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U.S. v. Bertoli

filed: May 7, 1993.


Appeal from the United States District Court for the District of New Jersey. D.C. Criminal Action No. 89-00218-03

Present: Hutchinson, Cowen and Weis, Circuit Judge

Author: Hutchinson


HUTCHINSON, Circuit Judge.

Appellant law firm, Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello ("Podvey, Sachs" or "firm"),*fn1 seeks to appeal an order of the United States District Court for the District of New Jersey appointing the firm standby counsel for its former client, Richard Bertoli ("Bertoli"), in the government's criminal action against him. In the course of pretrial proceedings in that action, Bertoli discharged Podvey, Sachs and elected to proceed pro se. He does not qualify for indigent status. Among other things, the order requires the firm to serve without compensation, requires the presence of a Podvey, Sachs attorney at all pretrial proceedings and dictates the presence of two named partners of the firm throughout the trial which is estimated to take two to four months. On the merits, Podvey, Sachs presents the issue in the form of a dilemma, contending that the district court lacks power to either compel it to provide free legal services for a client who can afford a lawyer but chooses to represent himself, or to compel the client to pay for services he does not want. The firm, nevertheless, represents that it remains willing to provide some standby services free of charge. It would have us treat them as freely given pro bono. Podvey, Sachs is not willing, however, to provide free standby counsel for the duration of the trial.

The firm asserts that this Court has appellate jurisdiction under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). The government contends the order is not appealable under Cohen nor otherwise reviewable until a final order is entered holding Podvey, Sachs in contempt. We agree with the government that Cohen does not apply because the order is subject to review on appeal from a final order of contempt. Nevertheless, because the order raises fundamental, unsettled issues concerning a district court's inherent power over the attorneys who practice before it we will treat the firm's appeal as a petition for a writ of mandamus or prohibition.

So treated, we hold that the district court has inherent power to compel attorneys who have entered an appearance for a criminal defendant in a complex criminal case to continue to serve, but as standby counsel for a client who later exercises his right to proceed pro se. We also hold that the extent of the services that can be required, though not unlimited, is within the sound discretion of a district court; but in exercising its discretion, the district court should balance (1) the stage of the proceeding at which the defendant makes his election, whether it be before, during or after trial; (2) the complexity of the case; (3) the disruptive effect an uncounseled defendant may have on his own rights and the rights of any co-defendants to a fair and speedy trial; and (4) the extent to which performance of the services required will adversely affect both the attorney called upon to perform them and his firm as well as their professional responsibilities to other clients.

After considering the factors set out above, we are unable to say, under the circumstances of this case, that the district court clearly abused its discretion when it decided Podvey, Sachs' offer, which did not provide for an attorney's presence in the courtroom during trial, was inadequate. We do, however, hold that the district court clearly abused its discretion when it added to Podvey, Sachs' offer a requirement that the firm provide an attorney at all pretrial proceedings including the taking of depositions in the Cayman Islands and have one of two named partners present in court throughout the trial. Therefore, we will issue a writ prohibiting the district court from requiring the firm to send an attorney to the Cayman Islands to act as standby counsel during the upcoming depositions there or from compelling either Franklin H. Sachs ("Sachs") or H. Richard Chattman ("Chattman") to be present throughout Bertoli's trial. Finally, we will direct the district court to modify its order to provide that it is expressly without prejudice to the firm's right to seek compensation for its services upon Conclusion of the trial and remand the case for further proceedings consistent with this opinion.


On June 16, 1989 a federal grand jury returned an indictment against Bertoli, Leo Eisenberg ("Eisenberg") and Richard Cannistraro ("Cannistraro") charging them with various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.A. § 1961 et seq. (West 1984 & Supp. 1992). A six count superseding indictment was returned on September 29, 1989. Prior to arraignment and before he had secured representation, Bertoli informally moved for recusal of the district court Judge assigned to the case. Bertoli then retained Podvey, Sachs as counsel and Attorney Sachs formally renewed the recusal motion. At his arraignment on November 6, 1989, Bertoli was represented by Attorneys Sachs and Chattman, who entered appearances for the firm. Also at arraignment, the government served the firm with a motion for leave to take depositions in the Cayman Islands pursuant to Federal Rule of Criminal Procedure 15.

