Petition — Burton v. United States

Supreme Peert, 0. &.

FILE QD

IN THE

—

OCTOBER TERM, 1978

No 88-547

ANDREW F. BURTON,

Petitioner,

v.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

JACOB A. STEIN

1800 M Street, N.W.

Washington, D.C. 20036

Courtsel for Petitioner

2 TT

THE CASILLAS PRESS, INC.-1717 K Street. N W.—Westington, 0. C -223-1220

INDEX

Page

Die eta. hese bbe a nei ccnneeescneos 1

eres wieleaAwe ev emsareeerncieesecdeee 2

ie ib ds cn boxe ccscccroversessoueres 2

CONSTITUTIONAL PROVISION INVOLVED ..........005. 3

es cose eu Ces ereccecdeccescces 3

REASONS FOR GRANTING THE WRIT ...........000 000s 7

1. The question presented is of exceptional and fun-

damental importance because it concerns whether

there has been an infringement of the right of a

criminal defendant to be provided a fair opportunity

to retain counsel of his choice pursuant to the Sixth

Amendment's guarantee of the assistance of counsel

tor his detense; if cited and relied upon as presently

decided, the opinion and judgment below

unreasonably narrows this constitutional right...... ..... 7

I ee ee 1S

a dha th Vn ab 0) b 0.6.0 606 06 0.c0 bee's oe e.0's App. |

Court of Appeals Opinion by the Majority ............. App. 1

Dissenting Opinion by Judge Robinson .............5. App. 30

Court of Appeals Order of Judgment .............05. App. 73

Court of Appeals Orders denying petitioner's

Petition for Rehearing and/or Suggestion

ID fas cc n ok o caaaccicepeceses App. 74

Court of Appeals Order staying issuance of the

mandate until October 2, 1978... ..... 6. cee eens App. 76

(ii)

CITATIONS

Cases:

Chandler v. Fretag.

REE PERO ET ELITE SET COE ee 10

Crooker v. California.

og Pree reer rere Tere Pike ce tAken Bie 9

Gandy v. Alabama.

So eer ee reer er re ee 10

Lee v. United States,

hbo puke case be ta 13,14

Powell v. Alabama

oh ee eG we be uel 6048 ef 9

United States Ex Rel. Davis v. McMann,

252 F. Supp. 539(N.D.N.Y. 1966), a/f'd

386 F.2d 611 (2d Cir. 1967), cert. denied,

ee a d's vale ceabee Meee ee 11

United States v. Burton, No. 76-1839

(D.C. Cir. July 28, 1978), dissenting

Tao as o4ib5'64 vs ¥ot we Feiss bbe ew s.05 passim

United States v. Inman,

483 F.2d 738 (4th Cir. 1973),

a, en CTD a do oe. ciech.o de bes 08 wees 9

United States v. Mardian,

See ee Pree. Cor, ore ee ESTO). cic ce cc cwescesedvs 13, 1

United States v. Moore,

SOS F.2d 426 (D.C. Cir. 1974),

i re hae peeeeopeeece 4

United States v. Seale.

es wala ge ek ne ee ee Oe ee ee 13

(iii)

CONSTITUTION AND STATUTES:

United States Constitution, amendment VI ...............05. 3,7

EL EE S's bom Wns obs ba on'o.o Fe ke hice wine 6.cln i wae 8

SU Se WE de os: WMA 6 os op ehec ke cbe tac 2,3,4

EN. Tas We os bea cae 5 ssc PRRURE TG os kebrw css hotate 8

Fs BEE enn eho sos WERE TEES ova cee es dit ewne 8

CONGRESSIONAL REFERENCES:

Congressional Research Service, The Constitution of

the United States of America — Analysis and

Interpretation, S. Doc. No. 92-82, 92d Cong.,

Me Fs SU Seale «hoods Chad ss 0 VE Meee hws be 7,9

I

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.

ANDREW F. BURTON,

Petitioner.

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The petitioner Andrew F. Burton respectfully petitions

this Court to issue a writ of certiorari to review the

judgment and opinion entered in this proceeding on July

28, 1978, by the United States Court of Appeals for the

District of Columbia Circuit.

OPINION BELOW

The opinion of the Court of Appeals is not yet officially

reported. The Slip Opinion is set forth in the separately

bound Appendix hereto (App. 1. The dissent filed by

'The panel was composed of the Honorable Spottswood W. Robin-

son, III and George E. MacKinnon, Circuit Judges, and Howard T.

Markey, Chief Judge, United States Court of Customs and Patent Ap-

peals sitting by designation pursuant to 28 U.S.C. § 293(a).

Judge Robinson delivered the dissent and voted to grant petitioner a

rehearing. App. 20, 74.

2

Judge Robinson is set forth at page 30 of the Appendix

(App. 30).

JURISDICTION

The petitioner, following a jury trial, in the United States

District Court for the District of Columbia (Flannery, J.),

was convicted of twenty-eight counts of distributing a con-

trolled substance in violation of 21 U.S.C. § 841(a). App.

34. On July 28, 1978, the Court of Appeals, with Judge

Robinson dissenting, affirmed the District Court's ruling

denying petitioner a continuance to obtain substitute coun-

sel after that court permitted one of his existing counsel to

withdraw on the eve of trial. App. 30. On August 24, 1978,

the Court of Appeals ordered that petitioner's Petition for

Rehearing and/or Suggestion for Rehearing En Banc be

denied, with Judge Robinson voting to grant petitioner a

rehearing. App. 74, 75.

Upon motion by the petitioner, the Court of Appeals or-

dered a stay of mandate on September 14, 1978, pending

application to this Court for a writ of certiorari. The Clerk

of the Court of Appeals is directed not to issue the mandate

prior to October 2, 1978. App. 76.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the District Court's ruling’? denying petitioner's

motion for a continuance to retain replacement counsel

violated petitioner's Sixth Amendment right to the assist-

ance of counsel of his choice.

There is no order of denial of petitioner's motion for a continuance

on the District Court's docket. The ruling is recorded, however, at page

36 of the Joint Appendix filed in the court below.

3

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining Wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense.

STATEMENT OF THE CASE

Jurisdiction of the District Court was based on an in-

dictment charging petitioner with distributing controlled

substances in violation of 21 U.S.C. §841(a). App. 2.

Petitioner, a physician, had practiced his profession in

the District of Columbia since 1939. When, in 1974, he was

subpoenaed to appear as a witness before a grand jury, he

retained Allen M. Hutter as his sole counsel. Later that

year, petitioner was charged in a 19-count indictment with

unlawful distribution of controlled substances.’ The

gravamen of the indictment was that he had effectively sold

preludin and ritilin to numerous persons by writing

prescriptions without benefit of proper medical

examinations or medical histories. Sometime thereafter,

petitioner requested Mr. Hutter to seek the addition of a

“skilled trial lawyer.”’ App. 31 quoting Joint Appendix 6

[sic, 35]. Dovey J. Roundtree was contacted and retained in

the shared expectation that she would serve at trial.

Petitioner was not destined for an early trial. The grand

jury returned a second indictment charging 35 drug

‘Pursuant to tiie Controlled Substances Act § 401, 21 U.S.C. § 841(a)

(1976). App. 31.

4

violations, and then a superseding 35-count indictment; the

Government dropped the first two indictments and

petitioner—with Ms. Roundtree first appearing as coun-

sel—moved for dismissal of the third. On authority of the

Court of Appeals’ holding in United States v. Moore, 505

F.2d 426 (D.C. Cir. 1974), rev'd, 423 U.S. 122 (1975),* the

District Court granted the motion without prejudice, but on

the Government's appeal, the case was remanded for fur-

ther proceedings in light of this Court’s pending review of

Moore.* Eventually, this Court reversed the decision in

Moore (423 U.S. 122 (1975)), whereupon the District Court

vacated its order of dismissal and set the case for trial.

Five cays betore trial was to commence, petitioner learn-

ed from Mr. Hutter that Ms. Roundtree had indicated a

desire to terminate her services. Petitioner attempted to

contact her but did not succeed until she responded to his

telegram late the following day, a Thursday. Despite his en-

treaties, she refused to continue as counsel, and on Friday

she filed a motion for leave to withdraw. On Monday morn-

ing, the date upon which trial was to begin, the District

Court heard the motion. Ms. Roundtree explained that *'l

do not believe . . . that I have a defense,”” adding that she

and Mr. Hutter were ‘working at cross-purposes.”’ App. 32

quoting Joint Appendix 4-5 [sic, 26-27]. In response to the

court’s ensuing inquiry, Mr. Hutter stated that he was

ready for trial but that he would like petitioner to speak.

Indulged that opportunity, petitioner declared that he

was ‘‘surprised and shocked”’ by Ms. Roundtree’s decision

and ‘‘anguish[ed| because my reputation and livelihood are

‘There the Court of Appeals held that a licensed physician registered

under the Controlled Substances Act as a prescriber of methadone was

not subject to prosecution under § 841 for dispensing narcotic drugs for

illegitimate purposes. App. 31.

‘This Court had granted a writ of certiorari on February 19, 1975.

420 U.S. 924 (1975). App. 32.

-

at stake.”’ App. 32 quoting Joint Appendix 7 [sic, 29]. He

explained that he had picked Ms. Roundtree both because

of her experience® and because she, unlike Mr. Hutter, was

black:

Although Mr. Hutter is a well qualified lawyer,

I do not feel he is able to handle the case alone

without the assistance of someone who has the

skill [of] Attorney Roundtree . . . 1 do not want her

to stay since she doesn’t want to create an at-

mosphere of inadequacy, but getting a seasoned

trial lawyer to replace her is difficult. I have to

secure a new lawyer who [must] of necessity

become familiar with the case (App. 33 quoting

Joint Appendix 7-8 [sic, 29-30)).

xe Ke K

From my observations at the beginning, I felt

Mr. Hutter needed assistance. Since I relate to the

black community, I spoke to him and he brought

in Attorney Roundtree who is capable (App. 33

quoting Joint Appendix 8 [sic, 30}).

x kk OK

I, therefore, request Your Honor to grant an ex-

tension of time of thirty to sixty days before the

case comes up for trial... .”’ I do not want Miss

*Ms. Roundtree had been a member of the bar for 24 years. Mr. Hut-

ter’s tenure at the har was 15S years, 11 in the District of Columbia.

App. 32.

’The Court of Appeals noted that a justified motion for continuance

with a view to securing additional counsel may not be denied merely

because the time sought is longer than the court deems necessary. App.

33 n. 14, 7n. 13.

6

Roundtree to drop out of the case [but] I am con-

cerned with her continuing to represent me in

view of the position she has taken within the last

several days (App. 33 quoting Joint Appendix 8

[sic, 30}).

the Government opposed continuance on the grounds

that many weeks had been spent in preparation, that many

witnesses had been summoned and that petitioner should

have been ready for trial. The court, noting Mr. Hutter’s

competence and experience—which no one denies—felt

that

this is certainly a unique situation where the

defendant states on the record in open Court that

he wants an additional attorney because the ad-

ditional attorney would happen to be black ....

As a matter of fact, for the jury, Dr. Burton, to

feel sympathy for you or decide the case on the

basis of your attorney's color and your color or

Mr. Kogan [Government counsel] or my color or

anything like that, that isn’t a consideration that

the jury could[ | properly weigh (App. 34 quoting

Joint Appendix 13 [sic, 35}).

Responding personally, petitioner insisted that ‘‘[iJn the

black community, blacks relate to blacks better, some

relate better,”’ (App. 34 quoting Joint Appendix 13 [sic, 35])

but added, ‘I am a citizen of this country and you represent

the government and whatever you say, I will abide by it

really."’ App. 34 quoting Joint Appendix 13 [sic, 35]. The

judge then ordered trial to commence on the next morning,

and after eight days of trial the jury convicted on 28

counts.® App. 34.

*Seven of the 35 counts had been dismissed pursuant to a motion by

the Government as trial started. App. 34 n. 19.

— + in AD te Tet aga

-

Petitioner appealed the District Court’s denial of his

motion for a continuance whereupon the Court of Appeals

affirmed, with Judge Robinson dissenting. App. 73. The

majority concluded that petitioner’s Constitutional rights

were not violated in that he was, in essence, contending that

a continuance should have been granted to allow additional

counsel to assist in a trial already adequately prepared by

earlier-retained counsel and that to have delayed

petitioner's trial further would have amounted to an

unreasonable delay under the circumstances. App. 28-29.

REASONS FOR GRANTING THE WRIT

1. The question presented is of exceptional and fun-

damental importance because it concerns whether

there has been an infringement of the right of a

criminal defendant to be provided a fair opportunity

to retain counsel of his choice pursuant to the Sixth

Amendment's guarantee of the assistance of counsel

for his defense; if cited and relied upon as presently

decided, the opinion and judgment below unrea-

sonably narrows this Constitutional right.

The Sixth Amendment guarantees invaluable procedural

safeguards to an accused, including prominently the ‘‘right

... to have the Assistance of Counsel for his defense.’’ U.S.

Const. amend. VI. Neither in the Congress which proposed

what became the Sixth Amendment guarantee nor in the

state ratifying conventions is there any indication of the un-

derstanding brought to the language employed.’

Contemporaneously with the proposal and ratification of

the Sixth Amendment, however, Congress enacted two

*Congressional Research Service, The Constitution of the United

States of America — Analysis and Interpretation, §. Doc. No. 92-82,

92d Cong., 2d Sess. 1215 (1973).

8

statutory provisions'® which indicate an understanding that

in federal courts the guarantee is limited to assuring that a

person wishing and able to afford one or more counsel

would not be denied that right. The first of these Acts, the

Judiciary Act of 1789, recognizes the right of the parties to

the ‘‘assistance of such counsel or attorneys at law as by the

rules of said courts [of the United States] respectively shall

be permitted to manage and conduct causes therein.” 1

Stat. 92 (Emphasis added).'' By the second Act, an Act of

April 30, 1790, which is the precursor of 18 U.S.C. § 3005

(1976),'? Congress provided that any accused indicted for

treason or other capital offenses should be allowed to make

his full defense by counsel learned in the law, and required

the court immediately upon the request of the accused *‘to

assign to such person such counsel, not exceeding two, as

such person shall desire, to whom such counsel shall have

free access at all seasonable hours.”’ 1 Stat. 118 (Emphasis

added)."?

Judiciary Act of 1789 (September 24), ch. 20, § 35, 1 Stat. 73, 92-93

(1789); Act of April 30, 1790, ch. 9, § 29, 1 Stat. 118-119 (1790).

''Sec. 35. And be it further enacted, That in all courts of the United

States, the parties may plead and manage their own causes personally

or by the assistance of such counsel or attorneys at law as by the rules of

the said courts respectively shall be permitted to manage and conduct

causes therein[.] (Emphasis in original).

"218 U.S.C. § 3005 (1976). Whoever is indicted for treason or other

capital crime shall be allowed to make his full defense by counsel learn-

ed in the law; and the court before which he is tried, or some judge

thereof, shall immediately, upon his request, assign to him such coun-

sel, not exceeding two, as he may desires who shall have free access to

him at all reasonable hours.

"Sec. 29. And be it [further] enacted. .., And that every person so ac-

cused and indicted for any of the crimes aforesaid, shall also be allowed

and admitted to make his full defence by counsel learned in the law;

and the court before whom such person shall be tried, or some judge

thereof, shall, and they are hereby authorized and required im-

mediately upon his request to assign to such person such counsel, not

exceeding two, as such person shall desire, to whom such counsel shall

have free access at all seasonable hours. (Emphasis in original).

9

Thus, during the ratification of the Bill of Rights,'* it was

understood by the Congress that the right to the assistance

of counsel in federal courts extended to the accused who

wished to retain counsel of his own choice and who wished

in making that choice to retain more than one attorney to

assist him in his defense.

And it is firmly established by this Court that as an in-

tegral and important part of that right ‘‘a defendant should

be afforded a fair opportunity to secure counsel of his own

choice.”” Powell v. Alabama, 287 U.S. 45, 53 (1932); accord

Crooker v. California, 357 U.S. 433, 439 (1958) as quoted at

App. 3, 35. It follows that the wheels of justice may not

grind so swiftly or so finely that an accused financially able

to engage counsel is deprived of the chance to do so. App.

35 citing at n. 22 United States v. Inman, 483 F.2d 738,

739-740 (4th Cir. 1973), cert. denied, 416 U.S. 988 (1974).

The District Court did not have discretion to deny

petitioner the initial opportunity to retain new counsel.

App. 30. While continuance of a trial is a matter normally

within the discretion of the court, the Sixth Amendment

imposes limits on this discretion when the continuance is

sought for purposes of retaining counsel. This Court has

warned that a continuance may not be denied if more time

is needed to afford the accused ‘‘a reasonable opportunity

'*The Bill of Rights was ratified on December 15, 1791. The several

state legislatures ratified on the following dates: New Jersey, November

20, 1789; Maryland, December 19, 1789; North Carolina, December

22, 1789; South Carolina, January 19, 1790; New Hampshire, January

25, 1790; Delaware, January 28, 1790; New York, February 20, 1790;

Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont,

November 3, 1791; Virginia, December 15, 1791. (Connecticut, Georgia

and Massachusetts did not ratify until 1939). Congressional Research

Service, The Constitution of the United States of America — Analysis

and Interpretation, S. Doc. No. 92-82, 92d Cong., 2d Sess. 25-26 (1973).

10

to employ and consult with counsel.’’ App. 36 quoting

Chandler v. Fretag, 348 U.S. 3, 10 (1954). During the initial

opportunity to retain counsel of one’s choice, the accused

may engage two attorneys; indeed he may hire as many as

he can afford, although the trial court may limit the num-

ber—but not the choice — of those who actively participate

in court. App. 46, 48.

