270 F.2d 252 (9th Cir. 1959), 16370, Torres v. United States

Docket Nº:16370.
Citation:270 F.2d 252
Party Name:Pedro Amado TORRES, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 03, 1959
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 252

270 F.2d 252 (9th Cir. 1959)

Pedro Amado TORRES, Appellant,


UNITED STATES of America, Appellee.

No. 16370.

United States Court of Appeals, Ninth Circuit.

September 3, 1959

Rehearing Denied Oct. 20, 1959.

Page 253

Daniel G. Marshall, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U.S. Atty., Robert D. Hornbaker, Robert John Jensen, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before MARTIN, [*] CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

Appellant was indicted on a two count indictment charging him with theft of a movie camera and accessories moving in interstate commerce, and with possession of the same property knowing it to have been stolen from interstate commerce. Both counts were based on 18 U.S.C. § 659.

After trial on both counts, the jury found Torres not guilty of the theft, but guilty of possession. Appellant filed a motion for judgment of acquittal, and, alternately, a motion for a new trial. Each was denied. Timely appeal was taken from the judgment and commitment which sentenced him to eighteen months in prison. An order allowing appellant to proceed in forma pauperis was entered subsequently by the lower court. This Court has jurisdiction. 28 U.S.C. § 1291 and Fed.R.Crim.P. 37(a), 18 U.S.C.

Appellant raises four points on this appeal: (1) That he was denied effective assistance of counsel in violation of the sixth amendment because of the short period of time given his court-appointed counsel to prepare the case for trial; (2) that the acquittal on the theft charge operated as an acquittal of defendant on the charge of knowing possession of the same property; (3) that appellee United States failed to prove beyond a reasonable doubt that the property in question was of a value in excess of $100.00 (which meant that a longer sentence could be, and was, given to appellant than if the value were under $100.00); and (4) that the United States failed to prove beyond a reasonable doubt that appellant knowingly possessed stolen property.


In considering the claim that appellant was denied effective assistance of counsel, it becomes necessary to examine the chronology of events before and at the trial. Appellant's claim is simply that his counsel did not have enough time to prepare the case adequately, or for that matter, to acquaint himself with its facts. The indictment was filed on June 11, 1958, and appellant arraigned on June 30, 1958, at which time he asked for time to obtain counsel. This was granted him. When the case came up for the setting of a trial date, on July 7, 1958, appellant appeared without an attorney. The setting was thereupon continued until July 21, 1958. On July 21, 1958, Torres appeared with Attorney S, and the case was set for trial on August, 12, 1958.

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On that latter date, Attorney S appeared and indicated to the court that defendant had not been in contact with him, had not cooperated with him and, apparently, had not paid him. 1 On this basis, Attorney S asked to be relieved of representation by the court. This was granted. The court then appointed Daniel G. Marshall (who is also counsel on the brief before us) and set the trial for August 14, 1958, without any objection. On August 14, 1958, counsel for appellant moved for a continuance on the ground that he had not had adequate time to consult with his client or to prepare the case for trial. The trial judge refused, and ordered the trial to proceed with the selection of the jury only, on that day, and then continued the case for five days to August 19, 1958, to enable counsel to prepare for trial and consult with his client. When the actual trial commenced, counsel for appellant again moved for a continuance on the same ground. This was denied, and the trial proceeded. The next day, when the trial was scheduled to continue, counsel for appellant again moved for a continuance of a day in order to locate witnesses, and the court granted the motion. On August 21, 1958, the trial was resumed, defendant put on no witnesses at all, and did not take the stand himself. That same day the jury reached its verdict. A motion for a new trial was made, and denied.

After reciting some of the foregoing facts, counsel for appellant says: 'There was thus very plainly no fair opportunity to prepare this case for trial by adequate consultation with the client, decent research of the law involved, investigation of the facts and careful preparation of instructions.' With this conclusion we cannot agree.

