George Kaplan v. Roy Bombard, Superintendent, Green Haven Correctional Facility, Respondent

TIMBERS, ting рrices charged by the Geisha MANSFIELD Before DOOLING, District House. Judges, and Circuit Judge.* 20, 1973, day On December after a five jury County Supreme trial in the New York TIMBERS, Judge: Circuit Denzer, Justice Richard Court before G. an order entered this On were convicted of two York, Gerard of New District Southern degree counts of second arson. Hodas was 233, Goettel, Judge, F.Supp. District L. 14, February Kaplan acquitted. On petition for prisoner’s which denied a state post-trial and filed a motion to set ques- the essential corpus, habeas a writ of on the grounds, aside their convictions district court whether the presented tion others, that there had been a among con claim that correctly rejected petitioner’s resulting flict of interest from their attor right to Amendment his Sixth was denied them, as well ney representing as the co-de as a re- of counsel effective assistance Hodas, Following at trial. ex fendant an joint representation of attorney’s sult of his evidentiary hearing tensive on this motion at their two co-defendants petitioner and 28, 1974, February Justice Denzer in thе con- trial which resulted state court 19, April the motion on the same On degree arson. of second petitioner viction imposed was day sentence on both defend affirm. ants. was sentenced to an indeter imprisonment minate term of not to exceed I. years. seven George Kaplan, July petitioner 3, Appellate On December 1974 the Divi Gomberg and Martin together Jerry unanimously sion affirmed both convictions. Hodas, County a New York was indicted 850, v. People Gomberg, 46 A.D.2d 362 N.Y. degree the crimes of second Jury of Grand 1974) (1st Dept. (mem.); People S.2d v. partici- their and criminal mischief for arson 850, Kaplan, 46 A.D.2d 362 N.Y.S.2d 833 massage par- two pation setting fires at 1974) (1st Dept. (mem.). The New York Square area —the Palace in the Times lors 29,1975, Appeals on December Court 10, May the French Model Studio —on and Jasen, comprehensive opinion by Judge also 25, 1972, respectively. The July 1972 and unanimously affirmed both convictions. compe- were in massage parlors two burned People Gomberg v. 38 N.Y.2d House, mas- another tition with Geisha 307, 550, 342 N.E.2d alleged- area which sage parlor in the same application stay An for a was de by petitioner co-de- ly was owned Mr. nied Justice Marshall of the United fires, accord- The motive for fendants. Supreme Court. No further review trial, at the state ing to the evidence Supreme sought in the Court. part disturbance on the extreme remedies,1 Having with the fact that the two exhausted his state three defendants massage parlors petition were undercut- filed the instant for a writ competing * Dooling, (2 1974); Senior United States Dis- Hon. John F. 496 F.2d 991 Cir. United States ex York, Zеlker, Judge, 1121, District of New sit- trict Eastern rel. Nelson v. 465 F.2d 1123-25 ting by designation. (2 Cir.), (1972); 409 U.S. 1045 Wilkins, ex rel. Wissenfeld v. 707, (2 1960). 2254(b) (c) 281 F.2d 710-12 Cir. required by § 1. As 28 U.S.C. Connor, 270, , (1970) Picard v. Appeals We note that New York Court Circuit, , e.g., (1971) and the settled law of this Kaplan’s right proceed- ruled on “in a criminal ‍‌​‌​​‌​‌​​‌​​‌​​‌‌‌​‌‌​‌​​​‌​‌‌​​​‌‌‌​​​​‌‌‌​‌​​‍91, (2 Fogg, 92-95 Cir. Wilson v. ing guaranteed to the assistance of counsel [as] Fastoff, 1978); 543 F.2d 976- v. Cameron Constitutions, by the Federal and State as well 1976); United States ex rel. Lunz v. Cir. Amdt.; (U.S.Const., State 6th statute. Henderson, n.3 1324 & N.Y.Const., I, 6; 210.15, 2.)” art. CPL subd. 1976); ex rel. Johnson v. Vin only It is of state remedies with exhaustion cent, 1974); 1311-13 respect claim to the federal constitutional Manson, Ralls 493-94 which we are concerned. Zelker, States ex rel. Gibbs corpus of habeas in the District of point prosecutor Southern At that that in stated 1, 1976, from the New York June denial his view attempting the defendants were in a which well rea- Judge Goettel further already to stall had January in- opinion filed soned been for several delayed months. Defense has taken.2 stant been Detsky judge, then informed defendants, presence the three

