U.S. v. Davis

• Decision Date: 03 August 1979
• Docket Number: Nos. 78-2535,79-1157 and 79-1207,s. 78-2535
• Citation: 604 F.2d 474
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie L. DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 474

604 F.2d 474

UNITED STATES of America, Plaintiff-Appellee, v. Willie L. DAVIS, Defendant-Appellant.

Nos. 78-2535, 79-1157 and 79-1207.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 1979.

Decided Aug. 3, 1979.

Sarah Furey Crandall, Madison, Wis., for defendant-appellant.

Joan F. Kessler, U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before PELL, Circuit Judge, GEWIN, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

The defendant-appellant, Willie L. Davis, was convicted of interference with commerce by extortion in violation of 18 U.S.C. § 1951, and armed robbery of a bank in violation of 18 U.S.C. § 2113, by a jury on October 17, 1978, and sentenced to a total of forty-five years imprisonment. In these consolidated appeals from the judgment of conviction, the denial of his motion for a new trial, and the dismissal of his section 2255 petition, he alleges a variety of errors all stemming, at least in part, from difficulties that developed between him and his several attorneys prior to trial. We affirm.

I.

On the evening of June 14, 1978, the family of Richard Ziebell was taken captive in their home by three armed intruders. The intruders demanded that Ziebell, the branch manager of the Great Midwest Savings and Loan, go to the bank and turn over all its money. He was told that if he failed to cooperate, his family would be injected with "enough heroin . . . to kill five horses . . . and they would die a terrible death." Several syringes and some brown powder were exhibited to Mr. Ziebell to impress upon him the seriousness of the threat. He complied with the intruders' demands.

The defendant was arrested on June 26 and appeared at a bail hearing with Attorney Crandall the following day. The defendant was found to be indigent and an attorney was appointed to represent him. The magistrate, however, declined to appoint Crandall despite her willingness to accept appointment. The defendant's appointed counsel was soon relieved of his duties apparently because the defendant's family retained another attorney Mr. Alan Eisenberg to handle the case. The record shows that the second attorney filed several motions on the defendant's behalf, but on September 8 just ten days before the day set for trial the defendant became dissatisfied with Mr. Eisenberg's representation and requested that the trial court appoint new counsel. The defendant requested the appointment of Attorney Crandall, or barring that, one of several other Wisconsin attorneys.

Judge Reynolds held a hearing upon the defendant's written request on September 12. ¹ The defendant there accused his attorney of incompetence. The attorney represented to the court that the defendant's allegations created a conflict of interest and requested that the court grant the request for new counsel. The government had no objection. The trial court granted the request, but declined to appoint any of the attorneys that the defendant had requested. Instead, the trial judge appointed Richard Reilly, an attorney who the judge regarded as one of the eminent criminal lawyers in the Milwaukee area.

The appointment of new counsel, however, did not cease the defendant's complaints about the quality of his legal representation. Less than two weeks after Mr. Reilly's appointment, the defendant requested that Judge Reynolds recuse himself and that Reilly be dismissed and Crandall be appointed as his attorney. Judge Reynolds honored the defendant's first request, and Judge Gordon, after the transfer of the case to his docket, honored, in part, the second. The defendant had complained of a personality conflict with his latest attorney, and, although Judge Gordon later remarked that he regarded the defendant's complaint as specious, on September 28 he accommodated him by dismissing Mr. Reilly and appointing yet another attorney. Judge Gordon, however, declined to appoint Crandall as the defendant had requested.

The new attorney, Mr. Perlson, did not learn of his appointment until October 3 and first interviewed his new client on the 6th. In the meantime, the defendant had mailed to the district court a motion to postpone his trial and sundry other motions as well as a renewal of his request for the appointment of Crandall as his attorney. In one of the communications he expressed his desire to represent himself if Crandall were not appointed. After his first meeting with Mr. Perlson, it took the defendant only four days to become dissatisfied once again with the quality of the legal representation on his behalf and to request the court to dismiss his latest attorney and replace him with Crandall. No other defense motion appears in the record until the day scheduled for trial. ²

On the day of the trial, the defendant's attorney requested a continuance. The request was denied. The court then suggested that defense counsel might withdraw, leaving the defendant to handle his own case, and the attorney did so. The trial judge then adjourned the matter until that afternoon.

