Aaron Hodge v. United States

joins (dissenting):

I respectfully dissent. The panel which originally heard this appeal consisted of Judge Merrill, District Judge Albert Lee Stephens, Jr., A and me. With Judge Merrill dissenting, the panel determined that the judgment of conviction must be reversed. Its disposition was based solely upon the conclusion, carefully explained, that the record, when viewed in the light of the strict standards of existing precedents, did not adequately disclose a “knowing and intelligent” waiver by the appellant of his constitutional right to trial counsel. Of the opinions, in slip form, it has been written, “The interpretation of the majority is to be preferred. * * * It is proper that the safeguards placed on ‘the crucial rights of one insisting upon his innocence’ be equal to ‘the rights of one who seeks to confess a crime by a plea of guilty.’” Comment, Waiver of Counsel—Hodge v. United States, No. 20,517 (9th Cir., Mar. 5, 1968), 20 Hastings L.J. 965 , 971 (1969).

Following a rehearing in banc, the original panel’s decision is now overruled by the majority. I maintain my original views, and on the issue considered by the original panel, I can now express them in no better way…

In this case a panel of this court, by divided vote, reversed the District Court. This court, in banc, then took the case on rehearing. We affirm.

Appellant stands convicted of the transportation of a stolen motor vehicle in foreign commerce in violation of 18 U.S.C. § 2312 . On this appeal he con *1042 tends that he was, without intelligent waiver, deprived of the assistance of counsel.

The record shows that on arraignment February 8, 1965, five days after filing of the indictment, counsel was appointed to represent appellant and continued to represent him up to the original trial date, March 16, 1965. On that date appellant expressed the desire to represent himself and trial was continued to March 23, 1965, before a different judge, with appellant then representing himself. Although acceding to appellant’s insistence upon self-representation, the court on March 16 nevertheless directed appointed counsel to be present to lend such assistance as would be desired by appellant. At all stages appellant was either represented by counsel or had counsel available for assistance.

The case thus does not present the question of waiver of right to counsel in the typical trial setting…

414 F.2d 1040 Aaron HODGE, Appellant, v. UNITED STATES of America, Appellee. No. 20517. United States Court of Appeals Ninth Circuit. July 3, 1969. John H. Colteaux (argued), of Hanson, Bridgett, Marcus & Jenkins, San Francisco, Cal., for appellant. Shelby R. Gott (argued), Asst. U.S. Atty., Edwin L. Miller, Jr., U.S. Atty., San Diego, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY and HUFSTEDLER, Circuit Judges. MERRILL, Circuit Judge: 1 In this case a panel of this court, by divided vote, reversed the District Court. This court, in banc, then took the case on rehearing. We affirm. 2 Appellant stands convicted of the transportation of a stolen motor vehicle in foreign commerce in violation of 18 U.S.C. 2312. On this appeal he contends that he was, without intelligent waiver, deprived of the assistance of counsel. 3 The record shows that on arraignment February 8, 1965, five days after filing of the indictment, counsel was appointed to represent appellant and continued to represent him up to the original trial date, March 16, 1965. On that date appellant expressed the desire to represent himself and trial was continued to March…