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UNITED STATES v. GOLDBERG

June 21, 1994

UNITED STATES OF AMERICA
v.
RONALD J. GOLDBERG, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 June 21, 1994

 BACKGROUND:

 On March 16, 1994, a grand jury sitting in the Middle District of Pennsylvania returned a two-count indictment against defendant Ronald J. Goldberg charging him with forging the signature of a United States Magistrate Judge of the Southern District of Florida, in violation of 18 U.S.C. § 505 (Count One), and with knowingly making a false representation concerning a matter within the jurisdiction of a department of the United States, in violation of 18 U.S.C. § 1001 (Count Two). Trial before a jury commenced on Monday, June 13, 1994, and the jury returned verdicts of guilty on both counts. Sentencing is scheduled for September 13, 1994.

 Prior to trial, the court took the unusual step of allowing Goldberg's court-appointed counsel to withdraw without the appointment of substitute counsel. This memorandum is intended to set forth the basis for that ruling.

 DISCUSSION:

 A. STATEMENT OF FACTS/PROCEDURAL HISTORY

 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. *fn1"

 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
 
It is axiomatic that an indigent defendant has the right to appointed counsel and to be informed of that right. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1965). The right of an accused to effective assistance of counsel, however, does not extend to the appointment of counsel of choice, or to special rapport, confidence, or even a meaningful relationship with appointed counsel. Morris v. Slappy, 461 U.S. 1, 13-14, 75 L. Ed. 2d 610, 103 S. Ct. 1610 (1983); Siers v. Ryan, 773 F.2d 37, 44 (3d Cir. 1985) (citing Davis v. Stamler, 650 F.2d 477, 479-480 (3d Cir. 1981)), cert. denied, 490 U.S. 1025 (1989). There is no right to counsel who will blindly follow the defendant's instructions. United States v. Dawes, 874 F.2d 746, 748 (10th Cir.), reh'g denied, cert. denied, 493 U.S. 920, 107 L. Ed. 2d 264, 110 S. Ct. 284 (1989), coram nobis granted on other grounds, 895 F.2d 1581 (10th Cir. 1990). Moreover, a defendant may not manipulate the right to counsel, or the right to self-representation, in order to delay or disrupt a trial. Berry v. Lockhart, 873 F.2d 1168, 1171 (8th Cir. 1989); United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989); United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487 U.S. 1211, 101 L. Ed. 2d 895, 108 S. Ct. 2858 (1988); United States v. Thier, 801 F.2d 1463, 1471 (5th Cir. 1986), modified on denial of reh'g, 809 F.2d 249 (1987). In a slightly different context, the Supreme Court noted, "The right of self-representation is not a license to abuse the dignity of the courtroom." Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 581 n. 46, 95 S. Ct. 2525 (1975) (referring more specifically to a disruptive or obstructionist defendant).
 
The Third Circuit Court of Appeals has reviewed cases in which a criminal defendant's attempt to substitute counsel or proceed pro se would delay the trial. In one case, the Court held,
 
Where, on the eve of trial, a defendant seeks new counsel, or, in the alternative, opts to represent himself, the district court must engage in two lines of inquiry. First, the court must decide if the reasons for the defendant's request for substitute counsel constitute good cause and are thus sufficiently substantial to justify a continuance of the trial in order to allow new counsel to be obtained. If the district court determines that the defendant is not entitled to a continuance in order to engage new counsel, the defendant is then left with a choice between continuing with his existing counsel or proceeding to trial pro se, thus bringing into play the court's second stage of inquiry. Since the decision to proceed pro se involves a waiver of the defendant's sixth amendment right to counsel, the district court then has the responsibility of ensuring that any decision by the defendant to represent himself is intelligently and competently made. . . .
 
United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982) (citation omitted). Reasons which may constitute "good cause" for the substitution of counsel which delays trial may include a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with his attorney which leads to an apparently unjust verdict, as well as the timeliness of the motion. Welty, 674 F.2d at 188; see also United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992) (citing, inter ...

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