*1 energy, price as the sources increased,
energy has the attention of the UNITED STATES of America government federal has been drawn to a supplies search to find alternative McFADDEN, Carroll Garwin William aka conserving energy. means of More recent- aka James Sunshine. ly, the domestic automobile has industry struggling compete foreign Appeal of Carroll Garwin McFadden. smaller, manufacturers which have stressed No. 79-2024. Yet, during more fuel-efficient cars. this period, Congress permitted sys- same has Appeals, United Court of regulation by adjudications tem of ad hoc Third Circuit. under which a hold automobile Argued Feb. 1980.* culpable producing manufacturer for not heavier, considerably likely car that Sept. Decided to have efficiency. less fuel sum, appeal brought this has
our attention an conflict important
implicates broad national concerns. Al
though important it is society devise a
proper system compensating those in
jured collisions, in automobile it is not at all that the present arrangement per
clear juries,
mitting varying individual under liability, impose
standards of obliga this
tion on manufacturers is fair or efficient.
Inasmuch as it was Congress that de
signed system, this Congress and because and, body best suited to evaluate
appropriate, change system, we de today anything regard
cline to do in this
except to bring problem to the attention legislative branch. adjudicate we are appeal
Bound as
according to the substantive law of New
Jersey, and because we find no basis in that verdict,
law to jury’s overturn the judg-
ment of the district court will be affirmed.
* The last submission from counsel was received
April
964 by de primarily witness relied on
defense hundred brought several fendant has been Insti Correctional Danbury from the miles request all other tution at defendant’s trial, the for the witnesses are available such second law court to relieve decides 1 yer; hearing on motion to (2) during the the appointed the second counsel by withdraw court, the defendant for defendant the the second counsel that he “fires” states himself; will represent for under (3) permissible time trial the Pa., Pittsburgh, (argued), Sally A. Frick (see expire Speedy the Trial Act is about appellant. for 3161(h)(8)(A)2) unless the trial 18 U.S.C. § (ar- Jordan, Atty. Asst. U. D. S. Sandra mo grants on his own judge a continuance Cindrich, Fred- Atty., U. S. J. gued), Robert in an tion, join does not and the defendant Thieman, Pitts- Atty., Asst. U. S. erick W. continuance, although his for a application Pa., appellee. burgh, for (see suggested this withdrawing counsel below); note 10 ADAMS, VAN DUSEN Before GARTH, Judges. Circuit competent standby (4) appoints the court assist difficult defendant at counsel to the THE OF COURT
OPINION trial;3 and the DUSEN, Judge. VAN Senior Circuit more (5) given has been such defendant problem presents arising This the appeal requires, discovery documents than law when ready for having as well his witnesses trial, appeal on the defendant contends (1) proceeding a in a criminal defendant judge reversible that committed directing two successive has insisted on fully by (a) warning him more error lawyers legal defense court-appointed (b) proceed of importance counsel4 defense, affecting threatening decisions securing trial than ing with the rather a legal if his untutored directions to sue them lawyer, which have re secured, third defense would release not are not followed and his when a of the trial. quired postponement at a time further the result speedy sup- (2) (emphasis part a trial” under of this 1. At the described sentence, complained plied). the defendant “I counsel,” given decent haven’t been though appointed Justice, the record shows both See of ABA Standards Criminal fully qualified. appoint- counsel first were Function, Judge’s Trial 6.7. We note that the § re- at such counsel’s ed counsel relieved ex ABA Defense Function Standards quest. plicitly provide they are not intended “as testimony Also of judicial it is noted that criteria of the effective evaluation Danbury brought out to validity witness from turned of ness of counsel determine entrapment de- so to the defendant’s adverse Relating De See Standards conviction.” necessary judge fense that the trial found it p. 1.1(f), Approved at § fense Function defend- make comments at sidebar to assist the Draft; Relating ABA the Pros cf. Standards presenta- advisory ant and his 1.1(e) 25), (page ecution Function § 288-290; (see tion of their case N. T. see also Approved Draft. below). note 8 repeated admonitions of the trial 4. The provides 2. This that the shall section pay to the advice of his counsel are attention grant finds “the ends the continuance if he pages 968 and 971. below at referred justice taking out- served such action page 969 and note below Also see public weigh the best interest of him, copy explained Defendant, appeals them to Carroll G. possession penalties provided from of heroin for the crimes which his conviction distribute, in violation of allegedly intent McFadden had committed. The use (1976), and of of the tele magistrate U.S.C. stated: § heroin, phone in violation to distribute “Now, as I said, you have (1976). as U.S.C. § represented own by counsel *3 must be serts that his conviction overturned choosing. are unable to If afford deprived because he was his Sixth counsel, you request that counsel right to assistance counsel. Amendment appointed expense at the the knowingly He he did not and contends that Government.” to counsel at or intelligently waive the response, requested ap- In McFadden before time he told the court “. the his behalf and pointment of counsel on exe- is fired because want don’t [Mr. Rossetti] indicating cuted an was affidavit 967, below) he was and that (page him” financially attorney. to retain