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January 3, 1958


The opinion of the court was delivered by: DUSEN

The factual background of this case is summarized on the first three pages of the opinion filed November 23, 1956. *fn1" A new trial was ordered on June 26, 1957, by the United States Court of Appeals for the Third Circuit for failure of the undersigned trial judge to comply with the requirements of the opinion of the Supreme Court of the United States in Jencks v. United States, 1957, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103. *fn2" At this new trial, lasting from October 1 to October 7, 1957, substantially the same evidence was produced as that introduced at the former trial and the second jury also returned a verdict of guilty on both counts of the indictment. The case now comes before the court on defendant's motion for new trial and for the entry of judgment of acquittal, filed October 11, 1957. *fn3"

I. Alleged denial to defendant of his right to the effective assistance of counsel of his choice.

 The defendant was represented by three lawyers *fn4" prior to the time of filing of his Reply Brief on his second appeal to the United States Court of Appeals for the Third Circuit on June 6, 1957, when the name of Edward M. Dangel, Esq. (together with those of Mr. Singer and Mr. Dangel's associate, Mr. Sherry) first appears on any document in the files of any court in this matter. *fn5" Mr. Singer was clearly the most active lawyer on behalf of the defendant from the time he entered his appearance in May 1956 until October 1, 1957, when the application for continuance of the second trial was made on the ground that defendant was entitled to have Mr. Dangel, who was then ill, represent him at this trial. He not only participated actively in the first trial as assistant to Mr. Osinoff, who acted as chief trial counsel, but also ably argued several motions before the trial judge, including the Motion for New Trial, signed both Notices of Appeal, and his name appears on all briefs filed for defendant in the United States Court of Appeals for the Third Circuit.

 The first evidence in this court of any connection of Messrs. Dangel and Sherry with this case is the appearance of their signatures, together with that of Mr. Singer, on three pre-trial motions filed August 30, 1957, which was one week after notice that the case was listed for trial was sent to Messrs. Singer and Dangel (see Exhibit C-3). *fn6" Neither of them have ever entered their appearance for defendant in this court and no other document bearing their signatures appears in the file prior to the October 1957 trial. Mr. Singer argued for the defendant in support of three pre-trial motions before this court on September 18, 1957 (see Document No. 51 in Clerk's file). Mr. Singer was present on behalf of the defendant at 10 a.m. on September 30, when the list was called, and the case was marked ready for trial without his objection and without his making any statement that he was not going to try the case or that the defendant's trial attorney was ill. *fn7" On the Morning of October 1, 1957, for the first time, the court was notified that (a) Mr. Dangel was to be chief counsel for the defendant at this trial, which had been scheduled since August 23, 1957, (b) he was ill and being committed to the hospital on October 2 *fn8" for surgery, (c) he had 'part of the files in his possession,' and (d) defendant applied for a continuance on these grounds. *fn9" Mr. Singer, as counsel for the defendant, was told to make the application for a continuance to the judge to whom the case was assigned for trial. As soon as the trial judge completed the case he was then trying (approximately noon), Mr. Singer made his application for continuance and the facts concerning Mr. Dangel's illness presented to the undersigned were: *fn10"

 ,(1) Mr. Dangel had been aware of his illness since September 5 or 6 and had been advised, no later than September 27, that an operation would be necessary.

  (2) Mr. Dangel knew, no later than September 29, that the operation was scheduled for October 3, 1957. Mr. Dangel would not be 'available' for at least 20 days after the operation.

 (3) The defendant himself knew of Mr. Dangel's condition at noon on September 29 (pp. 8-9 of Document No. 55).

 (4) Mr. Singer had discussed Mr. Dangel's condition with him on September 29 (pp. 5-6 of Document No. 55).

 With commendable frankness, Mr. Singer admitted that (a) he had been associated with the case from the beginning, (b) he had done most of the paper work, (c) he had presented approximately half of the argument in support of the Motion for New Trial, and (d) he had been a member of the bar for three years, during which he had handled 100 to 125 criminal cases. *fn11"

 The United States Attorney opposed any continuance with vigor, and these additional facts were clear at that time:

 (1) The transactions in question had occurred over 2 1/2 years before and some witnesses at the last trial were already unavailable and the memories of others grew dim.

