United States v. Foster, 7579

• Citation: 469 F.2d 1
• Decision Date: 14 November 1972
• Docket Number: No. 7579,72-1137.,7579
• Parties: UNITED STATES of America, Appellee, v. Javan FOSTER, Defendant-Appellant. Javan FOSTER, Defendant-Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

469 F.2d 1 (1972)

UNITED STATES of America, Appellee, v. Javan FOSTER, Defendant-Appellant.

Javan FOSTER, Defendant-Appellant, v. UNITED STATES of America, Appellee.

Nos. 7579, 72-1137.

United States Court of Appeals, First Circuit.

Argued September 13, 1972.

Decided November 14, 1972.

Michael A. Collora, Boston, Mass., by appointment of the Court, with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass. was on brief, for appellant.

Alan R. Hoffman, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

Appellant, Javan Foster, was tried and convicted for selling heroin in violation of 26 U.S.C. §§ 4704(a) and 4705(a).¹ His direct appeal, which was dismissed for lack of prosecution and then reinstated, and his appeal from the denial of his motion to vacate sentence, D.C., 340 F.Supp. 1311, were consolidated for argument. We affirm both judgments below. In doing so, however, we announce a new rule for the district courts in criminal cases where one attorney appears for two or more co-defendants.

Appellant Foster and Matthew Harris were tried together on a four count indictment alleging illegal transactions in heroin. The indictment arose from two separate incidents, one occurring on July 7, 1969, and the other on July 18 of that year. Foster alone was convicted for the July 18 sale, while both defendants were acquitted of charges based on the earlier incident. At trial, Foster and Harris were represented by the same attorney, whom they had retained shortly after their arrest.

An understanding of the issues raised by this appeal requires a brief recapitulation of the testimony presented at trial. The principal government witness, Agent Wheeler, testified that on the dates in question he had approached Harris and offered to purchase heroin. On both occasions, according to Wheeler, Harris spoke briefly with Foster whereupon the latter produced several glassine bags containing the drug, which he handed to Wheeler in exchange for money. The defendants, however, denied selling heroin to Wheeler at any time. As to the July 18 incident, Foster admitted delivering some heroin to Mel Greer, a government informer, but testified that he had done so solely as a favor to one Chris Rodrigues and that he had not retained any of the proceeds of this sale. Harris' testimony corroborated Foster's version of this incident.

Appellant's motion to vacate sentence was based on the theory that, due to conflicting interests between himself and Harris, he was denied his sixth amendment right to effective assistance of counsel. We shall turn to that question after a consideration of the issues raised on direct appeal.

I

Appellant asks us to notice plain error under Fed.R.Crim.P. 52(b) in the trial court's instructions to the jury on two affirmative defenses. He appears to concede the doubtful applicability of that rule to the present case by suggesting that, because a question of ineffective representation by counsel has been raised, we should relax "the rigorous standards which must be met before we can notice `plain error'." McMillen v. United States, 386 F.2d 29, 35 (1st Cir. 1967), cert. denied, 390 U. S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). For reasons which will appear below, we do not find this suggestion persuasive. Moreover, it is not relevant to this case, since the court did not err to appellant's prejudice.

Appellant first contends that he was entitled to go to the jury on a buyer's agent defense, see United States v. Barcella, 432 F.2d 570 (1st Cir. 1970), and that the court's instruction in this regard was fatally defective because it failed to mention Greer, to whom Foster testified he gave the heroin. We need not consider whether the instruction was defective, whether the defendant was prejudiced by it or indeed whether he is foreclosed from attacking the instruction which was virtually identical to the one submitted by his attorney, United States v. Thurman, 135 U.S.App.D.C. 184, 417 F.2d 752 (1969), cert. denied, 397 U.S. 1026, 90 S.Ct. 1269, 25 L.Ed.2d 535 (1970), since nothing in the record justifies a buyer's agent instruction. According to Foster's own testimony, he had not been asked to handle the package of drugs by the buyer Greer, but rather by the supplier Rodrigues. While Foster may have been partially motivated by a desire to accommodate Greer, a man with whom he was slightly acquainted, a buyer's agent defense is not available merely because there is evidence that the intermediary knew the buyer, or did not share in the proceeds of the sale. See United States v. MacDonald, 455 F.2d 1259, 1261-1262 (1st Cir.), cert. denied, 406 U.S. 962 (1972); United States v. Barcella, supra.

Secondly, appellant contends that he was entitled to an instruction on entrapment, and that the court's failure to give such an instruction was plain error despite an apparent waiver by defense counsel. We again need not consider whether this was error notwithstanding the waiver since there was no evidence justifying such an instruction. In Kadis v. United States, 373 F.2d 370 (1st Cir. 1967), we held that a defendant must produce some evidence of his own unreadiness to commit a criminal offense before the prosecution incurs a burden of disproving entrapment. The defendant did not present any evidence of unreadiness, within the meaning of Kadis.

Finally, we find no merit in Foster's contention that there was insufficient evidence to support his conviction.

II

We now come to appellant's contention that he was deprived of his constitutional right to effective assistance of counsel because of a conflict of interest with his codefendant Harris. Both common sense and authority, see, e. g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), instruct us to scrutinize the record with great care when such an allegation is made, but it is necessary to state at the outset what we are looking for. Petitioner on this § 2255 motion had the burden of proving by a preponderance of the evidence that he was denied effective assistance of counsel because of a conflict between his interests and those of his codefendant.² This court is "peculiarly sensitive to a showing of conflict of interest, if such can be suggested," Marxuach v. United States, 398 F.2d 548, 552 (1st Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968), in the sense that the accused need not delineate the precise manner in which he was prejudiced. See Glasser v. United States, supra, 315 U.S. at 75-76, 62 S.Ct. 457. Ordinarily, prejudice would be assumed from the existence of a conflict, but a conflict will not be inferred from the fact of joint representation. In Glasser, the Court was careful to point out the particular testimony which made it appear that one client's interest conflicted with the other's. The record in the present case, however, does not indicate any divergence between the interests of Foster and Harris. The testimony of the two defendants was mutually exculpatory and consistent in virtually every respect.³ The testimony of Agent Wheeler on the other hand flatly contradicted the defendants' story and strongly tended to incriminate both. Under these circumstances, separate counsel would have been ill-advised to attempt to impeach the other defendant's credibility. While Foster now argues that it would have been to his advantage to inculpate Harris with respect to...