*1 COLEMAN, Before GOLDBERG and
GEE, Judges. Circuit
PER CURIAM:
The district court failed to comply requirements 11(c),
with the of Rule Feder- Procedure,
al Rules of Criminal per-
sonally informing appellant of the constitu-
tionally protected rights which she would waiving plea guilty her was accepted, ascertaining that appellant un-
derstood those and voluntarily McCarthy States,
waived them. v. United 1166, 89 S.Ct. L.Ed.2d 418
(1969); Crook, v. 5 Cir. 708; Boykin Alabama,
526 F.2d
Mrs. Narisi’s conviction is reversed and
this case is proceed- remanded further
ings. *3 Toney (Court-appointed), Gunter Talla-
S. hassee, Fla., Fletcher Baldwin, N. Jr. Gainesville, Fla., (Court-appointed), for de- fendant-appellant. Stafford, Jr.,
William H. Atty., U. Rob- S. Jr., Geeker, Crongeyer, Nick P. Asst. L. ert Pensacola, Fla., Attys., plaintiff- U. S. appellee. BROWN, Judge, Chief and GEW-
Before COLEMAN, GOLDBERG, IN, AINS GODBOLD, DYER, MORGAN, federal WORTH, undercover agent, narcotics Steve RONEY, GEE, CLARK, TJOFLAT and Cox.
HILL,
Judges.*
Circuit
About a week
arrest,
after Dinitz’s
subject
allegedly the
of an
TJOFLAT,
Judge.
Circuit
attempt,
in which an
telephone
unidentified
Nathan Dinitz was
April
On
caller advised
that he could have the
violating
U.S.C. §
convicted
dropped in
charges
exchange
$2,000.
I con-
conspiring to distribute
Schedule
reported
the incident to the authori-
(LSD)
violating
and of
substance
trolled
ties,
and two FBI
investigated the
841(a)(1)
A
by distributing LSD.
U.S.C.
part
matter. As
of the investigation, a
conviction,
reversed that
of this court
“payoff” envelope,
fake
filled with paper,
had been
in dou-
holding
placed
that Dinitz
was left
the prearranged
pickup site.
in violation of
Fifth
jeopardy
ble
Although one of the FBI agents saw a man
*4
rights. United
v. Din-
States
Amendment
pick up
envelope,
were un-
itz,
1974).
(5th
By closely
Cir.
a
apprehend
able
him.
(8-7), this court
vote
en banc af-
divided
14, 1973,
On February
Dinitz came to
decision.
firmed
This trial was
trial.
aborted in its incep
Dinitz,
1974) (en
854
504 F.2d
It
in a mistrial
tion.
ended
shortly after
certiorari,
banc).
Supreme
Court
On
opening
the defendant’s
statement had be
remanded the case for further
reversed and
repeated
gun, when the
misconduct of one
Dinitz,
United States v.
proceedings.
