United States v. Rodriguez Vallejo, 73-1240.

• Decision Date: 16 May 1974
• Docket Number: No. 73-1240.,73-1240.
• Citation: 496 F.2d 960
• Parties: UNITED STATES of America, Appellee, v. Ernesto RODRIGUEZ VALLEJO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

496 F.2d 960 (1974)

UNITED STATES of America, Appellee, v. Ernesto RODRIGUEZ VALLEJO, Defendant, Appellant.

No. 73-1240.

United States Court of Appeals, First Circuit.

Argued February 5, 1974.

Decided May 16, 1974.

Benicio Sanchez Castano, San Juan, P. R., with whom Cesar Andreu Ribas and Benicio Sanchez Rivera, San Juan, P. R., were on brief, for appellant.

Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Rodriguez Vallejo appeals from a judgment of conviction for possessing narcotics with intent to distribute and for distribution in violation of 21 U.S. C. § 841(a)(1). The only issue is whether he was denied effective representation of counsel. Rodriguez complains of being forced to trial with original counsel notwithstanding his request, made a day before the scheduled trial, for time to procure new counsel.

To decide whether the court acted properly, or whether instead it acted "with myopic insistence upon expeditiousness in the face of a justifiable request for delay", it is of course essential to look at the circumstances. Ungar v. Sarafite, 376 U.S. 574, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1963). Chronologically the following appears from the docket and transcript:

Rodriguez was indicted September 21, 1972. His privately retained counsel was Mr. Alfredo Alvarez Linares, who entered an appearance without qualification. Alvarez petitioned on September 18 and 22 for bail reduction, and took part in a hearing at which his client's bail was reduced. As the defendant was in custody the court announced that the case was to be set for trial as soon as possible. On October 11, Alvarez argued a motion to have his client released upon filing a $50,000 bond. Because Alvarez had another trial commitment, the court continued a later hearing on proposed sureties. Alvarez argued the surety matter on October 20. Six days later appellant, again by Alvarez, moved for time to raise cash; the motion was granted after argument.

Neither Alvarez nor his client appeared at the arraignment which was scheduled for January 8, 1973. However, alleging he had another case pending that day, Alvarez had filed a motion to change the arraignment date; he was thus able to satisfy the court that it should withdraw a warrant issued for Rodriguez' arrest and re-set the arraignment for January 15, 1973. This time Alvarez and his client appeared. The court set the case for trial on February 27, and scheduled a pretrial conference for February 20. There is nothing to indicate any objection by Rodriguez or by Alvarez to these dates. Defendant claims that he attended the pretrial conference in company both of Alvarez and Attorney Belen Trujillo.¹ But Mr. Trujillo did not file an appearance, and on February 26, a day before the scheduled trial day, told the court in chambers that he did not desire to do so. Prior to February 26, there is nothing in the record suggesting that Alvarez was not to be Rodriguez' trial counsel.

On February 26, Alvarez filed a motion for leave to withdraw as attorney for the defendant and that the trial not go forward the next day as scheduled:

"The undersigned attorney, upon being requested by the defendant to represent him, advised the Honorable Hiram Cancio, Chief Judge, that he would only undertake to represent said defendant at the arraignment and for the purpose of preliminary motions such as the matter of bail for defendant, because of lack of fluency in the English language, and because undersigned, although an experienced practitioner of civil laws, has slight experience in criminal matters, particularly Federal criminal matters, and could not adequately represent said defendant, defendant has retained Belen Trujillo, Esq., to represent him at the trial of this case; however, Mr. Trujillo has a muerder sic case, already commenced, set for trial on the 27th of February, 9:00 A.M."²

The motions were argued the next day. Alvarez requested only a "continuance for another day", reiterating that he was inexperienced,³ and that Trujillo, who would be available on the following day, was to take charge of the case. He told the court that he was not prepared for trial because the defendant did not understand the importance of the case and had not made himself available for interviews. Alvarez also moved for a delay in order that the defendant have a mental examination.

