Shores v. United States

MATHEWS, Circuit Judge

(concurring).

Appellant filed in the court below seven assignments of error, of which he has in this court abandoned all but two. He says in his brief: “It is not proposed in this brief to urge all of the errors assigned, but only the assignments designated IV and VI in the assignment of errors.”

Assignment IV is “That the court erred in overruling the defendant’s objections to the introduction of letters and pamphlets, on the ground that such letters, pamphlets and communications were not shown to have been mailed by the defendant or under his authority.” This assignment does not quote the full substance of the evidence objected to, as required by our Rule 11, and, for that reason, should be disregarded. Levine v. United States (C.C.A.9) 79 F.(2d) 364, 367.

Assignment VI is “That the court erred in denying defendant’s motion for a postponement of the trial of said matter • in the absence of defendant’s counsel.” The ruling complained of was not excepted to. This assignment, therefore, should be disregarded. Levine v. United States, 79 F.(2d) 364, 369.

There is nothing else in the case. The much-discussed action of the trial court in *948appointing counsel for appellant was not excepted to, was not assigned as, error, and is not before us for review.

The judgment should be affirmed.

Memorandum on facts by DENMAN, Circuit Judge.

It is but fair to the penniless appellant that there should not be an omission of pertinent facts from the summary of the opinions here. The exercise of his right to seek certiorari is necessarily dependent on such a clear and full statement of the facts.

The record shows in addition to the .short extract in footnote 2 of the majority opinion, the following:

(a) Appellant’s plea at arraignment in propria persona, while Attorney Taylor there appeared for another defendant.

(b) The absence of any counsel of record on the morning of the trial twenty-three'months later.

(c) That the jury was impaneled when appellant was without counsel.

“At a stated term, to-wit: * * * on Monday, the 7th day of March, 1932.

“This cause coming on for arraignment and plea of defendant Howard Shores and f,or entry of plea of defendant Gus Shores; Gwyn Redwine, Assistant United States Attorney, appearing for the Government, defendant Howard Shores being present in propria persona and defendant Gus Shores being present with H. M. Daugherty, Esq., "who has been appointed as counsel for said defendant Gus Shores, and for whom D. G. Taylor, Esq., who is present, has been substituted; defendant Howard Shores waives reading of the Indictment, states his true name to be as given therein; and, upon being required to plead, the defendant enters his plea of not guilty.” (Page B. Addition to record ordered by way of diminution.)

The following from pages 91 and 92 of the record, preceding the introduction of the affidavits in footnote 2'of the majority opinion, shows (b) appellant still without counsel at that time, and (c) that the jury was impaneled when the appellant was without counsel.

“Be it Remembered that this cause came on regularly for trial on the 6th day of February, 1934, before the Honorable Paul J. McCormick, Judge of said Court, and a jury therein being duly empaneled and sworn to try said cause; Jack Powell, Esq., assistant to the United States Attorney, appearing as attorney for the plaintiff; D. G. Taylor, Esq., appearing as the attorney for defendant Gus Shores; J. George Ohannesian and Robert H. Wallis, Esqs., appearing as attorneys for defendants George Lourie Keller and John L. Keller.

“Wherefore: The trial of said cause proceeded and the following proceedings were had, and testimony, oral and documentary was offered by the respective parties and admitted by the Court, as follows:

“The Clerk.: No.. 10,639-M, Criminal; United States versus Howard Shores, George Lourie Keller, John L. Keller and Gus Shores, for trial.
“By Mr. Powell: Ready your Honor.
“By Mr. Taylor: Ready for Gus Shores, your Honor.
“By Mr. Powell: Mr. Ohannesián is out in the hall, your Honor, representing the Kellers.
“By the Court: What about the defendant Howard Shores?
“By Defendant, Howard Shores: My counsel had a breakdown and was sent away. I have an affidavit here.”

The record showing Mr. Taylor was not appellant’s attorney and appellant’s statement that Mr. Parsons is “my counsel,” it is submitted, should have been considered in Judge Wilbur’s opinion, not as corroboration of the clerk’s advice to the court that “The record only shows Mr. Taylor’s appearance for Gus Shores,” but as positive and conclusive evidence of the ultimate fact as to its condition.

