                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-1995

United States v Goldberg
Precedential or Non-Precedential:

Docket 94-7565




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                         _______________

                           No. 94-7565
                         _______________

                    UNITED STATES OF AMERICA

                                v.

                       RONALD J. GOLDBERG,
                                                  Appellant
                         ______________

         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                 (D.C. Criminal No. 94-cr-00039)
                         _______________

                     Argued August 22, 1995

     Before:   GREENBERG, COWEN and SAROKIN, Circuit Judges

                    (Filed October 16, l995)
                        _______________


Thomas Colas Carroll (ARGUED)
Carroll & Cedrone
Suite 750 Curtis Center
Independence Square West
Philadelphia, PA 19105

               COUNSEL FOR APPELLANT


Frederick E. Martin (ARGUED)
David M. Barasch
Office of United States Attorney
240 West Third Street
P. O. Box 548
Williamsport, PA 17703-0548

               COUNSEL FOR APPELLEE

                         _______________

                      OPINION OF THE COURT


                                1
                                      _______________

COWEN, Circuit Judge.

            We    once        again    confront            the       tension    caused    when      a

criminal    defendant          appears      to        be    manipulating          his   right      to

counsel in order to delay his trial.                                 After relieving Ronald

Goldberg's court-appointed attorney, the district court refused

his request for a continuance in order to retain private counsel.

This forced Goldberg to stand trial without the assistance of

counsel.    The district court concluded that by his manipulative

conduct, Goldberg had "waived" or, more properly, "forfeited" his

Sixth Amendment right to counsel.

            The question before us is whether the district court

deprived the defendant of his Sixth Amendment right to counsel.

We conclude that, although there are circumstances in which the

dilatory tactics of a defendant can amount to a forfeiture of his

right to counsel, the record here is insufficient to support such

a forfeiture.      We further hold that the district court's failure

to   warn   the    defendant           of       the    risks         of   self-representation

precludes    us    from       finding       a    valid         "waiver     by     conduct."        We

therefore will reverse the judgment of conviction and remand the

case to the district court for a new trial.




                                                 I.


            Goldberg           was     serving             a     sentence         at    Lewisburg

Penitentiary      for     a    previous          conviction.              While    serving    that

sentence    he    forged       the    signature            of    a    magistrate-judge        on   a


                                                 2
document that purported to allow Goldberg unrestricted access to

the   prison's    law     library.       Prison       officials       investigated      the

authenticity      of    the     document        and        discovered       the    forgery.

Goldberg was indicted for forging the signature of a judicial

officer    in   violation      of   18     U.S.C.      §    505,    and     for   making   a

materially false statement to a federal agency in violation of 18

U.S.C. § 1001.

            Exactly how Goldberg came to be represented by court-

appointed counsel is somewhat unclear.                       At some point Goldberg

was   provided     with    a    questionnaire          concerning          his    financial

ability to retain counsel.           It appears that the questionnaire was

never completed.          Prior to his arraignment on the indictment,

however,   Bradley      Lunsford      was    assigned         to    represent     Goldberg

through the Federal Defender's Office pursuant to the practice in

the Middle District of Pennsylvania of providing prisoners with a

court-appointed        attorney.         The     district          court    informed    the

parties that jury selection would commence on May 31, 1994.

            Between these dates, Lunsford filed several motions on

Goldberg's      behalf.        He   also    attempted         to    visit    Goldberg      in

prison. On that occasion Goldberg refused to see Lunsford after

making him wait over two hours.                 As a result they were unable to

confer in person, although Lunsford and Goldberg thereafter did

communicate by mail and telephone on several occasions.

            On May 27, 1994, Goldberg filed on his own behalf a

motion seeking a continuance in order to obtain new counsel or,

in the alternative, to proceed "In Propia Persona" (sic).                                  He

also gave notice of his intention to pursue an insanity defense.


                                            3
In support of his request to remove Lunsford, Goldberg alleged

that Lunsford: (1) disagreed with him on how to conduct the

defense; (2) was not well versed in federal criminal procedure;

(3) showed no interest in his case; and (4) had not met with him

to discuss the case and failed to file motions that Goldberg

demanded be filed.

