(dissenting).
I dissent. In my opinion the district court should have ordered a new trial of the federal narcotics case bécause petitioner was there denied right of counsel *40of his own choosing in violation of the Sixth Amendment.
Petitioner was ordered to employ counsel in two days. He did so. His counsel was engaged in a murder case in another county the day after petitioner employed him when the case was called for trial. The court denied a continuance, appointed petitioner’s counsel’s assistant, who had but 3% months experience, to represent petitioner, and forced him to trial with but four'hours preparation. Petitioner was convicted, and this conviction was the basis upon which he was subsequently sentenced to life imprisonment in a state court narcotics trial as a second offender.
i This is not a Powell, nor a Chandler, nor a Palko case. But other federal court decisions, involving state as well as federal trials, persuade me that petitioner’s Sixth Amendment right was violated at his trial for the federal offense.
The denial of a continuance for his employed counsel was unfair, Gomez v. Heard, 218 F.Supp. 228 (S.D.Texas, 1962), aff’d per curiam, 321 F.2d 88 (5th Cir. 1963), and this unfairness was aggravated by the court’s forcing petitioner to trial without his employed counsel, instead of giving him further reasonable time to employ a substitute. United States v. Johnston, 318 F.2d 288 (6th Cir. 1963). This procedure was “fundamental unfairness.” Argo v. Wiman, 209 F.Supp. 299 (M.D.Ala., 1962), affirmed, 308 F.2d 674 (5th Cir.) cert. denied, 371 U.S. 933, 83 S.Ct. 306, 9 L.Ed.2d 270. It is of no relevance that substitute counsel has not been shown to have been incompetent or inept. United States v. Johnston, 318 F.2d 288, 291 (6th Cir. 1963). This court in United States v. Koplin, 227 F.2d 80, 85 (7th Cir. 1955), where the facts differ from those before us, stated, among other rules of law, the following: “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”
The district court when petitioner was convicted was not expected to foresee the subsequent state violation and conviction. But that unforeseeable event discloses the magnitude of the Sixth Amendment violation and underscores the care required of federal courts to protect constitutional rights, in every case.
The decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the more recent Second Circuit opinion in United States ex rel. Durocher v. La Vallee, 330 F.2d 303 (2d Cir. March 26, 1964), are, of course, not applicable to the precise point in the dissent. A reading of them, however, indicates the climate in which complaints about violations of Sixth Amendment rights are to be tested.