United States v. Kelly, 18847.

• Citation: 467 F.2d 262
• Decision Date: 18 October 1972
• Docket Number: No. 18847.,18847.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John E. KELLY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

467 F.2d 262 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. John E. KELLY, Defendant-Appellant.

No. 18847.

United States Court of Appeals, Seventh Circuit.

Argued February 25, 1972.

Decided October 18, 1972.

Rehearing Denied November 27, 1972.

Edward J. Calihan, Jr., Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gordon B. Nash, Jr., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and KILEY and STEVENS, Circuit Judges.

KILEY, Circuit Judge.

Defendant Kelly was convicted by a jury under six counts¹ of an indictment charging use of the mails to defraud² by unauthorized use of a credit card belonging to another. We affirm.

Mr. J. A. Frisz, marketing manager for White Motor Company, lost his Universal Air Travel Plan credit card on October 11, 1968. The card had been issued by United Airlines to the White Motor Company, for use by Frisz only. On November 19, 1968, Kelly, a Utah attorney, was arrested in Houston, Texas, after attempting to purchase with the Frisz card two identical tickets from Sabena Belgian World Airlines. The arrest occurred after airline officials became suspicious of Kelly, since the card was limited to Frisz only. The airline officials challenged Kelly's identity. Kelly ran off, but was pursued by the officials, who apprehended him a block away. His indictment, trial and conviction followed.

The indictment charged a scheme to defraud as follows: Kelly used the Frisz card without authority, and by false representations obtained airline tickets. He effectually made false promises to the airlines that they would receive payment for the tickets bought by him with the credit card.

The federal element of use of the mails was alleged in the following manner: Kelly, as part of the scheme, "knowingly caused to be delivered by mail . . . envelopes containing . . . transportation receipts addressed to United Airlines. . . ." The indictment charged, so far as relevant, a series of violations of § 1341 in 1968 with different airlines deceived by the fraud: November 22, TWA; November 25, National Airlines; November 25, Continental Airlines; November 29, TWA; December 4, Braniff Airlines; and December 5, American Airlines.³

I.

We see no merit in Kelly's claim that the district court abused its admitted discretion in refusing to grant his motion to transfer F.R.Crim.P. 21(b) the case to a more convenient forum in Nevada.

In his motion attorney Kelly claimed hardship in his lack of financial resources to transport witnesses to Illinois, and in deprivation of "free services" of a Nevada attorney. However, the motion did not identify witnesses that Kelly would call but for the transportation costs.⁴ See Lindberg v. United States, 363 F.2d 438, 439 (9th Cir.1966). And at the trial, two of Kelly's witnesses came from California to testify for him. Moreover, it is not shown that the "free services" of the Nevada attorney would have been an improvement over Kelly's pro se performance. Furthermore, since the principal victim of the fraud, United Airlines, received the receipts at its office in the Northern District of Illinois, and since the receipts were mailed from several states, the Northern District of Illinois was an appropriate forum. See United States v. Doran, 299 F.2d 511, 514 (7th Cir.1962), cert. den. 370 U.S. 925, 82 S.Ct. 1563, 8 L.Ed.2d 504.

II.

At the beginning of trial, Kelly informed the judge that he was "not a trial lawyer, and particularly . . . not sufficiently competent to—or sufficiently informed in federal criminal practice to warrant defending himself." During, and again at the end of, the government's presentation of its case, Kelly requested the services of the Federal Defender Program on the grounds, inter alia, that he had been unable to hire an attorney, and because he intended to take the stand in his own defense, he would have difficulty asking himself questions.

The judge then conducted a hearing into Kelly's financial affairs. The judge concluded the hearing and referred Kelly, with the aid of the district attorney, to a Federal Defender attorney Nellis, for the purpose of discussing an arrangement—determining whether Kelly qualified partially or fully under the Federal Defender Program. He directed the clerk of the court to call Nellis. The judge was to confer with Kelly and the district attorney the next morning and make the decision then whether he would appoint counsel. The judge denied Kelly's motion.

