United States v. Butler

• Decision Date: 03 December 1957
• Docket Number: Cr. No. 6195.
• Parties: UNITED STATES of America v. Marion Southall BUTLER.
• Court: U.S. District Court — Eastern District of Virginia

167 F. Supp. 102

UNITED STATES of America v. Marion Southall BUTLER.

Cr. No. 6195.

United States District Court E. D. Virginia, Richmond Division.

December 3, 1957.

L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., R. R. Ryder, Asst. U. S. Atty., Richmond, Va., for the United States.

A. Scott Anderson, Richmond, Va., for petitioner.

WALTER E. HOFFMAN, District Judge.

Petitioner, Marion Southall Butler, was convicted by a jury on a charge of conspiring to violate the Internal Revenue laws relating to liquor. He was sentenced to a term of imprisonment for three and one-half years and a fine of $1,000, but not to stand committed for non-payment of said fine. Petitioner perfected his appeal and the judgment of the District Court was affirmed. Butler v. United States, 4 Cir., 243 F.2d 567. The appeal was described as "frivolous". It will be noted that at no time during the trial in the District Court or on appeal before the United States Court of Appeals for the Fourth Circuit did petitioner suggest the grounds for a new trial now asserted.

Petitioner has filed a motion to vacate the sentence under 28 U.S.C.A. § 2255, alleging, in substance, that he was denied effective representation of counsel by reason of the fact that his privately employed attorney was under the influence of narcotics during the trial in the District Court, and that, subsequent to the finding of guilt by the jury, another privately employed attorney was requested to bring this matter to the attention of the trial judge but failed to do so. As the allegations set forth in the motion seriously affect the legal profession, the Court, upon request of petitioner, appointed an able and outstanding attorney to represent petitioner in the present proceedings. For reasons which may be apparent, the attorney charged with being under the influence of narcotics during the trial will be designated as "Mr. X".

Petitioner was indicted by a grand jury, on the charges for which he was ultimately convicted, at the July 1956 Term. The employment of Mr. X relates back to April 12, 1956, when petitioner's sister gave the attorney a check in the sum of $25, at which time petitioner was involved in other difficulties relating to whiskey charges. It is generally conceded that Mr. X is addicted to the use of narcotics (morphine), having commenced taking drugs during the first two months of 1956. In fact, Mr. X is now confined at the United States Public Health Service Hospital in Lexington, Kentucky, as a condition of probation imposed by District Judge Bryan under a conviction for a misdemeanor relating to the use of forged prescriptions for narcotics with knowledge that said prescriptions were forged. The trial of Mr. X was in October, 1957, and his testimony in this proceeding was taken immediately prior to his departure for hospital treatment.

It is admitted by petitioner that he knew of the arrest of Mr. X, on or about October 1, 1956, on the narcotic charge. The case involving petitioner was heard on December 17-18-19, 1956, and petitioner admits that following the arrest of his attorney, petitioner suggested to Mr. X that perhaps new counsel should be employed but, according to petitioner, he was persuaded by his attorney not to make any change of representation. Mr. X was indicted by a grand jury, convened at Alexandria, Virginia, on the first Monday in December, 1956. Mr. X testified that petitioner knew of his addiction to drugs, as well as his arrest and indictment, but never requested any change of counsel. Whichever version of the testimony the Court may accept, it nevertheless follows that petitioner knew, at the time of trial and long prior thereto, all of the pertinent facts concerning which he now complains.

It is extremely doubtful whether petitioner may now be heard to complain of acts which could readily have been called to the attention of the trial court but, assuming arguendo that he has not forfeited such rights, the ultimate test is a determination of the conduct of the trial in an effort to ascertain whether petitioner was accorded a fair and impartial trial.

This Court has reviewed the transcript of testimony in the conspiracy case consisting of 455 pages. Mr. X participated vigorously in the defense of petitioner. While the arguments were not transcribed, the Court has a distinct recollection that Mr. X presented the contentions of his client with marked ability. Obviously there is no error in the record, and it is to be doubted that any attorney would have been more successful. In reviewing the proceedings of a lengthy trial, it must be appreciated that criticism is readily forthcoming from any attorney or judge not called upon to act on the spur of the moment, but it is well settled that a defendant in a criminal case cannot be heard to complain of the actions of his attorney merely because some other attorney would have adopted different trial tactics.

Subsequent to petitioner's conviction by the jury at 12:50 a. m. on December 19, 1956, petitioner employed George E. Allen, Sr., an able and experienced attorney, for the purpose of arguing a motion for a new trial and perfecting an appeal if necessary. While petitioner alleges and testified that Mr. Allen was also requested to call to the attention of the trial judge the fact that Mr. X was under the influence of narcotics during the trial, this statement is strenuously denied by Mr. Allen and the Court accepts the latter's testimony on this point. Over petitioner's objection, the Court permitted the introduction of correspondence between petitioner and his attorney, Mr. Allen, and a review of these letters fails to indicate that petitioner ever complained of the conduct of Mr. X. While the rule with respect to privileged communications between attorney and client should be zealously guarded, yet this privilege may be destroyed by the acts of the client in attacking the attorney on a charge of dereliction of duty. It will be noted from Mr. Allen's testimony that he is of the opinion that petitioner was accorded a fair trial; that he was effectively represented by Mr. X; that Mr. Allen did not recommend an appeal and thought it useless to pursue same; and that, if any error was committed, it was the error of the Court...