U.S. v. Golub, 79-1577

• Decision Date: 17 November 1980
• Docket Number: No. 79-1577,79-1577
• Citation: 638 F.2d 185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D. GOLUB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 185

638 F.2d 185

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. GOLUB, Defendant-Appellant.

No. 79-1577.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Sept. 16, 1980.

Decided Nov. 17, 1980.

Daniel R. Christopher, Asst. U.S. Atty., Denver., Colo. (Joseph F. Dolan, U.S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Thomas A. Wallace, Denver, Colo., for defendant-appellant.

Before BARRETT and DOYLE, Circuit Judges, and TEMPLAR, ^* District Judge.

WILLIAM E. DOYLE, Circuit Judge.

The defendant herein was charged in an eight count indictment with violation of the mail fraud statute, 18 U.S.C. 1341, and with the transportation of money obtained by fraud in violation of 18 U.S.C. 2314. The government dismissed two of the charges and defendant was found guilty of the remaining six. The trial court sentenced the defendant to five years in prison on each of the six counts, to run concurrently.

The appeal on his behalf is by a lawyer who entered his appearance in order to handle the appeal.

The indictment was returned on February 14, 1979. Arraignment took place on February 24, 1979. On March 7, 1979, the cause was set for trial commencing the week of April 16, 1979. Counsel appeared with the defendant at the arraignment.

On March 30, 1979, defendant-appellant's then counsel moved to withdraw from the case. The motion stated several reasons for the effort to withdraw. In essence these reasons were that the defendant had not cooperated with counsel in that he had failed to keep appointments, and, more importantly, that the defendant had failed to abide by the fee agreements made between him and counsel, and that the defendant had misled counsel as to his whereabouts.

On the basis of the showing made in his motion to withdraw, and the defendant's consent thereto, the court, on March 30, 1979, entered an order allowing counsel to withdraw. At that time the court advised appellant that no continuance would be granted and that trial would be had two weeks later, with or without counsel. ¹ It wasn't until April 11, 1979 that the lawyer who tried the case received the file from previous counsel. It contained the indictment and 200 pages of discovery information.

Sheldon Emeson, who was the uncle of the defendant, entered his appearance as counsel for the defendant after having first sought a continuance of the trial. He had called the trial judge on the long distance telephone and explained the situation, including the fact that he had just been asked to come into the case and was unable to try it unless he had some time. The trial judge advised Mr. Emeson that his oral request for a continuance was denied and that defendant had to go to trial as scheduled. It was after this that the case proceeded to trial on April 17, 1979. On April 20, 1979, after two days of deliberation, the jury found the defendant guilty on the counts indicated above.

Defendant's Contentions

The defendant assigns four grounds in support of his effort to obtain a reversal:

1. That he was denied the effective assistance of counsel.

2. That the jury was improperly instructed by the trial court.

3. That the evidence was insufficient to warrant a conviction.

4. That the sentence imposed was excessive.

We need only address the defendant's first point, that is, that he was denied the effective assistance of counsel. Since this point has merit, the other points need not be considered.

The Background Facts

The attorney who entered his appearance and tried the case, Mr. Emeson, has filed an The indictment described transactions which had occurred in the period from March 1, 1978 throughout the rest of that year. There were four witnesses residing in the State of Colorado, three from Texas, two from New York and one each from Oklahoma and Mississippi. The government's discovery consisted of over 200 pages of testimony.

affidavit with the court, in which he has acknowledged that his efforts on behalf of the defendant were inadequate. The affidavit states that the defendant, Mr. Golub, is Mr. Emeson's nephew by marriage. It further states that Mr. Emeson has practiced law exclusively in the Arkansas Valley since 1970, and has resided in Lamar, in Prowers County, Colorado, since that time. (The defendant is a resident of Colorado Springs, Colorado.) Mr. Emeson goes on to state that he first learned of the indictment on April 5, 1979. The defendant had not paid his previous attorney and lacked funds to obtain other counsel. It was due to the family relationship that Emeson sought to obtain a continuance of the trial set for the week of April 16, 1979, so as to allow the defendant to obtain other counsel or the services of the public defender. On April 9, 1979, according to Emeson, he placed a long distance telephone call to the trial judge with respect to the defendant's problem. The judge advised that the case would go to trial as scheduled whether the defendant had counsel or not. Emeson had planned to help the defendant obtain the services of a competent trial attorney, but he soon concluded that a responsible attorney would not accept the case on such short notice, and he agreed to represent the defendant at trial after considering the possible alternatives. Between April 9, 1979 and April 16, 1979, Emeson rearranged his own schedule, reviewed the discovery material provided by the government, studied the indictment, conferred with the defendant and researched the law and the procedures.

