United States v. Collins, 17382.

• Decision Date: 08 March 1971
• Docket Number: No. 17382.,17382.
• Citation: United States v. Collins, 435 F.2d 698 (7th Cir. 1971)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carbristo COLLINS, a/k/a Bris Collins, a/k/a Brisco Collins, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.2d 698 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Carbristo COLLINS, a/k/a Bris Collins, a/k/a Brisco Collins, Defendant-Appellant.

No. 17382.

United States Court of Appeals, Seventh Circuit.

November 13, 1970.

Certiorari Denied March 8, 1971.

Richard L. Manning, Chicago, Ill., for defendant-appellant.

Carbristo Collins, in pro. per.

Frank J. Violanti, U. S. Atty., Gregory M. Wilson, Asst. U. S. Atty., Springfield, Ill., Max J. Lipkin, Asst. U. S. Atty., Peoria, Ill., for plaintiff-appellee.

Before DUFFY and KNOCH, Senior Circuit Judges, and PELL, Circuit Judge.

Certiorari Denied March 8, 1971. See 91 S.Ct. 983.

DUFFY, Senior Circuit Judge.

Defendant was convicted of receiving and concealing a narcotic drug (Title 21, U.S.C. § 174) and of transferring a narcotic drug without an order (Title 26, U.S.C. § 4705(a)).

Counsel for defendant was appointed by the Court. The date of trial was set for June 18, 1968. On June 11, 1968, defendant's counsel moved for a continuance which was granted. The trial date was reset for September 17, 1968. On that date, counsel requested a second continuance alleging his inability to locate and interview two witnesses. He also claimed insufficient time to prepare for trial due to defendant's unavailability. The motion for a further continuance was denied, the Court stating that the defense had had adequate time (more than three months) to make adequate preparation. Appointed counsel then requested permission to withdraw from the case, alleging that he had not had sufficient time to fully prepare his defense. This motion was denied.

The issue before us is whether the District Court's denial of defendant's second motion for a continuance denied defendant the effective assistance of counsel guaranteed to him by the Fifth and Sixth Amendments to the United States Constitution.

We agree that if a request for delay in the date of a trial is justifiable, then expeditiousness should not be the ruling deterrent. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). However, the Ungar case also holds that in determining whether or not a denial of a continuance is arbitrary, "the answer must be found in the circumstances of each case, particularly in the reasons presented to the trial judge." 376 U.S. at 589, 84 S.Ct. at 850.

Decisions on this point by this Court, both before and after the Ungar case are not inconsistent with that decision and have clearly held that a trial court's action on a motion for continuance is a matter of discretion and is not subject to review unless there is a clear showing of abuse of discretion or that a manifest injustice would result if the trial continued. See United States v. Jones, 369 F.2d 217 (7 Cir., 1966); United States v. Marzec, 249 F.2d 941 (7 Cir., 1957), cert. den. 356 U.S. 913, 78 S.Ct. 670, 2 L.Ed.2d 586; United States v. Cook, 184 F.2d 642 (7 Cir., 1950).

When defendant's attorney filed the first motion for a continuance on June 11, 1968, he stated that he must have more time to prepare a defense. He also stated he needed more time to take the depositions of several witnesses.

Defendant's attorney filed his second motion for a continuance on the morning of the day set for the trial. He asserted his inability to locate and interview two witnesses, and also commented on the lack of time to prepare for trial due to the defendant's unavailability. Defendant's counsel related to the Court that he had originally geared his time to prepare for trial in August, but that the defendant "was unavailable to me at that time due to the fact he was defending a case in the state courts of Michigan." In support of his motion, defense counsel stated that the defendant had to appear in Michigan "a minimum of eight times during the months of July and August" in connection with the Michigan charge against him.

With reference to the witnesses, defendant's attorney admitted that he knew the names and addresses of these witnesses a week before the trial. He gave no reason why he had not been able to locate them or, indeed, that he had tried to do so. Furthermore, there was no showing that defendant had been denied compulsory process provided by Rule 17(b) and (f), Federal Rules of Criminal Procedure. Defendant's attorney did...