U.S. v. Dinitz

• Decision Date: 20 September 1976
• Docket Number: No. 73-2109,73-2109
• Citation: 538 F.2d 1214
• Parties: 2 Fed. R. Evid. Serv. 235 UNITED STATES of America, Plaintiff-Appellee, v. Nathan George DINITZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1214

538 F.2d 1214

2 Fed. R. Evid. Serv. 235

UNITED STATES of America, Plaintiff-Appellee, v. Nathan George DINITZ, Defendant-Appellant.

No. 73-2109.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1976.

S. Gunter Toney (Court-appointed), Tallahassee, Fla., Fletcher N. Baldwin, Jr. (Court-appointed), Gainesville, Fla., for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Nick P. Geeker, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before BROWN, Chief Judge, and GEWIN, COLEMAN, GOLDBERG, AINSWORTH GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE, TJOFLAT and HILL, Circuit Judges. ^*

TJOFLAT, Circuit Judge.

On April 17, 1973, Nathan Dinitz was convicted of violating 21 U.S.C. § 846 by conspiring to distribute a Schedule I controlled substance (LSD) and of violating 21 U.S.C. § 841(a)(1) by distributing LSD. A panel of this court reversed that conviction, holding that Dinitz had been placed in double jeopardy in violation of his Fifth Amendment rights. United States v. Dinitz, 492 F.2d 53 (5th Cir. 1974). By a closely divided vote (8-7), this court en banc affirmed the panel decision. United States v. Dinitz, 504 F.2d 854 (5th Cir. 1974) (en banc). On certiorari, the Supreme Court reversed and remanded the case for further proceedings. United States v. Dinitz, --- U.S. ----, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Thus, we must now consider the remaining issues raised by Dinitz (exclusive of the double jeopardy issue) on his original appeal.

I

On December 8, 1972, Nathan Dinitz was arrested for distributing LSD and for conspiring to distribute LSD. Dinitz was, at the time, a third-year law student at the University of Florida. About six weeks prior to the date of his arrest, it was alleged, Dinitz had sold 48 tablets of LSD to a federal undercover narcotics agent, Steve Cox.

About a week after Dinitz's arrest, he was allegedly the subject of an extortion attempt, in which an unidentified telephone caller advised Dinitz that he could have the charges dropped in exchange for $2,000. Dinitz reported the incident to the authorities, and two FBI agents investigated the matter. As part of the investigation, a fake "payoff" envelope, filled with paper, was left at the prearranged pickup site. Although one of the FBI agents saw a man pick up the envelope, the agents were unable to apprehend him.

On February 14, 1973, Dinitz came to trial. This trial was aborted in its inception. It ended in a mistrial shortly after the defendant's opening statement had begun, when the repeated misconduct of one of Dinitz's attorneys ¹, Maurice Wagner, caused the district judge to order Wagner to leave the courtroom. Specifically, the judge was prompted to order Wagner's removal by Wagner's efforts, during his opening statement, to tell the jury about the attempt to extort money from Dinitz. When Wagner began to relate the facts of the extortion attempt to the jury, the judge excused the jury and asked Wagner if he had any evidence to show that Agent Cox, the chief government witness, could be connected to the incident. When Wagner indicated that he had no such evidence, the judge ordered him to leave the courtroom ².

Although not a member of the bar of the Northern District of Florida, Wagner had been allowed to appear in the case pro hac vice. After Wagner's dismissal, he did not formally move for reinstatement. Dinitz, on the other hand, made repeated motions, both oral and written, for Wagner's reinstatement. All of these were denied.

