400 F.2d 449 (5th Cir. 1968), 24287, Bostick v. United States

Docket Nº24287, 25301.
Citation400 F.2d 449
Party NameLeslie C. BOSTICK and Charles P. Lainhart, Appellants, v. UNITED STATES of America, Appellee. Leslie C. BOSTICK, Appellant, v. UNITED STATES of America, Appellee.
Case DateAugust 14, 1968
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 449

400 F.2d 449 (5th Cir. 1968)

Leslie C. BOSTICK and Charles P. Lainhart, Appellants,

v.

UNITED STATES of America, Appellee.

Leslie C. BOSTICK, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 24287, 25301.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 1968

Page 450

R. S. Carrigan, Houston, Tex., for Charles P. Lainhart.

Julie G. Lowenberg, Michael Lowenberg, Dallas, Tex., for Leslie C. Bostick.

James R. Gough, Ronald Blask, Asst. U.S.Attys., Houston, Tex., for appellee.

Before BROWN, Chief Judge, and WISDOM, Circuit Judge, and BREWSTER, District Judge.

WISDOM, Circuit Judge:

Leslie C. Bostick and Charles P. Lainhart were indicted on seven counts. The first count charged a conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 2314 by transporting forged securities in interstate commerce. The remaining six counts each charged a substantive violation of 18 U.S.C. § 2314.

The trial judge in a memorandum opinion dated November 7, 1967, described the scheme as follows:

'On trial of the case there was shown by overwhelming and undisputed evidence that Bostick and Lainhart were the moving factors in a highly efficient and successful fraudulent check scheme. Their plan of operation was to secure, by various means, legitimate payroll checks from a series of substantial companies, and then to have these reproduced by a printerconspirator. These defendants would then recruit a number of young people, without prior criminal records and some in the uniform of their country, to pass these checks at supermarkets and other such businesses. A number of different companies were victimized with the evidence showing, as I recall, that these defendants received as their portion the lion's share of a total take in the range of $100,000. None of the money was recovered. No restitution was ever made. Neither of the defendants elected to testify.'

The court sentenced Bostick and Lainhart to serve, concurrently, ten years on each of counts two through seven and to pay a fine of $2,000 on each of counts three through seven. On the first count, the court sentenced the defendants to five years imprisonment, suspended for five years.

On appeal able court-appointed attorneys for Bostick and Lainhart raise a number of issues. We have considered all of the appellants' contentions, although

Page 451

we find it necessary to discuss only the following questions.

I.

The appellants contend, first, that they were denied the benefit of counsel.

The trial judge carefully detailed most of the relevant facts regarding the defendants' asserted denial of counsel. See the memorandum opinion dated November 7, 1967, attached to this opinion as an appendix. He reached the following conclusions:

'This Court undertook for a period of seven months to bring this case to trial. During this interval the defendants Bostick and Lainhart, though incarcerated and unable to make bond, used every device and machination known to the law, and then perhaps invented a few of their own, to defeat the orderly disposition of the case. The transcript of these preliminary proceedings which I have just re-read to refresh my recollection, is so fantastic as to be almost beyond belief. It presents the question as to whether ever, under any circumstances, a district court in the orderly administration of its functions can bring a criminal case to trial over the objection of the defendant. * * *

'I am convinced beyond a shadow of a doubt that the various artifices practiced by these two defendants prior to trial in continually gaining continuances, and in claiming that while entirely able financially to do so they were still unsuccessful in securing counsel of their own choice were deliberate, were not in good faith, and-- with the knowledge that they had no hope of success in the trial court-- was for the express purpose of preserving this question for appeal and, thereafter habeas corpus.'

The record supports the trial judge's conclusions. The defendants used their right to counsel as a means of frustrating the orderly processes of justice. As Judge Weinfeld, in a similar situation, put it, 'The trial court not only did not abuse its discretion, but displayed Rhadamanthine forbearance and patience in dealing with the petitioner's numerous requests and excuses for continued postponements.' United States ex rel. Gallo v. Follette, S.D.N.Y. 1967, 270 F.Supp. 507.

Both Bostick and Lainhart had ample opportunity to retain attorneys of their own choice. Each repeatedly asserted that he was not an indigent and that he would hire his own attorney. While in jail both had numerous consultations with their attorneys; for example, Bostick had 53 lawyer-visits. On a number of occasions the various trial judges assigned to the case explained to the defendants their right to appointed counsel. Bostick eventually accepted appointed counsel. Lainhart did not, but he expressly waived his right to counsel. Thus, the following colloquy took place:

COURT: It is my understanding from what Judge Ingraham has told me that . . . you don't want appointed counsel. Is that true of both of you? LAINHART: Yes, sir. (Emphasis supplied.)

It is a fair inference that Lainhart's tactic was to force the court to put him on trial without counsel; that Bostick's tactic was to accept the services of an attorney while apparently attorneys were being thrust upon him against his wishes. The defendants had unlimited access to retained attorneys, whom they said that they would employ, or to competent court-appointed attorneys, whom they rejected. Rhadamanthus below or angels above could have done no more for the defendants than the harassed trial judges did in this case.

