U.S. v. Burton, 76-1839

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation189 U.S. App. D.C. 327,584 F.2d 485
Docket NumberNo. 76-1839,76-1839
PartiesUNITED STATES of America v. Andrew F. BURTON, Appellant.
Decision Date24 August 1978

Jacob A. Stein, Washington, D. C., for appellant.

James F. Hibey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Jason D. Kogan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROBINSON and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, * Chief Judge, United States Court of Customs and Patent Appeals.

Opinion for the court filed by MacKINNON, Circuit Judge.

Dissenting opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

MacKINNON, Circuit Judge:

On October 17, 1974 appellant Burton was charged with thirty-five counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a). 1 Seven counts were struck on the Government's motion, and a jury trial commenced on the remaining twenty-eight counts on April 27, 1976. On May 10, the jury returned a verdict finding appellant guilty as charged on the twenty-eight counts.

On April 26, 1976, the date which was originally set for trial, Dovey Roundtree, one of two counsel retained by appellant, filed a motion to withdraw which was granted by the district court. At the same time, appellant moved for a thirty- to sixty-day continuance for the purpose of seeking counsel to replace Roundtree. The court denied this motion, and it is from this ruling that defendant appeals. The issue presented to us is whether the district court's ruling deprived appellant of his right to choice of counsel thereby violating the Sixth Amendment's guarantee of "the Assistance of Counsel for (the accused's) defence."


The Sixth Amendment 2 guarantees that a person brought to trial in any federal court must be afforded the right to the assistance of counsel before he can be validly convicted. 3 The importance of counsel's function to the effective operation of our adversary system is unquestioned. 4 An essential element of the Sixth Amendment's protection of the right to the assistance of counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. As the Supreme Court stated in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), "(i)t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." 287 U.S. at 53, 53 S.Ct. at 582. 5 An accused who is financially able to retain counsel must not be deprived of the opportunity to do so. 6

Yet, the right to retain counsel of one's own choice is not absolute. 7 The right "cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same." 8 The public has a strong interest in the prompt, effective, and efficient administration of justice; the public's interest in the dispensation of justice that is not unreasonably delayed has great force.

In this case, appellant challenges the denial of his motion for a continuance to replace Roundtree, one of his two retained attorneys. It is firmly established that the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application, and is not subject to review absent a clear abuse. 9 Yet when the continuance is sought to retain or replace counsel, the defendant's Sixth Amendment right to the assistance of counsel is implicated. 10 In such circumstances, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice.

Thus, the trial judge may not insist on such expeditiousness that counsel for the defendant lacks reasonable time to prepare for trial; stripping away the opportunity to prepare for trial is tantamount to denying altogether the assistance of counsel for the defense. On the other hand, the defendant cannot insist on an unnecessary delay or a delay of unreasonable proportions. The condition of most criminal dockets demands reasonably prompt disposition of cases; when cases are set far in advance for a day certain, an unreasonable delay in one case only serves to delay other cases, and this carries the potential for prejudice to the rights of other defendants.

Given these countervailing considerations, and recognizing that the court has the right to control its own docket to require that cases proceed in an orderly and timely fashion, the conclusion is inescapable that the court in exercise of a sound discretion may grant or deny motions for continuances. As stated by the Court in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964),

The matter of a continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

376 U.S. at 589, 84 S.Ct. at 849.

We recognize that the right to choice of counsel devolves not only from the due process clause of the Fifth Amendment but also from the more stringent and overlapping standards of the Sixth Amendment. 11 This, however, does not alter the fact that the determination of whether the defendant's right to select his counsel was protected depends upon the circumstances of the particular case. Once a fair and reasonable initial opportunity to retain counsel has been provided, and adequate counsel obtained, the court, mindful of the accused's interest in having counsel in whom he has confidence, is free to deny a continuance to obtain additional counsel if, upon evaluation of the totality of the circumstances, it reasonably concludes that the delay would be unreasonable in the context of the particular case.

What is a reasonable delay necessarily depends on all the surrounding facts and circumstances. Some of the factors to be considered in the balance include 12: the length of the requested delay 13; whether other continuances have been requested and granted 14; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court 15 whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived 16; whether the defendant contributed to the circumstance which gives rise to the request for a continuance 17; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel 18; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature 19; the complexity of the case 20; and other relevant factors which may appear in the context of any particular case.

All of these factors are the appropriate subject of the trial court's attention when a continuance is sought. How the balance operates to obtain a result must depend on the circumstances of the particular case. 21 For example, a long delay and a great deal of inconvenience may be tolerated if defendant's only counsel is suddenly lost by some unforeseen circumstance in a very complex case. However, only a slight inconvenience or delay may be sufficient grounds for rejecting defendant's request for a continuance to enable him to retain an additional counsel in a simple case where he has already retained three or four other attorneys.

The evaluation of appellant's need for additional counsel, and the balance between the right to select counsel and the public's interest in the orderly administration of justice must all be carefully and delicately weighed; but sitting as a court of review, we afford substantial discretion to the trial court in judging that balance, and we will not reverse absent a showing of a deprivation of the defendant's right.


Upon consideration of the standard outline above with respect to the instant facts, we find that the district court did not abuse its discretion, and did not violate defendant's Sixth Amendment rights. Before engaging in this analysis, we set forth the background of this case, which is essential to a full understanding of the legal issues. 22

Appellant is a physician, and has taught medicine and practiced in the District of Columbia since 1939. Appellant was initially charged in May, 1974, with nineteen counts of unlawful distribution of controlled substances. The essence of the charges was that appellant had in effect acted as a pusher in selling preludin and ritalin to numerous persons by writing prescriptions on mere requests Without giving proper physical examinations or taking proper medical histories. When he was first indicted, he hired Allen Hutter as his Sole legal counsel. 23

Sometime thereafter, appellant retained an additional counsel, Ms. Dovey Roundtree, at Hutter's suggestion when appellant indicated he desired additional counsel. 24 Although the evidence does not indicate the precise date when Roundtree was retained, 25 Roundtree was present when defendant was brought up for arraignment on October 23, 1974. 26 It is fair to say that from the October 23, 1974 proceeding until Roundtree requested to withdraw from the case, Hutter acted as lead counsel. At the October 23 proceeding, Hutter made the...

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