U.S. v. Romano

• Decision Date: 16 June 1988
• Docket Number: No. 87-1727,87-1727
• Parties: 26 Fed. R. Evid. Serv. 225 UNITED STATES of America v. Lin M. ROMANO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 812

849 F.2d 812

26 Fed. R. Evid. Serv. 225

UNITED STATES of America v. Lin M. ROMANO, Appellant.

No. 87-1727.

United States Court of Appeals, Third Circuit.

Argued May 3, 1988.

Decided June 16, 1988.

Peter Goldberger (argued), Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Michael R. Lazerwitz (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS, Chief Judge, and MANSMANN and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal arises from a judgment of conviction entered by the district court against appellant Lin M. Romano. Along with a codefendant, Romano was found guilty of damaging government property in excess of $100.00 in violation of 18 U.S.C. Secs. 1361 and 1362, conspiring to damage government property in violation of 18 U.S.C. Sec. 371, and entering a military installation for an unlawful purpose in violation of 18 U.S.C. Sec. 1382. Because we determine that the district court violated Ms. Romano's sixth amendment right to counsel when it revoked her right to proceed pro se and thereafter denied her the opportunity to retain at her own expense competent counsel of her choice, we will reverse the judgment of conviction.

I.

The facts involved are not in dispute. During the early morning hours of the Christian feast of the Epiphany, January 6, 1987, Romano and three others, Gregory I. Boertje, Father Dexter Lanctot and Father Thomas A. McGann, calling themselves the Epiphany Plowshares, broke into the Willow Grove Naval Air Station and inflicted over $160,000.00 worth of damage to military aircraft. The four used various implements to, among other things, break instrument panels and equipment controls, cut hydraulic lines and smash windows. In addition, they poured blood in the cockpits and on the aircraft. They also left tools inscribed with various epitaphs, ¹ pamphlets, and baby bottles filled with blood in some of the aircraft. Romano and Lanctot were discovered by military security at approximately 5:15 a.m. and were taken into custody. Later, at approximately 6:30 a.m., Boertje and McGann were detected in another area of the base and were also arrested.

On February 3, 1987, a federal grand jury returned indictments against the four, charging each with three counts: conspiring to damage government property in violation of 18 U.S.C. Sec. 371 (Count 1); damaging government property in excess of $100.00 in violation of 18 U.S.C. Secs. 1361 and 1362 (Count 2); and entering a military installation for an unlawful purpose (damaging property) in violation of 18 U.S.C. Sec. 1382 (Count 3).

Romano proposed to represent herself at trial. Accordingly, on March 16, the trial court held a pre-trial hearing concerning Romano's desire to waive the assistance of counsel. The court accepted Romano's waiver of the right to counsel and allowed her to continue pro se, with the assistance of William Durland, an attorney.

On March 31, 1987, the four defendants proceeded to trial, which ended in a mistrial on April 7 after the jury could not come to an unanimous verdict. A new trial was set for May 11. However, this trial also resulted in a deadlocked jury and a mistrial was declared on May 18. A third trial was scheduled for July 13.

In the interim between the second and third trials, Fathers Lanctot and McGann pled guilty to Count Three and each received a sentence of 100 days imprisonment and a $500.00 fine. The government agreed to drop Counts One and Two of the indictment against them.

The third trial began on July 13, 1987. Mid-way through that trial, on July 15, the trial court, on the government's motion, again declared a mistrial, this time determining that the actions of defendants Romano and Boertje as well as comments of certain disruptive observers in the courtroom so prejudiced the jury that a new trial was necessary. A fourth trial was scheduled for September 21, 1987.

Due to Romano's conduct at the third trial, the district court held a hearing on August 10 to consider whether she would be permitted to continue to represent herself at the fourth trial. Although the court continued to allow Romano to proceed pro se, over her objection the court also appointed John G. McDougall as stand-by counsel. It was the position of the district court that stand-by counsel was to assume Romano's representation should she do or say something during the fourth trial which would cause the court to revoke her pro se status. Romano requested that Durland, the attorney who had been advising her in the previous three trials, be appointed stand-by counsel. However, the court refused, instead making the appointment from the CJA list. The court indicated that it would not allow Romano to select an attorney of choice once the trial started, should she lose her right to proceed pro se.