            The district court on that day entered an order denying

the request to pursue an insanity defense as untimely under Fed.

R. Crim. P. 12.2.           The court deferred consideration of Goldberg's

request   for     a    continuance,      but   noted   that     Goldberg's     motion

papers    had    failed       to   demonstrate       good   cause    warranting       a

continuance.          The district court nevertheless advised Goldberg

that he would be given an opportunity to state on the record his

reasons for believing that Lunsford's performance was inadequate.

If persuaded, the district court advised that it would relieve

Lunsford, appoint new counsel, and reconsider whether to grant a

continuance.      Alternatively,         if    the   district     court      was     not

satisfied   that        Lunsford    should     be    relieved,      it    would     deny

Goldberg's motion and require him to choose between going to

trial with Lunsford or proceeding pro se.

            Immediately prior to the commencement of jury selection

on May 31, 1994, the district court conducted an inquiry into

Goldberg's allegations concerning Lunsford.                   After hearing from

both   Goldberg       and    Lunsford,    it   concluded      that       Lunsford   was

providing       adequate      representation.           Given    the       choice     of

continuing to be represented by Lunsford or proceeding pro se,




                                          4
Goldberg chose to remain with Lunsford.1          At this point, however,

Goldberg revealed for the first time that he had the financial

resources to retain private counsel, and that several attorneys

had conferred with him at Lewisburg.           The district court advised

Goldberg that if he could retain an attorney by the commencement

of trial, it would reconsider the motion seeking a continuance.

            Lunsford requested permission to withdraw, asserting

that he did not have a proper attorney-client relationship with

Goldberg.      As   an   example,   he    stated     that   Goldberg   was

"threatening me and demanding that I do certain things that I

don't feel are prudent."    App. at      34.    The district court denied

Lunsford's motion to withdraw and conducted jury selection with

Lunsford representing Goldberg.         Following the selection of the

jury, the parties and the jury were advised that the taking of

testimony would commence between June 6 and June 13.

            On June 2, 1994, the district court set June 13, 1994,

as the first day for taking testimony.          The government also filed

with the court a "Status Report" indicating that a simple check

into Goldberg's visitation record at Lewisburg revealed several

visits from three different attorneys over the past two months.


1
 According to the district court's opinion, the court did not
allow defendant to proceed pro se because he failed to give a
knowing, intelligent and voluntary waiver of his rights.      See
United States v. Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994).
While this would appear to suggest that Goldberg had wanted to
proceed pro se and that the trial court was not satisfied that he
was competent to do so, this is clearly at odds with the record
(and the position taken in both briefs), indicating that
defendant affirmatively chose to keep his appointed attorney when
given the option of pro se representation.


                                    5
            Four    days   later,     Lunsford             initiated          a   telephone

conference between himself, the trial court and the government at

which time he renewed his request to withdraw.                          Lunsford related

that Goldberg had asked him to file a motion to withdraw as

counsel.     When     Lunsford     refused,          noting       the    ruling      of    the

district court on May 31, 1994, Goldberg allegedly threatened

Lunsford's life.       According to Lunsford, Goldberg stated that he

had ample financial means to carry out his death threat as well

as to hire a new attorney.

            Without ordering that Goldberg be produced to answer

Lunsford's allegations or relate his position in the matter, the

district    court   granted   Lunsford's             motion       to    withdraw.          The

district court noted that June 13 was the first day for taking

testimony and informed Goldberg that he would not receive another

appointed attorney since Goldberg had the financial means to

retain counsel. The district court warned Goldberg that "unless

he retains an attorney who enters an appearance . . . in this

case, the trial will proceed with the defendant representing

himself."     Supp.    App.   at    63.         This       order       was   delivered     to

Goldberg the day it was issued.

            Goldberg    appeared on           June    13    for    the       first   day    of

testimony.    One of the attorneys who visited him at Lewisburg

also was present in court.           Noting that a private attorney had

not entered an appearance, the district court asked Goldberg if

he intended to represent himself.                Goldberg presented the court

with a letter from an attorney indicating that the attorney would




                                          6
undertake to represent Goldberg, but only if a retainer was paid

within forty-five days.

