U.S. v. Hoffman

• Decision Date: 17 May 1984
• Docket Number: No. 82-5538,82-5538
• Citation: 733 F.2d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry J. HOFFMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 596

733 F.2d 596

UNITED STATES of America, Plaintiff-Appellee, v. Barry J. HOFFMAN, Defendant-Appellant.

No. 82-5538.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 1983.

Decided Feb. 14, 1984.

Rehearing and Rehearing En Banc Denied May 17, 1984.

Robert P. Weidner, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Lynn M. Pearlstein, Phoenix, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, TANG, and NELSON, Circuit Judges.

WALLACE, Circuit Judge:

Hoffman appeals from the district court's denial of his motion for relief pursuant to 28 U.S.C. Sec. 2255. He contends that he was deprived of his sixth amendment right to effective assistance of counsel. We affirm.

I

Hoffman was indicted with 21 others in a drug conspiracy prosecution. He, along with others, was convicted of conspiracy to possess with intent to distribute narcotics and of using a communication facility to further a conspiracy. The trial in the United States District Court for the District of Arizona began on June 5, 1979 and ended on August 24, 1979. A motion for a new trial was denied on October 2, 1979. He was sentenced on October 15, 1979.

Vernell represented Hoffman in pretrial proceedings to remove Hoffman from Florida, at trial, and in the posttrial motion for a new trial. At the time trial began, Vernell was a member of the Florida State Bar and the bar of the United States District Court for the Southern District of Florida. He was permitted to represent Hoffman in the District of Arizona on the basis of his out-of-state bar membership. ¹

Effective July 16, 1979, which was during the trial, Vernell was suspended from the Florida State Bar for a period of six months. Florida Bar v. Vernell, 374 So.2d 473, 476 (Fla.1979) (per curiam). The bases for his suspension were misdemeanor convictions for failure to file income tax returns and conduct prejudicial to the administration of justice arising from his recommendation to two clients to plead guilty and later claim their plea was void because of his conflict of interest in the case. 374 So.2d at 474-76. On November 21, 1979, subsequent to Hoffman's sentencing, Vernell was suspended from practice before the District of Arizona. Vernell was reinstated as a member of the Florida State Bar on September 12, 1980.

On direct appeal, we affirmed the convictions of the seven remaining defendants, including Hoffman, in an unpublished decision but declined to decide Hoffman's ineffective assistance of counsel claim. Hoffman then filed for section 2255 relief. After an evidentiary hearing on Hoffman's allegation that he was denied the effective assistance of counsel, the district court denied relief. Hoffman again appeals.

II

Under the sixth amendment, Hoffman was entitled to the assistance of counsel unless he knowingly, intelligently, and voluntarily waived his right to counsel. Hoffman makes three arguments in support of his claim that he was denied his right to counsel. ²

A.

First, Hoffman argues that Vernell was not "counsel" within the meaning of the sixth amendment. As a corollary to this argument, Hoffman asserts that the judge who presided at his trial would have been obligated to suspend Vernell immediately if he had been aware that Vernell had been suspended from the Florida State Bar.

The local rules for the District of Arizona require an attorney subjected to disciplinary action by the bar of another jurisdiction to report the matter to the court. D.Ariz.R. 7(b). The rules also provide that:

Where it is known to the court that any member of its bar has been suspended or disbarred from practice by any court of competent jurisdiction, that fact will be sufficient ground for his removal or suspension by this court, and he will be forthwith suspended from practice before this court, and unless, upon notice mailed to him at the address shown in the clerk's records, he shows good cause to the contrary within forty (40) days, he will be disbarred.

Id. 7(c).

