United States v. Charles W. Jonas

America, UNITED STATES

Plaintiff-Appellee, JONAS, Defendant-Appellant.

Charles W. 75-1904.

No. Appeals,

United States Court Circuit.

Seventh 30, 1976. April

Heard Aug.

Decided representing Follow-

Kamp the defendant. day jury a one trial the returned its verdict, of the finding guilty the defendant charged in indictment. Defend- offense filed motion for a new ant thereafter memorandum, supporting which trial and granted court on the motion was improperly government ground identity of one of its failed to disclose the witnesses. Defender MacCarthy, Terence Federal Subsequently the was transferred to case Ill., Sher, Chicago, Michael D. for Program, attorneys two other Federal Defender who defendant-appellant. requested trial court authorize Skinner, Jeffrey J. Atty., K. U. S. Samuel preparation of the of the first Ill., Kent, for Atty., Chicago, Asst. U. S. trial, without costs to the defendant. The plaintiff-appellee. defendant did not seek the entire tran- limited script, request por- but BAUER, Circuit and CUMMINGS Before containing the testimony tions of the wit- CAMPBELL, District Senior and Judges nesses who testified at the first trial. The Judge.* government not object request. did BAUER, Judge. af- motion denied defendant’s The court appeal is noting on presented question question, briefing a full ter denying trial court erred first trial whether trial notes court’s that the preparation at- motion for to defendant’s defendant’s made available would 18, Section further, report- to Title pursuant and, the court torney Because would first trial recordings a mistrial. following 3006(e)(1)1 er’s denying impeach- for listening erred and for be “available we believe remand and we reverse purposes.” ment a new for case the first presented at both The evidence charged Defendant Jonas in a one was Leo P. quite trials was similar. and knowingly count indictment and un- with informer, Netzel, testified lawfully receiving, concealing, storing telephone call some- he had received a Treasury United States bills in violation of March 1974 during the middle of appointed Title 18 U.S.C. 2315. The court § individual, who he later by an informed the Federal Program provide Defender defendant, indi- that this was the learned legal representation for the defendant. securities various stolen possessed vidual Two trials were The case was ini- of these secu- dispose held. that he wished 28, 1975, tially April called for trial referred to allegedly on been Jonas had rities. friend, called to Assistant Federal Defender Jean Powers by a mutual Netzel * proceeding, inquiry parte propriate ex an Campbell, States William J. United The Hon. necessary and that the services are Illi- for District District Court the Northern them, financially person to obtain unable nois, sitting designation. court, magistrate if or the States United Act, Criminal Justice Title required in connection with the services are 3006A, seq., Section States Code et subsection jurisdiction, shall which matter over he has (e)(1) provides: to obtain the services.” authorize “(e) authority, statutory Service other to this defend- than counsel.— In addition (1) Upon request. person that he is for ant claims entitled —Counsel financially investiga- grounds; specifically, Fifth who is unable to obtain constitutional tive, right process, expert, necessary Sixth and the or Amendment due other services may request assistance Amendment effective them in an defense parte application. ap- Upon finding, ex counsel. after that, suspected although Netzel inquire as whether was familiar for various rea- dispose be able treasury with a banker bill have been sons that the stolen, Subsequently, securities. Netzel that it a stolen stolen he did not know telephone jury and Jonas had numerous conver- security. Despite Jonas’ regarding disposition guilty, sations de- returned a verdict of question, culminating bill in in a to a term four treasury was sentenced fendant Airport years. O’Hare on meeting two at May 1, 1974. transcript, of a one Following the denial the airport they proceeded From tape the did listen to of the defense counsel hotel shop coffee where Netzel informed prior the recording of the first the plans regarding Jonas of final the sale transcript motion was renewed retrial. of one of the bills. treasury they As had with defense counsel during the second trial previously discussed, bill was to be sold appeared there were in- suggesting foreign through bank the First Nation- testimony of between consistencies Chicago, acting al Bank of which would be trial and at the first government witnesses agent. as the transfer Netzel Jo- informed at same witnesses given by those nas of the name of bank vice-president did “not trial. The observed it second court whom he was to who see and would assist of any recollection” independent have disposition in the of treasury bill. Net- first tri- Netzel at the cross-examination of gave vice-president’s zel Jonas a business al, any recognize did not inconsistencies card. Jonas was driven to the bank the second trial.2 De- testimony at

