U.S. v. Rankin, 84-1562

• Decision Date: 06 January 1986
• Docket Number: No. 84-1562,84-1562
• Parties: UNITED STATES of America, Appellee, v. Kevin RANKIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 956

779 F.2d 956

UNITED STATES of America, Appellee, v. Kevin RANKIN, Appellant.

No. 84-1562.

United States Court of Appeals Third Circuit.

Argued Nov. 4, 1985.

Decided Jan. 6, 1986.

F. Emmett Fitzpatrick (argued), Philadelphia, Pa., for appellant.

Louis R. Pichini, (argued), Sp. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Philadelphia, Pa., William C. Bryson, Dept. of Justice, Washington, D.C., for appellee.

Before SEITZ, WEIS, and ROSENN, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

The scheduling of trials involving busy lawyers is a difficult problem of court administration that is compounded when both state and federal courts compete for the time of the same attorneys. To meet this concern, the courts in Philadelphia adopted a compact to honor the commitments of counsel while actually in trial. In the case at hand, the district judge denied a continuance requested by the defendant because his counsel was engaged in the state court. As a result the defendant was forced to proceed with an appointed lawyer. Although the defendant's right to the services of specific counsel is not absolute, we conclude that in the circumstances here, the deprivation constituted an unnecessary infringement that requires the grant of a new trial.

Defendant Rankin was charged with two counts of conspiracy under 21 U.S.C. Sec. 846 to distribute heroin and other controlled substances, including cocaine. The indictment also contained six counts of using a telephone to facilitate the conspiracies, 21 U.S.C. Sec. 843(b). After a sixteen-day jury trial, defendant was convicted of all counts and was sentenced to the maximum term of fifty-four years of imprisonment.

Rankin was one of fourteen persons named in an indictment that contained thirty counts alleging a large scale illegal drug operation. At the time of arraignment in September 1983, Rankin retained F. Emmett Fitzpatrick, an experienced and competent criminal defense attorney, to represent him.

Because of the complexities of the multi-defendant case, continuances were granted to permit adequate discovery and pretrial procedures. On February 1, 1984, Fitzpatrick began a murder trial in the Court of Common Pleas of Philadelphia County. The state proceeding was in progress when on March 26, 1984, the district court designated the case at hand as a "special listing," which was to take precedence over all attachments of counsel occurring after that date.

On April 24, 1984, the district judge convened a pretrial conference, calling to the attention of all counsel that the trial was to begin on June 4, 1984. Fitzpatrick was still engaged in the state court but advised the district judge that the murder trial would probably conclude before June 4.

At another pretrial conference on May 8, 1984, the district judge announced that Fitzpatrick's availability for the June 4 trial seemed unlikely and informed defendant Rankin that he should retain alternate counsel. Fitzpatrick once again stated that he expected to be free by June 4. In addition, he called attention to the terms of a compact between the state and federal trial courts in Philadelphia. This agreement provided generally that a lawyer trying a case in one forum would be considered unavailable and would not be expected to appear before the other until the trial was concluded.

Fitzpatrick appeared in the district court on June 4 to advise that the murder trial was continuing and would be finished about the end of the month. On that same morning, ten of the defendants in this case pleaded guilty. One other remained a fugitive, and another, a hospital patient, signed a memorandum agreeing to plead guilty. Only Rankin's co-defendant Giangrante persisted in a demand for an immediate trial.

On the following day, June 5, the district judge directed Rankin to obtain alternate counsel by noon. Rankin chose instead to file a petition for mandamus with this court. Giangranti entered a guilty plea on June 12, leaving only Rankin to be tried. One week later, this court denied the petition for mandamus, ¹ and on June 20 the district court appointed a lawyer for Rankin. Counsel was given approximately one month to prepare the case. Jury selection began on July 18, and verdicts were returned against Rankin on August 10, 1984. Fitzpatrick's case in the state court had concluded on August 2.

The government introduced evidence from which the jury found that Rankin, an attorney, was part of the drug operation headed by co-defendant Martorano. Much of the evidence consisted of out-of-court statements of co-conspirators. In addition, the prosecution produced audio and videotapes of Rankin's conversations with undercover government agents.

