United States v. Leveto ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-26-2008
USA v. Leveto
Precedential or Non-Precedential: Precedential
Docket No. 05-4753
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-4753
___________
UNITED STATES OF AMERICA
v.
DANIEL J. LEVETO,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 01-cr-00006)
District Judge: The Honorable Maurice B. Cohill, Jr.
___________
ARGUED NOVEMBER 1, 2007
BEFORE: RENDELL, WEIS,
and NYGAARD, Circuit Judges.
(Filed : August 26, 2008 )
___________
Victoria B. Eiger, Esq.(Argued)
Dershowitz, Eiger & Adelson, P.C.
220 Fifth Avenue, Suite 300
New York, NY 10001
Counsel for Appellant
John Hinton, III, Esq. (Argued)
Alan Hechtkopf, Esq.
United States Department of Justice Tax Division
P. O. Box 502
Washington, DC 20044
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Daniel Leveto appeals the District Court’s judgment of
conviction for federal income tax fraud following a jury trial.
He asserts a violation of his Sixth Amendment right to counsel,
and he has made numerous challenges to evidentiary decisions
made by the District Court. For the reasons that follow, we will
affirm the judgment of the District Court.
2
I.
Leveto operated a veterinary hospital in Meadville,
Pennsylvania. Internal Revenue Service auditors detected fraud
on Leveto’s returns and they referred the matter to the I.R.S.
Criminal Investigation Division. The I.R.S. initiated an
undercover investigation that began in December of 1994. They
obtained a mail cover, performed a public records check,
conducted surveillance, and tasked an I.R.S. special agent to
work undercover. The record provides the following facts.
Leveto joined an organization known as First American
Research in the 1980's. The group promoted the establishment
of sham offshore trusts for the purpose of evading liability for
federal income taxes. Leveto became a promoter of a book
authored by the founder of the organization, entitled “Tax Free:
How the Super Rich Do It.” He advertised the book in
newspapers, listing his address for those who wished to make
further inquiries. He received hundreds of responses.
In accord with the scheme promoted by the organization,
Leveto “sold” his veterinary business to Center Company, a
sham foreign trust purportedly located in the Turks and Caicos
Islands. Center Company then distributed all of the veterinary
clinic income to another sham foreign trust. This created an
illusion that the veterinary clinic profits were distributed as
foreign source income to foreign beneficiaries, eliminating
federal income tax liability. Leveto and his wife then used debit
cards and other means to spend or repatriate the funds,
obscuring their control and ownership of these monies. In all,
3
Leveto left $408,000 in unpaid taxes between 1991 through
2000.
Leveto promoted and sold the organization’s book to a
confidential informant and to the undercover agent. Leveto also
admitted to these people that he was involved in nothing more
than a “charade or sham.” He admitted that he actually retained
control of all of the gross receipts of the veterinary business, and
that he paid only as much tax as he wanted to pay. Finally, he
told both individuals where he kept a number of documents
relating to the scam.
The I.R.S. undercover agent prepared a 27 page affidavit
explaining Leveto’s tax evasion scheme. The affidavit
accompanied the application for a search warrant, but it was not
incorporated into the application. The search warrant
application did have a general list of items of interest attached
as an exhibit. The agent accompanied a United States attorney
who presented the request for a search warrant to the Magistrate
Judge. The Magistrate Judge sealed the affidavit to protect the
identity of confidential sources and authorized a search warrant
for Leveto’s residence and business. The undercover agent
briefed other I.R.S. agents on the warrant and on the contents of
the affidavit. They conducted the search the next day.
II.
On February 15, 2001, a Grand Jury returned an
indictment against Leveto and others, and an arrest warrant was
issued on December 15, 2001. Leveto fled, evading arrest until
March of 2004.
4
After Leveto’s return to the Western District of
Pennsylvania, the Magistrate Judge appointed counsel for him
and ordered him to be detained. The District Court subsequently
granted appointed counsel’s motion to withdraw due to a
conflict of interest. At that point, Leveto expressed an interest
in pro se representation, but paradoxically indicated to the
District Court “I am in no way waiving my right to counsel.”
On June 7, 2004, the District Court conducted a hearing
to determine Leveto’s intent with regard to representation.1 At
the hearing, the District Court instructed Leveto that he could
not “have one foot in the counsel boat and one foot in the pro se
boat.” Moreover, the District Court noted that it would interpret
any equivocation on the issue of representation by Leveto as a
request for counsel. Leveto was given an opportunity to confer
with stand-by counsel at this hearing.
After consulting counsel, Leveto said: “I have decided to
proceed pro se with [the attorney] as stand-by counsel.” The
District Court then began a colloquy with Leveto, confirming
that: he understood the charges against him and the elements
of each offense; he was aware of the maximum penalty for each
charge; he was cognizant that rules of evidence and rules of
criminal procedure govern the process for trying the case and the
1.
The District Court attempted to conduct a hearing one
week earlier, but continued the proceeding upon discovering that
legal counsel for Leveto was not present. The first hearing was
conducted by Judge Maurice Cohill. The second hearing was
conducted by Judge Sean McLaughlin.
5
admission of evidence; and that he was aware that the judge
could not advise him on the rules.
The District Court found Leveto competent to waive
counsel, but advised: “. . . in my opinion, Mr. Leveto, a trained
lawyer would defend you far better. . . than you could defend
yourself. In my opinion it is extremely unwise of you to try to
represent yourself. . . .” The District Court concluded: “I
strongly urge you to proceed with counsel, but it is your
constitutional right to a knowingly [sic] and voluntary waiver of
counsel.” At the end of this colloquy the District Court asked:
“. . . do you still desire to represent yourself and give up your
right to be represented by a lawyer.” Leveto responded: “I do,
your Honor.” The District Court acknowledged his waiver and
appointed the attorney as stand-by counsel.
Leveto aggressively pursued his defense, filing numerous
motions, including: motions for clarification; motions to
dismiss parts of or all of the charges; a motion to disclose
evidence; and a motion to suppress evidence based upon an
invalid search warrant. Leveto also appealed his detention
order. Finally, Leveto undertook plea negotiations with the
government.
The District Court notified the parties on April 27, 2005
that trial would commence on May 23, 2005. One week before
trial was to begin, Leveto filed a 42 U.S.C. §1983 action against
Judge Cohill, the presiding judge, alleging bias in the handling
of pre-trial motions.
6
On the evening before trial, Leveto mailed from jail a
motion to recuse Judge Cohill, on the ground that the Judge was
now a defendant in a lawsuit filed by Leveto. At the morning
conference before jury selection, the District Court orally denied
the motion, stating that such a maneuver would “open the door
for any defendant any time to file an action against the Judge
personally and then get him to recuse . . . .” Upon this denial,
Leveto next expressed his desire to have a separate hearing on
the matter, before a different judge. The District Court denied
this request, declaring that jury selection would commence as
scheduled. At that point, Leveto stated: “I can’t take part in a
mock trial. This motion that was filed with the Court deserves
more of a discussion than just a denial.”
