Case Information
*3 Before: SLOVITER, Chief Judge,
COWEN and ROTH, Circuit Judges
(Opinion filed December 26, l996)
Richard M. Meltzer (Argued)
Mesirov, Gelman, Jaffe, Cramer & Jamieson
Philadelphia, PA 19103-7589
Attorney for Appellants
Richard P. Barrett (Argued)
Office of United States Attorney
Philadelphia, PA l9l06
Debra L.W. Cohn (Argued)
United States Department of Justice
Washington, D.C. 20530
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Chief Judge.
Appellant John Cocivera and six corporations that he established were convicted by a jury of various crimes arising out of a scheme to defraud Medicare. The principal issues before us concern Cocivera's waiver of his right to counsel and his representation of the defendant corporations.
I.
Cocivera was the chief executive officer and fifty percent owner of six Pennsylvania corporations that were created in August 1989 to provide medical equipment to Medicare beneficiaries through a national telemarketing operation.
Cocivera and the corporations were indicted in September 1994 in the United States District Court for the Eastern District of Pennsylvania on one hundred forty-four (144) counts of mail fraud in violation of 18 U.S.C. § 1341, twenty-eight (28) counts of filing false Medicare claims in violation of 18 U.S.C. § 287, ten (10) counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), twenty-two (22) counts of engaging in money transactions in violation of 18 U.S.C. § 1957(a), and one count of structuring transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(a)(3). The government alleged, inter alia, that the defendants engaged in telemarketing to senior citizens using false and misleading statements, sent preprinted certificates of medical necessity (CMNs) containing false and misleading statemеnts to physicians' offices, altered certificates of medical necessity from physicians, made false statements to senior citizens at the time of delivery in order to secure assignment of Medicare payments, submitted false claims to Pennsylvania Blue Shield, and made false and misleading statements to physicians, Medicare and administrative law judges to forestall complaints and make apprehension less likely. *5 Cоcivera and U.S. Health Products, Inc., the umbrella company, were found guilty of all 205 counts by a jury in May 1995. Each of the other corporations was convicted, although on a lesser number of counts than charged. Cocivera was sentenced to a 78 month prison term, a three year term of supervised release, and a special assessment of $10,250. The corporate defendants received assessments totalling $77,000. The defendants filed timely notices of appeal; we have jurisdiction under 28 U.S.C. § 1291.
II.
The attorney originally retained by the defendants withdrew more than five months before the trial began and the court appointed Thomas Bergstrom, a well known criminal lawyer, to represent all the defendants. At the start of the second day of trial, and after four witnesses had testified, Cocivera asked to address the court without the jury. The court gave him that oрportunity. Cocivera began by stating that he found Bergstrom to be "a very intelligent and very capable attorney," and that "I'm thankful I have him as an attorney." App. at 98. Cocivera then proceeded to make various complaints about Bergstrom's performance. Id. at 99-103. Although Bergstrom had spent nine or ten hours with Cocivera in the course of his preparation, Cocivera complained that the time Bergstrom spent with him wаs inadequate, complained that Bergstrom declined to interview certain persons or to file certain motions that Cocivera wished to file, such as for a continuance, and complained about various decisions made by Bergstrom which were, in essence, elements of Bergstrom's trial strategy, such as his cross-examination.
Cocivera then asked the court three questions: first, if he could file motions, second, if he could have a continuance or, third, if he would be allowed to act as co-counsel so that he "may ask some questions of the witnesses that I feel are very pertinent . . . . I just want to get to the facts as I think they should be brought out." Id. at 104.
The district court heard from Bergstrom who explained the trial preparation that he had done and his reason for declining to file the motions referred to by Cocivera. In addition, although Bergstrom had not examined all the many files to which Cocivera had referred, he had spent some three hours looking through those documents, he had also reviewed the 300 government exhibits, reviewed all the Jencks material pertaining to the 30 government witnesses, and planned to review the remaining documents with the services of an accountant. Id. at 105-106. Bergstrom explained that he believed "that this case requires simplification and not more сomplexity." Id. at 106. He concluded that in spite of the difference in approach he and Cocivera had, "I'm prepared to continue." Id. The court then heard from the government lawyer who argued that it would be inappropriate for Cocivera to serve as co-counsel and who opposed all of Cocivera's requests.
