U.S. v. Snyder

• Decision Date: 31 May 1983
• Docket Number: No. 82-3431,82-3431
• Parties: 13 Fed. R. Evid. Serv. 406 UNITED STATES of America, Plaintiff-Appellee, v. Donald E. SNYDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 139

707 F.2d 139

13 Fed. R. Evid. Serv. 406

UNITED STATES of America, Plaintiff-Appellee, v. Donald E. SNYDER, Defendant-Appellant.

No. 82-3431.

United States Court of Appeals Fifth Circuit.

May 31, 1983.

Michael S. Hubley, Shreveport, La. (court-appointed), for defendant-appellant.

D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.

THORNBERRY, Circuit Judge:

Snyder was tried without a jury on one count of conspiracy to secure the escape of a federal prisoner, 18 U.S.C. Sec. 371, and one count of aiding and assisting in the escape of a federal prisoner, 18 U.S.C. Sec. 752(a). He was convicted on both counts and sentenced to serve four years on each count, the sentences to run concurrently. He filed a timely notice of appeal and is proceeding under the Criminal Justice Act with his court-appointed attorney.

Snyder raises the following points on appeal: (1) He claims that he was denied his right to a trial held under the time-table of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (2) He further claims that he was denied his right to counsel by removal of his retained counsel by court order and the court appointment of counsel before trial. (3) He attacks the sufficiency of the evidence to support his conviction on each count. (4) Finally, he asserts that his common-law wife was not adequately advised by the court of her privilege not to testify against him.

Facts

Appellant Snyder was a federal prisoner transferred to the Shreveport city jail en route to the Lafayette Parish jail in Louisiana for trial on charges of interstate transportation of stolen property. He was placed in a cell with Garvan Dale White and five other prisoners. White was in jail pursuant to a writ of habeas corpus ad testificandum. He was also a federal prisoner. Snyder claimed to have known White for 25 years, but White denied he had ever met Snyder before Snyder was placed in the cell in Shreveport. On Friday evening, October 31, 1980, two days after Snyder was put in the cell, attorney Jim Brumfield conferred with both White and Snyder for more than one hour. While sitting in the booking area, White purportedly suggested that he and Snyder escape, but Snyder dissuaded him because too many people were around. White allegedly also showed Snyder two hacksaw blades, but Snyder told him that it would take six weeks to saw their way out.

The following evening, Saturday, November 1, 1980, attorney Brumfield arrived at the jail. The jailer went to get White, but as he was escorting him down the hall, Brumfield called to the jailer for him to get Snyder too. The jailer left White in the hall, and went back to get Snyder. Snyder was in his underwear and moved to the back of the cell to put on his jumpsuit. There was nothing unusual about his being clad only in his underwear at that time of night.

White continued walking down the hallway. Neither of the jailers was watching him. Realizing that the gate to the elevator area was open, White jumped on the elevator and left. While waiting for Snyder to dress, the jailer heard the elevator operator say that White had escaped, and immediately slammed Snyder's cell door shut. By that time, it was too late to stop White. White walked out the front door of the jail and drove away in a pickup truck which he had once owned, but which was now owned by attorney Brumfield. The truck had a concealed ignition key. White was eventually apprehended and convicted of escaping from federal custody.

After questioning, Snyder made a statement at 4:30 a.m. the next morning concerning White's escape. He indicated that he and White realized that it would be relatively easy to walk out of the jail and that the only reason they had not done so on Friday night was because there were too many people around. Snyder conceded that he was biding his time, waiting for an opening to enter the elevator and then walk out of the building. His statement also indicated that White had asked him to refrain from putting on his jumpsuit when attorney Brumfield first arrived and that he, Snyder, had a feeling that White was going to try to take the opportunity to walk out. In addition to this statement, Snyder also testified in state proceedings against attorney Brumfield who had also been indicated for aiding White to escape.

1. Speedy Trial

Snyder contends he was not brought to trial within the 70 day period required by the Speedy Trial Act. 18 U.S.C. Sec. 3161(c)(1). His first claim is that the Speedy Trial Act period began to run on November 4, 1981, the day he was indicted. It is clear, however, that he was arraigned on November 13, 1981. Where a defendant is arraigned after he is indicted, the statutory time period starts to run on the date of the arraignment. ¹

Snyder acknowledges that the 43 day period during the pendency of his psychiatric examination is an excludable period under 18 U.S.C. Sec. 3161(h)(1)(A). He objects, however, to excluding the period during which his pretrial motions were pending because he claims they were not given prompt disposition as required by 18 U.S.C. Sec. 3161(h)(1)(F).