Moments later, as jury selection was about to commence,
Leveto said at side-bar: “After some new issues had come up,
I had additional due process concerns and I am asking to be
represented by counsel.” The District Court reminded him that
counsel had been appointed early in the process, but that “you
didn’t want to take advantage of it.” The following exchange
then occurred:
Leveto: Well, due to some of the newer
developments, Your Honor, I believe that
I no longer feel comfortable pro se and I
do need to be represented by an attorney.
Judge: Well, this is a bit late to be asking that, so
the motion is denied.
7
During voir dire proceedings, Leveto repeatedly expressed his
desire for an attorney. In each instance, the District Court
denied the request and advised Leveto to consult with stand-by
counsel, who was present throughout all of this time.
As the trial began, the District Court asked Leveto if he
wanted to make an opening statement. He said:
You know, Your Honor, due to the sheer
intimidation of all of this - - I really believed that
I could represent myself, but I seem to be having
difficulties and mental blocks, and I am asking
you again to have an attorney represent me.”
At the close of the government’s case, Leveto asked to make an
opening statement. The District Court granted the request, but
cautioned “There will be no more talk about not having a
lawyer. You waived that clearly in June of 2004.” A discussion
between Leveto and the District Court ensued.
Judge: Under the circumstances of this case, I
can’t imagine stopping now and
appointing [the stand-by counsel] or
anyone else to represent you and prepare to
defend a case like this. You can’t do it.
You can’t operate that way.
Leveto: I’m aware of that, Your Honor. That is,
[sic] why before we started, I reasserted
the right and I filed the action against you
a week before the trial.
8
Finally, later in the trial the following exchange occurred at
side-bar after Leveto raised the counsel issue again:
Leveto: I just was not aware that you couldn’t
relinquish [a waiver of the right to
counsel]. I know that I did it. I am sure
that everyone knows that I did it here.
Judge: But, you can’t relinquish it the day of the
trial. This has been pending for years and
no lawyer could possibly go in and act as
a lawyer the day of the trial in a case like
this without preparation time. And in the
interest of justice, the thing has to move
along.2
2.
The government points to the fact that the case was tried
in Erie, Pennsylvania, but the Judge lived in Pittsburgh,
Pennsylvania and stand-by counsel lived in Butler,
Pennsylvania. Further, the government’s attorneys and
witnesses traveled from Washington, D.C. and other distant
locations. Finally, the venire had been assembled from a
geographic area that is roughly equivalent to one-quarter of the
Commonwealth of Pennsylvania. We take judicial notice of the
fact that both Pittsburgh and Butler are over 100 miles from the
Erie federal courthouse, and that Washington, D.C. is
approximately 370 miles away from the Erie federal courthouse.
9
The counsel issue did not arise in the remainder of the trial. On
June 2, 2005, a jury reached a verdict of guilty on the three
counts brought against Leveto. The District Court entered a
judgment of conviction and sentence on October 14, 2005.
Leveto appeals this judgment.
III.
A.
Leveto claims that his Sixth Amendment rights were
violated when the court denied his request for counsel.3 Our
examination of the record leaves no doubt that Leveto properly
made a conscious and informed choice to waive his Sixth
Amendment right to counsel and to proceed pro se. United
States v. Welty, 674 F.2d 185, 188-89 (3d Cir. 1982); Farreta v.
California, 95 S.Ct. 2525, 2541 (1975). Nonetheless, Leveto
argues that, in spite of the waiver, we and the District Court are
obligated to give his request for counsel deference of the highest
order. See e.g. United States v. Proctor, 166 F.3d 396, 403 (1 st
Cir. 1999); United States v. Pollani, 146 F.3d 269, 273 (5 th Cir.
1998). We do not find any authority to support Leveto’s
position.
In Proctor, the court reversed the district court’s denial
of a defendant’s post-waiver request for counsel, stating
categorically that it is “hard to imagine an explanation for
denial [of a request by a pro se defendant for legal counsel] that
3.
Our jurisdiction over the final judgment of conviction
is found in 28 U.S.C. §1291.
10
would withstand scrutiny.” Yet, the defendant in Proctor made
his request at a motions hearing one month before the start of
trial. Further, the court stated in dicta that the “last minute
timing” of a request could provide a basis for the denial of a
request that would pass constitutional scrutiny. Proctor, 166
F.3d at 403.
In Pollani, the defendant requested counsel only four
days before trial. Reversing the district court’s denial of the
request, the Court of Appeals of the Fifth Circuit reasoned “[the
attorney] could have presented a better defense with three days
of preparation than could Pollani with three months.” Pollani,
146 F.3d at 273. Importantly, however, the Court of Appeals
upheld the district court’s denial of the continuance that first
accompanied Pollani’s request for counsel. It reversed the
district court’s decision regarding counsel mindful of the fact
that Pollani had renewed his motion for counsel after explicitly
stating that he no longer sought a continuance. Id. Delay,
therefore, was not a proper basis for the denial of his motion.
In both cases, as with all of the cases cited by Leveto, the
factual contexts of the requests for counsel are significantly
distinguished from the present case.4 None of the cases cited by
Leveto, nor any other precedent we could find, supports
4.
We also note that, in Pollani, the court’s comments
regarding the ability of counsel to represent the defendant with
very little preparation time is, necessarily, relevant only to the
criminal case at issue.
11
Leveto’s extreme position that a defendant’s post-waiver request
for counsel is to be given virtually unqualified deference.
To the contrary we find wide agreement that, once
waived, the Sixth Amendment right to counsel is no longer
absolute. See e.g. United States v. Solina, 733 F.2d 1208, 1211-
12 (7th Cir.), cert. denied,, 469 U.S. 1039 (1984); Menefield v.
Borg, 881 F.2d 696, 700 (9 th Cir. 1989); Brown v. Wainwright,
665 F.2d 607, 611 (5 th Cir. 1982); United States v. Merchant,
992 F.2d 1091, 1095 (10 th Cir. 1993); United States v. West, 877
F.2d 281, 286 (4 th Cir. 1989). We reaffirm that questions arising
from a defendant’s Sixth Amendment absolute right to
professional legal counsel receive plenary review. See e.g.
United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995).
Yet, once the right has been properly waived, as is the case here,
we are persuaded by the broad consensus of other courts that the
consideration of a defendant’s post-waiver request for counsel
is well within the discretion of the district court. See See e.g.
Solina, 733 F.2d at 1211-12; Menefield 881 F.2d at 700;
Merchant, 992 F.2d 1095, n. 6; West, 877 F.2d at 286.
