*2
LUMBARD,
Before
MANSFIELD and
MULLIGAN,
Judges.
Circuit
MULLIGAN,
Judge:
Circuit
appeals
These are
judgments
of con-
July
entered on
viction
District of New York.
appel-
Northern
Carrigan
Richard P.
and
lants
Robert E.
White were indicted on March
1974 on
wilfully, knowingly
one count
and un-
transporting
lawfully
goods
stolen
in inter-
Gloversville,
commerce from
state
New
Haverhill,
York
Massachusetts in viola-
of Title
U.S.C.
2314 and
tion
2. The
§§
property consisted
raw and treat-
stolen
cowhides, goat skins, suede leather
ed
skins
coats,
ladies cowhide
at approxi-
valued
$37,475.
mately
three-day
After
a
tri-
MacMahon,
al before the Hon. Lloyd F.
sitting
designation,
both defendants
guilty
charged
were found
on June
July
On
MacMahon sen-
eight years
tenced each defendant
im-
prisonment and
has been imprisoned
January 1975. Both
since
defendants were
by the
attorney
same trial
who
jointly retained.
was
The Government’s case below was estab-
by eight witnesses and
lished
some eleven
proof
exhibits. The
disclosed that White
one
contacted
Joel Greenberg
purchaser
a
goods.
to find
leather
They
obtained the services of
Ra-
also
Richard
gone
burglarize
and Gene Southwick to
of M. Frenville Company
warehouse
at Glo-
versville,
Ragone
New York.
rented a
York
money supplied
truck New
night
defendants. On the
of March
1974 White
who had borrowed
car,
Ragone
led
and Southwick
a U-
truck to the Frenville
Haul
warehouse
burgla-
where the latter two committed the
goods
ry.
the stolen
were
After
loaded into
French,
Atty., Albany,
truck,
Paul V.
Asst. U.
S.
and White led
the way
Sullivan,
Y.,
Massachusetts,
N.D.
Atty.,
M.
U. S.
James
and Southwick
Ra-
N.
into
Y.,
N.Y.,
appellee.
in the truck.
gone
N.
followed
White and
Syracuse,
prearranged
meeting
appellants
urge
now
representa-
Haverhill,
Greenberg
Massachusetts
tion
one attorney produced a conflict of
brought
day, and
them the ware-
next
interest which violated their Six Amend-
Zikos,
jobber,
house of Theodore
leather
to counsel.
purchased
goods, making
the stolen
*3
The law in this Circuit
$5,000
clear.
payment
by
down
of
check. White
potential
When a
conflict of
arises,
interest
$4,000
Carrigan took
of
money
and
this
either where
assigned
court has
the same
Ragone
and paid
themselves
and Southwick
counsel to
several defendants or
$1,000.
the
same counsel has been retained
Greenberg, Ragone, Southwick and Zikos
by
co-defendants in a criminal
the
testified for the Government. Green-
all
of
proper course
action for the trial judge is
berg
Carrigan
identified White and
in court
hearing
to conduct a
to determine whether
arranged
the men
had
previously
a conflict exists
degree
to the
that a de
goods
at meeting
sale of
at
prevented
fendant
from receiving
Boston, Massachusetts,
Inn in
Marriott
advice and assistance sufficient
to afford
burglary.
before the
three weeks
He also
quality
him the
of representation guaran
8,
that he
met
on
testified
had
them March
teed by the Sixth Amendment. The de
Haverhill,
1974
Massachusetts. Green-
fendant should be fully
by
advised
the trial
berg testified that he had unloaded the
court of the facts underlying
potential
goods
leather
with White at
Zikos
ware-
be given
the opportunity to
Zikos
pur-
house.
testified that he had
express his views.
Mari,
United States v.
goods,
chased the
made the
payment
down
117,
526 F.2d
(2d
119
Cir. 1975); United
and saw White in the truck with Green-
DeBerry,
v.
States
448,
487
(2d
453
Cir.
berg.
