06-1752-cr
USA v. Frankel

                           UNITED STATES COURT OF APPEALS

                               FOR THE SECOND CIRCUIT

                                  August Term 2009

Remanded by Supreme Court: October 5, 2009 Decided:December 21, 2009)

                               Docket No. 06-1752-cr

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UNITED STATES OF AMERICA,
          Appellee,

                     v.

MARTIN FRANKEL,
          Defendant-Appellant.
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Before:          NEWMAN, WINTER, CABRANES, Circuit Judges.

        On remand from the Supreme Court for further consideration in

light of the position asserted by the Solicitor General in her brief

for the United States filed August 4, 2009. See Frankel v. United

States, 130 S. Ct. 72 (2009) (mem.)

        Order of February 6, 2008, dismissing appeal vacated, appeal

reinstated, and counsel for appellant reappointed; order of November

9, 2009, confirmed.

                                  Martin Frankel, pro se, Big Spring, Texas.

                                  John H. Durham, Asst. U.S. Atty., New
                                    Haven, Conn., for Appellee.
PER CURIAM:

     This criminal appeal is before us on remand from the Supreme

Court. See Frankel v. United States, 130 S. Ct. 72 (2009) (mem.).   We

previously issued an order in light of the remand, see United States

v. Frankel, No. 06-1752 (Nov. 4, 2009), and now confirm that order and

slightly amplify our reasons in this opinion.    We ruled that because

our prior order relieving appointed counsel as a sanction for the

appellant’s misconduct was not preceded by notice to the appellant and

an opportunity to respond, the ensuing order dismissing his appeal for

failure to file a timely pro se brief had to be vacated, and, in the

circumstances of this case, we reinstated the appeal and reappointed

prior counsel.

                             Background

     The appellant, Martin Frankel, was convicted in December 2004 in

the District Court for the District of Connecticut (Ellen Bree Burns,

District Judge) on his plea of guilty to wire fraud offenses and

sentenced to 200 months’ imprisonment.    The sentence was confirmed in

March 2006 after a remand pursuant to United States v. Crosby, 397

F.3d 103 (2d Cir. 2005).     After two attorneys had been appointed

pursuant to the Criminal Justice Act (“CJA”) and been relieved at

Frankel’s request, a third CJA attorney, Marsha R. Taubenhaus, was


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appointed.    Thereafter it came to this Court’s attention that Frankel

had   filed   scandalous   allegations    against   one   of   his   prior   CJA

attorneys.    For that reason, this Court concluded that Frankel had

forfeited his right to a third CJA attorney. Accordingly, on February

6, 2008, we entered an order vacating the appointment of Atty.

Taubenhaus and giving Frankel 30 days to file a pro se brief.          Instead

of filing a timely pro se brief, Frankel filed various motions.              On

March 27, 2008, we dismissed the appeal for failure to file a timely

pro se brief and denied the pending motions as moot.

      Frankel petitioned the Supreme Court for a writ of certiorari.

On October 14, 2009, the Supreme Court granted the petition, vacated

our dismissal order, and remanded the cause “for further consideration

in light of the position asserted by the Solicitor General in her

brief for the United States filed August 4, 2009.”         Frankel v. United

States, 130 S. Ct. 72 (2009).    That brief pointed out the well-settled

rule that an indigent defendant has a right to have counsel appointed

on appeal, see Frankel v. United States, No. 08-10150, U.S. Sup. Ct.,

Br. for the United States, 2009 WL 3236337, Aug. 4, 2009, at *13

(citing Halbert v. Michigan, 545 U.S. 605, 610 (2005); Douglas v.

California, 372 U.S. 353 (1963)), and argued that this right could be

waived only by knowing and intentional conduct, see id. (citing


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Halbert, 545 U.S. at 624), and that Frankel had not waived his right,1

see id. at *14.     The Solicitor General did not explicitly consider

whether the right to a third appointed counsel could be forfeited by

an appellant’s misconduct directed against a prior appointed counsel.

However, she added:

     Appellate courts must have latitude to address problems that
     arise when obstreperous defendants create insuperable
     obstacles   to   representation   by    appointed   counsel.
     Accordingly, it should be open to the court of appeals to
     reinstate its orders after giving [Frankel] notice and an
     opportunity to be heard, provided that an adequate legal and
     factual foundation supports that action.

 Id. at *19.

         On November 4, 2009, we entered the order that is the precursor

of this opinion.      We stated that we had reconsidered the case as

directed, vacated our dismissal order, reappointed Atty. Taubenhaus,

and directed her to obtain any needed transcripts and file her brief

60 days after obtaining such transcripts.     We also cautioned Frankel

that, if he subsequently prefers not to have Atty. Taubenhaus, his



     1
      The Solicitor General’s brief noted that our February 6, 2008,
order relieving Frankel’s third CJA counsel appeared to rest on
Frankel’s conduct in causing the removal of his two previous CJA
attorneys and making scandalous allegations against one of them, and
then stated, “Neither of those reasons amounts to a knowing and
intelligent waiver of counsel or otherwise seems sufficient to deprive
petitioner of counsel.” Br. for the United States, 2009 WL 3236337, at
*14.

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third CJA attorney, represent him, he will be required to proceed pro

se and that the submission of scandalous material will risk the

imposition of sanctions, which may include dismissal of the appeal.

We also advised Frankel that as long as Atty. Taubenhaus represented

him, this Court would not accept for filing any pro se papers.

                                Discussion

     Although we need not make any definitive ruling on the point, we

have substantial doubts about the Solicitor General’s view that an

indigent’s right to appointed counsel may be lost only by a knowing

and intentional waiver; an indigent’s filing of scandalous allegations

against a previous CJA counsel may well be deemed a forfeiture of the

right to a new CJA counsel, especially after an indigent appellant has

precipitated the removal of two previous CJA attorneys.          Indeed, the

Solicitor General recognized that appellate courts must have the means

to deal with obstreperous indigent appellants, provided notice and an

opportunity to respond is furnished.          In this case, however, our

February 6, 2008, order vacating the appointment of Atty. Taubenhaus

because of Frankel’s misconduct constituted a sanction, and should

have been preceded by notice to Frankel and an opportunity to respond.

See In re 60 East 80th St. Equities, Inc., 218 F.3d 109, 117 (2d Cir.

2000)   (“[D]ue   process   requires   that   courts   provide   notice   and


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opportunity to be heard before imposing any kind of sanctions.”)

(emphasis in original) (internal quotation marks omitted); Sakon v.

Andreo, 119 F.3d 109, 114 (2d Cir. 1997) (same).   Our subsequent order

of March 27, 2008, dismissing the appeal for failure to file a timely

pro se brief, was undermined by the improper order vacating the

appointment of counsel, which lacked prior notice.    For that reason,

we vacated the dismissal order and issued the November 4, 2009, order

described above.

     We now confirm all provisions of the November 4, 2009, order.




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