Moreover, while we have a strong interest in
safeguarding a defendant’s access to professional legal
representation (see Martinez v. Court of Appeal, 528 U.S. 152,
161 (2000) ), other factors necessarily play an important role in
a district court’s deliberation of a post-waiver request for
counsel. Certainly, evidence of a defendant’s dilatory motive is
properly considered as a basis for denial. Moreover, particularly
as the trial date draws nearer, the district court can and should
consider the practical concerns of managing its docket and the
impact that a request may have on its general responsibilities for
12
the prudent administration of justice. See West, 877 F.2d at
286; See also United States v. Criden, 648 F.2d 814, 818 (3d
Cir. 1981). The Court of Appeals of the Seventh Circuit aptly
stated:
A criminal defendant has a constitutional right to
defend himself; and with rights come
responsibilities. If at the last minute he gets cold
feet and wants a lawyer to defend him he runs the
risk that the judge will hold him to his original
decision in order to avoid the disruption of the
court's schedule that a continuance granted on the
very day that trial is scheduled to begin is bound
to cause.
Solina, 733 F.2d at 1211-12.
Indeed, a pro se defendant’s knowing and voluntary
assumption of such risks is at the heart of our requirement of a
thorough colloquy to ensure that a defendant’s waiver of the
right to counsel is explicit, uncoerced and well-informed. Welty,
674 F.2d at 188-89; United States v. Goldberg, 67 F.3d 1092,
1098 (3d Cir. 1995). For all of these reasons, we will not find
a Sixth Amendment violation in a trial court’s denial of a
defendant’s post-waiver request for counsel unless the district
court's good cause determination was clearly erroneous, or the
13
district court made no inquiry into the reason for the defendant's
request. See Goldberg, 67 F.3d at 1098.5
In this case, Leveto argues that he should be granted a
new trial because the District Court did not make any inquiry
into his motion for counsel. Leveto also argues that the District
Court denied his request on the basis of delay, and in doing so
it erred. Further, Leveto maintains that the potential disruption
to the proceedings caused by this last-minute request did not
provide a sufficient basis for the court’s denial of his motion.
We agree that the District Court denied Leveto’s request due to
the timing of the motion and the likelihood for delay, but we
disagree that the District Court’s decision was error.6
5.
We agree with the Court of Appeals of the Ninth Circuit
that a constitutional violation occurs where a trial court’s denial
of a request for counsel is based purely in a punitive notion.
Menefield v. Borg, 881 F.2d 696, 700 (9 th Cir. 1989) (“A trial
court cannot insist that a defendant continue representing
himself out of some punitive notion that the defendant, having
made his bed, should be compelled to lie in it.”). Moreover in
certain circumstances “a rigid insistence on expedition in the
face of a justifiable request for delay can amount to a
constitutional violation.” United States v. Rankin, 779 F.2d 956,
960 (3d Cir.1986). We do not find evidence of either concern
in this case.
6.
The District Court failed to forthrightly state the
rationale for its ruling on the record. Nonetheless, we find that
(continued...)
14
The significance of representation by professional legal
counsel demands that any decision that touches upon the
availability of counsel must be investigated and explained on the
record. Yet, we do not insist upon a formal inquiry or colloquy
where the rationales for the request and decision are clearly
apparent on the record. See United States v. Peppers ,302 F.3d
120, 133 n.12 (3d Cir. 2002). We find here that events just prior
to Leveto’s motion for counsel obviated the need for a formal
6.
(...continued)
the plain meaning of the court’s multiple statements reveal the
underlying reason, and we agree with Leveto that it was that the
timing of the motion and resulting delay. In response to
Leveto’s first request, the District Court stated: “Well, this is a
bit late to be asking that, so the motion is denied.” In response
to Leveto’s renewed request at the close of the government’s
case the District Court said “Under the circumstances of this
case, I can’t imagine stopping now and appointing [the stand-by
counsel] or anyone else to represent you and prepare to defend
a case like this. You can’t do it. You can’t operate that way.”
Finally, when Leveto pressed the issue again a short time later,
the District Court responded “But, you can’t relinquish [your
prior waiver of counsel] the day of the trial. This has been
pending for years and no lawyer could possibly go in and act as
a lawyer the day of the trial in a case like this without
preparation time. And in the interest of justice, the thing has to
move along.” Leveto understood all of these comments to mean
that the timing of his motion and the delay that would result
grounded the District Court’s decision to deny his motion. We
agree.
15
inquiry about the underlying reasons for his request and the
District Court’s decision.
Immediately before Leveto’s morning-of-trial request for
counsel, the District Court considered his motion to recuse,
mailed from prison the night before. Leveto argued that Judge
Cohill had a conflict of interest because he was named as the
defendant in Leveto’s §1983 lawsuit, filed only one week
earlier. The District Court ruled that this motion lacked merit,
and it went further to characterize the motion to recuse as a
thinly veiled tactic to manipulate the proceedings. Leveto
asserted that his motion deserved a separate hearing by a
different judge. Upon hearing that jury selection was going to
commence, Leveto told the court that he refused to participate
in what he characterized as “a mock trial.”
Moments later, when the venire had been seated, Leveto
requested counsel on the basis of “some of the new issues that
had come up” and his “additional due process concerns.” The
District Court had already considered the substance of these
“new issues” and “due process concerns” just minutes earlier
and found them to be little more than last-minute machinations
by the defendant. Moreover, later in the proceedings, Leveto
explained to the District Court that he was overwhelmed by the
task of representing himself. While Leveto’s rationale appeared
to have changed, there is no doubt that the reasons for his
motion were fully expressed.
Generally, we would hold that a reasonable inquiry of a
post-waiver motion for counsel is necessary both to ensure the
integrity of trial proceedings and to aid our review. We find
16
here that a common sense reading of the entire record provides
us with a clear understanding of Leveto’s rationale for his
motion. For this reason, we are satisfied that the District Court
was fully aware of the substance of Leveto’s motion for counsel,
and we find that the District Court did not err by failing to
engage in a formal colloquy specifically focused upon the
underlying rationale for the motion for counsel.
Leveto next argues that the court improperly based its
denial of his motion for counsel upon the issue of delay. We
disagree. Leveto contends that the issue of delay should not
have been considered by the District Court because he never
requested a continuance of the trial. He also argues that stand-
by counsel would have been able to assume his representation
without delay. These arguments are meritless.
In considering a motion, the District Court is always
charged with managing the cases on its docket with a vigilant
concern for the efficient administration of justice. See United
States v. Mellon Bank, N. A., 545 F.2d 869, 873 (3d Cir. 1976). We
cannot, as Leveto advocates, hamstring the discretion of the
district court by limiting its consideration of delay to only those
instances where a continuance is expressly requested. As a
matter of law, a district court does not err by considering sua
sponte the potential delay or disruption that would result from
a change of counsel. Therefore, even if Leveto did not intend to
request a continuance, the District Court did not err in
considering the issue of delay in its decision on his post-waiver
motion for counsel.
17
Moreover, given the timing of Leveto’s motion, we
would expect the District Court to factor delay issues into the
decision on the motion, particularly in a case like this where the
District Court was clearly familiar with the central issues and the
parties of the case, and the scheduling complexities were
obvious. We need not dig deep into the record to understand the
District Court’s immediate assessment that a day of trial motion
for counsel would have necessitated delay, and that such a delay
was onerous. After over one year of pre-trial proceedings, the
trial judge was well aware of the intricacies of this tax case. The
District Court was unquestionably competent to make its own
assessment of the implications and feasibility of an immediate
change in counsel at that point in the proceedings.
