United States v. Jeris E. Bragan

499 F.2d 1376, 1974 U.S. App. LEXIS 7626
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 16, 1974
Docket73-2066
StatusPublished
Cited by39 cases

This text of 499 F.2d 1376 (United States v. Jeris E. Bragan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jeris E. Bragan, 499 F.2d 1376, 1974 U.S. App. LEXIS 7626 (4th Cir. 1974).

Opinions

[1378]*1378BUTZNER, Circuit Judge:

Jeris E. Bragan, a private detective, appeals from his conviction of violating provisions of the Omnibus Crime Control Act pertaining to wiretapping and wiretap devices, 18 U.S.C. §§ 2511 and 2512.1 His principal assignment of error deals with the district court’s denial of a continuance which he sought for the purpose of substituting counsel. The court’s ruling, he asserts, deprived him of his right to obtain counsel of his choice. Finding neither abuse of the trial court’s discretion nor infringement of the sixth amendment, we affirm.

Bragan was arrested on February 15, 1973, and his preliminary hearing was conducted on March 7. He was indicted on March 14 for intercepting and disclosing, and trying to intercept, telephone conversations of persons he was investigating, and for manufacturing, possessing, and transporting wiretap devices. At his arraignment on March 19, the court designated April 7 as the cutoff date for pretrial motions and scheduled a hearing on the motions for April 20. Trial by jury was scheduled for May 14. Throughout all of the preliminary proceedings and at the trial, Bragan was represented by able, experienced counsel whom he had retained shortly after his arrest.

On April 13, Bragan’s counsel moved for a continuance so that new counsel could be substituted for the defense. Four days later, the prospective counsel renewed the motion, explaining that Bragan wished to employ him because of his experience in the law pertaining to wiretapping, but that he could not participate in a trial on May 14 due to a previous commitment for a hearing in another court on the same day.

The district judge declined to continue the trial. However, he expressed the belief that the principal legal issues involving the wiretapping charges could be considered at the hearing on pretrial motions. Accordingly, he reopened the cutoff date for filing the motions and continued the pretrial hearing from April 20 to May 4. This permitted Bragan’s new counsel to file a number of motions and participate as co-counsel in the proceedings on May 4. The principal legal issues pertaining to co-counsel’s field of expertise were argued by the co-counsel at the rescheduled pretrial hearing and they now provide the basis for most of Bragan’s assignments of error. At the trial, conducted as scheduled on May 14, Bragan was represented only by his originally retained attorney. However, the government used no evidence of wiretaps or other electronic devices that had not been the subject of the previous pretrial hearing.

The recent emphasis on quickening the pace of criminal proceedings, exemplified by Rule 50(b) of the Federal Rules of Criminal Procedure,2 has created tension between the rule’s policy of eliminating undue delay and the occasional attempts of both prosecutors and defendants to seek additional time between arraignment and trial. Although the rulé does not freely countenance pleas for delay, it permits the trial judge to retain sufficient flexibility over his docket to assure proper disposition of justifiable motions for continuance. Consequently, the rule does not deprive the judge of the discretion that he has traditionally exercised in considering a request for a continuance. Review of his ruling, therefore, must take into consideration all of the circumstances, particu[1379]*1379larly those which were presented when the motion was argued. When these circumstances raise an issue about the defendant's right to counsel, the trial court must exercise its discretion, and the reviewing court must test its ruling, by the precepts of the sixth amendment.3 Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Franken v. United States, 248 F.2d 789 (4th Cir. 1957) (by implication).

United States v. Inman, 483 F.2d 738 (4th Cir. 1973), contains our most recent review of the principles governing continuances to enable a defendant to obtain representation by counsel of his choice. We found in that case no abuse of discretion in the court’s denial of a continuance because the motion was made without mitigating explanation for its delay on the morning of trial, although the trial date had been set approximately two months earlier. Furthermore, the record disclosed that the defendant had received competent representation from his appointed counsel. But even so, we cautioned that the case presented an instance when “the outermost reach of discretion was exercised.” 483 F.2d at 740. Almost concurrently, we found error in the refusal of a continuance and the consequent denial of the right to counsel in United States v. Fisher, 477 F.2d 300 (4th Cir. 1973). There, because of confusion that arose through no fault of the defendant, his lawyers were unprepared. Despite knowledge of this fact, the court denied a motion for a continuance on the morning of trial. We reversed Fisher because the circumstances and the record of the trial established that the court’s insistence on proceeding with the scheduled trial had deprived the defendant of effective representation.

Inman and Fisher, read together, underscore the care with which a trial court must exercise its discretion when it rules on a continuance that will affect the representation that a defendant receives. They teach that the sixth amendment’s provision for the right to counsel embraces the right to an attorney of the defendant’s choice and a reasonable opportunity to obtain this representation. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Implicit, also, is the right to effective representation. Stokes v. Peyton, 437 F.2d 131, 136 (4th Cir. 1970). Inman cautions and Fisher illustrates that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.”4 But the Constitution does not afford an accused, who has ample time to obtain counsel, the “unbridled’right” to insist that his trial be held in abeyance while he replaces one competent attorney with another. United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968).

Applying these principles, we conclude that the trial judge’s discretion was tempered by proper consideration of Bragan’s sixth amendment rights. Dates for the filing and hearing of motions and for trial were selected to provide for the orderly progress of the case, and the nearly 60 days that intervened between arraignment and trial allowed ample time for thorough preparation.

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Bluebook (online)
499 F.2d 1376, 1974 U.S. App. LEXIS 7626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeris-e-bragan-ca4-1974.