779 F.

2d 956

UNITED STATES of America, Appellee,

v.
Kevin RANKIN, Appellant.
No. 84-1562.

United States Court of Appeals,

Third Circuit.
Argued Nov. 4, 1985.
Decided Jan. 6, 1986.

F. Emmett Fitzpatrick (argued), Philadelphia, Pa., for appellant.

Louis R. Pichini, (argued), Sp. Atty., Edward S.G. Dennis, Jr., U.S. Atty.,
Philadelphia, Pa., William C. Bryson, Dept. of Justice, Washington, D.C.,
for appellee.
Before SEITZ, WEIS, and ROSENN, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.

The scheduling of trials involving busy lawyers is a difficult problem of court

administration that is compounded when both state and federal courts compete
for the time of the same attorneys. To meet this concern, the courts in
Philadelphia adopted a compact to honor the commitments of counsel while
actually in trial. In the case at hand, the district judge denied a continuance
requested by the defendant because his counsel was engaged in the state court.
As a result the defendant was forced to proceed with an appointed lawyer.
Although the defendant's right to the services of specific counsel is not
absolute, we conclude that in the circumstances here, the deprivation
constituted an unnecessary infringement that requires the grant of a new trial.

Defendant Rankin was charged with two counts of conspiracy under 21 U.S.C.
Sec. 846 to distribute heroin and other controlled substances, including cocaine.
The indictment also contained six counts of using a telephone to facilitate the

conspiracies, 21 U.S.C. Sec. 843(b). After a sixteen-day jury trial, defendant

was convicted of all counts and was sentenced to the maximum term of fiftyfour years of imprisonment.
3

Rankin was one of fourteen persons named in an indictment that contained

thirty counts alleging a large scale illegal drug operation. At the time of
arraignment in September 1983, Rankin retained F. Emmett Fitzpatrick, an
experienced and competent criminal defense attorney, to represent him.

Because of the complexities of the multi-defendant case, continuances were

granted to permit adequate discovery and pretrial procedures. On February 1,
1984, Fitzpatrick began a murder trial in the Court of Common Pleas of
Philadelphia County. The state proceeding was in progress when on March 26,
1984, the district court designated the case at hand as a "special listing," which
was to take precedence over all attachments of counsel occurring after that date.

On April 24, 1984, the district judge convened a pretrial conference, calling to
the attention of all counsel that the trial was to begin on June 4, 1984.
Fitzpatrick was still engaged in the state court but advised the district judge that
the murder trial would probably conclude before June 4.

At another pretrial conference on May 8, 1984, the district judge announced

that Fitzpatrick's availability for the June 4 trial seemed unlikely and informed
defendant Rankin that he should retain alternate counsel. Fitzpatrick once again
stated that he expected to be free by June 4. In addition, he called attention to
the terms of a compact between the state and federal trial courts in Philadelphia.
This agreement provided generally that a lawyer trying a case in one forum
would be considered unavailable and would not be expected to appear before
the other until the trial was concluded.

Fitzpatrick appeared in the district court on June 4 to advise that the murder
trial was continuing and would be finished about the end of the month. On that
same morning, ten of the defendants in this case pleaded guilty. One other
remained a fugitive, and another, a hospital patient, signed a memorandum
agreeing to plead guilty. Only Rankin's co-defendant Giangrante persisted in a
demand for an immediate trial.

On the following day, June 5, the district judge directed Rankin to obtain
alternate counsel by noon. Rankin chose instead to file a petition for mandamus
with this court. Giangranti entered a guilty plea on June 12, leaving only Rankin
to be tried. One week later, this court denied the petition for mandamus,1 and

on June 20 the district court appointed a lawyer for Rankin. Counsel was given
approximately one month to prepare the case. Jury selection began on July 18,
and verdicts were returned against Rankin on August 10, 1984. Fitzpatrick's
case in the state court had concluded on August 2.
9

The government introduced evidence from which the jury found that Rankin, an
attorney, was part of the drug operation headed by co-defendant Martorano.
Much of the evidence consisted of out-of-court statements of co-conspirators.
In addition, the prosecution produced audio and videotapes of Rankin's
conversations with undercover government agents.

10

On appeal, defendant contends that he was denied the right to representation by

counsel of his choice and that various evidentiary rulings by the trial court were
erroneous. The former contention requires more extended discussion, and
accordingly we will address it first.