II. he had problem discussed the with his days clients earlier and that all several statements of аdequate In view of the three had stated that “had confidence New York opinions the facts Detsky] in our firm & to handle [Kassner the district court and of Court it.” then specifically asked Det- familiarity, with which we assume below sky, in presence of the three defend- only here those facts we shall summarize ants, way whether the situation necessary “[t]he prior proceedings to an you stands is that advised them of this and understanding rulings peti- below on of our they they didn’t you told want to hire other claim of of effective assist- tioner’s denial counsel?” Detsky replied judge’s the ance of counsel. understanding was correct. After further Turning proceed- state court first to the discussion, judge the by stating concluded trial, to Denzer conducted ings prior Justice the proceed trial would but that the joint representa- if hearing a to determine liberty were at bring defendants to other potential conflict of tion would create any they into the case at time if felt of the prejudicial any to defend- interest Throughout there was a conflict. this presence of defense counsel' ants. In the entire the proceeding judge addressed all attorney, the and the assistant district three defendants. remained silent to addressed the three defendants judge throughout. if their defense “as determine viewed reviewing pre-trial After this inquiry by there be a being in conflict or that judge, the New York Court of respect to at- of interest with conflict Appeals concluded: represents you.” all three of torney that change lawyers, if to asked he wished When Judge’s “We hold that the Trial replied hе wanted Kassner to Hodas appellants of and their pos- counsel as to represent Gomberg him. at continue sible conflict of interest in this case was understand what the appeared first not to protect appel- more than sufficient the at, stating that it getting lants’ to effective assistance another get lawyer.” “better for us to Although initially counsel. ex- Finally, simple part remedies, district exhaustion of state the device of making we portions note that the disposed district court court below record the relevant of the state opinions as this issue follows: court briefs and that bear on the issue See, e.g., of state exhaustion remedies. alleges “Petitioner that he has exhausted his Henderson, supra, Lunz remedies, by States ex rel. required state 28 U.S.C. n.3. Respondent F.2d at 1324 & challenge does not this F.Supp. at 233. contention.” again, judg 2. Once is a case this in which no importance a matter of such critical where On although clearly ment entered was ever re ap- the nor the court of neither district court quired by as a the rules basis for an accept stipulation peals should without an again such as the instant one. renew our records, independent the examination we practice. v. Sil criticism of such See Duckett judges suggest to the that would be district berman, n.1 us, helpful practice, vastly better more and Deposit Corp., Mallis v. Federal Ins. specific finding make a whether state reme- dismissed,- 827 n.4 have or been exhausted ‍‌​‌​​‌​‌​​‌​​‌​​‌‌‌​‌‌​‌​​​‌​‌‌​​​‌‌‌​​​​‌‌‌​‌​​‍based on dies have not U.S.-(1978). usually relevant state the briefs the records — sloppy practice brоught to a Unless this is opinions Appellate Division and the or the sharp by counsel and district court halt (on peti- Appeals New York Court of habeas clerks, compelled ster- we shall be to resort Indeed, by prisoner). a New state tion ner measures. appellate by substantial time can be saved rejected by the end courts misgivings, at three state and pressed some defendants all of the court. For the reasons which fol- district proceedings conflict low, we also that the claim is without hold were made aware continuation of acquiesced merit. and The representation. Detsky &

