U.S. v. Salemo, 95-10028

Decision Date28 May 1996
Docket NumberNo. 95-10028,95-10028
Citation81 F.3d 1453
Parties96 Cal. Daily Op. Serv. 2456, 96 Daily Journal D.A.R. 4139 UNITED STATES of America, Plaintiff-Appellee, v. George Paul SALEMO, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Artmore L. Baggot, Phoenix, Arizona, for defendant-appellant.

Mark E. Aspey, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding, D.C. No. CR-89-00341-PGR.

Before ALARCON, KLEINFELD and HAWKINS, Circuit Judges.

ALARCON, Circuit Judge:

This appeal presents a novel question: Does section 3006A of the Criminal Justice Salemo's appellate counsel also challenges the order granting the Government's motion to set aside the plea agreement, and the validity of the court's sentencing decision. We consider each of these issues in this opinion. We have jurisdiction to review the judgment of conviction pursuant to 28 U.S.C. § 1291, and the validity of the sentencing decision under 18 U.S.C. § 3742(a).

                Act require a district court to compensate an attorney who serves solely as an advisor at the request of an indigent defendant who has asserted his or her right to self representation?   We conclude that section 3006A does not authorize a district court to compensate an attorney whose service as a legal advisor is requested by the defendant. 1
                

Salemo's request that he be permitted to file a pro se supplemental brief in this matter was granted by this court. None of the issues raised in the supplemental brief meet the criteria for publication set forth in our Circuit Rule 36-2. We have addressed these separate contentions in an unpublished memorandum disposition filed on this date.

I

No issue has been raised by Salemo's counsel concerning the sufficiency of the evidence to support the judgment of conviction. Accordingly, a brief summary of the pertinent facts and procedural background will serve as a prelude for our analysis of the issues presented for review by Salemo's counsel.

Salemo's recorded criminal history began in 1965. At the age of 21, he was convicted in Pennsylvania of forging checks on the account of a college fraternity. In 1977, Salemo was convicted of mail fraud in the Eastern District of Pennsylvania in connection with the sale of short-term, high interest notes from an insolvent company. In 1980, Salemo was convicted in a Pennsylvania state court for writing a check with insufficient funds in his bank account. In 1982, Salemo was again convicted of forgery in Pennsylvania.

His criminal activity in Pennsylvania overlapped with his fraudulent conduct in Florida. In 1980, Salemo purchased a bankrupt Florida airline company by promising to pay $250,000. He submitted false financial documents to demonstrate his ability to perform his part of the bargain. Salemo failed to pay the purchase price. Meanwhile, he illegally converted some of the airline's assets. These activities resulted in a 1983 conviction in the District of Florida for wire fraud, transportation of fraudulent securities, and embezzlement.

While on parole from his Florida conviction, Salemo moved to Arizona and submitted falsified financial statements to Western Savings & Loan in an attempt to procure a real estate loan. Salemo also wrote thousands of dollars worth of bad checks. In 1985, he was convicted for these offenses in an Arizona state court and sentenced to seven years in prison.

In 1988, Salemo was placed in a Phoenix, Arizona halfway house in the waning phase of his imprisonment. While on leave from the halfway house, Salemo commenced loan negotiations with several financial institutions. Salemo represented that he was a wealthy New York businessman who visited Phoenix on the weekends. To disguise the fact that he was really an unemployed prisoner By the time Salemo was arrested in December 1988, Salemo had managed to negotiate a $30,000 loan from Citibank. Salemo also had attempted to obtain a $450,000 loan from Guardian Bank, a $2.4 million loan from Pioneer Bank, and a $4.3 million loan from Chase Bank. In addition, Salemo was $12,502 overdrawn on his Citibank account and was delinquent in making payments for purchases made with his Citibank credit card. He had also failed to meet the payment schedule on the lease agreement for the use of the Mercedes.

