Appeal from an order of the District Court for the Eastern District of New York, Jacob Mishler, Judge, denying a motion pursuant to 28 U.S.C. § 2255 by a defendant convicted of bank robbery to vacate his conviction because he had been represented, without his knowledge, by a law school graduate who, because of failure to pass bar examinations, had not become a member of the bar.
Friendly, Winter and Pratt, Circuit Judges.
Paul Peter Solina, Jr., was convicted on April 14, 1971, on one count of bank robbery in violation of 18 U.S.C. § 2113(d), in the District Court for the Eastern District of New York after trial before Judge Mishler and a jury and was given the maximum sentence of 25 years imprisonment. Solina now appeals from the same judge's denial, after a hearing, of a motion pursuant to 28 U.S.C. § 2255 to vacate the conviction and for a new trial. The ground of Solina's motion was that he had been represented, at trial and on the appeal wherein we affirmed the conviction, United States v. Marshall, 458 F.2d 446 (2 Cir. 1972), by one Walter T. Coleman, who posed as a lawyer but who, although holding a Bachelor of Law degree from an accredited law school, had not, despite two attempts, passed the New York State bar examination, for that reason had not become a member of the New York bar, and was not a member of any other bar. Recognizing that Solina had neither enjoyed nor waived the "assistance of counsel" to which he was entitled under the Sixth Amendment, the judge denied the motion in a reasoned opinion because, after taking Coleman's testimony and carefully scrutinizing the record, he concluded that Solina had not been prejudiced by Coleman's not being a licensed attorney and thus, although the opinion did not use the precise words, that the lack of licensed counsel was harmless beyond a reasonable doubt within the meaning of Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), and Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969). This conclusion was based upon a number of factors: that Coleman had a legal education; that he had experience in examining and cross-examining witnesses before administrative agencies; that the evidence of Solina's guilt was overwhelming; that examination of the 14 instances of ineffectiveness alleged by Solina's present counsel showed that these were inconsequential or within the permissible range of professional judgment; and thus that Solina had received representation from Coleman which met not only the standard applied by this circuit in cases involving the alleged incompetency of counsel, United States v. Wight, 176 F.2d 376 (2 Cir. 1949) (conduct not so deficient "as to shock the conscience of the Court and make the proceedings a farce and mockery of justice"), cert. denied, 338 U.S. 950, 94 L. Ed. 586, 70 S. Ct. 478 (1950), but also the higher standard set forth in United States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197, 1202 (D.C. Cir. 1973) ("reasonably competent assistance of an attorney acting as his diligent and conscientious advocate") and now generally followed in other circuits.
Coleman's testimony revealed the following: He was graduated from Fordham College in 1941, and in his final year of college worked as a law librarian at the Bronx County Bar Association Law Library. Coleman continued this employment while he attended Fordham Law School for part of 1941, after which he left to join the Naval Air Corps. At the end of World War II he was employed as a pilot training instructor for Pan American Airways, eventually becoming a representative of its ground employees' union. He returned to Fordham Law School in 1955 and 1956, enrolling in the evening program to complete one year's credit. In 1956 he transferred to the evening program of New York Law School, like Fordham an accredited law school, in order to take advantage of that program's summer session. Coleman received an LL.B. degree from New York Law School in 1958. He attempted the New York State Bar examination in 1959 and failed. He tried again in 1960, and this time passed the substantive law part but failed the procedural part. Coleman never took the bar examination again and was never admitted to practice law in any state.
From 1955 to 1971, Coleman handled an estimated 1000 labor cases before arbitration panels of the National Labor Relations Board and an equivalent number of matters before units of the National Mediation Board. His earliest labor law experience was gained by representing Pan American Airways employees in arbitration matters. Then, for a year and a half beginning in 1964, he was a full-time assistant to a lawyer representing management in labor matters; in this capacity Coleman helped to prepare for court appearances and sometimes sat at the counsel table. In 1965 or 1966 Coleman became Executive Director of the Long Island Restaurant & Caterers Association. His duties in that position included representing management in arbitrations with the Hotel and Restaurant Employees and Bartenders International Union. Although in administrative proceedings Coleman had offered evidence and cross-examined witnesses, prior to his 1971 representation of Solina he had never represented anyone or appeared on his own behalf in any motion or civil or criminal trial in state or federal court.
