Bostick v. United States

• Citation: 400 F.2d 449
• Decision Date: 27 January 1969
• Docket Number: 25301.,No. 24287,24287
• Parties: Leslie C. BOSTICK and Charles P. Lainhart, Appellants, v. UNITED STATES of America, Appellee. Leslie C. BOSTICK, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

400 F.2d 449 (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.

August 14, 1968.

Certiorari Denied January 27, 1969.

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.

Certiorari Denied January 27, 1969. See 89 S.Ct. 725.

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 printer-conspirator. 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 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 delibberate, 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 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 co-defendants.

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, 5 Cir. 1958, 250 F.2d 958, 959; cf. Billingsley v. United States, 8 Cir. 1910, 178 F. 653. Under Rule 21 as it now reads, transfers may be made because of local prejudice. In determining whether such prejudice in fact exists, the trial court exercises a wide discretion. United States v. Moran, 2 Cir. 1956, 236 F.2d 361, cert. den. 352 U.S. 909, 77 S.Ct. 148, 1 L.Ed.2d 118. Three newspaper stories were offered as evidence of prejudice. Two were dated December 17, 1965, eight months prior to trial. The other was dated March 24, 1966, nearly three months before the trial. There is no evidence that these stories influenced the jury in any way or even that any juror had read any of the stories.

The appellant complains that the record does not contain the voir dire examination of the jurors, citing Stephens v. United States, 5 Cir. 1961, 289 F.2d 308. In the case at bar, unlike Stephens, the voir dire was taken down by the reporter, although not transcribed by her, and her notes are on file with the district court. It is the appellant's burden to bring forward the record on which he relies to demonstrate that error occurred below. It is his responsibility to have the notes transcribed and to see that they are included in the record. Union Pacific R. R. v. Stewart, 95 U.S. 279, 284, 24 L.Ed. 431, 432; Springer v. Best, 9 Cir. 1959, 264 F.2d 24.

V.

Bostick and Lainhart contend that the court erred in refusing to allow them credit for seven months and twenty-three days spent in jail before their trial. See Bryans v. Blackwell, 5 Cir. 1967, 383 F.2d 986; accord: Stapf v. United States, 1966, 125 U.S.App.D.C. 100, 367 F.2d 326; Dunn v. United States, 4 Cir. 1967, 376 F.2d 191. See also Putt v. United States, 5 Cir. 1968, 392 F.2d 64.

The good time statute, 18 U.S.C. § 4161 provides:

§ 4161. Computation generally.

Each prisoner convicted of an offense against the United States and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run, as follows:

Five days for each month, if the sentence is not less than six months and not more than

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