United States of America, Plaintiff-appellee, v. John Medford Rogers, Defendant-appellant, 469 F.2d 1317 (5th Cir. 1972)

Appellant was convicted in the United States District Court for the Northern District of Texas for possessing counterfeited obligations in violation of 18 U.S.C.A. Sec. 472. His sole contention is that the conviction must be vacated because of lack of formal arraignment proceedings. We affirm.

At a call of a criminal docket of the District Court appellant was not formally arraigned as required by Fed. R. Crim. P. 10, which provides:

Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. He shall be given a copy of the indictment or information before he is called upon to plead.

The indictment was not read to him nor the substance thereof stated to him nor was he given a copy thereof, and he was not called upon to plead and did not plead.¹  Appellant did, however, plead not guilty at the beginning of trial proceedings-after the jury was sworn and the indictment read-and did not object to the lack of formal arraignment proceedings until the close of the government's case. He was represented by both retained counsel and appointed counsel at the call of the docket, and by the same retained counsel at trial.² 

Vacating convictions for lack of formal arraignment proceedings is predicated on the existence of possible prejudice. Garland v. Washington, 232 U.S. 642, 34 S. Ct. 456, 58 L. Ed. 772 (1914). Accord, Dell v. Louisiana, 468 F.2d 324 (5th Cir. 1972) (No. 72-2041); Thomas v. U. S., 455 F.2d 469 (5th Cir. 1972). Deprivation of the right to counsel at arraignment proceedings will sometimes be inherently prejudicial of the defendant's right to enter an intelligent plea. Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). Compare McConnell v. U. S., 375 F.2d 905 (5th Cir. 1967); U. S. v. Lacy, 446 F.2d 511 (5th Cir. 1971). The interests affected with respect to the lack of counsel at arraignment proceedings are not at issue here, however, since appellant was represented by both retained counsel and appointed counsel at the arraignment proceedings. The interests presumptively at issue are the right to know of the charges and the right adequately to prepare a defense, rights which might be prejudiced by the lack of formal charge and entry of plea until the beginning of trial proceedings. Dell v. Louisiana, supra. Appellant, however, has not alleged and does not now allege that he was ignorant of the offense with which he was charged or that he was hindered in the preparation of a defense. In fact, the inference is to the contrary.³  His retained counsel moved before trial to suppress evidence, to produce minutes of grand jury testimony of government witnesses, and for a bill of particulars. Throughout the proceedings appellant manifested his intention to assert innocence. Therefore, since the record indicates a lack of prejudice resulting from the technical lack of formal arraignment proceedings and appellant has not shown otherwise, the conviction is affirmed.