United States v. Barton

• Decision Date: 02 April 2013
• Docket Number: Docket No. 12–1116–cr.
• Parties: UNITED STATES of America, Appellee, v. John Anthony BARTON, Defendant, Robert G. Smith, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

712 F.3d 111

UNITED STATES of America, Appellee,

v.John Anthony BARTON, Defendant,Robert G. Smith, Appellant.^*

Docket No. 12–1116–cr.

United States Court of Appeals,Second Circuit.

Argued: Dec. 21, 2012.

Decided: April 2, 2013.

Robert G. Smith, Assistant Federal Defender (Jay S. Ovsiovitch, of counsel, on the brief), for Marianne Mariano, Federal Public Defender for the Western District of New York, Rochester, N.Y., for Appellant.

Elizabeth D. Collery, Attorney, Appellate Section, U.S. Department of Justice, Criminal Division, Washington, D.C. (Lanny A. Breuer, Assistant Attorney General; John D. Buretta, Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division, Washington, D.C.; and William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, N.Y., on the brief), for Appellee.

Before: CALABRESI, SACK, LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Robert G. Smith, an Assistant Federal Defender for the Western District of New York, moved to withdraw from representing John Anthony Barton, a defendant in a criminal action pending in the United States District Court for the Western District of New York (Charles J. Siragusa, Judge ). In this interlocutory appeal, Smith challenges the denial of that motion. He argues that because Barton refuses to communicate with him, requiring him to continue the representation will cause him to violate his ethical duty to consult with his client. We do not reach the merits of Smith's argument based on his professional responsibility as an attorney because we conclude on other grounds that the denial of the motion exceeded the limits of the district court's discretion. The defendant, having been informed of his right to counsel, stated that he did not wish to have appointed counsel, made no attempt to establish his financial eligibility for appointed counsel under the Criminal Justice Act of 1964 (“CJA”), 18 U.S.C. § 3006A, and refused to recognize Smith as his attorney. Under these circumstances, Smith's appointment was improper from the outset, and he may not be required to continue serving as Barton's attorney.

BACKGROUND

Barton was charged by criminal complaint on June 29, 2011 with conspiring to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, methamphetamine, in violation of 21 U.S.C. § 846, and with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) and (2). Assistant Federal Defender Elizabeth Switzer attended Barton's initial appearance on July 14, 2011 before Magistrate Judge Marion W. Payson. Barton had not completed a financial affidavit, and he informed the court that he wished to obtain private counsel. He asked for an adjournment of several days in which to do so. The court granted the adjournment, but reminded Barton that if he was unable to retain counsel, Switzer could be appointed to represent him as long as he qualified financially. Barton's next three appearances before Judge Payson occurred on July 19, August 3, and August 16. Switzer was again in attendance, even though Barton had still not completed a financial affidavit. Barton explained that he had tried, but been unable, to retain counsel. He again asked for adjournments, which were granted in each instance.

On September 7, 2011, Barton filed a pro se motion to dismiss the complaint against him for lack of jurisdiction. He argued, among other things, that he was not properly named in the complaint, which was made out against “JOHN BARTON” and not “John Anthony Barton”; that he was legally allowed to possess both marijuana and methamphetamine to treat narcolepsy caused by a head injury he suffered in connection with a car accident; and that New York State is a sovereign territory into which the laws of the United States do not extend.

The following week, on September 15 and 16, two more conferences were held before Judge Payson. Switzer again attended, but she expressed her hesitation to act as Barton's counsel, given his expressed desire to retain counsel. The court noted that Barton still had not completed a financial affidavit and asked whether he wanted to do so. Barton said he did not and explained that he was still seeking private counsel. Finally, in light of Barton's seemingly confused oral representations to the court and his pro se filing, including its reference to a head injury, Judge Payson expressed concern about Barton's competence. She ordered that Barton undergo a psychological evaluation and asked Switzer to “remain in the case not as appointed counsel, but to assist Mr. Barton,” at least until Barton could retain counsel.

