797 F.2d 1461 (9th Cir. 1986), 84-1024, United States v. Washington

Docket Nº:84-1024.
Citation:797 F.2d 1461
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ralph H. WASHINGTON, Defendant-Appellant.
Case Date:February 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1461

797 F.2d 1461 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ralph H. WASHINGTON, Defendant-Appellant.

No. 84-1024.

United States Court of Appeals, Ninth Circuit

February 11, 1986

Argued Dec. 12, 1984.

Submitted Dec. 28, 1984.

As Amended on Rehearing

Aug. 20, 1986.

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[Copyrighted Material Omitted]

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Sanford Svetcov, San Francisco, Cal., for plaintiff-appellee.

William L. Osterboudt, Hallinan, Osterhoudt & Poplack, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, CANBY, and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

Appellant Ralph H. Washington appeals his conviction on twelve different counts, all of which are grounded in alleged prostitution activities. The essence of the government's case is that for fifteen years Washington was the "kingpin" of a prostitution ring that operated principally in Northern California and extended into Alaska, Arizona, Nevada, Texas, and Utah. The prosecution maintains that, except for very small amounts of money paid to the prostitutes for incidental expenses, all prostitution earnings were delivered to Washington, to his bank accounts, or to his nominees. During 1976-1978, Washington filed federal tax returns claiming about $50,000 in gross income when evidence indicated that he had a gross income from prostitution amounting to between $250,000 and $300,000 per year. Under the government's theory of the case, Washington laundered the prostitution money by acquiring $1,000,000 in assets, including retail businesses, rental property, a Rolls Royce and a $350,000 residence.

Washington was tried before a jury on a multi-count indictment, including income tax violations, Travel Act violations, mail fraud, obstruction of justice, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Washington did not contest either the reality of the prostitution or the fact of his close relationship with women who engaged in prostitution. According to Washington, the women drifted into a loose association with him not out of subservience, but in order to cope with a number of problems common to

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their calling, including child care and education, personal safety, health and medical care, financial security, and loneliness. The defense contended that the chief advantage of the group was the opportunity it afforded the prostitutes to pool earnings in a safe and central place. The women, whose life styles were incompatible with using conventional bank accounts, could "draw" such funds from Washington as they might require.

At the conclusion of the government's case, the district judge dismissed four of the counts. The jury convicted Washington on Counts 1-3 (false tax returns), 4 and 8-12 (Travel Act), 13 (mail fraud), 23 and 24 (RICO), and acquitted him on the remaining counts. The jury also found the property listed in the RICO counts of the indictment to be forfeitable. Washington was sentenced to a total of twenty years imprisonment and fines of $126,000. He is in custody.

On appeal, Washington first contends that the disqualification of counsel of his choice violated his Sixth Amendment rights. He also argues that certain evidence should have been suppressed because it was obtained in violation of the Fourth Amendment. In addition, he claims that the district judge erred in restricting cross-examination of prosecution witnesses who were former prostitutes, in admitting into evidence an expurgated diary of a former prostitute without conducting an in camera review of the entire diary, and in instructing the jury on the RICO counts. Finally, he contends that his Sixth Amendment right to a jury drawn from a fair cross-section of the community was violated because the prosecutor used his peremptory challenges to exclude blacks from the petit jury.

I

THE SIXTH AMENDMENT RIGHT TO COUNSEL CLAIM

In December 1981, prior to indictment but after Washington learned that he was under investigation by the F.B.I., he retained Gerard J. Hinckley and Thomas E. Kotoske as joint counsel. Hinkley had been an attorney with the Organized Crime and Racketeering Section of the Department of Justice (the "Strike Force") from January 1972 until September 1981, when he left government service and entered private law practice. Kotoske had also been a Justice Department lawyer, serving as chief of the Strike Force in San Francisco from March 1974 until July 1979, when he entered private practice.

