United States v. Frankel ( 2009 )

06-1752-cr
USA v. Frankel
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2009
Remanded by Supreme Court: October 5, 2009 Decided:December 21, 2009)
Docket No. 06-1752-cr
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UNITED STATES OF AMERICA,
Appellee,
v.
MARTIN FRANKEL,
Defendant-Appellant.
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Before: NEWMAN, WINTER, CABRANES, Circuit Judges.
On remand from the Supreme Court for further consideration in
light of the position asserted by the Solicitor General in her brief
for the United States filed August 4, 2009. See Frankel v. United
States, 130 S. Ct. 72 (2009) (mem.)
Order of February 6, 2008, dismissing appeal vacated, appeal
reinstated, and counsel for appellant reappointed; order of November
9, 2009, confirmed.
Martin Frankel, pro se, Big Spring, Texas.
John H. Durham, Asst. U.S. Atty., New
Haven, Conn., for Appellee.
PER CURIAM:
This criminal appeal is before us on remand from the Supreme
Court. See Frankel v. United States, 130 S. Ct. 72 (2009) (mem.). We
previously issued an order in light of the remand, see United States
v. Frankel, No. 06-1752 (Nov. 4, 2009), and now confirm that order and
slightly amplify our reasons in this opinion. We ruled that because
our prior order relieving appointed counsel as a sanction for the
appellant’s misconduct was not preceded by notice to the appellant and
an opportunity to respond, the ensuing order dismissing his appeal for
failure to file a timely pro se brief had to be vacated, and, in the
circumstances of this case, we reinstated the appeal and reappointed
prior counsel.
Background
The appellant, Martin Frankel, was convicted in December 2004 in
the District Court for the District of Connecticut (Ellen Bree Burns,
District Judge) on his plea of guilty to wire fraud offenses and
sentenced to 200 months’ imprisonment. The sentence was confirmed in
March 2006 after a remand pursuant to United States v. Crosby, 397
F.3d 103 (2d Cir. 2005). After two attorneys had been appointed
pursuant to the Criminal Justice Act (“CJA”) and been relieved at
Frankel’s request, a third CJA attorney, Marsha R. Taubenhaus, was
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appointed. Thereafter it came to this Court’s attention that Frankel
had filed scandalous allegations against one of his prior CJA
attorneys. For that reason, this Court concluded that Frankel had
forfeited his right to a third CJA attorney. Accordingly, on February
6, 2008, we entered an order vacating the appointment of Atty.
Taubenhaus and giving Frankel 30 days to file a pro se brief. Instead
of filing a timely pro se brief, Frankel filed various motions. On
March 27, 2008, we dismissed the appeal for failure to file a timely
pro se brief and denied the pending motions as moot.
Frankel petitioned the Supreme Court for a writ of certiorari.
On October 14, 2009, the Supreme Court granted the petition, vacated
our dismissal order, and remanded the cause “for further consideration
in light of the position asserted by the Solicitor General in her
brief for the United States filed August 4, 2009.” Frankel v. United
States, 130 S. Ct. 72 (2009). That brief pointed out the well-settled
rule that an indigent defendant has a right to have counsel appointed
on appeal, see Frankel v. United States, No. 08-10150, U.S. Sup. Ct.,
Br. for the United States, 2009 WL 3236337, Aug. 4, 2009, at *13
(citing Halbert v. Michigan, 545 U.S. 605, 610 (2005); Douglas v.
California, 372 U.S. 353 (1963)), and argued that this right could be
waived only by knowing and intentional conduct, see id. (citing
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Halbert, 545 U.S. at 624), and that Frankel had not waived his right,1
see id. at *14. The Solicitor General did not explicitly consider
whether the right to a third appointed counsel could be forfeited by
an appellant’s misconduct directed against a prior appointed counsel.
However, she added:
Appellate courts must have latitude to address problems that
arise when obstreperous defendants create insuperable
obstacles to representation by appointed counsel.
Accordingly, it should be open to the court of appeals to
reinstate its orders after giving [Frankel] notice and an
opportunity to be heard, provided that an adequate legal and
factual foundation supports that action.
Id. at *19.
On November 4, 2009, we entered the order that is the precursor
of this opinion. We stated that we had reconsidered the case as
directed, vacated our dismissal order, reappointed Atty. Taubenhaus,
and directed her to obtain any needed transcripts and file her brief
60 days after obtaining such transcripts. We also cautioned Frankel
that, if he subsequently prefers not to have Atty. Taubenhaus, his
1
The Solicitor General’s brief noted that our February 6, 2008,
order relieving Frankel’s third CJA counsel appeared to rest on
Frankel’s conduct in causing the removal of his two previous CJA
attorneys and making scandalous allegations against one of them, and
then stated, “Neither of those reasons amounts to a knowing and
intelligent waiver of counsel or otherwise seems sufficient to deprive
petitioner of counsel.” Br. for the United States, 2009 WL 3236337, at
*14.
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third CJA attorney, represent him, he will be required to proceed pro
se and that the submission of scandalous material will risk the
imposition of sanctions, which may include dismissal of the appeal.
We also advised Frankel that as long as Atty. Taubenhaus represented
him, this Court would not accept for filing any pro se papers.
Discussion
Although we need not make any definitive ruling on the point, we
have substantial doubts about the Solicitor General’s view that an
indigent’s right to appointed counsel may be lost only by a knowing
and intentional waiver; an indigent’s filing of scandalous allegations
against a previous CJA counsel may well be deemed a forfeiture of the
right to a new CJA counsel, especially after an indigent appellant has
precipitated the removal of two previous CJA attorneys. Indeed, the
Solicitor General recognized that appellate courts must have the means
to deal with obstreperous indigent appellants, provided notice and an
opportunity to respond is furnished. In this case, however, our
February 6, 2008, order vacating the appointment of Atty. Taubenhaus
because of Frankel’s misconduct constituted a sanction, and should
have been preceded by notice to Frankel and an opportunity to respond.
See In re 60 East 80th St. Equities, Inc., 218 F.3d 109, 117 (2d Cir.
2000) (“[D]ue process requires that courts provide notice and
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opportunity to be heard before imposing any kind of sanctions.”)
(emphasis in original) (internal quotation marks omitted); Sakon v.
Andreo, 119 F.3d 109, 114 (2d Cir. 1997) (same). Our subsequent order
of March 27, 2008, dismissing the appeal for failure to file a timely
pro se brief, was undermined by the improper order vacating the
appointment of counsel, which lacked prior notice. For that reason,
we vacated the dismissal order and issued the November 4, 2009, order
described above.
We now confirm all provisions of the November 4, 2009, order.
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