Kassner III. to advise precaution court took added stage of if at some later defendants the facts Upon this record of arose, would the court trial a conflict simple law applicable proceedings, the case. enter other permit It es- straightforward. involves two defendants, intelligent percep- First, questions. Kaplan preju- sential businessmen, complained never tive of himself diced permit- not be They thereafter. should and his two the same at- co-defendants now.” N.Y.2d complain ted Second, torney? did he consent to such at 776. 379 N.Y.S.2d are the two joint representation? These which the New York Court questions began on Decem At the trial itself fully and the district heavily case state’s relied ber concluding that carefully examined before employees three testimony the effective assist- Kaplan was accomplice's) who had (paid House Geisha agree. of counsel. We ance Kaplan аnd his co-defend ordered been fires, so. The and did ants start Prejudice (A) a former associate state also called defendants, Valentine, who owned well Judge Mulligan Nicholas As stated in 1053, competing massage parlors. 543 Carrigan, one of the v. F.2d Valentine, testimony offered to (2 1976): whose 1055 accomplices, the three that of corroborate representation “The mere two or the defend that on two occasions testified single attorney by more defendants occa him. One such ants had threatеned give does not a con- automatically rise to first mas immediately after the sion is deprivation stitutional of counsel. It the de burned when sage parlor had been specific settled this Circuit that some did not him if he fendants warned of prejudice, instance some real conflict massage parlor would be prices his his raise interest, resulting from a repre- next. It was. sentation must be shown exist before said appellant it can be that an has been vig- chiefly consisted The defense case assistance оf coun- effective wit- the state’s orous cross-examination sel.” by the only witnesses called nesses. The Kassner; Accord, Mari, 117, attorney, v. were their United defendants States corpo- 1975); (2 several of Hodas’ States v. Vowter an accountant for 119 Levin; Hodas, rations, Cir.), denied, as, 1210, 1211 (2 Herbert cert. only (1974); only defendant who testified 1069 United States v. Wis F,2d testified, niewski, 274, acquitted. who was Hodas one merely Lovano, things, 769, that he was among other F.2d denied, House and therefore Cir.), (1970). landlord Geisha cert. 397 U.S. 1071 competing set fire to had no motive to short, as the New York Court massage parlors. case, Appeals pointed out in the instant 312, 773, as- Kaplan’s of denial of effective “the claim N.Y.2d 379 N.Y.S.2d at joint rep- representation because of the of defendants is not sistance by the the three defendants se a denial of the effective assistance per resentation of Kassner, counsel”, Gonzalez, raised citing People was first attorney, same 34, 885, 882, Denzer before Justice 280 N.E.2d post-trial his motion N.Y.2d County Supreme New Court. U.S. now been ever thе same claim has Nor has our Court subscribed Substantially rule, is grounded speculation per emphatically to such a se and we as to what the reject jury it here. thought. It fails any to show “specific instance of prejudice” or any “real conflict Kaplan’s claim of prejudice centers of interest”. United v. Carrigan, chiefly on the asserted conflict he supra, 543 at 1055. F.2d says arose because co-defendant Hodas testified that as landlord he lacked the mo Kaplan urges also prejudiced that hе was Kaplan tive to contends set the fires. attorney’s failure call him as a emphasis defense Hodas’ counsel’s lack witness, although defense did testify. Hodas emphasized of motive in turn that he and True, present does Gomberg his co-defendant have a mo did problems one of when several defendants tive. is While it true that Hodas did Morgan takes the stand. v. United present a was un separate defense which 1968)4 114 Cir. As stated follow available to it does not however, above, testimony Hodas’ did not positions of the three defendants neces way conflict in Kaplan’s defense. sarily in conflict. did not at were Hodas Nor Kaplan’s clear that testimony tempt the blame