United States v. Gibson
United States v. Gibson
Opinion of the Court
MEMORANDUM OPINION
The Court is in receipt of the most recent motion obviously prepared for defendant by Pennsylvania attorney Allen N. Brunwasser, whose permission to appear in open court was withdrawn pursuant to Local Rule 104(d) by a Memorandum Opinion and an Order dated November 24, 1987.
The latest motion purports to challenge the appointment and compensation of attorneys under the Criminal Justice Act. Nonetheless, as has become commonplace in Mr. Brunwasser’s continued handling of this case from Pittsburgh, delay unquestionably is its principal purpose.
There has been undue delay already as a consequence of the tactics exercised by defendant and his Pennsylvania attorney. It now is apparent that defendant has been advised by Mr. Brunwasser not to communicate with local counsel. Defendant’s first local counsel, Richard Huber, filed his motion to withdraw on July 31, 1987, stating in part that “Defendant Gibson and I have been unable to effectively communicate for some time.” Defendant’s personally chosen second local counsel, Jeffrey Jacobovitz, made multiple requests to withdraw, noting inter alia that defendant would not tell him anything about his version of the facts, that he was instructed not to engage in discovery (or do anything else), and that he was not permitted to review pleadings prior to their being filed.
The Court sees no need to deal with the details of the latest motion. One point, however, should be made. In paragraph 1 of the pleading, it is stated:
Defendant, as ordered by the distinguished Judge Stanley S. Harris on January 5, 1988, sent letters to 119 Criminal Justice List certified attorneys (“CJA”).
This is but another distortion of the record because the Court made no such order. At the resumption of the suppression hearing on January 5, Mr. Jacobovitz stated in part:
... without Mr. Gibson’s cooperation with me and without his version of the facts and whether he does, in fact, want to testify or not, I can’t adequately represent him. (Tr. 6.)
The Court reluctantly permitted Mr. Jacobovitz to withdraw, leaving defendant
Such a situation defies reason, the Fifth Amendment to the United States Constitution, the Speedy Trial Act, and the orderly administration of justice. To be sure, “a defendant should be afforded a fair opportunity to secure counsel of his choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932) (footnote omitted). Now, however, more than seven months have passed since defendant was arrested. The suppression hearing which began on November 6, 1987, should have been completed on that date. In actuality, we have not yet been able to finish with the first suppression hearing witness. In United States v. Burton, 584 F.2d 485 (D.C.Cir. 1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979), the Court of Appeals stressed that
... the right to obtain counsel of one’s choice is not absolute. The right “cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” (Id. at 489; footnotes omitted.)
Moreover, while defendant and Mr. Brun-wasser are all too willing to waive defendant’s right to a speedy trial (see, e.g., para. 5 of Attachment 1), no defendant has a unilateral right to interminable delay. Under the Speedy Trial Act, the Court may not grant a continuance even at the request of a defendant unless it makes “findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A).
Defendant and his Pennsylvania counsel will not be permitted to continue to frustrate the progress of this case. Accordingly, the case has been referred to a United States Magistrate for the selection and appointment of an attorney for defendant pursuant to Rule 44(a) of the Federal Rules of Criminal Procedure. Defendant has been found ineligible for representation under the Criminal Justice Act. However, the Advisory Committee’s note to Rule 44(a) provides that “[i]f a defendant is able to compensate counsel, he is entitled to the assignment of counsel even though not to free counsel.” Thus, defendant shall be responsible for appointed counsel’s reasonable attorney’s fees and costs incurred in the future course of this case.
The Court advises defendant to cooperate fully with appointed counsel. Of course, a defendant has a constitutional right to consult with counsel on any material step after indictment. Hawk v. Olson, Warden, 326 U.S. 271, 278, 66 S.Ct. 116, 120, 90 L.Ed. 61 (1945). A defendant, however, may waive this constitutional right. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). If
As soon as counsel is appointed by a Magistrate, several things are to happen. First, counsel is directed to contact Assistant United States Attorney Theodore Shmanda promptly to conduct the discovery necessary for completion of the suppression hearing on February 16 at 4:00 p.m. Second, counsel is directed to contact defendant in an effort to obtain information that will enable counsel to represent defendant most effectively.
Finally, defendant’s Motion Raising Question of Criminal Justice Act Insofar as It Impedes Ability of a Defendant To Afford Private Counsel is denied.
. A trial court's denial of permission for an attorney to appear pro hac vice raises no due process implications. See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717, reh. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).
. Attachment 1 hereto is the extraordinary proposed order submitted with the pending motion. Among other undesirable effects, granting the relief requested would engender further delay of at least a year.
. In his second motion to amend his petition for writ of mandamus, etc., filed on January 18, 1988, in the Court of Appeals’ Case No. 88-5002, Mr. Brunwasser (who is not admitted to practice before that court) referred to the letter. It should be a part of the record; the letter is appended as Attachment 2 hereto.
. If defendant chooses to continue to employ Mr. Brunwasser for services other than in court here, that is his decision. However, this case will proceed, and defendant shall be responsible for fairly compensating his appointed counsel.
. The suppression hearing will go forward on February 16 irrespective of the degree of cooperation by defendant with appointed counsel. Defendant already has been represented by three attorneys, and the Court will not cause any other attorney to be appointed. See, e.g., Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
Reference
- Full Case Name
- United States v. Jay Louis GIBSON
- Status
- Published