Taking the position that there would have been no great imposition on the government to have continued the case for the requested two weeks, appellant cites two cases on ineffective assistance of counsel. However, we note that the more recent of them, Melanson v. O'Brien, 1 Cir., 1951, 191 F.2d 963, 966, was an extreme case where the defendant had no counsel whatsoever at his trial because the district attorney told him it was too late to obtain any, and the defendant, who had only a sixth grade education, was not aware that he had a right to counsel, and had attempted inadequately and unsuccessfully to represent himself. In the other case, Soulia v. O'Brien, D.C.D.Mass.1950, 94 F.Supp. 764, 765, it was charged that counsel who was appointed to represent the defendant was so ineffective in his conduct of the trial as to be tantamount to no counsel at all. It is readily apparent that these cases have no applicability here.

Further, the situation which faces most trial courts, including the trial judge here, must be considered. To a certain extent, the lack of time for preparation on the part of appellant's counsel was due to the actions of appellant himself, as the facts outlined above disclose. The trial court explained that it had the problem of other cases calendared for trial at the same time or about the same time and had difficulty in fitting

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them all in with the least inconvenience to all concerned. Finally, there is the important fact that from an examination of the transcript of the trial as a whole, it is apparent that counsel for appellant (well known nationally to court and counsel as an able and effective lawyer) conducted himself with his usual considerable skill and energy. His actions showed that he had spent a considerable amount of time on the law of the case, for he had many comments and objections to make, both concerning the introduction of evidence and the instructions given the jury. These he vigorously pursued before the trial judge. We are of the opinion that all things considered, it cannot fairly nor honestly be said that appellant was denied effective assistance of counsel simply because the trial judge refused to grant further continuances in this case, after granting two such continuances before the trial started and two thereafter. Such matters are within the sound discretion of the trial judge and will not be disturbed unless a clear abuse of discretion exists. Sherman v. United States, 9 Cir., 1957, 241 F.2d 329, 338; Williams v. United States, 9 Cir., 1953, 203 F.2d 85. We believe the question here considered was answered by the Supreme Court in Avery v. State of Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377, the law of which, applied to this case, would not require us to hold the facts here constituted a denial of effective assistance of counsel. See also, Couchois v. United States, 5 Cir., 1944, 142 F.2d 1.


On the second point raised, it is contended that the acquittal on the theft charge operated as an acquittal on the charge of knowing possession of the same property charged to have been stolen by the same person. This argument apparently is based primarily on the statements of a district court judge uttered at the hearing on the motion for a forma pauperis appeal, which remarks were to the effect that the judge felt there was a 'serious question' on this point. Appellant also cites Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, and Heflin v. United States, 1959, 358 U.S. 415, 419, 79 S.Ct. 451, 3 L.Ed.2d 407, both of which dealt with bank robbery statutes and both of which held that certain crimes merged into others under that law. Neither case is apposite here for several reasons. The first is that the Supreme Court itself said in the Prince case that they were dealing with a 'unique statute of limited purpose and an inconclusive legislative history. It can and should be differentiated from similar and other problems in this general field raised under other statutes.' 352 U.S. at page 325, 77 S.Ct. at page 405. Furthermore, numerous other cases have passed on this precise point, dealing directly with the statute in question and not merely an analogous one. The question apparently first arose in Carpenter v. Hudspeth, 10 Cir., 1940, 112 F.2d 126, 127, certiorari denied, 311 U.S. 682, 61 S.Ct. 62, 85 L.Ed. 440. There it was held that the offense of stealing goods from interstate commerce was a separate and distinct offense from possession of the goods knowing that they had been stolen. As that case said:

'And proof of having possession of the stolen merchandise at a subsequent time and different place from its theft, with knowledge that it had been stolen, was sufficient to support conviction (on the possession count). One defendant receiving it from another could have been convicted on such proof even though he did not take part in breaking the seal, entering the car, or committing the larceny. It is manifest that the several counts each charged a separate and distinct crime, entirely apart from the others.'

112 F.2d at pages 127-128. See also Carroll v. United States, 6 Cir., 1949, 174 F.2d 412; Carroll v. Sanford, 5 Cir., 1948, 167 F.2d 878; United States v. Dunbar, 7 Cir., 1945, 149 F.2d 151, certiorari denied, 325 U.S. 889, 65 S.Ct. 1577, 89...

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