In addition, prior to the start of the fourth trial, the court re-entered an in limine order, ² which prohibited both Romano and the government from arguing, discussing or offering proof in the presence of the jury of the defendants' motives, any crimes committed by the United States Government or its officials, United States foreign or domestic policy, the use of the aircraft damaged by defendants, or international or divine law without prior bench approval that such evidence was relevant to the crimes charged in the indictment. ³

The fourth trial commenced on September 22. In her opening statement to the jury, Romano touched on subjects which the court later (at a contempt hearing) determined were prohibited by the in limine order. ⁴ By reason of her conduct, the court at that point found Romano in contempt, revoked her right to continue to represent herself, and directed McDougall to assume her defense. The trial continued, this time the jury returning with a verdict of guilty on all three counts of the indictment. On November 16, the district court denied Romano's motion for a new trial based on the issues of the appointment and the conduct of stand-by counsel during the trial. The next day, the trial court sentenced Romano to two years imprisonment on Count Two, 100 days imprisonment on Count Three to run consecutively with the sentence imposed on Count Two, and five years probation on Count One to run consecutively with the sentences imposed on Counts Two and Three. Romano now appeals to this Court.

II.

On appeal, Romano challenges the district court's entry of an in limine order, arguing that it was unnecessarily restrictive and had the effect of limiting the presentation of her defense. The district court's entry of the order itself is subject to an abuse of discretion standard of review. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 260 (3d Cir., 1983), rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, with regard to the propriety of any rulings made pursuant to the order, the "[s]cope of review ... depends in each instance on the nature of the ruling." Id. at 257. If the ruling is factual, our review is limited to the clearly erroneous standard. If the ruling is based on a legal standard, our review is plenary. Id.

Romano also challenges the court's decision denying her an opportunity to retain counsel of choice upon her forfeiture of pro se status. Usually, a court's decision to appoint counsel over the objection of a defendant would be a matter subject to an abuse of discretion standard of review. See United States v. Laura, 607 F.2d 52, 57 (3d Cir.1979). However, as the district court's decision in this instance was based on its interpretation and application of a legal precept, our review is plenary. United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985).

III.

A.

Romano's first allegation of error is that the district court improperly prevented her from pursuing her defense through an in limine order. Romano asserts that the scope of the order effectively precluded her from testifying or otherwise presenting a defense to the charges in the indictment and that the order was an abuse of discretion. We find Romano's arguments on this point to be without merit.

The district court is given wide latitude in deciding what should be allowed into evidence. Complaint of Bankers Trust Co., 752 F.2d 874, 889-90 (3d Cir.1984). Clearly, a court need not allow a defendant to present evidence on, or to discuss, anything she wishes the jury to hear. Indeed, a court would be remiss if it failed to screen what the jury is exposed to because of the potential for jury confusion or prejudice. A trial judge has a duty to limit the jury's exposure to only that which is probative and relevant and must attempt to screen from the jury any proffer that it deems irrelevant. Fed.R.Evid. 103(c). In order to fulfill this duty, the court may utilize a number of vehicles, including the use of an in limine order. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 463 n. 4, 83 L.Ed.2d 443 (1984) ("Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials."); 21 C. Wright and K. Graham, Federal Practice and Procedure Sec. 5042, at 232-35 (1977); Federal Judicial Center, Manual for Complex Litigation, Second Sec. 32.23, at 271-72 (1985). We see nothing, either in the order itself or in its scope, which would give us reason to question the discretion exercised by the district court in entering the order. Because we find that the district court utilized an appropriate method of shielding the jury from arguments and evidence it deemed irrelevant, Romano's suggestion that the use of an in limine order was error must be rejected.

We also reject Romano's assertion that the effect of the order prevented her from going forward with her defense....