United States v. Redwitz
| Decision Date | 27 February 1964 |
| Docket Number | No. 15300.,15300. |
| Citation | 328 F.2d 395 |
| Parties | UNITED STATES of America, Plaintiff and Appellee, v. Kenneth F. REDWITZ, Defendant and Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jerome D. Winegarden, Flint, Mich., John J. McDonough, Bay City, Mich., Elliott, Elliott & Winegarden, Philip Elliott, Flint, Mich., on brief, for appellant.
Robert L. Loucks, Asst. U. S. Atty., Bay City, Mich., Lawrence Gubow, U. S. Atty., Bay City, Mich., on brief, for appellee.
Before O'SULLIVAN, Acting Chief Judge, MAGRUDER, Senior Circuit Judge* and McALLISTER, Senior Circuit Judge.
Appellant was convicted of receiving and selling an automobile, which was moving in interstate commerce, knowing it to have been stolen, in violation of the Dyer Act, Title 18 U.S.C.A. § 2313. He claims reversible error in the trial court's refusal to grant a continuance to his counsel on the ground that they did not have sufficient opportunity to acquaint themselves with the law and the facts of the case; that, further, the District Court improperly and frequently intervened in the examination of witnesses, by asking the District Attorney questions concerning the proof, and adopting suggestions from the District Attorney, giving the jury the impression that the Court was identified with the officials prosecuting the case; and that the Court's instruction as to the burden of proving appellant's guilt beyond a reasonable doubt was, taken as a whole, confusing to the jury, and prejudicial to appellant.
As to the claim that the trial court committed reversible error, in refusing to grant a continuance to appellant's counsel on the ground stated in their motion that they did not have sufficient time to acquaint themselves with the law and the facts in the case, the docket entries are pertinent.
Appellant was arrested on July 20, 1962, on a warrant charging him with violation of the Dyer Act.
On August 28, 1962, appellant and three others were jointly indicted on nine counts charging violation of the Act. One of the defendants pleaded guilty to five counts of the indictment. Appellant and the two other defendants stood mute, and a plea of not guilty was entered for them. When arraigned, appellant appeared without counsel. At the time, the following occurred:
Mr. Petit, who participated in the foregoing, seems to have been a deputy clerk of the Court.
On September 21, 1962, a motion for a continuance was filed by one of the other defendants and heard on the same day. The motion for continuance was granted, and the case was reset for trial on October 8, 1962.
On October 4, 1962, the defendant, Charles H. Duncan, Jr., withdrew his plea of not guilty and pleaded guilty to all counts charging him.
On October 8, 1962, the trial commenced. At the commencement of the trial, appellant, by his counsel, Mr. John McDonough and Mr. John Patterson, moved the Court for a continuance. Appellant's counsel stated that appellant, prior to the weekend, had consulted with Mr. Purcell, and because of other commitments, Mr. Purcell was unable to represent appellant; that on the prior Saturday, forty-eight hours before the commencement of the trial, appellant retained Mr. Patterson and Mr. McDonough; that they had not seen the indictment until that time; and that they felt that they had insufficient time to prepare appellant's defense, or even to understand the full nature of the charge which had been brought.
The Court, in reply to this motion and statement by appellant's counsel, declared that Mr. Purcell, who had been appellant's attorney, was not present, not because he had other commitments, but because appellant did not pay him for his services; that, when appellant did not pay him, Mr. Purcell had told appellant that unless he paid him, appellant would have to get other counsel; that appellant knew that, and had known it for a long time, and that if he had retained Mr. McDonough on Saturday, "why, that's just too bad." The Court continued: "The Court can't grant an adjournment just because somebody, just because some attorney comes along here, and says, why we just got into the case, when, if that were true, all a defendant would have to do would be to change attorneys at the last minute."
To the foregoing statement of the Court, counsel for appellant replied:
The Court was wrong in his first impression that Mr. Purcell had appeared in court on behalf of appellant; and there certainly was no proof that Mr. Purcell withdrew from the case because appellant had not paid him for his services.
In the defendant's appendix on appeal appears a letter signed by Mr. Purcell, dated September 17, 1962, and stating:
To continue reading
Request your trial
-
State v. McGinnis
...as well as the attorney, to be diligent.' Maloney v. Traverse, 87 Iowa 306, 309--310, 54 N.W. 155, 156 (1893). See United States v. Redwitz, 328 F.2d 395, 398 (6 Cir. 1954) (where accused knew of need for counsel for three weeks, failed to retain until preceding weekend); State v. Hathaway,......
-
U.S. v. Miller
...could have been resolved easily at a time and in a manner that would have made a continuance unnecessary. See United States v. Redwitz, 328 F.2d 395, 398 (6th Cir. 1964). Finally, defendant has made no attempt on this appeal to demonstrate any harm resulting from lack of preparation or inco......
-
Franklin v. United States
...appellant's motion for continuance. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Redwitz, 328 F.2d 395, 398 (6 Cir. 1964). The appellant claims that the 1966 amendment to Rule 18 of the Federal Rules of Criminal Procedure is unconstitutional i......