United States v. Richard Mari
526 F.2d 117
2d Cir.
1975
Check Treatment

*1 however, stances, this was best a proper

measure available. Overhead completion damages, of cost of

element measure of proper an allocation is a Mfg. Corp. Vitex amount. Carib- Corp.,

tex Western R. Co. v. H. W.

Grand Trunk Inc., (6th Co., 116 F.2d 823

Nelson have examined record We error there was no in the

and conclude damage ap- items of contested on

other

peal by Morrin.

Although Morrin have suffered transaction,

substantial losses on this un- Burgess

der the terms of the subcontract no breach and Morrin is not

committed damages. The evidence did

entitled a breach Morrin.

establish We find judgment

no error district

Affirmed. America, STATES

UNITED

Appellee, MARI, Defendant-Appellant.

Richard 75-2048.

No. Docket Romero, Justice, Dept. Richard R. Appeals, Court of Washington, (David Trager, D.C. Circuit. G. Second Y., E. and Peter Atty., D. N. M. Shan 29, 1975. Argued Oct. Jr., non, Justice, Dept, Washington, D.C., counsel), appellee. Decided Nov. Broderick, N.Y., Bayside,

Patrick F. defendant-appellant. MULLIGAN, Before OAKES MESKILL, Judges. Circuit MULLIGAN, Judge: Circuit August On 1973 seven-count in- was filed in the dictment Eastern Dis- charging trict of York appellant New Mari and his co-defendant Wil- Richard James liam with extortionate credit. charged extension of Count I *2 plea untariness of both defendants with his conspiracy to as well use as the fac- extortionate means to tual basis therefor. collect and at- tempt to an collect extension of credit to At the hearing same defendant Mac- Jr., Freno, Joseph violation of 18 Queen also pleaded guilty, to a two- 894; charged Count II § U.S.C. Mari superseding count information. Mac- alone with an extortionate extension of Queen’s comments indicate that he was Freno, to credit violation of U.S.C. exculpate by to Mari trying taking all 892; charged Count III both § defend- the on himself. He blame concluded threatening ants with Freno in order to saying: him; collect from Counts IV and VI the just I made all threats. He in- charged Mari alone with threatening me to Freno. troduced occasions; on Freno two Count just The Court: But Mr. Mari told alleged V that both defendants used vio- the guilty me he was of threats. lence and other criminal means to cause Freno; MacQueen: Well, to Defendant through harm MacQueen and Count VII accused I me. told him alone what to I threatening say. of said Freno. “Just tell Mr. Freno or his son”— appears further from the indictment Mari the Freno, that made initial loan to The Court: Both or either of you but then advised Freno that use threatened to violence against Fre- “purchased” had the Mari, debt from so no? repay MacQueen, that Freno had to MacQueen: Defendant Me. an extortionate rate. The Court: How about him? all throughout At times proceed- the MacQueen: well, Defendant No— ings both defendants represented were say him to it but he never told did it attorney, the same Kenneth Salaway, himself. Esq. January 18, 1974, On both defend- appeared April Judge Oh ants before Hon. John Bartels sen- R. Bar- tels, tenced Mari four to months Judge, imprison- States District of to re- quest years eight ment and two withdrawal of pro- their months not-guilty bation; the pleas entry period guilty pleas. incarceration At been served. All pointed remaining time the court out counts the possibility against Mari dropped. MacQueen were a conflict of interest because of the joint representation, guilty plea given on his eighteen was and asked both de- probation. fendants months’ attorney Salaway if they possibility understood the problem. of a In November after his period of All three replied the affirmative. Sal- imprisonment, Mari instituted the in- away then represented that there was in stant action to vacate conviction, his pur- no fact conflict between his clients. suant 28 U.S.C. § ground the 25, 1974, On January both plea his involuntary appeared again Judge before Bartels to that he was denied effective assistance pleas. enter their Specifically, counsel, Mari because it was improper for pleaded guilty to Count II of the indict- defendants to have been represent- ment, charged him alone with ed the an same attorney. Judge Bartels extortionate extension hearing, credit to held a Fre- which Mari testified An no. examination of the transcript that attorney Salaway had never dis- that hearing that, makes it clear cussed a re- conflict of interest with sponse questions court, him, from the and that Mari in fact he was innocent of claimed that he understood the the charge nature pleaded which he him, charge against the his right pro- had not understood his plea. Sala- wished, ceed trial if he that, way and the conse- testified while he could quences guilty plea. his short,, In recall the specific conversation with there was a Mari, meticulous examination he was sure the topic of a by Mari the court potential determine the vol- conflict of interest had arisen. DeBerry only requires event that the hearing Judge tri- Bartels denied After conduct a careful motion, leading judge inquiry, al in- to the appeal. instant cluding personal interrogation From our examination defendants, satisfy himself that no hearings there seems to ques parties and that conflict exists had the voluntariness Mari’s plea, tion of joint objection representation. no valid *3 there may means that well have which inquiry Judge was made here. That waiver him of a the issue of been interrogation personal Bartels’s was representation.1 However, joint in any thorough complete. He op- had the is that issue without merit. event It is portunity on two occasions observe Circuit that specific settled in this “some gauge the credibility the demeanor prejudice, some instance real conflict MacQueen. of Mari as well as While interest, resulting joint from a repre Mari tries to vacate his now on the must be shown to exist sentation before it ground involuntary that and that appellant said that an it can be been always expected go trial, fact he the effective assistance of denied coun disregard Judge we cannot Bartels’s re- Lovano, sel.” v. 420 United States F.2d Mari’s credibility. fusal credit 769, (2d Cir.), denied, cert. 773 397 U.S. Affirmed. 