Ragone
Both
and Southwick testified
1973);
Alberti,
United States v.
470 F.2d
they
burglarized
that
had
at
warehouse
878,
(2d
881
1972),
denied,
Cir.
cert.
411 U.S.
of
the direction
and White.
919,
1557,
93 S.Ct.
Although
questions
other
United States
420 F.2d
on
appeal
issue
fact
crucial
is the
397 represented
Carrigan and White were
both
25 L.Ed.2d
In all of
attorney.
the same
on
Govern-
these cases the trial court had carefully
moreover,
admits,
did
the court
inquired
possibility
prejudice
as to the
of
any inquiry
of
or
not make
either White
personal responses
and elicited the
of the
or
counsel as to whether the
involved. Here the record is
prejudiced by being
any inquiry by
defendants would be
of
barren
or any
court
attorney.
Both
concern
the Government.
testified
DeBerry,
although
v.
States
neither he
nor White
In
453-54,
the convic participated
reversed
transportation
the interstate
F.2d at
represented by the
goods
stolen,
of the
or knew them to be
of both defendants
tion
counsel, finding
inquiry
prearranged
and they
sale
retained
did
same
judge insufficient to
Ragone
meet
Southwick Massachu-
the district
We noted with
on
prejudice.
delivery
March
setts
lack
establish
goods;
the First Circuit in
further
stated that
the view
approval
Foster,
(1st
8, they
Greenberg
met with
March
and con-
satisfactory judi
goods.
the sale of the
He
1972),
the lack
cluded
further
that he and White
proof
the burden
on testified
had then
shifts
flown
inquiry
cial
Albany,
New York.
Allegheny
to the
back
question Govern
Air-
ap-
line tickets issued
names of the
at 453 n. 6.
ment. 487 F.2d
pellants
flight
for a
from Boston to Albany
*4
here,
principles
these
we
Applying
March
1974 were
on
introduced into evi-
other than revers
no real alternative
find
the Government.
remanding
for a
ing both convictions
counsel,
summation,
Defense
his
made
Chief
Lumbard Mor
new trial.
all
no reference at
to White’s statement
States,
v. United
gan
he
implicated
was not
was not
1968),
obligation
out the
pointing
present
emphasized
but instead
Carrigan’s
as
inquiry
possible
to make the
to
willingness
testify
to
as well as his version
stated:
prejudice,
Thus
participation.
on
summation
is a
especially
This is
where there
so
commented:
as to whether either or both of
question
.
I think it is significant Mr.
should take the stand.
defendants
got
on the stand and he didn’t
decision,
enough
kind of
difficult
This
to
say
you “We don’t know anything with
at the same trial
two defendants
to this
reference
matter.”
represented
different
is
are
later
He
stated:
doubly
they
rep-
difficult where
are
made
you
obliga-
Now as
all
is
know there
no
by the same counsel. The deci-
resented
part
tion on the
to
testify
whether a defendant should
sion
stand,
didn’t,
so
one did and one
but I
by the risk that
unduly
affected
say
you,
would
this to
the fact that Mr.
to
develop so as
dis-
testimony may
his
significant.
did take the stand is
to
which are harmful
close matters
I think that what he had to tell us is
which conflict with
other defendant or
significant.
story. The attor-
the other defendant’s
to cross-examine one de-
ney’s freedom
Defense counsel also
jury
told the
on his
will be re-
on
of another
fendant
behalf
summation
could infer from the
attorney represents
where the
stricted
before them that Carrigan
evidence
if, where two de-
And
defendants.
merely
both
“were
entrusted
White
with unload-
represented by the same
leather,
fendants
this load of
ing
finding
buyer.”
elects to take the
attorney, one defendant
The
to
prejudice White is clear. The
to,
not
and the other chooses
stand
which has the
Government
burden of estab-
prejudice
eyes
possible
lishing
of prejudice
lack
to distinguish
seeks
not take the
to the defendant who does
DeBerry,
where we
inescapable.
is
stand
almost
defendants,
reversed the convictions of both
ground
Here the
alone took the
that there the
defendant who
directly
stand
his
testimony
and his
conflicted took the
incriminated
stand
co-defend-
he,
Carrigan only
to
FBI that
while here
attempted
White’s statement
.ant
to
White,
Albany-Schenectady
participation
left
of both
not
minimize
defend-
evening
Carrigan’s testimony
New
York
on the
however direct-
area
State
ants.
