U.S. v. Martin-Trigona, MARTIN-TRIGON
| Decision Date | 16 July 1982 |
| Docket Number | D,MARTIN-TRIGON,No. 80-2428,80-2428 |
| Citation | 684 F.2d 485 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony Robertefendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George B. Collins, Collins & Amos, Chicago, Ill., for defendant-appellant.
Warren E. White, Danville, Ill., for plaintiff-appellee.
Before PELL and BAUER, Circuit Judges, and GRADY, District Judge. *
Defendant-appellant Anthony Robert Martin-Trigona was indicted on April 8, 1980, in the United States District Court for the Central District of Illinois. The indictment charged him with eight counts of mail fraud 1 in connection with his attempts to obtain a loan from the Citizens Building Association, Urbana, Illinois. The indictment alleged that Martin-Trigona established a fraudulent chain of title for property at 605 Indiana Street, Urbana, Illinois, which he was purchasing under an installment contract. Purportedly, Martin-Trigona obtained a $42,800 mortgage on the property from the Citizens Building Association using the fraudulent chain of title and untruthfully warranting that the real estate was free of all encumbrances. Each count alleged that Martin-Trigona executed a mailing in perpetration of the fraudulent scheme. The government dismissed count VIII before trial, and the jury convicted Martin-Trigona, who defended pro se, of the remaining seven counts.
Martin-Trigona challenges his conviction on several grounds, but principally he contends that the judgment against him must be reversed because he was denied the effective assistance of counsel in violation of the sixth amendment by being required to defend pro se against his will. We agree, and, accordingly, we reverse the judgment of the district court and remand this case for a new trial.
Martin-Trigona was indicted on April 8, 1980, in the Central District of Illinois. On April 16, 1980, he filed a motion to continue arraignment and transfer the case to the Northern District of Illinois. The motion papers were signed by Paul Bradley, a Chicago attorney. 2 Bradley, however, had not filed an appearance on Martin-Trigona's behalf. The motion to continue arraignment was denied, and Martin-Trigona was arraigned in Danville, Illinois on April 17, 1980. He appeared pro se, but informed the magistrate that he intended to retain counsel and that Paul Bradley would be on "the counsel team." Tr. Apr. 17, 1980 at 5.
On May 19, 1980, Bradley filed a "Special and Limited Appearance" for the purpose of filing a motion to transfer the case against Martin-Trigona to the Northern District of Illinois. 3 The appearance indicated that "(i)n the event the motion to transfer is denied, counsel's appearance will and should be deemed to be withdrawn in accordance with the special and limited terms of the appearance stated herein."
Bradley argued the motion to transfer before the Honorable Robert D. Morgan on May 21, 1980. He stated that he would be unable to represent Martin-Trigona unless the case were transferred because he had other matters pending in the Northern District, making it impossible for him to go to trial in the Central District. Moreover, even if he were free to relocate to the Central District, Martin-Trigona was financially unable to pay a retainer sufficient to cover the expenses that Bradley would incur if he were to establish a temporary residence and office in the Central District.
Judge Morgan denied the motion to transfer and refused to permit Bradley to withdraw his appearance. Judge Morgan ruled that Bradley was Martin-Trigona's defense counsel until someone else appeared for him. Tr. May 21, 1980 at 32-33. Judge Morgan refused to appoint Bradley to represent Martin-Trigona even though Martin-Trigona informed the court that Bradley had not been retained. Id. at 34. 4
Martin-Trigona filed a pro se appearance on May 27, 1980. He averred that he had been unable to retain counsel in the Central District and that he was "being forced involuntarily to represent himself because of the refusal ... to transfer (the) case to the Northern District of Illinois for trial." He informed the court that his inability to obtain counsel was making it difficult for him to prepare a defense because he lacked knowledge of and experience with federal criminal law or procedure.
On July 14, 1980, Martin-Trigona moved for a continuance of trial. He averred that although he was not indigent, he was unable to retain counsel because his assets were encumbered. He moved for a 180 day continuance to provide him with sufficient time in which to liquidate his assets to enable him to retain counsel.
