none of the alleged victims identified the "Lorcin 380" at trial as the weapon in his possession, and that the weapon was recovered after he had already been taken into custody.
At trial, Mr. Brown and Mr. Ferraro, the two victims of the alleged carjacking, testified that the Defendant was in possession of a semiautomatic handgun on the Garden State Parkway on April 12, 1996. Both men described a gun similar to the weapon actually recovered in Mr. Brown's Chrysler Le Baron which the Government alleges the Defendant used to escape from the scene of the carjacking. The Defendant was the last person observed entering the vehicle and at the time he did so, he was seen armed with a semiautomatic handgun. In light of the fact that Mr. Brown testified that he did not own a handgun, it is reasonable for a jury to conclude that the Defendant possessed the firearm that was found in the car.
Accordingly, upon viewing the evidence in a light most favorable to the Government, as this Court must do when deciding a motion for judgment of acquittal, I conclude that the Government presented substantial evidence at trial upon which a reasonable jury could have based a verdict of guilty on the "felon-in-possession" charge contained in Count Six of the Second Superseding Indictment, and therefore, will deny Defendant's motion for judgment of acquittal on Count Six. In order to be sufficient, "the evidence need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990).
B. Defendant's Motion for a Bifurcated Trial
Defendant has requested that the trial in this matter be bifurcated, such that the trial of Counts Six of the Second Superseding Indictment will occur after the jury has deliberated and returned a verdict on Counts One through Five of the Second Superseding Indictment. The Government does not oppose this motion.
For the reasons set forth in this Court's Opinion, dated September 5, 1996, I will grant Defendant's request for a bifurcated trial.
See United States v. Joshua, 28 V.I. 177, 976 F.2d 844, 847 (3d Cir. 1992).
C. Defendant's Motion to Preclude Reference to Post-Miranda Silence
Defendant also moves to preclude the Government from making any reference at trial to his post-Miranda silence. The Government has agreed not to refer to the Defendant's post-Miranda silence in its case-in-chief, and therefore, this motion will be granted by consent.
D. Defendant's Motion to Have Lori Koch, Esq., Relieved as Stand-by Counsel
At a Faretta hearing conducted before this Court on September 9, 1996, I allowed the Defendant to proceed pro se, after ensuring that he was aware of the dangers and disadvantages in proceeding without an attorney. In permitting the Defendant to proceed pro se, I instructed Lori Koch, Esq., of the Federal Public Defender's Office, to be available to the Defendant as stand-by counsel.
Defendant now moves to have Lori Koch, Esq., relieved as stand-by counsel, alleging that his "Sixth Amendment right to self-representation would be violated if Ms. Koch is allowed to continue in her capacity as "[his] stand-by counsel." (Letter Motion, dated, October 28, 1996). The Defendant, however, fails to realize that Ms. Koch cannot interfere with his right to self-representation because in proceeding pro se, he need not utilize the assistance of, or communicate with Ms. Koch at all.
While the Defendant has the right to court-appointed counsel if he so chooses, it is well established that he does not have the right to the counsel of his choice. See United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995); Siers v. Ryan, 773 F.2d 37, 44 (3d Cir. 1985)(right to counsel does amount to a right to have any special rapport or confidence in counsel). Indeed, the right to counsel does not guarantee a criminal defendant a "meaningful relationship" with counsel, and "does not include more than the right to representation by competent counsel at trial." Id.
Moreover, the right to counsel contained in the Sixth Amendment surely does not confer upon a pro se defendant the right to stand-by counsel of his choice because a pro se defendant need not even confer with or request the assistance of stand-by counsel. United States v. Campbell, 874 F.2d 838, 847 (1st Cir. 1989). "While a defendant has a right to proceed pro se, 'a defendant's sixth amendment rights are not violated when a trial judge appoints standby counsel - even over defendant's objection.'" Id. (citing McKaskle v. Wiggins, 465 U.S. 168, 184, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984)).
The purpose of standby counsel is merely to "assist the defendant in procedural matters with which he may not be familiar and to facilitate a speedy and efficient trial by avoiding the delays often associated with pro se representation." 874 F.2d at 849. I find that Ms. Koch, through her experience and familiarity with the Defendant's case over the past many months, more than satisfies this purpose. Therefore, Defendant's motion to relieve Ms. Koch as stand-by counsel will be denied.
This Court will enter an appropriate order.
Dated: November 15, 1996
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on the post-trial motions of Defendant for a judgment of acquittal as to Counts Four and Six of the Second Superseding Indictment pursuant to Fed. R. Crim. P. 29(c), for a bifurcated trial, to preclude the United States from making any reference to the Defendant's post-arrest silence, and to have Lori Koch, Esq., relieved as stand-by counsel for the Defendant; Defendant, Michael Norwood, appearing pro se, and Carlos F. Ortiz, Esq., Assistant United States District Attorney, appearing on behalf of the United States; and,
The Court having considered the written submissions of the parties filed in support of, and in opposition to Defendant's motions;
For the reasons set forth in this Court's Opinion filed with this Order;
IT IS HEREBY ORDERED on this 15th day of November, 1996, that:
(a) Defendant's motion for a judgment of acquittal as to Count Four of the Second Superseding Indictment is DENIED; and,
(b) Defendant's motion for a judgment of acquittal as to Count Six of the Second Superseding Indictment is DENIED; and,
(c) Defendant's motion for a bifurcated trial is GRANTED by consent; and,
(d) Defendant's motion to preclude the United States from making any reference to the Defendant's post-arrest silence is GRANTED by consent; and,
(e) Defendant's motion to have Lori Koch, Esq., relieved as stand-by counsel for the Defendant is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge