United States v. Mitchell, 318.

• Decision Date: 08 November 1943
• Docket Number: No. 318.,318.
• Citation: 138 F.2d 831
• Parties: UNITED STATES v. MITCHELL.
• Court: U.S. Court of Appeals — Second Circuit

138 F.2d 831 (1943)

UNITED STATES v. MITCHELL.

No. 318.

Circuit Court of Appeals, Second Circuit.

November 8, 1943.

John C. Hilly, Asst. U. S. Atty., of New York City, for the United States.

Peter J. Haberkorn, of New York City, for defendant.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

The parties have now shown us that the abbreviated narrative record was erroneous in that the incident when during trial defendant attempted to dismiss his attorney occurred not after the completion of his wife's testimony, but just after the first witness for the prosecution had been sworn and before the actual taking of testimony had begun. It now appears that a jury was impaneled late on Friday afternoon, March 13, 1942, and that the incident occurred just as trial was resumed at noon the following Monday. An objection so made at this early stage of a trial may well be more favorably viewed than one made later after the prosecution has disclosed its case; indeed, our opinion states as much. Even so, when a jury case is already on trial in a district with a crowded calendar such as obtains in the Southern District of New York, a continuance for the obtaining and indoctrination of new counsel would be disruptive of the court's business and could not be claimed under the circumstances except for rather exceptional cause. Hence, so far as appears here, the most that defendant could reasonably have expected would have been the getting rid of his attorney after proper warning by the court of the consequences and the dubious privilege of proceeding unaided. But we do feel that the court was too hasty, in view of the circumstances here presented, in stopping the defendant so quickly and, indeed, in not inquiring as to whether there was any reason for the demand.

A majority of this court nevertheless feel that no reversal should result, because the complete transcript now presented to us discloses both what was motivating the defendant and the fact that in reality the trial cleared up his objection. On cross-examination of the wife, defendant's counsel went extensively into her relations with other men, notably with one Paul Bascomb, and questioned her as to entries in her diary, letters from men, and a photograph album, and intimated by his questions that these had been taken by the "Federal men." The United States Attorney then said (referring particularly to the letters, although his statements obviously included all this material) that he knew nothing about them, that defendant's counsel had spoken to him about them, and that the agent had said they were not among the belongings, but that he would communicate further with the agent again that night. The court then directed the United States Attorney to produce whatever the agent had. Later that day defendant on his direct examination made extensive references to this material, and objected because his lawyer had not produced the diary in court and had not sought a "court order" when he found the landlady would not let him take anything from the room. Defendant said: "Do you remember that diary was not produced in this court and I said to you I refused to accept this man as my attorney, but I didn't tell you the reason why, so no diary and no letters in my behalf concerning this case have been produced here, just me against three witnesses with no chance at all. That is my story, your Honor."

That night the United States Attorney directed an F. B. I. agent to go to the apartment and to secure the diary at a place suggested by defendant's attorney. The next day at trial it was delivered to defendant's attorney, a letter and post cards to the wife were put in evidence by the prosecution, and the diary by the defense, and the wife was recalled and cross-examined as to the diary. No request was made to the court to adjourn the case to enable defendant to prepare cross-examination of his wife. We are convinced that every advantage which could accrue to defendant from the diary was obtained — perhaps even more dramatically because of the attention thus focused upon it. There seems no just ground for criticism of either counsel that the diary was not picked up earlier; nor would its earlier possession have led to further preparation of the case, for the material in it, even the name and identity of Bascomb, had long been known to defendant. It is now more than ever clear that defendant's defense was adequately presented, down to the very detail which initially had disturbed him. No additional line of defense or other evidence is now suggested.

After all, a trial should be viewed practically with the purpose of discovering if the ends of justice have actually been achieved. Had the court permitted defendant to make his explanation, the matter of the diary would have been cleared up that much earlier in the day; but it is hardly conceivable that any other result would have followed. With the point as to the diary disclosed and taken care of, the court would certainly have discouraged defendant from following the well-nigh suicidal course of attempting to go on with the case alone. His substantial rights having been actually protected, reversal is not justified. 28 U.S.C.A. § 391.

Attack is further made upon the sufficiency of the evidence; but the fact that defendant actually lived off his wife's earnings was well established, and there was evidence for the jury from which his intent so to use her, formed before coming to New York, could be deduced from the various incidents recounted in the original opinion as to his desire even then to obtain money through her and by these means. Rehearing, therefore, having been had, the judgment previously entered is confirmed, and the opinion, except as supplemented herewith, is reaffirmed. The motion for bail is denied.

FRANK, Circuit Judge (dissenting).

We originally heard the case on a narrative record. We now have before us the entire transcript which, in important respects not noted in the majority opinion on this rehearing, virtually destroys, I think, the reasons given by my colleagues in their original majority opinion. For that opinion rested on these propositions: (1) The case against the defendant was "strong." (2) The defendant's request at the trial to be relieved of his lawyer was made after most of the evidence constituting the government's "strong" case had been concluded, so that his request was in the nature of a trick and, if granted, would have caused a mistrial of a case substantially complete; (3) the defendant gave no adequate reason for his request. It now appears, however, from the transcript, that (1) the government's case, even when complete, was far from "strong," (2) that the defendant's request was made before one iota of evidence had been introduced, and (3) that there were good grounds for this request.

First, as to the "strong" case. The crime charged is transportation of defendant's wife from New Mexico to New York for the purpose of having her engage in prostitution. The testimony of the wife supplies the sole basis for a verdict as to defendant's illegal purpose in this transportation. Important details of her testimony on this crucial issue were not included in the narrative record but were first disclosed in the transcript from which it now appears that she testified as follows: The defendant, on three occasions in California, unsuccessfully tried to induce her to engage in prostitution for his financial benefit. The last of those three occasions was sometime in April 1941, when he was in jail (having been indicted for the possession of marihuana) at which time he wrote her that he needed $100 for a lawyer. But these three incidents occurred at least five months before she married defendant (because she loved him) in October 1941 in Albuquerque, New Mexico. Several times, from February to April he had asked her to marry...