United States v. Lawrence Sarsoun , 834 F.2d 1358 ( 1988 )

GORDON, Senior District Judge,

dissenting.

I fully subscribe to the majority’s observation that the execution of a particular form is not necessary in order for one to qualify for the appointment of counsel in a felony case. However, I respectfully disagree with the conclusion that the defendant in the instant case was not so burdened.

The record discloses that Judge Will unequivocally required the defendant to file CJA Form 23 as a condition to the appointment of counsel. Mr. Sarsoun requested the appointment of counsel at the pretrial proceedings and at the onset of trial. The district court insisted that Mr. Sarsoun fill out the CJA Form 23 on at least four occasions. He went to trial, pro se, on nine counts and was convicted on eight of them.

In chronological order the following colloquies took place:

STATUS REPORT CONDUCTED ON MARCH 13, 1985.

DEFENDANT SARSOUN: I can’t pay a lawyer.

THE COURT: Well, you are going to have to establish that on the basis of filling out the form. If you fill out the form and it establishes that you are entitled to representation at the taxpayer’s expense, I’ll order somebody to represent you, but you have to fill out the form first, and it’s subject to the penalties of perjury, as you know_ (emphasis added).

DEFENDANT SARSOUN: Oh, I’d like to have the advice of counsel. I’m not giving up on that issue.

THE COURT: All right, but then you better get a lawyer.

DEFENDANT SARSOUN: I can’t afford a lawyer.

THE COURT: Well, you better prove you can’t afford a lawyer, and I’ll appoint one for you.

DEFENDANT SARSOUN: You want me to submit that form?

THE COURT: The only way you can get me to appoint a lawyer for you is to submit the form, (emphasis added).

DEFENDANT SARSOUN: I’ll submit the form. By what date?

THE COURT: Unless you can establish that you are eligible, I can’t authorize the appointment of counsel for you.

DEFENDANT SARSOUN: Okay.

THE COURT: So you are going to have to get the form submitted.

DEFENDANT SARSOUN: Okay. When can I bring it to you, tomorrow?

THE COURT: Well, no. Ms. Conlon, I know Mr. Coulson was asked previously to take Mr. Sarsoun down to the Defender office and get the form.

DEFENDANT SARSOUN: I was afraid to fill it out, your Honor. I still am.

THE COURT: Well, if you don’t want to fill it out, you can’t get a lawyer. (emphasis added).

(Transcript dated March 13,1985, pages 37, 43, 44)

STATUS REPORT CONDUCTED ON APRIL 25, 1985.

DEFENDANT SARSOUN: Will the Court do its duty and appoint me counsel at any time?

THE COURT: Mr. Sarsoun, I told you you should get counsel all along. I sent you down to the Defender office, and that’s where you get your counsel. I don’t appoint counsel. I send you to the Defender’s office. You fill out the application. You say you wouldn’t fill out an application — (emphasis added).

DEFENDANT SARSOUN: I did.

(Transcript dated April 25, 1985, at pages 4 and 5)

TRIAL, JUNE 3, 1985.

After Mr. Sarsoun informed the court that he was not ready to proceed with the trial because he was without the assistance of counsel, the court stated the following:

THE COURT: I have offered you a defender appointed for you and you refused to sign the necessary statement as to eligibility. You know, I don’t know what else I can do for you. I told you to go to the Defender’s office. You went. They gave you the form, and you refused to fill it out and sign it. Isn’t that right? ... You are not entitled to be represented at the taxpayers’ expense unless you qualify under the Criminal Justice Act, and the Criminal Justice Act says if you are unable to retain your own counsel, in order to establish that you must fill out the necessary form, (emphasis added).

(Transcript dated June 3, 1985, at pages 2 and 3)

The district courts have an affirmative duty to make an appropriate inquiry into the defendant’s financial ability to pay a lawyer. United States v. Martin-Trigona, 684 F.2d 485, 490 (7th Cir.1982). Aside from his efforts to have the defendant fill out CJA Form 23, Judge Will did not make an adequate or independent inquiry into Mr. Sarsoun’s financial status. The majority states that the district court attempted to solicit financial information from Mr. Sarsoun by asking him (on the day of trial) “Was that your income, $26,000 a year or something like that?” I do not believe that that question amounts to an “appropriate inquiry” into the defendant’s financial ability to pay a lawyer.

The right to counsel in a felony case is too important to have it depend on a defendant’s stubborn refusal to file a bureaucratic form when other means of obtaining the same information are available. CJA Form 23 may be a handy tool but, I believe that the district court could have fulfilled its duty to make an appropriate inquiry into the defendant’s financial ability through alternative means.

I also disassociate myself from the majority’s conclusion that “in any event” Mr. Sarsoun was not “a financially worthy prospect for appointed counsel.” The district court did, in fact, belatedly appoint counsel for Mr. Sarsoun, but only after the trial and before sentencing; by that time the defendant had finally acquiesced in the requirement that he had to fill out the special form that had been demanded of him.

In my view, the trial court’s adamant insistence on the submission of a specific form intruded on the defendant’s rightful opportunity to try to qualify for the appointment of counsel at his felony trial.