About two months after the aborted first trial, Dinitz's second trial began. Rather than securing alternate counsel, Dinitz chose to represent himself. During the government's presentation of its case in chief, Agent Cox testified about the general circumstances under which he had bought the LSD from Dinitz. On cross-examination, Dinitz attempted to impeach Cox by asking him whether he had given inconsistent testimony at an earlier trial. When the prosecutor objected, Dinitz advised the court that he had a transcript of Cox's earlier testimony, but admitted that it had been given in an unrelated case involving issues totally irrelevant to those presented in his trial. The objection was sustained and the line of cross-examination was precluded. Dinitz also informed the court of his desire to cross-examine Cox about the extortion attempt. When the court announced that a voir dire hearing in the jury's absence would have to precede the examination in order to consider his proposed line of inquiry, Dinitz abandoned the strategy. Later on, during the presentation of his case, he once again (in the absence of the jury) raised the extortion issue. The court repeated its earlier inquiry as to whether he had any evidence to connect Agent Cox with the episode. For the first time in the case, Dinitz stated that there was "a tremendous similarity" between the voice on the telephone (which communicated the demand for money) and the voice of Agent Cox ³. He did not commit himself to testify, however. Instead, he renewed his application for an in camera inspection of the FBI files concerning its investigation of the extortion report ⁴. This blanket application for the court to peruse these files was denied. However, the two FBI agents who conducted the investigation were examined by the court and stated that there was no physical similarity between the man who picked up the envelope and Agent Cox. When Dinitz advised the court that he had nothing further to offer on the issue, the inquiry ended, and Dinitz was precluded from going into extortion attempt before the jury.

At the end of Dinitz's one-day trial, the jury returned a verdict of guilty on both counts of Dinitz's indictment, i. e., the conspiracy count and the distribution count. Approximately one month later, he was sentenced to serve concurrent five-year sentences for these violations.

At this stage of the proceedings, Dinitz argues (1) that the dismissal of Wagner and the refusal to reinstate him violated Dinitz's Sixth Amendment right to counsel, (2) that it was error not to allow him to impeach Agent Cox through (a) the use of evidence of the extortion attempt and (b) the use of the transcript from a previous, unrelated trial, and (3) that it was error for the court to refuse to make an in camera inspection of the FBI files. Finding none of these contentions meritorious, we affirm the judgment of the district court.

II

Dinitz first argues that his Sixth Amendment right to counsel was violated when the district court banned Wagner from the first trial and precluded him from appearing thereafter. It is of course conceded that under the Sixth Amendment ⁵ Dinitz was entitled to the representation of counsel in this case. Dinitz acknowledges that the Amendment does not afford a defendant the unqualified right to counsel of his choice, and that the right to counsel of one's choice is limited to some extent. His argument is that, in this case, the district court could not properly deny him the representation of the counsel of his choice, i. e., Maurice Wagner.

We certainly agree that the Sixth Amendment right to counsel is an absolute, unqualified right to the representation of counsel. And we also agree that the Sixth Amendment requires the courts to respect a defendant's own particular choice of counsel. As Mr. Justice Sutherland wrote nearly fifty years ago in the seminal case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), "(i)f in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." Id. at 69, 53 S.Ct. at 64. There are, however, some limits to the constitutional right to be heard through the counsel of one's choice. Powell itself contemplates the existence of such limits when it states that "the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Id. at 53, 53 S.Ct. at 58 (emphasis added). There is some point short of allowing a defendant complete freedom in choosing his own counsel at which the Sixth Amendment's prescription is satisfied. To hold otherwise would necessarily condemn, for example, even local bar admission requirements, and no one would seriously maintain that the Sixth Amendment requires that.

To make an informed judgment in this case, we must place this qualified right to choose one's own counsel against the backdrop of judicial discretion. Traditionally, courts enjoy broad discretion to determine who shall practice before them and to monitor the conduct of those who do. Since attorneys are officers of the courts before which they appear, such courts are necessarily vested with the authority, within certain limits, to control attorneys' conduct. See, e. g., Phipps v. Wilson, 186 F.2d 748 (7th Cir. 1951); ABA Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge §§ 6.3, 6.5 (1972); cf. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957); 28 U.S.C. § 1654 (1970). And this is especially true during the course of a trial, when an attorney's misconduct may directly impede the orderly administration of justice ⁶. In this connection, of course, the Sixth Amendment is indisputably relevant, for it helps define the limits of judicial discretion. But the Sixth Amendment's right to choice of counsel merely informs judicial discretion it does not displace it. Our inquiry, then, must focus on the trial court's exercise of its discretion. In each case, we must inquire whether, given the defendant's qualified right to choose his own counsel, the trial court's refusal to hear the defendant through his chosen cou...