Also, as the judge was no doubt aware, the logistics of
scheduling proceedings in this case were unusually complex.
The trial judge was required to travel over 125 miles each way
to reach the courthouse, while managing dockets in both
Pittsburgh and Erie, Pennsylvania. Standby counsel also had a
similar commute. Moreover, the government’s attorneys
traveled from Washington D.C., a journey of over 350 miles
each way. Given that all of these people, with the venire, were
in the courtroom at the time of the motion, and were prepared to
commence trial on a heavily detailed tax fraud issue, we do not
find any error in the District Court’s assessment that Leveto’s
post-waiver motion for counsel would neccesitate a delay, and
18
that such a delay was onerous. Whether or not Leveto actually
requested a delay is, therefore, irrelevant to our conclusion.7
We next turn to the issue of whether the timing of the
request constitutes good cause to deny a post-waiver request for
counsel. We agree with the Court of Appeals of the Seventh
Circuit when it stated the following.
Trial courts are thus faced with a dilemma. On
one hand, a trial judge is hard-pressed to deny the
aid of counsel to a defendant who initially seeks
to represent himself but later declares himself
legally incompetent to proceed any further, and on
the other hand, the last minute grant of a
continuance can cause serious inconvenience to
judge, jury, opposing counsel, witnesses, and
other litigants. (internal quotations and citations omitted.)
United States v. Tolliver, 937 F.2d 1183, 1187 (7 th Cir. 1991);
Moreover, we agree that the last-minute timing of a motion is
generally a proper factor in considering whether to grant the
motion, particularly where, as is the case here, the timing of the
motion is part and parcel with the consideration of whether
disruption would result if the motion was granted. See Solina,
7.
We stress that, as in the case before the Court of
Appeals of the Fifth Circuit, our assessment of whether
substantial evidence supports a finding that a delay would be
necessary to accommodate a post-waiver request for counsel is
fact-intensive. See Pollani, 146 F.3d 269, supra.
19
733 F.2d at 1211-12 (“We are inclined to defer to [the judge’s]
intuition [regarding defendant’s intent to delay on the eve of
trial], but in any event believe that the scheduling problems the
continuances would have caused were in themselves sufficient
ground for refusing to delay the trial.”); Proctor, 166 F.3d at
403 (The “last minute timing” of a request could provide a basis
for the denial of a request that would pass constitutional
scrutiny.); Pollani, 146 F.3d at 273 (The district court would be
justified in denying a continuance attached to a post-waiver
request for counsel because the defendant waited too long to
retain counsel.).
As we have already stated, the District Court was well-
informed about the complexity of the case, and fully capable of
judging the length of delay that would have been necessary for
an attorney to properly assume the representation of Leveto at
trial. Particularly given the distances traveled by the judge,
stand-by counsel and the government’s attorneys who all were
present expecting trial to begin, the disturbance that would have
resulted from a change of counsel at that point was obvious.
Moreover, Leveto never gave any signal to the court that he was
reconsidering the waiver of his right to counsel. Therefore, the
court was unable to proactively minimize disturbance to all
involved in the case. Finally, the case already had been pending
for several years.
20
For all of these reasons we will find that the District
Court did not violate the Sixth Amendment in denying Leveto’s
post-waiver request for counsel.8
B.
Leveto next argued that he was due a new trial because
evidence obtained by the search warrant was improperly
admitted into evidence. His first assertion is that, under the
terms of the Federal Rules of Criminal Procedure, the Code of
Federal Regulations, and a Directive of the Tax Division of the
United States Department of Justice, the I.R.S. agent lacked the
8.
We have held in a somewhat analogous case that a
defendant’s request to proceed pro se was properly regarded as
untimely when it was made after “meaningful trial proceedings”
have begun. Pitts v. Redman, 776 F.Supp. 907, 920-921 (D.C.
Del.1991), aff'd. 970 F.2d 899 (3d Cir.), cert. denied, 506 U.S.
1003 (1992). Though this is often a useful distinction, in this
instance we would be left to parse the precise moment when
such proceedings have begun. That strikes us a useless exercise
here because it ignores the reality faced by the judge in this
particular instance. The “serious inconvenience to judge, jury,
opposing counsel, witnesses, and other litigants” would have
been identical whether the motion came moments before or
moments after the court formally initiated the proceedings.
21
authority to apply for the search warrants at issue here. We do
not find any merit in Leveto’s argument.9
The District Court correctly concluded that the I.R.S.
agent had authority to request a search warrant. I.R.S. agents
are “federal law enforcement officers” because they are
“engaged in enforcing criminal laws” and are “authorized by the
Attorney General” to execute warrants under 28 C.F.R. 60.2(a)
and 26 U.S.C. 7608(b)(2)(A).
Moreover, the District Court correctly found that Tax
Division Directive No. 52 (asserted by Leveto as de-authorizing
I.R.S. agents from applying for search warrants) does not
provide any substantive right to Leveto to challenge the search
warrants. See United States v. Caceres, 440 U.S. 741, 753
(1979). Leveto also failed to provide any evidence that the
procedures outlined in the Directive were violated. We do not
find that the District Court abused its discretion in denying
Leveto’s motion to suppress evidence on this basis.
C.
We also disagree with Leveto that the search warrant at
issue in this case was a general warrant. A warrant is not
general unless it can be said to “vest the executing officer with
9.
We review the denial of a suppression motion for clear
error as to the underlying facts, and exercises plenary review as
to the legality of the denial in the light of properly found facts.
United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006).
22
unbridled discretion to conduct an exploratory rummaging
through [defendant’s] papers in search of criminal evidence.”
United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982).
Key to Leveto’s argument is that the affidavit, which did state
particulars, was not incorporated by reference on the warrants.
The only attachment was a list of the type of documents to be
seized which used generic terms.
The District Court correctly concluded that, to the extent
that the warrant was “generic,” it was merely overbroad. Such
a defect can be cured by an affidavit that is more particularized
than the warrant. Doe v. Groody, 361 F.3d 232, 240 (3d Cir.
2004) (“So long as the actual search is confined to the narrower
scope of the affidavit, courts have sometimes allowed the
unincorporated affidavit to ‘cure’ the warrant.”) Moreover,
barring all else, the good faith exception applies in this case.
The agents conducting the search were aware that there was a
search warrant, and they were briefed on both the search warrant
and the affidavit. United States v. Leon, 468 U.S. 897, 919
(1984). For these reasons we find that the District Court did not
err.
D.
