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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

: CRIMINAL NO. 4:04-CR-10

v. :

: (Judge McClure)

CHRISTOPHER P. DeSIVO :

O R D E R

January 19, 2006

BACKGROUND:

On August 26, 2005, a jury in the Middle District of Pennsylvania found

DeSivo guilty of four counts related to a methamphetamine conspiracy, possession

of a firearm, witness tampering, and obstruction of justice.

Shortly after the trial, in early September 2005, DeSivo wrote a letter to the

court requesting an extension of time for post trial motions and requesting that the

court ask his court-appointed counsel to resume work on his case or appoint

another attorney. (Letter, Rec. Doc. No. 151.) On October 17, 2005, DeSivo filed

a motion to dismiss his court-appointed counsel. On October 21, 2005, an in

camera hearing was held with both DeSivo and his court-appointed counsel in

attendance. The court and parties discussed at the hearing the timeliness of any

post-trial motions and the status of the relationship between DeSivo and his

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attorney. At the hearing it was determined that DeSivo sought post-trial motions

involving newly discovered evidence and that the relationship with his attorney was

not irretrievably broken. During the hearing DeSivo withdrew his motion to dismiss

his court-appointed attorney and the court granted a continuance of sentencing to

permit defendant and defense counsel to develop a motion based on newly

discovered evidence. Sentencing is now scheduled for February 8, 2006.

Now before the court is DeSivo’s most recent motion to dismiss courtappointed counsel filed on January 9, 2006. Upon receipt of DeSivo’s motion we

directed his court-appointed counsel to file a response so that the court could

determine the necessity of a hearing on the matter. On January 17, 2006, DeSivo’s

court-appointed counsel filed his response. For the following reasons we will

deny DeSivo’s motion to dismiss his court-appointed counsel. No hearing is

necessary. 

DISCUSSION:

I. Factors to Consider in Evaluating a Request for Substitution of Counsel

Generally, the decision to delay proceedings in order to grant a defendant’s

request to substitute counsel is within the district court’s discretion. See United

States v. Welty, 674 F.2d 185, 190 (3d Cir. 1985). In Welty the United States

Court of Appeals for the Third Circuit held that when a defendant seeks new

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 Recently, the United States Court of Appeals has held that a full-blown

Welty inquiry was not necessary in response to defendant’s request for new

sentencing counsel where the district court was aware of the reasons for

defendant’s dissatisfaction from the contents of defendant’s letter to the court. 

United States v. Domian, 92 F. App’x 913, 919-20 (3d Cir. 2004). 

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 Under the second inquiry, if the court determines that the defendant is not

entitled to a continuance then defendant must determine whether he would like to

proceed pro se or to continue with existing counsel. Id. Since the decision to

proceed pro se involves a waiver of defendant’s Sixth Amendment rights the court

must ensure that the decision by a defendant to represent himself is intelligently and

competently made. Id.

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counsel on the eve of trial, or in the alternative, opts to represent himself, the

district court must make two inquiries. Id. at 187. First, the court must determine

if the reasons for the defendant’s request constitute “good cause” and warrant

delaying the proceedings to allow for the substitution of new counsel. Id.1 The

second inquiry is not at issue here because DeSivo has not requested that he

proceed pro se.

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Under the first inquiry, “good cause” is considered a conflict of interest, a

complete breakdown of communication, or an irreconcilable conflict with the

attorney. United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995) (citing

Welty, 674 F.2d at 188; McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987)). 

Other factors the district court should consider in determining whether the

defendant has established “good cause” are the “efficient administration of justice;

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the accused’s rights, including the opportunity to prepare a defense; and the rights

of other defendants awaiting trial who may be prejudiced by a continuance.” Id.

(citing United States v. Kikumura, 947 F.2d 72, 78 (3d Cir. 1991)). It is within a

district court’s “discretion to deny a request for a continuance if made in bad faith,

for purposes of delay or to subvert judicial proceedings.” Id. (citing United States

v. Romano, 849 F.2d 812, 819 (3d Cir. 1988). Finally, a defendant’s inability to

get along with his counsel at sentencing is not “good cause” warranting substitution

of counsel. United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir. 1999).

