U.S. v. Salemo
| Citation | 61 F.3d 214 |
| Decision Date | 26 July 1995 |
| Docket Number | Nos. 94-1361,s. 94-1361 |
| Parties | UNITED STATES of America, v. George P. SALEMO, Appellant. & 94-1438. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
George P. Salemo, Phoenix, AZ, pro se.
Steven A. Morley (argued), Philadelphia, PA, for appellant.
Walter S. Batty, Jr., Asst. U.S. Atty., Emily McKillip (argued), Asst. U.S. Atty., Philadelphia, PA, for appellee.
Before: SLOVITER, Chief Judge, ALITO and McKEE, Circuit Judges.
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.
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. Sec. 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 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.
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.
So we'll proceed.
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 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?
Why don't you stay there in case--he doesn't bother you sitting there, right?
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.
When Salemo filed the notice of appeal from his sentence he requested appointment of counsel, and the district court 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.
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, 95 S.Ct. 2525, 2530-31, 45 L.Ed.2d 562 (1975); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241-42, 87 L.Ed. 268 (1942) (). 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, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (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, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (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, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (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 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...
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