Here it is clear that petitioner’s earlier retention of coun-

sel of his choice was nullified by an event beyond his con-

trol. See App. 48 citing Gandy v. Alabama, 569 F.2d 1318,

1326 (Sth Cir. 1978). This situation is directly analogous to

a denial of the initial opportunity to select one’s lawyer.

App. 30. Therefore, petitioner’s right to counsel of his

choice was violated when he was denied the opportunity to

secure new counsel iv replace Ms. Roundtree. App. 63-64.

He was denied a fair opportunity to choose his own counsel.

App. 48.

Even if the District Court had discretion to deny the op-

portunity to retain new counsel in light of the factors

enumerated in the majority opinion of the Court of Ap-

peals, that discretion was not exercised because the District

Court relied solely on a single improper consideration. App.

30, 7-10. Once the initial opportunity to choose one’s coun-

sel has been fully provided, the court. with due regard for

the accused’s interests in counsel in whom he maintains

confidence, is generally free to deny a continuance that

would unreasonably inconvenience the judge or trial par-

ticipants. App. 37. The right to select one’s own counsel

cannot be insisted upon in a manner that will deprive such

courts of the exercise of their inherent powers to control the

same. App. 37-38. An accused who is dilatory, or one who

acts in bad faith, need not be rewarded with further time

once he has squandered away his fair opportunity. App. 38.

On the other hand, if circumstances have arisen that vitiate

the original choice or lead the accused to believe sincerely

that his earlier selection is unsatisfactory, a request for

11

leave to choose new counsei must be carefully and seriously

considered. App. 40. ‘‘The balancing considerations are

that the right of counsel cannot be manipulated so as to in-

terfere with the fair administration of justice, but the defen-

dant must have complete confidence in counsel and hence,

a change if it occurs, or even a discharge will usually point

to a continuance.” App. 41 quoting United States Ex Rel.

Davis v. McMann, 252 F. Supp. 539, 545 (N.D.N.Y. 1966),

aff'd, 386 F.2d 611, 620 (2d Cir. 1967), cert. denied, 390

U.S. 958 (1968).

The majority of the Court of Appeals applied an abuse of

discretion standard to the totality of the circumstances.

App. 30, 7. Though that analysis is impeccable when a trial

court has adjudged the time necessary to prepare for trial,

or when the continuance was requested after a fair op-

portunity to retain counsel had already been provided, it is

unacceptable when such an opportunity has been set for

naught by circumstances beyond the accused’s control.

App. 30. The District Court gave no indication that it per-

ceived the salient factors and evaluated them. App. 52, 23.

Instead the District Court articulated only its opinion that

petitioner's bid for a black lawyer was improper. App. 54.

In this respect, the District Court denied petitioner’s

motion for a continuance in the erroneous view that the

reason behind it was unworthy. App. 54.

A court has no general power to approve or disapprove

the accused’s reasons for selecting counsel. App. 43. Only

when fair opportunity to engage counsel of choice

seemingly has already been provided and when the

proposal will entail a substantial imposition on the Govern-

ment does the accused’s motives for wanting a change

become relevant and then only for purposes of determining

whether the accused seeks the continuance in good faith.

App. 43-44, 41. If, however, as here, the ground for con-

tinuance is wholly objective — the petitioner’s original

choice of counsel was frustrated by a change in external cir-

12

cumstances — no inquiry into the accused’s mental state is

normally required or permissible. App. 45.

In petitioner’s case, we may first observe that his good

faith has not been challenged by the Government — nor

nardiy could it be. He had retained Ms. Roundtree many

months before trial, and from aught that appears her last-

minute motion to withdraw came as a sudden surprise.

Surely the District Court did not believe that the episode

was a planned dilatory tactic, for if the court had it should

— and presumably would — merely have denied with-

drawal. App. 45, 23. Petitioner had only one business day

between the time Ms. Roundtree told him her intentions

and the commencement of trial,'* and his failure to retain

replacement counsel during that short interval certainly

does not indicate bad faith. Everything points not to an at-

tempt to temporarily sidestep trial but to an endeavor to

replace, with reasonable dispatch, counsel whom petitioner

had long expected to assume a major role at trial. App. 46.

The fact that petitioner had selected Mr. Hutter as part

of his defense team is irrelevant. He had not selected him as

his only counsel. And the fact that appellant still has one,

attorney remaining after Ms. Roundtree’s departure is

similarly of no significance. App. 46.

Although a continuance might have mildly in-

convenienced the court, the prosecution and some of the

witnesses, that consequence was hardly petitioner’s fault.

The motion for leave to withdraw was not forthcoming until

the trial date was virtually at hand and the court granted it,

effectively negating petitioner's opportunity to satisfy an

understandable desire for comfort and confidence in his

'*The majority of the Court of Appeals asserts that petitioner had five

days to replace Ms. Roundtree, but in fact petitioner did not know for

certain that she wanted to leave until Thursday night, or that she would

be allowed to withdraw until Monday morning — the day trial was to

begin. App. 32, 46 at n. 43.

13

trial representation. App. 48-49. After all, ‘‘[i]f the Sixth

Amendment right to the effective assistance of counsel

means anything, it certainly means that it is the actual

choice of the defendant which deserves attention.’’ App. 42

quoting U/nited States v. Seale, 461 F.2d 245, 358 (7th Cir.

1972).

The Court of Appeals for the District of Columbia Circuit

pointed to the objective-subjective grounds of distin-

guishing when the reasons behind an accused’s request for

a continuance become relevant, thus articulating the legal

principle that governs this case. App. 49. In Lee v. United

States, 235 F.2d 219 (D.C. Cir. 1956), that court, in en-

forcing the accused’s right to select his own counsel ob-

served:

[A]lppellant bore no responsibility for being

without counsel on the eve of his trial. He had ap-

peared for trial with counsel of his own choosing,

and the record does not show that he had

anything to do with that counsel’s withdrawal by

leave of court. However that withdrawal may have

obstructed the processes of court, such ob-

struction is clearly not chargeable to the appellant

and cannot be made the occasion for denying him

his constitutional right to counsel of his own

choosing.

235 F.2d at 221; App. 49.

With subjective sincerity not at issue, the reasons for the

particular choice of replacement counsel were of no con-

cern. App. 49-S0.

That court recently reaffirmed the objective-grounds rule

set down in Lee. Sitting en banc in United States v. Mar-

dian, 546 F.2d 973 (D.C. Cir. en banc 1976); App. SO, it

held that the trial court had erred in requiring the accused

to proceed with only one of his counsel after lead counsel

14

became ill two weeks into the trial. 546 F.2d at 979; App.

50. The court pointed to the client’s lack of contribution to

the loss of his lawyer — the loss, it found, was ‘‘bona fide

and unforeseeable’”’ (S46 F.2d at 980; App. 50) — and

although co-counsel was certainly skilled, it recognized that

the right to choose one’s counsel was critical in a difficult

conspiracy case featuring disparately condemnatory

evidence against several codefendants. 546 F.2d at 980;

App. 50. The court placed considerable reliance on the

Government's decision not to resist a continuance (546 F.2d

at 980; App. SO), attributing importance to this because it

indicated that no “undue disruption’’ of the criminal

justice system would ensue from a grant of the motion. 546

F.2d at 980; App. SO.

Although Mardian does indicate a wholesome concern

for the orderly administration of justice (S46 F.2d at 980;

App. 50), that concern is controlling only when the ac-

cused’s reasons for seeking new counsel are purely sub-

jective — that is, when the accused is merely unhappy with

how he utilized his initial opportunity to choose counsel

and not when that opportunity has been debased by sub-

sequent events. App. 50. Read together, Lee and Mardian

teach that the District Court should have exercised its

discretion in favor of petitioner’s good faith effort to

reacquire a defense team of his own choice. App. 50-51.

The reasons for a litigant’s choice of counsel are a per-

sonal matter, and become relevant to a judicial ruling only

so far as they might indicate bad faith or insincerity of sub-

jective grounds for the request. The trial court gave not so

much as a hint that petitioner’s reasons suggested that; in-

stead it articulated only its opinion that petitioner’s bid for

a black lawyer was simply improper. That ground for

denial lay beyond the domain of trial-court discretion, and

a decision bottomed on it is unsustainable. And by relying

upon a totality-of-the-circumstances standard never em-

ployed by the trial court, tie majority of the Court of Ap-

ax

1S

peals was exercising its own discretion, not affirming that

of the District Court. App. 53.

CONCLUSION

For the foregoing reasons, this petition should be

granted. Unless this conviction is reviewed the decision

below, if cited and relied upon, unreasonably narrows the

application of the fundamental and very important Sixth

Amendment right to counsel of one’s choice.

Respectfully submitted,

JACOB A. STEIN

1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Petitioner

APPENDIX

App. 1

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

RAnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1839

UNITED STATES OF AMERICA

Vv.

ANDREW F’., BURTON, APPELLANT

Appeal from the United States District Court

for the District of Columbia

(D.C. Criminal 74-596)

Judgment sito:

. this date |

Argued June 9, 1977

Decided July 28, 1978

Jacob A. Stein for appellant.

James F. Hibey, Assistant United States Attorney,

with whom Earl J. Silbert, United States Attorney, John

A. Terry and Jason D. Kogan, Assistant United States

Attorneys, were on the brief, for appellee.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

App. 2

Before ROBINSON and MACKINNON, Circuit Judges,

and HOWARD T. MARKEY,*:~ Chief Judge,

United States Court of Customs and Patent

Appeals.

Opinion for the court filed by Circuit Judge MACKIN-

NON.

Dissenting opinion filed by Circuit Judge ROBINSON.

MACKINNON, Circuit Judge: On October 17, 1974 ap-

pellant Burton was charged with thirty-five counts of

distributing a controlled substance in violation of 21

U.S.C. § 841(a).* Seven counts were struck on the Gov-

ernment’s motion, and a jury trial commenced on the

remaining twenty-eight counts on April 27, 1976. On

May 10, the jury returned a verdict finding appellant

guilty as charged on the twenty-eight counts. .

On April 26, 1976, the date which was originally set

for trial, Dovey Roundtree, one of two counsel retained

by appellant, filed a motion to withdraw which was grant-

ed by the district court. At the same time, appellant

moved for a thirty- to sixty-day continuance for the pur-

* Sitting by designation pursuant to 28 U.S.C. § 298(a).

* Appellant was indicted on May 21, 1974 for 19 counts of

unlawful distribution of controlled substances. The grand

jury returned a second indictment containing 35 counts on Oc-

tober 11, 1974, and then a superseding 85-count indictment

was returned on October 17, 1974. The Government dropped

the first two indictments and appellant moved for dismissal of

the third on October 23, 1974. On authority of this court’s

holding in United States v. Moore, 505 F.2d 426 (D.C. Cir.

1974), rev’d 423 U.S. 122 (1975), the district court granted

the motion without prejudice (Original Record (hereafter

“R.”) at 4), but on the Government’s appeal, the order grant-

ing the defendant’s motion to dismiss was vacated, defendant’s

motion was denied, and the case was held in abeyance pending

the Supreme Court’s review of Moore (R. at 16). When the

Court eventually reversed our decision in Moore, this case was

set for trial.

App. 3

pose of seeking counsel to replace Roundtree. The court

denied this motion, and it is from this ruling that de-

fendant appeals. The issue presented to us is whether

the district court’s ruling deprived appellant of his right

to choice of counsel thereby violating the Sixth Amend-

ment’s guarantee of “the assistance of counsel for [the

accused’s] defence.”

I

The Sixth Amendment* guarantees that a person

brought to trial in any federal court must be afforded

the right to the assistance of counsel before he can be

validly convicted.* The importance of counsel’s function

to the effective operation of our adversary system is un-

questioned.‘ An essential element of the Sixth Amend-

ment’s protection of the right to the assistance of counsel

is that a defendant must be afforded a reasonable oppor-

tunity to secure counsel of his own choosing. As the

Supreme Court stated in Powell v. Alabama, 287 U.S. 45

(1932), “(ijt is hardly necessary to say that, the right

to counsel being conceded, a defendant vhould be afforded

a fair opportunity to secure counsel of bis own choice.”

287 U.S. at 53.° An accused who is financially able to

?“Tn all criminal prosecutions, the accused shall enjoy the

right ... to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI.

* Powell v. Alabama, 287 U.S. 45 (1982) ; Johnson v. Zerbst,

304 U.S. 458 (1988); Betts v. Brady, 316 U.S. 455 (1942);

Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v.

Hamlin, 407 U.S. 25 (1972); Faretta v. California, 422 U.S.

806, 807 (1975) ; Holloway v. Arkansas, 98 S. Ct. 1173 (1978).

*Geders v. United States, 425 U.S. 80, 88 (1976) ; Glasser

v. United States, 315 U.S. 60, 69-70 (1942).

* Crooker v. California, 357 U.S. 433, 489 (1958) ; Chandler

v. Fretag, 348 U.S. 8, 10 (1954) (“[A] defendant must be

given a reasonable opportunity to employ and consult with

App. 4

retain counsel must not be deprived of the opportunity

to do so.*

Yet, the right to retain counsel of one’s own choice is

not absolute.” The right “cannot be insisted upon in a

manner that will obstruct an orderly procedure in courts

of justice, and deprive such courts of the exercise of their

inherent powers to control the same.”* The public has

a strong interest in the prompt, effective, and efficient

administration of justice; the public’s interest in the dis-

pensation of justice that is not unreasonably delayed has

great force.

In this case, appellant challenges the denial of his mo-

tion for a continuance to replace Roundtree, one of his

two retained attorneys. It is firmly established that the

granting or refusal of a continuance is a matter within

the discretion of the judge who hears the application,

counsel; otherwise, the right to be heard by counsel would be

of little worth.’”’); Lee v. United States, 235 F.2d 219, 221

(D.C. Cir. 1956) ; Smith v. United States, 288 F. 259, 260-61

(1923).

* United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.

1973), cert. denied, 416 U.S. 988 (1974).

7 Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978) ;

United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th

Cir. 1978); United States v. Gray, 565 F.2d 881, 887 (5th

Cir. 1978); United States v. Poulack, 556 F.2d 838, 86 (lst

Cir.), cert. denied, 98 S. Ct. 618 (1977); United States v.

Tortora, 464 F.2d 1202, 1210 (2d Cir.), cert. denied sub nom.

Santoro v. United States, 409 U.S. 1063 (1972) ; United States

v. Hampton, 457 F.2d 299, 301 (7th Cir.), cert. denied, 409

U.S. 856 (1972).

® Lee v. United States, supra, 235 F.2d at 221; Smith v.

United States, supra, 288 F. at 261. Accord, Gandy v. Ala-

bama, supra, 569 F.2d at 1323 and cases cited at n.8.

App. 5

and is not subject to review absent a clear abuse.* Yet

when the continuance is sought to retain or replace coun-

sel, the defendant’s Sixth Amendment right to the assist-

ance of counsel is implicated.” In such circumstances, the

right to select counsel must be carefully balanced against

the public’s interest in the orderly administration of jus-

tice. :

Thus, the trial judge may not insist on such expedi-

tiousness that counsel for the defendant lacks reasonable

time to prepare for trial; stripping away the opportunity

to prepare for trial is tantamount to denying altogether

the assistance of counsel for the defense. On the other

hand, the defendant cannot insist on an unnecessary delay

or a delay of unreasonable proportions. The condition

* Gilmore v. United States, 273 F.2d 79, 83 (D.C. Cir. 1959)

(Burger, J.); Payton v. United States, 222 F.2d 794 (D.C.

Cir. 1955). Accord, United States v. Poulack, supra, 556 F.2d

at 86; United States v. Harrelson, 477 F.2d 383, 384 (5th Cir.

1973).

1° The right of choice of counsel is related to the right to

adequate time to prepare for trial. Counsel is not entitled to

unlimited preparation time; instead, counsel is entitled to

reasonable preparation time. Just as continuances to enable

defendants to select counsel need not be granted where the

orderly procedures of the court will be disrupted, continuances

for more preparation time than necessary need not be granted.

In turn, the question of reasonable preparation time is closely

related to the issue of inadequate assistance of counsel: if

preparation time is unreasonably short, counsel cannot com-

petently represent his client, and may make negligent omis-

sions or acts that deprive defendant of his constitutional

right to the assistance of counsel for his defense. While al! of

these rights are related, as they all are within the parameters

of the Sixth Amendment’s right to the assistance of counsel,

the right to choice of counsel is distinct from the right to

adequate assistance of counsel. The fact that one is infringed

does not indicate one way or the other whether the other is

infringed. See dissent at n.106.

App. 6

of most criminal dockets demands reasonably prompt

disposition of cases; when cases are set far in advance

for a day certain, an unreasonable delay in one case only

serves to delay othér cases, and this carries the potential

for prejudice to the rights of other defendants.

Given these countervailing considerations, and recog-

nizing that the court has the right to control its own

docket to require that cases proceed in an orderly and

timely fashion, the conclusion is inescapable that the

court in exercise of a sound discretion may grant or deny

motions for continuances. As stated by the Court in

Ungar v. Sarafite, 376 U.S. 575, 589 (1964),

The matter of a continuance is traditionally within

the discretion of the trial judge, and it is not every

denial of a request for more time that violates due

‘process even if the party fails to offer evidence or is

compelled to defend without counsel. . . . Contrari-

wise, a myopic insistence upon expeditiousness in

the face of a justifiable request for delay can render

the right to defend with counsel an empty formality.

... There are no mechanical tests for deciding »7hen

a denial of a continuance is so arbitrary as tu vio

late due process. The answer must be found in the

circumstances present in every case, particularly in

the reasons presented to the trial judge at the time

the request is denied.