1,
attorneys
of Dinitz’s
Maurice Wagner,
600,
Northern communicat- case appear pro allowed for money) ed the demand and the voice dismissal, he did not Wagner’s After vice. He did not Agent Cox3. commit himself to Dinitz, for reinstatement. formally move Instead, testify, however. renewed hand, motions, repeated made the other for an in camera application inspection of written, Wagner’s rein- oral both concerning the FBI files its investigation of denied. All of these' were statement. report4. the extortion This blanket appli- peruse the court cation for these files two months after the aborted first About However, the was denied. two FBI agents began. second trial Rather Dinitz’s counsel, investigation who conducted ex- securing alternate Dinitz were than and stated During the amined that there represent himself. chose similarity presentation physical case in was no between the man government’s chief, up general picked envelope Cox testified about and Agent Cox. under which he had advised bought Dinitz circumstances When that he from Dinitz. On cross-examina- nothing LSD further offer issue, on the tion, ended, attempted impeach inquiry precluded given he had inconsist- asking him whether into extortion going before When the testimony at an earlier trial. ent the jury. objected, Dinitz advised the prosecutor At the end of one-day trial, transcript he had a of Cox’s a verdict *5 jury guilty returned on both testimony, that it had but admitted earlier indictment, e., Dinitz’s i. con- counts of given involving in an unrelated case spiracy count and the distribution count. presented totally irrelevant to those issues later, one Approximately month he was objection his trial. The was sustained sentenced serve concurrent five-year sen- the line pre- and of cross-examination was tences for these violations. Dinitz also the court cluded. informed stage At this the proceedings, Dinitz desire to cross-examine about the his Cox (1) argues dismissal Wagner extortion When the court an- reinstate refusal him violated Din- that a voir dire in the nounced right counsel, itz’s Sixth Amendment (2) precede
jury’s absence would have to error it was to allow him in order to pro- examination consider his Agent through Cox impeach (a) the line of use inquiry, Dinitz abandoned the posed on, (b) strategy. during presentation Later case, transcript the use of he once from a again (in previous, absence of of his trial, (3) that it jury) raised the unrelated extortion issue. The error for repeated inquiry the court to refuse to make earlier as to an in camera any inspection he had evidence to connect of the FBI Finding whether files. none episode. with the For the meritorious, Cox first of these contentions we affirm case, Dinitz stated that there time of the judgment district court. Perez, 579, Wheat.) (9 v. 22 U.S. 6 L.Ed. judge’s was not action “motivated bad faith (1824), “prosecutorial rather 165 than the or prejudice [Dinitz],” or undertaken to harass or judicial bad faith” standard of United States v. did not bar the mistrial a second Din- trial of Jorn, 470, 547, 400 U.S. 91 L.Ed.2d S.Ct. 27 543 Id. itz’s case. (1971). Supreme rejected argu- The Court this trial, During ment, the first holding applied when the court asked the Jorn standard case. The he had Court then found “here evidence that judge’s banishment of was involved in the extortion inci- proceedings was not done in bad faith in dent, no was made mention that Dinitz himself goad respondent requesting into order implicate 2, supra. Cox. See could text to note prejudice prospects or to mistrial Dinitz, acquittal.” 424 U.S. United States v. pre-trial 4. Dinitz had filed a written motion for 600, 611, 1075, 1082, 267 96 47 L.Ed.2d inspect these FBI files in camera. Since, stated, (1976). as the Court
1219 added). phasis point There is some short of II allowing complete a defendant freedom in Amend- argues that his Sixth Dinitz first own counsel at which the choosing his Sixth was violated when to counsel right ment prescription Amendment’s is satisfied. To Wagner from court banned condemn, would necessarily hold otherwise appear- him from precluded first trial even local example, bar admission re- course conceded It is of thereafter. ing and no one would seriously quirements, Amendment5 under Sixth the Sixth Amendment re- maintain coun- representation of entitled that. quires acknowledges this case. sel in To make an judgment informed afford a defend- does not Amendment case, place must qualified we this in this right to counsel of unqualified ant the one’s own counsel against to choose right choice, right to counsel of one’s and that the judicial backdrop of discretion. Tradi argu- His to some extent. is limited choice (cid:127) enjoy broad courts tionally, case, that, the district court in this ment practice who shall before them determine deny representa- him the properly could the conduct of monitor those who do. and to choice, e., i. Mau- of his the counsel tion of attorneys are officers of the courts Since Wagner. rice appear, they such courts are before certainly agree that the Sixth We necessarily authority, vested with the with absolute, is an to counsel Amendment limits, attorneys’ to control in certain con-* representation of right to the unqualified See, Wilson, v. g., Phipps e. duct. 186 F.2d agree that the Sixth And we also counsel. 