584 F.2d 485 | D.C. Cir. | 1978
Lead Opinion
Opinion for the court filed by MacKIN-NON, Circuit Judge.
Dissenting opinion filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge.
On October 17, 1974 appellant Burton was charged with thirty-five counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a).
On April 26, 1976, the date which was originally set for trial, Dovey Roundtree, one of two counsel retained by appellant, filed a motion to withdraw which was granted by the district court. At the same time, appellant moved for a thirty- to sixty-day continuance for the purpose of seeking counsel to replace Roundtree. The court denied this motion, and it is from this ruling that defendant appeals. The issue presented to us is whether the district court’s ruling deprived appellant of his right to choice of counsel thereby violating the Sixth Amendment’s guarantee of “the Assistance of Counsel for [the accused’s] defence.”
I
The Sixth Amendment
Yet, the right to retain counsel of one’s own choice is not absolute.
In this case, appellant challenges the denial of his motion for a continuance to replace Roundtree, one of his two retained attorneys. It is firmly established that the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application, and is not subject to review absent a clear abuse.
Thus, the trial judge may not insist on such expeditiousness that counsel for the defendant lacks reasonable time to prepare for trial; stripping away the opportunity to prepare for trial is tantamount to denying altogether the assistance of counsel for the defense. On the other hand, the
Given these countervailing considerations, and recognizing that the court has the right to control its own docket to require that cases proceed in an orderly and timely fashion, the conclusion is inescapable that the court in exercise of a sound discretion may grant or deny motions for continuances. As stated by the Court in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964),
The matter of a continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.
376 U.S. at 589, 84 S.Ct. at 849.
We recognize that the right to choice of counsel devolves not only from the due process clause of the Fifth Amendment but also from the more stringent and overlapping standards of the Sixth Amendment.
What is a reasonable delay necessarily depends on all the surrounding facts and circumstances. Some of the factors to be considered in the balance include
All of these factors are the appropriate subject of the trial court’s attention when a continuance is sought. How the balance operates to obtain a result must
The evaluation of appellant’s need for additional counsel, and the balance between the right to select counsel and the public’s interest in the orderly administration of justice must all be carefully and delicately weighed; but sitting as a court of review, we afford substantial discretion to the trial court in judging that balance, and we will not reverse absent a showing of a deprivation of the defendant’s right.
II
Upon consideration of the standard outline above with respect to the instant facts, we find that the district court did not abuse its discretion, and did not violate defendant’s Sixth Amendment rights. Before engaging in this analysis, we set forth the background of this case, which is essential to a full understanding of the legal issues.
Appellant is a physician, and has taught medicine and practiced in the District of Columbia since 1939. Appellant was initially charged in May, 1974, with nineteen counts of unlawful distribution of controlled substances. The essence of the charges was that appellant had in effect acted as a pusher in selling preludin and ritalin to numerous persons by writing prescriptions on mere requests without giving proper physical examinations or taking proper medical histories. When he was first indicted, he hired Allen Hutter as his sole legal counsel.
Sometime thereafter, appellant retained an' additional counsel, Ms. Dovey Round-tree, at Hutter’s suggestion when appellant indicated he desired additional counsel.
The trial date was set for April 26, 1976. On April 23, Roundtree filed a motion “for leave to withdraw as co-counsel.”
That a definite and broad difference of opinion with respect to the prosecution of this case presently exist between her and the client which would make it impossible and do violence to her sworn duty as a member of the Bar of this Court.
That she has discussed the matter with the client and with the trial attorney, Mr. Hutter, and verily believes that her presence and participation in this matter would create a conflict such as might reasonably jeopardize the best interest of the client as he pursues a full trial on the issues herein.
R. 24. This pleading, prepared and signed by Roundtree, clearly refers to Hutter as the trial attorney.
The April 26 proceeding began with the district judge inquiring into Roundtree’s motion and the reasons which underlay it. Roundtree testified that when she first came into the case, she talked with Burton and Hutter, investigated on her own, and concluded that she had “a reasonable and justifiable basis within [her] own conscience mind and principles” to represent appellant.
I do not believe from where I see that I have a defense.
I have talked to — at my home, I think it was a Wednesday night — at length with the doctor of my views in this case.
I think under the Cannons [sic] for me to have such view, for Mr. Hutter to have his view, we have the poor Dr. Burton somewhere in the middle. I don’t think there is a reconciliation of it.
[Roundtree then refers to a defense which had figured importantly in her decision to represent Burton.] I think that to this extent, perhaps I was misled; maybe I am naive, but in that posture, I do not think I would be either fair to Dr. Burton to be associate counsel; I couldn’t be associate counsel, and just sit at the table. That is not my role as a lawyer.
I am greatly disturbed about the posture of the case, and as I read the Cannons [sic] of Ethics and my professional responsibility, I am more and more persuaded, I have no alternative, I will go down the road in my thinking in my persuasion based on the things I have told this Court, and I think Mr. Hutter is going down quite a different road.
THE COURT: You could not be effective counsel for Dr. Burton under those circumstances; you don’t think he has a defense.
MISS ROUNDTREE: That is my view.
Tr., April 26, at 4-5 (emphasis added). Roundtree’s explanation refers to a disagreement between counsel for the defense. It is difficult to perceive why, if Roundtree was lead counsel, the disagreement between Hutter and Roundtree was even pertinent: if Roundtree was the lead counsel, then the views of the associate counsel, if different, would not be of severe concern. Burton was free to participate in the selection of a defense. Instead of choosing the defense proposed by Hutter, he could have chosen the defense offered by Roundtree. Burton had full power to rely on one counsel and to agree to the withdrawal of the other. Burton’s acquiescence in Roundtree’s departure and reliance upon Hutter for the presentation of the defense can hardly be viewed as a denial of defendant’s right to have the lead counsel he wanted. Indeed, Burton simply exercised his choice between alternative defenses proposed by his two counsel. Whatever definition we ascribe to “lead” counsel, it is apparent that Hutter was agreeable to advancing some defense that Burton agreed with and that Roundtree was not. Finally, Roundtree’s statement that it would be unfair “to be associate counsel” is not a conclusive indicator of anything: she might be referring either to the unfairness of becoming associate counsel after having been retained as lead counsel, or when she was antagonistic to promoting the defense that Burton desired, to the unfairness of remaining as associate counsel after having been retained in that capacity. Whatever characterization may be given to Hutter and Roundtree — whether they were co-equal, or whether one was lead counsel and the other subordinate — the fact is that Hutter was willing to present the defense that Burton wanted, and that Burton in the end received the representation that he desired. Hutter was hired first, was fully informed as to the case, was fully prepared, and was available to proceed with a defense that Roundtree was not
After Roundtree’s statement, the court asked Hutter if he was ready to proceed. He responded:
Yes, Your Honor. It is not incumbent to find at this time. I don’t think there is any problem, any statements that the doctor might make now that would pose any problem. I do respect his relationship with Miss Roundtree. I think he could best respond to the Court.
Id., at 6 (emphasis added).
Acting upon Hutter’s invitation, the court asked appellant to speak to the matter. Appellant stated:
[W]hen I was indicted in 1974, I hired Allen Hutter as lead counsel. After the metting [sic], I thought a skilled trial lawyer would be helpful and necessary if [sic] defending this case, especially one familiar with the ghetto community.
Mr. Hutter presented Dovey Roundtree to me. I was well please, [sic] and indeed, an excellent lawyer.
Id. Burton did not say he hired Roundtree as the lead counsel.
The statement that a “skilled trial lawyer would be helpful and necessary [in] defending this case” does not mean that the newly-retained attorney was expected to act as lead counsel, particularly if the defendant was already being served by a skilled trial attorney such as Hutter. Burton’s statement can be read no further than evidencing a belief that “two skilled attorneys are better than one,” and cannot be read as a statement that he intended the newly-retained attorney to act as the lead counsel.
Burton also explained his reasons for retaining Roundtree:
Although Mr. Hutter is a well qualified lawyer, I do not feel he is able to handle the case alone without the assistance of someone who has the skill as with Attorney Roundtree. I am behind the competence, experience and reputation of Attorney Roundtree. I do not want her to stay since she doesn’t want to create an atmosphere of inadequacy, but getting a seasoned trial lawyer to replace her is difficult. I have to secure a new lawyer who must of necessity become familiar with the case.
Id., at 7-8 (emphasis added). Here again, appellant indicates that Roundtree was retained to assist Hutter, not to take over the conduct of the trial. The statement that “she doesn’t want to create an atmosphere of inadequacy” is some indication that this skilled trial lawyer was not engaged by Burton to employ her full talents. Though Burton’s explanation contains references to obtaining a “seasoned trial lawyer,” it is quite sensible for Burton to desire the best lawyer obtainable, even though that lawyer might perform as associate counsel. That he considered Hutter needed assistance, as opposed to supervision, was again emphasized by Burton in further testimony:
From my observation at the beginning, I felt Mr. Hutter needed assistance. Since I relate to the black community, I spoke to him and he brought in Attorney Roundtree who is capable.
Now, I must confess I do not know of an experienced trial lawyer to assist Mr. Hutter in my trial. This would take some time to arrange, if allowed, and the new lawyer would have to acquaint himself with the case.
I, therefore, request Your Honor to grant an extension of time of thirty to sixty days before the case comes up for trial in order to assist and a judgment can be made.
Id., at 8 (emphasis added). To say that someone needs “assistance” is far different from saying someone needs replacement as lead counsel. Burton wanted an experienced, skilled, and seasoned trial lawyer to assist Hutter. At no point does Burton
After the court made inquiries of Government counsel regarding the Government’s opposition to the granting of a continuance, the court made inquiries of Hutter. Hut-ter’s statement reaffirms Burton’s testimony:
[Appellant] did want a black attorney to assist for problems of relating to witnesses, relating to the jury, because of the nature of the community, and that was the primary object that he had in mind.
Id., at 12 (emphasis added). None of the factors to which Hutter alludes require that Roundtree have been hired as lead counsel. Most importantly, it appears that the court, which was very familiar with the case, believed that appellant simply wanted an additional attorney, not a new lead attorney:
In other words, Dr. Burton wants a black attorney — well, I don’t know.
