Penitentiary at Lewisburg, Pennsylvania, on the above-stated charges. At his arraignment on April 11, 1994, Goldberg entered a plea of "not guilty," jury selection was scheduled for May 31, 1994, and the issue of bail was found to be moot due to Goldberg's incarceration. Goldberg was represented at arraignment by counsel appointed by the court, as is the practice when inmates are indicted. However, no financial statement was ever completed by Goldberg.
On April 26, 1994, counsel filed a motion to inspect grand jury testimony, and at the same time filed a motion seeking ten additional days to substantiate the motion and an additional ten days for filing of a supporting brief. The latter motion, which was granted April 29, 1994, indicated that counsel traveled to USP-Lewisburg on April 22, 1994, for the purpose of consulting with Goldberg regarding motions, but that Goldberg refused to attend counsel's visit. Counsel was left waiting for two hours.
On May 27, 1994, Goldberg filed an "Emergency Motion for Removal of Counsel and for Continuance of Trial or in the Alternative to Proceed In Propia Persona. " This motion set forth as grounds for the substitution of counsel: (1) counsel and Goldberg disagreed as to how to conduct a defense; (2) counsel was not well-versed in federal criminal procedure; (3) counsel was not interested in Goldberg's case; and (4) counsel had not filed motions desired by Goldberg nor met with Goldberg to discuss strategy. In the alternative, Goldberg asserted his right to proceed pro se pursuant to Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). The motion also emphasized Goldberg's desire to delay trial to familiarize new counsel with the case and/or for a psychiatric examination of Goldberg related to a duress defense.
On May 31, 1994, prior to jury selection, the court conducted an ex parte hearing on Goldberg's motion to substitute counsel, the purpose of which was to clarify Goldberg's reasons for doing so and the factual basis therefor, and to allow counsel to respond to Goldberg's allegations.
Following this colloquy, which will be discussed at length below, the court denied Goldberg's motion. Also, Goldberg did not indicate a knowing, intelligent or voluntary waiver of counsel, and so was not permitted to proceed pro se pursuant to Faretta. Succinctly stated, there was no substantial basis to allow, on the eve of jury selection, the substitution of counsel and concomitant delay in trial.
At the same time, the court learned that the appointment of counsel probably was unnecessary, as Goldberg indicated that he possessed sufficient assets to pay a privately retained attorney. He had not done so between arraignment and jury selection, but indicated that he planned to do so before trial. The court did not continue trial, but indicated that a motion to continue would be entertained once new counsel entered an appearance.
Jury selection took place May 31, 1994, as scheduled, with full participation by defendant's court appointed counsel. Presentation of the case to the jury was then scheduled for June 13, 1994.
On Monday, June 6, 1994, defense counsel initiated a conference call involving himself, the court, and government counsel. Defense counsel indicated that, on Thursday, June 2, he had received a telephone call from Goldberg at USP-Lewisburg for the purpose of passing the file on to new counsel. No new appearance of counsel had been entered, and counsel indicated to Goldberg that, until an entry had been made, the file would not be relinquished. Goldberg then demanded that counsel withdraw and gave reasons to be presented to the court, including an allegation that counsel was not competent. Counsel indicated to Goldberg that the court already had denied such a motion, and that there was no basis for reconsideration. Goldberg then threatened the life of counsel, stating that he would use the money otherwise to be spent on new counsel to have someone outside USP-Lewisburg "get" counsel. When counsel asked what Goldberg meant, Goldberg responded that counsel knew what was meant and that counsel did not know with whom he was dealing.
At that point in the conference call, counsel made an oral motion to withdraw which the government did not oppose but did indicate a concern that Goldberg was manipulating the situation. The court agreed, and the motion to withdraw was granted without the appointment of new counsel. The court specifically found that Goldberg had manipulated the right to counsel. Over Goldberg's objection, repeated to exhaustion, Goldberg represented himself at trial. Goldberg sought a continuance to obtain private counsel which was denied by the court. At one point, Goldberg indicated that he had found counsel, but that he needed time to liquidate assets to pay a retainer fee; the motion for continuance was denied.
After trial, the jury found Goldberg guilty on both counts of the indictment.
B. THE RIGHT TO COUNSEL
In United States v. Eddie Jennings, 855 F. Supp. 1427 (M.D. Pa. 1994), we found that Jennings had waived the right to appointed counsel by his conduct in punching his court-appointed attorney in open court without provocation or justification. Our discussion in Jennings of the right to counsel on the part of criminal defendants is sufficient for present purposes, and we repeat it here:
A. The Right to Appointed Counsel