United States v. Leveto

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

8-26-2008

USA v. Leveto

Precedential or Non-Precedential: Precedential

Docket No. 05-4753

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 05-4753

___________

UNITED STATES OF AMERICA

v.

DANIEL J. LEVETO,

Appellant

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 01-cr-00006)

District Judge: The Honorable Maurice B. Cohill, Jr.

___________

ARGUED NOVEMBER 1, 2007

BEFORE: RENDELL, WEIS,

and NYGAARD, Circuit Judges.

(Filed : August 26, 2008 )

___________

Victoria B. Eiger, Esq.(Argued)

Dershowitz, Eiger & Adelson, P.C.

220 Fifth Avenue, Suite 300

New York, NY 10001

Counsel for Appellant

John Hinton, III, Esq. (Argued)

Alan Hechtkopf, Esq.

United States Department of Justice Tax Division

P. O. Box 502

Washington, DC 20044

Counsel for Appellee

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Daniel Leveto appeals the District Court’s judgment of

conviction for federal income tax fraud following a jury trial.

He asserts a violation of his Sixth Amendment right to counsel,

and he has made numerous challenges to evidentiary decisions

made by the District Court. For the reasons that follow, we will

affirm the judgment of the District Court.

2

I.

Leveto operated a veterinary hospital in Meadville,

Pennsylvania. Internal Revenue Service auditors detected fraud

on Leveto’s returns and they referred the matter to the I.R.S.

Criminal Investigation Division. The I.R.S. initiated an

undercover investigation that began in December of 1994. They

obtained a mail cover, performed a public records check,

conducted surveillance, and tasked an I.R.S. special agent to

work undercover. The record provides the following facts.

Leveto joined an organization known as First American

Research in the 1980's. The group promoted the establishment

of sham offshore trusts for the purpose of evading liability for

federal income taxes. Leveto became a promoter of a book

authored by the founder of the organization, entitled “Tax Free:

How the Super Rich Do It.” He advertised the book in

newspapers, listing his address for those who wished to make

further inquiries. He received hundreds of responses.

In accord with the scheme promoted by the organization,

Leveto “sold” his veterinary business to Center Company, a

sham foreign trust purportedly located in the Turks and Caicos

Islands. Center Company then distributed all of the veterinary

clinic income to another sham foreign trust. This created an

illusion that the veterinary clinic profits were distributed as

foreign source income to foreign beneficiaries, eliminating

federal income tax liability. Leveto and his wife then used debit

cards and other means to spend or repatriate the funds,

obscuring their control and ownership of these monies. In all,

3

Leveto left $408,000 in unpaid taxes between 1991 through

2000.

Leveto promoted and sold the organization’s book to a

confidential informant and to the undercover agent. Leveto also

admitted to these people that he was involved in nothing more

than a “charade or sham.” He admitted that he actually retained

control of all of the gross receipts of the veterinary business, and

that he paid only as much tax as he wanted to pay. Finally, he

told both individuals where he kept a number of documents

relating to the scam.

The I.R.S. undercover agent prepared a 27 page affidavit

explaining Leveto’s tax evasion scheme. The affidavit

accompanied the application for a search warrant, but it was not

incorporated into the application. The search warrant

application did have a general list of items of interest attached

as an exhibit. The agent accompanied a United States attorney

who presented the request for a search warrant to the Magistrate

Judge. The Magistrate Judge sealed the affidavit to protect the

identity of confidential sources and authorized a search warrant

for Leveto’s residence and business. The undercover agent

briefed other I.R.S. agents on the warrant and on the contents of

the affidavit. They conducted the search the next day.

II.

On February 15, 2001, a Grand Jury returned an

indictment against Leveto and others, and an arrest warrant was

issued on December 15, 2001. Leveto fled, evading arrest until

March of 2004.

4

After Leveto’s return to the Western District of

Pennsylvania, the Magistrate Judge appointed counsel for him

and ordered him to be detained. The District Court subsequently

granted appointed counsel’s motion to withdraw due to a

conflict of interest. At that point, Leveto expressed an interest

in pro se representation, but paradoxically indicated to the

District Court “I am in no way waiving my right to counsel.”

On June 7, 2004, the District Court conducted a hearing

to determine Leveto’s intent with regard to representation.1 At

the hearing, the District Court instructed Leveto that he could

not “have one foot in the counsel boat and one foot in the pro se

boat.” Moreover, the District Court noted that it would interpret

any equivocation on the issue of representation by Leveto as a

request for counsel. Leveto was given an opportunity to confer

with stand-by counsel at this hearing.

After consulting counsel, Leveto said: “I have decided to

proceed pro se with [the attorney] as stand-by counsel.” The

District Court then began a colloquy with Leveto, confirming

that: he understood the charges against him and the elements

of each offense; he was aware of the maximum penalty for each

charge; he was cognizant that rules of evidence and rules of

criminal procedure govern the process for trying the case and the

1.

The District Court attempted to conduct a hearing one

week earlier, but continued the proceeding upon discovering that

legal counsel for Leveto was not present. The first hearing was

conducted by Judge Maurice Cohill. The second hearing was

conducted by Judge Sean McLaughlin.

5

admission of evidence; and that he was aware that the judge

could not advise him on the rules.

The District Court found Leveto competent to waive

counsel, but advised: “. . . in my opinion, Mr. Leveto, a trained

lawyer would defend you far better. . . than you could defend

yourself. In my opinion it is extremely unwise of you to try to

represent yourself. . . .” The District Court concluded: “I

strongly urge you to proceed with counsel, but it is your

constitutional right to a knowingly [sic] and voluntary waiver of

counsel.” At the end of this colloquy the District Court asked:

“. . . do you still desire to represent yourself and give up your

right to be represented by a lawyer.” Leveto responded: “I do,

your Honor.” The District Court acknowledged his waiver and

appointed the attorney as stand-by counsel.

Leveto aggressively pursued his defense, filing numerous

motions, including: motions for clarification; motions to

dismiss parts of or all of the charges; a motion to disclose

evidence; and a motion to suppress evidence based upon an

invalid search warrant. Leveto also appealed his detention

order. Finally, Leveto undertook plea negotiations with the

government.

The District Court notified the parties on April 27, 2005

that trial would commence on May 23, 2005. One week before

trial was to begin, Leveto filed a 42 U.S.C. §1983 action against

Judge Cohill, the presiding judge, alleging bias in the handling

of pre-trial motions.

6

On the evening before trial, Leveto mailed from jail a

motion to recuse Judge Cohill, on the ground that the Judge was

now a defendant in a lawsuit filed by Leveto. At the morning

conference before jury selection, the District Court orally denied

the motion, stating that such a maneuver would “open the door

for any defendant any time to file an action against the Judge

personally and then get him to recuse . . . .” Upon this denial,

Leveto next expressed his desire to have a separate hearing on

the matter, before a different judge. The District Court denied

this request, declaring that jury selection would commence as

scheduled. At that point, Leveto stated: “I can’t take part in a

mock trial. This motion that was filed with the Court deserves

more of a discussion than just a denial.”

