Frank Young v. United States
267 F.2d 692
D.C. Cir.
1959
Check Treatment

*1 ably presented appellant’s tentions.

Appeal dismissed. BAZELON, (dissent- Circuit ing). judgment I would affirm convic- tion. join I do dismissal of Judge, dissented.

Bazelon, Circuit I not think divi because do sion of this improvi in forma acted determining dently question that a presented which was not meaning frivolous within of Ellis v. Young 1060. Cf. States, - U.S.App.D.C. -, Hirsch, Mr. Robert statement in Jones v. Court) C., (appointed for States, - U.S.App.D.C. -, pellant. Spielberg, J. Paul Appeals ofBar vice, by special York, pro hac of New Court, Messrs. Oliv- with leave of whom Bel- and Carl

er W. S. cher, Asst. U. Judge, Prettyman, Burger,

Bazelon and YOUNG, Appellant, PER CURIAM. Frank from conviction This is an dangerous weapon, ra- America, assault with UNITED STATES of fight Appellee. zor, of a course grounds complaining witness. No. 14288. was not Appeals Court of specifically intent to commit District of Columbia Circuit. an injury razor was essential (no request Argued the crime1 element of March made); specific such Decided June improper. prejudicially and conclude examined dismissed as should be making employs an assault an in- charge: such strumentality capable causing attempt “Now, or an offer an assault is bodily grave bodily person harm other if used harm to an- do Now, making they carry ability other, assault. that offer here attempt offense involved.” elements into effect. appellant expressed “Now, counsel for Trial assault that assault becomes charge. dangerous weapon with the satisfaction if the with a *2 appeal m leave

trict pauperis States and the United forma Attorney oppose action. did this ground for Frivolousness is dismissing forma in (1952), and also under 28 U.S.C. § prepaid under Rule Fed.R. Crim.P., U.S.C.A. Johnson, 1946, States v. 537; Sykes Peltz, Cir., 1957, 246 States, 4 rarely Prepaid appeals Attorney The United States missed. rarely ap docketed dismiss a moves to ap peal. He not move this did dismiss peal. fully in more forth Our views are set States, -U.S.App.D.C. Jones United -, Statement Judge voting position Bazelon of his in grant petition appeal in pauperis. (Opinion, -U.S.App.D.C. -, 924, pp. 925-931, filed April 1959). Affirmed. George (appointed Parks C., Court),

