U.S. v. Barcelon, 85-2100
Decision Date | 18 November 1987 |
Docket Number | No. 85-2100,85-2100 |
Citation | 833 F.2d 894 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sidney BARCELON, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
William D. Welch, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on brief), Denver, Colo., for plaintiff-appellee.
Ralph B. Rhodes (Christopher C. Beasley with him on briefs), Denver, Colo., for defendant-appellant.
Before LOGAN, McWILLIAMS and STEPHEN H. ANDERSON, Circuit Judges.
The major issue presented by this appeal is whether the district court "appropriately inquired" into appellant Sidney Barcelon's ability to pay attorney's fees under the Criminal Justice Act, 18 U.S.C. Sec. 3006A (1982) (the "Act"), before denying his request for appointed counsel. 1 For the reasons stated below, we remand to the district court for further proceedings.
On October 10, 1984, Barcelon, was indicted along with forty-four other defendants and charged with one count of conspiracy to distribute a controlled substance and two counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Barcelon retained David Doyle as his counsel and Doyle entered his appearance as Barcelon's attorney on October 19, 1984. Four months later Doyle sought permission to withdraw as counsel, citing "irreconcilable differences" with Barcelon and Barcelon's failure to pay attorney's fees.
Shortly thereafter, Barcelon filed a pro se request for court-appointed counsel based on his financial inability to obtain an attorney. In support of his motion, Barcelon submitted an affidavit and financial statement on March 4, 1985. After examining Barcelon's financial statement, but making no further inquiry into his financial ability to retain counsel, the court, on March 6, denied both Doyle's motion to withdraw and Barcelon's motion for appointed counsel. Barcelon subsequently moved the court for the right to represent himself pro se and for a continuance of the trial date. Following a hearing on March 14, 1985, this motion was granted and Doyle was permitted to withdraw as Barcelon's counsel.
At trial Barcelon represented himself and was found guilty on two of the three counts brought against him. He now appeals these convictions asserting that he was deprived of the effective assistance of counsel in violation of the Sixth Amendment, because the district court refused Barcelon's request for appointment of counsel. The appeal centers on whether the district court sufficiently inquired into Barcelon's financial ability to retain counsel. 2
Barcelon's sworn financial statement showed that he had assets of $600 in cash, personal property valued at $3000, $20,000 owed to him "from gambling," and an insurance policy with a $1000 cash value. His liabilities included a $5,500 debt to a sign company, a $14,000 loan from his father, an $8,000 loan from his mother, and a $6,650 debt to Doyle for legal services rendered. Barcelon stated he was unemployed at the time he filed the affidavit, and had not been employed since the previous September. He listed prior and continuing seasonal employment from mid-March to September in sales for a sprinkler and landscaping company, and stated the employment would recommence "in approximately March, 1985," i.e., the current month. He further stated that "there is no income on the date of this affidavit." Monthly income, when employed, was listed as $1,500, although a notation was added that "wages vary."
For expenses, the financial statement listed $250 monthly rental paid, "when employed," to his mother, with whom he lived, $300 per month for food, a $45 monthly life insurance payment, and "$400.00 per month child support (actually pays $200 because one child resides with defendant)." R.Supp.Vol. I, Tab 1 at 3. According to Barcelon's statement, these monthly expenses totalled $995, but that amount included $400 for child support which was explained by the accompanying note to actually be $200. Thus, total monthly payments were only $795 out of expected income of $1,500. The problem was that Barcelon's scheduled trial would be expected to interfere with his employment, but the record does not disclose to what extent.
After denying Barcelon's request for appointed counsel, the district court explained:
R.Supp.Vol. II at 4-5. The court made no findings or further explanation of the basis for its decision, including whether or not it was relying on Barcelon's assets, or expected income, or a combination of the two. Therefore, our review is necessarily restricted to Barcelon's sworn financial statement.
Under the Act the applicant bears the burden of persuading the court that he is financially unable to obtain counsel. See United States v. Harris, 707 F.2d 653, 660 (2nd Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); United States v. Peister, 631 F.2d 658, 662 (10th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981); United States v. Anderson, 567 F.2d 839, 840 (8th Cir.1977); United States v. Ellsworth, 547 F.2d 1096, 1098 (9th Cir.1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977); United States v. Kaufman, 452 F.2d 1202 (4th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972). And, appellate courts are required to employ the clearly erroneous standard in reviewing trial court determinations as to whether an applicant qualifies for counsel. See United States v. Binder, 794 F.2d 1195, 1201 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 234, 93 L.Ed.2d 159 (1986); Harris, 707 F.2d at 660; United States v. Deutsch, 599 F.2d 46, 49 n. 5 (5th Cir.), cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); United States v. Rubinson, 543 F.2d 951, 964 (2nd Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976); United States v. Kelly, 467 F.2d 262, 266 (7th Cir.1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973). However, in this instance our review is directed to the adequacy and manner of the inquiry by the district court as the foundation for its determination, rather than to the court's conclusion. Therefore, the clearly erroneous standard does not apply.
The Act was passed by Congress in 1964 to insure that defendants who are financially unable to afford trial services necessary to an adequate defense are provided them in accordance with the Sixth Amendment to the United States Constitution. Application of the Act carries both a statutory and a constitutional mandate. See Anaya v. Baker, 427 F.2d 73, 75 (10th Cir.1970) ( ); see also United States v. Harris, 707 F.2d 653, 662 (2nd Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983) ( ); United States v. Cohen, 419 F.2d 1124, 1126 (8th Cir.1969).
Counsel must be appointed under the Act if the court is satisfied after "appropriate inquiry" that the defendant is "financially unable to obtain counsel." 3 "Appropriate inquiry" necessarily varies with the circumstances presented, and no one method or combination of methods is required. 4 Investigation of the applicant's assets, liabilities, income and obligations alone may constitute sufficient inquiry. See, e.g., United States v. Kelly, 467 F.2d 262, 265-66 (7th Cir.1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973); United States ex rel. Beard v. Rundle, 434 F.2d 588, 589 (3rd Cir.1970); Ybarra v. Wolff, 571 F.Supp. 209 (D.Nev.1983); United States v. Gipson, 517 F.Supp. 230 (W.D.Mich.1981). But courts have taken into account a broad range of additional considerations where warranted. 5
In cases such as this, where the bare listing of the applicant's financial position discloses marginal liquidity, two such additional considerations are suggested by the authorities. The first deals with an applicant's accessibility to listed assets for purposes of paying counsel. Where it appears that income is insufficient to pay counsel and that assets may be illiquid or otherwise unavailable, the court should expand its inquiry to explore the availability of the assets. See, e.g., United States v. Martin-Trigona, 684 F.2d 485, 490 (7th Cir.1982) ( ); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir.1969) ( ); cf. Wade v. Lockhart, 763 F.2d 999 (8th Cir.1985) ( ).
Barcelon's principal asset was $20,000 owed him "from gambling." Barcelon contends that because the debt was still outstanding, and because gambling debts by their very nature are likely not to be paid, this money was unavailable to aid him in obtaining counsel. The...
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