U.S. v. Poulack

Citation556 F.2d 83,2 Fed.R.Evid.Serv. 54
Decision Date26 May 1977
Docket NumberNo. 76-1434,76-1434
Parties2 Fed. R. Evid. Serv. 54 UNITED STATES of America, Appellee, v. Kerry POULACK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Martin G. Weinberg, Boston, Mass., by appointment of the court, with whom Oteri & Weinberg, Boston, Mass., on brief, for defendant-appellant.

Robert B. Collings, Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, and MOORE * and CAMPBELL, Circuit Judges.

MOORE, Circuit Judge:

Kerry Poulack appeals from a judgment of conviction entered against him on August 17, 1976, following a jury trial in the United States District Court of Massachusetts. Poulack was convicted on two counts of conspiracy to commit bank robbery and bank robbery in violation of 18 U.S.C. § 2113(a). He raises several arguments on appeal, none of which warrant reversal of his conviction.

I.

On February 19, 1976, Poulack was indicted with four others and charged on several counts arising out of the December 4, 1974, bank robbery of the Essex County Bank and Trust Company in West Peabody, Massachusetts. He was arraigned on February 27, 1976, entering a plea of not guilty. Because he and one other of the defendants could not raise bail, they were detained to await trial. Throughout these pretrial proceedings, Poulack was represented by his hired counsel, Harvey Brower, or a representative of Mr. Brower's office.

The case was called for trial on April 5, 1976. It was then that the court first learned that attorney Brower could not be present to represent Poulack due to his simultaneous commencement of a case in Rhode Island. The Rhode Island case, moreover, was expected to last anywhere from six weeks to three months, keeping Brower unavailable for Poulack's trial until mid-summer. Poulack, however, expressly stated his desire to have his case continued until Brower could represent him. He made clear his willingness to waive any and all constitutional and statutory rights to a speedy trial and to remain in detention in the interim in order to be represented by Brower himself. Complicating matters further the Government opposed any severance of Poulack in light of trial considerations, such as the number of defendants, the significance of the conspiracy evidence against them, and the burdens of multiple trials. Also relevant was the fact that a postponement without severance of Poulack's trial might have required his co-defendant to remain even longer in pretrial detention.

On weighing these various considerations, the court concluded that, for the present, Poulack's wish to have attorney Brower represent him outweighed the need for a prompt criminal trial. The court granted a continuance of the trial to July 7, 1976, a delay it considered reasonable.

The next hearing in the case was held on June 16, 1976. At that time the court learned that attorney Brower's Rhode Island trial would probably proceed through July, and that Brower was under court order to represent Poulack before another court on other charges immediately upon its completion. It thus appeared likely that Brower would not be available for Poulack's defense in this case until at least September, 1976. At this time, however, the co-defendant who had been detained pending trial had been convicted and incarcerated for another crime, so his pretrial detention was no longer a factor weighing in favor of prompt disposition of this trial. Once again the court was forced to weigh Poulack's desire to have Brower represent him against the ever-present need to avoid further delays in the case. Because it deemed a further three-month continuance unreasonable, the court, on June 21, 1976, ruled that Poulack had to retain another attorney so as to begin the trial as scheduled on July 7, 1976. 1

The court gave Poulack ample opportunity to retain other counsel, offering to provide him with lists of qualified attorneys from which to choose. But Poulack adamantly refused to consent to any substitution, arguing that he had a "right" to counsel of his choice. To overcome this impasse, the court appointed an attorney to represent Poulack, and went so far as to promise to arrange payment for the attorney pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, despite the fact that Poulack was not technically in forma pauperis.

After one unsuccessful attempt by the court to appoint an attorney, Poulack agreed, on June 25, 1976, to accept attorney Martin Weinberg as his counsel. However, he explicitly reserved his claim that his "right to counsel" was being infringed. At Weinberg's request, the court granted a continuance until July 12, 1976, to allow time for complete preparation of the defense. The trial, which lasted four days, ended in a jury verdict of guilty against Poulack on both counts of the indictment.

Poulack repeats here his argument, made so resolutely before the trial judge, that he has a "right" to be represented by the lawyer of his choice. As long as he was willing to forego his rights to a speedy trial, his argument goes, the trial court should have bowed to his desire for representation by Brower. At least, he submits, this court should find that the trial judge abused his discretion by concluding that the need to bring this case to trial outweighed Poulack's determined request.

Poulack, it should be noted, does not allege that he was denied an opportunity to obtain substitute counsel after Brower's unavailability had been determined. Nor has he raised any claim that Weinberg had inadequate time to prepare or otherwise failed to provide an expert and vigorous defense at trial. The sole issue here is the propriety of the trial court's decision to adhere to the July 7 trial date in the face of Poulack's wish to postpone the trial to obtain Brower's services.

The right to counsel guaranteed by the Sixth Amendment is indeed a cornerstone of our national system of ordered liberty. Powell v. Alabama,287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But it is as well recognized that a criminal defendant's absolute right to counsel does not confer an absolute right to a particular counsel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970); United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972); United States v. Hampton, 457 F.2d 299 (7th Cir.), cert. denied,409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972). Blending an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections, the cases uniformly hold that the right of an accused to choose his own counsel cannot be insisted upon in a manner that will obstruct reasonable and orderly court procedure. See, e. g., Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976); United States v. Bragan, 499 F.2d 1376 (4th Cir. 1974); Lofton v. Procunier, 487 F.2d 434 (9th Cir. 1973); United States v. Casey, 480 F.2d 151 (5th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 550, 38 L.Ed.2d 336 (1973). As the Third Circuit succinctly stated in Carey v. Rundle, supra :

"Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice." 409 F.2d at 1214.

Whether to grant or to deny a continuance for the purpose of having a particular counsel represent a defendant is thus committed to the discretion of the trial court. United States v. Brown, 495 F.2d 593 (1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d 179 (1974). Therefore, any claim by Poulack that his having been forced to proceed to trial without Brower mandates reversal of his conviction per se, is wholly without merit.

Rather, our review of the trial court's decision must focus on whether the judge abused his discretion in deciding that the need for an expeditious trial outweighed Poulack's desire to be represented by Brower. There are no mechanical tests for deciding when a denial of a continuance is an abuse of discretion. Each case must be evaluated on its own facts. See United States v. Brown, supra, at 600; Rolon Marxuach v. United States, 398 F.2d 548, 551 (1st Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968). Cf. United States v. Correia, 531 F.2d 1095 (1st Cir. 1976). Suffice it to say that the totality of events recounted above makes clear that the district court did not abuse its discretion in finding that a months-long continuance beyond July 7 was outweighed by the interests of the public and the defendants in a speedy trial. Indeed, the circumstances of this case show that the trial judge's discretion was tempered by conscientious solicitude for Poulack's desires, and that the court satisfied both the Constitution and the Speedy Trial Act, 18 U.S.C. § 3161(a) (Supp. V 1975), by doing all that was reasonably necessary to meet the situation. Morever, since Poulack was afforded ample opportunity to select substitute counsel of his own choice, and because counsel appointed by the court had adequate time to prepare a vigorous and competent defense at trial, there has been no showing of any violation of the Sixth Amendment.

II.

Part of the Government's proof against Poulack at trial consisted of his fingerprints on a check and copies of checks taken during the robbery for which he was charged. Massachusetts State Police had discovered the checks in a car driven by Poulack approximately five months after the robbery, during a search of the vehicle and its contents. The search was conducted pursuant to a state search warrant issued in connection with an investigation of a...

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