376 U.S. at 589.

We recognize that the right to choice of counsel de-

volves not only from the due process clause of the Fifth

Amendment but also from the more stringent and over-

lapping standards of the Sixth Amendment." This, how-

ever, does not alter the fact that the determination of

whether the defendant’s right to select his counsel was

11 See Scott v. United States, 427 F.2d 609, 610 (D.C. Cir.

1970) ; compare Gandy v. Alabama, supra, 569 F.2d at 1320-23.

App. 7

protected depends upon the circumstances of the particu-

lar case. Once a fair and reasonable initial opportunity

to retain counsel has been provided, and adequate counsel

obtained, the court, mindful of the accused’s interest in

having counsel in whom he has confidence, is free to deny

a continuance to obtain additional counsel if, upon evalu-

ation of the totality of the circumstances, it reasonably

concludes that the delay would be unreasonable in the

context of the particular case.

What is a reasonable delay necessarily depends on all

the surrounding facts and circumstances. Some of the

factors to be considered in the balance include“: the

length of the requested delay“; whether other continu-

ances have been requested and granted; the balanced

convenience or inconvenience to the litigants, witnesses,

‘2 Other listings of factors, similar to ours in many respects,

appear in Gandy v. Alabama, supra, 569 F.2d at 1324; Giaca-

lone v. Lucas, 445 F.2d 1238, 1240 (6th Cir. 1971).

** A motion for a continuance may not properly be denied

on the sole ground that the time sought is longer than neces-

sary to retain new counsel or to prepare for trial, see dissent

at n.14, since unjustifiably long requests for continuances, if

otherwise reasonable, can simply be granted for a shorter

period of time. Yet, unjustifiably long requests may be in-

dicative of some other defect in the request, such as a dilatory

or purposeful intendment. See United States v. Lee, supra,

235 F.2d at 221 (accused’s third retained lawyer was granted

leave to withdraw on account of a conflict of interest; court

appointed attorney previously discharged by defendant; court

refused to continue trial over weekend to allow defendant to

retain counsel of his choice: held, discretion was abused and

defendant's Sixth Amendment right violated).

* United States v. Brown, 495 F.2d 593, 600 (1st Cir. 1974) ;

Giacalone v. Lucas, supra, 445 F.2d at 1243; Carey v. Rundle,

409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946

(1970) ; Smith v. United States, supra, 288 F. at 260-61.

App. 8

8

counsel, and the court **; whether the requested delay is

for legitimate reasons, or whether it is dilatory, purpose-

ful, or contrived *; whether the defendant contributed to

the circumstance which gives rise to the request for a

continuance ™ ; whether the defendant has other competent

‘° United States v. Mardian, 546 F.2d 973, 979-80 (D.C. Cir.

1976) (en banc) ; United States v. Brown, supra, 495 F.2d at

600; United States v. Inman, 483 F.2d 738, 740 (4th Cir.

1973) ; Giacalone v. Lucas, supra, 445 F.2d at 1243; Marxuach

v. United States, 398 F.2d 548, 551 (ist Cir.), cert. denied, 393

U.S. 982 (1968) ; Smith v. United States, swpra, 288 F. at 261.

’ United States v. Oliver, 571 F.2d 664, 665 (D.C. Cir.

1978) ; United States v. Mardian, supra, 546 F.2d at 979-80;

United States v. Dilworth, 524 F.2d 470, 472 (5th Cir. 1975);

United States v. Vallejo, 496 F.2d 960, 964-65 (4th Cir. 1974) ;

United States v. Inman, supra, 483 F.2d at 740; United States

v. Sexton, 473 F.2d 512, 514 (5th Cir. 1973) ;. Marxuach v.

United States, swpra, 398 F.2d at 551.

By this, we do not mean that the court may inquire, with-

out more, into the defendant’s reasons for choosing a particu-

lar counsel. The defendant may choose a particular counsel

for any reason that he deems important. However, one of

the factors appropriate to testing whether a requested delay

is reasonable is the good faith of the defendant; accordingly,

a court must at times inquire into the reasons for the request

for a continuance. Where defendant seeks to obtain an addi-

tional counsel or to substitute another counsel for his present

one, the court must make certain inquiries into the reasons for

the addition or change. This inquiry is appropriate only when

a fair opportunity to retain counsel of choice has already been

provided. Regardless of whether inquiry into the defendant's

reasons for adding or substituting counsel is relevant in any

particular case, the appropriateness of the court’s decision to

grant or deny a continuance may turn on other factors, men-

tioned in the text, which have more significance in the par-

ticular factual context. See dissent at text accompanying

notes 34-41.

* United States v. Vallejo, supra, 496 F.2d at 965; Lee v.

United States, supra, 235 F.2d at 221; Neufield v. United

States, 118 F.2d 375, 383 (D.C. Cir.), cert. denied, 315 U.S.

798 (1941)

App. 9

9

counsel prepared to try the case, including the consid-

eration of whether the other counsel was retained as

lead or associate counsel ’*; whether denying the con-

tinuance will result in identifiable prejudice to de-

fendant’s case, and if so, whether this prejudice is of

a material or substantial nature '*; the complexity of the

‘* United States v. Mardian, supra, 546 F.2d at 979-80;

United States v. Bragan, 499 F.2d 1376, 1879-80 (4th Cir.

1974) ; United States v. Brown, supra, 495 F.2d at 600; United

States v. Harrelson, supra, 477 F.2d at 384; Giacalone v.

Lucas, supra, 445 F.2d at 1243; United States v. Cozzi, 354

F.2d 637, 639 (7th Cir. 1965), cert. denied, 383 U.S. 911

(1966).

’* A showing of prejudice to the defendant’s case is not a

prerequisite to the granting of a continuance. See United

States v. Johnston, 318 F.2d 288 (6th Cir. 1963). However, if

some prejudice is identifiable, that finding would lend weight

toward granting the requested continuance. It should be noted,

however, that other considerations in any particular case,

such as the interest in orderly procedures or the interest in

avoiding manipulation or subversion of the process, may

countervail a showing of prejudice and thereby justify the

denial of a request for continuance.

Judge Robinson has thoughtfully considered the applica-

bility of the harmless-error doctrine articulaved in Chapman

v. California, 386 U.S. 18 (1967) to this case. In my view,

however, this discussion is in the main unnecessary. The

Supreme Court has indicated that a Sixth Amendment viola-

tion, as it implicates a substantial right of a party, cannot be

harmless, Chapman v. California, supra, 386 U.S. at 23, and

this proposition was forcefully affirmed in Holloway v. Ar-

kansas, 98 S. Ct. 1173 (1978):

{[T]his Court has concluded that the assistance of coun-

sel is among those “constitutional rights so basic to a fair

trial that their infraction can never be treated as harm-

less error.””’ Chapman VY. California, supra, 386 U.S. at 23.

Hence, if the trial judge denies a request for a continuance

where it would have been fair and reasonable to have done

so to enable the defendant to retain or substitute counsel, and

App. 10

10

case*’; and other relevant factors which may appear

in the context of any particular case.

All of these factors are the appropriate subject of the

trial court’s attention when a continuance is sought. How

the balance operates to obtain a result must depend on

the circumstances of the particular case.’ For example,

a long delay and a great deal of inconvenience may be

tolerated if defendant’s only counsel is suddenly lost by

some unforeseen circumstance in a very complex case.

However, only a slight inconvenience or delay may be

sufficient grounds for rejecting defendant’s request for a

continuance to enable him to retain an additional counsel

in a simple case where he has already retained three or

four other attorneys.

The evaluation of appellant’s need for additional coun-

sel, and the balance between the right to seleet counsel and

the public’s interest in the orderly administration of jus-

tice must all be carefully and delicately weighed; but sit-

ting as a court of review, we afford substantial discretion

to the trial court in judging that balance, and we will not

reverse absent a showing of a deprivation of the defend-

ant’s right.

II

Upon consideration of the standard outline above with

respect to the instant facts, we find that the district court

did not abuse its discretion, and did not violate defend-

thereby violates the defendant’s Sixth Amendment right, the

violation is made out, and harmless error tests do not apply.

2° United States v. McMann, 386 F.2d 611, 620 (2d Cir.

1967), cert. denied, 390 U.S. 958 (1968); United States v.

Mitchell, 354 F.2d 767, 769 (2d Cir. 1966).

2’ United States v. Poulack, supra, 556 F.2d at 86; United

States v. Bragan, supra, 499 F.2d at 1378-79; Giacalone v.

Lucas, supra, 445 F.2d at 1240. See Gandy v. Alabama, 569

F.2d at 1323-24, 1328.

App. ll

11

ant’s Sixth Amendment rights. Before engaging in this

analysis, we set forth the background of this case, which

is essential to a full understanding of the legal issues.*

Appellant is a physician, and has taught medicine and

practiced in the District of Columbia since 1939. Appel-

lant was initially charged in May, 1974, with nineteen

counts of unlawful distribution of controlled substances.

The essence of the charges was that appellant had in

effect acted as a pusher in selling preludin and ritalin to

numerous persons by writing prescriptions on mere re-

quests without giving proper physical examinations or

taking proper medical histories. When he was first in-

dicted, he hired Allen Hutter as his sole legal counsel.”

Sometime thereafter, appellant retained an additional

counsel, Ms. Dovey Roundtree, at Hutter’s suggestion

when appellant indicated he desired additional counsel.

Although the evidence does not indicate the precise date

when Roundtree was retained,” Roundtree was present

when defendant was brought up for arraignment on Octo-

ber 23, 1974.” It is fair to say that from the October 23,

“2 In my view, the different view of the record between Judge

Robinson and those expressed here explains in large part the

different result reached by the two opinions.

** Tr., April 26, 1976, at 6 (testimony of Dr. Burton).

26 Id.

*» Dr. Burton did not identify the precise date that he re-

tained Roundtree; his testimony indicates that it was some-

time after Hutter was retained and sometime before April,

1976 (see, id., at 6-7). Roundtree testified that “I first came

into this case before there was a dismissal and not too long

before there was a dismissal, and for the record, sometime

in early 1975, I believe, it was.” (/d., at 2). This indicates

that Roundtree was not acting as lead counsel at that time.

** Tr., Oct. 28, 1974, at 1. Burton was not arraigned at this

proceeding (id., at 7).

App. 12

12

1974 proceeding until Roundtree requested to withdraw

from the case, Hutter acted as lead counsel. At the Octo-

ber 23 proceeding, Hutter made the entire presentation

on appellant’s behalf.”” At the November 11, 1974 hear-

ing on defendant’s motion to dismiss the indictment,

Hutter and Roundtree were both present, but Hutter

presented and argued defendant’s entire case.** At the

April 16, 1975 hearing on the Government’s motion to

dismiss, only Hutter was present to argue defendant’s

position.” At the December 17, 1975 status call to set

a trial date, both Hutter and Roundtree were present.*’

Hutter made the first statement for the defense, and there-

after both attorneys participated in setting the date, as

** Jd., at 1-7. On one occasion, Roundtree attempted to ad-

dress the court, but Hutter quickly took over: °

THE DEPUTY CLERK: Andrew F. Burton, in Crim-

inal Action 596-74, you are charged with unlawful dis-

tribution of a controlled sub tance. How do you wish to

plead?

MRS. ROUNDTREE: Your Honor, I was wonder-

ing—

MR. HUTTER: Your Honor, I was wondering as

Mrs. Roundtree was wondering if in light of these mo-

tions, which the Government has, the pleas to this indict-

ment could be held up until that motion has been ruled

on as a preliminary matter... .

/d,, at 3-4. The remainder of the discussion on this point was

handled by Hutter, and Roundtree had nothing else to say

at any point in this proceeding. While we decline to speculate

from the record, and in no way rely on such observations as a

basis for decision, the inference is present that the respective

roles of Hutter and Roundtree were not completely clear.

** Tr., Nov. 11, 1974. Roundtree was silent throughout the

entire proceeding.

* Tr., April 16, 1975, at 1.

*° Tr, Dec. 17, 1975, at 1.

App. 13

13

a time convenient to each defense attorney, the Govern-

ment’s attorney, and the court was sought.”

The trial date was set for April 26, 1976. On April

28, Roundtree filed a motion ‘“‘for leave to withdraw as

co-counsel,”’“ In that motion, she stated as reasons for

seeking leave to withdraw:

"' Hutter was the first attorney to speak for the defense posi-

tion (id., at 2). Both attornéys participated in the schedul-

ing of the trial date (id., at 2-3). Hutter first requested Janu-

ary or February (id., at 3), but Roundtree was committed for

the last two weeks in February. After the court excluded

January and February due to its commitments, Roundtree

suggested ‘March 20th or April” (id). Hutter immediately

interjected “Your Honor, if we are not going to do it in the

first part of March, I would request the first part of April”

(id.). The trial started April 27, 1976.

Hutter announced the defense intention to file speedy trial

motions (id., at 3-4). When the court asked how long the case

would take, it was Roundtree who responded: ‘Two to three

weeks, Your Honor. Under the Supreme Court decision, I

think we have to bring on some substantial witnesses with

respect to certain matters,” (id., at 4), whereupon the status

call was concluded.

Both defense counsel participated in the December 17, 1975

proceeding; but it would not be apt to conclude from this part

of the tr...script, viewed in isolation, that one or the other was

the lead counsel.

* R, at 24. Burton testified that he first received notice

that Roundtree wanted to withdraw on April 21, a Wednesday,

when Hutter called him. Unable to reach Roundtree by tele-

phone, he sent her a telegram, requesting an appointment.

Roundtree met appellant, according to his testimony, during

the evening of April 22. He described the meeting:

At this time, she informed me she would like to with-

draw from the case. I asked her why, but her reasons

did not seem satisfactory to me. I asked her to continue

in the role that she wished, but she refused.

Tr., April 26, 197 at 7.

App. 14

14

That a definite and broad difference of opinion

with respect to the prosecution of this case presently

exist between her and the client which would make it

impossible and do violence to her sworn duty as a

member of the Bar of this Court.

That she has discussed the matter with the client

and with the trial attorney, Mr. Hutter, and verily

believes that her presence and participation in this

matter would create a conflict such as might reason-

ably jeopardize the best interest of the client as he

pursues a full trial on the issues herein.

R. 24. This pleading, prepared and signed by Roundtree,

clearly refers to Hutter as the trial attorney.

The April 26 proceeding began with the district judge

inquiring into Roundtree’s motion and the reasons which

underlay it. Roundtree testified that when she first came

into the case, she talked with Burton and Hutter, investi-

gated on her own, and concluded that she had “a reason-

able and justifiable basis within [her] own conscience

mind and principles” to represent appellant.“ After the

case was reinstated, Roundtree stated that she found

“hard facts” “ which caused her to decide to withdraw.*’

She explained her reasons as follows:

* Tr., April 26, 1976, at 2-3.

“Td, at 4.

*° Roundtree’s full statement was as follows:

When it was reinstated, we got back after the time with

counsel as associate counsel, Dr..Burton began to do some

research, some reading, and we obtained Mr. Spencer

Price who is a private investigator, and we began to then

get and develop what I gleened to be hard facts.

Id., at 4 (italics added). The italicized portion of the state-

ment might be relevant to whether Roundtree or Hutter was

lead counsel, but the statement is so cryptic as to be virtually

meaningless.

[Continued]

App. 15

15

I have discussed it with Mr. Hutter; I have dis-

cussed it with the Doctor, what is the defense in

this case. I just have to speak frankly .... I find

that I am not only frustrated, but with twenty-four

years at the bar, I have a total inaccurate and in

violation of what I know to be, that I believe that

Mr. Hutter and I are now working at cross purposes.

I do not believe from where I see that I have a

defense.

I have talked to—at my home, I think it was a

Wednesday night—at length with the doctor of my

views in this case.

I thing under the Cannons [sic] for me to have

such view, for Mr. Hutter to have his view, we

have the poor Dr. Burton somewhere in the middle.

I don’t think there is a reconciliation of it.

[Roundtree ther. refers to a defense which had

figured importantly in her decision to represent

Burton.] I think that to this extent, perhaps I was

misled; maybe I am naive, but in that posture, 7 do

not think I would be either fair to Dr. Burton to

be associate counsel; I couldn’t be associate counsel,

and just sit at the table. That is not my role as a

lawyer.

I am greatly disturbed about the posture of the

case, and as I read the Cannons [sic] of Ethics and

my professional responsibility, I am more and more

persuaded, I have no alternative, I will go down the

road in my thinking in my persuasion based on the

things I have told this Court, and I think Mr. Hutter

is going down quite a different road.

%5 [Continued]

Burton also stated:

After the case was reopened. [sic] There was a meeting

in my office with Mr. Hutter and Miss Roundtree, at

which time the case and the trial strategy was fully dis-

cussed and was reviewed [sic].

Id., at 7. This does not indicate who was intended to act as

lead counsel.

App. 16

16

THE COURT: You could not be effective counsel

for Dr. Burton under those circumstances; you don’t

think he has a defense.

MISS ROUNDTREE: That is my view.

Tr., April 26, at 4-5 (emphasis added). Roundtree’s

explanation refers to a disagreement between counsel for

the defense. It is difficult to perceive why, if Roundtree

was lead counsel, the disagreement between Hutter and

Roundtree was even pertinent: if Roundtree was the

lead counsel, then the views of the associate counsel, if

different, would not be of severe concern. Burton was

free to participate in the selection of a defense. Instead

of choosing the defense proposed by Hutter, he could

have chosen the defense offered by Roundtree. Burton had

full power to rely on one counsel and to agree to the

withdrawal of the other. Burton’s acquiescence in Round-

tree’s departure and reliance upon Hutter fof the pres-

entation of the defense can hardly be viewed as a denial

of defendant’s right to have the lead counsel he wanted.