Moments later, as jury selection was about to commence,

Leveto said at side-bar: “After some new issues had come up,

I had additional due process concerns and I am asking to be

represented by counsel.” The District Court reminded him that

counsel had been appointed early in the process, but that “you

didn’t want to take advantage of it.” The following exchange

then occurred:

Leveto: Well, due to some of the newer

developments, Your Honor, I believe that

I no longer feel comfortable pro se and I

do need to be represented by an attorney.

Judge: Well, this is a bit late to be asking that, so

the motion is denied.

7

During voir dire proceedings, Leveto repeatedly expressed his

desire for an attorney. In each instance, the District Court

denied the request and advised Leveto to consult with stand-by

counsel, who was present throughout all of this time.

As the trial began, the District Court asked Leveto if he

wanted to make an opening statement. He said:

You know, Your Honor, due to the sheer

intimidation of all of this - - I really believed that

I could represent myself, but I seem to be having

difficulties and mental blocks, and I am asking

you again to have an attorney represent me.”

At the close of the government’s case, Leveto asked to make an

opening statement. The District Court granted the request, but

cautioned “There will be no more talk about not having a

lawyer. You waived that clearly in June of 2004.” A discussion

between Leveto and the District Court ensued.

Judge: Under the circumstances of this case, I

can’t imagine stopping now and

appointing [the stand-by counsel] or

anyone else to represent you and prepare to

defend a case like this. You can’t do it.

You can’t operate that way.

Leveto: I’m aware of that, Your Honor. That is,

[sic] why before we started, I reasserted

the right and I filed the action against you

a week before the trial.

8

Finally, later in the trial the following exchange occurred at

side-bar after Leveto raised the counsel issue again:

Leveto: I just was not aware that you couldn’t

relinquish [a waiver of the right to

counsel]. I know that I did it. I am sure

that everyone knows that I did it here.

Judge: But, you can’t relinquish it the day of the

trial. This has been pending for years and

no lawyer could possibly go in and act as

a lawyer the day of the trial in a case like

this without preparation time. And in the

interest of justice, the thing has to move

along.2

2.

The government points to the fact that the case was tried

in Erie, Pennsylvania, but the Judge lived in Pittsburgh,

Pennsylvania and stand-by counsel lived in Butler,

Pennsylvania. Further, the government’s attorneys and

witnesses traveled from Washington, D.C. and other distant

locations. Finally, the venire had been assembled from a

geographic area that is roughly equivalent to one-quarter of the

Commonwealth of Pennsylvania. We take judicial notice of the

fact that both Pittsburgh and Butler are over 100 miles from the

Erie federal courthouse, and that Washington, D.C. is

approximately 370 miles away from the Erie federal courthouse.

9

The counsel issue did not arise in the remainder of the trial. On

June 2, 2005, a jury reached a verdict of guilty on the three

counts brought against Leveto. The District Court entered a

judgment of conviction and sentence on October 14, 2005.

Leveto appeals this judgment.

III.

A.

Leveto claims that his Sixth Amendment rights were

violated when the court denied his request for counsel.3 Our

examination of the record leaves no doubt that Leveto properly

made a conscious and informed choice to waive his Sixth

Amendment right to counsel and to proceed pro se. United

States v. Welty, 674 F.2d 185, 188-89 (3d Cir. 1982); Farreta v.

California, 95 S.Ct. 2525, 2541 (1975). Nonetheless, Leveto

argues that, in spite of the waiver, we and the District Court are

obligated to give his request for counsel deference of the highest

order. See e.g. United States v. Proctor, 166 F.3d 396, 403 (1 st

Cir. 1999); United States v. Pollani, 146 F.3d 269, 273 (5 th Cir.

1998). We do not find any authority to support Leveto’s

position.

In Proctor, the court reversed the district court’s denial

of a defendant’s post-waiver request for counsel, stating

categorically that it is “hard to imagine an explanation for

denial [of a request by a pro se defendant for legal counsel] that

3.

Our jurisdiction over the final judgment of conviction

is found in 28 U.S.C. §1291.

10

would withstand scrutiny.” Yet, the defendant in Proctor made

his request at a motions hearing one month before the start of

trial. Further, the court stated in dicta that the “last minute

timing” of a request could provide a basis for the denial of a

request that would pass constitutional scrutiny. Proctor, 166

F.3d at 403.

In Pollani, the defendant requested counsel only four

days before trial. Reversing the district court’s denial of the

request, the Court of Appeals of the Fifth Circuit reasoned “[the

attorney] could have presented a better defense with three days

of preparation than could Pollani with three months.” Pollani,

146 F.3d at 273. Importantly, however, the Court of Appeals

upheld the district court’s denial of the continuance that first

accompanied Pollani’s request for counsel. It reversed the

district court’s decision regarding counsel mindful of the fact

that Pollani had renewed his motion for counsel after explicitly

stating that he no longer sought a continuance. Id. Delay,

therefore, was not a proper basis for the denial of his motion.

In both cases, as with all of the cases cited by Leveto, the

factual contexts of the requests for counsel are significantly

distinguished from the present case.4 None of the cases cited by

Leveto, nor any other precedent we could find, supports

4.

We also note that, in Pollani, the court’s comments

regarding the ability of counsel to represent the defendant with

very little preparation time is, necessarily, relevant only to the

criminal case at issue.

11

Leveto’s extreme position that a defendant’s post-waiver request

for counsel is to be given virtually unqualified deference.

To the contrary we find wide agreement that, once

waived, the Sixth Amendment right to counsel is no longer

absolute. See e.g. United States v. Solina, 733 F.2d 1208, 1211-

12 (7th Cir.), cert. denied,, 469 U.S. 1039 (1984); Menefield v.

Borg, 881 F.2d 696, 700 (9 th Cir. 1989); Brown v. Wainwright,

665 F.2d 607, 611 (5 th Cir. 1982); United States v. Merchant,

992 F.2d 1091, 1095 (10 th Cir. 1993); United States v. West, 877

F.2d 281, 286 (4 th Cir. 1989). We reaffirm that questions arising

from a defendant’s Sixth Amendment absolute right to

professional legal counsel receive plenary review. See e.g.

United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995).

Yet, once the right has been properly waived, as is the case here,

we are persuaded by the broad consensus of other courts that the

consideration of a defendant’s post-waiver request for counsel

is well within the discretion of the district court. See See e.g.

Solina, 733 F.2d at 1211-12; Menefield 881 F.2d at 700;

Merchant, 992 F.2d 1095, n. 6; West, 877 F.2d at 286.

