United States v. Gironda, 90

Citation283 F.2d 911
Decision Date16 November 1960
Docket NumberDocket 26351.,No. 90,90
PartiesUNITED STATES of America, Appellee, v. Andrew GIRONDA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Samuel Boxer, White Plains, N. Y., for appellant.

Alfred Donati, Jr., Asst. U. S. Atty., Southern District of New York, Brooklyn, N. Y. (S. Hazard Gillespie, Jr., U. S. Atty., and David R. Hyde, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before HINCKS, WATERMAN and MOORE, Circuit Judges.


Gironda was convicted, along with one Arlene Cohn, for violation of the federal narcotics laws, after a four day trial before Judge Weinfeld and a jury. We affirmed, 267 F.2d 312, and the Supreme Court denied certiorari, 361 U.S. 848, 80 S.Ct. 104, 4 L.Ed.2d 86. Gironda now seeks to have the sentence set aside, principally on the ground that at one stage in the trial his lawyer said he was not feeling well, whereupon after a conference in the robing room the judge at his lawyer's request ruled that he (Gironda) might have the benefit of objections made by counsel for a codefendant. This, he now claims, deprived him of his right to choice of counsel. The Government has filed a motion to dismiss this appeal as frivolous, but we deny this motion and consider the appeal on its merits.

Judge Weinfeld, the trial judge, however, explicitly found defendant's trial counsel to be "thoroughly competent and able" as did Judge Cashin on his reading of the record on this motion. And upon our independent examination of the record, it is clear that he thoroughly and effectively represented Gironda throughout the trial. Gironda may have received some assistance from counsel for a codefendant but his own trial counsel was never replaced. Having been represented throughout by able and competent counsel of his own choice he was not deprived of counsel. The cases relied upon by Gironda on appeal, Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680, and United States v. Harris, D.C.S.D.Cal., 155 F.Supp. 17, are inapposite, since they involve defendants forced to share their counsel with codefendants, rather than one such as the defendant who had his own counsel and additionally received the benefit of objections made by codefendant's counsel.

Nor did Gironda have any right to be present at the conference in the robing room during the discussion as to the permissibility of collaboration between counsel for the codefendants and participation by each. Cf. United States v. Jakalski, 7 Cir., ...

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8 cases
  • United States v. Kelly
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 29, 1965
    ...it clear that the conversation was in no sense a "proceeding," nor was it in any sense whatever a part of the trial. United States v. Gironda, 2 Cir., 1960, 283 F.2d 911, cert. denied, 1961, 365 U.S. 852, 81 S.Ct. 816, 5 L.Ed.2d 816; Stein v. United States, 9 Cir., 1962, 313 F.2d 518, cert.......
  • Dorminey v. United States
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • August 26, 1982
    ...may not now be raised by motion to vacate. See, United States v. Brest, 266 F.2d 879 at 881 (3rd Cir. 1959), and United States v. Gironda, 283 F.2d 911 at 912 (2nd Cir. 1960). Denial of Rights to Fair Trial By An Impartial Jury and to Cross-Examine Because of the already quoted affidavit of......
  • U.S.A v. Davis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 10, 2009
    ...598 F.3d 10UNITED STATES of America, Appellee, v. Charles A. DAVIS, Defendant, Appellant.Docket o. 08-3240-cr.United States Court of AppealsSecond Circuit.Submitted: March 10, 2009.Decided: ...appeal is not frivolous"); United States v. Gironda, 283 F.2d 911, 912 (2d Cir.1960). (per curiam) (denying government's ......
  • Brown v. State
    • United States
    • Court of Appeals of Maryland
    • May 12, 1961
    ...circuit overruled a similar complaint from a defendant who was excluded from a conference in the judge's robing room. United States v. Gironda, 2 Cir., 283 F.2d 911, 912. The minority view relied upon by the appellant is expressed in the West Virginia case of State v. Howerton, 100 W.Va. 50......
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