“[a] federal grand jury may return a second indictment for the same offense when the first indictment has been dismissed or otherwise found defective”
How later courts described this case
- “[a] federal grand jury may return a second indictment for the same offense when the first indictment has been dismissed or otherwise found defective”
Written by the judges who cited it.
The opinion
FAIRCHILD, Circuit Judge
(concurring).
While I agree that the instant indictment states an offense against the United States under 18 U.S.C. § 242 , the legal theory upon which the indictment is grounded does not, in my view, satisfactorily grapple with the primary “deprivation” effected by defendant’s alleged conduct.
The right of indigents to appointed counsel is guaranteed by the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). And, the “essence of this right is the right to effective, competent and adequate representation.” Wilson v. Phend, 417 F.2d 1197, 1199 (7th Cir. 1969). See also, Calloway v. Powell, 393 F.2d 886, 888 (5th Cir. 1968). Thus, if an appointed attorney threatens to provide less than adequate legal services for an indigent defendant unless paid additional sums, he in effect subjects that defendant to a deprivation of his Sixth Amendment rights.
It is this subjection of an indigent to deprivation of his Sixth Amendment rights which is the real harm posed by defendant’s alleged conduct. Accordingly, the indictment would be better framed if it focused upon this reality.