United States v. Colón Lespier
| Decision Date | 26 September 1975 |
| Docket Number | 123-72,143-72.,142-72,119-72,Crim. No. 118-72 |
| Parties | UNITED STATES of America, Plaintiff, v. Alvan COLON LESPIER et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Juan M. Pérez-Giménez, Asst. U. S. Atty., San Juan, P. R., for plaintiff.
Pedro Varela, Juan Mari Bras, José Hamid Rivera, Río Piedras, P. R., David Scribner, New York City, for defendants.
This matter is before us on a "Motion for New Trial" filed by Defendants on September 15, 1975. A "Supplemental Motion For A New Trial" filed on September 17, 1975 cannot be entertained by this Court for lack of jurisdiction. U. S. v. Johnson, 487 F.2d 1318 (CA 5, 1974); U. S. v. Mathews, 335 F.Supp. 157 (D.C.Pa., 1971), appeal dismissed, 462 F.2d 182 (CA 3, 1972), cert. den., 409 U.S. 896, 93 S.Ct. 123, 34 L.Ed.2d 153 (1972); U. S. v. Kane, 319 F.Supp. 527 (D.C. Pa., 1970), affirmed, 433 F.2d 337 (CA 3, 1970).
Defendants raise several arguments in support of their Motion. Initially, Defendants are alleging that the Court has infringed their rights to assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution, when it denied their Motion for Continuance of trial after being informed by their attorney of record, Mr. Pedro A. Varela, that he lacked the experience to try a criminal case by himself and after Mr. David Scribner, their newly engaged counsel, had requested more time to prepare for the trial.
Defendants further allege that said right was also infringed by the Court's failure to ascertain if Defendants had knowingly and competently waived their right to counsel and thus were able to proceed pro se.
A summary of the prior history of these cases is of relevance. The incidents which give rise to these cases took place on March 3, 1972. Shortly thereafter the indictments or informations issued or were filed. Diverse procedural matters ensued. At least by February 6, 1973, at a hearing on a motion for suppression of identification, Mr. Varela was already appearing formally as co-counsel for Defendants. Both at that hearing and thereafter Mr. Varela actively participated as an attorney in these matters.
A trial date set for July 8, 1974 was continued. At a status conference held on April 17, 1975 Mr. Varela appeared as the only counsel for Defendants. Therein the case was set for trial on September 8, 1975, by agreement of all present. This trial setting was notified in writing, not only to all counsel of record, but also to Defendants individually. On August 26, 1975, at a pretrial conference held before the U. S. Magistrate, Mr. Varela appeared as counsel for Defendants. The U. S. Magistrate advised counsel "that no continuances would be granted in these cases."
On September 2, 1975, Mr. Juan Mari Bras, one of Defendants' co-counsel, filed a "Motion Requesting Postponing of Trial", one of a series of motions1 filed by Defendants in an obvious attempt to obstruct the September 8th trial setting. This motion was denied pursuant to our Order of September 5, 1975 wherein we stated that Mr. Varela had in fact been the attorney representing Defendants "and is fully competent to represent Defendants at the trial, as he has done up to the present time."
On September 2, 1975 Mr. Varela also attended a conference in chambers wherein certain procedural matters were discussed. Mr. Varela indicated that there existed the possibility of additional stateside counsel joining the defense. The Court informed him that they would be welcomed, but that this would not be grounds for continuance of the trial.
Shortly before the commencement of trial on September 8, 1975, Mr. Varela appeared in chambers together with Mr. Scribner, an attorney admitted to practice in New York, seeking the continuance of the trial for 30 days on the grounds that Mr. Scribner had been contacted only two days before and was not ready to commence trial. It was alleged by Mr. Varela that he had never tried a criminal jury case and thus could not proceed alone. The parties were informed that the matter would not be postponed, and a formal ruling was made on the record when the question was again raised by Mr. Varela and Defendants at the commencement of the trial. Mr. Scribner chose not to enter a formal appearance.
Thereafter the trial continued, with Mr. Varela's presence at the counsel table and with full opportunity for him to advise his clients, an opportunity which was exercised on several occasions wherein recesses were requested and granted to Defendants and Mr. Varela to confer and plan strategy on questions such as the waiver of a jury trial, oral argument at the completion of the trial, and other matters reflected in the record.
Mr. Varela, with the agreement of his clients, chose not to voir dire the jury, or to cross-examine the Government's witnesses, or to present evidence on Defendants' behalf.
Before entering into a discussion of the legal principle applicable to the questions raised, it should be pointed out that Mr. Varela is an experienced counsel of several years' professional standing. He is the head of the largest and most active legal aid society in Puerto Rico and a frequent litigant before this Court. Notwithstanding his alleged lack of criminal experience he has appeared as counsel of record in numerous criminal matters before this Court.2 In fact, as the transcript of Criminal Number 116-72 will show,3 Mr. Varela conducted an able and aggressive voir dire just two weeks after his alleged professional incapacity in the present cases.
With this factual background we come thus to a discussion of the substantive questions raised.
It is well established that the right to counsel under the Sixth Amendment includes the opportunity for consultation and for preparation for trial. See Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).
However, the right to counsel can not be utilized to subvert the orderly procedure of the Court, to interfere with a fair administration of justice, or to give a defendant the right to obtain a delay at his convenience. See United States v. Terry, 449 F.2d 727 (CA 5, 1971); United States v. Grow, 394 F.2d 182 (CA 4, 1968).
The balance between an accused's right to counsel under the Sixth Amendment and the necessity of maintaining orderly procedure in the courts was discussed by the Supreme Court in Ungar v. Sarafite, 376 U.S. 575 at page 589, 84 S.Ct. 841 at page 849, 11 L.Ed.2d 921 (1974):
(Emphasis supplied, citations omitted).
As the Court of Appeals for the First Circuit so aptly put it in United States v. Rodríguez Vallejo, 496 F.2d 960 (CA 1, 1974), at page 965 thereof:
"The right to counsel may not be manipulated in a cat and mouse game with the court . . . Whether the attorney is deemed satisfactory or not, the court, at some point, may require the defendant to go to trial."
Other language in that case seems particularly appropriate to the circumstances herein and to Mr. Varela's conduct, at page 964:
See also United States v. Mitchell, 354 F.2d 767 (CA 2, 1966) and United States v. Llanes, ...
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