The opinion of the court was delivered by: Sorokin, C.M.J.
SECOND ORDER ON DEFENDANT'S REQUESTS FOR HYBRID REPRESENTATION AND NEW COUNSEL
A grand jury indicted Enrico Ponzo in 1997. After many years as a fugitive, Ponzo was arrested in Idaho in early 2011. On February 10, 2011, Attorney Norman Zalkind filed a motion with the Court requesting appointment as Ponzo's counsel under the Court's Criminal Justice Act plan. Docket #1373. In the motion, Zalkind recounted, inter alia, that he had represented Ponzo in seven different prior cases, and that he also had represented Ponzo's parents. Judge Gorton denied this motion without prejudice. In the margin order, Judge Gorton directed that first Ponzo would have to establish his indigency, at which point the Court would consider appointing Attorney David Duncan, Zalkind's partner, who, unlike Zalkind, is a member of the CJA panel. Docket #1379.*fn1
On March 25, 2011, Ponzo made his initial appearance in this Court. The Government objected to Duncan's appointment, arguing that the Court's CJA plan does not permit a defendant to select his appointed attorney and that the Court would violate this principle by appointing Attorney Duncan. Ponzo did not object to Duncan's appointment. The Court appointed Duncan.
The case proceeded with the Government disclosing voluminous quantities of discovery; as a result, Attorney Duncan required a substantial period of time to review the discovery and make follow-up discovery requests to the Government. See, e.g., Docket #1432. The parties also litigated disputes over access to Ponzo's financial affidavit and detention. On June 1, 2012, Ponzo filed four discovery related motions. Docket #1465-68. On June 11, 2012, the case was reassigned to the undersigned for pretrial management due to Judge Hillman's appointment as a United States District Judge.
On June 27, 2012, Ponzo was present for a hearing on the discovery motions, and on July 19, 2012, the Court issued a memorandum and order resolving each of the motions. Docket #1477. On August 8, 2012, the Court held a status conference with counsel, at which Ponzo again was present. Although the case appeared ripe at that time to return to Judge Gorton, at the request of the parties, a further status conference was scheduled for October 23, 2012 to provide an opportunity for the Government to make early disclosure of Jencks material and to provide an opportunity for the defendant to review that material.
During the eighteen months of pretrial litigation preceding the August 8, 2012 status conference, Ponzo had not requested, orally or in writing, either to have Attorney Duncan replaced or to proceed pro se. Indeed, Ponzo had not expressed to the Court, either orally or in writing, any dissatisfaction with Attorney Duncan's performance.
On September 24, 2012, Ponzo filed a motion for "Pro Se Hybrid Representation," in which he asked permission "to act as co-counsel, Pro Se, due to the fact that the defendant and appointed counsel have very different views of Theories of Defense and appointed counsel refuses to make motions or do essential acts demanded by Ponzo." Docket #1498. The Court held a hearing on this Motion on September 28, 2012. The Government opposed hybrid representation. Docket #1503. At the conclusion of the hearing, the Court denied the request for hybrid representation and scheduled a further status conference for October 9, 2012.*fn2
Notwithstanding the Court's ruling, Ponzo proceeded to file motions on his own behalf. See Docket #1504-05. At the October 9th status conference, Attorney Duncan filed a motion to withdraw, and Ponzo renewed his request for hybrid representation. Ponzo's request was, again, denied. Ponzo then requested permission to proceed pro se. After a lengthy colloquy, the Court concluded Ponzo had knowingly and voluntarily waived his right to counsel. See Docket #1508. The Court took under advisement Ponzo's request for standby counsel, but denied it in an October 10, 2012 written order. Id. Accordingly, the Court allowed Attorney Duncan to withdraw, but stayed the order. Id. Because of the gravity of the decision, and in light of Ponzo's requests first for hybrid representation and then for standby counsel, the Court scheduled a further status conference for October 16, 2012.
At the October 16th hearing, Ponzo appeared pro se and requested the appointment of new counsel to represent him. He also stated he did not wish to proceed pro se, notwithstanding what he told the Court on October 9th. The Court scheduled a further conference for October 25, 2012, so that it could hear from Attorney Duncan as well.
At the October 25th hearing, Ponzo reiterated his request for appointment of new counsel. At this hearing, as had occurred at the prior hearings, the Court conducted a sealed, ex parte discussion with Attorney Duncan and Ponzo. During the sealed portion of the hearing, Attorney Duncan reported that he and Ponzo had "very different views" regarding both how to proceed with the defense of this case and what issues were important. Attorney Duncan reported that these issues had developed over the past two or three months, and that he and Ponzo had been unable to reconcile them. Ponzo echoed Attorney Duncan's statements. Ponzo told the Court that he wanted Duncan to investigate certain matters and file certain motions, neither of which Attorney Duncan was doing in light of their differing views as to how to defend the case.
After the sealed portion of the hearing, the Court stated a tentative view that Ponzo could proceed with Attorney Duncan and invited comment. Attorney Duncan stated he did not "see how [he] can be [Ponzo's] lawyer given his views and my views." He further stated his opinion that there had been a "breakdown in the attorney-client relationship." Ponzo likewise objected to proceeding with Attorney Duncan, citing fundamental and irreconcilable differences regarding how to proceed. The Government, based on the history of this matter and particularly the statements made by Attorney Duncan and Ponzo, took the position that Ponzo was constitutionally entitled to the appointment of new counsel. The Government reiterated this position in a subsequently filed post-hearing submission. Docket #1534. The Court took the matter under advisement.
Several conclusions are plain. Ponzo does not wish to represent himself, despite his assertions to the contrary during the colloquy on October 9, 2012. He wants to pursue a certain line of defense, but he does not desire to do so on his own behalf. This is evidenced by Ponzo's series of counsel-related requests: first, to proceed as co-counsel, not pro se; second, to proceed pro se with standby counsel (which I now conclude Ponzo thought would constitute hybrid representation by another name); and third, to proceed with new counsel once the Court rejected both hybrid representation and standby counsel. Accordingly, I vacate the findings of fact and conclusions of law set forth in my October 10, 2012 Order (Docket #1508), and the companion findings made on the record on October 9, 2012, regarding Ponzo's waiver of counsel and request to proceed pro se.
The only question remaining is whether to direct Ponzo to proceed with Attorney Duncan or to allow the request for the appointment of new counsel. On one hand, Ponzo initially requested representation by Attorney Duncan's partner and accepted Attorney Duncan's appointment. He then proceeded with Attorney Duncan as his counsel, and without complaint or objection, for eighteen months as the parties wrangled over various preliminary and discovery matters. During this period, Attorney Duncan invested substantial effort in reviewing the voluminous discovery in this case and vigorously contesting numerous discovery-related matters. Only as the case was poised to return to Judge Gorton for briefing of dispositive motions and an initial pretrial conference did Ponzo raise his first complaint. On the other hand, the Government intends to supercede the indictment to add new charges that have been under investigation since Ponzo's arrest last year. The Government has ...