In the afternoon the matter of the defendant's legal representation was reexamined. It appeared that in the morning, the defendant handed a letter to Mr. Perlson and the U. S. Attorney. The defendant in his letter accused his latest attorney of incompetence and asked for a continuance. The court and the appointed attorney had apparently been unaware of the contents of the document that morning. In spite of the defendant's allegations, the appointed counsel stated that he was willing to represent the defendant or to assist in his self-representation, with the defendant's consent. The court then discussed the subject with the defendant. The defendant upon examination by the court made it clear that he did not want Mr. Perlson to continue to represent him and did not even want Mr. Perlson's aid in conducting his own defense. The colloquy on the record also establishes that the defendant understood that no continuance would be granted and no new counsel would be appointed:

DEFENDANT: . . . Mr. Perlson have withdrawn, and now you tell him to come back and be my side attorney to guide me into this trial. I don't want Mr. Perlson to be my attorney, and I want the record to show that.

COURT: All right. You understand that I will not appoint any other lawyer.

DEFENDANT: I understand that.

COURT: And that we are still going to go to trial today?

DEFENDANT: Right. I also would like for the record to show that I haven't got an attorney to represent me in this matter because I don't have any knowledge of the law or understanding of it in this case, 78-CR-74, and I, Willie Davis, as Defendant in this matter have no understanding about none of the proceedings that's going on here.

COURT: . . .

If what you said is true, namely, that you are not legally trained, that's why I offer you the benefit of a lawyer's assistance. Now you are going to be free to try the case yourself if you want to, rather than have Mr. Perlson do it; although, it's not too late to ask him to proceed, if that's your wish.

But, in any event, it seems to me advisable that you accept Mr. Perlson's assistance, even though you are the trial you are in charge of the trial. You'd have somebody to talk to, somebody to give you counsel and guidance.

Do you decline that?

DEFENDANT: I do.

COURT: All right. That's your privilege.

DEFENDANT: Are you going to give me enough time to appeal your decision?

COURT: No. We are proceeding to trial. Today is the trial date. I denied Mr. Perlson's application for adjournment. We are going to proceed to select the jury, and you are going to be obliged to conform to the requirements of the law, as to how the trial is conducted.

DEFENDANT: Your Honor, isn't it one of my rights to appeal your decision if you do not

COURT: When the case is over, I believe that you have such right. You also have the right, as you already have known from Mr. Perlson's statement, to seek interim relief from the Court of Appeals, but that, according to Mr. Perlson, has been denied.

Now I strongly urge you to accept the benefit of legal guidance, but if it's your wish not to have the assistance of an attorney, that's up to you.

I repeat: I can't appoint another lawyer for you. There have been two or three lawyers appointed already in your case. Mr. Perlson has at least had the benefit of several weeks preparation time; a new lawyer would not even have had that.

Now you have come to the end of the line as far as the court appointment of lawyers is concerned at least in this court.

So, for the last time at least I think it will be the last time I will ask you now whether you want to accept some assistance from Mr. Perlson.

DEFENDANT: I decline.

The defendant having declined all assistance, the case proceeded to trial. The defendant also declined to participate in the trial, refusing either to cross-examine the government's witnesses or to present any defense. He was convicted by the jury on both counts the following day. He now raises on direct appeal several arguments which to some extent overlap with one another but which we shall attempt to examine separately. His major arguments are that:

1) the trial court arbitrarily declined to appoint counsel of his choice;

2) the trial court abused its discretion in denying a continuance on the morning of the trial; and

3) the record does not adequately support the trial court's finding that he waived his right to counsel.

In the other appeals, he maintains that the trial court abused its discretion in denying his post-trial motion for a new trial on the basis of newly discovered evidence and erred in dismissing his section 2255 motion for collateral relief.

II.

Much of the controversy before this court finds its source in the defendant's insistence that Attorney Crandall be appointed as his counsel. Consequently, we examine first his argument that the trial court arbitrarily declined to appoint the attorney...