United States v. Nick Senak
477 F.2d 304
7th Cir.
1973
Check Treatment

*1 in the trial: error not cure the basic did devote ade- of trial counsel

the failure America, UNITED STATES Indeed, preparation. quate for time Plaintiff-Appellant, coun- preparation impaired trial lack explaining the need effectiveness sel’s SENAK, Defendant-Appellee. Nick example, he For for continuance. No. 72-1431. by telephone no effort to confer made Appeals, Court of learn with Fisher’s Ohio Seventh Circuit. promptly officials would whether Ohio charge Argued felony to a misde- Dec. reduce the 1972. suggest the need to did he meanor. Nor April 24, Decided 1973. to ascertain examine the board’s records reasonably prudent the order call. A Rehearing Denied June investigated would have de- had been defense because Fisher or- delinquent was before he

clared report Gut- induction. dered knecht v. United L.Ed.2d We S.Ct. representa-

conclude, therefore, “within

tion Fisher received range competence demanded attor- cases,”

neys McMann v. in criminal

Richardson, (1970), 25 L.Ed.2d 763

conviction must be vacated. recognize recently We need —

emphasized by Federal Rule Criminal 50(b)

Procedure courts —for

maintain control over their dockets cases,

expedite the trial criminal way approve

in no do failure lawyers prepare trial.

Fisher’s judges empow also reaffirm that

We prepared

ered to insist that counsel be may

so that trials as scheduled be held

and that trial do not lack authori courts

ty attorneys dilatory to censure tac Relating

tics. See ABA Standards Judge 1.4, Function of the Trial §§

3.8, seq. (Approved 7.1 et Draft

1972). But conviction effective

legal representation misplaced sanc shortcomings

tion for the of a defend attorneys.

ant’s find no reversible error Fish- grounds judg- appeal.

er’s vacated,

ment is and the case remand-

ed for a new trial. *2 Atty. Gen., Norman,

David L. Asst. Rights Murphy, Robert A. Civil Atty., Division, Department of Justice, Wash- ington, Lee, Atty., William C. U. Fort S. Ind., Wayne, plaintiff-appellant. Cohen, Ind.,

Max Gary, defendant- appellee. PELL, FAIRCHILD, Before Judges.

SPRECHER, Circuit PELL, Judge. Circuit grand February a federal jury returned a five-count Senak, Nick County, The indict- Lake Indiana. acting Senak, while “willfully law, under color and unlaw- fully vari- and took” exacted willfully persons, thereby depriving ous those of their under the Amendment not be de- Fourteenth prived of 18 violation U.S.C. § notwithstanding specifically, 242.1 More law as under Indiana attorney,” “pauper virtue of compen- governmental entitled to he was fees sation,2 exacted had 4-5716, 1968 Burns’ provides pertinent 1. 2. Ind.Ann.Stat. 18 242 U.S.C. 33-9-6-1, authorizes Repl., part: IC having judges in counties any law, “Whoever, criminal color ap 400,000 more or ordinance, regulation population statute, or cus- any poor point public to defend willfully subjects tom, defenders inhabitant of aof commission any State, Territory, person of the accused or District to the employ an means to deprivation rights, privileges who lacks crime or judge appears attorney. protected If immunities or secured “poor previously person be a deemed Constitution laws of the United counsel, pay for person” guilty funds an of- [is States recovery county to sue for fense.]” 306 (Count I) L.Ed.2d pauper “client” from a (1967); im- United Buie v. from friends or relatives II-V) (Counts cert. de poverished “clients” 585-586, legal representa- threatening nied, inadequate (1936); appointed to L.Ed. v. Man tion of those he etti, (D.Del. F.Supp. represent were 690-691 the extra sums unless Further, paid U.S.C. § him. *3 disagree we deci the Government’s 27, 1972, the court On March pursue appeal precluded sion not to its reluctantly pre-trial Senak’s sustained grand jury returning the from another on the the motion indictment to dismiss indictment on the same matter. ground indictment failed Beard, 1014, United States 414 v. F.2d against United state an offense (3d 1017 Senak was not Cir. reversal seeks States. The Government put jeopardy; jeopardy usually in is dismissing the in- order of the court’s held to “attach” at the time trial com dictment. jury impanelled. and mences a is See matter, an initial deter- must, as 480, 470, United v. 400 Jorn, States Government barred mine whether 547, (1971); 91 S.Ct. 27 L.Ed.2d 543 maintaining appeal. The in- from this 458, Illinois v. Somerville, 410 U.S. cf. appeal in is the dictment involved 1066, (1973). 93 S.Ct. 35 L.Ed.2d 425 second under 18 U.S.C. § Senak We therefore hold second indict May 242. An returned ment was barred. had been dismissed the district 1971 19, 1971, on court October Fed.R.Crim.P., Rule 7(c), re filed a motion. The Government quires that an indictment “shall be a appeal notice as that dismissal but plain, concise and definite written state successfully later had Rule moved constituting ment of the essential facts 42(b), Fed.R.App.P., ap- its dismiss the offense.” “The test of suf true peal. claims that in- Senak second ficiency of an indictment substantially dictment as the the same whether contains the elements of the and first one the Govern- “[w]hen charged.” Hag offense intended to be appeal the dis- abandoned [of ner United States, v. 285 U.S. May missal of and 1971 indictment] 417, 419, (1932), 52 S.Ct. 76 L.Ed. 861 appeal for was dismissed want of quoted in United Debrow, 346 States v. prosecution, judgment of the district 374, 376, 98 L.Ed. court in effect now was affirmed and (1953). The of an elements 18 U.S.C. principles bars the second indictment on (1) 242 offense are: the defendant’s § judicata, estoppel of res collateral and deprived must acts have someone of a

