United States v. Priscilla Dominguez Laura

607 F.2d 52

• Court: Court of Appeals for the Third Circuit
• Decided: October 15, 1979
• Docket: 79-1102
• Status: Published

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

I.

The right to the assistance of counsel is a critical element of our American system of jurisprudence. A defendant’s decision to exercise that right and to place his liberty and possibly his life in the hands of an attorney of his choice may not be lightly tampered with. In this case, the district judge dismissed one of the defendant’s attorneys without making any findings to justify that dismissal. Because we believe that this dismissal without adequate findings may have violated the defendant’s right to counsel, we will reverse the decision of the district court and will remand for further proceedings consistent with this opinion.

II.

In February 1976 Priscilla Dominguez Laura, the appellant, was indicted in the Eastern District of Pennsylvania under two counts of a five-count indictment which charged eleven people with conspiracy to import cocaine, Count 1, importation of cocaine, Count II, conspiracy to distribute cocaine, Count III, and possession with intent to distribute cocaine, Counts IY and V.¹ Priscilla Laura was charged under Counts I and II, and her husband, Anthony Laura, was charged under all five counts. In October 1976 she pled guilty to Counts I and II and received a five-year probationary sentence under the Youth Corrections Act.² Her husband also pled guilty; he received a sentence of two years’ imprisonment and three years’ special parole. Throughout the proceedings Priscilla and Anthony Laura were represented by the same counsel.

In August 1978 Priscilla Laura was convicted in a Florida federal court for distribution and possession of cocaine and received a sentence of two years’ imprisonment and three years’ special parole.

In September 1978 Laura’s supervising probation officer petitioned in the Eastern District of Pennsylvania for the revocation of Laura’s probation. Following an evidentiary hearing in October 1978, the United States Magistrate found probable cause for violation of probation. In November 1978 Laura filed a Motion to Withdraw Guilty Plea and to Vacate Sentence pursuant to Rule 82, Fed.R.Crim.P. and Rule 35, Fed.R. Crim.P. She argued that her 1976 Pennsylvania sentence was invalid because she had been denied her sixth amendment right to counsel and because the district judge had not complied with the requirements of Rule 11, Fed.R.Crim.P., when he accepted her plea.

Until the December 1978 violation of probation proceeding Priscilla Laura was represented solely by Paul Casteleiro. At that time the trial judge ordered Laura to get local counsel. In response to this order she retained James Rothstein, a member of the bar of the United States District Court for the Eastern District of Pennsylvania. Subsequently, Laura made a motion to transfer or reassign her case to another judge in the Eastern District of Pennsylvania. She asserted that the judge who was considering the motions on her Pennsylvania conviction may have been biased against her local counsel James Rothstein. She alleged that the judge had a “current personal interest in favor of” a corporation which had sued certain defendants in a state court, that the trial judge had been listed as “an expected witness” in the pre-trial memoranda, and that Rothstein represented the defendants in the state court proceeding, thus opposing the trial judge’s alleged interest.

On December 28, 1978, before ruling on Laura’s motion to withdraw her guilty plea, the trial judge dismissed Rothstein. We use the term dismissal purposely because when the trial judge ruled, “Therefore, I will order your withdrawal from this case, Mr. Rothstein, and I will sign an appropriate order to that effect. Thank you”, he was dismissing Mr. Rothstein from the case despite counsel’s and the defendant’s objection. The following colloquy took place.

MR. ROTHSTEIN: I feel that my duty in this case is to Miss Laura as her local counsel. I placed in Miss Laura’s hands the question of whether or not she wished that I withdraw as her local counsel. I intend to be bound by her instructions. If she wishes that I withdraw, then I will request the Court to withdraw.

My statement in paragraph 6 is stated to clarify that I placed that question to Miss Laura as to whether or not she wished me to withdraw. She stated that she did not. Therefore, I do not at this time ask the Court for leave to withdraw.

THE COURT: All right. Anything else in regard to the matter before me? From anyone?

MR. CASTELEIRO: No, your Honor.

MR. ROTHSTEIN: No.