1951); ABA Standards Relat 748 respect the courts to requires the Administration Criminal ing to Jus of coun particular choice own defendant’s tice, of the Trial Judge 6.3, Function §§ near wrote Justice Sutherland As Mr. sel. States, Theard v. (1972); cf. 6.5 ago in the seminal case of ly fifty years 77 S.Ct. L.Ed.2d 1342 Alabama, Powell 28 U.S.C. And (1957); (1932), civil or L.Ed. 158 “[i]f the course of true especially criminal, court were arbi a state or federal attorney’s misconduct directly when an *6 counsel, party by a to hear trarily to refuse orderly of the administration impede him, for it rea appearing by and employed connection, course, In this of the justice6. such a doubted that may not be sonably relevant, indisputably Sixth and, hearing, a denial of would be judicial refusal the limits of helps it define for in the constitu therefore, process of due But the Amendment’s discretion. Sixth 69, at 64. Id. merely sense.” of counsel tional to choice informs right however, limits to the con are, some displace There does not it. judicial discretion —it through the to be heard right then, must focus on the trial inquiry, stitutional Our Powell itself con choice. of one’s of its discretion. In each counsel exercise court’s limits when case, whether, existence of such templates inquire given the the we must being right to counsel qualified right “the to choose his it states defendant’s counsel, afforded a conceded, should be the trial court’s refusal to hear a defendant own through his his chosen to secure counsel of counsel the defendant opportunity fair Thus, 53, (em- an abuse of discretion7. 53 at 58 constituted Id. at S.Ct. choice.” own pletely, part for the alternative be to frus- pertinent Sixth Amendment of the 5. The disrupt progress the of the trial trate and reads: “In all Constitution the United States of questions the central enjoy collateral with issues prosecutions, accused shall the criminal litigation. the court has in . . . [0]nce Assistance of have the ... the ruled, involved in the ac- and others counsel his defence.” for Counsel ruling comply the tion must abide orders. with the court’s Meyers, 95 Maness v. 6. See (1975): 584, 591, L.Ed.2d 574 42 Indeed, S.Ct. always has been our standard of this 7. sort. In the context of during of this given the course of a review in cases trial] [Orders counsel, panel example, court-appointed promptly for complied and com- must be empaneled, of we must was orally context defense counsel re- at which the newed a motion to suppress. each instance district Although consider disallowing clear, his for that grounds discretion motion were not judge exercised began to conduct hearing for Dinitz. court Wagner appear on the For the bulk of that Wag- motion. such The first instance occurred questioned government ner chief wit- trial, during when the Dinitz’s first ness, Cox, Agent about facts having no Wagner remove ordered himself connection potential to the sup- discernible thorough A review of courtroom. evidence8. pression of Eventually be- that, cir convinces us under the the record apparent Wagner grounds came had no cumstances, court’s order was not an suppress, his for motion and the court abuse its discretion. denied motion9. particularly compelling
Our conclusion
Wagner’s
final
transgressions
occurred
sequence
when we review
events
opening
jury.
statement
Wagner’s
begin
led to
removal. To
Despite
warnings,
several
Wagner continu
with, Wagner
not a member of the bar
permissible
ally
scope
exceeded
of an
He
Northern District
Florida.
of the
opening
Finally
statement10.
he began to
request
appear
no written
Din-
made
jury
alleged attempt
tell
about
case;
fact,
appearance
was not
after
extort Dinitz
his arrest. At
^itz’s
brought
judge’s
to the district
attention
point,
jury
sent
out
asked
day
of the
until
first
at which
Wagner
evidence to connect
appear pro
allowed him to
time
Agent Cox with the extortion
attempt.
immediately
vice.
jury
Almost
after a
When
was unable to show that he
question
held
allegation
court has
drugs by
sale of
appoint
new counsel for a
whether
defend
suggestion.
was done at
Cox’s
How-
sound
ant is within the
court,
discretion of the trial
ever, Wagner
develop
was unable to
a connec-
gone
uphold
on to
the court’s
allegation
any suppres-
tion between this
Young,
of that discretion. United States v.
use
issues.
sion
1973).
