Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-94-00009-EJG. Edward J. Garcia, District Judge, Presiding.
Before: William A. Norris, Alex Kozinski and A. Wallace Tashima, Circuit Judges. Opinion by Judge Kozinski.
David Ries was convicted of charges arising from a scheme to pass off some $13 million in counterfeit securities. His only argument on appeal is that he was denied counsel of choice when the district Judge rejected his out-of-state attorney's pro hac vice application.
Judge Garcia denied the application after a series of events convinced him that Ries' chosen counsel - Utah attorney Paul Young - would impede the progress of the case. A brief chronology confirms the Judge's concerns:
Ries first appeared before a magistrate Judge on February 25, 1994. At his arraignment on February 28, Assistant Federal Defender Jeffrey Staniels was appointed to represent him. Trial was set for April 25, 1994.
At a status conference on March 11, the trial date was vacated at defendant's request. After several continuances of status hearings and trial dates at the request of Ries or his co-defendant, the trial was finally set for February 6, 1995.
Young made his first appearance at a trial confirmation hearing on January 23, 1995. Ries stated that he wanted to retain Young and relieve the federal defender. Although Young had not yet filed his pro hac vice application, the court permitted him to appear specially on behalf of the defendant. However, the court ordered Young to file his pro hac vice application before he left the courthouse, and Young said he would do so. Young then orally moved for a continuance of the trial date; the court reset the trial for February 27 and the trial confirmation hearing for February 13.
On February 13, Young again appeared for the defendant. The court inquired into whether Young had filed his pro hac vice application, and Young said, "Yes. I have." Young then requested a continuance of the trial date so that he could file "some motions under 12(b) that need to be made prior to the trial." The Judge stated that Young would have to petition the court to bring any dispositive motions at that late date and would also have to request that they be heard on shortened time. He denied the motion to continue, without prejudice, again observing that he was unhappy about the delays in bringing the case to trial.
On February 17, four working days before the trial was scheduled to begin, Young filed a motion to recuse the trial Judge and to continue the trial yet again. He also filed a witness list naming 88 people - including Congressmen Henry Gonzalez and John Dingell and a number of other public figures - who had not been served.
In violation of Local Rule 430, none of Young's motions were noticed; therefore, it became the Judge's burden to bring the parties into court. He asked his deputy clerk to schedule a hearing on the first available date. The clerk was able to schedule the hearing for February 24, the last business day before the jury was to be empaneled.
On February 22, Young filed his pro hac vice application. Under Local Rule 180(b)(2), he was required to designate a "member of the Bar of this Court with whom the Court and opposing counsel may readily communicate regarding that attorney's conduct of the action and upon whom papers shall also be served." Young designated a James Knowles of "Salano [sic] Beach, CA" as his local counsel. The court made a call to the State Bar and found that there was no attorney with that name listed in California. The court did find an attorney Knowles with a different first name in Solana Beach, a community 500 miles from the courthouse in Sacramento. That attorney was not a member of the Eastern District of California bar, nor had Young submitted the required consent of Knowles or anyone else to appear as local counsel.
When the matter was called on Friday, February 24, 1995, defendant appeared without an attorney. Defendant told the court that "my counsel couldn't be here today." Incredulous - given that the trial was scheduled to begin the following Monday - the court trailed the case so that the defendant could telephone Young and local counsel.
When the case was recalled, defendant announced that Young had sent a fax to the court clerk "this morning or last night" regarding his absence, but that he mistakenly sent it to the wrong area code. The court then recited the procedural history of the case, including Young's failure to show up for the crucial eleventh-hour hearing; Young's failure to comply with the court's order that he file his pro hac vice application on January 23; Young's misrepresentation on February 13 that he had already filed the application; the filing of a pro hac vice application that failed to designate identifiable local counsel and that was "erroneous in other particulars"; and the filing by Young of a number of unnoticed motions in violation of local rules and procedures.
Only then did the court deny Young's pro hac vice application.
"A defendant's right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice." United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993); see also Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir. 1989)("[A] decision denying a pro hac vice admission necessarily implicates constitutional concerns."), cert. denied, 493 U.S. 1082, 110 S. Ct. 1140, 107 L. Ed. 2d 1045 (1990). However, the Sixth Amendment right to chosen counsel is not absolute, Lillie, 989 F.2d at 1055-56; it can be abrogated to serve a "compelling purpose." United States v. D'Amore, 56 F.3d 1202, 1204 (9th Cir. 1995). Ensuring the ethical and orderly administration of Justice is one such purpose. See Lillie, 989 F.2d at 1056; Panzardi-Alvarez, 879 F.2d at 980.
Here, the Judge determined that admission of attorney Young would interfere with the "orderly administration" of Justice - that is to say, of Ries' trial. A portion of the Judge's statement denying Young's application is reprinted as an Appendix to this opinion. It is clear from the transcript that Judge Garcia's sole concern was getting the trial on track.
Pro hac vice counsel, "once admitted, . . . cannot be disqualified under standards and procedures any . . . more stringent than those imposed upon [members of the local bar]." United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990), cert. denied, 500 U.S. 920, 114 L. Ed. 2d 108, 111 S. Ct. 2022 (1991). However, it is not true that standards for admission of pro hac vice counsel must be precisely the same as for counsel who seek permanent admission. This is so because counsel from other jurisdictions may be significantly more difficult to reach or discipline than local counsel. Where, as here, an of out-of-state attorney strongly suggests through his behavior that he will neither abide by the court's rules and practices - thus impeding the "orderly administration of Justice" - nor be readily answerable to the court, the Judge may, consistent with the "compelling purpose" standard of D'Amore, 56 F.3d at 1204, reject his pro hac vice application. See also Panzardi-Alvarez, 879 F.2d at 980 (in deciding whether to grant pro hac vice application, it is "appropriate . . . for the court to consider the effect of the attorney's past actions . . . on the administration of Justice within the court.").
In denying a pro hac vice application, the Judge must articulate his reasons, for the benefit of the defendant and the reviewing court. "Mechanistic application of rules limiting such appearances is improper." Collins, 920 F.2d at 626. Here, the Judge's statement of reasons was not mechanistic, but measured. We have reviewed the history of attorney Young's appearances in the Eastern District of California, and studied the district court's handling of the matter. We have determined that the Judge was well within his discretion in concluding that Young was not living up to his responsibilities.
Finally, the Judge, in denying a defendant choice of counsel, must give the defendant adequate time to prepare for trial. Here, after denying attorney Young's application, Judge Garcia continued trial for nearly three months, eliminating any prejudice to the defendant.
Transcript of Proceedings
Friday, February 24, 1995
THE COURT: Criminal case number 94-0009, U.S. versus David Ries, defendant.
MR. McKEON: Good morning, your Honor. Mark Mc-