[T]his is certainly a unique situation where the defendant states on the record in open Court that he wants an additional attorney because the additional attorney would happen to be black. It seems not to be very good. The jury shouldn’t consider on the color of the defendant whether he be pink, blue, green.
Id., at 12, 13 (emphasis added). Dr. Burton then explained why he wanted a black attorney: he stated that blacks relate better to blacks.
COURT: You want a black attorney to make a favorable impression.
BURTON: Just the converse with these people, the witnesses and all I called.
Your Honor, may I say this, I am a citizen of this country and you represent the government and whatevéryou [sic] say, I will abide by it really.
COURT: I believe this case will go forward, Dr. Burton.
BURTON: All right, sir.
COURT: You have, Miss Roundtree, my permission to withdraw. I grant your motion, Miss Roundtree.
Id., at 14.
In the April 26 proceeding, the court also inquired into the Government’s reasons for opposing the continuance. Government counsel indicated that the Government was prepared to go to trial, that it had assembled all the witnesses, that it would be a burden to reassemble them at a later date, and that the Government’s attorneys’ caseloads had been adjusted to accommodate the scheduling of this case.
Mr. Hutter should be prepared to go to trial. He has got a lot of the information. I gave him the grand jury testimo
Id., at 10 (emphasis added). This statement, as do the others made by the various declarants in the April 26 hearing, suggests that Hutter had been conducting the case all along and was intended to do so at trial.
To recapitulate, Burton, in all of his testimony, did not say that he hired Roundtree as lead counsel. Indeed, the plain reasonable interpretation to be given his testimony is that he wanted a skilled, black trial attorney to assist Hutter in the conduct of his defense. Even if Roundtree expected to conduct the trial, it was Burton who retained both counsel and who had the authority to specify who would conduct it.
The reasons given by Roundtree for wanting to withdraw were varied. Round-tree noted a disagreement as to the viability of any defense between herself and Hut-ter with Dr. Burton in the middle; but if Roundtree was lead counsel, what Hutter thought would not be controlling, as he would not be conducting the trial. She also indicated a conflict between herself and her client. We do not and need not speculate beyond the record into Roundtree’s beliefs, as the record reasonably supports the conclusion that Roundtree was not the lead counsel. In reaching this conclusion, it is particularly significant that Roundtree’s motion to withdraw refers to Hutter as the trial attorney.
For these reasons and others mentioned earlier, we conclude that the record does not support the conclusion that Roundtree was hired by Burton with the shared expectation that she would function as lead counsel. Instead, the record points to the conclusion that Roundtree was intended to assist Hutter in the conduct of the trial, and that Hutter would continue in the lead role he had performed throughout the pre-trial period. That Burton would want to retain a skilled black attorney to sit at counsel table, perhaps examine a few witnesses, and otherwise assist Hutter, is perfectly understandable and reasonable. But when the district court’s ruling is viewed against this background, it becomes apparent that the district court did not abuse its discretion in denying Burton’s request for a continuance.
Ill
Although the record does not identify with specificity how the trial judge considered the various factors which determine whether the defendant was afforded his right to choose his own counsel, we are satisfied that the district court under these circumstances perceived the salient factors and evaluated them in a manner within the zone of his proper discretion.
It is true that no prior continuances had been requested or granted but Burton’s motion of October 23, 1974, to dismiss the indictment, had delayed the trial of the case until April 1976. That motion was based on this court’s decision in United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426 (1974), which held an indictment identical in theory to Burton’s to be invalid. However, our decision in Moore was subsequently reversed by the Supreme Court, United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). This held, in effect, that Burton’s indictment was also valid. Nothing in the record, however, suggests that appellant improperly contributed to any circumstance which caused Roundtree to request leave to withdraw from the case. Nor does the record suggest that the continuance was requested for the specific purpose of disrupting or undercutting the orderly administration of justice. Had that been the case, the district judge would have denied Roundtree’s request for leave to withdraw. It is a fact, however, that Hut-ter told Burton five days before the scheduled trial date that Roundtree was withdrawing. When he was so advised, he should have immediately started to obtain additional counsel if he considered that to be necessary. The record, however, does not indicate that any such attempt was made. Had he acted promptly it might not have been necessary for him to request the lengthy delay that the court found to be unreasonable under the circumstances.
The question here, however, is whether appellant was afforded his constitutional right to select his own counsel. In determining whether the right was violated, the existence of prejudice is only one of the factors to consider. The existence of prejudice to the case is not a prerequisite to a constitutional violation in this context.
It may be that having a black attorney present at the trial, as appellant planned, might have enabled appellant to relate better to the jury, the witnesses, or the court, as Burton expressed it. But appellant chose Hutter to conduct his defense as lead counsel, and this is precisely what he received. Had Roundtree been the lead trial attorney, appellant clearly would have had a stronger case for a continuance — but with her view that Burton did not have a defense,
The dissent argues that “circumstances beyond appellant’s control invalidated part of the right to choose his defense team and thus the trial court had no discretion to prevent appellant from regaining it.” Dissent at note 45. Thus, the dissent claims that defendant never was given a fair opportunity to secure counsel of his own choice. Dissent at - of 189 U.S.App.D.C., at 500 of 584 F.2d. This argument is based on a quick shift from “de
The district court was in a good position to judge the inconvenience to the litigants, the witnesses, counsel, and the court from granting such a continuance. Any delay might result in some inconvenience, and this case was no exception to that rule.
Since defendant’s constitutional rights were not violated, the judgment of the district court is
Affirmed.
. Appellant was indicted on May 21, 1974 for 19 counts of unlawful distribution of controlled substances. The grand jury returned a second indictment containing 35 counts on October 11, 1974, and then a superseding 35-count indictment was returned on October 17, 1974. The Government dropped the first two indictments and appellant moved for dismissal of the third on October 23, 1974. On authority of this court’s holding in United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426 (1974), rev’d 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the district court granted the motion without prejudice (Original Record (hereafter “R.”) at 4), but on the Government’s appeal, the order granting the defendant’s motion to dismiss was vacated, defendant’s motion was denied, and the case was held in abeyance pending the Supreme Court’s review of Moore (R. at 16). When the Court eventually reversed our decision in Moore, this case was set for trial.
. “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI.
. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
. Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954) (“[A] defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.”); Lee v. United States, 98 U.S.App.D.C. 272, 274, 235 F.2d 219, 221 (1956); Smith v. United States, 53 App.D.C. 53, 54-55, 288 F. 259, 260-61 (1923).
. United States v. Inman, 483 F.2d 738, 739-40 (4th Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974).
. Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir. 1978); United States v. Gray, 565 F.2d 881, 887 (5th Cir. 1978); United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972); United States v. Hampton, 457 F.2d 299, 301 (7th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972).
. Lee v. United States, supra, 98 U.S.App.D.C. at 274, 235 F.2d at 221; Smith v. United States, supra, 53 App.D.C. at 55, 288 F. at 261. Accord, Gandy v. Alabama, supra, 569 F.2d at 1323 and cases cited at n.8.
. Gilmore v. United States, 106 U.S.App.D.C. 344, 348, 273 F.2d 79, 83 (1959) (Burger, J.); Payton v. United States, 96 U.S.App.D.C. 1, 222 F.2d 794 (1955). Accord, United States v. Pou-lack, supra, 556 F.2d at 86; United States v. Harrelson, 477 F.2d 383, 384 (5th Cir. 1973).
. The right of choice of counsel is related to the right to adequate time to prepare for trial. Counsel is not entitled to unlimited preparation time; instead, counsel is entitled to reasonable preparation time. Just as continuances to enable defendants to select counsel need not be granted where the orderly procedures of the court will be disrupted, continuances for more preparation time than necessary need not be granted. In turn, the question of reasonable preparation time is closely related to the issue of inadequate assistance of counsel: if preparation time is unreasonably short, counsel cannot competently represent his client, and may make negligent omissions or acts that deprive defendant of his constitutional right to the assistance of counsel for his defense. While all of these rights are related, as they all are within the parameters of the Sixth Amendment’s right to the assistance of counsel, the right to choice of counsel is distinct from the right to adequate assistance of counsel. The fact that one is infringed does not indicate one way or the other whether the other is infringed. See dissent at n.106.
. See Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970); compare Gandy v. Alabama, supra, 569 F.2d at 1320-23.
. Other listings of factors, similar to ours in many respects, appear in Gandy v. Alabama, supra, 569 F.2d at 1324; Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir. 1971).
. A motion for a continuance may not properly be denied on the sole ground that the time sought is longer than necessary to retain new counsel or to prepare for trial, see dissent at n.14, since unjustifiably long requests for continuances, if otherwise reasonable, can simply be granted for a shorter period of time. Yet, unjustifiably long requests may be indicative of some other defect in the request, such as a dilatory or purposeful intendment. See Lee v. United States, supra, 98 U.S.App.D.C. at 274, 235 F.2d at 221 (accused’s third retained lawyer was granted leave to withdraw on account of a conflict of interest; court appointed attorney previously discharged by defendant; court refused to continue trial over weekend to allow defendant to retain counsel of his choice: held, discretion was abused and defendant’s Sixth Amendment right violated).
. United States v. Brown, 495 F.2d 593, 600 (1st Cir. 1974); Giacalone v. Lucas, supra, 445 F.2d at 1243; Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970); Smith v. United States, supra, 53 App.D.C. at 54-55, 288 F. at 260-61.
. United States v. Mardian, 178 U.S.App.D.C. 207, 213-14, 546 F.2d 973, 979-80 (1976) (en banc); United States v. Brown, supra, 495 F.2d at 600; United States v. Inman, 483 F.2d 738, 740 (4th Cir. 1973); Giacalone v. Lucas, supra, 445 F.2d at 1243; Marxuach v. United States,
. United States v. Oliver, 187 U.S.App.D.C. 230, 231, 571 F.2d 664, 665 (D.C.Cir.1978); United States v. Mardian, supra, 178 U.S.App.D.C. at 213-14, 546 F.2d at 979-80; United States v. Dilworth, 524 F.2d 470, 472 (5th Cir. 1975); United States v. Rodriguez Vallejo, 496 F.2d 960, 964-65 (4th Cir. 1974); United States v. Inman, supra, 483 F.2d at 740; United States v. Sexton, 473 F.2d 512, 514 (5th Cir. 1973); Marxuach v. United States, supra, 398 F.2d at 551.
