Relerford v. United States

• Decision Date: 16 November 1962
• Docket Number: No. 17963.,17963.
• Parties: Frank RELERFORD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.2d 706 (1962)

Frank RELERFORD, Appellant, v. UNITED STATES of America, Appellee.

No. 17963.

United States Court of Appeals Ninth Circuit.

November 16, 1962.

Frank Relerford, in pro. per.

Warren Colver, U. S. Atty., Weyman I. Lundquist, Patrick Thomas Moran, Asst. U. S. Attys., Anchorage, Alaska, for appellee.

Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Relerford appeals from the judgment upon his conviction by a jury of a violation of section 2421, Title 18 U.S.C. This is the second appeal in this case. In the first appeal we reversed the conviction on the ground that the court had, for reasons stated in our opinion, denied him an opportunity to secure counsel of his own choice to assist him in his defense. Releford sic v. United States, 288 F.2d 298, decided March 2, 1961. On this appeal, Releford makes five contentions which we consider seriatim.

1. He claims that he was not afforded a speedy trial as required by the sixth amendment to the Constitution of the United States. No such contention was made on the prior appeal, and it is apparent that his claim can relate only to what happened after the decision in that appeal. So far as the record shows, the contention was never raised below, and this would be a sufficient basis for refusing to consider it here. (See Campodonico v. United States, 9 Cir., 1955, 222 F.2d 310, 316, cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742, and cases there cited) However, because Relerford proceeded in pro. per., both below and here, we consider the point.

The record shows that on June 9, 1961, the matter was set for trial on October 5, 1961. So far as appears, no objection was made. No counsel had appeared for Relerford and therefore, on September 12, the court ordered that Relerford, who was on bail, appear September 14 for the purpose of ascertaining whether he had counsel. On that day he did appear and stated that he did not have counsel and asked to have the matter continued for another 30 or 40 days in order to enable him to retain counsel. The court offered to appoint counsel but Relerford stated that he wished to have a few more days in which to obtain counsel. The court granted him until September 18. Counsel retained by Relerford entered an appearance on that day, and on the next day filed a motion to continue the matter for six weeks. On the following day, the 20th, the court heard counsel in support of his motion and after considerable discussion, continued the trial date from October 5 to November 1, which was agreeable to counsel. ("I think that would be adequate; I am sure it should be.")

It appears that Relerford indicated to his counsel a willingness to withdraw his plea of not guilty and enter a plea of guilty, and on September 23 the court continued the matter from November 1 until November 7, presumably (the record is silent on this) because this matter was under consideration. On November 6 the case was called, in the words of the court, "to take up the matter of change of plea." His counsel then stated that Relerford did not desire to change his plea, although he (counsel) had represented to the United States Attorney that such would be the case. Relerford stated that he was not dissatisfied with his attorney, and that he was willing to accept his advice, except that he would not change his plea. His counsel, because of what had happened, withdrew. It also appeared that because of the representations that his counsel had made to the United States Attorney, the latter had excused the witnesses that had been summoned for the trial, at least one of them coming from as far away as Louisiana. The court then set the matter down for December 11, stating to Relerford "that will give you ample time to get another attorney." To this Relerford made no objection other than to thank the court.

On November 28 the court ordered Relerford to appear on December 1 "and advise the Court that he has counsel for the trial of said case; otherwise the Court will appoint counsel to represent him." Relerford did appear on December 1 and stated that he did not have counsel. He seemed to have the notion that he had a constitutional right to have the counsel he had previously retained, and who had withdrawn, act for him in the trial. The court advised him that it could not force an attorney upon him, that he had had ample time to obtain counsel, and that if he were a pauper he could execute the necessary oath and the court could appoint counsel. Relerford said that he could not file a pauper's oath and was instructed to be ready for trial on the 11th with or without an attorney. The matter was tried beginning on the 11th.

It is apparent that the delay in the trial was caused entirely by Relerford or by counsel retained by him. The point is without merit.

2. It is claimed that Relerford was not afforded assistance of counsel for his defense, as required by the sixth amendment to the Constitution of the United States. We have recited the history of the court's efforts to assure that he would have counsel. However, at the trial he appeared without counsel and at the opening of the trial the court made the...