1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-1995

United States v Goldberg

Precedential or Non-Precedential:

Docket 94-7565

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Recommended Citation

"United States v Goldberg" (1995). 1995 Decisions. Paper 267.

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1 

 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 94-7565 

_______________ 

UNITED STATES OF AMERICA 

v. 

RONALD J. GOLDBERG, 

 Appellant

______________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Criminal No. 94-cr-00039) 

_______________ 

Argued August 22, 1995 

Before: GREENBERG, COWEN and SAROKIN, Circuit Judges

(Filed October 16, l995) 

_______________ 

Thomas Colas Carroll (ARGUED) 

Carroll & Cedrone 

Suite 750 Curtis Center 

Independence Square West 

Philadelphia, PA 19105 

 COUNSEL FOR APPELLANT 

Frederick E. Martin (ARGUED) 

David M. Barasch 

Office of United States Attorney 

240 West Third Street 

P. O. Box 548 

Williamsport, PA 17703-0548 

 COUNSEL FOR APPELLEE 

_______________

OPINION OF THE COURT
2 

_______________

COWEN, Circuit Judge. 

 We once again confront the tension caused when a 

criminal defendant appears to be manipulating his right to 

counsel in order to delay his trial. After relieving Ronald 

Goldberg's court-appointed attorney, the district court refused 

his request for a continuance in order to retain private counsel. 

This forced Goldberg to stand trial without the assistance of 

counsel. The district court concluded that by his manipulative 

conduct, Goldberg had "waived" or, more properly, "forfeited" his 

Sixth Amendment right to counsel. 

 The question before us is whether the district court 

deprived the defendant of his Sixth Amendment right to counsel. 

We conclude that, although there are circumstances in which the 

dilatory tactics of a defendant can amount to a forfeiture of his 

right to counsel, the record here is insufficient to support such 

a forfeiture. We further hold that the district court's failure 

to warn the defendant of the risks of self-representation 

precludes us from finding a valid "waiver by conduct." We 

therefore will reverse the judgment of conviction and remand the 

case to the district court for a new trial. 

I.

 Goldberg was serving a sentence at Lewisburg 

Penitentiary for a previous conviction. While serving that 

sentence he forged the signature of a magistrate-judge on a 
3 

document that purported to allow Goldberg unrestricted access to 

the prison's law library. Prison officials investigated the 

authenticity of the document and discovered the forgery. 

Goldberg was indicted for forging the signature of a judicial 

officer in violation of 18 U.S.C. § 505, and for making a 

materially false statement to a federal agency in violation of 18 

U.S.C. § 1001. 

 Exactly how Goldberg came to be represented by courtappointed counsel is somewhat unclear. At some point Goldberg 

was provided with a questionnaire concerning his financial 

ability to retain counsel. It appears that the questionnaire was 

never completed. Prior to his arraignment on the indictment, 

however, Bradley Lunsford was assigned to represent Goldberg 

through the Federal Defender's Office pursuant to the practice in 

the Middle District of Pennsylvania of providing prisoners with a 

court-appointed attorney. The district court informed the 

parties that jury selection would commence on May 31, 1994. 

 Between these dates, Lunsford filed several motions on 

Goldberg's behalf. He also attempted to visit Goldberg in 

prison. On that occasion Goldberg refused to see Lunsford after 

making him wait over two hours. As a result they were unable to 

confer in person, although Lunsford and Goldberg thereafter did 

communicate by mail and telephone on several occasions. 

 On May 27, 1994, Goldberg filed on his own behalf a 

motion seeking a continuance in order to obtain new counsel or, 

in the alternative, to proceed "In Propia Persona" (sic). He 

also gave notice of his intention to pursue an insanity defense. 
4 

In support of his request to remove Lunsford, Goldberg alleged 

that Lunsford: (1) disagreed with him on how to conduct the 

defense; (2) was not well versed in federal criminal procedure; 

(3) showed no interest in his case; and (4) had not met with him 

to discuss the case and failed to file motions that Goldberg 

demanded be filed. 

 The district court on that day entered an order denying 

the request to pursue an insanity defense as untimely under Fed. 

R. Crim. P. 12.2. The court deferred consideration of Goldberg's 

request for a continuance, but noted that Goldberg's motion 

papers had failed to demonstrate good cause warranting a 

continuance. The district court nevertheless advised Goldberg 

that he would be given an opportunity to state on the record his 

reasons for believing that Lunsford's performance was inadequate. 