Moreover, while we have a strong interest in

safeguarding a defendant’s access to professional legal

representation (see Martinez v. Court of Appeal, 528 U.S. 152,

161 (2000) ), other factors necessarily play an important role in

a district court’s deliberation of a post-waiver request for

counsel. Certainly, evidence of a defendant’s dilatory motive is

properly considered as a basis for denial. Moreover, particularly

as the trial date draws nearer, the district court can and should

consider the practical concerns of managing its docket and the

impact that a request may have on its general responsibilities for

12

the prudent administration of justice. See West, 877 F.2d at

286; See also United States v. Criden, 648 F.2d 814, 818 (3d

Cir. 1981). The Court of Appeals of the Seventh Circuit aptly

stated:

A criminal defendant has a constitutional right to

defend himself; and with rights come

responsibilities. If at the last minute he gets cold

feet and wants a lawyer to defend him he runs the

risk that the judge will hold him to his original

decision in order to avoid the disruption of the

court's schedule that a continuance granted on the

very day that trial is scheduled to begin is bound

to cause.

Solina, 733 F.2d at 1211-12.

Indeed, a pro se defendant’s knowing and voluntary

assumption of such risks is at the heart of our requirement of a

thorough colloquy to ensure that a defendant’s waiver of the

right to counsel is explicit, uncoerced and well-informed. Welty,

674 F.2d at 188-89; United States v. Goldberg, 67 F.3d 1092,

1098 (3d Cir. 1995). For all of these reasons, we will not find

a Sixth Amendment violation in a trial court’s denial of a

defendant’s post-waiver request for counsel unless the district

court's good cause determination was clearly erroneous, or the

13

district court made no inquiry into the reason for the defendant's

request. See Goldberg, 67 F.3d at 1098.5

In this case, Leveto argues that he should be granted a

new trial because the District Court did not make any inquiry

into his motion for counsel. Leveto also argues that the District

Court denied his request on the basis of delay, and in doing so

it erred. Further, Leveto maintains that the potential disruption

to the proceedings caused by this last-minute request did not

provide a sufficient basis for the court’s denial of his motion.

We agree that the District Court denied Leveto’s request due to

the timing of the motion and the likelihood for delay, but we

disagree that the District Court’s decision was error.6

5.

We agree with the Court of Appeals of the Ninth Circuit

that a constitutional violation occurs where a trial court’s denial

of a request for counsel is based purely in a punitive notion.

Menefield v. Borg, 881 F.2d 696, 700 (9 th Cir. 1989) (“A trial

court cannot insist that a defendant continue representing

himself out of some punitive notion that the defendant, having

made his bed, should be compelled to lie in it.”). Moreover in

certain circumstances “a rigid insistence on expedition in the

face of a justifiable request for delay can amount to a

constitutional violation.” United States v. Rankin, 779 F.2d 956,

960 (3d Cir.1986). We do not find evidence of either concern

in this case.

6.

The District Court failed to forthrightly state the

rationale for its ruling on the record. Nonetheless, we find that

(continued...)

14

The significance of representation by professional legal

counsel demands that any decision that touches upon the

availability of counsel must be investigated and explained on the

record. Yet, we do not insist upon a formal inquiry or colloquy

where the rationales for the request and decision are clearly

apparent on the record. See United States v. Peppers ,302 F.3d

120, 133 n.12 (3d Cir. 2002). We find here that events just prior

to Leveto’s motion for counsel obviated the need for a formal

6.

(...continued)

the plain meaning of the court’s multiple statements reveal the

underlying reason, and we agree with Leveto that it was that the

timing of the motion and resulting delay. In response to

Leveto’s first request, the District Court stated: “Well, this is a

bit late to be asking that, so the motion is denied.” In response

to Leveto’s renewed request at the close of the government’s

case the District Court said “Under the circumstances of this

case, I can’t imagine stopping now and appointing [the stand-by

counsel] or anyone else to represent you and prepare to defend

a case like this. You can’t do it. You can’t operate that way.”

Finally, when Leveto pressed the issue again a short time later,

the District Court responded “But, you can’t relinquish [your

prior waiver of counsel] the day of the trial. This has been

pending for years and no lawyer could possibly go in and act as

a lawyer the day of the trial in a case like this without

preparation time. And in the interest of justice, the thing has to

move along.” Leveto understood all of these comments to mean

that the timing of his motion and the delay that would result

grounded the District Court’s decision to deny his motion. We

agree.

15

inquiry about the underlying reasons for his request and the

District Court’s decision.

Immediately before Leveto’s morning-of-trial request for

counsel, the District Court considered his motion to recuse,

mailed from prison the night before. Leveto argued that Judge

Cohill had a conflict of interest because he was named as the

defendant in Leveto’s §1983 lawsuit, filed only one week

earlier. The District Court ruled that this motion lacked merit,

and it went further to characterize the motion to recuse as a

thinly veiled tactic to manipulate the proceedings. Leveto

asserted that his motion deserved a separate hearing by a

different judge. Upon hearing that jury selection was going to

commence, Leveto told the court that he refused to participate

in what he characterized as “a mock trial.”

Moments later, when the venire had been seated, Leveto

requested counsel on the basis of “some of the new issues that

had come up” and his “additional due process concerns.” The

District Court had already considered the substance of these

“new issues” and “due process concerns” just minutes earlier

and found them to be little more than last-minute machinations

by the defendant. Moreover, later in the proceedings, Leveto

explained to the District Court that he was overwhelmed by the

task of representing himself. While Leveto’s rationale appeared

to have changed, there is no doubt that the reasons for his

motion were fully expressed.

Generally, we would hold that a reasonable inquiry of a

post-waiver motion for counsel is necessary both to ensure the

integrity of trial proceedings and to aid our review. We find

16

here that a common sense reading of the entire record provides

us with a clear understanding of Leveto’s rationale for his

motion. For this reason, we are satisfied that the District Court

was fully aware of the substance of Leveto’s motion for counsel,

and we find that the District Court did not err by failing to

engage in a formal colloquy specifically focused upon the

underlying rationale for the motion for counsel.

Leveto next argues that the court improperly based its

denial of his motion for counsel upon the issue of delay. We

disagree. Leveto contends that the issue of delay should not

have been considered by the District Court because he never

requested a continuance of the trial. He also argues that stand-

by counsel would have been able to assume his representation

without delay. These arguments are meritless.

In considering a motion, the District Court is always

charged with managing the cases on its docket with a vigilant

concern for the efficient administration of justice. See United

States v. Mellon Bank, N. A., 545 F.2d 869, 873 (3d Cir. 1976). We

cannot, as Leveto advocates, hamstring the discretion of the

district court by limiting its consideration of delay to only those

instances where a continuance is expressly requested. As a

matter of law, a district court does not err by considering sua

sponte the potential delay or disruption that would result from

a change of counsel. Therefore, even if Leveto did not intend to

request a continuance, the District Court did not err in

considering the issue of delay in its decision on his post-waiver

motion for counsel.

17

Moreover, given the timing of Leveto’s motion, we

would expect the District Court to factor delay issues into the

decision on the motion, particularly in a case like this where the

District Court was clearly familiar with the central issues and the

parties of the case, and the scheduling complexities were

obvious. We need not dig deep into the record to understand the

District Court’s immediate assessment that a day of trial motion

for counsel would have necessitated delay, and that such a delay

was onerous. After over one year of pre-trial proceedings, the

trial judge was well aware of the intricacies of this tax case. The

District Court was unquestionably competent to make its own

assessment of the implications and feasibility of an immediate

change in counsel at that point in the proceedings.

