157 F. Supp. 654 | E.D. Pa. | 1958
The factual background of this case is summarized on the first three pages of
I. Alleged denial to defendant of his right to the effective assistance of counsel of his choice.
The defendant was represented by three lawyers
The first evidence in this court of any connection of Messrs. Dangel and Sherry with this case is the appearance of their signatures, together with that of Mr. Singer, on three pre-trial motions filed August 30, 1957, which was one week after notice that the case was listed for trial was sent to Messrs. Singer and Dangel
(1) Mr. Dangel had been aware of his illness since September 5 or 6 and had been advised, no later than September 27, that an operation would be necessary.
(3) The defendant himself knew of Mr. Dangel’s condition at noon on September 29 (pp. 8-9 of Document No. 55).
(4) Mr. Singer had discussed Mr. Dangel’s condition with him on September 29 (pp. 5-6 of Document No. 55).
With commendable frankness, Mr. Singer admitted that (a) he had been associated with the ease from the beginning, (b) he had done most of the paper work, (c) he had presented approximately half of the argument in support of the Motion for New Trial, and (d) he had been a member of the bar for three years, during which he had handled 100 to 125 criminal cases.
The United States Attorney opposed any continuance with vigor, and these additional facts were clear at that time:
(1) The transactions in question had (occurred over 2% years before and some witnesses at the last trial were already unavailable and the memories of others grew dim.
(2) This was a second trial, of which defendant had had ample notice.
(3) Defendant was delinquent in failing to notify the court and to have his file in court no later than the call of the list on September 30.
(4) Witnesses had been brought a second time from Chicago, Boston and Baltimore for this second trial at considerable expense.
(5) Mr. Singer was a competent attorney of defendant’s choice and, particularly in view of the fact that defendant had had several attorneys, he should not be permitted to notify the court, after the call of the list, that one particular attorney was his chief trial attorney and was ill, when this information could have been furnished at the time the list was called on September 30.
The trial judge denied the motion for continuance and defendant claims a denial of his constitutional rights.
The Sixth Amendment to the United States Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.”
The Supreme Court of the United States has made clear that this is a privilege which may be waived by the defendant, provided that there is an intelligent and competent waiver. See Johnson v. Zerbst, 1938, 304 U.S. 458, 464-465, 467-468, 58 S.Ct. 1019, 82 L.Ed.
Furthermore, Mr. Singer did an able job for the defendant at this trial and, on review of the trial judge’s refusal to grant a continuance, the court is entitled to consider, among other things, the fact that defendant has not been able to show any prejudice resulting from the absence of the lawyer he wished to act as his chief trial counsel.
The cases relied on by defendant are inapplicable in the light of the facts in this case, particularly in view of the facts that (a) the defendant, who is. not inexperienced in criminal matters,
II. Alleged restriction of the right of cross-examination.
Defendant contends in his briefs that on November 4, 1957 (N.T. 456-470), the trial judge limited his right of cross-examination of the Government witness Meierdiercks.
The decided cases make clear that a defendant has no right prior to the trial to statements of witnesses taken by the F. B. I. or to a transcript of testimony given before the Grand Jury.
“The failure of the trial judge to permit counsel for the defendant to inspect at the trial the witness’ grand jury testimony and statement to the F. B. I., as required by the rule announced in the Jencks case, compels us to grant a new trial.” (Emphasis supplied.)
See United States v. Rosenberg, 3 Cir., 1957, 245 F.2d 870, 871. For this reason, defendant’s contention that this court had the duty of submitting Meierdiercks’ F. B. I. statements and the Grand Jury transcript prior to the trial is rejected.
Meierdiercks was the first witness called by the Government after 4 p. m. on October 1 (N.T. 9). As soon as court adjourned that day (5 p. m.) and prior to the conclusion of the direct examination of this witness, defendant was given C-l and C-2, being the Grand Jury minutes and a 9%-page handwritten statement signed by the witness, which documents were the subject of the appellate court’s opinion in United States v. Rosenberg, supra (N.T. 34, 39-40).