Extensive pretrial proceedings followed. Lawyers from Podvey, Sachs represented Bertoli from November 1989 through August 1991 in all aspects of them. Among other things they sought discovery of matters related to Bertoli's recusal motion and also moved for a transfer of the motion to a different district court Judge. The court denied the motions in an order dated March 22, 1990. Bertoli's motion for reconsideration was denied on April 12, 1990. Bertoli through Podvey, Sachs then filed a petition for mandamus with the Court, which we denied on May 3, 1990. A second recusal motion filed by co-defendant Cannistraro, which Bertoli joined, was denied on August 16, 1990. We affirmed that order on October 15, 1990.

Meanwhile, on June 20, 1991 Sachs wrote to the district court asking when oral argument might be had on certain other pretrial motions that were filed for Bertoli. Responding the next day, the district court stated oral argument was not a necessity in light of the extensive briefing the parties had already submitted, but because Sachs had asked for it, oral argument would be scheduled for July 3, 1991. In its response, the district court gratuitously noted that it took the parties three to four months to prepare their motions and supporting briefs, but that it was able to accommodate Sachs' request, made a little more than five and one-half weeks after the motions were submitted, to schedule a hearing "at the earliest possible opportunity so as to avoid any unnecessary delay." Letter dated June 21, 1991, Appendix (App.) at 104-05.

On June 24, 1991 Sachs withdrew Bertoli's request for oral argument on the pretrial motions. In a letter dated June 25, 1991 the district court ordered all defendants, accompanied by trial counsel, to come to court for the July 3, 1991 hearing. Sachs had a conflict*fn2 and advised the court by letter on June 26, 1991 that another Podvey, Sachs partner would be at the hearing in his place, although he intended to be Bertoli's trial counsel. The district court responded the same day with a requirement that Sachs personally appear, stating "because I have specific inquiries to address to you, the appearance of your partner . . . will not suffice. May I suggest he take your place at the [other] meeting . . . ." Letter dated June 26, 1991, App. at 110. Podvey, Sachs immediately filed a petition for a writ of mandamus and asked this Court to stay the district court order compelling Sachs' attendance. On July 2, 1991 the Honorable Leonard I. Garth, sitting as a single Judge of this Court, refused to stay the hearing but did stay the part of the court's order that required Sachs to appear personally.*fn3

Immediately before the Cayman Islands depositions were scheduled to begin. Bertoli asked the district court for leave to proceed pro se during the depositions but otherwise to continue with Podvey, Sachs as his counsel. The court held a hearing on Bertoli's request on September 3, 1991, one day before the depositions were to begin. At this hearing Bertoli was represented by Marianne C. Tolomeo ("Tolomeo"), a senior associate with Podvey, Sachs. The district court questioned Tolomeo about Sachs' and Chattman's whereabouts and the basis for Bertoli's motion to proceed pro se. The court stated "if Mr. Bertoli does go pro se and I permit that, I will appoint standby counsel and it will be one of Mr. Sachs or Mr. Chapman [sic] to go down to the Cayman islands." App. at 166. The district court advised Bertoli that it would not permit Bertoli to represent himself at the depositions and also continue with counsel at trial. Bertoli chose to proceed pro se. Upon questioning by the court, Bertoli testified that he had already acted pro se in "eight to nine cases" involving securities litigation. Id. at 184. Bertoli also said that he chose to proceed pro se despite an ability to pay counsel and that he had no problem with the firm's representation.

The district court found that Bertoli's election was knowing, intelligent and informed and ordered Podvey, Sachs to act as standby counsel until the Cayman Islands depositions were concluded, with leave to file a motion to withdraw as standby counsel thereafter. As standby counsel, Tolomeo attended the Cayman Islands depositions from September 4, 1991 through September 17, 1991. Although Bertoli requested her assistance in questioning the witnesses, Tolomeo refused because the district court had refused to permit hybrid representation. Tolomeo did consult with Bertoli, made suggestions and took notes. In securing the attendance of Tolomeo at the depositions Podvey, Sachs incurred expenses of $13,023.94. These expenses have not been reimbursed.

On November 8, 1991 Podvey, Sachs moved to withdraw as standby counsel and sought reimbursement for the costs and attorney's fees incurred during the depositions. At a hearing on November 15, 1991 the district court told Tolomeo that it was inclined to deny the firm's motion to withdraw, that it would not authorize the payment of government funds for the firm's expenses and that "at the time of trial either Mr. Sachs or Mr. Chapman [sic] will be present." Id. at 252-53. The court continued:

It's not beyond the pale to consider [Bertoli] might change his mind [about proceeding pro se] in the middle of the trial. Your firm is intimately, thoroughly familiar with what's going on here.