Coleman's legal education had included introductory courses in criminal law in 1941 and 1955 at Fordham, and an elective course on that subject at New York Law School. He also took a course in federal practice and participated in a clinical program at New York Law School. After 1958 he attended four Practicing Law Institute seminars on labor law but took no further courses in criminal law. Coleman testified that his reading of the Wall Street Journal and New York Times during the 1960's gave him what familiarity he had with the "more notorious" of the landmark decisions on criminal procedure. He stated that while in a law library doing labor law research he might have occasionally looked up current cases on criminal law.
Coleman met Robert Marshall, who was to be one of Solina's co-defendants in the bank robbery indictment, before he met Solina. Marshall retained Coleman to represent Solina, who was then out on bail on an earlier bank robbery charge. The following day, October 21, 1970, Solina, Marshall, and John Joseph Guglielmo, were arrested for the robbery on that day of the Security National Bank in Copiague, New York. The record does not disclose who was to pay Coleman. Both Marshall and Solina assumed that Coleman was a duly licensed attorney; Coleman did nothing to disabuse them of this assumption during the trial and appeal. On August 10, 1981, Coleman was convicted on a plea of guilty to practicing law without a license. Solina first learned of Coleman's unlicensed status from reading a newspaper report of this and subsequently made the motion here at issue.
The evidence of Solina's guilt was indeed overwhelming. As stated in Judge Mishler's opinion:
At the trial, three bank employees identified Solina as one of the two men who entered the bank and committed the robbery. A bank teller testified that one of the robbers (identified as Solina) cut his hand when glass in the teller's cage shattered as the robber jumped over the counter. Solina was arrested with his two co-defendants while fleeing from their overturned car after a high-speed chase following the robbery. One of the police officers involved in the chase identified Solina at the trial as a passenger in the car. Stolen money, bank books, "bait" money, various items used in the robbery (clothing, wigs, glasses, walkie-talkies) and one of Solina's shoes were recovered by the police from the overturned car. The shoe had particles of glass embedded in the sole. The glasses had the letters "S-o-l-i-n-a" on the ear piece. Laboratory analysis was offered showing that Solina's blood and clothing fibers were of the same type as those found in the bank and that Solina's heel print matched the print found on the bank counter. The glass embedded in the bottom of Solina's shoe was found to be of the same type as glass samples taken from the bank. At the time of his arrest, Solina had car keys in his pocket for a car owned by Marshall. (A car that was not used in the robbery). The government introduced the keys as evidence at the trial to indicate Solina's relationship with Marshall prior to the robbery.*fn1
Solina's defense, voiced through two witnesses but almost fated to be unconvincing in light of the circumstantial evidence offered by the prosecution, was that his arrest had been based on mistaken identity; that he had never met his co-defendants until the date of their arrest; and that he had been elsewhere in Long Island at the time of the robbery and, by coincidence, had been driven to the area where the getaway car overturned and dropped off at the side of the road just before the arrests were made.