If persuaded, the district court advised that it would relieve 

Lunsford, appoint new counsel, and reconsider whether to grant a 

continuance. Alternatively, if the district court was not 

satisfied that Lunsford should be relieved, it would deny 

Goldberg's motion and require him to choose between going to 

trial with Lunsford or proceeding pro se. 

 Immediately prior to the commencement of jury selection 

on May 31, 1994, the district court conducted an inquiry into 

Goldberg's allegations concerning Lunsford. After hearing from 

both Goldberg and Lunsford, it concluded that Lunsford was 

providing adequate representation. Given the choice of 

continuing to be represented by Lunsford or proceeding pro se, 
5 

Goldberg chose to remain with Lunsford.1 At this point, however, 

Goldberg revealed for the first time that he had the financial 

resources to retain private counsel, and that several attorneys 

had conferred with him at Lewisburg. The district court advised 

Goldberg that if he could retain an attorney by the commencement 

of trial, it would reconsider the motion seeking a continuance. 

 Lunsford requested permission to withdraw, asserting 

that he did not have a proper attorney-client relationship with 

Goldberg. As an example, he stated that Goldberg was 

"threatening me and demanding that I do certain things that I 

don't feel are prudent." App. at 34. The district court denied 

Lunsford's motion to withdraw and conducted jury selection with 

Lunsford representing Goldberg. Following the selection of the 

jury, the parties and the jury were advised that the taking of 

testimony would commence between June 6 and June 13. 

 On June 2, 1994, the district court set June 13, 1994, 

as the first day for taking testimony. The government also filed 

with the court a "Status Report" indicating that a simple check 

into Goldberg's visitation record at Lewisburg revealed several 

visits from three different attorneys over the past two months. 

 

1

According to the district court's opinion, the court did not 

allow defendant to proceed pro se because he failed to give a 

knowing, intelligent and voluntary waiver of his rights. See

United States v. Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994). 

While this would appear to suggest that Goldberg had wanted to 

proceed pro se and that the trial court was not satisfied that he 

was competent to do so, this is clearly at odds with the record 

(and the position taken in both briefs), indicating that 

defendant affirmatively chose to keep his appointed attorney when 

given the option of pro se representation. 
6 

 Four days later, Lunsford initiated a telephone 

conference between himself, the trial court and the government at 

which time he renewed his request to withdraw. Lunsford related 

that Goldberg had asked him to file a motion to withdraw as 

counsel. When Lunsford refused, noting the ruling of the 

district court on May 31, 1994, Goldberg allegedly threatened 

Lunsford's life. According to Lunsford, Goldberg stated that he 

had ample financial means to carry out his death threat as well 

as to hire a new attorney. 

 Without ordering that Goldberg be produced to answer 

Lunsford's allegations or relate his position in the matter, the 

district court granted Lunsford's motion to withdraw. The 

district court noted that June 13 was the first day for taking 

testimony and informed Goldberg that he would not receive another 

appointed attorney since Goldberg had the financial means to 

retain counsel. The district court warned Goldberg that "unless 

he retains an attorney who enters an appearance . . . in this 

case, the trial will proceed with the defendant representing 

himself." Supp. App. at 63. This order was delivered to 

Goldberg the day it was issued. 

 Goldberg appeared on June 13 for the first day of 

testimony. One of the attorneys who visited him at Lewisburg 

also was present in court. Noting that a private attorney had 

not entered an appearance, the district court asked Goldberg if 

he intended to represent himself. Goldberg presented the court 

with a letter from an attorney indicating that the attorney would 
7 

undertake to represent Goldberg, but only if a retainer was paid 

within forty-five days. 

 Referring to the letter from the attorney, Goldberg 

requested that the district court grant a continuance so that he 

could liquidate various assets, which would enable him to pay the 

retainer. The government opposed the application. Goldberg 

continued to assert his Sixth Amendment right to counsel. He 

related that he had done everything in his power to retain 

counsel in the short time available, and was incapable of trying 

a criminal case. 

 The district court denied Goldberg's request for a 

continuance. It observed that Goldberg had the financial ability 

to hire an attorney since the commencement of the case in April 

and failed to do so. The district court commented: "The Court 

finds that you have manipulated the judicial system for your own 

benefit, and the Court will not grant the continuance. The Court 

finds that by your conduct you have waived the right to proceed 

with counsel at this trial, and the Court simply will not 

tolerate that behavior." App. at 91. 

 The district court advised Goldberg about how to 

comport himself before the jury, and the manner in which it would 

answer any questions concerning the correct procedure to be 

followed. The government suggested that the attorney who had 

accompanied Goldberg to court be designated as stand-by counsel. 

