United States v. Mitchell

Rehearing. On

PER CURIAM. defendant, Rudy, raises now objection that, the first time conspir alleged we have declared that the

acy conspiracies, really three place party one to which he took wholly can an Jersey. We see no this, swer to reasons which we Zeuli, Cir., 137 stated United States v. Rudy’s handed down herewith. reversed, indict conviction will and the ment him be dismissed.

UNITED STATES v. MITCHELL.

No. Appeals, Second Court of Circuit.

July

Opinion Rehearing Adhered to on

Nov. waitress, she employed she a as thereafter, and went him soon out with she the third or fourth occasion on there- him. A short time intercourse with go to work after he her out asked needed prostitute, him a since he as where money, her a hotel telling of certain arrangements he all the had made another actually her to bringing and later place, again her work he asked where refused. prostitute. as Each time she a April, for con- He was arrested minor, the delinquency tributing to the of he had charge being on the fact that based overnight. stayed room with her in a hotel him, As she would not was, charge was dismissed. He marihuana, and possession indicted arrest night before his convicted. The her as urged go to work again sug- places previously prostitute at jail he her that gested. While in wrote know for a and “You needed $100 June, Upon what do.” his release Mexi- Albuquerque, New he went to Gilbert, City, for Albert C. of New York co, by court he had been directed appellant. state his sentence leave the Hourwich, George Kennan York of New October, 1941, response to a served. City, for appellant. amicus curiae defendant, Al- she went letter Hilly, Atty., they were married. buquerque, C. Asst. of New where U. S. John City Corcoran, (Howard together got York U. S. She a total $800 Atty., City, money, gave defend- brief), of New York which she on her own York, arriving appellee. ant; they left for and New on October HAND, FRANK, CLARK, L. Before and York, Judges. weeks Circuit After two go her that have to fendant told she would money. as he out to hustle for needed CLARK, Judge. considerable There follows a record by appeal This Mitchell William part, urgings and various threats on by jury conviction crime from his hers, assisting refusals on transporting his own wife interstate otherwise, chance persons third purpose prostitution commerce for determine, suggestions of seemed to debauchery, contravention specific might operate, as places where she Traffic White Act 18 U.S. Slave capitulated eventually she result of length wife C.A. 398. The testified at places, at several which she worked him; although there was some named, including, among specific two from others of certain details corroboration During the time that she worked hotels. testimony, quite obvious that no all prostitute, took be had conviction could without her evi- earned, money amounting to some she pressed appeal The errors dence. on this $2,000. February He was on arrested testimony legally that her was not ad- March on and convicted against him, and missible erroneously refused to allow to dis- him considering admissibility during the his counsel trial. testimony, miss distinction must be the wife’s general privilege pro between a revolting details spouse against need given by hibiting the wife not be stated here special privilege as to necessary than is further set forth another question involved. communications. The latter legal She said that she confidential ap February, thoroughly recognized and during quite met defendant seems California, country, Diego, proved Wigmore Evi- cafeteria in San where dence, 2332-2341,1 3d whereas Ed. Bar Commonwealth v. §§ ker, former, widely recognized while also Mass. 70 N.E. Common Barronian, where or limited wealth v. modified statutes 235 Mass. exceptions, strongly clearly criticized- N.E. has the better view is that privilege origin, rationaliza- spouse of obscure uncertain is that of either who- tion, limiting in and unfortunate results chooses claim Wigmore, it. id. § id. judicial Wigmore, objection search the Even the adequate for truth. if was not in 2228, here, 2227-2245, quoting scope especially think we should notice the §§ § devastating Jeremy importance Bentham’s blasts at the in of view its case, rule, 2245, hope in the the expressing circumstances, all the in § death, centenary cluding objections “before the Bentham’s the of made counsel vestige Indeed, privilege remain.” hereinafter discussed. it seems omitted the American Law In- desirable to injustice is out that Evidence, accused, although Model done stitute’s Code of the for we think the testi privilege mony clearly the for confidential communica- long admissible 215, recognized exception princi