Williams v. United States

• Decision Date: 12 May 1964
• Docket Number: No. 14342.,14342.
• Citation: 332 F.2d 36
• Parties: Claude WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

332 F.2d 36 (1964)

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

No. 14342.

United States Court of Appeals Seventh Circuit.

May 12, 1964.

Claude Williams, No. 46151, Clarence F. Wittenstrom, Jr., Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Raymond F. Zvetina, Asst. U. S. Atty., Frank E. McDonald, Chicago, Ill., U. S. Atty., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Claude Williams, petitioner, has appealed from an order of the district court entered July 12, 1963, following proceedings in that court pursuant to our reversal and remandment, 7 Cir., 310 F.2d 696 (1962).¹

Upon remand, the district court entered findings of fact and conclusions of law and ordered that petitioner's motion in the nature of a writ of error coram nobis to vacate and set aside judgment of conviction be denied. It is that order from which petitioner has appealed.

Responding to a three count indictment charging violation of the federal narcotics statutes, petitioner was arraigned on July 13, 1955 after the court had appointed John Gannon, an experienced attorney of the Chicago bar, to defend him. A plea of not guilty was entered and the case was set for trial on September 12, 1955. Petitioner was in custody until August 12, 1955, when he was released on bail. He was not "contacted" by Mr. Gannon. According to petitioner, he was unable to "contact" his attorney "because he had lost" his card. On September 12, Mr. Gannon was granted leave to withdraw as counsel, because petitioner expressed a desire to hire his own attorney. One reason stated by petitioner for the change was that Mr. Gannon advised him to plead guilty. The court gave petitioner two days to get a lawyer. The following day petitioner was referred by the Chicago Bar Association to attorney Melvin B. Lewis, whom he employed after a conference. On the trial date attorney Lewis sent an associate attorney, Jack Rosen, into court and he explained that Mr. Lewis was trying a murder case in DuPage County and requested a 30 day continuance. The court, according to petitioner, pressed Mr. Rosen to trial, although he was "an inexperienced three and one-half month lawyer who was given only four hours to prepare for trial".

After a four-hour recess, the trial began at 2:30 P.M. on September 14th. After a jury was impaneled, Mr. Rosen and government counsel orally agreed to continue the trial with less than twelve jurors in the event of the illness of not to exceed two members of the jury. This stipulation was not reduced to writing. Later, during the trial, one juror became ill and was excused. The court, referring to the stipulation, proceeded to a verdict of guilty, with the remaining eleven.

Petitioner's brief in this court now emphasizes that when one juror was excused and the trial proceeded "both counsel did not again agree that the trial should proceed with only 11 jurors". (Boldface supplied.)

Although petitioner was in the courtroom at the time counsel made the oral stipulation, he contends that he was not in fact aware thereof and never consented to it. On this point the court made the following finding and conclusion:

"The court recalls that at all times during the proceedings at the trial, including the time at which counsel entered into the stipulation concerning the jurors, petitioner paid close attention and followed each development. It is the considered opinion of this court that petitioner heard the statements made concerning the jurors and was cognizant of the stipulation and its import."

The jury found petitioner guilty as charged in counts two and three of the indictment, and not guilty as to count one. The district court imposed a sentence of two years on count two and five years on count three, to run consecutively.

After petitioner fully served his two-year sentence on count two of the indictment, he was released in 1957 and began serving a five-year probationary period on count three. In 1960 he was convicted in an Illinois state court for the unlawful sale of narcotics and sentenced as a second offender to the penitentiary for the period of his natural life. He was then by the district court found guilty of violating his federal probation and sentenced to serve 10 years² concurrently with his state sentence.

1. In this court, petitioner's counsel takes the position that he had an unqualified constitutional right to be defended by counsel of his own choice and not by some other counsel arbitrarily designated by the court to help him. He relies principally upon Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), which cited Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937) and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The holdings in these three cases will be considered together.

In Powell, in a capital case several illiterate defendants were brought to trial upon a rape charge and it was not until the very morning of the trial that any step was taken to appoint counsel for them, except that the trial court had "appointed all the members of the bar" for the limited "purpose of arraigning the defendants." Then, within a few moments after counsel for the first time charged with any degree of responsibility began representing them, a trial was held and they were found guilty and sentenced to death.

In Palko v. Connecticut, 302 U.S. at 327, 58 S.Ct. 149, 82 L.Ed. 288 the court said that the defendants in Powell were condemned unlawfully when in truth, though not in form, they were refused the aid of counsel.

In Chandler, defendant Chandler sought release on a writ of habeas corpus from a life sentence as an habitual criminal. He had appeared in court for trial on an indictment charging housebreaking and larceny, intending to plead guilty. However, at that time the trial judge informed him that he would also be tried as an habitual criminal, which, if he were convicted thereof, carried a mandatory sentence of life imprisonment with no possibility of parole. Chandler asked for a continuance to employ counsel on that new accusation. His request was denied, a jury was impaneled and the case proceeded immediately to trial. By a show of hands, the jury found him guilty on all charges, without leaving the jury box, a proceeding which consumed between five to ten minutes.

At the hearing on the habeas corpus proceeding, the prosecuting attorney testified that Chandler had not been represented by counsel and had not been given a pretrial notice of the habitual criminal accusation, although he admitted that Chandler said he wanted the case put off as he was being tried as an habitual criminal in addition to housebreaking and larceny.

The Supreme Court held that he was entitled to a jury trial on the habitual criminal charge and held that he did not waive counsel on that accusation. It further held that, by denying him an opportunity to obtain counsel on that charge, his constitutional rights were violated.

We consider it significant that, in contrast to the obvious deprivation of the effective legal representation by a lawyer, existing in Powell and Chandler, the record in the case before us reveals that petitioner was represented at the trial by a lawyer, duly admitted to the Illinois bar, sent into court by attorney Lewis, who was employed by petitioner, after attorney Gannon, his prior counsel, had advised him to plead guilty. Not only was Rosen sufficiently equipped as a lawyer to be admitted to the bar of Illinois, but there was no act of commission or omission by him during the trial which it is charged by petitioner's present counsel was inept, incompetent or injurious to the defense of petition...