Eubanks v. United States

Decision Date04 November 1964
Docket NumberNo. 19140.,19140.
Citation336 F.2d 269
PartiesJames Horace EUBANKS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Michael Lacagnina, Boyle, Bilby, Thompson & Shoenhair, Tucson, Ariz., for appellant.

C. A. Muecke, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before JERTBERG and DUNIWAY, Circuit Judges, and JAMESON, District Judge.

DUNIWAY, Circuit Judge:

Eubanks was convicted in the District Court for the District of Arizona of a violation of 18 U.S.C. § 2312, familiarly known as the Dyer Act, by transporting a motor vehicle in interstate commerce, knowing the vehicle to have been stolen.

Eubanks was indicted on June 4, 1963. He was then in the custody of Texas authorities, under sentence for an offense against that jurisdiction. On October 7, 1963, he was brought to the District of Arizona and arraigned on the present charge, to which he pleaded not guilty. Counsel was appointed, and trial set for October 18. On October 18, trial was held before a jury which found him guilty. Judgment of conviction was entered on October 28. On this appeal Eubanks, through his court-appointed counsel (not the same one who represented him below) contends that the district court deprived him of his right to a fair trial under Amendment VI to the United States Constitution by permitting him to be tried eleven days after arraignment and appointment of counsel, and that he was further deprived of his right to a fair trial by reason of the ineffective assistance of counsel appointed by the court.

He asks us to hold that the trial court erred as a matter of law in setting trial only eleven days after arraignment and then permitting it to proceed on that date. We cannot agree. Courts do not deny due process merely because they move expeditiously. United States ex rel. Thompson v. Nierstheimer, 7 Cir., 1948, 166 F.2d 87; cf. Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. The sixth amendment provides that every defendant shall "enjoy the right to a speedy and public trial." We are not presented here with a case in which counsel was appointed a few moments before trial, see Powell v. Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, or one minute before, see United States v. Helwig, 3 Cir., 1947, 159 F.2d 616. Nor does it appear that Eubanks was denied opportunity to confer with counsel prior to the trial date. See Turner v. Maryland, 4 Cir., 1961, 303 F.2d 507. On the contrary the docket and minute entries for October 7 affirmatively show that counsel was present with defendant at the arraignment. Plainly, he had ample opportunity to consult with his client.

The determination as to whether there was time sufficient to permit the accused to prepare his defense is largely a matter of trial court discretion. What is a sufficient time in a particular case depends upon the circumstances, including the nature of the charge, the issues presented, counsel's familiarity with the applicable law and pertinent facts, and the availability of witnesses. See Ray v. United States, 8 Cir., 1952, 197 F.2d 268, 271. Here defendant was charged with transporting a stolen vehicle across state lines. Such a charge is not usually a difficult one to defend, see United States v. Helwig, supra, 159 F.2d at 617. Nor did the facts as developed at trial suggest any unusual complexity in this particular case. The sole issue presented was: Did Eubanks steal the car?

The fact that most of the events giving rise to the offense occurred outside the jurisdiction of the trial court, and the fact that important government witnesses resided out of state, might have induced the trial court to look with sympathy on a motion for a continuance, but none was made.

There is no merit in appellant's argument that a longer period of preparation was mandatory because counsel was appointed by the court. We have no reason to believe, and there is nothing in this record to show, that court-appointed counsel are any less able or diligent than retained counsel.

Eubanks also says that he was denied effective assistance of counsel in that his court-appointed attorney failed to prepare his defense. Specifically, he urges that counsel should have sought a continuance in order more fully to investigate the government case and to locate witnesses appellant claims would have testified for him, but who had removed from the jurisdiction of the court at the time of trial. To place this claim in context, we briefly review the case against Eubanks as it was developed at trial.

Officer Van Buskirk of the Arizona Highway Patrol testified that he observed appellant on October 28, 1962, driving west on an Arizona highway in a 1959 red and white Chevrolet with two passengers. The car had a single, rear-mounted Texas license plate, number BN 5057. In routine performance of his duty, the officer stopped the car for investigation, because he knew that Texas law requires two license plates. Eubanks, who identified himself as James Ray Tiner, could not produce a driver's license or a vehicle registration. He told the officer that the car was registered in the name of his father, whom he identified as H. C. Tiner, a Texas resident.

A phone call to Eubanks' father revealed that he did not use the name Tiner, and was not the owner of the vehicle. Subsequent...

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13 cases
  • U.S. v. Anderson
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 24, 1975
    ...States v. Ray, 351 F.2d 554, 555 (4th Cir. 1965); Stamps v. United States, 387 F.2d 993, 995 (8th Cir. 1967); Eubanks v. United States, 336 F.2d 269, 270 (9th Cir. 1964).85 See Brady v. Maryland, 373 U.S. 83, 87--88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Moore v. Illinois, 408 U.S.......
  • People v. Peterson
    • United States
    • New York Supreme Court
    • July 27, 1977
    ...does not offend due process concepts. "Courts do not deny due process merely because they move expeditiously" (Eubanks v. United States, 9 Cir., 336 F.2d 269, 270; see, also, Allen v. MacDougall, D.C., 267 F.Supp. Defendant does complain, however, that he was denied a preliminary hearing (C......
  • Wright v. Craven
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 9, 1969
    ...that he did not have effective assistance of counsel. Rodriguez v. Hanchey, 359 F.2d 724, 728 (5th Cir. 1966); Eubanks v. United States, 336 F.2d 269, 272 (9th Cir. 1964); Reid v. United States, 334 F.2d 915, 919 (9th Cir. 1964). And to sustain that burden, and thereby show that his sixth a......
  • United States v. Sahley
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 6, 1976
    ...to say as a matter of law that 1 1/2 days was too short a time period between appointment of counsel and trial; Eubanks v. United States, 9 Cir. 1964, 336 F.2d 269, in which the court refused to reverse solely on the basis of an 11 day period between appointment of counsel and ...
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