an unable the assistance having prejudiced by magistrate appointed day, On the same at trial. We believe only standby counsel represent Federal Defender to Public of the the conclusion justifies the record McFadden, pri- White as naming Thomas S. entitled, light in he was mary counsel. policy Speedy of the all the facts charging May An indictment that in trial, having Act, Trial to McFadden the narcotics had violated laws defendant, had who made available (see 964, above) on page was filed March and appointed counsel “fired” his second 23, arraigned 1979. McFadden was before 966- (pp. himself said he would 30, magistrate and on March entered a com standby advice of a below), the guilty plea present.6 with his counsel attorney.5 petent trial afterward, Shortly McFadden returned I. Penitentiary to the United States Lewis- 17, burg, Pennsylvania.7 April 1979, On An warrant was issued arrest for Carroll White filed a to withdraw as motion Garwin McFadden United States motion the Western White based this on District Court for District of McFadden. February 16, “irreconcilable which had Pennsylvania on differences” aris 22, during meetings correspondence on en February McFadden was arrested and April mag appeared before United with the defendant. On Magistrate allowing White proceed- on the same date istrate entered order to ing Magistrate’s on 1322 withdraw and Donald D. Rosset Tape appointing recorded # (Tape 23). Index At that time ti as counsel Rossetti magis- for McFadden. had McFadden, trate explained to McFadden of never met with who was rights incar crime, one of a in continuously who has been accused read cerated Lewisburg from charges against April July. to provided May 7, on Consequently, (a) with, cooperated 5. The in terms of defendant had not an election to have a or to (see attempted pro but to direct note defend 14 below and se.” text), previous accompanying attorneys two 6. See Reverse order of of March Unit- appointed for him under the Criminal Justice Magistrate Act, ed States WRIT attached to OF HA- whom he threatened sue who were (Docu- BEAS withdraw, (b) CORPUS AD permitted requested per- PROSEQUENDUM McFadden, ment No. 6 States v. in United during himself mission the trial. 79-74, W.D.Pa.). Plattner, Crim. No. (2nd United States v. F.2d 271 1964), page Cir. the court said at 276: Lewisburg McFadden was sent finish “The to counsel and the de- serving his on conviction sentence based for a pro single, in criminal cases fend se form a prior parole; offense. He been released on had inseparable rights, bundle of two faces April when 1979 he he was arrested find the same coin. Thus we choice between by leaving parole violated the terms of his two sometimes discussed of a terms district to which he was restricted. counsel, right to waiver of the and sometimes filed a motion “But if seeking Rossetti withdraw as what immediately have the defendant transfer- going today- is he to do? Because Pittsburgh red to so that he could consult Well, Honor, “MR. Your ROSSETTI: for trial. prepare May with counsel and On do want me to answer that question? 10, the district court ordered that McFad- Lewisburg den be moved from to Pitts- 1, 1979, prior two burgh weeks speak behalf, for a moment on his [T]o May the scheduled trial date. On Ros- not as a client of mine but as a defendant letter,
setti wrote defendant a attached to case, in a criminal he nonetheless-regard- A, opinion Appendix describing problems less of that he and I had which legal confronting situation impossible make it view to my rep- outlining type of evidence which would him, regardless resent problems, of those helpful in his defense. On June he is still entitled the assistance of *4 to a motion United pursuant counsel and the effective assistance of Attorney, the trial was continued from July July 16 to counsel.
McFadden was “I Pittsburgh longer moved to on can no render that assistance. July 1 and meeting had his first with Ros- July
setti on 2. Prior to this time there had correspondence some between them. “THE given COURT: He has been Between July July Rossetti and assistance of counsel. If he doesn’t want additional, the defendant mostly had three to take advantage of we have done unproductive meetings. On four goes what we can. He to trial.” days trial, before Rossetti filed a motion to App. at 41a-42a. The court then addressed withdraw as counsel for the defendant. Mr. McFadden as follows: Rossetti stated that his relationship with McFadden, “THE COURT: you Mr. McFadden had deteriorated to such an ex- tent your that it would have heard impossible every for him to counsel state that effectively or ade- time he tries to deal you help you, quately. He noted that McFadden’s de- you objections. raise all sorts of He can’t appeared fense to have merit and that the effectively represent you consequences case held serious for McFad- cooperation. den, and concluded that McFadden was en- “Today is day of trial. What are titled to effective representation which Ros- do, we going to and what is the nature of setti could not provide. your complaints? Tell us now. date, On the 23,1979, scheduled trial Well, “MR. McFADDEN: the nature Rossetti, McFadden, and Assistant United my is, complaint first really haven’t States Attorney appeared William Webb been given a decent counsel. before the trial judge. The proceeding be- gan with the following remarks: “THE COURT: You what? Rossetti, “THE COURT: Mr. we have “MR. McFADDEN: I haven’t been your motion to withdraw. Although it given a decent counsel. Each counsel I contains good deal of serious matters had wanted me to plead guilty, and I say concerning yourself, there is no reason I shouldn’t plead have to guilty. here for postponement of trial. “THE pleading COURT: You are not “Counsel has been afforded to this de- guilty. going You are to trial.