Netzel, then, bank, in the while direct- counsel, attempting to demonstrate fense ed to the vice-president’s Jonas office. existed, for the court that inconsistencies solely upon informa- to relying limited Zimms, Floyd an agent with the Federal acquired listening tape to the re- tion Investigation, Bureau of purported to be cordings. vice-president. bank He testified that he meeting had a 1,1974 with Jonas on May motion, denying In the court stated at the First Chicago. National Bank of portions of the first trial could They discussed disposition defendant, if after listen- again transcribed terms of transfer of the treasury bill. recording of the first particularized could show “a for a need The defendant took the witness stand on transcript,” and if the defendant his own behalf and testified that the trans- point to “material variations” tes- between fer of treasury not bill did involve a sale given timony at the trial and that bill, rather, but it was a transfer of given at the first collateral to the purposes bank for of secur- ing a business loan. Jonas contended that does the trial court not The record before acquired had treasury bill from a in witness indicate that inconsistencies Germany business debtor in as security on a testimony to the attention were called debt, business and sought to secure a loan Now, appeal, for the on counsel court. for himself following default this for- a number incon- defense have outlined eign debtor on obligation to Jonas. Jo- tri- presented statements at the two sistent nas did not seek to sell the treasury bill but Regardless of by the same witnesses. als only to obtain a collateralized loan we believe the approach, defense counsel’s basis of this security. He further testified not court erred because a defendant should judge’s In contrast recollection tran- at that counsel sides both admit there were script pages 96, government inconsistencies, 94 and we view the court’s statement finding stated that he merely knew of certain inconsistencies aas but fact indica- as an However, in the he also informed independent tion that had no recol- court he did not believe that the incon- lection of the significant. light fact sistencies were In second trial. petitioner’s decision below if it rested on in testi- show inconsistencies required to specify failure to how the transcript.3 a free to obtain mony in order might have been useful to him. Our I. consistently recognized have cases acknowledged that the Both sides value to a defendant appeal is in this key case requiring prior proceedings, without Carolina, North in Britt Court’s decision to the facts of a showing of need tailored L.Ed.2d 400 226, 92 S.Ct. particular case [footnote omitted].” legal question Britt the same (1971). In S.Ct. factual context although the presented There an was much different. of the ease case, partially trial ended in day murder accused’s three justified transcript upon the denial of the it was jury reported when the mistrial produce the defendant’s failure to inconsist deadlocked, was a retrial hopelessly testimony general or his encies in witness The following month. for the scheduled give compelling reasons failure to establish requesting a motion trial court denied prior transcript. the usefulness of the trial. The Su- transcript of the first free improper.4 a denial was Such the denial eventually affirmed preme Court place case took the trial of the because support The seeks to same counsel judge and the before the same another transcript on the denial of town; and, according in a small court, e., i. trial that by cited ground counsel, reporter was a the court accused’s judge’s notes alternatives such as the time, would, have good friend available as reporter’s tapes were court the mis- his notes of to counsel But, read back transcript. unlike for the substitute trial, if trial, the second well advance where defendant the situation in informal re- made an simply had counsel attorney at both by the same represented Furthermore, argument it at oral quest. separated by trials were trials and the two petitioner became evident month, represent Jonas period of one reporter far more the court obtained from trials, at the two counsel by ed different the ordi- available to than that assistance ap by period separated which were defendant. nary one-half months. two and proximately Marshall, affirming the not have available for Jonas did But Justice Counsel against transcript, warned which was substantial them an alternative denial of tape transcript. situations transcripts in retrial conditioning ly equivalent type particular- first trial did allow showing recordings of some upon a not. prepare for adequately He stated: ized need. not an sub the dissenters trial and were agree “We transcript purposes about for doubts for a serious stitute would be there 3006A(e)(1), proper erroneously ordering 3. Under 18 U.S.C. tried to § condition the employed (1) showing is the de test to be should be: on the of inconsistencies financially fendant unable to obtain the serv ices, (2) (or transcript) rea is the service assumption judge 4. The that a court can what sonably necessary In this case to the defense. attorney is or what is not useful to a defense is no doubt as to the defendant’s there raised previously by been refuted only remaining indigency. question Thus the is by Court in another context. As stated Justice reasonably necessary. whether States, Fortas in Dennis v. United applied determining to be whether One test (1965): 16 L.Ed.2d 973 necessary services are is the reasonable attor the trial “Nor is it realistic to assume standard, e., ney privately i. whether a retained utility judgment for of material court’s as to circumstances, counsel, where under similar legitimate purposes, impeachment or other unlimited, would his client’s resources are not made, conscientiously ex- would however See United seek the service for his client. adversary sys- possibilities. In our haust Theriault, (5th States v. 440 F.2d 713 Cir. judge. tem, enough judges for it is 1971); Bass, (9th States v. 477 F.2d 723 may useful what determination of 1973). Apparently, Cir. applying instead of effectively properly be made can defense standard, attorney judge reasonable by only an advocate.” impeachment at the second trial.5 Making transcript, merited on the value of a stat- recordings during ing: available hours, in the office of the court re- partial would be neces- “[TJhis porter, placed an unreasonable demand on credibility sary impeaching for counsel, requiring them to listen to the corroborating wit- Russo and the three tapes of a day two trial and attempt any discrepancies or nesses reason of record the verbatim statements of witness- be found be- inconsistencies es for impeachment effective at the second tween the of these witnesses testimony they the new trial and the partial gave at the first but the his own

