Opinion
No. S4 02 Cr. 150 (LAP).
February 17, 2005
Opinion and Order
On February 15, 2005, seven days prior to the commencement of trial, defendant Michael Freeman a/k/a Naidoo Miles ("Defendant") moved for an adjournment thereof either: (1) to permit the already-appointed but inactive learned counsel to participate in the trial; or (2) so that another learned counsel may be appointed pursuant to 18 U.S.C. § 3005. For the reasons set forth below, Defendant's motion is denied.
BACKGROUND
On March 25, 2002, approximately seven weeks after the Grand Jury issued the indictment charging Defendant with violation of 18 U.S.C. § 924(i)(1), a capital crime, Jean Barrett, Esq. was appointed as Defendant's learned counsel. [Docket No. 16]. Ms. Barrett served her purpose as one "learned in the law applicable to capital cases," as evidenced by the Government's decision to not pursue the death penalty.See 18 U.S.C. § 3005 (2004). Ms. Barrett's last appearance in this case was on April 10, 2003, the date the Government informed then-defense counsel about correspondence it had received from the United States Department of Justice in Washington, D.C. indicating that the Government would not pursue the death penalty against Freeman. Although Ms. Barrett has not appeared in Court since April 2003, her appointment was never formally terminated by the Clerk of the Court. Since Ms. Barrett's last appearance, the Defendant has not once raised to the Court a desire to have her actively participate in his defense.
On October 4, 2004, eight days before his trial was originally scheduled to begin, Defendant requested that new counsel be appointed to represent him, and his request was granted. To allow Defendant's newly-appointed counsel, John F. Kaley, adequate time to prepare, the trial was adjourned sine die and was later scheduled for February 23, 2005.
On February 10, 2005, Defendant again requested that new counsel be appointed. After a thorough hearing, Defendant's request was denied.
Five days later, Defendant filed the instant motion seeking an adjournment to allow for the participation of his learned counsel or for appointment of new learned counsel.
DISCUSSION
The gravamen of Defendant's argument is that, although he no longer faces the possibility of the death penalty, he is entitled to appointment of a second counsel pursuant to 18 U.S.C. § 3005 (the "Statute" or "Section 3005") because the statute under which he is charged facially allows for such a penalty. 18 U.S.C. § 3005 provides in pertinent part:
Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours.
Although it is undisputed that the triggering event for appointment of learned counsel is indictment for a death-penalty-eligible offense, see, e.g., In re Sterling-Suarez, 306 F.3d 1170, 1175 (1st Cir. 2002), the Statute is silent as to when that representation concludes in the event that a defendant proceeds to trial but the death penalty is no longer a possible punishment. The legislative history of the Statute, formerly 18 U.S.C. § 563, which derived from the act of April 30, 1790 ( 1 Stat. 118), offers little guidance. The provision that is now found in Section 3005 was adopted in 1948 and was not amended until 1994, when Congress required the appointment of two counsel instead of either one or two, and added the requirement that one of the appointed counsel be learned in the law applicable to capital cases, and not merely learned in the law. The 1994 amendment was enacted against the backdrop of United States v. Shepherd, 576 F.2d 719 (7th Cir. 1978), United States v. Weddell, 567 F.2d 767 (8th Cir. 1977),cert. denied, 436 U.S. 919 (1978), and United States v. Dufur, 648 F.2d 512 (9th Cir. 1980), cert. denied, 450 U.S. 925 (1981), three cases in which the defendants were no longer facing the possibility of capital punishment and in which the courts held that Section 3005 did not entitle such defendants to learned counsel. If any legislative intent can be drawn from Congress' 1994 amendment, it is that the amendment should be taken to embody the then-prevailing view in the courts. See Sterling-Suarez, 306 F.3d at 1174 (paraphrasing the government's argument).
The amendment provides:
Section 3005 of title 18, United States Code, is amended by striking "learned in the law" and all that follows through "He shall" and inserting"; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours. In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization, or, if no such organization exists in the district, of the Administrative Office of the United States Courts. The defendant shall".
June 25, 1948, c. 645, 62 Stat. 814; Sept. 13, 1994, Pub.L. 103-322, Title VI, § 60026, 108 Stat. 1982.