(5th
And
Cir.
even when a
to retain new
re
defendant seeks
counsel in
opening
frequently argu-
statement was
counsel,
placement
court-appointed
of his
a tri
Additionally, any
mentative.
discussion
discretion,
judge may,
al
within his
it.
disallow
alleged
pat-
would have been
Sexton,
F.2d 512
United States v.
ently improper,
grounds
since
had no
course,
1973). Of
the fundamental concern
belief
for
could
connected to
range
which dictates
there be some
the extortion
See note
infra. The
judicial
is the
as a
need
order
provide:
ABA Standards
Criminal Justice
justice;
means toward
stated in
Casey,
(5th Cir.),
United States v.
1221 11,the him court ordered sion motion that utterly frivolous, was had such to courtroom, characterizing his the Wagner to leave repeatedly specific warn about in- as “plain as character statement opening misconduct, of to stances send the jury “the exhibition worst sassination” of the courtroom no less than out three I have sat . . . since heard have ever during the Wagner’s open- times course of on the bench.” ing statement.12 Even after dismissed judge Wagner, Dinitz still had events, sequence of Given (Mr. lawyers Meldon and two Professor district court to us the seems clear Baldwin) present; it was clear at the time scope the of within acted well deprived not be the advice Wagner to leave the court when it ordered toas what his Wagner’s of counsel available disruptive effect of alterna- The room. be. Under circumstances, when we consider that tives would these evident conduct beginning to delay forced the it was no abuse discretion for the the was suppres- Wagner a testimony to hear to order judge of the trial remove himself.13 verbally alleged reprimanded agents investigated Wagner times, had FBI several Two During investigation reprimands and these had done little to deter attempted trap Certainly, Wagner’s extortion- agents misconduct. a citation for envelope paper order; by leaving contempt may filled with ist in as Chief spot. spot kept pick-up Burger noted, proposed was The Justice Eventually attorney, someone Wag- under picked up surveillance. the misconduct of the [h]ere envelope, ap- only ner, per unprofessional he was not but was se but however, him, agent prehended. contemptuous who saw in that he defied the court’s court, explicit not in “overreacting” to the and he did him order. Far from described any Wagner view, way Wagner, my admit- resemble Cox. in the misconduct agents’ great judge FBI had neither seen the ted that he physical exercised restraint in not up description picked citing Wagner contempt of the man who then and there. Dinitz, envelope in- nor talked (1976) (con- vestigated the matter. S.Ct. curring opinion). L.Ed.2d rigid require- But there is no prescribe separate five 12. The ABA Standards contempt the use ment sanction judge seek to alternatives chronologically precede the use of the removal disruptive conduct in a criminal trial: control every case. All that sound sanction in discre- significant dis- When an causes requires judge impose is that tion proceeding, ruption the trial a criminal in (in sanction which words the ABA having particular regard provi- judge, Standards) “appropriate to correct the abuse 6.3, abuse, correct the of section should sions repetition.” By and to deter time attorney by necessary, discipline the finally courtroom, ordered to leave the following sanc- or more use of one repetitious character of his misconduct was tions: established, well and there is little reason to (i) reprimand; or censure contempt believe that a citation would have punishment contempt; (ii) or citation repetition significantly served deter the courtroom; (iii) from the removal that misconduct. (iv) suspension for a limited time of the Russell, 13. Dinitz cites Sanders v. practice the court where the misconduct 1968), authority proposition for the permitted if such sanction is occurred law; that the district overreached authori- ty ordered when he leave court- disciplinary informing appropriate (v) proceeding room. Sanders a mandamus every jurisdiction where the attor- bodies ney which a of this court ordered the district practice of the nature of is admitted allow, contrary rules, to certain local attorney’s sanc- misconduct and of appearance by pro hac vice out-of-state counsel imposed. tion Although recognizing *8 Relating in a civil case. Administration ABA Standards to the enjoy Justice, district courts broad Judge that the discretion Function of the Trial 6.5 The pro respect appearances, provide with to hac vice (1972). also that the The Standards