At the conclusion of the direct testimony of this witness at about 11 a. m. on Wednesday, October 2, defense counsel applied for adjournment of the case until the following morning, even though he had had the previous evening to examine these statements and the testimony oí this witness at the previous trial (N.T. 73-8). The court adjourned until 2:15 p. m. on October 2 as a result of this request.
The statements of Miss Vossler were given to defense counsel so that they could be examined during a 40-minute recess (N.T. 276-281) and also during the luncheon recess (N.T. 329).
After reviewing the record, the trial judge finds that his actions during the trial were in accordance with the foregoing authorities.
IV. Alleged disqualification of thfe trial judge for bias or prejudice.
Defendant’s attorneys were notified by letter of August 23 that this
Furthermore, none of the alleged reasons for disqualification stated in defendant’s briefs constitute “personal bias or prejudice.”
Order
And Now, January 3, 1958, It Is Ordered that defendant’s Motion for New Trial and for the Entry of Judgment of Acquittal and defendant’s- motion for judgment of acquittal made during the trial, held October 1-7, 1957, are Denied.
Annex A.
Alexander Osinoff, Esq. appeared for the defendant at the time of his arraignment on November 28, 1955.
On May 14, 1956, Stanley B. Singer, Esq. formally filed his written appearance for the defendant and the following documents in the Clerk’s file, following that Entry of Appearance until the first day of the trial commencing October 1, 1957, bear his signature:
Clerk’s Document Date
No. Filed Title of Document
5 5/14/56 Motion for Leave to Take Depositions Under Rule 15, Federal Rules of Criminal Procedure, 18 U.S.C.A.
8 5/24/56 Petition for Disclosure of Matter Occurring Before Grand Jury Under Rule 6(e) of the Federal Rules of Criminal Procedure and/or Discovery and Inspection Under Rule 16 of the Federal Rules of Criminal Procedure
12 6/18/56 Motion for Judgment of Acquittal or Motion for New Trial
24 11/ 5/56 Affidavit
32 12/ 3/56 Motion (signed jointly with Anthony J. Albert, Esq.)
33 12/ 3/56 Notice of Appeal
36 1/21/57 Supplemental Motion (signed jointly with Anthony J. Albert, Esq.)
40 2/14/57 Notice of Appeal
42 3/27/57 Petition to Vacate or Moderate Sentence
45 8/30/57 Motion for the Return of Seized Property and the Suppression of Evidence (signed jointly with Edward M. Dangel and Leo E. Sherry, Esqs.)
46 8/30/57 Motion for Inspection and Examination and Inspection of Statements Made By Certain Government Witnesses to the Federal Bureau of Investigation (signed jointly with Edward M. Dangel, Esq. and Leo E. Sherry, Esq.)
47 8/30/57 Motion for Inspection and Examination of the Testimony of Certain Government Witnesses Before the Grand Jury (signed jointly with Edward M. Dangel, Esq. and Leo E. Sherry, Esq.)
48 8/30/57 Motion for Continuance
(1) 2-page letter of May 28, 1956, containing numerous authorities in support of defendant’s Motion For Leave To Take Depositions Under Rule 15, Federal Rules of Criminal Procedure.
(2) Defendant’s Brief in Support of Motion For Judgment of Acquittal or Motion for New Trial, filed 9/14/56.
Mr. Singer was present, and participated in the questioning, at the deposition taken in the District of Columbia on May 17, 1956,
Anthony J. Albert, Esq., of Santa Fe, New Mexico, entered his appearance for defendant on October 8, 1956 (Document No. 18). Thereafter, Mr. Singer signed the documents filed on behalf, of defendant either alone or jointly with Mr. Albert until August 30, 1957.
On August 30, 1957, the four motions filed contained the signatures of Edward M. Dangel and Leo E. Sherry, as well as that of Mr. Singer, and there is no record of any entry of appearance of either Mr. Dangel or Mr. Sherry ever having been filed in this court.
