United States v. Raphael Plattner

Sharp, the articles interest view of J. Cashio attached Carlos Surplus incorporation Ma- circumstances from which reasonable of &C S Inc., deposing $16,- Co., that men have concluded that their tes- terial timony capital Trial was C.J.S. stock had been sub- false. See (cid:127)000.00 214d, paid court erred in cash. Neither 215. The district §§ scribed produce directing Sharp defendants. was a verdict nor Cashio able documentary judgment evidence to corroborate is therefore reversed testimony any way the cause their as to remanded. paid $10,000.00 to have been claimed and remanded. Reversed Sharp. did Cashio to If Cashio cash Sharp fact deliver truth delivery cash, $10,000.00 in was such July necessarily aon earlier than date Sharp which the date on bor- Bank & Trust rowed from American Company $10,000.00, he claims which replacing purpose or mak-

was for ing good $10,000.00. Cashio’s Cashio “a week or cash two America, UNITED STATES July prior” 1956. Cashio testified Appellee, $10,000.00 in cash that withdrew safety box, deposit could Raphael PLATTNER, Defendant- not remember the date. Appellant. Louisiana The records National No. Docket 28377. Rouge Bank, Office, North Baton showed safety deposit -that Cashio rented box Appeals United States Court of Second Circuit. Number 697 November 24,1954, was which entered November Submitted Nov. entry July 17 the next was Decided March n ofa year figures which the first three figure 195 and fourth was were According smudged or unclear. to the employee, July 17, bank’s “It is and it n 5and then the last figure clear, anything else, whether it is a or I can- definitely.” say jury could have inferred that that conflicted with Sharp’s

(cid:127)Cashio’s version de- livery $10,000.00 in cash some week or prior July 17, 1956, $10,- two which '000.00 had been withdrawn from Cashio’s .safety deposit box. undisputed The evidence was year prior bankruptcy within one

n debtor, Sharp, $10,000.00 to transferred the defendant Cashio. Whether was fair consideration for transfer resting entirely in was a matter almost knowledge Sharp and Cashio. "Though directly no witness contradicted credibility testimony, their their n nonethelessfor light jury, in the possible the interest Cashio McCaffrey, Atty., Donald F. Asst. U. S. Brooklyn, (Joseph Hoey, U. S. N. Y. P. York,

Atty., Dist. for Eastern of New appel- Brooklyn, brief), Y., on N. lee. defendant-appellant,

Raphael Plattner, pro se. MEDINA, WATERMAN Before Judges.