I.
11

Rankin did select counsel but was denied representation at trial by that lawyer.
That this deprivation occurred as a result of the court's refusal to grant a
continuance does not obscure the nature of the right at stake. Chandler v.
Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954).

12

We have stated that "the most important decision a defendant makes in shaping
his defense is his selection of an attorney." United States v. Laura, 607 F.2d 52,
55 (3d Cir.1979). "Attorneys are not fungible," and "[t]he ability of a defendant
to select his own counsel permits him to choose an individual in whom he has
confidence." Id. at 56. Recognizing the importance of these interests, we held "
[i]f a defendant chooses a particular lawyer, a court may not take arbitrary
action prohibiting the effective use of that counsel." Id. at 57.

13

The right, however, is not absolute and must be balanced against the
requirements of the fair and proper administration of justice. Davis v. Stamler,
650 F.2d 477 (3d Cir.1981). A defendant will not be permitted to subvert
judicial proceedings or cause undue delay by designating a certain lawyer.
Thus, representation that constitutes a breach of professional ethics need not be
tolerated. United States v. Dolan, 570 F.2d 1177 (3d Cir.1978). Nor must a
court honor a belated request made not in good faith but as a transparent ploy
for delay. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d
610 (1983). The ability to choose counsel "is a right and proper tool of the
defendant; it cannot be used merely as a manipulative monkey wrench." Gandy

v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir.1978).

14

Although the right of representation by chosen counsel is subject to limitations

it may not be hindered unnecessarily. Interfering with a defendant's efforts to
secure counsel and thereby forcing on him representation by an undesired
court-appointed attorney may amount to denial of a constitutional right. For that
reason, "[a] defendant's choice of counsel is not to be dealt with lightly or
arbitrarily." United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982),
rev'd on other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).

15

In United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir.1969), this
court was presented with a contention that a trial judge had abused his
discretion by denying a continuance so that a defendant could obtain the
services of his chosen lawyer. We rejected the defendant's argument and
discussed the ripple effect a postponement could have on a court's calendar,
particularly in a large metropolitan community. We noted the need for a firm
trial date to enable the government to assemble its witnesses and schedule its
attorneys. Not only can a continuance have a disruptive effect on court
administration, but it may also "prejudice the rights of another defendant
[whose] trial is delayed." Id. at 1214. We went on, however, to point out the
difficulty posed by "an arbitrary and inelastic calendaring of cases without due
regard, for example, to the existence of conflicting demands for the service of a
particular counsel by different courts or by the schedules within a multi-judge
court." Id. at 1215.

16

That particular problem is presented in this case. Here, we have no belated

request, no bad faith, no maneuvers intended to delay. Rather, we are
confronted with the serious, frustrating, and recurring problem of allocating
busy trial counsel's time among busy and overburdened courts in the state and
federal systems. Because lawyers are not "fungible", and because in the real
world trial retainers are not evenly distributed, some accommodation must be
reached.

17

The difficulty is especially acute in the large urban areas where the state and
federal trial courts are in competition for the time of the leading trial lawyers.
Both court systems have burgeoning dockets, and both are conscientiously
attempting to process their cases as rapidly as possible. This situation frequently
results in simultaneous requests for the presence of a particular trial lawyer by
state and federal courts. Because the laws of physics make dual compliance
impossible, the trial lawyer faces an unhappy choice--whether to be held in
contempt in state or federal court. The courts' irritation is compounded by a few
elusive practitioners who play one court against the other--purporting to be in

one forum or the other but actually not trying a case in either.
18

After some unpleasant incidents of this nature, in 1973 the state and federal
courts in the Philadelphia area agreed on a cooperative plan for allocating trial
lawyers. The courts adopted local rules and practices so that attorneys would
appear in the two forums on an alternating basis. A lawyer actually trying a
case in either state or federal court is recognized by the other forum as engaged.
On termination of that case, counsel must notify the appropriate clerk and be
available for an assignment in the other court system. Provision is also made
for "special listings" in exceptional cases to grant "priority over all other trial
engagements thereafter scheduled."2

19

This arrangement was reaffirmed in 1975 by correspondence between the chief

judge of the District Court and the administrative judge of the Court of
Common Pleas of Philadelphia. 3

20

The problem of conflicts between the state and federal court systems is a
serious one, and the solution achieved by the joint action of the Eastern District
and the Philadelphia Court represents an intelligent and thoughtful
compromise. Only through strict observance of the compact by both
jurisdictions will the efforts be successful. Thus, the existence of the compact is
a factor that must weigh heavily in the decision of a court to grant or deny a
continuance in a case such as this one. That is not to say that it is the only
consideration. Just as the right to select counsel is not absolute, so too in
exceptional circumstances modifications of the compact's general rule may
become unavoidable.