Indeed, Burton simply exercised his choice between alter-

native defenses proposed by his two counsel. Whatever

definition we ascribe to “lead” counsel, it is apparent that

Hutter was agreeable to advancing some defense that

Burton agreed with and that Roundtree was not. Finally,

Roundtree’s statement that it would be unfair “to be

associate counsel” is not a conclusive indicator of any-

thing: she might be referring either to the unfairness

of becoming associate counsel] after having been retained

as lead counsel, or when she was antagonistic to promot-

ing the defense that Burton desired, to the unfairness of

remaining as associate counsel] after having been re-

tained in that capacity. Whatever characterization may

be given to Hutter and Roundtree—whether they were

co-equal, or whether one was lead counsel and the other

subordinate—the fact is that Hutter was willing to pre-

sent the defense that Burton wanted, and that Burton in

the end received the representation that he desired. Hut-

App. 17

17

ter was hired first, was fully informed as to the case, was

fully prepared, and was available to proceed with a de-

fense that Roundtree was not willing to espouse. It also

appears that Hutter conducted the trial after Roundtree’s

withdrawal with the consent of the defendant in such a

manner that has not evoked any claim of error on appeal.

After Roundtree’s statement, the court asked Hutter

if he was ready to proceed. He responded:

Yes, Your Honor. It is not incumbent to find at this

time. I don’t think there is any problem, any state

ments that the doctor might make now that would

pose any problem. J do respect his relationship with

Miss Roundtree. I think he could best respond to

the Court. .

‘Id., at 6 (emphasis added) .*

Acting upon Hutter’s invitation, the court asked appel-

lant to speak to the matter. Appellant stated:

[W]hen I was indicted in 1974, I hired Allen

Hutter as lead counsel. After the metting [sic], I

thought a skilled trial lawyer would be helpful and

necessary if [sic] defending this case, especially one

familiar with the ghetto community.

Mr. Hutter presented Dovey Roundtree to me. I

was well please, [sic] and indeed, an excellent law-

yer.

Id. Burton did not say he hired Roundtree as the lead

counsel.

The statement that a “skilled trial lawyer would be

helpful and necessary [in] defending this case” does not

mean that the newly-retained attorney was expected to

act as lead counsel, particularly if the defendant was

already being served by a skilled trial attorney such as

** Hutter’s statement does not clarify one way or the other

what relationship Roundtree bore to appellant.

App. 18

18

Hutter. Burton’s statement can be read no further than

evidencing a belief that “two skilled attorneys are better

than one,” and cannot be read as a statement that he

intended the newly-retained attorney to act as the lead

counsel.

Burton also explained his reasons for retaining Round-

tree:

Although Mr. Hutter is a well qualified lawyer, I

do not feel he is able to handle the case alone without

the assistance of someone who has the skill as with

Attorney Roundtree. I am behind the competence,

experience and reputation of Attorney Roundtree. I

do not want her to stay since she doesn’t want to

create an atmosphere of inadequacy, but getting a

seasoned trial lawyer to replace her is difficult. I

have to secure a new lawyer who must of necessity

become familiar with the case.

Id., at 7-8 (emphasis added). Here again, appellant indi-

cates that Roundtree was retained to assist Hutter, not

to take over the conduct of the trial. The statement that

“she doesn’t want to create an atmosphere of inadequacy”

is some indication that this skilled trial lawyer was not

engaged by Burton to employ her full talents. Though

Burton’s explanation contains references to obtaining a

“seasoned trial lawyer,” it is quite sensible for Burton

to desire the best lawyer obtainable, even though that

lawyer might perform as associate counsel. That he con-

sidered Hutter needed assistance, as opposed to supervi-

sion, was again emphasized by Burton in further testi-

mony:

From my observation at the beginning, I felt Mr.

Hutter needed assistance. Since I relate to the black

community, I spoke to him and he brought in At-

torney Roundtree who is capable.

Now, I must confess I do not know of an experi-

enced trial lawyer to assist Mr. Hutter in my trial.

App. 19

19

This would take some time to arrange, if allowed,

and the new lawyer would have to acquaint himself

with the case.

I, therefore, request Your Honor to grant an ex-

tension of time of thirty to sixty days before the

case comes up for trial in order to assist and a

judgment can be made.

Id., at 8 (emphasis added). To say that someone needs

“assistance” is far different from saying someone needs

replacement as lead counsel. Burton wanted an experi-

enced, skilled, and seasoned trial lawyer to assist Hutter.

At no point does Burton state that he intended Rountree

to conduct the trial.*’

After the court made inquiries of Government counsel

regarding the Government’s opposition to the granting of

** Burton stated that he did not want Roundtree to withdraw

from the case, but he also said that he was not insisting that

she remain. In other words, Burton acquiesced in Roundtree’s

requested leave for withdrawal:

I do not want Miss Roundtree to drop out of the case. I

am concerned with her continuing to represent me in view

of the position she has taken within the last several days.

Id., at 8. The court said to Roundtree:

Well, under the circumstances, I think Dr. Burton

wouldn’t insist that you remain in the case.

Id., at 9. Burton then interjected:

No, sir, I wouldn’t insist for two reasons: first, she doesn’t

want to be in; secondly, I am a Christian, I don’t believe

those who reject you for anybody to be forced into any-

thing at such time.

Id. As we find no violation of appellant’s constitutional right

to the assistance of counsel for his defense, we need not reach

the question of whether appellant’s consent to proceed with

Hutter as his counsel amounted to a waiver of his right to any

additional counsel. It should be noted, however, that Burton

was less than forceful in asserting his need or right to obtain

additional counsel.

App. 20

20

a continuance, the court made inquiries of Hutter. Hut-

ter’s statement reaffirms Burton’s testimony:

[Appellant] did want a black attorney fo assist for

problems of relating to witnesses, relating to the

jury, because of the nature of the community, and

that was the primary object that he had in mind.

Id., at 12 (emphasis added). None of the factors to

which Hutter alludes require that Rourfdtree have been

hired as lead counsel. Most importantly, it appears that

the court, which was very familiar with the case, believed

that appellant simply wanted an additional attorney, not

a new lead attorney:

In other words, Dr. Burton wants a black at-

torney—well, I don’t know.

[T}his is certainly a unique situation where the

defendant states on the record in open Court that he

wants an additional attorney because the additional

attorney would happen to be black. It seems not *o

be very good. The jury shouldn’t consider on the

color of the defendant whether he be pink, blue,

green.

Id., at 12, 13 (emphasis added). Dr. Burton then ex-

plained why he wanted a black attorney: he stated that

blacks relate better to blacks.** The following dialogue

ensued:

COURT: You want a black attorney to make a

favorable impression.

BURTON: Just the converse with these people,

the witnesses and all I called.

Your Honor, may I say this, I am a citizen of this

country and you represent the government and what-

everyou [sic] say, I will abide by it really.

COURT: I believe this case will go forward, Dr.

‘Burton.

BURTON: All right, sir.

38 Jd., at 13.

App. 21

21

COURT: You have, Miss Roundtree, my permis-

sion to withdraw. I grant your motion, Miss Round-

tree. ‘

Id., at 14.

In the April 26 proceeding, the court also inquired into

the.Government’s reasons for opposing the continuance.

Government counsel indicated that the Government was

prepared to go to trial, that it had assembled all the wit-

nesses, that it would be a burden to reassemble them at

a later date, and that the Government’s attorneys’ case-

loads had been adjusted to accommodate the scheduling

of this case.** The trial lasted eight trial days,” and the

Government introduced eleven witnesses*’ and 2300

signed prescriptions.“ Government counsel emphasized

his prior contacts with Hutter:

Mr. Hutter should be prepared to go to trial. He

has got a lot of the information. I gave him the

grand jury testimony. We have been in contact in

terms of what the facts are. He knows what we have.

Id., at 10 (emphasis added). This statement, as do the

others made by the various declarants in the April 26

hearing, suggests that Hutter had been conducting the

case all along and was intended to do so at trial.

To recapitulate, Burton, in all of his testimony, did not

say that he hired Roundtree as lead counsel. Indeed, the

plain reasonable interpretation to be given his testimony

38 Td., at 9-10.

* After the initial hearing on April 26, 1976, the trial lasted

through the following days: Apri] 27, 28, and 29; and May 38,

4, 5, 6, and 10.

“1 See Tr., April 27, 1976, at 62; Tr., April 28, 1976, at 256;

Tr., April 29, 1976, at 495; Tr., May 3, 1976, at 681.

* Tr., May 10, 1976, at 1385.

App. 22

22

is that he wanted a skilled, black trial attorney to assist

Hutter in the conduct of his defense. Even if Roundtree

expected to conduct the trial, it was Burton who retained

both counsel and who had the authority to specify who

would conduct it.

The reasons given by Roundtree for wanting to with-

draw were varied. Roundtree noted a disagreement as

to the viability of any defense between herself and

Hutter with Dr. Burton in the middle; but if Roundtree

was lead counsel, what Hutter thought would not be con-

trolling, as he would not be conducting the trial. She

also indicated a conflict between herself and her client.

We do not and need not speculate beyond the record into

Roundtree’s beliefs, as the record reasonably supports the

conclusion that Roundtree was not the lead counsel. In

reaching this Cénclusion, it is particularly significant that

Roundtree’s motion to withdraw refers to Hutter as the

trial attorney.

For these reasons and others mentioned earlier, we

conclude that the record does not support the conclusion

that Roundtree was hired by Burton with the shared ex-

pectation that she would function as lead counsel. In-

stead, the record points to the conclusion that Roundtree

was intended to assist Hutter in the conduct of the trial,

and that Hutter would continue in the lead role he had

performed throughout the pre-trial period. That Burton

would want to retain a skilled black attorney to sit at

counsel table, perhaps examine a few witnesses, and other-

wise assist Hutter, is perfectly understandable and rea-

sonable. But when the district court’s ruling is viewed

against this background, it becomes apparent that the

district court did not abuse its discretion in denying

Burton’s request for a continuance.

App. 23

23

Ill

Although the record does not identify with specificity

how the trial judge considered the various factors which

determine whether the defendant was afforded his right

to choose his own counsel, we are satisfied that the dis-

trict court under these circumstances perceived the sali-

ent factors and evaluated them in a manner within the

zone of his proper discretion.

It is true that no prior continuances had been requested

or granted but Burton’s motion of October 23, 1974, to

dismiss the indictment, had delayed the trial of the case

until April 1976. That motion was based on this court’s

decision in United States v. Moore, 505 F.2d 426 (D.C.

Cir. 1974), which held an indictment identical in theory

to Burton's to be invalid. However, our decision in Moore

was subsequently reversed by the Supreme Court, United

States v. Moore, 423 U.S. 122 (1975). This held, in effect,

that Burton’s indictment was also valid. Nothing in the

record, however, suggests that appellant improperly con-

tributed to any cireumstance which caused Roundtree to

request leave to withdraw from the case. Nor does the

record suggest that the continuance was requested for

the specific purpose of disrupting or undercutting the

orderly administration of justice. Had that been the case,

the district judge would have denied Roundtree’s request

for leave to withdraw. It is a fact, however, that Hutter

told Burton five days before the scheduled trial date that

Roundtree was withdrawing. When he was so advised,

he should have immediately started to obtain additional

counsel if he considered that to be necessary. The record,

however, does not indicate that any such attempt was

made. Had he acted prompily it might not have been

necessary for him to request the lengthy delay that the

court found to be unreasonable under the circumstances.

No error in the actual conduct of the trial is claimed

to exist, and no identifiable prejudice in the trial of the

24

case resulted to defendant by virtue of the denial of the

continuance. There is no suggestion that any possible

defense was stifled or weakened because the continuance

was not granted. The arguments advanced by the defense

centered around attacks on the credibility of the prosecu-

tion’s witnesses and some appeal to sympathy because of

Burton’s age and his long practice as a doctor. Indeed,

the record shows that Hutter fulfilled, his duty to his

client as a diligent, conscientious advocate. The record is

replete with examples of effective representation. This is

not to say that a different strategy might have been some-

what more effective, or that some other counsel might

have done a better job; however, there can be no doubt

that Hutter’s representation of appellant far exceeded

the standard of assistance that is constitutionally required.

The question here, however, is whether appellant was

afforded his constitutional right to select his own counsel.

In determining whether the right was violated, the exist-

ence of prejudice is only one of the factors to consider.

The existence of prejudice to the case is not a prerequisite

to a constitutional violation in this context.** But in ap-

praising this particular factor, the inability of appellant

to prove prejudice to his defense, and the absence of

prejudice apparent to us in the record suggests that the

district court properly balanced the competing considera-

tions.

It may be that having a black attorney present at the

trial, as appellant planned, might have enabled appellant

to relate better to the jury, the witnesses, or the court, as

Burton expressed it. But appellant chose Hutter to con-

duct his defense as lead counsel, and this is precisely

what he received. Had Roundtree been the lead trial

attorney, appellant clearly would have had a stronger

ease for a continuance—but with her view that Burton

*3 See note 19 supra.

App. °5

25

did not have a defense,“ a guilty plea might more possibly

have been the result.*® As it was, appellant had other

competent counsel, fully familiar with the case and pre-

pared and ready to try it, available to present his defense.

Crucially, it was the counsel he had chosen as lead trial

counsel, This is a significant and weighty factor, which

the district court unquestionably took into account.“

The dissent argues that “circumstances beyond appel-

lant’s contro] invalidated part of the right to choose his

defense team and thus the trial court had no discre-

tion to prevent appellant from regaining it.” Dissent at

note 45. Thus, the dissent claims that defendant never

* Tr., April 26, 1976, at 4-5.

* Td., at 6.

** The dissent would attach no significance to the fact that

the remaining counsel was the lead counsel: “[I]f [a defend-

ant] becomes objectively or subjectively dissatisfied with one

important member of his team, his entitlement to a continu-

ance to secure a replacement normally is no different than if

the member in question was his only counsel.” Dissent at 19.

When a defendant is initially afforded the opportunity to re-

tain counsel, he may retain as many as he can afford (subject

to the power of the court to limit the number that may partici-

pate in court). And a defendant may thereafter add as many

attorneys as he desires, so long as he does not acquire counsel

to disrupt the orderly process of justice. However, when on

the eve of trial, a defendant seeks a continuance to add or sub-

stitute counsel which necessitates a rescheduling of the trial,

many factors are relevant to whether the request for delay is

reasonable. If the defendant has other competent counsel pre-

pared to go to trial, then the court, when considering all the

factors, need not tolerate as much inconvenience as in the case

where defendant has no other counsel prepared to go to trial.

This is not to say that defendant’s rights differ in one case or

the other; this is only to say that the result of the balancing

may differ when the circumstances are different. And it goes

without saying that whether the remaining counsel is prepared

to go to trial may be substantially affected by whether he was

retained as lead or associate counsel.

App. 26

26

was given a fair opportunity to secure counsel of his

own choice, Dissent at 1. This argument is based on a

quick shift from “defense team’ to “counsel” and they

are not completely interchangeable. There are a variety

of situations that can be imagined where defendant loses

access to one of his chosen counsel by circumstances be-

. yond his control. Yet in our view, the fact that circum-

stances beyond the defendant’s control prevented him

from utilizing the services of part of his defense team

does not, by itself, conclusively indicate that defendant

was denied a fair opportunity to select adequate counsel.

This is one important factor, and carries very great

weight particularly if circumstances beyond defendant’s

contro] deprive him of his only counsel. Suppose that a

defendant retains three attorneys, and that all are pre-

pared and qualified to try the case. Two days before

trial, one of the attorneys is suddenly taken ill, and is

unable to appear at trial. This factor is certainly be-

yond defendant’s control, but depending on the circum-

stances of the case, we are not prepared to say that

denying a continuance until the third attorney’s health

is restored is an abuse of discretion. See Giacalone v.

Lucas, 445 F.2d 1288 (6th Cir. 1971). Or suppose that

a defendant retains an attorney far in advance of trial,

and the attorney’s obligations in other cases subse-

quently prevents scheduling of a reasonable trial date.

This development is certainly beyond defendant’s con-

trol, but depending on the circumstances of the case, we

are not prepared to say that denying a continuance until

the attorney’s schedule is free is an abuse of discretion

and violative of defendant’s Sixth Amendment right. See

United States v. Poulack, 556 F.2d 88 (1st Cir.), cert.

denied, 98 S.Ct. 613 (1977). Defendants must be given

an initial, fair and reasonable opportunity to select

counsel. Burton received this opportunity, and enjoyed

the services of both Hutter and Roundtree for nearly

two years. When Roundtree was granted leave to with-

App. 27

27

draw, she considered the “Canons of Ethics” to which

she was bound as a lawyer would not permit her to

go forward with the defense that Burton and his counsel

had agreed upon, see text at 14-17, supra. The circum-

stances surrounding that withdrawal, including whether

Burton contributed to the withdrawal, were the proper

subject of the trial court’s inquiry. The fact that Burton

may not have contributed directly to the withdrawal

does not, by itself, determine that Burton’s Sixth Amend-

ment rights were violated. We do not believe that every

time circumstances beyond the accused’s control result

in the loss of one member of the defense team that it

follows automatically that the defendant did not receive

a fair and reasonable opportunity to select his own

counsel.

The district court was in a good position to judge the

inconvenience to the litigants, the witnesses, counsel, and

the court from granting such a continuance. Any delay

might result in some inconvenience, and this case was no

exception to that rule.*’ Given this, plus the crucial

fact that appellant had competent counsel there whom

he had retained to conduct the trial as lead counsel, we

cannot say that the district court abused its discretion.

‘The dissent criticizes the lack of specific record evidence

listing the inconvenience which w:uld be encountered from

granting the continuance (Dissent at 22-283). The Government

did refer to the “time to. . . get all the witnesses together.”

Tr., April 26, 1976, at 10. It would have been better for our

review if the specific nature of the inconvenience had been

set forth by the Government and/or sought out by the trial

judge. Here, we do not rely on the amount of inconvenience

enumerated in the record as the principal factor in the balance.