Also, as the judge was no doubt aware, the logistics of

scheduling proceedings in this case were unusually complex.

The trial judge was required to travel over 125 miles each way

to reach the courthouse, while managing dockets in both

Pittsburgh and Erie, Pennsylvania. Standby counsel also had a

similar commute. Moreover, the government’s attorneys

traveled from Washington D.C., a journey of over 350 miles

each way. Given that all of these people, with the venire, were

in the courtroom at the time of the motion, and were prepared to

commence trial on a heavily detailed tax fraud issue, we do not

find any error in the District Court’s assessment that Leveto’s

post-waiver motion for counsel would neccesitate a delay, and

18

that such a delay was onerous. Whether or not Leveto actually

requested a delay is, therefore, irrelevant to our conclusion.7

We next turn to the issue of whether the timing of the

request constitutes good cause to deny a post-waiver request for

counsel. We agree with the Court of Appeals of the Seventh

Circuit when it stated the following.

Trial courts are thus faced with a dilemma. On

one hand, a trial judge is hard-pressed to deny the

aid of counsel to a defendant who initially seeks

to represent himself but later declares himself

legally incompetent to proceed any further, and on

the other hand, the last minute grant of a

continuance can cause serious inconvenience to

judge, jury, opposing counsel, witnesses, and

other litigants. (internal quotations and citations omitted.)

United States v. Tolliver, 937 F.2d 1183, 1187 (7 th Cir. 1991);

Moreover, we agree that the last-minute timing of a motion is

generally a proper factor in considering whether to grant the

motion, particularly where, as is the case here, the timing of the

motion is part and parcel with the consideration of whether

disruption would result if the motion was granted. See Solina,

7.

We stress that, as in the case before the Court of

Appeals of the Fifth Circuit, our assessment of whether

substantial evidence supports a finding that a delay would be

necessary to accommodate a post-waiver request for counsel is

fact-intensive. See Pollani, 146 F.3d 269, supra.

19

733 F.2d at 1211-12 (“We are inclined to defer to [the judge’s]

intuition [regarding defendant’s intent to delay on the eve of

trial], but in any event believe that the scheduling problems the

continuances would have caused were in themselves sufficient

ground for refusing to delay the trial.”); Proctor, 166 F.3d at

403 (The “last minute timing” of a request could provide a basis

for the denial of a request that would pass constitutional

scrutiny.); Pollani, 146 F.3d at 273 (The district court would be

justified in denying a continuance attached to a post-waiver

request for counsel because the defendant waited too long to

retain counsel.).

As we have already stated, the District Court was well-

informed about the complexity of the case, and fully capable of

judging the length of delay that would have been necessary for

an attorney to properly assume the representation of Leveto at

trial. Particularly given the distances traveled by the judge,

stand-by counsel and the government’s attorneys who all were

present expecting trial to begin, the disturbance that would have

resulted from a change of counsel at that point was obvious.

Moreover, Leveto never gave any signal to the court that he was

reconsidering the waiver of his right to counsel. Therefore, the

court was unable to proactively minimize disturbance to all

involved in the case. Finally, the case already had been pending

for several years.

20

For all of these reasons we will find that the District

Court did not violate the Sixth Amendment in denying Leveto’s

post-waiver request for counsel.8

B.

Leveto next argued that he was due a new trial because

evidence obtained by the search warrant was improperly

admitted into evidence. His first assertion is that, under the

terms of the Federal Rules of Criminal Procedure, the Code of

Federal Regulations, and a Directive of the Tax Division of the

United States Department of Justice, the I.R.S. agent lacked the

8.

We have held in a somewhat analogous case that a

defendant’s request to proceed pro se was properly regarded as

untimely when it was made after “meaningful trial proceedings”

have begun. Pitts v. Redman, 776 F.Supp. 907, 920-921 (D.C.

Del.1991), aff'd. 970 F.2d 899 (3d Cir.), cert. denied, 506 U.S.

1003 (1992). Though this is often a useful distinction, in this

instance we would be left to parse the precise moment when

such proceedings have begun. That strikes us a useless exercise

here because it ignores the reality faced by the judge in this

particular instance. The “serious inconvenience to judge, jury,

opposing counsel, witnesses, and other litigants” would have

been identical whether the motion came moments before or

moments after the court formally initiated the proceedings.

21

authority to apply for the search warrants at issue here. We do

not find any merit in Leveto’s argument.9

The District Court correctly concluded that the I.R.S.

agent had authority to request a search warrant. I.R.S. agents

are “federal law enforcement officers” because they are

“engaged in enforcing criminal laws” and are “authorized by the

Attorney General” to execute warrants under 28 C.F.R. 60.2(a)

and 26 U.S.C. 7608(b)(2)(A).

Moreover, the District Court correctly found that Tax

Division Directive No. 52 (asserted by Leveto as de-authorizing

I.R.S. agents from applying for search warrants) does not

provide any substantive right to Leveto to challenge the search

warrants. See United States v. Caceres, 440 U.S. 741, 753

(1979). Leveto also failed to provide any evidence that the

procedures outlined in the Directive were violated. We do not

find that the District Court abused its discretion in denying

Leveto’s motion to suppress evidence on this basis.

C.

We also disagree with Leveto that the search warrant at

issue in this case was a general warrant. A warrant is not

general unless it can be said to “vest the executing officer with

9.

We review the denial of a suppression motion for clear

error as to the underlying facts, and exercises plenary review as

to the legality of the denial in the light of properly found facts.

United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006).

22

unbridled discretion to conduct an exploratory rummaging

through [defendant’s] papers in search of criminal evidence.”

United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982).

Key to Leveto’s argument is that the affidavit, which did state

particulars, was not incorporated by reference on the warrants.

The only attachment was a list of the type of documents to be

seized which used generic terms.

The District Court correctly concluded that, to the extent

that the warrant was “generic,” it was merely overbroad. Such

a defect can be cured by an affidavit that is more particularized

than the warrant. Doe v. Groody, 361 F.3d 232, 240 (3d Cir.

2004) (“So long as the actual search is confined to the narrower

scope of the affidavit, courts have sometimes allowed the

unincorporated affidavit to ‘cure’ the warrant.”) Moreover,

barring all else, the good faith exception applies in this case.

The agents conducting the search were aware that there was a

search warrant, and they were briefed on both the search warrant

and the affidavit. United States v. Leon, 468 U.S. 897, 919

(1984). For these reasons we find that the District Court did not

err.

D.

