United States v. Abbamonte
Decision Date | 16 July 1965 |
Docket Number | Docket 29540.,No. 480,480 |
Citation | 348 F.2d 700 |
Parties | UNITED STATES of America, Appellee, v. Achilles ABBAMONTE, Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Edward M. Shaw, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, on the brief; Michael W. Mitchell, Asst. U. S. Atty., of counsel), for appellee.
Irwin Klein, New York City, for appellant.
Before WATERMAN, MARSHALL and ANDERSON, Circuit Judges.
This appeal is from a judgment of conviction for violating 21 U.S.C. §§ 173, 174 entered after trial by jury before Judge Edward C. McLean in the United States District Court for the Southern District of New York. Trial was had on a single count indictment involving a single incident on one day. Appellant seeks a reversal on two grounds, alleged improper appointment of counsel and certain alleged errors in admissions of testimony. We will consider them in that order.
Appellant was indicted on June 23, 1964, and was confined to the United States House of Detention in lieu of $50,000 bail. On June 24 appellant, claiming to be without funds, was assigned an attorney by Judge Wyatt and the case was adjourned to June 29 when appellant sought a reduction of bail. That was denied and the case adjourned to July 1. On July 1 appellant entered a plea of not guilty, bail was reduced to $30,000 and the case was adjourned to July 20 for motions to be filed. On July 10, on motion by appellant's privately retained counsel, bail was further reduced to $20,000 by Judge Bryan. On July 17 Judge Murphy denied further time to file motions and assigned the case for trial on July 20. On July 21 appellant notified Judge Cannella that he had had a dispute with the lawyer retained by his family and was then without counsel. Judge Cannella offered to appoint counsel for him but appellant declined the offer requesting time to obtain counsel of his own choice. Judge Cannella reassigned the Legal Aid attorney to help him while he sought to retain counsel of his choice, gave him an extra copy of the indictment, and carefully advised him of his right to subpoena witnesses. Appointed counsel was relieved when appellant said he would make bail and on August 4 appellant, through his retained counsel, sought a further adjournment of two weeks. Judge McMahon adjourned the trial to August 10 before Judge McLean.
On August 10, after all these adjournments, changes in counsel, and motions for the reduction of bail, which surely would weary the most patient, appellant appeared before Judge McLean with his most recently retained counsel. He then requested another adjournment on the ground that he had only been out on bail for six days and wanted to subpoena some witnesses. His attorney, however, said that he was ready to go to trial, although he admitted appellant knew more about the case than he did. At that point, the following discussion took place:
Appellant was not a pauper. Instead his complaint is that he was not permitted to have the "assistance of counsel of his own choice" or to proceed without counsel and that this was in violation of Rule 44, Federal Rules of Criminal Procedure1 and of the Sixth Amendment. Under the circumstances of this case, and in light of the earlier proceedings, we cannot agree.
The record of this case reveals a series of endless delays and maneuvers that could only have a dilatory purpose. Considering all the previous opportunities appellant had to retain counsel, the warnings and advice of the district judges concerning the inevitability of trial and the importance of retaining counsel, and the previous changes in counsel, Judge McLean could have then ordered appellant to proceed to trial without counsel after Mr. Krieger had been dismissed.
"* * * Where a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney." United States v. Arlen, 252 F.2d 491, 494 (2 Cir. 1958).
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