            Referring to the letter from the attorney, Goldberg

requested that the district court grant a continuance so that he

could liquidate various assets, which would enable him to pay the

retainer.       The    government        opposed    the    application.        Goldberg

continued to assert his Sixth Amendment right to counsel.                                 He

related   that        he   had    done   everything       in   his   power    to   retain

counsel in the short time available, and was incapable of trying

a criminal case.

            The       district     court    denied       Goldberg's    request      for    a

continuance.          It observed that Goldberg had the financial ability

to hire an attorney since the commencement of the case in April

and failed to do so.              The district court commented: "The Court

finds that you have manipulated the judicial system for your own

benefit, and the Court will not grant the continuance.                        The Court

finds that by your conduct you have waived the right to proceed

with   counsel        at   this    trial,    and    the    Court     simply    will      not

tolerate that behavior."             App. at 91.

            The       district      court    advised       Goldberg    about       how    to

comport himself before the jury, and the manner in which it would

answer    any    questions        concerning       the    correct    procedure      to    be

followed.        The government suggested that the attorney who had

accompanied Goldberg to court be designated as stand-by counsel.

Goldberg responded that stand-by counsel was not sufficient to

satisfy his Sixth Amendment rights and that "I'm not making a

valid waiver of my Sixth Amendment, Your Honor."                          App. at 94.


                                             7
The district court responded, "No, and I'm not engaging in a

colloquy with you with respect to that either.                        I'm determining

that   your    actions      have    waived       counsel,    and   that     that     was    a

knowing and voluntarily intentional act."                      Id.        Goldberg again

objected.      He noted that the proposed stand-by counsel was not

admitted      to   practice       before     the    district       court.         Goldberg

reiterated that, even if a defendant has waived his right to

counsel, "it does not prohibit a defendant in a criminal case

from reasserting his Sixth Amendment right, and in no way at all

am I waiving my Sixth Amendment right to counsel." App. at 95.

              Goldberg      requested      that      the    district        court    order

Lunsford      to   return    the    case     file    to     him,     as    it   contained

documents      relevant      to    his   defense.           Following       the     morning

session, Lunsford appeared in court and turned the file over to

Goldberg.      At this point, the district court sua sponte swore in

Lunsford as a witness (out of the presence of the jury).                            For the

first time it elicited sworn testimony from Lunsford concerning

the events that had given rise to his earlier application to

withdraw      as   counsel    for    Goldberg,       which     the    district        court

already had granted during the June 6 telephone conference to

which Goldberg was not party.

              The trial went forward with Goldberg conducting his own

defense.      He was convicted on both counts of the indictment.                        The

district court sentenced Goldberg to two, concurrent terms of

imprisonment       of   twenty-four        months,    to     run     consecutively         to

sentences he was already serving.




                                             8
            The district court issued an opinion explaining why it

had   required   Goldberg    to    proceed    pro   se.     United    States   v.

Goldberg, 855 F. Supp. 725, 727 (M.D. Pa. 1994).                 It quoted at

length from its prior decision, United States v. Jennings, 855 F.

Supp. 1427, 1441-43 (M.D. Pa. 1994), aff'd 61 F.3d 897 (3d Cir.

1995) (table), where it had found that the defendant had waived

his right to counsel by punching his court-appointed attorney.

The   district    court     also    concluded       that   Goldberg    had     not

demonstrated good cause for his application on May 27, 1994, to

substitute counsel.       Goldberg, 855 F. Supp. at 730-32.              Turning

to its decision requiring Goldberg to represent himself, the

district court relied on its Jennings decision.                  It explained

that threatening one's attorney with physical violence like the

actual use of force is tantamount to a "waiver" of the right to

counsel. The district court further held that its decision to

relieve Lunsford was "in furtherance of the orderly and effective

administration of justice," and that the decision was proper

where Goldberg was "manipulat[ing] the right to counsel in order

to delay and disrupt his trial."             Id. at 732, 733.        This appeal

followed.


                                      II.