Shortly after Hinckley and Kotoske were retained to represent Washington, they filed a pre-indictment motion to return property seized in a 1981 search. In response, the government filed a motion to disqualify Hinckley from representing Washington on the basis of an FBI agent's affidavit stating that Hinckley had received unspecified confidential information about Washington while serving as a Strike Force lawyer. The government moved to disqualify Kotoske on the ground that he was head of the Strike Force at that time. In a counteraffidavit, Hinckley denied that he had received any confidential information about Washington when he was at the Justice Department. Kotoske stated in his affidavit that he did not talk to anyone in the Justice Department about the Washington investigation, including Hinckley. Both Hinckley and Kotoske asserted as officers of the court that no conflict of interest existed in their representation of Washington.

After denying defendant's request for an evidentiary hearing, Judge Orrick granted the government's motion to disqualify both Hinckley and Kotoske. 1 He acknowledged that the affidavits were in conflict on the issue whether Hinckley had obtained any material information about Washington's case when he was a government lawyer, but declined "to make the finding as to

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who, if anyone ... is not telling the truth." Relying upon United States v. Miller, 624 F.2d 1198 (3d Cir.1980), Judge Orrick disqualified Washington's chosen counsel on the ground that the appearance of impropriety created by the fact that Hinckley and Kotoske had been Strike Force lawyers outweighed Washington's "very important Sixth Amendment right to counsel of his own choice." 2 Accordingly, he found it unnecessary to resolve the conflict in the affidavits over whether Hinckley had obtained confidential information about Washington's case. 3

It is settled law that under the Sixth Amendment criminal defendants "who can afford to retain counsel have a qualified right to obtain counsel of their choice." United States v. Ray, 731 F.2d 1361, 1365 (9th Cir.1984). The right "is not absolute, however, and must give way where its vindication would create a serious risk of undermining public confidence in the integrity of our legal system." United States v. Hobson, 672 F.2d 825, 828 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). In seeking to disqualify a defendant's chosen counsel, the government bears a heavy burden of establishing that concerns about the integrity of the judicial process justify the disqualification. See United States v. Phillips, 699 F.2d 798, 801-02 (6th Cir.1983), overruled on other grounds, United States v. Tosh, 733 F.2d 422 (6th Cir.1984).

The question presented by Judge Orrick's ruling is whether Washington's employment of former Strike Force lawyers created an appearance of impropriety sufficient to override his Sixth Amendment right to counsel of his choice. 4 The government, like Judge Orrick below, relies heavily on the Third Circuit's decision in United States v. Miller, 624 F.2d 1198 (3d Cir.1980). 5 In Miller, the record was undisputed that the former government attorney was consulted on the legal aspect of every tax case arising within his district, that he had informal supervisory responsibility over such cases, and that much of the government's preparation of the case in question occurred while he was employed by the government. The Third Circuit affirmed a district court order disqualifying him from representing a criminal defendant in a tax case on the basis of an appearance of impropriety. The Miller court approved the district court's reliance upon the New Jersey Supreme Court's restrictive reading of the American Bar Association Model Code of Professional Responsibility Disciplinary

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Rule 9-101(B), which provides: "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." In an advisory opinion, the New Jersey Supreme Court had interpreted DR 9-101(B) to mean that "substantial responsibility" in a "matter" included "responsibility, whether exercised or not, over the subject matter" of a case pending in the lawyer's office, such as general responsibility over all cases in a specific area of expertise. See In re Advisory Opinion on Professional Ethics no. 361, 77 N.J. 199, 390 A.2d 118, 120 (1978).

We cannot accept the Third Circuit's reliance upon such a restrictive reading of the ABA disciplinary rule as a basis for denying a criminal defendant his Sixth Amendment right to counsel of his choice. We have grave doubts whether an appearance of impropriety would ever create a sufficiently serious threat to public confidence in the integrity of the judicial process to justify overriding Sixth Amendment rights. It is easy to express vague concerns about public confidence in the integrity of the judicial process. It is quite a different matter to demonstrate that public confidence will in fact be undermined if criminal defendants are permitted to retain lawyers who worked for the government in the field of law implicated by an indictment. We are unwilling to sacrifice a defendant's Sixth...

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