Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
7-26-1995
United States v Salemo Precedential or Non-Precedential:
Docket 94-1361
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Recommended Citation "United States v Salemo" (1995). 1995 Decisions. Paper 199. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/199
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 94-1361 & 94-1438
UNITED STATES OF AMERICA v.
GEORGE P. SALEMO, Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Crim. No. 92-cr-00547
Argued: May 2, 1995
Before: SLOVITER, Chief Judge, ALITO and MCKEE, Circuit Judges.
(Filed July 26, 1995)
OPINION OF THE COURT
GEORGE P. SALEMO, Pro Se No. 22891-008 YUMA 37910 N. 45th Avenue Phoenix, AZ 85027-7055
STEVEN A. MORLEY, ESQUIRE (ARGUED) 834 Chestnut Street, Suite 206 Philadelphia, PA 19107 Attorney for Appellant
1 WALTER S. BATTY, JR., ESQUIRE Asst. United States Attorney EMILY MCKILLIP, ESQUIRE (ARGUED) Asst. United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476 Attorneys for Appellee
2 McKEE, Circuit Judge
George Salemo brings this appeal after being sentenced for a
crime commonly known as "check 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 resentencing.
I.
On September 24, 1992, a federal grand jury returned a two-
count indictment charging Salemo with bank fraud in violation of
18 U.S.C. § 1344. Prior to trial, the public defender who had
been appointed to represent Salemo was allowed to withdraw, and
the district court then appointed an attorney of Salemo's own
choosing to represent Salemo at trial. After a two day trial, the
jury convicted Salemo of both counts.
Sentencing was originally set for January 10, 1994, however,
on three separate occasions, Salemo moved pro se for a
continuance of the sentencing date and the district court granted
each request. On March 1, 1994, Salemo wrote to his trial
attorney and asked him to withdraw as counsel. Salemo also wrote
1 Salemo raises a plethora of issues regarding his trial. He complains that the indictment was duplicitous and inadequately charged him with bank fraud; that the government failed to disclose exculpatory information; that the trial court improperly excluded evidence; that the trial court's jury instruction on constructive control was misleading and that a misstatement of certain facts by the court created a risk of an unjust verdict; and, that his sentence in this case violates the double jeopardy provision of the Fifth Amendment. We find these contentions to be without merit.
3 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 beginning of that hearing the
following discussion occurred between the district judge,
Salemo's appointed counsel and Salemo: THE COURT: We're ready for the sentence of Mr. Salemo, but I understand that there are some preliminary matters which we need to deal with.
The first is Mr. Salemo 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. Salemo on several occasions. I will not withdraw voluntarily. If he does not want me seated here, I shall step back. . . .
THE COURT: Mr. Salemo, 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.
4 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
5 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 case -- 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 all. [My attorney] and I have known each other -- we're friends. We've known each other for 20 years.
THE COURT: Okay.
THE 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 Salemo argued the
inaccuracy of the pre-sentence report and the application of case
law to his situation. After rejecting Salemo'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 Salemo filed the notice of appeal from his sentence he
requested appointment of counsel, and the district court
6 appointed appellate counsel who filed a brief on Salemo's behalf.
Salemo has also filed a pro se brief in this appeal.2
Salemo raises an issue in his pro se brief that was not
raised in the brief submitted by his attorney on appeal. Salemo
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 Salemo to ascertain the
extent of his understanding of the ramifications of dispensing
with counsel and proceeding pro se at the sentencing hearing.
Nevertheless, the government argues that "[t]he record that was
before the trial court showed that Salemo understood the nature
of the sentencing proceeding and the possible consequences."
Brief for Appellee at 34. The government further claims that the
trial court properly inferred that Salemo's waiver of counsel was
knowing and intelligent and that the record supports that
implicit finding.
A.
The Supreme Court has recognized that a criminal defendant
has the constitutional right to defend him/herself at trial.
Faretta v. California, 422 U.S. 806, 814-16 (1975); Adams v.
2 This case presents one of the rare instances in which a defendant who is represented by court appointed appellate counsel is also allowed to brief his own appeal before this Court. We emphasize that ordinarily we do not consider the pro se briefs of counselled parties and we do not intend our consideration of the dual briefs filed on behalf of the defendant in this case to signal a departure from our usual practice to the contrary.