            The district court had original jurisdiction over this

criminal action pursuant to 18 U.S.C. § 3231.               We have appellate

jurisdiction to review a final judgment of conviction under 28

U.S.C. § 1291.



                                       9
            Goldberg         presses      two       principal   claims       of     error    on

appeal.2    First, he challenges the district court's May 31, 1994,

order forcing him to keep Lunsford essentially against his will.

We review that decision for abuse of discretion.                                  McMahon v.

Fulcomer, 821 F.2d 934 (3d Cir. 1987); United States v. Welty,

674 F.2d 185 (3d Cir. 1982).                    Second, Goldberg claims that the

district    court       violated         his     Sixth     Amendment        right    to     the

assistance of counsel when, on the first day of testimony, it

forced him to proceed pro se.                  We review de novo Goldberg's Sixth

Amendment      claim    since       it    is     tantamount        to   a    claim    of     an

ineffective waiver of a constitutional right.                           United States v.

Velasquez, 885 F.2d 1076, 1080 (3d Cir. 1989), cert. denied, 494

U.S.   1017,    110     S.    Ct.   1321       (1990).       Our    review     is    plenary

notwithstanding the fact that the district court found a knowing

and intelligent waiver and supported its legal conclusion with

findings of fact.              Determining the requirements that must be

satisfied      in      order     to      find         an   effective        waiver     of     a

constitutional right is a question of law.




                                               III.

2
 Because of our holding, we decline to reach Goldberg's
additional claim that the district court's decision to relieve
Lunsford during an ex parte proceeding deprived him of procedural
due process.   We also need not reach Goldberg's claim that the
district court improperly directed a verdict on the element of
materiality in 18 U.S.C. § 1001.    See United States v. Gaudin,
___ U.S. ___, 115 S. Ct. 2310 (1995).     We recognize, however,
that on remand the district court will be required to submit the
issue of materiality to the jury in accordance with the dictates
of Supreme Court's intervening decision in Gaudin.


                                               10
             Goldberg first claims that the district court abused

its discretion when, on May 31, it denied his May 27 request for

a   continuance        so     that   he    could     retain    a     new    attorney.        We

understand        Goldberg's         claim    as     alleging        a     Sixth       Amendment

violation arising from the fact that he was represented for a

period of time by an attorney with whom he was dissatisfied.
                                                        A.

             The       Sixth    Amendment      provides       that       "in     all    criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence."                        U.S. Const. amend VI.

Because   it      is    essential      to    fair    adjudication,             see Powell    v.

Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), the right to counsel

has long been considered "fundamental."                        Gideon v. Wainwright,

372   U.S.     335,      83    S.    Ct.     792    (1963)    (right        to     counsel   so

fundamental that it is binding on the states through the doctrine

of incorporation); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.

Ct. 1019, 1022 (1938) ("This is one of the safeguards . . .

deemed necessary to insure fundamental human rights of life and

liberty.");        see also Chapman v. California, 386 U.S. 18, 23 &

n.8, 87 S. Ct. 824, 827-28 & n.8 (1967) (right to counsel is so

fundamental to our adversarial system that its deprivation can

never be deemed harmless).
                                               B.

             On        several       prior     occasions        we       have      confronted

situations where a defendant moved on the eve of trial for a

continuance to retain substitute counsel.                       Because the denial of

such a motion forces a defendant to choose between representation


                                               11
by an attorney with whom he is dissatisfied and proceeding pro

se, we set forth a two-part inquiry in Welty, 674 F.2d at 187, to

balance a defendant's Sixth Amendment right to counsel with a

district         court's         legitimate      interest          in     guarding       against

manipulation and delay.                   The first inquiry requires a district

court to determine whether good cause exists for granting the

requested continuance. The second requires the district court to

engage in an on-the-record colloquy to ensure that a defendant

who chooses to represent himself is making a knowing, intelligent

and voluntary waiver of his Sixth Amendment right to counsel.                                   It

is Welty's first inquiry that applies here.