The district court then ruled that Cocivera could "file whatever motions he wishes and I will take a look at them." Id.at 113. With respect to Cocivera's complaints about Bergstrom, the district court found that Bergstrom had proceeded *6 conscientiously and expressed confidence that he would do so throughout the trial. The court concluded: "Mr. Bergstrom is at the very top of his profession . . . . If [he] isn't doing an adequate job, we simply don't have the talent to handle this case in the Eastern District of Pennsylvania." Id. at 114. Thе court, noting the difficulties of hybrid representation, declined to allow Cocivera to serve as co-counsel, stating "although I find that there is no good cause for defendant's dissatisfaction with Mr. Bergstrom, he, the defendant, Mr. Cocivera does have a constitutional right to represent himself if he wishes." Id.
The court then asked Cocivera if he wanted the court to conduct the required colloquy on the issue, but Cocivera asked if he could wait until the end of the day or the next day to see how counsel performed. The court insisted that Cocivera decide whether he wanted to represent himself, and Cocivera replied, "Yes, I guess I do," id. at 115, whereupon the court conducted the colloquy, consisting of a series of questions concerning his knowledge of law, his experience representing himself or others in a criminal trial, his familiarity with the indictment, and thе possible penalty range if convicted. The court also told him that he would be "on your own," without help or guidance from the court, and asked if he was familiar with the rules of procedure and evidence and the relevant statutory provisions. The court advised Cocivera "from the bottom of my heart, sir," that he would be "far better represented by a trained lawyer particularly Mr. Bergstrom." Id. at 117.
In response, Cocivera statеd that all he really wanted was to be able to supplement Bergstrom's knowledge. "I have no reason too [sic] want to represent myself." Id. The court then repeated the question whether he wanted to represent himself. Cocivera responded: "Yes, your Honor." Id. at 118. After the court found that Cocivera had knowingly and voluntarily waived his right to counsel, it permitted him to represent himself, and appointed Bergstrom as standby cоunsel. Asked if he had further comments, Cocivera responded: "No, Your Honor." Id.
When Cocivera was about to begin questioning the next witness, the court asked whether he would also represent the defendant corporations, and Cocivera replied "yes," to which the court appeared to assent. Id. at 120. From the record, it appears that Bergstrom remained in the courtroom throughout the nine day trial. Following the convictions, new counsel represented defendants in presenting a motion for a new trial and represents them on this appeal.
III.
Cocivera contends that his waiver of his right to
counsel was not knowing or voluntary in violation of Faretta v.
California,
Nor do we find merit in Cocivera's argumеnt that his
waiver of counsel was not timely. The very cases cited by
Cocivera belie this argument since they merely state that the
district court has the discretion to reject a defendant's waiver
of counsel if it is not timely. See, e.g., Horton v. Dugger, 895
F.2d 714, 717 (11th Cir. 1990); United States v. Oakey, 853 F.2d
551, 553 (7th Cir. 1988), cert. denied,
1979), cert. denied,
Thus, we reject Cocivera's argument that his waiver of his Sixth Amendment right to counsel was not voluntary, knowing or intelligent, or timely.
IV.
Cocivera claims that the assistance given at trial was
ineffective. This court has long followed the practice of
declining to consider a defendant's claim of ineffective
assistance of counsel on direct appeal. As we have explained in
our case law, the issue is ordinarily more appropriate for
collateral attack. Government of the Virgin Islands v. Forte,
1989). It also gives the trial court the opportunity to hear counsel's explanation for the conduct at issue. Frequently, the direct appeal is handled by the same counsel who handled the trial, and it is patent that that counsel cannot forcefully argue ineffective assistance of trial counsel. United States v.
DeRewal,
On the other hand, we have recognized that in some
cases, albeit rare, we may have a sufficient record on appeal to
decide the issue and avoid the considerable effort of requiring
the defendant to institute a collateral proceeding in ordеr to
raise the ineffective assistance of counsel claim. In Government
of the Virgin Islands v. Zepp,
Therefore, we held that under the circumstances of that case an ineffective assistance of counsel claim was cognizable on direct appeal.