On appeal, defendant contends that he was denied the right to representation by counsel of his choice and that various evidentiary rulings by the trial court were erroneous. The former contention requires more extended discussion, and accordingly we will address it first.

I.

Rankin did select counsel but was denied representation at trial by that lawyer. That this deprivation occurred as a result of the court's refusal to grant a continuance does not obscure the nature of the right at stake. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954).

We have stated that "the most important decision a defendant makes in shaping his defense is his selection of an attorney." United States v. Laura, 607 F.2d 52, 55 (3d Cir.1979). "Attorneys are not fungible," and "[t]he ability of a defendant to select his own counsel permits him to choose an individual in whom he has confidence." Id. at 56. Recognizing the importance of these interests, we held "[i]f a defendant chooses a particular lawyer, a court may not take arbitrary action prohibiting the effective use of that counsel." Id. at 57.

The right, however, is not absolute and must be balanced against the requirements of the fair and proper administration of justice. Davis v. Stamler, 650 F.2d 477 (3d Cir.1981). A defendant will not be permitted to subvert judicial proceedings or cause undue delay by designating a certain lawyer. Thus, representation that constitutes a breach of professional ethics need not be tolerated. United States v. Dolan, 570 F.2d 1177 (3d Cir.1978). Nor must a court honor a belated request made not in good faith but as a transparent ploy for delay. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). The ability to choose counsel "is a right and proper tool of the defendant; it cannot be used merely as a manipulative monkey wrench." Gandy v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir.1978).

Although the right of representation by chosen counsel is subject to limitations it may not be hindered unnecessarily. Interfering with a defendant's efforts to secure counsel and thereby forcing on him representation by an undesired court-appointed attorney may amount to denial of a constitutional right. For that reason, "[a] defendant's choice of counsel is not to be dealt with lightly or arbitrarily." United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), rev'd on other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).

In United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir.1969), this court was presented with a contention that a trial judge had abused his discretion by denying a continuance so that a defendant could obtain the services of his chosen lawyer. We rejected the defendant's argument and discussed the ripple effect a postponement could have on a court's calendar, particularly in a large metropolitan community. We noted the need for a firm trial date to enable the government to assemble its witnesses and schedule its attorneys. Not only can a continuance have a disruptive effect on court administration, but it may also "prejudice the rights of another defendant [whose] trial is delayed." Id. at 1214. We went on, however, to point out the difficulty posed by "an arbitrary and inelastic calendaring of cases without due regard, for example, to the existence of conflicting demands for the service of a particular counsel by different courts or by the schedules within a multi-judge court." Id. at 1215.

That particular problem is presented in this case. Here, we have no belated request, no bad faith, no maneuvers intended to delay. Rather, we are confronted with the serious, frustrating, and recurring problem of allocating busy trial counsel's time among busy and overburdened courts in the state and federal systems. Because lawyers are not "fungible", and because in the real world trial retainers are not evenly distributed, some accommodation must be reached.

The difficulty is especially acute in the large urban areas where the state and federal trial courts are in competition for the time of the leading trial lawyers. Both court systems have burgeoning dockets, and both are conscientiously attempting to process their cases as rapidly as possible. This situation frequently results in simultaneous requests for the presence of a particular trial lawyer by state and federal courts. Because the laws of physics make dual compliance impossible, the trial lawyer faces an unhappy choice--whether to be held in contempt in state or federal court. The courts' irritation is compounded by a few elusive practitioners who play one court against the other--purporting to be in one forum or the other but actually not trying a case in either.

After some unpleasant incidents of this nature, in 1973 the state and federal courts in the Philadelphia area agreed on a cooperative plan for allocating trial lawyers. The courts adopted local rules and practices so that attorneys would appear in the two forums on an alternating basis. A lawyer actually trying a case in either state or federal court is recognized by the other forum as engaged. On termination of that case, counsel must notify the appropriate clerk and be available for an assignment in the other court system....