Spevak v. United States

• Decision Date: 17 February 1947
• Docket Number: No. 5506.,5506.
• Citation: 158 F.2d 594
• Parties: SPEVAK et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

158 F.2d 594 (1946)

SPEVAK et al. v. UNITED STATES.

No. 5506.

Circuit Court of Appeals, Fourth Circuit.

December 6, 1946.

Writ of Certiorari Denied February 17, 1947.

Norman S. Bowles, Jr., and Jesse H. Chessin, both of Washington, D. C. (Edward A. Schaub, of Baltimore, Md., on the brief), for appellants.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges

Writ of Certiorari Denied February 17, 1947. See 67 S.Ct. 771.

PARKER, Circuit Judge.

This is an appeal from a conviction and sentence for violation of section 4 of the Emergency Price Control Act of 1942 as amended. 50 U.S.C.A.Appendix, § 901 et seq. The appellants were convicted under thirty-one counts of an information containing forty counts, each of which charged the selling of meat at prices in excess of ceiling prices. They were acquitted under four counts and the charges contained in the other five were withdrawn. A number of questions are raised on appeal but only four are of sufficient substance to justify discussion. These are: (1) Whether there was error in refusing to continue the case and requiring appellants to proceed to trial despite their contention that they were without counsel; (2) whether there was error in admitting in evidence photostatic copies of invoices which the defendants had furnished to government agents; (3) whether the judge erred in not charging on the presumption of innocence, when no charge on that subject had been requested and he had fully covered the doctrine of reasonable doubt; and (4) whether there was prejudicial error in admitting in evidence a report of the Federal Bureau of Investigation in corroboration of a witness who had denied the charge that he had solicited a bribe from one of the defendants. We think that all of these questions should be answered in the negative.

The principal question raised by the appeal relates to the action of the court in ordering the case to trial in face of the contention by defendants that they could not secure counsel to represent them. The right of persons charged with crime to be represented by counsel and the duty of the court to afford their counsel fair opportunity to prepare for trial is, of course, too well settled to admit of argument. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830. It is equally well settled, however, that the right to counsel is one which may be waived. Johnson v. Zerbst, supra; Cundiff v. Nicholson, 4 Cir., 107 F.2d 162. It seems clear that an accused who is able to employ counsel and fails to do so after being afforded opportunity, thereby waives the right and may not urge lack of counsel as excuse for delay. This is recognized by rule 44 of the Federal Rules of Criminal Procedure, 18 U.S. C.A. following section 687, which provides: "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." This rule was intended to be a mere codification of what had already been established by the federal decisions. See Holtzoff, 20 N.Y. U.L.Q.R. 1.

It appears from the record before us that appellants were amply able to employ counsel. In fact they admit in their brief that they had expended $20,000 in employing counsel for various services, many of which the record shows to have been dilatory in character. They were given ample time to secure counsel and prepare for trial. The charges against them were of a simple character, viz., invoicing meat at ceiling prices and exacting a charge in excess of the invoice, each of the counts merely charging a separate transaction of this sort; and there is no reason why counsel could not have been secured and could not have prepared themselves to try the case on a few days' notice. Appellants had, in fact, more than a year to get ready; and the record amply supports the view, taken by the judge below in denying further continuance, that they were merely trifling with the court.

Appellants were first indicted in April 1945. They were arraigned on November 13, 1945, and were given until November 30th to file motions and obtain trial counsel, as the counsel then representing them professed inability to try a criminal case. They consulted a Washington attorney, who was engaged at the time in the trial of another case and who requested a postponement of their case for that reason with the result that a postponement of three weeks was granted. Later this attorney advised appellants that because of other engagements he could not undertake their defense. Nothing further was done in the case until May 31, 1946, when an information was filed containing counts selected from the original indictment and appellants were duly notified that the case would be tried on June 10th. On June 6th another attorney who had been consulted by appellants asked continuance on the ground that he had been employed by a Congressional committee and could not appear in the case; and a continuance was granted until June 18th. On that date two attorneys appeared for appellants and made a motion for a stay pending an appeal to the Emergency Court of Appeals, and a request was made by the attorney who obtained the former continuance for another continuance in order to enable appellants to employ trial counsel and was argued by these attorneys; but when these motions were denied they asked to withdraw from the case on the ground that they did not consider themselves competent to try a criminal case and had not been employed for that purpose. The motion for further continuance was denied and appellants were notified that the case would go to trial next day and that they would have to obtain counsel to try it for them or try it themselves. Counsel appeared for them in selecting the jury, in moving for a new trial and in taking, perfecting and arguing their appeal but not in trying the case before the jury. The record shows, however, that they were given full opportunity to present their defense and that their rights were carefully safeguarded by the trial judge.

Whether or not a continuance should have been granted was a matter resting in the sound discretion of the trial judge; and under the circumstances of the case there appears to have been no abuse of the discretion. See Baker v. United States, 4 Cir., 21 F.2d 903; Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229. The case was a simple one; and it was absurd for appellants to contend that they could not obtain competent counsel to represent them on the trial. They found no difficulty in securing counsel to aid them in their various attempts to delay the proceedings; and the expenditure of much less than the $20,000 which they paid to these counsel would without doubt have secured the services of one of the many competent practitioners in the criminal courts of Baltimore.

On the second question, it appears that the photostatic copies of invoices introduced in evidence were made from copies of invoices voluntarily furnished by appellants to an OPA official. Under the Emergency Price Control Act the Administrator is authorized to require any person engaged in the business of dealing in any commodity to furnish information to him and to make and keep such records as he deems proper for his assistance in prescribing regulations and administering and enforcing the act, and he may require any such person to permit the inspection and copying of records...