Goldberg responded that stand-by counsel was not sufficient to 

satisfy his Sixth Amendment rights and that "I'm not making a 

valid waiver of my Sixth Amendment, Your Honor." App. at 94. 
8 

The district court responded, "No, and I'm not engaging in a 

colloquy with you with respect to that either. I'm determining 

that your actions have waived counsel, and that that was a 

knowing and voluntarily intentional act." Id. Goldberg again 

objected. He noted that the proposed stand-by counsel was not 

admitted to practice before the district court. Goldberg 

reiterated that, even if a defendant has waived his right to 

counsel, "it does not prohibit a defendant in a criminal case 

from reasserting his Sixth Amendment right, and in no way at all 

am I waiving my Sixth Amendment right to counsel." App. at 95. 

 Goldberg requested that the district court order 

Lunsford to return the case file to him, as it contained 

documents relevant to his defense. Following the morning 

session, Lunsford appeared in court and turned the file over to 

Goldberg. At this point, the district court sua sponte swore in 

Lunsford as a witness (out of the presence of the jury). For the 

first time it elicited sworn testimony from Lunsford concerning 

the events that had given rise to his earlier application to 

withdraw as counsel for Goldberg, which the district court 

already had granted during the June 6 telephone conference to 

which Goldberg was not party. 

 The trial went forward with Goldberg conducting his own 

defense. He was convicted on both counts of the indictment. The 

district court sentenced Goldberg to two, concurrent terms of 

imprisonment of twenty-four months, to run consecutively to 

sentences he was already serving. 
9 

 The district court issued an opinion explaining why it 

had required Goldberg to proceed pro se. United States v. 

Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994). It quoted at 

length from its prior decision, United States v. Jennings, 855 F. 

Supp. 1427, 1441-43 (M.D. Pa. 1994), aff'd 61 F.3d 897 (3d Cir. 

1995) (table), where it had found that the defendant had waived 

his right to counsel by punching his court-appointed attorney. 

The district court also concluded that Goldberg had not 

demonstrated good cause for his application on May 27, 1994, to 

substitute counsel. Goldberg, 855 F. Supp. at 730-32. Turning 

to its decision requiring Goldberg to represent himself, the 

district court relied on its Jennings decision. It explained 

that threatening one's attorney with physical violence like the 

actual use of force is tantamount to a "waiver" of the right to 

counsel. The district court further held that its decision to 

relieve Lunsford was "in furtherance of the orderly and effective 

administration of justice," and that the decision was proper 

where Goldberg was "manipulat[ing] the right to counsel in order 

to delay and disrupt his trial." Id. at 732, 733. This appeal 

followed. 

II. 

 The district court had original jurisdiction over this 

criminal action pursuant to 18 U.S.C. § 3231. We have appellate 

jurisdiction to review a final judgment of conviction under 28 

U.S.C. § 1291. 
10 

 Goldberg presses two principal claims of error on 

appeal.2 First, he challenges the district court's May 31, 1994, 

order forcing him to keep Lunsford essentially against his will. 

We review that decision for abuse of discretion. McMahon v. 

Fulcomer, 821 F.2d 934 (3d Cir. 1987); United States v. Welty, 

674 F.2d 185 (3d Cir. 1982). Second, Goldberg claims that the 

district court violated his Sixth Amendment right to the 

assistance of counsel when, on the first day of testimony, it 

forced him to proceed pro se. We review de novo Goldberg's Sixth 

Amendment claim since it is tantamount to a claim of an 

ineffective waiver of a constitutional right. United States v. 

Velasquez, 885 F.2d 1076, 1080 (3d Cir. 1989), cert. denied, 494 

U.S. 1017, 110 S. Ct. 1321 (1990). Our review is plenary 

notwithstanding the fact that the district court found a knowing 

and intelligent waiver and supported its legal conclusion with 

findings of fact. Determining the requirements that must be 

satisfied in order to find an effective waiver of a 

constitutional right is a question of law. 

III.

 

2

Because of our holding, we decline to reach Goldberg's 

additional claim that the district court's decision to relieve 

Lunsford during an ex parte proceeding deprived him of procedural 

due process. We also need not reach Goldberg's claim that the 

district court improperly directed a verdict on the element of 

materiality in 18 U.S.C. § 1001. See United States v. Gaudin, 

___ U.S. ___, 115 S. Ct. 2310 (1995). We recognize, however, 

that on remand the district court will be required to submit the 

issue of materiality to the jury in accordance with the dictates 

of Supreme Court's intervening decision in Gaudin. 
11 

 Goldberg first claims that the district court abused 

its discretion when, on May 31, it denied his May 27 request for 

a continuance so that he could retain a new attorney. We 

understand Goldberg's claim as alleging a Sixth Amendment 

violation arising from the fact that he was represented for a 

period of time by an attorney with whom he was dissatisfied. 

