U.S. v. Decoster

Decision Date19 October 1976
Docket NumberNo. 72-1283,72-1283
Citation624 F.2d 196,199 U.S.App.D.C. 359
PartiesUNITED STATES of America v. Willie DECOSTER, Jr., (Decoster III), Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Calvin Davison, Washington, D. C. (appointed by this Court), for appellant.

Earl J. Silbert, U. S. Atty., Washington, D. C., at the time of oral argument, with whom Carl S. Rauh, Principal Asst. U. S. Atty., Henry F. Greene, Executive Asst. U. S. Atty., and John A. Terry and Larry C. Willey, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

John Townsend Rich and Mark W. Foster, Washington, D. C., were on the brief for amicus curiae Division V of the District of Columbia Bar.

Leon E. Irish, Washington, D. C., was on the brief for amicus curiae Division IV of the District of Columbia Bar.

Robert J. Paul, Washington, D. C., was on the brief for amicus curiae National Legal Aid and Defender Association.

On Petition for Rehearing En Banc *


Opinion in which McGOWAN, TAMM, and WILKEY, Circuit Judges, join filed by LEVENTHAL, Circuit Judge.

Opinion in which TAMM and ROBB, Circuit Judges, join filed by MacKINNON, Circuit Judge.

Opinion concurring in the result filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

Dissenting opinion in which J. SKELLY WRIGHT, Chief Judge, joins filed by BAZELON, Circuit Judge.

Statement in which BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges, join filed by J. SKELLY WRIGHT, Chief Judge.

LEVENTHAL, Circuit Judge, who is joined in this opinion by McGOWAN, TAMM and WILKEY, Circuit Judges:

This case gives the court en banc the opportunity to present its views on the requirement of effective assistance of counsel in criminal prosecutions, with principal focus on the duty of counsel to make due investigation prior to trial. We conclude that appellant has not made the showing requisite for reversal of his conviction.

A. Proof at Trial

At trial, Roger Crump, a soldier, testified that he was accosted by three men at about 6 p. m. on May 29, 1970, on the sidewalk at 8th and K Streets, N.W., near the parking lot of the Golden Gate Bar. He was yoked from behind by one man, threatened with a razor by another, while a third rifled his pockets and took his wallet which contained over $100 in cash.

Two plainclothes policemen cruising in an unmarked car saw the robbery in progress, alighted and gave chase. One officer followed the man later identified as Fred Eley. Officer Box testified that he followed appellant Decoster whom he identified as the robber who went through Crump's pockets from the scene to and into the D.C. Annex Hotel, found him at the lobby desk and arrested him. He testified that the chase lasted two to three minutes, that he did not lose sight of appellant and that Crump, who had been following along, immediately identified Decoster as one of the robbers. Crump was unable to identify Decoster at trial, because in the meanwhile his sight had been impaired in an accident, but he testified that he had been positive of his identification when he made it in the hotel. A search of appellant's pockets did not turn up any money, and the wallet was never recovered.

Appellant testified he had met and had a few drinks with Crump at the Golden Gate Club bar, but had left Crump in the bar, walked back to the hotel about a block away, and was getting his key from the desk clerk when he was arrested.

The defense called Eley. He (as well as the other codefendant, Taylor) had already pleaded guilty at a time when Decoster, having jumped bail, was a fugitive from justice. Eley corroborated that Decoster had met Crump in the bar (a point on which Crump was unsure). However, he also testified that he had seen appellant fighting with Crump in the parking lot across from the bar and as to this contradicted appellant.

Decoster's conviction for aiding and abetting an armed robbery, which resulted in a 2-8 year sentence, is on appeal to this court.