fendant. If he does not wish to take Yes, Yes, “MR. McFADDEN: sir. sir. advantage fault, that’s his go he can to trial without counsel then. “Every lawyer I have had wants me to But we going are not delay trial be- plead guilty, and I tell them no and tell cause of his actions in regard. case, fight them to they but don’t
want They plead to. want me to guilty me, Your McFADDEN: Excuse “MR. have a I don’t tell me want to they Rossetti, fire Mr. please-I’ll it Honor. If case, I know do.8 lying. He Rossetti has been because Mr. Well, has Mr. Rossetti “THE COURT: so- lying, up a defense put he will indicated Mr. Rossetti- “THE COURT: cooperation.” get your he will fire him. I’ll “MR. McFADDEN: The trial asked 42a-43a. App. at is an of- Mr. Rossetti dissatisfaction “THE COURT: to detail his Court,- hearing the various ficer of this After attorney. judge stat- raised points Court, yes, Of the “MR. McFADDEN: ed: sir. lot for doing has been
“Mr. Rossetti -and has been “THE COURT: he states that behalf, and he now rely we We know him and years. making impossible. are not come here says. he He would what misrepresent anything. today. go going “We are with Mr. go to trial going You are Well, did, McFADDEN: “MR. doesn’t want to without. He Rossetti or did, as of period, and Your Honor. He he said that represent you because fired, I don’t want he is because now for him to effec- impossible have made it him- represent you.
tively right. All Then what “THE COURT: We going to do? “Now what are going to do? are *5 want today. Do going are to trial me, is All I have “MR. McFADDEN: not, you? If represent him to that. going I’m trial, I will order your own conduct right. You don’t All “THE COURT: advice any legal available for him to be feel, sit even with that could need.” you may here- App. at 54a-55a. No. “MR. ROSSETTI: judge, the colloquy between the In the man some “Why you give don’t the defendant, the attorney, and the defense time, Your Honor? attor- that he believed no judge indicated How much time? “THE COURT: McFadden; along with could ney Perhaps even a “MR. ROSSETTI: making false accused Rossetti days. few being judge him and the charges against going Where is he “THE COURT: no cir- insisted that under unfair. Rossetti ready in two that will be get counsel cumstances could he continue That will be worse- days? alia, because the defend- inter Honor, Your “MR. McFADDEN: to sue him if he did ant had threatened represent myself. trial, a result of the secure his freedom as I don’t even-I think if another “was “THE COURT: but he stated that obstreperous here so might it make a have been brought point, in at this will cause 69a). so obstructive that Moments big (App. difference” courtroom. disruption kind of the more heated: some interchange became later the Armocida, (3rd 1975). help 515 F.2d Cir. judge leaned over backwards to 8. The trial trial, judge permit- point the trial during At this in the trial. Even with con- the defendant reopen standby attorney help his case and take the ted defendant siderable from his stand, trial, by judge during conducted the conclu- with the examination to be the trial (N. 349-50, 352). standby testimony T. sion of the defense entrapment necessary charge presented de- to rule that defendant court’s found justify jury, thorough argument not submitted sufficient evidence fense to the issue, standby entrapment jury by charging on the defendant’s coun- made to (N. transcript. principal occupies pages T. defense which which was defendant’s sel 343-48, 324-26). United States N. T. See also Oh, please, “MR. McFADDEN: try “I think to posture, case in this please, please.”9 with Mr. Rossetti’s- “THE COURT: This is a nice App. point at 69a-70a. At prosecu- ploy. has pulled on me twice in suggestion tor voiced a a month. handling this matter: Honor, “MR. WEBB: Your my con- cern is that Honor, something we not do
“MR. WEBB: Your here if totally is heard, meaningless and that will government may be I think the come appeal. back on essence of what Mr. Rossetti saying is that for him go today, to trial he would “I think the defendant has indicated he be ineffective because relationship of his is ready go to trial. say give would with the defendant. days him two period or whatever of time government all the material
“THE
has
recognize
COURT:
that.
the Jencks
made available this morning,
“MR. WEBB:
clearly
That’s
evidenced
material,
to Mr. Rossetti.”
by what the
saying.
App.
continued,
at 70a-71a. The discussion
government
“The
has a concern that
judge focusing
with the
possibility
the case is
posture,
forced
in this
defendant,
delay by
intentional
while
there will be no
representa-
effective
Rossetti and
any
McFadden denied
such
by
tion
competent counsel.
attempt.10
“Mr. Rossetti has indicated that he does
not feel that he can sit with the defend-
grant
decided to
Rossetti’s mo
ant and act as
legal
withdraw,
on-call
advice for
tion to
to continue the trial for
him.
days
two
while the defendant
familiarized
meaning
is,
9. As. to the
procedure
of this comment
as to what the law what-the
is.
defendant,
just
we believe
context it is
I can’t
him.
IBut don’t think that
interpret
as reasonable to
protest
these words as a
any ploy
delay things
there was
ploy
here to
or a
judge’s
characterization of the
any
other reason.
disruptive
interpret
defendant as
as to
them as
“THE COURT: We often run into situa-
a demand
the defendant
to be allowed to
Through experience
tions like this.
we have
event,
appear pro
any
se.
as the discussion
develops
learned the reason that the situation
demonstrates,
pages
in the text
see
969-971
causing
develop
is that the defendant is
it to
*6
below,
dispositive
this remark is not
of the
-
delay
to somehow
trial
issue of waiver.