the arson on place anything would have new to the added de- Kaplan. argu Nor his lack motive did Moreover, testified, fense. if had Kaplan Kaplan’s ment conflict defense. The been subject would have to cross-exami- charged prosecution participation uniform nation on his criminal record. Hodas had each all defendant.3 Thus had а no record, whereas both Kap- in attacking credibility common interest lan did. The decision not to of the state’s witnesses. In the course of Kaplan call was a matter of sound trial motive, emphasizing lack Hodas’ defense tactics. United States v. Garguilo, sought to undermine testimony 1963) (Kaufman, J.).5 797 Cir. of the state’s witnesses that Hodas had prejudiced hold To the extent this im was not participated. credibility pugned the of the state’s wit of himself and nesses, it aided the defense of his two co-defendants the same attor- Kaplan’s Gomberg. ney.6 claim out, disturbed, pointed As 3. the court below 444 should not district be absent facts which F.Supp. at 237: call the to Court’s attention the indi- inability “During hearing, post-conviction vidual’s to make a free choice.” a Justice F.Supp. Denzer that found there no conflict of was at 971. among presented interest the defenses at trial hindsight, Kaplan urges 5. With 20-20 also oth- fact, for the In three co-defendants. alleged prejudice joint er instances from the ‘community found that there was a of inter- representation trial, during e.g., emphasis among est’ that the defendants the evi- cross-examination, interpose objec- failure to indicating equal dence was consistent ‘in tions, Bayarsky, ” failure call a to witness named responsibility of all three men.’ requests charge and summation. We have Kaplan’s heavy upon In 4. view of reliance our carefully alleged considered all instances Morgan, noting decision in it is worth what prejudice Kaplan asserted and we find them remand, Morgan was flushed out v. United to be without merit. States, F.Supp. (D.Conn.1968), in re- sponse to Court’s to the this direction district inquiry. Having 6. This well end our held “Morgan knowing- court to determine whether on the basis of trial record as well as the ly accepted whatever risks were involved in pre-trial inquiry record of the that there was no having presented by both defenses the same specific potential preju- instance of or actual attorney.” F.2d at 112. The district court interest, dice or real conflict of under the held on remand: unnecessary law of it is this Circuit for us to requesting appoint “In the Court Turk Kaplаn question reach whether consent- him, represent Morgan placed in effect him- joint representation. ed to the In view of the position comparable self in a to that of an earnestness with which his able counsel on joint individual who retains counsel a consent, urges the claim of lack we inception pro- from the co-defendant question, shall rule on the the New as did situation, ceedings. In latter as in the Court of and the district below. bar, case at choice of individual potential the issue of a conflict of interest (B) Consent arising joint representation from in- —an whether finally question to the come Ap- quiry which the New York Court of representa- to the Kaplan consented peals held was “more than sufficient tion. protect right to effective appellants’ that, although we note At the outset assistance of counsel.” 38 N.Y.2d at as one of question have cast counsel at 776. nevertheless waiver, truly this “is not we believe inquiry was insufficient contends this right; waiver of a constitutional case of impose рroof the burden of on him7 or to one constitutional to assert is a decision argues establish waiver. He the trial United States of another.” right instead judge obliged personal to conduct a (2 Cir.), cert. Bubar, 203 n. 18 inquiry of each defendant and to obtain denied, (1977), quoting U.S. express from each his on the Konigsberg v. Vin consent record ex rel. 1975) cent, (2 joint representation. Cir. 133-34 526 F.2d J), 426 U.S. 937 (Feinberg, case, Upon the facts of this Martinez we hold ex rel. See Thomas, ‍‌​‌​​‌​‌​​‌​​‌​​‌‌‌​‌‌​‌​​​‌​‌‌​​​‌‌‌​​​​‌‌‌​‌​​‍judge’s 756 n. 8 Cir. that the trial failure to address each us we be