Although the trial offered helpful also be in con- defendant, they do notes proper prep- effective nection with a amount to a substitute for a verbatim new lawyer aration Wilson’s for the while on record of what the witnesses said trial.” 408 F.2d at 897. being judge’s equivalent had available the substantial general made to effect that a trial the transcript. a judge in the exercise of his discretion can substantially simi- reading Our of Britt is indigent avoid violation of an defend- circuits.6 lar to the decisions in the other right equal protection ant’s to of the laws Initially, in access, the Circuit United by permitting Second some sort of limited McMann, trial, States ex rel. Wilson v. 408 F.2d during reporter the second (2d 1969), trial, 896 Cir. ruled that a state’s denial any specified the first to check al- ap- represented by to a defendant court leged contradiction. This is not a pointed partial transcript late; of a of his counsel case of too little and too it is also a hung jury in a initial trial which resulted delay breeder of and confusion. Worst of deprived right to all, him of his constitutional despite good intentions of the equal protection. Judge Medina com- judge, apt ruling such a to lead Court, adequate are Supreme not an 5. At least one state New Mexi- substitute for a trial tran- script. co, tape recordings were a has held that instances reasonable alternative and in some Although the Court reached a narrow deci- See, transcript. superior State ex to an actual Britt, language sup- in sion its rationale and 699, Floyd, P.2d rel. Moreno 85 N.M. 516 670 v. ports interpretation a rather of the law broad However, impeach- (1973). preparing in governing transcript. impor- It is ment the basis of statements of a witness on majority opinion tant to remember trial, prior fail to see how counsel made at we principally upon relies the cases which would testimony repeat previous can without support granting transcript. See Wil- And, playing tapes. assuming actual 1818, Oklahoma, 458, liams v. 395 89 U.S. S.Ct. tapes, the court would allow use of the California, (1969); 23 L.Ed.2d 440 Gardner v. difficult to see how cross-examina- an effective 367, 580, 393 U.S. 89 S.Ct. 21 L.Ed.2d 601 presented con- tion could be if counsel was LaVallee, 40, (1969); Roberts v. 389 U.S. 88 stantly preoccupied locating the with 194, (1967); Long S.Ct. 19 L.Ed.2d 41 v. Dist. procedure on the reel. Such a Iowa, 362, 192, Court of U.S. 87 17 S.Ct. 385 picking up the tran- never be as effective as (1966); Draper Washington, L.Ed.2d 290 372 v. script, turning key page marked with a 487, 774, (1963); U.S. 83 9 L.Ed.2d S.Ct. 899 single paper clip confronting Eskridge Washington the witness v. State Board Prison Paroles, 214, 1061, Terms 78 S.Ct. See State ex with inconsistent Illinois, (1958); Rone, Seigler 2 L.Ed.2d 1269 Griffin v. 351 v. 42 St.2d 328 rel. Ohio (1956) (1975), 100 L.Ed. 891 as N.E.2d 811 where the specifically tape recordings cited in footnote 1 in Britt. held that Ohio has