Honor,-
“MR. McFADDEN: Your
point
“THE COURT: -to a
where he does
did,
you
“THE COURT: Whatever
both
doing
say
what he is
now and
his trial has
regularly represent per-
those
who
delayed,
rights.
therefore he is denied
Court,
impossible
sons in this
represent you.
feel it is
see,
continuance,
give
“You
if we
another
So, therefore,
only-
I can
‘Oh,
say,
my
delayed.’
then
trial was
you
“MR. McFADDEN: Do
feel it is im-
Well,
“MR. ROSSETTI:
I think it should
possible?
request.
be at his
only
“THE COURT: I can
come to one
Honor,-
“MR. McFADDEN: Your
impossible
get along
conclusion:
that it is
“THE
you.
COURT: I don’t know what he is
with
.
requesting.
slightest
I don’t have the
you
idea
“THE COURT: I said
have failed to
requesting.
get along
lawyers
what he is
appointed.
with two
So
once,
you
right,
request
you
when
“MR.
do it
all
.McFADDEN: All
we will be fair
you.
twice,
happens
When it
me
that will listen
then we
to what I’m
get along
saying
apply
saying
come to a conclusion that
can’t
what I’m
you may
doing
with counsel and that
this
Court.”
deliberately.
App. at 73a-76a.
Honor,
“MR. ROSSETTI: Your
jury
I would
We note that as soon as the
selection
disagree
defendant,
that.
I don’t think
initiative,
there
started the
own
on his
any ploy
part
delay
has been
anything.
on his
here to
charges
asked for dismissal of all
because of
“Speedy
(100a-
violations of the
Trial Act”
“THE COURT: I don’t know what-
101a).
motion,
ruling
on this
“MR. ROSSETTI: The
think the
man-I
required to consider “the best interest of the
just-is genuinely upset
man is
with some-
trial,”
public
speedy
.
.
.
in a
as well as
thing
merit,
may may
or
not have
the best interest
defendant
in such a
that I could not reason with him.
I cannot.
trial. See note 2 above.
accept
telling
I -He would not
what I was
him
witnesses,
II.
reports of
with the
himself
to be
advisory counsel
appoint
“In all
provides,
The
Amendment
Sixth
During
trial.11
during the
courtroom
shall en-
prosecutions, the accused
criminal
the de
judge told
colloquy, the trial
have the Assist-
...
joy
“only
pur-
his
salva
court that
his defence.”
open
fendant
of Counsel for
ance
lawyers”
is to “assure ‘Assist-
guarantee
of this
pose
listen to the advice
tion was to
trial,
con-
when the accused
ance’ at
12):
[is]
(94a and note
of the law
with both the intricacies
fronted
lawyers appointed
had two
“You have
advocacy
public prosecutor.”
just
row,
some reason
in a
and for
309,
Ash,
300,
v.
U.S.
United States
it is
with them. Whether
get along
can’t
(1973).
2568, 2573,
L.Ed.2d 619
S.Ct.
fault,
know.
I don’t
fault or
their
defendant
It is clear
the above that
from
your only
only
tell
“But I can
he “would fire” his coun-
stated twice that
the advice of the
to listen to
salvation is
stated that “as of now he is
sel and then
lawyers.”
fired,
want him.
.
because I don’t
App. at 93a-94a.
me,
going with that.”
All I have is
and I am
1979,
later,
McFad
days
Two
court,
rep-
“I will
Again, he said to the
represented
He
trial commenced.
den’s
primary basis
myself.”
resent
Defendant’s
Lackey sat at counsel
Mr. Robert
exercise,
himself.
he “did not
appeal
his
is that
defendant, but did not make
with the
intelligently,
table
knowingly, voluntarily and
examine witnesses.12 After
objections
himself under
U.S.C.
Amendment,
trial,
and thus
1654 and the Sixth
three-day
§
to the assistance
guilty
on six counts.
did not waive
returned
verdicts
(see
appellant’s
listed as I in
issues
McFadden the same
counsel”
sentenced
However,
brief).
reply
brief and
period
for a
of four
day
imprisonment
California,
422 U.S.
has not cited Faretta
and for a
years on each of four counts
(1975),
jury, and so likewise
could
prosecutions defendants
better de-
waive his
intelligently
Constitutional
guidance
by
fend
counsel’s
than
Id.,
at
right to assistance
counsel.’
own
their
But
unskilled efforts.
where
at
240].
[63
voluntarily
the defendant will
accept
not
potential
representation by
well,
settings
“In other
as
the Court
advantage
lawyer’s training
of a
and ex-
that a
a con-
has indicated
defendant has
all,
realized,
perience
only
can be
if at
stitutionally protected right to
imperfectly.
lawyer
To
force
a de-
himself in a
trial.”
criminal
only
fendant can
lead him to believe that
Also,
819-21,
S.Ct. at
the Court
Moreover,
against
contrives
him.
the law
language:
used this
it
in some
inconceivable
rare
given directly
“The
defend is
right to
instances,
might
in
fact
accused;
he
is who suffers the
effectively by
his case more
con-
consequences
the defense fails.
ducting his own defense. Personal liber-
“.
