Cofield v. United States
| Decision Date | 20 January 1959 |
| Docket Number | No. 16155.,16155. |
| Citation | 263 F.2d 686 |
| Parties | Lester COFIELD, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul Fitting, Bernard Kolbor, McKenna & Fitting, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before STEPHENS, Chief Judge, and CHAMBERS and HAMLEY, Circuit Judges.
Lester Cofield, Jr., a federal prisoner, instituted this proceeding to vacate his sentence. The action was brought under 28 U.S.C.A. § 2255. Following a hearing an order was entered denying his petition. Cofield appeals, raising questions concerning the adequacy of his legal representation at the time of arraignment, and the voluntariness of his plea of guilty.
On March 13, 1957, Cofield was indicted on two counts charging him with selling and facilitating the sale of narcotic drugs. In count one it was charged that on or about October 31, 1956, he sold and facilitated the sale of approximately 179 grains of heroin to one Justin Burley, in violation of 21 U.S.C.A. § 174. In count two it was charged that on or about November 5, 1956, Cofield sold and facilitated the sale of approximately 165 grains of heroin to Burley, in violation of the same statute.
Petitioner was arraigned on these charges on March 25, 1957. He and the other defendants who were being arraigned at that time were told by the court that they were then presumed to be innocent. They were further told that they were entitled to trial by jury and to be confronted with the witnesses against them. The assembled defendants were further advised by the court that if they were financially unable to employ counsel they could obtain the assistance of court-appointed counsel. Cofield was then given a copy of the indictment against him and in response to his request the court appointed an attorney to represent him.
The attorney so appointed was then in the courtroom and immediately went into consultation with Cofield. An hour and a half later Cofield appeared before the court with his attorney and pleaded guilty to count one and not guilty to count two. The United States Attorney advised the court that the government would ask for dismissal of count two. He further stated, however, that under the facts of this case a conviction under count one, on Cofield's plea of guilty, carried a mandatory sentence. The court thereupon referred the matter to a probation officer for a presentence investigation and report.
Cofield was brought before the court on April 1, 1957, for sentencing. His attorney made a plea for leniency. The court then imposed a twenty-year sentence with the recommendation that Cofield be treated for narcotic addiction.1 On motion of the United States Attorney, count two of the indictment was then dismissed.
This § 2255 proceeding was begun in December 1957. Two grounds were asserted for the relief requested: (1) Petitioner was denied adequate assistance of counsel; and (2) the plea of guilty was not voluntarily entered. These two grounds are reasserted on this appeal.
Concerning the adequacy of his representation by counsel, Cofield stresses the brevity of his consultation with his counsel prior to pleading guilty and the assertedly unsatisfactory circumstances under which the consultation was conducted. As a result, it is argued, there was no investigation of the facts or law, or adequate advice given him as to the difference between selling and facilitating the sale of narcotics. The possible defense of entrapment, appellant also contends, was ignored by counsel.
It is undisputed that the consultation between Cofield and his attorney was extremely brief. Although the court adjourned the arraignment of Cofield for an hour and a half to afford time for consultation, the attorney utilized only ten to twenty minutes for this purpose. This was perhaps unavoidable, since the attorney also had to confer with two or three other indigent defendants during the hour and a half. At the hearing in this § 2255 proceeding the attorney testified that he did not feel pressed for time and regarded the consultation as sufficiently long. He did not ask the court for a continuance.
It is also unquestioned that this consultation was conducted under circumstances which were far from ideal. It took place on a spectator's bench in the courtroom while other matters were being presented to the court. It was necessary for Cofield and his attorney to confer in a low voice. They were once interrupted and forced to remain quiet because of court proceedings.
The constitutional right of an indigent defendant in a federal criminal proceeding to have counsel assigned to him by the court has been recognized since Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The right to the assistance of counsel means effective assistance. Edwards v. United States, 78 U.S.App.D.C. 226, 139 F.2d 365. This contemplates the conscientious service of competent counsel, and a mere perfunctory appearance for a defendant is not enough. United States v. Wight, 2 Cir., 176 F.2d 376, 378. Representation in the role of an advocate rather than of an amicus curiae is required. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed. 2d 1060.
A showing that the time allowed for consultation was brief and that the facilities made available for such consultation were unsatisfactory lends color to a charge that legal representation was inadequate. No matter how capable and zealous an attorney may be, unreasonable curtailment of time or lack of proper facilities may prevent the attorney from affording adequate legal representation.
But if the legal representation was adequate despite the unsatisfactory conditions under which it was rendered, the indigent defendant has no cause for complaint. Thus, whatever the showing may be as to the time and facilities made available for rendering legal service, the basic inquiry remains — was the representation inadequate?2 This can be determined only by comparing what an attorney actually did in behalf of his indigent client with what he properly could have done had circumstances permitted.
Where, as here, this question arises in the context of a proceeding to vacate a sentence fair on its face, the indicated comparison must indeed be striking to warrant relief. Only if it can be said that what was or was not done by the attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the court, can a charge of inadequate legal representation prevail.3
Appellant argues that in two particulars the legal representation afforded by his court-appointed attorney, under the described circumstances, was inadequate. The first of these involves the contention that Cofield pleaded guilty under a misapprehension of the charge against him. He asserts that this would have not have happened if he had been afforded adequate legal representation.
This contention has reference to the language of the indictment reciting that Cofield "did knowingly and unlawfully sell and facilitate the sale" of narcotic drugs. Cofield calls attention to the fact that he told his attorney that he did not "sell" any narcotics. He argues that it is not clear from the record on what basis counsel thought Cofield was guilty — whether for selling narcotics or facilitating a sale. He wishes us to conclude from this that the plea was entered under the misapprehension referred to above.
We find the record singularly clear, with respect to both Cofield and his attorney, as to the basis for the plea of guilty. Cofield testified:
Cofield's attorney testified:
It is apparent from the quoted testimony that Cofield and his attorney were both of the view that Cofield had not sold the narcotics referred to in count one of the indictment, but that he had facilitated the sale of such narcotics. On the basis of this jointly shared belief, the attorney advised his client that he was guilty under count one and the plea of guilty followed.
Under 21 U.S.C.A. § 174, sale of narcotics and facilitating the sale of narcotics are separate offenses. It follows that where the government charges only one of these offenses, proof of the other will not warrant conviction.4 But where, as here, a defendant is charged in one count with selling and facilitating the sale of narcotics, proof of facilitation is sufficient, it being unnecessary to also prove sale.5
It follows that Cofield was not improperly advised when he was told that if he facilitated the sale of narcotics he was guilty of the crime charged in count one. Having received this advice, it cannot be said that Cofield pleaded guilty under a misapprehension as to the law on this point.
Cofield also contends that by reason of inadequate legal representation the defense of entrapment was "ignored." Our attention is called to Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed. 2d 848, in which a judgment of conviction in a narcotics case was reversed on the ground that the defendant had been entrapped.
In Cofield's motion to vacate and to set aside the...
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