7 United States ex rel. McCann, 317 U.S. 269, 279 (1942) (the Sixth
Amendment right to counsel implicitly includes the "correlative
right to dispense with a lawyer's help"). The Court, however,
has scrupulously required that a defendant's waiver of counsel be
both voluntary and a "knowing and intelligent relinquishment or
abandonment of a known right or privilege." Edwards v. Arizona,
451 U.S. 477, 482 (1981). Whether a defendant has voluntarily,
knowingly and intelligently relinquished the right to counsel
"depends in each case 'upon the particular facts and
circumstances surrounding that case, including the background,
experience, and conduct of the accused.'" Id. (quoting Johnson
v. Zerbst, 304 U.S. 458, 464 (1938)). In general, however, the
Supreme Court has required that "courts indulge in every
reasonable presumption against waiver." Brewer v. Williams, 430
U.S. 387, 404 (1977).
In United States v. Welty, 674 F.2d 185 (3d Cir. 1982), we
set forth guidelines for conducting a proper inquiry following a
defendant's request for substitution or waiver of counsel: First, the court must decide if the reasons for the defendant's request for substitute counsel constitute good cause and are thus sufficiently substantial to justify a continuance of the trial in order to allow new counsel to be obtained. If the district court determines that the defendant is not entitled to a continuance in order to engage new counsel, the defendant is then left with a choice between continuing with his existing counsel or proceeding to trial pro se, thus bringing into play the court's second stage of inquiry. Since the decision to proceed pro se involves a waiver of the defendant's sixth amendment right to counsel, the district court then has the responsibility of ensuring that any decision by the defendant
8 to represent him[/her]self is intelligently and competently made.
It is vital that the district court take particular pains in discharging its responsibility to conduct these inquiries concerning substitution of counsel and waiver of counsel. . . . [A] trial cannot be permitted to go forward when a defendant does not fully appreciate the impact of his[/her] actions on his[/her] fundamental constitutional rights.
Id. at 187 (citation omitted). In Welty, we concluded that the defendant could not have
effectively waived his right to counsel because "the record
reveal[ed] no inquiry by the district court judge as to the
reasons for Welty's dissatisfaction with his appointed counsel
and little inquiry into whether Welty's decision to proceed pro
se was made knowingly and intelligently." Id. at 189. Similarly, in McMahon v. Fulcomer, 821 F.2d 934 (3d Cir. 1987), we held that
the defendant did not knowingly and intelligently waive his right
to counsel where the "record reflect[ed] a total absence of any
`searching inquiry' or colloquy as to defendant's understanding
of the dangers and disadvantages he faced proceeding pro se."
Id. at 945.
Conversely, we upheld the validity of a defendant's waiver
of counsel in Government of Virgin Islands v. James, 934 F.2d 468 (3d Cir. 1991). There, the trial court was not presented with a
request for substitute counsel as James sought only to represent
himself. Throughout the pre-trial proceedings James had been
represented by a public defender. However, when jury selection
was to begin James told the court that he wanted to discharge his
9 attorney and represent himself. Id. at 470. The district judge
conducted a lengthy colloquy with James in which the court
informed him of the perils of self-representation. Id. at 470.
On review, we considered the contents of that colloquy and
concluded that James' waiver was knowing and intelligent: After admonishing appellant with the old adage that a lawyer who has himself for a client is a fool, the court discussed the nature of the possible charges against James and the possible penalties he faced; James was apprised of the difficulty he would face in getting his decision to waive overturned on appeal from a conviction; the court determined that James had some familiarity with the workings of a trial as a result of two prior convictions; the court also determined that James' waiver was voluntary. . . . Most significantly, the court did not allow James to proceed completely unassisted but appointed stand-by counsel to sit with him and answer any questions that he may have had during trial. 3 Id. at 472-73. B.
The issue before us is, of course, raised in a different
context as Salemo's purported waiver occurred at sentencing as
opposed to trial. This distinction is clearly relevant to the
content of the colloquy which the court must have with the
defendant. It does not, however, eliminate the need for the
district court to make an inquiry sufficient to support a finding
that the waiver of counsel is voluntary, knowing and intelligent.
