De Roche v. United States

• Decision Date: 25 September 1964
• Docket Number: No. 18793.,18793.
• Citation: 337 F.2d 606
• Parties: Dale DE ROCHE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

337 F.2d 606 (1964)

Dale DE ROCHE, Appellant, v. UNITED STATES of America, Appellee.

No. 18793.

United States Court of Appeals Ninth Circuit.

September 25, 1964.

Robert C. Huntley, Jr., Pocatello, Idaho, for appellant.

Sylvan A. Jeppesen, U. S. Atty., Robert E. Bakes, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before CHAMBERS, HAMLIN and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Dale De Roche appeals from a judgment convicting him of attempting to pass forged and counterfeit coins 18 U. S.C. § 485 as charged in Count I of a three-count information. He was acquitted on Count II, uttering and passing a counterfeit coin 18 U.S.C. § 485 and Count III, possessing a counterfeiting mold and die 18 U.S.C. § 487.

His first point is that the district court erred by refusing to grant a continuance; he claims he was thereby denied adequate time to prepare for trial, thus depriving him of his constitutional right to effective assistance of counsel.

It is of course true that the right conferred by the Sixth Amendment to effective assistance of counsel implicitly embraces adequate opportunity for the accused and his counsel to consult, advise and make such preparation for arraignment and trial as the facts of the case fairly demand. Maye v. Pescor, 162 F.2d 641, 643 (8th Cir. 1947). It is no less true that expeditious handling of the defendant's case providing him with a "speedy and public trial" is not a denial of constitutional rights. Eubanks v. United States, 336 F.2d 269 (9th Cir. Aug. 31, 1964). Requiring effective assistance of counsel obviously does not mean successful assistance is to be expected. Cf. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 789 (1958) cert. den. 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86. But clearly, time for preparation permitting merely a perfunctory appearance on behalf of the defendant fails to redeem the constitutional guarantee. Powell v. Alabama, 287 U.S. 45, at 58 and 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As we stated the test in Eubanks, supra, at page 270 of 336 F.2d, "What is a sufficient time in a particular case depends upon the circumstances, including the nature of the charge, the issues presented, counsel's familiarity with the applicable law and pertinent facts, and the availability of witnesses." And here, the record clearly shows no impairment of the right falling below constitutional standards. To the contrary, De Roche was acquitted on two of the three counts. Moreover, vigorous cross-examination of prosecution witnesses and familiarity with the controlling legal issues was displayed by defense counsel. The only real issue in the case, decisive of the ultimate question, was De Roche's knowledge (or lack of knowledge) as to the counterfeit nature of the coins. And De Roche himself was the source of most of the evidence on the issue. He admitted tendering the coins in question on two different occasions, but disclaimed any knowledge of their spurious nature. On the second occasion, he admitted that the coins were rejected by a shopkeeper who immediately detected their falsity. De Roche testified that he told the shopkeeper that he was going to take the coins back to where he said he had received them in change, but admitted that he had subsequently done nothing. He initially sought to explain this neglect by saying he had forgotten where he had received the coins; however, under cross-examination he related in detail the circumstances under which they came into his possession.

Thus, although counsel had something less than two days to prepare the case for trial, that fact alone, which in another case of greater complexity might operate to deprive the accused of his rights, does not do so here. As the Second Circuit said in a related context, "* * * Time consumed in oral...