                 In considering a last-minute request for substitution

of   counsel          and   a    continuance,       we       require    district       courts   to

inquire as to the reason for the request.                           As we noted in Welty,

the request need not be granted unless "good cause" is shown for

the defendant's dissatisfaction with his current attorney.                                       We

defined      good       cause      as    a   conflict         of   interest,       a    complete

breakdown of communication, or an irreconcilable conflict with

the attorney. Id. at 188; see also McMahon, 821 F.2d at 942.

                 In     several         decisions        following        Welty,       we     have

acknowledged            that       there      are        countervailing         governmental

interests. For instance, in United States v. Kikumura, 947 F.2d

72   (3d    Cir.       1991),      we    noted   that        the   district     court       should

consider factors such as the efficient administration of criminal

justice;         the    accused's        rights,      including         the   opportunity        to

prepare a defense; and the rights of other defendants awaiting

trial      who    may       be   prejudiced      by      a    continuance.       Id.     at     78.


                                                 12
Similarly, in United States v. Romano, 849 F.2d 812 (3d Cir.

1988), we observed that a court has discretion to deny a request

for a continuance if made in bad faith, for purposes of delay or

to subvert judicial proceedings.                       Id. at 819.             But "a rigid

insistence on expedition in the face of a justifiable request for

delay can amount to a constitutional violation."                               United States

v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986).                              These factors are

relevant to the "good cause" analysis under Welty.

              If the district court denies the request to substitute

counsel      and    the    defendant       decides         to    proceed      with     unwanted

counsel, we will not find a Sixth Amendment violation unless the

district court's "good cause" determination was clearly erroneous

or the district court made no inquiry into the reason for the

defendant's request to substitute counsel.                           See McMahon, 821 F.2d

at     944    (reversal         warranted       where       district         court     relieved

defendant's appointed attorney without inquiring into reason for

withdrawal).
                                                C.

              We    reject      Goldberg's       claim      that      the    district     court

abused its discretion in denying his May 27, 1994, "emergency

motion" to relieve counsel and for a continuance.                             First, we note

that    the    district          court     properly        complied         with     Welty    by

conducting         an     inquiry        into        the    reasons         for      Goldberg's

dissatisfaction with Lunsford.                   See Welty, 674 F.2d at 187; see

also McMahon, 821 F.2d at 942.                   After hearing from both Goldberg

and     Lunsford,         the     district       court          found     that       Goldberg's

disagreement        with        Lunsford     amounted           to    a     difference       over


                                                13
strategy.      Specifically, Goldberg complained that Lunsford had

not filed a host of motions that Goldberg insisted be filed.

Analyzing the motions, the district court concluded (although

after   the    fact)       that    they      were    meritless,       if    not    frivolous.

Goldberg,     855     F.    Supp.       at    730-32.        Finding       that    Lunsford's

refusal to file the motions did not amount to good cause, the

district      court    found       no    basis       for   substituting       counsel       and

delaying the trial.

              We conclude that the findings of the district court are

not clearly erroneous.                  Moreover, to the extent that Goldberg

complains      that    the        reasons      supporting       the    district          court's

decision      were    not    issued          until    some   three     weeks       later,    we

nevertheless find that the record of the May 27 and May 31

proceedings      amply       support         the     district      court's        good    cause

determination.             Accordingly,         because       we   find      no     abuse    of

discretion in the denial of the continuance, any Sixth Amendment

claim Goldberg alleges arising from his representation by an

attorney with whom he was dissatisfied between May 31 and June 6

must fail.


                                               IV.


              Goldberg asserts, however, that even if the district

court did not abuse its discretion in denying his request for a

continuance, it nevertheless violated his Sixth Amendment right

to counsel when it forced him to proceed pro se.                                     Goldberg

challenges the district court's conclusion that he "waived" his



                                               14
right to counsel through dilatory conduct.                     While recognizing

that     in   certain   circumstances     a    court    may   find    a     waiver   by

conduct, in this case Goldberg claims that his conduct was not so

dilatory as to warrant the drastic remedy of forcing him to

defend himself.