former jeopardy.” protected by secured or the Consti States; (2) The cases on which Senak re tution or laws the United lies, including illegal this court’s decision must acts have Ponto, law; United (3) v. States 454 F.2d 657 been committed under color of (7th 1971) (en deprived Cir. banc), person distin must guishable. grand may jury State, A re federal have been inhabitant a Ter turn District; (4) a ritory, second indictment same the defend offense willfully. when the first indictment has ant must have acted See Jackson, dismissed or otherwise defec found United v. States F.2d Root, (8th tive. 1956). Only United (1) F.2d Cir. elements denied, 1966), (2) dispute appeal. Cir. cert. are in on of a sum for reasonable ren services lie defenders is determined the criminal public judges

dered public defender. The sums and comes from funds. go general county 4-5717, recovered into the IC § 33-9-6-2. compensation paid pub- fund. The to be au- wrongdoer clothed public defender that a contends ‘un- taken thority action liability under § immune generally given of’ state law.” der color that, once States, 325 U.S. state Screws color of act under he does not case, L.Ed. 1495 107-111, private purely at functions as law but juncture do we re At proposition, Senak torney. For this example, words Senak know, in what Joseph, lies on Brown alleged question demands (3d couched his where the made to the Pennsylvania county public representations he or what alleged whether a all know do Nor for dam “victims.” held liable could be brought by to Senak’s in ages former that attached conditions in an action e., defender, digent i. constitutional as client who required deprivations 1983, the conduct ethical under 42 U.S.C. duties and the by assuming posi- counterpart of 18 civil U.S.C. law of someone *4 in the sufficient held that district court there If indictment is tion. the upon should complaint claim which respects, failed to state a the Government granted try basis that to given opportunity on the to estab- relief could be the be acting color of under the defendant was “under color acted lish that Senak appeal, Third of On state law. . . . law.”. the “un it need not reach Circuit decided objections to the The district court’s any question. The of law” der color supposed ab- centered on county public held that a court instead “deprivation aof constitu- sence of the liability enjoys immunity right” Implicit its in tional element. Rights under the Civil Act. however, about were doubts discussion, require- law” the “under color of Brown, supra, the one case Senak cites view, that to hold In the ment. issue, inapposite. The court’s charging fee, defendant, by de- a the prived “color of law” dicta. remarks about property of the named holding Further, an examination of the “to strain law was without due of there reveals that the court was con- breaking past concept well its that immunity judges, cerned with state point.” prosecutors, and “for defenders performance done in deprivation” acts judicial [their] ele- The “constitutional . .” function . . [s] of the section 242 offense recognized concepts: F.2d at 1048. The court here right of three consists exception immunity “deprivation,” to where the offi- and “property,” to a clearly scope right acts are outside the process.” cials’ “due clear that jurisdiction. Also, dispose enjoy, officials’ Id. acquire, own, and to emphasized policy by protected certain property consid- the Constitu- erations which are irrelevant of the indictment tion. against count Each charge us, g., in the indictment e. before Senak referred to the named importance encouraging right person’s property the offi- under the to professional specified cials’' “free exercise of dis- Amendment and Fourteenth discharge pre-trial, (money) in cretion trial, and form of post-trial obligations.” approximate Id. taken. amount Konovsky, 202 F.2d United States v. provides binding Cf. 721, prece- neither persuasive dent nor to us reasons lead to problem conclude that the whether Government would A more difficult be unable, satisfy as a matter of a to conduct constituted requirement. “deprivation” “color of law” Constitution. See United under the Classic, 299, 326, States v. term 61 The district court considered 1031, 1043, (1941): “taking” import “a 85 L.Ed. 1368 in the sense of to by power, compelled possessed “Misuse of virtue nonconsensual divestiture possible only legal authority” reluctantly conclud- law made because allege state,” compensation if for additional ed indictment failed “taking”: adequate representation. to be such there is appointed The constitutional concerning verbiage “When ‘tak- contemplate any counsel does not stand ing’ stripped away, and ‘exaction’ is adequate representation. ard than less alleges all [the indictment] dealing the in- in here with successful demand for ex- We are change existing legal performance pre- for the herent variation fronj skills Attorneys ap- existing legal lawyer duty. lawyer. . . . The fatal pointed represent indigents, here re- defect the indictment is that like allege undoubtedly possess fails tained counsel, that defendant’s will degrees none, varying legal acumen; ‘victims’ were ever obligation pay however, purposely inadequate. demanded. should the sums be obligation put baldly the matter choice