tions is retained. Rules Ladd, 216. See to the general Evidence, ple. A 27 Modern Code of 214, reprinted L.Rev. in the Institute’s Iowa exception This is famous the Code, 329, 344; Report of Model also Necessity, in injuries the case of to the Improvements in of the Law Committee on spouse, Audley’s stated in 1631 in Lord Evidence, 594, 1938, A.B.A.Rep. 63 Case, 115, 401, Hut. 3 How.St.Tr. where or In York statute a husband instigated the had rape against husband competent against is a wife witness the exception settled; wife. The itself is well cause, except other a criminal only question the all at doubtful is whether compelled can neither to disclose properly applied it can be of a violation confidential communication one to made Traffic White Slave Act. Here the marriage, N.Y.Penal during other argument is that this not a crime made is 2445, 40, Laws, Law Consol. c. § person wife, against but a crime of that no conviction under N.Y.Penal Law § But, against interstate as Wig commerce. compulsory prostitution for the 1090 aof 2239, more, says generally id. all of cases § upon testimony wife shall enticing prostitution or white slave unsupported wife other evidence.2 wife, involving traffic “of course moral course, privilege spouse Of ly shameless offense wife- testify for the other was established in the ; agree, and we hood” do all the author opinion federal courts in the notable ities, exception, single with a which deal Sutherland in Funk v. United Justice specific question under this stat States, 371, 212, 290 54 U.S. S.Ct. 78 L.Ed. States, Cir., Denning 5 ute. v. United 247 369, 93 A.L.R. 1136. 463; Pappas States, Cir., F. 9 v. United 241 case, present In States, Cir., Cohen defendant F. United 9 214 v. through objected 23, counsel “to 696, his wife F. certiorari denied 235 35 testifying 199, she going testify unless L.Ed. S.Ct. 59 United States v. voluntarily.” The Rispoli, D.C.E.D.Pa., court asked if she 189 F. United testify, willing replied, Bozeman, she D.C.W.D.Wash., 236 States v. F. proceeded. “Yes.” examination then 432.3 only case which has ruled In Although otherwise, there some at States, Cir., basis least under 8 Johnson statutes for the view that is 221 privilege id., as Wigmore, wife tions between Husband and prosecutions during § was no Q.Rev. 137. criticized (other 2 1 But see Cf. importation reversing requiring, admitting 28 than confidential such'privilege U.S.C.A. by Holdsworth, existence Shenton [1939] Ch. testimony other bigamy, aliens for § 633, permitting, Tyler, prosecutions communications and U.S.C.A. common marriage) prostitution. Communica Wife, husband or ^[1939] spouse 56 L. law; but Ch. D.C.E.D.Pa., but affirmed in United illegal distinction is held Jackson v. Judge riage -writ of habeas quotes 3 aas material was inadmissible. acts Caffey case of United length Kelly, before 209 F. United States corpus States accord, from the (but Cir., States 97 F.2d 1020. release its brief here dismissing the curious after) decision reported Gwynne, ex as to- mar wife rel. Barronian, id. supra; Wigmore, points out, exception wealth v. failed to consider Cir., above. compare cited States, statutes at all. Yoder v. United important Here communications most wife F.2d the defendant’s divorced marriage. to the before was allowed to case occurred denial applies to com testimony, Again, Judge privilege McDer- in munications, acts, mott not to rested the court’s decision on money from competency. ground taking broader clude of the wife’s Cir., presence of States, See also to communications Cohen v. United Cir., threats States, parties, third various F.2d 139. In such as the Kerr v. United well as certiorari denied 271 U.S. places prosecu- arrangements S.Ct. made with others on a States, mails, tion for for her United violation a wife was to work. Wolfle v. 2337, supra; In view Wigmore, allowed id. 2339. to her husband § admissible, poisoned candy. mailed her of all is what would thus hardly importance, very left is of minor say To of this statute all it at bar that distinguishable from what is be ad to does is to preserve purity of our federal quite mitted. clear And we feel compact is to shut our the realities the circumstances whatever said defendant crime, of modern federal where the federal to her was not intended to be confidential ground, be, may whatever is the con privilege. and does not come within the stitutional justification, excuse and rather Mason, Cir., New York Life Ins. Co. the reason being, legislation. of the Cf. 28; City 272 F. Jones, D.C.S.D.Cal., Kansas Life Ins. Co. v. Chamberlain, Statutes, Federal Criminal 159; F.Supp. Park 1934, 501; Co-oper Federal A.B.A.J. Berdell, hurst v. 110 N.Y. 18 N.E. ation in Enforcement, Criminal Law Am.St.Rep. 384. her On Harv.L.Rev. Contemp. 