decided as amended october 15 1979.: October 5, 1979.
Before Adams, Rosenn and Higginbotham, Circuit Judges.
The right to the assistance of counsel is a critical element of our American system of jurisprudence. A defendant's decision to exercise that right and to place his liberty and possibly his life in the hands of an attorney of his choice may not be lightly tampered with. In this case, the district judge dismissed one of the defendant's attorneys without making any findings to justify that dismissal. Because we believe that this dismissal without adequate findings may have violated the defendant's right to counsel, we will reverse the decision of the district court and will remand for further proceedings consistent with this opinion.
In February 1976 Priscilla Dominguez Laura, the appellant, was indicted in the Eastern District of Pennsylvania under two counts of a five-count indictment which charged eleven people with conspiracy to import cocaine, Count 1, importation of cocaine, Count II, conspiracy to distribute cocaine, Count III, and possession with intent to distribute cocaine, Counts IV and V.*fn1 Priscilla Laura was charged under Counts I and II, and her husband, Anthony Laura, was charged under all five counts. In October 1976 she pled guilty to Counts I and II and received a five-year probationary sentence under the Youth Corrections Act.*fn2 Her husband also pled guilty; he received a sentence of two years' imprisonment and three years' special parole. Throughout the proceedings Priscilla and Anthony Laura were represented by the same counsel.
In August 1978 Priscilla Laura was convicted in a Florida federal court for distribution and possession of cocaine and received a sentence of two years' imprisonment and three years' special parole.
In September 1978 Laura's supervising probation officer petitioned in the Eastern District of Pennsylvania for the revocation of Laura's probation. Following an evidentiary hearing in October 1978, the United States Magistrate found probable cause for violation of probation. In November 1978 Laura filed a Motion to Withdraw Guilty Plea and to Vacate Sentence pursuant to Rule 32, Fed.R.Crim.P. and Rule 35, Fed.R.Crim.P. She argued that her 1976 Pennsylvania sentence was invalid because she had been denied her sixth amendment right to counsel and because the district judge had not complied with the requirements of Rule 11, Fed.R.Crim.P., when he accepted her plea.
Until the December 1978 violation of probation proceeding Priscilla Laura was represented solely by Paul Casteleiro. At that time the trial judge ordered Laura to get local counsel. In response to this order she retained James Rothstein, a member of the bar of the United States District Court for the Eastern District of Pennsylvania. Subsequently, Laura made a motion to transfer or reassign her case to another judge in the Eastern District of Pennsylvania. She asserted that the judge who was considering the motions on her Pennsylvania conviction may have been biased against her local counsel James Rothstein. She alleged that the judge had a "current personal interest in favor of" a corporation which had sued certain defendants in a state court, that the trial judge had been listed as "an expected witness" in the pre-trial memoranda, and that Rothstein represented the defendants in the state court proceeding, thus opposing the trial judge's alleged interest.
On December 28, 1978, before ruling on Laura's motion to withdraw her guilty plea, the trial judge dismissed Rothstein. We use the term dismissal purposely because when the trial judge ruled, "Therefore, I will order your withdrawal from this case, Mr. Rothstein, and I will sign an appropriate order to that effect. Thank you", he was dismissing Mr. Rothstein from the case despite counsel's and the defendant's objection. The following colloquy took place.
MR. ROTHSTEIN: I feel that my duty in this case is to Miss Laura as her local counsel. I placed in Miss Laura's hands the question of whether or not she wished that I withdraw as her local counsel. I intend to be bound by her instructions. If she wishes that I withdraw, then I will request the Court to withdraw.
My statement in paragraph 6 is stated to clarify that I placed that question to Miss Laura as to whether or not she wished me to withdraw. She stated that she did not. Therefore, I do not at this time ask the Court for leave to withdraw.
THE COURT: All right. Anything else in regard to the matter before me? From anyone?
MR. CASTELEIRO: No, your Honor.
THE COURT: All right, Mr. Rothstein. Paragraph 6 of the petition that you have filed, as I said a moment ago, states that you offered to withdraw as counsel in the Priscilla Laura matter. I will treat that offer to withdraw as a petition or as a motion to withdraw as counsel. I ...