Appeal from order of United States District Court for the Southern District of New York, Pierre N. Leval, J., terminating appointed counsel under the Criminal Justice Act, 18 U.S.C. § 3006A. Order held appealable and affirmed on merits. Affirmed.
Before FEINBERG, Chief Judge, CARDAMONE and PIERCE, Circuit Judges.
John L. Harris, charged in a multi-count indictment in the United States District Court for the Southern District of New York with commodities fraud, wire fraud, mail fraud and using a false name in furtherance of a mail fraud scheme in violation of 7 U.S.C. §§ 60(l) and 13(b) and 18 U.S.C. §§ 1341-43, appeals from an order of Pierre N. Leval, J., that terminated the appointment of Harris's counsel under the Criminal Justice Act, 18 U.S.C. § 3006A (the Act). The basis of the order was a finding that Harris had failed to demonstrate that he was unable to afford counsel. The issues before us are whether such an order is appealable at this stage of the criminal proceeding and whether, on the merits, the order should be reversed. We conclude that Harris has the right to appeal now, and that the order should be affirmed.
The factual background may be stated briefly. In October 1981, Harris was arrested on a complaint in connection with this case. At his arraignment, he filed CJA Form 23, a summary, one-page financial affidavit, requesting appointment of counsel under the Act. Magistrate Naomi R. Buchwald then assigned The Federal Defender Services Unit of the Legal Aid Society (LAS/Federal Defender) to represent Harris. Apparently, Jack Lipson, Esq., Attorney-in-Charge of the trial division of LAS/Federal Defender, then proceeded to represent Harris.A 57-count indictment against Harris and a co-defendant was filed in January 1982; Harris is charged in 25 counts of the indictment.
In March 1982, the government moved before Judge Leval, to whom the case had been assigned, for a "determination" under Fed. R. Crim. P. 44 and 18 U.S.C. § 3006A that Harris was "not financially unable to obtain counsel and hence is not entitled to be represented . . . by Jack Lipson. . . ." In support of its motion, the government submitted documents that allegedly showed that the Harris household (Harris is married) had over $70,000 in income during 1980, and over $30,000 in 1981. Disputing the government's conclusions, Harris's attorney submitted an affidavit in response; the government in turn filed a supplementary affidavit.
Judge Leval referred the motion to United States Magistrate Kent Sinclair, who held a hearing in July 1982. The magistrate concluded that on the record before him Harris had not met his burden of proof to establish his need for appointment of counsel. Harris declined, however, to produce any further evidence unless he was allowed to do so at an in camera, ex parte proceeding. In August 1982, the magistrate denied this request. Thereafter, Judge Leval affirmed this ruling, and Harris again declined to produce further financial information. Finally, in October 1982, the magistrate recommended that an order be issued terminating the appointment of counsel for Harris, and Judge Leval entered such an order, but stayed it pending determination of this appeal.
The government argues strenuously that this court has no jurisdiction to review the district court's order because the appeal improperly seeks interlocutory review of a non-final order. The government correctly points out that under 28 U.S.C. § 1291, the various courts of appeals have "jurisdiction of appeals from all final decisions of the district courts. . . ." and that in a criminal case "final decision" ordinarily means a judgment of conviction. Parr v. United States, 351 U.S. 513, 518, 100 L. Ed. 1377, 76 S. Ct. 912 (1956). Citing such cases as Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981) and United States v. Nixon, 418 U.S. 683, 690, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), the government reminds us that the statutory limitation reflects a firm legislative policy against interlocutory or "piecemeal" appeals. Indeed, this case illustrates the unfortunate delay in enforcement of the criminal law that such appeals can cause, since Harris was arrested over a year-and-a-half ago and he and his co-defendant have not yet gone to trial on a variety of serious charges of defrauding the public. Finally, the government stresses that allowing an appeal here will encourage defendants to seek delay in criminal cases by making an application, no matter how frivolous, for appointment of counsel and then taking an appeal from denial.
These are persuasive arguments whose strength have often been recognized by the Supreme Court*fn1 and by us*fn2 in varying factual settings. Yet, the response of appellant Harris here is equally compelling. Citing, e.g., Gideon v. Wainwright, 372 U.S. 335, 342-45, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) and Faretta v. California, 422 U.S. 806, 832, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), appellant points out that the right to counsel is essential to a fair criminal trial and necessary for the protection of other rights. Appellant argues that any untoward delay here is caused by the government, which chose to seek to separate Harris from his counsel, instead of utilizing other remedies available to it after the trial, e.g., a suit for recoupment or a prosecution for perjury. Appellant argues that Judge Leval's order is appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), as applied by the Supreme Court in its subsequent cases. Under that doctrine, we have held appealable orders disqualifying counsel in both a civil case, Armstrong v. McAlpin, 625 F.2d 433, 440-41 (2d Cir. 1980) (in banc), vacated on other grounds, 449 U.S. 1106, 101 S. Ct. 911, 66 L. Ed. 2d 835 (1981), and a criminal case, United States v. Curcio, 694 F.2d 14, 19-20 (2d Cir. 1982); United States v. Cunningham, 672 F.2d 1064, 1066 (2d Cir. 1982). Appellant claims that the situation here is "all but identical."
We are, therefore, once again, faced with the need to apply a body of law that has been described as "unnecessarily and unacceptably complex, uncertain, and sometimes even inscrutable."*fn3 But apply it we must, to the best of our ability. Cohen held that certain orders that were not final judgments in the ordinary sense were nonetheless appealable as a "final decision" under 28 U.S.C. § 1291 if they met three criteria: (1) that the order be separable from and collateral to the merits of the action; (2) that denial of an immediate appeal would result in irreparable damage to the party seeking review; and (3) that the issue was "too important" to be deferred until the whole case was adjudicated. Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 545-47. Appellant asserts that these criteria are met here. The first has been construed to mean that the challenged collateral order, to be sufficiently final to be appealable, "must constitute "a complete, formal, and in the trial court, final rejection" . . . of a claimed right. . . ." Firestone Tire & Rubber Co. v. Risjord, supra, 449 U.S. at 376, quoting from Abney v. United States, 431 U.S. 651, 659, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). Appellant stresses that since Judge Leval's October order was issued, over appellant's insistence that he had no money to retain counsel, he has been without an attorney, and that as long as the order stays in effect, he is being denied "the guiding hand of counsel at critical stages of the proceeding. . . ."*fn4
The government responds that the order is not final because under 18 U.S.C. § 3006A(c) orders appointing, declining to appoint or terminating appointment of counsel are not final determinations of eligibility, but rather are subject to review "at any stage of the proceedings." Appellant rejoins that the right to counsel cannot be parsed; an appointment at a later stage of a criminal proceeding cannot restore the counsel that was needed at an earlier stage. Moreover, argues appellant, the government misreads § 3006A(c); that section does not contemplate repeated requests for assignment of counsel, and on this record, where an in camera hearing was denied, appellant cannot offer additional information in support of such a request without fear of self-incrimination.
Appellant claims that the second criterion, that denial of review now would result in irreparable damage, is also met. The government argues that if appellant goes to trial without counsel and is convicted, he can of course obtain review of the order denying counsel in an appeal from the conviction, since prejudice would be presumed. Conversely, if appellant retained counsel, this would merely show that the district court's order was correct and that Harris was not wrongly deprived of counsel at government expense. Appellant rejoins that his right to counsel is the right to be represented at his first trial, not at a possible second after a reversal. Moreover, says appellant, counsel's function is not merely to safeguard the fairness of a trial, but also to guide, investigate, advise and protect, at all stages including pre-and ...