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UNITED STATES v. GIBSON

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


February 4, 1988

UNITED STATES OF AMERICA
v.
JAY LOUIS GIBSON

Stanley S. Harris, United States District Judge.

The opinion of the court was delivered by: HARRIS

MEMORANDUM OPINION

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prepared for defendant by Pennsylvania attorney Allen N. Brunwasser, whose permission to appear in open court was withdrawn pursuant to Local Rule 104(d) by a Memorandum Opinion and an Order dated November 24, 1987. *fn1" 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. *fn2"

 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.)

 The Court reluctantly permitted Mr. Jacobovitz to withdraw, leaving defendant without counsel at the January 5 hearing. Defendant then made it clear that he neither wishes to nor feels able to represent himself. (Tr. 2, 10-12.) The Court merely advised defendant that "we have a list of 126 lawyers, defense counsel, who have just been recertified by the Court as to their competence to practice in criminal cases in this court." Defendant sent Xerox copies of a letter purportedly soliciting counsel to 119 of the lawyers on the CJA list. That action, viewed in the overall context of this case, obviously does not represent a serious effort to obtain another attorney. *fn3" To the contrary, the Court concludes that it represents nothing more than a concerted effort not to obtain a lawyer admitted to practice in the District of Columbia. The objective is not difficult to discern: have defendant come to the rescheduled resumption of the suppression hearing on February 16 and state that he wants an attorney to represent him but that he has been unable to find any lawyer other than Mr. Brunwasser.

 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. ยง 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. *fn4"

 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. *fn5" Third, no longer will supposedly pro se pleadings -- quite obviously prepared by Mr. Brunwasser -- be accepted for filing. Only pleadings signed by appointed counsel will be accepted and the Court henceforth will deal exclusively with appointed counsel. See, e.g., Julius v. Johnson,

 755 F.2d 1403 (11th Cir. 1985) (defendant has no Sixth Amendment right to act as co-counsel.

 Finally, defendant's Motion Raising Question of Criminal Justice Act Insofar as It Impedes Ability of a Defendant To Afford Private Counsel is denied.

 An appropriate Order accompanies this Memorandum Opinion.

 ATTACHMENT 1

 AND NOW, this day of , 1988, upon consideration of the foregoing Motion, the Court Orders:

 1. The Administration Office of the United States Courts shall file with the Clerk of this Court and serve on Defendant, a complete list of all "CJA" appointments and compensation in the District of Columbia for 1986, 1987 and 1988.

 2. After this has been done, each lawyer listed shall file a statement showing

 A. How much gross income he or she has received from non-"CJA" practice for 1986, 1987 and 1988 and

 B. How much gross income has been received from District of Columbia territorial appointments if not included in 2-A.

 C. His or her non-"CJA" usual billing rate requested or stated in the District of Columbia bar association directory.

 D. The number of non-"CJA" clients for the years 1986, 1987 and 1988.

 E. The name of the person who made each "CJA" and territorial court appointment.

 3. All proceedings at 87-311 Criminal to stay meanwhile and until further order of court.

 4. After this material has been served upon Defendant, he shall have 60 days to file a more specific motion requesting specific relief.

 5. This Order is made upon Defendant's waiver of any and all Speedy Trial rights or privileges.

 ATTACHMENT 2

 JANUARY 8, 1988

 1. MY NAME IS JAY L. GIBSON and I LIVE at 1013 ALQUIN ST, McKEESPORT, PA 15133

 2. I NEED a LAWYER TO REPREST ME in the UNITED STATES DISTRICT COURT for THE DISTRICT of COLUMBIA in C.A. 87-1821 and CRIMINAL #87-311 BOTH ASSIGNED TO DISTRICT JUDGE STANLEY S. HARRIS.

 3. I WAS ORIGINALLY REPRESENTED BY ALLEN N. BRUNWASSER, P.O. BOX 22212, PGH, PA 15222 (412) 391-0329

 4. MR BRUNWASSER HAS BEEN REMOVED as MY COUNSEL in a FINAL ORDER DATED 12-23-87 and for REASONS which APPEAR of RECORD THERE and in a MANDAMUS PROCEEDING PENDING in the UNITED STATES COURT of APPEALS.

 5. I WAS ARRESTED at the AMTRAK-UNION STATION on 6-23-87 SUPPOSEDLY WITH 8 OUNCES of COCAINE and HAVE BEEN INDICTED for POSSESSION WITH INTENT TO DISTRIBUTE, TO which I HAVE PLEAD NOT GUILTY and REQUESTED a JURY TRIAL.

 6. A PARTIAL HEARING on SUPPRESSION WAS HEARD on 11-6-87 BEFORE JUDGE HARRIS and the TESTIMONY HAS BEEN PURCHASED and FILED.

 7. MY IMMEDIATE PROBLEM IS OBTAINING a LAWYER TO REPRESENT ME at a CONTINUED SUPPRESSION HEARING SET for 2-16-88 at 4 P.M. BEFORE JUDGE HARRIS.

 8. ALTHOUGH MR. BRUNWASSER WILL NOT BE ALLOWED TO SIT at COUNSEL TABLE SINCE HE IS NOT ADMITTED in the DISTRICT COURT, HE WILL BE PERMITTED TO SIT IN the COURT ROOM and I WOULD WANT HIM TO BE CONSULTED BY YOU IF YOU TAKE THE CASE.

 9. I AM WRITING TO YOU BECAUSE JUDGE HARRIS RECOMMENDED ANY LAWYER FROM THE C.J.A. LIST. IF YOU ARE INTERESTED in TAKING MY CASE, PLEASE REPLY BY JANUARY 22, 1988.

 10. ALSO, I WOULD LIKE TO KNOW the NUMBER of C.J.A. APPOINTMENTS YOU HAVE RECEIVED in 1986 and 1987. IN ADDITION, I WOULD LIKE TO KNOW the TOTAL AMOUNT of COMPENSATION YOU HAVE RECEIVED in 1986 and 1987 FROM C.J.A. FUNDS. THIS REQUEST MAY SEEM ODD, BUT the INFORMATION IS AVAILABLE TO the GENERAL PUBLIC and HAS a BEARING on the CASE.

 11. I AM NOT ELIGIBLE for C.J.A., BUT MY FUNDS ARE LOW, SO PLEASE ADVISE WHAT YOUR RETAINE and HOURLY CHARGE WOULD BE.

 12. FURTHER DETAILS CAN BE OBTAINED FROM MR. BRUNWASSER at (412) 391-0329 OR BY LETTER TO ME.

 RESPECTFULLY YOURS,

 Jay L. Gibson

 JAY L. GIBSON

 ORDER

 On consideration of defendant's Motion Raising Question of Criminal Justice Act Insofar as It Impedes Ability of a Defendant To Afford Counsel and the entire record herein, it hereby is

 ORDERED, that the motion is denied.

 For reasons set forth in the accompanying Memorandum Opinion, it hereby further is

 ORDERED, that the case is referred to a United States Magistrate for the limited purpose of selecting and appointing defense counsel for defendant pursuant to Rule 44(a) of the Federal Rules of Criminal Procedure.

 SO ORDERED.


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