1975). Upon the record befоre personally defendant and to elicit a re presented is not question lieve that sponse preclude from each does not a find Kaplan waived his constitutional whether ing representation.8 of consent to counsel, right to the effective assistance evidence shows that consented to accurately whether he asserted but more meeting at a represented by to be constitutional his prior pre-trial to trial. At the in short, of his own choice —in quiry report he heard defense counsel rep jointly by counsel who also represented object. He consent. He did not his co-defendants. resented specifically about a conflict warned above, p. judge. the trial He was offered the We have summarized judge’s inquiry opportunity separate to obtain counsel. At supra, pre-trial question showing express reach the The defendant bears the burden of whether an re- prior prejudice sponse necessary where to trial the court advised from a defendant was to a possibility moreover, and as finding Carrigan, him of the conflict of consent. willingness proceed without certained trial made no whatsoever as to counsel; separate otherwise the state must whether would prejudice. United States v. Carri show lack the defendants. 543 F.2d at 1057. 1056; gan, supra, 543 F.2d at see also United Mari, Kaplan’s reliance on United States v. Foster, 1972). 4-5 States v. 1975), and Abraham v. 549 F.2d 236 require do not 8. Our decisions support during his claim his silence express judge elicit consent on the record. trial waiver, pre-trial inquiry precludes finding Sheiner, 337, 341- In United States v. misplaced. Although is in both cases we held 1969), judge explained trial inquiry by that the the district court constitut- potential which arise from for conflict waiver, finding ed a sufficient a we basis for however, here, joint representation. As respons- had no occasion to rule that individual explicitly joint to defendant did not representation. consent es from the individual defendants were neces- found the actual conflict We sary finding. to such a possible prejudice “to be minimal as to and so Donahue, Recеntly in United in absence of . . warrant affirmance even 1977), F.2d 1039 Cir. the First Circuit held acquiescence joint representation.” explicit pre-trial inquiry that a was insufficient because Id. at 343. magistrate explain the risks in did DeBerry, States v. In both United volved in even after the and United States v. Carri- 448 gan, supra, fully said he did not understand the defendant inquiries by the dis- we found the Moreover, magistrate problem. did not in inadequate. In DeBer- to have been trict court however, form the defendant that he was entitled to initially ry, the conflict discussed separаte only counsel if he so desired. That is a far only day of trial and then on the second . cry attorneys. from the facts of the instant case F.2d 453. On the between the unnecessary us to therefore it was for facts during pre-trial inquiry Gomberg, or dur- waived possible no time claim of object represen- trial prejudice resulting did he ing from the repre- tation. sentation.” N.Y.2d at 379 N.Y. 777. S.2d at agree with the observation Appeals York Court of in the instant carefully New We have considered Kaplan’s under appropriate, is such cаse other claims error and find them to be “[i]t circumstances, place great for the court to without merit.10 upon weight representation counsel’s Affirmed. joint representa is no conflict in his there Similarly, rely upon the court may tion. MANSFIELD, Circuit Judge (concur- fully assurances that counsel’s discussed ring): potentiality of conflict with his clients their approbation.” and received continued we Although have not held that 314, 379 at citing N.Y.2d representation of two defendants in a crimi- Armone, 406 nal case amounts to per se denial Cir.), counsel, effective assistance of I view it as something upon frowned because inquiry this branch of as to Under potential its conflict of interest on the Kaplan was effective whether denied the part. counsel’s The rules we have estab- counsel, under assistance we conclude long lished in a line of cases raising this of this case consented circumstances that he constantly recurring problem should there- joint representation.9 again to the Here we strictly fore be construed. Applying them with the agree conclusion reached here, myself I find able solely to concur York Court of Appeals: New because of the absence of sufficient particu- court, “The trial by its careful and joint representa- larized from the response measured to the conflict of in- tion of and two co-defendants issue, its obliga- terest more than fulfilled finding warrant a that he was unconstitu- to make pos- tion a reasonable tionally right denied his to effective assist- defendants, conflict. sible after be- ance of under the Sixth Amend- ing alerted to the existence of ment. opportu- of interest given conflict and counsel, nity Although to retain Hodas’ successful separate consented effort at trial continued Kassner & disassociate himself from and consent, Detsky. By Gomberg by showing which was his lack of the motive made, knowingly they de- intelligently possessed by taking the witness stand, not, fendant as well as defendant did have hurt concurring colleague’s separate opinion, example, Kaplan 10. For Our claims that the district course, granted hearing should be read with distinction in should have him a (a) exercising petition between compe- mind our roles our habeas to determine if he was power supervisory ‍‌​‌​​‌​‌​​‌​​‌​​‌‌‌​‌‌​‌​​​‌​‌‌​​​‌‌‌​​​​‌‌‌​‌​​‍appeals in problem on direct tent to understand the conflict cases, not, (b) separate which the instant case waive his agree. counsel. We dis- exercising, here, as we do our far more limited The district court had before it the entire reviewing corpus power transcript proceedings on federal habeas in the statе trial court, appellate unanimous decision of the York Court of New as well as the state court deci- fully determine whether error consti- record sions. This set forth the trial judge’s explanation issue, tutional dimensions has been committed. of the conflict as well Kaplan’s prior past business ventures and Judge This distinction is in Mans- reflected experience. provided adequate This an reliance, opinion, solely concurring in field’s his finding basis for the district court’s that upon cases which arose the federal under сompetent to understand the risks inher- supervisory appeals power courts’ on direct in in ent and to waive his cases; upon none of relied the cases separate counsel. See 28 U.S.C. by Judge power Mansfield involved our limited 2254(d) (1970). corpus of habeas review. 716 conflict”; the court that “There be a eyes, the harm jury’s the