The next morning the district attorney, Nellis of the Defender Program, and Kelly conferred⁵ with the judge. The district attorney opposed Kelly's motion for appointment of an attorney on the ground that Kelly "from the start" was manipulating an asserted right to counsel to create an issue for appeal, and was sufficiently capable and alert to conduct his defense pro se. Kelly repeated his financial inability to obtain private counsel. The court agreed with the view of the district attorney, and declined to impose on attorney Nellis by appointing him at the late stage of the case at which Kelly first moved⁶ for the appointment.

At the previous day's hearing into Kelly's financial resources, Kelly testified that he owned 10,000 investment shares of Pig'n Whistle, Inc., a California corporation for which he had performed legal work. He said that free trading stock of the corporation was quoted at prices $2.00-2.50 per share. However, Kelly testified that under SEC rules he could not liquidate his shares since he had received them on "inside information" and for an "indeterminate time." Kelly further testified that he had offered the stock to "dozens of people" who had refused to accept. He said that his lawyers in Dallas and in Houston had refused to accept the stock, as well as the lawyer representing him in the appeal before us. However, we are not persuaded that he complied sufficiently with the judge's previous day's direction to try and obtain a Chicago attorney, other than the one who had refused to accept the stock as fee.

Kelly also testified: He owned no real or personal property—apart from the Pig'n Whistle stock and a $50 checking account balance. He had no insurance of any kind. He had not privately practiced law since 1968 and had no salary since February 1968. He had been divorced from his wife in 1968 and had not been paying the $50 per month required of him for the support of each of his two children. At the time of trial he had been living on borrowed money for over a year and a half. He owed $11,000 to one brother, $500 to another, and the cost of his airline ticket which had been lent to him by a client friend for the purpose of getting to the trial. Kelly testified that in the last two years he had paid out between $2,000 and $3,000 in attorney fees.⁷

The judge found Kelly "more sophisticated than he pretended" and that he was not credible. The finding rested upon the court's recital of Kelly's conduct in claiming "surprise," when he appeared the day set for trial, that the case was to be tried, despite having received notice that the trial was to begin that day. The finding also rested upon Kelly's vagueness about his ability to retain counsel. This credibility finding was the function of the district judge who had ample opportunity to observe Kelly.

Kelly's testimony—under examination by the district attorney in the inquiry—as to his financial resources could have been suspect by the judge. Taking the testimony at face value, the judge perhaps could not justify an inference that Kelly was able to pay attorney's fees. But the judge found that he could not "accept at face value" Kelly's testimony as to his "sudden indigency" because of Kelly's earlier misstatements and misrepresentations. We cannot say the judge was required to accept Kelly's testimony at "face value." The court concluded in its findings that Kelly's motion for appointed counsel was not made in good faith but was made for the purpose of delaying the administration of justice and in the expectation of creating a spurious issue on appeal. We cannot say those findings are clearly erroneous.

The fact that Kelly had "access" to funds was not determinative of his financial ability. Kelly's "indigency" was not the test of his qualification for appointed counsel. The test was his "financial inability." The Criminal Justice Act of 1964 18 U.S.C. § 3006A(b) and (c) provides that "at every stage of the proceedings" the court shall appoint counsel for a defendant if it is satisfied after "appropriate inquiry" that the defendant is "financially unable" to obtain counsel. See also F.R.Crim.P. 44(a). Nevertheless, we conclude in view of the judge's credibility finding there is substantial evidence to support the judge's inference that Kelly was not "financially unable" to obtain an attorney. Reliance by Kelly on Wood v. United States, 387 F.2d 353 (5th Cir. 1967), is misplaced. There the court decided only—upon remand from the Supreme Court, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed.2d 20 (1967)— that the trial court should have conducted a full inquiry into the financial ability of the defendant to make full or partial payment to retain counsel.

We are unimpressed with the argument that Kelly was prejudiced by denial of counsel and that he was denied a fair trial. And we are not persuaded by the several instances relied upon to show Kelly's incompetence to represent himself in the trial.⁸ First, we think that the record fairly shows that the district court was liberal in not applying strict procedural rules. Secondly, the transcript shows Kelly pro se was at ease in his performance. Finally, despite argument to the contrary, his performance —while not perhaps as skillful as that of the seasoned experts in the area of criminal defense—was nevertheless creditable in the face of the overwhelming proof against him. He was more knowledgeable than he pretended, participated in all...