571 trap not gravely Britt. Defendant did have the same into the defendant trials, is precisely This and the trials his defense. counsel at both two prejudice case separated by period in this of six months. happened were what [footnote Finally, importantly, regarding 408 most F.2d omitted].” availability of an alternative Wilson, supra, v. was cited United States to the Baker court stated: Britt. See also approval in obvious (9th States, 351 F.2d 606 v. United Peterson agreement or “Moreover, no there was Chapman, v. 451 1965); United States Cir. similar any concession stipulation or 1971). (5th Cir. F.2d in Britt referred the Court what reached circuits have conclud- being several basis for opinion Since as in today, relying in error we choose was same result as court below that ‘the ” language rather than primarily on Britt’s claim.’ Id. rejecting Cir- Recently Fifth holding. narrow its by the result was reached Sixth A similar case in with a similar presented was cuit Young, v. F.2d in States United Baker, (5th 523 F.2d States 1972). (6th Cir. in was indicted 1975). The defendant Cir. possess Young, co- de- conspiracy judge denying in federal court Follow- to distribute. motion for a with the intent fendant’s caine mistrial, trial, asked for counsel for the denial private first stated reasons ing a case, and coun- virtually from to those made which are identical withdraw leave represent the court case. De- appointed instant sel was Prior to second trial.7 at the was denied because of de- defendant fendant’s motion moved the specify por- failure to what defense fense counsel’s furnishing of the tran- or tion of desired how require court This motion trials were first trial. intended to use it. two script part, apart; denied weeks defendant was part and conducted two granted represented attorney to make at both ordering same transcript trials; reporter a and was available defendant “[t]he available govern- any portion of the principal two back at testimony of the read requested trial. The court have been at the first first trial that witnesses ment Only respect to the testi- or Id. at 629. motion with deemed relevant.” denied witnesses, including trials, in both other three witnesses testified mony of all Fol- in their defense witnesses. there were not material variances of defendant court, reversing conviction at the lowing the defendant's in- ruling trial, Appeals Court of Sixth appealed carving “a narrow Britt as out terpreted court. trial by exception to the rule laid down Griffin The Fifth Circuit held trial court further stated: progeny,” and its erred in refusing furnishing to order the Supreme opinion are “We complete transcript to the defendant be- basis for the rejected in Britt fore the beginning of the second' trial. Id. in this case.” trial court’s comments Quoting extensively from the decision of Britt, Court in the court con- cluded that the case before it did not Young recognized importance fall the critical within 629, exception narrow in set forth id. at petitioner’s in of concession notes) composing possible importance transcript in list of new trial attorney entering appeal. beyond question, Nor a case as trial errors which delimit his appointed by Goldberg Hardy required of law- Justice v. United should this be an stated 288, 431, States, 424, lawyer, yer. appointed An not he 11 whether or trial, represented (1964): at needs a defendant L.Ed.2d 331 discharge complete transcript full trial lawyer repre- responsible retained “[N]o responsibility . .” . rely exclusively trial will sents a defendant at supplemented memory (even as on his which a assistance unique noted the (1970), 443 F.2d 659 where the Court to counsel: transcript provides held that statutory rights indigent of an defendant were not violated when he was lawyers “Trial trial judges have long transcript prior denied the aof trial. The recognized transcript prior that a testi- Court in stated the defendant must Brown mony very is a in mounting useful tool show “necessary that the to an upon credibility attack of witnesses. defense,” adequate requiring thus that the While the judge may have found no defendant show that the pro- alternatives discrepancies we cannot from that con- vided in lieu of a transcript were inade- clude that there would have been no ma- quate. But Justice Marshall in Britt noted: terial available in the which “A defendant who claims the counsel could have found useful in the not, free transcript cases, does under our defense of appellant. We are of the bear the proving inadequate burden of opinion that exception carved out in such may suggested alternatives as applicable Britt is not ease, to this and we conjured up by State or a court in say cannot that the lack of a transcript of hindsight.” 92 S.Ct. at

