United States v. Mitchell
| Decision Date | 13 January 1966 |
| Docket Number | No. 239,Docket 30104.,239 |
| Citation | 354 F.2d 767 |
| Parties | UNITED STATES of America, Appellee, v. David Henry MITCHELL, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jon O. Newman, U. S. Atty. for Dist. of Connecticut, Hartford, Conn., for appellee.
Fyke Farmer, Nashville, Tenn., for defendant-appellant.
William K. Muir, Jr., New Haven, Conn. (Carroll W. Brewster, New Haven, Connecticut, on the brief), for New Haven Civil Liberties Council, amicus curiae.
Before LUMBARD, Chief Judge, and MEDINA and KAUFMAN, Circuit Judges.
Appellant David Henry Mitchell, III, appeals from a judgment of conviction, entered upon a jury verdict of guilty, arising out of a one-count indictment charging appellant with wilful failure to report for induction into the Armed Forces, in violation of 50 U.S.C. App., § 462.
Various points of law have been covered in the briefs and on oral argument but we shall confine our discussion to the decisive question, whether appellant's right to the effective assistance of counsel under the Sixth Amendment was infringed by forcing him to trial without allowing him sufficient time to obtain defense counsel of his own choice.
On May 20, 1965 appellant was indicted. He pleaded not guilty on June 14, 1965. A motion to dismiss the indictment, made on August 2, 1965, was argued on September 7, 1965 and on the same day denied. On the following day the trial judge was disposed to proceed at once to trial, but certain developments to which we shall refer later led to a continuance until September 13, 1965, at which time a trial was had resulting in appellant's conviction and the imposition of a sentence to not less than 18 months and not more than 5 years imprisonment pursuant to 18 U.S.C. § 4208(a) (1), and the imposition of a committed fine of $5,000. Appellant has been released on bail pending the disposition of this appeal.
Of basic importance is the fact that appellant, for the 4 previous years, and up to and including September 8 and September 13, had taken the position before the Draft Board and in the District Court that his refusal to comply with Selective Service requirements was not because he was a pacifist but because, if he submitted to the draft, the "Nuremberg Law" would render him "guilty of complicity in crimes defined by the Charter of the International Military Tribunal," specifically wars of aggression and acts of inhumanity. Apparently it was his plan of defense to attempt to prove in one way or another that the United States had been guilty of such wars of aggression and acts of inhumanity in Vietnam, Cuba, Panama, Santo Domingo and elsewhere.
Against this background, the scene opens in the District Court on the morning of Wednesday, September 8. Up to that time and for about a year, including a considerable period of time before appellant was indicted, he had been represented by Conrad J. Lynn, Esq., as his lawyer. The trial judge announced that Mr. Lynn had told him over the telephone that he was ill and could not be present in court on September 8. The substance of what then occurred was that appellant informed the trial judge that he was about to dismiss Mr. Lynn and he asked for time to obtain new counsel, stating that his problem was not lack of funds but rather the difficulty of "finding a counsel who I will have confidence will represent my position in opposition." The trial judge adjourned the trial to the following Monday and said: "The condition, however, that the Court imposes upon substitution of counsel is that he be ready to proceed with the trial of the case on Monday, September 13." Appellant insisted that the time was too short.
The colloquy was resumed in court on Monday, September 13. Mr. Lynn was present and he informed the trial judge that he had spoken with appellant who did not feel that Mr. Lynn could represent him, "there is complete incompatibility on the way this matter should be presented." Also in court was Anthony C. Apicella, Esq., an experienced trial lawyer and former Assistant United States Attorney, whom the trial judge had asked to be there and who had agreed to represent appellant as assigned counsel, should the occasion for his appointment as such arise. Appellant promptly said he had dismissed Mr. Lynn and "I am not ready to accept court-appointed lawyers." While the discussion continued for several pages of the transcript, the end result was that Mr. Lynn and Mr. Apicella were told to give appellant such legal advice and assistance as he might desire. Appellant, on the other hand, insisted he needed more time to obtain new counsel of...
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