United States v. Goldberg

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Precedential or Non-Precedential: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