Seale v. Hoffman, 306 F.Supp. 330 (D.C.Ill. 1969)

United States District Court, N.D. Illinois, Eastern Division.

Bobby G. SEALE, Chairman of the Black Panther Party, individually and on

behalf of all Black people similarly situated, Plaintiff,

v.

Honorable Julius J. HOFFMAN, United States District Judge for the Northern

District of Illinois; John N. Mitchell, Attorney General of the United States

of America; Thomas Foran, United States Attorney, Northern District of

Illinois; Richard Schultz, Assistant United States Attorney, Northern

District of Illinois; Roger Cubbage, United States Attorney, Department of Justice;

Richard Kleindeinst, Deputy Attorney General; John Meizner, Chief United

States Marshal for the Northern District of Illinois, Defendants.

No. 69 C 2275.

Nov. 5, 1969.

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William J. McNally, chicago, Ill., Edward Carl Broege, Jr., New York City, for plaintiff.

Thomas A. Foran, U.S. Atty., Chicago, Ill., for defendants.

MEMORANDUM AND ORDER ON COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTIVE RELIEF

ROBSON, District Judge.

This complaint seeks a declaratory judgment concerning the

constitutionality of proceedings pending before another judge of this

district, who along with members and officers of the Justice Department of

the United States and the United States Marshal, are named as defendants.

The complaint also asks this court to temporarily and permanently restrain

proceedings before another judge of this district. The plaintiff, Bobby G.

Seale, is a defendant in the criminal case entitled United States of

America v. David T. Dellinger et al., 69 CR 180, [FN1] presently pending

and proceeding before Judge Julius J. Hoffman. Upon careful examination of

the complaint and the record in the Dellinger case, this court is of the

opinion that the cause should be dismissed sua sponte for failure to state

a basis for jurisdiction.

FN1. Hereinafter referred to as the Dellinger trial.

Although this action is styled a complaint for declaratory

judgment and injunction, essentially the plaintiff asks this court to

review and rule upon the legal sufficiency and constitutionality of the

rulings of and trial procedures practiced by another district court judge.

This action is in essence a collateral attack on the Dellinger trial and

involves issues which should properly be raised upon appeal or in a

mandamus action to a higher court. Federal district courts are courts of

limited jurisdiction and have only such jurisdiction as Congress, *332

by statute, confers upon them. Hancock v. Nelson, 363 F.2d 249 (1st Cir.

1966), cert. den. 386 U.S. 984, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1967); Wood

v. Conneaut Lake Park, Inc., 258 F.Supp. 777 (W.D.Pa.1966), aff'd 386 F.2d

121 (3rd Cir. 1967). A federal district court is totally devoid of any

authority under the Constitution on the United States or under any act of

Congress to sit as an appellate court and review the conduct of another

federal trial court. Nor may this court grant the extraordinary remedy of

restraining another federal district court judge. On this basis alone, the

complaint should be dismissed sua sponte.

Furthermore, the complaint itself fails to state a

constitutional claim that would confer upon this court jurisdiction over

the subject matter. The complaint alleges that Seale has been denied a

constitutional right to appear as counsel on his own behalf in the

Dellinger trial. The record indicates that at commencement of trial on

September 24, 1969, William Kunstler filed a general appearance as counsel

of record for Seale, and is to this day counsel of record for Seale. The

record reflects that upon numerous occasions after the trial commenced,

Seale asserted that he wishes to conduct his own defense. On October 22,

1969, four and one-half weeks after the trial had commenced, Kunstler

requested leave to withdraw as counsel for Seale. This motion was made

after Kunstler had cross-examined sixteen government witnesses on behalf

of Seale. The trial judge denied the motion, as he did the prior requests

by Seale himself to proceed pro se. The record indicates that Seale is

represented by competent counsel. The right to discharge one's counsel and

appear pro se is not unqualified. United States v. Bentvena, 319 F.2d 916,

938 (2d Cir. 1963). The right to dispense with counsel once the trial has

commenced is subject to the sound discretion of the court. Butler v.

United States, 317 F.2d 249, 258, 6 A.L.R.3d 582 (8th Cir. 1963); Juelich

v. United States, 342 F.2d 29, 32 (5th Cir. 1965). In exercising its

discretion, a court should deny a motion to defend pro se when such

procedure would be disruptive of the proceedings and when denial would not

be prejudicial to the defendant. United States v. Davis, 260 F.Supp. 1009,

1020 (E.D.Tenn.1966). Delay and confusion of the jury are proper

considerations by a trial judge in denying motions to proceed pro se.

United States v. Private Brands, Inc., 250 F.2d 554 (2d Cir. 1957). Here,

the record reflects that the trial judge made a finding that allowance of

Seale's motion to act as his own attorney would disrupt the proceedings,

delay the trial, and that Seale's rights were adequately protected by

competent counsel. The trial judge exercised sound discretion, and given

the complexity of the Dellinger case, Seale would be more vulnerable to

prejudice were he allowed to conduct his own defense than if he were

represented by his own competent counsel of record. See Butler v. United

States, 317 F.2d 249, 258, 6 A.L.R.3d 582 (8th Cir. 1963).

The complaint also alleges that Seale's constitutional rights

were violated by forceable gagging and handcuffing on October 30, 1969,

and October 31, 1969. The complaint further alleges that while such

restraints were terminated by direction of the trial judge on November 3,

1969, physical restraints are a continuing threat to him. The record

reflects that these measures were invoked by the trial judge only after

Seale had caused numerous disruptions of the Dellinger trial over a

five-week period. The record discloses numerous contemptuous outbursts by

Seale, often villifying the judge with derogatory and abusive

name-calling. The record also indicates that these outbursts necessitated

the removal of the jury and the suspension and delay of the trial

proceedings. [FN2] On each of these occasions the *333

trial judge admonished Seale to refrain from such outbursts. While a

defendant in a criminal case has an absolute right to be present during

his trial, he does not have a right to brazenly make a shambles of the

criminal judicial process and attempt to force a mistrial. The Seventh

Circuit has recently ruled that a trial judge may restrain disruptive and

disrespectful conduct by whatever means necessary, even if those means

include physical restraints and gagging. United States ex rel. Allen v.

State of Illinois, 413 F.2d 232, 235 (7th Cir. 1969). While resort to such

restraints is distasteful to all concerned, the record is clear that Seale

unequivocally refused to conform his conduct with the minimal requirements

of courtroom order and decorum. Instead, he stood in open defiance of the

court's authority. No other remedy was available to the trial judge. This

court therefore does not find that physical restraints placed upon a

contumacious defendant under the circumstances involved here infringes

upon a constitutionally protected right.

FN2. The record indicates that the first gagging occurred in the afternoon

of October 29, 1969. Due to Seale's outbursts, a total of one-half hour's

evidence was taken during the entire afternoon.

Finally, this court is asked to order Seale's release from the

custody of the Cook County Jail in order that he may more fully

participate in the Dellinger trial. The record indicates that Seale was

brought to this jurisdiction pursuant to a writ of habeas corpus ad

prosequendum. He is presently under indictment for solicitation to murder

in another jurisdiction. The record indicates that Seale has had the

opportunity and facilities to consult with his counsel of record,

Kunstler, and the other defendants in the Dellinger case throughout the

proceedings on a daily basis. This court has no authority, constitutional

or statutory, under these circumstances to order Seale's release from

custody.

Because of the failure to assert an adequate ground for this court's

jurisdiction, consideration of Seale's claim that this is a class action

'on behalf of all black people similarly situated' need not be reached.

It is therefore ordered that the complaint in this cause be, and it is

hereby dismissed.