Reynolds v. United States, 16249.

• Decision Date: 01 June 1959
• Docket Number: No. 16249.,16249.
• Citation: 267 F.2d 235
• Parties: Earle L. REYNOLDS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

267 F.2d 235 (1959)

Earle L. REYNOLDS, Appellant, v. UNITED STATES of America, Appellee.

No. 16249.

United States Court of Appeals Ninth Circuit.

June 1, 1959.

Joseph L. Rauh, Jr., John Silard, Lucien Hilmer, Washington, D. C., Frederick S. Wyle, San Francisco, Cal., for appellant.

J. Walter Yeagley, Acting Asst. Atty. Gen., Louis B. Blissard, U. S. Atty., Sanford J. Langa, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.

Before BARNES, HAMLIN and JERTBERG, Circuit Judges.

PER CURIAM.

The appellant, defendant below, was accused by information¹ filed in the United States District Court for the District of Hawaii of violating, or attempting to violate, and conspiring to violate a regulation and order prescribed and issued under Section 2201(i) of Title 42 U.S.C.A., to-wit Title 10, Code of Federal Regulations, Part 112, by knowingly, wilfully and feloniously entering, attempting to enter, and conspiring to enter the danger area defined in the regulation during the continuation of the Hardtack test series, also as defined in said regulations, without the express approval of the appropriate officials of the Atomic Energy Commission, in violation of Title 42 U.S.C.A. § 2273.²

Trial was had before a jury, which returned a verdict finding the defendant guilty of the offense charged in the information. The trial court committed the defendant to the custody of the Attorney General for imprisonment for a period of two years, directing that the defendant be confined in a jail-type institution for a period of six months and that the execution of the remainder of the sentence be suspended, that the defendant be placed on probation for such period on the usual terms and conditions of probation.

On this appeal appellant contends:

1. That the Atomic Energy Commission was not authorized to issue the regulation.

2. That the section purporting to authorize the issuance of the regulation is too vague and indefinite to satisfy the Constitutional requirements.

3. That the nuclear tests and the regulations under which appellant was convicted violate international commitments of the United States.

4. That appellant was deprived of rights guaranteed under the First and Fifth Amendments to the Constitution of the United States, under the regulation which restrains peaceable protest and freedom of movement, and which was adopted without the required notice and opportunity for hearing.

5. That appellant was denied his right under the Sixth Amendment to be defended by counsel of his own choice.

The record is clear that appellant attempted to dismiss his local counsel following the order of the district court refusing a continuance of the trial, which appellant sought in order to enable counsel from the mainland to represent him. The record is further clear that the appellant sought to represent himself at the trial, but the district court refused him the right to do so and insisted upon appellant's representation at the trial by the local counsel.

In our view the district court erred, in the circumstances of this case, by denying appellant the right to conduct his own defense.³ As this Court, speaking through Judge James Alger Fee, stated in Duke v. United States, 9 Cir., 255 F.2d 721, at page 724, certiorari denied 357 U.S. 920, 78 S.Ct....