 (2) This was a second trial, of which defendant had had ample notice.

 (3) Defendant was delinquent in failing to notify the court and to have his file in court no later than the call of the list on September 30. *fn12"

 (4) Witnesses had been brought a second time from Chicago, Boston and Baltimore for this second trial at considerable expense.

 (4) Mr. Singer was a competent attorney of defendant's choice and, particularly in view of the fact that defendant had had several attorneys, he should not be permitted to notify the court, after the call of the list, that one particular attorney was his chief trial attorney and was ill, when this information could have been furnished at the time the list was called on September 30. *fn13"

 The trial judge denied the motion for continuance and defendant claims a denial of his constitutional rights. *fn14"

 The Sixth Amendment to the United States Constitution provides:

 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.'

 The Supreme Court of the United States has made clear that this is a privilege which may be waived by the defendant, provided that there is an intelligent and competent waiver. See Johnson v. Zerbst, 1938, 304 U.S. 458, 464-465, 467-468, 58 S. Ct. 1019, 82 L. Ed. 1461, referring to Patton v. United States, 1930, 281 U.S. 276, 297-302, 312-313, 50 S. Ct. 253, 74 L. Ed. 854. The trial judge believes the reasoning of these opinions supports the conclusion of the federal intermediate appellate courts, which have held that a defendant's conduct may prevent his reliance on this privilege when all the facts indicate that he has been unreasonably dilatory in asserting his right to counsel claimed to be his choice as chief trial counsel at the moment of trial, that counsel acting for him is competent, and that any failure in such counsel's opportunity for preparation is due to the fault of the defendant. See Tinkoff v. United States, 7 Cir., 1936, 86 F.2d 868, 876-877; Neufield v. United States, 1941, 73 App.D.C. 174, 118 F.2d 375, 380-384; Moore v. United States, 1955, 95 U.S.App.D.C. 92, 220 F.2d 198; *fn15" cf. Kobey v. United States, 9 Cir., 1953, 208 F.2d 583, 592-594. These cases support the refusal of the trial judge to grant a continuance on the record in this case.

 Furthermore, Mr. Singer did an able job for the defendant at this trial and, on review of the trial judge's refusal to grant a continuance, the court is entitled to consider, among other things, the fact that defendant has not been able to show any prejudice resulting from the absence of the lawyer he wished to act as his chief trial counsel. *fn16" See Neufield v. United States, supra, 118 F.2d at page 384; Tinkoff v. United States, supra, 86 F.2d at page 877.

 The cases relied on by defendant are inapplicable in the light of the facts in this case, particularly in view of the facts that (a) the defendant, who is not inexperienced in criminal matters, *fn17" knew, about noon of the day before the call of the list, of this chief counsel's illness, was given that evening a doctor's letter (Exhibit C-4) *fn18" stating that such counsel could not participate in the trial and failed to get the letter, or notice of its contents, to his chosen local counsel so that his local counsel remained mute when the case was called and listed for trial on the appointed day; *fn19" (b) local counsel was experienced in criminal trials and thoroughly familiar with the evidence and background of this relatively uncomplicated case, which had already been tried once; and (c) the record discloses that local counsel did an able, lawyer-like job for his client in this case.

