318 F.2d 288 (6th Cir. 1963), 15093, United States v. Johnston

Docket Nº:15093, 15094.
Citation:318 F.2d 288
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Walter Rex JOHNSTON, III, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry BALK, Defendant-Appellant.
Case Date:June 08, 1963
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 288

318 F.2d 288 (6th Cir. 1963)

UNITED STATES of America, Plaintiff-Appellee,

v.

Walter Rex JOHNSTON, III, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Harry BALK, Defendant-Appellant.

Nos. 15093, 15094.

United States Court of Appeals, Sixth Circuit.

June 8, 1963

Donald Welday, Jr., Detroit, Mich., for Walter Rex Johnston, III.

John B. Kiefer, Detroit, Mich., Hand, Kiefer, Allen & Ryan, Detroit, Mich., of counsel, for Harry Balk.

William H. Merrill, Chief Asst. U.S. Atty., Detroit, Mich., Lawrence Gubow, U.S. Atty., Detroit, Mich., on brief, for United States.

Page 289

Before WEICK and O'SULLIVAN, Circuit Judges, and DARR, Senior District judge.

DARR, Senior District Judge.

On May 5, 1959, the grand jury for the Eastern District of Michigan, Southern Division, returned two separate indictments which concerned the appellants, Harry Balk and Walter Rex Johnston, III. The first count of one indictment charged Johnston and others with a violation of the mail fraud statute 1 and in the second count charged a conspiracy to violate the mail fraud statute. 2 The first count of the other indictment charged appellants, Balk and Johnston, along with others, with violating the wire fraud statute. 3 A second count charged the same persons with a conspiracy to violate the same statute. 4

A motion for joining the cases for trial was granted.

The consolidated cases came on for trial on September 26, 1961. Each appellant was convicted on all counts in which charged and each received a sentence of two years on each of the counts to run concurrently.

Before reaching the errors claimed to have occurred during the trial, there arises a question of some concern. This question involves only appellant Balk. This appellant poses the question of whether the trial court erred in requiring him to proceed with an attorney not of his own choice in spite of appellant's objections.

A few days after the indictments were returned appellant Balk retained as counsel Mr. Joseph W. Louisell, who was entered attorney of record on May 27, 1959. This action on the part of Mr. Louisell was done by Mr. Ivan E. Barris, his associate. More than two years thereafter, during which time nothing had been done in the case, a motion for a joinder of the cases for trial was filed and a hearing had on August 21, 1961. The motion was granted. Mr. Barris appeared for this appellant on that occasion. Then, on September 12, 1961, a pre-trial was had, Mr. Barris appearing for appellant Balk. The trial date was set for September 26, 1961, but the date the assignment was made does not appear. On the trial date, which was in the afternoon of September 26, 1961, Mr. Louisell and Mr. Barris appeared in court, appellant Balk being present, and Mr. Louisell made a statement to the Court revealing these facts and circumstances:

Mr. Louisell informed the District Judge that he had an imperative commitment to prepare an important case in the Michigan Supreme Court which was scheduled for argument on the first of October, 1961. For this reason he asked to be excused. He informed the court that his associate, Mr. Barris, had collaborated with him in every case he had handled during the past eight years; that Mr. Barris had appeared for appellant Balk at the hearing of the motion for consolidation of the cases and at the pretrial conference; that Mr. Balk knew about these appearances by Mr. Barris and had been in communication with him about the case since the middle of August on up 'until the other day.' Mr. Louisell further said that Mr. Barris was prepared to proceed with the trial and 'thoroughly conversant' with the indictment.

Mr. Louisell further informed the Court that some several weeks prior to that date he had 'bumped into Mr. Balk' and, according to his recollection, advised Mr. Balk that he could not be present at the trial if it was heard on September 26, the date the case had been set for trial. (This statement by Mr. Louisell, later denied by Mr. Balk, appears to have been casual and somewhat indefinite. A defendant in a criminal case cannot be denied his constitutional right on hazy testimony.)

Mr. Louisell informed the Court that he had talked with Mr. Balk on the

Page 290

previous Friday, September 22, and Mr. Louisell had informed Mr. Balk that he could not appear for him at the trial and that Mr. Barris would try the case for him. He informed Mr. Balk that Mr. Barris was in position to and could give him the 'very best of representation in the matter.' At that time Mr. Balk made no objection to Mr. Barris trying the case. Mr. Balk asked to come to Mr. Louisell's office on that Friday afternoon but Mr. Louisell said he preferred Monday morning.

In the early part of Monday morning Mr. Balk came to Mr. Louisell's office and advised him, for the first time, that he was not content with having Mr. Barris represent him. Mr. Balk also said that he had confidence in Mr. Louisell; had retained him and expected him to represent him. After a review of the situation by Mr. Louisell, Mr. Balk said he 'had in mind another counsel.' Mr. Louisell informed Mr. Balk that if it were his choice to have other counsel he would cooperate in every way in making available to such other counsel the benefit of both Mr. Barris' and his research in preparation of the case for trial. Mr. Louisell said that he encouraged Mr. Balk to keep Mr. Barris as the was the best prepared to try the case but did suggest to Mr. Balk the name of another attorney (Mr. Fred Walker), who had a 'great wealth of experience here in Federal Court.' Mr. Balk suggested that Mr. Louisell get in touch with this attorney and this Mr. Louisell did and received from him, Mr. Walker, a commitment to appear and represent Mr. Balk. Mr. Louisell further stated that he told Mr. Balk that Mr. Walker would represent him, Mr. Balk said he 'did not want that other counsel' and insisted on having Mr. Louisell present. The District Judge then observed that he knew Mr. Barris and had...

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