United States v. Barney
| Decision Date | 03 January 1967 |
| Docket Number | No. 15535.,15535. |
| Citation | 371 F.2d 166 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank BARNEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joel Murray, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., Jules Terrence Brunner, John Peter Lulinski, Chicago, Ill., for appellee.
Before HASTINGS, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges.
Rehearing Denied January 3, 1967, en banc.
The defendant, Frank Barney, appeals from a judgment of conviction entered upon a jury verdict of guilty on all four counts of an indictment charging him with the unlawful possession and sale of heroin on August 26, 1964 and September 2, 1964, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). The defendant was sentenced to a term of eight years' imprisonment.
The defendant first challenges the sufficiency of the evidence. Taken in the light most favorable to the Government, the evidence discloses the following. On August 26, 1964, Donald Tucker, an agent for the Federal Bureau of Narcotics, met Charles Snell1 and the latter's "source of supply," James Pendleton, to arrange for the purchase of a quantity of heroin by Tucker. The meeting was held one block from the defendant's residence on Chicago's south side. Later that day, a package containing heroin was transferred from Pendleton to Snell to agent Tucker.
On September 1, 1964, agent Tucker attempted to arrange another purchase through Snell. Snell spoke to Pendleton, who made two trips to the defendant's residence. Later Pendleton told Tucker that his source was out of heroin, but permitted Tucker to speak to him on the telephone. Tucker subsequently identified the voice as that of the defendant. The defendant told Tucker that he, the defendant, was being watched, but that Tucker's money was safe and that Tucker would be getting good quality heroin. On the following day Pendleton delivered a package containing heroin to Tucker.
Pendleton, Tucker, and the defendant had subsequent meetings at a junk yard owned by Pendleton and at the defendant's fish market. On one occasion the defendant told agent Tucker that he was having difficulty obtaining narcotics and didn't want to keep Tucker waiting as he had done "the last time." The defendant also referred to his earlier phone conversation with agent Tucker. Later, when the defendant was arrested, he stated that he thought he could "beat this case" because he had not passed any heroin directly to Tucker.
From these facts and the inferences to be drawn from them the jury could reasonably find the defendant guilty of the crimes charged in the indictment.
The defendant next contends that he was denied the right to the effective assistance of counsel because the district judge, following the defendant's request for court-appointed counsel, appointed an attorney who was reluctant to represent him and because the appointment was made only three hours before the trial commenced. The facts preceding the appointment of counsel are important in evaluating this contention. The defendant was called for arraignment on the morning of May 10, 1965. At that time he said that he was attempting to retain the services of attorney Ray Smith. Ray Smith appeared for the defendant later that day and the arraignment was held. The case was called for trial on June 11 and June 14 but was continued at the request of counsel for the codefendant Snell. The trial was similarly continued on June 16 due to the unavailability of Snell's attorney. On this occasion Ray Smith unsuccessfully moved to have the trial set over until the fall term.
The case was again called for trial on June 24, but neither defense counsel appeared. The defendant announced that he was discharging Ray Smith because he "didn't have his fee." On the following day Ray Smith requested that he be permitted to withdraw since the defendant had informed him that he had retained another attorney, Lawrence Smith, to take over his defense. The district judge warned the defendant of the imminence of trial but continued the matter until June 28. Lawrence Smith failed to appear on that day and a continuance was granted until June 30; Smith again failed to appear and the matter was continued to July 2. The defendant was again cautioned that his trial could not be postponed indefinitely until he managed to arrange financing for another lawyer.
On July 2, after a further discussion between the court and the defendant concerning the defendant's financial difficulties, Lawrence Smith appeared at the court's request. He stated that the defendant had contacted him two weeks earlier and promised him a retainer, but that nothing had come of it. He expressed a willingness to represent the defendant despite the latter's financial troubles and requested a September trial date. The court granted the request, noting that it would provide more than ample time for preparation.
When the case was next called for trial, on September 13, the Government requested a continuance. At the same time Lawrence Smith moved to withdraw as the defendant's attorney, stating that the defendant had requested him to do so. The defendant asserted his inability to compensate Smith. No ruling was made on the motion to withdraw and it remained pending through two further trial calls, on September 22 and September 27, at neither of which was Smith present.
Finally, on September 28, both the defendant and Lawrence Smith appeared. Smith renewed his motion to withdraw, commenting upon the defendant's failure to arrange for compensation, his failure to contact Smith with regard to preparing his defense, and his apparent attempts to retain other counsel. The defendant stated that his only objection to Smith was that he could not afford to pay him. The court continued the motion for a short time to permit the defendant and Smith to discuss the matter.2 When the hearing was resumed, at 11:00 a. m., the defendant made a request for court-appointed counsel because, as he said, Smith would not "have his heart in the defending of me without my giving him any money." The following colloquy then occurred:
The trial began at 2:00 p. m.
The defendant maintains that these facts demonstrate a mere technical compliance with the right to counsel. He infers that the proceedings prior to the appointment of Lawrence Smith by the court on September 28 should be considered only to show the defendant's inability to retain counsel. Then, assuming that the earlier proceedings should be viewed in this manner, the defendant argues that appointed counsel had inadequate time to prepare his defense, and further, that counsel had little enthusiasm for defending him.
The patience and consideration shown to the defendant by the trial court through more than a dozen trial calls may not be so lightly dismissed as the defendant suggests. The record shows that the defendant's right to counsel of his choice was jealously guarded and that the time afforded him to prepare his case was considerably more than adequate if he had chosen to avail himself of it. The defendant was permitted to retain Ray Smith. He knew that his case had been set for trial. Several continuances later he was permitted to substitute Lawrence Smith. After several more delays, Lawrence Smith successfully postponed the trial until after the court's summer recess. Still, the defendant made no effort to seek assistance in preparing his case. From all that appears, he attempted only to retain the services of yet another attorney. His present contention that his actions were dictated solely by financial considerations is belied by the record.
The defendant's request for court-appointed counsel must be considered in the light of his earlier actions. When so considered, the request was nothing more than an attempt to substitute attorneys on the day of the trial for the second time. The trial court's action in appointing Lawrence Smith and ordering the trial to proceed was clearly within the court's discretion under the circumstances. United States v. Cozzi, 354 F.2d 637 (7th Cir. 1965), cert. denied, 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666 (1966); Cleveland v. United States, 116 U.S.App.D.C. 188, 322 F.2d 401, cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114 (1963). "Absent justifiable basis therefor there is no constitutional right to make a new choice of counsel, with attendant necessity for a continuance * * *, at the time the trial is scheduled to commence." United States v. Cozzi, supra, 354 F.2d at 639. The defendant points to Lawrence Smith's failure to request...
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