Tobin v. United States

• Decision Date: 29 October 1968
• Docket Number: No. 16964.,16964.
• Citation: 402 F.2d 307
• Parties: Daniel TOBIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.2d 307 (1968)

Daniel TOBIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 16964.

United States Court of Appeals Seventh Circuit.

October 29, 1968.

John J. Cleary, Chicago, Ill., Daniel Tobin, in pro. per., for plaintiff-appellant.

Richard E. Eagleton, U. S. Atty., Springfield, Ill., for defendant-appellee.

Before CASTLE, Chief Judge, DUFFY, Senior Circuit Judge and CUMMINGS, Circuit Judge.

DUFFY, Senior Circuit Judge.

Plaintiff Tobin, twenty-four years of age, was found guilty of transporting a woman in interstate commerce for immoral purposes. 18 U.S.C. § 2421. He was sentenced for a term of four years.

Tobin wrote a letter to the District Judge in the form of a motion to vacate the judgment of conviction (28 U.S.C. § 2255). The motion was denied. Leave was given to appeal to this Court in forma pauperis, and counsel was appointed to represent the plaintiff on this appeal.

On May 22, 1967, plaintiff appeared before District Judge Poos in Springfield, Illinois, for arraignment. Plaintiff indicated his preference to have his own lawyer rather than one appointed by the Court. Plaintiff was released on an appearance bond of $5,000. He told the Court he wanted to enter a plea of not guilty. The Court said: "You do not desire to have the court appoint an attorney for you?" and Tobin answered "No, sir."

About seven and a half months later, in Peoria, Illinois, the case was called for trial by jury before District Judge Robert D. Morgan. Tobin informed the Court he was unable to employ private counsel; that the attorney contacted by him demanded a $1500 payment in advance and that he did not have sufficient funds to hire him. He told the Court he and his parents had tried up to the last minute to obtain counsel but all were unsuccessful.

The trial judge advised plaintiff about the penalties for perjury and conducted a searching inquiry as to Tobin's financial ability. Plaintiff had no job. His wife worked and earned $47 a week. Tobin had no property except $22 on hand.

Assistant United States Attorney Hatcher informed the Court that he had witnesses present in court who had come from a distance, and urged that a trial be had on that date. The Judge stated he would grant the motion of the Government to proceed with the trial.

Out of the presence of the jury, the Court informed plaintiff that he plaintiff would be given the opportunity to present questions touching on the qualifications of the jurors, to make an opening statement, to present instructions to the Court, to cross examine witnesses, to testify in his own behalf and to make a final statement.

The Judge, plaintiff and others returned to the courtroom and, in the presence of the prospective jurors, the following colloquy occurred:

"MR. HATCHER: Your Honor, I have had a conversation with the defendant, and he has indicated he would like to approach the bench.

"THE COURT: I will ask you, Mr. Tobin, to speak up so the reporter can hear what you say. If it will help, you can stand over here a little closer.

"DEFENDANT: I want to plead guilty."

The Court then told the plaintiff he had the right to a trial by jury and asked him if any threats or promises were made to him to induce him to change his plea. The plaintiff answered "No." The Court then stated the possible penalties for the offenses charged.

At this time, the Assistant United States Attorney stated: "Your Honor, if I might interject for a moment, the Government would hereby move to dismiss Count 2 of the indictment." The motion to dismiss Count 2 was granted. The case was referred to a Probation Officer for a pre-sentence investigation.

After the Assistant United States Attorney had made his recommendation as to the sentence, the following occurred:

"MR. HATCHER: * * * For the record perhaps I should say at this time we would recommend a sentence in this case when the time comes.

"THE COURT: All right. I will make a note of that, unless you wish to make the recommendation at this time so neither one of us forget it.

"MR. HATCHER: The Government would recommend a sentence of two years in prison, your Honor, on the one count of the indictment."

In a criminal case, the defendant is entitled to be notified of his rights which include the assistance of counsel at every critical stage of a criminal proceeding. Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733; Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S. Ct. 157, 7 L.Ed.2d 114, Rule 44(a), Federal Rules of Criminal Procedure.

A trial court must see to it that a defendant has the assistance of counsel unless he intelligently and understandingly waives the appointment of counsel. Spanbauer v. Burke, 7 Cir., 374 F.2d 67, cert. den. 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1966); United States v. Barney, 371 F.2d 166, cert. den. 387...