SHORES v. UNITED STATES, 80 F.2d 942

WILBUR, Circuit Judge. This appeal is from a judgment entered upon the conviction of appellant on eighteen counts of an indictment charging him with using the mails to defraud and one count charging conspiracy to do so. He was sentenced on each count, sentences to run concurrently, a total of two years.

Upon this appeal he assigns two errors': First, that the court erred in overruling his objections to the introduction of letters and pamphlets covered :by the counts for mailing on the ground that such letters and pamphlets were not shown to have been mailed by appellant or under his authority; and, second, that the court erred in denying his application for a continuance.

As to the first assignment, it is sufficient to point out that the sentence on the conspiracy count was for two years, and, consequently, error upon the other counts was immaterial, as the sentences were less than and were to run concurrently with the sentence on the conspiracy count. Furthermore, the claim that the appellant had severed his connection with the conspiracy before these letters and pamphlets were mailed was based upon the testimony of a codefendant which hardly goes so far and which the jury may well have disbelieved.

The second assignment with reference to the denial of the appellant’s request for a continuance upon the ground that his attorney had been suddenly taken ill and was unable to conduct his defense presents some peculiar features which are not explained in the record. When the case was called for trial, two defendants, George Keller and John Keller, were represented by attorney Ohannesian. Attorney Wallis was added by "substitution before the trial began. Gus Shores was represented by Attorney D. G. Taylor.

The appellant, Howard Shores, presented his affidavit for continuance, copy of which is set out in the footnote, and also presented an affidavit of a physician as to the condition of the attorney to the effect that R. E. Parsons, an attorney, was ill by reason of a nervous breakdown; that he could not participate in the trial without endangering his life; and that he would be unable to return to his office for at least two weeks. No prophecy was ventured as to when he would be able to appear in court and conduct the appellant’s defense.

It is clear that the court was justified in not awaiting the uncertain event of the recovery of the attorney who was ill. A motion for a continuance is addressed to the discretion of the trial court, and unless that discretion is abused, there is no error in the ruling thereon. Rachmil v. U. S. (C.C.A.) 288 F. 782; Crono v. U. S. (C.C.A.) 59 F.(2d) 339.

In the consideration of the question of whether or not there was an abuse of discretion in denying the appellant’s application for a continuance, it is proper to consider the nature of the charge and of the evidence presented to sustain it and the nature of the proposed defense, if any, as well as the knowledge and ability of the appellant and his counsel.

The scheme to defraud alleged in the indictment was one to organize the International Securities Company to sell stock in the Ford Motor Company of Berlin by fraudulent representations and without any intention to deliver such stock, and later to placate the defrauded victinjs by offering to exchange stock in another corporation organized by the defendants, the United States Foreign Securities Company, for the undelivered stock of the Ford Motor Company of Berlin, this offer to be accompanied by other fraudulent representations concerning this latter corporation.

Some of the witnesses for the prosecution were former employees of the defendants who had conducted the business under the direction of the defendants, and prepared, signed and mailed the form letters and pamphlets containing the fraudulent representations which are set out in the specific counts charging the mailing of matter in pursuance of the scheme to defraud. Howard Shores’ connection with the matter was testified to by Bently with whom he arranged to use the name International Securities Company, and also by the clerks he had employed.

It appeared that he had signed a statement for the bank, carrying the accounts of the International Securities Company, stating that he was the sole owner thereof; that he had represented that company in hearings before the State Corporation Commissioner and had signed numerous applications on its behalf for brokers’ licenses. The printed matter mailed by the defendants showed beyond doubt the fraudulent character of the. scheme. The connection of Howard Shores with it was established beyond question by the evidence adduced by the government.

The cross-examination of the witnesses was conducted by either Ohannesian or Wallis, attorneys for the two Kellers. Numerous victims testified to the receipt of letters from the defendants, their payment of money to the defendants and their failure to receive any stock as promised. To answer this array of witnesses and documentary evidence, George L. Keller, a codefendant, took the stand. No other evidence was offered.

Keller testified that Howard Shores, Buckley, and himself were equal partners in the scheme to sell the stock of the Ford Motor Company of Berlin for $100 per share; that the market value of this stock was never more than $24 per.share.

He also testified that Bently, the government witness, was a partner; that they paid $16 per share commission to their brokers for selling the stock of the Ford Motor Company of Berlin; that Buckley, one of the partners, was to procure the stock for $74 a share from his brother who was connected with a brokerage company in New York handling the stock, although why they were to pay three times the market price is not explained; that Buckley took between $20,000 and $30,000 of the partners’ money and only delivered three shares of the stock; that he was a drunkard and finally committed suicide.

