UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JAMES ANDREW POLLANI,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
July 13, 1998
Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
James Andrew Pollani was convicted on twelve counts of aiding
and abetting and substantive counts of transportation of stolen IBM
computer parts in interstate commerce in violation of 18 U.S.C.
§§ 2, 2314. He appeals from his conviction and sentence, raising
multiple points of error. In light of this Court’s prior precedent
in United States v. Taylor, 933 F.2d 307 (5th Cir.), cert. denied,
502 U.S. 883, 112 S. Ct. 235 (1991), we conclude that Pollani was
deprived of his right to counsel and reverse his convictions.
I.
A brief history of Pollani’s legal representation is a
necessary background to our discussion. Pollani originally hired
an attorney from Dallas, Jim Burnham, in April 1996 after a search
warrant was executed at Pollani’s home. Then in August 1996,
Pollani fired Burnham and hired a new attorney from Denton, Henry
Paine, Jr. When Pollani appeared at his arraignment on December
19, 1996, the original attorney, Burnham, accompanied him. Burnham
told the presiding magistrate judge that he had not yet been
retained and asked to make a "limited appearance." When the judge
refused, Burnham entered an unlimited appearance as Pollani’s
attorney.
On December 20 immediately after his arraignment, Pollani
filed four pro se motions. On December 23, Burnham filed a motion
to withdraw from his representation of Pollani. On December 26,
Pollani filed six more pro se motions. Burnham’s motion was
denied, and Pollani’s pro se motions were denied because they were
not filed by Burnham. Pollani then filed pro se motions seeking
authorization to proceed pro se and asking that Burnham be held in
contempt. A hearing was scheduled for January 14, 1997.
At the hearing Pollani withdrew his motion to hold Burnham in
contempt. The court discussed with Pollani the consequences of
proceeding pro se. Pollani informed the court that he had enough
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money to hire a lawyer, but instead chose to rely upon the skills
he had developed by studying law since April 1996. He confirmed
that his decision was entirely voluntary.
The discussion then turned toward Pollani’s plans for his
defense. When asked if he intended to retain counsel at a later
stage of the proceedings, Pollani replied that he had already
spoken to an attorney about that prospect. At that point the court
suggested: “[T]hat person should be retained immediately and
brought into this case.” Pollani was specifically warned that it
was unlikely that the court would continue the case once a trial
date was set. Pollani noted that February 10, 1997 had already
been set as the trial date. The court responded: “Well, that’s
right here real close. If the attorney comes in a few days before
trial and says, ‘Oh, I’m not ready[,] I want some more time,’ don’t
expect the court to grant you that time.” The court then found
that Pollani had knowingly and voluntarily waived his right to
counsel, granted Pollani’s motion to proceed pro se, and reinstated
Pollani’s pro se motions.
Pollani proceeded to conduct his own defense as a pro se
litigant. Then on February 6, 1997 -- four days before the trial
date -- Bill Snow, a lawyer from Fort Worth, filed motions on
Pollani’s behalf for a continuance and for substitution of counsel.
At this point, Pollani had filed four pro se motions to dismiss the
indictment, he had made one pro se motion for an extension of time,
and he had been ordered by the court to comply with a pretrial
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discovery order or be precluded from offering certain evidence at
trial. The district court scheduled a hearing on February 7 to
consider the motions filed by Snow.
At the hearing, Snow was permitted to appear for the limited
purpose of arguing his motions. Snow gave numerous justifications
for a continuance, most of them relating to his need to prepare and
the disadvantage that Pollani would suffer by proceeding pro se.
The prosecution opposed the motion. The court then announced its
ruling:
I’m convinced that [Pollani] made a knowing
decision that meets the Constitutional requirements
to represent himself. And now, after having been
admonished by the magistrate judge that he was not
going to be . . . allowed to come in at the last
minute and want to hire a lawyer and seek a
continuance, . . . that’s exactly what he is
attempting to do.