1515, 1071, (1970) 90 S.Ct. 25 L.Ed.2d 694 omitted).2 (citations Here there is no OAKES, Judge Circuit (concurring): showing prejudice. such ap There cases in our circuit that is true It be real conflict pears to no between Mari a specific showing required to date have MacQueen. Both, co-defendant and his or real conflict of interest a prejudice course, pleaded guilty. that, is true joint representation of co- resulting from hearing plea, the guilty Mac- attorney before Sixth by one defendants Queen attempted take the brunt of rights may be said to have Amendment guilt on himself and to exculpate Lovano, v. States invaded. United Mari, been pleaded but the latter himself still denied, 769, (2d Cir.), cert. 773 F.2d 420 voluntarily after guilty being fully 1515, 1071, L.Ed.2d 90 S.Ct. 25 U.S. 397 consequences. of the informed v. DeBer see United States (1970); 694 Salaway to see how had It is difficult (2d 1973). 448, Un- 453 Cir. F.2d 487 ry, problem interest in rec- any conflict test, the law this der plead guilty. The ommending that Mari follow, judge is bound each circuit thought that he indicates record here, for the rea- to concur required am would be convicted on his clients both Mulligan’s Judge stated well sons Salaway reason for There was trial. Warden, Dukes v. 406 See opinion. plead him letting Mari to sacrifice 1551, 256, 92 32 L.Ed.2d 250, S.Ct. U.S. MacQueen was because will- just (1972). 45 to do so. Had obviously anxious ing and how- rapidly approaching, is time The on trial had gone light exacting more when, ever, position take this there continued the Bar and the decisions arising standards prejudice to him might been have courts, may leading we have to joint other representation of Salaway’s from The American Bar our rule. reexamine DeBerry, v. 487 both, United States see view, albeit takes the now 1973). In Association 448, (2d any Cir. 453 F.2d consistently States, U.S.App. 2. This rule has been followed v. United 103 Edwards See E.g., denied, Vowteras, 707, 709-10, United 152, States v. cert. 256 F.2d D.C. 1210, (2d denied, Cir.), 74, (1958); 500 F.2d 1211 cert. 847, 82 419 S.Ct. 3 L.Ed.2d 79 358 U.S. 1069, 656, 168, (1974); Cox, (W.D. U.S. 95 S.Ct. 42 L.Ed.2d F.Supp. 665 170 312 St. v. Clair Wisniewski, 274, United States 478 Va.1970). generally Bishop, F.2d 281 Waivers See (2d Alberti, 513, Guilty, Cir. United States v. 470 60 526-27 and F.R.D. Pleas 878, (2d denied, 1972), (as general principle, F.2d cert. (1974) a a cited cases 919, 1557, (1973). S.Ct. 36 L.Ed.2d 311 guilty plea all defenses and all non- surrenders defects). jurisdictional remote, altogether crystalline regard we will clarity, joint with representa- as constitutionally tion . defective.” Unit- ed ex rel. Hart v. Davenport, 478 preliminary for Except matters such 203, gener- See hearings applications initial or as bail, ally Glasser v. States, lawyer lawyers or who are asso- 62 S.Ct. (1942); L.Ed. 680 practice ciated in should not undertake Warden, supra. Dukes defend more than one defendant in problem the same criminal case if the The duty to that even where as may of the defendants here both pleaded one conflict codefendants duty frequently there are poten- potential with to another. The conflicts of interest. tial interest As the repre- Standards, ABA su- senting pra, out, multiple point is so the prosecutor ordinarily grave lawyer inclined to accept should a guilty plea to act *4 decline for more than one from codefendant may of which harm except several co-defendants the interests of the un- other. The contrast when, dispositions usual situations after careful the of may in- the cases have vestigation, it a impact is clear that harmful on no conflict the codefendant develop likely initially and the who does not plead is when sev- guilty; he give be may pressured eral an informed into pleading con- multiple representation. sent to such himself rather than face his codefend- bargained-for ant’s testimony at a trial. ABA Relating Standards to the Prosecu- it be And will his own counsel’s recom- tion Function the Defense Function mendation to the initially pleading co-de- (Approved 1971) 211, 3.5 Draft § fendant which will have contributed to Wilson, also See P. Pattern Rules of impact this harmful upon him. While Court and Code (prepared Provisions for appears there in this case no advantage the Committee Implementation to permitting Mari to plead guilty just for the Standards Administration of because willing and anx- Criminal Justice the Section of Crimi- so, ious to do Warden, Dukes v. supra, in ABA, 1975) nal Justice the at 38-39. a given instance it would be at least The District of Columbia Circuit has a prosecutor conceivable that the willing would be appointment rule automatic sepa- accept pleas to lesser offenses initially rate counsel under the Criminal from two preference defendants in to a Act, Justice 18 U.S.C. 3006A. § See plea by one defendant to a States, v. United U.S.App.D.C. Ford 126 greater offense. As Standards, the ABA 346, 123, (1967); 379 F.2d 126 Lollar v. 213, supra, at point out, also the very States, 200, 126 U.S.App.D.C. 376 multiple fact of representation makes it (1967). 243 The First Circuit as an impossible to assure an accused that his supervisory exercise of its power re- lawyer statements the are given in quires the trial court to comment on the full confidence. risks inherent in representation, dual I inquire as each do suggest defendant’s not discus- that I propose would counsel, sion of the risks with any rule that and under- dual representation is per standing right that he has a se constitutionally defective, to retain much less qualified counsel and a majority if of the active members of court, expense. High Government If the trial this or the court Court on the Po- tomac, neglects inquiry, agree would the Government such a rule. prove prejudice however, must propose, the would given defend- “improbable.” steadily ant was increasing United States v. numbers compe- Foster, available, 1, lawyers 469 F.2d (1st 4-5 tent the availability requires The Third Circuit CJA funds for counsel specific indigent the showing probabilities the prejudice as we do but rather conflict of inter- “upon showing holds that est inherent representation, of a dual it only conflict of or after prejudice, interest should the most searching however

