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United States v. Abbamonte

decided: July 16, 1965.

UNITED STATES OF AMERICA, APPELLEE,
v.
ACHILLES ABBAMONTE, APPELLANT



Waterman, Marshall and Anderson, Circuit Judges.

Author: Marshall

MARSHALL, Circuit Judge.

This appeal is from a judgment of conviction for violating 21 U.S.C. ยงยง 173, 174 entered after trial by jury before Judge Edward C. McLean in the United States District Court for the Southern District of New York. Trial was had on a single count indictment involving a single incident on one day. Appellant seeks a reversal on two grounds, alleged improper appointment of counsel and certain alleged errors in admissions of testimony. We will consider them in that order.

I

Appellant was indicted on June 23, 1964, and was confined to the United States House of Detention in lieu of $50,000 bail. On June 24 appellant, claiming to be without funds, was assigned an attorney by Judge Wyatt and the case was adjourned to June 29 when appellant sought a reduction of bail. That was denied and the case adjourned to July 1. On July 1 appellant entered a plea of not guilty, bail was reduced to $30,000 and the case was adjourned to July 20 for motions to be filed. On July 10, on motion by appellant's privately retained counsel, bail was further reduced to $20,000 by Judge Bryan. On July 17 Judge Murphy denied further time to file motions and assigned the case for trial on July 20. On July 21 appellant notified Judge Cannella that he had had a dispute with the lawyer retained by his family and was then without counsel. Judge Cannella offered to appoint counsel for him but appellant declined the offer requesting time to obtain counsel of his own choice. Judge Cannella reassigned the Legal Aid attorney to help him while he sought to retain counsel of his choice, gave him an extra copy of the indictment, and carefully advised him of his right to subpoena witnesses. Appointed counsel was relieved when appellant said he would make bail and on August 4 appellant, through his retained counsel, sought a further adjournment of two weeks. Judge McMahon adjourned the trial to August 10 before Judge McLean.

On August 10, after all these adjournments, changes in counsel, and motions for the reduction of bail, which surely would weary the most patient, appellant appeared before Judge McLean with his most recently retained counsel. He then requested another adjournment on the ground that he had only been out on bail for six days and wanted to subpoena some witnesses. His attorney, however, said that he was ready to go to trial, although he admitted appellant knew more about the case than he did. At that point, the following discussion took place:

The Court: We will go ahead this morning.

The Defendant: Then, your Honor, I have to make one more request then. I wouldn't want Mr. Krieger as my lawyer. If he doesn't go along with me at my request, I simply can't have him as my lawyer.

The Court: Well, you have had three lawyers now, Mr. Abbamonte, and there has to come a time when changing lawyers stops. Now, Mr. Krieger has been all over this with you. You retained him yourself.

The Defendant: I didn't retain him, sir. I didn't retain him. My family retained him.

The Court: Well, I think you should be content to have Mr. Krieger represent you.

The Defendant: He might be a competent lawyer and the best lawyer around but I can't have any faith if the man doesn't go along with me.

Mr. Gold: If your Honor please, I think what the defendant is asking for is that the lawyer go along with his own misstatements which Mr. Krieger is not willing to do.

The Defendant: There is no misstatements.

Mr. Krieger: Your Honor, unless this be terminated forthwith may this be ...


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