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.
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.
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.
I. Alleged denial to defendant of his right to the effective assistance of counsel of his choice.
The defendant was represented by three lawyers
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.
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).
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.
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
for surgery, (c) he had 'part of the files in his possession,' and (d) defendant applied for a continuance on these grounds.
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:
,(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.
(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.
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.
(4) Witnesses had been brought a second time from Chicago, Boston and Baltimore for this second trial ...