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,


Walter Rex JOHNSTON, III, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


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...

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