Switzer was not present for Barton's next appearance on November 23, 2011, as she had by that time left the Federal Defender's office. Smith appeared in her place. Judge Payson commenced the proceeding by reviewing a report prepared by a forensic psychologist, which concluded that Barton was competent to stand trial. When Judge Payson asked Barton if he had seen the report, he ignored her question, referring instead to his motion to dismiss the complaint. Barton would answer no further questions, including questions about his efforts to retain a lawyer. Judge Payson decided to give Barton two additional weeks to find an attorney, following which, she said, she would appoint Smith to represent him. Barton's only response was, “I object.”

The next appearance, Barton's ninth, occurred on December 7, 2011. Once again, Barton would not participate other than to refer to his motion to dismiss and, periodically, to object. Judge Payson explained to Barton, as she had several times previously, that he had the right to be represented by an attorney and that he could hire an attorney of his own choosing, have an attorney appointed for him, or represent himself. Because Barton had stated in previous appearances that he wished to retain counsel, Judge Payson concluded that he had not invoked his right to self-representation. She also expressed reluctance to find that he had waived his right to counsel, even though he had both rejected the offer of appointed counsel and failed to retain private counsel. Judge Payson therefore appointed Smith to represent Barton, “because Mr. Barton has not told me that he has other counsel whom he would like to represent him.” Smith observed that the case presented “kind of a unique situation with [the] public defender[s],” but he acknowledged the appointment and said that he would “advise Mr. Barton and be ready to proceed. The following day, December 8, Judge Payson issued a report and recommendation that Barton be found competent to stand trial, and another that his pro se motion to dismiss be denied.

On December 13, the government filed a six-count indictment, charging Barton with narcotics conspiracy, in violation of 21 U.S.C. § 846; unlawfully manufacturing methamphetamine, possessing methamphetamine with intent to distribute, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a); using premises to manufacture, distribute and use a controlled substance, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and possessing firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1) and (2). Barton was arraigned on December 21, 2011. When Smith entered a plea of not guilty, Barton objected. The plea was nonetheless entered pursuant to Fed.R.Crim.P. 11(a)(4), which directs that a plea of not guilty be entered when a defendant “refuses to enter a plea.” ¹

On January 3, 2012, Smith moved for leave to withdraw as counsel. According to Smith, Barton had refused to communicate or meet with him since September, rendering it impossible for Smith to ascertain and represent his interests. District Judge Charles J. Siragusa held a conference on January 11. Barton began the proceeding by stating that Smith was not his attorney and reiterating his desire to retain counsel. Judge Siragusa explained to Barton, as had Judge Payson, that he could hire a private attorney of his choice, accept Smith as his appointed lawyer, or proceed pro se. He also provided extensive warnings about the risks of self-representation.

Judge Siragusa at first mistakenly assumed that Judge Payson had determined that Barton could not afford to hire lawyer and was therefore entitled to the assistance of court-appointed counsel. Nonetheless, he asked Barton whether he had access to at least $15,000 or $20,000, which he estimated to be the cost of a private attorney. Barton said that he did, and the judge explained that, if Barton could afford his own lawyer, he was not entitled to appointed counsel. Barton agreed and informed the court that he had not completed an affidavit establishing his entitlement to a court-appointed lawyer. Barton asked, once again, for time to retain counsel, as he did not wish to be represented by Smith or to proceed pro se. The court agreed to give Barton thirty days to find an attorney. In the meantime, it held Smith's application to withdraw in abeyance, declining to relieve him until Barton had secured replacement counsel. On January 15, the district court adopted Judge Payson's December 8 recommendations, finding Barton competent to stand trial and denying the motion to dismiss the criminal complaint.

On February 13, Barton again appeared before Judge Payson. As previously, he would not participate except to invoke his motion to dismiss. Judge Payson determined that Barton had neither retained counsel nor expressed an unequivocal desire to represent himself and concluded that Smith would therefore have to remain in the case as Barton's attorney. Accordingly, Judge Payson denied Smith's motion to withdraw. However, she also explained to Barton that if he continued not to cooperate with Smith or the court, she might find that he had waived his right to the assistance of counsel and require him to proceed...