21

The district judge here was assigned a case involving many defendants and
covering many counts. Assembling busy counsel for all parties for a lengthy
trial of this nature is no simple task. Added to the logistical difficulties are the
imperatives of the Speedy Trial Act. Understandably the district judge invoked
the special listing provision to ensure the availability of the many lawyers for a
trial scheduled some ten weeks later. Fitzpatrick then held a reasonable
expectation that the state trial would conclude in time. If so, he would not need
to invoke the provisions of the compact under which the specially listed federal
case could not take priority over the state trial, also a special listing, which had
already begun.

22

As the trial date approached and Fitzpatrick's availability became increasingly

questionable, the district judge was still faced with a multi-defendant, multicount trial and at least one defendant who was insisting on his speedy trial

rights. Had those conditions persisted, a balancing of Rankin's right to

representation by his chosen counsel against competing factors might have
become necessary. Desirability of proceeding with the trial on June 4 might
have required consideration of such alternatives as variance from the compact
or severance of Rankin's case. However, as so often happens, when the time for
trial actually arrived, the determined opposition of the defendants collapsed,
and by June 12 the only case remaining to be tried was that of Rankin.
23

At that point, the conflicting considerations had diminished, and the situation
had been greatly simplified. Fitzpatrick was the only defense counsel who was
unavailable, and according to the compact, he was to report to the federal court
on conclusion of the state case. Rankin was not pressing for an immediate trial
but, in fact, wished to wait for Fitzpatrick. In sum, as of June 12 the situation
presented was the typical one envisioned by the compact. Had its provisions
been observed. Rankin's right to select his own counsel would have been
preserved. In those circumstances, recognition of his rights and the important
interests served by the compact furnished ample grounds for delay.

24

The matter of a continuance is traditionally within the discretion of the trial

judge who must necessarily be given wide latitude in scheduling trials. Morris
v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983); United
States v. Riccobene, 709 F.2d 214, 231 (3d Cir.1983); Paullet v. Howard, 634
F.2d 117 (3d Cir.1980). However, a rigid insistence on expedition in the face of
a justifiable request for delay can amount to a constitutional violation. The
answer must be found in the circumstances present in the particular case. Ungar
v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).

25

We are called on to decide only the propriety of the judge's action in the
circumstances existing after June 12, when Rankin's case was the sole one
remaining to be tried. As noted, serious countervailing considerations to a
continuance had disappeared by that time. Nevertheless, the trial judge
apparently did not realize that he was required to reevaluate the situation.
Having disposed of the other cases, he naturally became preoccupied with the
prompt disposition of the one remaining. While the situation is understandable,
the failure to reassess the circumstances denied Rankin's substantial rights and
violated the terms of the inter-court compact. In that sense, the refusal to
continue the trial date amounted to arbitrary action.

26

Although the trial court's ultimate decision to deny a continuance is

disapproved, we would be remiss if we failed to note with approbation the
district judge's practice of communicating with the state judge during the
pendency of the state trial. Such cooperation is to be encouraged as a sensible

and mature way of lessening conflict between state and federal courts. Cf.
United States v. Wendy, 575 F.2d 1025, 1031 n. 23 (2d Cir.1978).
27

The government argues that Rankin was competently represented by appointed

counsel at trial. That, however, is not a relevant consideration. A defendant
who is arbitrarily deprived of the right to select his own counsel need not
demonstrate prejudice. "Obtaining reversal for violation of such a right does not
require showing of prejudice to the defense, since the right reflects
constitutional protection of the defendant's free choice independent of concern
for the objective fairness of the proceeding." Flanagan v. United States, 465
U.S. 259, 268, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 288 (1984). In this respect, the
denial of one's selected lawyer is quite different from a claim of ineffective
counsel where a harmless error test is appropriate. The right at stake here is
similar to that of self-representation. "The right is either rejected or denied; its
deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8,
104 S.Ct. 944, 951 n. 8, 79 L.Ed.2d 122 (1984). See also United States v.
Laura, 607 F.2d 52, 58 (3d Cir.1979) (defendant "need not show that the
dismissal [of counsel] was prejudicial.")

