Johnson v. United States, No. 17274.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT and BLACKMUN, Circuit , and YOUNG
Citation318 F.2d 855
PartiesRay Lee JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
Decision Date10 June 1963
Docket NumberNo. 17274.

318 F.2d 855 (1963)

Ray Lee JOHNSON, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17274.

United States Court of Appeals Eighth Circuit.

June 10, 1963.


318 F.2d 856

Robert B. Olsen, Kansas City, Mo., made argument for appellant and filed brief.

John L. Kapnistos, Asst. U.S. Atty., Kansas City, Mo., made argument for the appellee and was on the brief with F. Russell Millin, U.S. Atty., Kansas City, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Defendant Ray Lee Johnson appeals from his conviction upon an indictment charging him with escape from federal custody in violation of 18 U.S.C.A. § 751. Defendant was tried and found guilty by a jury and he was sentenced to three years imprisonment, said sentence being made consecutive to the term defendant was serving at the time of his escape.

Defendant filed timely notice of appeal and a petition for leave to proceed in forma pauperis. The trial court permitted the filing of notice of appeal but denied defendant's right to proceed in forma pauperis, the court finding that the appeal was frivolous, without merit, and not taken in good faith. Upon petitioner's application to this court for leave to appeal in forma pauperis notwithstanding the trial court's certificate, we filed an opinion in Johnson v. United States, 8 Cir., 313 F.2d 953, permitting the prosecution of the appeal in forma pauperis upon the following issues:

1. Violation of defendant's constitutional right to be represented by counsel.

2. Violation of defendant's right not to be examined as a witness against himself. (This issue was abandoned on appeal.)

Mr. Robert B. Olsen of the Kansas City, Missouri, Bar was appointed by this court to represent the defendant upon this appeal. Mr. Olsen by supplemental order was authorized to assert any errors that he might deem appropriate in support of the appeal.

We are indebted to Mr. Olsen for the excellent brief filed and the oral argument made upon behalf of the defendant. Mr. Olsen has performed his duties with skill and diligence.

Defendant upon this appeal raises two issues:

I. The court erred in failing and refusing to appoint new counsel for appellant after counsel originally appointed withdrew from the case before trial.

II. The court erred in imposing upon appellant a more severe sentence than would otherwise have been imposed because appellant claimed his constitutional right to trial by jury.

We shall now give the asserted errors consideration.

I.

A defendant in a federal criminal trial, by virtue of the Sixth Amendment, is entitled to representation by counsel in the trial court. If the defendant is without funds, the court is required to appoint competent counsel to represent him. The trial court recognized this constitutional right of the defendant by appointing Mr. Joseph L. Flynn, of the St. Joseph, Missouri, Bar, as counsel for defendant.

It is equally well-settled that a defendant charged with a federal crime may waive his right to representation by counsel "if he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241-242, 87 L.Ed. 268; Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461; Hayes v. United States, 8 Cir., 296 F.2d 657, 668; Lipscomb v. United States, 8 Cir., 209 F.2d 831, 834; Glenn v. United States, 5 Cir., 303 F.2d 536, 540; Igo v. United States, 10 Cir., 303 F.2d 317, 318; Arellanes v. United States, 9 Cir., 302 F.2d 603, 610; Watts v. United States, 9 Cir., 273 F.2d 10, 12.

A court cannot force the services of an attorney upon a defendant against his wishes. The issue of whether the defendant knowingly and intelligently has waived his right to be represented by counsel is usually one of fact.

318 F.2d 857

It is apparent from the record that the trial court based its order relieving Mr. Flynn as counsel upon a determination that the defendant had knowingly and intelligently waived his right to be represented by counsel. The burden is upon the defendant to demonstrate that such finding is without substantial evidentiary support. In United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248, the Court states, "Of course, the absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise." See also, Watts v. United States, supra.

In our present case, the record supports a finding of waiver of counsel. Mr. Joseph L. Flynn, a member of the St. Joseph, Missouri, Bar, a competent, experienced and able trial attorney, who had previously served as an assistant United States Attorney for some seven years, was appointed counsel for the defendant by the court prior to defendant's arraignment in March of 1962 and continued to serve in such capacity until his release on September 6, 1962. The proceedings before the court on that date in the presence of the defendant, so far as material, are as follows:

"Mr. Flynn: * * * The defendant has indicated his desire that I not represent him, and I withdraw as counsel in the case that he might represent himself. He desires to represent himself.
* * * * *
"Mr. Flynn: To straighten this out, I might state that I advised my client what my opinion was in these various matters, and I have advised him, of course, that it is my duty to represent him and protect all of his rights in the matter, and represent him to the best of my ability, but I have told him also what I consider the law to be, and by reason thereof, he prefers to represent himself.
* * * * *
"The Court: Well, all right. I suppose under the law you are entitled to a trial. I have appointed Mr. Flynn as your attorney and he is a good lawyer. He was in the District Attorney\'s office for a number of years. He is in the practice and I know of no man who is more capable of advising you as to the law than Mr. Flynn. You say you do not want Mr. Flynn to represent you?
"Defendant Johnson: No, sir, he has had six months and he has done nothing."
* * * * *
"Defendant Johnson: That is what I say. I believe Mr. Flynn would do it the best he could, but he doesn\'t understand the points that I want.
"The Court: I
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23 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...United States, 317 F.2d 249, 258 (8 Cir. 1963), cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d The South......
  • United States v. Drummond, No. 310
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 2, 1965
    ...alleged to have waived the right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see Johnson v. United States, 318 F.2d 855 (8th Cir. 1963), cert. denied, 375 U.S. 987, 84 S.Ct. 521, 11 L.Ed.2d 474 (1964). These principles were given recognition in Escobedo v. State o......
  • United States v. Washington, No. 14625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 12, 1965
    ...supra, 144 F.2d at 441. A court cannot force services of an attorney upon a defendant against his wishes. Johnson v. United States, 318 F.2d 855 (C.A.8, 1963). And the right does not justify forcing counsel upon an accused who wants none. United States v. Redfield, 197 F.Supp. 559 (D.C.Nev.......
  • Minor v. United States, No. 18408.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 21, 1967
    ...285, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12, 15; Johnson v. United States, 8 Cir., 318 F.2d 855, 856; Butler v. United States, 8 Cir., 317 F.2d 249, 258. However, as aptly stated by the Court of Appeals for the Fifth Circuit: "Once it is ......
  • Request a trial to view additional results
23 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...United States, 317 F.2d 249, 258 (8 Cir. 1963), cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d The South......
  • United States v. Drummond, No. 310
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 2, 1965
    ...alleged to have waived the right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see Johnson v. United States, 318 F.2d 855 (8th Cir. 1963), cert. denied, 375 U.S. 987, 84 S.Ct. 521, 11 L.Ed.2d 474 (1964). These principles were given recognition in Escobedo v. State o......
  • United States v. Washington, No. 14625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 12, 1965
    ...supra, 144 F.2d at 441. A court cannot force services of an attorney upon a defendant against his wishes. Johnson v. United States, 318 F.2d 855 (C.A.8, 1963). And the right does not justify forcing counsel upon an accused who wants none. United States v. Redfield, 197 F.Supp. 559 (D.C.Nev.......
  • Minor v. United States, No. 18408.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 21, 1967
    ...285, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12, 15; Johnson v. United States, 8 Cir., 318 F.2d 855, 856; Butler v. United States, 8 Cir., 317 F.2d 249, 258. However, as aptly stated by the Court of Appeals for the Fifth Circuit: "Once it is ......
  • Request a trial to view additional results

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