Finally, Leveto claims that the I.R.S. agent acted in bad

faith in seeking the issuance of an administrative summons. The

I.R.S. may validly issue an administrative summons pursuant to

26 U.S.C. 7602, but would act in bad faith if it did so after

making a decision to refer the matter for prosecution by the

Department of Justice. See Pickel v. United States, 746 F.2d

176, 183-84 (3d Cir. 1984). The District Court correctly found

that Leveto did little more than make bald assertions, failing to

23

meet his heavy burden of proving bad faith in the procurement

of the summons. See United States v. Jose, 131 F.3d 1325, 1328

(9 th Cir. 1997) (en banc) (citing LaSalle, 437 U.S. at 317). We

do not find error in the District Court’s ruling.

E.

For all of these reasons, we will affirm the order of

judgment and sentence of the District Court.

24

RENDELL, Circuit Judge, dissenting.

I respectfully dissent from the majority’s view of this

case because the trial judge forced the defendant to proceed to

trial pro se in violation of his Sixth Amendment right to counsel

purely because he had previously waived counsel. This was

improper as a matter of law.

It is undisputed that Daniel Leveto knowingly and

voluntarily waived his right to counsel on June 7, 2004, and that,

at that time, a thorough colloquy was conducted. It is also

undisputed that, as the majority notes, a defendant’s Sixth

Amendment right to have counsel, once waived, is not absolute.

A defendant who has waived the right to counsel, however,

ordinarily may reassert it at any time prior to trial. See

Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) (noting that a

defendant’s decision to represent him- or herself is not “cast in

stone”).

Here, the defendant permissibly sought to reinvoke his

right to counsel and withdraw his waiver prior to trial. The trial

judge would not permit him to do so, and did not inquire as to

his reasons for invoking counsel, or make the findings that we

require in order to justify such a denial–namely that the request

for counsel was an “apparent effort to delay or disrupt

proceedings.” See United States v. Proctor 166 F.3d 396, 402

(1st Cir. 1999); United States v. Merchant, 992 F.2d 1091, 1095

(10th Cir. 1993). Instead, he summarily denied Leveto’s request

for counsel because it was “a bit too late.” App. 312. In so

doing, the trial judge erred and violated Leveto’s

constitutionally protected right to counsel. I believe Leveto is

entitled to a new trial and, therefore, dissent.

I. Standard of review and legal standard

25

As an initial matter, the majority opinion reasons as if we

were reviewing a district court’s denial of a motion to substitute

counsel, applying an abuse of discretion standard. However, our

Court has made clear that “[w]e exercise plenary review over

claims alleging denial of the Sixth Amendment right to

counsel.” United States v. Goldberg, 67 F.3d 1092, 1097

(3d Cir. 1995); United States v. Leggett, 162 F.3d 237, 249

(3d Cir. 1998).10 Thus, our inquiry is to be more searching.

We are guided by the principle that “it is representation

by counsel that is the standard, not the exception.” Martinez v.

Court of Appeal, 528 U.S. 152, 161 (2000); see also Chapman

v. California, 386 U.S. 18, 23 & n.8 (1967) (clarifying that right

to counsel is so fundamental to our adversarial system that its

deprivation can never be held harmless); Fischetti v. Johnson,

384 F.3d 140, 147 (3d Cir. 2004) (noting that, as between the

right to self-representation and the right to counsel, right to

counsel “is the presumptive default position”). We must,

therefore, be “reluctant to deny the practical fulfillment of the

right–even once waived–absent a compelling reason that will

survive constitutional scrutiny.” Menefield, 881 F.2d at 700.

It is established that the denial of a request for counsel,

following a waiver, is only proper “if a defendant seeks counsel

in an apparent effort to delay or disrupt proceedings on the eve

10.

Other courts of appeals have occasionally employed an

abuse of discretion standard. See United States v. West, 877

F.2d 281 (4th Cir. 1989) (equating substitution of counsel with

a request to revoke waiver and using abuse of discretion

standard); United States v. Merchant, 992 F.2d 1091 (10th Cir.

1993) (same).

26

of trial,” Proctor 166 F.3d at 402, or “after meaningful trial

proceedings have begun,” Merchant, 992 F.2d at 1095. The

majority opinion fails to employ this standard.11

II. Leveto’s Request for Counsel and his Sixth

Amendment Right to Counsel

The record shows that the trial judge denied Leveto’s

request for counsel before trial proceedings had begun and

without any indication that the request was an apparent effort to

11.

The majority states that the standard to find a violation

of the Sixth Amendment is that “the district court’s good cause

determination was clearly erroneous, or the district court made

no inquiry into the reason for the defendant’s request.” It seems

to have taken this standard from cases involving requests to

substitute counsel where the defendant continues with unwanted

counsel, such as United States v. Goldberg where we said,

If the district court denies the request to substitute

counsel and the defendant decides to proceed with

unwanted counsel, we will not find a Sixth

Amendment violation unless the district court’s

‘good cause’ determination was clearly erroneous

or the district court made no inquiry into the

reason for the defendant's request to substitute

counsel.

67 F.3d at 1097 (emphasis added). Notably, this standard only

applies where the court denies the request for substitute counsel

and the defendant proceeds with counsel. Here we are

presented with a request to reinvoke the Sixth Amendment right

to counsel where the denial forced the defendant to proceed

without counsel.

27

delay or disrupt proceedings, or indeed that any delay would

result at all.

A. Before “meaningful trial proceedings”

had begun

Neither the government nor the majority contends that

“meaningful trial proceedings” had begun. The majority casts

this portion of the legal standard as a “useless exercise here”

that would require us needlessly to “parse” the proceedings. It

is clear, however, that Leveto attempted to reinvoke his right to

counsel prior to trial and jury selection, before any trial

proceedings, let alone “meaningful” ones. Leveto’s case is

therefore not like cases such as United States v. Tolliver, where

the defendant did not request counsel until the trial was at its

mid-point.12 937 F.2d 1183, 1188-89 (7th Cir. 1991); see also

Merchant, 992 F.2d at 1095 (holding that where the defendant

requested that his standby counsel take over the defense in the

middle of the trial, while a witness was on the stand, and

standby counsel requested a continuance, the trial court could

12

Moreover, Tolliver suggests that when a defendant

seeks to reinvoke the right to counsel, the proper course of

action is to let stand-by counsel step in wherever possible,

even in the middle of trial. In that case, mid-way through the

trial, Tolliver requested new counsel. 937 F.2d at 1186. The

court was inclined to let stand-by counsel step in immediately

until the government argued that he should not be forced to

represent Tolliver because Tolliver had filed an ethics

complaint against him; the court then agreed to continue to

look for new counsel. Id. at 1186.

28

properly deny the motion). The timing of Leveto’s request here

does not support the denial of his request for counsel.

Therefore, the District Court could only deny Leveto’s

request for counsel if it was an “apparent effort to delay or

disrupt proceedings on the eve of trial.”

29

B. “Apparent Effort to Delay or Disrupt

Proceedings on the Eve of Trial”

Although the majority’s opinion could be read as

deciding that Leveto’s request for counsel was an apparent

effort to delay proceedings, reaching this conclusion requires

reading into the record some facts and considerations that

simply are not there. The trial judge did not state that he was

rejecting Leveto’s request out of concern for delay, travel of

attorneys, or any of the other reasons the majority opinion

ascribes to his denial of the request. Instead, he never even

considered the request, but seemed to hold that once counsel is

waived, a defendant cannot change his mind.