This Court has a lot of cases to try and we
schedule these cases and try to get them tried to
comply with the Speedy Trial Act. So I’m not
disposed or I’m not persuaded that this Motion for
Continuance should be granted, that justice
requires it. And so I’m going to deny it.
The discussion at the hearing then turned to the matter of
Pollani’s representation during the trial. The district court
suggested to Pollani that he hire Snow as stand-by counsel. When
Snow inquired whether he would be precluded from representing
Pollani, the court responded that Pollani had made a “knowing
decision” to represent himself, and an eleventh-hour substitution
of counsel would not be permitted. Pollani then interjected that
he had understood the magistrate judge to have said that he could
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bring in trial counsel at a later date. Some discussion ensued
about exactly what the magistrate judge had said,1 and then the
court confirmed its ruling that Snow would only be permitted to
participate as stand-by counsel. After Pollani tried to raise some
ancillary points, the following dialogue occurred:
THE COURT: * * *
Anything else, Mr. Pollani, that the Court can
answer for you to assist you now in being --
THE DEFENDANT [Pollani]: If the Government
doesn’t allow a continuance in this case, I would
ask that --
THE COURT: Well, it’s not the Government.
The Government --
THE DEFENDANT: Or the Court --
THE COURT: -- the Court has overruled your
continuance.
THE DEFENDANT: If the Court does not allow a
continuance in this, I would ask of the Court that
Mr. Snow still be available to represent me as
counsel and we’ll just have to do a lot of cramming
--
1
The transcript of the hearing in question reveals that the
magistrate judge said:
[I]f you change your mind, which you can, and have
an attorney represent you, don’t expect that --
someone coming in late to be justification for
postponing your trial.
And you should tell the attorney that you are
talking to that also. I don’t know what the State
Court does, but don’t -- don’t assume that that is
going to happen in Federal Court. Because you have
been given notice of your trial date and the
hazards of representing yourself.
-5-
THE COURT: Well, you may hire him to come in
here and be -- I just want to be sure everyone
understands one another. Mr. Snow will be silent
except for his consultation with you at the counsel
table. Does everyone understand that?
(Emphasis supplied.)
Pollani represented himself at trial, with Snow assisting him
as stand-by counsel. He was convicted of all but one of the counts
in his indictment, and he was sentenced to 63 months of
imprisonment on each count to be served concurrently.
Pollani timely appealed, contesting, inter alia, the district
court’s refusal to grant a continuance or allow Snow to be
substituted as counsel.
II.
First, we briefly consider the district court’s denial of a
continuance to permit Pollani and Snow to prepare for trial. We
review the denial of a defendant’s motion for continuance for abuse
of discretion resulting in serious prejudice. See, e.g., Avery v.
Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 322 (1940); United
States v. Dupre, 117 F.3d 810, 823 (5th Cir. 1997), cert. denied,
118 S. Ct. 857 (1998). Generally, a district court’s refusal to
continue a case to accommodate an attorney brought in at the last
minute is not an abuse of discretion. See, e.g., United States v.
Krout, 66 F.3d 1420, 1435 (5th Cir. 1995), cert. denied, 516 U.S.
1136, 116 S. Ct. 963 (1996); United States v. Mitchell, 777 F.2d
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248, 255 (5th Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct.
1493 (1986). However, each case must be reviewed individually, “in
light of all the circumstances.” United States v. Kimbrough, 69
F.3d 723, 731 (5th Cir. 1995), cert. denied, 517 U.S. 1157, 116 S.
Ct. 1547 (1996).
In this case, Pollani initially exercised his right to counsel
by retaining Burnham. In the midst of pretrial proceedings,
Pollani decided to represent himself. A magistrate judge tried to
persuade Pollani against proceeding pro se, but when Pollani
persisted the judge determined that he was making a knowing and
informed waiver of his right to counsel. Moreover, that judge
specifically warned Pollani that he should not delay retaining
trial counsel because a continuance would not be granted to
accommodate the needs of an attorney hired at the last minute.
