555 F.2d 737 (9th Cir. 1977), 76-2661, United States v. Lustig

Docket Nº76-2661, 76-2752.
Citation555 F.2d 737
Party NameUNITED STATES of America, Plaintiff-Appellee, v. George H. LUSTIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gregory D. PEDERSON, Defendant-Appellant.
Case DateJune 15, 1977
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 737

555 F.2d 737 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

George H. LUSTIG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory D. PEDERSON, Defendant-Appellant.

Nos. 76-2661, 76-2752.

United States Court of Appeals, Ninth Circuit

June 15, 1977

Rehearing and Rehearing En Banc Denied Aug. 12, 1977.

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Phillip P. Weidner, Drathman, Weidner, Pope J. Lindsley, Anchorage, Alaska, argued, for appellant Lustig.

Fredrick P. Pettyjohn, Anchorage, Alaska, argued, for appellant Pederson.

G. Kent Edwards, U.S. Atty., Anchorage, Alaska, argued, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before CARTER, TRASK and KENNEDY, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is an appeal from jury convictions for distribution of a controlled substance (cocaine), in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. Appellant Pederson was also convicted of possession of a controlled substance, in violation of 21 U.S.C. § 844.

Appellant Lustig has raised numerous contentions. In particular, he argues that the judge improperly dismissed a juror, that he should have been granted a continuance after he obtained new counsel, and that the testimony of his common law wife was received in violation of the marital privilege. Appellant Pederson argues only that his right against self-incrimination was violated by being forced to answer certain questions on cross-examination. 1 Finding none of these claims meritorious, we affirm.

FACTS

Appellant Pederson met undercover police detective Bernard Lau on February 27, 1976, in order to sell him an ounce of cocaine. The meeting was arranged by Mike Tarnef, a local dealer turned informant. Prior to this meeting, Pederson picked up a small package (presumably containing the cocaine) from a man identified by four police officers as appellant Lustig. Pederson told Tarnef that his "man", or narcotics source, was Lustig.

After the February 27 meeting, Pederson told Lau that more drugs were available for purchase. Pederson telephoned Lustig immediately after this conversation. (Telephone records indicate extensive communications between Pederson and Lustig.) Lau gave Pederson and his wife (and co-defendant) Sherri Pederson some money the next day to buy the drugs and to repay a debt Pederson said he had with his source. It was established that Pederson owed money to Lustig.

Prior to the second meeting with Lau, the Pedersons drove out to Lustig's home located in Wasilla. Their vehicle rendezvoused with another near Lustig's home and then returned to Anchorage. The Pedersons then went directly to the meeting with Lau and sold him another ounce of cocaine.

Appellants were arrested on March 11. Lustig was stopped near his home while

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driving a truck. It was searched for inventory purposes, and a "seal-a-meal" bagging machine later identified as the same used for packaging the cocaine sold to Lau was found. 2 The truck also contained an unused "seal-a-meal" bag and drug-weighing scales.

Lustig was informed of his rights and placed in a police car. Enroute to the federal marshal, the arresting officers found two ounces of cocaine in Lustig's possession. Lustig had attempted to conceal this cocaine under the rear seat of the car.

Appellants were indicted (in a superseding indictment) on March 24. Lustig initially was represented by attorney William Fuld, who handled the arraignment proceedings and filed numerous pretrial motions on Lustig's behalf. The district court, informed that Lustig might attempt to post bond and then flee, froze Lustig's assets and restrained Lustig from disposing of his assets. In the meantime, Lustig was rearrested on a prior Alaskan drug offense on a petition to revoke probation and held without bail. 3

Lustig obtained new counsel four days before the scheduled trial date. The court had urged Lustig, a month earlier, to finalize arrangements with an attorney to insure proper representation. The new counsel made an unsuccessful motion for a continuance, and then petitioned this court for a writ of mandamus or prohibition staying the trial in order to provide more preparation time. This petition was denied on April 26, 1976.

Trial began on April 27. After one day of testimony, the court informed counsel that one juror had been excused because he admitted prejudicial knowledge about the case. A motion for mistrial because of this excusal was denied.