It is well settled that "[i]t is the solemn duty of a
3 James was also required to execute a waiver form attesting that the waiver was made voluntarily and with full knowledge and understanding. Id. at 470 n.2.
10 federal judge before whom a defendant appears without counsel to
make a thorough inquiry and to take all steps necessary to insure
the fullest protection of this constitutional right at every
stage of the proceedings." Von Moltke v. Gillies, 332 U.S. 708,
722 (1948) (Black, J., plurality opinion) (emphasis added).
Neither logic nor precedent supports carving out an exception
when the waiver occurs at sentencing. Of course, the inquiry at
sentencing need only be tailored to that proceeding and the
consequences that may flow from it. Therefore, it need not be as
exhaustive and searching as a similar inquiry before the
conclusion of trial. "Sentencing hearings demand much less
specialized knowledge than trials; for instance, the Federal
Rules of Evidence do not apply in sentencing hearings." United
States v. Day, 998 F.2d 622, 626 (1st Cir. 1993), cert. denied,
114 S. Ct. 2140 (1994). Nevertheless, sentencing is a critical
and often times complicated part of the criminal process that
contains subtleties which may be beyond the appreciation of the
average layperson seeking to represent him/herself.
We have, for example, previously noted that "[t]he
[Sentencing] Guidelines contain a complex procedure for
determining the appropriate increase in offense level for
conviction of multiple counts." United States v. Johnson, 931
F.2d 238, 242 (3d Cir. 1991). See also United States v. Smith,
997 F.2d 396, 398 (8th Cir. 1993) (Gibson, J., concurring) ("The
guidelines . . . have created a complex hypertechnical system
consuming great amounts of judicial time for both trial and
appellate judges."). Commentators have also bemoaned the
11 complexities of our sentencing system. Id. at 399 (Bright, J.,
dissenting) (citing articles that "call attention to the
frustrations of lawyers, judges and probation officers who must
try to understand the complexities of the [sentencing] system").
Indeed, in some cases, one's ultimate fate is determined
more by the application of the Guidelines than the determination
of innocence or guilt. For example, sentencing judges are not
limited to a consideration of the specific conduct that
constitutes the offense of conviction in determining whether a
given offense characteristic applies. Under USSG § 1B1.3, a
judge generally must consider all "relevant conduct."4 Thus,
"[t]he Guidelines are clear that conduct beyond the precise acts
of the offense of conviction may be used to determine specific
offense characteristics." United States v. Frierson, 945 F.2d
650, 653 (3d Cir. 1991). Accordingly, we have upheld sentences
4 Section 1B1.3 of the Guidelines states:
Relevant Conduct (Factors that Determine the Guideline Range)
Unless otherwise specified, . . . specific offense characteristics . . . shall be determined on the basis of . . . all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, . . . or that otherwise were in furtherance of that offense.
USSG § 1B1.3(a). For certain crimes, relevant conduct also includes any acts or omissions that were "part of the same course of conduct or common scheme or plan as the offense of conviction." USSG § 1B1.3(a)(2).
12 which were based in part upon conduct for which the defendant was
not convicted. See United States v. Cianscewski, 894 F.2d 74,
80-81 (3d Cir. 1990); United States v. Ryan, 866 F.2d 604, 608-09
(3d Cir. 1989). Given these intricacies, it is particularly
important that a sentencing court be certain that a defendant
understands the perilous path he/she is going down in attempting
to proceed to sentencing without the benefit of counsel.
In addition, a defendant who is unfamiliar with the post
conviction process may inadvertently waive a meritorious argument
that he/she might otherwise have raised on appeal. Thus, at
sentencing, just as at trial, "a defendant's waiver of counsel
can be deemed effective only where the district court has made a
searching inquiry sufficient to satisfy him[/her] that the
defendant's waiver was understanding and voluntary." Welty, 674
F.2d at 189. We have not previously, nor do we now, require a
rote dialogue "such as that mandated for guilty plea proceedings
conducted pursuant to Rule 11 of the Federal Rules of Criminal
Procedure." James, 934 F.2d at 473. However, at a minimum, a
trial judge must make "a searching inquiry sufficient to satisfy
him[/her] that the defendant's waiver was understanding and
voluntary." Welty, 674 F.2d at 189. The court's inquiry must be
calculated to insure that the defendant is "made aware of the
dangers and disadvantages of self-representation, so that the
record will establish that 'he[/she] knows what he[/she] is doing
and [the] choice is made with eyes open.'" Faretta, 422 U.S. at
834 (quoting Adams, 317 U.S. at 279). "Perfunctory questioning
is not sufficient." Welty, 674 F.2d at 187. Where the record
13 contains no such inquiry, or one that is inadequate, there can be
no valid waiver of the right to counsel. Salemo's purported
waiver was accepted without such an inquiry and therefore it
cannot stand.
