UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
February 12, 1978
UNITED STATES OF AMERICA
The opinion of the court was delivered by: HERMAN
John C. Shimek, Defendant in the above-captioned case, is charged with three counts of wilfully and knowingly supplying false and fraudulent information to the Internal Revenue Service in violation of 26 U.S.C. § 7205 pertaining to fraudulent withholding exemption certificates or failure to supply information.
Defendant has filed numerous pretrial motions including a "claim for assistance of counsel of choice", a "claim for assurance of competent judge", a motion for a continuance, a "claim for assurance of fair trial", a motion for change of venue, a motion challenging jurisdiction, a motion to dismiss the indictment, and a "preliminary counter complaint". Action on these motions is necessarily delayed by Defendant's failure to file briefs in support of his motions. However, there are several motions which we will deal with immediately.
The "Preliminary Counter Complaint" of the Defendant, which in its substantive averments is a civil action for damages against certain government personnel and other individuals, has no place in a criminal action in which he is the Defendant. Therefore the "Preliminary Counter-Complaint" will be dismissed.
Defendant has filed what he refers to as a "Claim for Assurance of a Competent Judge". This document is a questionnaire consisting of some eighteen questions for the Court to answer on the subject of constitutional law. This "Claim" or motion is denied. Any question as to the correctness of our rulings on constitutional questions can be raised on appeal by the Defendant should he be convicted at trial.
Defendant has also entered what he refers to as a "Claim for Assistance of counsel of Choice". The motion provides in part:
"In the above-entitled action, the Defendant, John C. Shimek, claims his right to have counsel of his choice and hereby appoints Andrew Malechinsky of Enfield, Connecticut, an attorney who is not a member of the Bar or otherwise licensed to practice law, to represent him."
Defendant has a constitutional right to self-representation. FARETTA v. CALIFORNIA, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). It was held in FARETTA that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, and such right of self-representation is supported by the Sixth Amendment, made applicable to the states by the Fourteenth Amendment. As this is a federal criminal prosecution the right under the Sixth Amendment applies directly.
There is no constitutional right to have someone not admitted to the practice of law before any bar to represent a criminal defendant in Court. UNITED STATES OF AMERICA v. WILHELM, 570 F.2d 461 (3rd Cir. 1978) (per Van Dusen, J.). Such a person could aid a defendant in the preparation of his case, but he will not be permitted to practice before this Court unless he meets the qualifications listed in the Local Rules of the United States District Court for the Middle District of Pennsylvania. The rules as they pertain to admission of attorneys provide in pertinent part:
"RULE 201.01 PERSONS ENTITLED TO ADMISSION AS ATTORNEYS -- OATH.
Any person of good moral and professional character maintaining an office in the Commonwealth of Pennsylvania for the regular practice of law shall be entitled to admission as an attorney of this court, if such person shall have been previously admitted to practice in the Supreme Court of the United States, the Court of Appeals of the Third Circuit or the Supreme Court of Pennsylvania and is currently in good standing therein. He shall subscribe to the roll and take the following oath: 'I do swear (or affirm) that I will demean myself as an attorney and counselor of this court uprightly and according to law, and that I will support the Constitution of the United States.' RULE 201.02 ADMISSION OF ATTORNEYS FOR PURPOSES OF A PARTICULAR CASE.
Attorneys and counselors admitted to practice before other courts, who do not possess the full qualifications required by the foregoing rule, may be admitted specially for the purpose of a particular case."
From the facts alleged in Defendant's "Claim for Assistance of Counsel of Choice", his "counsel", Mr. Malechinsky, is not a member of a bar or otherwise licensed to practice law and therefore fails to qualify for admission under the Local Rules, and will not be permitted to practice before this Court.
We strongly urge Defendant to secure counsel who has been properly admitted to the bar to represent him in this criminal prosecution. The Defendant, should he be convicted of all the counts in the indictment, faces a possible fine of $500 and one year in jail on each of the three counts.
If Defendant feels he is entitled to appointment of counsel as an indigent he should make prompt application, although a financial affidavit previously filed on October 28, 1977, indicates that Defendant is ineligible for appointed counsel unless Defendant's financial situation has altered substantially since that time.
All briefs on the remaining outstanding motions must be submitted within seven (7) days of the date of the Order accompanying this memorandum.
An appropriate order will be entered.
R. DIXON HERMAN UNITED STATES DISTRICT JUDGE
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 445 F. Supp.]
AND NOW, this 2nd day of February, 1978, in accordance with the memorandum this day filed, IT IS ORDERED that Defendant's motion entitled "Preliminary Counterclaim" is dismissed.
IT IS FURTHER ORDERED that Defendant's "Claim for Assurance of a Competent Judge" asking the Court to answer a questionnaire on Constitutional law is denied.
IT IS FURTHER ORDERED that Defendant's "Claim for Assistance of Counsel of Choice" asking the Court to allow a person not admitted to the bar to represent him is denied.
IT IS FURTHER ORDERED that any briefs in support or in opposition to the remaining motions must be submitted within seven (7) days of the date of the order accompanying this memorandum.
IT IS FURTHER ORDERED that the trial date for this case is rescheduled to Tuesday, February 14, 1978, at 10:00 a.m., in Courtroom No. 1, United States Courthouse, Harrisburg, Pennsylvania.
IT IS FURTHER ORDERED that Defendant appear with counsel at a pretrial conference scheduled for 10:00 a.m., on Monday, February 13, 1978, at Courtroom No. 1, United States Courthouse, Harrisburg, Pennsylvania.
R. DIXON HERMAN UNITED STATES DISTRICT JUDGE