Lustig testified in his own behalf. He said he felt it was an infringement on his liberty for the government to proscribe the use of cocaine. He admitted to possession of the drug, but said it was for his own use. He denied that the sealing machine and other paraphernalia belonged to him. Lustig also claimed that the police were mistaken in their identification of him as the supplier of the drugs to Pederson.

Pederson also testified in his own behalf. He admitted participating in the February 25 and March 4 transactions, but claimed entrapment. He denied that Lustig was the man who supplied him with the cocaine.

The government called Lustig's common law wife, Callie Newton, as a rebuttal witness. She testified there was a verbal agreement between Lustig and Pederson to distribute cocaine. Lustig objected on the ground that this testimony violated his marital privilege. The district court allowed the testimony because Alaska law does not recognize the validity of common law marriage. Lustig claims that Newton's testimony was given because of a desire for revenge arising out of certain unrelated events. The defense sought a continuance during trial to subpoena an independent witness to establish Newton's improper motives. This request was denied.

After 12 hours of deliberations, the jury returned verdicts of guilty on all counts. Motions by Lustig for different verdict forms and for individual polling of jury members on each count were denied. Lustig was sentenced to nine years; Pederson received seven. This appeal followed. 4

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MOTIONS FOR CONTINUANCES

Lustig was represented by attorney Fuld from the time of his arrest until four days prior to trial. Fuld moved to withdraw as counsel two weeks after Lustig's arrest, claiming the period prescribed by the Speedy Trial Act made representation by anyone impossible. The district court denied Fuld's motion, but warned Lustig that he must either make final arrangements with Fuld or get another attorney for trial, then more than a month away. Lustig did not act on this advice until immediately before trial.

At that time, attorney Weidner became counsel of record. He asked for a continuance four days prior to trial. The court denied this motion. Lustig now claims that this failure to grant a continuance resulted in a deprivation of his right to the effective assistance of counsel of his choice. See, e. g., Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Sanders v. Russell, 401 F.2d 241, 247 (5 Cir. 1968).

Lustig had over a month to obtain a different attorney. He is a man of considerable means. 5 It is very unlikely that he would be unable to find willing counsel in the entire city of Anchorage (which has over 600 attorneys). More probably, he simply did not try very hard. See Glenn v. United States, 303 F.2d 536, 543 (5 Cir. 1962) (failure to obtain counsel was defendant's fault).

Lustig relies primarily on United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973 (1977). In that case, the appellant had made a motion for severance two weeks into trial after his attorney unexpectedly became ill and was hospitalized. The circuit court found the denial of this motion to be reversible error, but only because appellant had earlier made a showing to the trial court of substantial prejudice resulting from a joint trial. There was a great disparity in the evidence against the appellant and his three co-defendants. Id. at 979-80.

These factors are absent here. The trial had not begun; Lustig had had ample time to obtain alternative counsel. There were no prejudicial factors involved such as the disparity in evidence. As the court in Mardian also observed, "(A) defendant's right to an attorney of his choice is not so absolute as to permit disruption of the fair and orderly administration of justice when another competent attorney is available to continue the defense." Id. at 979, n. 9. See also Lofton v. Procunier, 487 F.2d 434, 435 (9 Cir. 1973).

A trial court has wide discretion to grant or deny continuances. Ungar v. Sarafite, 376 U.S. 575, 591, 84 S.Ct. 841, 11 L.Ed.2d 921 (1963). Actual prejudice must be shown before a trial court's denial of a continuance will be reversed. United States v. Harris, 501 F.2d 1, 4-5 (9 Cir. 1974); Daut v. United States, 405 F.2d 312, 315 (9 Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971). Moreover, a court must be wary against the "right of counsel" being used as a ploy to gain time or effect delay. United States ex rel. Baskerville v. Deegan, 428 F.2d 714, 716 (2 Cir. 1970).

This court may view the record to determine the adequacy of representation and possible prejudice from a denial of a continuance. See United States v. Simmons, 457 F.2d 763, 764 (9 Cir. 1972); Torres v. United States, 270 F.2d 252, 255 (9 Cir. 1959). And the record in this case reveals extensive and

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competent argument and cross-examination by Lustig's counsel far more so, we might add, than for his co-defendant. Moreover, this case was relatively uncomplicated, with the government producing its evidence in just six hours.

It is arguable whether the district court should have...

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