United States v. Perkins, 28023 Summary Calendar.

• Decision Date: 06 August 1971
• Docket Number: No. 28023 Summary Calendar.,28023 Summary Calendar.
• Citation: 444 F.2d 1329
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Benjamin PERKINS and John Henry Mays, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 1329 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Benjamin PERKINS and John Henry Mays, Defendants-Appellants.

No. 28023 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

July 7, 1971.

As Corrected August 6, 1971.

Paul W. Anderson, Marshall, Tex., for Mays.

Richard F. Smith, Dallas, Tex. (Court appointed), for appellant Perkins.

Phillip Benjamin Perkins, pro se.

Richard Brooks Hardee, U. S. Atty., James F. Parker, Jr., Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

This is an appeal by codefendants Perkins and Mays from conviction on charges of using the mails to defraud. The use of the mails was an essential part of a confidence game known as "three card monte."

By opinion of February 9, 1970 we directed sua sponte that counsel be appointed for Perkins by this court, and we temporarily remanded to the District Court with direction that counsel so appointed file in that court pleadings setting out with specificity all issues which Perkins asserts and that the District Court conduct an evidentiary hearing and make findings of fact and enter conclusions of law and certify the record thereof to this court for consideration along with the record already before us.¹ Pending these procedures the appeal of Mays was held in abeyance.

This Court appointed Richard F. Smith, Esq. of Dallas, Texas, and he represented Perkins in the mandated District Court proceedings. The record thereof has been filed with us, and Mr. Smith has filed briefs with us on Perkins' behalf on the record as supplemented.

On the limited remand Perkins raised the following contentions:

(1) That he was arrested without warrant by a postal inspector not authorized to make arrests;

(2) That he was detained and interrogated by state authorities without counsel though requested by him, and information thereby secured from him was used against him at trial.

(3) That he was detained and interrogated by federal officers without being taken before a magistrate and interrogated without proper warnings and without counsel though requested by him, and information thereby secured from him was used against him at trial.

(4) He was not granted sufficient time to retain counsel of his own choosing.

(5) He was not granted sufficient time to prepare his defense between arraignment and trial. Implicit in these contentions is another, that appointed counsel at the trial was given inadequate time to prepare between his appointment on April 21, 1969 and trial two days later.

After a full evidentiary hearing, with testimony from Perkins and from his appointive trial counsel and the prosecutor, the District Judge entered findings that dispose fully of the contentions concerning desire to retain counsel, time between arraignment and trial for Perkins to prepare his defense, and insufficiency of time for trial counsel to prepare, all of them being found to be without merit, and all these findings are fully supported by the record.

With respect to the last named issue, we noted in our earlier opinion that trial counsel was appointed April 21, 1969, and a jury selected that day, and the case tried two days later on April 23, 1969. From the evidence developed on remand, it appeared that Perkins' counsel, an experienced attorney, conferred with him...