United States v. Conder

• Decision Date: 31 March 1970
• Docket Number: No. 19271-19273.,19271-19273.
• Citation: 423 F.2d 904
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Neil CONDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bernard Joseph GROGAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Moore PEGRAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

423 F.2d 904 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Neil CONDER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bernard Joseph GROGAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Moore PEGRAM, Defendant-Appellant.

Nos. 19271-19273.

United States Court of Appeals, Sixth Circuit.

March 31, 1970.

COPYRIGHT MATERIAL OMITTED

Lloyd Tatum, Henderson, Tenn., court appointed, for appellant Conder.

Bernard Joseph Grogan, in pro. per.

James P. Diamond, Jackson, Tenn., court appointed, for appellant Pegram.

William A. McTighe, Jr., Asst. U. S. Atty., Memphis, Tenn., for appellee, Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

The appellants in these combined appeals were jointly tried and convicted by a jury on various counts of a twelve-count indictment charging them with conspiracy to burglarize United States Post Offices, burglary of two Post Offices and the interstate transportation of goods stolen from three Post Offices.

Six defendants were originally indicted, but only five were jointly tried below and only three of the five have appealed their convictions. The sixth defendant, William Kenneth Knight, plead guilty to the charges at Tampa, Florida, and later testified as a witness for the government at the appellants' trial. Based largely on Knight's testimony, the government's evidence established that Knight, along with appellants Grogan and Pegram, burglarized Post Offices in Lexington and Saulsbury, Tennessee; that Knight and appellant Pegram burglarized a Post Office in New Albany, Mississippi and transported the fruits of the crime to Decaturville, Tennessee. They were there turned over to appellant Conder, who transported them to Chicago, Illinois; and that appellant Grogan disposed of the postage stamps stolen from each of the Post Offices in Chicago, Illinois.

Most of the issues raised in these appeals concern all three appellants, although the individual appellants have stressed some issues more strongly than others. In addition, appellants Grogan and Pegram have raised issues which concern only them. We will turn first to these individual issues.

I. APPELLANT GROGAN'S RIGHT TO DEFEND PRO SE.

Appellant Grogan contends that the District Court committed reversible error in refusing to permit him to conduct his defense pro se. In particular Grogan, who refused this Court's offer to appoint counsel on appeal, contends in his brief that the District Court erred by refusing to permit him to enter objections or cross-examine witnesses during the course of the trial.

The record shows that upon the initial arraignment of all the defendants Grogan informed the District Court that he wished to represent himself and that he did not wish to have counsel appointed to represent him. The District Court acknowledged Grogan's right to proceed pro se, but after fully explaining his rights to him, urged him to accept appointed counsel. Grogan again declined counsel. However, some weeks later, after he had complained to the District Court of not having the proper books and facilities to prepare certain motions which he wished to file, the District Court appointed counsel to assist Grogan. At the time of the appointment the Court again acknowledged Grogan's right to proceed pro se and made it clear that the appointed counsel was not to force himself on Grogan. Grogan acquiesced to the appointment, and, as will be more fully discussed below, availed himself of appointed counsel's assistance. During the period of approximately six months prior to trial, numerous motions were filed on Grogan's behalf. While it appears that Grogan may have prepared and argued at least some of these motions, all of the motions were signed and filed by Grogan's appointed counsel. More significantly, when the trial commenced Grogan's counsel, along with the attorneys for the four other defendants, participated in the selection of the jury, made an opening statement and conducted cross-examination of the first nine prosecution witnesses. Grogan made no objection to counsel's performance of any of these activities, but on the second day of trial, just before the government's chief witness, co-defendant Knight, was about to testify, Grogan's counsel informed the Court that Grogan wished to participate in his own defense by making objections to the admissibility of evidence. The District Court ruled, however that Grogan would not be permitted to object personally to the admissibility of evidence, and it is this ruling to which Grogan objects.

While not as often the subject of litigation, the right of a defendant in a criminal case to defend pro se is as clearly established as a criminal defendant's right to counsel. See, e. g., Carter v. Illinois, 329 U.S. 173, 174, 67 S.Ct. 216, 91 L.Ed. 172 (1946); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); United States v. Burkeen, 355 F.2d 241, 245 (6th Cir.), cert. denied, Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); United States v. Johnson, 333 F.2d 1004, 1005 (6th Cir. 1964). The right to defend pro se and the right to counsel have been aptly described as "two faces of the same coin," United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964), in that the waiver of one right constitutes a correlative assertion of the other. While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, see United States v. Burkeen, supra, for purposes of determining whether there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights. The defendant must make a choice, and he should not be permitted to manipulate his choice so that he can claim reversible error on appeal no matter which alternative he apparently chose in the District Court. See United States v. Plattner, supra, 330 F.2d at 276.

In this case by accepting counsel's assistance during the long pretrial period and by accepting counsel's representation during the early stages of the trial, Grogan clearly manifested an intent to be represented by counsel rather than to proceed entirely pro se. When counsel informed the Court that Grogan wished to personally enter objections, the District Court ruled only "at this time that Mr. Grogan will not be permitted to make objections during the course of the direct testimony." The Court made it clear at the time of this ruling that consideration would be given to any further application by Grogan for permission to participate in his own defense, but no such further application was made, nor did Grogan request that his counsel be discharged or that he be permitted to proceed entirely pro se. In this regard it is important to note that although Grogan argues that the District Court also denied him the right to personally conduct the cross-examination of witnesses, our examination of the record discloses no instance where Grogan made or the District Court denied any request that he be permitted to personally cross-examine the witnesses against him.

Finally, the record shows that the denial of the request for permission to enter objections to evidence was not made without recognition of Grogan's right and his original desire to conduct his own defense. To the contrary, the record shows that the Court's purpose in making the ruling was to maintain the orderly conduct of the jury trial then in progress, a matter clearly within its discretion. See, e. g., Batsell v. United States, 403 F.2d 395, 401 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969); Sanchez v. United States, 311 F.2d 327, 333 (9th Cir. 1962), cert. denied, 373 U.S. 949, 83 S.Ct. 1678, 10 L.Ed.2d 704 (1963); Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 97, 3 L.Ed.2d 99 (1958). In this case five defendants were being jointly tried under a twelvecount indictment involving a rather complicated factual pattern. Each of the five defendants was represented by a separate attorney. Under these circumstances the District Court's concern that granting permission to Grogan or any of the other defendants to personally enter objections to evidence would only serve to confuse an already complicated trial seems well founded.

We therefore conclude in light of all the circumstances including Grogan's acceptance of representation by counsel that the District Court's denial of Grogan's request for permission to personally enter objections to the admissibility of evidence had neither the purpose nor the effect of violating Grogan's constitutional rights in the premises.

II. APPELLANT PEGRAM'S RIGHT TO SECURE THE ATTENDANCE OF WITNESSES AT THE TRIAL.

The other issue affecting only one of the appellants is whether the District Court committed error in denying appellant Pegram's petition for the issuance of subpoenas and writs of habeas corpus ad testificandum at government expense pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure for five persons, all of whom were incarcerated in either federal or state penal institutions.

In his petition Pegram stated that "these witnesses are necessary to his defense in this case in that their testimony will be used for alibi as well as impeachment purposes" along with an allegation that he was without funds to pay the costs of securing the attendance of the witnesses. The District Court denied the petition for failure to state with sufficient particularity the nature of the testimony sought from the witnesses.

Rule 17(b) of the Federal Rules of Criminal Procedure, 18 U.S.C., authorizes the District Court to order the issuance...