Opinion
Criminal Action No. 07-248.
September 10, 2008
OPINION
On August 25, 2008, this Court received a letter from Defendant David Diehl, indicating his desire to change counsel. On August 25, 2008, the Court attached a copy of the defendant's letter to an Order scheduling a hearing on the matter to be held on September 3, 2008 [Doc. #68]. Thereafter, on August 28, 2008, Defendant filed a Motion to Proceed Pro Se [Doc. #69] and on September 2, 2008, the Government filed a Response to the Motion to Proceed Pro Se [Doc. #70]. On September 3, 2008, we held a hearing to determine whether it was Mr. Diehl's intent to waive his right to counsel and proceed pro se or to change his counsel of record.
At the beginning of the hearing on September 3, 2008, it appeared that Defendant Diehl wanted to waive his right to counsel and proceed pro se. Therefore, the Court conducted a colloquy to determine whether the defendant's waiver of his right to counsel was knowing, intelligent, and voluntary. We also urged Mr. Diehl to think seriously about his desire to waive the right to counsel and proceed pro se. By the conclusion of the hearing, Mr. Diehl was unsure whether he wanted to obtain alternative counsel or waive his right to counsel and proceed pro se. Given that the defendant could not assert his desire to proceed pro se clearly and unequivocally, we declined to rule on Defendant's Motion to Proceed Pro Se until informed by Mr. Diehl of his final decision, and held that until further notice, Mark Lancaster was to remain as counsel of record for Mr. Diehl.
On September 5, 2008, Mr. Diehl sent us a letter stating, inter alia, "I wish to proceed Pro Se until I have decided on alternative counsel." A copy of this letter is attached to this Opinion as Appendix 1. Accordingly, we are now prepared to rule on Defendant's Motion to Proceed Pro Se [Doc. #69].
In United States v. Peppers, 302 F.3d 120, 129 (3d Cir.), cert den'd, 537 U.S. 1062 (2002), the Third Circuit court explained the analysis a trial court must undertake when a defendant wants to waive his right to counsel and proceed pro se:
[i]t is the tension between the right to have counsel and the right to represent oneself that places upon the trial court the weighty responsibility of conducting a sufficiently penetrating inquiry to satisfy itself that the defendant's waiver of counsel is knowing and understanding as well as voluntary. The Supreme Court's jurisprudence reflects a long tradition of concern for persons haled into a legal system that they cannot understand and in need of assistance to help them navigate. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 720, 68 S.Ct. 316, 92 L.Ed. 309 (1948). But requiring a trial court to be particularly vigilant when a defendant waives his right to counsel even predates Von Moltke.
This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.
Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Citing to Zerbst, the Von Moltke Court stressed that the discourse with the defendant is not "a mere procedural formality" but that it requires a judge to
investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is rendered.
This case graphically illustrates that a mere routine inquiry-the asking of several standard questions followed by the signing of a standard written waiver of counsel-may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel.
Von Moltke, 332 U.S. at 723-24.
. . .
In sum, a district court cannot make an informed decision as to the knowing and voluntary nature of a defendant's request to proceed pro se without a thorough inquiry, on the record, to assure itself that the defendant fully apprehends the nature of the charges against him, the perils of self-representation, and the requirements that will be placed upon him. This calls for specific forewarning of the risks that foregoing counsel's trained representation entails. Once the court has fulfilled those responsibilities, however, if the defendant still elects to proceed pro se, the court must permit him to do so.Id. at 130-133 (footnote omitted).
Similarly, in considering whether a defendant effectively waived his right to counsel when he made said request at the time of sentencing, the Third Circuit court stated in United States v. Salemo, 61 F.3d 214 (3d Cir.), cert. den'd, 516 U.S. 1001 (1995):
at sentencing, just as at trial, "a defendant's waiver of counsel can be deemed effective only where the district court has made a searching inquiry sufficient to satisfy him[/her] that the defendant's waiver was understanding and voluntary." Welty, 674 F.2d at 189. We have not previously, nor do we now, require a rote dialogue "such as that mandated for guilty plea proceedings conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure." James, 934 F.2d at 473. However, at a minimum, a trial judge must make "a searching inquiry sufficient to satisfy him[/her] that the defendant's waiver was understanding and voluntary." Welty, 674 F.2d at 189. The court's inquiry must be calculated to insure that the defendant is "made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he[/she] knows what he[/she] is doing and [the] choice is made with eyes open.'" Faretta, 422 U.S. at 834, 95 S.Ct. at 2541 (quoting Adams, 317 U.S. at 279, 63 S.Ct. at 242). "Perfunctory questioning is not sufficient." Welty, 674 F.2d at 187. Where the record contains no such inquiry, or one that is inadequate, there can be no valid waiver of the right to counsel. Salemo's purported waiver was accepted without such an inquiry and therefore it cannot stand.Id. at 220-21.
