Joseph v. United States
| Decision Date | 20 August 1963 |
| Docket Number | No. 17955.,17955. |
| Citation | 321 F.2d 710 |
| Parties | Morris JOSEPH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
K. Bruce Friedman and Patricia C. Remmes, of San Francisco, Cal., for appellant.
William C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Section, and William D. Keller, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and JERTBERG, Circuit Judges, and SWEIGERT, District Judge.
This appeal, in forma pauperis, with appointed counsel representing the appellant, was ably presented by raising but one issue: Was appellant denied the effective assistance of counsel below because the trial court refused to grant a requested continuance?
Appellant was convicted by a jury on six counts of violating the narcotic laws of the United States. 21 U.S.C. § 174. Jurisdiction below rested on 18 U.S.C. § 3231, and here exists by reason of 28 U.S.C. §§ 1291 and 1294(1).
It is undisputed that appellant was represented by counsel of his own employment and choice at all relevant times in the district court. That defense was vigorous and able. Appellant asserts here there existed a lack of effective assistance of counsel, because of one fact — appellant's counsel's several requests for a continuance of the trial date was denied by the court below.
The six counts of the indictment rested on three alleged sales of heroin on February 21 or 22, 1961, and February 28, 1961 and March 10, 1961.
Because some of the cases cited in support of appellant's position here rest on the peculiar chronological features of the particular case, we think it necessary to set forth the following chronology:
It should be noted that when the case was first called for jury trial on April 24, 1961, in the courtroom to which it had been transferred for trial from the Criminal Master Calendar Courtroom, appellant's counsel announced he was "ready." (R. 5.) When trial was continued to May 1, 1961, appellant's counsel announced, not that he was not prepared to try the matter on May 1, but that he was retained to try another case on May 1st in the State court.
On May 1, 1961, counsel stated he was in trial in another court and for the first time, stated he had not had time to prepare the instant case. At that time he had had at least one week. He himself said he had had two weeks (R. 366) — one week prior to plea, one week after, before trial. Three similar subsequent motions were made, one on May 1, 1961, one on May 2, 1961, and one on May 3, 1961.
On these occasions, counsel for defendant repeated in general terms that he "had not been able to complete all the work which I think is necessary for the defense of this case." At no time did counsel for defendant point out any specific areas of investigation, research, or preparation which the facts of this case required. When the court stated that there was infrequently any defense submitted in narcotic cases — that usually the defendant delayed his trial as long as possible and then presented no evidence (which was the course followed here), counsel for defendant merely stated that when heavy penalties were possibly involved, a week's preparation was not enough.
We see no reasonable basis for a rule granting additional time to prepare a defense based upon the possible penalty incurred. It is the nature of the crime charged and the intricacies of the defenses sought to be established, whether legal or factual, that have a rational relationship to the amount of time required for adequate preparation.
It is extremely important to note the trial judge recognized this, for at the conclusion of the government's case, when defendant's counsel asked for a continuance, the trial judge stated:
Despite this invitation, counsel for appellant still offered no specific reason or theory of defense under which he could fairly and reasonably ask for further time to prepare. Not to this day, either in argument to the jury, by motion for new trial, or on this appeal has any of appellant's counsel suggested in what specific area of investigation or preparation, either legal or factual, it was reasonably necessary for the appellant to go into. While no such showing of prejudice is necessary when no time is granted, we think it material in determining how much time is "sufficient", once time has been obtained.
Trial counsel's sole reason for his inability to prepare was that he had "other matters to take care of" that allegedly prevented him from preparing the case for trial.
Counsel for appellant here must therefore take the position (as they did on oral argument) that no detriment to the appellant need be shown on this appeal, or in any case involving a claimed inadequate time, and that, as a matter of law, one week's preparation for trial of any case involving lengthy punishment, is, without any other showing, a deprivation of the effective assistance of counsel, and cause for reversal.
We cannot agree. Nor do we find the factual situation here existing comparable to those in the cases cited and relied upon by appellant.1
The question before us is a very practical one — "How long is long enough to prepare for a trial?" Of necessity the answer depends usually upon the nature of the case. We can concede that no time is never enough. If counsel is appointed one minute and asked to immediately commence the defense of a defendant before either a jury or the court, it seems obvious that as a matter of law, counsel has not had time enough to prepare. (This is the Vasilick case, noted in footnote 1.) But when any time is granted defendant's counsel within which to prepare, then the question can only be answered by a study of the facts of the case. After he has a chance to confer with defendant, and get his version of the facts, what needs to be done? What witnesses or documents need to be subpoenaed? What investigation need be made? What depositions are essential, if any? What witnesses can support an alibi?2 The necessities of a net worth income tax case, or a case involving fraudulent issue of corporate securities may become complex indeed. In fact, in its adequate preparation, at times a narcotic case may be complicated — but such would be an exception rather than the rule. In defending the specific charge of the possession and sale of narcotics on certain dates, the defenses available are usually simple. While perhaps a trial judge cannot presume such a simplicity in the defense exists in all cases, is he not entitled to do so when nothing to the contrary is brought to his attention?
We are forced to agree with appellee's argument when it says:
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United States v. Walling, 72-2834.
...on the substantive charge, this Court concludes that there was no abuse of discretion in denying a continuance. Joseph v. United States, 321 F.2d 710, 711 (9th Cir., 1963). Walling's contention that the conspiracy count was punitive is utterly without merit. Its frivolity may be measured by......
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People v. Crovedi
...supra, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Shaw, 46 Cal.App.2d 768, 773, 117 P.2d 34; Joseph v. United States, 321 F.2d 710, 712-713 (9th Cir. 1963).) In this case the crimes charged were complex, especially with reference to the conspiracy count. But the defense o......
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State v. Torres
...requiring great research, clearly greater time is required. Cf. Foxworth v. State, 267 So.2d 647, 651 (Fla.1972); Joseph v. United States, 321 F.2d 710 (9th Cir. 1963), cert. den., 375 U.S. 977, 84 S.Ct. 497, 11 L.Ed.2d 422 (1964); Ungar v. Sarafite, 376 U.S. 575, 589-591, 84 S.Ct. 841, 11 ......
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Williams v. Beto
...the "missing man" defense raised in this case. Cf. Gray v. United States, (1962), 112 U.S.App.D.C. 86, 299 F.2d 467, Joseph v. United States, (9 Cir., 1963), 321 F.2d 710, cert. den. 375 U.S. 977, 84 S.Ct. 497, 11 L.Ed. 422. DeRoche v. United States, (9 Cir., 1964), 337 F.2d It is next comp......