Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
10-16-1995
United States v Goldberg
Precedential or Non-Precedential:
Docket 94-7565
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 94-7565
_______________
UNITED STATES OF AMERICA
v.
RONALD J. GOLDBERG,
Appellant
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 94-cr-00039)
_______________
Argued August 22, 1995
Before: GREENBERG, COWEN and SAROKIN, Circuit Judges
(Filed October 16, l995)
_______________
Thomas Colas Carroll (ARGUED)
Carroll & Cedrone
Suite 750 Curtis Center
Independence Square West
Philadelphia, PA 19105
COUNSEL FOR APPELLANT
Frederick E. Martin (ARGUED)
David M. Barasch
Office of United States Attorney
240 West Third Street
P. O. Box 548
Williamsport, PA 17703-0548
COUNSEL FOR APPELLEE
_______________
OPINION OF THE COURT
1
_______________
COWEN, Circuit Judge.
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.
I.
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
2
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. § 505, and for making a
materially false statement to a federal agency in violation of 18
U.S.C. § 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.
3
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,
4
Goldberg chose to remain with Lunsford.1 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.
1
According to the district court's opinion, the court did not
allow defendant to proceed pro se because he failed to give a
knowing, intelligent and voluntary waiver of his rights. See
United States v. Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994).
While this would appear to suggest that Goldberg had wanted to
proceed pro se and that the trial court was not satisfied that he
was competent to do so, this is clearly at odds with the record
(and the position taken in both briefs), indicating that
defendant affirmatively chose to keep his appointed attorney when
given the option of pro se representation.
5
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
6
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 stand-by 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.
7
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 for Goldberg, which the district court
already had granted during the June 6 telephone conference to
which Goldberg was not party.
The trial went forward with Goldberg conducting his own
defense. He was convicted on both counts of the indictment. The
district court sentenced Goldberg to two, concurrent terms of
imprisonment of twenty-four months, to run consecutively to
sentences he was already serving.
8
The district court issued an opinion explaining why it
had required Goldberg to proceed pro se. United States v.
Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994). It quoted at
length from its prior decision, United States v. Jennings, 855 F.
Supp. 1427, 1441-43 (M.D. Pa. 1994), aff'd 61 F.3d 897 (3d Cir.
1995) (table), where it had found that the defendant had waived
his right to counsel by punching his court-appointed attorney.
The district court also concluded that Goldberg had not
demonstrated good cause for his application on May 27, 1994, to
substitute counsel. Goldberg, 855 F. Supp. at 730-32. Turning
to its decision requiring Goldberg to represent himself, the
district court relied on its Jennings decision. It explained
that threatening one's attorney with physical violence like the
actual use of force is tantamount to a "waiver" of the right to
counsel. The district court further held that its decision to
relieve Lunsford was "in furtherance of the orderly and effective
administration of justice," and that the decision was proper
where Goldberg was "manipulat[ing] the right to counsel in order
to delay and disrupt his trial." Id. at 732, 733. This appeal
followed.
II.
The district court had original jurisdiction over this
criminal action pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction to review a final judgment of conviction under 28
U.S.C. § 1291.
9
Goldberg presses two principal claims of error on
appeal.2 First, he challenges the district court's May 31, 1994,
order forcing him to keep Lunsford essentially against his will.
We review that decision for abuse of discretion. McMahon v.
Fulcomer, 821 F.2d 934 (3d Cir. 1987); United States v. Welty,
674 F.2d 185 (3d Cir. 1982). Second, Goldberg claims that the
district court violated his Sixth Amendment right to the
assistance of counsel when, on the first day of testimony, it
forced him to proceed pro se. We review de novo Goldberg's Sixth
Amendment claim since it is tantamount to a claim of an
ineffective waiver of a constitutional right. United States v.
Velasquez, 885 F.2d 1076, 1080 (3d Cir. 1989), cert. denied, 494
U.S. 1017, 110 S. Ct. 1321 (1990). Our review is plenary
notwithstanding the fact that the district court found a knowing
and intelligent waiver and supported its legal conclusion with
findings of fact. Determining the requirements that must be
satisfied in order to find an effective waiver of a
constitutional right is a question of law.
III.
2
Because of our holding, we decline to reach Goldberg's
additional claim that the district court's decision to relieve
Lunsford during an ex parte proceeding deprived him of procedural
due process. We also need not reach Goldberg's claim that the
district court improperly directed a verdict on the element of
materiality in 18 U.S.C. § 1001. See United States v. Gaudin,
___ U.S. ___, 115 S. Ct. 2310 (1995). We recognize, however,
that on remand the district court will be required to submit the
issue of materiality to the jury in accordance with the dictates
of Supreme Court's intervening decision in Gaudin.