. The second two sentences of tliat opinion, which is reported at D.C., 146 F. Supp. 555, 556, state:
“The first count charged the defendant with conspiring, in violation of 18 U.S.C.A. § 371, with C. K. Meierdiercks and an unknown individual (hereinafter called Mr. Rice, which name he used in dealing with the victim, Miss Vossler) to transport in interstate commerce securities or money having a total value of $5,-000 or more, knowing the same to have been taken by fraud in violation of 18 U.S.C.A. § 2314. The second count charged the defendant with the substantive offense of transporting, with fraudulent intent, from Philadelphia to Washington, D. C., a fraudulently obtained certified check having a value of $5,760 in violation of 18 U.S.C.A. § 2314.”
. See 146 F.Supp. 562, citing, among other cases, the decision of the United States Court of Appeals for the Fifth Circuit in the above-mentioned Jencks case (226 F.2d 540), which was subsequently reversed by the Supreme Court of the United States.
. The letter of December 9 to counsel (attached as Annex D) explains the reason for the date of filing this Memorandum Opinion and Order. No action could be taken on the subject of this Motion denied by this Order until defendant had filed his Withdrawal of Motion for Leave to Take Depositions Under Rule 15 (Document No. 67 in Clerk’s file), which he had indicated would be filed at the argument on October 30, 1957 (N. T. 34^-38), but which was not filed until 12/5/57.
. These lawyers are Alexander Osinoff, Esq., Stanley B. Singer, Esq., and Anthony Albert, Esq. See Annex A to this Memorandum Opinion for a summary of the activities of these three lawyers on behalf of this defendant.
. Mr. Dangel participated in the oral argument in that court on June 11, but, as stated below, no judge of this court had ever heard of his connection with this matter until October 1, 1957, except for his name on certain papers filed 8/30/57 and thereafter.
. This notice, as is the practice in our court, was set out by the United States Attorney’s office and the fact that a copy was sent to Mr. Dangel was not known to the trial judge until the second day of the trial (October 2), when a copy was produced for addition to the record (N. T. 46).
. See transcript of proceedings at call of this case on September 30, 1957 (Document No. 6S-all document numbers are those placed on the documents in the Clerk’s file). Mr. Singer indicated to the assignment judge on October 1 that “ * * * we did contact him (the trial judge) and made Mm aware of the statements made in court” (N. T. 2 of Document No. 53). Actually, this case had not been mentioned by either counsel to the trial judge at any time on September 30 or on October 1 until after Mr. Singer made this statement. Mr. Singer told the trial judge’s secretary that he wanted to see the trial judge and was informed that the judge was in court hearing another criminal case. Mr. Singer did not approach the trial judge on September 30 either in the courtroom or, after court adjourned, in chambers.
. Subsequent information given to the trial judge indicated this date was October 3 (compare Exhibit C-4 (letter of Dr. Levine) with affidavit of Dr. Levine referred to in footnote 10). Defendant was actually admitted to the hospital on October 7 (see Amendment to Answer filed 11/29/57, Document No. 65).
. See pp. 2 and 3 of transcript of proceedings on 10/1/57 before the judge presiding at the September 30 criminal list (Document No. 53).
. The United States Attorney was asked by the undersigned to call Mr. Dangel’s doctor, in the presence of Mr. Singer, to secure facts needed to make clear a brief letter presented by Mr. Singer (Exhibit C-4). These facts were secured from Dr. Levine by phone during the lunch hour and reported to the trial judge in open court at 2 p. m. on October 1 (pp. 5-6 and 13 ff. of Document No. 55). Affidavits of Mr. Dangel and Dr. Levine, filed on 11/8/57, state that it was understood in the summer of 1957 that Mr. Dangel was to try the case at the second trial, that Mr. Singer did not have the opportunity to examine Mr. Dangel’s file prior to October 1,, 1957, and that Dr. Levine had told Mr, Dangel, on September 29, that he was to be operated on on October 2 (see Document No. 62). However, such affidavits, which are not complete and, hence, misleading (see, for example, Amendment to Answer (Document No. 65) showing Mr. Dangel actually did not enter the hospital until after October 7, which was three days after the jury had reached its verdict), are irrelevant since the facts made available to the trial judge at the time he made his ruling are the relevant facts.