These record facts, as well as the clerk’s unsworn statement, should be considered in connection with Attorney Taylor’s equally unsworn statement, first, “there was a substitution as to Howard Shores” and his later statement, not of the fact but of his impression, that "J think” I am “still on the record.” Since Taylor was not on the record and he said there "was" a substitution, and since Mr. Parsons was “my [appellant’s] counsel," Taylor had no authority to give testimony against him even if a former client. It is a denial of the right of sworn cross-examination. All attorneys are officers of the court, but this gives them no right to speak for parties for whom they are not counsel, or to testify about them if not sworn as witnesses.

*949The record further shows that twenty-three crimes were charged in an indictment printed in fifty-seven pages of the record, describing intricate and wide spread transactions over a year’s time and in cities five hundred miles apart. If afterwisdom be relevant to the judge’s prior action in imposing counsel, the record shows the trial occupied ten days; thirty-six witnesses were examined; and one hundred sixty-seven exhibits offered or introduced. Obviously a case where a layman, however intelligent, must have counsel, and one, even if of considerable experience, who is allowed the requisite time for investigation and preparation.

The arbitrary character of the court’s denial of appellant’s right to proper counsel is apparent from the following:

1. Appellant had no counsel of record.

2. .No prior continuance was requested or obtained by appellant.

3. On the filing of his affidavits and motion, appellant stated “my counsel [Parsons] had a breakdown,” etc.

4. Affidavits of appellant and Attorney Parsons’ physician show (a) Parsons appellant’s counsel for twenty-three months, from arraignment to two days (one Sunday) before trial, when illness prevented his appearance; and (b) appellant’s diligence in efforts to obtain counsel in the two intervening days and his failure to obtain one.

5. No counter affidavits. No examination of the physician on his affidavit. No examination of appellant.

6. No opposition to continuance by prosecution.

Then immediately follows:

“The Court: Whom are you representing, Mr. Ohannesian?
“Mr. Ohannesian: Mr. Keller; the two brothers.
“The Court: And Gus Shores is represented by whom?
“Mr. Taylor: I represent him. And there was a substitution as to Howard Shores.
“The Court: There will be a substitution as to Howard Shores?
“Mr. Taylor: Yes, your Honor.
“The Court: You will be substituted in or out?
“Mr. Taylor: I will be substituted out.
“The Court: I am not going to let you be substituted out. There will be no continuance of this case. * * *
“The Court: Mr. Taylor is still on the record ?
“Mr. Taylor: I think so.
“The Court: What does the record show, Mr. Hansen?
“The Clerk: The record only shows Mr. Taylor’s appearance for Gus Shores.
“The Court: Well, this man appears to have a nervous breakdown. We didn’t know anything about this before gentlemen.
“Mr. Taylor: Never heard of it before now, your Honor.
“Defendant Howard Shores: Just happened Saturday.
“The Court: Proceed. You will act as counsel, Mr. Taylor. Call the jury.”

7. No examination of the record itself.

8. No examination of appellant on the following obvious likelihoods:

a. Was Taylor unprepared to defend a “principal defendant” in the twenty-three crimes charged against him, stated in the fifty-seven pages of the indictment, and covering over a year’s time and intricate and extensive transactions in various cities five hundred miles apart?

b. Was the defense of Gus Shores in any way inconsistent with that of appellant, when apparent that such defense might properly be, “True, Howard Shores may have done all these wicked things, but my client, Gus Shores, had no criminal participancy in them”? From the record of the trial, it is inferable that this is just what Taylor did.

c. Was there lack of personal harmony between Taylor’s two clients — charged co-conspirators- — making a co-operative defense impossible?

d. Assuming Taylor’s unsworn statement admissible, was his substitution because appellant realized him not competent to handle the complicated case, or because their personal relations made his representation improper?

If any of these likely conditions existed, it is obvious that some continuance was necessary. Yet the hearing on the issue of appellant’s constitutional right to counsel begins with the court’s statement “There will be no continuance in this case.”

*950When a federal judge, after impaneling a jury to try a man without counsel, makes such an arbitrary ruling, it is of no significance that an accused man makes no protest. This is true whether the arraignment was but a week before trial or the accused is under the demoralizing strain of indictment for the twenty-three months of delay in bringing him to trial.

Judge WILBUR’S opinion, in effect, disagrees with Judge MATHEWS that the absence of an exception, in the unusual circumstances of this case, deprives the accused man of the right to have the constitutional question or the claim of abuse of discretion considered by this court.