Moore and Oakes, Circuit Judges, and Gurfein,*fn* District Judge.
Enrique Sanchez appeals from a judgment of conviction entered after trial by jury in the United States District Court for the Eastern District of New York. Appellant was found guilty on all three counts of an indictment that charged him and co-defendant Rafael A. Duarte, Jr., with: (1) conspiracy to extort a sum of money by transmitting in interstate commerce communications containing threats to injure the reputation of Dr. Roberto Sanchez, in violation of 18 U.S.C. § 875, and the laws of New Jersey and New York under 18 U.S.C. § 1952(a)(2) and (3); (2) use of a facility in interstate commerce with the intent of committing extortion; and (3) transmission in interstate commerce of communications containing threats to injure the reputation of Dr. Sanchez. On appeal appellant raises two claims: (1) that the trial court deprived him of his Sixth Amendment right to the effective assistance of counsel and to counsel of his own choosing; and (2) that he is entitled to a hearing to determine whether his conviction was tainted by an unlawful electronic surveillance. We reject both contentions and affirm the judgment of conviction.
The relevant facts, briefly stated, are as follows. On an evening in mid-June of 1971, Dr. Roberto Sanchez (unrelated to appellant), pursuant to a scheme planned by appellant, Duarte, and one Amado Alfonso, went to appellant's apartment in Union City, New Jersey.*fn1 Present at the apartment were appellant, Alfonso, and, hiding in a bedroom closet with a camera and pistol, Duarte. After a brief conversation among the doctor, appellant, and Alfonso, appellant left the apartment; Doctor Sanchez and Alfonso remained. The two men then went into the bedroom where Duarte was hiding, undressed, and proceeded to engage in homosexual activity. At a prearranged signal from Alfonso, Duarte came out of the closet and, threatening to use the pistol, photographed the doctor and Alfonso engaging in homosexual acts.*fn2
In the weeks following this incident, the doctor received numerous (anonymous)*fn3 threatening telephone calls at his home in New Jersey and at his office in Brooklyn, New York. He was informed that unless he paid a sum of money ranging from $35,000 to $55,000, the photographs would be released to his family and friends, and his reputation would be ruined. The doctor was sent copies of the photographs, as well as a copy of the community Cuban newspaper in which an article had appeared (based on information provided by appellant) describing photographs that depicted the "strange passions" of an unnamed local doctor. (Trial Transcript, hereinafter "Tr.", at 281-86).*fn4
Approximately two to three months thereafter, upon the advice of his attorney, Dr. Sanchez recorded several of the threatening telephone calls and took the tapes to the FBI; the doctor also provided the FBI with the photographs he had been sent and the Cuban newspaper which had referred to the incident. On September 23, 1971, in a recorded telephone conversation, the doctor was instructed to deliver $35,000 in cash to a Union City, New Jersey, restaurant, where appellant was then employed. On September 27, 1971, Dr. Sanchez, followed by FBI agents, drove to the parking lot of the restaurant with an envelope containing $2,000 in cash. The bills had been photocopied by the agents (for purposes of later identification) and Dr. Sanchez had been "wired" with an electronic transmitter for the purpose of enabling the FBI agents to overhear any conversation he might have with the blackmailers.
At the restaurant, FBI agents took surveillance positions around the area. One agent, in possession of the receiver portion of the transmitter set carried by the doctor, was stationed in a store near the restaurant. Another agent moved in and out of that store, alternately listening to the transmissions picked up on the receiver, if any, and walking to the parking lot to observe Dr. Sanchez in his parked auto. After some time, appellant walked out of the restaurant and to the doctor's vehicle. After a brief exchange, during which appellant looked furtively in all directions (Tr. 312, 9/6/72 Tr. 103), appellant went to his own auto and drove it to a position near that of the doctor. He then returned to the doctor's vehicle, took the envelope containing the $2,000 in cash from the doctor, and returned to his vehicle to depart. The FBI agents promptly arrested appellant.
Just prior to trial, co-defendant Duarte pleaded guilty to Count I of the indictment and later testified at appellant's trial. Appellant took the stand in his defense and denied any involvement in the conspiracy to extort money from Dr. Sanchez. He testified that he had taken the $2,000 from the doctor only as an intermediary upon the doctor's request, and that he was to hold the money until contacted by an unknown third party who, in return for the cash, would give appellant (on the doctor's behalf) the photographs and negatives. After deliberation the jury found appellant guilty on all counts of the indictment. He was subsequently sentenced to concurrent terms of imprisonment totalling four years.
Appellant's first argument on appeal is that he was deprived of his Sixth Amendment right to the assistance of counsel by the actions of the trial court. Specifically, appellant alleges that (1) he was denied counsel of his own choosing, and (2) he was denied the effective assistance of counsel when the court ordered appellant's two counsel to proceed to trial, allegedly without adequate preparation on their part. A brief factual background is necessary in order to measure the merit of these contentions.
The indictment against appellant was filed on December 23, 1971, at which time Mr. Phillip Brown was appointed as his defense counsel. Appellant thereafter also retained the services of another counsel, Mr. Andres Astacio Santos. At his arraignment appellant was represented by attorney Brown. On January 13, 1972, appellant, represented by attorney Santos, pleaded not guilty to the charges. The docket record shows that the case was first called before Judge Bartels on February 4, 1972, and that it was adjourned to February 10, 1972. On that date the case was again adjourned until February 18, 1972; the government filed notice of readiness for trial on February 15, 1972. On February 18 appellant (by attorney Santos) withdrew his motion for inspection and a bill of particulars, which had been filed by Mr. Santos on January 26, 1972. On July 12, 1972, Judge Bartels called the case and set trial for August 14, 1972; it was again adjourned, however, with trial commencing on August 28, 1972.
On that date both (assigned) attorney Brown and (retained) attorney Santos appeared in court. Mr. Brown apparently was entering an appearance officially to withdraw as appellant's counsel, since Mr. Santos had been retained by appellant, and since Mr. Brown had failed to file an order of substitution with the court. With no advance notice to anyone, however, Mr. Santos also made application for permission to withdraw as counsel, on the ground that some ten months prior to trial, and prior to his retention by appellant, he had suffered a broken ankle and that, as a result thereof, he "had an emotional problem" and lacked a "clear mind." (Tr. 14). Judge Bartels, after some discussion, denied the applications to withdraw, ordered the trial to proceed, and directed both counsel to discuss the handling of the trial with each other and with appellant. (Tr. 15, 16). After accepting the guilty plea of co-defendant Duarte, Judge Bartels inquired of the two counsel which of them would try the case. Attorney Brown informed him:
I have discussed it with the defendant [Enrique Sanchez] and my colleague [attorney Santos] and we are going to try it together. I will try it; he will sit in, if it's all right with the Court and the defendant. (Tr. 30).
Judge Bartels then indicated, "All right, both of you will try it. That's fine", to which Mr. Brown responded, "That will be under the original assignment." (Tr. 30-30A).
A luncheon recess was then called, after which a jury was empaneled to hear the case. During the ensuing six-day trial, Mr. Brown conducted the defense with Mr. Santos sitting at the defense table, providing ...