U.S. v. Barrentine

• Citation: 591 F.2d 1069
• Decision Date: 22 March 1979
• Docket Number: No. 77-5763,77-5763
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Earl BARRENTINE, Pauline Crenshaw, Lillie Belle Griggs, Bobby Joe Lee, Olin Whitaker, Jr., a/k/a "Sugar Boy," Lucille Clark, Barbara Singleton Smith, Dean Rene Peters, Walter Richard Smith, Jr., a/k/a Bobby Smith, Dora Thomas, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1069

591 F.2d 1069

UNITED STATES of America, Plaintiff-Appellee, v. Jack Earl BARRENTINE, Pauline Crenshaw, Lillie Belle Griggs Bobby Joe Lee, Olin Whitaker, Jr., a/k/a "Sugar Boy," Lucille Clark, Barbara Singleton Smith, Dean Rene Peters Walter Richard Smith, Jr., a/k/a Bobby Smith, Dora Thomas Defendants-Appellants.

No. 77-5763.

United States Court of Appeals Fifth Circuit.

March 22, 1979.

Michael E. Garner, Columbus, Ga. (Court-appointed), Clark retained for Peters (Court-appointed for Barrentine, Clark, Crenshaw, Griggs, Lee & Whitaker only).

John A. Nuckolls, Atlanta, Ga., for Barbara Singleton Smith, and Walter Richard Smith.

Barry E. Teague, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court For the Middle District of Alabama.

Before MORGAN, RONEY and VANCE, Circuit Judges.

VANCE, Circuit Judge.

Eighteen individuals ¹ were indicted on three counts in the Middle District of Alabama on September 27, 1977. The first count charged a conspiracy under 18 U.S.C. § 371. It alleged that defendants conspired to transport gambling paraphernalia in interstate commerce in violation of 18 U.S.C. § 1953 and to conduct an illegal gambling business in violation of 18 U.S.C. § 1955. The second count charged defendants with operating an illegal gambling business in violation of 18 U.S.C. § 1955. Count three charged defendants with transporting gambling paraphernalia in interstate commerce in violation of 18 U.S.C. § 1953. Their trial commenced on October 31, 1977, and concluded on November 9, 1977. The jury returned the following verdicts: Walter Smith (also known as Bobby Smith), guilty of counts one, two, and three; Barbara Smith, guilty of counts one and two; Bobby Joe Lee, guilty of counts one, two, and three; Jack Earl Barrentine, guilty of counts one, two, and three; Dean Rene Peters, guilty of counts one, two and three; Lillie Belle Griggs, guilty of counts one and two; Pauline Crenshaw, guilty of counts one and two; Olin Whitaker, Jr., guilty of counts one and two; Lucille Clark, guilty of counts one and two; and Dora Thomas, guilty of counts one and two. ² The defendants received varying sentences ranging from five years probation to four years imprisonment. In the case of each defendant the court ordered that sentences to imprisonment under multiple counts should run concurrently. In addition Walter Smith was fined $10,000 on each of the three counts for a total of $30,000. The ten defendants listed above filed notices of appeal on November 17, 1977.

Walter and Barbara Smith present nine claims of error. Barrentine, Lee, Peters, Griggs, Crenshaw, Whitaker, and Clark present only three of the nine claims of error. ³ We have considered all nine claims and conclude that the appellants' convictions must be affirmed. We will discuss only those claims that present substantial questions.

I

Appellants, Barbara and Bobby Smith, complain that the trial court erred in failing to grant a continuance so that retained counsel of their choice could be present during trial. ⁴ They claim that this error violated their sixth amendment rights. ⁵ The United States maintains that the trial court did not abuse its discretion, particularly in view of the trial judge's warning to the Smiths that he would not continue the trial to resolve a conflict in the schedule of their newly retained counsel, Edward T. M. Garland, Esq.

The Smiths first became aware of the pending investigation and the likelihood of an indictment against them on June 16, 1977, when the government conducted a raid by executing several search warrants in Phenix City, Alabama, and Columbus, Georgia. One of the search warrants was executed by a search of the Smiths' residence. Almost immediately Bobby Smith engaged his usual attorney, Frank K. Martin, Esq., to represent him.

During the month of July 1977 Mr. Martin had a conversation with the United States Attorney regarding Bobby Smith and a possible deal, which would avoid his indictment. Mr. Martin was advised before the grand jury met, however, that there would be no plea bargain and that the United States would seek an indictment.

On September 27, 1977, the appellants were indicted. The Smiths were informed of the indictment on September 29. They appeared initially on October 3, 1977, before a United States magistrate and were released on bond. On Mr. Martin's recommendation the Smiths retained Garland on October 1, 1977. Garland appeared on behalf of the Smiths at the arraignment on October 7, 1977.