C.
The inquiry required here did not have to include a
discussion of the reasons for Salemo's request for a continuance
in order to get new counsel because Salemo clearly stated the
reasons for his dissatisfaction when he requested another
continuance of the sentencing date. See McKee v. Harris, 649 F.2d
927, 933 (2d Cir. 1981). When a defendant insists on proceeding
pro se, the next inquiry a court must make under Welty is whether
the defendant's request for waiver of counsel is voluntary,
knowing and intelligent. Here, Salemo's own language casts doubt
upon the voluntariness of his request. Although a defendant can
be deemed to have waived the right to counsel by refusing the
assistance of appointed counsel and persisting in a demand for
different counsel, see Wiggins v. Procunier, 753 F.2d 1318, 1320
(5th Cir. 1985), a defendant will not normally be deemed to have
waived the right to counsel by reluctantly agreeing to proceed
pro se under circumstances where it may appear that there is no
choice. See United States ex rel. Martinez v. Thomas, 526 F.2d
750, 755-56 (2d Cir. 1975) (defendant who represented himself
"reluctantly, unwillingly and greatly to his detriment" had "no
freedom of choice" but was merely "bowing to the inevitable," and
was thereby denied his constitutional rights). Here, the
circumstances were such that the district court had an obligation
14 to make a sufficient inquiry of the defendant to allow the court
to decide whether the defendant was "bowing to the inevitable" or
voluntarily and affirmatively waiving his right to counsel.
We do not, however, suggest that the district court should
have allowed itself to be manipulated into granting a continuance
and appointing new counsel. Nevertheless, the defendant's
apparent reluctance to proceed without counsel should have
alerted the court to the need to inform the defendant of the
pitfalls and technicalities of the sentencing hearing which was
about to begin. Such a warning would have better enabled the
defendant to decide if he still wanted to proceed pro se instead
of allowing counsel, who was standing at his side, to represent
him.
We appreciate that the sentencing judge (who also conducted
Salemo's trial) may have felt that he had sufficient familiarity
with this defendant to accept a waiver of counsel for purposes of
sentencing without a searching inquiry into Salemo's familiarity
with, or appreciation of, the complexities of sentencing. Before
sentencing, Salemo, acting pro se, filed several documents
including an extensive challenge to the pre-sentence report,
objections to the revised pre-sentence report, a sentencing
memorandum, a letter to the trial court objecting to the
government's sentencing memorandum, and voluminous exhibits in
support of his arguments.5 Thus, we can understand how the
5 In addition, at his sentencing, Salemo made respectable legal arguments (citing cases which were, for the most part, relevant to his argument), argued the application of specific
15 sentencing judge may have concluded that Salemo was better able
to represent himself than the average defendant. However, we
cannot infer a valid waiver of the right to counsel based upon
the district court's subjective overall impression of a
defendant. We have previously stated "that a colloquy between
the defendant and trial judge is the preferred method of
ascertaining that a waiver is voluntary, knowing and
intelligent." James, 934 F.2d at 473. See also Wiggins, 753
F.2d at 1320 ("We are convinced that a colloquy between a
defendant and a trial judge is the preferred method of
intelligent."). We reiterate that "[i]t is appropriate for this
searching inquiry to appear upon the record," McMahon, 821 F.2d
at 945, so as to allow a reviewing court to examine the district
court's determination in the event of an appeal. Here, the
district court's failure to do this requires a remand for
resentencing.
