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decided: September 15, 1980.



Before Adams, Van Dusen and Garth, Circuit Judges.

Author: Van Dusen


This appeal presents the problem arising when

(1) a defendant in a criminal proceeding has insisted on directing two successive court-appointed defense lawyers in legal decisions affecting his defense, threatening to sue them if his untutored legal directions are not followed and his release not secured, with the result that, at a time when the defense witness primarily relied on by defendant has been brought several hundred miles from the Danbury Correctional Institution at defendant's request and all other witnesses are available for the trial, the court decides to relieve such second lawyer;*fn1

(2) during the hearing on the motion to withdraw by the second counsel appointed for defendant by the court, the defendant states that he "fires" the second counsel and will represent himself;

(3) the permissible time for trial under the Speedy Trial Act is about to expire (see 18 U.S.C. § 3161(h)(8)(A)*fn2 ) unless the trial judge grants a continuance on his own motion, and the defendant does not join in an application for a continuance, although his withdrawing counsel suggested this (see note 10 below);

(4) the court appoints competent standby counsel to assist the difficult defendant at the trial;*fn3 and

(5) such defendant has been given more discovery documents than the law requires, as well as having his witnesses ready for the trial, the defendant contends on appeal that the trial judge committed reversible error by (a) not warning him more fully on the importance of counsel*fn4 and (b) proceeding with the trial rather than securing a third defense lawyer, which would have required a further postponement of the trial.

Defendant, Carroll G. McFadden, appeals from his conviction of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841 (1976), and of use of the telephone to distribute the heroin, in violation of 21 U.S.C. § 843 (1976). McFadden asserts that his conviction must be overturned because he was deprived of his Sixth Amendment right to assistance of counsel. He contends that he did not knowingly and intelligently waive his right to counsel at or before the time he told the court ". . . (Mr. Rossetti) is fired because I don't want him" (page 967, below) and that he was prejudiced by having the assistance of standby counsel only at trial. We believe the record justifies the conclusion of the trial judge that he was entitled, in light of all the facts and the policy of the Speedy Trial Act, to proceed with the trial, having made available to the defendant, who had "fired" his second appointed counsel and said he would represent himself (pp. 966-967 below), the standby advice of a competent trial attorney.*fn5


An arrest warrant was issued for Carroll Garwin McFadden by the United States District Court for the Western District of Pennsylvania on February 16, 1979. McFadden was arrested on February 22, 1979, and appeared before a United States Magistrate on the same date at a proceeding recorded on Magistrate's Tape # 1322 (Tape Index 23). At that time the magistrate explained to McFadden the rights of one who has been accused of a crime, read the charges against McFadden and provided a copy of them to him, and explained the penalties provided for the crimes which McFadden had allegedly committed. The magistrate stated:

"Now, as I said, you have the right to be represented by counsel of your own choosing. If you are unable to afford counsel, you can request that counsel be appointed for you at the expense of the Government."

In response, McFadden requested the appointment of counsel on his behalf and executed an affidavit indicating that he was financially unable to retain an attorney. On the same day, the magistrate appointed the Federal Public Defender to represent McFadden, naming Thomas S. White as primary counsel.

An indictment charging that in May 1978 McFadden had violated the narcotics laws (see page 964 above) was filed on March 23, 1979. McFadden was arraigned before the magistrate on March 30, and entered a not guilty plea with his counsel present.*fn6 Shortly afterward, McFadden was returned to the United States Penitentiary at Lewisburg, Pennsylvania.*fn7 On April 17, 1979, White filed a motion to withdraw as counsel for McFadden. White based this motion on "irreconcilable differences" which had arisen during his meetings and correspondence with the defendant. On April 18, the magistrate entered an order allowing White to withdraw and appointing Donald D. Rossetti as counsel for McFadden. Rossetti had never met with McFadden, who was incarcerated in Lewisburg continuously from April to July. Consequently, on May 7, 1979, Rossetti filed a motion seeking to have the defendant immediately transferred to Pittsburgh so that he could consult with counsel and prepare for trial. On May 10, the district court ordered that McFadden be moved from Lewisburg to Pittsburgh on July 1, 1979, two weeks prior to the scheduled trial date. On May 16, Rossetti wrote defendant a letter, attached to this opinion as Appendix A, describing the legal situation confronting McFadden, and outlining the type of evidence which would be helpful in his defense. On June 26, pursuant to a motion by the United States Attorney, the trial was continued from July 16 to July 23.

McFadden was moved to Pittsburgh on July 1 and had his first meeting with Rossetti on July 2. Prior to this time there had been some correspondence between them. Between July 2 and July 18, Rossetti and the defendant had three additional, mostly unproductive meetings. On July 19, four days before trial, Rossetti filed a motion to withdraw as counsel for the defendant. Rossetti stated that his relationship with McFadden had deteriorated to such an extent that it would be impossible for him to represent McFadden effectively or adequately. He noted that McFadden's defense appeared to have merit and that the case held serious consequences for McFadden, and concluded that McFadden was entitled to effective representation which Rossetti could not provide.

On the scheduled trial date, July 23, 1979, Rossetti, McFadden, and Assistant United States Attorney William Webb appeared before the trial judge. The proceeding began with the following remarks:

"THE COURT: Mr. Rossetti, we have your motion to withdraw. Although it contains a good deal of serious matters concerning yourself, there is no reason here for the postponement of trial.

"Counsel has been afforded to this defendant. If he does not wish to take advantage of counsel, that's his fault, and he can go to trial without counsel then. But we are not going to delay trial because of his actions in this regard.