1 Law & di issuing made no bones about Prob. 399-508. Whatever else statute this prostitution in rections for her work of may do, it exploitation strikes at the others; merest and it is the women, and comes directly within the rea chance, not nature communica exception. son of the all, After the situ confidential, keep tions or his them desire to ation injured of the wife deserves some which finds certain orders to consideration; and in circumstances such made to her alone. We hold that the court as presented, are here we think it would committed no error the admission of' be shocking deny her the to testi evidence. fy. With Denning States, supra, assignment The other of error is based page F. at we believe that “a on an occurrence in the midst of trial after woman is as much protection entitled to highly incriminating testimony the wife’s against complete degradation as given, attempted had been when defendant simple assault.” attorney appointed repre- to dismiss the Although the 'further has sent background him the court. The urged presented two able briefs this incident must be Although stated. on behalf of the accused that confidential appear entries do docket below not communications between husband and wife record, the brief for the United States states improperly allowed, were we think that February 16, shortly that on after not the case application here. For arrest, attorney, an Bran- Mr. privilege, the communications must be such wife, appeared denberg, on behalf of the as from their fairly nature were intended to being who held as a material be confidential. States, Wolfle v. United February that defendant was indicted on 54 S.Ct. Brandenberg and that Mr. filed a notice States, Yoder v. supra; United Wigmore, February appearance for defendant on 25. id. Wigmore urges indeed § pleaded guilty Defendant not March on there should exception be the same March when the case was called On necessity as in the privilege against testi trial, addressed the court and fying, id. and the Institute’s Model represent stated he wished to himself. Code, supra, provides. so Further, us is an The record before abbreviated clear that communications actually up by record made narrative counsel and outside the marriage relation, permitted by as before certified us marriage, are not within the rule. appeal Halback leave to granting Hill, App.D.C. 127, pauperis. goes forma on: “He said he States, supra; Yoder v. United lawyer, Common cannot afford a offered so Court explanation re- ance of would assign lawyer. time for more Mr. appreciably case for quested have affected the permission to withdraw. prosecution jury, while it granted as- Court this would dark not leave signed de- so in us defend though defendant’s intent. But even fendant and adjourned the case was may approve judge’s March haste 1942.” disposing objection, this far from The case March went on finding action, in his reversible error 13, 16, and On March particularly in case as as this wife’s examination and cross-examination was, appears As it accused. completed, had been the record shows that twice, that defendant did address the court “Defendant Mitchell addressed the Court expressed beyond but neither a reason time T like stated the dismissal of was within his or disclosed ” attorney. rights.’ am within his intent or desire as the future course To assigned this the court said: “I have trial, whether he wished to continue represent you,” him to whereupon without expected new counsel or accept said: “I refuse to this man counsel improbable certainly him. It is attorney.” replied: Then the court hope delay, that he did Jury “Sit down. The disregard this which, in the situation he then him- found demonstration.” And the record continues: self, would at least somewhat have been “During the trial Brandenberg, Matthew F. helpful prose- to the disturbing him and to Esq., attorney Mitchell, for the defendant strong cution’s case. cannot know now We consulted with Mitchell and Mitchell made deliberately planned this or whether objection further no to Mr. not; how, but in view we can see attorney, his acting forth as set proper emphasized solicitude in the recent above." precedents very point, raising on this the The claim of error as to assignment of of be this issue under the circumstances can first instance would embarrassing made a shrewd means of clearly seem well taken. The court prosecution. here seems to have been properly solicitous we it Under these circumstances think rights and welfare of an accused. require that the proper at least defendant to said he Defendant could not afford a the claim must show his hand. Thus that lawyer; and so the court relieved him of to one has a constitutional conduct but, properly obligation, mindful