The opinion of the court was delivered by: HARRIS
STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE.
The Court has reflected at considerable length on the progress and posture of this case. While the Court is reluctant to deprive defendant Gibson of his first choice as defense counsel, the Court concludes that it must revoke the pro hac vice appearance of Allen N. Brunwasser.
This is a simple case. There is one defendant; there is a one-count indictment. Defendant is charged with the possession of cocaine with the intent to distribute it. As the Court now sees the case, there are basically only two questions to be resolved -- one by the Court and one by a jury. The Court must decide whether the search for, and the seizure of, the cocaine were constitutionally permissible. A jury must decide whether defendant possessed the cocaine with an intent to distribute it.
The criminal complaint was filed on June 24, 1987, the day after defendant was arrested. A local attorney, Richard Huber, initially represented Gibson. On the same date, Mr. Brunwasser, a member of the Bar of Pennsylvania (but not of the District of Columbia), entered his appearance for defendant.
On July 8, 1987, what was designated in part as a petition for a writ of habeas corpus was filed in this court as Civil Action No. 87-1821. While that pleading purported to be a pro se document, it is apparent that it was prepared by an attorney. The Court concludes that it was authored by Mr. Brunwasser, an attorney who lives and practices in Pittsburgh. Its purpose apparently was somehow to prevent the indictment of Gibson, for Gibson was in no one's custody.
That case randomly was assigned to Judge Harold H. Greene. Before it could be given any consideration by Judge Greene, the indictment in this case was returned (on July 16, 1987). The criminal case was randomly assigned to the undersigned. The civil action thereafter was reassigned to the undersigned.
The Court has extended every courtesy to Mr. Brunwasser. At the arraignment on July 27, 1987, Mr. Brunwasser's request to appear pro hac vice was granted. By Order dated September 15, 1987, the cases were consolidated; Mr. Huber's motion to withdraw was formally granted; and the Court waived Local Rule 104 so that Mr. Brunwasser could be the sole defense counsel.
The Court scheduled a status call for September 18, 1987. For reasons which are set forth elsewhere (see the Court's Order dated September 22), Mr. Brunwasser declined to attend (defendant did come from Pittsburgh and was present).
The Court had no desire to initiate a contempt proceeding. Cf. Jessup v. Clark, 490 F.2d 1068 (3d Cir. 1973) (reversing a summary holding of Mr. Brunwasser in contempt for failure to attend another court proceeding). Instead, the Court (as part of its September 22 Order, which confirmed an oral ruling made at the September 18 status call) vacated its prior waiver of Local Rule 104, thus again requiring the participation of local counsel. Meanwhile, defendant engaged Jeffrey Jacobovitz as local counsel; he entered his appearance on September 18.
A rescheduled status call was held on September 30. Defendant and Messrs. Brunwasser and Jacobovitz were present. In then setting a hearing date on the motion to suppress, the Court offered Mr. Brunwasser his choice as to a day of the week and a time of day so as to accommodate his travel from and to Pittsburgh.
The suppression hearing was scheduled for 1:30 p.m. on November 6. (See this Court's Order of October 9.) That date was considerably later than the Court would have desired, but was decided upon based upon the protestations of Mr. Brunwasser -- a single practitioner -- that the demands of other cases necessitated such a delay.
Local counsel, Mr. Jacobovitz, was present at the hearing but played no role in the presentation of evidence. He had a jury deliberating in another case. When the direct testimony of the first witness finally was concluded, the Court was advised that Mr. Jacobovitz's jury had reached its verdicts. Prior to leaving for the other courtroom, Mr. Jacobovitz addressed the Court for the first time. He moved for leave to withdraw. A copy of the transcript of what was said between then and the taking of a brief recess is attached as Exhibit A. (Mr. Shmanda was the Assistant United States Attorney.) It is clear that local counsel has no authority and plays no role in the case other than being present in court. As that portion of the transcript reflects, Mr. Brunwasser again sought a continuance prior to beginning cross-examination. That request was denied.
After the recess, Mr. Brunwasser commenced his cross-examination of the first witness. By approximately 5:15 p.m., that cross-examination had not been completed. Had local counsel been handling the matter, the entire suppression hearing undoubtedly would have been completed. Had existing local counsel been given any authority, the Court could have continued sitting to permit completion of at least the first witness' testimony. Instead, the Court felt obliged to adjourn so that Mr. Brunwasser could catch his 5:50 p.m. flight back to Pittsburgh.
Prior to departing, Mr. Brunwasser stated that the press of other cases would make it impossible for him to resume the suppression hearing until December.