this pellant. (concurring BURGER, Circuit result). in Cohen, Mr. Jerome A. Asst. U. S. with whom Messrs. Oliver I would dismiss the Belcher, Carl W. U. S. Asst. ground is and was only way were on the The Carroll, Harry demonstrate nature the frivolous Alex- Messrs. Lewis T. Paulson, appel- ander and Nathan J. is recite facts Attys., appearances entered also lant’s numerous contentions. pellee. Appellant and tried on was indicted violating five counts of the narcotics laws Edgerton, Bur- Bazelon ger, Circuit separate, occasions, two unrelated on 1956 and one in 1957. 26 U.S.C. §§ PER 4704(a), 4705(a); CURIAM. The § U.S.C. counts first three concerned transaction was convicted of a narcotics allegedly place September violation. affirm because we find took affecting rights. error substantial alleged two the last related to an February transaction “plainly We do not think the acquitted one, on counts two Ellis frivolous.” four, and convicted on counts He and five. three sentenced to did Neither District years Attorney. prison Dis- serve ten on the United States count three ten-year 52(b) charge, sen- and received concurrent he corrected in which acquiesced. point patently tence on count five. frivo- lous, say and we should so. Counsel court to con- appeal assigns (2) Illegally duct the as error the fol- obtained evidence—None *3 lowing points: argues appellant the evidence which (1) charge jury illegally that the to the was obtained in 1957 and errone ously bearing was and witness rule” erroneous “absent prejudicial; used at his trial had relating three, whatsoever on count (2) illegally admission, that seized narcotics the 1956 Hence offense. its by police erroneously officers ad- erroneous, clearly and even if immaterial. appellant’s mitted into jections; over ob- States, evidence See 339, 1958, Lawn v. United 355 U.S. 321; 359, 311, 78 2 L.Ed.2d S.Ct. States, 1957, v. Roviaro United 353 U.S. (3) the District Court erroneous 53, 639; 6, 623, 1 59 note 77 L.Ed.2d ly appellant’s pro denied se motion to Hirabayashi United 320 v. court-appointed miss his trial 1375, U.S. 63 S.Ct. 87 L.Ed. and to his de conduct own States, Lewis 1958, fense. This last contention was raised App.D.C. -, 263 argu here for the the oral first time ment, recent decision in but see our Additionally, it is clear that the evi States, Brown United v. dence of appellant complains was D.C. -, 264 F.2d 363. properly seized in connection the 1957 offense It count five. charge “spe- Absent witness —A directly was taken appellant’s per government employee” cial who during a search made incident to the 1956 count three involved admittedly ample lawful arrest based on witness, transaction was called as probable cause. See Barbour v. United although present in he was the courtroom States, U.S.App.D.C. -, days five-day several for closing trial. the States, Smith v. United 103 U.S. appellant’s trial counsel App.D.C. 48, emphasized government’s 751, failure de certiorari asking witness, jury call this to infer nied given, testimony, it that his had been 1552; Draper States, gov- would have been unfavorable to the U.S. 79 S.Ct. 3 L.Ed. initially, however, ernment. The Court charged 327; Brinegar 2d States, that either side missing witness, implying have called the that failure of the defense to do so neu- failure. tralized Appellant’s Pro se con- defense— permission tention that he was denied instruction, objection On to this giving qualified his own conduct defense is out borne “special additional instruction record, facts shown would employee” peculiarly a not warrant reversal even under thereupon ex- witness. Defense counsel minority expressed views in Brown v. pressed satisfaction as States, supra. Although pro appellant himself no made amended se motion to dismiss objection. In total instructions were denied, appellant counsel was strictly with Billeci in accordance by the trial mitted court to ex- 1950, U.S.App.D.C.274, every stage amination of witnesses at 394, A.L.R.2d 881. In these Court-appointed of the trial. appellant would now ask circumstances vigorously ably and conducted disregard 30, Fed.R.Crim.P., the de- Rule us to fense, “plain error” under cannot be said and it consider Rule the indi- ques- at appellant will be attempts vidual any- of cases which careful his defense merit most tion witnesses aided painstaking judicial and tionally Addi- way. indicates record Indeed the trial utterly supply limited there have been would rapidly available to conduct a his defense. unable to have conducted number of trials and multi- was confronted indigent persons. Arguments pitt- to- ple tried and was count indictment ing against “poor” the “rich” are gether in- whose with two co-defendants answer facts which hard his own. hostile terests were often front the courts and will continue search issues of involved adequate confront the courts until an *4 evidence, seizure, suppression credi- of public system developed. defender legal witnesses, bility of “stretching laymen ap- any few, could cloth” to cover points which peal every conviction, experi- as some would comprehend. Appellant had no may do, taking have us we well be qualifications would enable which ence or really legal risk that meritorious cases are cope not these intricate him to adequately presented problems.1 considered In these circumstances unreasonably delayed. Congress, are thought “plain might error” to be well be a public policy matter of judge permit to deliberate accused for a trial appropriately by decide all unassisted criminal his own defense convictions Culver, reviewed, should be but in Cash v. counsel. Cf. adequate appropriations such case right pro- of such review would be demands a defendant Because strong arguments vided. Indeed try not rea- can be a sufficient his own case is system. by such a But unaided view so to do legislature, that decision is for same basic counsel. justice judiciary. forbid which considerations of Until such time as Con- assist gress who cannot provides mandatory trial of review, we defense also in his own counsel and aid obliged desig- should and indeed qual- person is not command that where nate a frivolous as frivolous. Un- complex try the court case ified to expressly separate we less the wheat a defense to conduct should select may chaff we find we permitting the defendant even while judicially system mandatory of declared participate. court’s sonally appellate review of all criminal convic- scrupulously respect was in this action Congressional approval tions without —or correct. awareness—and hence without even mounting of With the caseload expense. propriations to meet pauperis, weme it seems to consequences of this on overloaded court obligation to scrutinize all have an appointed overworked court dockets and designate peals as frivo- care serving fees, are ob- without so. See lous which those vious. Judge Prettyman’s dissent in Sur- In view of these observations it should ratt said also be 691. This D.C. carefully ably present- has suggest all insubstantial cases are every possible on behalf ed But the frivolous. amount appellant. before us judicial be He is virtue must devoted time appointing him and which are indeed friv- it is not his our order criminal may presents responsibility standard rational well olous calling appellate in which review no issue a situation lead to Ellis,

1. Cf. MacKenna v.