On October 12, 1977, the Smiths and Garland were notified that trial was set for October 31, 1977. By that time both Garland and the Smiths were aware that the trial might conflict with another trial on Garland's schedule. On the same day Garland, together with the Smiths, prepared a motion for continuance and attached the affidavit of Bobby Smith requesting that only Garland represent him. This motion was filed on October 14, 1977, but was denied on October 18, 1977. On that day the court also ordered that other pending motions be heard on October 20, 1977. ⁶

During this oral hearing Garland renewed his motion for continuance, and, in the presence of the Smiths, the following colloquy between the court and Garland occurred:

MR. GARLAND: . . . Your Honor knows of my third ground which is the potential conflict, although the government's case over there is cracking a little bit and I may very well finish that in time to be present.

THE COURT: I would hope so. You make arrangements to have someone here if you can't be here.

MR. GARLAND: Your Honor, my client won't accept that.

THE COURT: Well, I can't let your clients run my office and my calendar by selection of an attorney who is too busy to accept his case. Now, when you accept a case in my court you have a responsibility to my court to be here.

MR. GARLAND: Yes, sir, and we have a conflict in rights there I believe.

THE COURT: Well, you can decide your own conflicts, I am not going to decide it. But I will decide that your client can't have a conflict in his attorney's rights which will delay the action of this court.

MR. GARLAND: I understand, Your Honor. I am advising the client of his rights in that respect and I don't want that issue hadn't been I don't want to draw blood on that issue at this point.

THE COURT: Well, we will be ready to draw it whenever you are ready.

MR. GARLAND: Yes, Sir, it just doesn't seem like it is necessary yet.

The court and Garland discussed the situation again at the end of the hearing.

MR. GARLAND: Your Honor, speaking of again Monday, October 31. Would Your Honor consider beginning Nov. 7?

THE COURT: No, sir, my calendar is loaded. I couldn't fit this case in.

MR. GARLAND: . . . I, as you know, have a problem. The case I am in I think is going to end about Tuesday, November the 1st, and I want to be here and I want to try this case, but with Your Honor going out of town, that's a problem; there isn't one case that can be slipped around to October 31 and let this one start November 7? I think I will be through.

THE COURT: There isn't because I am starting another docket in a different place, as I recall it, on the 7th.

We particularly note that the Smiths were present throughout these discussions and must have been fully aware of the court's position.

Apparently the Smiths did nothing to remedy their situation between October 20 and October 31, 1977, in spite of the court's clear statement of its position. On October 31, 1977, John A. Nuckolls, Esq., a member of Garland's firm, was present. ⁷ He advised the court that Garland was engaged in another trial and would not be available for the Smiths' trial.

As a result of this predicament the following discussion took place on October 31, 1977, the morning of the trial:

THE COURT: All right. Well, I told Mr. Garland when he was here last that it is the practice of this court that attorneys should not except (sic) retainers to practice in this court unless they plan to abide by the settings that this court makes, and Mr. Garland had an opportunity to do that. He was told that, he knew of my practice, and he is not here, and I am appointing you to represent Mr. and Mrs. Smith and we will go to trial unless the United States attorney has another suggestion.

MR. SMITH: Your Honor, may I address the Court, please?

THE COURT: Yes, sir.

MR. SMITH: Mr. Nuckolls, I do not even know him. I met him once before this morning. He is not familiar with my case. I have already retained Mr. Garland and it is my contention that the government says I am the one out of the whole bunch of conspiracy that they want the most; that was the reason I went to Mr. Garland, on referral from other attorneys. He has been well paid, I am sorry he is not here. I have no intention to try to delay this trial.

THE COURT: Mr. Smith, I am doing all of the criminal work for the Middle District of Alabama now. I cannot have lawyers set the terms of my court to suit themselves. I explained that to Mr. Garland, he accepted your money, he accepted your case on that basis, and for him to come in on the day of the trial when we have put everything else off to take care of your trial, is inexcusable, and the case will not be continued, we will go to trial. If Mr. Garland gets here he can participate, if he can't Mr. Nuckolls will represent you. You are entitled to a lawyer. You are entitled to have Mr. Garland acquaint his partner, or whomever may sit for him, with your case, but you are not entitled to continue the case simply because Mr. Garland gets himself so involved that he can't be in this court.

MR. SMITH: Yes, thank you.

The disposition of motions for continuance is vested in the sound discretion of the trial court. Its ruling will not be disturbed on appeal, except upon a clear showing of abuse of its discretion. Avery v. Alabama,308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v....