United States v. Weathers

• Decision Date: 06 October 1970
• Docket Number: No. 17891.,17891.
• Citation: 431 F.2d 1258
• Parties: UNITED STATES of America v. Christopher WEATHERS, alias Chris, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

431 F.2d 1258 (1970)

UNITED STATES of America v. Christopher WEATHERS, alias Chris, Appellant.

No. 17891.

United States Court of Appeals, Third Circuit.

Argued September 24, 1970.

Decided October 6, 1970.

Herbert G. Labbie, Pittsburgh, Pa., for appellant.

Douglas D. McBroom, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before KALODNER, FREEDMAN and ADAMS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

The principal issue raised by this appeal is whether the District Court erred in denying defense counsel's motions for a continuance because he required more time to prepare the defense and because of a possible contamination of the jury. It is also contended that the provisions of 26 U.S.C.A. § 4704(a)¹ and § 4705(a)² abridge the privilege under the Fifth Amendment against self-incrimination of persons prosecuted under those sections.

Appellant Weathers was indicted on April 17, 1968 in the District Court for the Western District of Pennsylvania for violating on two occasions in December, 1967 the provisions of 26 U.S.C.A. §§ 4704(a) and 4705(a) by selling heroin not in or from the original stamped package nor pursuant to a written order. On April 25, A. Morris Ginsberg, Esquire, moved on Weathers' behalf that bail be set, and the District Court granted the motion. No other legal assistance to Weathers by Mr. Ginsberg is revealed by the record.³ On May 15, Weathers retained Alan Frank, Esquire, who entered his appearance on May 16, to represent Weathers at trial. When Frank accepted this assignment he was already committed to try four⁴ other cases over the next three weeks. When the trial list was called the next day, May 17, Frank was advised that Weathers' trial was scheduled for early June. Because identification of Weathers would be the main issue at trial, Frank knew he would have to locate and interview witnesses who could testify to Weathers' appearance and activities at the times in question. When the trial was called before Judge Dumbauld on June 4, Frank moved for a continuance, stating that because of his other trial obligations and two days of illness he had been unable to prepare a proper defense. Judge Dumbauld denied the motion without comment.

Counsel then moved for a continuance to allow selection of a new jury from a different panel because the present jurors had been drawn from the same panel from which was drawn the jury that had heard the opening statement by the United States Attorney in a previous case. That case had involved the same defense counsel in the same court room before the same judge, and had presented an almost identical fact situation involving an alleged sale of heroin. The defendant in that case had changed his plea to guilty after the opening by the United States Attorney. Weathers' counsel, however, did not offer to show that any of the jurors who had been selected for Weathers' trial had, in fact, sat in the previous case. The motion regarding the jury was also denied. After presentation of the evidence, the jury returned a verdict of not guilty as to two counts involving one of the sales, and guilty as to two counts pertaining to the other sale.

Whether the denial by the trial judge of a motion for a continuance is so arbitrary as to violate due process has been said by the Supreme Court to depend on the facts in each case:

"The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964).

While the reasons presented to the trial judge at the time of the motion for continuance for additional preparation appear to have some merit,⁵ we are unable to say Judge Dumbauld abused his discretion. Our judgment, however, is made more difficult by the fact that the trial court gave no reasons for its denial. Such practice should not be followed in future cases. We are influenced here because counsel had been retained almost three weeks before trial, did not specify in what ways he had "been unable to prepare the defense as he had anticipated," nor what he might have done in preparation if given more time.⁶ See Blackwell v. United States, 405 F.2d 625 (5th Cir. 1969); cf. United States v. Ploeger, 428 F.2d 1204 (6th Cir. 1970).

Weathers cites Chief Judge Murrah's opinion in Casias v. United States, 315 F.2d 614 (10th Cir. 1963) in support of his argument that a continuance should have been granted because of possible jury contamination. In that case "one of the twelve jurors had served 3 times in similar cases, 4 had served twice, and 6 had served once," and "all the jurors except one had heard the testimony of 2 or more of...