. . fact When as a [N]o adequate representation possi- existed. between bly acquittal followed and inade- Unless demands quate representation reason- which could state, power are backed of the ably conviction, assure choice ‘taking’ no there in a constitutional surely variety. Hobson sense.” litigant means can choose sustaining prior opinion the mo- its pauper cannot, counsel. The and his con- tion to dictment, the first in- directed to dismiss stitutional opinion incorporat- *5 point has not been extended to the af- by opinion, ed reference in the second fording privilege. him it has That the district court “There no stated: exposing should not been be no basis for that claim those were fee] [a necessity trying by him to the some legal any compulsion, ever under or oth- gather together means to com- funds to erwise, pay. (Emphasis . . .” pensate whom he has added.) selected and who told with- has him that It would seem that there was obvious compe- out funds he would not those be legal compulsion. being no paid tently represented. by the state and could not have suc- Finally, “deprivation” we note that a cessfully compen- claimed additional by does not have to be authorized represented, sation those he either States, See, g., e. law. v. Catlette United directly However, vicariously. or that (4th 902, 1943). A 132 F.2d Cir. legal right he had no he defendant must act . . “under color of supposedly collected or that the named law,” but his acts need not have been might “victims” a success- have asserted compliance with the law. United States payment by ful to a defense suit him Wiseman, (2d 445 F.2d Cir. preclude possibility does that Se- denied, cert. 404 U.S. “deprived” nak those of their 30 L.Ed.2d 287. The Govern property. Barr, United States position ment claims that Senak’s official F.Supp. (S.D.N.Y.1969); cf. perpetrate him to enabled a scheme Culp v. United F.2d 93 obtaining money to he not en which was being county public titled. His appears gave reality that opportunity us him the ignored say compul that there no make the demands and him with clothed impoverished doing. per authority sion on “otherwise” of the state in so supposedly provided son who has sum, we think that the district legal representation with or on rela “deprivation” re- court construed they tives close friends when quirement narrowly. too confronted with a demand from that counsel, ostensibly emphasizing compulsion by ap By coer virtue of his suggest pointment cion, power court seemed “backed taking exercise federal warrant does not accom “deprivation” that however, do, jurisdiction. under- proper pro We plished adherence without apprehension that by it stand “deprivation” term The cedures. opened legality a Pandora’s box. Government self, neither however connotes (cid:127) particular indict- have held portion illegality. the Four The nor of- adequately states an ment us before we are with which teenth Amendment 242; inti- 18 U.S.C. fense under shall ease —“nor concerned sufficiency opinion liberty, life, no about mate any person deprive State possible sec- indictments process of property, law” involving sit- factual different tion of due the violation -—indicates uations. particular standards makes illegal objectionable, “deprivation” February dismissing The order Lynch “deprivation.” Household reversed, Corp., 92 S. Finance 405 U.S. to the district remanded cause is (1972); Snia 31 L.Ed.2d proceedings Ct. with consistent further Family Corp., 395 U.S. Finance dach v. opinion. 23 L.Ed.2d remanded. Reversed and is, focuses the Amendment That “deprivation” which the means Judge (concur- FAIRCHILD, Circuit achieved. ring). argues “the The Government agree indict- I instant While possessed named victims certain consti an offense states de before and after tutional both 242, the under 18 U.S.C. de fendant’s [as theory upon which the indictment ; specifically, each citizen’s bas fender] grounded my not, view, satis- does continuing ic, to use and control “dep- grapple primary factorily until time his own as rivation” effected voluntarily disposes of it .or conduct. through con taken from him means indigents *6 sistent standards . . . ." guaranteed by the Sixth Wainwright, Amendment. Gideon opinion, In our the indictment satis- 9 L.Ed.2d S.Ct. alleges factorily a violation that con- (1963). the “essence of And, right. stitutional effective, competent and adequate representation.” Wilson argues by way of conclusion that (7th Cir. Phend, 417 F.2d alleges pro- best, indictment “[a]t 1969). Powell, also, Calloway cedural violation of law State Thus, if explained, defendant.” weAs have pro- threatens allege find that the indictment does adequate than services vide less rights. violation of federal as- indigent paid addi- defendant unless prompts sertion Mr. Justice recall sums, subjects tional effect challenging words, Frankfurter’s “The deprivation defendant of his Sixth history liberty largely been the rights. Amendment history procedural observance indigent subjection of an is this safeguards.” McNabb v. United deprivation Amendment Sixth posed real harm L.Ed. According- conduct. disagree ly, with the dis thus would be better reality. trict upon assessment case if it framed focused