MARSHALL, Circuit

Judge; MEDINA, Circuit guilty

Upon plea of before District Abruzzo District New Court for Eastern York, Raphael Plattner was convicted transporting commerce in interstate of Title violation motor vehicle in stolen and on June 2 and U.S.C. §§ imprisonment he was sentenced years. Neither for two and one-half judg- sentencing nor in the time of any statement conviction ment im- the term made effect concurrently with prisonment run being prison then sentences state failing, by Plattner. After served directing mandamus to obtain a con- served that the federal sentence sentences, currently Platt- state petition for ner, May 8, filed a alleging nobis, coram a writ plea guilty us, disputed, induced and is that Platt- “expressed promise prosecutor, Assistant ner desire to be his own counsel,” Attorney, “thereupon ap- pointed Legal suspended repre- would sen- counsel Aid to either receive a petitioner him because or direction that the federal sent was tence concurrently. in the law.” sentences be schooled state served sought resentencing in was relief After Court issues the or, alleged promise accordance with against Plattner, petition for held alternatively, to withdraw leave writ of coram nobis was dis- the missed, 1962, guilty. May 14, original plea of On appeals. was and Plattner There granted hearing, to be Abruzzo below, opinion brief no than a and, 26, 1962 without on June held knowledge did not statement the Court believe Plattner, as- consent testimony his wit- Plattner attorney signed represent him. an nesses. Court, District to the Clerk letters 19, 1962, 15, May Platt- May dated I appear at the permission requested ner hearing As we hold that a defendant explained: “Who personally. He case, including on the trial of a criminal my testify to sum- stead ? Who proceeding a coram nobis at which the How, my witnesses? mon and examine present defendant and witnesses are adequate- absence, possible my is it cross-examined,1 to be examined and has wit- ly the Government’s cross-examine to conduct and his own nesses?” ap case we reverse the order hearing At the June as- pealed from and remand the case. signed counsel for in order to Moreover, we hold the to act se witnesses, re- obtain time quested interview right arising stated is a above out of granted adjournment was the Federal Constitution and not July 16, However, request 1962. legislation product judicial mere that Plattner be to remain required decision. Thus we would be Headquarters so Federal Detention case, prejudice to remand the even if no for consultation he would be accessible Plattner were shown to resulted denied, re- was ordered Plattner permit from the refusal to him to act 2 Auburn, to the State turned Prison pro se. alleges that he then New York. Amendment, assigned no Under the Fifth requested the Court to relieve person may liberty deprived represent with and to allow him to process of Minimum re out law. due coram nobis all the future himself process quirements in federal of due proceedings. We are informed are the Sixth Reporter criminal trials set forth in took of what no notes They 1962, 26, hearing Amendment. include the on June at the was said sufficiently appears to be accused informed it Denno, 1955, 1952, Cir., Hayman, Cooper 221 v. 2 ex rel. States v. 1. See United concurring), 232; (Judge 205, 263, 681 Frank L.Ed. F.2d 72 S.Ct. 96 342 U.S. denied, 968, 1954, Morgan, 75 t. 349 U.S. 346 U.S. States United cer 906, 1289; 247, L.Ed. Fina v. United 99 United S.Ct. 98 L.Ed. 74 S.Ct. WJR, States, Cir., Pisciotta, Cir., 46 F.2d F. 10 2 199 States Station, States, v. Federal Inc. The Goodwill Winhoven United 2d D.C.Cir., Commission, Cir., Communications 201 F.2d 174. U.S.App.D.C. 1, F.2d grounds, Alabama, on other 1949. rev’d 265, v. State of Powell See L.Ed. 69 S.Ct. L.Ed. U.S. S.Ct. 45, 53 U.S. States, D.C.Cir.1951, Coplon also Kotteakos United See v. United 758-760, 750, 764-65, U.S.App.D.C. F.2d denied, 1952, L.Ed. 1557. rt. ce S.Ct. accusation, enlightened Indeed, confronted to be more views. strangely against him, enough, probably and to com- witnesses pulsory process obtaining witnesses have been denial of Plattner’s Implicit to act so in both amend- Court not been in his favor. per- years accused accustomed to as- ments these recent is the Legal lawyers sonally his own Aid or other conduct who in a criminal case. defend those defendants pay had no means their Amendment the Sixth framers choosing. recognized crim- in a that a sufficiently likely inal Section Judiciary 35 of the Act of effectively to assert in the law learned (1789), passed by Stat. They rights.3 guaranteed un- of all his Congress signed First and Presi- involve- emotional derstood that excessive Washington day dent one before the same might his of ment in outcome Congress propose was to Sixth ability paralyze to or- his accused in provided Amendment, in all “[t]hat ganize defense, cross- and his examine parties courts of the United cogent present witnesses, and examine may plead manage and their oum causes argument support cause.4 of his in or such assistance of supplement Therefore, and to buttress attorneys at law as aof all respectively of rules the said courts shall charged crime, final of clause with to right protects the the Sixth Amendment (Emphasis supplied.) causes therein.” the Assistance “to have of the accused gives expres- This statute more elaborate his defence.” of Counsel for meaning language sion to the of the terse safeguard surely Rights indicates, of This the Bill not intend- and right way toed limit in the absolute and the Constitutional to primary right “the to conduct assistance of one’s own de- counsel” was intended propria, persona. right in -to fense Nor is the ex- include the defendants plead criminal istence made doubtful cases “to personally.” part now all but their own circumstance that causes This assignment original Judiciary requirement universal Act of substantially