US v. Prochilo

• Decision Date: 12 August 1999
• Docket Number: No. 98-1415,98-1415
• Citation: 187 F.3d 221
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. MICHAEL J. PROCHILO, Defendant, Appellant
• Court: U.S. Court of Appeals — First Circuit

Page 221

187 F.3d 221 (1st Cir. 1999)

UNITED STATES, Appellee, v. MICHAEL J. PROCHILO, Defendant, Appellant.

No. 98-1415

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Argued May 6, 1999.

Decided August 12, 1999.

Alan D. Campbell, by appointment of the Court, for appellant.

James F. Lang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Pollak,^* Senior District Judge.

POLLAK, District Judge.

On December 4, 1996, Michael J. Prochilo was charged, in a one-count indictment, with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g)(1).¹ Specifically, the grand jury alleged that Prochilo, having previously been convicted of a felony, on or about September 27, 1996, possessed a .25 caliber semi-automatic pistol (Raven, Model P-25) and also some .25 caliber ammunition. The charges were tried before a jury: the jury was empanelled and sworn on May 19, 1997; opening statements and initial testimony were heard the next day; and on May 29 the jury returned a verdict of guilty. Prochilo's sentencing took place on March 26, 1998. Due to his substantial prior criminal history, Prochilo was classified as an armed career criminal, pursuant to 18 U.S.C. 924(e), and was sentenced to a prison term of 327 months, followed by 60 months of supervised release.

On this appeal, Prochilo contends that his conviction is flawed. His claim of error is not, however, addressed to any matters that transpired before the trial jury. The focus of the appeal is Prochilo's claim that, prior to trial, he advised the district court that he and his appointed counsel were in substantial disagreement about the conduct of his defense, and that he wished to be represented by retained counsel who, if a continuance were granted, would be willing to serve, but that the district court, without inquiring into the matter, denied the requested continuance, thus compelling Prochilo to go to trial represented by counsel not of his choice, in contravention of the Sixth Amendment.

I.

In order to analyze the legal issues presented by this appeal, it will be necessary to set forth in some detail the procedural history that forms the background of Prochilo's claim of error.

Prochilo's initial court appearance took place before a magistrate judge on December 30, 1996, not quite four weeks after Prochilo was indicted. On a showing of indigence, the magistrate judge appointed the Federal Public Defender, in the person of Defender attorney Charles McGinty, to represent Prochilo. On the government's motion, Prochilo was detained pending a further hearing. On January 3, 1997, Prochilo was arraigned before the magistrate judge, pleading not guilty; at the same hearing, the magistrate judge (1) scheduled Prochilo's trial for February 24, and (2), on the government's motion, to which Prochilo assented, directed that Prochilo remain in custody. On February 24, the district court rescheduled the trial for May 12. On March 31, the district court, acting on a government motion for a week's continuance to which the defendant agreed, moved the trial date forward to May 19.

On May 9 -- ten days before the new trial date -- an attorney named Barry P. Wilson filed two documents. The first was a notice of appearance as counsel for Prochilo. The second was a "Motion To Continue Trial Date," requesting that trial be postponed "to the first week of September, 1997." In support of the motion, Wilson stated:

1. I was contacted by Mr. Prochilo to represent him within the last week; . . . . .

3. As a result of his contacting me, his family contacted me and indicated that they wished me to consider representing him;

4. As a result of the family contacting me, I have visited Mr. Prochilo at the Plymouth County jail and he wants me to represent him because he and his present counsel have significant differences as to how this case should be tried;

5. After conferring with his present counsel, Charles McGinty, as well as briefly reviewing documents made available through the discovery process, I informed Mr. Prochilo that unless I received a continuance of his trial date I would not be able to represent him;

6. I also told Mr. Prochilo that due to my present trial schedule, including a trial in this court that is scheduled to begin on June 30, 1997, in front of Judge Woodlock (approximately one (1) week as well as numerous trials scheduled in both Superior Court and District Courts (jury of six sessions) throughout this time frame, as well as a long scheduled vacation (South Africa) that commences on June 5, 1997, to June 22, 1997, that I would request a trial date in September.