Present Posture and Ruling
It is now five months since defendant was arrested and more than four months since he was indicted. In addition to the two appeals which have been filed (referred to in n.3, supra), Messrs. Gibson and Brunwasser have filed in the Court of Appeals a PETITION FOR WRIT OF MANDAMUS PROHIBITION AND EXTRAORDINARY RELIEF PLUS EXERCISE OF THE COURT'S SUPERVISORY AUTHORITY IN RE SEPTEMBER 14, 1987, SEPTEMBER 18, 1987 AND SEPTEMBER 22, 1987 ORDERS OF DISTRICT JUDGE STANLEY S. HARRIS WHICH ORDERS ARE FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AT C.A. 87-1821 AND CR. 87-311. (D.C. Cir. Case No. 87-5309.) The Court cannot read Mr. Brunwasser's mind, and would be reluctant to conclude that he seeks obfuscation and delay. That, however, is what has occurred. Similarly, the Court does not question Mr. Brunwasser's legal ability. However, it has become apparent that defendant's representation by a sole practitioner who is located hundreds of miles from the District of Columbia is unacceptably delaying the resolution of this case.
The Speedy Trial Act calls for the trial of a case within 70 days of an indictment. 18 U.S.C. § 3161(c)(1). Technically, of course, the pendency of the unduly protracted suppression process has been tolling the requirements of the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(F). Additionally, at the partial suppression hearing on November 6, Messrs. Gibson and Brunwasser readily asserted their waiver of defendant's right to a speedy trial. However, the Court must give recognition to the strong interests of a defendant, the Government, and the public in a speedy adjudication of guilt or innocence.
An appropriate Order accompanies this Memorandum Opinion.
Excerpts from Transcript of Suppression Hearing Held on November 6, 1987
THE COURT: THEY HAVE a VERDICT. THEY WILL CALL AGAIN as SOON as THEY HAVE EVERYBODY BACK TOGETHER.
MR. JACOBOVITZ: I UNDERSTAND.
MAYBE THIS IS a GOOD TIME TO BREAK. FOR a BRIEF MOMENT, IF I MAY, I WOULD LIKE TO ADDRESS the COURT BEFORE MR. BRUNWASSER STARTS HIS CROSS.
I AM LOCAL COUNSEL in THIS MATTER. WHAT I WOULD LIKE TO MAKE a MOTION TO DO at THIS POINT IS TO WITHDRAW.
THE REASON I'M DOING THAT IS BECAUSE MR. GIBSON IS SATISFIED WITH MR. BRUNWASSER. THEY DID NOT WANT LOCAL COUNSEL HERE.
I DO NOT HAVE ANY AUTHORITY TO DO ANYTHING; SO MR. GIBSON HAS NOT HAD the BENEFIT of ANY of LOCAL COUNSEL'S EXPERIIENCE on the RULES and EXPERIENCE IN COURT.
INSTEAD of YOUR HONOR BREAKING UP THIS HEARING SINCE I HAVE a VERDICT, I WOULD ASK THAT MR. GIBSON and MR. BRUNWASSER BE ALLOWED TO PROCEED PRO HAC VICE, which MR. BRUNWASSER WAS INITIALLY APPOINTED TO. I REALIZE THERE IS NO PROBLEM WITH HIM APPEARING in COURT.
APPARENTLY NOW HE HAS NO PROBLEM in COMING TO COURT. I DON'T THINK THAT THAT WILL BE a PROBLEM in the FUTURE.
AND I THINK at THIS POINT, IT IS JUST REPETITIVE in HAVING ME HERE in TERMS of MR. GIBSON PAYING LEGAL FEES.
AND IF YOUR HONOR IS INCLINED TO LET MR. BRUNWASSER PROCEED on HIS OWN, I CERTAINLY HAVE NO OBJECTION TO THAT.
MR. BRUNWASSER CAN ADEQUATELY PROTECT MR. GIBSON'S RIGHTS, and I AM NOT CONTRIBUTING in ANY RESPECT TO ANYTHING.
SO I HAVE NO OBJECTION IF YOUR HONOR ALLOWS ME TO WITHDRAW at THIS TIME and ALLOW MR. BRUNWASSER TO PROCEED PRO HAC VICE in THIS CASE.
MR. BRUNWASSER: YOUR HONOR, ALL THAT IS HAPPENING IS THAT MR. GIBSON CAN'T AFFORD TWO FULL-TIME LAWYERS BOTH DOING the SAME THING.
THE COURT: WELL, I AM SURE MR. JACOBOVITZ IS NOT FULL-TIME. MR. JACOBOVITZ'S ROLE IS TO MAKE CERTAIN THAT WE ARE ABLE TO MOVE THIS CASE FORWARD in CASE YOU DECIDE THAT ...