United States v. Robert D. Golub

THE COURT: I gather the defendant is here. What are your plans as to getting a lawyer?

THE COURT: What are your plans as to getting a lawyer, what do you plan to do?

THE DEFENDANT: I've contacted my family and we are in the process of doing that, Your Honor.

THE COURT: Well, do you oppose this motion to withdraw?

THE COURT: And do you understand that the case is set for trial and it's going to trial —

On April 9, 1979, it was, and it now is my belief that defendant was utilizing a ploy to obtain a continuance, and I advised him that I intended to try the case on the date it was set for trial. He voiced no objection to that. [Indeed, the then scheduled trial date was within a week or ten days of the latest trial date permitted under the Speedy Trial Act.] Because of defendant's acquiescence in Mr. Smith's motion to withdraw, I granted it, but had defendant objected, I would have denied the motion. I have no doubt that with client cooperation, Mr. Smith would have been ready to try the case.

Shortly after April 9, 1979, I received a long distance telephone call from Sheldon Emeson, Esq., saying that he was related to the defendant and that he would represent him. He orally asked for a continuance, but the only reason he advanced in support of his request was that he had some county court cases set for trial and that those trials would conflict with the long standing setting of the federal court case. I told Mr. Emeson that that was not reason for a continuance and that under no circumstances would I act on a telephonic motion for a continuance made by a lawyer who had not entered an appearance in the case. I told him about the history of the case, and that I thought the defendant was trying to manipulate the court. I am sure that I was not optimistic as to his chances for a continuance. However, I at no time told him that I would not consider a written motion for a continuance setting forth adequate grounds to justify the last minute delay. He replied that he could and would be ready for trial, and he was.

No written motion for a continuance was ever filed, and when the trial started on April 17, 1979, instead of moving for continuance, Mr. Emeson affirmatively stated on the record that he and his client were ready for trial. An audit of the clerk's minutes shows that the taking of testimony in the case took a total of eight hours; that the defendant testified at some length and that two other defense witnesses were called. Mr. Emeson is a former state public defender and he is a former elected district attorney. He has had long experience in the trial of criminal cases in the state courts, and the Colorado Rules of Criminal Procedure do not differ much from the Federal Rules. The defendant had constructively fired one of the best criminal trial lawyers in the state, and, knowing his ethics, I am confident he would not have walked out on the defendant just because he hadn't been paid. The jury convicted the defendant one evidence I though was more than sufficient, but it did so after a trial which was well handled on both sides.

Following the trial, [I am unsure whether the visit was on the day of the jury verdict or on the day of sentencing.] Mr. Emeson came to my chambers, and he explained that he had defended the case only because of the relationship between him and the defendant. He explained that he wasn't being paid, and he thanked me for that which he said he thought had been a fair trial. He did not hint that he needed more time to prepare, and he didn't suggest prejudice to the defendant because of lack of preparation time.

On April 10, 1979, I placed a long distance phone call from Lamar, CO. to Judge Fred M. Winter [sic] of the United States District Court in Denver, CO. Lamar, CO. is 220 miles Southeast of Denver, Co. The conversation lasted four minutes (see attached photocopy of phone bill).

I advised Judge Winter that I was related to Robert D. Golub and that I was attempting to help him. I stated that I would try to obtain a trial attorney for him. I stated that I did not feel qualified due to the relationship and because of my limited experience in Federal Court.

Judge Winter then advised me that the case was a simple mail fraud and that his order for trial would stand. I then informed Judge Winter that I would see what I could do in the time available.

My purpose in making this call was to explain Golub's dilemma and that if given some time, I would personally arrange for Golub to have trial counsel.

After the call, I was convinced that the filing of his motion to continue would have been a useless and time consuming gesture.

The captioned appeal is partially remanded to the United States District Court for the District of Colorado, pursuant to28 U.S.C. § 2106, for that court's further proceedings, if necessary, for a determination as to whether or not a new trial should have been granted to appellant because of inadequacy of counsel, or because of the inability of counsel to make adequate preparation under the circumstances.

This Court retains jurisdiction of all other issues in the appeal. . . .

Upon completion of its further proceedings, the trial court shall enter its findings and conclusions and order and, after supplementation of the record, the appeal shall be remanded to this Court for further consideration.

I am directed to first make a finding as to whether a new trial should have been granted because of inadequacy of counsel. Before I get to that, I mention that this case presents a golden opportunity to receive some advice from an appellate court which will be of help to all trial judges. The advice I solicit is what a trial judge does when a judge worries about the competency of aretainedlawyer. It's a dilemma. A defendant's Sixth Amendment rights are violated if he isn't competently represented, but they are violated if there is interference with his freedom of choice of counsel. Certainly, Sheldon Emeson has more trial experience than do 95% of the lawyers who appear in this court, and if trial judges are supposed to step in to say that lawyers with his background aren't qualified, a Pandora's box is opened. Mr. Emeson has been trying lawsuits for 29 years. He has been a Public Defender. He was elected District Attorney. Twenty-five percent of his time as of the time of this trial was spent on criminal cases. In this case, he spent eight hours looking over the discovery the government voluntarily supplied and he talked to the defendant and worked on the case another two days. He invested more time in research. He testified on May 26, 1981, as to the defenses he planned for defendant, and I don't know what more he could have done had he been given a six months delay. He called witnesses to testify for Mr. Golub, and the defendant himself testified at length. He took advantage of the opportunity afforded to interview government witnesses during recesses in the trial called especially for that purpose. Nine of the eleven witnesses listed in the filing with the Court of Appeals were mentioned in Golub's testimony, and Mr. Emeson could recall several of those names. Mr. Emeson was well prepared.