The witness testified that he got nothing out of the deal and had invested and lost all his money in it in an attempt to make good; that only about 10 per cent, of their customers remained unsatisfied and that the balance represented about the amount Buckley had misappropriated. He it was who testified that Howard Shores had nothing to do with the matter'after the International Securities Company had transferred all its liabilities and assets (the latter consisting largely of office furniture and supplies) to the United States Foreign Securities Company. This is hardly a meritorious defense.

There was a variance in that the fraud testified to by the codefendant was one to actually sell and deliver a share of stock worth $24 for each $100 secured from the victim, but in view of the failure to acquire the stock or to make any reasonable arrangement to do so, the jury was justified in finding that there was no intention to deliver the stock.

In view of the abundant testimony as to the connection of Howard Shores with the fraudulent scheme, we are left wholly in the dark as to the defense he sought to interpose' through attorney Parsons, nor is it disclosed in the briefs by such attorney who now represents him on this appeal. The defense was not disclosed in the application for a new trial, nor is 'it suggested by hypothesis or otherwise how or .why the appellant was prejudiced by the denial of the motion for a continuance.

It remains to consider whether the court was justified in appointing attorney Taylor who represented the codefendant, Gus Shores, and in requiring him to proceed with the trial. The right to the assistance of counsel is constitutional, but it is entirely immaterial whether it is constitutional or statutory. If the appellant’s right to have the assistance of counsel has been violated and he has been prejudiced thereby, the judgment should be reversed.

In this connection it should be observed that appellant relies principally upon the claim that he was deprived of the benefit of counsel during the period prior to the trial, or, rather, that he was denied the assistance of counsel who had been in charge of his case during that period. This is, of course, in effect a claim that the court was bound to give him an opportunity to be represented at the trial by the attorney who had represented him during the long period prior to the trial. No case upholds this doctrine.

Appellant states: “All of the transactions on which the indictments were founded took place between August 1, 1929, and August 1st, 1930, a period between three and one-half and four and one-half years prior to the date of trial, a circumstance requiring assiduous investigation by any counsel for the appellant, and certainly demanding .frequent opportunity of consultation between appellant and his counsel prior to trial.

How else, we ask, could counsel fairly recognize the threads of evidence ascertainable only from all the recollections of the appellant of facts occurring as long as four and one-half years before the date of trial, which constituted the defense of appellant, than by frequent painstaking consultations before trial? “It is submitted that the authorities herein considered are conclusive and unanswerable on the proposition that the denial by the trial court in the case at bar of a continuance or postponement on the ground of the illness of appellant’s counsel, effectively deprived appellant of a fundamental constitutional right, namely, the right to assistance of counsel for his defense.

The appointment of counsel by the trial court upon the trial itself, without knowledge or preparation of the defense of appellant did not meet and could not constitute the satisfaction of this constitutional guaranty.” It is fair to assume from this statement, and it would be a justifiable inference without it, that such consultations as the appellant states were necessary had in fact occurred between himself and Parsons, and that if Taylor was also his attorney, between himself and Taylor. It is also fair to assume that Taylor had made the same preparations for the trial of the case against Gus Shores.

The other attorneys in the case representing the other defendants bore the burden of the examination and cross-examination of witnesses, and thus their preparation supplemented that of Taylor. The appellant assumes that he was incapable of communicating to Taylor the things he had learned from Parsons, assuming that Taylor was not his attorney and Parsons was, but this assumption is entirely inconsistent with the intelligence and experience of the appellant.

In his claim that he has been denied the “assistance of counsel for his defense” within the meaning of that phrase as used in the Sixth Amendment to the Constitution of the United States, appellant relies strongly upon the recent decision of the Supreme Court in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 59, 77 L.Ed. 158, 84 A.L.R. 527, in which case the court was principally concerned with the question of whether or not the conduct of the trial court in relation to the employment of attorneys for the defendants therein was a violation of the Fourteenth Amendment to the Constitution.

That decision also involved a consideration of the right of a defendant in a criminal case to have the assistance of counsel. In the case at bar we are concerned only with the constitutional right to the assistance of counsel guaranteed by the Sixth Amendment. We have only to consider the facts in Powell v. State of Alabama to disclose the contrast between the situations presented in the two cases. In the Powell Case the crime was committed on March 25, 1931, the indictment returned six days later, March 31st, and on the same day the defendants were arraigned and entered pleas of not guilty.

The defendants were young negroes, “ignorant and illiterate,” some of them under 21 years of age. They were threatened with mob violence, were protected by the militia, were kept at Godsden for safety, and brought to Scottsboro for arraignment and trial. The trial occurred in an atmosphere of tense, hostile, and excited public sentiment. All the defendants were residents of other states where alone members of their families or friends resided. On April 6th, six days after the indictment, the trial began.