.
Unless the
has ac-
.
accused
averages.
ties are not rooted in
law of
quiesced
representation,
in
such
de-
personal.
to defend is
presented
guar-
fense
is not the defense
defendant,
and not his
or the
Constitution, for,
anteed him
in a
State, will bear the personal consequences
sense,
very real
it is not his defense.”
defendant,
of a conviction.
is the
IV of
Finally,
part
opinion,
in
the Faretta
therefore, who
free personally
must be
wording
rejecting
Court used this
particular
decide whether
in his
case
pages 832-34,
at page
95 S.Ct.
advantage.
to his
And al-
application
very
cases relied on
though
conduct
own defense
defendant at
8 of his
page
opening
counsel’s
detriment,
ultimately to his own
brief:
must
choice
be honored out of ‘that re-
blinking
“There can
fact
spect for the individual which is the life-
”
the right
accused to conduct his
blood of the law.’
own
against
defense seems to cut
recognize,
pointed
part
We
out in
V of
grain of
holding
this Court’s decisions
“
Faretta,
.
.
rep-
.
order to
requires
Constitution
that no
himself,
resent
the accused must ‘knowingly
accused
imprisoned
can be convicted and
intelligently’
forego
.
.
.
[the
unless he
has
accorded the
*8
benefits associated
with the
to coun-
assistance
counsel.
Powell v.
See
and that “he
should made aware of
sel]”
Alabama,
55,
talking you, you weren’t listening. “THE statutory COURT: When is our You wanted to read some papers then. Speedy Trial Act date? It is this week. That wasn’t papers. time read That so, was the Honor, time to listen. “MR. WEBB: I believe Your readily but I don’t have the date availa- “You got have to learn to listen to the ble. lawyer. Well, “THE COURT: I know that we “Now it is unfortunate that can’t had to swear a this week.” [92a] get along Rossetti, Mr. because very were fortunate in having Mr. Ros- We have past held in the the trial appointed. setti He is one of the most court has “considerable discretion in re experienced fusing and one of to” delay the best criminal the trial in order to secure defense lawyers we have substitute counsel even though here. there is some indication of a defendant’s dissatisfac “But if get along can’t with him tion with his initial counsel. United See just and he says he possibly can’t do States, ex rel Soto United anything attitude, view of (3rd 1974). F.2d Cir. then have blown it. The dissent argues that right. “All I McFadden never try to see if we can knowing, made a intelligent waiver secure of his the attendance of an attorney who right to counsel. The nature of charges you. can advise I can’t make him under- and the range punishment had been take the responsibility of the trial. pointed out in ap McFadden’s two initial cannot any continue this further. We pearances magistrate. before a Two com got have you go to have to trial 9:30 petent criminal lawyers gone had over Wednesday. defenses, McFadden’s including that of en get “When I do ahold of Mr. trapment, and discussed the necessary dis Rossetti has turned over all the papers to covery; yet McFadden to accept refused you, everything has, all, and that’s their Having advice. supplied except the United try, States will though two competent criminal defense lawyers, they to,-if don’t have they any tran- plus a third to assist him once he decided to scribed grand jury testimony or any represent himself, McFadden was entitled transcribed, can be of witnesses who are to no Certainly more. McFadden was not going appear case, in this they will see entitled to employ complaints against coun that you get that. [87a-90a] sel as a dilatory tactic in postpone order to
trial, claim, raise Speedy Trial Act possible await “THE death or right. unavailability COURT: All I will see prosecution witnesses, what unquestion the Federal a course Public Defender can do ably suggested by the record of McFadden’s supplying standby counsel. If we do (see conduct one, above). notes 1 and 10 get ask him to confer with Mr. Rossetti some understanding of While recognizing case, that this is a close this. we have concluded that the district court “MR. ROSSETTI: willing would be did not commit reversible error on this reco to do that. rd.16 See, alia, page good trial, inter including delaying not shown cause for note page request where “no for either substitute counsel expressed or a continuance was to the court Soto, prior day supra F.2d, 16. See at 1345 of 504 started.” where this court held that a criminal defendant
973 WEBER GERALD J. will be of the district court judgment The affirmed.17 chief States United Judge District
EXHIBIT A Webb, Attorney William A. U.S. cc: Asst. [CAPTION] Laekey, Esq. Robert Public Defender Federal ORDER Rossetti, Esq. Donald D. NOW, 23, 1979, of petition July AND Building Lawyers 1100 Rossetti, as coun- Esq. withdraw Donald Pa. Pittsburgh, is GRANTED. sel for defendant Carroll Garwin McFadden that all appears this date it Upon hearing Allegheny County Jail Act materials and all Jencks discoverable States Marshal United to this prior been delivered material have Probation Office United States date, date, to counsel for defend- or on this ant, have been delivered to defendant B EXHIBIT
in the of the Court. presence The within matter is CON- trial of the [CAPTION] 25, 1979, Wednesday, at TINUED until conducting m., with the 9:30 a. defendant MOTION TO WITHDRAW his It is further ORDERED own defense. AND NOW COMES counsel Carroll Lackey, Esq., the Federal of Robert Rossetti, Donald D. Es- Garwin appointed Office is Public Defender’s for an and moves this Court order quire, attend the trial of and in sup- counsel to withdraw permitting the defendant render such assistance as of same states as follows: port trial. during the course of the require 17, 1979, April 1. On Assistant Public filed. ORDER Thomas S. White filed a motion in Defender counsel, citing withdraw as this case to