It was represented to the Circuit, through [another Podvey, Sachs partner], that the firm represents Mr. Bertoli. There was a submission to the Circuit that in point of fact Mr. Chapman [sic] or Mr. Sachs could handle it. That's what happened this summer.

I am going to require that your firm continue. You may continue in the pretrial matters down in the Cayman Islands. If Mr. Chapman [sic] or Mr. Sachs wish to go, that's fine with me. At trial, one of the two will be here.

Id. at 255-56. When Tolomeo suggested that the court's directions were "purely punitive," the court replied "that's silly and I find objection to that. There is no basis to suggest that. . . . If you want to go to the Circuit on it, file an Interlocutory appeal." Id. at 256. As the Discussion continued, the court once again said that either Sachs or Chattman would have to be present as standby counsel during trial. When Tolomeo asked why the court would not allow her to appear at trial since the court had found her capable of handling pretrial matters, the court responded:

Because Mr. Sachs represented that either he or Mr. Chapman [sic], when he went to the Circuit this summer, could handle the matter. That was the representation. That's the basis for it and that's how It's going to go.

If you want to go to the Circuit, be my guest.

Id. at 259. The court then refused to order Bertoli to pay Podvey, Sachs for its time and expenses. The court agreed to delay entering a formal order until the government had an opportunity to file a brief on the issue. The government issued a letter brief on November 22, 1991. It took the position that standby counsel was necessary but that it need not be Podvey, Sachs.

On December 9, 1991 Tolomeo filed an affidavit stating that, to date, most of the substantive work on the case had been done by paralegals under her supervision and that the roles of Sachs and Chattman had been "at most, strategic." Id. at 270. She reiterated Bertoli's desire to proceed pro se and without standby counsel and informed the court of Sachs' and Chattman's billing rates. Id. at 271.

Meanwhile, in January 1992 a federal grand jury returned a second superseding indictment against Bertoli and Cannistraro.*fn4 The new indictment added an obstruction of Justice charge against Bertoli and amended the RICO and fraud charges. On January 27, 1992 the district court arraigned Bertoli on the new indictment. Bertoli requested a one-week continuance before pleading in order to decide whether he would continue to proceed pro se or request an attorney. Bertoli advised the court that he had been in contact with attorneys about the new charges. The court denied Bertoli's request for a continuance and entered a plea of not guilty for him.

At the same hearing, the district court heard additional argument on Podvey, Sachs' motion to withdraw as standby counsel. During the course of that argument the firm, represented by partner H. Curtis Meanor ("Meanor"), questioned the constitutionality of an order directing a law firm to act as standby counsel for a non-indigent without compensation. Meanor said that Podvey, Sachs would not offer to provide full-time standby counsel throughout the trial, but would offer to assist Bertoli without charge as follows:

1. Bertoli could have full use of the firm's law library;

2. The firm would make available an attorney either in person or by phone to consult with Bertoli about any aspect of the case;

3. The firm would make attorneys available for brief court appearances during the trial if the court deemed it necessary; and

4. The firm would retain discretion as to who would appear depending on the complexity of the issue.

Id. at 290-91.

In an opinion dated February 11, 1992 the district court first stated it was willing to accept Podvey, Sachs' offer of limited assistance, but then added conditions. See United States v. Cannistraro, 799 F. Supp. 410, 420 (D.N.J. 1992). It characterized the presence of standby counsel in this matter as "necessary" and "essential" and stated that absent Podvey. Sachs' offer, the renewed motion for leave to withdraw would have been denied. Id. at 420 n.13. The district court denied the firm's request for compensation from public funds based on Bertoli's ability to pay and the firm's request for reimbursement of expenses already incurred in its standby capacity. Id. at 423, 424.

Although it had nominally accepted the firm's offer, the conditions the district court added in the course of its opinion made the services required considerably more onerous. The February 11, 1992 order states:

Counsel's presence will be required at all pretrial hearings and at trial from the time of jury selection through the return of a verdict; and . . . in the event Bertoli revokes his election to proceed pro se or becomes unable to proceed pro se, either Sachs or Chattman will be required to serve as trial counsel.

Order of February 11, 1992 at 2, App. at 341; see also Cannistraro, 799 F. Supp. at 421. In its opinion, the court went on to state:

The trial representation which would be provided by Sachs and Chattman would clearly satisfy the Model Rule of Professional Conduct mandate [specifically Rule 1.1 and comment regarding competent representation]. Indeed, no other counsel could meet this mandate without extensive delays beyond those already experienced in this litigation. A trial attorney who has not participated in the extensive pretrial proceedings up to date would not be an adequate substitute for Sachs and Chattman because he or she would not have had the same exposure to the dynamics and extensive pretrial proceedings of this case.

