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November 15, 1973

Jose Juan SOTO

Luongo, District Judge.

The opinion of the court was delivered by: LUONGO

Jose Juan Soto was convicted on charges of aiding and abetting the sale of heroin, in violation of 26 U.S.C. §§ 4704, 4705 and 18 U.S.C. § 2. He was given concurrent sentences of five years imprisonment on one count of the indictment and two years on another. Soto has filed this petition under 28 U.S.C. § 2255 *fn1" to vacate or set aside the sentences on the ground that the court violated his constitutional and statutory rights by requiring him to proceed to trial represented by two court-appointed attorneys, after he had expressed dissatisfaction with their representation.

 Soto, along with three other persons, was indicted by a federal grand jury on April 29, 1971, on various charges relating to the sale of heroin. *fn2" On August 4, 1971, the court appointed Mrs. Marilyn Mauskopf to represent Soto. A short time later, Aaron D. Blumberg, an associate of Mrs. Mauskopf in the firm of Pepper, Hamilton and Scheetz, joined her in representing Soto *fn3" and they worked together thereafter. During the ten months' period between appointment and trial, counsel filed several significant pretrial motions which they argued and in support of which they filed memoranda of law. They attacked, inter alia, the "bare bones" nature of the indictment, and requested the minutes of the proceeding before the grand jury and the production of documents for the purpose of formulating a defense to the vague charges. (Document 14) They challenged the constitutionality of the "John Doe" indictment, contending that such a procedure amounted to a general warrant in violation of the Fourth Amendment. (Document 25) They argued further that the indictment should be quashed for misjoinder, alleging that separate offenses against several persons were improperly connected without a conspiracy charge. To dissipate the "taint of association," they requested that petitioner's trial be severed. (Document 31) The court ruled against their contentions on the constitutional objections, but as a result of counsel's efforts, two counts against Soto were dismissed, and the remaining counts were severed for trial.

 On the day the case was called for trial, June 1, 1972, Soto's attorneys asked leave to withdraw as counsel, citing "a growing realization" on their part that Soto had "become displeased with [their] representation." As stated by Mauskopf, Soto had registered two fundamental objections. First, as a result of alleged discussions with attorneys in New York, he had decided that his attorneys were not raising all possible constitutional claims. Second, because the case was listed for trial, Mauskopf and Blumberg had told petitioner to contact them daily so they could advise him of the progress of the case on the court's trial list. Petitioner apparently viewed this request as a form of harassment and, according to Mauskopf, complained to Puerto Rican social agencies in the city that he was being mistreated. (N.T. 3)

 Following this statement by counsel, the court engaged in this colloquy with Soto:

"THE COURT: Mr. Soto, Mrs. Mauskopf indicates to me that you have expressed dissatisfaction with the manner in which she and Mr. Blumberg have represented you; is that correct?
MR. SOTO: Yes.
THE COURT: What arrangements, if any, have you made to get another attorney?
MR. SOTO: I haven't made no arrangement yet.
THE COURT: All right. Then I am not going to grant the request. I am going to insist that Mrs. Mauskopf remain, that Mr. Blumberg remain, that they will represent you to the best of their ability whether you like it or not. They will do the job that they in their professional opinion regard as a proper job to do on your behalf, and if you have any complaints later, you will make them in a proper fashion.
This case has been on my list for some period of time. You were aware that it was going to come up for trial, and I cannot tolerate at this last minute a lack of cooperation between you and your attorneys. The fact that you have chosen to consult with attorneys far away, who cannot help you, to give you advice on the kind of representation you are getting does not impress me at all.
If you wish to get attorneys of your own choosing, you are free to do so. When they come in here, I will entertain the application and permit them to substitute for Mrs. Mauskopf and Mr. Blumberg. In the meantime the Court is satisfied that they are quite competent and capable and have done a fine job on your behalf up to this point. They have fought hard for you."

 The court went on to make it clear to petitioner that his attorneys were not at fault for requiring him to call in daily; that they were merely complying with the court's instructions in order to keep its calendar moving and to avoid unnecessary delays. (N.T. 6-8) Immediately following this exchange, Soto waived his right to a jury trial, and the case was tried to the court, with the resultant finding of guilt on the charges of aiding and abetting sale of heroin. Counsel filed an appeal, which was unsuccessful, the conviction being affirmed sub nom, United States v. Santiago, 474 F.2d 1337 (3d Cir. 1972), and a petition for certiorari which was denied, Soto v. United States, 411 U.S. 907, 93 S. Ct. 1535, 36 L. Ed. 2d 197 (1973). Thereafter, Soto filed this § 2255 petition.

 Soto alleges that the court, in dealing with counsel's request to withdraw from the case, committed several errors which necessitate that sentence be vacated. Specifically, he argues first that the right to proceed pro se is protected by the Sixth Amendment of the Constitution and by 28 U.S.C. § 1654, and that the court was under a duty to advise him of that right. He charges further that the court erred in not ascertaining from him, rather than from his counsel, the basis of his dissatisfaction with counsel's representation, and that by requiring him to go to trial with counsel he distrusted, the court deprived him of due process. Read ...

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