Duke v. United States

• Decision Date: 16 June 1958
• Docket Number: No. 15146.,15146.
• Citation: Duke v. United States, 255 F.2d 721 (9th Cir. 1958)
• Parties: Clifford L. DUKE, Jr., Louis Glenn Ballard and Vic Buono, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

255 F.2d 721 (1958)

Clifford L. DUKE, Jr., Louis Glenn Ballard and Vic Buono, v.UNITED STATES of America, Appellee.

No. 15146.

United States Court of Appeals Ninth Circuit.

January 7, 1958.

Writ of Certiorari Denied June 16, 1958.

COPYRIGHT MATERIAL OMITTED

George W. Rutherford, La Jolla, Cal., Clinton F. Jones, Escondido, Cal., Barton C. Sheela, Jr., Richard L. Vaughn, Edgar G. Langford, Thomas Whelan, San Diego, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Manley J. Bowler, Thomas Ludlow, Jr., Harry D. Steward, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, Chief Judge, LEMMON and FEE, Circuit Judges.

Writ of Certiorari Denied June 16, 1958.See78 S.Ct. 1361.

JAMES ALGER FEE, Circuit Judge.

This is a criminal case in which there was laid bare a tremendous traffic in the smuggling of psittacine birds into the United States from the Republic of Mexico.Irrespective of the merits, it is a sordid story of intrigue, double-dealing and feuds among the participants, with treacherous interludes and escapades.

Parrots, parakeets and, broadly speaking, any bird with a hooked beak are denominated psittacine birds.There is a quarantine against the importation of such fowl into the United States.¹However, there appears to be a vast importation of these birds here.It is not the custom in this commerce to pay any duties on psittacines.Indeed, it would appear from the record that there is no known instance of such an impost having been paid.

In general, the participants in this traffic were as malodorous as the commerce therein itself.The testimony was furnished by co-laborers in the vineyard, who were characterized by one of the defendants as:

"John W. Hadzima, a twice convicted smuggler, Nicholas A. Spicuzza, a twice convicted smuggler, George Todd, a twice convicted smuggler, Raymond Curtis, convicted smuggler, Robert Helm, convicted smuggler, Mary Asconi, admitted handler of psittacine birds known by her to have been smuggled."

The indictment was in ten counts.Three separate conspiracies were charged (in Counts I, IV and VII).Five counts charged smuggling (II, V, VIII, IX and X).Two counts charged certain defendants with knowingly receiving, concealing and facilitating the transportation and concealment of certain birds after illegal importation (III and VI).

Appellants Duke, Ballard and Buono, having been convicted on certain counts by a jury, appeal.

All of these appellants raise the point that the convictions under 18 U.S.C.A. § 545,² the general smuggling statute for felony, cannot stand because the Surgeon General, under authority of 42 U.S.C.A. § 264, passed a health and safety regulation forbidding, with minor exceptions, importation of psittacine birds.See42 C.F.R. § 71.152(b).This regulation carries a penalty for a misdemeanor.42 U.S.C.A. § 271(a).The same argument is applied to 18 U.S.C.A. §§ 42and43.But these contentions have no validity.Appellants may have committed two crimes, one a misdemeanor and the other a felony.SeeSteiner v. United States, 9 Cir., 229 F.2d 745, certiorari denied sub nomHadzima v. U. S., 351 U.S. 953, 76 S.Ct. 847, 100 L.Ed. 1476.If there is any conflict between the statute and the regulation, the former prevails.SeeMurray v. United States, 9 Cir., 217 F.2d 583;Callahan v. United States, 285 U.S. 515, 52 S.Ct. 454, 76 L.Ed. 914.The case of Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013, has no pertinency upon this point.Where different proof is required for each offense, a single act or transaction may violate more than one criminal statute.United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61;United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610.

It is argued that psittacine birds are not merchandise which should have been invoiced under the customs laws.But this has no validity.Steiner v. United States, supra.In that connection, it is urged that the substantive counts are defective because they were insufficient to charge that appellants violated 18 U.S.C.A. § 545, by failing to comply with 19 U.S.C.A. §§ 1461and1484.This latter point has no apparent connection with any count except those relating to receiving and facilitating.SeeBabb v. United States, 5 Cir., 218 F.2d 538.As to the latter counts, the indictment there contained the statement that the importation was contrary to 19 U.S. C.A. ch. 4, and particularly to §§ 1461and1481 thereof.