THE COURT: All right, Mr. Rothstein. Paragraph 6 of the petition that you have filed, as I said a moment ago, states that you offered to withdraw as counsel in the Priscilla Laura matter. I will treat that offer to withdraw as a petition or as a motion to withdraw as counsel. I will grant the motion and permit you to withdraw as counsel in this case.

I find that Paul Casteleiro, who is a member of the New York Bar is the principal counsel in this case, the Priscilla Laura matter; that he has prepared all of the papers, all of the motions, other than the motion to transfer which is before me today; that he had done, up until very recently, all of the legal work in respect to the Priscilla Laura matter; that you have been local counsel, you continue to be local counsel; that your familiarity with this case is very recent; that at the time you were retained, Priscilla Laura had never heard of you and you never heard of her and the two of you had not met.

It is also the law that a person is not entitled to a particular counsel. I shall not require in this case that there be local counsel. We can communicate with Mr. Casteleiro effectively. He has been a perfect gentleman throughout these proceedings and I am confident there will be no problem requiring the appearance of local counsel.

Therefore, I will order your withdrawal from this case, Mr. Rothstein, and I will sign an appropriate order to that effect. Thank you.

Appellant’s App., at 121 — 23. (emphasis added)

Thus he dismissed Rothstein without making any findings about the dismissal, and reasoned that Laura was left with adequate representation.

After dismissing Rothstein, the judge proceeded to consider Laura’s motions to withdraw her guilty plea and vacate her sentence. Both motions were denied. The trial judge then found Laura in violation of her probation. He revoked her probation and sentenced her to two years’ imprisonment and three years’ special parole. Casteleiro represented Laura throughout this portion of the hearings.

Laura has appealed to this court. She argues that her guilty plea on the 1976 federal indictment should be withdrawn because she was denied the right to effective assistance of counsel by the joint representation of her and her husband by Robert Kalina (in 1976 Casteleiro did not participate in the defense of Priscilla Laura or her husband) and because the trial judge did not comply with Rule 11, Fed.R.Crim.P. She further asserts that her motion to transfer should have been granted because of the possibility of judicial bias. We find that on the present record the dismissal of James Rothstein may have violated Laura’s sixth amendment right to counsel and that the dismissal may have tainted the proceedings that followed. We will therefore remand to the district court without reaching Laura’s claims as to the validity of her original 1976 conviction.

III.

The sixth amendment to the Constitution guarantees to any criminal defendant the right “to have the Assistance of Counsel for his defense.” ³ The importance of that right has been recognized by a ceaseless stream of Supreme Court decisions that have mandated that a vast array of defendants who would otherwise “fac[e] the danger of conviction because [they do] not know how to establish [their] innocence,” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), have the aid of a trained attorney when confronted by “[governments, both state and federal, [who] quite properly spend vast sums of money to establish machinery to try defendants accused of crime.” Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). See, e. g., Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The reasoning underlying these decisions makes it clear that the sixth amendment generally protects a defendant’s decision to select a particular attorney to aid him in his efforts to cope with what would otherwise be an incomprehensible and overpowering governmental authority. While the right to select a particular person as counsel is not an absolute right, the arbitrary dismissal of a defendant’s attorney of choice violates a defendant’s right to counsel.

Embodied within the sixth amendment is the conviction that a defendant has the right to decide, within limits, the type of defense he wishes to mount. See Faretta v. California, supra; Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). It is from this principle and belief that the defendant’s right to select a particular individual to serve as his attorney is derived. For the most important decision a defendant makes in shaping his defense is his selection of an attorney. The selected attorney is the mechanism through which the defendant will learn of the options which are available to him. It is from his attorney that he will learn of the particulars of the indictment brought against him, of the infirmities of the government’s case and of the range of alternative approaches to oppose or even cooperate with the government’s efforts.

As the Supreme Court has noted:

Even the intelligent and educated layman has small and sometimes no skill in the science of law ... 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. Powell v. Alabama, 287 U.S. at 69, 53 S.Ct. at 64.

