Fred J. Ford v. United States, 379 F.2d 123

Lead Opinion

J. SKELLY WRIGHT, Circuit Judge.

This appeal presents again¹ the vexing problem of counsel for co-defendants in a criminal case. Specifically we are presented with the question of the responsibility of the trial judge with respect to the retention or assignment of single counsel to represent co-defendants on trial. In Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), in which Glasser’s conviction was reversed because his lawyer wаs assigned to represent his co-defendant as well, the Court stated: “[T]he ‘Assistance of Counsel’ guaranteed by the Sixth Amendmеnt contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shаll simultaneously represent conflicting interests.”

Following the teaching of Glasser, in Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965), in which retained counsel represented co-defendants, we revеrsed Campbell’s conviction and placed upon the trial court the “responsibility to assure that co-defendants’ decision to proceed with one attorney is an informed decision.” 122 U.S.App.D.C. at 145, 352 F.2d at 361. We pointed out in Campbell that “ * * * [a]n individual defendant is rarely sophisticatеd enough to evaluate the potential conflicts [that can arise from joint representation], and when two defendants appear with a single attorney ‍​​​‌‌‌‌​‌​​​‌‌​​​‌​​​‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌​‌‌​‌​‌​‍it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. Considerations of efficient judicial administration as well as important rights of defendants are served when the trial judge makes the affirmative determination that co-defendants have intelligеntly chosen to be represented by the same attorney and that their decision was not governed by poverty and lаck of information on the availability of assigned counsel.” (Footnote omitted.) (Emphasis added.) Id. at 144, 352 F.2d at 360.

In Lollar v. United States, 126 U.S.App.D.C. -, 376 F.2d 243 (1967), in which, because the defendants were indigent, counsel was appointed by the court to represent Lollar and his co-defendant, the appellant here, we applied the teaching of Glasser and Campbell. We further indicated, following the suggestion of Glasser, 315 U.S. at 70, 62 S.Ct. 457, that the court’s advice to co-defendants with respect to proceeding with single counsel, together with their waiver ‍​​​‌‌‌‌​‌​​​‌‌​​​‌​​​‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌​‌‌​‌​‌​‍of any rights they may have with respect to sepаrate counsel, should appear on the record. We stated further in Lollar that, where the record does not show that co-defendants’ decision to proceed with one attorney was an informed one, the burden is on the Government to show beyond a reasonable doubt that the denial of the defendants' rights is harmless error, citing Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 705 (1967).

Since there is no record indication here that Ford made an informed decision, after approрriate advice, to proceed with joint counsel, we must determine whether the Government has sustained its burden of estаblishing beyond a reasonable doubt that the error is harmless. Since we have no way of distinguishing Ford’s case, with assurance, from the ease ² of his co-defendant Lollar as to the charges of robbery and assault with a dangerous weapon, we reverse for a new trial as to those counts. As to the charge of carrying a concealed weaрon, we affirm the conviction. The record shows that Ford was found in possession of such a weapon, and Ford’s own tеstimony on trial confirms this fact. Since the general sentence³ imposed in this case is in excess of the statutory maximum⁴ for carrying a concealed weapon, we remand ‍​​​‌‌‌‌​‌​​​‌‌​​​‌​​​‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌​‌‌​‌​‌​‍for resentencing on this count.

Counsel for Ford, while relying on the principles announced in Glasser, Campbell and Lollar, raises another рoint which requires our attention. Counsel argues that, where the right to separate counsel has not been intelligently waived, reversal should follow without any consideration of prejudice. In support of this argument he points to that pаrt of the Criminal Justice Act, 18 U.S.C. § 3006A(b), which states that “the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel * * (Emphasis added.) Counsel for Ford argues that аssigning one counsel to represent more than one defendant may create a conflict between the еconomic interest of the lawyer and the interests of his clients, because, in deciding whether joint representatiоn may prejudice his clients, he may consciously or subconsciously be influenced by the effect that decision may hаve on his fee. Thus, counsel argues, separate counsel must in all cases be assigned for each defendant.

While, as shown by our disposition of this case, we are not persuaded that all consideration of prejudice is irrelevant where co-defendants are represented by the same counsel, Ford’s economic conflict argumеnt ‍​​​‌‌‌‌​‌​​​‌‌​​​‌​​​‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌​‌‌​‌​‌​‍is not without force. Moreover, the burden placed on the trial judge by the Act, to decide before trial whether sеparate counsel for co-defendants are required, is an exceedingly onerous one. Under the cireum-stances, we have concluded that, in order to comply with the Criminal Justice Act, 18 U.S.C. § 3006A(b), as well as the teaching of Glasser, Cam/pbell and Lottar, hereafter separate cоunsel for each co-defendant should be appointed initially in every case, with an instruction that if counsel cоnclude, after fully investigating the case and consulting with their clients, that the interests of justice and of the clients will best be served by joint representation, this conclusion with supporting reasons shall be communicated to the court for such on-thе-record disposition as the court deems appropriate in the circumstances.

So ordered.

Notes

1 . See Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965); Lollar v. United States, 126 U.S.App.D.C. -, 376 F.2d 243 (1967). Lollar was this appellant’s co-defendant in the trial in the District Court.

2 . Lollar v. United States, supra Note 1.

3 . See Benson v. United States, 5 Cir., 332 F.2d 288 (1964); Walker v. United States, 5 Cir., 342 F.2d 22 (1965).

4 . 22 D.C.Code § 3204 (1961).

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Dissenting Opinion

BAZELON, Chief Judge

(dissenting):

Since the court requires a showing of prejudice, and since I do not find prеjudice in this record, I ‍​​​‌‌‌‌​‌​​​‌‌​​​‌​​​‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌​‌‌​‌​‌​‍would not reverse these convictions. See my dissent in Lollar v. United States, 126 U.S.App.D.C. -, 376 F.2d 248 (1967). I have serious doubts about the legality of the general sentence imposed in this case. The majority’s disposition, though, makes it unnecessary for me to reach this issue.

Case Details

Case Name: Fred J. Ford v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 9, 1967

Citations: 379 F.2d 123; 126 U.S. App. D.C. 346; 1967 U.S. App. LEXIS 6454; 20299

Docket Number: 20299

Court Abbreviation: D.C. Cir.