Finally, Leveto claims that the I.R.S. agent acted in bad
faith in seeking the issuance of an administrative summons. The
I.R.S. may validly issue an administrative summons pursuant to
26 U.S.C. 7602, but would act in bad faith if it did so after
making a decision to refer the matter for prosecution by the
Department of Justice. See Pickel v. United States, 746 F.2d
176, 183-84 (3d Cir. 1984). The District Court correctly found
that Leveto did little more than make bald assertions, failing to
23
meet his heavy burden of proving bad faith in the procurement
of the summons. See United States v. Jose, 131 F.3d 1325, 1328
(9 th Cir. 1997) (en banc) (citing LaSalle, 437 U.S. at 317). We
do not find error in the District Court’s ruling.
E.
For all of these reasons, we will affirm the order of
judgment and sentence of the District Court.
24
RENDELL, Circuit Judge, dissenting.
I respectfully dissent from the majority’s view of this
case because the trial judge forced the defendant to proceed to
trial pro se in violation of his Sixth Amendment right to counsel
purely because he had previously waived counsel. This was
improper as a matter of law.
It is undisputed that Daniel Leveto knowingly and
voluntarily waived his right to counsel on June 7, 2004, and that,
at that time, a thorough colloquy was conducted. It is also
undisputed that, as the majority notes, a defendant’s Sixth
Amendment right to have counsel, once waived, is not absolute.
A defendant who has waived the right to counsel, however,
ordinarily may reassert it at any time prior to trial. See
Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) (noting that a
defendant’s decision to represent him- or herself is not “cast in
stone”).
Here, the defendant permissibly sought to reinvoke his
right to counsel and withdraw his waiver prior to trial. The trial
judge would not permit him to do so, and did not inquire as to
his reasons for invoking counsel, or make the findings that we
require in order to justify such a denial–namely that the request
for counsel was an “apparent effort to delay or disrupt
proceedings.” See United States v. Proctor 166 F.3d 396, 402
(1st Cir. 1999); United States v. Merchant, 992 F.2d 1091, 1095
(10th Cir. 1993). Instead, he summarily denied Leveto’s request
for counsel because it was “a bit too late.” App. 312. In so
doing, the trial judge erred and violated Leveto’s
constitutionally protected right to counsel. I believe Leveto is
entitled to a new trial and, therefore, dissent.
I. Standard of review and legal standard
25
As an initial matter, the majority opinion reasons as if we
were reviewing a district court’s denial of a motion to substitute
counsel, applying an abuse of discretion standard. However, our
Court has made clear that “[w]e exercise plenary review over
claims alleging denial of the Sixth Amendment right to
counsel.” United States v. Goldberg, 67 F.3d 1092, 1097
(3d Cir. 1995); United States v. Leggett, 162 F.3d 237, 249
(3d Cir. 1998).10 Thus, our inquiry is to be more searching.
We are guided by the principle that “it is representation
by counsel that is the standard, not the exception.” Martinez v.
Court of Appeal, 528 U.S. 152, 161 (2000); see also Chapman
v. California, 386 U.S. 18, 23 & n.8 (1967) (clarifying that right
to counsel is so fundamental to our adversarial system that its
deprivation can never be held harmless); Fischetti v. Johnson,
384 F.3d 140, 147 (3d Cir. 2004) (noting that, as between the
right to self-representation and the right to counsel, right to
counsel “is the presumptive default position”). We must,
therefore, be “reluctant to deny the practical fulfillment of the
right–even once waived–absent a compelling reason that will
survive constitutional scrutiny.” Menefield, 881 F.2d at 700.
It is established that the denial of a request for counsel,
following a waiver, is only proper “if a defendant seeks counsel
in an apparent effort to delay or disrupt proceedings on the eve
10.
Other courts of appeals have occasionally employed an
abuse of discretion standard. See United States v. West, 877
F.2d 281 (4th Cir. 1989) (equating substitution of counsel with
a request to revoke waiver and using abuse of discretion
standard); United States v. Merchant, 992 F.2d 1091 (10th Cir.
1993) (same).
26
of trial,” Proctor 166 F.3d at 402, or “after meaningful trial
proceedings have begun,” Merchant, 992 F.2d at 1095. The
majority opinion fails to employ this standard.11
II. Leveto’s Request for Counsel and his Sixth
Amendment Right to Counsel
The record shows that the trial judge denied Leveto’s
request for counsel before trial proceedings had begun and
without any indication that the request was an apparent effort to
11.
The majority states that the standard to find a violation
of the Sixth Amendment is that “the district court’s good cause
determination was clearly erroneous, or the district court made
no inquiry into the reason for the defendant’s request.” It seems
to have taken this standard from cases involving requests to
substitute counsel where the defendant continues with unwanted
counsel, such as United States v. Goldberg where we said,
If the district court denies the request to substitute
counsel and the defendant decides to proceed with
unwanted counsel, we will not find a Sixth
Amendment violation unless the district court’s
‘good cause’ determination was clearly erroneous
or the district court made no inquiry into the
reason for the defendant's request to substitute
counsel.
67 F.3d at 1097 (emphasis added). Notably, this standard only
applies where the court denies the request for substitute counsel
and the defendant proceeds with counsel. Here we are
presented with a request to reinvoke the Sixth Amendment right
to counsel where the denial forced the defendant to proceed
without counsel.
27
delay or disrupt proceedings, or indeed that any delay would
result at all.
A. Before “meaningful trial proceedings”
had begun
Neither the government nor the majority contends that
“meaningful trial proceedings” had begun. The majority casts
this portion of the legal standard as a “useless exercise here”
that would require us needlessly to “parse” the proceedings. It
is clear, however, that Leveto attempted to reinvoke his right to
counsel prior to trial and jury selection, before any trial
proceedings, let alone “meaningful” ones. Leveto’s case is
therefore not like cases such as United States v. Tolliver, where
the defendant did not request counsel until the trial was at its
mid-point.12 937 F.2d 1183, 1188-89 (7th Cir. 1991); see also
Merchant, 992 F.2d at 1095 (holding that where the defendant
requested that his standby counsel take over the defense in the
middle of the trial, while a witness was on the stand, and
standby counsel requested a continuance, the trial court could
12
Moreover, Tolliver suggests that when a defendant
seeks to reinvoke the right to counsel, the proper course of
action is to let stand-by counsel step in wherever possible,
even in the middle of trial. In that case, mid-way through the
trial, Tolliver requested new counsel. 937 F.2d at 1186. The
court was inclined to let stand-by counsel step in immediately
until the government argued that he should not be forced to
represent Tolliver because Tolliver had filed an ethics
complaint against him; the court then agreed to continue to
look for new counsel. Id. at 1186.
28
properly deny the motion). The timing of Leveto’s request here
does not support the denial of his request for counsel.
Therefore, the District Court could only deny Leveto’s
request for counsel if it was an “apparent effort to delay or
disrupt proceedings on the eve of trial.”
29
B. “Apparent Effort to Delay or Disrupt
Proceedings on the Eve of Trial”
Although the majority’s opinion could be read as
deciding that Leveto’s request for counsel was an apparent
effort to delay proceedings, reaching this conclusion requires
reading into the record some facts and considerations that
simply are not there. The trial judge did not state that he was
rejecting Leveto’s request out of concern for delay, travel of
attorneys, or any of the other reasons the majority opinion
ascribes to his denial of the request. Instead, he never even
considered the request, but seemed to hold that once counsel is
waived, a defendant cannot change his mind.
