# Petition — Burton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1069

## Text

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 thin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1816%3A1. Public record. Not legal advice.