"There is nothing in Congress' action or inaction over the years to indicate that the two-counsel provision was intended to apply to any case in which a death sentence could not be imposed." Shepherd, 576 F.2d at 729. Indeed, there is a growing consensus that "the purpose of the two-attorney rule in Section 3005 derives from the potential severity of the punishment rather than the nature of the offense itself." See United States v. Davidson, No. 92-CR-35, 1992 WL 165825, at *4 (N.D.N.Y. July 10, 1992) (agreeing with the Seventh, Eighth, and Ninth Circuits about purpose of statute). "Many kinds of criminal cases are typically more complex and difficult to prepare and try than those for which Congress has provided the death penalty. Yet no provision has been made for more than one appointed counsel in any but those involving a `capital crime.'"Shepherd, 576 F.2d at 729. In addition, the Third Circuit has held that "after the government declared that it would not seek the death penalty, the appellants were no longer capital defendants." United States v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002), cert. denied, 537 U.S. 852 (2002).
Only the Fourth Circuit has explicitly held otherwise. In United States v. Boone, 245 F.3d 352 (4th Cir. 2001), the Court of Appeals for the Fourth Circuit upheld its earlier ruling in United States v. Watson, 496 F.2d 1125 (4th Cir. 1973), and reasoned that if Congress had wanted the right to two counsels to evaporate upon a decision not to seek the death penalty, it would have provided for such a result. However, Section 3005 fails to define "capital crime." If a capital crime is, as the Seventh Circuit observes, one in which a death sentence can be imposed, see Shepherd, 576 F.2d at 729, then the Defendant in the instant case is no longer subject to an "indictment" for a "capital crime." See United States v. Waggoner, 339 F.3d 915, 919 (9th Cir. 2003), cert. denied, 125 S.Ct. 623 (2004).
Moreover, Defendant exercised his right to learned counsel pursuant to Section 3005 and he reaped the benefits of that counsel in the form of the Government's decision not to pursue the death penalty. If Defendant had any right to move the Court for continuation or some type of reinstatement of Ms. Bennett as learned counsel or to object to her recent lack of participation in the case, he had ample opportunity to so move. It appears that Defendant seeks second counsel either to obtain a second eve-of-trial adjournment or to facilitate communication between himself and his counsel at trial. These reasons are not, and have never been, the purpose of Section 3005. See Shepherd, 576 F.2d at 728-29 ("We believe the purpose of the two counsel provision was to reduce the chance that an innocent defendant would be put to death because of inadvertence or errors in judgment of his counsel, and to attempt to prevent mistakes that would be irrevocable because of the finality of the punishment."). The Defendant exercised his rights pursuant to Section 3005 when he faced the possibility of capital punishment. Given that the Government has elected not to pursue the death penalty, the Defendant has no right to learned counsel under Section 3005.
In the alternative, even if Defendant has a right to active participation at trial of his second counsel pursuant to § 3005, under these circumstances, he has waived that right. A waiver, the intentional relinquishment of a known right, may be accomplished by conduct that evinces an intent not to assert the purported right. See Hadden v. Consol. Edison Co. of N.Y., 410 N.Y.S.2d 274, 275-76 (1978) (citations omitted); see also People v. Vivenzio, 477 N.Y.S.2d 318, 319 (1984) (citations omitted) (allowing defendant to make a knowing and voluntary waiver of his right to counsel). Defendant benefitted from Ms. Bennett's advocacy for approximately one year. The docket sheet, available to Defendant's former and current counsel, clearly reflects that Ms. Bennett's appointment as learned counsel was never terminated. Defendant did not request that the Court so much as consider Ms. Bennett's schedule when scheduling trial during the twenty-two months following Ms. Bennett's last court appearance on behalf of Defendant, Under these facts, Defendant's failure to avail himself of learned counsel's services from the time the Government determined not to seek the death penalty as to the Defendant until one week before trial constitutes a knowing and voluntary waiver of the services of learned counsel at trial.
CONCLUSION
For the aforementioned reasons, the Defendant's motion for an adjournment of the trial to allow for either reinstatement of already-appointed learned counsel or appointment of new learned counsel is denied. The trial will commence as previously scheduled, at 10:00 a.m. on February 23, 2005.
SO ORDERED.