language, of counsel to defendants is the the same is now generation development U.S.C., embodied in 28 later 1654. § Zerbst, 1938, fortune, my my life, character, 3. See U.S. Johnson not at are speaking L.Ed. stake. I am to an 58 S.Ct. Powell audience inspire Alabama, v. State of whose 287 U.S. kindness me 68-69, courage. yet, And 53 S.Ct. 77 L.Ed. 158. from mere nervous- ness, practice from mere want ad- Macaulay’s History England 4. See 5 large dressing assemblies, my I have lost (“The 1931). Ma- ed. World’s Classics” go I am recollection: unable to caulay gives following An- account of my argument. helpless, then, How thony Ashley speech Cooper’s maiden who, poor having opened be a man never supporting act of al- Parliament lips public, reply, is called to lowing counsel to the accused in eases preparation, without a moment’s (cid:127)of treason: “In course of his experienced ablest and most advocates speech faltered, stammered, he and seemed kingdom, the paralysed by and whose are faculties reasoning. to lose the thread of his that, thought fails if he then, House, indulgent novices, now, as hearers, few to convince in a then, now, that, as well aware beg- gallows, hours die on leave appearance, first which is the hesitation gary infamy who are dearest those modesty sensibility is effect of ” to him!’ quite promising volubility as manner, encouraged Johnson utterance and ease of See Fed.R.Crim.P. Zerbst, proceed. I, Sir,’ supra, 1938, can U.S. 58 S.Ct. him to ‘How himself, young orator, recovering Gideon v. the ‘produce cf. Wain stronger wright, argument 372 U.S. 83 S.Ct. favour My my this bill than failure? L.Ed.2d * * * position of Crim- Rule of The Federal Rules cused’s law. according Procedure, lacking statutes and rules now in force. enough, however, It is not to hold and right decide that the also to note: six state constitutions defend se guarantee constitutionally right. protected a in a criminal that the accused large right prosecution varied shall a to circumstances of the be heard number pouring by by both; of cases now himself or counsel or us with in- either creasing right twenty-seven apparent protect volume an ac- makes it of that survey heard, defend, person there should a or to critical of cused to be problem counsel;7 by provide and a four statement of the method procedure right of appear person to to followed the trial defend judges indigent thirty-seven Thus, defendants, of cases counsel.8 states dealing subject place proceed pro when to se on a of who is to and conduct constitutional level.9 their defense. many In Mc type coming Adams v. ex rel. of this cases be- Cann, 1942, appellate fore courts the record of the 236, 268, Supreme colloquy between the Court and the ac- cused, subject stated that to “The the assistance of who is to conduct defense, fragmentary and the correlative to or non-exist- dispense lawyer’s help a le praiseworthy are not ent. But for the attitude gal They rest Attorney formalisms. on considera of the United States for the go of an ac tions that to the substance Eastern District of New York in this 1, 6; 6; 6. Ala.Const. Art. Section Fla.Const. NAT.Const. Art. Section N.D.Const. 1, Rights, 11, F.S.A.; 1, 13; 1, Declaration of Section Art. Section Ohio Const. Art. 1, 6; 10; 2, Me.Const. Art. Section Miss.Const. Section Okla.Const. Art. Section 3, 26; 1, 20; 1, 11; Art. Art. Section Tex.Const. Ore.Const. Art. Section Pa. 8; 1, 1, P.S.; S.C.Const. Art. Section Section Const. Art. Section 8 S.D.Const. 6, 7; 1, Art. Section Tenn.Const. Art. 2, 24, A.R.S.; 7. Ariz.Const. Art. Section 9; 1, Section Utah Const. Art. Section 10; Ark.Const. Art. Section Cal.Const. 10; Chapter 1, 10; Vt.Const. Art. Wis. 13; Art. Section Colo.Const. Art. 7; Wyo.Const. Const. Art. Section Art. 16; Section Conn.Const. Art. Section also, Section 10. See La.Const. Art. 9; Del.Const. Art. Section 7 Del.C. 1, Section 9. Ann.; 13; Art. Idaho Const. Section 10; Rights, Bill Kan.Const. Section 9; Art. Ill.Const. Section Ind.Const. 12; Mass.Const. Part Art. Neb.Const. 13; Ky.Const. 1, Section Bill of Art. 11; Art. Section Wash.Const. Art. Rights, Art. Section Mo.Const. 1, Section 22. 18(a), V.A.M.S.; Section Mont.Const. generally Beany, Right Counsel, Art. Section Nev.Const. Art. 9. See Rights, Annot., (1955); Bill Section N.H.Const. A.L.R.2 d (1961). Art. N.M.Const. Art. Section disputing presiding judge, by in not colloquy case of recorded conceding request defendant, explain effect that Plattner’s de- sum- to defend fendant: be allowed he has choice between marily assigned, lawyer pro se; a and counsel we denied and defense required that, if our de- he has no to hold means to retain a law- yer abeyance appeal judge choice, cision in from the will as- dismissing lawyer him, order writ until after without ex- pense obligation him; remand reconstruction of the for a rec- ord,10 delay with all the attendant time reasonable within which expense. much, choice; It is too make the it is advisable require Reporter lawyer, special that the Court make because training record of is said on the sub- skill and whatever in the law and that ject judge representation, if the sub- even believes it best inter- ject hearings. lawyer, is discussed at a series of est of the defendant to have a may, so, but that he if he elects do Moreover, by-products one lawyer waive his to a developments the recent law rela- his defense himself. If the assignment tive to in all of counsel is a result waiver to counsel but a few cases de- election to defend fendants, has been an awareness presiding judge should conduct some sort prison population very and a considerable inquiry bearing upon the defendant’s persons who in the course number capacity intelligent to malee an choice. prison population, of time add to the words, In other be a record possibility manipulating basic sufficient to establish to our satisfaction produce in rule a fashion such as to the defendant “knows what