By this, we do not mean that the court may inquire, without more, into the defendant’s reasons for choosing a particular counsel. The defendant may choose a particular counsel for any reason that he deems important. However, one of the factors appropriate to testing whether a requested delay is reasonable is the good faith of the defendant; accordingly, a court must at times inquire into the reasons for the request for a continuance. Where defendant seeks to obtain an additional counsel or to substitute another counsel for his present one, the court must make certain inquiries into the reasons for the addition or change. This inquiry is appropriate only when a fair opportunity to retain counsel of choice has already been provided. Regardless of whether inquiry into the defendant’s reasons for adding or substituting counsel is relevant in any particular case, the appropriateness of the court’s decision to grant or deny a continuance may turn on other factors, mentioned in the text, which have more significance in the particular factual context. See dissent at text accompanying notes 34-41.
. United States v. Rodriguez Vallejo, supra, 496 F.2d at 965; Lee v. United States, supra, 98 U.S.App.D.C. at 274, 235 F.2d at 221; Neufield v. United States, 73 App.D.C. 174, 182, 118 F.2d 375, 383, cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1941).
. United States v. Mardian, supra, 178 U.S.App.D.C. at 213-14, 546 F.2d at 979-80; United States v. Bragan, 499 F.2d 1376, 1379-80 (4th Cir. 1974); United States v. Brown, supra, 495 F.2d at 600; United States v. Harrelson, supra, 477 F.2d at 384; Giacalone v. Lucas, supra, 445 F.2d at 1243; United States v. Cozzi, 354 F.2d 637, 639 (7th Cir. 1965), cert. denied, 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666 (1966).
. A showing of prejudice to the defendant’s case is not a prerequisite to the granting of a continuance. See United States v. Johnston, 318 F.2d 288 (6th Cir. 1963). However, if some prejudice is identifiable, that finding would lend weight toward granting the requested continuance. It should be noted, however, that other considerations in any particular case, such as the interest in orderly procedures or the interest in avoiding manipulation or subversion of the process, may countervail a showing of prejudice and thereby justify the denial of a request for continuance.
Judge Robinson has thoughtfully considered the applicability of the harmless-error doctrine articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) to this case. In my view, however, this discussion is in the main unnecessary. The Supreme Court has indicated that a Sixth Amendment violation, as it implicates a substantial right of a party, cannot be harmless, Chapman v. California, supra, 386 U.S. at 23, 87 S.Ct. 824, and this proposition was forcefully affirmed in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978):
[T]his Court has concluded that the assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, supra, 386 U.S. at 23, 87 S.Ct. at 827.
Hence, if the trial judge denies a request for a continuance where it would have been fair and reasonable to have done so to enable the defendant to retain or substitute counsel, and thereby violates the defendant’s Sixth Amendment right, the violation is made out, and harmless error tests do not apply.
. United States ex rel. Davis v. McMann, 386 F.2d 611, 620 (2d Cir. 1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153 (1968); United States v. Mitchell, 354 F.2d 767, 769 (2d Cir. 1966).
. United States v. Poulack, supra, 556 F.2d at 86; United States v. Bragan, supra, 499 F.2d at 1378-79; Giacalone v. Lucas, supra, 445 F.2d at 1240. See Gandy v. Alabama, 569 F.2d at 1323-24, 1328.
. In my view, the different view of the record between Judge Robinson and those expressed here explains in large part the different result reached by the two opinions.
. Tr., April 26, 1976, at 6 (testimony of Dr. Burton).
. Id.
. Dr. Burton did not identify the precise date that he retained Roundtree; his testimony indicates that it was sometime after Hutter was retained and sometime before April, 1976 (see, id., at 6-7). Roundtree testified that “I first came into this case before there was a dismissal and not too long before there was a dismissal, and for the record, sometime in early 1975,1 believe, it was.” (Id., at 2). This indicates that Roundtree was not acting as lead counsel at that time.
. Tr., Oct. 23, 1974, at 1. Burton was not arraigned at this proceeding (id., at 7).
. Id., at 1-7. On one occasion, Roundtree attempted to address the court, but Hutter quickly took over:
THE DEPUTY CLERK: Andrew F. Burton, in Criminal Action 596-74, you are charged with unlawful distribution of a controlled substance. How do you wish to plead?
MRS. ROUNDTREE: Your Honor, I was wondering—
MR. HUTTER: Your Honor, I was wondering as Mrs. Roundtree was wondering if in light of these motions, which the Government has, the pleas to this indictment could be held up until that motion has been ruled on as a preliminary matter. .
Id., at 3-4. The remainder of the discussion on this point was handled by Hutter, and Round-tree had nothing else to say at any point in this proceeding. While we decline to speculate from the record, and in no way rely on such observations as a basis for decision, the inference is present that the respective roles of
. Tr., Nov. 11, 1974. Roundtree was silent throughout the entire proceeding.
. Tr., April 16, 1975, at 1.
. Tr., Dec. 17, 1975, at 1.
. Hutter was the first attorney to speak for the defense position (id, at 2). Both attorneys participated in the scheduling of the trial date (id, at 2-3). Hutter first requested January or February (id, at 3), but Roundtree was committed for the last two weeks in February. After the court excluded January and February due to its commitments, Roundtree suggested “March 20th or April” (id.). Hutter immediately interjected “Your Honor, if we are not going to do it in the first part of March, I would request the first part of April” (id). The trial started April 27, 1976.
Hutter announced the defense intention to file speedy trial motions (id, at 3 — 4). When the court asked how long the case would take, it was Roundtree who responded: “Two to three weeks, Your Honor. Under the Supreme Court decision, I think we have to bring on some substantial witnesses with respect to certain matters,” (id, at 4), whereupon the status call was concluded.
Both defense counsel participated in the December 17, 1975 proceeding; but it would not be apt to conclude from this part of the transcript, viewed in isolation, that one or the other was the lead counsel.
. R. at 24. Burton testified that he first received notice that Roundtree wanted to withdraw on April 21, a Wednesday, when Hutter called him. Unable to reach Roundtree by telephone, he sent her a telegram, requesting an appointment. Roundtree met appellant, according to his testimony, during the evening of April 22. He described the meeting:
At this time, she informed me she would like to withdraw from the case. I asked her why, but her reasons did not seem satisfactory to me. I asked her to continue in the role that she wished, but she refused.
Tr., April 26, 1976, at 7.
. Tr., April 26, 1976, at 2-3.
. Id., at 4.
. Roundtree’s full statement was as follows: When it was re-instated, we got back after the time with counsel as associate counsel, Dr. Burton began to do some research, some reading, and we obtained Mr. Spencer Price who is a private investigator, and we began to then get and develop what I gleened to be hard facts.
Burton also stated:
After the case was reopened, [sic] There was a meeting in my office with Mr. Hutter and Miss Roundtree, at which time the case and the trial strategy was fully discussed and was reviewed [sic].
Id., at 7. This does not indicate who was intended to act as lead counsel.
. Hutter’s statement does not clarify one way or the other what relationship Roundtree bore to appellant.
. Burton stated that he did not want Round-tree to withdraw from the case, but he also said that he was not insisting that she remain. In other words, Burton acquiesced in Roundtree’s requested leave for withdrawal:
I do not want Miss Roundtree to drop out of the case. I am concerned with her continuing to represent me in view of the position she has taken within the last several days. Id., at 8. The court said to Roundtree:
Well, under the circumstances, I think Dr. Burton wouldn’t insist that you remain in the case.
Id., at 9. Burton then interjected:
No, sir, I wouldn’t insist for two reasons: first, she doesn’t want to be in;, secondly, I am a Christian, I don’t believe those who reject you for anybody to be forced into anything at such time.
Id. As we find no violation of appellant’s constitutional right to the assistance of counsel for his defense, we need not reach the question of whether appellant’s consent to proceed with Hutter as his counsel amounted to a waiver of his right to any additional counsel. It should be noted, however, that Burton was less than forceful in asserting his need or right to obtain additional counsel.
. Id., at 13.
. Id., at 9-10.
. After the initial hearing on April 26, 1976, the trial lasted through the following days: April 27, 28, and 29; and May 3, 4, 5, 6, and 10.
. See Tr., April 27, 1976, at 62; Tr., April 28, 1976, at 256; Tr., April 29, 1976, at 495; Tr., May 3, 1976, at 681.
. Tr., May 10, 1976, at 1385.
. See note 19 supra.
. Tr„ April 26, 1976, at 4-5.
. Id., at 6.
. The dissent would attach no significance to the fact that the remaining counsel was the lead counsel: “[I]f a [a defendant] becomes objectively or subjectively dissatisfied with one important member of his team, his entitlement to a continuance to secure a replacement normally is no different than if the member in question was his only counsel.” Dissent at-of 189 U.S.App.D.C., at 508 of 584 F.2d. When a defendant is initially afforded the opportunity to retain counsel, he may retain as many as he can afford (subject to the power of the court to limit the number that may participate in court). And a defendant may thereafter add as many attorneys as he desires, so long as he does not acquire counsel to disrupt the orderly process of justice. However, when on the eve of trial, a defendant seeks a continuance to add or substitute counsel which necessitates a rescheduling of the trial, many factors are relevant to whether the request for delay is reasonable. If the defendant has other competent counsel prepared to go to trial, then the court, when considering all the factors, need not tolerate as much inconvenience as in the case where defendant has no other counsel prepared to go to trial. This is not to say that defendant’s rights differ in one case or the other; this is only to say that the result of the balancing may differ when the circumstances are different. And it goes without saying that whether the remaining counsel is prepared to go to trial may be substantially affected by whether he was retained as lead or associate counsel.
. The dissent criticizes the lack of specific record evidence listing the inconvenience which would be encountered from granting the continuance (Dissent at---of 189 U.S.App.D.C., at 510 of 584 F.2d). The Government did refer to the “time to get all the witnesses together.” Tr., April 26, 1976, at 10. It would have been better for our review if the specific nature of the inconvenience had been set forth by the Government and/or sought out by the trial judge. Here, we do not rely on the amount of inconvenience enumerated in the record as the principal factor in the balance. Rather, this is one factor which lends weight toward affirming the district court, inasmuch as defendant did receive the service of his lead counsel.
