Stein v. United States, 16309.

• Decision Date: 29 December 1959
• Docket Number: No. 16309.,16309.
• Parties: Fred STEIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

271 F.2d 895 (1959)

Fred STEIN, Appellant, v. UNITED STATES of America, Appellee.

No. 16309.

United States Court of Appeals Ninth Circuit.

November 16, 1959.

Rehearing Denied December 29, 1959.

William H. Neblett, E. W. Miller, Los Angeles, Cal., for appellant.

Gerald H. Gottleib, Reseda, Cal., A. L. Wirin, Los Angeles, Cal., amicus curiae.

Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin and Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, MARTIN and ORR, Circuit Judges.

ORR, Circuit Judge.

The principal question for determination in this case is whether appellant Stein at the trial in which he was convicted received the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. During the course of preliminaries to the actual trial, at least three lawyers of his own choosing appeared — a Mr. Weiss, a Mr. Sherman and a Mr. Sweeney. Of the three, Mr. Sweeney seems to have made more court appearances. Three continuances were granted. The last continuance was for a period from August 12th to September 16th. Mr. Sweeney was instrumental in securing the third continuance. On the day last set for trial, appellant and his counsel Sweeney appeared. They asked for a fourth continuance on the following grounds: that counsel was unprepared since he had learned only three days earlier that the trial would be held at such time; that there was a variance between the trial memorandum submitted by the government and the indictment; and that counsel was not in the right state of mind to adequately defend appellant because of certain charges which had recently been made against him. The court in the exercise of its discretion denied the motion for a fourth continuance.

The first ground is without merit. Mr. Sweeney was present at the time of the setting of the case when the third continuance was granted and one month elapsed between the third continuance and the time of trial. In disposing of the second ground, the trial court ruled that if there was a variance between trial memorandum and the indictment the proper remedy was to object when the government sought to introduce evidence on the points in question. We think the court was correct in this ruling. The ground most strenuously urged was the assertion by Mr. Sweeney that he was not mentally and physically able to adequately defend the appellant. In this connection, we quote the court proceedings in note 1.¹ The alleged mental and physical disability was asserted to be the result of publicity Mr. Sweeney had received in connection with his arrest on a narcotics charge. We find no abuse of discretion by the court in refusing the fourth application for a continuance. As to the question of whether Mr. Sweeney was in fact in a mental and physical condition to represent appellant, we as a reviewing court are privileged to view the question in the light of events subsequent to the ruling, which will be more fully developed later. After the denial of the continuance, the court proceeded to empanel the jury. Thereafter it was brought to the attention of the court that Mr. Weiss was the attorney of record for appellant and, understandably, it concerned itself with getting the record straightened out.² Appellants claim coercion. An analysis of what occurred convinces us that such a contention cannot be sustained. We are impressed by the evident fairness of the court in declaring a recess so that appellant and Mr. Sweeney could confer; its offer to have Mr. Weiss produced in court; and finally the statements of Mr. Sweeney after he and appellant had conferred privately. Sweeney stated to the court, among other things, "* * * I am going to represent this defendant * * * I think Mr. Stein is satisfied with my services thus far and is confident to have me continue." The court then questioned appellant:

"* * * I want to know from Mr. Stein who your lawyer is.

"The Defendant: Mr. Sweeney.

"The Court: Mr. Sweeney is your lawyer?

"The Defendant: Yes, sir."

We are left with the conviction that the sole purpose of injecting the alleged inability of Mr. Sweeney to conduct the trial was to secure a continuance.

