U.S. v. Laura

• Decision Date: 15 October 1979
• Docket Number: No. 79-1102,79-1102
• Citation: 607 F.2d 52
• Parties: UNITED STATES of America v. Priscilla Dominguez LAURA, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 52

607 F.2d 52

UNITED STATES of America v. Priscilla Dominguez LAURA, Appellant.

No. 79-1102.

United States Court of Appeals Third Circuit.

Argued July 12, 1979.

Decided Oct. 5, 1979.

As Amended Oct. 15, 1979.

Opinion Concurring in the Result

Paul Casteleiro (argued), Law Offices of Michael Kennedy, New York City, for appellant.

Peter Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Div., James J. Rohn (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges.

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 IV 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 32, 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 "(g)overnments, 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...