U.S. v. Bertoli, 92-5182

Citation994 F.2d 1002
Decision Date07 May 1993
Docket NumberNo. 92-5182,92-5182
PartiesUNITED STATES of America, Appellee v. Richard O. BERTOLI Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello, court-appointed standby counsel for defendant Richard O. Bertoli, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

H. Curtis Meanor (argued), Marianne C. Tolomeo, Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello, Newark, NJ, for appellant.

Edna B. Axelrod, Michael Chertoff, U.S. Attys., R. David Walk, Jr. (argued), Asst. U.S. Atty., Newark, NJ, for appellee.



HUTCHINSON, Circuit Judge.

Appellant law firm, Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello ("Podvey, Sachs" or "firm"), 1 seeks to appeal an order of the United States District Court for the District of New Jersey appointing the firm standby counsel for its former client, Richard Bertoli ("Bertoli"), in the government's criminal action against him. In the course of pretrial proceedings in that action, Bertoli discharged Podvey, Sachs and elected to proceed pro se. He does not qualify for indigent status. Among other things, the order requires the firm to serve without compensation, requires the presence of a Podvey, Sachs attorney at all pretrial proceedings and dictates the presence of two named partners of the firm throughout the trial which is estimated to take two to four months. On the merits, Podvey, Sachs presents the issue in the form of a dilemma, contending that the district court lacks power to either compel it to provide free legal services for a client who can afford a lawyer but chooses to represent himself, or to compel the client to pay for services he does not want. The firm, nevertheless, represents that it remains willing to provide some standby services free of charge. It would have us treat them as freely given pro bono. Podvey, Sachs is not willing, however, to provide free standby counsel for the duration of the trial.

The firm asserts that this Court has appellate jurisdiction under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The government contends the order is not appealable under Cohen nor otherwise reviewable until a final order is entered holding Podvey, Sachs in contempt. We agree with the government that Cohen does not apply because the order is subject to review on appeal from a final order of contempt. Nevertheless, because the order raises fundamental, unsettled issues concerning a district court's inherent power over the attorneys who practice before it we will treat the firm's appeal as a petition for a writ of mandamus or prohibition.

So treated, we hold that the district court has inherent power to compel attorneys who have entered an appearance for a criminal defendant in a complex criminal case to continue to serve, but as standby counsel for a client who later exercises his right to proceed pro se. We also hold that the extent of the services that can be required, though not unlimited, is within the sound discretion of a district court; but in exercising its discretion the district court should balance (1) the stage of the proceeding at which the defendant makes his election, whether it be before, during or after trial; (2) the complexity of the case; (3) the disruptive effect an uncounseled defendant may have on his own rights and the rights of any co-defendants to a fair and speedy trial; and (4) the extent to which performance of the services required will adversely affect both the attorney called upon to perform them and his firm as well as their professional responsibilities to other clients.

After considering the factors set out above, we are unable to say, under the circumstances of this case, that the district court clearly abused its discretion when it decided Podvey, Sachs' offer, which did not provide for an attorney's presence in the courtroom during trial, was inadequate. We do, however, hold that the district court clearly abused its discretion when it added to Podvey, Sachs' offer a requirement that the firm provide an attorney at all pretrial proceedings including the taking of depositions in the Cayman Islands and have one of two named partners present in court throughout the trial. Therefore, we will issue a writ prohibiting the district court from requiring the firm to send an attorney to the Cayman Islands to act as standby counsel during the upcoming depositions there or from compelling either Franklin H. Sachs ("Sachs") or H. Richard Chattman ("Chattman") to be present throughout Bertoli's trial. Finally, we will direct the district court to modify its order to provide that it is expressly without prejudice to the firm's right to seek compensation for its services upon conclusion of the trial and remand the case for further proceedings consistent with this opinion.