The American Civil Liberties Union of Southern California has been permitted to file an amicus curiae brief. They make the contention that a conflict of interest existed between Mr. Sweeney and his client. If such were the fact, under the holding of the Supreme Court of the United States in Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, we would not search the record to determine the adequacy of the assistance of counsel received by appellant. But we are unable to find a conflict of interest. An examination of the cases discloses quite a different situation than we have here. See Glasser v. United States, supra, (one lawyer represented co-defendants whose interests conflicted); Craig v. United States, 6 Cir., 1954, 217 F.2d 355 (company counsel represented an employee and his employer whose interests conflicted); District of Columbia v. Scott, 1954, 94 U.S.App.D.C. 227, 214 F.2d 860 (defense lawyer on other occasions had represented witnesses who testified against defendant); Berry v. Gray, D.C.Ky.1957, 155 F.Supp. 494 (defense lawyer worked part time for prosecution in other cases). The somewhat eloquent argument of amicus curiae to our minds is more a further argument as to the alleged incapacity of Sweeney than a disclosure of adverse interest. No adverse interest appearing, we may turn to the record to determine the kind of defense appellant did get. Thomas v. United States, 9 Cir., 1958, 252 F.2d 182. See also Sanchez v. United States, 1 Cir., 1958, 256 F.2d 73; United States v. Yager, 7 Cir., 1955, 220 F.2d 795. Our consideration of the record leaves us with the same view expressed by the trial court, that "* * I know of nothing that any other or additional counsel could have done that you, Mr. Sweeney, didn't do in the protection of this defendant's rights. The case was tried skillfully and adroitly on behalf of defendant by you * * *" We ask the question, what defenses were open to a defendant where the witnesses were fellow law breakers other than to attack their credibility? Mr. Sweeney did this by an able cross-examination. In this examination he exhibited no terror. He was alert and prompt with objections and forceful in argument. Our experience as trial judges for many years, from which we cannot disassociate ourselves, convinces us that appellant received a better than average defense and that his interests were fully and expertly protected. Any misapprehensions that Mr. Sweeney may have had along these lines were unfounded.

Appellant attempts to point out certain instances in which Mr. Sweeney was remiss in his duty. Appellant says Sweeney must have been ignorant of Section 3500(b) of Title 18 U.S.C., or the case of Jencks v. United States., 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L. Ed.2d 1103, because he did not demand the production of government witnesses' pretrial statements. If he was ignorant of the right to make such a demand, it could not be because of his alleged frame of mind because of a pending indictment. It would have been due to a gap in his general education, which is not urged. Nor is it apparent. The presumption we indulge is that Sweeney was aware of the section but that the merits of his client's case did not require production of such statements. Appellant set up as a defense that he was in New York City at the time one of the offenses charged in the indictment is alleged to have taken place. Mr. Sweeney offered in evidence a letter from the manager of the hotel in which appellant stayed in New York only to corroborate testimony given by appellant's wife and daughter. The offer of the letter was rejected. Appellant now claims that had Sweeney been alert to his duty he would have foreseen the incompetency of the letter and made arrangements for a deposition. The taking of a deposition was completely unnecessary, however, as the original registration card, the best evidence, was in evidence.

It is said the evidence is insufficient to sustain the conviction. The credibility of the witnesses was for the jury. If they believed them, which they evidently did, the evidence is overwhelming. We encounter a tendency, not so much urged here, in cases where witnesses are of the same ilk as a defendant to charge the jury with a dereliction of duty in that they convict because of the characters involved. We are in entire disagreement with such a theory. We find that juries take their duties seriously and as a rule do a good job.

Judgment affirmed.

1 "Mr. Sweeney: * * * Thirdly, there is a question of the recent publicity which I have received in this affair over on the state side by my arrest on this — what was it, bribery incident — that was widely covered by radio, television and the newspapers, having been carried on the front page of the newspapers and being discussed over television as well as over the radio.

"Mr. Stein came to me and asked me, did I feel in light of all that had recently happened, was I in the proper mental attitude to represent him, and I informed him that I was not.

"I felt that because of the nature of this kind of charge and the publicity that this case might get, it might materially affect any defense that I might have as to my action if I were to be connected in any way to any sort of situation like that.

"The Court: That occurred several weeks ago?

"Mr. Sweeney: It occurred two weeks ago.

"The Court: It occurred long enough ago that some change in counsel should have been made by this time.

"What is your position concerning this, Mrs. Bulgrin?

"Mrs. Bulgrin: Your Honor, we strenuously urge that the case go to trial. It has been pending a long time.

"The Court: It has been pending since March 4th?

"Mrs. Bulgrin: Yes.

"The Court: This will be the fourth continuance. * * * I don't think there is...