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United States v. Ponzo

United States District Court, D. Massachusetts

October 27, 2016

ENRICO PONZO, Defendant.


          Nathaniel M. Gorton United States District Judge

         In November, 2013, a jury found Enrico Ponzo (“Ponzo” or “defendant”) guilty of, inter alia, racketeering, conspiracy to commit murder and extortion. Ponzo's motion to appoint counsel to assist him 1) in opposing the government's post-judgment criminal forfeiture motion now under appeal and 2) with a motion for a new trial pursuant to Fed. R. Crim. P. 33 is now pending before the Court.

         I. Background

         In February, 2011, after Ponzo was arrested he requested that the Court appoint either Attorney Norman Zalkind or Attorney David Duncan as his counsel. The Court appointed Attorney Duncan to represent Ponzo.

         In September, 2012, Ponzo moved for pro se hybrid representation and requested that he be allowed to act as co- counsel. The Court convened a hearing on the motion and subsequently denied it. Thereafter, at a hearing in October, 2012, defendant sought permission to proceed pro se in his own defense and orally waived his right to counsel. The Court determined that the waiver was knowing and voluntary and allowed defendant's request. One week later, defendant decided that he did not wish to proceed pro se and requested new counsel. Despite the resulting delay, the Court appointed Attorney John Cunha, the Criminal Justice Act (“CJA”) duty attorney, as defendant's counsel.

         In October, 2013, on the first day of his criminal trial, defendant moved to have Attorney Cunha removed and new counsel appointed. After the Court conducted a colloquy with defendant, he reconsidered, decided to retain his then current counsel and withdrew his motion.

         After the trial was completed and after the jury returned a verdict of guilty but before defendant's sentencing, Ponzo again moved for new counsel in November, 2013. That motion was denied as was his subsequent motion to proceed pro se. In early 2014, defendant moved for reconsideration of his motion to proceed pro se and sent the Court a letter in support thereof. After convening a hearing, the Court 1) allowed defendant's motion to appear pro se at the sentencing hearing with Attorney Cunha present as standby counsel and 2) allowed Attorney Cunha's motion to withdraw after sentencing.

         Having proceeded pro se for over two years, during which time Ponzo filed numerous post-sentence pleadings, on July 18, 2016, defendant moved once again for the appointment of counsel.

         II. Motion to Appoint Counsel

         1. Legal Standard

         Pursuant to the CJA, United States District Courts are required to appoint counsel for criminal defendants who qualify financially unless such defendants waive their right to counsel. 18 U.S.C. § 3006A(b). Section 3006A(c) states that if counsel is appointed, the individual shall be represented at all stages of the proceedings including the appeal and “ancillary matters appropriate to the proceedings.” 18 U.S.C. § 3006A(c). The right to counsel does not extend to motions for a new trial. Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965).

         In order to proceed pro se, defendants must “knowingly and intelligently” waive their right to counsel. United States v. Kneeland, 148 F.3d 6, 11 (1st Cir. 1998)(internal quotation and citation omitted). Before allowing such a waiver, Courts are required to ensure that defendants are “aware of the dangers and disadvantages of self-representation” and that the “choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 835 (1975) (internal quotation and citation omitted). A waiver is effective if the defendant has “a sense of the magnitude of the undertaking” and a consciousness that “technical rules” apply in a trial. Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 1976).

         In criminal cases, the right to counsel is absolute but there is no right to have a specific attorney appointed. United States v. Diaz-Martinez, 71 F.3d 946, 949 (1st Cir. 1995). It is appropriate for courts to give defendants a choice between continuing with a competent appointed counsel or representing themselves. Kneeland, 148 F.3d at 11-12. A court's decision to deny a defendant's request for substitute counsel is reviewed for the abuse of discretion. United States v. Diaz-Rodriguez, 745 F.3d 586, 590 (1st Cir. 2014). Courts must, however, evaluate the defendant's discontent with counsel by “prob[ing] into the nature and duration of the asserted conflict.” Id.

         2. ...

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