Grand Jury Proceedings, In re, 88-1604

• Decision Date: 11 October 1988
• Docket Number: No. 88-1604,88-1604
• Citation: 859 F.2d 1021
• Parties: In re GRAND JURY PROCEEDINGS. Appeal of John DOE.
• Court: U.S. Court of Appeals — First Circuit

Page 1021

859 F.2d 1021

In re GRAND JURY PROCEEDINGS.

Appeal of John DOE.

No. 88-1604.

United States Court of Appeals, First Circuit.

Submitted July 11, 1988.

Decided Oct. 11, 1988.

Elliot D. Lobel, Barry M. Altman and Peckham, Lobel, Casey & Tye, Boston, Mass., on brief, for appellant.

Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, and Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., on brief, for appellee.

Before COFFIN, BOWNES and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Appellant, an immunized witness, appeals from the district court's order of contempt which followed his refusal to testify before a grand jury as directed by the court.

I.

A special grand jury for the District of Massachusetts has been investigating illegal gambling, including official protection allegedly rendered by a corrupt Massachusetts State Police Officer. On February 2, 1988, the grand jury returned an indictment against five individuals, including persons whom we will designate as defendant 1, defendant 2, and State Police Officer. The special grand jury has continued its investigation and now is considering the return of a superseding indictment.

Appellant was subpoenaed to appear before the grand jury on March 23, 1988. He appeared, but claimed his Fifth Amendment right against self-incrimination and refused to answer any questions. On April 22, 1988, upon motion of the government, the district court granted appellant immunity pursuant to 18 U.S.C. Secs. 6002, 6003 (1982).

At the time he received immunity appellant was represented by attorney Francis DiMento. DiMento also represents defendant 1, who has been indicted and remains a target in the grand jury's ongoing investigation. The government informally asked DiMento to withdraw from his representation of appellant based on its perception that DiMento's representation of both an immunized witness and a target of the grand jury investigation created a conflict of interest. DiMento refused to withdraw.

On May 11, 1988, appellant was to appear before the grand jury. That day, the government filed a motion to disqualify DiMento as appellant's attorney. At a hearing on the motion held on May 19, appellant maintained that the issue was not ripe. He urged the court to refrain from disqualifying DiMento until appellant had appeared before the grand jury and an actual conflict had materialized. Appellant also suggested that both he and defendant 1 would waive any right to conflict-free counsel in advance.

The district court rejected these arguments, allowed the government's motion, and disqualified DiMento from representing appellant. Appellant next appeared before the grand jury on June 8, 1988, represented by attorney Elliot Lobel. He again refused to testify, claiming that the court's ruling had denied him the right to the counsel of his choice. The grand jury was adjourned and the government filed a petition for contempt pursuant to 28 U.S.C. Sec. 1826. ¹

Another hearing was held on June 16, 1988. Lobel appeared for the witness. The court reviewed the disqualification order and held the witness in contempt of the immunity order, but stayed its contempt order and granted the appellant's application for bail. ²

II.

The United States Supreme Court recently has spoken on the question of when courts may, in the context of a criminal trial, refuse to accept a defendant's waiver of conflict-free counsel and bar the defendant from retaining an attorney who also represents one or more other defendants. Wheat v. United States, --- U.S. ----, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The Court noted that the Sixth Amendment's right to choose one's own counsel is not absolute. Id. 108 S.Ct. at 1697. One important limitation on that right is the trial court's interest in ensuring that criminal trials are conducted within ethical and professional standards. Id. at 1697-98. Applicable professional standards constrain the representation of multiple clients in the same case. ³

In the Court's view, if there is a realistic potential for conflict of interest, this systemic concern may override a defendant's Sixth Amendment right freely to choose his lawyer. "Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 1697. "Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented." Id. at 1698. Importantly, the Court in Wheat allowed trial courts to disqualify counsel "not only in those rare cases where an actual conflict may be demonstrated before trial, but [also] in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." Id. at 1699 (emphasis supplied). Although a presumption exists in favor of the defendant's selection of counsel, it may be overcome "by a showing of a serious potential for conflict." Id. at 1700; accord In re Special February 1977 Grand Jury, 581 F.2d 1262, 1264 (7th Cir.1978) ("a disqualification motion may be granted without proof of the existence of an actual conflict of interest ... when the possibility of a conflict becomes great enough") (emphasis in original).

In deciding that potential conflicts could be grounds for disqualification, the Court emphasized the uncertainties confronting a district court in this context:

Unfortunately for all concerned, a district court must pass on the issue of whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.

Wheat, 108 S.Ct. at 1699. Because trial judges must navigate in such crepuscular surroundings, the Wheat court allowed district courts "broad latitude" in deciding disqualification motions. Id. Our review is limited to inquiring whether the lower court has abused its concededly wide discretion. Id. at 1699-1700. Accord In re Special February 1977 Grand Jury, 581 F.2d at 1264; In re Gopman, 531 F.2d 262, 266 (5th Cir.1976). "The evaluation of the facts and circumstances of each case ... must be left primarily to the informed judgment of the trial court." Wheat, 108 S.Ct. at 1700.

Although Wheat involved the Sixth Amendment rights of a criminal defendant, we believe that the standards enunciated in Wheat may also apply in the grand jury context, at least to some extent. Although a grand jury witness has no Sixth Amendment right to counsel, courts generally recognize a witness's right to consult with an attorney outside the grand jury room. United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1779, 48 L.Ed.2d 212 (1976). The showing that must be made in order to burden a grand jury witness's right to choose certain counsel need be no greater than when the question is one of restricting the Sixth Amendment rights possessed by criminal defendants. ⁴

We must ask, then, whether appellant's claim to counsel of his choice constituted "just cause" for his refusal to testify, see supra note 1, or conversely, whether the district court acted within its broad discretion when it disqualified DiMento, notwithstanding appellant's waiver.

III.

The court below found an actual conflict of interest "right at this moment because [appellant] has a need for advice before he goes into the grand jury room...." Transcript of May 19, 1988 Hearing at p. 24. Appellant assails the district court's decision on several grounds. First, appellant avers that he does not know defendant 1, and is aware of no facts that would make his interest antagonistic to that of defendant 1. Consequently, appellant argues, DiMento's dual representation does not create a conflict at the present time. As appellant sees it, the district court's order was premature, and should not have been entered unless and until an actual conflict materialized. The government maintains that, despite the lack of a direct link between appellant and defendant 1, a potential conflict of interest exists due to the intertwined relationships between appellant, defendant 1, the state police officer, defendant 2 and an unindicted co-conspirator.

Despite the able efforts on the part of the parties and the court to come to grips with this difficult issue, we find that a remand is necessary. First, the Supreme Court decided Wheat after the May 19 hearing. As a result, the court and the parties did not benefit from its guidance. Second, on a review of the facts set forth infra, we cannot say with certainty that they meet the Wheat standard of a "serious potential for conflict." 108 S.Ct. at 1700 (emphasis supplied).

As presented by the government, the facts are as follows: Court authorized electronic surveillance in 1987 and 1988 revealed that defendants 1 and 2 allegedly were partners in an illegal gambling business. The State Police Officer supposedly was helping defendant 2 avoid detection by keeping him informed of confidential law enforcement activities. Appellant and the unindicted co-conspirator allegedly owed...