U.S. v. Gallop, 86-5175

Citation838 F.2d 105
Decision Date28 January 1988
Docket NumberNo. 86-5175,86-5175
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ishmael GALLOP, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Robert Leon Pierson, for defendant-appellant.

Elizabeth Hartley Trimble, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., on brief), for plaintiff-appellee.

Before RUSSELL, MURNAGHAN and ERVIN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Ishmael Gallop appeals from a conviction after a jury trial on a count of bank larceny in violation of 18 U.S.C. Sec. 2113(b). On April 15, 1986, a federal grand jury in the District of Maryland indicted Ishmael Gallop. Anthony R. Gallagher, a public defender, was designated as the defendant's counsel. Magistrate Paul M. Rosenberg arraigned the defendant on April 26, 1986 at which time he pled not guilty. Subsequently, Gallagher and the United States Attorney's Office worked out a plea agreement and the rearraignment was set for June 13th.

At the rearraignment, Gallagher advised the district court that his client wished to strike the appearance of the federal public defender's office. The defendant had complained to Gallagher that the office had not represented his interests adequately. Gallagher stated that there were obvious disagreements between himself and the defendant, and he felt that he would be unable to work with the defendant any longer as counsel. Finding that an irreconcilable difference existed, the court discharged the public defender. The court also granted a motion to postpone the trial.

On June 19, 1986, the court appointed James F. Garrity to represent the defendant pursuant to the Criminal Justice Act. Garrity filed a motion to suppress the defendant's confession, challenging the voluntariness of the statement. The district judge denied the motion after a hearing on September 11, 1986. The suppression issue was reopened for additional testimony on September 18th and September 22nd, but was again denied.

On September 18th, Garrity informed the court that the defendant no longer wished to be represented by him. Garrity told the court that the relationship between himself and Gallop had entirely broken down. The defendant stated that his second attorney had done an inadequate job because he should have sought a postponement of the first suppression hearing until all parties were present. The district judge noted that the defendant had previously discharged his first counsel and indicated his concern that the defendant was attempting to obstruct the orderly procedure of the court. Under the circumstances, the district judge gave the defendant the choice of proceeding pro se or continuing with his second attorney. When the defendant indicated that he did not know how to represent himself, the court said that it would proceed with Garrity as counsel.

Garrity then indicated that he had another problem relating to his representation of the defendant but that the problem could not be revealed because of the confidential relationship between attorney and client. He represented that the problem might arise at trial. The district judge noted that the issue could be taken up at trial if it ever arose.

On September 22nd, a day before trial, the defendant renewed his request for a new attorney which was again denied. The district judge noted that Garrity had done a competent job representing the defendant. The defendant then indicated that he had no choice but to represent himself. The court asked Garrity to remain as a backup counsel.

On the day of trial, the defendant requested a postponement stating that he had not had adequate time to prepare a defense. The court denied the motion for postponement and again denied the request for another attorney.

The defendant was convicted by a jury of bank larceny and was sentenced to a term of incarceration of ten years and an imposition of $50 special assessment.

I.

An essential element of the Sixth Amendment's protection of right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). However, the right to counsel of defendant's choosing is not absolute. Sampley v. Attorney General of North Carolina, 786 F.2d 610, 612-13 (4th Cir.1986), cert. denied, --- U.S. ----, 106 S.Ct. 3305, 92 L.Ed.2d 719 (1986). Such right must not obstruct orderly judicial procedure and deprive courts of the exercise of their inherent power to control the administration of justice. Id. at 613; United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir.1974). An indigent defendant, moreover, has no right to have a particular lawyer represent him and can demand a different appointed lawyer only with good cause. United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing state interest in proceeding on schedule. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983); Sampley, 786 F.2d at 613.

In evaluating whether the trial court abused its discretion in denying defendant's motion for substitution of counsel, the First and Ninth Circuits have held that the appellate courts should consider the following facts: Timeliness of the motion; adequacy of the court's inquiry into the defendant's complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Allen, 789 F.2d at 92; United States v. Whaley, 788 F.2d 581, 583 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). In the present case, the motion for substitution of counsel was made only five days prior to trial. As the trial court noted, the defendant had already been granted a similar motion which resulted in the trial being postponed for three months. In United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), the court held that the trial court did not abuse its discretion in denying a motion by an indigent defendant to substitute counsel four days before commencement of trial when there was little or no assurance that substitute counsel would be adequately prepared in time, and the defendant had been represented throughout by the federal public defender's office. Id. at 913-14. Likewise, the record in this case indicates a lack of any assurances by the defendant that delay would not result from such substitution. A request for change in counsel cannot be considered justifiable if it proceeds from a transparent plot to bring about delay. See Morris v. Slappy, 461 U.S. at 13, 103 S.Ct. at 1617.

The record also indicates that the district judge adequately inquired into the defendant's complaint with regard to his second counsel. According to the defendant's testimony, he sought a substitution of counsel because of inadequate representation by Garrity. The defendant asserted that if Garrity had been adequately representing him, he would have asked for a postponement of the suppression hearing until all witnesses were present. The defendant has clearly stated that he was not seeking a new counsel "because no personal conflict or whatsoever" (sic). The failure or refusal by Garrity to seek postponement of the hearing clearly did not constitute inadequate representation, especially in light of the fact that the remaining law enforcement witnesses to the defendant's confession testified at subsequent suppression hearings. The district judge, thus, acted within his discretion in rejecting the line of argument advanced and finding that Garrity's representation had been competent.

More troublesome, however, is the statement by the defense counsel that he believed that the relationship between himself and the defendant had entirely broken down and that there were additional problems in continuing the representation that could not be disclosed because of the confidential relationship. The district judge, with the concurrence of Garrity, decided that the issue could be taken up at trial if it ever arose. The failure by the trial court to proceed further to resolve the issue was not an abuse of discretion, especially when there is no evidence in the record to indicate that the question was reasserted during the trial, see Maynard v. Meachum 545 F.2d 273, 278 (1st Cir.1976); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir.1972), or that it impaired Garrity's performance as stand-by counsel.

There is also no evidence in the record to indicate that the conflict between Garrity and the defendant was so great that it resulted in total lack of communication. Indeed, Garrity assisted the defendant during the trial and cross-examined the FBI agent who had witnessed the defendant's confession.

II.

The defendant, in addition to the objections already dealt with, also complains that the trial court did not properly determine on the record whether the waiver was intelligent, knowing, and voluntary. He argues that the trial court's failure to examine the effectiveness of the waiver denied him the Sixth Amendment right to counsel.

As other circuits have held, once the trial court has appropriately determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continuing representation by his existing counsel and appearing pro se. United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); McKee v. Harris, 649 F.2d 927, 930-31 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); Wilks v. Israel, 627...

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