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United States v. Berrettini

January 14, 2009


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)



On October 25, 2007, a grand jury sitting in the Middle District of Pennsylvania returned an indictment against defendants Albert Leo Berretinni, Jr. and Mary Ann Berrettini setting forth a number of tax related charges. An arrest warrant was issued October 25, 2007. On October 30, 2007, the Berrettinis made their initial appearance before the magistrate judge. The Berrettinis were present without counsel and were informed that they would not be eligible for court appointed counsel. The Berrettinis were released on their own recognizance. On July 22, 2008, this court appointed counsel, D. Toni Byrd, Esquire, and Stephen Becker, Esquire, because of the complexity of the case and because the Berrettinis were having trouble finding counsel.

Before the court now is an Ex Parte Motion from D. Toni Byrd, Esquire for Leave to Withdraw as Counsel Due to Conflict of Interest (Rec. Doc. No. 113) and the United States' Motion to Disqualify Defense Counsel Stephen Becker (Rec. Doc. No. 123) and Attorney Becker's Brief in Opposition to [the] Government's Motion to Disqualify Defense Counsel (Rec. Doc. No. 124).

Now, for the following reasons, we will deny both motions.



A more robust recitation of the history of this case is set forth in our Memorandum and Order dated October 2, 2008. For the purposes of the two motions at issue in this Memorandum and Order, the salient facts are that the Berrettinis have had more than a year to obtain counsel, are financially able to afford counsel, have been granted numerous continuances for more time to find counsel, yet have not secured representation. The Berrettinis have stated several times on the record that they do not want to proceed pro se. As a result, this court appointed counsel, at the Berrettinis expense, because of the difficulties they were having in securing counsel, their desire not to proceed pro se, and the complex nature of the charges.

The court appointed Stephen Becker, Esquire to represent Albert Leo Berrettini, and D. Toni Byrd, Esquire to represent Mary Ann Berrettini, but advised the Berrettinis they could still obtain counsel of their own choosing. (Rec. Doc. No. 97.) Within a week of appointing counsel, this court received a letter from the Berrettinis detailing eight reasons why Becker and Byrd are incompetent attorneys. (Rec. Doc. No. 102.)

On September 16, 2008, D. Toni Byrd, Esquire filed an Ex Parte Motion for Leave to Withdraw as Counsel. (Rec. Doc. No. 113.) Attorney Byrd requested leave to withdraw as counsel for Mary Ann Berrettini due to a conflict of interest because the Berrettinis filed a civil action in the Court of Common Pleas of Lycoming County, docket number 08-01896, against Attorneys Becker and Byrd, and the "United States District Court Bar Associations, et-al members." On October 2, 2008, we ordered that Mary Ann Berrettini had ten days to show cause why we should not grant Byrd's Motion to Withdraw, and if she did not timely show cause, the motion to withdraw as counsel would be granted. (Rec. Doc. No. 117.) We warned Mary Ann Berrettini that because she has had almost a year to find counsel and had intentionally caused a concurrent conflict with her court appointed attorney, she had forfeited whatever right (if any) she may have had to court appointed counsel, and had forfeited the right to further continuances to obtain counsel. (Id.)

Based on our October 2, 2008 order, the government, through AUSA Wayne Samuelson, Esquire, moved to disqualify Stephen Becker, Esquire as counsel for Albert Leo Berrettini. (Rec. Doc. No. 123.) Samuelson contends that Becker has the same conflict with Albert Leo Berrettini as Byrd does with Mary Ann Berrettini, due to the outstanding lawsuit against Becker and Byrd. (Id.) Becker filed a brief in opposition to the government's motion to disqualify him. (Rec. Doc. No. 124.) Becker argued he was still able to represent Albert Leo Berrettini within the bounds of Pennsylvania Rule of Professional Conduct 1.7(a)(2).

Because of the differing views of counsel as to their ability to represent the Berrettini's, and the silence of the Berrettinis on the matter, we scheduled a hearing for October 21, 2008. (Rec. Doc. No. 127.) On October 20, 2008, we issued an order rescheduling the hearing from October 21, 2008 to October 23, 2008. (Rec. Doc. No. 137.) The Berrettinis did not appear for the hearing even though counsel indicated that both the Berrettinis had been notified. At this hearing, Attorneys Becker and Byrd orally moved for further psychological evaluations of their respective clients. The government did not oppose the oral motions. This court rescheduled a hearing for October 29, 2008 on the issues of contempt for missing the October 23 hearing, the oral psychological evaluation motions, and the motions to withdraw/disqualify counsel.

On October 29, 2008 another hearing was held. The Berrettinis were present. Albert Leo Berrettini testified that he willfully failed to appear at the October 23, 2008 hearing, despite notice of the hearing; he admitted he filed documents with the court rescinding his signature on the appearance bond, and he testified that he has no intention of appearing at the direction of the court. (Rec. Doc. No. 171). Consequently, we granted the motion of the government for detention of Albert Leo Berrettini pending trial. Mary Ann Berrettini was continued on pretrial release based on her personal recognizance. This court also ordered a ...

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