II.

Bond for Bostick and Lainhart was originally set at $50,000. The court later reduced it to $25,000. The question whether the bail set before trial was excessive became moot after the judgment of conviction was rendered.

The defendants contend that their continued incarceration because of their inability to furnish bail hampered

Page 452

their defense. As far as the record goes, the defendants were treated just as other prisoners are treated. There were no special restrictions on the defendants' negotiations with prospective attorneys or on their consultations with attorneys. Bostick and Lainhart made no showing that their incarceration hampered their defense. See United States v. Barney, 7 Cir. 1967, 371 F.2d 166.

III.

Bostick contends that the case as to him should have been severed. But here neither defendant testified. There was no confession by either. Both were indicted as co-conspirators. They made a common defense on the general issue of 'not guilty' and offered no evidence on their behalf. Almost all of the evidence was offered against both as codefendants.

The determination of the severance issue is one within the sound discretion of the trial court. Schaffer v. United States, 5 Cir. 1955, 221 F.2d 17, 54 A.L.R.2d 820. Here the trial court did not abuse its discretion in trying the co-conspirators together.

IV.

Lainhart contends that his motion for change of venue should have been granted, particularly in light of recent amendments to Fed.R.Crim.P. 18 and 21 and the repeal of Rule 19. The record does not support this contention.

The recent amendments had the effect of eliminating the division as a unit of venue in criminal cases. It remains as an administrative unit in those districts which are subdivided by law into divisions. However, the division has no constitutional significance; the vicinage is the district. Lafoon v. United States,...

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20 practice notes
  • 17 F.3d 745 (5th Cir. 1994), 92-8037, United States v. Faulkner
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • March 18, 1994
    ...a division within a judicial district."), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); Bostick v. United States, 400 F.2d 449, 452 (5th Cir.1968) ("[T]he division has no constitutional significance; the vicinage is the district."), cert. denied, 393 U.S. 1......
  • 323 F.Supp. 296 (S.D.Fla. 1971), 70-143, United States v. Sklaroff
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • February 11, 1971
    ...United States, 5 Cir. 1969, 402 F.2d 268, cert. denied 393 U.S. 1082, 89 S.Ct. 864, 21 L.Ed.2d 775; Bostick v. United States, 5 Cir. 1968, 400 F.2d 449; cert. denied 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712. The discretion vested in the Trial Court is wide. Long v. United States, 10 Cir.......
  • 337 F.Supp. 1371 (S.D.Tex. 1972), Civ. A. 71-H-909, Johnson v. Beto
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Southern District of Texas
    • January 19, 1972
    ...90 S.Ct. 1258, 25 L.Ed.2d 530 (1970). See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Bostick v. United States, 400 F.2d 449 (5th Cir. 1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712 (1969); United States v. Bowe, 360 F.2d 1 (2d Cir.), cert. denied,......
  • 375 A.2d 209 (R.I. 1977), 77-42, State v. Ouimette
    • United States
    • Rhode Island United States State Supreme Court of Rhode Island
    • July 5, 1977
    ...appears in the same context in the federal good time statute, § 18 U.S. C. § 4161, and was interpreted in Bostick v. United States, 400 F.2d 449 (5th Cir. 1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712 (1969). There, on comparable facts the court said that "(t)his spe......
  • Request a trial to view additional results
20 cases
  • 17 F.3d 745 (5th Cir. 1994), 92-8037, United States v. Faulkner
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • March 18, 1994
    ...a division within a judicial district."), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); Bostick v. United States, 400 F.2d 449, 452 (5th Cir.1968) ("[T]he division has no constitutional significance; the vicinage is the district."), cert. denied, 393 U.S. 1......
  • 323 F.Supp. 296 (S.D.Fla. 1971), 70-143, United States v. Sklaroff
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • February 11, 1971
    ...United States, 5 Cir. 1969, 402 F.2d 268, cert. denied 393 U.S. 1082, 89 S.Ct. 864, 21 L.Ed.2d 775; Bostick v. United States, 5 Cir. 1968, 400 F.2d 449; cert. denied 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712. The discretion vested in the Trial Court is wide. Long v. United States, 10 Cir.......
  • 337 F.Supp. 1371 (S.D.Tex. 1972), Civ. A. 71-H-909, Johnson v. Beto
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Southern District of Texas
    • January 19, 1972
    ...90 S.Ct. 1258, 25 L.Ed.2d 530 (1970). See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Bostick v. United States, 400 F.2d 449 (5th Cir. 1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712 (1969); United States v. Bowe, 360 F.2d 1 (2d Cir.), cert. denied,......
  • 375 A.2d 209 (R.I. 1977), 77-42, State v. Ouimette
    • United States
    • Rhode Island United States State Supreme Court of Rhode Island
    • July 5, 1977
    ...appears in the same context in the federal good time statute, § 18 U.S. C. § 4161, and was interpreted in Bostick v. United States, 400 F.2d 449 (5th Cir. 1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 712 (1969). There, on comparable facts the court said that "(t)his spe......
  • Request a trial to view additional results