Hayman v. United States, 205 F.2d 891 (9th Cir. 1953)

We are here dealing with an additional phase of the "Hayman" case of many vicissitudes.¹ 

Hayman is appealing from an order of the United States District Court denying his motion made pursuant to Title 28 U.S. C.A. § 2255.

Heretofore, appellant was tried in the above entitled court to Honorable William Mathes, Judge presiding (a jury having been waived), upon six counts of an indictment and he was found guilty as to all counts. Each of the charged offenses related to the theft of United States Treasury checks. Attorney A. P. Entenza, appellant's employed counsel, appeared and conducted appellant's defense throughout the trial.

At the trial there was testimony by Mrs. Juanita Jackson and Miss Dorothy McClain that appellant, sometimes in company with one or the other or both of them, would drive his automobile to or near residences, and at appellant's direction one of the women would go to the residential mail boxes and extract therefrom United States mail consisting of brown government envelopes containing government pay checks drawn to others than the three. The checks would be endorsed by appellant or one of his companions by the forging on each check of the payee's name. The checks would be cashed at various retail stores and appellant would give the women part of the money and keep the rest. Two of the checks which had been obtained in the manner related were introduced into evidence and the named payees testified that their signatures had been forged. A storekeeper who had cashed one of the checks in evidence identified appellant as the person for whom he had cashed it. Another storekeeper, a shoe salesman, testified that he cashed the other check in evidence after Miss McClain in company with appellant and another man had endorsed it and had given it to him in payment for three pairs of shoes fitted to appellant. The salesman identified a pair of shoes, as one of the pairs delivered to appellant, and an officer testified that appellant was wearing the shoes when arrested. Both Mrs. Jackson and Miss McClain testified for the government involving appellant and themselves. A young man acquaintance of appellant's testified that he had forged payees' names on many checks at appellant's request. Appellant took the witness stand and denied all wrongdoing.

Mrs. Juanita Jackson was separately indicted for offenses relating to her practices as set out above. She was arrested in Denver and was brought back to Los Angeles where she was confined in jail. Mr. Entenza was employed to defend her and appeared at her arraignment before a judge other than the judge before whom appellant's case was pending. She was not pleased with Entenza as counsel and announced that she was pleading guilty, that she "knew what she was doing". The court accepted her plea and postponed the pronouncement of sentence. On the record, Entenza was her counsel and moved that one count in the indictment be dismissed, but the facts show plainly that Mrs. Jackson was acting on her own advice.

Appellant's trial before Judge Mathes came on a few days after Mrs. Jackson's plea in her case, and at the outset the officiating deputy district attorney announced that Mrs. Jackson would be a witness for the government, and she thereafter testified as we have already stated. Mr. Entenza cross-examined her extensively and in detail.

After appellant's conviction and after a report by the probation officer which showed a former conviction, appellant was sentenced as of January 20, 1947. On May 11, 1949, appellant filed his motion under Title 28 U.S.C.A. § 2255. Amendments were made thereto June 8, 1949, and March 31, 1952. The motion was heard and denied by Judge Mathes without the presence of and without notice to appellant and, thereafter, proceedings were had in this court and in the United States Supreme Court resulting in the motion being sent back for hearing with appellant's (movant's) presence. The motion was reheard and again denied, Honorable Harry C. Westover, Judge presiding. The appeal now being considered is from Judge Westover's order.

The basis for the appeal is that appellant was deprived of the effective services of an attorney in his trial (a violation of the Sixth Amendment to the United States Constitution) because his counsel at his trial, Mr. Entenza, was also counsel for Mrs. Jackson, and there was conflict of interest between appellant and Mrs. Jackson.

In his motion appellant alleged that he and Mrs. Jackson were co-defendants, but this is not true. While his motion is somewhat indefinite as to his grounds for relief, we take it that he is contending that the conflict of interest was sufficient in itself to support a holding that he was without the effective aid of an attorney and that his specific complaint, which we shall presently notice, is by way of illustration. The specific complaint is that, while Mrs. Jackson was testifying, she was, in fact, a convicted felon and that Mr. Entenza did not ask her as to that fact. It is argued that had he put the question the answer would have been in the affirmative and the judge would then have had reason to doubt her testimony. Neither at the trial nor afterwards through his direct appeal under different counsel did appellant ever claim that his defense had been prejudiced by Mr. Entenza's attorney-relations with Mrs. Jackson. It is not unlikely that the idea was hatched in the fertile brain of one of appellant's associates in prison. See United States ex rel. Mitchell v. Thompson, D.C. 1944, 56 F. Supp. 683. Be that as it may, we look to the facts to see whether anything was done or whether there was any omission to do anything other than that which a competent and free-to-act lawyer would be justified in doing or not doing.

