United States v. De Freitas, Crim. No. 75-462.

• Decision Date: 30 March 1976
• Docket Number: Crim. No. 75-462.
• Citation: 410 F. Supp. 241
• Parties: UNITED STATES of America v. Edward DE FREITAS, Defendant.
• Court: U.S. District Court — District of New Jersey

410 F. Supp. 241

UNITED STATES of America v. Edward DE FREITAS, Defendant.

Crim. No. 75-462.

United States District Court, D. New Jersey.

March 30, 1976.

Terence P. Flynn, Asst. U.S. Atty., Jonathan L. Goldstein, U.S. Atty., Newark, N.J., for United States.

Cynthia Matheke, Roger Lowenstein, Federal Public Defender, Newark, N.J., for defendant.

MEMORANDUM ORDER

BIUNNO, District Judge.

The Federal Public Defender was appointed to represent De Freitas on February 3, 1976, and has now filed a motion, returnable April 12, 1976, for an order relieving that office as counsel for defendant. A brief history of the matter is necessary to consideration of the motion.

On his arrest on a charge of armed bank robbery, 18 U.S.C. § 2113(a) and (d), De Freitas had the Federal Public Defender appointed to represent him. That appointment was on October 1, 1975.

Thereafter, De Freitas engaged private counsel who represented him. He was unable to make the bail set, which apparently brought his case within the interim provisions of the Speedy Trial Act of 1974, 18 U.S.C. § 3164, as a "90-day case".

Trial began on December 4, 1975, within the required time, but the jury were unable to agree upon a verdict and a mistrial was declared December 12, 1975.

Just before discharge of the jury, retained counsel said on the record that he had been retained to represent De Freitas through trial, and through sentence if convicted, but not beyond; that he was no longer De Freitas' attorney and that De Freitas wished to have counsel assigned. This was, of course, an oral motion during a trial or hearing, F.R. Cr.P. 47, for leave to be relieved as counsel and for assignment of counsel as an indigent under the Criminal Justice Act, 18 U.S.C. § 3006A, as amended. And, see, Local Rule 18, requiring a substitution of counsel before a withdrawal may be allowed.

The court, at that time, directed counsel to check with the Clerk's Office the following Monday to get the name of assigned counsel to be proposed, and arrange with him to have De Freitas fill out an appropriate affidavit on the matter of indigency, and to submit it.

Although counsel agreed to do so, nothing was submitted until January 23, 1976, when an affidavit of indigency was received through retained counsel. On review of the matter, and by memorandum of February 3, 1976, the court appointed the Federal Public Defender to represent De Freitas.

In that memorandum, the court reviewed the status of the case under the Speedy Trial Act, if it applied at all in view of the lodging of a State detainer for parole violation, as well as the propriety of an extension so that the Federal Public Defender might obtain a transcript of the first trial and prepare for retrial, and set the period April 19 to May 17 within which to schedule the retrial.

The current affidavit of the Federal Public Defender discloses that after the appointment of February 3, 1976, De Freitas phoned the defender to say that he did not wish to be represented by that office and had no confidence in it.

Thereafter, on February 19, 1976 an attorney of that office interviewed De Freitas personally, and was told that he would not cooperate in a defense by the Federal Public Defender. Thereafter, De Freitas spoke to Roger Lowenstein, Esq., the Federal Public Defender, and one of his assistants, John McMahon, Esq., and indicated to them that he would not accept any attorney of that office to represent him.

Since then, by letter to the court dated March 16, 1976 and received in chambers March 25, 1976, De Freitas states that he wishes only his former retained counsel to be appointed as his assigned counsel.

The court finds only one reported opinion on this point, by Chief Judge Bazelon of the U.S. District Court for the District of Columbia, U. S. v. Thompson, et als., 361 F.Supp. 879 (D.Ct.,D.C.,1973).

That opinion indicates that, as a general rule, where a defendant has retained counsel and then runs out of money and wishes counsel assigned, the former retained counsel ordinarily will not be appointed. The reason for this is that to do so would be to permit a defendant to select his own assigned counsel, something that is expressly forbidden by all the district plans throughout the country.

Chief Judge Bazelon then ruled that in those cases where retained counsel is to be considered for appointment, both the retained attorney and the defendant should make a full disclosure to the court of the pertinent facts. With that full disclosure there should be a statement by retained counsel that he is willing to accept appointment on a basis that will compensate him at Criminal Justice Act rates for allowable items under the Act for all his services and expenses from the time he was first engaged, less the total amount received as retained counsel. There should also be a showing by retained counsel of the reasons why substitution of the Federal Public Defender would work to defendant's disadvantage.

It should also be observed that this is not a "complex" case warranting compensation beyond the statutory limits. It is an armed bank robbery case in which the main evidence against defendant is composed of eyewitness identification, a claim of...