Pollani failed to heed this prescient warning, and instead sought
to use his lawyer’s unpreparedness as a delaying tactic. This much
is apparent from Pollani’s flurry of pretrial motions seeking
delay, as well as the discussion at the hearing on Snow’s motions,
which focused almost exclusively on obtaining the continuance, not
on substituting counsel.
Viewed in the context of Pollani’s motive of delay and his
disregard of an explicit warning that a continuance would not be
granted if a lawyer were hired on the eve of trial, the district
court’s decision to deny the continuance was not an abuse of
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discretion. The district court has an interest in maintaining its
docket and keeping cases on schedule, and it validly protected
those interests in this case by refusing to allow Pollani to
manipulate the trial date by strategically timing the hiring of
counsel. Cf. Faretta v. California, 422 U.S. 806, 834 n.46, 95 S.
Ct. 2525, 2541 n.46 (1975) (“The right of self-representation is
not a license to abuse the dignity of the courtroom.”).
III.
We now turn to Pollani’s claim that he was deprived of his
right to counsel. Despite the fact that Snow had been retained and
was available to act as trial counsel, the district court refused
to allow Snow to represent Pollani at trial. We conclude that
Pollani was thereby deprived of a fundamental constitutional right,
and his convictions must be reversed.
The right to counsel is grounded in the Bill of Rights, which
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. CONST. amend. VI. The primacy of that right was
eloquently explained by Justice Sutherland in Powell v. Alabama,
287 U.S. 55, 53 S. Ct. 55 (1932):
The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to
be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is
incapable, generally, of determining for himself
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whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial
without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his
defense, even though he have a perfect one. He
requires the guiding hand of counsel at every step
in the proceedings against him. Without it, though
he be not guilty, he faces the danger of conviction
because he does not know how to establish his
innocence. . . . If in any case, civil or
criminal, a state or federal court were arbitrarily
to refuse to hear a party by counsel, employed by
and appearing for him, it reasonably may not be
doubted that such a refusal would be a denial of a
hearing, and, therefore, of due process in the
constitutional sense.
Powell, 287 U.S. at 68-69, 53 S. Ct. at 64.
The right to counsel can be waived and defendants have the
right to proceed pro se if they so choose. See Faretta, 422 U.S.
at 819-20, 95 S. Ct. at 2532. If the right is waived, our Court
has held that ordinarily the waiver can be withdrawn and the right
to counsel can be reasserted. See United States v. Taylor, 933 F.2d
307, 311 (5th Cir.) (citing Beto v. Martin, 396 F.2d 432 (5th Cir.
1968)), cert. denied, 502 U.S. 883, 112 S. Ct. 235 (1991); see also
Horton v. Dugger, 895 F.2d 714, 716 (11th Cir. 1990).
Of necessity, the right to reassert a previously waived right
to counsel has its boundaries. As we observed in Taylor, a pro se
litigant may not abuse his right by strategically requesting
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special appearances by counsel2 or by repeatedly altering his
position on counsel to achieve delay or obstruct the orderly
administration of justice.3
In the present case, however, there are no circumstances which
justify the district court’s refusal to allow Snow to represent
Pollani. It is true enough that Pollani was vigorously attempting
to delay the start of trial. Pollani unequivocally stated,
however, that he wished to be represented at trial by Snow, even if
the continuance were denied. The district judge did not state --
and there is no reason to think -- that Snow’s appearance would
impede the orderly administration of justice. Quite to the
contrary, there is every reason to believe that the trial would
have proceeded much more efficiently if Pollani had been
represented by counsel rather than himself.
This case is unlike other cases in which the district court
declined to allow substitution of retained counsel for appointed
counsel at the last minute, when to do so would require a
continuance and delay the start of trial. See United States v.