The record shows only the trial judge’s continued
insistence that Leveto waived counsel before, had lost the
opportunity to request counsel, and could not change his mind
when the case was going to trial. In response to Leveto’s
request for counsel prior to trial, referring to standby counsel,
the judge said, “we appointed Mr. Misko counsel a long, long
time ago. You have been represented by counsel, but you didn’t
want to take advantage of it.” App. 312 (emphasis added).
When Leveto immediately renewed his request because, he said,
“I believe that I no longer feel comfortable pro se and I do need
to be represented by an attorney,” id., the judge replied, “[w]ell,
this is a bit late to be asking that, so the motion is denied.” Id.(emphasis added). At the beginning of trial, Leveto again said,
“I really believed that I could represent myself, but I seem to be
having difficulties and mental blocks, and I am asking you again
to have an attorney represent me.” App. 320. The judge again
focused on the passage of time: “I’ve already ruled that you
have had back-up counsel for some time and it’s a little late to
be asking for more counsel now.” Id. (emphasis added). Mid-
30
way through trial, the judge demonstrated his misunderstanding
of Leveto’s right to reassert his right to counsel. After
instructing Leveto that, “[t]here will be no more talk about not
having a lawyer. You waived that clearly in June of 2004,” App.
338, he added “you can’t relinquish it [the waiver of counsel]
the day of trial.” App. 358 (emphasis added). There is no
caselaw that supports the trial court’s intransigence in the face
of a defendant’s assertion of the right to counsel.
There is no evidence of a purpose that would justify the
court’s refusal here–namely to delay or disrupt trial. While the
trial court may have understandably viewed the request
skeptically and not have been favorably inclined toward
Leveto–who had sued him–nonetheless, a defendant’s request
not to be forced to proceed through a complex trial representing
himself requires an objective assessment of the situation. From
that perspective, Leveto’s earlier decision that he did not need
counsel was based on his view–shared by all, apparently, at the
time–that the matter would proceed to a negotiated guilty plea.
At the status conference on October 20, 2004, Leveto indicated
that he would be announcing his intentions with regard to a
possible plea after the suppression hearing scheduled for
October 25th. He said, “it’s been no secret, but evidently it’s
got to be official and on the record, I will not go to trial with this
case.” App. 231; App. 233 (“I can tell you unequivocally that I
will not be going to trial.”).
Any delays in the plea negotiations were caused equally,
if not more so, by the government. The government noted that
it had been involved in plea negotiations with Leveto and that,
if they were to reach an agreement on Monday, the trial would
have to be postponed from Tuesday morning because approval
from the Department of Justice, and possibly the United States
31
Attorney, would be necessary. Having said “[i]t doesn’t sound
like we are going to have a trial, as a practical matter,” the judge
postponed the suppression hearing to October 28th in order to
move plea negotiations along and did not set a new trial date.
App. 232, 239. On November 8, 2004, another status
conference took place. The Court then continued the case for
additional plea discussions and requested an answer as to a plea
bargain by November 22nd.
Throughout these proceedings, Leveto continually
indicated his willingness to plead and was most concerned that
the plea be conditional so that he could appeal the denial of his
motion to suppress. Although he initially wanted to plead nolo
contendere, at one point Leveto offered to enter a conditional
guilty plea to all charges, but the government refused to accept
the plea unless he entered into a plea agreement waiving
sentencing rights under Blakely v. Washington, 542 U.S. 296(2004). Plea negotiations ultimately broke down and the case
continued to trial. Leveto had never requested a continuance or
attempted to delay trial in any way; nor was it in his interest to
do so as he was, and had been, incarcerated pending trial.
Moreover, there is no indication that the government was any
less responsible for delays caused by these proceedings. In fact,
the judge seemed to believe just the opposite.13 Leveto had not
13.
At one point, the judge observed, “I don’t understand
why the Government insisted on the – not agreeing to the
conditional plea.” App. 277. He noted that, although the
government had not bargained away anything, it was requiring
concessions from the defendant that he had never seen before.
(continued...)
32
vacillated regarding his need for counsel, as is so often the case
in this type of situation.
In order to justify the denial of a request to reinvoke the
right to counsel, there typically must be a manipulation or
attempt to delay by abuse of the right to counsel. See Proctor,
166 F.3d at 402 (collecting cases). Leveto was not a defendant
who had toyed with his right to counsel, hiring and firing
attorneys or requesting continuances in order to substitute
counsel. Rather, his initial attempts to secure counsel prior to
his waiver were repeatedly thwarted.14 After all of his previous
13.
(...continued)
App. 287-88, 293-94, 295.
14.
When Leveto was first detained, Attorney Ross Prather
was appointed as counsel, but subsequently was granted leave
to withdraw because of a serious conflict of interest. At the
May 24, 2004 hearing on Prather’s motion to withdraw, it was
determined that the regular public defender in Erie also had a
conflict. A third attorney, Patty Ambrose, who was available to
meet with Leveto at that hearing, determined she had a conflict
as well. At the time, Leveto indicated that his first choice was
paid counsel, his second stand by counsel, and his third
proceeding pro se. On June 2, 2004, the judge held another
hearing on counsel and was told that, since the May 24th
hearing, one other lawyer had met with Leveto, but, yet again,
had been determined to have a conflict. Leveto requested
counsel at the hearing, and the judge noted that another CJA
panel lawyer should have been, but was not, present to represent
(continued...)
33
attorneys had proven to have conflicts, Leveto met with Stephen
Misko on June 7, 2004 and determined that he wished to
proceed pro se with Misko as standby counsel. Misko remained
standby counsel throughout all proceedings. The only evidence
of “abuse” of the right to counsel in this case would be that
Leveto first waived his right to proceed pro se and then wanted
to withdraw that waiver after plea negotiations failed.
The majority relies on the civil action filed by Leveto and
his motion to recuse as obstructive conduct. However, they are
not relevant to his right to counsel, as they are not examples of
“the tension caused when a criminal defendant appears to be
manipulating his right to counsel in order to delay his trial.”
Goldberg, 67 F.3d at 1094; Fischetti, 384 F.3d at 145(discussing defendant’s “pattern of uncooperative conduct
through which [he] . . . repeatedly complained about counsel and
sought to delay or derail his second trial”). Indeed, at trial,
when Leveto mentioned the civil action, the District Court
acknowledged that the civil action “[has] got nothing to do with
this case. That’s a separate matter.” App. 341. There is no
indication that Leveto filed the action in bad faith. Rather, he
believed that the judge’s extension of the government’s time to
answer his pretrial motions, after the time for reply had expired,
without requiring the government to show excusable neglect
was a violation of Local Criminal Rule 12.1(c) and Federal Rule
of Criminal Procedure 45(b)(1)(B) and showed the judge’s
partiality toward the government. Though without merit,
Leveto’s § 1983 action and the related recusal motion seem to
14.
