Opinion
No. 16248.
December 19, 1967. Rehearing Denied February 5, 1968, en banc.
John J. Cleary, Chicago, Ill., for defendant-appellant.
Carl W. Feickert, U.S. Atty., Joel A. Kunin, Belleville, Ill., for plaintiff-appellee.
Before SCHNACKENBERG, CASTLE and SWYGERT, Circuit Judges.
Following the vacation of our judgment order in Allison v. United States, 7 Cir., 358 F.2d 60, and remandment to this Court with instructions that the defendant be granted an appeal with counsel (Allison v. United States, 386 U.S. 13, 87 S.Ct. 874, 17 L.Ed.2d 702) this Court entered an order that the District Court certify the entire record in defendant's criminal conviction including the transcript of the trial proceedings to this Court, and appointing counsel to represent the defendant on appeal.
We have now reviewed the entire record and in view of the totality of the circumstances presented are of the opinion that it does not reflect an intelligent waiver of trial counsel as measured by the standards we recognized as applicable and governing in Spanbauer v. Burke, 7 Cir., 374 F.2d 67. Moreover, the entire record as now filed does show, contrary to the District Court's finding referred to in our previous opinion ( 358 F.2d 60, 62), that the defendant did request the aid of counsel in the preparation of a motion for a new trial.
Attorney John J. Cleary, a member of the Chicago, Illinois bar, ably represented the defendant in this Court pursuant to our appointment. We express our appreciation to him for his services in this assignment.
The judgment order of conviction and sentence herein is reversed and the cause is remanded to the District Court for a new trial.
Reversed and remanded.