. It is also stated in the dissent that the district court predicated its disposition on its disapproval of what it deemed to be. a “singular desire on appellant’s part to engage a black trial attorney as one of his counsel” (Dissent at - of 189 U.S.App.D.C., at 510 of 584 F.2d). In our view, the record does not bear out this characterization of Burton’s asserted position. The trial judge noted that, in his view, the defendant wanted “an additional attorney because the additional attorney would happen to be black” (Tr., April 26, 1976, at 13; emphasis added). As noted earlier, the reasons for re
. The dissent contends that United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973 (1976) (en banc) and Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219 (1956), read together, control this case. We disagree. The resolution of cases involving the denial of a request for a continuance depend on the particular circumstances. Mardian is distinguishable on several grounds. First, the counsel for defendant who remained after co-counsel was taken ill had not been personally retained by defendant (178 U.S.App.D.C. at 213, 546 F.2d at 979). Second, Mardian stated in court that he had taken special care in selecting the counsel who became sick, who was very definitely his lead counsel (id.). Third, even though the court recognized that defendant bore no responsibility for his lead counsel’s absence, the court noted two factors which made defendant’s motion unique — (a) joinder of Mardian with the other defendants was not supported by evidence as strong as that against the other defendants (178 U.S.App.D.C. at 214, 546 F.2d at 980); and (b) the Government did not oppose Mardian’s motion (id.). The court gave this last factor the highest importance, as it demonstrated that granting the motion would not have caused undue disruption. Lee is distinguishable on its facts as well. Defendant’s two retained counsel requested, with defendant’s consent, permission to withdraw from the case. Defendant advised the judge that he had obtained a third attorney who was ready for trial. Permission to withdraw was granted by the court. When the new attorney appeared before the trial judge, he announced that he was troubled about a possible conflict of interest. The court, after hearing some of the circumstances, granted permission to the new attorney to withdraw and appellant requested a short two day continuance over the weekend to obtain new counsel. The court refused this request and then directed one of the two attorneys who had been allowed to withdraw, to conduct the defense. It became clear at that time that defendant objected to either of the two prior attorneys representing him and that both prior counsel desired to comply with appellant’s position. The Court of Appeals stated that appellant bore no responsibility for being without counsel at the beginning of trial. Thus, under these circumstances, the defendant was denied a reasonable request to select counsel and was never represented by counsel of his own choosing. 98 U.S.App.D.C. at 274, 235 F.2d at 221. Lee is a far cry from the facts here. Thus, Mardian is distinguishable on several grounds, and Lee involved a situation where defendant was denied a fair opportunity to choose his own counsel after he discharged his original attorneys and had no one available to represent him who did not have a disqualifying conflict of interest. These two cases, read together, do not indicate how the balance of the various factors should be performed in a case where the circumstances are markedly different.
Dissenting Opinion
dissenting:
Appellant challenges the District Court’s denial of his motion for a continuance to enable Mm to obtain replacement counsel after the court permitted one of his existing counsel to withdraw on the eve of trial. My colleagues affirm, applying an abuse of discretion standard to the totality of the circumstances.
Even if the District Court had discretion to deny the opportunity to retain new counsel in light of the factors enumerated in the majority opinion, that discretion was not exercised in this case because the court relied solely on one improper consideration. Thus I think error was committed. I am unable, moreover, to shed reasonable doubts about whether the error prejudiced appellant in his unsuccessful endeavor to win an acquittal on the drug charges on which he was prosecuted.
I. THE BACKGROUND EVENTS
Appellant, a physician, had practiced his profession in the District of Columbia since 1939. When, in 1974, he was subpoenaed to appear as a witness before a grand jury, he retained Allen M. Hutter as his sole counsel. Later that year, appellant was charged in a 19-count indictment with unlawful distribution of controlled substances.
As fate would have it, appellant was not destined for an early trial. The grand jury returned a second indictment charging 35 drug violations, and then a superseding 35-count indictment; the Government dropped the first two indictments and appellant— with Ms. Roundtree first appearing as counsel — moved for dismissal of the third. On authority of this court’s holding in United States v. Moore,
Five days before trial was to commence, appellant learned from Mr. Hutter that Ms. Roundtree had indicated a desire to terminate her services. Appellant attempted to contact her but did not succeed until she responded to his telegram late the following day, a Thursday. Despite his entreaties, she refused tb continue as counsel, and on Friday she filed a motion for leave to withdraw. On Monday morning, the date upon which trial was to begin, the District Court heard the motion. Ms. Roundtree explained that “I do not believe . . . that I have a defense,” adding that she and Mr. Hutter were “working at cross-purposes.”
Indulged that opportunity, appellant declared that he was “surprised and shocked” by Ms. Roundtree’s decision and “anguish[ed] because my reputation and livelihood are at stake.”
Although Mr. Hutter is a well qualified lawyer, I do not feel he is able to handle the case alone without the assistance of someone who has the skill [of] Attorney Roundtree . . . . I do not want her to stay since she doesn’t want to create an atmosphere of inadequacy, but getting a seasoned trial lawyer to replace her is difficult. I have to secure a new lawyer who [must] of necessity become familiar with the case.
* * * sf: % sjs
From my observation at the beginning, I felt Mr. Hutter needed assistance. Since I relate to the black community, I spoke to him and he brought in Attorney Roundtree who is capable.
* * * * * *
I, therefore, request Your Honor to grant an extension of time of thirty to sixty days before the case comes up for trial . . ..[
The Government opposed continuance on the- grounds that many weeks had been spent in preparation, that many witnesses had been summoned and that appellant should have been ready for trial. The court, noting Mr. Hutter’s competence and experience — which no one denies — felt that
this is certainly a unique situation where the defendant states on the record in open Court that he wants an additional attorney because the additional attorney would happen to be black .
As a matter of fact, for the jury, Dr. Burton, to feel sympathy for you or decide the case on the basis of your attorney’s color and your color or Mr. Kogan [Government counsel] or my color or anything like that, that isn’t a consideration that the jury could [] properly weigh.
Responding personally, appellant insisted that “[i]n the black community, blacks relate to blacks better, some relate better,”
II. THE RIGHT TO COUNSEL OF CHOICE
A. General Principles
The Sixth Amendment guarantees invaluable procedural safeguards to an accused, including prominently the “right to have the Assistance of Counsel for his de-fence.”
Consequently, while continuance of a trial is a matter normally within the discretion of the court,
Once that initial opportunity has been fully provided, however, the court, with due
B. The Relevance of the Accused’s Reasons for Wanting New Counsel
The accused’s side of the balance can feature either subjective or objective grounds for a requested continuance. Instances of subjective dissatisfaction with the original choice — a recent loss of confidence in counsel, for example — frequently call upon the court to decide whether the accused seeks the continuance in good faith. In analyzing any given situation for a determination on that score, the court obviously must often inquire into the reasons for the request and for not having acted earlier. Those advanced for the asserted need for substitute or additional counsel might, of course, depend on “facts” that the
This distinction is well illustrated by one of our own decisions. In dealing with an
The accused who has had an adequate chance to secure counsel, and who on the very eve of trial seeks a postponement to obtain a substitute or additional counsel, needs a strong showing of sincerity to overcome a natural inference of bad faith.
C. . The Circumstances Here
Reverting to the case at bar, we may first observe that appellant’s good faith has not been challenged by the Government — nor hardly could it be. He had retained Ms. Roundtree many months before trial, and from aught that appears her last-minute motion to withdraw came as a sudden surprise. Surely the District Court did not believe that the episode was a planned dilatory tactic, for if the court had it should— and presumably would — merely have denied withdrawal.
Here, it is clear that appellant’s earlier retention of counsel of choice was rendered nugatory by an event beyond his control.
More than two decades ago we articulated the legal principle that governs this case. In Lee v. United States,
[Ajppellant bore no responsibility for being without counsel on the eve of his trial. He had appeared for trial with counsel of his own choosing, and the record does not show that he had anything to do with that counsel’s withdrawal by leave of court. However that withdrawal may have obstructed the processes of court, such obstruction is clearly not chargeable to the appellant and cannot be made the occasion for denying him his constitutional right to counsel of his own choosing.
Furthermore, we indicated that in circumstances objectively invalidating the initial choice of counsel — as when the accused seeks to replace a withdrawing retained attorney — the court cannot force unwanted counsel upon him, however ill-founded his objections to that counsel may be.
We recently reaffirmed the objective-grounds rule set down in Lee. Sitting en banc in United States v. Mardian,
Although Mardian does indicate a wholesome concern for the orderly administration of justice,
The foregoing analysis establishes both the limited number of justifications for denying a requested continuance in these circumstances and the rigorous scrutiny to which such a denial must be subjected. Even if inconvenience to trial participants could ever outweigh appellant’s objectively-grounded assertion that his earlier Sixth Amendment choice of counsel had become ineffectual, I am not persuaded that the Government made a sufficient showing. The record does not indicate that any of the Government’s witnesses were from afar, nor does it specify any inconvenience to those in the vicinity, many of whom were local police officers or informants.
Moreover, even if my colleagues were correct that a denial of the continuance sought by appellant could have been supported on the basis of inconvenience, the District Court gave no indication that it “perceived the salient factors and evaluated them. . . . ”
One further consideration merits brief discussion. Even if it had been the District Court’s function to judge any more than the sincerity of appellant’s reasons, the court would still have erred.. The majority apparently agrees that a feeling that black counsel might do better than white counsel with black witnesses and jurors is no more improper than one that ofttimes prompts a litigant to retain a handsome lawyer, a glib lawyer or a famous lawyer.
I would find, then, that the District Court denied appellant’s motion for continuance in the erroneous view that the reason behind it was unworthy.
III. WAIVER
The court does not reach this issue, but it hints that appellant “was less than forceful in asserting his ... right. . ”
IV. HARMLESS ERROR
The final question, and — though my colleagues deem the answer foreclosed
A. General Principles
The justification for harmless-error rules is singleminded: they avoid wasting the time and effort of judges, counsel and other trial participants.