121 1972), or mistrials continuances can be part of the court and in inquiry Essentially by the time a case circumstances saved. exceptional where a those gets present ap- the to the the realms of rea- such not within appearance level the harm to the foreseeability represen- pellate that dual sonable already done, has been wheth- justice counsel per- defense should be by tation occurs; at not reversal the trial er or District of Vermont The mitted. a matter which is so easy it is rule in level an unwritten effect for had such I have said another con- As prevents a rule avoid. text, Such many years. intended, irony Morgan without and, injustice equally im- occasional an 693, 521 F.2d Montanye, injustice. appearance of the portant, (dissent rehearing from denial of 1975) my it that in make clear view I should banc), right the to counsel is a “rath- en talking whether we are is immaterial it one. Powell v. Ala- er fundamental” handling a case or trying about 45, 55, bama, 53 S.Ct. 77 L.Ed. ABA make no dif- the Standards guilty; (1932); Wainwright, Gideon unequivocally permit ferentiation 792, 83 S.Ct. L.Ed.2d 799 U.S. only in “preliminary representation dual Hamlin, Argersinger v. (1963); hearings initial appli- such as or matters ” (1972). 32 L.Ed.2d 92 S.Ct. . . . bail. cations greatest scrutiny after and in Only whether no difference counsel is makes circumstances exceptional should dual court or by selected appointed representation, frequently so defendants; even where selected right, be *5 sanctioned a fed- impair dangers poten- the same eral district exist, and it is tial conflict public rights prop- justice may be af- er administration adversely. Cf. United States v.

fected F.Supp. (D.D.C.1972)

Liddy, Watergate defendants submitted

(four opposing Government’s motion

affidavit counsel). require that, except insistence Trial court al., circumstances, MORRISSEY et M. extraordinary codefend- James Plaintiffs-Appellees-Appellants, separate counsel will in the ants retain prove my opinion salutary long run v. justice the administration of only Karchmer, and Leon SEGAL Martin justice but appearance and the Defendants-Appellants-Appellees, corpus petitions, habeas justice; cost trials, appeals new and oc- petitions al., Joseph et Curran retrials, see, g., e. casionally United Defendants-Appellees. Olsen, 453 F.2d (2d Cir.), States 809, 1067, 74-2382, Dockets Nos. denied, cert. S.Ct. 74-2387. (1972), L.Ed.2d can be avoided. to whether there is an actual Issues Appeals, Court of United States interest, whether the conflict conflict Circuit. Second in prejudice, whether there has resulted April Argued waiver, whether the waiver is has been intelligent knowledgeable, for exam- 14, 1975. Decided Nov. Where a all be avoided. ple, can appear subsequently did not that first trial, g., or before e. arises DeBerry, supra; Austin v. Er-

ickson, (8th 477 F.2d 620 Hol- Henderson, (5th 460 F.2d 978

land v.