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U.S. v. Goldberg

October 16, 1995




On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 94-cr-00039)

Before: GREENBERG, COWEN and SAROKIN, Circuit Judges

COWEN, Circuit Judge.

Argued August 22, 1995

Filed October 16, l995)


We once again confront the tension caused when a criminal defendant appears to be manipulating his right to counsel in order to delay his trial. After relieving Ronald Goldberg's court-appointed attorney, the district court refused his request for a continuance in order to retain private counsel. This forced Goldberg to stand trial without the assistance of counsel. The district court concluded that by his manipulative conduct, Goldberg had "waived" or, more properly, "forfeited" his Sixth Amendment right to counsel.

The question before us is whether the district court deprived the defendant of his Sixth Amendment right to counsel. We conclude that, although there are circumstances in which the dilatory tactics of a defendant can amount to a forfeiture of his right to counsel, the record here is insufficient to support such a forfeiture. We further hold that the district court's failure to warn the defendant of the risks of self-representation precludes us from finding a valid "waiver by conduct." We therefore will reverse the judgment of conviction and remand the case to the district court for a new trial.


Goldberg was serving a sentence at Lewisburg Penitentiary for a previous conviction. While serving that sentence he forged the signature of a magistrate-judge on a document that purported to allow Goldberg unrestricted access to the prison's law library. Prison officials investigated the authenticity of the document and discovered the forgery. Goldberg was indicted for forging the signature of a judicial officer in violation of 18 U.S.C. Section(s) 505, and for making a materially false statement to a federal agency in violation of 18 U.S.C. Section(s) 1001.

Exactly how Goldberg came to be represented by court-appointed counsel is somewhat unclear. At some point Goldberg was provided with a questionnaire concerning his financial ability to retain counsel. It appears that the questionnaire was never completed. Prior to his arraignment on the indictment, however, Bradley Lunsford was assigned to represent Goldberg through the Federal Defender's Office pursuant to the practice in the Middle District of Pennsylvania of providing prisoners with a court-appointed attorney. The district court informed the parties that jury selection would commence on May 31, 1994.

Between these dates, Lunsford filed several motions on Goldberg's behalf. He also attempted to visit Goldberg in prison. On that occasion Goldberg refused to see Lunsford after making him wait over two hours. As a result they were unable to confer in person, although Lunsford and Goldberg thereafter did communicate by mail and telephone on several occasions.

On May 27, 1994, Goldberg filed on his own behalf a motion seeking a continuance in order to obtain new counsel or, in the alternative, to proceed "In Propia Persona" (sic). He also gave notice of his intention to pursue an insanity defense. In support of his request to remove Lunsford, Goldberg alleged that Lunsford: (1) disagreed with him on how to conduct the defense; (2) was not well versed in federal criminal procedure; (3) showed no interest in his case; and (4) had not met with him to discuss the case and failed to file motions that Goldberg demanded be filed.

The district court on that day entered an order denying the request to pursue an insanity defense as untimely under Fed. R. Crim. P. 12.2. The court deferred consideration of Goldberg's request for a continuance, but noted that Goldberg's motion papers had failed to demonstrate good cause warranting a continuance. The district court nevertheless advised Goldberg that he would be given an opportunity to state on the record his reasons for believing that Lunsford's performance was inadequate. If persuaded, the district court advised that it would relieve Lunsford, appoint new counsel, and reconsider whether to grant a continuance. Alternatively, if the district court was not satisfied that Lunsford should be relieved, it would deny Goldberg's motion and require him to choose between going to trial with Lunsford or proceeding pro se.

Immediately prior to the commencement of jury selection on May 31, 1994, the district court conducted an inquiry into Goldberg's allegations concerning Lunsford. After hearing from both Goldberg and Lunsford, it concluded that Lunsford was providing adequate representation. Given the choice of continuing to be represented by Lunsford or proceeding pro se, Goldberg chose to remain with Lunsford. *fn1 At this point, however, Goldberg revealed for the first time that he had the financial resources to retain private counsel, and that several attorneys had conferred with him at Lewisburg. The district court advised Goldberg that if he could retain an attorney by the commencement of trial, it would reconsider the motion seeking a continuance.

