Present: SEITZ, WEIS, A. LEON HIGGINBOTHAM, JR., DOLORES K. SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, and COWEN, Circuit Judges.
SUR PETITION FOR REHEARING
Dolores K. Sloviter, Circuit Judge
The petition for rehearing filed by appellants, Matthew P. Boylan and Lowenstein, Sandler, Kohl, Fisher & Boylan, in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and a majority of the circuit judges of the circuit in regular active service not having noted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Higginbotham and Scirica would grant the petition for rehearing for the reasons set forth in their separate dissenting statements.
A. LEON HIGGINBOTHAM, JR., Circuit Judge, dissenting.
With the accompanying order filed by Judge Sloviter, this emergency appeal departs from our Court as it arrived: on the fastest of the fast tracks.*fn1 Indeed, the actions of this Court lend new meaning to the phrase "federal express." The panel, having read the briefs and heard the oral arguments of the relevant parties, filed its powerful and lengthy opinion in less than thirty hours. There can be no question that everyone involved in this high-pressure process has done impressive work under difficult conditions. Courts of Appeals are not entitled to accolades, however, merely for speed in the decision-making process. It is more important that courts be right than fast when they decide critical constitutional issues. I remain unconvinced that this Court has properly decided this truly unprecedented case. Because the complicated and deeply troubling issues raised by this appeal deserve the consideration of the full Court, I respectfully dissent from the denial of appellants' petition for rehearing in banc.
Although the panel is surely correct in its legal holding that a district court has inherent authority to appoint counsel for a criminal defendant, no federal court has ever approved the exercise of this power in circumstances that even approximate the factual context of this appeal. I note that the district court's order was not premised upon evidence that the defendant, Anthony Accetturo, is attempting to delay or to derail his trial. See United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940 (1963); Lee v. United States, 235 F.2d 219 (D.C. Cir. 1956). Everyone agrees, rather, that it is simply a tragic fortuity that terminal cancer has struck his attorney, Milton Ferrell, Sr. There is also no evidence that Accetturo desires the representation of Matthew P. Boylan, Esq., the attorney whom Judge Ackerman has drafted into service to replace Ferrell. Cf. United States v. Koblitz, 803 F.2d 1523 (11th Cir. 1986) (client, not counsel, is responsible in the first instance for finding substitute counsel). The record does explicitly indicate, by contrast, that Boylan entered an expressly limited appearance to handle discrete pretrial matters,*fn2 that he has never served as Accetturo's trial counsel, see United States v. Badalamenti, No. SS 84 Cr. 236 (PNL), 1986 WL 10718 (S.D.N.Y. Sept. 22, 1986), and that he was not deputized by the district court to defend an indigent client. See Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982); United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978 (1966). In sum, every previous decision that is cited in the panel's opinion grew out of a factual setting that differs significantly from the one that we confront.
I believe there is nothing to be gained by suggesting that the affirmance of Judge Ackerman's order compelling Boylan to take over Accetturo's representation is not something completely different from every previous appellate decision that has gone before. In particular, two of the issues raised by the rehearing petition cause me great concern. First, Boylan and his firm note that a district court's inherent power to compel legal representation presupposes some prior showing that the criminal defendant whose defense is in question is otherwise unable to obtain counsel. See Powell v. Alabama, 287 U.S. 45, 71 (1932) ("All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his [or her] own defense . . ., it is the duty of the court, whether requested or not, to assign counsel for him [or her] as a necessary requisite of due process of law . . . .") (emphasis added). While the failure of the district court to make any such finding raises a serious possibility that its order compelling Boylan to represent Accetturo was an abuse of discretion, the panel opinion does not address this issue.*fn3 Second, and related, the record evidence indicating that Accetturo, at the time the district court entered its order, had the ability to obtain representation (and, indeed, that he has succeeded in doing so, at least for the purpose of arguing his severance motion, see supra note 3), makes it even more likely that the order against Boylan and his firm was an abuse of district court discretion; this argument also was not addressed by the panel.
It is also thought-provoking, at least to me, that the panel has released half of the legal team that the district court ordered to take over Accetturo's defense. The fact that Judge Ackerman, the day after ordering Boylan to defend Accetturo, still felt in necessary to order Douglas L. Williams, Esq., to join the Accetturo team, if only as a placeholder for Milton Ferrell, Jr., indicates judicial recognition of the enormity of the task that now confronts Boylan alone. In light of the reversal of the district court's order and contempt citation as to Williams, I am inclined to think that, at a minimum, this matter should have been remanded for the district court to reconsider its order against Boylan, for it is at least conceivable that the district court, now that this Court has clarified the limits of the district court's power in these circumstances, may be reluctant to force Boylan to act as counsel for Accetturo without William's assistance.
There is nothing in this record that suggests that Boylan has attempted to be devious or less than forthright in dealing with the district court. He appears to have an unblemished record that the bar, and the district court saturated him and his firm with superlatives.*fn4 I am confident that a lesser lawyer would have accepted such flattery and, in due course, capitulated to the order compelling him to take over Accetturo's defense more than two years into this prosecution (i.e., after fourteen months of pretrial preparation and fifteen months into trial), thereby avoiding the wrath that a district judge can unleash as a matter of discretion. On the other hand, I well appreciate the pressures upon district court judges. Where a case has consumed more than two years of judge and counsel time, and where the trial of that case has consumed more than one year of jury time, it is easy for some judges to view it as a "failure" when part of that case must be served or a mistrial declared. Nevertheless, our Constitution is not so elastic that lawyers have fewer constitutional rights and diminished ethical duties to their clients in a ten-month trial than they do in a ten-day trial. It is inconceivable to me that the district court, recognizing that Accetturo has not asked Boylan to take on this representation, would nonetheless have forced the client upon Boylan if these events had taken place on the tenth day of trial. The fact that this trial is in its fifteenth month is no basis for a different outcome.*fn5
Judges rarely intend to be complimentary when they take the time to announce that attorneys are "officers of the court." See, e.g., United States v. Accetturo, No. 88-5155, slip op. at 9 (3d Cir. Mar. 9, 1988) (quoting Powell, 287 U.S. at 73); see generally Virgin Islands Housing Auth. v. David, 823 F.2d 764, 767 (3d Cir. 1987) (per curiam). Instead, that bromide is more often a signal to attorneys that the judges, perhaps reluctantly, are about to lower the proverbial boom. Yet we are all, judges and lawyers alike, officers of the court. I fear that this Court, in the situation before us, encourages an alternative view that elevates judges to the position of imperial potentates and treats lawyers as lowly serfs. In the absence of a much clearer showing in the district court, focused specifically upon Accetturo's inability to obtain legal representation, I believe that the district court abused its discretion when it held Boylan in contempt. Moreover, because this decision may have disastrous consequences for the rights of Accetturo, the interests of Boylan's preexisting clients and the vitality of the criminal defense bar in general, I am convinced that a rehearing of this matter before the full Court is warranted.
Under the penumbra of discretion, trial judges in our federal system have enourmous power to define (and to curtail) the rights of citizens. It is proper that they have such broad discretion, but appellate courts exist to preclude patent abuses of that discretion. Despite my deep respect for my colleagues, in this instance I believe that they, by sanctioning the conscription of Mr. Boylan, have failed to ...