U.S. v. Cox

• Decision Date: 04 August 1978
• Docket Number: 77-1838 and 77-1945,Nos. 77-1832,s. 77-1832
• Citation: 580 F.2d 317
• Parties: UNITED STATES of America, Appellee, v. Jarrell COX, Appellant. UNITED STATES of America, Appellee, v. Mary WOODY, Appellant. UNITED STATES of America, Appellee, v. Irving Stewart WISE, a/k/a J. R. Wise, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 317

580 F.2d 317

UNITED STATES of America, Appellee, v. Jarrell COX, Appellant.

UNITED STATES of America, Appellee, v. Mary WOODY, Appellant.

UNITED STATES of America, Appellee, v. Irving Stewart WISE, a/k/a J. R. Wise, Appellant.

Nos. 77-1832, 77-1838 and 77-1945.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1978.

Decided July 14, 1978.

Rehearing and Rehearing En Banc Denied Aug. 4, 1978.

Mayer Kanter, Sioux City, Iowa, for appellants Cox and Woody.

Keith R. Strange, Sioux Falls, S. D., for appellant Wise.

Robert D. Hiaring, Asst. U. S. Atty., Sioux Falls, S. D., for appellee; David V. Vrooman, U. S. Atty., Sioux Falls, S. D., on brief.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This is a direct criminal appeal from a jury verdict of guilty. ¹ The defendants-appellants, Jarrell Cox, Mary Woody, and Irving Stewart Wise, were all found guilty on all three counts of an indictment. Count I of the indictment charged a conspiracy to commit a wire fraud, to transport fraudulently taken property in interstate commerce, and to sell and dispose of property that had been taken by fraud and transported in interstate commerce, all in violation of 18 U.S.C. § 371. Count II charged the interstate transportation of property (grain of a value exceeding $5,000) taken by fraud in violation of 18 U.S.C. § 2314. Count III alleged the sale and disposal of fraudulently procured property (grain of a value more than $5,000) that had been transported in interstate commerce in violation of 18 U.S.C. § 2315. ² We affirm the conviction of all three defendants.

The substance of the charges was that the defendants joined together with several other people in the perpetration of a grain fraud scheme. The scheme consisted primarily of arranging for the purchase of grain from grain elevators in Nebraska and South Dakota by telephone. Notice was given to the elevator managers that the purchase would be made by check and that the validity of the check could be confirmed by contacting the bank upon which it was drawn. The defendants and their coconspirators picked up the grain at the various elevators, made payment by check and after the grain was in their possession, placed stop payments on the checks that had been issued. The grain was then sold and the proceeds were retained by the defendants and their coconspirators. ³

The central issue pressed on this appeal is whether there was a conflict of interest arising from representation of the three codefendants at trial by one attorney, thereby depriving the defendants of effective assistance of counsel as guaranteed by the Sixth Amendment.

During the early stages of the proceedings John Humpage of Topeka, Kansas, represented all three of the defendants, and Robert LaFleur of Rapid City, South Dakota, acted as local counsel for defendant Wise. These individuals withdrew prior to the trial and the defense was undertaken by John Burke of Sioux Falls, South Dakota, as retained counsel for all three defendants. ⁴

The seminal decision in this area is Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), wherein the Supreme Court stated:

(T)he "assistance of counsel" guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.

Joint representation of codefendants is not per se violative of the Sixth Amendment right to effective assistance of counsel. Holloway v. Arkansas, --- U.S. ----, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978); United States v. Lawriw, 568 F.2d 98, 101 (8th Cir. 1977); United States v. Valenzuela, 521 F.2d 414, 416 (8th Cir. 1975), 424 U.S. 916 (1976); United States v. Williams, 429 F.2d 158, 160 (8th Cir.), Cert. denied,400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970). In addition, a defendant may waive any actual or potential conflict of interest if such waiver is made knowingly and intelligently. Holloway v. Arkansas, supra, --- U.S. ----, 98 S.Ct. at 1178 n. 5, 55 L.Ed.2d 426; Glasser v. United States, supra, 315 U.S. at 70, 62 S.Ct. 457; United States v. Lawriw, supra, 568 F.2d at 104.

In United States v. Lawriw, supra, 568 F.2d at 104-05, this court announced that henceforth in this circuit when codefendants are represented by the same counsel in a criminal prosecution the district court has an affirmative duty to make a detailed inquiry of whether there is a conflict of interest and whether any real or potential conflict is waived by the defendants.