Not only does the selection of an attorney demark the sphere of defense strategies a defendant will have presented to him; with his selection he may also give his attorney the authority to make decisions for him. For once a lawyer has been selected “law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas.” Faretta v. California, 422 U.S. at 820, 95 S.Ct. at 2534.⁴

We would reject reality if we were to suggest that lawyers are a homogeneous group. Attorneys are not fungible, as are eggs, apples and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues. These differences, all within the range of effective and competent advocacy, may be important in the development of a defense. It is generally the defendant’s right to make a choice from the available counsel in the development of his defense. Given this reality, a defendant’s decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment.

Further, the defendant’s decision to select a particular counsel will affect other constitutional rights. For example, a defendant, on the advice of counsel, may decide not to object at trial to the introduction of evidence seized in violation of his fourth amendment rights. This decision may preclude any collateral review of the fourth amendment violation. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). While “only a deliberate or considered bypassing or waiver of the opportunity to raise the issue” will preclude collateral attack, an attorney’s advice will be weighed in evaluating whether the decision was made deliberately. See United States ex rel. LaMolinure v. Duggan, 415 F.2d 730, 731 (3d Cir. 1969).

We also note that the ability of a defendant to select his own counsel permits him to choose an individual in whom he has confidence. With this choice, the intimacy and confidentiality which are important to an effective attorney-client relationship can be nurtured.

Thus, if a defendant chooses a particular counsel, the sixth amendment prevents a court from taking any “arbitrary action prohibiting the effective use of [a particular] counsel.” United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970).

In reaching this conclusion we are not suggesting that a court lacks any authority to dismiss a defendant’s counsel, or to reject a defendant’s decision to select a particular individual for his defense. This court has already recognized that “there is no absolute right to a particular counsel,” and the trial judge has some discretion to effect the defendant’s selection of counsel. Id. For example, unless a defendant can show good cause, e. g., a breakdown in communication, the court may deny an indigent defendant’s wish to obtain different court-appointed counsel. See United States v. Young, 482 F.2d 993 (5th Cir. 1973). Also, in certain circumstances, a court may deny a defendant’s attempt to obtain new counsel immediately before trial. See United States ex rel. Carey v. Rundle, supra. And a court, under its supervisory authority, if it deems it necessary, may dismiss counsel because the defendant would otherwise be inadequately represented. United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978).

Given the precepts discussed above, it would certainly have been error if in this case the trial judge had ordered dismissal of the defendant’s primary and lead counsel, Paul Casteleiro, in order to eliminate any possible conflict between the judge and lead counsel. The question remaining here is whether there are different standards applicable to the dismissal of “local counsel.” On this limited record we find no basis in law to distinguish treatment of local counsel from primary or lead counsel. Apparently local counsel does serve an important function because the rules of the Eastern District of Pennsylvania require local counsel, E.D.Pa.R. 10; and the judge in this case directed the defendant to obtain local counsel.

Moreover, it seems clear to us that, at the very least, local counsel may be of particular assistance to a defendant confronting sentencing, as local counsel may be aware of a local judge’s unique approaches or preferences. Certainly when one is dealing with sentencing and the extraordinary discretion allowed each judge, we would be disregarding the reality of legal life if we failed to recognize that there are several nuances — even about judges — which are relevant in the sentencing process. If local counsel did no more than offer those insights his contribution could be invaluable.

Except for the limitation that we set forth herein, a judge cannot dismiss local counsel because counsel’s participation was, in the eyes of the judges, modest or miniscule. The gravamen of defendant’s complaint in this case must not be lost sight of. Here the defendant filed a motion to transfer claiming that there was a possible conflict between her counsel and the judge because of the “current personal interest” the judge had in a civil suit pending in the state court where local counsel represented persons adverse to the judge’s interest. Instead of ruling on the motion to transfer and determining whether there was a conflict which would warrant granting the motion, the trial judge eliminated the potential conflict by eliminating the local counsel.