8, 1974,
and had
White’s statement
to
March
or on March
contradicted
agent so that
burglary. Carrigan
credibility
to do with the
White’s
was
nothing
FBI
by Carri-
definitely
challenged
in issue and
sentation
Glasser was less effective be-
incriminate
While
did not
appointment,
cause of the
gan.
the court held
totally
testimony was
inconsist-
White, his
that Glasser had been
right
denied his
created a
White’s statement which
the effective
ent
assistance of counsel. Mr.
of interest. Since
Carri-
Murphy’s
real conflict
Justice
observation at 315 U.S.
stand,
to White
prejudice
is
gan took
L.Ed. trial signed represent Glasser’s counsel to a co- The real to both defendants despite being pos of the being represented defendant advised from their by same might trial, conflicting arise sibility attorney fully interests as appears impair would Mulligan’s counsel’s usefulness to opinion, which us leaves no finding repre- a that counsel’s to Glasser. On choice but reverse their convictions so * Judd, Notes, Judge’s Conflicts of Interest —A Trial L.Rev. Fordham trial. Consequently, counsel separate frequently may have retrial, that, upon developments unable to may benefit foresee which the full enjoy and thus changes rights. require strategy. Several Amendment Sixth have focused court of our opinions recent It follows that there will be cases repre attorney one created problems require separate court should to counsel a crimi more than one senting despite certain defendants the ex- increasingly has become It prosecution. nal Indeed, such wishes of defendants. pressed adequate to ensure way only clear of the court to require separate trial failure mul in a each this, representation may, cases such as initiative of is the case ti-defendant trial, though a new even de- require counsel as soon require separate to court expressed have desire contin- fendants The of such situation. is aware the court counsel. ue with court, or each district of a rule adoption representation by counsel whose effective for the appeals action paramount is so is undivided loyalty However, circuit, problem. would solve justice administration criminal proper agreed upon, such solution until it must in some cases precedence the circumstances examine must considerations, including all other over situation, that additional with the result preference expressed of the defendants con- on a expended resources judicial attorney. and their cerned As affected. retrial burgeoning criminal calendars and Our opinion in concurring his Judge Oakes in try larger percentage of crim- need Mari, 117, 119 (2d provisions cases inal under of the 1975) a full and fair account given has Trial Act and court rules for the Speedy each defendant should why reasons disposition of have prompt criminal cases of a stages at most separate counsel have it all more necessary made for our fur I add a few proceeding, criminal to take courts all measures to federal observations. ther necessity for the retrial of multi- avoid *6 who could cases. One such measure is to be a It would rare separate counsel for require whether his interests each defendant intelligently decide case. by counsel who also a multi-defendant served properly will be defendant. However another represents may seem to be his interests
parallel events of a course of
those co-defendant taking prosecution of the conduct of the guilty plea, or as to radically change the situation so
may ability of counsel to impair The PITTSBURGH AND LAKE In re Even de- effectively. defendant most ERIE RAILROAD COMPANY SECURI- frequently all too who fense LITIGATION, AND TIES ANTITRUST evi- adequately regarding the informed not Appeal of OBJECTOR IRVING TRUST clients, may their against available COMPANY, as Trustee. position whether a judge be in a 76-1089. No. clients of interest between their develop. may Appeals, Court of in a criminal case It is a rare defendant Third Circuit. fully own of all advises his counsel 4,May Argued 1976. against him. Ac- charges about the knows Sept. Decided operate must some- cordingly, most counsel way and feel uncer- the dark their
what understanding what
tainly to an upon upon be called meet
clients