The prosecutor opposed both motions. He argued that the defendant was not unfamiliar with the criminal courts and had on prior occasions been represented by well-known criminal lawyers to whom he had ready access when he wanted them. As the defendant had at no previous time indicated dissatisfaction with his counsel or the trial date, the prosecutor suggested that the motion was merely dilatory. The prosecutor represented that he had already summonsed witnesses, at government expense, from Atlanta and Miami. He opposed the motion for a mental examination because the defendant had used that "tactic" in a previous criminal case; allegedly defendant insisted upon his competence when, wanting to plead guilty, it became convenient to do so. A later psychiatric report concluded that Rodriguez did not suffer from a mental condition.

The court denied the motion for mental examination, finding the request to be a subterfuge. At first the court also denied a continuance, noting that Trujillo had informed it on the day previous that "he did not wish to enter his appearance". The court said,

"There is no showing here of diligence, there is no showing here of cooperation, it seems . . . simply a matter of doing whatever is necessary to get this case continued so that it will not have to go to trial today If additional counsel were needed or it other counsel were wanted, there was ample time to get both, there has been no showing, there has been no overt act, there has been no attempt as far as this Court knows to secure any other counsel. And that failure has to be charged to the defendant. If he hasn\'t any interest any more in the trial of his case or the disposition of this case, then why should this Court give him any consideration in granting a continuance?

"He hasn\'t shown any consideration, he has shown no cooperation of any kind to help himself, and as far as I know, from what I understand, he is an intelligent person."

The court expressed a suspicion that if the case were continued one more day, yet another continuance would be requested.

But Rodriguez insisted that Trujillo had told him the night before that he would try the case, and said, "If you give me 24 hours I will have an attorney here that will be able to represent me". The following then occurred:

"THE COURT: Well, the defendant has gotten himself in this situation but I am going to do this, and this is all, I will continue this case until 9:30 tomorrow morning. I will not release Mr. Alvarez Linares from this case, he will still be in this case and this case will start tomorrow morning at 9:30, whether you have another attorney or whether you do not have another attorney. Does he understand that?

"THE DEFENDANT: I will get one tonight.

"THE COURT: And Mr. Alvarez Linares, this Court is not releasing you from the responsibility of this case, you will still be an attorney in this case, and if the defendant does not have another lawyer when we go to trial tomorrow morning, this Court expects you to conduct the defense, because this is a thing that should never have happened.

. . . . . .

"MR. ALVAREZ: I will be here tomorrow morning."

The next day Trujillo did not appear. Instead Alvarez moved again to withdraw as counsel and for a continuance, saying the defendant had contacted other attorneys who "are ready to take charge of the case, but not today, maybe some time". Rodriguez claimed he had relied upon Trujillo. He said he had a receipt for money allegedly paid to Trujillo, but did not offer it to the court or produce any corroboration. The motions were denied, and the trial commenced. At the close of the government's case, Alvarez requested a continuance until the next day to prepare a defense, which was granted. Rodriguez repeated his request for a further continuance, but at no time did he indicate that he wished to proceed pro se without Alvarez' help. He said that he had contacted several lawyers who for various reasons were not available. The court refused the request, asserting,

"You had ample time from the day of the indictment to the date of trial after having been notified on two different occasions concerning the trial date to secure counsel.

"On Monday of this week, Mr. Belen Trujillo appeared in chambers of this Court and requested a continuance. The Court asked Mr. Belen Trujillo if he had entered his appearance in this case and he said no. I advised Mr. Belen Trujillo at that time that until he had entered his appearance sic and he did not enter his appearance; then there were several motions for continuance made for the reasons set out in those motions. The Court heard those motions and refused them because there was no merit in what was said, there was ample time for you to secure another lawyer if you wanted one, . . . if there were any dilatory negligence in this matter it was laid at your door and it was your fault and no one else\'s.

"You should have had the opportunity to secure another lawyer if you had wanted when all motions for a continuance failed. Then you came forward with the motion to be examined by a psychiatrist because you claimed you were not physically and mentally capable of standing trial. The Court reviewed the report made by the psychiatrist approximately a year ago which was practically a proceeding identical with the proceeding here in Court. Relying on the psychiatric report which was made approximately a year ago in which you were found mentally

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