of point, hardly own in because defense is right to counsel and its safe- constitutional trying have he was to showing no that (cf. The the federal guarding in courts right and that exercise that none he was Right Benefit of Under Counsel prevented The ever therefrom. cases cited Constitution, 42 Federal Col.L.Rev. as, indeed, they equally, defendant stress provided cited), and cases hereinafter should, right of an properly accused lawyer by appointing such counsel al- right to himself and his act for Defendant, ready familiar with the case. See, among in his behalf. assigned objecting, far from himself of the availed Zerbst, 304 v. U.S. Johnson given thus help court. This incident 1461; 1019, 82 L.Ed. Powell 58 v. S.Ct. explain action, tends to court’s later Alabama, U.S. S.Ct. State intensify than rather asserted 527; L.Ed. 84 A.L.R. Adams v. argues. McCann, rel. United States ex 269, 279, occurence, second —; Betts 63 S.Ct. course, presents question. more The ab Brady, 62 S.Ct. 316 U.S. v. does in full breviated record not show Price, People 262 N.Y. L.Ed. 413, had occurred in the mean detail all that cf. 42 Col.L.Rev. N.E. show, however, Obviously, the 271, does that 327. It time. Geo.L.J. however, case the de prosecution’s strong rights cannot be both exer those place. made had been when it took time. cases the same are cised appears be made dealing It is true with a choice peremptorily, obviously say would be unfair opening somewhat trial. acted possible staging defendant was choice is after the concluding that no further good just made faith. The would be opened, case is it disturbance say appellate courts would be much that when defendant sees task of unfair always against him courts with he can if trial acted case easier forbearance; assigned immediately here allow- counsel and patience dismiss therefore, upon mistrial, Finding, grounds delay then obtain a often —and just which the reached below should result at least where calendars districts upset, ap- judgment we order that having through the device of crowded— pealed from be new counsel him. Affirmed. during the Presumably if an accused proceed trial decides that wishes FRANK, Judge (dissenting). trial, and alone delaying and without I with agree colleagues cannot knowledge of makes his decision with full there was manner in which no error open,” taking (“with risks he is trial dealt judge with defendant’s McCann, rel. Adams States ex attorney. request second dismissal of his open to supra), that course should must have in view fact of .the that he treatment, discussing counsel, complete re confidence major- desirable to note fact which the People Mandell, Cir., 69 F.2d opinion fully ity does While bring out: Thompson, App.Div. 199 N.Y.S. record indicates judge, A federal complete the wife was when that hardly precedents, justified, in view made, by means that all discloses under such allowing the trial to continue testimony seriously damaging conditions, specifically unless the course is jury. Doubt- fendant was then before the advised fully demanded “strong”; less wife’s change in the circumstances. Hence a possible knowing but we have no means of counsel, usually discharge, even a testimony given whether after It therefore should to a continuance. did influence request was denied or did not necessary clearly be had jury arriving at its verdict. accused, when, safeguard the of an agree colleagues indeed, necessity safeguarding of that ap- properly originally court trial acted under the circumstances which have de- pointing as defendant’s veloped particular outweighs in a case that, agree, arguendo, I if counsel. also prejudice prosecution. subsequent request defendant’s dis- missal Mr. middle here, In the situation where no reason meant that defendant plainly trial appears in the record for defendant’s action appointment then asking damaging other than the nature the case counsel, would have another it been against him, do not we think it was in- refused discretion of the trial cumbent on the court to search beneath the since, request, had it been con- granted, surface grounds. may well, for other ensued, delay the trial siderable would have point to the alternatives had and, interrupted, been in all would have such grounds other assigned. been If de- probability, a mistrial would have been open fendant with claimed had necessary. My colleagues they (as concede right to conduct his own defense without must) did not for the ask delay, and the court agreed, had it seems They say, appointment a new counsel. clear that personal whatever however, that, did as he not whether disclose him, satisfaction this would given have he (a) wished he to continue without counsel undoubtedly not would have had as com- (b) expected to have new