United States v. Flanagan, Crim. No. 81-270.
Citation | 527 F. Supp. 902 |
Decision Date | 02 December 1981 |
Docket Number | Crim. No. 81-270. |
Parties | UNITED STATES of America v. Robert FLANAGAN, James Keweshan, Sidney Landis, Thomas McNamee. |
Court | United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania) |
Luther E. Weaver, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Richard A. Sprague, Bruce L. Thall, Philadelphia, Pa., for defendants.
Presently before me is the Government's motion to prohibit the law firm of Sprague and Rubenstone from representing all four defendants in this criminal case. The defendants, Robert Flanagan, James Keweshan, Sidney Landis and Thomas McNamee, all police officers employed by the Philadelphia Police Department, are each charged in a single indictment with conspiracy to violate the civil rights of citizens. 18 U.S.C. § 241. The indictment also charges substantive violations of citizens' civil rights, see 18 U.S.C. § 242, by Flanagan (Counts Two through Thirteen), McNamee (Counts Two through Thirteen), Landis (Counts Four through Thirteen), and Keweshan (Counts Two through Seven, and Eleven through Thirteen).
The defendants are members of a socalled "grandpop" squad, a decoy squad engaged in undercover operations to ferret out street crime. Typically, defendant Flanagan would pose as the decoy, with defendants Keweshan, Landis and McNamee as his backup. After being accosted and robbed by an assailant, Flanagan would signal the backup team by yelling: "Give me back my money." Keweshan, Landis and McNamee would then close in and make the arrest. The Government charges that over a period of about 17 months the defendants conspired to violate citizens' civil rights by arresting persons, under color of law, without probable cause, and that varying combinations of the defendants did in fact falsely arrest and/or physically abuse eight persons in violation of their civil rights.
Pursuant to the Government's request, and in accordance with Fed.R.Crim.P. 44(c),1 a hearing was held on November 12, 1981, to inquire whether defendants were aware of (1) the risk of joint representation, and (2) their right to separate representation. Each of the defendants was present at the hearing. Bruce Thall and James Leonard from the firm of Sprague and Rubenstone appeared on behalf of the defendants. At that time, Mr. Thall informed the court that, after extensive discussions with each defendant concerning the risks and pitfalls of joint representation, each still wished to be represented by the firm of Sprague and Rubenstone.
Among the areas which Mr. Thall stated had been discussed with each defendant were the following:
After Mr. Thall completed his outline of the areas discussed with the defendants, I questioned each defendant, individually and under oath, to ensure that each was aware of the potential conflicts that very likely could arise in this case. In addition to questioning the defendants on matters which had been explored by counsel, I also ascertained that each defendant understood that separate counsel could present a united defense strategy but, unlike joint counsel, could present alternative defenses as well. More importantly, I assured myself that financial considerations played no part in defendants' choice of joint counsel. Defendants advised me that their legal expenses were being paid by their union, the Fraternal Order of Police. Further, I advised each defendant that, if I ordered separate counsel and the union refused to defray the cost of such counsel, I would appoint counsel for them. Finally, in the presence of the court and defense counsel only, each defendant was given the opportunity to explain in his own words why, in light of the several risks created by joint representation, he wished to be represented jointly with the other defendants.
At the conclusion of the hearing, I found that (1) a conflict of interest was very likely to arise in the course of the proceedings against defendants; (2) each defendant was fully and completely aware of the potential conflicts; and (3) each defendant, without financial pressure, had voluntarily and intelligently chosen to waive any claim of conflict of interest and elected to be represented by one counsel. Defense counsel and the Government were then instructed to brief the question of whether I must accept the defendants' waiver, notwithstanding the conflict of interest that I find is very likely to arise. In addition, I asked the parties to address the question of whether I must disqualify the firm of Sprague and Rubenstone from the case entirely, in the event that I order that each defendant be separately represented.
Both sides have now filed memoranda of law. Since defense counsel concedes1(a) that "logic mandates" that the firm of Sprague and Rubenstone must be disqualified should separate counsel be ordered, the sole question before me is whether I may, and should, reject the defendants' voluntary, knowing and intelligent waiver of their right to separate counsel, given the conflict which is very likely to arise.
To find that a conflict is likely to arise in this case, one need not look beyond the indictment and the numerous pretrial motions, together with supporting memoranda of law, filed by defense counsel. It is immediately apparent from reading the indictment that all four defendants are not charged in each count, reflecting the fact that each defendant's involvement may vary significantly from that of the others. Indeed, the basis of defendants' motion to dismiss Count One of the indictment focuses almost entirely on the differences in each defendant's role in the allegedly false arrests:
Defendants' Memorandum of Law in Support of Motion to Dismiss Count One of the Indictment (Document 12, at p. 3).
Id. at 13. The likelihood that one or more defendants might, at some point, wish to distinguish his or their particular role from the others is hardly remote. Furthermore, defense counsel has observed correctly that this is a complex case which will most likely turn on circumstantial evidence which is "subject to various interpretations and fine distinctions." Defendants' Memorandum of Law in Support of Defendants' Motion for Discovery and Inspection (Document 10) at p. 3. Implicit within this complexity is the fact that essential to the Government's case is proof of each defendant's...
To continue reading
Request your trial- Flanagan v. United States
-
Festo v. Luckart
...that such a per se rule is problematic. To be meaningful, an inquiry must be thorough and searching. See, e.g., United States v. Flanagan, 527 F.Supp. 902 (E.D.Pa.1981). Yet such scrutiny can be overly intrusive into the attorney-client relationship and areas, such as strategy, from which t......
-
U.S. v. Flanagan, 81-3116
...and that each defendant had voluntarily and intelligently chosen to waive any claim of conflict of interest, the district court, 527 F.Supp. 902, ruled that it need not accept the defendants' waiver and proceeded to disqualify the defendants' chosen counsel from the case entirely. We The de......
-
United States v. Agosto, Cr. 3-81-96.
...believe no conflict of interest is likely to arise." Fed. R.Crim.P. 44(c); United States v. Dolan, 570 F.2d at 1183; United States v. Flanagan, 527 F.Supp. 902 (E.D.Pa.1981).2 Nor is Gustafson entitled to continued representation by Walters if that representation violates the attorney's eth......