Rather, this is one factor which lends weight toward affirming

the district court, inasmuch as defendant did receive the serv-

ice of his lead counsel.

** It is also stated in the dissent that the district court predi-

cated its disposition on its disapproval of what it deemed to be

a “singular desire on appellant’s part to engage a black trial

App. 28

28

In essence, appellant contends that a continuance should

have been granted to allow additional counsel to assist in

a trial already adequately prepared by earlier-retained

counsel. This is not a strong case for granting a con-

tinuance, and the district court did not abuse its dis-

cretion.** To have delayed appellant’s trial further would

attorney as one of his counsel” (Dissent at 23). In our view,

the record does not bear out this characterization of Burton’s

asserted position. The trial judge noted that, in his view,

the defendant wanted “an additional attorney because the

additional attorney would happen to be black” (Tr., April

26, 1976, at 18; emphasis added). As noted earlier, the

reasons for retaining counsel are not subject to approval or

disapproval by this court, and we do not see that the district

judge denied the request for a continuance simply because he

might have thought the defendant’s personal reasons for re-

taining a particular attorney were without merit. We think

that the district court recognized that Hutter was the lead

counsel and that defendant’s interest in having an additional

attorney assist Hutter—regardless of who that additional

attorney was—did not justify delaying the trial at that late

date.

**The dissent contends that United States v. Mardian, 546

F.2d 978 (D.C. Cir. 1976) (en banc) and United States v.

Lee, 235 F.2d 219 (D.C. Cir. 1956), read together, control this

case. We disagree. The resolution of cases involving the

denial of a request for a continuance depend on the particular

circumstances. Mardian is distinguishable on several grounds.

First, the counsel for defendant who remained after co-counsel

was taken ill had not been personally retained by defendant

(546 F.2d at 979). Second, Mardian stated in court that he

had taken special care in selecting the counsel who became

sick, who was very definitely his lead counsel (id.). Third,

even though the court recognized that defendant bore no re-

sponsibility for his lead counsel’s absence, the court noted two

factors which made defendant’s motion unique—(a) joinder

of Mardian with the other defendants was not supported by

evidence as strong as that against the other defendants (546

F.2d at 980); and (b) the Government did not oppose Mar-

dian’s motion (id.). The court gave this last factor the high-

est importance, as it demonstrated that granting the motion

he <— §

App. 29

29

have amounted to an unreasonable delay under these

circumstances.

Since defendant’s constitutional rights were not vio-

lated, the judgment of the district court is

affirmed.

would not have caused undue disruption. Lee is distinguish-

able on its facts as well. Defendant’s two retained counsel

requested, with defendant’s consent, permission to withdraw

from the case. Defendant advised the judge that he had ob-

tained a third attorney who was ready for trial. Permission

to withdraw was granted by the court. When the new attorney

appeared before the trial judge, he announced that he was

troubled about a possible conflict of interest. The court, after

hearing some of the circumstances, granted permission to the

new attorney to withdraw and appellant requested a short two

day continuance over the weekend to obtain new counsel. The

court refused this request and then directed one of the two

attorneys who had been allowed to withdraw, to conduct the

defense. It became clear at that time that defendant objected

to either of the two prior attorneys representing him and that

both prior counsel desired to comply with appellant’s position.

The Court of Appeals stated that appellant bore no responsi-

bility for being without counsel at the beginning of trial.

Thus, under these circumstances, the defendant was denied a

reasonable request to select counsel and was never represented

by counsel of his own choosing. 235 F.2d at 221. Lee is a far

cry from the facts here. Thus, Mardian is distinguisable on

several] grounds, and Lee involved a situation where defendant

was denied a fair opportunity to choose his own counsel after

he discharged his origina] attorneys and had no one available

to represent him who did not have a disqualifying conflict of

interest. These two cases, read together, do not indicate how

the balance of the various factors should be performed in a

case where the circumstances are markedly different.

App. 70

ROBINSON, Circuit Judge, dissenting: Appellant chal-

lenges the District Court’s denial of his motion for a

continuance to enable him to obtain replacement counsel

after the court permitted one of his existing counsel

to withdraw on the eve of trial. My colleagues affirm,

applying an abuse of discretion standard to the totality

of the circumstances.’ Though that analysis is impec-

cable when a trial court has adjudged the time necessary

to prepare for trial, or when the continuance was re-

quested after a fair opportunity to retain counsel had

already been provided, it is, in my view, unacceptable

when such an opportunity has been set for naught by

circumstances beyond the accused’s control. That situa-

tion—which is the case before us—is directly analogous

to denial of the initial opportunity to select one’s lawyer,

and I believe trial courts have no discretion to allow the

undoubted social need for expeditious administration of

criminal justice to hold sway over the fundamental Sixth

Amendment right freely to choose counsel.’

Even if the District Court had discretion to deny the

opportunity to retain new counsel in light of the factors

enumerated in the majority opinion, that discretion was

not exercised in this case because the court relied solely

on one improper consideration. Thus I[ think error was

committed. I am unable, moreover, to shed reasonable

doub:. about whether the error prejudiced appellant in

his unsuccessful endeavor to win an acquittal on the drug

charges on which he was prosecuted.’ Accordingly, I

would reverse appellant’s conviction and remand the case

for a new trial.

* Majority Opinion (Maj. Op.) at 7.

? Discussed in Part II infra.

* Discussed in Part IV infra.

App. 3l

I. THE BACKGROUND EVENTS

Appellant, a physician, had practiced his profession

in the District of Columbia since 1939. When, in 1974,

he was subpoenaed to appear as a witness before a

grand jury, he retained Allen M. Hutter as his sole

counsel. Later that year, appellant was charged in a

19-count indictment with unlawful distribution of con-

trolled substances. The gravamen of the indictment

was that he had effectively sold preludin and ritalin to

numerous persons by writing prescriptions without bene-

fit of proper physical examinations or medical histories.

Sometime thereafter, appellant requested Mr. Hutter to

seek the addition of a “skilled trial lawyer.”* Dovey

J. Roundtree was contacted and retained in the shared

expectation that she would serve appellant at trial.

As fate would have it, appellant was not destined

for an early trial. The grand jury returned a second

indictment charging 35 drug violations, and then a super-

seding 35-count indictment; the Government dropped the

first two indictmer.s and appellant—-with Ms. Round-

tree first appeariug as counsel—moved for dismissal of

the third. On authority of this court’s holding in United

States v. Moore,*® the District Court granted the motion

without prejudice, but on the Government’s appeal the

case was remanded for further proceedings in light of

* Pursuant to the Controlled Substances Act § 401, 21 U.S.C.

§ 841(a) (1976).

* Joint Appendix (J. App.) 6.

*164 U.S.App.D.C. 319, 505 F.2d 426 (1974), rev'd, 423

U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). There we held

that a licensed physician registered under the Controlled Sub-

stances Act as a prescriber of methadone was not subject to

prosecution under § 841 for dispensing narcotic drugs for

illegitimate purposes.

App. 32

the Supreme Court’s pending review of Moore.’ Even-

tually, the Court reversed the decision in Moore,‘ where-

upon the District Court vacated its order of dismissal

and set the case for trial.

Five days before trial was to commence, appellant

learned from Mr. Hutter that Ms. Roundtree had in-

dicated a desire to terminate her services. Appellant

attempted to contact her but did not .succed until she

responded to his telegram late the following day, a Thurs-

day. Despite his entreaties, she refused to continue as

counsel, and on Friday she filed a motion for leave to

withdraw. On Monday morning, the date upon which

trial was to begin, the District Court heard the motion.

Ms. Roundtree explained that “I do not believe . . . that

I have a defense,” adding that she and Mr. Hutter were

“working at cross-purposes.”* In response to the court’s

ensuing inquiry, Mr. Hutter stated that he was ready

for trial but that he would like appellant to speak.

Indulged that opportunity, appellant declared that he

was “surprised and shocked” by Ms. Roundtree’s decision

and “anguish[ed] because my reputation and livelihood

are at stake.” ** He explained that he had picked Ms.

Roundtree both because of her experience and because

she, unlike Mr. Hutter, was black:

Although Mr. Hutter is a well qualified lawyer,

I do not feel he is able to handle the case alone

*The Supreme Court had granted a writ of certiorari on

February 19, 1975. 420 U.S. 924, 95 S.Ct. 1117, 43 L.Ed.2d

393 (1975).

® Supra note 6.

* J. App. 4-5.

© J. App. 7.

Ms. Roundtree had been a member of the bar for 24

years. Mr. Hutter’s tenure at the bar was 15 years, 11 in the

District of Columbia.

eet coon ness + —

App. 33

without the assistance of someone who has the skill

{of} Attorney Roundtree .... I do not want her

to stay since she doesn’t want to create an atmos-

phere of inadequacy, but getting a seasoned trial

lawyer to replace her is difficult. I have to secure a

new lawyer who [must] of necessity become familiar

with the case.”

From my observation at the beginning, I felt Mr.

Hutter needed assistance. Since I relate to the black

community, I spoke to him and he brought in At-

torney Roundtree who is capable."

* * * *

I, therefore, request Your Honor to grant an ex-

tension of time of thirty to sixty days before the

case comes up for trial... .'*) I do not want Miss

Roundtree to drop out of the case [but] I am con-

cerned with her continuing to represent me in view

of the position she has taken within the last sev-

eral days.**

2 J. App. 7-8.

13 J. App. 8.

4 Tt seems clear that a justified motion for a continuance

with a veiw to securing new or additional counsel may not

be denied merely because the time sought is longer than the

court deems necessary. That is the more so when the re-

quest comes from an accused untutored in the ways of the

law. The correct response is to allow a reasonable time for

retention of counel desired—normally a few working days—

with extensions if the accused can show that he has attempted

in good fajth but unsuccessfully to arrange acceptable rep-

resentation. Once counsel is engaged, the court could ask for

an estimate of the time he needs to prepare for trial, and

if dissatisfied with the response the court could require jus-

tification. The court would of course remain able to exercise

its discretion to deny unreasonable requests.

18 J, App. 8.

App. 34

The Government opposed continuance on the grounds

that many weeks had been spent in preparation, thai

many witnesses had been summoned and that appellant

should have been ready for trial. The court, noting

Mr. Hutter’s competence and experience—which no one

denies—felt that

this is certainly a unique situation where the de

fendant states on the record in optn Court that he

wants an additional attorney because the additional

attorney would happen to be black....

As a matter of fact, for the jury, Dr. Burton, to

feel sympathy for you or decide the case on the

basis of your attorney’s color and your color or Mr.

Kogan [Government counsel] or my color or any-

thing like that, that isn’t a consideration that the

jury could[{| properly weigh."

Responding personally, appellant insisted that “[i]n the

black community, blacks relate to blacks better, some re-

late better,” *’ but added, “I am a citizen of this country

and you represent the government and whatever you

say, I will abide by it really.” ** The judge then ordered

trial to commence on the next morning, and after eight

days of trial the jury convicted on 28 counts.’*

II. THE RIGHT TO COUNSEL OF CHOICE

A. General Principles

The Sixth Amendment guarantees invaluable pro-

cedural safeguards to an accused, including prominently

6 J. App. 13.

17 J. App. 13.

28 J. App. 14.

1* Seven of the 35 counts had been dismissed pursuant to

a motion by the Government as trial started.

USERS « stems einen i

App. 35

the “right to have the Assistance of Counsel for his

defence.” *° And it is firmly established that as an

integral and important part of that right “a defendant

should be afforded a fair opportunity to secure counsel

of his own choice.” *’ It follows that the wheels of jus-

tice may not grind so swiftly or so finely that an accused

financially able to engage counsel is deprived of the

chance to do so.”

Consequently, while continuance of a trial is a matter

normally within the discretion of the court,™ the Sixth

20 “Tn all criminal prosecutions, the accused shal] enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been com-

mitted, which district shall have been previously ascertained

by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.”

U.S. Cont. amend. VI.

21 Powell v. Alabama, 287 U.S. 45, 538, 58 S.Ct. 55, 58,

77 L.Ed. 158, 162 (1932); accord Crooker v. California, 357

U.S. 433, 439, 78 S.Ct. 1287; 1291-1292, 2 L.Ed.2d 1448, 1454

(1958); Maj. Op. text at notes 4-6; see cases cited notes 35-

36 infra. See also Gideon V. Wainwright, 372 U.S. 335, 341,

83 S.Ct. 792, 794, 9 L.Ed.2d 799, 803 (1963) (Powell applied

Sixth Amendment standards of right to counsel).

22 See United States v. Inman, 483 F.2d 738, 739-740 (4th

Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.

2d. 766 (1974).

23 Ungar Vv. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849,

11 L.Ed.2d 921, 931 (1964). See generally Note, The United

States Courts of Appeals: 1976-1977 Term Criminal Law

and Procedure, 66 Geo. L.J. 203, 414-418 (1977). Though a

motion for a continuance based on the attorney’s need to

prepare more adequately for trial implicates the right to coun-

sel, trial] courts must be granted considerable discretion in

that situation because a determination of the time necessary

calls for the application of informed wisdom. No such “judg-

ment call” is required by a decision whether circumstances

App. 36

Amendment imposes limits when the continuance is sought

for purposes of retaining counsel.** “Proper exercise of

this discretion,” says the Seventh Circuit, “requires a

delicate balance between the defendant’s right to ade-

quate representation of counsel at trial, and the public

interest of a prompt and efficient administration of jus-

tice.” ** And the Supreme Court has warned that a

continuance may not be denied if more time is needed

to afford the accused ‘‘a reasonable opportunity to em-

ploy and consult with counsel.” **

have stolen away an accused’s initial chance to choose the

lawyer to whom he wili in large part entrust his freedom.

See text accompanying notes 41, 51 infra.

** Maj. Op. text at note 10; see State v. McFadden, 292

N.C. 609, 284 S.E.2d 742, 744 (1977) (“when a motion to

continue is based on a constitutional right, the question pre-

sented is a reviewable question of law’’); cf. United States

V. Dinitz, 588 F.2d 1214, 1222 (5th Cir. en banc 1976), cert.

denied, 429 U.S. 1104, 97 S.Ct. 1188, 51 L.Ed.2d 556 (1977)

(no abuse in allowing one cocounsel to withdraw where de-

fendant had “ample opportunity to secure another attorney”).

The Supreme Court, reminding us that continuances are ordi-

narily within the trial judge’s discretion, in the same breath

has admonished that ‘a myopic insistence upon expenditious-

ness in the face of a justifiable request for delay can render

the right to defend with counsel an empty formality.” Ungar

Vv. Sarafite, supra note 28, 376 U.S. at 589, 84 S.Ct. at 849,

11 L.Ed.2d at 931. See also Powell v. Alabama, supra note

21, 287 U.S. at 59, 53 S.Ct. at 60, 77 L.Ed. at 165-166.

*° Giacalone V. Lucas, 445 F.2d 1238, 1240 (7th Cir. 1971),

cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793

(1972).

** Chandler Vv. Fretag, 348 U.S. 8, 10, 75 S.Ct. 1, 5, 99

L.Ed. 4, 10 (1954). Of course, the accused has no “absolute

right to a particular counsel,’’ United States v. Poulack, 556

F.2d 83, 86 (1st Cir. 1977) (emphasis in original), and may

not insist upon one so situated that he could not try the case

within a reasonable space of time. Jd. at 85-86 (no abuse of

discretion in ordering substitution of counsel where, after

ee

App. 37

Once that initial opportunity has been fully provided,

however, the court, with due regard for the accused’s

interest in counsel in whom he maintains confidence,

is generally free to deny a continuance that would un-

reasonably inconvenience the judge or the trial par-

ticipants.** As we observed long ago, “the right to select

previous three-month continuance, original counse] still would

not have been available for two more months); United States

Vv. Harrelson, 477 F.2d 388, 384 (5th Cir.), cert. denied, 414

U.S. 847, 94 S.Ct. 1388, 88 L.Ed.2d 95 (1978) (denial of re-

quested change of counsel three days before trial was not

an abuse of discretion where new counsel was about to be

hospitalized and had not in fact accepted the case); United

States Vv. Upshaw, 448 F.2d 1218, 1224 (5th Cir. 1971), cert.

denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972)

(trial court did not abuse its discretion in denying change

of counsel five days before trial where no reason was given

and new counsel was in hospital and would remain there for

18 days). The trial judge in Poulack appropriately handled the

situation by offering the accused two weeks within which to

choose a substitute and then, when the accused refused to do

so, by appointing counsel who had, after another short con-

tinuance, a total of seventeen days within which to prepare.

** Giacalone V. Lucas, supra note 25, 445 F.2d at 1240; Rele-

ford Vv. United States, 288 F.2d 298, 301 (9th Cir. 1961) ; see

United States v. Anderson, 165 U.S.App.D.C. 390, 401-403,

509 F.2d 312, 323-325 (1974), cert. denied, 420 U.S. 991, 95

S.Ct. 1427, 48 L.Ed.2d 672 (1975). Some courts view the

failure to retain satisfactory counsel within a reasonable time

as an implied waiver of the right freely to choose counsel.

E.g., United States v. Rodriquez Vallejo, 496 F.2d 960, 964

(1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d

179 (1974) ; United States v. Tortora, 464 F.2d 1202, 1210 (2d

Cir.), cert. denied, 409 U.S. 1068, 98 S.Ct. 554, 34 L.Ed.2d

516 (1972). When the accused seeks to dismiss his retained

or appointed counsel and defend himself, the impaneling of

the jury has been set by some courts as the outer limit of

timeliness, at least in the absence of bad faith. Chapman v.