"But if you withdraw as counsel, what is he going to do? Because today-

"MR. ROSSETTI: Well, Your Honor, do you want me to answer that question?

To speak for a moment on his behalf, not as a client of mine but as a defendant in a criminal case, he nonetheless-regardless of problems that he and I had which make it impossible in my view to represent him, regardless of those problems, he is still entitled to the assistance of counsel and the effective assistance of counsel.

"I can no longer render that assistance.

"THE COURT: He has been given the assistance of counsel. If he doesn't want to take advantage of that, we have done what we can. He goes to trial."

App. at 41a-42a. The court then addressed Mr. McFadden as follows:

"THE COURT: Mr. McFadden, you have heard your counsel state that every time he tries to deal with you or help you, you raise all sorts of objections. He can't effectively represent you without your cooperation.

"Today is the day of trial. What are we going to do, and what is the nature of your complaints? Tell us now.

"MR. McFADDEN: Well, the nature of my complaint first is, I haven't really been given a decent counsel.

"THE COURT: You what?

"MR. McFADDEN: I haven't been given a decent counsel. Each counsel I had wanted me to plead guilty, and I say I shouldn't have to plead guilty.

"THE COURT: You are not pleading guilty. You are going to trial.

"MR. McFADDEN: Yes, sir. Yes, sir.

"Every lawyer I have had wants me to plead guilty, and I tell them no and tell them to fight the case, but they don't want to. They want me to plead guilty and they want to tell me I don't have a case, and I know I do.*fn8

"THE COURT: Well, Mr. Rossetti has indicated that he will put up a defense if he will get your cooperation."

App. at 42a-43a. The trial judge asked the defendant to detail his dissatisfaction with his attorney. After hearing the various points raised by McFadden, the judge stated:

"Mr. Rossetti has been doing a lot for you on your behalf, and he now states that you are making it impossible.

"We are going to go to trial today. You are going to go to trial with Mr. Rossetti or without. He doesn't want to represent you because he said that you have made it impossible for him to effectively represent you.

"Now what are you going to do? We are going to trial today. Do you want him to represent you? If not, you can conduct your own trial, and I will order him to be available for any legal advice you may need."

App. at 54a-55a.

In the colloquy between the judge, the defense attorney, and the defendant, the judge indicated that he believed no attorney could get along with McFadden; McFadden accused Rossetti of making false charges against him and the judge of being unfair. Rossetti insisted that under no circumstances could he continue to represent McFadden, inter alia, because the defendant had threatened to sue him if he did not secure his freedom as a result of the trial, but he stated that if another lawyer "was brought in at this point, it might make a big difference" (App. at 69a). Moments later the interchange became more heated:

"MR. McFADDEN: Excuse me, Your Honor. If it please-I'll fire Mr. Rossetti, because Mr. Rossetti has been lying. He is lying, so-

"THE COURT: Mr. Rossetti-

"MR. McFADDEN: I'll fire him.

"THE COURT: Mr. Rossetti is an officer of this Court,-

"MR. McFADDEN: Of the Court, yes, sir.

"THE COURT: -and he has been for years. We know him and we rely on what he says. He would not come here and misrepresent anything.

"MR. McFADDEN: Well, he did, Your Honor. He did, period, and as of now he is fired, because I don't want him-

"THE COURT: All right. Then what are you going to do?

"MR. McFADDEN: All I have is me, and I'm going with that.

"THE COURT: All right. You don't feel, even with that, that you could sit here-


"Why don't you give the man some time, Your Honor?

"THE COURT: How much time?

"MR. ROSSETTI: Perhaps even a few days.

"THE COURT: Where is he going to get counsel that will be ready in two days? That will be worse-

"MR. McFADDEN: Your Honor, I will represent myself.

"THE COURT: I don't even-I think that you have been so obstreperous here and so obstructive that you will cause some kind of disruption in the courtroom.

"MR. McFADDEN: Oh, please, please, please."*fn9

App. at 69a-70a. At this point the prosecutor voiced a suggestion for handling this matter:

"MR. WEBB: Your Honor, if the government may be heard, I think the essence of what Mr. Rossetti is saying is that for him to go to trial today, he would be ineffective because of his relationship with the defendant.

"THE COURT: I recognize that.

"MR. WEBB: That's clearly evidenced by what the defendant is saying.

"The government has a concern that if the case is forced to trial in this posture, that there will be no effective representation by competent counsel.

"Mr. Rossetti has indicated that he does not feel that he can sit with the defendant and act as on-call legal advice for him.

"I think to try the case in this posture, with Mr. Rossetti's-

"THE COURT: This is a nice ploy. It has been pulled on me twice in a month.

"MR. WEBB: Your Honor, my concern is that we not do something here that is totally meaningless and that will come back on appeal.

"I think the defendant has indicated he is ready to go to trial. I would say give him two days or whatever period of time with all the material the government has made available this morning, the Jencks material, to Mr. Rossetti."

App. at 70a-71a. The discussion continued, with the judge focusing on the possibility of intentional delay by the defendant, while Rossetti and McFadden denied any such attempt.*fn10

The judge decided to grant Rossetti's motion to withdraw, to continue the trial for two days while the defendant familiarized himself with the reports of witnesses, and to appoint advisory counsel to be present in the courtroom during the trial.*fn11 During this colloquy, the trial judge told the defendant in open court that his "only salvation was to listen to the advice of lawyers" (94a and note 12):

"You have had two lawyers appointed in a row, and for some reason you just can't get along with them. Whether it is their fault or your fault, I don't know.

"But I can only tell you that your only salvation is to listen to the ...

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