. Pp. 7-8 and 19 of Document No. 55.
. Niglit trains from Boston to Philadelphia are available every Sunday night at about midnight which the defendant could have taken to bring the file and Dr. Levine’s letter to Philadelphia so he would have been here by 10 a. m.
. Pp. 6 and 10-12 of Document No. 55.
. Cf. Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. The trial judge has developed the factual situation before the court on October 1, 1957, when this continuance was first sought, because of his belief that two very important principles are involved:
(a) A defendant should always be permitted to have counsel of his own choice where there is no unreasonable delay in making known to the court both this choice and the fact that the lawyer of his choice cannot be available on the date scheduled for trial.
(b) A trial court must have the power to deny a continuance, particularly at the listing of a case being tried a second time, of which the defendant has had over a month’s notice, where the defendant has notice of the unavailability of his counsel at the time of the call of the list and permits the case to be marked for trial without notifying the court. At the call of such a one-week list, the schedule is set up for trial for the balance of the week and, in addition to the reasons stated above, to permit defendants to secure continuances later in the week on grounds available but not made known at the time of the call would clearly result in waste of court and jury time of a court which has a large backlog of undisposed of cases. Cf. Agronofsky v. Pennsylvania Greyhound Lines, 3 Cir., 1957, 248 F.2d 829.
. The particular significance of this case lies in its reliance on footnote 3 in Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 667, at page 670 certiorari denied 1945, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002, where the court adopted, the principle that “Eor these reasons we think absence of effective representation by counsel must be strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it.” This case apparently adopts the above-mentioned language, used in a habeas corpus case, as applicable in a situation where the question of the effective assistance of counsel is raised on appeal from the denial of a motion for new trial.
. Mr. Singer’s failure to have the material in Mr. Dangel’s filed by September 30 was solely the fault of defendant and his chosen attorney (see, for example, last paragraph of Dangel affidavit, Document No. 62). Such file could clearly have been brought to Philadelphia on the night train on September 29 or on September 30. The court recognizes that the defendant need not show exact prejudice. See United States v. Venuto, 3 Cir., 1950, 182 F.2d 519, 522.
. Among the criminal litigation in which defendant has been involved, there are included the following federal cases which have been reported [see enclosure sent with letter of 1/28/57, attached to this opinion as Annex B, for a more complete statement of the major litigation (in most cases not resulting in convictions, sustained on appeal) in which Joel Rosenberg was named as a defendant]: Rosenberg v. United States, 10 Cir., 1941, 120 F.2d 935; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, certiorari denied 1945, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637; United States v. Rosenberg, D.C.E.D.Pa.1956, 146 F.Supp. 555, reversed 3 Cir., 1957, 245 F.2d 870.
. See page 3 of affidavit of Mr. Dangel (Document No. 62).
. The record also shows that defendant’s chosen local counsel knew of Mr. Dan-gel’s illness and that he might not be able to try the case the day before the call of the list, but did not mention this at the call of the list on September 30. It
. See page 10 of defendant’s Reply Brief, which is the only reference in the briefs to defendant’s vague and expansive claims of such limitations.
. Apparently, meaning “sentences” as no indictments had been produced at that time. Because of the improper use of the term “indictments” by counsel for defendant, the trial judge made the same error during this discussion. See Dine 11 of N. T. 461.
N. T. 459, 465. An examination of the record will show that it was most difficult for the trial judge to determine what defense counsel wished to prove at N. T. 450-470, but the trial judge made clear that Meierdiercks could be recalled as a defense witness (N. T. 463 and 468-70).
. From 2:15 Wednesday until the jury was excused that day at 5:29 (N. T. 202), and from 10 to 11-on Thursday morning (N. T. 209-243).