counsel as- plete a trial as received. Under he his. judge properly signed trial con- tutelage counsel’s he himself took stand request mean- unexplained his strued in full denial essential elements of ing latter. his and story, wife’s an attack more subtle apparent than a capacity man of could judge the trial had If asked defendant have alone executed meant, directed at if what he defendant had then supported by her diary entries silent, and mail interpretation remained such an communications with a man had who been might justified. have been But the trial convicted under this statute whom she judge ignorant did not ask defendant1 forced to admit she money. had loaned Indeed, he gave what meant. he the de- if sought And appointment explain. Instead, chance to no counsel, obviously other could ex- said, judge peremptorily down,” “Sit pect one who would have had this defense added, jury “The will disregard this mind; immediately certainly there regard That demonstration.” for fairness delay was no reason for or continuance. trials, particularly in criminal prose- 1 Mycolleaguesdescribe him not too subtle. request cutions, part of the such a would have necessitated a inherent is an democracy, delay compel long period for so as to justice in a administration of consequence not, think, mistrial. But such would adequately exercised being I situation, judge follow. trial ignorant ambiguous such an defendant’s that, strictly might have if expression discretion rule his intentions are as continue the trial con- they if skilled desired to construed as were behalf, counsel, especially ducting of an it on his own he must do in the absence minimum, delay; judge, opportunity part ex- so without at a that, most, justified plain ruling would be his intentions. delay permitted. of a few hours would be oppor- wholly lack Disregarding That, however, judge trial is not what tunity, colleagues surprising make the did here. He did not exercise his dis- remark “under these circumstances prevent cretion. What he did was proper require think it at least that the being fendant’s articulated so hand,” pro- defendant must show his That, informedly. could be ruled on defendant, having ceed to hold that ad- think, I was substantial error. judge vised that he desired to My that, colleagues further intimate deemed, counsel, proceed without must be ig even if there was it should be remarks, interrupted because of his brief nored “in a case as as this say that he wanted new to have intended to assuming an accused.”2 Even mind, circumstances, counsel. To “harmless error” rule means that the sub to assert the the defendant is entitled now stantiality depends upon of an error wheth e., interpretation request, i. other appellate judges er the who that, trial, for the balance of the he be witnesses, be have not heard or seen the represent allowed to himself. that, they jury, if had constituted lieve Surely, explicit if he had made such they would have found the defendant request, a rever- refusal would position in which do not concur3 guilty —a doubt, it sible error. No would have been application rule has to such a —that have been neces- proper perhaps would — probably case as this. It is true that sary judge to out —for legal rights, no absolute none which jeopardize might counsel abandonment of But yield must in some circumstances. warning, how- After such a the defendant. which, legal there are some ever, have lacked the judge Constitution, absolute; approach an our the defendant continue to to insist they approximate they least so far lawyer conducted with have his case way when give confronted so do dissatisfied. The relation of whom was concept as that vague a of harmless error. lawyer and client almost a-s intimate as saying no one would think of that in Thus wife; husband and most states the federal courts the denial of the permit relations, dissolution the marital by jury (when not waived) of trial could and I know of no case the federal courts be harmless. of an ac ever

holding that dissolution of other rela- appear for himself and not to cused to tion is allowable as a matter of course. represented he does not want My colleagues, powerful, perhaps yet intimate is is not too so that, explicit request even had that may been dissimilar. Circumstances con made, nevertheless its refusal would not proper, where its denial would be ceivable reversible grant they did not exist here. majority opinion May Liss, Cir., 28, 1943, refers three States v. prosecutor’s “strong times to the case”. and cases cited. my dissenting opinion See in United

Case Details

Case Name: United States v. Mitchell

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 8, 1943

Citation: 137 F.2d 1006

Docket Number: 318

Court Abbreviation: 2d Cir.