(...continued)
him.
34
have been designed to protect his constitutional rights rather
than delay trial.15
Indeed, Leveto had some reason to believe that he was
being unjustly treated. When he filed a previous civil action
challenging the constitutionality of the method of execution of
the search warrant at issue here, the District Court found no
violation of his constitutional rights, Leveto v. Lapina, No. 98-
143, 2000 WL 331902 (W.D. Pa. Feb. 5, 2000). On appeal to
our Court, however, we disagreed and held that the agents had
violated his rights by detaining him for a lengthy period of time
and patting him down during the search. Leveto v. Lapina, 258
F.3d 156 (3d Cir. 2001) (Alito, J., writing for the Court, found
that IRS agents had violated Leveto’s Fourth Amendment rights
but had qualified immunity).
At the time he requested counsel, Leveto clearly found
himself at a loss, representing himself at a trial that he (and
perhaps even the District Court) had not anticipated. Losing the
pretrial motions he thought were dispositive, as well as the
recusal motion, made manifest his need for counsel in order to
mount a defense and make viable legal arguments. It is
reasonable to conclude that, having both sued and
unsuccessfully moved to recuse the trial judge, Leveto believed
that it would be wise to have an attorney represent him.
Although the denial of his recusal motion undoubtedly played
some role in his request for counsel, it did not represent an abuse
15.
In filing the recusal action, Leveto both certified that
the motion was not being made to delay trial and explained that
the motion had not been filed earlier because of his extremely
limited access to a law library.
35
of the right to counsel that justified denial of counsel or would
have caused a delay.
In fact, there is no evidence in the record that the Court
feared a delay, or that granting Leveto’s request for counsel
would have resulted in any delay at all.16 Neither Leveto nor his
16.
The majority suggests that a statement made by
defendant during the course of the trial reflects defendant’s
understanding that the denial of his request prior to any trial
proceedings was necessary to prevent a delay. I disagree. The
statement–“I’m aware of that, Your Honor. That is, why before
it started, I reasserted the right and I filed the action against you
a week before the trial”–was not made on May 23, 2005 at the
time the District Court denied Leveto’s request for counsel.
Rather, it occurred on May 31, 2005 mid-way through trial. At
that time, before Leveto was to present his defense and make an
opening statement, which he had reserved, he referred to a
passage in the government’s trial brief to the effect that “a
defendant who has previously waived the right to counsel may
be allowed to withdraw the waiver and reassert the right.” App.
339. The following ensued:
Court: You never withdrew.
Leveto: I never withdrew what?
Court: You never withdrew your choice of
proceeding pro se.
Leveto: When I told you I wanted to be
represented by a lawyer?
Court: The day of the trial? Or – no.
(continued...)
36
standby counsel made a request for a continuance. Nor can we
assume that one would have been necessary. In the absence of
any record support, we cannot engage in conjecture that
Misko–Leveto’s standby counsel who had followed all the
proceedings and was present–would not have been able to step
in as counsel immediately. In fact, inherent in the role of
standby counsel is that he or she “must be ready to step in if the
accused wishes to terminate his own representation.” United
States v. Bertoli, 994 F.2d 1002, 1018-19 (3d Cir. 1993); see
also Anne Bowen Poulin, The Role of Standby Counsel in
Criminal Cases, 75 N.Y.U. L. Rev. 676, 708-09 (2000). Misko
had been standby counsel for almost a year, participated in
16.
(...continued)
Leveto: There were other extenuating
circumstances, Your Honor.
Court: Well, that’s too bad.
App. 339. The Court then said, “Under the circumstances of
this case, I can’t imagine stopping now and appointing
Mr. Misko or anyone to represent you and prepare to defend a
case like this. You can’t do it. You can’t operate that way.”
App. 341. Leveto’s statement in response does not represent his
agreement that, when the District Court denied his pre-trial
request for counsel more than a week earlier, it was properly
motivated by delay. More correctly construed, it is a simple
acknowledgment that Leveto believed the request to be
appropriate when he first made it, before the trial began, and
accepted that a request made mid-trial would be untimely.
37
pretrial conferences, received discovery, attended the
suppression hearing, and arranged his schedule to be present at
trial and available should Leveto require assistance in his
defense.
Even if Misko had indicated he was unprepared and
needed a continuance, the Court could have properly denied the
request for a continuance and given Leveto the choice between
proceeding pro se or proceeding with Misko, even though he
was unprepared.
United States v. Pollani is instructive. 146 F.3d 269 (5th
Cir. 1998).17 In that particular case, the defendant had hired two
lawyers while also filing many pro se motions, including one
requesting that his lawyer be held in contempt. Id. at 270. He
indicated he wanted to proceed pro se but would be retaining
new counsel and was warned that he should do so immediately
because the trial would not be continued. Id. He continued pro
se, but, four days prior to trial, his new lawyer (Mr. Snow)
requested he be substituted as counsel and granted a continuance
to prepare for trial in a case with which he was unfamiliar. Id.
at 271. The court denied the request for a continuance and then
precluded Snow from representing Pollani because Pollani “had
made a ‘knowing decision’ to represent himself, and an
eleventh-hour substitution of counsel would not be permitted”;
the lawyer was appointed standby counsel instead. Id. The
17.
See also United States v. Taylor, 933 F.2d 307, 313 n.4
(5th Cir. 1991) (discussing Leveto’s precise factual scenario
here in hypothetical form and concluding that it would “[t]here
can be no question that the defendant in such a case has been
deprived of his right to counsel”).
38
Court of Appeals for the Fifth Circuit reversed and ordered a
new trial. It reasoned that, although the trial court did not abuse
its discretion by denying defendant’s request for a continuance,
it had violated his right to counsel by refusing to allow the
attorney, whom he had retained and who was available, to
represent defendant at trial. While recognizing that “[i]t is true
enough that Pollani was vigorously attempting to delay the start
of the trial,” the Court reasoned:
This case is unlike other cases in which the
district court declined to allow substitution of
retained counsel for appointed counsel at the last
minute, when to do so would require a
continuance and delay the start of trial. See
United States v. Silva, 611 F.2d 78, 79 (5th Cir.
1980). This case is also unlike cases in which the
district court denied a continuance that would be
necessary for a defendant to be represented by
particular counsel of his choice who was retained
at the last minute. See, e.g., Neal v. Texas, 870
F.2d 312, 315 (5th Cir. 1989). Those cases were
decided on the basis of an appropriate denial of a
continuance. They are distinguishable because in
those cases the defendant was only deprived of
exercising the right to counsel in a particular way
which would unjustifiably delay the trial process.
Had Pollani been seeking appointed counsel four
days before the trial was to begin, the district
court could have denied the request-there was not
enough time to appoint counsel at that late date.