My point of departure is the nature of the error I see here: a constitutional breach in a criminal case. The heavier burden of proof — beyond a reasonable doubt — constitutionally imposed upon the Government in a criminal case
The interaction of all these factors is reflected in the rule laid down by the Supreme Court over a decade ago in Chapman v. California,
B. The Probability of Prejudice in This Case
Appellant’s right to counsel of his choice was violated when he was denied the opportunity to secure new counsel to replace Ms. Roundtree. Since, however, Mr. Hutter represented him throughout the trial, obviously the violation did not negate all of the Sixth Amendment protection to which he was entitled. Nonetheless, I have reasonable — indeed, substantial — doubts that it did not materially affect the evidence and argument presented on his behalf to the jury. Mr. Hutter performed competently, but the right to effective assistance of counsel is not the concern here. Appellant’s Sixth Amendment right was to retain not merely adequate counsel but one or more exceptional counsel if he could.
.Many of the raw facts of the case were not in serious dispute, but the interpretation of the facts definitely was. Appellant’s office admittedly was a madhouse at times; the Government’s evidence certainly indicated that appellant had many more patients than any one physician should attempt to handle, and that many of them received what charitably can be called less than thorough care.
On this we are not permitted nor am I willing to speculate, particularly in the context of a criminal appeal where the Government’s burden is to establish harmlessness beyond a reasonable doubt.
To determine the precise degree of prejudice sustained by Glasser as a result of the court’s [action] is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.
Because I believe that the right to a reasonable opportunity to replace one counsel on a two-attorney defense team is as fundamental as the right to have both members of such a team devote their full energies to their client, I too would decline “to indulge in nice calculations” of prejudice.
I am supported in this course by the very nature of the constitutional deprivation confronting us here. To treat the error as harmless on the ground that one cannot perceive grave fault in Mr. flutter’s performance
The logic of this conclusion is exemplified by a Fourth Circuit decision in which the statutory right to have two appointed counsel in federal capital cases
A refusal to demand precise quantification of prejudice in these limited circumstances is further necessitated by the character of the interests shielded by the constitutional protection denied in this case. Lest we forget, the right to counsel of choice is one that safeguards the dignity of the accused and of the court. The right to choose to defend oneself pro se, the Supreme Court has recently proclaimed, is also such a right,
Indeed, this court adopted that very proposition many years ago. In Smith v. United States,
If I believed it possible on careful scrutiny to determine the presence or absence of
Y. CONCLUSION
The scope of trial-court discretion with respect to motions for continuance does not extend to the point of denying an accused a fully effective opportunity to retain a team of defense attorneys of his choice. That, however, has happened in this case, and I think the ensuing error was harmful. I must, then, respectfully dissent.
. Majority Opinion (Maj.Op.) at-of 189 U.S.App.D.C., at 490 of 584 F.2d.
. Discussed in Part II infra.
. Discussed in Part IV infra.
. Pursuant to the Controlled Substances Act § 401, 21 U.S.C. § 841(a) (1976).
. Joint Appendix (J.App.) 6.
. 164 U.S.App.D.C. 319, 505 F.2d 426 (1974), rev’d, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). There we held that a licensed physician registered under the Controlled Substances Act as a prescriber of methadone was not subject to prosecution under § 841 for dispensing narcotic drugs for illegitimate purposes.
. The Supreme Court had granted a writ of certiorari on February 19, 1975. 420 U.S. 924, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975).
. Supra note 6.
. J.App. 4-5.
. J.App. 7.
. Ms. Roundtree had been a member of the bar for 24 years. Mr. Hutter’s tenure at the bar was 15 years, 11 in the District of Columbia.
. J.App. 7-8.
. J.App. 8.
. It seems clear that a justified motion for a continuance with a view to securing new or additional counsel may not be denied merely because the time sought is longer than the court deems necessary. That is the more so when the request comes from an accused untutored in the ways of the law. The correct response is to allow a reasonable time for retention of counsel desired — normally a few working days — with extensions if the accused - can show that he has attempted in good faith but unsuccessfully to arrange acceptable representation. Once counsel is engaged, the court could ask for an estimate of the time he needs to prepare for trial, and if dissatisfied with the response the court could require justification. The court would of course remain able to exercise its discretion to deny unreasonable requests.
. J.App. 8.
. J.App. 13.
. J.App. 13.
. J.App. 14.
. Seven of the 35 counts had been dismissed pursuant to a motion by the Government as trial started.
. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158, 162 (1932); accord Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291-1292, 2 L.Ed.2d 1448, 1454 (1958); Maj. Op. text at notes 4-6; see cases cited notes 35-36 infra. See also Gideon v. Wainwright, 372 U.S. 335, 341, 83 S.Ct. 792, 794, 9 L.Ed.2d 799, 803 (1963) (Powell applied Sixth Amendment standards of right to counsel).
. See United States v. Inman, 483 F.2d 738, 739-740 (4th Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974).
. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 931 (1964). See generally Note, The United States Courts of Appeals: 1976-1977 Term Criminal Law and Procedure, 66 Geo.L.J. 203, 414-418 (1977). Though a motion for a continuance based on the attorney’s need to prepare more adequately for trial implicates the right to counsel, trial courts must be granted considerable discretion in that situation because a determination of the time necessary calls for the application of informed wisdom. No such “judgment call” is required by a decision whether circumstances have stolen away an accused’s initial chance to choose the lawyer to whom he will in large part entrust his freedom. See text accompanying notes 41, 51 infra.
. Maj.Op. text at note 10; see State v. McFadden, 292 N.C. 609, 234 S.E.2d 742, 744 (1977) (“when a motion to continue is based on a constitutional right, the question presented is a reviewable question of law”); cf. United States v. Dinitz, 538 F.2d 1214, 1222 (5th Cir. en banc 1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 556 (1977) (no abuse in allowing one cocounsel to withdraw where defendant had “ample opportunity to secure another attorney”). The Supreme Court, reminding us that continuances are ordinarily within the trial judge’s discretion, in the same breath has admonished that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar v. Sarafite, supra note 23, 376 U.S. at 589, 84 S.Ct. at 849, 11 L.Ed.2d at 931. See also Powell v. Alabama, supra note 21, 287 U.S. at 59, 53 S.Ct. at 60, 77 L.Ed. at 165-166.
. Giacalone v. Lucas, 445 F.2d 1238, 1240 (7th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793 (1972).
. Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4, 10 (1954). Of course, the accused has no “absolute right to a particular counsel,” United States v. Poulack, 556 F.2d 83, 86 (1st Cir. 1977) (emphasis in original), and may not insist upon one so situated that he could not try the case within a reasonable space of time. Id. at 85-86 (no abuse of discretion in ordering substitution of counsel where, after previous three-month continuance, original counsel still would not have been available for two more months); United States v. Harrelson, 477 F.2d 383, 384 (5th Cir.), cert. denied, 414 U.S. 847, 94 S.Ct. 133, 38 L.Ed.2d 95 (1973) (denial of requested change of counsel three days before trial was not an abuse of discretion where new counsel was about to be hospitalized and had not in fact accepted the case); United States v. Upshaw, 448 F.2d 1218, 1224 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972) (trial court did not abuse its discretion in denying change of counsel five days before trial where no reason was given and new counsel was in hospital and would remain there for 18 days). The trial judge in Poulack appropriately handled the situation by offering the accused two weeks within which to choose a substitute and then, when the accused refused to do so, by appointing counsel who had, after another short continuance, a total of seventeen days within which to prepare.
. Giacalone v. Lucas, supra note 25, 445 F.2d at 1240; Releford v. United States, 288 F.2d 298, 301 (9th Cir. 1961); see United States v. Anderson, 165 U.S.App.D.C. 390, 401-403, 509 F.2d 312, 323-325 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). Some courts view the failure to retain satisfactory counsel within a reasonable time as an implied waiver of the right freely to choose counsel. E. g., United States v. Rodriquez Vallejo, 496 F.2d 960, 964 (1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d 179 (1974); United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). When the accused seeks to dismiss his retained or appointed counsel and defend himself, the impaneling of the jury has been set by some courts as the outer limit of timeliness, at least in the absence of bad faith. Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1977); see United States v. Dougherty, 154 U.S.App.D.C. 76, 87, 473 F.2d 1113, 1124 (1972). Although I see no obvious distinction between replacing original counsel with self-representation and doing so with new counsel, I need not decide whether the same general cutoff point should obtain. In the circumstances of this case — Ms. Roundtree’s unexpected withdrawal, approved by the court as trial was about to get under way — an immediate request for an opportunity to secure a replacement would be timely under any general rule. See text accompanying notes 41, 51-55 infra.
. Smith v. United States, 53 App.D.C. 53, 55, 288 F. 259, 261 (1923); accord, United States v. Cozzi, 354 F.2d 637, 639 (7th Cir. 1965), cert. denied, 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666 (1966) (“[i]t is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part”).
