trial. It has been regarded as the root meaning of the

constitutional guarantee. Where the right to be assisted by counsel of one’s

choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness

or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the

right is ‘complete’ when the defendant is erroneously prevented from being

represented by the lawyer he wants, regardless of the quality of representation he

received. To argue otherwise is to confuse the right to counsel of choice - which

is the right to a particular lawyer regardless of comparative effectiveness - with the

right to effective counsel - which imposes a baseline requirement of competence

on whatever lawyer is chosen or appointed.” 126 S.Ct. at 2563 (emphasis added).

7.

In this case, Mr. Hebron’s counsel of choice to represent him at trial is Mr.

Small. Whether or not Mr. Lemoine would ably represent him at trial is simply not

the issue. As the Court in Gonzalez-Lopez observed in concluding that the

erroneous denial of counsel of choice is a structural error requiring reversal,

“Different attorneys will pursue different strategies with regard to investigation

and discovery, development of the theory of the defense, selection of the jury,

presentation of witnesses, and style of witness examination and jury argument.

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And the choice of attorney will affect whether and on what terms the defendant

cooperates with the prosecution, plea bargains, or decides instead to go to trial.

In light of these myriad aspects of representation, the erroneous denial of counsel

bears directly on the ‘framework within which the trial proceeds.’” 126 S.Ct. at

2564. Accord, United States v. Sanchez Guerrero, 546 F. 3d 328, 332 (5th Cir.

2008).

8.

The Supreme Court in Gonzalez-Lopez did note its previous recognition of

the trial court’s latitude in balancing the right to counsel of choice “against the

demands of its calendar” 126 S.Ct. at 2565-2566 (citing Morris v. Slappy, 461 U.S.

1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The Court in Morris stated,

“Trial judges necessarily require a great deal of latitude in scheduling trials. Not

the least of their problems is that of assembling the witnesses, lawyers, and jurors

at the same place at the same time, and this burden counsels against

continuances except for compelling reasons. Consequently, broad discretion must

be granted trial courts on matters of continuances; only an unreasoning and

arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for

delay’ violates the right to the assistance of counsel.’” Morris, supra, 103 S.Ct. at

1616. This Court’s wide discretion is not disputed; however, even that discretion

has limits. Mr. Hebron’s request for a continuance in the event his counsel of

choice is unavailable to represent him is a justifiable one, and is a far cry from the
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situation facing the court in the Morris case1.

9.

As United States v. Gonzalez-Lopez, supra, makes clear, the Constitution

guarantees the right to be represented by counsel of one’s choice. Mr. Hebron

chose Mr. Small to represent him at trial. This Court’s discretion to control its

calendar does not trump that constitutional right. The decision to refuse a

continuance in the event Ms. Small is unavailable on February 2, 2011, will

deprive Mr. Hebron of his counsel of choice. That ruling should be reconsidered

and reversed.

1
Mr. Morris had court-appointed counsel. When his original court-appointed
lawyer (Goldfine) became ill, another lawyer (Hotchkiss) was appointed to represent
him. At trial, the defendant stated that he was “satisfied with the Public Defender”
but he felt that the public defender had not had sufficient time to prepare for trial.
However, Mr. Hotchkiss indicated his readiness to proceed. 103 S.Ct. at 1614. The
trial court denied the motion to continue. On the second day of trial, the defendant
again complained about the representation “I don’t mean he’s not a good P.D., I don’t
have anything against him. It’s just that he didn’t have time to prepare...” Id.
Hotchkiss again indicated his readiness to proceed, after which Mr. Morris first
mentioned that he wanted his original lawyer, Mr. Goldfine, to represent him. After
conviction, the case was appealed to the state courts and affirmed; the defendant
sought habeas relief in the district court, which was denied. However, the Sixth
Circuit reversed, finding a violation of the defendant’s Sixth Amendment right to “a
meaningful attorney-client relationship.” 103 S.Ct. at 1612. The opinion of the United
States Supreme Court found no abuse of the trial court’s discretion in denying a
continuance based on the “record facts”. 103 S.Ct. at 1616. With regard to Mr.
Morris’ belated request to have his original court-appointed lawyer represent him, the
Supreme Court noted that the trial court could reasonably have concluded that the
request was merely “a transparent ploy for delay.” 103 S.Ct. at 1617. The Court
found no legal basis for the Sixth Circuit’s conclusion that the right to “a meaningful
attorney-client relationship” is constitutionally guaranteed. 103 S.Ct. at 1617.
Morris, of course, pre-dates Gonzalez-Lopez, which specifically recognized the right to
counsel of one’s choice is the “root meaning” of the constitutional right to counsel.
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WHEREFORE DEFENDANT, ROY HEBRON PRAYS that this Motion to

Reconsider Ruling Denying Trial Counsel of Choice be allowed and filed and that,

after due proceedings, this Court reconsider and reverse it previous ruling that

trial will proceed on February 2, 2011 even in the absence of Attorney J. Michael

Small.

Respectfully submitted,

HENRY H. LEMOINE, JR., INC.

By: s/Henry H. Lemoine, Jr.

Henry H. Lemoine, Jr. (#8306)
607 Main Street
Pineville, Louisiana 71360
(318) 473-4220

CERTIFICATE

I hereby certify that a copy of the foregoing Motion To Reconsider Ruling

Denying Trial Counsel Of Choice was filed electronically with the Clerk of Court

using the CM/ECF system. Notice of this filing will be sent to Ms. Cytheria D.

Jernigan, Assistant United States Attorney, and all defense counsel, by operation

of the Court’s electronic filing system.

Alexandria, Louisiana, this 14th day of January, 2011.

___s/ Henry H. Lemoine, Jr.

Henry H. Lemoine, Jr.
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA CRIMINAL NO. 09-CR-00234

VERSUS JUDGE DEE D. DRELL

ROY EUGENE HEBRON, ET AL MAGISTRATE JUDGE KIRK

ORDER

PREMISES CONSIDERED, it is hereby

ORDERED that the foregoing Motion To Reconsider Ruling Denying Trial

Counsel Of Choice is:

GRANTED ________________ DENIED ________________

GRANTED, to the following extent: ____________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Alexandria, Louisiana this ___________ day of January, 2011.

__________________________________________
HONORABLE JAMES D. KIRK
UNITED STATES MAGISTRATE JUDGE