 A.

 The Sixth Amendment provides that "in all criminal 

prosecutions, the accused shall enjoy the right . . . to have the 

Assistance of Counsel for his defence." U.S. Const. amend VI. 

Because it is essential to fair adjudication, see Powell v. 

Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), the right to counsel 

has long been considered "fundamental." Gideon v. Wainwright, 

372 U.S. 335, 83 S. Ct. 792 (1963) (right to counsel so 

fundamental that it is binding on the states through the doctrine 

of incorporation); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. 

Ct. 1019, 1022 (1938) ("This is one of the safeguards . . . 

deemed necessary to insure fundamental human rights of life and 

liberty."); see also Chapman v. California, 386 U.S. 18, 23 & 

n.8, 87 S. Ct. 824, 827-28 & n.8 (1967) (right to counsel is so 

fundamental to our adversarial system that its deprivation can 

never be deemed harmless). 

B.

 On several prior occasions we have confronted 

situations where a defendant moved on the eve of trial for a 

continuance to retain substitute counsel. Because the denial of 

such a motion forces a defendant to choose between representation 
12 

by an attorney with whom he is dissatisfied and proceeding pro 

se, we set forth a two-part inquiry in Welty, 674 F.2d at 187, to 

balance a defendant's Sixth Amendment right to counsel with a 

district court's legitimate interest in guarding against 

manipulation and delay. The first inquiry requires a district 

court to determine whether good cause exists for granting the 

requested continuance. The second requires the district court to 

engage in an on-the-record colloquy to ensure that a defendant 

who chooses to represent himself is making a knowing, intelligent 

and voluntary waiver of his Sixth Amendment right to counsel. It 

is Welty's first inquiry that applies here. 

 In considering a last-minute request for substitution 

of counsel and a continuance, we require district courts to 

inquire as to the reason for the request. As we noted in Welty, 

the request need not be granted unless "good cause" is shown for 

the defendant's dissatisfaction with his current attorney. We 

defined good cause as a conflict of interest, a complete 

breakdown of communication, or an irreconcilable conflict with 

the attorney. Id. at 188; see also McMahon, 821 F.2d at 942. 

 In several decisions following Welty, we have 

acknowledged that there are countervailing governmental 

interests. For instance, in United States v. Kikumura, 947 F.2d 

72 (3d Cir. 1991), we noted that the district court should 

consider factors such as the efficient administration of criminal 

justice; 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. at 78. 
13 

Similarly, in United States v. Romano, 849 F.2d 812 (3d Cir. 

1988), we observed that a court has discretion to deny a request 

for a continuance if made in bad faith, for purposes of delay or 

to subvert judicial proceedings. Id. at 819. But "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). These factors are 

relevant to the "good cause" analysis under Welty. 

 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. See McMahon, 821 F.2d 

at 944 (reversal warranted where district court relieved 

defendant's appointed attorney without inquiring into reason for 

withdrawal). 

C.

 We reject Goldberg's claim that the district court 

abused its discretion in denying his May 27, 1994, "emergency 

motion" to relieve counsel and for a continuance. First, we note 

that the district court properly complied with Welty by 

conducting an inquiry into the reasons for Goldberg's 

dissatisfaction with Lunsford. See Welty, 674 F.2d at 187; see 

also McMahon, 821 F.2d at 942. After hearing from both Goldberg 

and Lunsford, the district court found that Goldberg's 

disagreement with Lunsford amounted to a difference over 
14 

strategy. Specifically, Goldberg complained that Lunsford had 

not filed a host of motions that Goldberg insisted be filed. 

Analyzing the motions, the district court concluded (although 

after the fact) that they were meritless, if not frivolous. 

Goldberg, 855 F. Supp. at 730-32. Finding that Lunsford's 

refusal to file the motions did not amount to good cause, the 

district court found no basis for substituting counsel and 

delaying the trial. 

 We conclude that the findings of the district court are 

not clearly erroneous. Moreover, to the extent that Goldberg 

complains that the reasons supporting the district court's 

decision were not issued until some three weeks later, we 

nevertheless find that the record of the May 27 and May 31 

proceedings amply support the district court's good cause 

determination. Accordingly, because we find no abuse of 

discretion in the denial of the continuance, any Sixth Amendment 

claim Goldberg alleges arising from his representation by an 

attorney with whom he was dissatisfied between May 31 and June 6 

must fail. 

IV.