II. The Merits of DeSivo’s Request

In DeSivo’s most recent motion to dismiss his court-appointed counsel he

again asserts that counsel failed to timely file post-trial motions, he indicates that

counsel has been nonresponsive to attempts to contact him via phone and letter,

and also that counsel was ineffective in pre-trial and trial issues. DeSivo also notes

that the court “cannot expect current counsel to argue his ineffectiveness before

this court.” (Rec. Doc. No. 190, at 2, ¶ 10.)

Counsel’s response to DeSivo’s motion indicates (1) that at the previous in

camera hearing on the earlier motion to dismiss counsel DeSivo indicated the posttrial motions he desired counsel to file were based on newly discovered evidence;

(2) that after the hearing counsel met with DeSivo who stated he was “working on”

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obtaining said evidence and counsel agreed to obtain transcripts for DeSivo and

forward them to him at the Clinton County Jail; (3) that as of the date of his

response DeSivo had not provided counsel with any newly discovered evidence

nor had he requested counsel’s assistance in obtaining said evidence; (4) that

counsel recalled a phone message from an individual requesting on behalf of

DeSivo certain trial transcripts, but counsel had already forwarded the transcripts to

DeSivo; and (5) that defendant is correct that counsel cannot argue his

ineffectiveness before this court. In closing, counsel states that “[i]t appears that at

this point the attorney-client relationship has been irreparably damaged and the

undersigned ought to be permitted to withdraw his appearance so that new counsel

can be appointed to represent Mr. DeSivo to pursue the aforementioned claims.” 

(Rec. Doc. No. 192, at 4.)

First, we note that any claims of ineffective assistance of counsel that DeSivo

wishes to assert regarding court-appointed counsel’s representation can be

entertained in a collateral proceeding pursuant to 28 U.S.C. § 2255 and are not

normally entertained on direct appeal. See United States v. Davies, 394 F.3d 182,

188 n.5 (3d Cir. 2005).

Second, this court has already held a hearing on the matter of substituting

DeSivo’s court-appointed attorney. At that hearing DeSivo believed he was out of

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time to file certain post-trial motions based on newly discovered evidence and

alleged that his attorney’s delay caused him to go without filing said motions. We

reiterate, as we indicated in our October hearing, that pursuant to Fed. R. Crim. P.

33(b)(1), DeSivo has three (3) years to file a motion for a new trial based on newly

discovered evidence. Furthermore, as defense counsel has indicated, counsel

cannot file a motion for a new trial without being provided the newly discovered

evidence. In light of our previous hearing and court-appointed counsel’s response

to DeSivo’s argument that counsel has failed to file post-trial motions (motions that

are not yet out of time and require obtaining new evidence), the failure to file said

post-trial motions does not support his request for the substitution of counsel. See

Goldberg, 67 F.3d at 1098 (affirming district court’s conclusion that attorney’s

failure to file meritless motions did not constitute “good cause” under Welty

inquiry).

Finally, although DeSivo indicates he has had a difficult time communicating

with court-appointed counsel regarding the instant motions and counsel asserts he

“ought to be permitted to withdraw his appearance,” we find that the attorney-client

relationship is not irreparably broken. At our prior hearing on the matter it was

clear that although there may be a difference of opinion in legal strategy, counsel

and defendant can work together. Counsel has indicated to the court several steps

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he has taken regarding DeSivo’s interest in obtaining newly discovered evidence

including visiting DeSivo in jail and obtaining trial transcripts DeSivo requested. As

we have already noted, counsel is not expected to argue his own ineffectiveness

before this court. DeSivo can raise any ineffective assistance claims in collateral

proceedings, the preferred venue for such claims. Additionally, DeSivo can file a

motion for a new trial based on newly discovered evidence at any time within three

years after the verdict. Fed. R. Crim P. 33(b)(1).

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. DeSivo’s motion to “dismiss court appointed counsel for failure to file

motions and respond to defendants (sic) numerous requests and attempts to make

contact” is denied. (Rec. Doc. No. 190.)

2. Sentencing in this matter remains scheduled for February 8, 2006 at

9:30 a.m.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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