United States v. George P. Salemo

61 F.3d 214, 1995 U.S. App. LEXIS 19672, 1995 WL 440390
CourtCourt of Appeals for the Third Circuit
DecidedJuly 26, 1995
Docket94-1361 & 94-1438
StatusPublished
Cited by85 cases

This text of 61 F.3d 214 (United States v. George P. Salemo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. George P. Salemo, 61 F.3d 214, 1995 U.S. App. LEXIS 19672, 1995 WL 440390 (3d Cir. 1995).

Opinions

OPINION OF THE COURT

McKEE, Circuit Judge.

George Salerno brings this appeal after being sentenced for a crime commonly known as “cheek kiting.”1 Although he challenges his sentence on numerous grounds, we need only address his claim that he was denied his Sixth Amendment right to counsel at sentencing. Because we find this assertion to have merit we will remand for resen-tencing.

I.

On September 24, 1992, a federal grand jury returned a two-count indictment charging Salerno with bank fraud in violation of 18 U.S.C. § 1344. Prior to trial, the public defender who had been appointed to represent Salerno was allowed to withdraw, and the district court then appointed an attorney of Salerno’s own choosing to represent Salerno at trial. After a two day trial, the jury convicted Salerno of both counts.

Sentencing was originally set for January 10, 1994, however, on three separate occasions, Salerno moved pro se for a continuance of the sentencing date and the district court granted each request. On March 1, 1994, Salerno wrote to his trial attorney and asked him to withdraw as counsel. Salerno also wrote to the district court and requested new counsel and yet another postponement of the sentencing. He stated that given his request for a change of counsel, .he needed the continuance in order to have an opportunity to meet with an attorney and adequately prepare for sentencing. The sentencing hearing finally proceeded on April 4, 1994. At the [217]*217beginning of that hearing the following discussion occurred between the district judge, Salerno’s appointed counsel and Salerno:

THE COURT: We’re ready for the sentence of Mr. Salerno, but I understand that there are some preliminary matters which we need to deal with.
The first is Mr. Salerno may not wish to have you, [trial counsel]. I don’t know.
[TRIAL COUNSEL]: I’m perfectly aware of that, Your Honor. We have talked at length about it.
THE COURT: Do you wish to remain with him at counsel table or does he wish for you to step back and remain available as a standby counsel?
[TRIAL COUNSEL]: I will tell the Court what I told Mr. Salerno on several occasions. I will not withdraw voluntarily. If he does not want me seated here, I shall step back....
THE COURT: Mr. Salerno, do you wish to state anything in regard to [trial counsel]?
THE DEFENDANT: Yes, Your Honor. As far as the sentencing today, again, I’m going to reiterate my request that it be continued.
THE COURT: Well, first we have to determine — we’re not there yet. We’re going to deal with that.
THE DEFENDANT: All right. No, I had, as of March 1st, I wrote [my attorney] the letter that I’ve submitted to the Court, which I don’t know if you received it in the mail on Friday—
THE COURT: Yes.
THE DEFENDANT: —and I had asked him to withdraw. He came and saw me at Fairton and we spent about ten, fifteen minutes together and I was under the understanding that he was going to withdraw. I guess we had a misunderstanding that he was going to wait and see what the Court said....
We have not discussed the pre-sentence at all, I mean not in the slightest, and we haven’t discussed the sentencing problems at all. Therefore, if we went ahead with the sentencing, I would have to represent myself. [Trial counsel] is not prepared to do that based — and I filed an awful lot of material as the Court is aware on this — on any of the issues or any of the problems with the pre-sentence report_
I would prefer other representation.
THE COURT: Well, that’s why we continued the case the last time. This is not the first time you’ve been brought down for sentencing.
THE DEFENDANT: No, I understand that, Your Honor, very definitely.
THE COURT: And we thought that the reasons to continue the last sentencing were weak, but ... we thought we’d give you the benefit of the doubt and extend— continue the sentencing till today, but we’re not willing to continue it any further. So we’ll proceed.
THE DEFENDANT: Then I would have to represent myself, Your Honor....
I don’t know how he could represent me, not knowing any of the issues. You know, no slight to [trial counsel], but he doesn’t—
THE COURT: Well, we’ve looked at what you’ve submitted—
THE DEFENDANT: —but he doesn’t have a crystal ball, either.
THE COURT: —and there doesn’t seem to be much in issue.
Why don’t we go through what you want to raise and see if there’s anything in it that has any merit. On the surface, it doesn’t seem to have any merit; but maybe I’m missing something and we’ll give you an opportunity to explain.
Let’s take your points one by one and we’ll deal with them in that way.
What’s your first point?
THE DEFENDANT: May I sit, Your Honor?
THE COURT: Sure.
Why don’t you stay there in ease — he doesn’t bother you sitting there, right?
[TRIAL COUNSEL]: Better not. I’ve known him for too long.
THE DEFENDANT: No, no, not at ah. [My attorney] and I have known each other — we’re friends. We’ve known each other for 20 years.
THE COURT: Okay.
[218]*218THE DEFENDANT: That’s not a personal slight at all.
THE COURT: Okay. Okay.

App. at 525-28 (Transcript of Sentencing Hearing, April 4, 1994).

The district court then listened as Salerno argued the inaccuracy of the pre-sentence report and the application of case law to his situation. After rejecting Salerno’s arguments, the district court imposed a sentence of ninety-six months imprisonment, followed by five years supervised release, restitution of $15,000, no fine, and a $100 special assessment.

II.

When Salerno filed the notice of appeal from his sentence he requested appointment of counsel, and the district court appointed appellate counsel who filed a brief on Salerno’s behalf. Salerno has also filed a pro se brief in this appeal.2

Salerno raises an issue in his pro se brief that was not raised in the brief submitted by his attorney on appeal. Salerno claims that his purported waiver of counsel at the sentencing hearing was not knowing, intelligent and voluntary, and that the sentencing court therefore erred in allowing him to represent himself at sentencing. The government concedes that the trial court did not engage in an inquiry with Salerno to ascertain the extent of his understanding of the ramifications of dispensing with counsel and proceeding pro se at the sentencing hearing.

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Cite This Page — Counsel Stack

Bluebook (online)
61 F.3d 214, 1995 U.S. App. LEXIS 19672, 1995 WL 440390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-george-p-salemo-ca3-1995.