Randazzo v. United States
| Citation | 339 F.2d 79 |
| Decision Date | 21 October 1964 |
| Docket Number | No. 21131.,21131. |
| Parties | Joseph RANDAZZO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Clyde W. Woody, Houston, Tex., and Marvin F. Foster, Jr., Corpus Christi, Tex., for appellant.
James R. Gough, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., William A. Jackson, and William B. Butler, Asst. U. S. Attys., Houston, Tex., for appellee.
Before HUTCHESON, RIVES and BROWN, Circuit Judges.
This is an appeal from an order of the United States District Court for the Southern District of Texas finding the defendant, appellant, guilty of a criminal contempt of court because he refused to answer certain questions while appearing as a witness before a grand jury. As punishment, the court sentenced the defendant, appellant, to imprisonment for a period of eighteen months to begin after the expiration of the period of imprisonment which he is now serving under the laws of the State of New York.
Prior to oral argument the appellee filed a motion to strike the setting of the case from this Court's docket and to continue it and to strike the appearance of counsel for the appellant. In its motion the appellee suggests that a conflict of interest exists which would deprive the appellant of effective counsel in this appeal.
The questions propounded by the grand jury which the appellant refused to answer were:
At the defendant's hearing to show cause why he should not be held in contempt for refusing to answer the questions, after he had been granted immunity pursuant to statute, the district court appointed a member of the Corpus Christi Bar, Marvin Foster, Jr., Esquire, to represent the defendant.
However, on appeal Clyde Woody, Esquire, has appeared in this Court as attorney for the appellant and has written and filed the brief for his appeal. Mr. Woody is also attorney for Anthony Granza, who was jointly indicted with Vincent Ferrara and convicted of a violation of 21 U.S.C. § 174.
The appellee suggests that an actual or potential conflict of interest exists between the appellant and Anthony Granza which would operate to deprive the appellant of effective counsel on this appeal. More specifically, the appellee suggests that it may be in the interest of the appellant now to offer to answer the questions propounded to him regarding the activities of Anthony Granza and to seek judicial reconsideration of his sentence or executive clemency. On the other hand, the appellee suggests, it may be to the interest of Anthony Granza that the appellant remain silent.
In his answer to the appellee's motion, Mr. Woody states that he is solely interested in having the constitutionality of the procedure utilized by the district court determined by this Court or the Supreme Court.
It should be noted at the outset that the appellee has not suggested that Mr. Woody has deliberately or willfully engaged in any improper professional conduct. Instead, the appellee suggests that "it may well be that a substantial question of law exists as to the actual or potential conflict herein alleged."1
It would seem that Mr. Woody's dedication in challenging the constitutionality of the procedure utilized by the district court is wholly consistent with the interests of both the appellant and Mr. Granza. However, we believe that this challenge is only one facet of a complete representation of the appellant. A complete representation would include a meaningful consideration of the alternatives, suggested by the appellee, to challenging the constitutionality of the appellant's contempt conviction.
Mr. Woody states that the appellant specifically requested that he represent the appellant. However, we have recently recognized that "the Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed." Porter v. United States, 5 Cir....
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