/s/ Gerald J. Weber proceedings violated judges of criminal com- of the United States Courts The desirability Appeals of differed as to the and the have munications between the trial suggested colloquies prescribing jury conduct- jury began to be after the its deliberations and judges ed dissatisfaction the district when Appellant advisory notice expressed by in a with counsel is a defendant counsel.” Plattner, United v. criminal case. Cf. States transcripts subject matter of the 1964), (2nd 330 F.2d 275-76 Cir. jury any already presented been to the States, United 371 F.2d Townes v. making jury error in them available Craven, J., 1966), concurring. (4th Cir. 938-39 during harmless. its deliberations was See appellee’s pages at 17 and 18 following appellant cases cited have 17. contentions of Also, any objec- carefully rejected made as lack- defendant never been considered and brief. ing transcripts the basis of in this case: merit on the record to the submission of these tion jury “Assuming until after the returned its adverse 1. find a does Court valid waiver of proceed pro and an election verdict. se, infringed refusing the trial court 4. “The court erred in consider pro representation.” Appellant’s se delay.” Appellant’s pre-indictment claim of appellee’s pages and au- Lovasco, U.S.783, See 11-14 brief See United thority there cited. (1977), where the S.Ct. L.Ed.2d 752 unduly 2. ing Appellant’s restrict- “The trial court erred in said at at 2052: of wit- confrontation following prosecute a defendant inves- “[T]o restricting presentation nesses and in delay deprive tigative him of due does not entrapment defense.” might process, his defense in this evi- There was no abuse discretion prejudiced by lapse of time.” somewhat See, alia, dentiary ruling. inter cases cited 790, 97 and at S.Ct. at 2048: page appellee’s brief. 16 of necessary “[Pjroof prejudice generally a (Fifth “Appellant’s constitutional process of a due but not sufficient element Amendments) statutory (Rule Sixth ” claim. . . . Procedure) right to Rules of Criminal Federal stages personally all meeting The second occurred b. differences be- irreconcilable his reasons This of an hour. lasted % Defendant. The motion tween he because it *11 meeting was cut short counsel granted. was During of time. an utter waste had become 18, 1979, ap- counsel was April 2. On the Defendant be- the first few minutes the Defendant. pointed and omis- enraged came over inaccuracies appointment, At the time of counsel’s 3. it became neces- rap in his sheet and sions at the Federal Defendant was incarcerated explain rap what a sheet sary attempt Lewisburg, Correctional Institution is, why is often prepared, how it is one violation. The Pennsylvania, parole for a sig- incomplete evidentiary and its lack of violation was the De- parole of the basis accept did not nificance. The Defendant to which having fendant’s left district explanation. counsel’s he was restricted. step to file a mo- 4. first was Counsel’s 12, 1979, meeting lasted for July c. The the Defendant be returned asking tion spent The Defendant most of one hour. immediately prepara- Pittsburgh so shouting. accept He refused to this hour begin. The Hon- tions for his defense could law, repeatedly of the counsel’s recitation Snyder Daniel P. ordered instead orable stating that counsel was abusively the Defendant be returned to Pitts- government’s that he was on the wrong and 1,1979, setting the trial date burgh July also to Assistant Public side. He referred 2, 1979, July 1979. It was on White, saying he too Defender Thomas S. that counsel first met and conferred with side and that government’s had been on the the Defendant. well as going he was to sue Mr. White as correspondence . This 5. [be- meeting counsel. This terminated when tween counsel and the indicates defendant] agreed to see immediate- expect- that from the outset the Defendant ly with the Defendant’s list of demands. regard ed to control his defense impossible was to continue the conference. the advice of counsel. (This meeting in a conference in resulted day. The result chambers on that same has met with the Defendant Counsel of that conference was Defendant’s mo- four occasions for a total 4% hours. demands, all of which listing tion five Very spent posi- little of this time was .) . were denied. . tive, to actu- meaningful discussion directed al trial preparation. 18, meeting d. The lasted for was terminatd lVz hours and when the De- meeting first lasted hours. a. The IV?. fendant, enraged shouting, walked out background Some was obtained and counsel attorney’s Allegheny room in the gain rudimentary understanding did County meeting Jail. Most of this was presented. the defense to be Most of the listening to the tirade spent Defendant’s time, however, spent attempting to ex- was against Agent Buford. The Defendant be- plain to the Defendant that a motion for enraged came when he was told that pointless, bond reduction was that he was brought was not to the attention of incident minutes Jury entitled to Grand or though Defendant has no material, (3500) Jencks that there was noth- concept of the manner in which counsel ing illegal improper about the indictment intended to handle this His incident. exit containing charges more than the com- against followed a tirade counsel when he plaint, and that the distribution of heroin being repeatedly wrong berated counsel for sale of heroin are the same within the being government’s on the side. His meaning of the statutes under which he is my were “You make blood parting words charged. disagreed Defendant with all of boil”. remarks, repeatedly referring counsel’s reading his research and of the law. a Motion for like to file I would use intention to counsel’s It has been and Bill of Particu- Discovery of Evidence Buford of by Agent threats