is he subject, record of confusion on the and doing eyes and his is choice made with give opportunity the accused the open.” claim a in of convic- reversal the event say This is not ground we will not in tion on the that his under past the future as in the the the examine Fifth and Sixth had Amendments type they records in infringed. this as ingenuity case come these together piece us individuals, especially recidivists, the circum- the be- case, stances of high intelligence. each and the tokens if statements misdirected by the Court and the defendant provide This ground each case would seem to a back- proper against them to see there is a whether which some fundamental showing, whole, principles record taken be sketched. the defendant his made waiver of counsel light or his election to pro defend form criminal cases pro conduct his se with knowl- single, inseparable rights, bundle of two edge doing of what he was and with his fases the same coin. find the Thus we eyes open. In such eases statements choice between the two dis- sometimes by defendants, after made the decision cussed terms waiver assign assign counsel or not to counsel, of an sometimes terms made, has been constitute admissions to lawyer election to have a toor given be due consideration the issue light problem se. Viewed this or whether not the defendant knew simplicity itself. doing. what he was procedure Our outline Accordingly, merely in all cases of this to be followed a re- type, existing how the or matter other statement decisional law may phrase prayer subject, for ac on use made by Court, guidance judges, tion it is incumbent of the trial than rather procedure Cir., 1963, 10. This 28 v. authorized Brown United 9 314 Taylor, v. § U.S.C. 2106. See also Macomber F.2d United States v. 4 Gladden, Cir., Cir., 1962, 9 F.2d 303 F.2d 165. rigidly purpose. hand, an ad- absolute formula to On it is abun- dantly Plattner, quite to. clear that hered evident- intelligent ly articulate, both do not reach where a de the case probed deeper have had he been fendant the midst of a criminal trial opportunity to conduct the cross-ex- lawyer to dismiss seeks amination himself. At least he had inti- balance the trial knowledge facts, mate as all the rulings his own defense se. Prior conversations he relied were involving this Court in several cases prosecutor with the problem not, squarely do we spent others. He claimed principles touch the to which we adhere greater day conferring part aof in the case now before us. United States prosecutor subject plea on the Mitchell, Cir., 1943, F.2d guilty seeking prosecutor to ob- denied, 1944, 794, cert. S.Ct. says they tain. He had luncheon to- v. Gut United States gether telephone and various conversa- terman, Cir., 147 F.2d was, tions were had. The result accord- Cantor, A.L.R. ing prevailed upon that he Cir., F.2d United States join one of co-defendants to him in Brands, Inc., Cir., Private pleading guilty. Before Plattner denied, 1958, F.2d cert. this co-defendant were sentenced the In L.Ed.2d 532. trial the other co-defendants was com- cases, earliest these menced and Plattner was called as Gov- Mitchell, there was a demand Mitchell testimony ernment witness. His per the outset of that he considerably differed what although to defend mitted day said on he was sentenced. point majority principal discussed in the against event, the other de- opinion had to do with dismissal of vigorous A fendants was dismissed. anything mid-trial. If cross-examination made Mitchell above cited other cases alleged promise plausible seem more holding deemed in conflict with our than it on the record now before us. does disagree us, in the case now before may thought Plattner have full it. help appeal. would chances Ill Perhaps result would been the possibility As there that this same, may but that said in may reviewed, decision for the where we reverse remand completeness, sake think we should for a think new trial. suf- We briefly yet discuss not circumstances showing prejudice. ficient question referred that bear Judge already As Abruzzo has found whether of Plattner’s the denial unworthy belief, proceed- Plattner request to be ings on the remand should be conducted hearing prejudiced his at the judge. some other July ruling thinkWe Reversed remanded. prejudicial. no criticism of fact MARSHALL, (concur- Circuit assigned only counsel asked three rather ring) : questions perfunctory on cross-examina- prosecutor alleged agree tion who was I I II of While Parts promise opinion to have made the and am sure that on remand thought, on. He he relied the admonitions in Part II will care- questions already fully followed, from the asked I am certain of the judge, that an cross-ex- exhaustive III conclusions drawn opinion. Part amination have served useful Notes inal Essential if fairness an ac Advisory Rules, put effectively “is cused cannot Committee his case existing regard law in court. But restatement the Constitution does lawyer upon to the constitutional defendant’s force a a defendant. He counsel,” parallels and it 28 U.S.C. waive his § Constitutional provides “If the defend- assistance of if he knows what counsel, doing appears ant in court without he is and his choice made with eyes open. Zerbst, court shall him of his Johnson advise assign represent 458, 468-69, counsel and 58 S.Ct. 82 L. every stage proceeding again Supreme un- Ed. 1461.” proceed “recognized less he elects without counsel referred to the defendant’s (Emphasis privilege conducting able obtain counsel.” his own defense vitality supplied.) Thus, Johnston, 1948, the continued at the trial” in Price Constitutional conduct one’s own without the interven- L.Ed. 1356. assigned attorney tion of an is reaffirmed II

Case Details

Case Name: United States v. Raphael Plattner

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 31, 1964

Citation: 330 F.2d 271

Docket Number: 166, Docket 28377

Court Abbreviation: 2d Cir.