7. Mr. Prochilo has no problem with this request and in fact wants it so that I can represent him and given the seriousness of this case this request seems eminently fair and reasonable;

8. I have conferred with James Lang, the Assistant United States Attorney, who is presenting the case and he says that he cannot agree to any continuances. However, it is my understanding that he has previously requested a continuance of the trial date in this matter, that the defendant assented to said request and said request was granted by this court;

9. It should be noted that a denial of this motion will only hurt Mr. Prochilo as he is facing a very lengthy sentence. Mr. Prochilo will not be on bail pending the new trial date nor is there any reason to believe that this continuance would harm the government in any way.

On behalf of the district judge, the judge's deputy clerk stamped the motion papers with what the docket refers to as an "endorsed order" - "MOTION DENIED" - on the day the motion was filed.

On May 13 Wilson filed a "Motion For Reconsideration Of Motion To Continue Trial Date."

The motion for reconsideration noted that the May 9 motion had been "denied . . . without a hearing" and stated that "it is apparent that the only reason for the denial of Mr. Prochilo having counsel of his choice, is the calendars of the Court and the Assistant United States Attorney rather than any serious problems with the Government presenting its case"; further, the motion for reconsideration reiterated that Prochilo "and his present counsel have significant differences as to how the case should be tried," and "requested that this Court grant this motion but at a minimum, a hearing is requested."² The motion for reconsideration was denied by the district court on May 20, the day after Prochilo's trial began. The court's "endorsed order" -- a handwritten endorsement on the first page of the motion -- recited: "Motion denied as moot, jeopardy having attached."³

II

The question presented by this appeal is whether the district court's denial of lawyer Wilson's sequential motions, on Prochilo's behalf, for (1) a continuance, and (2) reconsideration, without any inquiry into the nature of the asserted conflict between Prochilo and his appointed counsel and when that conflict arose, constituted an abuse of discretion. To put this question into focus we must have recourse to the legal principles governing situations of this kind.

The principles applicable to cases in which a criminal defendant asks that appointed counsel be replaced were announced by this court in United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846, 93 L. Ed. 2d 103, 107 S. Ct. 164 (1986), and remain the governing law:

Where the accused voices objections to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction. . . . In evaluating whether a trial court's denial of motion for continuance constituted an abuse of discretion . . . the appellate court should consider several factors, including the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense

Accord United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995); United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990).

In the case at bar, the district court did not "inquire into the reasons for the dissatisfaction." The government, in its brief, addresses this aspect of the case in the following words: "Concededly . . . the court's failure to make any inquiry about the asserted 'differences' between the defendant and appointed counsel would seem to bolster the defendant's contention that he is entitled to appellate relief. On consideration of the somewhat unique circumstances presented in this case, however, it does not." In arguing that in this "somewhat unique" instance inquiry was unnecessary, the government advances three contentions: (1) that the motion for a continuance was untimely; (2) that the motion for a continuance did not undertake to specify the asserted differences between Prochilo and appointed-counsel McGinty, and was not confirmed by supporting statements of Prochilo or McGinty; and (3) that in all events McGinty in fact did a good job of representing Prochilo at trial, so that Prochilo can demonstrate no prejudice. We will consider each of these contentions in turn.

1. In arguing that Wilson's motion for a continuance of Prochilo's trial was untimely, the government points out that the motion was filed on May 9, 1997, only ten days before the long-established trial date of May 19, that the motion itself disclosed that Prochilo had only sought to retain Wilson within the previous week, and that McGinty had been appointed to represent Prochilo more than four months before. The government's concern with timeliness is proper. As Judge Friendly noted upwards of thirty years ago (in language we had occasion to quote in Allen, supra, 789 F.2d at 93), "Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not...