. United States v. Oliver, 187 U.S.App.D.C. 230, 231, 571 F.2d 664, 665 (1978); Neufield v. United States, 73 App.D.C. 174, 182, 118 F.2d 375, 383, cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1941) (“[a]n accused aware of his right to counsel and able to obtain counsel himself cannot over an extended time . omit to take any steps either towards himself retaining counsel for the trial proper or towards securing an appointment by the court and then — at the moment of commencement of trial — properly complain that unless a continuance is granted in order that he may select counsel he will have been denied the right of choice”); Smith v. United States, supra note 28, 53 App.D.C. at 54-55, 288 F. at 260-261 (no abuse of discretion in denying continuance on account of counsel’s engagement in another trial where accused and counsel had ample notice that case would be tried on specified date and had received two earlier continuances); United States v. Rodriquez Vallejo, supra note 27, 496 F.2d at 961-962 (denial of substitution of counsel on day before trial was to start was not abuse of discretion where accused had plenty of time to substitute earlier and trial court considered request to be in bad faith); United States v. Brown, 495 F.2d 593, 600 (1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d 179 (1974) (denial of request for third successive counsel on day of trial was not an abuse of discretion where trial court had already granted a two-week continuance for the first substitution of counsel); Rolon Marxuach v. United States, 398 F.2d 548, 550-551 (1st Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968) (no violation of “duty to give consideration to a defendant’s preference with respect to representation” where unfounded reasons for discontent with remaining counsel indicated lack of good faith and where delay would have impeded “expeditious handling of his case”); United States ex rel. Martinez v. Thomas, 526 F.2d 750, 754 n. 6 (2d Cir. 1975) (“[djefendantsf’j . . . Sixth Amendment right to counsel of their own choosing . may not be manipulated in order to delay or interfere with the orderly processes of justice”); United States v. Grow, 394 F.2d 182, 209 (4t.h Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968) (accused gave no reason for dissatisfaction on verge of trial and had had eight previous months to consider and make a change); United States v. Moore, 569 F.2d 1312, 1313 (5th Cir. 1978) (after continuance to allow accused to retain counsel and warning that no further delay would be tolerated, accused appeared at arraignment without counsel); United States v. Dilworth, 524 F.2d 470, 472 (5th Cir. 1975) (lack of specific reasons for dissatisfaction on day before scheduled trial and choice of another attorney who was busy in another trial “strongly suggests that the motion for continuance was merely a pretext for delay”); United States v. Sexton, 473 F.2d 512, 514 (5th Cir. 1973) (not an abuse of discretion to conclude that motion was “interposed for delay” where
. United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir. 1974), quoting United States v. Grow, supra note 29, 394 F.2d at 209.
. In United States v. Johnston, 318 F.2d 288 (6th Cir. 1963), the accused’s original counsel notified him on a Friday that he could not make the trial, which was to start on the following Tuesday, but that his law partner would try the case in his stead. Id. at 289. The accused rejected this arrangement, and though he tried unsuccessfully to retain new counsel, the court ordered the trial to start with the partner representing the accused. The Sixth Circuit reversed, holding that the accused had to be afforded a reasonable opportunity to retain substitute counsel and that the period between Friday and Tuesday was too short. Id. at 291. See also United States ex rel. Davis v. McMann, 386 F.2d 611, 620 (2d Cir. 1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153 (1968) (six days through three short continuances was insufficient time within which to retain counsel under the circumstances). Similarly, in a case involving difficult issues and an unpopular client, the Second Circuit held that five days were too few to enable the client to hire new counsel after the discharge of original counsel. United States v. Mitchell, 354 F.2d 767, 769 (2d Cir. 1966).
. United States ex rel. Davis v. McMann, 252 F.Supp. 539, 545 (N.D.N.Y.1966), aff’d, supra note 31.
. See, e. g., United States v. Shuey, 541 F.2d 845, 847 (9th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1103, 51 L.Ed.2d 537 (1977).
. Courts do, of course, have a duty “to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970). See generally Bazelon, The Realties of Gideon and Argersinger, 64 Geo.L.J. 811, 830-831 (1976). See also Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978). They also must consider whether a particular choice of counsel creates a conflict of interest problem. See, e. g., United States v. Bernstein, 533 F.2d 775, 788 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). See also In re Investigation Before February 1977 Grand Jury, 563 F.2d 652 (4th Cir. 1977). And courts need not allow counsel who are disruptive or contumacious to represent an accused if proper steps are taken to protect his interests. United States v. Dinitz, supra note 24, 538 F.2d at 1221.
. United States v. Seale, supra note 29, 461 F.2d at 358; accord, United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973), quoting United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969) (“defendants who retain counsel also have a right of constitutional dimensions to representation by counsel of their own choice”); United States v. Dinitz, supra note 24, 538 F.2d at 1219 (“the Sixth Amendment requires the courts to respect a defendant’s own particular choice of counsel” (emphasis in original)); cf. SEC v. Csapo, 174 U.S. App.D.C. 339, 342-343, 533 F.2d 7, 10-11 (1976) (statutory guarantee to assistance of counsel before administrative agency “has been construed to imply the concomitant right to the lawyer of one’s choice”). See also In re Investigation Before April 1975 Grand Jury (Rosen), 174 U.S.App.D.C. 268, 277, 531 F.2d 600, 609 (1976) (right to counsel of own choice is a “delicate area”).
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court discussed the right of an accused to proceed pro se, but the reasoning of the opinion is quite relevant here. The Court noted that “[t]o thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment.” Id. at 820, 95 S.Ct. at 2533, 45 L.Ed.2d at 573. And the Court pointedly concluded that “[a]n unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction.” Id. at 821, 95 S.Ct. at 2534, 45 L.Ed.2d at 573.
. See Maj.Op. at note 16. The California Supreme Court has spoken forcefully on this point:
Whether or not the court is personally acquainted with the attorney to be associated, or whether or not that attorney enjoys the confidence of the court, are considerations wholly irrelevant to the constitutional issues confronting the trial court. It is the defendant’s confidence which is at stake, not that of the court.
Magee v. Superior Court, 8 Cal.3d 949, 106 Cal.Rptr. 647, 506 P.2d 1023, 1025 (1973) (emphasis in original).
Likewise, the Fifth Circuit recently held that a trial court has no cause to judge the validity of an accused’s reasons for a timely request to dismiss counsel and proceed pro se. Chapman v. United States, supra note 27, 553 F.2d at 893-89^.
Neither my colleagues nor I pass today on the propriety of requiring some adequate reason, as opposed simply to sincere dissatisfaction, in support of a request for new appointed counsel. See Brown v. United States, 105 U.S.App.D.C. 77, 80, 264 F.2d 363, 366 (en banc), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959). Indeed, the court might have a duty to inquire into the basis for the accused’s dissatisfaction. Id. at 84, 264 F.2d at 370 (dissenting opinion). See also Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976) (refusal without good cause to proceed with able appointed counsel is waiver of right to counsel); Tague, An Indigent's Right to the Attorney of His Choice, 27 Stan.L.Rev. 73 (1974).
. McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791 (1965).
. Id. at 183, 348 F.2d at 795 (emphasis supplied).
. Id. at 182-183, 348 F.2d at 794-795.
. See cases cited supra note 29.
. See notes 51-52, 55 infra and accompanying text.
. Compare United States v. Ruiz, 533 F.2d 939, 940 (5th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 532, 50 L.Ed.2d 613 (1976) (trial court did not abuse its discretion in refusing both continuance and withdrawal where no effort was made to solve problems during long period before trial). Other options available to a court believing that counsel has inexcusably caused costly delay or is engaged in a contumacious attempt to defer trial or in an unethical abandonment of his client include the assessment of costs for delay and punishment for criminal contempt. United States v. Lespier, 558 F.2d 624, 628 (1st Cir. 1977), citing In re Sutter, 543 F.2d 1030 (2d Cir. 1976) and United States v. Marx, 553 F.2d 874 (4th Cir. 1977).
. See text supra at 3. The court asserts that appellant had five days to replace Ms. Round-tree, but in fact he did not know for certain that she wanted to leave until Thursday night, or that she would be allowed to withdraw until Monday morning — the day trial was to begin.
. Compare United States v. Rosenberg, 257 F.2d 760, 764 (3d Cir. 1958), aff'd on other grounds, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959) (unwarranted delay in reacting to illness of chief trial counsel).
. Cf. Illinois v. Pendleton, 52 Ill.App.3d 241, 9 Ill.Dec. 762, 767, 367 N.E.2d 196, 201 (Ill.App. 1977), cert. denied, 435 U.S. 956, 98 S.Ct. 1590, 55 L.Ed.2d 809 (1978).
My colleagues concede that an accused is constitutionally entitled to an initial opportunity to “retain as many [lawyers] as he can afford (subject to the power of the court to limit the number that may participate in court),” Maj.Op. at note 46, and that it was “quite sensible for [appellant] to desire the best lawyer obtainable, even though that lawyer might perform as associate counsel.” Id. at - of 189 U.S.App.D.C., at 495 of 584 F.2d. By my analysis, circumstances beyond appellant’s control invalidated part of the right to choose his defense team and thus the trial court had no discretion to prevent appellant from regaining it. Consequently, in assessing whether a constitutional violation has occurred, it makes no difference whether Ms. Roundtree was intended to serve as lead counsel. That would be significant only in determining whether the violation was harmless. See text infra at note 110.
In any event, I think the record on this matter — which is critical in the court’s analysis — is much less clear than a reading of the majority opinion might indicate. Appellant states in his brief that Ms. Roundtree was in fact to be lead counsel. E. g., Brief for Appellant at 1, 3, 8, 10, 15, 16, 17. The Government’s brief, which is signed by the trial prosecutor, never denies that. Indeed, the Government confirms that “Mrs. Roundtree said . . . that she could not take a passive role as associate counsel in the case,” Brief for Appellee at 3; accord, id. at 12, and that “Mr. Hutter told the court that appellant wanted a black attorney to try the case." Id. at 5 (emphasis supplied); accord, id. at 4. It is quite natural for a layman to say, as appellant did, that the chronologically-second lawyer he retained was hired to assist the initial lawyer, even though the second was to be the trial lawyer. Furthermore, Ms. Roundtree’s statement that “I do not think I would be . fair to Dr. Burton to be associate counsel,” J.App. 27, was spurred not by a disinclination to continue as associate counsel after she and her client had disagreed on the defense to be presented, but by her belief that she could not be lead trial counsel for that very reason and her refusal to take a less active role than planned. As she said, “I couldn’t be associate counsel, and just sit at the table. That is not my role as a lawyer." Id. (emphasis supplied).
Though irrelevant to my analysis, the proposition that Ms. Roundtree was not to be lead counsel — or even an equal partner in the defense — but rather a mere assistant to Mr. Hut-ter is central to the court’s disposition. See Maj.Op. at note 22. The court is able to reach its decision to affirm only by concluding that Ms. Roundtree was to act in a subservient capacity. The record undisputably leaves room for doubt on that score, and I would not share any reluctance at least to remand for an accurate determination of that fact if I felt it crucial to the outcome. And because the court operates on cryptical indications in the trial record, I see no reason why our ruling today would be dispositive of a new-trial motion seeking to establish beyond peradventure that Ms. Round-tree’s trial role was to equal or exceed that of Mr. Hutter.