[alleged copy of each. would like a myself lars. It is counsel’s the defense. part DEA] be done. Research must indeed, the De- it indicates view that case. It was entrapped in this was fendant of the case postponement requested make an oral intention to further nothing. counsel’s said White Mr. Thomas S. year. dismiss of this trial to at the outset motion a bond reduction. also like would misconduct prosecutorial due to the case $25,000.00 and I my reason bond main anticipated It was this incident. based on to Lewis- was to return objections; to reserve would desire this Court Warrant. burg Federal Prison on a Parole until oh the motion judgment *12 release date parole a with a given I’ve been course this trial. during the of evidence go 1980. I’m to February of 2/80. That is expected request nevertheless Counsel If I’m in October. Half-way-house to the of prior to the selection evidentiary hearing I’ll be able to in Bond allowed a reduction also intended It was point. on this five family. Wife and children. rejoin my this case dismissal of orally move for honest, I appreciate I all concern This inci- delay. pre-indictment on based repeat, effort. honest this motion also. may well effect dent Islamically Respectfully has been un- noted that counsel should be McFadden II Carroll G. to the develop either motion due able to 27877-117 attitude of the Defendant. your reply. expecting I’ll be P.S. counsel and relationship between 9. such that counsel cannot the. Defendant him at effectively represent adequately or May This case holds ex- of this case. McFadden, II, Carroll G. De- consequences for the tremely serious 27877-117 appears to have mer-
fendant. His defense P.O. Box effectively it. He is entitled to Pa. 17837 Lewisburg, It is averred that represented. adequately of America Re: United States provide represen- this longer can no tation. Carroll Garwin No. 79-74 Criminal
WHEREFORE, for an or- counsel moves permitting his withdrawal. McFadden: der Dear Mr. submitted, your let-
Respectfully following response is in you of the current and also to advise ters Donald D. Rossetti /s/ case. status of the D. Rossetti Donald you you to make clear I first want 25 1979 APR this case at me to handle expect cannot McFadden II Carroll G. Although appointed, I was direction. your attorney I am an fact remains that 27877-117 in this case. Whether I will function as one P.O. Box 1000 you a this case is to be tried are to enter Lewisburg, Pennsylvania 17837 decision. As to all plea guilty your Rossetti, Esquire D. Mr. Donald else, have will be you any suggestions Building Lawyers will be mine. considered, decisions but all Pittsburg, Pennsylvania should make satisfactory, you this is not If Dear Sir: immediately appoint- for the application ment of other counsel. appointing you court
Received word from file of Public Defender’s doing a The entire hope you plan I on my attorney. as Based on over to me. was turned office good job. June correspondence, I assume that guilty plea desire to enter longer D. Rossetti Mr. Donald White. arranged by Mr. at Law Attorney otherwise. assumption until tell me Lawyers Building when be discussed in detail we This should Avenue 428 Forbes meet. Pittsburg, Pa. 15219 Mr. Rossetti requesting
I filed motion Jail Allegheny County so returned May In letter dated reply conferring that would have the benefit May On preparation for trial. hoping meeting should be nice. I’m Our Judge I had a conference mind-my the same conclusion in we have the case has Snyder, Daniel J. to whom freedom. assigned, day has been reduction. No motion bond set for 1979. He ordered will the event a verdict is found how guilty Pittsburgh be returned to appeal effect the Per- bond bond. motion will time No be made at this ap- at this time will sonal Bond lower post- wanting continuance. Your the case wrong. Correct me if I’m peal bond. for a and is out poned year has no basis *13 wrong. think I’m not question. No motion be made for will pretrial discovery All motions and mo- of bond. will be dis- reduction This case completed. you tions have been Do long your posed before the status bond “Arrangement on Information minutes parole. have any your relevance to All for Indictment.” These minutes are needed discovery and have been pretrial motions you like them. If don’t have and would completed. suggest you get them I them. White, Mr. I have discussed this case with White let me you Did Mr. tell he wouldn’t your Attorney the United States wife. Magistrate Buford tell how Officer discovery I have reviewed the material. me. He “if I tell on threatened said didn’t is obvious that if this case is to be tried the people some be other would faced only possible entrapment. defense is that of charges other out put he could the word case it In this would have to be established cause harm my that could to chil- wife and at the time of initial contact with protect dren because I wouldn’t be there to Earl you predisposi- Officer Buford had them”. I informed Mr. Buford that anyone you tion sell narcotics to and that any could lose his life he caused harm not have anyone would sold narcotics to but my family. every come to I meant word. any for inducement of Buford. If there are My doesn’t family any pain my receive potential witnesses known actions. Men understand that. help this, please would us establish advise Rosetti, looking Mr. I’m forward see- names, they me of their where can be found eye. I’ll ing you hope eye we see what they believe know that expect reply get should those helpful. get in- would You should minutes. possible. formation me as soon as Islamically Very truly yours, Carroll II G. McFadden Donald D. Rossetti
DDR:sdi are other I’ll dis-
P.S. There
matters but
Allegany
cuss them with
once I’m in
Carroll
II
G. McFadden
County Jail.
