Williams v. United States, 13677.

• Decision Date: 26 November 1962
• Docket Number: No. 13677.,13677.
• Parties: Claude WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

310 F.2d 696 (1962)

Claude WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 13677.

United States Court of Appeals Seventh Circuit.

November 26, 1962.

Clarence F. Wittenstrom, Jr., Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., Raymond F. Zvetina, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., of counsel, for appellee.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

KNOCH, Circuit Judge.

Claude Williams, petitioner-appellant herein, was indicted in May, 1955, in three counts for violation of the federal narcotics statutes. As Mr. Williams was without counsel, the District Court appointed John Gannon of the Illinois bar to represent him. Mr. Williams pleaded not guilty, and his trial was set for September 12, 1955.

On September 12, 1955, Mr. Gannon advised the Court that he had been unable to contact Mr. Williams after the latter's release on bond, August 12, 1955, and that Mr. Williams, having lost Mr. Gannon's card, had failed to reach him during that period. On the same day, Mr. Williams indicated that he would like to secure other counsel, and Mr. Gannon requested leave to withdraw as counsel for Mr. Williams. Leave to withdraw was granted.

The cause was continued to September 14, 1955, for trial, to allow Mr. Williams to secure his own lawyer. The District Judge cautioned Mr. Williams that he must return on September 14, 1955, with his own attorney, or proceed to trial without counsel.

On September 14, 1955, Jack Rosen, an attorney and a member of the Illinois bar, advised the District Court that Mr. Williams had retained Melvin B. Lewis, with whom Mr. Rosen was associated, as defense counsel, but that Mr. Lewis was trying a capital punishment case in another county and could not be present that day. Mr. Rosen requested a 30-day continuance on the ground that Mr. Lewis had been retained only the day before and, apart from being engaged in trial elsewhere, had had no opportunity to prepare a defense.

The Assistant United States Attorney present for the government stated that Mr. Lewis had telephoned him the day before to report that Mr. Williams had been referred to Mr. Lewis by the Chicago Bar Association.

The District Judge commented on Mr. Williams' lack of effort to contact the counsel originally appointed for him, although he must have known that his case was set for trial on September 12, 1955. Further continuance was denied. It was the District Judge's stated opinion that Mr. Williams had made no sincere effort to obtain counsel until September 13th.

Although Mr. Rosen asserted that he had been an attorney for only three and one-half months and did not consider himself "a fair counsel" for Mr. Williams, he was appointed to represent him at the trial. The District Judge did continue the cause till the afternoon session to provide Mr. Rosen a few hours' preparation time.

A jury was duly empaneled. The parties by their counsel stipulated orally that in the event of illness of not to exceed two jurors, the remaining ten or eleven jurors might proceed with the trial and return a verdict.

After trial, the jury found Mr. Williams guilty as charged in counts two and three of the indictment, and not guilty as to count one. Only eleven jurors signed the verdict, one of the jurors having been excused on September 19, 1955, before the jurors retired to consider their verdict.

When the District Judge had asked whether the parties would stipulate to return of a verdict by only ten or eleven jurors, the prosecution had stated: "The Government will so stipulate." Mr. Rosen had answered: "The defense will also, sir." It does not appear that this stipulation was reduced to writing as contemplated by Federal Rules of Criminal Procedure, Rule 23(b).

Although Mr. Williams was in the courtroom at the time of the oral stipulation, he contends that he was not in fact aware that any such stipulation had been made and never expressly and intelligently consented to it. This presents an issue of fact which the record before us does not conclusively resolve.

The District Judge imposed a sentence of two years on count two and five years on count three, to run consecutively. The sentence of five years was suspended, and Mr. Williams was placed on probation for the five-year period beginning at the expiration of the two-year sentence.

On September 27, 1955, after a number of post-trial motions were decided, Mr. Rosen sought and was granted leave to withdraw as counsel for Mr. Williams on the ground that he was to be inducted into the United States Army on October 4, 1955. No appeal was taken.

Mr. Williams served the two-year sentence imposed on count two, and entered on the five-year probationary period. During that period, he was tried and convicted of unlawful sale of narcotics in the...