On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 94-cr-00365-1, 94-cr-00365-3, 94-cr-00365-4, 94-cr-00365-5, 94-cr-00365-6, 94-cr-00365-7, 94-cr-00365-8)
Before: SLOVITER, Chief Judge, COWEN and ROTH, Circuit Judges
Appellant John Cocivera and six corporations that he established were convicted by a jury of various crimes arising out of a scheme to defraud Medicare. The principal issues before us concern Cocivera's waiver of his right to counsel and his representation of the defendant corporations.
Cocivera was the chief executive officer and fifty percent owner of six Pennsylvania corporations that were created in August 1989 to provide medical equipment to Medicare beneficiaries through a national telemarketing operation. Cocivera and the corporations were indicted in September 1994 in the United States District Court for the Eastern District of Pennsylvania on one hundred forty-four (144) counts of mail fraud in violation of 18 U.S.C. Section(s) 1341, twenty-eight (28) counts of filing false Medicare claims in violation of 18 U.S.C. Section(s) 287, ten (10) counts of money laundering in violation of 18 U.S.C. Section(s) 1956(a)(1)(A)(i), twenty-two (22) counts of engaging in money transactions in violation of 18 U.S.C. Section(s) 1957(a), and one count of structuring transactions to evade reporting requirements in violation of 31 U.S.C. Section(s) 5324(a)(3). *fn1 The government alleged, inter alia, that the defendants engaged in telemarketing to senior citizens using false and misleading statements, sent preprinted certificates of medical necessity (CMNs) containing false and misleading statements to physicians' offices, altered certificates of medical necessity from physicians, made false statements to senior citizens at the time of delivery in order to secure assignment of Medicare payments, submitted false claims to Pennsylvania Blue Shield, and made false and misleading statements to physicians, Medicare and administrative law judges to forestall complaints and make apprehension less likely.
Cocivera and U.S. Health Products, Inc., the umbrella company, were found guilty of all 205 counts by a jury in May 1995. Each of the other corporations was convicted, although on a lesser number of counts than charged. Cocivera was sentenced to a 78 month prison term, a three year term of supervised release, and a special assessment of $10,250. The corporate defendants received assessments totaling $77,000. The defendants filed timely notices of appeal; we have jurisdiction under 28 U.S.C. Section(s) 1291.
The attorney originally retained by the defendants withdrew more than five months before the trial began and the court appointed Thomas Bergstrom, a well known criminal lawyer, to represent all the defendants. At the start of the second day of trial, and after four witnesses had testified, Cocivera asked to address the court without the jury. The court gave him that opportunity. Cocivera began by stating that he found Bergstrom to be "a very intelligent and very capable attorney," and that "I'm thankful I have him as an attorney." App. at 98. Cocivera then proceeded to make various complaints about Bergstrom's performance. Id. at 99-103. Although Bergstrom had spent nine or ten hours with Cocivera in the course of his preparation, Cocivera complained that the time Bergstrom spent with him was inadequate, complained that Bergstrom declined to interview certain persons or to file certain motions that Cocivera wished to file, such as for a continuance, and complained about various decisions made by Bergstrom which were, in essence, elements of Bergstrom's trial strategy, such as his cross-examination.
Cocivera then asked the court three questions: first, if he could file motions, second, if he could have a continuance or, third, if he would be allowed to act as co-counsel so that he "may ask some questions of the witnesses that I feel are very pertinent . . . . I just want to get to the facts as I think they should be brought out." Id. at 104.
The district court heard from Bergstrom who explained the trial preparation that he had done and his reason for declining to file the motions referred to by Cocivera. In addition, although Bergstrom had not examined all the many files to which Cocivera had referred, he had spent some three hours looking through those documents, he had also reviewed the 300 government exhibits, reviewed all the Jencks material pertaining to the 30 government witnesses, and planned to review the remaining documents with the services of an accountant. Id. at 105-106. Bergstrom explained that he believed "that this case requires simplification and not more complexity." Id. at 106. He concluded that in spite of the difference in approach he and Cocivera had, "I'm prepared to continue." Id. The court then heard from the government lawyer who argued that it would be inappropriate for Cocivera to serve as co-counsel and who opposed all of Cocivera's requests.
The district court then ruled that Cocivera could "file whatever motions he wishes and I will take a look at them." Id. at 113. With respect to Cocivera's complaints about Bergstrom, the district court found that Bergstrom had proceeded conscientiously and expressed confidence that he would do so throughout the trial. The court concluded: "Mr. Bergstrom is at the very top of his profession . . . . If [he] isn't doing an adequate job, we simply don't have the talent to handle this case in the Eastern District of Pennsylvania." Id. at 114. The court, noting the difficulties of hybrid representation, declined to allow Cocivera to serve as co-counsel, stating "although I find that there ...