United States, 553 F.2d 886, 894 (5th Cir. 1977) ; see United

States v. Dougherty, 154 U.S.App.D.C. 76, 87, 473 F.2d 1113,

1124 (1972). Although I see no obvious distinction between

App. 38

[one’s] own counsel cannot be insisted upon in a manner

that will obstruct an orderly procedure in courts of jus-

tice, and deprive such courts of the exercise of their

inherent powers to control the same.” * An accused who

is dilatory, or one who acts in bad faith, need not be

rewarded with further time once he has squandered away

his fair opportunity.”

replacing original counsel with self-representation and doing

so with new counsel, I need not decide whether the same gen-

eral cutoff point should obtain. In the circumstances of this

case—Ms. Roundtree’s unexpected withdrawal, approved by

the court as trial was about to get under wav—an immediate

request for an opportunity to secure a repi.. ..nent would be

timely under any general rule. See text accompanying notes

41, 51-55 infra.

28 Smith v. United States, 53 App.D.C. 58, 55, 288 F. 259,

261 (1923) ; accord, United States Vv. Cozzi, 354 F.2d 637, 639

(7th Cir. 1965), cert. denied, 883 U.S. 911, 86 S.Ct. 896, 15

L.Ed.2d 666 (1966) (‘“[i]t is a right to be exercised at an

appropriate stage within the procedural framework of the

system of criminal jurisprudence of which it is a part’’).

*' United States v. Oliver, —— U.S.App.D.C. ——, ——, 571

F.2d 664, 665 (1978) ; Neufield v. United States, 73 App.D.C.

174, 182, 118 F.2d 875, 383, cert. denied, 315 U.S. 798, 62

S.Ct. 580, 86 L.Ed. 1199 (1941) (‘“[a]n accused aware of his

right to counsel and able to obtain counsel himself cannot

over an extended time ... omit to take any steps either

towards himself retaining counsel or towards securing an ap-

pointment by the court and then—at the moment of commence-

ment of trial—properly complain that unless a continuance is

granted in order that he may select counsel he will have been

denied the right of choice’); Smith v. United States, supra

note 28, 53 App.D.C. at 54-55, 288 F. at 260-261 (no abuse

of discretion in denying continuance on account of counsel's

engagement in another trial where accused and counsel had

ample notice that case would be tried on specified date and

had received two earlier continuances); United States v.

Rodriquez Vallejo, supra note 27, 496 F.2d at 961-962 (denial

of substitution of counsel on day before trial was to start

was not abuse of discretion where accused had plenty of

App. 39

10

time to substitute earlier and trial court considered request

to be in bad faith) ; United States v. Brown, 495 F.2d 598, 600

(1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d

179 (1974) (denial of request for third successive counsel on

day of trial was not an abuse of discretion where trial court

had already granted a two-week continuance for the first

substitution of counsel); Rolon Marzuach v. United States,

398 F.2d 548, 550-551 (1st Cir.), cert. denied, 398 U.S. 982,

89 S.Ct. 454, 21 L.Ed.2d 443 (1968) (no violation of “duty to

give consideration to a defendant’s preference with respect to

representation” where unfounded reasons for discontent with

remaining counsel indicated lack of good faith and where

delay would have impeded “expeditious handling of his case’) ;

United States ex rel. Martinez v. Thomas, 526 F.2d 750, 754

n.6 (2d Cir. 1975) (‘“[dJefendants[’] . . . Sixth Amendment

right to counsel of their own choosing ... may not be manipu-

lated in order to delay or interfere with the orderly processes

of justice”); United States Vv. Grow, 394 F.2d 182, 209 (4th

Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111

(1968) (accused gave no reason for dissatisfaction on verge

of trial and had had eight previous months to consider and

make a change) ; United States v. Moore, 569 F.2d 1312, 1813

(5th Cir. 1978) (after continuance to allow accused to retain

counsel and warning that no further delay would be tolerated,

accused appeared at arraignment without counsel); United

States v. Dilworth, 524 F.2d 470, 472 (5th Cir. 1975) (lack of

specific reasons for dissatisfaction on day before scheduled

trial and choice of another attorney who was busy in another

trial “strongly suggests that the motion for continuance was

merely a pretext for delay”) ; United States v. Sexton, 478

F.2d 512, 514 (5th Cir. 1978) (not an abuse of discretion to

conclude that motion was “interposed for delay’ where ac-

cused previously had “ample opportunity to secure counsel

of his choice”) ; United States v. Carter, 453 F.2d 402 (6th

Cir. 1971) (Sixth Amendment “does not permit [accused]

to arbitrarily dismiss his retained attorney on the eve of trial

and thus disturb and delay orderly procedures in the courts”) ;

United States v. Seale, 461 F.2c 345, 858, 360-361 & n.9 (7th

Cir. 1972) (error to force unwanted counsel on accused absent

“unwarranted dilatory tactics” and indication that reasons

given were “not genuinely advanced”); United States v.

Hampton, 457 F.2d 299, 301 (7th Cir.), cert. denied, 409 U.S.

856, 98 S.Ct. 186, 34 L.Ed.2d 101 (1972) (denial of continu-

11

On the other hand, though the accused has no “ ‘un-

bridled right’” to change counsel on the eve of trial," it

circumstances have arisen that vitiate the original choice

or lead the accused to believe sincerely that his earlier

pick is unsatisfactory, a request for leave to choose new

counsel must be carefully and seriously considered.’

ance did not infringe constitutional right where accused moved

to replace counsel on morning of date set for trial, had not

expressed discontent before that time and gave no “justifiable

basis” for the requested change) ; United States v. Leach, 429

F.2d 956, 963 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91

S.Ct. 1675, 29 L.Ed.2d 151 (1971) (no abuse of discretion

where alleged dissatisfaction arose on date of trial and was

not hinted at during previous three months or during earlier

mistrial) ; United States v. Lustig, 555 F.2d 787, 744 (9th

Cir. 1977), cert. denied, U.S. ——, 98 S.Ct. 889, 54 L.Ed.

2d 795 (1978) (discretion not abused where continuance de-

nied after trial court had instructed accused to make final

arrangements to retain counsel and accused had ample time

to do so before trial) ; Loften v. Procunier, 487 F.2d 434, 435

(9th Cir. 1973) (no abuse of discretion in denying continu-

ance requested on date set for trial; trial judge had warned

four weeks earlier while granting a previous continuance for

change of counsel that accused must appear on date of trial

with one counsel or another); United States v. Riebold, 557

F.2d 697, 701-702 (10th Cir.), cert. denied, 434 U.S. 860, 98

S.Ct. 186, 54 L.Ed.2d 183 (1977) (no abuse of discretion

where counsel gave four-week warning of impending depar-

ture, which accused did not heed by seeking substitute). See

also Cleveland v. United States, 116 U.S.App.D.C. 188, 190,

322 F.2d 401, 408, cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11

L.Ed.2d 114 (1963) (reasonable to deny new choice of counsel

on day of trial where accused had already changed once and

there had been several other continuances). op

* United States v. Bragan, 499 F.2d 1876, 1879 (4th Cir.

1974), quoting United States v. Grow, supra note 29, 394 F.2d

at 209.

"In United States v. Johnston, 318 F.2d 288 (6th Cir.

1963), the accused’s origina] counsel notified him on a Friday

that he could not make the trial, which was to start on the

nl ee

App. 41

12

“The balancing considerations,” one court has put it, “are

that the right of counsel cannot be manipulated so as

to interfere with the fair administration of justice, but

the defendant must have complete confidence in counsel

and hence, a change, if it occurs, or even a discharge,

will usually point to a continuance,” ”

B. The Relevance of the Accused’s Reasons for Want-

ing New Counsel

The accused’s side of the balance can feature either

subjective or objective grounds for a requested con-

tinuance. Instances of subjective dissatisfaction with the

original choice—a recent loss of confidence in counsel,

for example—frequently call upon the court to decide

whether the accused seeks the continuance in good faith.

In analyzing any given situation for a determination on

that score, the court obviously must often inquire into

the reasons for the request and for not having acted

earlier. Those advanced for the asserted need for sub-

following Tuesday, but that his law partner would try the

case in his stead. Jd. at 289. The accused rejected this ar-

rangement, and though he tried unsuccessfully to retain new

counsel, the court ordered the trial to start with the partner

representing the accused. The Sixth Circuit reversed, holding

that the accused had to be afforded a reasonable opportunity

to retain substitute counsel and that the period between Fri-

day and Tuesday was too short. Jd. at 291. See also United

States ex rel. Davis v. McMann, 386 F.2d 611, 620 (2d Cir.

1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d

1153 (1968) (six days through three short continuances was

insufficient time within which to retain counsel under the cir-

cumstances). Similarly, in a case involving difficult issues

and an unpopular client, the Second Circuit held that five

days were too few to enable the client to hire new counsel

after the discharge of original counsel. United States v.

Mitchell, 354 F.2d 767, 769 (2d Cir. 1966).

% United States ex rel. Davis v. McMann, 252 F. Supp. 539.

545 (N.D.N.Y. 1966), aff'd, supra note 31.

App. 42

13

stitute or additional counsel might, of course, depend on

“facts” that the court recognizes as false or so frivolous

as to cast a shadow on the accused’s sincerity.” But to

say that the court may examine the accused's subjective

reasons for wanting to replace his existing counsel is

not to say that the court may exert control over his

selection of particular counsel if qualified.** ‘If the Sixth

Amendment right to the effective assistance of counsel

means anything, it certainly means that it is the actual

choice of the defendant which deserves consideration” ; *’

*3 See, e.g., United States v. Shuey, 541 F.2d 845, 847 (9th

Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1103, 51 L.Ed.

2d 537 (1977).

* Courts do, of course, have a duty “to méaintain proper

standards of performance by attorneys who are repre-enting

defendants in criminal cases in their courts.” -McMann v.

Richardson, 897 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d

763, 773 (1970). See generally Bazelon, The Realities of

Gideon and Argersinger, 64 Geo. L.J. 811, 830-831 (1976).

See also Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978). They

also must consider whether a particular choice of counsel

creates a conflict of interest problem. See, e.g., United States

Vv. Bernstein, 588 F.2d 775, 788 (2d Cir.), cert. denied, 429

U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). See also In re

Investigution Before February 1977 Grand Jury, 563 F.2d

652 (4th Cir. 1977). And courts need not allow counsel who

are disruptive or contumacious to represent an accused if

proper steps are taken to protect his interests. United States

V. Dinitz, supra note 24, 538 F.2d at 1221.

** United States v. Seale, supra note 29, 461 F.2d at 358;

accord, United States v. Wisniewski, 478 F.2d 274, 285 (2d

Cir. 1973), quoting United States v. Sheiner, 410 F.2d 337,

342 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.

2d 76 (1969) (“defendants who retain counsel also have a

right of constitutional dimensions to representation by coun-

sel of their own choice”); United States v. Dinitz, supra

note 24, 538 F.2d at 1219 (“the Sixth Amendment requires

the courts to respect a defendant’s own particular choice of

counsel” (emphasis in original)); ef. SEC v. Csapo, 174

A —_

App. 43

14

resultantly, the court has no general power to approve or

disapprove the accused’s reasons for picking to-be-retained

counsel.” Only when a fair opportunity to engage coun-

U.S.App.D.C. 339, 342-3843, 583 F.2d 7, 10-11 (1976) (statu-

tory guarantee to assistance of counsel before administrative

agency “has been construed to imply the concomitant right

to the lawyer of one’s choice”). See also In re Investigation

Before April 1975 Grand Jury (Rosen), 174 U.S.App.D.C.

268, 277, 531 F.2d 600, 609 (1976) (right to counsel of own

choice is a “delicate area’).

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975), the Supreme Court discussed the right

of an accused to proceed pro se, but the reasoning of the opin-

ion is quite relevant here. The Court noted that “[t]o thrust

counsel upon the accused, against his considered wish, thus

violates the logic of the Amendment.” Jd. at 820, 95 S.Ct. at

2533, 45 L.Ed.2d at 573. And the Court pointedly concluded

that “[a]n unwanted counsel ‘represents’ the defendant only

through a tenuous and unacceptable legal fiction.” Jd. at 821,

95 S.Ct. at 2534, 45 L.Ed.2d at 573.

* See Maj. Op. at note 16. The California Supreme Court

has spoken forcefully on this point:

Whether or not the court is personally acquainted with

the attorney to be associated, or whether or not that at-

torney enjoys the confidence of the court, are considera-

tions wholly irrelevant to the constitutional issues con-

fronting the trial court. It is the defendant's confidence

which is at stake, not that of the court.

Magee v. Superior Court, 8 Cal.8d 949, 106 Cal. Rptr. 647,

506 P.2d 1023, 1025 (1973) (emphasis in original).

Likewise, the Fifth Circuit recently held that a trial court

has no cause to judge the validity of an accused’s reasons

for a timely request to dismiss counsel and proceed pro se.

Chapman V. United States, supra note 27, 553 F.2d at 893-895.

Neither my colleagues nor I pass today on the propriety of

requiring some adequate reason, as opposed simply to sincere

dissatisfaction, in support of a request for new appointed

counsel. See Brown v. United States, 105 U.S.App.D.C. 77,

80, 264 F.2d 363, 366 (en banc), cert. denied, 360 U.S. 911,

79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959). Indeed, the court might

App. 44

15

sel of choice seemingly has already been provided—the

case when new counsel is being sought late in the pre-

trial period—and when the proposal will entail a sub-

stantial imposition on the Government are the accused’s

motives for wanting a change at all relevant.

This distinction is well illustrated by one of our own

decisions. In dealing with an effort to replace appointed

counsel with retained counsel,” ‘“|wje* presume(d] that

in ordinary circumstances an accused who finds that funds

have become available may, for reasons sufficient unto

him, conclude that he prefers to have his own paid

counsel without necessarily claiming that appointed coun-

sel is inadequate.” ** Since, however, the circumstances

were not “ordinary’—in the sense that the request was

made just four days before trial was to begin—we held

that the substitution could be refused because the ac-

cused did not bother to explain either the basis of his

dissatisfaction or why he had not utilized his ample

prior time to secure retained counsel.” In sum, the in-

quiry into the reasons was indulged only to accommodate

the exigencies of ascertaining good faith.

The accused who has had an adequate chance to se-

cure counsel, and who on the very eve of trial seeks a

postponement to obtain a substitute or additional counsel,

have a duty to inquire into the basis for the accused’s dis-

satisfaction. Jd. at 84, 264 F.2d at 370 (dissenting opinion).

See also Maynard Vv. Meachum, 545 F.2d 278, 278 (1st Cir.

1976) (refusa] without good cause to proceed with able ap-

pointed counsel is waiver of right to counsel) ; Tague, An Jn-

digent's Right to the Attorney of His Choice, 27 Stan. L. Rev.

73 (1974).

* McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d

791 (1965).

* Id. at 183, 348 F.2d at 795 (emphasis supplied).

% Jd. at 182-183, 348 F.2d at 794-795.

a a i =

App. 45

16

needs a strong showing of sincerity to overcome a natural

inference of bad faith.” On the other hand, where, as

here, the accused effectively loses an attorney shortly

before trial due to events beyond his control, the in-

ference of sincerity rings loud and clear.“ The ground

for continuance is wholly objective—the original choice

of counsel was frustrated not by a change of the accused’s

mind but by a change in external circumstances. Because

the validity of the accused’s claim that the situation has

been altered can be objectively examined, no inquiry into

the accused’s mental state is normally required or permis-

sible. The accused so situated need establish only that

the reason for withdrawal is not a pretext and that the

time remaining before trial is insufficient to obtain an

adequately-prepared replacement without a continuance.

C. The Circumstances Here

Reverting to the case at bar, we may first observe

that appellant’s good faith has not been challenged by

the Government—nor hardly could it be. He had re-

tained Ms, Roundtree many months before trial, and

from aught that appears her last-minute motion to with-

draw came as a sudden surprise. Surely the District

Court did not believe that the episode was a planned

dilatory tactic, for if the court had it should—and pre-

sumably would—merely have denied withdrawal.** Ap-

* See cases cited supra note 29.

*! See notes 51-42, 55 infra and accompanying text.

“ Compare United States v. Ruiz, 533 F.2d 939, 940 (5th

Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 532, 50 L.Ed.2d

613 (1976) (tria] court did not abuse its discretion in re

fusing both continuance and withdrawal where no effort was

made to solve problems during long period before trial).

Other options available to a court believing that counsel has

inexcusably caused costly delay or is engaged in a contu-

macious attempt to defer trial or in an unethica] abandon-

App. 46

17

pellant had only one business day between the time Ms.

Roundtree told him her intentions and the commence-

ment of trial,** and his failure to retain replacernent

counsel during that short interval certainly does not

indicate bad faith. In a nutshell, everything points not

to an attempt to temporarily sidestep trial but to an

endeavor to replace, with reasonable dispatch, counsel

whom appellant had long expected to assume a major

role at trial.‘ ‘

The fact that appellant had selected Mr. Hutter as

part of his defense team is irrelevant. He had not

selected him as his only counsel. And the fact that ap-

pellant still had one attorney remaining after Ms. Round-

tree’s departure is similarly of no significance.*’ During

ment of his client include the assessment of costs for delay

and punishment for criminal contempt. United States Vv.

Lespier, 558 F.2d 624, 628 (1st Cir. 1977), citing J» re

Sutter, 5438 F.2d 1080 (2d Cir. 1976) and U’nited States v.

Marr, 553 F.2d 874 (4th Cir. 1977).

**See text supra at 3. The court asserts that appellant

had five days to replace Ms. Roundtree, but in fact he did

not know for certain that she wanted to leave until Thursday

night, or that she would be allowed to withdraw until Monday

morning—the day trial was to begin.

“Compare United States v. Rosenberg, 257 F.2d 760, 764

(3d Cir. 1958), aff'd on other grounds, 860 U.S. 367, 79 S.Ct.