. Maj.Op. at note 46; State v. Waterhouse, 3 Conn.Cir. 102, 208 A.2d 354, 356 (1964).
. See Gandy v. Alabama, 569 F.2d 1318, 1326 (5th Cir. 1978) (“[t]he trial court abused his discretion . when he refused either to grant the motion for a reasonable continuance in order that the Petitioner have the assistance at trial of counsel whom he had chosen and retained or in some other matter assure the continued attendance of Petitioner’s retained counsel, who announced an intention to abandon Petitioner and later did so”).
. Maj.Op. at note 49.
. Compare text infra at notes 61-62.
. 98 U.S.App.D.C. 272, 235 F.2d 219 (1956).
. Id. at 274, 235 F.2d at 221.
. Id.
. 178 U.S.App.D.C. 207, 546 F.2d 973 (en banc 1976).
. Id. at 213, 546 F.2d at 979.
. Id. at 214, 546 F.2d at 980 (footnote omitted).
. Id.
. Id.
. Id.
. Id.
. See also Releford v. United States, supra note 27, 288 F.2d at 300-301 (trial court erred in requiring lawyer who appeared to request a continuance for accused’s ill counsel to try case over his and accused’s objection); English v.
. Compare United States v. Brown, supra note 29, 495 F.2d at 600 (out-of-state witnesses already summoned) and United States v. Terry, 449 F.2d 727, 728 (5th Cir. 1971) (same) with Giacaione v. Lucas, supra note 25, 445 F.2d at 1252 (dissenting opinion) (because all involved witnesses were policemen, there could be little inconvenience in a delay of the trial).
. As it was, more than two and one-half years had elapsed since the time of the alleged criminal acts. See United States v. Mitchell, supra note 31, 354 F.2d at 769 (Government cannot argue speed where nine months had already passed since alleged crime occurred).
. See text at notes 23-26 supra; cf. United States v. Roberts, 187 U.S.App.D.C. 90, 103, 570 F.2d 999, 1012 (1977) (refusal to allow withdrawal of guilty plea was abuse of discretion where inconvenience to Government was minimal and objective indicators supported accused’s justification for request).
. Maj.Op. at -of 189 U.S.App.D.C., at 497 of 584 F.2d.
. Maj.Op. at-of 189 U.S.App.D.C., at 499 of 584 F.2d.
. See text at note 16 supra.
. See text at notes 5, 11, 12 supra.
. See text at notes 33-41 supra.
. See text at note 16 supra.
. See Maj.Op. at-of 189 U.S.App.D.C., at 497 of 584 F.2d.
. In holding that a prosecutor may peremptorily strike blacks from a petit jury, the Supreme Court has reasoned that “the peremptory permits rejection for a real or imagined partiality that is less easily designed or demonstrable. . It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.” Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759, 772-773 (1965) (footnote omitted).
. See text supra at note 69; cf. Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975) (denial of continuance to look for another counsel for civil deportation hearing is abuse of discretion in absence of reasons for denial).
. Maj.Op. at note 37.
. See text supra at note 18.
. In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), a unanimous Court did not even hint at waiver in counsel’s statement that “we will obey” the trial court’s order prohibiting counsel and client from speaking during an overnight recess. Id. at 85 n. 1, 96 S.Ct. at 1334, n. 1, 47 L.Ed.2d at 597, n. 1. Although counsel had objected, he “appropriately indicated that he would — as in fact he did — comply with the court’s order.” Id. at 83, 96 S.Ct. at 1333, 47 L.Ed.2d at 596 (footnote omitted).
. Compare United States v. Seale, supra note 29, 461 F.2d at 350 (accused’s violent complaints of denial of rights to counsel of choice and to defend pro se resulted in court ordering him bound and gagged).
. 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1467 (1938).
. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052-2053, 36 L.Ed.2d 854, 868-869 (1973). And we must, of course, apply the same standard even though appellant allegedly waived only one aspect of his constitutional right to counsel. Maynard v. Meachum, supra note 36, 545 F.2d at 277.
. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680, 699 (1942); accord, Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 440 (1977).
. Glasser v. United States, supra note 79, 315 U.S. at 71, 62 S.Ct. at 465, 86 L.Ed. at 700. In another case involving a trial court’s refusal to grant adequate time to replace counsel, the Second Circuit found no waiver in a statement in effect indicating, “[y]es, because you compel me to do so.” United States v. Mitchell, supra note 31, 354 F.2d at 768.
. Glasser v. United States, supra note 79, 315 U.S. at 72, 62 S.Ct. at 465, 86 L.Ed. at 700.
. See note 103 infra.
. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705, 710 (1967).
. Field, Assessing the Harmlessness of Federal Constitutional Error — A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15, 32 (1976); Saltz-burg, The Harm of Harmless Error, 59 Va.L. Rev. 988 (1973) (“[c]haos surrounds the standard for appellate review of errors in criminal proceedings”).
. Comment, Principles for Application of the Harmless Error Standard, 41 U.Chi.L.Rev. 616, 626 (1974).
. United States v. James, 181 U.S.App.D.C. 55, 64, 555 F.2d 992, 1001 (1977); see Field, supra note 84, at 33.
. Saltzburg, supra note 84, at 994.
. Cf. discussion accompanying notes 118-124 infra.
. See United States v. Freeman, 169 U.S.App.D.C. 73, 80 & n. 45, 514 F.2d 1314, 1321 & n. 45 (1975); Comment, supra note 85, at 626 (automatic reversal is a more effective deterrent of erroneous trial activity than exclusionary rule is of improper police action because burden of reversal falls more directly on responsible party).
. E. g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) (“the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”). While the Court in Winship spoke of the Fourteenth Amendment vis-a-vis state prosecutions, the same safeguard is afforded by the Fifth Amendment in relation to federal prosecutions. E. g., Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335, 339 (1972).
. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1306 (1977) (reasonable doubt rule reduces chances of erroneous conviction and symbolizes great significance society places on criminal conviction); cf. Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460, 1472-1473 (1958) (margin of error is reduced for party with “interest of transcending value”).
Part of the rationale for the reasonable-doubt rule is that because the scales of justice are imperfect and a flaw therein might prejudice the individual, the balance must be weighted heavily on his side to minimize erroneous convictions. Underwood, supra. When a breakdown is not only possible but, as here, is established, the “fudge factor” in favor of the individual should be at least as great. Perhaps it should be even greater since one level of uncertainty has been removed. We know an error has occurred, and only the chances that the flaw prejudiced the individual remain problematical.
. Saltzburg, supra note 84, at 989; see Kottea-kos v. United States, 328 U.S. 750, 762-763, 66 S.Ct. 1239, 1246-1247, 90 L.Ed. 1557, 1565-1566 (1946).
. See Kotteakos v. United States, supra note 92, 328 U.S. at 775, 66 S.Ct. at 1253, 90 L.Ed. at 1572.
. Cf. Doe v. Hampton, 184 U.S.App.D.C. 373, 394-395, 566 F.2d 265, 286-287 (1977) (dissenting opinion).
. Supra note 83.
. 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.
. Erroneously-admitted evidence might, however, lead to a corresponding adjustment of defense strategy, thus misshaping the remaining evidence. See Fahy v. Connecticut, 375 U.S. 85, 91, 84 S.Ct. 229, 232-233, 11 L.Ed.2d 171, 175-176 (1963).
. E. g., Schneble v. Florida, 405 U.S. 427, 430-432, 92 S.Ct. 1056, 1058-1060, 31 L.Ed.2d 340, 344-345 (1972); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284, 287-288 (1969).
. Field, supra note 84, at 33 (overwhelming-evidence standard usurps the jury’s function, implies that innocent alone have constitutional rights, and places difficult burdens on appellate courts). See also Fahy v. Connecticut, supra note 97, 375 U.S. at 86-87, 84 S.Ct. at 230, 11 L.Ed.2d at 173-174. We ourselves have admitted that “[ajssessing prejudice is an elusive task, requiring appellate judges to weigh the impact of trial defects on the minds of other people,” United States v. Freeman, supra note 89, 169 U.S.App.D.C. at 79-80, 514 F.2d at 1320-1321, and accordingly have looked to the nature of the improper evidence rather than to the quantity of the untainted evidence. United States v. James, supra note 86, 181 U.S.App.D.C. at 64 & n. 55, 555 F.2d at 1001 & n. 55.
. See Holloway v. Arkansas, 435 U.S. 475, 490-491, 98 S.Ct. 1173, 1181-1182, 55 L.Ed.2d 426, 437-438 (1978).
. United States v. Hurt, 177 U.S.App.D.C. 15, 21, 543 F.2d 162, 168 (1976). Here, for instance, appellant contends that Mr. Hutter made two errors to which more experienced counsel might not have fallen victim. The first and more important involved testimony by a Government witness to the effect that appellant had prescribed ritalin pills for her brother and that he had jumped from a three-story building while under the influence of the pills, perhaps leaving the jury with the impression that he had died. Although the court ultimately instructed the jury to disregard this testimony, appellant now argues that he might have been prejudiced by Mr. Hutter’s failure to prevent the testimony from getting before the jury at all. The other instance of alleged deficiency was Mr. Hutter’s attempt to ask a hypothetical question for which no supporting facts had been or were expected to be testified to. Appellant now argues that the question and its overruling might have undermined the credibility of his case in the eyes of the jurors.
If I were sure that the possibility of prejudice to appellant was confined to these two instances, I would not deem them of such character as to raise a reasonable doubt that the constitutional denial was not harmless. There is no such assurance, however.
. Chapman v. California, supra note 83, 386 U.S. at 23, 87 S.Ct. at 827-828, 17 L.Ed.2d at 710, citing Gideon v. Wainwright, supra note 21 (footnotes omitted) (giving right to counsel as one example); 386 U.S. at 43-44, 87 S.Ct. at 837-838, 17 L.Ed.2d at 721-722 (Stewart, J., concurring) (“constitutional rights are not fungible goods”); see Comment, supra note 85, at 620-626 (proposing test for automatic reversal based, inter alia, on fundamentality of the right in question and its explicitness in the Constitution).