Turning to the matter before us, we first find, based upon Mr. Diehl's September 5, 2008 letter to the Court, attached to this Opinion as Appendix 1, that Mr. Diehl has asserted his desire to waive counsel and proceed pro se clearly and unequivocally. Furthermore, we find based upon Mr. Diehl's responses to the Court's questions at the September 3, 2008 hearing, that Mr. Diehl's waiver of counsel and assertion of his right to proceed pro se was made knowingly, understandingly, intelligently and voluntarily. Accordingly, Defendant's Motion to Proceed Pro Se [Doc. #69] is granted. An appropriate Order will follow.
Having so ruled, we take the time to emphasize to Mr. Diehl that our ruling does not preclude him from continuing his attempt to obtain new legal counsel.
APPENDIX 1
September 5, 2008
The Honorable Maurice Cohill
United States District Court Judge
U. S. Post Office Courthouse
700 Grant Street
Pittsburgh, PA 15219
RE: Change of Counsel; Motion to Proceed Pro Se
Dear Judge Cohill,
Now that I have had some time to digest the events of the September 3, 2008 hearing, I wanted to provide you with my thoughts regarding your recommendation to think about the consequences of proceeding Pro Se.
With respect to representation by Mr. Lancaster, I unequivocally wish to discharge him of any future counsel. I believe that he has irrevocably compromised my defense. By not following through in a timely manner with the FBI on the affidavit for substantial assistance and a § 5K1.1 reduction that has seriously and deleteriously impacted a sentence reduction. I have included a copy of the affidavit as addendum A for your consideration as I am also aware that neither this Court nor the Assistant District Attorney Soo Song had received a copy from Mr. Lancaster. As for filing motions to travel and for other business, I believe that I am capable of handling those tasks.
In my search for alternative counsel I have used a number of sources including the Allegheny County Bar Association and the Duquesne University Law School. What I found was that the most highly regarded attorneys (e.g. Charles Porter and Robert Stewart) who knew the Federal Court System in Western Pennsylvania and would vigorously and effectively handle my defense have turned me down because of Mr. Lancaster's reputation and acquaintance. That means that I would have to settle for lesser counsel if I were to retain someone from Western Pennsylvania and is the primary reason that I filed the motion to proceed Pro Se. This is not about money. It's about my life. There are plenty of attorneys out there that are willing to take my money but that I do not feel would be effective counsel. I am continuing to explore counsel alternatives outside of Western Pennsylvania. The disadvantage is that they are unfamiliar with the Western Pennsylvania Federal Court System.
In thinking about my motion to proceed Pro Se, a major concern occurred to me for which you may perhaps enlighten me. As I am not a lawyer, have not studied law, and am not a part of the Federal Court System, my concern is that any favorable outcome would not set very well with the Federal Court System. It is a concern.
My letter discharging Mr. Lancaster as my attorney is attached as Addendum B. I wish to proceed Pro Se until I have decided on alternative counsel. If I need to file a motion accordingly, kindly advise.
I do appreciate your concerns regarding my Motion to Proceed Pro Se and allowing me to ponder on it.
Thank you very much for your consideration.
Respectfully,
David A. Diehl
310 Nichols Road
Pittsburgh, PA 15237
Addendum A Affidavit of David A. Diehl The Affidavit of David A. Diehl
David A. Richard was the Chief Technology Officer (CTO) of VTEC Technologies, LLC ("VTEC") when I joined the company on January 3, 2007 as his successor. I accepted the position on the belief that VTEC had a strong patent portfolio as well as a bona fide manufacturing operation. However, during the technology transfer and transition, I discovered a completely fraudulent operation of David A. Richard that included theft, embezzlement, deception and an entirely bogus intellectual property portfolio.