B. Subsequent Proceedings

When the appeal was first before this court, the panel, while rejecting the contentions presented by appellate counsel, remanded for a hearing on the issue of ineffective assistance of counsel, an issue that it raised sua sponte and directed be presented to the district court on motion for a new trial. 1 The panel ruled that a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Giving content to this standard, the panel adopted duties owed by counsel to his client derived in large part from the guidelines for the defense function promulgated by the American Bar Association Project on Standards for Criminal Justice. 2 The panel then held that once the appellant had shown a substantial violation of a duty owed to him by counsel, the burden was on the government to demonstrate lack of prejudice.

Pursuant to the remand, the motion for new trial was filed November 1, 1973. In February, 1974, District Judge Joseph Waddy held three days of supplementary hearings on the adequacy of trial counsel. On April 23, 1975, with findings of fact and conclusions of law, he entered an order denying the motion for a new trial.

On October 19, 1976, the panel of this court, one member dissenting, reversed the judgment of conviction, holding that appellant had been denied the effective assistance of counsel. Essentially, the panel opinion (referred to as Decoster II ) concluded that trial counsel had violated his duty to conduct a factual investigation. On March 17, 1977, the court granted the government's motion for rehearing en banc, vacated the panel opinion, and provided for supplemental briefs and oral argument.

C. Guiding Principles

The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense." In giving content to this provision, the courts have recognized the need for differing approaches depending on the nature of the particular claim of denial of assistance in each case. These differences stem from the courts' perceptions of the exactness with which a denial can be identified and remedied, as well as their views of the need for a showing of prejudice.

The cases present a continuum. At one end are cases of structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee. The most obvious example is, of course, the failure of the state to provide any counsel whatever. The Supreme Court long ago held that the Sixth Amendment requires that the federal courts provide counsel for indigent defendants charged with felonies under federal law. 3 As to the states, the Court first defined the right to counsel as an aspect of a fair trial, 4 with the eventual result that the right was restricted to less than that provided in the federal courts. 5 Gideon 6 made the Sixth Amendment applicable to the states by incorporation into the Fourteenth Amendment. Today the Sixth Amendment requires that counsel be provided not only in all felony prosecutions, 7 but also in all prosecutions for misdemeanors that result in imprisonment. 8

The right to have counsel provided is so fundamental that, like the admission in evidence of a coerced confession, 9 or trial before an interested judge, 10 the violation of the constitutional right mandates reversal "even if no particular prejudice is shown and even if the defendant was clearly guilty." 11 In this area, the doctrine applied is more stringent than that applicable to most denials of constitutional rights permitting affirmance when the government shows beyond a reasonable doubt that the violation did not affect the conviction. 12

"Effective" assistance of counsel 13 is denied by a statute that, while permitting a defendant to make an unsworn statement, bars the defendant from having his testimony elicited by counsel through direct examination; 14 by a statute that restricts counsel in deciding when to put the defendant on the stand; 15 by a statute that gives the judge in a non-jury trial the power to deny defense counsel closing summation; 16 and by a trial court order directing a defendant not to consult with his attorney during an overnight recess that falls between direct and cross examination. 17 These state-created procedures impair the accused's enjoyment of the Sixth Amendment guarantee by disabling his counsel from fully assisting and representing him. Because these impediments constitute direct state interference with the exercise of a fundamental right, and because they are susceptible to easy correction by prophylactic rules, a categorical approach is appropriate.

A less clearcut rule emerges from the cases on multiple representation. The principle is stated categorically to require an attorney to represent co-defendants whose interests may conflict denies the right to effective assistance of counsel. 18 No showing of prejudice is necessary. However, because there is no absolute requirement that every defendant have his own attorney, 19 the application of the rule requires some factual analysis to determine whether divergent interests that justify separate counsel may in fact exist. The factual analysis will not be exhaustive. As the Supreme Court has recently indicated, the courts must rely, by and large, on the representations of defense counsel that potential conflicts exist, since a thorough scrutiny might require the attorney to reveal the confidences of his client. 20

The problem of late appointment moves us farther along the continuum. The Supreme Court has long recognized that sufficient time to prepare a defense is a vital element of effective assistance. 21 Late appointment...

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