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United States v. Spencer

decided: March 24, 1971.


Lumbard, Chief Judge, Smith and Feinberg, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge:

James A. Spencer appeals from a judgment of conviction entered on June 2, 1970 by Judge Timbers in the District of Connecticut after trial without a jury. Spencer was convicted on two counts of having violated 18 U.S.C. ยง 2314, which makes it a crime to transport or cause to be transported in interstate commerce any falsely made or forged security, knowing the same to be falsely made or forged. He was sentenced to concurrent terms of five years imprisonment. We affirm the conviction.

The indictment charged Spencer in two separate counts with causing falsely made and forged checks to be transported from Connecticut to New Jersey, knowing that the checks had been falsely made and forged. Count I involved a $750 check dated June 20, 1968, drawn on the First Trenton National Bank, Trenton, New Jersey, payable to "John Kelly" and signed "Anthony J. Gasco." Count II involved a $150 check, dated June 18, 1968, drawn on the same bank and between the same parties.

The government's proof showed that the two checks in question were stolen from the firm of Gasco Builders in Trenton, New Jersey, and that they were forged with the signature of "Gasco," which did not represent the name of anyone connected with the firm. It showed further that on June 21, 1968, a person purporting to be John Kelly opened a new account at the Second National Bank of New Haven, Westville branch, and that later that day the person purporting to be Kelly cashed the $750 check in a split deposit transaction -- depositing $350 and taking $400 in cash. The government proved, too, that the $150 check was cashed at a Sears, Roebuck & Co. store in Hamden, Connecticut by a person purporting to be John Kelly.

A government fingerprint expert testified that a latent fingerprint on the deposit slip used in the split transaction at the bank in New Haven was, on the basis of a comparison with a specimen taken from Spencer, Spencer's print. A government handwriting expert testified that he had compared the "John Kelly" endorsement on the $750 check with the signature card used to open the account in New Haven and also with the signature of "Anthony Gasco" on the two checks; he stated that, although he could not be sure, there were "similarities which indicated that they were probably prepared by the same writer." One eye-witness -- Cheryl Carlucci, the cashier at Sears -- identified Spencer; she said that he was the person who had cashed the check at Sears. Finally, the government sought to prove that a photograph taken by a "Regiscope" machine of the man and the check cashed at Sears, simultaneously, was a likeness of Spencer.

Spencer testified in his own behalf and denied cashing either check, saying that he was at home in Pennsylvania at the time.

On March 9, 1970, when Spencer was first scheduled to appear for a plea before Judge Zampano, Spencer made it clear that he wished to represent himself pro se. Judge Zampano deferred entry of plea and made an interim appointment of counsel, Mr. Robert Levine, for the purpose of meeting with Spencer, discussing preparation for trial, and helping Spencer decide whether he would still wish to proceed pro se. On March 23, Judge Timbers entered a plea of not guilty on Spencer's behalf and, noting that Spencer still wished to proceed pro se, asked assigned counsel to remain available until further proceedings could be held before Judge Zampano. Spencer had not changed his position at a hearing before Judge Zampano on March 30, and thereafter Mr. Levine moved to be relieved as counsel. Finally, at a hearing on May 10, Judge Zampano told Spencer that he would be better advised to accept the appointment of counsel, but having determined that Spencer still wished to proceed pro se, he granted Levine's motion to be relieved. Thereafter, at all proceedings below including the trial, Spencer represented himself pro se. On this appeal, a new attorney was assigned to represent Spencer.

Spencer's first two arguments are (1) that there was no proof at trial that he knew that the checks were forged or falsely made -- an assential element of the crime -- and (2) that there was insufficient evidence connecting him with the crimes charged so that Judge Timbers could not possibly have found beyond a reasonable doubt that he had committed those crimes. We reject these contentions.

Mrs. Carlucci positively identified Spencer from memory as the person who cashed the $150 check at Sears. She also identified Spencer as the subject of the "Regiscope" photograph of the person who cashed that check. The testimony of the fingerprint expert linked Spencer to the $750 check, for according to him the latent fingerprint on the deposit slip used in the split transaction at the New Haven bank was identical to a fingerprint obtained from Spencer at the time of his arrest. The testimony of the handwriting expert, while somewhat equivocal, further supports this connection.

Surely this evidence, if believed, was sufficient for Judge Timbers to find beyond a reasonable doubt that Spencer committed the crimes charged. Similarly, it constituted ample circumstantial proof on which the trier of fact could find that Spencer knew that the checks were forged or falsely made.

Spencer's third argument is that he was denied his Sixth Amendment right to effective assistance of counsel when the district court granted the assigned counsel's motion to be relieved. Spencer's brief concedes that Judge Zampano did much to induce Spencer to accept the assigned counsel when Spencer wanted to proceed pro se. But it argues that at the time of Mr. Levine's motion to be relieved -- the May 10 hearing -- "defendant's original disinclination to avail himself of counsel had abated . . . and the defendant had acquiesced in Mr. Levine's representing him at trial." Thus, according to Spencer's brief, Judge Zampano's granting of Levine's motion to be relieved was a violation of Spencer's right to counsel, since when Spencer "finally saw the light and wanted effective counsel, he found himself left with none."

The transcript of the May 10 hearing, however, shows this contention to be erroneous. Spencer's original disinclination to have counsel had in no way abated, and he clearly did not want Mr. Levine as his attorney on May 10 any more than he had previously. Moreover, Judge Zampano did everything required of him by prior decisions of this Court to ensure that Spencer knew what he was waiving. In our previous decisions on this issue, we have looked in particular to determine whether there has been a full and calm discussion between the judge and the defendant, whether the defendant understood that he had a choice between proceeding pro se and with assigned counsel, whether the defendant understood the advantages of having one trained in the law to represent him, and whether the defendant had the capacity to make an intelligent choice. See United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965), cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1950, 16 L. Ed. 2d 1020 (1966); United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). See also United States ex rel. Jackson v. Follette, 425 F.2d 257, 259 (2d Cir. 1970); United States v. Trimm, 416 F.2d 1145, 1147 (2d Cir. 1969); United States ex rel. Anderson v. Fay, 394 F.2d 109, 110 (2d Cir. 1968); United States ex rel., Higgins v. Fay, 364 F.2d 219 (2d Cir. 1966).

The record plainly shows that these elements were present here. Even after two previous hearings into Spencer's need for assigned counsel and his understanding of the problems of proceeding pro se, Judge Zampano again addressed the defendant on May 10, 1970 before ruling on Mr. Levine's motion to be relieved. Judge Zampano said that he appointed counsel because he had hoped that Spencer would change his mind by realizing his folly and that Spencer might have an attorney to rely on if he needed help at trial. He also thought that the interim assignment of counsel would help Spencer prepare for trial, even if he held fast to his position. That same morning, before counsel was ...

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