 II. Alleged restriction of the right of cross-examination.

 Defendant contends in his briefs that on November 4, 1957 (N.T. 456-470), the trial judge limited his right of cross-examination of the Government witness Meierdiercks. *fn20" Meierdiercks' cross-examination had been concluded, the Government had concluded its case, and the defendant was putting on his case when defendant's counsel produced photostatic documents of two sentences (D-18 and D-19) on indictments to which the witness had pled guilty and stated: 'We wish to introduce these two indictments * * *.' *fn21" Later, defendant's counsel had marked a photostatic copy of an indictment from the Southern District of Florida (D-20), which was apparently the basis of one of the two sentences. The trial judge ruled that the production of photostatic copies was not the proper way to proper way to prove these documents (N.T. 466 and 468). Counsel for defendant also requested permission to recall Meierdiercks to the stand for further cross-examination in order to show, through confronting him with D-18 to D-21, that (a) he had pled guilty in 1955 to criminal charges resulting from the events involved in this trial, and was testifying for the Government in this case solely in order to get a lighter sentence on the two offenses covered by D-18 and D-19, and (b) his enumeration of his past criminal offenses at this trial was not complete. *fn22" This request was denied since defendant's counsel had cross-examined Meierdiercks thoroughly for over four hours *fn23" and he had ample opportunity for cross-examination on both (a) and (b). *fn24" Furthermore, as to (a), Meierdiercks had already testified that he pled guilty to the indictment against him based on the facts involved in this case in order to get a lighter sentence and to cut down his costs (N.T. 232), defense counsel, in his closing argument, argued to the jury that this witness was testifying in this case to get leniency (N.T. 540-1, 546), and the trial judge instructed the jury that it was proper for them to consider whether his receipt of a three-year sentence in 1955 and the possibility of his being placed on probation might be taken into account in evaluating his testimony as being affected by his possible interest to favor the Government (N.T. 572). See United States v. Migliorino, 3 Cir., 1956, 238 F.2d 7, 11. Under these circumstances, the trial judge had the discretion not to permit the recall of this witness for cross-examination on the morning of the last day of the trial, which was the last day of this jury term and a day on which the defendant and his counsel had requested an early adjournment for religious reasons (N.T. 202-3). *fn25"

  III. Denial of alleged right to examine FBI files and Grand Jury minutes prior to the trial and to have lengthy adjournments to examine such statements during the trial. *fn26"

 The decided cases make clear that a defendant has no right prior to the trial to statements of witnesses taken by the F.B.I. or to a transcript of testimony given before the Grand Jury. *fn27" See Jencks v. United States, supra; Simms v. United States, D.C.Cir., 248 F.2d 626; United States v. Radio Corp. of America and National Broadcasting Co., D.C.E.D.Pa., 21 F.R.D. 103; United States v. Grossman, D.C.N.J.1957, 154 F.Supp. 813; United States v. Malizia, D.C.S.D.N.Y.1957, 154 F.Supp. 511; United States v. Palermo, D.C.S.D.N.Y. 1957, 21 F.R.D. 11; United States v. Anderson, D.C.E.D.Mo. 1957, 154 F.Supp. 374; United States v. Benson, D.C.S.D.N.Y.1957, 20 F.R.D. 602; cf. United States v. Miller, 2 Cir., 1957, 248 F.2d 163, certiorari denied 78 S. Ct. 332; 18 U.S.C.A. § 3500. The opinion of the United States Court of Appeals for the Third Circuit in this case says:

 'The failure of the trial judge to permit counsel for the defendant to inspect at the trial the witness' grand jury testimony and statement to the F.B.I., as required by the rule announced in the Jencks case, compels us to grant a new trial.' (Emphasis supplied.)

 See United States v. Rosenberg, 3 Cir., 1957, 245 F.2d 870, 871. For this reason, defendant's contention that this court had the duty of submitting Meierkiercks' F.B.I. statements and the Grand Jury transcript prior to the trial is rejected.

 Meierdiercks was the first witness called by the Government after 4 p.m. on October 1 (N.T. 9). As soon as court adjourned that day (5 p.m.) and prior to the conclusion of the direct examination of this witness, defendant was given C-1 and C-2, being the Grand Jury minutes and a 9 1/4-page handwritten statement signed by the witness, which documents were the subject of the appellate court's opinion in United States v. Rosenberg, supra (N.T. 34, 39-40).

 At the conclusion of the direct testimony of this witness at about 11 a.m. on Wednesday, October 2, defense counsel applied for adjournment of the case until the following morning, even though he had had the previous evening to examine these statements and the testimony of this witness at the previous trial (N.T. 73-8). The court adjourned until 2:15 p.m. on October 2 as a result of this request. *fn28" Other reports of the FBI (consisting of less than four pages) covering interviews with Meierdiercks were delivered to defense counsel at about 12 noon on October 2 (see Exhibits C-5 to C-7, N.T. 79-91).