prior proceedings was a matter of law lacking prejudice to this appellant.” Id. at 630. alternative, Arguing in the government also states that if it was error also studied Tenth Circuit deny transcript, such error was that a defend- concluded decision and Britt beyond harmless a reasonable doubt. Even transcript following right to a has a ant though guilt the evidence of is substantial Acosta, F.2d in United States mistrial in this case we cannot deem this error incalculable value 1974). The (10th Cir. harmless when it is of constitutional magni counsel and to trial of a tude. The Court left no doubt in Britt that provides which unique assistance the improper denial impeaching for trial and preparing error of constitutional dimension. The Judge noted trial was witnesses Court stated: when he stated: McWilliams “Griffin v. progeny Illinois and its es- cases above uniformly recog- “The cited principal tablish must, that the State having transcript of nize the value of equal as a matter of protection, provide prepar- trial in connection with the first indigent prisoners with the basic tools of the same case. ing for a second trial of an appeal, defense or when used for It is not a tool to be those tools are price available for a purposes at the second impeachment prisoners. other While the outer limits of but, perhaps importantly, more it is a tool clear, principle are not there can be preparing particu- used in to be no doubt that the State must provide an framing larly in the cross-examination indigent defendant with a transcript of question may the that such lead to to end prior proceedings when transcript is in the impeachment. And needed for an effective defense appeal. or providing ‘doubted’ that de- ...” 404 atU.S. at 433. S.Ct. course of the during fendant addition, In appeal counsel on has with limited access to the court re- trial noted at least four where areas there exist equivalent at the first trial was porter differences or inconsistencies in the testi transcript of the first trial. We share a mony of the witnesses. Even if the incon the same doubt.” Id. sistencies in the testimony given at each trial were minor we might think the harm II. be If substantial. the defense attorney had argument transcript present of its make an support In exact decision, evaluation of the inconsistent pre-Britt testimony, cited a government Brown, U.S.App.D.C. method of may cross-examination have United States trials be some may there Admittedly quite experienced As all been different.8 fice. short, simple realize, testimony is incon- a rather minor lawyers where of preparation major gap a so that sistency straightforward sometimes become can unnecessary. Or story. the exact would transcript in a witness’ Without a a where transcript attorneys proceedings un- may the defense were collateral there diffi- inconsistency But required.9 much less transcript able to evaluate not is order- policy of encourage examining witness. use Conse- cases we cult best alternative. as the safely transcript error quently we cannot assume the free ing a so that re- plentiful if not constitu- was harmless even it was of Mistrials are an unusual addition, place govern- transcript importance. quiring tional In a of administration transcript upon a or disposal ment had at its burden cost10 alone, in- justice. This case which exploit any Jonas’ thus criminal briefs, prepared and well the defense was extensive inconsistencies. Since volved by government transcript government appearances multiple without a of the wit- attorneys, sub- posi- defender parties unequal nesses the were in an and federal involvement, cost the tax- judicial Considering tion. this inherent unfairness stantial more than the of dollars we are the error harm- payers reluctant deem thousands transcript. original less. cost Accordingly, case is reversed and re- III. manded for a new