Opinion
CASE NO. 11-20587-CR-SCOLA
04-17-2013
UNITED STATES OF AMERICA, Plaintiff, v. BISCAYNE MILIEU HEALTH CENTER, INC. and ANTONIO MACLI Defendants.
ORDER ON MOTION TO WITHDRAW AS COUNSEL AND ORDER STRIKING
NOTICE OF APPEAL AS TO BISCAYNE MILIEU HEALTH CENTER, INC.
THIS MATTER is before the Court upon the Motion to Withdraw and to Appoint CJA Counsel for Appeal [ECF No. 1300], filed by attorney Rene A. Sotorrio. The Motion is unclear as to the relief being sought. It is brought on behalf of Biscayne Milieu Health Center, Inc. ("Biscayne Milieu"), but it only discusses the indigency of "Mr. Macli" - it does not say which one, Antonio or Jorge, although the Court presumes it is Antonio, as he is the Defendant represented by Mr. Sotorrio. In the "WHEREFORE" clause, the Motion requests permission to withdraw from representing "Mr. Macli" and that new CJA counsel be appointed.
To the extent that Mr. Sotorrio seeks to withdraw from representing only Mr. Macli, the Court will take that matter up at the hearing on April 25, 2013. So long as Mr. Sotorrio files a notice of appeal on behalf of Mr. Macli before withdrawing, the Court will seriously consider, and likely grant, the request to withdraw. To the extent Mr. Sotorrio seeks to withdraw from representing Biscayne Milieu, however, the Court will not allow it at this time. It is well settled in this Circuit and elsewhere that corporate parties may not proceed pro se. See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (holding that a corporation cannot appear pro se even when the person seeking to represent it is the president and major stockholder); see also Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993) ("It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel."). In light of this, the Notice of Appeal [ECF No. 1299] filed pro se by Antonio Macli on behalf of Biscayne Milieu is invalid and must be stricken. See Cook v. Trinity Univ. Ins. Co. of Kansas, 297 F. App'x 911, 912 n.1 (11th Cir. 2008) ("the notice of appeal was ineffective as to [corporate appellant], since it was a corporate entity not represented by counsel"); see also United States v. Cocivera, 104 F.3d 566, 571-72 (3d Cir. 1996) (district court erred in allowing corporations charged with scheming to defraud Medicare to be represented by their non-lawyer chief executive officer; even though he was permitted to proceed pro se on charges against him individually, corporate officer was not authorized to substitute himself for defense counsel). Therefore, Mr. Sotorrio needs to file a Notice of Appeal on behalf of the corporation.
In addition, the Court is unaware of any authority that would allow it to appoint CJA counsel for a corporation such as Biscayne Milieu. Cf. United States v. Hartsell, 127 F.3d 343, 350 (4th Cir. 1997) ("neither the Sixth Amendment to the United States Constitution nor the Criminal Justice Act provides that counsel must be appointed, at public expense, to represent a corporation in criminal proceedings"); United States v. Unimex, Inc., 991 F.2d 546, 550 (9th Cir. 1993) (same); see also In re Grand Jury Proceedings, 469 F.3d 24, 26 (1st Cir. 2006) ("the Federal Defender's Office . . . lacks the authority to represent corporate defendants because it is a creature of the Criminal Justice Act"). At the April 25th hearing, the Court will take up the matter of Biscayne Milieu's representation on appeal, and Mr. Sotorrio may present any authority he may have that would authorize a CJA appointment for Biscayne Milieu as a corporation.
Accordingly, for the reasons stated above, the Court DEFERS RULING upon the Motion to Withdraw and to Appoint CJA Counsel for Appeal [ECF No. 1300] until after the hearing on April 25, 2013. The Court STRIKES the Notice of Appeal [ECF No. 1299] filed pro se by Antonio Macli on behalf of Biscayne Milieu. Mr. Sotorrio, as counsel for Biscayne Milieu, must file a new Notice of Appeal.
DONE AND ORDERED in chambers at Miami, Florida on April 17, 2013.
______________________
ROBERT N. SCOLA , JR.
UNITED STATES DISTRICT JUDGE