My first responsibility as the new CTO of VTEC was to effect technology transfer from David A. Richard to me by the end of January, in less than a month. David Richard was unwilling to meet to discuss the technology, so I set up a series of conference calls with Mr. Richard with questions regarding the patent portfolio submitted to him in advance and through Jeanne Housman, CEO of VTEC. It became quickly apparent by the middle of January that David Richard had virtually no understanding of the patents that he presumably wrote and gave answers that were completely in error about the specifics. He also did not have the requisite data to substantiate the patent claims which are the most important part of any patent. Since I was now suspicious as to his credibility, I had his key product "inventions" analyzed by independent laboratories which confirmed my suspicions that the "inventions" were completely fraudulent.
During this transition period, substantial production problems were brought to our attention. I had initially been led to believe that the production equipment purchased by VTEC in China was new. Analysis of the problems, pictures and videos of the production line and equipment and review of the process quickly confirmed that the equipment purchased through David Richard and his "partner" in China, Mr. Zhu Longhai, was of 60's vintage and not new. This was verified by the contract manufacturer president, Mr. James Wu of Foresight. The bottom line was that VTEC paid approximately $500,000 for obsolete equipment technology through the entities of Harvey Wu, Xu Yuan Yuan, Wanxin Optical Company, and Asia Rim Optical Company for 50 year old equipment technology which was represented as new.
A process to review all of the past activities of David Richard was initiated. It was discovered that the key coating technology claimed in the patents for making the mirrors which David Richard claimed was his invention was actually developed by a Japanese firm Seed Company. I also verified during this review that contract work was claimed to have been done to develop an exterior durable version of the coating for which VTEC paid $100,000 was actually provided at no charge by CIBA Specialty Chemicals. I know CIBA very well and have worked with them for more than thirty years. Mr. Richard also charged VTEC $30,000 for electron microscope work in China. Having had research conducted in China during my tenure at PPG I knew that this amount was grossly inflated and should have cost less than $1,000. Not only that there were only two photographs that were provided for this work, and the interpretation by me was contrary to his provisional patent claims of the chrome based mirror.
David Richard would not or could not provide any documentation to me regarding any aspect of the technology or operations. Before the end of his tenure, ie the end of January, he sent a letter to Jeanne Housman through his attorney refusing to provide this purported documentation unless VTEC produced a letter exonerating him of any theft from the company. I learned that VTEC had been investigating him for misappropriation of funds for other equipment purchases. VTEC was unaware of the scope of the fraud by David A. Richard until I began my investigation.
Other key findings during subsequent investigative efforts:
— David Richard does not have a Ph.D. in physics from the University California at San Diego as he claimed.
— Ms. Housman hired a process engineer Michael Liang to retrieve the line-of-credit authorization from Mr. Zhu Longhai for which VTEC was still financially responsible. Upon learning of this, David Richard threatened to have him killed through his contacts in China.
— David Richard possesses three different passports; obviously a flight risk and money transfer potential out of the country.
— Prior to joining VTEC, David Richard was compelled to flee police in Singapore for fraudulent activities related to J.R. Ong, First Engineering Group.
— David Richard has a company front Plastec, Inc. in Mexico, Missouri jointly with his wife which is nothing more than a warehouse. The web site is clearly a plagiarized form of the First Engineering Group in Singapore.
In summary, David A. Richard was able to con VTEC Technologies, LLC out of millions of dollars from 1999 to January, 2007, leaving the company with a fraudulent, worthless intellectual property portfolio and a production operation incapable of producing the necessary quality and volume of products to sell. These actions were deliberate and involved accomplices to promulgate the deception. The evidence uncovered also strongly intimates that VTEC was not the sole victim in this international conspiracy. There is no question that had I not uncovered this deceit, it would have eventually manifested into a catastrophic failure to VTEC, its employees, investors, and partners.
David A. Diehl, Ph.D.
Chief Technology Officer
VTEC Technologies, LLC
310 Nichols Road
Pittsburgh, PA 15237
David A. Diehl is the current Chief Technology Officer of VTEC Technologies, LLC.
_______________________ _____________ Notary DateAddendum B Letter of Dismissal of Mark D. Lancaster as Attorney
September 5, 2008Mark D. Lancaster, LLC
445 Fort Pitt Boulevard, Suite 100
Pittsburgh, PA 15219
RE: Change of Counsel; Motion to Proceed Pro Se
Dear Mark,
This letter is to inform you that you are no longer the attorney of record for me regarding case number 07-248.
Please prepare all of the files in this case for transfer to me. I will pick them up at your office next Monday, September 8th or Tuesday, September 9th.
Regards,
David A. Diehl
310 Nichols Road
Pittsburgh, PA 15237