The record shows only the trial judge’s continued

insistence that Leveto waived counsel before, had lost the

opportunity to request counsel, and could not change his mind

when the case was going to trial. In response to Leveto’s

request for counsel prior to trial, referring to standby counsel,

the judge said, “we appointed Mr. Misko counsel a long, long

time ago. You have been represented by counsel, but you didn’t

want to take advantage of it.” App. 312 (emphasis added).

When Leveto immediately renewed his request because, he said,

“I believe that I no longer feel comfortable pro se and I do need

to be represented by an attorney,” id., the judge replied, “[w]ell,

this is a bit late to be asking that, so the motion is denied.” Id.

(emphasis added). At the beginning of trial, Leveto again said,

“I really believed that I could represent myself, but I seem to be

having difficulties and mental blocks, and I am asking you again

to have an attorney represent me.” App. 320. The judge again

focused on the passage of time: “I’ve already ruled that you

have had back-up counsel for some time and it’s a little late to

be asking for more counsel now.” Id. (emphasis added). Mid-

30

way through trial, the judge demonstrated his misunderstanding

of Leveto’s right to reassert his right to counsel. After

instructing Leveto that, “[t]here will be no more talk about not

having a lawyer. You waived that clearly in June of 2004,” App.

338, he added “you can’t relinquish it [the waiver of counsel]

the day of trial.” App. 358 (emphasis added). There is no

caselaw that supports the trial court’s intransigence in the face

of a defendant’s assertion of the right to counsel.

There is no evidence of a purpose that would justify the

court’s refusal here–namely to delay or disrupt trial. While the

trial court may have understandably viewed the request

skeptically and not have been favorably inclined toward

Leveto–who had sued him–nonetheless, a defendant’s request

not to be forced to proceed through a complex trial representing

himself requires an objective assessment of the situation. From

that perspective, Leveto’s earlier decision that he did not need

counsel was based on his view–shared by all, apparently, at the

time–that the matter would proceed to a negotiated guilty plea.

At the status conference on October 20, 2004, Leveto indicated

that he would be announcing his intentions with regard to a

possible plea after the suppression hearing scheduled for

October 25th. He said, “it’s been no secret, but evidently it’s

got to be official and on the record, I will not go to trial with this

case.” App. 231; App. 233 (“I can tell you unequivocally that I

will not be going to trial.”).

Any delays in the plea negotiations were caused equally,

if not more so, by the government. The government noted that

it had been involved in plea negotiations with Leveto and that,

if they were to reach an agreement on Monday, the trial would

have to be postponed from Tuesday morning because approval

from the Department of Justice, and possibly the United States

31

Attorney, would be necessary. Having said “[i]t doesn’t sound

like we are going to have a trial, as a practical matter,” the judge

postponed the suppression hearing to October 28th in order to

move plea negotiations along and did not set a new trial date.

App. 232, 239. On November 8, 2004, another status

conference took place. The Court then continued the case for

additional plea discussions and requested an answer as to a plea

bargain by November 22nd.

Throughout these proceedings, Leveto continually

indicated his willingness to plead and was most concerned that

the plea be conditional so that he could appeal the denial of his

motion to suppress. Although he initially wanted to plead nolo

contendere, at one point Leveto offered to enter a conditional

guilty plea to all charges, but the government refused to accept

the plea unless he entered into a plea agreement waiving

sentencing rights under Blakely v. Washington, 542 U.S. 296

(2004). Plea negotiations ultimately broke down and the case

continued to trial. Leveto had never requested a continuance or

attempted to delay trial in any way; nor was it in his interest to

do so as he was, and had been, incarcerated pending trial.

Moreover, there is no indication that the government was any

less responsible for delays caused by these proceedings. In fact,

the judge seemed to believe just the opposite.13 Leveto had not

13.

At one point, the judge observed, “I don’t understand

why the Government insisted on the – not agreeing to the

conditional plea.” App. 277. He noted that, although the

government had not bargained away anything, it was requiring

concessions from the defendant that he had never seen before.

(continued...)

32

vacillated regarding his need for counsel, as is so often the case

in this type of situation.

In order to justify the denial of a request to reinvoke the

right to counsel, there typically must be a manipulation or

attempt to delay by abuse of the right to counsel. See Proctor,

166 F.3d at 402 (collecting cases). Leveto was not a defendant

who had toyed with his right to counsel, hiring and firing

attorneys or requesting continuances in order to substitute

counsel. Rather, his initial attempts to secure counsel prior to

his waiver were repeatedly thwarted.14 After all of his previous

13.

(...continued)

App. 287-88, 293-94, 295.

14.

When Leveto was first detained, Attorney Ross Prather

was appointed as counsel, but subsequently was granted leave

to withdraw because of a serious conflict of interest. At the

May 24, 2004 hearing on Prather’s motion to withdraw, it was

determined that the regular public defender in Erie also had a

conflict. A third attorney, Patty Ambrose, who was available to

meet with Leveto at that hearing, determined she had a conflict

as well. At the time, Leveto indicated that his first choice was

paid counsel, his second stand by counsel, and his third

proceeding pro se. On June 2, 2004, the judge held another

hearing on counsel and was told that, since the May 24th

hearing, one other lawyer had met with Leveto, but, yet again,

had been determined to have a conflict. Leveto requested

counsel at the hearing, and the judge noted that another CJA

panel lawyer should have been, but was not, present to represent

(continued...)

33

attorneys had proven to have conflicts, Leveto met with Stephen

Misko on June 7, 2004 and determined that he wished to

proceed pro se with Misko as standby counsel. Misko remained

standby counsel throughout all proceedings. The only evidence

of “abuse” of the right to counsel in this case would be that

Leveto first waived his right to proceed pro se and then wanted

to withdraw that waiver after plea negotiations failed.

The majority relies on the civil action filed by Leveto and

his motion to recuse as obstructive conduct. However, they are

not relevant to his right to counsel, as they are not examples of

“the tension caused when a criminal defendant appears to be

manipulating his right to counsel in order to delay his trial.”

Goldberg, 67 F.3d at 1094; Fischetti, 384 F.3d at 145

(discussing defendant’s “pattern of uncooperative conduct

through which [he] . . . repeatedly complained about counsel and

sought to delay or derail his second trial”). Indeed, at trial,

when Leveto mentioned the civil action, the District Court

acknowledged that the civil action “[has] got nothing to do with

this case. That’s a separate matter.” App. 341. There is no

indication that Leveto filed the action in bad faith. Rather, he

believed that the judge’s extension of the government’s time to

answer his pretrial motions, after the time for reply had expired,

without requiring the government to show excusable neglect

was a violation of Local Criminal Rule 12.1(c) and Federal Rule

of Criminal Procedure 45(b)(1)(B) and showed the judge’s

partiality toward the government. Though without merit,

Leveto’s § 1983 action and the related recusal motion seem to

14.