Lunsford requested permission to withdraw, asserting that he did not have a proper attorney-client relationship with Goldberg. As an example, he stated that Goldberg was "threatening me and demanding that I do certain things that I don't feel are prudent." App. at 34. The district court denied Lunsford's motion to withdraw and conducted jury selection with Lunsford representing Goldberg. Following the selection of the jury, the parties and the jury were advised that the taking of testimony would commence between June 6 and June 13.

On June 2, 1994, the district court set June 13, 1994, as the first day for taking testimony. The government also filed with the court a "Status Report" indicating that a simple check into Goldberg's visitation record at Lewisburg revealed several visits from three different attorneys over the past two months.

Four days later, Lunsford initiated a telephone conference between himself, the trial court and the government at which time he renewed his request to withdraw. Lunsford related that Goldberg had asked him to file a motion to withdraw as counsel. When Lunsford refused, noting the ruling of the district court on May 31, 1994, Goldberg allegedly threatened Lunsford's life. According to Lunsford, Goldberg stated that he had ample financial means to carry out his death threat as well as to hire a new attorney.

Without ordering that Goldberg be produced to answer Lunsford's allegations or relate his position in the matter, the district court granted Lunsford's motion to withdraw. The district court noted that June 13 was the first day for taking testimony and informed Goldberg that he would not receive another appointed attorney since Goldberg had the financial means to retain counsel. The district court warned Goldberg that "unless he retains an attorney who enters an appearance . . . in this case, the trial will proceed with the defendant representing himself." Supp. App. at 63. This order was delivered to Goldberg the day it was issued.

Goldberg appeared on June 13 for the first day of testimony. One of the attorneys who visited him at Lewisburg also was present in court. Noting that a private attorney had not entered an appearance, the district court asked Goldberg if he intended to represent himself. Goldberg presented the court with a letter from an attorney indicating that the attorney would undertake to represent Goldberg, but only if a retainer was paid within forty-five days.

Referring to the letter from the attorney, Goldberg requested that the district court grant a continuance so that he could liquidate various assets, which would enable him to pay the retainer. The government opposed the application. Goldberg continued to assert his Sixth Amendment right to counsel. He related that he had done everything in his power to retain counsel in the short time available, and was incapable of trying a criminal case.

The district court denied Goldberg's request for a continuance. It observed that Goldberg had the financial ability to hire an attorney since the commencement of the case in April and failed to do so. The district court commented: "The Court finds that you have manipulated the judicial system for your own benefit, and the Court will not grant the continuance. The Court finds that by your conduct you have waived the right to proceed with counsel at this trial, and the Court simply will not tolerate that behavior." App. at 91.

The district court advised Goldberg about how to comport himself before the jury, and the manner in which it would answer any questions concerning the correct procedure to be followed. The government suggested that the attorney who had accompanied Goldberg to court be designated as stand-by counsel. Goldberg responded that standby counsel was not sufficient to satisfy his Sixth Amendment rights and that "I'm not making a valid waiver of my Sixth Amendment, Your Honor." App. at 94. The district court responded, "No, and I'm not engaging in a colloquy with you with respect to that either. I'm determining that your actions have waived counsel, and that that was a knowing and voluntarily intentional act." Id. Goldberg again objected. He noted that the proposed stand-by counsel was not admitted to practice before the district court. Goldberg reiterated that, even if a defendant has waived his right to counsel, "it does not prohibit a defendant in a criminal case from reasserting his Sixth Amendment right, and in no way at all am I waiving my Sixth Amendment right to counsel." App. at 95.

Goldberg requested that the district court order Lunsford to return the case file to him, as it contained documents relevant to his defense. Following the morning session, Lunsford appeared in court and turned the file over to Goldberg. At this point, the district court sua sponte swore in Lunsford as a witness (out of the presence of the jury). For the first time it elicited sworn testimony from Lunsford concerning the events that had given rise to his earlier application to withdraw as counsel ...

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