Mr. Emeson's experience was far, far greater than the suggested trial experience required under any certification of trial lawyers program . . . . I don't think it reasonable to argue that Mr. Emeson should have been told before the trial started that he wasn't qualified to try the case. I just wish more lawyers we appoint possessed his experience and skill . . . . Based on my observation of the trial, the defendant was well represented . . . . In my judgment, Mr. Emeson's representation of Mr. Golub was not just adequate; it was above average.

With a time space from April 10, 1981, to January 5, 1982, and with governmentPage 212funds available to produce witnesses, I have listened to only four of the disinterested witnesses named in the Court of Appeals, and I heard nothing which convinces me that defendant was prejudiced by my failure to grant a continuance. The telephonic request was for a continuance until some county court cases were tried by Mr. Emeson, and I don't know how he could have located witnesses appointed counsel working with government funds has been unable to find or has elected not to call after nine months.

I have reviewed the record; I have listened to the arguments of defense counsel; I have heard the testimony of every witness defendant called and I have issued every subpoena asked for by defendant. I don't think that any prejudice has been shown and I do think that the Government has established that there was no prejudice resulting to defendant from the refusal to act on a telephonic request for continuance. I don't challenge the good faith of counsel's representations to the Court of Appeals, but with funds available to investigate that which counsel had been told by the defendant, the helpful testimony just isn't there. In a nutshell, I think that counsel of limited experience in criminal cases bought a bill of goods glibly sold to him by his client, and that he thereafter innocently resold it to the Court of Appeals. Sheldon Emeson operating with long criminal trial experience didn't buy the bill. If he had, he would have filed the required written motion and he would have listed in the motion the supposed helpful witnesses who haven't helped even by this late date.

The standard of review when ineffective assistance of counsel is alleged is whether the trial counsel exercised the "skill, judgment and diligence of a reasonably competent defense attorney."Dyer v.Crisp,613 F.2d 275(10th Cir. 1980),cert.denied,445 U.S. 945,100 S.Ct. 1342,63 L.Ed.2d 779(1980). It is clear that "[e]ffective assistance does not demand that every possible motion be filed, but only those having a solid foundation."United Statesv. Hines,470 F.2d 225(3d Cir. 1972),cert.denied,410 U.S. 968,93 S.Ct. 1452,35 L.Ed.2d 703(1973). Nor does the Sixth Amendment require an errorless defense.Dyer v. Crisp, supra.669 F.2d at p. 643.

In considering how that fact bears on the issue of effective assistance of counsel, however, it seems to me that you have to try to separatewhat part of Mr.Golub's predicament was due to problems with hisattorney or attorneys and what part of hispredicament was due solely to something that he wasresponsible for.

Mr. Golub had counsel from the date that he was indicted: Mr. Smith. One would normally expect from a cooperative defendant or a defendant who was determined to prove his innocence that he would jump at every opportunity to confer with his defense attorney, that he would keep appointments with his defense attorney and that he would in every way try to make available to the defense attorney the names, every address he knew, the work telephone number, the home telephone number, every possible piece of information as to witnesses who might be favorable to his defense.

Now, it is true that Mr. Emeson only had seven days to prepare for trial, and to the extent that you can't get subpoenas out in seven days and to the extent that witnesses' schedules cannot be adjusted within seven days, or to the extent that you even have trouble getting in touch with witnesses, i.e., making telephone contact in seven days,it seems tome that's problem that is attributable not to Mr.Smith and not to Mr. Emeson, it is attributable tothe fact that Mr. Golub failed to cooperate with Mr.Smith in keeping appointments.

I don't see how, when you're discussing the issueof whether somebody was effectively represented by anattorney, you can fault the attorney or attorneys forsomething that the defendant failed or omitted todo.

[R. Remand Supplemental, Vol. III at pp. 162-163]. [Emphasis supplied].

The asserted interference with one's right to counsel will warrant reversal so long as it "had or threaten[ed] some adverse effect upon the effectiveness of counsel's representation . . . ."United States v. Morrison,449 U.S. 361,365,101 S.Ct. 665,668,66 L.Ed.2d 564(1981).

Inadequate case preparation can jeopardize an accused's right to effective assistance of counsel.See Powell v. Alabama,287 U.S. [45] at 71, 53 S.Ct. at [55] 65 [77 L.Ed. 158]. Although frequently the result of a slothful lawyer, inadequate preparation can also be caused by unreasonable time constraints imposed by a trial court.Golub,638 F.2d at 189;United States v. Olivas,558 F.2d 1366,1367(10th Cir. 1977),cert. denied,434 U.S. 866,98 S.Ct. 203,54 L.Ed.2d 142(1978).

Whether court-induced lack of preparation deprives a defendant of Sixth Amendment rights turns on the circumstances underlying his particular case.Rastrom v. Robbins,440 F.2d 1251(1st Cir.),cert. denied,404 U.S. 863,92 S.Ct. 53,30 L.Ed.2d 107(1971). The factors that must be analyzed to determine whether the given preparation time was sufficient to permit the attorney to effectively assist his client include: "(1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel."Golub,638 F.2d at 189.

There is no conflict between the rule ofKingandGoluband the Supreme Court's opinion inUnitedStates v. Morrison,449 U.S. 361,101 S.Ct. 665,66 L.Ed.2d 564(1981). InMorrisonthe Court held that pretrial "interference" with the right to counsel did not warrant the most drastic remedy of dismissing an indictment "absent demonstrable prejudice, or substantial threat thereof".Id.at 365,101 S.Ct. at 667. Nothing inMorrisonsuggests that "a substantial threat of prejudice" may not be inferred from the circumstances of pretrial and trial representation. Nothing inMorrisonsuggests that reversal of a conviction may not be "relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial".Id.at 365,101 S.Ct. at 667.