              The government concedes that the district court did not

engage in the sort of inquiry required by the Supreme Court's

decision in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525

(1975), and our         decision in Welty.       These cases require an on-

the-record      colloquy    evincing      both   a     knowing,      voluntary       and

intelligent waiver of the right to counsel and an explanation by

the district court of the risks of self-representation.                          As a

suitable alternative to the colloquy required by Faretta and

Welty, the government contends that there are certain factual

scenarios in which "literally actions speak louder than words,"

Government's Br. at 40, and deliberate abusive conduct can result

in a "waiver" of the right to counsel.
                                         A.

              Before    turning   to     the   merits    of    the     government's

contention, we note an important distinction between the ideas of

"waiver" and "forfeiture," and a hybrid of those two concepts,

"waiver by conduct."        Both parties appear to have confused those

issues, as have a number of courts that have addressed the effect

of   a   defendant's     dilatory      tactics   on    the    right    to    counsel.

Because       the   resolution      of    that    confusion       has       important

implications for the Sixth Amendment, we begin with a discussion

of "waiver," "forfeiture," and "waiver by conduct"


                                         15
                                 1.

           A waiver is an intentional and voluntary relinquishment

of a known right.    Johnson, 304 U.S. at 464, 58 S. Ct. at 1023;

see generally LaFave & Israel, Criminal Procedure, § 11.3(c), at

546 n.4. (2d ed. 1992).     The most commonly understood method of

"waiving" a constitutional right is by an affirmative, verbal

request.   Typical of such waivers under the Sixth Amendment are

requests to proceed pro se and requests to plead guilty.           The

Supreme Court has made clear that a waiver of the right to

counsel must be knowing, voluntary and intelligent.     Johnson, 304

U.S. at 464-65, 58 S. Ct. at 1023.    The High Court has emphasized

the importance of an affirmative, on-the-record waiver, noting

that it "indulge[s] every reasonable presumption against waiver

of fundamental constitutional rights."     Michigan v. Jackson, 475

U.S. 625, 633 , 106 S. Ct. 1404, 1409 (1986) (quoting Johnson,

304 U.S. at 464, 58 S. Ct. at 1023).

           Where a defendant requests permission to proceed pro

se, Faretta requires trial courts to ensure that the defendant is

aware of the risks of proceeding pro se as a constitutional

prerequisite to a valid waiver of the right to counsel.       Faretta,
422 U.S. at 806, 95 S. Ct. at 2525.       Moreover, our decision in

Welty mandates that trial courts conduct a Faretta-type inquiry

before permitting a defendant who asks to represent himself to do

so:
           The court . . . has the responsibility of
           ensuring   that    any    choice     of    self-
           representation    is    made     knowing     and
           intelligently, with an awareness of the
           dangers   and   disadvantages     inherent    in


                                 16
              defending oneself. . . . In order to ensure
              that a defendant truly appreciates the
              "dangers    and   disadvantages    of   self-
              representation," the district court should
              advise him in unequivocal terms both of the
              technical problems he may encounter in acting
              as his own attorney and of the risks he takes
              if his defense efforts are unsuccessful. . .
              . [A] defendant's waiver of counsel can be
              deemed effective only where the district
              court judge has made a searching inquiry
              sufficient    to  satisfy    him   that   the
              defendant's waiver was understanding and
              voluntary.


Welty, 674 F.2d at 188-89; see also United States v. Salemo, Nos.
94-1361   &    94-1438,   1995   WL   440390       (3d   Cir.   July   26,   1995)

(failure to warn of risks of self-representation render waiver of

right to counsel invalid); Government of Virgin Islands v. James,

934 F.2d 468 (3d Cir. 1991) (extensive colloquy between district

court and defendant about perils of proceeding pro se sufficient

to indicate that waiver of Sixth Amendment rights was knowing,

voluntary and intelligent); McMahon, 821 F.2d at 934 (failure to

provide warnings in accordance with Faretta and Welty requires

reversal).
                                      2.

              At the other end of the spectrum is the concept of

"forfeiture."       Unlike   waiver,       which    requires    a   knowing   and

intentional relinquishment of a known right, forfeiture results

in the loss of a right regardless of the defendant's knowledge

thereof and irrespect__




                                      17