(...continued)

him.

34

have been designed to protect his constitutional rights rather

than delay trial.15

Indeed, Leveto had some reason to believe that he was

being unjustly treated. When he filed a previous civil action

challenging the constitutionality of the method of execution of

the search warrant at issue here, the District Court found no

violation of his constitutional rights, Leveto v. Lapina, No. 98-

143, 2000 WL 331902 (W.D. Pa. Feb. 5, 2000). On appeal to

our Court, however, we disagreed and held that the agents had

violated his rights by detaining him for a lengthy period of time

and patting him down during the search. Leveto v. Lapina, 258

F.3d 156 (3d Cir. 2001) (Alito, J., writing for the Court, found

that IRS agents had violated Leveto’s Fourth Amendment rights

but had qualified immunity).

At the time he requested counsel, Leveto clearly found

himself at a loss, representing himself at a trial that he (and

perhaps even the District Court) had not anticipated. Losing the

pretrial motions he thought were dispositive, as well as the

recusal motion, made manifest his need for counsel in order to

mount a defense and make viable legal arguments. It is

reasonable to conclude that, having both sued and

unsuccessfully moved to recuse the trial judge, Leveto believed

that it would be wise to have an attorney represent him.

Although the denial of his recusal motion undoubtedly played

some role in his request for counsel, it did not represent an abuse

15.

In filing the recusal action, Leveto both certified that

the motion was not being made to delay trial and explained that

the motion had not been filed earlier because of his extremely

limited access to a law library.

35

of the right to counsel that justified denial of counsel or would

have caused a delay.

In fact, there is no evidence in the record that the Court

feared a delay, or that granting Leveto’s request for counsel

would have resulted in any delay at all.16 Neither Leveto nor his

16.

The majority suggests that a statement made by

defendant during the course of the trial reflects defendant’s

understanding that the denial of his request prior to any trial

proceedings was necessary to prevent a delay. I disagree. The

statement–“I’m aware of that, Your Honor. That is, why before

it started, I reasserted the right and I filed the action against you

a week before the trial”–was not made on May 23, 2005 at the

time the District Court denied Leveto’s request for counsel.

Rather, it occurred on May 31, 2005 mid-way through trial. At

that time, before Leveto was to present his defense and make an

opening statement, which he had reserved, he referred to a

passage in the government’s trial brief to the effect that “a

defendant who has previously waived the right to counsel may

be allowed to withdraw the waiver and reassert the right.” App.

339. The following ensued:

Court: You never withdrew.

Leveto: I never withdrew what?

Court: You never withdrew your choice of

proceeding pro se.

Leveto: When I told you I wanted to be

represented by a lawyer?

Court: The day of the trial? Or – no.

(continued...)

36

standby counsel made a request for a continuance. Nor can we

assume that one would have been necessary. In the absence of

any record support, we cannot engage in conjecture that

Misko–Leveto’s standby counsel who had followed all the

proceedings and was present–would not have been able to step

in as counsel immediately. In fact, inherent in the role of

standby counsel is that he or she “must be ready to step in if the

accused wishes to terminate his own representation.” United

States v. Bertoli, 994 F.2d 1002, 1018-19 (3d Cir. 1993); see

also Anne Bowen Poulin, The Role of Standby Counsel in

Criminal Cases, 75 N.Y.U. L. Rev. 676, 708-09 (2000). Misko

had been standby counsel for almost a year, participated in

16.

(...continued)

Leveto: There were other extenuating

circumstances, Your Honor.

Court: Well, that’s too bad.

App. 339. The Court then said, “Under the circumstances of

this case, I can’t imagine stopping now and appointing

Mr. Misko or anyone to represent you and prepare to defend a

case like this. You can’t do it. You can’t operate that way.”

App. 341. Leveto’s statement in response does not represent his

agreement that, when the District Court denied his pre-trial

request for counsel more than a week earlier, it was properly

motivated by delay. More correctly construed, it is a simple

acknowledgment that Leveto believed the request to be

appropriate when he first made it, before the trial began, and

accepted that a request made mid-trial would be untimely.

37

pretrial conferences, received discovery, attended the

suppression hearing, and arranged his schedule to be present at

trial and available should Leveto require assistance in his

defense.

Even if Misko had indicated he was unprepared and

needed a continuance, the Court could have properly denied the

request for a continuance and given Leveto the choice between

proceeding pro se or proceeding with Misko, even though he

was unprepared.

United States v. Pollani is instructive. 146 F.3d 269 (5th

Cir. 1998).17 In that particular case, the defendant had hired two

lawyers while also filing many pro se motions, including one

requesting that his lawyer be held in contempt. Id. at 270. He

indicated he wanted to proceed pro se but would be retaining

new counsel and was warned that he should do so immediately

because the trial would not be continued. Id. He continued pro

se, but, four days prior to trial, his new lawyer (Mr. Snow)

requested he be substituted as counsel and granted a continuance

to prepare for trial in a case with which he was unfamiliar. Id.

at 271. The court denied the request for a continuance and then

precluded Snow from representing Pollani because Pollani “had

made a ‘knowing decision’ to represent himself, and an

eleventh-hour substitution of counsel would not be permitted”;

the lawyer was appointed standby counsel instead. Id. The

17.

See also United States v. Taylor, 933 F.2d 307, 313 n.4

(5th Cir. 1991) (discussing Leveto’s precise factual scenario

here in hypothetical form and concluding that it would “[t]here

can be no question that the defendant in such a case has been

deprived of his right to counsel”).

38

Court of Appeals for the Fifth Circuit reversed and ordered a

new trial. It reasoned that, although the trial court did not abuse

its discretion by denying defendant’s request for a continuance,

it had violated his right to counsel by refusing to allow the

attorney, whom he had retained and who was available, to

represent defendant at trial. While recognizing that “[i]t is true

enough that Pollani was vigorously attempting to delay the start

of the trial,” the Court reasoned:

This case is unlike other cases in which the

district court declined to allow substitution of

retained counsel for appointed counsel at the last

minute, when to do so would require a

continuance and delay the start of trial. See

United States v. Silva, 611 F.2d 78, 79 (5th Cir.

1980). This case is also unlike cases in which the

district court denied a continuance that would be

necessary for a defendant to be represented by

particular counsel of his choice who was retained

at the last minute. See, e.g., Neal v. Texas, 870

F.2d 312, 315 (5th Cir. 1989). Those cases were

decided on the basis of an appropriate denial of a

continuance. They are distinguishable because in

those cases the defendant was only deprived of

exercising the right to counsel in a particular way

which would unjustifiably delay the trial process.

Had Pollani been seeking appointed counsel four

days before the trial was to begin, the district

court could have denied the request-there was not

enough time to appoint counsel at that late date.

