U.S. v. Hallock, 90-2099

• Decision Date: 06 March 1991
• Docket Number: No. 90-2099,90-2099
• Citation: 941 F.2d 36
• Parties: UNITED STATES of America, Appellee, v. Carl HALLOCK, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 36

941 F.2d 36

UNITED STATES of America, Appellee, v. Carl HALLOCK, Defendant, Appellant.

No. 90-2099.

United States Court of Appeals, First Circuit.

Heard March 6, 1991.

Decided Aug. 6, 1991.

Richard Abbott with whom Jeffrey A. Denner and Denner & Associates were on brief, Newton, Mass., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., were on brief, Portland, Me., for U.S.

Before CAMPBELL, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Carl Hallock appeals from his August 14, 1990 conviction after a jury trial in the district court for conspiracy and possession of cocaine with intent to distribute. Hallock alleges errors in the pretrial proceedings and at trial and claims that, at different stages in the prosecution, he was denied both the right to effective assistance of counsel and the right to counsel of choice. We reject the claims of error, decline to consider the ineffective assistance of counsel claim, and find that defendant waived the counsel of choice claim.

I.

On February 14, 1990, a two-count indictment was returned against Carl Hallock. The first count charged that "[i]n or about 1988, in the District of Maine and elsewhere" Hallock had conspired with James M. Hudson, Daniel R. Letorneau, Thomas H. Johnston, Joel J. Burns and with other unnamed parties to knowingly possess with intent to distribute and to distribute cocaine in excess of five hundred grams in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846. The second count charged that "[i]n or about October 1988, in the District of Maine" Hallock had knowingly possessed with intent to distribute ten to twelve ounces of cocaine and had aided and abetted such possession.

On March 1, 1990, Hallock moved for a bill of particulars. With respect to Count I, charging conspiracy, the motion sought specification of the illegal acts alleged to have been undertaken by the defendant, the individuals with whom they occurred, and their location and date or dates. With respect to Count II, the motion sought the location and specific date of the alleged possession.

On March 14, 1990, the grand jury returned a three-count superseding indictment. This indictment retained Count I in its original form, added to Count II the name, Daniel Letorneau, as the person Hallock had aided and abetted, and added a new third count charging Hallock with possession of approximately six ounces of cocaine with intent to distribute in "the Spring of 1989, in the District of Maine," and with aiding and abetting Richard Hudson to do the same. No new motion for particulars was filed, nor was the old one renewed, with reference to the superseding indictment. On April 17 the court denied the original motion for particulars, stating that the indictment, without specifying which, was "sufficient."

On May 10, 1990, Hallock's then attorney, Neil Shankman, filed a motion in limine informing the court of defendant's "understanding" that the government would be calling Hallock's former wife, Ethel, who had provided the government with a number of statements including a list of alleged buyers and sellers in the drug community. Among others, the motion alleged, Shankman himself had been named by Ethel as a buyer. The motion did not seek to exclude or suppress Mrs. Hallock's testimony; instead it sought a ruling on the admissibility of evidence to impeach Mrs. Hallock, such evidence to consist, apparently, of calling certain witnesses whose names appeared on Mrs. Hallock's alleged list, who would deny they had bought drugs from defendant. According to the motion, if such evidence were admissible, then Shankman would become a potential witness for the defense and would have to withdraw from representation of Hallock. The government, in its response to the motion, stated that it "may well proffer the testimony of Ethel Hallock at trial," and that, apart from whether or not the court allowed the calling of impeachment witnesses, it was "readily apparent" that Mrs. Hallock's testimony would place Shankman in an untenable position, necessitating his immediate withdrawal. By the end of May, having sought and located substitute counsel, Shankman voluntarily withdrew from the case. At no time did Shankman object to withdrawing nor claim that his withdrawal would deny to Hallock the counsel of his choice. ¹ The defendant's new attorney, Robert Goodrich, entered an appearance on May 30. Postponed to accommodate Goodrich's schedule, the trial took place approximately a month and a half after the date originally set. Mrs. Hallock was never called as a witness, and no evidence concerning Hallock's alleged drug sales to Shankman was presented. Goodrich never protested that Shankman had, in some sense, been forced to withdraw.