The district court, the Honorable Cale J. Holder presiding, 5 conducted a pretrial hearing on July 14, 1980. Martin-Trigona, appearing pro se, informed the court that he desired to be represented by counsel, that he had advertised unsuccessfully for counsel in the Central District, and that he was attempting to liquidate assets in order to afford to retain counsel. Tr. July 14, 1980 at 56-58. He stated unequivocally that "(i)t is my preference, and has been since day one, and it will continue to be, to have the assistance of counsel." Id. He also requested the court to order the government to compensate any counsel he might retain from Criminal Justice Act funds. He, in turn, would reimburse the government after he liquidated some assets. Id. at 61-62 & 65. The court postponed ruling on Martin-Trigona's motions until July 21, 1980.
On July 21, 1980, Martin-Trigona filed a motion requesting the court to require the government to advance him funds for the prepayment of legal fees. He stated that he was not seeking "appointed counsel within the terms of 18 U.S.C. § 3006A because (he was) not indigent." The motion papers indicated that the relief sought was needed only if the case was not transferred to the Northern District because Paul Bradley was willing to represent Martin-Trigona on credit if the case were transferred.
Martin-Trigona appeared pro se at the July 21, 1980, hearing before Magistrate Larry Lessen. In the motions pending before the court, Martin-Trigona sought either of three types of relief: (1) transfer of the case to the Northern District; (2) government prepayment of a $20,000 retainer to be reimbursed by Martin-Trigona; or (3) continuance of the trial for 180 days to permit him to liquidate assets to be used to retain counsel. He informed the court that he did not have counsel, but that he wanted to be represented by a lawyer and was attempting to retain counsel. Tr. July 21, 1980 at 6 & 107. Magistrate Lessen recommended that the trial court deny Martin-Trigona's motions, and trial was scheduled to commence on August 4, 1980.
On July 22, 1980, Martin-Trigona was found in contempt of court in an unrelated civil case pending in the Northern District and ordered committed to jail as a recalcitrant witness. See Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980), in which we affirmed the contempt order. On July 29, 1980, the order of confinement was modified to permit Martin-Trigona's immediate release between 6:00 a.m. and 9:00 p.m. to prepare for the mail fraud trial. He was ordered completely released from August 3 until the end of the trial.
On August 4, 1980, Martin-Trigona filed a renewed motion for continuance, and James Voyles, an Indianapolis attorney, filed a limited appearance for the purpose of moving for continuance. Judge Holder conducted a hearing on this motion before impaneling a jury. Voyles informed the court that Martin-Trigona had contacted him the day before and asked him to represent him. Voyles stated that he was willing to represent Martin-Trigona, but could do so only if the court would grant a reasonable continuance so he could prepare for trial. Tr. at 52-53, 59 & 186-91. Martin-Trigona informed the court that he had been incarcerated in the Metropolitan Correctional Center, Chicago, since July 22, 1980, on the contempt charge and had been unable to prepare for trial or contact Voyles sooner.
Judge Holder denied the motion for continuance and permitted Voyles to withdraw his appearance. Id. at 231. He stated that Bradley was still the counsel of record. Id. at 219. He noted that "(t)here's been no indication of the defendant being an indigent person, and he's able to hire a lawyer." Id. at 243. Judge Holder, however, conducted no inquiry into Martin-Trigona's financial ability to obtain counsel.
The jury was impaneled, and trial commenced on August 4, 1980, and continued for three weeks. Martin-Trigona represented himself throughout the proceedings. The jury convicted him on all seven counts.
The sixth amendment provides that "(i)n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." If the defendant is financially unable to retain private counsel, the trial court must appoint counsel to represent him. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Criminal Justice Act of 1964, 18 U.S.C. § 3006A, describes those situations in which a federal court must appoint counsel to represent a defendant. The court must advise the pro se felony defendant of his right to be represented by counsel and inform him that counsel will be appointed to represent him if he is "financially unable to obtain counsel." Id. at § 3006A(b). If the defendant does not waive the right to be represented by appointed counsel, the court must appoint counsel to represent him unless the court "is satisfied after appropriate inquiry " that the defendant is financially able to obtain counsel. Id. (Emphasis added.)
Martin-Trigona informed the court on numerous occasions before trial that he was not represented by counsel, that he desired to be represented by counsel,...
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