Cannistraro, 799 F. Supp. at 420-21 (emphasis added). At the November 15, 1991 hearing on Podvey, Sachs' motion to withdraw, the court again made it clear that either Sachs or Chattman would be required to appear as standby counsel during the trial, and that Tolomeo's presence would not suffice:

Now, the point of the fact is I'm not going to relief [sic] Podvey, Sachs of the responsibilities. I have agreed to mitigate that to allow you, Miss Tolomeo, to go to the Cayman Islands or to appear at these pretrial conferences. I will not mitigate that with regard to trial. I again state that Mr. Sachs or Mr. Chapman [sic] will be here.

App. at 258.

Subsequent to oral argument on this appeal, the district court entered an order scheduling further pretrial proceedings including additional Cayman Islands depositions and established May 1993 as a target trial date. At a subsequent hearing*fn5 the court reiterated the requirement that either Sachs or Chattman be present in court at trial:

MS. TOLOMEO: I would ask at this time if we don't get the [appellate] decision before April 26, if you would stay the order with respect to our status until we get a decision.

THE COURT: No, I refused that earlier. I'm not going to stay it. Mr. Sachs or Mr. Chapman [sic] will be at trial.

MS. TOLOMEO: Your Honor, two things on that. One, I'm not sure that you won't be destroying the subject of appeal if you force us to appear while it's still on appeal.

THE COURT: I'm sorry, Mr. Chapman [sic] or Mr. Sachs will be here on trial.

MS. TOLOMEO: I don't believe your order required that. You required someone from our office here in the event that Mr. Bertoli could not proceed.

THE COURT: No, that was the suggestion of Mr. Meanor. One of those two will be trial counsel. Look at it again. I'm not going to hear it now.

Transcript of March 12, 1993 Hearing at 32-33.

Podvey, Sachs filed a motion for reconsideration of the February 11, 1992 order on February 21, 1992. The district court denied reconsideration on March 27, 1992. On April 1, 1992, Podvey, Sachs filed a timely notice of appeal from the orders of February 11, 1992 and March 27, 1992.

The firm has, however, continued to provide counsel to Bertoli in a standby capacity ever since the defendant undertook his own representation. Tolomeo has attended most of the pretrial proceedings and submitted many papers on Bertoli's behalf but Sachs himself has not appeared for Bertoli since October 1990 nor signed any papers for him since June 1991. Chattman last appeared for the defendant on July 3, 1991 and has not submitted any papers since May 1991.

When the firm filed this appeal, the trial had not yet been scheduled. Recently, on March 3, 1993, the district court scheduled it for May 3. The government estimates it will take two to three months. Bertoli thinks it will take at least four months. At oral argument before this Court, Podvey, Sachs expressly renewed the terms of the pro bono offer it made to the district court.


Before we can consider the merits of the district court's order, we must be satisfied that this Court has jurisdiction to review an order compelling a lawyer or law firm to provide free standby counsel to a non-indigent defendant absent citation for contempt.


With certain exceptions not relevant here, only final orders are appealable. See 28 U.S.C.A. § 1291 (West Supp. 1992). Ordinarily, a final order ends the litigation on the merits as to all claims and all parties and leaves nothing for the trial court to do but execute the judgment. See Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 100 L. Ed. 2d 517, 108 S. Ct. 1945 (1988); Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68, 92 L. Ed. 1212, 68 S. Ct. 972 (1948). In the criminal context, finality comes with the conviction and imposition of sentence. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 103 L. Ed. 2d 879, 109 S. Ct. 1494 (1989). Until that time, appellate review is prohibited. Id.

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), the United States Supreme Court tempered the rigidity of the final order doctrine with a flexible, practical interpretation of section 1291. The flexibility given by Cohen, commonly called the collateral order doctrine, permits appeal of some district court orders that do not terminate the entire case, or even a discrete part of it. See 15A Charles A. Wright et al., Federal Practice & Procedure § 3911, at 29 (1992). Under Cohen, the finality required is no more than the finality of the order in question. Id.*fn6

To be appealable under Cohen, an order must meet each of the following three requirements: it must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action and (3) be effectively unreviewable on appeal from an otherwise final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); Praxis Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 54 (3d Cir. 1991).

Neither party to this appeal contests the presence of the second factor, the importance of the issue or its collateral nature; nor do we. They do hotly dispute the conclusiveness of the order directing Podvey, Sachs to act as Bertoli's standby ...

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