. As pointed out above, the defendant had ample opportunity to get these documents (D-18 -to D-20) from Mr. -Dan-gel’s file to Mr. Singer on Monday morning, September 30, a day-and-a-half before the trial began.
. Also, it should be noted that the trial judge ruled that Meierdiercks could be called as a defense witness to show the
. Paragraphs 2-6 of Motion for Judgment of Acquittal or Motion for New Trial.
. See authorities cited in comment on order of May 31, 1956 (Document No. 9).
. The Grand Jury transcript (C-l) was only 22 pages. This application was made on Wednesday of the last week of this jury’s term.
. In giving counsel for the defendant the Grand Jury transcript and in giving him C-l and C-2 prior to the close of the direct examination, the trial judge acted more favorably to the defendant than 18 U.S.C.A. § 3500 specifies.
. Later that day (October 1), counsel for defendant raised this point before the trial judge (N. T. 35-9) at the conclusion of the first day of the trial. At that time, counsel stated that the trial judge had used language at the time defendant was sentenced in February 1957 indicating defendant employed legal tricks (N. T. 35-6). The trial judge has had the notes taken by the reporter at this sentencing transcribed (Document No. 69) and the transcript shows the following comment by the trial judge (N. T. 12) :
“* * * jn 145 ;g.2d Judge Hand said that he had no doubt that this man was guilty of the New Mexico offense, but Mr. Alberts was smart enough to get him off; that he had no doubt that he was guilty of the fraud. And Judge Hand is a very learned judge.”
The opinion of Judge Hand in United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, at page 95, certiorari denied 1945, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637, reads as follows:
“He complains of the admission against him of the opinion of the Tenth Circuit in Rosenberg v. United States, 120 F.2d 935, in which it reversed a conviction against him in another case, this reversal resulting in the dismissal of the indictment. He could not have more deliberately invited the admission of this opinion than by volunteering the statement which he made upon the stand that, although he had been convicted, the judgment was reversed and the indictment dismissed. His purpose was obviously to give the jury to understand that he was cleared of any part in the fraud that was there involved, and that was a totally false purpose. He was not cleared at all; the indictment was dismissed only because the prosecution failed to prove the mailing of the ‘count letter,’ as the prosecution has failed here.”
. The trial judge has carefully considered all the references to the record at pages 8 and 9 of defendant’s Reply Brief. At N. T. 592-3, the trial judge made clear on the record that he had never, directly or indirectly, indicated to the assignment judge a desire to try this, case. The trial judge has the duty to assist in the expeditious conduct of the trial and his questions at N. T. 11, 26, 65-6, and 96-8 were within the scope-of this function. In referring to the-“past history of the case” at N. T. 463, the trial judge was referring to the divergent views which have been taken by different counsel at different times in this case. See opinion of November 23, 1956 (at pages 557-559 of 146 F.Supp.)..
. See, particularly, language of Judge-Madden and quotation of Mr. Justice Frankfurter and Judge Frank at pages 89-90 of 120 F.Supp.
. It is understood that Mr. Singer’s name appears, along with that of other counsel for the defendant, on all the briefs filed in the United States Court of Appeals for the Third Circuit in support of the appeal argued in June 1957.
. See Document No. 6 in Clerk’s file.
. See last sentence of footnote 2 to Order of 5/31/56.
. See Mr. Singer’s affidavit of 11/5/56 (Document No. 24).
. On November 22, 1957, there was filed in this court a withdrawal of appearances of Messrs. Dangel and Sherry on stationery headed “Dangel & Sherry, Eleven Pemberton Square, Boston” (Document No. 6). A copy of this letter was sent directly to the undersigned’s chambers. This copy, together with a copy of the undersigned’s letter sent to both counsel, are attached to this Memorandum Opinion as Annex O. No explanation has ever been offered by defendant of this withdrawal of Mr.. Dangel’s appearance, which was, in fact, never entered.