CLARK, Circuit Judge.
The parties have now shown us that the abbreviated narrative record was erroneous in that the incident when during trial defendant attempted to dismiss his attorney occurred not after the completion of his wife's testimony, but just after the first witness for the prosecution had been sworn and before the actual taking of testimony had begun. It now appears that a jury was impaneled late on Friday afternoon, March 13, 1942, and that the incident occurred just as trial was resumed at noon the following Monday. An objection so made at this early stage of a trial may well be more favorably viewed than one made later after the prosecution has disclosed its case; indeed, our opinion states as much. Even so, when a jury case is already on trial in a district with a crowded calendar such as obtains in the Southern District of New York, a continuance for the obtaining and indoctrination of new counsel would be disruptive of the court's business and could not be claimed under the circumstances except for rather exceptional cause. Hence, so far as appears here, the most that defendant could reasonably have expected would have been the getting rid of his attorney after proper warning by the court of the consequences and the dubious privilege of proceeding unaided. But we do feel that the court was too hasty, in view of the circumstances here presented, in stopping the defendant so quickly and, indeed, in not inquiring as to whether there was any reason for the demand.
A majority of this court nevertheless feel that no reversal should result, because the complete transcript now presented to us discloses both what was motivating the defendant and the fact that in reality the trial cleared up his objection. On cross-examination of the wife, defendant's counsel went extensively into her relations with other men, notably with one Paul Bascomb, and questioned her as to entries
That night the United States Attorney directed an F. B. I. agent to go to the apartment and to secure the diary at a place suggested by defendant's attorney. The next day at trial it was delivered to defendant's attorney, a letter and post cards to the wife were put in evidence by the prosecution, and the diary by the defense, and the wife was recalled and cross-examined as to the diary. No request was made to the court to adjourn the case to enable defendant to prepare cross-examination of his wife. We are convinced that every advantage which could accrue to defendant from the diary was obtained — perhaps even more dramatically because of the attention thus focused upon it. There seems no just ground for criticism of either counsel that the diary was not picked up earlier; nor would its earlier possession have led to further preparation of the case, for the material in it, even the name and identity of Bascomb, had long been known to defendant. It is now more than ever clear that defendant's defense was adequately presented, down to the very detail which initially had disturbed him. No additional line of defense or other evidence is now suggested.
After all, a trial should be viewed practically with the purpose of discovering if the ends of justice have actually been achieved. Had the court permitted defendant to make his explanation, the matter of the diary would have been cleared up that much earlier in the day; but it is hardly conceivable that any other result would have followed. With the point as to the diary disclosed and taken care of, the court would certainly have discouraged defendant from following the well-nigh suicidal course of attempting to go on with the case alone. His substantial rights having been actually protected, reversal is not justified. 28 U.S.C.A. § 391.
Attack is further made upon the sufficiency of the evidence; but the fact that defendant actually lived off his wife's earnings was well established, and there was evidence for the jury from which his intent so to use her, formed before coming to New York, could be deduced from the various incidents recounted in the original opinion as to his desire even then to obtain money through her and by these means. Rehearing, therefore, having been had, the judgment previously entered is confirmed, and the opinion, except as supplemented herewith, is reaffirmed. The motion for bail is denied.
FRANK, Circuit Judge (dissenting).
We originally heard the case on a narrative record. We now have before us the entire transcript which, in important respects not noted in the majority opinion on this rehearing, virtually destroys, I think, the reasons given by my colleagues in their original majority opinion. For that opinion rested on these propositions: (1) The case against the defendant was "strong." (2) The defendant's request at the trial to be relieved of his lawyer was made after most of the evidence constituting the government's "strong" case had been concluded, so that his request was in the nature of a trick and, if granted, would have caused a mistrial of a case substantially complete; (3) the defendant gave no adequate reason for his request. It now appears, however, from the transcript, that (1) the government's case, even when complete, was far from "strong," (2) that the defendant's request was made before one iota of evidence had been introduced, and (3) that there were good grounds for this request.
Taking his wife's testimony as true, the case against defendant must rest entirely on inference: Because, five months before their marriage and the transportation to New York, he had several times suggested that she become a prostitute for his financial benefit, because some three weeks after their marriage and trip from Albuquerque to New York — or approximately six months after his original suggestions — he again made such a suggestion, and because he gave up his job in Albuquerque and earned no money in New York, it is inferred that his purpose in transporting his wife to New York was to have her there become a prostitute.
Somewhat hesitatingly I agree that there was just enough evidence from which such an inference could reasonably be made by the jury. But it is surely impossible to say that a case, founded solely on such an inference, is at all "strong."
In deciding the instant case, which is obviously none too "strong," the following facts are therefore of importance: When defendant first asked to be relieved of his lawyer, it was on the ground that he could not afford to pay his fees. The lawyer then asked permission to withdraw. The trial judge granted this request, but promptly assigned that same lawyer to represent defendant without compensation. With this background, there resulted a lawyer-client relation not unlikely to be strained and at best not too fortunate for defendant.
According to the majority opinion on rehearing, those facts are of no importance because, it is said, the defendant subsequently, on cross examination, explained that the reason that he had desired to be relieved of this lawyer was that the latter had not been diligent in procuring a diary which had been kept by the defendant's wife; because that diary was procured by the lawyer from the government the next day; because no request was then made on behalf of the defendant for an adjournment to enable him to prepare for cross examination of the wife on the basis of that diary; and because, it is said, the defendant's lawyer then did cross examine her effectively, using that diary. For these reasons, according to my colleagues, no substantial harm to the defendant resulted from being forced to accept a lawyer with whom he was dissatisfied.
Such reasoning, I think, does not comport with the ruling in Glasser v. United States, supra. Since this is a case where "the scales of justice" were "delicately poised," the error "cannot be brushed aside as immaterial." In such circumstances, defendant's right to have the assistance of "counsel of [his] own choosing" is "too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." My colleagues are indeed indulging here in "nice calculations." In the first place, the record by no means shows that the only reason for defendant's dissatisfaction with his lawyer consisted of the failure of that lawyer to procure the diary; the most that can be said is that that lack of diligence was one of the factors creating in defendant a distrust of his lawyer which no client should entertain for his legal adviser. That the diary first became available to defendant when a substantial part of the evidence was in, would, as my colleagues intimate, have been an appropriate ground for asking "the court to adjourn the case to enable defendant to prepare cross examination of his wife." But, since defendant had been peremptorily denied the right either to try his case for himself or to obtain other counsel, the failure to ask for such an adjournment — a failure which my colleagues count against defendant — cannot be ascribed to him but must be ascribed to a lawyer imposed upon defendant against his will by the trial judge.