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 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. 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. 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.
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. 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. The district court issued an opinion explaining why it had required Goldberg to proceed pro se. United States v. Goldberg, F. It quoted at length from its prior decision, United States v.
Jennings, F. The district court also concluded that Goldberg had not demonstrated good cause for his application on May 27, , to substitute counsel. 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. This appeal followed. The district court had original jurisdiction over this criminal action pursuant to 18 U. We have appellate jurisdiction to review a final judgment of conviction under 28 U.
Goldberg presses two principal claims of error on appeal. We review that decision for abuse of discretion. McMahon v. Fulcomer, F. Welty, F. 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.
Velasquez, F. 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. 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.
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right Because it is essential to fair adjudication, see Powell v. Alabama, U. Wainwright, U. Zerbst, U.
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California, U. 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 by an attorney with whom he is dissatisfied and proceeding pro se, we set forth a two-part inquiry in Welty, F.
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.
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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.
In several decisions following Welty, we have acknowledged that there are countervailing governmental interests. For instance, in United States v. Kikumura, F. Similarly, in United States v. Romano, F. But "a rigid insistence on expedition in the face of a justifiable request for delay can amount to a constitutional violation. Rankin, F. These factors are relevant to the "good cause" analysis under Welty.
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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, F. We reject Goldberg's claim that the district court abused its discretion in denying his May 27, , "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, F. After hearing from both Goldberg and Lunsford, the district court found that Goldberg's disagreement with Lunsford amounted to a difference over 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.
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. 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 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. 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. 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.
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". A waiver is an intentional and voluntary relinquishment of a known right. Johnson, U. 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. 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. Jackson, U.
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, U. 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 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 Salemo, 61 F.
July 26, failure to warn of risks of self-representation render waiver of right to counsel invalid ; Government of Virgin Islands v. James, F. At the other end of the spectrum is the concept of "forfeiture. Referring to the confusion in the courts over this issue, LaFave and Israel observed that " [t]he term 'forfeiture' is preferred to 'waiver' because 'waiver' in the context of the right to counsel is generally used to refer to an 'intentional relinquishment of a known right' In United States v.
imdrywalna.gq McLeod, 53 F. After conducting a hearing at which the defendant was permitted to testify, the district court granted the defense attorney's motion to be relieved. Explicitly acknowledging the distinction between "waiver" and "forfeiture," the Court of Appeals for the Eleventh Circuit concluded that "a defendant who is abusive toward his attorney may forfeit his right to counsel. It appears that the McLeod court stands alone in recognizing the distinction between "waiver" and "forfeiture.
Mitchell, F. In Mitchell the Court of Appeals for the Fifth Circuit held that a defendant who knowingly retains an attorney with a scheduling conflict and fails to secure other counsel within a reasonable time "waives" his right to counsel. The Mitchell court did not discuss the implications of Faretta or Johnson. Its decision, therefore, rested on notions of forfeiture, not waiver. Finally, there is a hybrid situation "waiver by conduct" that combines elements of waiver and forfeiture. Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel.
See, e. Bauer, F. Allen, F. Both Bauer and Allen, however, recognize that to the extent that the defendant's actions are examined under the doctrine of "waiver," there can be no valid waiver of the Sixth Amendment right to counsel unless the defendant also receives Faretta warnings. Add it to your IMDbPage. How Much Have You Seen? How much of Ron Jeremy's work have you seen? User Polls Which actor would you like as your quiz show partner?
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