ordinarily that the Southern impose found District of judge the least se- Mis- “should pro sissippi’s on appropriate rather restrictive rules the abuse to correct vere sanction congression- appearances repetition.” contravened the 6.3. We are vice Id. at § and to deter expressed in the various civil it was for the dis- al intent convinced that reasonable judicial agree we judge removal of course that to conclude that acts. Of discre- trict Wagner appropri- area is the least severe sanction in this circumscribed tion intent Congress. had See the circumstances. The 28 U.S.C. § ate under again, we conclude next exercise discretion which we that the The court was well February 23, consider occurred within its discretion doing must so. The court after the about a week mistrial. On had before it no formal motion or affidavit date, heard a the court motion one that Wagner evincing from an intent to forbear remaining Mr. attorneys, Mel- of Dinitz’s fact, further misconduct. In the record don, requested permis in which Mr. Meldon shows no communication from Wagner to withdraw from case. Mr. sion to Mel- any court kind. Nor did Dinitz’s motion cited “irreconcilable differ don’s any motion contain statements which would between him and Dinitz14. ences” Wagner’s indicate a desire on part to amel- objected if he court asked Dinitz to Mr. situation; iorate the factually, it contained withdrawal, and Dinitz refused to Meldon’s little than more the bald statement that answer, he insisting that wished to consult Wagner, Esq., “Maurice has advised the De- proceeding any Wagner before fur fendant prepared at any time to granted The court then Mr. Meldon’s ther. represent Defendant this cause.” In motion. short, nothing there was before the district court it by which could have inferred abuse We find no of discretion Wagner’s conduct be any repre- would less date for Although here. Dinitz’s second Moreover, hensible at the second trial. to set, yet the court trial had not been deny Wagner’s reinstatement would not that there would be no retrial during stated have forced Dinitz to proceed to trial with- thus, term; current was clear that out a lawyer. Although precise date for ample Dinitz would have opportunity to yet set, second had not it was fact, attorney. another secure clear Dinitz would have ample, time lengths to explain even went some to to within which to retain or seek appoint- student, Dinitz, a law third-year ment of new counsel.16 Given the absence appoint would new court counsel if Dinitz any action on Wagner’s curative part, Moreover, were unable to afford one15. the district wholly justified left completely Dinitz was still not without refusing to allow to reappear. counsel, since Professor Baldwin had not from case. withdrawn Under these cir Finally, we must consider the dis cumstances, no it was abuse of discretion trict April 16, 1973, court’s actions on grant court to Mr. for the Meldon’s motion day began. that Dinitz’s trial day, On that to withdraw. again moved for the reinstatement exercise of The next Wagner; again there was no communica occurred on March we must consider tion to Wagner himself, date, prior weeks to affidavit; Some either by motion or again written motion for the had filed a the motion to reinstate was denied. Wagner. March On reinstatement It was no abuse of discretion do so. Here court denied motion. Dinitz had received his formal notice of the However, we are unaware of acts of provision Con- appoint competent gress analogize which would allow us to Sand- represent you counsel in this case at no Dinitz’s case. ers to you, expense you, no cost to so if you get position you in that to where are specifically, the 14. More motion cited irrecon- one, you ought afford unable to to hire cilable differences and added that Dinitz’s “le- notify compe- Clerk of this Court and a gal education has nurtured in certain [Dinitz] appointed represent tent will proper proceeding notions method of you. suggest you make that cause, making in the defense of this thus determination and advise the Court so that irreconcilable aforementioned differences im- appointed represent you someone can be possible compromise.” of resolution or early at an date so there will not be 15. The court told Dinitz: delay. you attorney, you If are unable hire an 16., out, As it fully turned Dinitz had three pay necessary are unable to costs and the pursue weeks in which these alternatives. any investigation fees services there is a *9 circumstances, der requirements that he these April From date on 5. trial date counsel, alternate of the Sixth Amendment days to seek were more than had eleven by request- or hiring one himself satisfied. either fact, In even appoint one. to