Duke, who is a lawyer, complains of his representation before the court.Under the circumstances, the complaint is of very little moment.He seems to have hoped, by complicating the situation, he could gain some advantage at the trial.Since that failed, he now attempts to use the situation he created as error to obtain reversal upon appeal.There is nothing more revolting in the American courts than the attempt of lawyers, as criminals, to use the guaranties set up for fair trial as technicalities to shield them from just conviction.The record in this case shows clearly that Duke is guilty.He has been convicted by a jury.Nevertheless, if the constitutional rights of Duke were violated, this Court must give him redress.

There are two principles which are founded on reason and authority in this field to which this Court gives full weight.First, an accused has an unquestioned right to defend himself.³Second, an accused should never have counsel not of his choice forced upon him.⁴This Court has never failed to recognize either of these fundamental rights.

As we review the record as to representation by counsel or in propria persona, it is clear that the confusion was caused by Duke and Duke alone.He acquiesced and consented to limitations on his right to represent himself.He attempted to repudiate the limitations subsequently, but that circumstance cannot vitiate his previous waiver.If defendant were an ignorant and untutored person, there might be some force to his present claim.But Duke is a trial lawyer of long experience.

Duke, at the hearing for arraignment and plea before a judge other than the one who tried the case, asked permission to proceed in propria persona for preliminary motions pertaining to the attack on the indictment.He represented to the judge at the time that counsel would appear for him at trial.Permission was granted.

Afterward, in apparent pursuance of this suggestion, Duke presented a Mr. Fitzgerald, a competent attorney, to the judge who eventually tried the case.However, at an informal colloquy in chambers, Duke indicated he wished Mr. Fitzgerald as an associate.The trial judge agreed that another lawyer should be in the case and suggested that Duke should not testify and also attempt to argue the case to the jury.Whatever may be thought of the legal basis of this idea, Duke fully agreed with the underlying practice and consistently held to that position throughout the trial.⁵The thesis of the trial court was apparently that Duke, if acting as client and lawyer, would be involved emotionally and prejudice his own case.⁶After a great deal of discussion, in which Duke, Fitzgerald and the trial judge participated, all were in agreement.

In open court, before the jury had been impaneled, Duke moved for the entry of Mr. Fitzgerald as co-counsel, and thus sought to impose a dilemma upon the trial judge.But the judge made his position clear that Duke could appear in proper person subject to limitations to which Duke had agreed, or he could appear through counsel.As a result, Mr. Fitzgerald, who was of Duke's own choosing, entered the case as counsel for Duke.At the insistence of Duke, however, the latter was allowed, by the discretion of the court, certain personal participation such as examination of witnesses and making and arguing motions to the court.Parenthetically, the trial court was extremely fair in permitting Duke all the privileges agreed upon.Nothing was said about an opening address to the jury by Duke.Both Mr. Fitzgerald and Duke apparently agreed that the participation of Duke would be so limited, for the trial judge had made it abundantly clear that Mr. Fitzgerald was to have full control of the cause.When he accepted Fitzgerald as counsel subject to his personal participation only as permitted by the court, Duke made an election of record in open court.

After the jury was empaneled and before taking of testimony, the court again sought to clarify the status of Duke, so that there would be no confusion about his participation.It was pointed out that the obligation of Duke was to appear in propria persona or be represented by counsel, but that he did not have a right to a hybrid of the two.⁷However, the court reiterated its decision to permit Duke limited participation with his counsel.The court reserved all arguments of fact and the opening statement to the jury on behalf of Duke to Mr. Fitzgerald.

At this point, Duke for the first time insisted upon the right to make an opening statement, but the court ruled that Mr. Fitzgerald was to make this presentation.Duke claimed Mr. Fitzgerald was unprepared.The court then called attention to the fact that Duke had been under indictment for months and had made no appropriate attempts to settle the question of representation until the time of trial.

The trial judge offered to recess the case until Mr. Fitzgerald could prepare himself with the assistance of Duke to make the opening statement.The court said:

"I know academically you are educated, Mr. Fitzgerald, but as to the facts, if you are not well prepared, you proceed last and I will see there is ample recess so that Mr. Duke can write it out if he wants."

Duke refused this offer.

Duke then moved to have Mr. Fitzgerald released from the case.The court denied this motion.⁸Mr. Whelan, attorney for Ballard, made the opening statement for Duke, with the consent of the latter.

Duke was not denied the right to represent himself.Counsel was...