United States v. Petersen, 611 F.2d 1313, 1333 (10th Cir. 1979) (quotation omitted), cert. denied, 447 U.S. 905 (1980). See also Brown, 225 U.S. 392; Hudspeth v. McDonald, 120 F.2d 962, 966 (10th Cir.) ("[V]enue may be laid either where the conspiracy was formed or where any overt act in furtherance thereof was committed."), cert. denied, 314 U.S. 617 (1941). After a careful review of the record, I believe the evidence adduced at trial is sufficient to establish that venue was proper in the District of Wyoming.
Appellant had counsel of his own choosing, and according to his own allegations, more than one counsel. In Hudspeth v. McDonald, 120 F.2d 962, 968, (C.A.10), the court said: "There is a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the denial of the right to have such assistance that gives the right to challenge a judgment of conviction by writ of habeas corpus.
This may well impose a definite obligation upon the state through its courts to appoint competent counsel for indigent defendants in criminal cases. There is, however, as Judge Huxman pointed out in Hudspeth, Warden v. McDonald, 10 Cir., 1941, 120 F.2d 962, 968, "a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel." It is the latter only for which the state is responsible, the former being normally the sole responsibility of the defendant who selected his counsel.
In light of these requirements, analysis of the sufficiency of an indictment typically begins with consideration of the elements of the offense charged. Reviewing the elements of a Section(s) 371 conspiracy, several of our prior cases have concluded that "it is necessary to allege and prove an overt act," see Hudspeth v. McDonald, 120 F.2d 962, 965 (10th Cir.), cert. denied, 314 U.S. 617 (1941); see also Laska v. United States, 82 F.2d 672, 674 (10th Cir.) ("[A]n overt act by some member [of the conspiracy] must be alleged and proven. . . ."), cert. denied, 298 U.S. 689 (1936). This circuit has not yet addressed the issue of whether the overt act proved at trial must be the same overt act alleged in the indictment
Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970); McQueen v. Swenson, supra at 214. The view that the farce or mockery language is not to be taken literally is particularly appropriate in this circuit which has never used this standard to affirm convictions where the failures of counsel were as egregious as conducting the defense while: intoxicated ( Hudspeth v. McDonald, 120 F.2d 962 (10th Cir. 1941)); or mentally distraught ( Andrews v. Robertson, 145 F.2d 101 (5th Cir. 1944)); or sleeping through much of the trial ( United States v. Katz, 425 F.2d 928 (2d Cir. 1970)). In summary, the role of the District Court presented under allegations of ineffective assistance of counsel is not to pass upon the merits of the action not taken but to determine whether, under the particular facts and circumstances of the case, trial counsel failed to render reasonably effective assistance.
The concept that the failings of a criminal defendant's retained lawyer do not constitute state action has a long pedigree. One important early and often-cited ancestor is Hudspeth v. McDonald, 120 F.2d 962 (CA10, 1941), whose theory has found favor in some of our opinions: e. g., Howard v. Beto, 375 F.2d 441 (CA5, 1967); Langford v. Alabama, 422 F.2d 760 (CA5, 1969); Johnson v. Smith, 447 F.2d 985 (CA5, 1971); McGriff v. Wainwright, 431 F.2d 897 (CA5, 1970). In McDonald a federal criminal defendant claimed his lawyer was incompetent.
As we have previously said: "There is a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the denial of the right to have such assistance that gives the right to challenge a judgment of conviction. . . ." Hudspeth v. McDonald, 120 F.2d 962, 968 (10th Cir. 1941). Jackson was not denied the right to effective assistance of competent counsel.
Breedlove v. Beto, supra at 1020 n. 1; see United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2 Cir. 1967); Wilson v. Phend, 417 F.2d 1197 (7 Cir., Oct. 28, 1969); Wilson v. Rose, 366 F.2d 611 (9 Cir. 1966); Note, Effective Assistance of Counsel for the Indigent Defendant, 78 Harv.L.Rev. 1434 (1965). Davis v. Bomar, 344 F.2d 84 (6 Cir. 1965); Hudspeth v. McDonald, 120 F.2d 962 (10 Cir. 1941); Johnson v. Smith, 295 F. Supp. 835 (N.D.Ga. 1968); Weatherman v. Peyton, 287 F. Supp. 819 (W.D. Va. 1968). This Court's standard for whether there was unconstitutionally ineffective counsel is apparently established in Williams v. Beto, 354 F.2d 698 (5 Cir. 1965).
"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined * * * or imprisoned * * * or both." The crime of conspiracy consists in two or more persons combining with the purpose of committing an unlawful act. United States v. Armour Co., 10 Cir., 137 F.2d 269; Hudspeth v. McDonald, 10 Cir., 120 F.2d 962; Pietch v. United States, 10 Cir., 110 F.2d 817, 129 A.L.R. 563; Reavis v. United States, 10 Cir., 106 F.2d 982; Troutman v. United, States, 10 Cir., 100 F.2d 628, 629; Martin v. United States, 10 Cir., 100 F.2d 490; and Wilder v. United States, 10 Cir., 100 F.2d 177. E.g., Hartzell v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534; United States v. Postma, 2 Cir., 242 F.2d 488; Herman v. United States, 5 Cir., 289 F.2d 362, cert. denied 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93; Joyce v. United States, 8 Cir., 153 F.2d 364; and Lubin v. United States, 9 Cir., 313 F.2d 419.
The District Judge denied Decker's motion to vacate, observing, relevant to the charge of conflict of interest on the part of Decker's lawyer, that petitioner had made no factual averments to bring his case within the rule "that only if it can be said what was done or was not done by defendant's attorney for his client made the proceeding a farce and mockery of justice shocking to the conscience of a court can a charge of inadequate legal representation prevail. O'Malley v. United States, 285 F.2d 733 (6th Cir. 1961); Tompsett v. [State of] Ohio, 146 F.2d 95 (6th Cir. 1944); Hudspeth v. McDonald, 120 F.2d 962 (10th Cir. 1941)."