27877-117
P.O. Box 1000
You can file a Motion with the
mak-
Lewisburg,
ing
County
Pa.
possible
Allegany
Library open
(5
everyday.
days
Law
a Public
Jail
Defenders Office was selected to
week)
open
It’s never
when it should be.
represent McFadden, and continued in this
capacity
April 18,
until
when he filed a
Remember, personal bond or a lower bond
motion to
motion,
withdraw. The
citing
discovery
and “all
evidence”. ALLI
“irreconcilable differences” with the ac
Thank
cused,
granted,
and Donald D. Rossetti
Islamically
was appointed new
counsel.
On
Carroll G. McFadden II
days
four
before the scheduled start of tri
Peace
al, Rossetti filed a
withdraw,
motion to
ADAMS,
Judge,
Circuit
dissenting,
stating that his relationship with McFadden
respectfully
ll
dissent. Carroll McFadden
deteriorated to
point
where it
wab undoubtedly an
defendant,
intractable
would
impossible
for him to unwilling
cooperate
with his court-ap-
the defendant adequately or effectively.
pointed attorney and mistrustful of the tri- At a lengthy hearing
July 23,
conducted on
al judge. The Sixth Amendment requires,
judge allowed Rossetti
to withd
however, that the accused in a criminal trial
raw.1 He also ruled that McFadden was
be afforded effective assistance of counsel
to trial in
days
two
and was to
unless he knowingly and voluntarily waives
represent himself, with Robert Lackey of
his right
to such aid. This constitutional
the Federal Public Defenders Office as ad
mandate is not relaxed when a defendant is visory counsel. Trial began on July 25.
difficult to deal with. The district judge’s McFadden
defense,
conducted his own
al
task of determining whether
the accused though Lackey made opening and closing
has made an effective waiver is frequently
remarks on his behalf.
On
McFad
intricate,
when,
here,
particularly
the den was convicted and sentenced.
defendant has misgivings about
the court
guarantees
Sixth Amendment
and unclear about his own desires. But
*14
to trial must be
any person brought
accord
while I
problems
understand the
that con-
right
ed the
to the assistance of counsel.
case,
fronted
judge
in this
I must
majority
The
concludes that McFadden
conclude that
competent-
McFadden did not
competently waived this
constitutional
ly waive
right
his Sixth Amendment
right.
Supreme
While the
long
Court has
assistance of counsel.
in
Accordingly, my
recognized
may forego
that an accused
his
view his conviction was obtained in viola-
counsel,2 a valid
right
waiver must be
tion of
rights
his constitutional
and must be
made “in the exercise of a free and intelli
reversed.
choice,
ap
with the considered
gent
and
The facts of the case are set out in detail
of the court.”3
proval
need be
and
majority opinion,
in
v. Califor-
holding in Faretta
In its recent
After
briefly.
only
here
recounted
deny an accused
not
a state
nia that
1979,
16,
McFadden
February
arrest
when
without counsel
right
“to
on his
of counsel
appointment
requested
to do
intelligently elects
voluntarily and
he
the Federal
White of
Thomas
behalf.
S.
McCann, 317
ex rel.
v. United States
Adams
Ros-
and
between McFadden
difficulties
1. The
236, 240,
269, 275,
attorney The NATIONAL STATE BETH, J., Banking Corporation comments at the McFadden’s a of whether N. a fairly America, understood as of and New the United States Association), (National without counsel. request Jersey Bank Corporation Banking of the United I did Although believe that McFadden America, Appellants at No. of States his knowingly voluntarily waive 79-1823, Amendment, recog- I rights under the Sixth are issues complicated nize that serious and here, when, and his
presented an accused LONG, Commissioner, Depart- Virginia develop irreconcila- court-appointed Banking, of Jer- ment State New Certainly, ble a court cannot differences. sey, Appellant 79-1824. at No. who cre- disingenuous malcontent tolerate 79-1823, 79-1824. Nos. delay start ates confusion in order to Appeals, United however, Here, Rossetti insisted trial. Third Circuit. representation to his objections McFadden’s delay not contrived to start were 10, 1980. Argued June Further, opinion wheth- express trial. I Sept. Decided required appoint er is ever suc- a court represent a attorneys cessive
who with the court’s earlier is dissatisfied particular, not reach the
choices. I do in this case
question whether appoint an required
would have been Rather, my
attorney replace Rossetti.
concern is that there is no basis conclud-
ing on the record here waived the
knowingly voluntarily guaranteed
to counsel that is the Sixth case, Ias being That
Amendment. it, was ob- MeFadden’s conviction
view constitutional in violation his
tained
rights reversed. and should be unclear, following prompting Nobody remained ex- else THE COURT: Who else can? change: can. myself, represent MR. McFADDEN: will THE know what [McFad- COURT: don’t Honor, Your slightest requesting. I don’t have the den] THE COURT: And attitude— requesting. idea what he is myself. MR. McFADDEN: I will request me MR. McFADDEN: All saying to what I’m listen during Despite McFadden’s statement saying apply what I’m to the Court. exchange with and the district Rossetti himself, he would intentions