 The statements of Miss Vossler were given to defense counsel so that they could be examined during a 40-minute recess (N.T. 276-281) and also during the luncheon recess (N.T. 329).

 After reviewing the record, the trial judge finds that his actions during the trial were in accordance with the foregoing authorities. *fn29"

 IV. Alleged disqualification of the trial judge for bias or prejudice.

 Defendant's attorneys were notified by letter of August 23 that this case would be called for trial on September 30. Long before September 20, there was available to them the knowledge that the trial judge was one of four judges of this court assigned to criminal trials that week, but defendant made no oral or written request for the disqualification of the trial judge until after the case had been marked ready for trial at the call of the list on September 30. For the first time, counsel for defendant stated to the assignment judge on the morning of October 1, 'We thought * * * Judge Van Dusen would not be the proper judge to hear this particular case' (N.T. 4 of Document No. 53). *fn30" Congress has clearly provided that an affidavit of 'personal bias or prejudice * * * shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.' 28 U.S.C.A. § 144. No good cause for failure to file such an affidavit on or before September 20 has been shown and there is no apparent reason why the procedure specified by Congress should not have been followed in this case. It might have been most difficult for the assignment judge to find another judge available to hear the case on the morning of Tuesday, October 1, of the last week of that criminal trial period.

 Furthermore, none of the alleged reasons for disqualification stated in defendant's briefs constitute 'personal bias or prejudice.' *fn31" In view of the complete treatment of this subject by Judge Madden in United States v. Valenti, D.C.N.J.1954, 120 F.Supp. 80, it would be repetitious to discuss it further. *fn32" That opinion makes clear that there is no merit in this contention of the defendant. Cf., also, Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S. Ct. 457, 86 L. Ed. 680.

  There was sufficient evidence to support the jury's verdict, as explained in the opinion of November 23, 1956.


 And Now, January 3, 1958, It Is Ordered that defendant's Motion for New Trial and for the Entry of Judgment of Acquittal and defendant's motion for judgment of acquittal made during the trial, held October 1-7, 1957, are Denied.

 Annex A.

 Alexander Osinoff, Esq. appeared for the defendant at the time of his arraignment on November 28, 1955. On May 14, 1956, Stanley B. Singer, Esq. formally filed his written appearance for the defendant and the following documents in the Clerk's file, following that Entry of Appearance until the first day of the trial commencing October 1, 1957, bear his signature: Clerk's Document Date No. Filed Title of Document 5 5/14/56 Motion for Leave to Take Depositions Under Rule 15, Federal Rules of Criminal Procedure, 18 U.S.C.A. 8 5/24/56 Petition for Disclosure of Matter Occurring Before Grand Jury Under Rule 6(e) of the Federal Rules of Criminal Procedure and/or Discovery and Inspection Under Rule 16 of the Federal Rules of Criminal Procedure 12 6/18/56 Motion for Judgment of Acquittal or Motion for New Trial 24 11/ 5/56 Affidavit 32 12/ 3/56 Motion (signed jointly with Anthony J. Albert, Esq.) 33 12/ 3/56 Notice of Appeal 36 1/21/57 Supplemental Motion (signed jointly with Anthony J. Albert, Esq.) 40 2/14/57 Notice of Appeal 42 3/27/57 Petition to Vacate or Moderate Sentence 45 8/30/57 Motion for the Return of Seized Property and the Suppression of Evidence (signed jointly with Edward M. Dangel and Leo E. Sherry, Esqs.) 46 8/30/57 Motion for Inspection and Examination and Inspection of Statements Made By Certain Government Witnesses to the Federal Bureau of Investigation (signed jointly with Edward M. Dangel, Esq. and Leo E. Sherry, Esq.) 47 8/30/57 Motion for Inspection and Examination of the Testimony of Certain Government Witnesses Before the Grand Jury (signed jointly with Edward M. Dangel, Esq. and Leo E. Sherry, Esq.) 48 8/30/57 Motion for Continuance


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