ing the court years Some two after Dinitz’s case came begin, to about the trial was though of this panel a court decided In re to appoint counsel for willing to still court was Evans, 1975).18 F.2d Cir. In fact, and Dinitz; of that advised case, attorney had a an made formal appointed.17 attorney to have an he declined pro for admission hac vice pretrial motion further dis- Thus, any assertion absent ease, tax and the in a criminal evasion were not would occur ruption denied the motion. The judge had return, was left with to allowed granted compel- writ of a mandamus panel Dinitz to to allow choice but virtually no court to ling attorney. the district admit the to trial. proceed to represent himself so, doing pro- outlined certain In did, and it what the court exactly is This applicable pro to requirements cedural hac discretion. an abuse of from was far mis- only vice motions19 and declared that in which the considering instance each In “rising to conduct level of disbarment” Wagner to appear, to allow court refused give would a district the discretion of the fact that cognizant especially we are deny pro a necessary to hac appear- vice the court’s re- case in which not a this ance. attorney forced the a defendant’s moval of Evans, immediately proceed pro however, to se was substan defendant to secure alternate case. opportunity tially different an without Higgins place, wholly inapposite ex rel. Evans United States first counsel. See 1966). (2d Wagner during After F.2d 219 the removal Fay, first merely Wagner, attempted Dinitz had dismissal of trial. Evans establish original lawyer. to a applicable pretrial In- to secure another standards motion to two months context, insist his hac vice. In such a repeatedly upon pro stead, appear chose considerations, among erro- the district Sixth contention others, necessarily scope of the case. The restrict Wagner off neously ordered a trial mistakenly disagreed with court’s discretion. Before has trial fact that may have little point begun, of law does a court first-hand court on (or position. attorney’s competence an strengthen knowledge appreciably not thereof); moreover, pretrial since a conduct of lack disruptive removal; hearing interrupt aijy ongoing thoroughly justified trial first may never show- fundamental fairness time, proceedings, there after that hearing require or Wagner; reformation such most of these ing of contrition given an again attorney has been was time situations. Once ad and Dinitz lawyer. proceed- hac vice and a has pro to secure another Un- mitted case opportunity proceedings, opening appointed rep- the fol- have 17. At to have one exchange lowing occurred: you? resent Dinitz, you were Yes, Mr. advised COURT: THE MR. DINITZ: sir. ago, was set for trial this case sometime Evans, By here discussion we do not 18. our attorney? you today. have an Do applied imply we feel it mean should sir, No I don’t. DINITZ: MR. Since, out, retroactively. point as we later Ev- you wish Court Do THE COURT: inapposite to Dinitz’s we need not ans is you attorney represent sit appoint or to an here. you? decide that issue No, I have watched a DINITZ: sir. MR. attorney give appointed he did Court If a district court prefer preparation. not to proper I would vice, pro justify of admission Ev- a denial attorney. appointed a Court have specific charges and ans notice of calls for understand, though, you Do COURT: THE attorney the record allow an you you earlier indicated since opportunity himself. to defend you unable hire were *10 trial, however, application, considerations are ed to those standards would not com- justice interests of quite different. The pel us conclude the district court have a measure of demand that any had at time violated Dinitz’s Sixth necessary steps take to ensure discretion to rights. Unnecessarily to