Apparently there had been no preparation for trial as no lawyer had accepted the responsibility of preparing the case for trial. The action of the trial court in “appointing all the members of the bar to represent the defendants” was said by the Supreme Court to be “little more than an expansive gesture, imposing no substantial or definite obligation upon any one.” It was held that between the arraignment and trial the defendants did not have the aid of counsel.

The court said: “In the light of the facts outlined in the fore part of this opinion — the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives — we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process. “But passing that,” the court said, “and assuming their inability, even if opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.

Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine.

All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his.own defense because of ignorance, feebie-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. * * * In a case such as this, whatever may be the rule in other cases, the right to have counsel appointed, when necessary, is a logical corollary from the constitutional right to be heard by counsel.” In the case at bar, we have the following distinctions: First, the appellant was not ignorant or illiterate.

Fie was a shrewd man engaged in separating people of ordinary intelligence from their property by means of his understanding of human psychology and a willingness to play upon that knowledge without scruple. He was engaged in an enterprise with other defendants who were likewise shrewd and unscrupulous men of affairs. Second, there were no circumstances of public hostility. Third, appellant had been released on bail and is still at liberty on bail. Fourth, appellant had been living for some time at the place where he was tried. Fifth, he was not in deadly peril of his life. The case was not a capital one.

Sixth, according to his own affidavit, appellant was able to employ an attorney who had represented him for at least two years. Seventh, the indictment was filed October 28, 1931; appellant was arraigned March 7, 1932, and the trial of the case was begun February 6, 1934, and continued until February 15, 1934, when a verdict was returned.

During this period we may asume from the appellant’s affidavit as to such employment that he had b'een advised by counsel not only as to his rights in the premises, but also as to the defense he intended to interpose upon the trial and as to the witnesses it would be necessary to present that defense, so that there was no deprivation of the right of the appellant to consult counsel as to his rights and to prepare for the trial. The complaint of counsel narrows down to the requirement of the court that the trial proceed notwithstanding the illness of Mr. Parsons.

As hereinbefore pointed out, there is no statement in the affidavit of Shores that attorney Taylor had not represented him during the period the case had beén pending. The failure of appellant to aver in his affidavit that Parsons was his only attorney, or that he was the only one on which he had relied to represent him at the trial, and that Parsons had been employed by him, is accentuated by what transpired in court at the time the appellant presented his affidavit and application for a continuance. It is true that no affidavits were filed countervailing the affidavit of appellant.

It is also true that the clerk of the court stated that the record did not show that Taylor had appeared for the appellant. We may assume that the record would confirm the statement of the clerk. But this was a mere statement of a negative proposition. On the other hand, we have the statement of Taylor made in the presence of the appellant, which we have quoted in the footnote. When the court asked if he was still on the record and Mr. Taylor replied, “I think so,” he in effect stated that he was and had been the attorney for Howard Shores. In view of the colloquy, his statement could have no other significance.

It is true this statement is not under oath, but Mr. Taylor was an officer of the court, and his statement was made in that capacity and in the presence of the appellant who did not deny it, nor did he object to being represented by Taylor. The statement of an attorney that he represents a party in court is prima facie evidence of his authority so to do, and this fact must be considered when the court is called upon to balance the statement of the clerk that the record showed no appearance by Taylor on behalf of the appellant and Taylor’s statement that he had represented the appellant up to the time of trial.

See Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83; 6 C.J. 631, § 128. If' we were dealing with a situation where the trial court, on the day of the trial, had appointed an attorney who was wholly unfamiliar with the case and entirely unprepared to represent the appellant, the situation would be entirely different, as we have pointed out. A consideration of the cases cited by the Supreme Court in Powell v.

State of Alabama, 287 U.S. 45, on page 70, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, in support of the proposition that “the state decisions which refer to the matter invariably recognize the right to the aid of counsel as fundamental in character,” will show that in every case the trial was almost immediately after the commission of the offense; that in most instances there was great public hostility to the defendant evidenced in some of the cases by an attempt to mob him and that the offense for which he was indicted was punishable by death, and that counsel who were appointed requested a continuance of the trial because of inability to prepare therefor, which request was denied by the trial court.

We have none of these elements in the case at bar. In Crouch v. U. S., 298 F. 437, 440, Circuit Judge Mack, speaking for the Circuit Court of Appeals for the Sixth Circuit in a somewhat similar case, stated: “No application for a continuance was made until the case was actually called, when defendant advised the court that his counsel was engaged in another court and asked for a continuance. The court below did not believe a continuance justified. The defendant in fact was represented by counsel, although rather hastily chosen. There appeared, however, to be no real dispute as to the facts.

There is no contention now that the record" is not adequate or complete. The result would not rightly have been different, had counsel originally retained conducted the defense. So far as any questions of law were involved, the defendant’s rights were safeguarded by exception duly taken.