In the present case the following exchange between the court, counsel, and the defendants occurred:

MR. HIARING (Assistant United States Attorney): First, there is some concern on my part on the fact that we do have three defendants represented by one attorney.

THE COURT: Yes, sir.

MR. HIARING: And I believe that the law appears to be at this time that any potential conflict in that situation can be waived by the defendants. To avoid any problems that could occur in this case in the future before the Court of Appeals or anything like that, I guess I would request the Court to advise them that a potential conflict may exist, and have their statement on the record that in fact they're aware of it, and that it is waived.

THE COURT: Do I understand, as indicated before, that you either do not have any confessions or admissions of codefendants, or if you do have them, that they would not be used as a part of the case in chief against the three defendants, is that correct?

MR. HIARING: At least they would not be used to the extent that they would indicate acts of other defendants.

THE COURT: Yes, sir. They could be used for impeachment, possibly, as to their own testimony in the event that they should take the stand.

MR. HIARING: Or they could be used potentially and I don't intend to at this point, but potentially they could be used as they affect that defendant himself.

THE COURT: Yes. Well, I think, then, that I will start with Mrs. Woody, as she is the first one named in the indictment. Mrs. Woody, you are aware, of course, generally, of the charges that have been made against you as well as Mr. Wise and Mr. Cox. You are also aware that Mr. Burke is representing all three of you. I assume you may have talked this over with Mr. Burke. Do you have any objection, or since Mr. Burke is your personally retained counsel, do you have any objection whatever to Mr. Burke representing you as well as Mr. Wise and Mr. Cox, even though there might be a potential conflict?

DEFENDANT WOODY: No, sir, I don't.

THE COURT: You have no objection?

DEFENDANT WOODY: No, sir.

THE COURT: How about you, Mr. Wise?

DEFENDANT WISE: No objection, Your Honor.

THE COURT: And you, Mr. Cox?

DEFENDANT COX: No, sir, I sure don't.

THE COURT: Very well. You have discussed this matter, I assume, Mr. Burke, with the three defendants?

MR. BURKE: No. I'd have to be truthful with the Court and say no, we hadn't discussed the

THE COURT: The possible conflict?

MR. BURKE: Well, I don't see any possible conflict, and so I saw no reason to discuss it. I'd have to truthfully say we have not discussed it.

THE COURT: I see. Well, even though, then, you have not gone over it with counsel, are you still of the same opinion, Mrs. Woody, that you have no objection to Mr. Burke representing you as your personally retained counsel, along with representing Mr. Wise and Mr. Cox?

DEFENDANT WOODY: No, sir, I don't.

THE COURT: And the same with you; is that agreeable with you, Mr. Wise?

DEFENDANT WISE: Yes, Your Honor.

THE COURT: And with you, Mr. Cox?

DEFENDANT COX: Yes, sir.

THE COURT: Very well. Thank you, Mr. Hiaring.

With the benefit of this court's ruling in United States v. Lawriw,supra, it is likely that the district court would have conducted a more extensive examination of the defendants. However, the trial of the present case preceded this court's decision in Lawriw. The affirmative duty of inquiry announced in Lawriw was promulgated under the supervisory powers of the court. In this respect, the court's opinion in Lawriw went beyond the strict constitutional requirements for waiver in order to prevent constitutional infirmities from arising in cases where one attorney represents two or more defendants in a criminal prosecution. We interpret the Lawriw decision to apply to all cases which came to trial after that case was decided by this court. See United States v. Foster, 469 F.2d 1, 4-5 (1st Cir. 1972).

In sum, we are persuaded that the government has met its burden of showing that there was a knowing and intelligent waiver by the defendants in this case even though the requirements of Lawriw may not have been specifically followed. In response to questions from the court, each of the defendants stated that he or she wanted Burke to continue representing him or her, even though there might be a potential conflict because Burke was also representing the other defendants. In general defendants are free to employ counsel of their own choice and the courts are afforded little leeway in interfering with that choice. United States v. Valenzuela, supra, 521 F.2d at 416; United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973).

In any event, this court has required a showing of actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest before reversal is mandated on the ground of ineffective assistance of counsel. ⁵ United States v. Lawriw, supra, 568 F.2d at 101; United States v. Valenzuela, supra, 521 F.2d at 416. No such showing has been made in the present case.

We are satisfied that there was no actual conflict of interest, or the substantial possibility of one, before trial commenced. John Burke, attorney for the codefendants, stated to the court that he did not see any possible conflict in his representation of all three defendants...