that order is maintained. judge’s discretion would be to limit Ill only govern- threaten ment, proceed as We will now the defendant well. And with but when, here, attorney’s remaining conduct dem- issues raised an in this First, argues likelihood of contin- appeal. onstrates a substantial the district proceedings, we disruption ued of the preventing court erred in his cross-examina abuse say cannot that it an of discretion is through tion of use of Cox’s attorney to leave the court- to order testimony at the earlier unrelated trial. To room. admissible, the extent it ever is extrin sic evidence to attack credibility usually Furthermore, the Evans require subject to the discretion of the trial judge. applied ments could not have to the court’s Banks, v. See Wagner refusals to reinstate before the 1973); Weinstein 3 J. & M. Berger, begun. second trial had Evans at least Evidence, 608[05]; Weinstein’s Fed.R.Ev. H make requires showing some Furthermore, 608(b). testimony earlier qualified and ready to the court that he relationship bore no issue in this appear pro hae vice. If the court then ease. Dinitz wanted simply that, to show at him, the attorney may decides not to admit time, an earlier Cox had made an inconsist entitled, cases, to well be in most hear the oath, ent statement under nothing more. denying court’s reasons for him admission Clearly, did not abuse his qualifications at a and defend his formal precluding discretion in the inquiry. hearing. But in Dinitz’s secure his own made no rein argues Dinitz next that the district court, Although statement. in banish it court erred when denied his motions trial, ing him from the first told him made before trial to inspect, “you will leave this Courtroom imme camera, the records the FBI investiga diately you practice will never law in tion of the extortion The conten again,” this Court well have tion is that the recorded description of the judgment its under less emo reconsidered picked up payoff man who envelope point The tional circumstances. is that the might inculpated Agent have Cox and thus court never had a chance to reconsider be might exculpate tended Dinitz. presented cause it was never rea Brady Maryland, doing so. As court itself sons stated 1194,10 (1963), L.Ed.2d 215 progeny beginning at the of Dinitz’s second proposition do not stand for the that due at Mr. wishes some date to [i]f process requires inspection an in camera request admitted to this government files whenever a defendant re up time, at bar the Court will take quests inspection. Brady such an cases of the but he is not a member bar of this require least some indication that practice allowed to Court and will not be files will contain information ei “material one, reasons, for two because of what guilt ther to punishment.” or to Id. at transpired proceeding, at the earlier at 1197. Here there was no such two, never made applica because he had indication. Dinitz’s estimation of what the to this tion to be admitted bar. highly FBI records would show was specu lative, and, moreover, conclusion, is of help Evans no more than ade to decide that quately testimony Even if we were rebutted Dinitz. receive investigated standards should retroactive two FBI Evans the al- witnesses, eral including Agent other attempt and advised Cox. leged *11 himself, was not to take Cox He chose not the stand oath that and under court requests present to he no further made involved.20 attempt.24 extortion on the the dis- that contention Dinitz’s final allowing him to laying erred in never succeeded in a predi- Dinitz trict pre- incident alleged extortion introduction of the develop the cate for the ex- At defense. the commence- proffer, his His developed of sentation tortion admonished trials, the court had trial of the of the course two consist- ment the be held would have to representation initially Dinitz of the of ed his to presence go he desired jury’s of the was out there no evidence of counsel requested first Dinitz matter. into There Agent involvement. was no Cox’s calling witnesses hearing after three such attempted when the indication extortion excusing jury, the the After the stand. to reported Cox had the was made first proposed to Dinitz what he Dinitz, asked call to and the FBI telephone inves- Agent that he felt Cox stated Dinitz show. that someone had tigation disclosed else the at- with extortion be connected could envelope. the picked up All that remained of telephone voice the the tempt because court, the was announcement to Dinitz’s similarity” a “tremendous bore extortionist the similarity between late in his was This the Cox. Agent the voice to of the caller and the voices Cox. But anyone case that the entire time in first evidently unwilling to the to take stand telephone to the link to Cox purported innocence to claim assert his that Cox himself to commit did not Dinitz call.21 him. had framed explain did he how fact, nor testify to proffer fit into his We conclude that extortion alleged require the trial his initiative not sufficient On own defense.22 development before the agents jury who permit two FBI questioned complaint. through matter extortion this collateral examina