                Salemo stayed at an expensive suite and often negotiated his deals by the pool of the luxurious Princess Resort.   To create a false impression of his financial status, Salemo arranged to have expensive Rolex watches delivered to him during these poolside meetings.   Salemo also purchased a new $30,000 Corvette with a fraudulently obtained loan, leased a new SEL Mercedes Benz, and arranged to have a stretch limousine service on call 24 hours a day.   Over the course of his negotiations, Salemo submitted a false social security account number and numerous falsified financial documents to several banks.   Salemo also arranged to have an accomplice contact the institutions to "verify" his bogus financial status
                

On October 4, 1989, a federal grand jury in the District of Arizona indicted Salemo on six counts of wire fraud in violation of 18 U.S.C. § 1343, eight counts of false statements to financial institutions in violation of 18 U.S.C. § 1014, and three counts of the use of false social security account numbers in violation of 42 U.S.C. § 408(g)(2). On May 8, 1990, pursuant to a written plea agreement, Salemo entered pleas of guilty to five of the seventeen counts. Under the plea agreement, Salemo was released from custody, prior to sentencing, so that he could cooperate in an investigation conducted by the Pennsylvania Crime Commission.

Once in Pennsylvania, however, Salemo sought to defraud two banks by opening checking accounts and depositing several hundred thousands of dollars of worthless checks. Salemo was arrested on October 2, 1991, for bank fraud in the Eastern District of Pennsylvania.

On December 12, 1991, the district court in Arizona sentenced Salemo to 176 months. Salemo appealed from this sentence. On March 25, 1993, we vacated the guilty plea because of a violation of Rule 11 of the Federal Rules of Criminal Procedure and remanded this matter to the district court for further proceedings. United States v. Salemo, C.A. Nos. 92-10029, 92-15170, 1993 WL 84961 (9th Cir. March 25, 1993). While this matter was pending in the district court, Salemo went to trial in the District of Pennsylvania. On April 5, 1994, he was convicted of bank fraud. He was sentenced to serve eight years in prison.

On June 7, 1994, the district court granted the Government's motion "to vacate and/or reject the plea agreement" and set the matter for trial. On July 13, 1994, Salemo proceeded to trial. The jury returned guilty verdicts on all counts. On January 6, 1995, the district court sentenced Salemo to a term of imprisonment of 120 months. The district court ordered that the sentence be served consecutively to the sentence imposed by the District Court for the Eastern District of Pennsylvania.

II

Salemo's counsel contends that the district court erred in ruling that, as a matter of law, the Criminal Justice Act does not confer discretion to compensate advisory counsel with public funds. He further asserts that the failure to allow Salemo to represent himself with the assistance of a "standby counsel," compensated pursuant to the Criminal Justice Act, is a structural defect compelling reversal without a demonstration of prejudice. 2

We review for abuse of discretion a district court's ruling on a request for advisory counsel from an indigent defendant who has elected to represent himself. Locks, 703 F.2d at 407; United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981). We review de novo a district court's interpretation of a statute. United States v. Ripinsky, 20 F.3d 359, 361 (9th Cir.1994).

Salemo's counsel has directed our attention to the fact that in 1992, the district court had granted Salemo's request for the appointment of advisory counsel to consult with him during contempt proceedings. The district court approved vouchers submitted by Salemo's counsel for these services.

On June 29, 1994, Salemo filed his motion for "leave to proceed in pro se with advisory counsel" at the guilt phase of the trial in this matter. The district court informed Salemo that "there is no provision for compensation [for advisory counsel] under the Criminal Justice Act." Salemo argued that he had a statutory and constitutional right to proceed with advisory counsel who would be compensated under the Criminal Justice Act. The district court denied Salemo's request that advisory counsel be appointed and compensated under the provisions of the Criminal Justice Act. The court ruled that Salemo "had an absolute right to represent [himself], presuming the court can make certain findings, but that there will not be paid advisory counsel if the Court grants the motion." The court also advised Salemo that he could represent himself with advisory counsel who was willing to serve pro bono publico. Following this ruling, Salemo informed the court that he did not wish to represent himself if his advisory counsel would not be paid for his services under the Criminal Justice Act. Salemo was represented by appointed counsel at his trial.

Salemo's counsel has not cited any authority to support his argument that the Criminal Justice Act authorizes payment for the services of an attorney who served as a legal advisor to a defendant acting in pro se. In fact, he concedes that the Criminal Justice Act "does not specifically address the practice of appointment of standby counsel at public expense," and that the appointment of "standby counsel" is discretionary.

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