Moreover, we decline to engage in a harmless error analysis
here. The right to representation by counsel in a criminal
proceeding is one of the most fundamental and cherished rights
guaranteed by the Constitution. See Johnson, 304 U.S. at 462
(describing assistance of counsel as "one of the safeguards of
the Sixth Amendment deemed necessary to insure fundamental human
rights of life and liberty"). It is "among those `constitutional
rights [which are] so basic to a fair trial that their infraction
provisions of the Sentencing Guidelines, and he has now successfully presented a legal argument to this Court on appeal.
16 can never be treated as harmless error.'" Welty, 674 F.2d at 196
n.6 (quoting Chapman v. California, 386 U.S. 18, 23 & n.8
(1967)). Furthermore, the purpose and effect of the Sixth
Amendment is to "withhold[] from federal courts, in all criminal
proceedings, the power and authority to deprive an accused of his
life or liberty unless he has or waives the assistance of
counsel." Johnson, 304 U.S. at 463 (footnotes omitted).
Accordingly, we do not feel that the deprivation of the
defendant's right to representation at sentencing under the
circumstances of this case justifies a harmless error analysis.
In summary, we do not believe that the district court's
instruction for Salemo's appointed counsel to serve as standby
counsel during the sentencing is a sufficient substitute for
obtaining a valid waiver of the right to counsel from the
defendant. Although the court's instruction was a noteworthy
attempt to safeguard Salemo's Sixth Amendment right, it did not
satisfy the court's "responsibility of ensuring that any choice
of self-representation is made . . . with an awareness of the
dangers and disadvantages inherent in representing oneself."
Welty, 674 F.2d at 188.
III.
Salemo raises several other issues pertaining to his
sentencing. He claims that the district court improperly
calculated the amount of loss by "double counting" the same funds
as both actual and intended loss. He argues that his sentence
level should be reduced by three points because his federal
conviction in Florida and state conviction in Arizona were part
17 of a common scheme as defined in USSG § 4A1.2. Further, Salemo
objects to the two point enhancement he received for "more than
minimal planning" and complains that he was improperly denied a
two point reduction for acceptance of responsibility. Lastly,
Salemo, through the brief submitted by his counsel, complains
that he did not receive "sufficient notice" of the potential for
sentence enhancement for commission of a crime while on bail
release, as required by the Background Commentary accompanying
USSG § 2J1.7. We decline to take any position as to the merits
of any of these arguments now. On remand, these arguments can be
presented to the sentencing court by competent legal counsel, or
by the defendant after an appropriate waiver of counsel.
We will affirm the judgment of conviction but will vacate
the sentence and remand for resentencing.
18 United States v. Salemo Nos. 94-1361 and 94-1438
ALITO, Circuit Judge. concurring:
I would not write separately here if the majority opinion did
not include the following paragraph in its opinion. Moreover, we decline to engage in a harmless error analysis here. The right to representation by counsel in a criminal proceeding is one of the most fundamental and cherished rights guaranteed by the Constitution. See Johnson, 304 U.S. at 462 (describing assistance of counsel as "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty"). It is "among those 'constitutional rights [which are] so basic to a fair trial that their infraction can never be treated as harmless error.'" Welty, 674 F.2d at 196 n.6 (quoting Chapman v. California, 386 U.S. 18, 23 & n.8 (1967)). Furthermore, the purpose and the effect of the Sixth Amendment is to "withhold[] from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Johnson, 304 U.S. at 463 (footnotes omitted). Accordingly, we do not feel that the deprivation of the defendant's right to representation at sentencing under the circumstances of this case justifies a harmless error analysis.
Maj. Op. 15-16.
If this paragraph is narrowly interpreted to mean only that
the error in this case was not harmless, then this paragraph is
correct -- but unnecessary -- for nobody has ever claimed that
the challenged actions of the district court, if they amounted to
constitutional error, could be found, based on the record that we
have, to have been harmless. The government's brief made no such
19 argument, and at oral argument the government emphasized that it
was not advancing any such claim.
I am concerned, however, that the paragraph in question will
be interpreted to mean something more than merely that the error
here was not harmless. After all, the majority begins this
paragraph by saying that it "decline[s] to engage in a harmless
error analysis" (Maj. Op. at 15), not that it concludes, after
performing such an analysis, that the error was not harmless.