investigated the had agents. or the FBI Dinitz him- See subpoenaed by tion of Both had Higgins, As testify his behalf. self, United States presumably denied, that the they Cir.), testified first cert. Dinitz’s course, bore no envelope (1966). Dinitz up the Of picked 17 L.Ed.2d man fact, they sought episode Cox. In to introduce have could resemblance any kind that would testimony, but the case through no information his own testified, agents find, posture. After implicate Cox. reached that We never blanket re- Dinitz’s again therefore, denied final that Dinitz’s contention of the FBI files on inspection quest for merit. without investigation.23 extortion When Din- showing, court de- further made no itz IV develop request his nied reasons, foregoing proceedings. judgment For stage of issue at returned, court is AFFIRMED. Dinitz called sev- jury of the When occurred, day remembered also be on the and he did It transaction 20. should sought were not government Dinitz deny closing argument jury. files which it in against prosecute the him case those used investigation into in an those used but rather requests no 23. made Jencks Act Dinitz to Din- at best collateral which was an event made, and we statements itz’s case. request inspection for an of the do not view See 18 U.S.C. as such a demand. files 3, supra. note 21. See alleged example, that he never 22. For However, try closing to it in he did allude witnesses testified His own was framed. jury, but argument the court intervened. drug the scene of Cox at he was with CLARK, Judge, Failing Circuit whom my ability distinguish Evans GEE, join, Judges, Circuit con- lacking DYER facts and a modification itsof rule, curring: I cannot concur in majority all the However, writes in Part II. under the fac- I, III and the result Parts concur in conclusions now tual established the Su- Tjoflat’s opinion for the en Judge IV opinion, the preme Court’s trial first actions court. banc Wagner warranted his dismissal there view, my the circumstances no prejudice showed substantial displayed to those are so similar second *12 deprivation Wagner’s services at Evans, F.2d 1004 in re I, therefore, his retrial. in concur the re- in II to 1976), Part distin- sult. attorney fail. Evans’ must guish Evans appear pro was not refused BROWN, Judge, JOHN R. Chief concur- but any generalized activity vice because ring, GEE, with whom COLEMAN and Cir- in prior, his conduct related because of join: Judges, cuit it, As I see in the same court. cases Judge Tjoflat’s concur in opinion and in attempt by Dinitz to reinstat- except result I agree Judge attorney at as his the second trial ed separate opinion Clark’s that In Re Evans and rule squarely within facts of Evans. squared cannot be with this result. I con- this, wrong Even if I am about the fail- vitality sider whatever In Re Evans modify unnecessarily ure to Evans beclouds necessarily has been dissipated by the applicable rule for future eases involv- en present banc decision. course, Of In Re ing pro motions for admission hac vice. books, Evans is still but except for the trial majority leaves courts of this highly application restrictive to the un- guidance as how circuit without future usual situation described in that opinion, kind should be handled. cases of this Have today action affirms our to District Judges procedure Evans’ rules and substance they are circumscribed from exer- supplanted sub silentio return cising their constitutional discretion to as- vague of abuse of in standard in deportment sure their courts. cases, only this in some exact or every Are the case? standards admis- bifurcated; pro e., hac vice i. one
sions civil
standard for cases in the South- Mississippi
ern District of another and courts? Evans
other cases should be modified and is both the time HARRIS, Plaintiff-Appellant, James U. for it. forum example, we For could establish America, The UNITED STATES of may deny that a court permission rule United States Postal Service and the pro hac vice to an appear Commission, Civil Service acts in this or committed another court that Defendants-Appellees. disciplinary action under the warrant Disci- No. 74-4016. plinary Rules of the Code of Professional Responsibility, unless such denial re- Appeals, United States Court of prejudice attorney’s sult clear Fifth Circuit. — modify we thus client. If the Evans Sept. standard, it would permit a trial Sanders effectively with disruptive deal engaging speculation conduct without degree disciplinary
about action that committee would state bar consider suffi-
cient for disbarment.