. See Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319, 326 (1978) (“[i]n an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel”). The Supreme Court has indicated that a Sixth Amendment violation cannot be harmless. See note 102 supra and accompanying text. In light of other Supreme Court opinions, however, that holding has been construed as referable only to a relatively major infringement, such as a complete denial of counsel at trial. United States v. Crowley, 529 F.2d 1066, 1070 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976); see Milton v. Wainwright, 407 U.S. 371, 377-378, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1, 6-7 (1972) (alleged Fifth and Sixth Amendment infractions not reached because error, if any, was harmless); Chambers v. Maroney, 399 U.S. 42, 53-54, 90 S.Ct. 1975, 1982-1983, 26 L.Ed.2d 419, 429-430 (1970) (Court is “not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel”); Coleman v. Alabama, 399
Accordingly, courts have labeled some “minor” violations of the right to counsel harmless. E. g„ in re Di Bella, 518 F.2d 955, 959 (2d Cir. 1975) (exclusion of counsel from reading of grand jury minutes at contempt proceeding harmless where client allowed to repeat substance to counsel and exact phraseology was not possibly important); United States v. Crowley, supra, 529 F.2d at 1069 (denial of counsel at hearing on motion to withdraw guilty plea harmless under circumstances). Thus, unlike the majority, I am not satisfied that, at least as yet, it can safely be assumed that each and every right-to-counsel violation is inherently prejudicial. But see Maj.Op. at note 19.
It is probably true that few such infringements can fairly be deemed noninjurious — as my analysis of this very case seems to demonstrate — but that is no reason to apply a per se rule of prejudice to cases in which harmlessness can be established. If our experience should someday teach us that we can never eliminate all reasonable possibility of prejudice in these circumstances, that would be the time to impose a per se rule. The desire to accommodate those possible situations where one can say with absolute certainty that no harm was suffered within the court’s unnecessarily absolute position on harmlessness causes it to incorporate a showing of prejudice as one factor in its totality-of-the-circumstances test. See Maj.Op. text at note 19. Though prejudice might be an element of a showing that the denial of a continuance violated due process, prejudice has never before been considered an element of a Sixth Amendment violation. See note 120 infra.
. Castaneda-Delgado v. INS, supra note 72, 525 F.2d at 1300-1302.
. Compare Holloway v. Arkansas, supra note 100, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 (failure of trial court to relieve appointed counsel of conflict of interest in representation of codefendants cannot be harmless because no way to know what counsel might have consciously or subconsciously refrained from doing); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114, 117 (1961) (Court will not investigate harmlessness of denial of right to counsel at plea to capital offense because “the degree of prejudice can never be known”).
. That is, the right to effective assistance of counsel is distinct from the right to counsel of choice. The fact that one was not infringed says nothing about the condition of the other. Gandy v. Alabama, supra note 47, 569 F.2d at 1326. Contra United States v. Gray, 565 F.2d 881, 887 (5th Cir. 1978). Although the majority purports to agree, Maj. Op. at note 10, it later emphasizes “that Hutter’s representation of appellant far exceeded the standard of assistance that is constitutionally required.” Maj.Op. at --of 189 U.S.App.D.C., at 498 of 584 F.2d.
. See Lee v. United States, supra note 50, 98 U.S.App.D.C. at 274, n.5, 235 F.2d at 221 n.5, quoting In re Mandell, 69 F.2d 830, 831 (2d Cir. 1934) (“[t]he relationship between attorney and client is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously”). In Mandell, the Second Circuit held that even in a civil case where a trustee in bankruptcy has petitioned for appointment of counsel, denial of the trustee’s choice would be an abuse of discretion in all but the rarest cases.
. Tr. 896. The Government’s evidence showed that appellant wrote 2,300 prescriptions for preludin and ritalin during a four-month period. Tr. 561. A crowd often formed outside the office. Tr. 189-190. The Government called three physicians as expert witnesses on the standards of the medical profession.
. See, e. g., Tr. 895-897 (testimony that appellant attempted to keep patients from coming back too frequently); id. at 898 (appellant sought aid from police in controlling conditions at office); id. at 985-986 (appellant once refused to write prescriptions for armed and threatening man); id. at 1008 (appellant was upset by chaos in his office but did not want to stop helping people).
. The court concedes that Ms. Roundtree was to take at least an active role in the presentation of appellant’s defense. Maj.Op. at - of 189 U.S.App.D.C., at 497 of 584 F.2d.
. The court agrees that Ms. Roundtree might have helped. Maj.Op. at-of 189 U.S.App.D.C., at 498 of 584 F.2d.
In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the Court held that elimination of final argument in bench trials was a denial “of the basic right of the accused to make his defense.” Id. at 859, 95 S.Ct. at 2554, 45 L.Ed.2d at 598. The Court dismissed the contention that the accused had failed to show prejudice, pointing out that “[tjhere is no way to know whether . . . any . appropriate arguments in summation might have affected the ultimate judgment in this case.” Id. at 864, 95 S.Ct. at 2556, 45 L.Ed.2d at 602. See also Smith v. Illinois, 390 U.S. 129, 132-133, 88 S.Ct. 748, 750-751, 19 L.Ed.2d 956, 959-960 (1968), quoting Alford v. United States, 282 U.S. 687, 692-694, 51 S.Ct. 218, 219-220, 75 L.Ed. 624, 628-629 (1931) (denial of right to cross-examine witness on name and place of residence is reversible error even if it would not “necessarily have brought out facts tending to discredit the testimony in chief’); Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574, 577 (1961) (Court will not “speculate whether [statements withheld by the Government] could have been utilized effectively” for impeachment).
. See note 92 supra.
. Supra note 79.
. The counsel thus appointed was ultimately the most active defense counsel, although it is unclear whether Glasser originally intended him to be lead counsel. 315 U.S. at 69, 62 S.Ct. at 464, 86 L.Ed. at 698-699.
. Id. at 68-70, 62 S.Ct. at 464-465, 86 L.Ed. at 698-699.
. Id. at 73-75, 62 S.Ct. at 466-467, 86 L.Ed. at 700-701.
. Id. at 75-76, 62 S.Ct. at 467-468, 86 L.Ed. at 701-702.
. Some courts have indicated that denial of the right freely to choose one’s counsel is harmless if counsel forced upon the accused performs competently. Williams v. United States, 332 F.2d 36, 39 (7th Cir. 1964), cert. denied, 379 U.S. 976, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965); see United States v. Lustig, supra note 29, 555 F.2d at 744-745. But see United States v. Johnston, supra note 31, 318 F.2d at 290 (reversal although imposed counsel “extremely competent”). In Lustig, the court had already held that the accused had been afforded ample time to make a final choice of counsel, especially since he was warned a month before trial to do so. 555 F.2d at 743-744. The court in Williams felt that the “real issue” was whether the accused received competent representation, 332 F.2d at 39, and as I have elucidated I respectfully disagree. See Part II and note 106 supra. That disagreement is also obvious in this court’s en banc opinion in United States v. Mardian, supra note 53, in which we reversed a failure to allow an accused’s choice of substitute counsel even though the attorney who ultimately completed the trial was certainly not inadequate. 178 U.S.App.D.C. at 214, 546 F.2d at 980.
. United States v. Bragan, supra note 30, 499 F.2d at 1381 (dissenting opinion) (“effectiveness of substitute counsel is not a relevant consideration when he is not counsel of choice”). In addition, the judicial economies realized by prophylactic rules, such as that laid down by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), might be undercut by the necessity of finely weighing prejudice in each case. Comment, supra note 85, at 628.
. Field, supra note 84, at 20; accord, United States v. Dougherty, supra note 27, 154 U.S. App.D.C. at 111, 473 F.2d at 1148 (on petition for rehearing). I deal here only with the matter of harmlessness of a separately-ascertained Sixth Amendment violation, and not with prejudice as an element of a due process violation, see Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), or as a prerequisite to federal collateral relief from a state conviction, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
. Field, supra note 84, at 19.
. 18 U.S.C. § 3005 (1976).
. United States v. Watson, 496 F.2d 1125, 1129 (4th Cir. 1973).
. Id. at 1129-1130. But cf. Smith v. United States, 122 U.S.App.D.C. 300, 307-308, 353 F.2d 838, 845-846 (1965), cert. denied, 384 U.S. 974, 86 S.Ct. 1867, 16 L.Ed.2d 684 (1966) (prejudice presumed where accused was not informed of right to two counsel, although he never requested two; presumption overcome by overwhelming evidence and superior performance of single counsel).
. See Faretta v. California, supra note 35, 422 U.S. at 834, 95 S.Ct. at 2540-2541, 45 L.Ed.2d at 581.
. United States v. Dougherty, supra note 27, 154 U.S.App.D.C. at 90-91, 473 F.2d at 1127-1128 (right to appear pro se is not “result-oriented”); Chapman v. United States, supra note 27, 553 F.2d at 891-892 (wholly irrelevant whether result would be the same; in fact, the defense the accused wished to assert pro se was frivolous). In Faretta v. California, supra note 35, the Supreme Court reversed without mention of prejudice a denial of the right to proceed pro se after noting that “in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.” 422 U.S. at 834, 95 S.Ct. at 2540, 45 L.Ed.2d at 581.
. But cf. note 34 supra.
. Chapman v. United States, supra note 27, 553 F.2d at 891.
. Releford v. United States, supra note 27, 288 F.2d at 301-302; accord, United States v. Johnston, supra note 31, 318 F.2d at 289, 291; Davis v. State, 292 Ala. 210, 291 So.2d 346, 350 (1974). But see Good v. United States, 378 F.2d 934, 936 (9th Cir. 1967) (no reversible abuse of discretion in denial of continuance to enable dismissal of retained counsel on day before trial since counsel performed adequately).
. Supra note 28.
. 53 App.D.C. at 54-55, 288 F. at 260.
. We found that no error had occurred in that case because neither the accused nor either of his lawyers had requested a continuance. Id. at 55-56, 288 F. at 261.
. Id.
. Cf. Sanders v. Craven, 488 F.2d 478, 480 (9th Cir. 1973) (“[t]he district judge may not circumvent the challenge of denial of effective [assistance of] counsel by, in effect, holding that any error would be harmless”).