The cross-examination of Mrs. Jackson was thorough. Mr. Entenza knew appellant's situation and, too, Mrs. Jackson's situation. He was in a position to know what best to do. He, as a capable and experienced lawyer, knew that conviction of appellant would certainly result if the court believed Mrs. Jackson. She had been brought into court from jail and she told her story without protecting herself in the slightest. By her own sworn testimony the listening, experienced judge was informed that she had committed felonies. In these circumstances, the argument that the court's knowledge of conviction would have depreciated the credence he gave her testimony is too tenuous for serious consideration. If it may be believed that the credibility of her story would be affected by her stating, "Yes, I have been convicted of a felony", it may also be believed that the judge in these circumstances, since she was in custody, would naturally have thought, "Yes, of course, she has been found guilty of the very crimes she has just confessed to on the stand, crimes in which the defendant here on trial was also involved."

It is fair and usual trial tactics to refrain from asking an adverse witness a question which would bring an answer that might well "cut both ways". But any way one may regard the possible effect of the question which was never asked and never answered, it shrinks into nothing for another reason: Before the court sentenced appellant, the probation report informed the judge that Mrs. Jackson had been convicted for offenses involving appellant. Had the court then and not before considered her testimony with caution, it was not too late for him and it would have been his duty to readjust his appraisal of all the testimony, and if the new appraisal left the proof insufficient for conviction, to declare the defendant not guilty.

The fact that Entenza did not ask Mrs. Jackson if she had been convicted of a felony does not show that appellant's attorney was remiss in his duty toward his client. And it does not tend to show that appellant was without the effective assistance of counsel.

But, whatever may be made out of the point just discussed, or of the point that there was conflict in the interests of Mr. Entenza's clients, appellant is not helped. Appellant and Mrs. Jackson knew each other in school and afterwards, and during the period in suit they associated together as well-acquainted friends. Appellant got into trouble and employed Entenza. Mrs. Jackson's mother, Mrs. Harton, went to Entenza's office and in the presence of appellant employed Entenza to represent her daughter. She testified in part: "I went to the office of Entenza with Herman Hayman * * * Juanita wasn't there * * * Mr. Entenza had been my attorney, and when Mr. Hayman phoned me to get him an attorney I took him there to represent — he said he wanted Mr. Entenza to represent him, also Justine's mother. On several occasions when I had talked with Mr. Entenza, Herman was there and he knew that, talked about Entenza was representing Juanita, Justine, as well as himself." [Sic.]

Mr. Entenza testified that the district attorney's announcement that Mrs. Jackson would testify for the government was a great disappointment to him and to appellant. It was not a complete surprise, however, as appellant and Entenza had discussed the possibility of that turn of affairs. Mr. Entenza had expressed to appellant his serious doubts and appellant had expressed himself as believing that Mrs. Jackson would not take the stand against him. They went into court in full knowledge of the danger and in full knowledge of Entenza's attorney-relations with both appellant and Mrs. Jackson.

The transcript of the evidence in the trial which resulted in appellant's conviction shows a very strong case of his guilt built upon coordinating testimony amounting almost to demonstration and it reveals no slightest indication that this attorney did not in fact adequately and ably defend him. If it can be spelled out from the evidence that an actual conflict of interest existed, it was not such conflict that would be at all likely to endanger appellant's defense. But even so, the record shows complete knowledge and consent on the part of appellant, both as to the attorney-employment by Mrs. Jackson and as to the likelihood of Mrs. Jackson's adverse testimony. We think the record shows on its face that appellant was not without effective counsel, but in fact, that he was adequately defended by his attorney; that, in fact, there was no adverse interest in the case which deprived or tended to deprive appellant of an adequate defense.

We are pleased to here acknowledge the efficient presentation of appellant's case by Mr. Crispus Wright who took his court appointment seriously and performed his duties faithfully.

We advert briefly in the margin to the cited authorities.² 

Affirmed.