Had Pollani been seeking a delay because his
retained counsel had a conflict, the district court
39
could deny the request-Pollani waited too long to
appoint counsel, and he would have known the
trial date when he hired his lawyer. As we have
already explained, the district court in this case
was entirely justified in denying a continuance in
light of Pollani’s purpose of delay and the explicit
warning that a continuance would not be granted
in the event that Pollani waited too long to retain
counsel.
The justifications for proceeding on schedule do
not, however, justify the district court’s refusal to
allow Snow to participate. This case is different
because Pollani had arranged to be represented by
counsel instead of representing himself, and no
delay was required for Pollani to exercise his right
to do that. . . . The Constitution protects Pollani’s
right to counsel under these circumstances, and
the district court erred in disallowing Snow to
represent Pollani at trial.
Id. at 273-74. Like the defendant in Pollani, Leveto was
deprived of his Sixth Amendment counsel when the District
Court denied his request to proceed with counsel.
40
III. The District Court erred in failing to develop the
record as to the defendant’s attempted revocation of
waiver
The District Court committed reversible error by failing
to address the proper considerations in connection with Leveto’s
request. The judge did not develop the record or inquire of
Leveto in an attempt to respect his Sixth Amendment right. Nor
did he balance Leveto’s right to counsel against the court’s
interest in proceeding. Importantly, Leveto did not request
substitute counsel; rather, he asserted his right to counsel. See
Buhl v. Cooksey, 233 F.3d 783, 798 (3d Cir. 2000) (making
clear that a defendant seeking to dismiss counsel and proceed
pro se is not moving to substitute counsel).
When prior to jury selection a defendant asks to fire
counsel and proceed pro se, rather than substitute counsel, we
require the trial court to safeguard the Sixth Amendment
through an extensive inquiry to make certain the defendant
understands the ramifications and also to “determin[e] if the
request is merely an attempt to delay and derail proceedings, as
opposed to a genuine attempt . . . to conduct one’s own
defense.” Id. If we are so careful when permitting a defendant
to proceed pro se, must we not be equally careful–or perhaps
more so–when the defendant realizes he is not capable of
proceeding pro se? Given that representation by counsel is the
constitutional default position, such an inquiry is no less
necessary when a defendant seeks to revoke his waiver and
proceed with counsel. See Brown v. Wainwright, 665 F.2d 607,
611 (5th Cir. 1982) (en banc) (“Since the right of self-
representation is waived more easily than the right to counsel at
the outset, before assertion, it is reasonable to conclude it is
more easily waived at a later point, after assertion.”). The
41
majority appears to concede this point, noting that “[t]he
significance of representation by professional legal counsel
demands that any decision that touches upon the availability of
counsel must be investigated and explained on the record” –
precisely what the District Court failed to do here.
United States v. Proctor, 166 F.3d 396 (1st Cir. 1999),
strongly supports this view. In Proctor, the defendant had
engaged in highly relevant manipulative conduct, hiring and
firing two lawyers while accusing them of various offenses
against him, then proceeding pro se with standby counsel, and
ultimately requesting counsel in the middle of an evidentiary
hearing. Yet, the court of appeals held that the trial judge could
not reject the defendant’s request for counsel without express
findings. The court reasoned:
While Proctor’s earlier rejection of two attorneys
and the timing of his most recent flip-flop over
representation may have afforded some grounds
for suspicion that he was seeking to manipulate
the trial process to suit his own interests, these
factors alone-without judicial inquiry eliciting
further evidence and express findings on the issue
of bad faith manipulation-were insufficiently
compelling to permit a court to reject out of hand
any new request for counsel. Here, the record
suggests a defendant who, despite earlier
confidence that he could represent himself better
than his appointed attorneys, recognized the value
of counsel once confronted with the inadequacy
of his own legal skills in the face of actual
courtroom problems.
42
Id. at 403. As in Proctor, the trial judge here failed to do what
was necessary to safeguard the defendant’s right to counsel.
Furthermore, even where a defendant does not assert his
Sixth Amendment right to counsel but merely moves for a
continuance to retain substitute counsel on the eve of trial, “we
require district courts to inquire as to the reason for the request.”
Goldberg, 67 F.3d at 1097 (reversing although the judge had
made an explicit finding that the defendant was using his right
to counsel to manipulate and delay his trial). A trial court’s
authority to deny such requests is carefully circumscribed. They
may only be denied if shown to be made in bad faith, for
purposes of delay, or to subvert judicial proceedings. United
States v. Romano, 849 F.2d 812, 819 (3d Cir. 1988); but see
United States v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986)
(observing that “a rigid insistence on expedition in the face of a
justifiable request for delay can amount to a constitutional
violation”). Such cases typically have lower stakes than those
here, as the constitutional calculus there involves a defendant’s
right to counsel of his choice, rather than the right to counsel.18
Nonetheless, where, because the court denies the request to
substitute counsel, the defendant proceeds represented by
counsel not of his or her choice, we will find a Sixth
Amendment violation if there is no inquiry on the record.
Goldberg, 67 F.3d at 1097. As we have said, “even well-
18.
Sometimes this amounts to proceeding with counsel of
his or her choice who is unprepared, prepared counsel who is
unwanted, or pro se; in other situations, it involves a choice
between constitutionally adequate counsel who he or she seeks
to replace, and proceeding pro se.
43
founded suspicions of intentional delay and manipulative tactics
can provide no substitute for the inquiries necessary to protect
a defendant’s constitutional rights.” United States v. Welty, 674
F.2d 185, 189 (3d Cir. 1982).19
The trial judge erred by failing to conduct any inquiry of
the defendant or to develop the record as to his request. While
the majority reasons through the judge’s ruling, the judge did
not do so. Instead, he concluded summarily that it was too late.
He did not question the sincerity of Leveto’s feelings of
inadequacy or his need or desire to be represented. While trial
judges should, of course, be permitted to make judgments as to
the conduct of proceedings before them and should be free to
exercise discretion in so doing, when the right to counsel in a
complicated criminal trial is implicated, the determination by the
court must be correct as a matter of law, and there must be an
in-depth exploration of the desire and need for counsel–as is
done when permitting a waiver at the outset–giving due
consideration to the ramifications for the individual on trial. See
Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir. 1987) (“Where the two
rights [to self-representation and to counsel] are in collision, the
nature of the two rights makes it reasonable to favor the right to
19.
The majority nonetheless contends that “we do not
insist upon a formal inquiry or colloquy where the rationales for
the request and decision are clearly apparent on the record,”
citing only United States v. Peppers, 302 F.3d 120, n.12 (3d Cir.
2002), as support. However, this footnote does not do away
with our longstanding requirement of inquiry; it merely
summarizes our decision in United States v. Salemo, 61 F.3d
214 (3d Cir. 1995).
44
counsel which, if denied, leaves the average defendant
helpless.”). The consistent theme of our jurisprudence in this
area is that a defendant should not be forced to proceed to trial
without counsel. Here, I believe that occurred.
Accordingly, I dissent from the majority’s view. I would
vacate Leveto’s conviction and remand for a new trial with
counsel.
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45