Had Pollani been seeking a delay because his

retained counsel had a conflict, the district court

39

could deny the request-Pollani waited too long to

appoint counsel, and he would have known the

trial date when he hired his lawyer. As we have

already explained, the district court in this case

was entirely justified in denying a continuance in

light of Pollani’s purpose of delay and the explicit

warning that a continuance would not be granted

in the event that Pollani waited too long to retain

counsel.

The justifications for proceeding on schedule do

not, however, justify the district court’s refusal to

allow Snow to participate. This case is different

because Pollani had arranged to be represented by

counsel instead of representing himself, and no

delay was required for Pollani to exercise his right

to do that. . . . The Constitution protects Pollani’s

right to counsel under these circumstances, and

the district court erred in disallowing Snow to

represent Pollani at trial.

Id. at 273-74. Like the defendant in Pollani, Leveto was

deprived of his Sixth Amendment counsel when the District

Court denied his request to proceed with counsel.

40

III. The District Court erred in failing to develop the

record as to the defendant’s attempted revocation of

waiver

The District Court committed reversible error by failing

to address the proper considerations in connection with Leveto’s

request. The judge did not develop the record or inquire of

Leveto in an attempt to respect his Sixth Amendment right. Nor

did he balance Leveto’s right to counsel against the court’s

interest in proceeding. Importantly, Leveto did not request

substitute counsel; rather, he asserted his right to counsel. See

Buhl v. Cooksey, 233 F.3d 783, 798 (3d Cir. 2000) (making

clear that a defendant seeking to dismiss counsel and proceed

pro se is not moving to substitute counsel).

When prior to jury selection a defendant asks to fire

counsel and proceed pro se, rather than substitute counsel, we

require the trial court to safeguard the Sixth Amendment

through an extensive inquiry to make certain the defendant

understands the ramifications and also to “determin[e] if the

request is merely an attempt to delay and derail proceedings, as

opposed to a genuine attempt . . . to conduct one’s own

defense.” Id. If we are so careful when permitting a defendant

to proceed pro se, must we not be equally careful–or perhaps

more so–when the defendant realizes he is not capable of

proceeding pro se? Given that representation by counsel is the

constitutional default position, such an inquiry is no less

necessary when a defendant seeks to revoke his waiver and

proceed with counsel. See Brown v. Wainwright, 665 F.2d 607,

611 (5th Cir. 1982) (en banc) (“Since the right of self-

representation is waived more easily than the right to counsel at

the outset, before assertion, it is reasonable to conclude it is

more easily waived at a later point, after assertion.”). The

41

majority appears to concede this point, noting that “[t]he

significance of representation by professional legal counsel

demands that any decision that touches upon the availability of

counsel must be investigated and explained on the record” –

precisely what the District Court failed to do here.

United States v. Proctor, 166 F.3d 396 (1st Cir. 1999),

strongly supports this view. In Proctor, the defendant had

engaged in highly relevant manipulative conduct, hiring and

firing two lawyers while accusing them of various offenses

against him, then proceeding pro se with standby counsel, and

ultimately requesting counsel in the middle of an evidentiary

hearing. Yet, the court of appeals held that the trial judge could

not reject the defendant’s request for counsel without express

findings. The court reasoned:

While Proctor’s earlier rejection of two attorneys

and the timing of his most recent flip-flop over

representation may have afforded some grounds

for suspicion that he was seeking to manipulate

the trial process to suit his own interests, these

factors alone-without judicial inquiry eliciting

further evidence and express findings on the issue

of bad faith manipulation-were insufficiently

compelling to permit a court to reject out of hand

any new request for counsel. Here, the record

suggests a defendant who, despite earlier

confidence that he could represent himself better

than his appointed attorneys, recognized the value

of counsel once confronted with the inadequacy

of his own legal skills in the face of actual

courtroom problems.

42

Id. at 403. As in Proctor, the trial judge here failed to do what

was necessary to safeguard the defendant’s right to counsel.

Furthermore, even where a defendant does not assert his

Sixth Amendment right to counsel but merely moves for a

continuance to retain substitute counsel on the eve of trial, “we

require district courts to inquire as to the reason for the request.”

Goldberg, 67 F.3d at 1097 (reversing although the judge had

made an explicit finding that the defendant was using his right

to counsel to manipulate and delay his trial). A trial court’s

authority to deny such requests is carefully circumscribed. They

may only be denied if shown to be made in bad faith, for

purposes of delay, or to subvert judicial proceedings. United

States v. Romano, 849 F.2d 812, 819 (3d Cir. 1988); but see

United States v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986)

(observing that “a rigid insistence on expedition in the face of a

justifiable request for delay can amount to a constitutional

violation”). Such cases typically have lower stakes than those

here, as the constitutional calculus there involves a defendant’s

right to counsel of his choice, rather than the right to counsel.18

Nonetheless, where, because the court denies the request to

substitute counsel, the defendant proceeds represented by

counsel not of his or her choice, we will find a Sixth

Amendment violation if there is no inquiry on the record.

Goldberg, 67 F.3d at 1097. As we have said, “even well-

18.

Sometimes this amounts to proceeding with counsel of

his or her choice who is unprepared, prepared counsel who is

unwanted, or pro se; in other situations, it involves a choice

between constitutionally adequate counsel who he or she seeks

to replace, and proceeding pro se.

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founded suspicions of intentional delay and manipulative tactics

can provide no substitute for the inquiries necessary to protect

a defendant’s constitutional rights.” United States v. Welty, 674

F.2d 185, 189 (3d Cir. 1982).19

The trial judge erred by failing to conduct any inquiry of

the defendant or to develop the record as to his request. While

the majority reasons through the judge’s ruling, the judge did

not do so. Instead, he concluded summarily that it was too late.

He did not question the sincerity of Leveto’s feelings of

inadequacy or his need or desire to be represented. While trial

judges should, of course, be permitted to make judgments as to

the conduct of proceedings before them and should be free to

exercise discretion in so doing, when the right to counsel in a

complicated criminal trial is implicated, the determination by the

court must be correct as a matter of law, and there must be an

in-depth exploration of the desire and need for counsel–as is

done when permitting a waiver at the outset–giving due

consideration to the ramifications for the individual on trial. See

Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir. 1987) (“Where the two

rights [to self-representation and to counsel] are in collision, the

nature of the two rights makes it reasonable to favor the right to

19.

The majority nonetheless contends that “we do not

insist upon a formal inquiry or colloquy where the rationales for

the request and decision are clearly apparent on the record,”

citing only United States v. Peppers, 302 F.3d 120, n.12 (3d Cir.

2002), as support. However, this footnote does not do away

with our longstanding requirement of inquiry; it merely

summarizes our decision in United States v. Salemo, 61 F.3d

214 (3d Cir. 1995).

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counsel which, if denied, leaves the average defendant

helpless.”). The consistent theme of our jurisprudence in this

area is that a defendant should not be forced to proceed to trial

without counsel. Here, I believe that occurred.

Accordingly, I dissent from the majority’s view. I would

vacate Leveto’s conviction and remand for a new trial with

counsel.

_____________

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