Kaplan in unsuccessfully there is no show- that he had best and moved for a speculative at separately rep- ground; severance of that Kaplan had been Hodas on ing thаt if suggested that improved (Gomberg have he had to them counsel would resented his that expose Kaplan) they get chosen to should position trial or differ- his tactical lawyer him the ent than by putting representing Hodas criminal record his Thus, they but had sepa- with or without that decided to continue with witness stand. him attorney. as their the verbal counsel, potential prejudice Kap- rate the arising lan out of Hodas’ defense melee that separate courtroom, followed in the Kap- lan appear does not to have substantially same. been accorded the remained any opportunity his express views or questions of wheth When comes state whether he to be represented wished er consented to represented the same attorney who judge followed the the trial and whether other two defendants. Nor does the back- issue, that I resolving procedure proper ground person with a sixth expressed by not the views do share education, grade suggest that he under- we have occasion majоrity opinion. While import stood the of counsel’s colloquy defense counsel’s statement ally upon relied the court or intelligently concurred in it. permitting joint representa as the basis for tion, procedure is for the trial Under all of these preferred circumstances I cannot court, representa join such permitting judge’s conclusion that trial before tion, personally inquiry measured up to address defendants standards we responses Kaplan’s them indi have or clearly and elicit from established conviction in cating understanding ground their risks should be affirmed on the he jointly repre knowingly intelligently their desire to be volved and consented to v. United sented. Abraham joint representation. However, 549 continued 236, (2d 1977) (“defendant Cir. even if we assume F.2d 239 that because of the inad- given opportunity express equacy judge’s of the state should be the bur- Mari, v. views”); den preju- was on state to show lack of denied, dice, v. 1975), Carrigan, cert. see United 117, 118 429 States (2d Cir. U.S. 543 359, 1053, United 941, (1976) (2d F.2d 1056 50 L.Ed.2d S.Ct. DeBerry, States v. (defendants “replied in the affirmative” 453-54 n.6 (2d possibility of conflict I understood believe burden was jointly represented). The in the present and wanted to be sustained case. Absent a responses specific of the defendants were claim or indication personal of some instance Vowteras, States v. elicited in United 500 of repre- attributable to denied, cert. (2d Cir.), sentation, be required F.2d state cannot go proving negative. 95 S.Ct. L.Ed.2d further U.S. Wisniewski, (1974); 1973); and (2d

F.2d 274 Sheiner, (2d Cir.), 68, 24 L.Ed.2d S.Ct.

Here, contrast, judge trial did personal response Kaplan.

obtain a

Moreover, joint representation of three one, permitted after Gom-

defendants

berg, repeatedly stated to like to ‍‌​‌​​‌​‌​​‌​​‌​​‌‌‌​‌‌​‌​​​‌​‌‌​​​‌‌‌​​​​‌‌‌​‌​​‍with another would confer had

lawyer and after stated

Case Details

Case Name: George Kaplan v. Roy Bombard, Superintendent, Green Haven Correctional Facility, Respondent

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 15, 1978

Citation: 573 F.2d 708

Docket Number: 19, Docket 77-2034

Court Abbreviation: 2d Cir.