He made no findings as to the possibility of a conflict of interest between him and, Rothstein; he made no finding that Laura had in anyway acted improperly be retaining Rothstein or by wishing to continue to retain him; he made no finding that Laura or Rothstein knew of the potential conflict when she retained Rothstein; he made no finding that Rothstein improperly delayed the motion to transfer;⁵ and he made no finding that the court’s interest in the orderly administration of its caseload would be jeopardized by granting the motion to transfer. Under these circumstances, the dismissal of Laura’s counsel of choice cannot be countenanced.

We do not consider it important that Laura originally retained Rothstein as a result of the trial court’s request that she have local counsel. By the time of the hearing Rothstein was one of Laura’s counsel of choice and we must evaluate her decision in that light.

Nor do we consider it decisive that after the dismissal of her local counsel Laura continued to have the services of Casteleiro. By the time of her hearing, she had a defense team composed of two attorneys who may have served distinct and important functions on her behalf. As she wished to retain both attorneys we can only presume that she felt that she needed both attorneys. That choice is hers to make and not the court’s, unless some appropriate justification for the dismissal is provided.

Moreover, as long as Rothstein performed a defense function, we do not believe that the defendant should be faced with the burden of proving the importance of his assistance. Therefore, Laura need not show that the dismissal was prejudicial. The right to counsel is among those “constitutional rights [which are] so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23 and n. 8, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

We make no finding on the merits as to whether Laura’s probation should have been revoked, or whether her original sentence and guilty plea of 1976 were valid. Certainly it is within the discretion of a trial judge to revoke the probation where a guilty plea had been entered validly and where the defendant was involved in a serious crime during her probationary period. However, regardless of the validity of the trial judge’s decision on the merits, there is no justification here for dismissing her trial counsel and thereby precluding him from assisting her in her defense. The challenge to her guilty plea and to the revocation of her probation was rejected in a proceeding where the defendant’s sixth amendment rights may have been violated. If this is the case, the judge’s decisions on the merits may not stand.

Trial judges have an arduous task in dealing with an excessive caseload while attempting to decide fairly the myriad issues presented daily. Like us, they cannot always be errorless; when the facts of a case are isolated on appeal and focused on with greater specificity, is it obvious that often some aspects considered decisive by the appellate court had not been adequately reflected upon by the trial judge in the crunch of the caseload. This factor probably occurred in this case since a reading of the record indicates that the learned trial judge was appropriately concerned about a reasonably prompt disposition of his substantial caseload. He desired to move this case with reasonable dispatch. But such dispatch, without adequate findings, cannot justify the ruling below.

We will therefore remand this case to the district court. On remand, the district court may either grant the defendant’s motion to transfer without considering the conflict of interest issue; or it may make findings on the question and act in accord with its findings.⁶

Of course, if the matter is transferred to another judge, the sentence on the revocation of the probation must be vacated, so that the transferee judge may decide all of the issues ab initio.

1 . 21 U.S.C. § 963; 21 U.S.C. § 952 and § 2, respectively. 18 U.S.C. § 2; 21 U.S.C. § 841 and 18 U.S.C.

2 . The Youth Corrections Act provides for special sentencing of persons who are less than 22 years of age. 18 U.S.C. §§ 5005-5026.

3 . U.S. Constitution, VI Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

4 . See also ABA Standards Relating to the Administration of Criminal Justice, The Defense Function (1971), quoted in Faretta and The Personal Defense 65 Cal.L.Rev. 636, 638-39 nn. 6 & 7 (1977).

Section 1.1(a) provides:

Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.

Section 5.2(b) states:

The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.

5 . The judge specifically asked Rothstein why the motion had been filed so close to the time of the hearing. In response, Rothstein outlined his efforts to determine whether the motion was necessary and to determine Laura’s feelings as to whether he should withdraw. The record suggests that Rothstein acted in a timely manner and therefore the timing of the motion would not serve as a basis to dismiss Rothstein. Appellant’s App., at 117-19.

6 . We express no judgment as to the propriety of dismissing counsel if a conflict exists. However, we note that if a conflict exists, 28 U.S.C. § 455 may be employed to transfer Laura’s case to another judge.

28 U.S.C. § 455 provides in pertinent part:

(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(e) No justice, judge, magistrate, or referee in bankruptcy shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.