Silva, 611 F.2d 78, 79 (5th Cir. 1980). This case is also unlike
cases in which the district court denied a continuance that would
2
See Taylor, 933 F.2d at 311 (citing McKaskle v. Wiggins, 465
U.S. 168, 183, 104 S. Ct. 944, 953 (1984)).
3
See id. (citing McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th
Cir.), cert. denied, 474 U.S. 852, 106 S. Ct. 152 (1985) and United
States v. Magee, 741 F.2d 93, 95 (5th Cir. 1984)).
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be necessary for a defendant to be represented by particular
counsel of his choice who was retained at the last minute. See,
e.g., Neal v. Texas, 870 F.2d 312, 315 (5th Cir. 1989). Those
cases were decided on the basis of an appropriate denial of a
continuance. They are distinguishable because in those cases the
defendant was only deprived of exercising the right to counsel in
a particular way which would unjustifiably delay the trial process.
Had Pollani been seeking appointed counsel four days before the
trial was to begin, the district court could have denied the
request -- there was not enough time to appoint counsel at that
late date. Had Pollani been seeking a delay because his retained
counsel had a conflict, the district court could deny the request
-- Pollani waited too long to appoint counsel, and he would have
known the trial date when he hired his lawyer. As we have already
explained, the district court in this case was entirely justified
in denying a continuance in light of Pollani’s purpose of delay and
the explicit warning that a continuance would not be granted in the
event that Pollani waited too long to retain counsel.
The justifications for proceeding on schedule do not, however,
justify the district court’s refusal to allow Snow to participate.
This case is different because Pollani had arranged to be
represented by counsel instead of representing himself, and no
delay was required for Pollani to exercise his right to do that.
Pollani had maneuvered himself into an undesirable scenario, but he
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still had the option to be represented by counsel to the extent
that he could do so without interrupting the orderly processes of
the court. This was no doubt his most attractive option, as it is
eminently reasonable to expect that Snow could have presented a
better defense with three days of preparation than could Pollani
with three months. See Powell, 287 U.S. at 68-69, 53 S. Ct. at 64.
The Constitution protects Pollani’s right to counsel under these
circumstances, and the district court erred in disallowing Snow to
represent Pollani at trial.4
The right to counsel at trial occupies an elevated status
among fundamental constitutional rights. See, e.g., Gideon v.
Wainwright, 372 U.S. 335, 342-43, 83 S. Ct. 792, 795-96 (1963);
Powell, 287 U.S. at 68, 53 S. Ct. at 63. Pollani was deprived of
that right, and the fundamental nature of that violation means that
the convictions must reversed without regard to whether Pollani
suffered any prejudice. See, e.g., United States v. Cronic, 466
U.S. 648, 659 & n.25, 104 S. Ct. 2039, 2047 & n.25 (1984).
IV.
4
Of course, Snow’s presence at trial in the capacity of stand-
by counsel did not satisfy the requirements of the Sixth Amendment.
See Walker, 933 F.2d at 312-13. The appointment of stand-by
counsel is a tactic for assisting a pro se litigant in vindicating
his Sixth Amendment right of self-representation, see Faretta, 422
U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, not a substitute for
representation by counsel for a defendant who seeks to exercise his
right to counsel.
We have considered the remainder of Pollani’s assignments of
error, and conclude that they are without merit5 or rendered moot
by our disposition above.6 Accordingly, we REVERSE the convictions
below and REMAND the cause for further proceedings consistent with
this opinion.
5
Specifically, we find no merit in Pollani’s various
contentions that in some respect federal jurisdiction was lacking,
venue was improper, or the indictment was fatally defective.
6
In particular, we need not address whether Pollani was
competent to proceed pro se, the district court erroneously denied
Pollani’s untimely motion to suppress evidence, Pollani was
prejudiced by the jury’s knowledge that other parties to the
alleged crimes pleaded guilty, the district court erroneously
failed to submit a requested jury instruction, or the district
court erroneously applied the United States Sentencing Guidelines.