United States v. Stahl, 16146.

• Decision Date: 12 March 1968
• Docket Number: No. 16146.,16146.
• Citation: 393 F.2d 101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry STAHL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 101 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Henry STAHL, Defendant-Appellant.

No. 16146.

United States Court of Appeals Seventh Circuit.

March 12, 1968.

John J. Cleary, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Lawrence E. Morrissey, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel, for appellee.

Before DUFFY, Senior Circuit Judge, and CASTLE and CUMMINGS, Circuit Judges.

CASTLE, Circuit Judge.

The defendant-appellant, Henry Stahl, prosecutes this appeal from the judgment of conviction and sentence entered following a jury trial on an indictment charging him¹ with robbery of a federally insured savings and loan association, committed with the use of a dangerous weapon, thereby placing the lives of the employees and customers of the association in jeopardy, in violation of 18 U.S.C.A. § 2113(a) and (d). The defendant was sentenced to imprisonment for a period of twelve years.

The defendant seeks reversal of his conviction on the grounds that (1) he was denied the effective assistance of counsel at arraignment and at the trial, and was denied the opportunity of conducting his own defense; (2) denial of his motion for a bill of particulars was prejudicial error; and (3) comment of the trial judge concerning the function of § 3500 statements improperly influenced the jury.

The defendant was arraigned on September 22, 1966. The appointed counsel who had represented him and the co-defendant, Lesczynski, before the United States Commissioner requested leave to withdraw from his representation of the defendant on the basis of conflict arising from his representation of Lesczynski. The latter had previously entered a guilty plea but had not as yet been sentenced. The attorney was permitted to withdraw, but only after the defendant had entered his plea. The court continued the matter to October 7, 1966, in order that the defendant, who had pleaded not guilty, might determine what he desired to do about his representation. On that date the defendant requested the court to appoint a lawyer to represent him. In this connection he advised the court, "I need a lawyer. I think I really need one". He expressed satisfaction with the attorney suggested for such appointment, Attorney William Levinson. The court then appointed Levinson, and later that day, after the defendant had consulted with Levinson, the court fixed October 31, 1966, as the date for trial in event the defendant should not prevail on pretrial motions to be filed and disposed of prior to that date.

When the case was again called on November 21, 1966, Attorney Levinson was permitted to withdraw, it being represented that there was disagreement between him and the defendant on points concerning the handling of the case. The court then proceeded to appoint Attorney Frank Reynolds, who subsequently obtained a continuance of the trial date to January 16, 1967, in order that he might have an investigator interview prospective witnesses who might have information of benefit to the defendant. On January 16, 1966, when the case was called for trial Attorney Reynolds informed the court that the defendant had expressed dissatisfaction with his services and wished to engage his own attorney. The defendant, who the record shows was without financial means to employ an attorney, represented that he had an attorney in mind who would contact his family to see if they could help. The court admonished that the defendant was going to trial the following Monday (a week later) no matter who represented him. Attorney Reynolds then stated:

"He has asked me to withdraw and he wants to represent himself, but I will abide your Honor\'s wishes."

The court denied Attorney Reynolds leave to withdraw, and set the trial for January 23, 1967. The case proceeded to trial on January 23, 1967, with Attorney Reynolds representing the defendant, and without further representations concerning the substitution of other counsel, employed or appointed, or of a desire on the part of the defendant to represent himself and conduct his own defense to the exclusion of his court-appointed counsel.

We recognize that arraignment is a critical stage of the criminal proceeding, and that the defendant was entitled to representation by counsel on that occasion. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed. 2d 114. But defendant entered a plea of not guilty, and, in our opinion, there is no basis for assuming that any conflict of interest which would have precluded further representation of the defendant by counsel representing his co-defendant operated in any manner to invalidate the arraignment for lack of effective assistance of counsel or to otherwise prejudice the defendant. The right to assistance of counsel secured by the Sixth Amendment is a matter of substance, not form. No substantive right of the defendant was here abridged by the acceptance of the plea of not guilty prior to substitution of counsel for the defendant.

And, on the facts and circumstances we have detailed, the court's denial of permission for court-appointed counsel Reynolds to withdraw was not improper. Up to that point the defendant had recognized and attested to his need for trial counsel. His January 16, 1966, statement to counsel concerning his representing himself must be appraised in the context in which it was made — and in the light of the fact that when he was unable to secure employed counsel he proceeded to trial the following Monday with his court-appointed counsel representing him, and without mention of any desire to exercise the right to the sole conduct of his defense. The record, otherwise, demonstrates the defendant's pronounced articulateness on the subject of his representation. The actions of the defendant, and the argument he advances on appeal, make reference to United States v. Plattner, 2 Cir., 330 F.2d 271, 276, appropriate. It was there pointed out:

"Moreover, one of the by-products of the recent developments in the law relative to the assignment of counsel in all but a few of the cases of indigent defendants, has been an awareness by the prison population and a very considerable number of persons who may in the course of time add to the prison population, of the possibility of manipulating the basic rule in a fashion such as to produce a record of confusion on the subject, and to give the accused the opportunity to claim a reversal in the event of conviction on the ground that his rights under the Fifth and Sixth Amendments had been infringed. The ingenuity of these individuals, especially the recidivists, betokens a high if misdirected intelligence."

We conclude that the defendant made no such intelligent waiver of counsel and election to proceed without counsel as would have permitted the court to rule otherwise than it did.

And, the record fully reflects the effective assistance of counsel in the trial which followed. Defendant's claim to the contrary is groundless on the basis of the standard applicable in the resolution of such issue. In United States v. Dilella, 7 Cir., 354 F.2d 584, 587, we said in this connection:

"The constitutional guarantee of the assistance of competent, effective counsel does not require perfection. That guarantee is satisfied when the conduct of counsel is such that the essential integrity of the proceedings as a trial is preserved, United States ex rel. Weber v. Ragen, 7 Cir., 176 F.2d 579, 586, United States ex rel. Feeley v. Ragen, 7 Cir., 166 F.2d 976, 980-981, and the trial has not made a travesty of justice. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 793, cert. denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86."

At the trial the defendant was identified by three employees of the association as one of the two men who robbed it on the afternoon of June 30, 1966. On October 31, 1966, the court had denied a motion of the defendant for a bill of particulars furnishing the names of the employees of the association from whom the money was allegedly taken, and the...