The testimony at trial centered on meetings and phone conversations between Hallock and his alleged coconspirators. Government witness James Hudson testified that, during the fall of 1988, Hudson had stored cocaine in a safe at Hallock's auto body shop in Auburn, Maine, and that on several occasions he had instructed Hallock to turn over varying quantities of cocaine to Daniel Letorneau. This testimony was corroborated by Letorneau, who testified that on two occasions he picked up cocaine directly from Hallock at the body shop. Hudson also testified that Hallock, acting on Hudson's instructions later in 1988, had turned over $88,000 to Joel Burns and Thomas Johnston, and then allowed Hudson to store the cocaine purchased with the money in the safe in Hallock's shop. Burns testified that he had participated in a cocaine transaction with Hudson in an auto body shop in the Auburn-Lewiston area. Although unable to identify Hallock, he testified that a man had come out of the shop and handed him a paper bag containing $88,000. Finally, Hudson's nephew Richard Hudson testified that, on three occasions in April, 1989, Hallock had bought or attempted to buy from him several ounces of cocaine which he intended to distribute to two brothers named Clark. All three of these transactions took place in the body shop.

The defense relied largely on Hallock's own testimony. Hallock testified that he had known James Hudson for twenty years, that he knew Hudson sold drugs, and that he (Hallock) had used cocaine himself and given small amounts to friends. Hallock also stated that he allowed several people, including both Hudsons, to use his body shop, but denied any knowledge of their use of his shop to sell cocaine, or any complicity on his part. He admitted to having seen Letorneau in his shop, testifying that Letorneau came in one day to pick up a gym bag left there earlier by James Hudson. Hallock also admitted that he had allowed James Hudson to store money in his safe, but claimed to have had no idea of the amount or that it came from drug sales. Finally, he denied that the drug deals with Richard Hudson ever took place, but admitted to having used cocaine with one of the Clark brothers. The defense also called Hallock's former secretary, Mildred Whitingham, who testified that she had access to the safe and spent some time in the body shop, but had no knowledge of any cocaine trafficking.

At the conclusion of the trial, the judge instructed the jury on all three counts. After deliberating for two hours, the jury asked for a definition of the word "possess." The judge responded with a definition, to which the defense did not object, focussing largely on the concept of constructive possession. Forty-five minutes later the jury returned a verdict of guilty on all three counts.

On appeal, Hallock alleges four grounds for reversal of his conviction: that the denial of the bill of particulars constituted reversible error, that the second jury charge constituted reversible error, that his representation by attorney Goodrich was ineffective, and that the withdrawal of his first attorney, Shankman, deprived him of the right to counsel of his choice. We reject the first two claims, decline to consider the third, and find the fourth to have been waived.

II.

A. THE MOTION FOR PARTICULARS

Hallock claims that the district court erred in denying his motion for a bill of particulars filed prior to the superseding indictment. He argues that his preparation of a defense was impaired by denial of the motion. ² His argument centers entirely on the conspiracy count, which he alleges set forth an impermissibly indefinite date and place ("In or about 1988, in the District of Maine and elsewhere") and failed to identify some of the alleged coconspirators. He then goes on to argue that, had the conspiracy count been excluded from the indictment, he might not have been convicted on the possession counts. We address these contentions on the premise, arguendo, that Hallock's original motion for particulars, which was never renewed after the superseding indictment was handed down, sufficiently implicated the latter.

A bill of particulars serves three purposes: to give the accused details concerning the charges against him, enabling him to prepare a defense; to prevent double jeopardy; and to avoid surprise at trial. United States v. Leach, 427 F.2d 1107, 1110 (1st Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 95, 27 L.Ed.2d 59 (1970). Whether to grant a bill of particulars is left to the sound discretion of the district judge, Will v. United States, 389 U.S. 90, 98-99, 88 S.Ct. 269, 275-76, 19 L.Ed.2d 305 (1967), whose decision will be reversed only for abuse of discretion. United States v. Paiva, 892 F.2d 148 (1st Cir.1989) (citing Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927)). To establish an abuse of discretion, "a defendant must demonstrate actual surprise at trial or actual prejudice to his substantial rights." Paiva, 892 F.2d at 154.

Hallock's argument that it was error to deny the bill of particulars...