28

We emphasize our adherence to the principle that the trial judge has broad
discretion in granting or denying continuances. Nevertheless, in the unusual
circumstances here the denial of a postponement requires the grant of a new
trial.

II.
29

Defendant contends that the admission of declarations by co-conspirators and

the jury instructions on conspiracy were additional errors. No objection was
made to any of these points during the trial, and we ordinarily would not review
those contentions at this time. However, since the case is being returned for a
new trial, it is appropriate to comment on the points to eliminate the necessity
for future appeals.

30

We find no error in the charge on conspiracy and note that the confrontation
problem in connection with the co-conspirators' statements was argued on
December 3, 1985 before the Supreme Court of the United States in United
States v. Inadi, --- U.S. ----, 105 S.Ct. 2653, 86 L.Ed.2d 271 (May 28, 1985), on
certiorari from, 748 F.2d 812 (3d Cir.1984). A decision may be expected before
this case is retried.

31

Defendant also complains about the trial judge's questioning of a character

witness in chambers in the presence of counsel, defendant, and two FBI agents.
Defendant suggests that this interrogation had a chilling effect on the witness.
The record does not demonstrate that to be so, but since the episode raised
questions about the appearance of judicial impartiality, we suggest that the
procedure not be repeated on retrial.
32

Accordingly, the judgment of the district court will be vacated, and the case
will be remanded for a new trial.

APPENDIX TO OPINION OF THE COURT

General Regulation 73-2
***
33
***
34
(2) United States District Court in Philadelphia
35
36

The District Court will recognize as engaged all counsel of record in any case
actually on trial before a Common Pleas Court Judge and in cases appearing in
the first 20 cases on the Major Case List and in the first 15 cases published on
the General Jury Trial List. The engagement in the case actually on trial shall
be effective until the trial terminates by verdict or otherwise and in the case
appearing in the first 20 or 15 for a period of three (3) days after said case
reaches that position on the respective list.

37

(3) Both the Common Pleas Court and the United States District Court will
observe the procedure of alternating assignments, i.e., counsel assigned to trial
in the Common Pleas Court must upon completion be available for assignment
in the United States District Court before accepting another assignment in the
Common Pleas Court and vice versa.

38

No counsel shall try successive cases in either court except by agreement

between the respective judges involved as set forth in Paragraph 3 of Section
"D" (4) hereof.

(4) General
39
Counsel Must Report Case Terminations To Appropriate Clerks
40
41

Counsel must immediately report the termination of all trials (by verdict or

settlement conference) to the appropriate Clerk of the United States District

Court or the Common Pleas Court. Failure to do so will result in the imposition
of appropriate sanctions.
***
42
***
43
Problems of a Particular Case to be Taken up with Appropriate Judge
44
45

Problems not otherwise covered in this regulation regarding the listing or

assignment of a case for trial shall be taken up in the United States District
Court with the Judge on whose individual calendar the case appears and in the
Common Pleas Court with the Calendar Judge.
E. Advance Special Listings

46

In cases involving several busy lawyers, key witnesses from distant points,
especially important issues, or other special circumstances, a judge may grant a
special listing in advance. Such advance special listing shall take priority over
all other trial engagements thereafter scheduled.

The denial of the mandamus petition does not establish law of the case in this
appeal. The scope of review in a mandamus matter differs greatly from that on
appeal, see Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305
(1967), and we question whether mandamus may be invoked to challenge a
matter such as the denial of a continuance, which falls within the trial judge's
discretion. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct.
188, 66 L.Ed.2d 193 (1980); United States v. Mehrmanesh, 652 F.2d 766 (9th
Cir.1980). Under the circumstances, the denial of mandamus cannot be viewed
as a ruling on the merits of the issue presented here. See Skil Corp. v. Millers
Falls Co., 541 F.2d 554, 563 (6th Cir.1976) (Adams, J., dissenting)

The state court's general regulation 73-2 sets forth the terms of the inter-court
compact. The relevant portions of that document appear as an Appendix to this
opinion. The same understanding is memorialized in a document entitled
"Calender Control" on file with the Clerk of the District Court

A similar cooperative agreement has been in effect between the District Court
for the Western District of Pennsylvania and the Allegheny County (Pittsburgh)
Court of Common Pleas since 1963. For an account of the somewhat

unorthodox means by which this compact was arranged, see Weis, History of
the Allegheny County Academy of Trial Lawyers. Pittsburgh Legal Journal 3,
9-10 (May 1984)