The district court found that Coleman had met with Solina several times prior to and had conferred regularly with him during the trial.*fn2 He also had conferred with the experienced attorneys who represented the two co-defendants and often joined in motions made by them. He made a brief opening statement, cross-examined those of the Government's witnesses who identified Solina as one of the perpetrators, examined Solina's two alibi witnesses, and delivered in summation what the judge characterized as "a carefully reasoned attack on the eye-witness testimony". The effect of Coleman's summation was blunted, through no fault of his, when Solina's co-defendant Guglielmo interrupted it by slashing his wrist and causing the courtroom to be cleared. On appeal Coleman joined with the seasoned defense lawyer representing Marshall in pitching his case for reversal on the alleged prejudicial effect of this and other highly disruptive actions of Guglielmo described in our opinion, 458 F.2d at 448-49. There is no claim that taking this course was an error of judgment. We rejected the claims that the judge should have directed a mistrial or granted a severance under F.R.Cr.P. 14, but there is nothing to indicate that the most accomplished lawyer could have prevailed. We agree with Judge Mishler that the fourteen criticisms developed by Solina's present counsel are a long way from establishing that Coleman did not furnish Solina with reasonably competent representation. We agree also that nothing in the record supports a belief that a lawyer licensed to practice in every state of the Union could have presented a case that should have induced a rational juror to harbor a reasonable doubt about Solina's guilt. To close the circle, the Government submitted an affidavit of the Assistant United States Attorney who had been in charge of the trial stating that he had no recollection of having been prepared to offer Solina a plea to a reduced charge carrying a lesser sentence and did not believe he would have done so under any circumstances in light of the seriousness of the offense, the strength of the evidence, and the extent of Solina's prior criminal record.*fn3 Although Judge Mishler's opinion does not speak directly to the question, he obviously did not think the most heavily licensed lawyer could have persuaded him to impose a sentence less than the maximum.*fn4
If a harmless error rule were applicable in cases like this, as the district judge thought, the standard would have to be set very high. As in the case of joint representation, representation by a person not licensed to practice law "is suspect because of what it tends to prevent the [']attorney ['] from doing". Holloway v. Arkansas, 435 U.S. 475, 489-90, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978).*fn5 The problem of representation by a person like Coleman is not simply one of competence -- he may very well have had greater competence to represent a defendant in a criminal trial than some leaders of the profession who are expert in corporate financing or estate planning but have never examined or cross-examined a witness -- but that he was engaging in a crime.*fn6 Such a person cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his background and discover his lack of credentials. Yet a criminal defendant is entitled to be represented by someone free from such constraints. Moreover, Coleman, who was retained and may have been paid by Marshall, was not likely to have been any more sensitive to his duty of undivided loyalty to Solina than he was to his duty not to undertake representation in a criminal proceeding. In other circumstances, this consideration would have considerable force, for a co-defendant's interest in a colleague's defense is all too likely to be a fear that he will seek leniency in exchange for testimony. However, the evidence against Marshall was also hopelessly overwhelming and the Government had little incentive to seek Solina's cooperation. Whatever force such considerations may have in other circumstances, therefore, the facts of this case make them more theoretical than real. There is simply nothing to suggest that a licensed lawyer for Solina could have arrived at a plea bargain, provided a single juror with a rational basis for having a reasonable doubt, induced the judge to impose a lesser sentence, or prevailed upon appeal, and everything to indicate that he could not. See United States v. Katz, 425 F.2d 928, 930 (2 Cir. 1970). We thus would affirm the district court's denial of the motion on the ground of error harmless beyond a reasonable doubt, Chapman v. California, supra, 386 U.S. at 24, if that course were open to us. See United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96, 51 U.S.L.W. 4572 (1983).
Before considering whether it is, we should deal with two arguments that might be made to show that there was no error at all. One, which the Government was well advised not to advance but still deserves mention, would be that the assistance of counsel clause of the Sixth Amendment is not implicated since we are dealing not with assigned counsel but with counsel retained by the defendant. The Bill of Rights was adopted, it could be argued, to "take government off the backs of people", Schneider v. Smith, 390 U.S. 17, 25, 19 L. Ed. 2d 799, 88 S. Ct. 682 (1968) (Douglas, J.). It should come into play, e.g., when the court refuses to appoint counsel to represent an indigent, as in Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), or forces upon him a lawyer to whom he objects on the ground of conflict of interest, as in Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), but not to protect a defendant from his own failure to check the professional standing of his freely chosen representative. Here the United States had nothing to do with Solina's selection of Coleman; no more than Solina did the prosecutor or the judge know that Coleman lacked a license to practice law. In the not too distant past, cases involving the claimed incompetency of counsel sometimes turned on a distinction of this sort. See, e.g., Fitzgerald v. Estelle, 505 F.2d 1334, 1336-37 (5 Cir. 1974) (en banc), cert. denied, 422 U.S. 1011, 45 L. Ed. 2d 675, 95 S. Ct. 2636 (1975), in which a majority of 11 held that although the state was responsible when "a lawyer's ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or ...