1231, 3 L.Ed.2d 1804 (1959) (unwarranted delay in reacting

to illness of chief trial counsel).

** Cf. Illinois v. Pendleton, 367 N.E.2d 196, 201 (Ill. App.

1977), cert. denied, —— US. , 98 S.Ct. 1590, 55 L.Ed.

2d 809 (1978).

My colleagues concede that an accused is constitutionally

entitled to an initial opportunity to “retain as many [lawyers]

as he can afford (subject to the power of the court to limit

the number that may participate in court),” Maj. Op. at note

46, and that it was “quite sensible for [appellant] to desire

the best lawyer obtainable, even though that lawyer might

perform as associate counsel.” Jd. at 18. By my analysis,

EE Pets OE i ee Ot -

App. 47

18

circumstances beyond appellant’s control] invalidated part of

the right to choose his defense team and thus the trial court

had no discretion to prevent appellant from regaining it. Con-

sequently, in assessing whether a constitutional violation has

occurred, it makes no difference whether Ms. Roundtree was

intended to serve as lead counsel. That would be significant

only in determining whether the violation was harmless. See

text infra at note 110.

In any event, I think the record on this matter—which is

critical in the court’s analysis—is much less clear than a

reading of the majority opinion might indicate. Appellant

states in his brief that Ms. Roundtree was in fact to be lead

counsel. £.g., Brief for Appellant at 1, 3, 8, 10, 15, 16, 17.

The Government’s brief, which is signed by the trial prose-

cutor, never denies that. Indeed, the Government confirms

that “Mrs. Roundtree said .. . that she could not take a pas-

sive role as associate counsel in the case,” Brief for Ap-

pellee at 3; accord, id. at 12, and that “Mr. Hutter told the

court that appellant wanted a black attorney to try the case.”

Id. at 5 (emphasis supplied); accord, id. at 4. It is quite

natural for a layman to say, as appellant did, that the

chronologically-second lawyer he retained was hired to assist

the initial lawyer, even though the second was to be the trial

lawyer. Furthermore, Ms. Roundtree’s statement that “I do

not think I would be. . . fair to Dr. Burton to be associate

counsel,” J. App. 27, was spurred not by a disinclination to

continue as associate counsel after she and her client had

disagreed on the defense to be presented, but by her belief

that she could not be lead trial counsel for that very reason

and her refusal to take a less active role than planned. As

she said, “I couldn’t be associate counsel, and just sit at the

table. That is not my role as a lawyer.” Id. (emphasis sup-

plied).

Though irrelevant to my analysis, the proposition that Ms.

Roundtree was not to be lead counsel—or even an equal

partner in the defense—but rather a mere assistant to Mr.

Hutter is central to the court’s disposition. See Maj. Op. at

note 22. The court is able to reach its decision to affirm only

by concluding that Ms. Roundtree was to act in a subservient

capacity. The record undisputably leaves room for doubt

on that score, and I would not share any reluctance at least

to remand for an accurate determination of that fact if I

felt it crucial to the outcome. And because the court operates

App. 48

19

the initial opportunity to retain counsel of one’s choice,

the accused may engage two attorneys; ** indeed, he may

hire as many as he can afford, although the trial court

may limit the number—but not the choice—of those who

actively participate in court. Even if the accused in-

itially retains only one counsel, he is free to add others

later so long as he does not thereby substantially incon-

venience the trial participants. And if be becomes ob-

jectively or subjectively dissatisfied with one important

member of his team, his entitlement to a continuance

to secure a replacement normally is no different than

if the member in question was his only counsel.

Here, it is clear that appellant’s earlier retention of

counsel of choice was rendered nugatory by an event

beyond his control.’ He ‘“‘was denied a fair opportunity

to choose his own counsel... .” ** Although a continuance

might have mildly inconvenienced the court, the prosecu-

tion and some of the witnesses,“ that consequence was

hardly appellant’s fault. The motion for leave to with-

on cryptical indications in the trial record, I see no reason

why our ruling today would be dispositive of a new-trial

motion seeking to establish beyond peradvanture that Ms.

Roundtree’s trial role was to equal or exceed that of Mr.

Hutter.

‘Maj. Op. at note 46; State v. Waterhouse, 3 Conn. Cir.

102, 208 A.2d 354, 356 (1964).

** See Gandy v. Alabama, 569 F.2d 1318, 1326 (5th Cir.

1978) (“[t]he trial court abused his discretion . . . when he

refused either to grant the motion for a reasonable continu-

ance in order that the Petitioner have the assistance at trial

of counsel whom he had chosen and retained or in some other

matter assure the continued attendance of Petitioner’s re-

tained counsel, who announced an intention to abandon Pe-

titioner and later did so’’).

*® Maj. Op. at note 49.

** Compare text infra at notes 61-62.

AD he ae ee a te ee mS -

App. 49

20

draw was not forthcoming until the trial date was vir-

tually at hand, and the court granted it, effectively negat-

ing appellant’s opportunity to satisfy an understandable

desire for comfort and confidence in his trial represen-

tation.

More than two decades ago we articulated the legal

principle that governs this case. In Lee v. United States,”

the accused’s third retained lawyer appeared before the

trial judge on the trial date and disclosed a possible

conflict of interest stemming from earlier representation

of the chief prosecution witness. The trial judge granted

his motion to withdraw and, over objection, appointed

as the accused’s counsel an attorney in the courtroom

whom the accused had discharged earlier. We enforced

the accused’s right to select his own counsel and, of

even greater significance, observed:

[A]ppellant bore no responsibility for being without

counsel on the eve of his trial. He had appeared

for trial with counsel of his own choosing, and the

record does not show that he had anything to do

with that counsel’s withdrawal by leave of court.

However that withdrawal may have obstructed the

processes of court, such obstruction is clearly not

chargeable to the appellant and cannot be made the

occasion for denying him his constitutional right

to counsel of his own choosing.”

Furthermore, we indicated that in circumstances objec-

tively invalidating the initial choice of counsel—as when

the accused seeks to replace a withdrawing retained at-

torney—the court cannot force unwanted counsel upon

him, however ill-founded his objections to that counsel

may be.** With subjective sincerity not at issue, the rea-

© 98 U.S.App.D.C. 272, 235 F.2d 219 (1956).

*t Td. at 274, 235 F.2d at 221.

% Td.

App. 50

21

sons for the particular choice of replacement counsel were

of no concern.

We recently reaffirmed the objective-grounds rule set

down in Lee. Sitting en bane in United States v. Mard-

ian,” we held that the trial court had erred in requir-

ing the accused to proceed with only one of his counsel

after his lead counsel became ill two weeks into the

trial." We pointed to the client’s lack of contribution

to the loss of his lawyer—the loss, we found, was “bona

fide and unforeseeable” ““—and although cocounsel was

certainly skilled, we recognized that the right to choose

one’s counsel was critical in a difficult conspiracy case

featuring disparately condemnatory evidence against sev-

eral codefendants.* We placed considerable reliance on

the Government’s decision not to resist a continuance,’

attributing importance to this because it indicated that

no “undue disruption” of the criminal justice system

would ensue from a grant of the motion.”

Although Mardian does indicate a wholesome concern

for the orderly administration of justice,** that concern is

controlling only when the accused’s reasons for seeking

new counsel are purely subjective—that is, wheu the ac-

cused is merely unhappy with how he utilized his’ in-

itial opportunity to choose counsel and not when that op-

portunity has been debased by subsequent events. As

I read Lee and Mardian together, they teach that the

*° 178 U.S.App.D.C. 207, 546 F.2d 973 (en banc 1976).

* Id. at 213, 546 F.2d at 979.

** Id, at 214, 546 F.2d at 980 (footnote omitted).

56 Td.

© 3d.

8 Jd.

6° Id.

App. 51

22

District Court should have exercised its discretion in

favor of appellant’s good faith effort to reacquire a

defense team of his own choice.”

D. The Absence of Any Proper Reasons for Denying

Appellant’s Request

The foregoing analysis establishes both the limited

number of justifications for denying a requested con-

tinuance in these circumstances and the rigorous scrutiny

to which such a denial must be subjected. Even if in-

convenience to trial participants could ever outweigh

appellant’s objectively-grounded assertion that his earlier

Sixth Amendment choice of counsel had become inef-

fectual, I am not persuaded that the Government made

a sufficient showing. The record does not indicate that

any of the Government’s witnesses were frum afar, nor

does it specify any inconvenience to those in the vicinity,

many of whom were local police officers or informants.”

The main argument advanced by the Government against

any sort of continuance was that the prosecutor himself

had spent many days preparing for trial. I note, however,

that the prosecutor did not indicate any conflict in his

schedule that would have precluded trial within a reason-

* See also Releford v. United States, supra note 27, 288 F.2d

at 300-301 (trial court erred in requiring lawyer who ap-

peared to request a continuance for accused’s ill counsel to try

case over his and accused’s objection); English v. State, 8 Md.

App. 330, 259 A.2d 822, 826 (1969) (denial of continuance

was abuse of discretion where accused did not expect his re-

tained counsel to send his son to try the case).

*1 Compare United States v. Brown, supra note 29, 495

F.2d at 600 (out-of-state witnesses already summoned) and

United States v. Terry, 449 F.2d 727, 728 (5th Cir. 1971)

(same) with Giacalone v. Lucas, supra note 25, 445 F.2d at

1252 (dissentir¢g opinion) (because all involved witnesses

were policemen, there could be little inconvenience in a delay

of the trial).

App. 52

23

able time of its original date, and I am unble to see why

his preparation would not have served him.almost if not

fully as well at a trial in May as at one in April.”

Even in dealing with run-of-the-mill motions for con-

tinuance, the trial court’s discretion—though indubit-

ably broad—is not unlimited, and at the very least some

plausible reason for refusing an honest and meritorious

request must appear.”

Moreover, even if my colleagues were correct that a

denial of the continuance sought by appellant could have

been supported on the basis of inconvenience, the Dis-

trict Court gave no indication that it “perceived the

salient factors and evaluated them. .. .”% Though the

court “was in a good position to judge the inconvenience

to the litigants, the witnesses, counsel, and the court,” *

the simple fact is that 1t never used that approach to

make such a judgment. On the contrary, the District

Court predicated its disposition on its disapproval of

what it deemed to be a singular desire on appellant’s

part to engage a black trial attorney as one of his coun-

sel.“ It seems worth mentioning that appellant was at

least as much concerned about Ms. Roundtree’s experi-

* As it was, more than two and one-half years had elapsed

since the time of the alleged criminal acts. See United States

Vv. Mitchell, supra note 31, 354 F.2d at 769 (Government can-

not argue speed where nine months had ree passed since

alleged crime occurred).

*? See text at notes 23-26 supra; cf. United States v. Roberts,

———— U.S.App.D.C. , 570 F.2d. 999, 1012 (1977)

(refusal to allow withdrawal of guilty plea was abuse of

discretion where inconvenience to Government was minimal

and objective indicators supported accused’s justification for

request).

** Maj. Op. at 23.

*5 Maj. Op. at 27.

°° See text at note 16 supra.

ee — .

App. 53

24

ence as her color, a matter to which the court did not

speak.*’ More importantly, however, as I have explained,

the reasons for a litigant’s choice of counsel are a per-

sonal matter, and become relevant to a judicial ruling

only so far as they might indicate bad faith or insin-

cerity of subjective grounds for the request.” The trial

court gave not so much as a hint that appellant’s rea-

sons suggesed that; instead, it articulated only its opinion

that appellant’s bid for a black lawyer was simply im-

proper.” That ground for denial lay beyond the dv.nain

of trial-court discretion, and a decision bottomed on it

is unsustainable. And by relying upon a totality-of-the-

circumstances standard never employed by the trial court,

the majority is exercising its own discretion, not affirm-

ing that of the District Court.

One further consideration merits brief discussion. Even

if it had been the District Court’s function to judge any

more than the sincerity of appellant’s reasons, the court

would still have erred. The majority apparently agrees

that a feeling that black counsel might do better than

white counsel with blac! witnesses and jurors is no more

improper than one that ofttimes prompts a litigant to

retain a handsome lawyer, a glib lawyer or a famous

lawyer.” That jurors should not be swayed by the color

of lawyers and others appearing before them is a proposi-

tion with which all would agree, but it does not mean that

an accused who believes that juries sometimes do such

things must surrender the prerogative of taking that

opinion into account.” The District Court perhaps fel:

6 See text at notes 5, 11, 12 supra.

** See text at notes 33-41 supra.

** See text at note 16 supra.

7 See Maj. Op. at 22.

"In holding that a prosecutor may peremptorily strike

blacks from a petit jury, the Supreme Court has reasoned that

“the peremptory permits rejection for a real or imagined

App. 54

25

that a grant of appellant’s request would have brought

about some sort of equal protection violation. Such a

position I would not share, for I am unable to see whose

rights could thereby have been denied.

I would find, then, that the District Court denied ap-

pellant’s motion for continuance in the erroneous view

that the reason behind it was unworthy.”’ Beyond that,

I would conclude that had it fully exercised its discre-

tion on the record then before it, the request could not

have justifiably been refused. I accordingly would hold

that the court infringed appellant’s Sixth Amendment

right to a renewed opportunity to retain counsel, but

that does not end my task. It is still necessary to de-

termine whether appellant waived his right and, if he

did not, whether its deprivation was harmless error.

III. WAIVER

The court does not reach this issue, but it hints that

appellant “‘was less than forceful in asserting his .. .

right. . . .”™ I must object to any implication that

appellant waived his right. As a commonsense matter,

appellant’s decision to “abide by’ the District Court’s

partiality that is less easily designed or demonstrable... .

It is no less frequently exercised on grounds normally thought

irrelevant to legal proceedings or official action, namely, the

race, religion, nationality, occupation or affiliations of people

summoned for jury duty.” Swain v. Alabama, 880 U.S. 202,

220, 85 S.Ct. 824, 836, 18 L.Ed.2d 759, 772-773 (1965)

(footnote omitted).

* See text supra at note 69; cf. Castaneda-Delgado vy. INS,

525 F.2d 1295, 1800 (7th Cir. 1975) (denial of continuance

to look for another counsel for civil deportation hearing is

abuse of discretion in absence of reasons for denial).

™* Maj. Op. at note 87.

- - + rll

Ee Es Se a a

App. 55

26

ruling * seems not to be in the nature of a waiver of

his right to counsel of choice. Rather, it appears quite

plainly that he was acting simply out of courtesy and

respect for the court; he had made his argument for the

continuance and lost, and it was time to sit down and

accept whatever outcome the court decreed.”» We should

not encourage litigants to act contumaciously out of fear

that otherwise their constitutional rights will evaporate,”

nor should we penalize them for dignified rather than

vociferous protests of what they consider to be unwar-

ranted treatment.

Nor, as a legal matter, does appellant’s statement

to the court rise to the level of a voluntary, knowledgeable

and unambiguous waiver of a right secured by the Con-

stitution. The stringent standard incorporating those

elements, laid down by the Supreme Court in Johnson

v. Zerbst,”’ retains its vitality forty years later—at least

for waivers of constitutional rights at criminal trials.”

* See text supra at note 18.

>In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330,

47 L.Ed.2d 592 (1976), a unanimous Court did not even

hint at waiver in counsel’s statement that “we will obey”

the trial court’s order prohibiting counsel and client from

speaking during an overnight recess. Jd. at 85 n.1, 96 S.Ct.

at 1334 n.1, 47 L.Ed.2d at 597 n.1. Although counsel had

objected, he “appropriately indicated that he would—as in

fact he did—comply with the court’s order.” /d. at 83, 96

S.Ct. at 1333, 47 L.Ed.2d at 596 (footnote omitted).

* Compare United States v. Seale, supra note 29, 461 F.2d

at 350 (accused’s violent complaints of denial of rights to

counsel of choice and to defend pro se resulted in court order-

ing him bound and gagged).

7304 U.S. 458, 465, 58 S.Ct. 1019, 1028, 82 L.Ed. 1461,

1467 (1938).

7 Schneckloth v. Bustamonte, 412 U.S. 218, 287, 98 S.Ct.

2041, 2052-2058, 86 L.Ed.2d 854, 868-869 (1973). And we

must, of course, apply the same standard even though ap-

ow

‘

App. 56

27

And as the Court has stated in somewhat similar cir-

cumstances—involving an accused, a lawyer, who after

initial objection remained silent as the court ordered

one of his counsel to represent a codefendant as well—

‘‘we indulge every reasonable presumption against the

waiver of fundamental rights.” Here, as in that case,

“the manner in which the parties accepted the [court’s

ruling] indicates that they thought they were acceding

to the wishes of the court’’;*® here, as there, to read a

waiver into appellant’s muted response is to “‘do violence

to reality,” “ and that I decline to do.

IV. HARMLESS ERROR

The final question, and—though my colleagues deem

the answer foreclosed **——by far the most difficult one for

me, is whether the denial of appellant’s right to replace-

ment counsel of his choice was reversible error. It is

now settled, of course, that some mistakes of constitu-

pellant allegedly waived only one aspect of his constitutional

right to counsel. Maynard v. Meachum, supra note 35, 545

F.2d at 277.

** Glasser V. United States, 315 U.S. 60, 70, 62 S.Ct. 457,

465, 86 L.Ed. 680, 699 (1942); accord, Brewer v. Williams.

430 U.S. 387, 404, 97 S.Ct. 1282, 1242, 51 L.Ed.2d 424, 440

(1977).

% Glasser V. United States, supra note 79, 315 U.S. at 71,

62 S.Ct. at 465, 86 L.Ed. at 700. In another case involving

a trial court’s refusal to grant adequate time to replace coun-

sel, the Second Circuit found no waiver in a statement in effect

indicating, “[y]es, because vou compel me to do so.” United

States Vv. Mitchell, supra note 81, 354 F.2d at 768.