On June 16, 1989 a federal grand jury returned an indictment against Bertoli, Leo Eisenberg ("Eisenberg") and Richard Cannistraro ("Cannistraro") charging them with various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.A. § 1961 et seq. (West 1984 & Supp.1992). A six count superseding indictment was returned on September 29, 1989. Prior to arraignment and before he had secured representation, Bertoli informally moved for recusal of the district court judge assigned to the case. Bertoli then retained Podvey, Sachs as counsel and Attorney Sachs formally renewed the recusal motion. At his arraignment on November 6, 1989, Bertoli was represented by Attorneys Sachs and Chattman, who entered appearances for the firm. Also at arraignment, the government served the firm with a motion for leave to take depositions in the Cayman Islands pursuant to Federal Rule of Criminal Procedure 15.

Extensive pretrial proceedings followed. Lawyers from Podvey, Sachs represented Bertoli from November 1989 through August 1991 in all aspects of them. Among other things they sought discovery of matters related to Bertoli's recusal motion and also moved for a transfer of the motion to a different district court judge. The court denied the motions in an order dated March 22, 1990. Bertoli's motion for reconsideration was denied on April 12, 1990. Bertoli through Podvey, Sachs then filed a petition for mandamus with the Court, which we denied on May 3, 1990. A second recusal motion filed by co-defendant Cannistraro, which Bertoli joined, was denied on August 16, 1990. We affirmed that order on October 15, 1990.

Meanwhile, on June 20, 1991 Sachs wrote to the district court asking when oral argument might be had on certain other pretrial motions that were filed for Bertoli. Responding the next day, the district court stated oral argument was not a necessity in light of the extensive briefing the parties had already submitted, but because Sachs had asked for it, oral argument would be scheduled for July 3, 1991. In its response, the district court gratuitously noted that it took the parties three to four months to prepare their motions and supporting briefs, but that it was able to accommodate Sachs' request, made a little more than five and one-half weeks after the motions were submitted, to schedule a hearing "at the earliest possible opportunity so as to avoid any unnecessary delay." Letter dated June 21, 1991, Appendix (App.) at 104-05.

On June 24, 1991 Sachs withdrew Bertoli's request for oral argument on the pretrial motions. In a letter dated June 25, 1991 the district court ordered all defendants, accompanied by trial counsel, to come to court for the July 3, 1991 hearing. Sachs had a conflict 2 and advised the court by letter on June 26, 1991 that another Podvey, Sachs partner would be at the hearing in his place, although he intended to be Bertoli's trial counsel. The district court responded the same day with a requirement that Sachs personally appear, stating "[b]ecause I have specific inquiries to address to you, the appearance of your partner ... will not suffice. May I suggest he take your place at the [other] meeting...." Letter dated June 26, 1991, App. at 110. Podvey, Sachs immediately filed a petition for a writ of mandamus and asked this Court to stay the district court order compelling Sachs' attendance. On July 2, 1991 the Honorable Leonard I. Garth, sitting as a single judge of this Court, refused to stay the hearing but did stay the part of the court's order that required Sachs to appear personally. 3

Immediately before the Cayman Islands depositions were scheduled to begin, Bertoli asked the district court for leave to proceed pro se during the depositions but otherwise to continue with Podvey, Sachs as his counsel. The court held a hearing on Bertoli's request on September 3, 1991, one day before the depositions were to begin. At this hearing Bertoli was represented by Marianne C. Tolomeo ("Tolomeo"), a senior associate with Podvey, Sachs. The district court questioned Tolomeo about Sachs' and Chattman's whereabouts and the basis for Bertoli's motion to proceed pro se. The court stated "if Mr. Bertoli does go pro se and I permit that, I will appoint standby counsel and it will be one of Mr. Sachs or Mr. Chapman [sic] to go down to the Cayman Islands." App. at 166. The district court advised Bertoli that it would not permit Bertoli to represent himself at the depositions and also continue with counsel at trial. Bertoli chose to proceed pro se. Upon questioning by the court, Bertoli testified that he had already acted pro se in "eight to nine cases" involving securities litigation. Id. at 184. Bertoli also said that he chose to proceed pro se despite an ability to pay counsel and that he had no problem with the firm's representation.

The district court found that Bertoli's election was knowing, intelligent and informed and ordered Podvey, Sachs to act as standby counsel until the Cayman Islands depositions were concluded,...

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