trial. By our today decision we do not Reversed and Remanded. establish per a se that the rule provide must a transcript following a mis CUMMINGS, Judge (dissenting). may Under Britt there still be availa “an ble informal alternative which appears I respectfully disagree with my col- to be substantially equivalent to a tran leagues., secojid Here counsel at the However, script.” in the overwhelming tape had recordings available the majority of cases perceive we do not first trial as well as the trial court’s own judicial recordings or notes will suf- notes. hand, With such materials at de- from the time mistrial was de- Hardy, supra Supreme Court stated As the case, If, clared. in this defendant made no at 431: S.Ct. n. request appeal for a until after his time for at- appellate will advocate “As effective was exhausted MacCollom test, tool of fundamental most basic applicable. been complete trial tran- profession is the may fingers through script, trained which his MacCollom, supra, (dis- Justice Stevens may eyes in search roam trained leaf and senting) points providing out that the cost of error, error, or a basis even lead of an indigents defense for has not been overwhelm- change urge an estab- upon which ing. expenses He notes that the fees and principle accepted of law. hitherto lished or appointed counsel have amounted to between complete is Anything short expenditure for the lower 5% 9% appellate advoca- incompatible with effective years. figure federal courts in recent That cy.” rather when miniscule one realizes discussing Although Court was budget for the courts is 1/10 1% appeal, think we an entire budget. figures national basis of On the these apropos to equally language quoted above wisely concludes: required in cases of trial the task declared. mistrial has been where a monetary assuming “[E]ven increase costs, into account the costs we should take argument 9. Since oral delay ap- unnecessary in the associated MacCol- States v. its decision in United issued pellate savings judges’ process - -, 2086, lom, 48 L.Ed.2d U.S. time that would from the elimina- 10, 1976), holding (decided June result questions as tion the need decide such petitioner provided to a need be this. of our nátion’s scarcest resources previously One proceeding chose when spending judges’; if a few is the time of our appeal opportunity forego for direct disposition prelimi- dollars for automatic transcript. Of course attendant free with its nary extra issues will enable them devote holding differs substantial- case the MacCollom merits, adjudicating disputes ly the counsel facts of this case where from the money spent. . .” will well . repeated requests for a made for the defense fense counsel adequately prepare

possible impeachment of witnesses at the view,

second trial. my defendant did ap- “an informal alternative which

pears to substantially equivalent Carolina,

transcript.” Britt v. North 222, 230, 92 S.Ct. 435. No more was the Britt

required; exception applies. America,

UNITED STATES of

Plaintiff-Appellee,

Harry IACONETTI, D.

Defendant-Appellant.

No. Docket 76-1034. Appeals, States Court of

Second Circuit.

Argued April Aug.

Decided the stand. The notes do not allow handwritten and abbreviated particular significance Also of to this case impeachment of a witness effective judge’s suggestion, during and the trial tri- reading original answer. There- back al, upon showing particularized particular fore we do not believe that this reporter’s tapes might need the court then case falls within the “narrow circumstanc- available, in Wilsonthat: comment es” of the Britt case where the defendant suggestions “In other are cases various

Case Details

Case Name: United States v. Charles W. Jonas

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 18, 1976

Citation: 540 F.2d 566

Docket Number: 75-1904

Court Abbreviation: 7th Cir.