United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
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.
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.
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
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.
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.
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
Motion to Appoint Counsel
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).
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).
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.”