Emeson appeared at the trial on April 16, 1979, the appointed day. However, it was continued until the morning of April 17, 1979, at which time the jury was selected and recess was granted the government to arrange for the presence of witnesses. The testimony commenced on April 17, 1979. The government rested its case in mid-afternoon of the 17th, and the defendant presented testimony that day and on the following morning. Thereafter, a recess was taken to prepare instructions to be given to the jury. The cause was submitted to the jury in mid-afternoon of April 18, 1979, and the jury deliberated on that day, the next day, and until 4:45 p. m. of April 20, 1979.

In his affidavit, a copy of which is appended to this opinion, Emeson states that during the time available to him he was unable to interview witnesses and investigate their testimony, and was unable to prepare (learn about) evidence in favor of the defendant. The time was spent analyzing the transactions. Emeson further states he had not tried a criminal case in federal court for over twenty years, and was unable to prepare voir dire questions for the jury, outline witnesses' testimony for cross-examination, or prepare possible jury instructions. The conclusion of Mr. Emeson is "throughout the trial, and since the verdict, affiant feels that his attempt to represent the defendant was, for the reasons stated, unwise and legally ineffective."

Applicable Law

Until recently in this circuit the law was that in order to prove ineffective assistance of counsel, a defendant was required to show that the trial was a farce, a mockery of justice, shocking to the conscience of the court, or that the representation was in bad faith, a sham or pretense, or without adequate opportunity for conferences and preparation. Gillihan v. Rodriguez, 551 F.2d 1182, 1187 (10th Cir. 1977), cert. denied 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111; Johnson v. United States, 485 F.2d 240 (10th Cir. 1973). Our present standard requires only that the defendant show that the defense counsel did not exercise the skill, judgment and diligence of a reasonably competent attorney. Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. en banc 1980), cert. denied 445 U.S. 945, 100 S.Ct. 1342, 63 We need only conclude that the trial counsel's representation of defendant failed to meet the requirements of the Constitution and constituted a failure to exercise the reasonable skill and diligence of a reasonably competent defense lawyer. We need not measure the extent of the prejudice, or the extension of the lack of assistance of counsel. 624 F.2d 125.

L.Ed.2d 779 (1980); United States v. Porterfield, 624 F.2d 122, 124 (10th Cir. 1980). In Porterfield, supra, we held that it was not necessary that defendant show that he was prejudiced by the incompetence of his attorney. We there stated:

In the Porterfield case we examined the record which showed the attorney's actions in our effort to determine whether the defendant had been adequately represented.

The Third Circuit follows a standard similar to that which we have recognized. It has consistently looked to the record to determine whether the manner in which counsel proceeded was consistent with the established standard of adequate representation by a reasonably competent attorney. Moore v. U.S., 432 F.2d 730 (3d Cir. 1970); U.S. v. Varga, 449 F.2d 1280 (3d Cir. 1971); U.S. v. Hines, 470 F.2d 225 (3d Cir. 1972), cert. denied 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973); U.S. v. Davenport, 478 F.2d 203 (3d Cir. 1973).

The Law Applied to These Facts

In the present case the particular nature of the complaint is such that an examination of the attorney's conduct during the trial does not in itself reveal whether the claim of inadequate representation is justified. Unlike in the cases previously mentioned, the appellant does not point to any particularly glaring errors by the defense attorney. The claim of inadequate representation is based upon, first, the general lack of ability of Mr. Emeson in the field of criminal law, and, second, the lack of time available to Mr. Emeson to prepare for the case, taking into account its complexities, his lack of knowledge and skill in the area, and the unique circumstances.

The government calls attention to the fact that the record is inadequate in that no formal motion was made for a continuance; that not only was there failure to make an objection at the start of the trial, but that Emeson stated that d...