10
Goldberg first claims that the district court abused
its discretion when, on May 31, it denied his May 27 request for
a continuance so that he could retain a new attorney. We
understand Goldberg's claim as alleging a Sixth Amendment
violation arising from the fact that he was represented for a
period of time by an attorney with whom he was dissatisfied.
A.
The Sixth Amendment provides that "in all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const. amend VI.
Because it is essential to fair adjudication, see Powell v.
Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), the right to counsel
has long been considered "fundamental." Gideon v. Wainwright,
372 U.S. 335, 83 S. Ct. 792 (1963) (right to counsel so
fundamental that it is binding on the states through the doctrine
of incorporation); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.
Ct. 1019, 1022 (1938) ("This is one of the safeguards . . .
deemed necessary to insure fundamental human rights of life and
liberty."); see also Chapman v. California, 386 U.S. 18, 23 &
n.8, 87 S. Ct. 824, 827-28 & n.8 (1967) (right to counsel is so
fundamental to our adversarial system that its deprivation can
never be deemed harmless).
B.
On several prior occasions we have confronted
situations where a defendant moved on the eve of trial for a
continuance to retain substitute counsel. Because the denial of
such a motion forces a defendant to choose between representation
11
by an attorney with whom he is dissatisfied and proceeding pro
se, we set forth a two-part inquiry in Welty, 674 F.2d at 187, to
balance a defendant's Sixth Amendment right to counsel with a
district court's legitimate interest in guarding against
manipulation and delay. The first inquiry requires a district
court to determine whether good cause exists for granting the
requested continuance. The second requires the district court to
engage in an on-the-record colloquy to ensure that a defendant
who chooses to represent himself is making a knowing, intelligent
and voluntary waiver of his Sixth Amendment right to counsel. It
is Welty's first inquiry that applies here.
In considering a last-minute request for substitution
of counsel and a continuance, we require district courts to
inquire as to the reason for the request. As we noted in Welty,
the request need not be granted unless "good cause" is shown for
the defendant's dissatisfaction with his current attorney. We
defined good cause as a conflict of interest, a complete
breakdown of communication, or an irreconcilable conflict with
the attorney. Id. at 188; see also McMahon, 821 F.2d at 942.
In several decisions following Welty, we have
acknowledged that there are countervailing governmental
interests. For instance, in United States v. Kikumura, 947 F.2d
72 (3d Cir. 1991), we noted that the district court should
consider factors such as the efficient administration of criminal
justice; the accused's rights, including the opportunity to
prepare a defense; and the rights of other defendants awaiting
trial who may be prejudiced by a continuance. Id. at 78.
12
Similarly, in United States v. Romano, 849 F.2d 812 (3d Cir.
1988), we observed that a court has discretion to deny a request
for a continuance if made in bad faith, for purposes of delay or
to subvert judicial proceedings. Id. at 819. But "a rigid
insistence on expedition in the face of a justifiable request for
delay can amount to a constitutional violation." United States
v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986). These factors are
relevant to the "good cause" analysis under Welty.
If the district court denies the request to substitute
counsel and the defendant decides to proceed with unwanted
counsel, we will not find a Sixth Amendment violation unless the
district court's "good cause" determination was clearly erroneous
or the district court made no inquiry into the reason for the
defendant's request to substitute counsel. See McMahon, 821 F.2d
at 944 (reversal warranted where district court relieved
defendant's appointed attorney without inquiring into reason for
withdrawal).
C.
We reject Goldberg's claim that the district court
abused its discretion in denying his May 27, 1994, "emergency
motion" to relieve counsel and for a continuance. First, we note
that the district court properly complied with Welty by
conducting an inquiry into the reasons for Goldberg's
dissatisfaction with Lunsford. See Welty, 674 F.2d at 187; see
also McMahon, 821 F.2d at 942. After hearing from both Goldberg
and Lunsford, the district court found that Goldberg's
disagreement with Lunsford amounted to a difference over
13
strategy. Specifically, Goldberg complained that Lunsford had
not filed a host of motions that Goldberg insisted be filed.
Analyzing the motions, the district court concluded (although
after the fact) that they were meritless, if not frivolous.
Goldberg, 855 F. Supp. at 730-32. Finding that Lunsford's
refusal to file the motions did not amount to good cause, the
district court found no basis for substituting counsel and
delaying the trial.
We conclude that the findings of the district court are
not clearly erroneous. Moreover, to the extent that Goldberg
complains that the reasons supporting the district court's
decision were not issued until some three weeks later, we
nevertheless find that the record of the May 27 and May 31
proceedings amply support the district court's good cause
determination. Accordingly, because we find no abuse of
discretion in the denial of the continuance, any Sixth Amendment
claim Goldberg alleges arising from his representation by an
attorney with whom he was dissatisfied between May 31 and June 6
must fail.