Similarly, the majority concludes the paragraph by stating that
"a harmless error analysis" is not "justifie[d]." Id. In
between, the majority inserts quotations, taken from cases
involving the right to counsel at trial, that strongly suggest
that the deprivation of counsel can never be harmless. Thus, the
paragraph in question may well be read broadly to mean that the
deprivation of counsel at sentencing can never be harmless
error.6 Such a suggestion would, of course, be dictum and thus
not binding on our court or on the district courts, but I am not
prepared to endorse such dictum in this case.
In suggesting that the deprivation of counsel can never be
harmless, the majority quotes two cases -- this court's decision
6 Such a blanket rule could produce some strange results. For example, suppose that a defendant does not validly waive counsel at sentencing but is given the mandatory minimum sentence prescribed by statute. Or suppose that a defendant who has not validly waived counsel at sentencing is given the minimum sentence within the range specified by the Sentencing Guidelines and that the defendant, now represented by able counsel, concedes that the range calculated by the district court was correct and cannot think of any grounds for departure. In this case, must the sentence to be vacated and the case remanded so that the very same sentence can be imposed with counsel present?
20 in Welty and the Supreme Court's decision in Johnson. Both of
these cases concerned the right to counsel at trial, not
sentencing. The majority's quotation from Welty includes a
quotation from Chapman, 386 U.S. at 23 & n.8. The Chapman
quotation likewise concerns the right to counsel at trial, not
sentencing. Now, it may well be that these precedents should be
extended to govern the deprivation of counsel at sentencing, but
neither the Supreme Court nor this court has yet done so, and I
think that such an extension would warrant careful analysis.
For one thing, such an extension would require consideration
of decisions such as Satterwhite v. Texas, 486 U.S. 249 (1988),
that make it clear that the deprivation of counsel in violation
of the Sixth Amendment can be harmless in some contexts. In that
case, a defendant sought to have his sentence reversed because of
the use at a capital sentencing proceeding of psychiatric
testimony taken in violation of the Sixth Amendment. Id. at 253-
54. In support of his position, the defendant relied on the
following statement from Holloway v. Arkansas, 435 U.S. 475, 489
(1978): [W]hen a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosection of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59 (1963).
The Satterwhite Court, however, refused to adopt such a
categorical rule, noting that the Court had previously approved
harmless error analysis in a number of cases involving violations
21 of the Sixth Amendment. See Milton v. Wainwright, 407 U.S. 371
(1972) (harmless error analysis applied to confession obtained in
violation of Massiah v. United States, 377 U.S. 201 (1964));
Monroe v. Illinois, 434 U.S. 220 (1977) (harmless error analysis
applied to admission of identification testimony obtained in
violation of right to counsel at postindictment lineup); see also
Coleman v. Alabama, 399 U.S. 1 (1970) (harmless error applied to
violation of right to counsel at preliminary hearing). Rather,
the Satterwhite Court distinguished Holloway stating that
reversal was automatic only when the "deprivation of the right to
counsel affected--and contaminated--the entire criminal
proceeding." 486 U.S. at 257. The Court thus held that where a
reviewing court could make an "intelligent judgment" as to the
effect that the constitutional violation could have on the
sentencing jury, harmless error analysis applied. 486 U.S. at
258. See also Sullivan v. Louisiana, 113 S. Ct. 2078, 2083
(1993) (Rehnquist, C.J., concurring) (noting that the Supreme
Court has "long since rejected the argument that, as a general
matter, the Sixth Amendment prohibits the application of
harmless-error analysis in determining whether constitutional
error had a prejudicial impact on the outcome of the case").
I also note that one other court of appeals has indicated
that an invalid waiver of counsel at sentencing is subject to
harmless error analysis. Richardson v. Lucas, 741 F.2d 753 (5th
Cir. 1984). Cf. Golden v. Newsome, 755 F.2d 1478 (11th Cir.
1985) (denial of right to counsel at sentencing not subject to
harmless error analysis); United States v. Balough, 820 F.2d 1485
22 (9th Cir. 1987) (denial of right to counsel at hearing on motion
to withdraw guilty plea and sentencing not subject to harmless
error analysis).
In conclusion, I emphasize that I express no view as to
whether the unconstitutional deprivation of counsel at sentencing
can be harmless. That is precisely my point: without any need
to decide this question and without briefing or argument on the
issue, I refuse to endorse the majority dictum.
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