Despite the mandatory nature of the language of rule 7(c), the Supreme Court has held that an attorney disbarred from a state bar association may not be summarily disbarred from practice before a federal court even if the state bar membership was the predicate upon which the lawyer was admitted to the federal court. In Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957), the Court reversed a decision striking an attorney from a federal district court's roll of attorneys. The district court rules provided, as in the case before us, that an attorney disbarred from another jurisdiction "will be forthwith suspended." Id. at 281-82, 77 S.Ct. at 1276. Nevertheless, the Court concluded that "[w]hile a lawyer is admitted into a federal court by way of state court, he is not automatically sent out of the federal court by the same route." Id. at 281, 77 S.Ct. at 1276. Subsequently, in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, modified, 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380 (1968) (omitting taxation of costs), the Court reaffirmed its decision that a state disbarment is not conclusively binding on a federal court and that an attorney facing disbarment from a federal court is entitled to procedural due process.

Therefore, we are confronted with the issue whether representation by an attorney suspended from his home state bar association during trial, but not suspended from practice before the federal district court until after trial, qualifies as representation by counsel within the sixth amendment. Before addressing that issue, however, we wish to make it clear that we in no way condone Vernell's failure to inform the court of his Florida suspension. Any discipline for that act would occur in a separate proceeding. We are confronted here only with Hoffman's sixth amendment claim and not consideration of the proper sanctions to be imposed on Vernell.

We start from the premise that the sixth amendment guarantee of counsel means representation by an attorney admitted to practice law. Solina v. United States, 709 F.2d 160, 166-67 (2d Cir.1983); United States v. Wilhelm, 570 F.2d 461, 464-65 (3d Cir.1978); United States v. Irwin, 561 F.2d 198, 200 (10th Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); Achtien v. Dowd, 117 F.2d 989, 992 (7th Cir.1941); Turner v. American Bar Association, 407 F.Supp. 451 (W.D.Wis.1975), aff'd sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir.1976) (without opinion) & Pilla v. American Bar Association, 542 F.2d 56 (8th Cir.1976); see United States v. Wright, 568 F.2d 142, 142-43 (9th Cir.1978); United States v. Kelley, 539 F.2d 1199, 1203 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). But see United States v. Whitesel, 543 F.2d 1176 (6th Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). The question before us is whether suspension from practice before the predicate state bar automatically results in a lack of representation by counsel as guaranteed by the sixth amendment. Hoffman cites no precedent that convinces us that a per se rule is warranted and we refuse to establish one on the facts of this case.

In the related situation where a defendant was unknowingly represented by a person posing as a lawyer, but who had never been admitted to membership in any bar, several courts have applied a per se rule and found that the right to counsel was violated. E.g., Solina v. United States, 709 F.2d at 168 (graduate of accredited law school who had failed New York bar examination twice and had not been admitted to any other bar); Harrison v. United States, 387 F.2d 203, 212-14 (D.C.Cir.1967) (reversing one defendant's conviction because the government used the defendant's statements elicited during earlier trial when the defendant was represented by ex-convict posing as a lawyer), rev'd on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Huckelbury v. State, 337 So.2d 400 (Fla.Dist.Ct.App.1976) (law school graduate who had been refused admittance to the Florida State Bar for failure to meet standards of character and not a member of any other bar); People v. Felder, 47 N.Y.2d 287, 391 N.E.2d 1274, 418 N.Y.S.2d 295 (1979) (never a member of any bar and not a law school graduate; but refusing to extend per se rule to representation by person who has been disbarred or who is licensed in another jurisdiction); see also People v. Cox, 12 Ill.2d 265, 146 N.E.2d 19 (1957).

Those cases differ from this, a suspension case. Vernell was a duly licensed Florida lawyer at the start of Hoffman's trial and was not suspended from practice before the District of Arizona until after the trial's completion, after the motion for a new trial was ruled upon, and after sentencing. The record shows that Vernell subsequently was reinstated to the Florida State Bar. Thus, we are confronted with representation by an attorney suspended for a set term from his home state bar during a federal district court trial, and not, as in the cases cited above, representation by a person never qualified to practice law in any jurisdiction. Notably, the Second Circuit took care to expressly limit its holding in Solina v. United States, stating that:

[W]e do not intimate that any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment. We limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character[.]

709 F.2d at 167 (footnote and citation omitted).

In contrast to the cases finding a sixth amendment violation because the defendant's...