United States v. Cozzi
| Decision Date | 21 February 1966 |
| Docket Number | No. 14949.,14949. |
| Citation | 354 F.2d 637 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alphonse F. COZZI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Warren D. Wolfson, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., Lawrence Jay Weiner, Asst. U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel.
Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and MERCER, District Judge.
Certiorari Denied February 21, 1966. See 86 S.Ct. 896.
The defendant-appellant, Alphonse F. Cozzi, was convicted of the unlawful possession of goods stolen while moving in interstate commerce, knowing that they had been stolen, and sentenced to seven years imprisonment. He prosecutes this appeal seeking reversal on the ground the District Court denied him his Sixth Amendment right to effective counsel of his own choice.
The record discloses that the defendant was indicted with Anthony Butera, Jr., and Charles DiLella on October 22, 1964. The indictment charged a violation of 18 U.S.C.A. § 659. The arraignment of the three defendants took place on October 28, 1964. Attorney John Cogan represented both Cozzi and Butera, but Cogan's partner appeared for both defendants for the purpose of arraignment. Pleas of not guilty were entered for both defendants. On November 13, 1964, Cogan appeared for both defendants and the cause was reset for trial to December 2, 1964. On December 2, 1964, defendant Butera withdrew his plea of not guilty and substituted a plea of guilty whereupon a judgment of conviction was entered as to him. The trial of the defendants Cozzi and DiLella1 was set for December 14, 1964. On December 10, 1964, Butera was served with a subpoena directing him to appear on the scheduled trial date as a government witness. On December 11, 1964, Cogan was advised by the government prosecutor that the prosecution had no intention of calling Butera as a witness and that his presence was desired for identification purposes only.
When the cause was called for trial on Monday morning, December 14, Cogan represented to the court that, because of the subpoena served on Butera, he felt "that in representing Cozzi, I have an adverse interest here, a conflict of interest" and he requested the substitution of Attorney Morris Meyers as counsel for Cozzi "if the court will grant him time to get prepared in this matter". Meyers, who had been contacted by Cozzi and had consulted with him on December 12, was present in court and expressed his willingness to represent Cozzi if the matter was continued so that he could "acquaint himself with the facts". At this juncture the prosecutor unequivocally assured the court that Butera would not be called as a witness and he advised the court that Cogan had been so informed on the previous Friday. Meyers then suggested that the defendant "might want to say something" but the court pointed out that Cozzi had two lawyers and declined to question the defendant. The court refused to permit Cogan to withdraw as Cozzi's counsel, but expressed permission that Meyers might appear as additional counsel, and directed that the trial proceed at 2:00 P.M.
Cogan represented Cozzi during the trial which followed. Meyers did not appear. Butera did not testify but he was identified by a government agent as the Anthony Butera, Jr., referred to in the...
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