The opinion of the court was delivered by: HARRIS
STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE.
The Court is in receipt of the most recent motion obviously prepared for defendant by Pennsylvania attorney Allen N. Brunwasser, whose permission to appear in open court was withdrawn pursuant to Local Rule 104(d) by a Memorandum Opinion and an Order dated November 24, 1987.
The motion, filed January 27, is captioned "Motion Raising Question of Criminal Justice Act Insofar as It Impedes Ability of a Defendant To Afford Private Counsel."
The latest motion purports to challenge the appointment and compensation of attorneys under the Criminal Justice Act. Nonetheless, as has become commonplace in Mr. Brunwasser's continued handling of this case from Pittsburgh, delay unquestionably is its principal purpose.
There has been undue delay already as a consequence of the tactics exercised by defendant and his Pennsylvania attorney. It now is apparent that defendant has been advised by Mr. Brunwasser not to communicate with local counsel. Defendant's first local counsel, Richard Huber, filed his motion to withdraw on July 31, 1987, stating in part that "Defendant Gibson and I have been unable to effectively communicate for some time." Defendant's personally chosen second local counsel, Jeffrey Jacobovitz, made multiple requests to withdraw, noting inter alia that defendant would not tell him anything about his version of the facts, that he was instructed not to engage in discovery (or do anything else), and that he was not permitted to review pleadings prior to their being filed.
The Court sees no need to deal with the details of the latest motion. One point, however, should be made. In paragraph 1 of the pleading, it is stated:
Defendant, as ordered by the distinguished Judge Stanley S. Harris on January 5, 1988, sent letters to 119 Criminal Justice List certified attorneys ("CJA").
This is but another distortion of the record because the Court made no such order. At the resumption of the suppression hearing on January 5, Mr. Jacobovitz stated in part:
. . . without Mr. Gibson's cooperation with me and without his version of the facts and whether he does, in fact, want to testify or not, I can't adequately represent him. (Tr. 6.)
Such a situation defies reason, the Fifth Amendment to the United States Constitution, the Speedy Trial Act, and the orderly administration of justice. To be sure, "a defendant should be afforded a fair opportunity to secure counsel of his choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 (1932) (footnote omitted). Now, however, more than seven months have passed since defendant was arrested. The suppression hearing which began on November 6, 1987, should have been completed on that date. In actuality, we have not yet been able to finish with the first suppression hearing witness. In United States v. Burton, 189 U.S. App. D.C. 327, 584 F.2d 485 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979), the Court of Appeals stressed that
. . . the right to obtain counsel of one's choice is not absolute. The right "cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same." (Id. at 489; footnotes omitted.)
Moreover, while defendant and Mr. Brunwasser are all too willing to waive defendant's right to a speedy trial (see, e.g., para. 5 of Attachment 1), no defendant has a unilateral right to interminable delay. Under the Speedy Trial Act, the Court may not grant a continuance even at the request of a defendant unless it makes "findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).
Defendant and his Pennsylvania counsel will not be permitted to continue to frustrate the progress of this case. Accordingly, the case has been referred to a United States Magistrate for the selection and appointment of an attorney for defendant pursuant to Rule 44(a) of the Federal Rules of Criminal Procedure. Defendant has been found ineligible for representation under the Criminal Justice Act. However, the Advisory Committee's note to Rule 44(a) provides that "if a defendant is able to compensate counsel, he is entitled to the assignment of counsel even though not to free counsel." Thus, defendant shall be responsible for appointed counsel's reasonable attorney's fees and costs incurred in the future course of this case.
The Court advises defendant to cooperate fully with appointed counsel. Of course, a defendant has a constitutional right to consult with counsel on any material step after indictment. Hawk v. Olson, Warden, 326 U.S. 271, 278, 90 L. Ed. 61, 66 S. Ct. 116 (1945). A defendant, however, may waive this constitutional right. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). If defendant fails to cooperate with his appointed lawyer, he inevitably will limit to some degree the effectiveness of his legal representation. Defendant hereby is given notice that to the extent that appointed counsel's effectiveness is reduced by further intransigence on the part of defendant, the Court will deem such a reduction of effectiveness to have been the result of a knowing, intelligent, and voluntary waiver by defendant.
As soon as counsel is appointed by a Magistrate, several things are to happen. First, counsel is directed to contact Assistant United States Attorney Theodore Shmanda promptly to conduct the discovery necessary for completion of the suppression hearing on February 16 at 4:00 p.m. Second, counsel is directed to contact defendant in an effort to obtain information that will enable counsel to represent defendant most effectively.
Third, no longer will supposedly pro se pleadings -- quite obviously prepared by Mr. Brunwasser -- be accepted for filing. Only ...