"! Glasser V. United States, supra note 79, 315 U.S. at 72,

62 S.Ct. at 465, 86 L.Ed. at 700.

*? See note 108 infra.

App. 57

28

tional magnitude can be labeled harmless,** but the stand-

ard for determinations on that score is not nearly so

clear." This imprecision is understandable, and per-

haps it is wise. Any simply-stated rule might not en-

compass or assign true value to all concerns that should

guide such decisions. Any hard-and-fast rule might

spawn anomalous or even arbitrary results in some cases.

A. General Principles

The justification for harmless-error rules is single-

minded: they avoid wasting the time and effort of

judges, counsel and other trial participants.** Other con-

siderations enter into the picture, however, when we set

out to ascertain what is harmless and what is not. Wis-

dom of the ages counsels against appellate erosion of

the stature and function of the trial jury.** Societal

beliefs about who should bear the risk of error in par-

ticular types of proceedings deserve weight in decisions

on harmlessness.** Respect for dignity of the individual,

as well as for the law and the courts that administer

it, may call for rectification of errors not visibly affect-

8° Chapman V. California, 386 U.S. 18, 23, 87 S.Ct. 824,

827-828, 17 L.Ed.2d 705, 710 (1967).

** Field, Assessing the Harmlessness of Federal Constitu-

tional Error—A Process in Need of a Rationale, 125 U. Pa.

L. Rev. 15, 32 (1976); Saltzburg, The Harm of Harmless

Error, 59 Va. L. Rev. 988 (1973) (“[c]haos surrounds the

standard for appellate review of errors in criminal proceed-

ings”).

85 Comment, Principles for Application of the Harmless

Error Standard, 41 U. Chi. L. Rev. 616, 626 (1974).

8 I/nited States v. James, 181 U.S.App.D.C. 55, 64, 555

F.2d 992, 1001 (1977); see Field, supra note 84, at 33.

8’ Saltzburg, supra note 84, at 994.

App. 58

ing the accuracy of the judicial process." And the pro-

phylactic effect of a reversal occasionally might outweigh

the expenditure of effort on a new trial.”

My point of departure is the nature of the error I see

here: a constitutional breach in a criminal case. The

heavier burden of proof—beyond a reasonable doubt—

constitutionally imposed upon the Government in a crimi-

nal case” reflects our societal philosophy that malfunc-

tions of the criminal justice process oridinarily should

affect the state and not the individual.” By the same

8 Cf. discussion accompanying notes 118-124 infra.

8° See United States v. Freeman, 169 U.S.App.D.C. 73, 80 &

n.45, 514 F.2d 1314, 1821 & n.45 (1975); Comment, supra

note 85, at 626 (automatic reversal is a more effective deter-

rent of erroneous trial activity than exclusionary rule is of

improper police action because burden of reversal falls more

directly on responsible party).

%° F.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073,

25 L.Ed.2d 368, 375 (1970) (‘the Due Process Clause pro-

tects the accused against conviction except upon proof beyond

a reasonable dcubt of every fact necessary to constitute the

crime with which he is charged”). While the Court in Win-

ship spoke of the Fourteenth Amendment vis-a-vis state prose-

cutions, the same safeguard is afforded by the Fifth Amend-

ment in relation to federal prosecutions. E.g., Cool v. United

States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335,

339 (1972).

* Underwood, The Thumb on the Scales of Justice: Burdens

of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1306

(1977) (reasonable doubt rule reduces chances of erroneous

conviction and symbolizes great significance society places

on criminal conviction); cf. Speiser v. Randall, 357 U.S. 513,

525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460, 1472-1473

(1958) (margin of error is reduced for party with “interest

of transcending value’’).

Part of the rationale for the reasonable-doubt rule is that

because the scales of justice are imperfect and a flaw therein

might prejudice the individual, the balance must be weighted

App. 59

30

token, the standard for measuring harmlessness should be

much higher when guilt or innocence of crime is at

stake.” And when judicial error is of a constitutional

character, the test becomes yet more stringent,” pre-

cisely because conformity with constitutional guarantees

is often critical to assuring a fair and accurate deter-

mination on culpability.”

The interaction of all these factors is reflected in the

rule laid down by the Supreme Court over a decade

ago in Chapman v. California,” which places on the

Government the onus of demonstrating that constitu-

tional error at a criminal] trial is harmless beyond a

reasonable doubt.” If the infirmity is in the admission

or rejection of evidence, it is—in theory at least—pos-

sible for an appellate court to consider the case on the

evidence that should properly have been let in, just as

though the mistake had never occurred.” Thus, if that

heavily on his side to minimize erroneous convictions. Under-

wood, supra. When a breakdown is not only possible but, as

here, is established, the “fudge factor” in favor of the indi-

vidual should be at least as great. Perhaps it should be even

greater since one level of uncertainty has been removed. We

know an error has occurred, and only the chances that the flaw

prejudiced the individual remain problematical.

* Saltzburg, supra note 84, at 989; see Kotteakos v. United

States, 328 U.S. 750, 762-763, 66 S.Ct. 1239, 1246-1247, 90

L.Ed. 1557, 1565-1566 (1946).

*8 See Kotteakos v. United States, supra note 92, 328 U.S.

at 775, 66 S.Ct. at 1253, 90 L.Ed. at 1572.

* Cf. Doe v. Hampton, —— U.S.App.D.C. ——, ——, 566

F.2d 265, 286-287 (1977) (dissenting opinion}.

* Supra note 83.

* 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.

°** Erroneously-admitted evidence might, however, lead to a

corresponding adjustment of defense strategy, thus misshap-

App. 60

31

evidence is so convincing that the court cannot find even

a reasonable possibility that a jury would reach a dif-

ferent result another time around, the court will seldom

reverse,”* though this traditional approach is not with-

out its critics.“ On the other hand, if the error is

procedural in nature, even strong evidence of guilt can

be an unreliable indicator of harmlessness simply because

the evidence presented might not have been the same

absent the infirmity.” Some procedural ‘errors will have

such obvious ramifications in the case presented to the

trier of fact that we can adjust accordingly our con-

sideration of the remaining evidence, but often the im-

pact will be “incapable of any sort of measurement.” *”

ing the remaining evidence. See Fahy v. Connecticut, 375

U.S. 85, 91, 84 S.Ct. 229, 282-233, 11 L.Ed.2d 171, 175-176

(1963).

“ E.g., Schneble v. Florida, 405 U.S. 427, 430-432, 92 S.Ct.

1056, 1058-1060, 31 L.Ed.2d 340, 344-345 (1972) ; Harrington

v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d

284, 287-288 (1969).

* Field, supra note 84, at 33 (overwhelming-evidence stand-

ard usurps the jury’s function, implies that innocent alone

have constitutional rights, and places difficult burdens on ap-

pellate courts). See also Fahy v. Connecticut, supra note 97,

875 U.S. at 86-87, 84 S.Ct. at 230, 11 L.Ed.2d at 173-174. We

ourselves have admitted that ‘‘[a]ssessing prejudice is an elu-

sive task, requiring appellate judges to weigh the impact

of trial defects on the minds of other people,” United States

v. Freeman, supra note 89, 169 U.S.App.D.C. at 79-80, 514

F.2d at 1820-1821, and accordingly have looked to the nature

of the improper evidence rather than to the quantity of the

untainted evidence. United States v. James, supra note 86,

181 U.S.App.D.C. at 64 & n.55, 555 F.2d at 1001 & n.55.

10 See Holloway v. Arkansas, —— U.S. ——, ——, 98 S.Ct.

1178, 1181-1182, 55 L.Ed.2d 426, 487-438 (1978).

1 United States Vv. Hurt, 177 U.S.App.D.C. 15, 21, 543

F.2d 162, 168 (1976). Here, for instance, appellant contends

that Mr. Hutter made two errors to which more experienced

Pe BR COE th ES te lly ts

oP sme 4’

App. 61

82

With procecural errors, then, we can count on an

overwhelming-evidence test only in limited circumstances

where we are able to say without a reasonable doubt

whatsoever that the error did not subtly and substan-

tially corrode the ultimate state of the argument, and

evidence presented to the initial decisionmaker. To be

sure, some rights are so peripheral to fairness of the

trial, and some trespasses on fundamental interests so

minor in nature, that one can perceive clearly that the

result of the process was not critically altered. But,

as the Supreme Court has declared, “there are some con-

stitutional rights so basic to a fair trial that their in-

fraction can never be treated as harmless error.” *”

counsel might not have fallen victim. The first and more im-

portant involved testimony by a Government witness to the

effect that appellant had prescribed ritalin pills for her brother

and that he had jumped from a three-story building while

under the influence of the pills, perhaps leaving the jury with

the impression that he had died. Although the cour: ulti-

mately instructed the jury to disregard this testimony, ap-

pellant now argues that he might have been prejudiced by Mr.

Hutter’s failure to prevent the testimony from getting before

the jury at all. The other instance of alleged deficiency was

Mr. Hutter’s attempt to ask a hypothetical question for which

no supporting facts had been or were expected to be testi-

fied to. Appellant now argues that the question and its over-

ruling might have undermined the credibility of his case in

the eyes of the jurors.

If I were sure that the possibility of prejudice to appellant

was confined to these two instances, I would not deem them

of such character as to raise a reasonable doubt that the

constitutional denial was not harmless. There is no such as-

surance, however.

102 Chapman V. California, supra note 838, 386 U.S. at 23,

87 S.Ct. at 827-82&, 17 L.Ed.2d at 710, citing Gideon v. Wain-

wright, supra note 21 (footnotes omitted) (giving right to

counsel as one example) ; 386 U.S. at 43-44, 87 S.Ct. at 8387-

838, 17 L.Ed.2d at 721-722 (Stewart, J., concurring) (‘‘consti-

tutional rights are net fungible goods”) ; see Comment, supra

App. 62

33

Many aspects of the right to counsel may reach this

magnitude **—its infringement can taint the trial to

note 85, at 620-626 (proposing test for automatic reversal

based, inter alia, on fundamentality of the right in question

and its explicitness in the Constitution).

108 See Lakeside v. Oregon, —— U.S. ——, ——, 98 S.Ct.

1091, 1096, 55 L.Ed.2d 319, 326 (1978) (“[ijn an adversary

system of criminal justice, there is no right more essential

than the right to the assistance of counsel’’). The Supreme

Court has indicated that a Sixth Amendment violation cannot

be harmless. See note 102 supra and accompanying text. In

light of other Supreme Court opinions, however, that holding

has been construed as referable only to a relatively major

infringement, such as a complete denial of counse) at trial.

United States vy. Crowley, 529 F.2d 1066, 1070 (3d Cir.), cert.

denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976) ;

see Milton v. Wainwright, 407 U.S. 371, 377-378, 92 S.Ct. 2174,

2178, 33 L.Ed.2d 1, 6-7 (1972) (alleged Fifth and Sixth

Amendment infractions not reached because error, if any,

was harmless) ; Chambers Vv. Maroney, 399 U.S. 42, 53-54, 90

S.Ct. 1975, 1982-1983, 26 L.Ed.2d 419, 429-430 (1970) (Court

is “not disposed to fashion a per se rule requiring reversal

of every conviction following tardy appointment of counsel’’) ;

Coleman Vv. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26

L.Ed.2d 387, 398 (1970) (remand to determine whether

denial of right to counsel at preliminary hearing was harm-

less error); United States v. Wade, 888 U.S. 218, 242, 87

S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967) (remand to

ascertain impact of lack of counsel at lineup).

Accordingly, courts have labeled some “minor’’ violations

of the right to counsel harmless. E.g., in re Di Bella, 518

F.2d 955, 959 (2d Cir. 1975) (exclusion of counsel from read-

ing of grand jury minutes at contempt proceeding harmless

where client allowed to repeat substance to counsel and exact

phraseology was not possibly important); United States V.

Crowley, supra, 529 F.2d at 1069 (denial of counsel] at hear-

ing on motion to withdraw guilty plea harmless under cir-

cumstances). Thus, unlike the majority, I am not satisfied

that, at least as yet, it can safely be assumed that each and

—"

eee ee eee

App. 63

34

its roots," for a court might be unable to safely excise

particular items that particular counsel might have kept

out of the evidence, or to identify those that he might

have gotten in.**

B. The Probability of Prejudice in This Case

Appellant’s right to counsel of his choice was violated

when he was denied the opportunity to secure new coun-

every right-to-covnsel violation is inherently prejudicial. But

see Maj. Op. at note 19.

It is probably true that few such infringements can fairly

be deemed noninjurious—as my analysis of this very case

seems to demonstrate—but that is no reason to apply a per se

rule of prejudice to cases in which harmlessness can be

established. If our experience should someday teach us that

we can never eliminate all reasonable possibility of prejudice

in these circumstances, that would be the time to impose a

per se rule. The desire to accommodate those possible situa-

tions where one can say with absolute certainty that no harm

was suffered within the court’s unnecessarily absolute position

on harmle~sness causes it to incorporate a showing of preju-

dice as one factor in its totality-of-the-circumstances test.

See Maj. Op. text at note 19. Though prejudice might be an

element of a showing that the denial of a continuance vio-

lated due process, prejudice has never before been considered

an element of a Sizth Amendment violation. See note 120

infra.

»°* Castaneda-Delgudo Vv. INS, supra note 72, 525 F.2d at

1300-1302.

°° Compare Holloway v. Arkansas, supra note 100, ——

U.S. at ——, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 (failure of

trial court to relieve appointed counsel of conflict of interest

in representation of codefendants cannot be harmless because

no way to know what counsel might have consciously or sub-

consciously refrained from doing) ; Hamilton v. Alabama, 368

U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114, 117 (1961)

(Court will not investigate harmlessness of denial of right to

counsel at plea to capital offense because “the degree of

prejudice can never be known’’).

App. 64

35

sel to replace Ms. Roundtree. Since, however, Mr. Hut-

ter represented him throughout the trial, obviously the

violation did not negate all of the Sixth Amendment

protection to which he was entitled. Nonetheless, I have

reasonable—indeed, substantial—doubts that it did not

materially affect the evidence and argument presented

on his behalf to the jury. Mr. Hutter performed com-

petently, but the right to effective assistance of counsel

is not the concern here. Appellant’s Sixth Amendment

right was to retain not merely adequate counsel but one

or more exceptional counsel if he could.“ Mr. Hutter

is experienced, but appellant wanted counsel who, like

Ms. Roundtree, was more experienced and additionally

was black--in a word, counsel in whom appellant could

repose complete confidence.’ To say that Mr. Hutter

did well is not to say that had appellant gotten his full

constitutional due the defense might not have been mar-

kedly better.

1% That is, the right to effective assistance of counsel is

distinct from the right to counsel of choice. The fact that one

was not infringed says nothing about the condition of the

other. Gandy v. Alabama, supra note 47, 569 F.2d at 1326.

Contra United States v. Gray, 565 F.2d 881, 887 (5th Cir.

1978). Although the majority purports to agree, Maj. Op. at

note 10, it later emphasizes “that Hutter’s representation of

appellant far exceeded the standard of assistance that is con-

stitutionally required.” Maj. Op. at 24.

107 See Lee v. United States, supra note 50, 98 U.S.App.

D.C. at 274 n.5, 235 F.2d at 221 n.5, quoting Jn re Mandell,

69 F.2d 830, 831 (2d Cir. 1934) (“[t]he relationship between

attorney and client is highly confidential, demanding personal

faith and confidence in order that they may work together

harmoniously”). In Mandell, the Second Circuit held that

even in a civil case where a trustee in bankruptcy has peti-

tioned for appointment of counsel, denial of the trustee’s

choice would be an abuse of discretion in all but the rarest

cases.

- —_eT

on 8 eee

App. 65

36

Many of the raw facts of the case were not in serious

dispute, but the interpretation of the facts definitely

was. Appellant’s office admittedly was a madhouse at

times; the Government’s evidence certainly indicated that

appellant had many more patients than any one physician

should attempt to handle, and that many of them re-

ceived what charitably can be called less than thorough

care.’’* The crucial question was whether this sad state

of affairs was attributable to a well-intentioned en-

deavor to provide medical service to a needy community,”

to malpractice remediable only in a civil suit or by the

medical society or instead to a criminal scheme to peddle

prescriptions for controlled drugs. Who can say with

real assurance that another lawyer **°—more experienced

in the courtroom and more familiar with life in the

ghetto—would not have been able to impeach prosecu-

tion witnesses’ interpretations cf what they saw, to elicit

a more favorable gloss on the facts from appellant’s

own witnesses, or to convince the jury in final argument

20 Tr. 896. The Government’s evidence showed that appel-

lant wrote 2,300 prescriptions for preludin and ritalin during

a four-month period. Tr. 561. A crowd often formed outside

the office. Tr. 189-190. The Government called three phy-

sicians as expert witnesses on the standards of the medical

profession.

108 See, e.g., Tr. 895-897 (testimony that appellant at-

tempted to keep patients from coming back too frequently) ;

id. at 898 (appellant sought aid from police in controlling

conditions at office); id. at 985-986 (appellant once refused

to write prescriptions for armed and threatening man); id.

at 1008 (appellant was upset by chaos in his office but did not

want to stop helping people).

"0The court concedes that Ms. Roundtree was to take

at least an active role in the presentation of appellant’s

defense. Maj. Op. at 22.

App. 66

37

that the Government’s conclusion on the facts was not

the only reasonable explanation?™

On this we are not permitted nor am I willing to

speculate, particularly in the context of a criminal appeal

where the Government’s burden is to establish harm-

lessness beyond a reasonable doubt.** The decision in this

regard, rather, must be guided by Glasser v. United

States,’ in which the trial court, over objection, had

assigned one of Glasser’s two counsel '* to simultaneously

represent a codefendant after one of the codefend

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