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March 20, 1972

Jerome CANTOR et al.

Van Artsdalen, District Judge.

The opinion of the court was delivered by: VAN ARTSDALEN

Van ARTSDALEN, District Judge.

 Before the court is the pro se motion of Jerome Cantor for a new trial. A brief recitation of the history of this case will facilitate the discussion of the allegations raised in this motion.

 Cantor, along with seventeen others, was charged in Bill of Indictment 70-454 with conspiracy and using interstate telephone facilities to conduct an illegal bookmaking establishment. The government's case was largely dependent on "wiretap" surveillance obtained pursuant to court authorization. All of the defendants filed pretrial motions, pursuant to which hearings were held. My opinion and order of May 26, 1971, discusses and disposes of all pretrial motions filed. On June 3, 1971, a trial date of September 13, 1971, was set.

 On August 19, 1971, the counsel for defendants, Howard Rubin and Jerome Cantor, petitioned the court for leave to withdraw as counsel. A hearing on that petition was held on September 2, 1971. Defendants' counsel was permitted to withdraw and counsel was appointed for defendant, Howard Rubin. Defendant, Cantor, however, refused to request or accept appointed counsel. Cantor expressed the desire to act as his own attorney and stated that he would not discuss the case with counsel should the court appoint counsel. Cantor further indicated that he would not hire private counsel and that he was prepared as of September 2, 1971, to try his own case on the date previously set for trial.

 During the months of August and September, 1971, several defendants changed their pleas. On September 13, 1971, when the case was called for trial, six defendants were scheduled to be tried by jury. Two defendants waived a jury trial and agreed to a trial by the judge without a jury. The government dismissed the charges against two other of the six defendants because of lack of evidence. A fifth defendant, Joseph Ripka, did not appear and remains a fugitive at this writing. Consequently, only Jerome Cantor remained for a trial by jury. The case against Jerome Cantor therefore proceeded to a jury trial. Mr. Cantor made no motion or request for a continuance. The jury returned a verdict of guilty on four of the five counts in the indictment pertaining to Cantor and a verdict of not guilty as to one count.

 At the conclusion of the trial, Cantor petitioned the court to proceed in forma pauperis to obtain the notes of testimony of his trial at the government's expense. A hearing was held and by order of October 15, 1971, this petition was denied. Defendant was allowed a reasonable time to purchase the notes of testimony. Defendant appealed the order of October 15, 1971 and that appeal was dismissed. Defendant has not seen fit to order the notes of testimony. Oral argument was heard on the motion for a new trial. I will consider the allegations raised by the motion and/or at oral argument, without benefit of the notes of testimony.

 Defendant's first two allegations posit error because the trial started on September 13, 1971, as set on June 3, 1971. The motion states, inter alia:

"1. I was under the impression that the trial would last at least six weeks because up until the day of the Trial, severance had been consistently denied. Within ten minutes after severance was granted, I was on trial. As a result, I did not have adequate time to assess the facts that:
"a. The trial would be of much shorter duration (a week) with the possibility that I could obtain the necessary funds to pay an attorney of my choice.
"b. I would no longer be able to avail myself of the other defendant's attorneys' advice and help in legal rulings, picking of the Jury, etc.
"c. In view of the fact that the Jury deliberated for a fairly lengthy time (five hours and overnight), there is every possibility that an attorney could have turned the tide in my favor.
"2. Court erred after granting severance to put me on trial immediately without time to confer with anyone. There were at least four other defendants waiting with their counsel to go on trial immediately, and in fact, they asked to go on trial, but the Court insisted that I be tried first. Even though I agreed, I feel that I should have had more than a few minutes to make such a momentous decision."

 Suffice it to say that Cantor had more than a few minutes to make "such a momentous decision". On various occasions after September 2, 1971, I strongly and repeatedly advised Mr. Cantor that he should obtain private counsel or have court appointed counsel if unable to afford private counsel. In point of fact, he repeatedly rejected an offer to have counsel appointed, even if he may have qualified to have counsel appointed. The advice of this court fell on deaf ears. No request for a continuance was made. Mr. Cantor advised that he was ready for trial. The fact that he would not be on trial with other codefendants could in no way ...

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