The record shows that his retained counsel, Mr. Brumfield, filed pretrial motions on November 24, 1981, and that Brumfield was disqualified by the court on March 5, 1982 because he had also been indicted for aiding in the escape of prisoner White. Approximately a month and a half later, on April 23, 1982, Snyder's court-appointed counsel adopted the prior pretrial motions. A magistrate recommended that they be denied on May 26, 1982, and the district judge denied them on June 8, 1982, the day Snyder's trial began.

Snyder argues that the government delayed rulings on his motions until it could have his counsel disqualified and develop its case against him. Although there is no evidence to support this, even assuming this to be true, Snyder did not press for an earlier ruling on his motions. In addition, the difficulties with respect to his retained counsel obviously justified a delay in the final resolution of those motions.

We conclude that Snyder was tried within the limits of the time requirements of the Speedy Trial Act.

2. Right to Counsel

Snyder contends that he was denied his right to counsel under the sixth amendment to the United States Constitution when the district court disqualified his retained counsel without affording him the opportunity to waive his right to conflict-free counsel under United States v. Garcia, 517 F.2d 272, 275-7 (5th Cir.1975). ²

Relying on United States v. Salinas, 618 F.2d 1092 (5th Cir.), cert. denied, 449 U.S. 961, 101 S.Ct. 374, 66 L.Ed.2d 228 (1980), the district court held that the public interest in the fair and orderly administration of justice outweighed Snyder's right to counsel of his choice:

In this case, the attorney is more than a "target" of investigation; he is an indicted co-conspirator. This court recognizes that under United States v. Garcia, 517 F.2d 272 (5th Cir.1975), a defendant may waive his right to conflict-free counsel. A waiver, however, will not eliminate this court's responsibility to balance the right to one's own counsel with the court's interest in preserving the integrity and the fair administration of justice. In the case before the court, the scales weigh heavily against that right of the defendant. In consideration of the conflict that exists due to Brumfield's position as counsel for a person who was a witness for him and the present posture of Brumfield and Snyder as indicted co-conspirators, this court must disqualify Brumfield as counsel in this case.

We agree. However, before we reach the merits, we must first determine the standard of review governing orders disqualifying counsel in criminal cases.

A review of the cases in our Circuit reveals two conflicting lines of authority. In Woods v. Covington County Bank, 537 F.2d 804 (5th Cir.1976), we stated:

As we have previously indicated, a District Court is obliged to take measures against unethical conduct occurring in connection with any proceeding before it. Sanders v. Russell, 5 Cir., 1968, 401 F.2d 241, 246; see Ceramco, Inc. v. Lee Pharmaceuticals, 2 Cir., 1975, 510 F.2d 268, 270-71; E.F. Hutton & Co. v. Brown, S.D.Tex., 1969, 305 F.Supp. 371, 376-77. While disqualification orders issued pursuant to this supervisory authority have been held to be within the discretion of the lower court, courts have recently expressed "serious reservations" about whether the scope of appellate review is limited to finding an abuse of discretion in disqualification cases where only a purely legal question is at issue. Kroungold v. Triester, 3 Cir., 1975, 521 F.2d 763, 765 n. 2, quoting American Roller Co. v. Budinger, 3 Cir., 1975, 513 F.2d 982, 985 n. 3; see Kramer v. Scientific Control Corp., 3 Cir., 1976, 534 F.2d 1085, 1088. In disqualification cases such as this, where the facts are not in dispute, District Courts enjoy no particular functional advantage over appellate courts in their formulation and application of ethical norms. Thus, in this circuit, we have reviewed disqualification cases as we would most other appeals of a judge's findings, applying the "clearly erroneous" test to issues of fact while carefully examining a District Judge's application of relevant ethical standards. See, e.g., American Can Co. v. Citrus Feed Co., 5 Cir., 1971, 436 F.2d 1125 (disqualification order reversed because contrary to controlling ethical principles); Uniweld Products, Inc. v. Union Carbide Corp., 5 Cir., 1967, 385 F.2d 992, cert. denied, 390 U.S. 921, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968) (refusal to disqualify upheld because factual determination not clearly erroneous). Consequently, we are empowered in this case to determine whether the District Court's disqualification order was predicated upon a proper...