 Goldberg asserts, however, that even if the district 

court did not abuse its discretion in denying his request for a 

continuance, it nevertheless violated his Sixth Amendment right 

to counsel when it forced him to proceed pro se. Goldberg 

challenges the district court's conclusion that he "waived" his 
15 

right to counsel through dilatory conduct. While recognizing 

that in certain circumstances a court may find a waiver by 

conduct, in this case Goldberg claims that his conduct was not so 

dilatory as to warrant the drastic remedy of forcing him to 

defend himself. 

 The government concedes that the district court did not 

engage in the sort of inquiry required by the Supreme Court's 

decision in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 

(1975), and our decision in Welty. These cases require an onthe-record colloquy evincing both a knowing, voluntary and 

intelligent waiver of the right to counsel and an explanation by 

the district court of the risks of self-representation. As a 

suitable alternative to the colloquy required by Faretta and 

Welty, the government contends that there are certain factual 

scenarios in which "literally actions speak louder than words," 

Government's Br. at 40, and deliberate abusive conduct can result 

in a "waiver" of the right to counsel. 

A. 

 Before turning to the merits of the government's 

contention, we note an important distinction between the ideas of 

"waiver" and "forfeiture," and a hybrid of those two concepts, 

"waiver by conduct." Both parties appear to have confused those 

issues, as have a number of courts that have addressed the effect 

of a defendant's dilatory tactics on the right to counsel. 

Because the resolution of that confusion has important 

implications for the Sixth Amendment, we begin with a discussion 

of "waiver," "forfeiture," and "waiver by conduct" 
16 

1.

 A waiver is an intentional and voluntary relinquishment 

of a known right. Johnson, 304 U.S. at 464, 58 S. Ct. at 1023; 

see generally LaFave & Israel, Criminal Procedure, § 11.3(c), at 

546 n.4. (2d ed. 1992). The most commonly understood method of 

"waiving" a constitutional right is by an affirmative, verbal 

request. Typical of such waivers under the Sixth Amendment are 

requests to proceed pro se and requests to plead guilty. The 

Supreme Court has made clear that a waiver of the right to 

counsel must be knowing, voluntary and intelligent. Johnson, 304 

U.S. at 464-65, 58 S. Ct. at 1023. The High Court has emphasized 

the importance of an affirmative, on-the-record waiver, noting 

that it "indulge[s] every reasonable presumption against waiver 

of fundamental constitutional rights." Michigan v. Jackson, 475 

U.S. 625, 633 , 106 S. Ct. 1404, 1409 (1986) (quoting Johnson, 

304 U.S. at 464, 58 S. Ct. at 1023). 

 Where a defendant requests permission to proceed pro 

se, Faretta requires trial courts to ensure that the defendant is 

aware of the risks of proceeding pro se as a constitutional 

prerequisite to a valid waiver of the right to counsel. Faretta, 

422 U.S. at 806, 95 S. Ct. at 2525. Moreover, our decision in 

Welty mandates that trial courts conduct a Faretta-type inquiry 

before permitting a defendant who asks to represent himself to do 

so: 

The court . . . has the responsibility of 

ensuring that any choice of selfrepresentation is made knowing and 

intelligently, with an awareness of the 

dangers and disadvantages inherent in 
17 

defending oneself. . . . In order to ensure 

that a defendant truly appreciates the 

"dangers and disadvantages of selfrepresentation," the district court should 

advise him in unequivocal terms both of the 

technical problems he may encounter in acting 

as his own attorney and of the risks he takes 

if his defense efforts are unsuccessful. . . 

. [A] defendant's waiver of counsel can be 

deemed effective only where the district 

court judge has made a searching inquiry 

sufficient to satisfy him that the 

defendant's waiver was understanding and 

voluntary. 

Welty, 674 F.2d at 188-89; see also United States v. Salemo, Nos. 

94-1361 & 94-1438, 1995 WL 440390 (3d Cir. July 26, 1995) 

(failure to warn of risks of self-representation render waiver of 

right to counsel invalid); Government of Virgin Islands v. James, 

934 F.2d 468 (3d Cir. 1991) (extensive colloquy between district 

court and defendant about perils of proceeding pro se sufficient 

to indicate that waiver of Sixth Amendment rights was knowing, 

voluntary and intelligent); McMahon, 821 F.2d at 934 (failure to 

provide warnings in accordance with Faretta and Welty requires 

reversal). 

2.

 At the other end of the spectrum is the concept of 

"forfeiture." Unlike waiver, which requires a knowing and 

intentional relinquishment of a known right, forfeiture results 

in the loss of a right regardless of the defendant's knowledge 

thereof and irrespect__