In the circumstances, we cannot hold that any constitutional right of the defendant was infringed, or find any abuse of discretion by the trial court.” It does not appear that the result would have been any different had the attorney of appellant’s choosing conducted his defense, or that the attorney appointed by the court was unable to conduct his defense properly as a result of the denial of the continuance. Considering all of the circumstances of this case we see no abuse of discretion by the trial court. See also, Crono v. U. S. (C.C.A.9) 59 F.(2d) 339; People v. Saenz, 50 Cal.App. 382, 195 P. 442.

Judgment affirmed. “State of California, County of Los Angeles — ss.: “Howard Shores being first duly sworn upon oath, deposes and says: That he is one of the defendants above named and in the above entitled action; that said matter is set for trial for February 6th, 1934. “That prior to the arrest of your affiant, your affiant was advised that a warrant was outstanding for him in connection with this matter and he consulted with one R. E.

Parsons, an attorney at law duly licensed to practice before the above entitled court and affiant verily believes that he fully and fairly stated his case in this matter and that he fully and fairly stated all of the facts in said case to the said attorney and affiant was advised by said attorney that in his opinion affiant had a good and meritorious defense to the above entitled matter. That affiant surrendered to the authorities in this matter and posted bail and from time to time since so doing affiant has consulted with the said R. E. Parsons with reference to the trial of this matter and the said R. E.

Parsons is fully advised with reference to this matter and with the defense thereto to be interposed by your affiant and that the said R. E. Parsons will appear and conduct the defense of your affiant when he is physically able to do so. “That this matter has been pending before the court for some time and affiant is reluctant to ask for a continuance of the trial of this matter but he must do so for the reason that his attorney R. E. Parsons is physically unable to- appear and represent affiant at the trial of this cause. That the said R. E.

Parsons has for some ten (10) days attempted to get himself into such physical condition as would permit him to appear and represent affiant at the trial of said cause but this the said attorney has been unable to do and on Saturday last, February 3, 1934, said R. B. Parsons was required to leave town and is under a doctor’s care and is unable to appear at the trial of this cause on February 6, 1934. That your affiant has been advised that for the said attorney to appear and represent your affiant at the trial of this cause would seriously endanger the life of said attorney.

That said attorney is under the care and attention of Dr.

Benjamin Blank, a physician and surgeon duly licensed to practice his profession in the state of California. “That affiant has no money or means with which to procure other counsel, nor can he secure other attorneys, for affiant has made an effort in the last few days through friends and others to procure the services of another attorney to represent affiant at the trial of this cause but this he has been unable to do. “That affiant does not make this affidavit for the purpose of unnecessary delay nor to unnecessarily delay the trial of this matter but for the reasons above stated and for the reason that affiant feels that he cannot safely proceed to trial in the above cause without the presence of R.

E. Parsons to represent him. “Wherefore affiant respectfully prays that this matter be continued for such period of time as will meet the court’s calendar, and will permit his said attorney to regain his health to a point where he can appear and represent affiant or until affiant can procure other counsel. “Howard Shores, “Subscribed and sworn to before me this 6th day of February, 1934. “W. T. Hopkins, “Notary Public in and for the County of Los Angeles, State of California.” “The Court: Whom are you representing, Mri Ohannesian? “Mr. Ohannesian: Mr.

Keller; the two brothers. “The Court: And Gus Shores is represented by whom? “Mr. Taylor: I represent him. And there was a substitution as^ to Howard Shores. “The Court: There will be a substitution as to Howard Shores? ■“Mr. Taylor: Yes, your Honor. “The Court: You will be substituted in or out? “Mr. Taylor: I will be substituted out. “The Court: I am not going to let you be substituted out. There will be no oontinuanee of this case. “Is the Government prepared to go ahead without the presence of Howard Shores? “Mr. Taylor: He is here, your Honor. “The Court: I mean without proceeding against him. “Mr.

Powell: No, your Honor. He is one of the principal defendants, and we will have to try the case twice. “The Court: Mr. Taylor is still on the record? “Mr. Taylor: I think so. “The Court: What does the record show, Mr. Hansen? “The Clerk: The record only shows Mr. Taylor’s appearance for Gus Shores. “The Court: Well, this man appears to have a nervous breakdown. We didn’t know anything about this before, gentlemen. “Mr. Taylor: Never heard of it before now, your Honor. “Defendant Howard Shores: Just happened Saturday. “The Court: Proceed. You will act as counsel, Mr. Taylor. Call the jury. “Mr.

Ohannesian: If the court will bear with me, may the record show Robert Wallis as associate of counsel for the two Kellers? “The Court: The record may so show. “There has been no substitution of a lawyer named Parsons on the record? “The Clerk: Not to my knowledge. “The Court: Proceed.”