IV.
Goldberg asserts, however, that even if the district
court did not abuse its discretion in denying his request for a
continuance, it nevertheless violated his Sixth Amendment right
to counsel when it forced him to proceed pro se. Goldberg
challenges the district court's conclusion that he "waived" his
14
right to counsel through dilatory conduct. While recognizing
that in certain circumstances a court may find a waiver by
conduct, in this case Goldberg claims that his conduct was not so
dilatory as to warrant the drastic remedy of forcing him to
defend himself.
The government concedes that the district court did not
engage in the sort of inquiry required by the Supreme Court's
decision in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525
(1975), and our decision in Welty. These cases require an on-
the-record colloquy evincing both a knowing, voluntary and
intelligent waiver of the right to counsel and an explanation by
the district court of the risks of self-representation. As a
suitable alternative to the colloquy required by Faretta and
Welty, the government contends that there are certain factual
scenarios in which "literally actions speak louder than words,"
Government's Br. at 40, and deliberate abusive conduct can result
in a "waiver" of the right to counsel.
A.
Before turning to the merits of the government's
contention, we note an important distinction between the ideas of
"waiver" and "forfeiture," and a hybrid of those two concepts,
"waiver by conduct." Both parties appear to have confused those
issues, as have a number of courts that have addressed the effect
of a defendant's dilatory tactics on the right to counsel.
Because the resolution of that confusion has important
implications for the Sixth Amendment, we begin with a discussion
of "waiver," "forfeiture," and "waiver by conduct"
15
1.
A waiver is an intentional and voluntary relinquishment
of a known right. Johnson, 304 U.S. at 464, 58 S. Ct. at 1023;
see generally LaFave & Israel, Criminal Procedure, § 11.3(c), at
546 n.4. (2d ed. 1992). The most commonly understood method of
"waiving" a constitutional right is by an affirmative, verbal
request. Typical of such waivers under the Sixth Amendment are
requests to proceed pro se and requests to plead guilty. The
Supreme Court has made clear that a waiver of the right to
counsel must be knowing, voluntary and intelligent. Johnson, 304
U.S. at 464-65, 58 S. Ct. at 1023. The High Court has emphasized
the importance of an affirmative, on-the-record waiver, noting
that it "indulge[s] every reasonable presumption against waiver
of fundamental constitutional rights." Michigan v. Jackson, 475
U.S. 625, 633 , 106 S. Ct. 1404, 1409 (1986) (quoting Johnson,
304 U.S. at 464, 58 S. Ct. at 1023).
Where a defendant requests permission to proceed pro
se, Faretta requires trial courts to ensure that the defendant is
aware of the risks of proceeding pro se as a constitutional
prerequisite to a valid waiver of the right to counsel. Faretta,
422 U.S. at 806, 95 S. Ct. at 2525. Moreover, our decision in
Welty mandates that trial courts conduct a Faretta-type inquiry
before permitting a defendant who asks to represent himself to do
so:
The court . . . has the responsibility of
ensuring that any choice of self-
representation is made knowing and
intelligently, with an awareness of the
dangers and disadvantages inherent in
16
defending oneself. . . . In order to ensure
that a defendant truly appreciates the
"dangers and disadvantages of self-
representation," the district court should
advise him in unequivocal terms both of the
technical problems he may encounter in acting
as his own attorney and of the risks he takes
if his defense efforts are unsuccessful. . .
. [A] defendant's waiver of counsel can be
deemed effective only where the district
court judge has made a searching inquiry
sufficient to satisfy him that the
defendant's waiver was understanding and
voluntary.
Welty, 674 F.2d at 188-89; see also United States v. Salemo, Nos.
94-1361 & 94-1438, 1995 WL 440390 (3d Cir. July 26, 1995)
(failure to warn of risks of self-representation render waiver of
right to counsel invalid); Government of Virgin Islands v. James,
934 F.2d 468 (3d Cir. 1991) (extensive colloquy between district
court and defendant about perils of proceeding pro se sufficient
to indicate that waiver of Sixth Amendment rights was knowing,
voluntary and intelligent); McMahon, 821 F.2d at 934 (failure to
provide warnings in accordance with Faretta and Welty requires
reversal).
2.
At the other end of the spectrum is the concept of
"forfeiture." Unlike waiver, which requires a knowing and
intentional relinquishment of a known right, forfeiture results
in the loss of a right regardless of the defendant's knowledge
thereof and irrespect__
17
United States v. Goldberg
Combined Opinion