Similarly, in United States v. Headley,
In this case, we also hold that under the circumstances we need not require Cocivera to pursue a collateral proceeding before we can rule on the ineffective assistance of counsel claim. The issue was raised by Cocivera on the second day of trial, and the district court held a hearing to decide the issue. Cocivera presented his claim to the district court cogently, as does his counsel on appeal, and Bergstrom explained the reasons for his actions and confirmed his preparedness and willingness to proceed. The district court ruled on Cocivera's claim twice - once orally when the issue was presented at trial, and again in its order of August 8, 1995 rejecting Cocivera's post-trial motions. The issue is thus cognizable in this case on direct appeal.
Turning to the merits, the district court ruled post
trial that "Mr. Bergstrom's performance -- both before and after
Mr. Cocivera waived the right to the assistance of counsel -- was
highly professional and did not fall below any objective standard
of reasonableness. See Strickland v. Washington,
V.
The corporations contend that they also did not
voluntarily or knowingly waive their right to counsel. In United
States v. Rad-O-Lite of Philadelphia, Inc.,
effective assistance due to the fact that it *9 is a corporation. The purpose of the
guarantee is to ensure that the accused will not suffer an adverse judgment or lose the benefit of procedural protections because of ignorance of the law. A corporation would face these same dangers unless the agent representing it in court is a competent
lawyer. Thus, the right to effective
assistance of counsel is not so peculiarly appliсable to individuals that corporations should not be entitled to it.
Id. (citations omitted).
Neither counsel in this case has suggested that anything in the record indicates, much less demonstrates, that Cocivera was authorized by the corporations to substitute himself for Bergstrom. Nor is there any indication in the record that a change in representation for the corporations was even discussed with other corporate officers. It may be true, as the government argues, that Cocivera effectively ran the corporations and was their alter ego, but that does not mean that he had the right to decide alone to represent the corporations. Indeed, the record does not show whether Bergstrom's status as standby counsel also applied to the corporations, as the entire discussion between the district court and Cocivera regarding the corрorate representation consisted of one simple question and answer.
Moreover, as the Supreme Court has stated, "[i]t has
been the law for the better part of two centuries . . . that a
corporation may appear in the federal courts only through
licensed counsel." Rowland v. California Men's Colony, 506 U.S.
194, 201-02 (1993); see also, Simbraw, Inc. v. United States,
The cases cited by the government to support its
contention that the corporations could proceed without being
represented by counsel are inapposite. In In re Victor
Publishers, Inc.,
Walter E. Heller Co.,
The government also cites United States v. Reeves, 431
F.2d 1187 (9th Cir. 1970), for the proposition that a
partnership's managing partner may represent the partnership when
state law gives a partner a specific right to the property sought
*10
to be foreclosed. However, the Ninth Circuit later held that the
Supreme Court's Rowland opinion had overruled Reeves "to the
extent that Reeves stood for the proposition that non-attorney
members of a partnership could appear on behalf of the
partnership." See In re America West Airlines,
Similarly, even the decision in In the Matter of
Holliday's Tax Services, Inc.,
The government's citation to the district court
decision in Willheim v. Murchison,
1962), allowing a stockholder and nоn-lawyer to represent himself
and other similarly situated stockholders in a derivative action,
is surprising in light of the criticism of the reasoning of
Willheim by the court of appeals of that circuit. See Phillips
v. Tobin,
We thus find that none of the cases cited by the
government actually deviate from the general rule that a
corporation may not be represented by other than licensed
counsel. The district court's action in permitting Cocivera to
represent the corporation ran against almost unbroken precedent.
See, e.g., Palazzo v. Gulf Oil Corp.,
In sum, the corporations in this case were not
represented by counsel as contemplated by the Sixth Amendment.
Wе cannot accept the government's argument that the appointment
of Bergstrom as standby counsel "cured any problem with corporate
representation in this case." Appellee brief at 33. Standby
counsel cannot remedy the absence of counsel unless s/he
"provides . . . the mandated assistance . . . ." at all crucial
stages of the proceedings. United States v. Novak,
Because we conclude that the six corporations were not properly represented in this case, we must vacate their convictions and remand for a new trial.
VI.
For the reasons set forth, we will affirm the conviction and sentence of Cocivera but will vacate the convictions of the six corporations and remand for further proceedings.
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