In re Grand Jury Investigation

• Decision Date: 23 August 1977
• Docket Number: Misc. No. 6798.
• Citation: 436 F. Supp. 818
• Parties: In re GRAND JURY INVESTIGATION.
• Court: U.S. District Court — Eastern District of Pennsylvania

436 F. Supp. 818

In re GRAND JURY INVESTIGATION.

Misc. No. 6798.

United States District Court, W. D. Pennsylvania.

August 23, 1977.

Henry G. Barr, Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

Burton W. Sandler, Towson, Md., Carl Max Janavitz, Pittsburgh, Pa., for defendant.

OPINION

TEITELBAUM, District Judge.

FACTS

The matter presently before this Court involves an investigation being undertaken by grand juries convened within the Western District of Pennsylvania. This investigation concerns possible violations of Title 18, United States Code, Sections 371, 1462, 1465 and 2, relating to the interstate distribution of pornographic and obscene materials.

On February 16, 1977, a search was conducted of premises occupied by the Majestic News Company located at 922 West North Avenue. As a result of this search, a large volume of records maintained by the Majestic News Company were seized, as well as approximately 2,000 allegedly pornographic 8 millimeter or super 8 millimeter films. During the course of the search, several employees of the Majestic News Company were observed on the premises.

Subsequent to this search, a number of persons employed by the Majestic News Company were subpoenaed to appear before a Federal Grand Jury on April 14, 1977. These individuals were Gregory Kocan,¹ Phyllis Johns, Richard Jenkins, John Halas, Glenn Gossard and James Johns. During their appearance before the Grand Jury, each of the above witnesses were represented by Burton Sandler, Esquire and Carl M. Janavitz, Esquire. Thereafter, Richard Thompson and James Calderone, additional employees of the Majestic News Company, and Ben Nabors, an employee of a book store located in Wheeling, West Virginia, were brought before the Grand Jury. Thompson, Calderone and Nabors were all represented by Mr. Janavitz and Thompson and Calderone were additionally represented by Mr. Sandler.² In total Mr. Sandler represented ten clients while Mr. Janavitz represented eleven clients.

On April 28, 1977, Phyllis Johns was scheduled to appear before the Grand Jury in order to answer questions under a grant of statutory use immunity.³ After each individual question, Mrs. Johns left the Grand Jury room whereupon Mr. Janavitz would tape record each question.⁴ During some of the periods that Mrs. Johns left the Grand Jury room to record each question, Mr. Gregory Kocan, a "target" of the investigation, was observed to be standing close by.⁵ The obvious purpose of recording each question addressed to Mrs. Johns was to better enable Mr. Janavitz and Mr. Sandler to represent their respective clients.

Believing that the multiple representation by Mr. Sandler and Mr. Janavitz of the various witnesses that have appeared before the Grand Jury constituted a conflict of interest which was impeding the effectiveness of the Grand Jury's investigation, the Government filed a motion requesting that both Mr. Janavitz and Mr. Sandler be disqualified from representing all of their clients.⁶

A hearing on the above motion was held before this Court on June 20, and 21, 1977. At this hearing each of Mr. Sandler's and Mr. Janavitz's clients were instructed by this Court that the multiple representation involved might result in a conflict of interest on the part of counsel and might be disadvantageous to the client's right to unfettered representation. Each client responded that they still desired to be represented by Mr. Janavitz and/or Mr. Sandler.

During the course of the hearing, a formal offer of non-prosecution was made by the government to Phyllis Johns,⁷ Richard Thompson, Ben Nabors, Kelsie Lanning and James Johns.⁸ Subsequently, Mr. Janavitz and/or Mr. Sandler filed a motion for withdrawal of representation of Grand Jury witnesses Richard Thompson, Ben Nabors, Kelsie Lanning and James Johns. Said motion was granted by Order of this Court on June 28, 1977.⁹

ISSUES

The issue presented for our determination is whether or not Mr. Sandler and Mr. Janavitz should be disqualified from representing Grand Jury witnesses Phyllis Johns, Gregory Kocan, Richard Jenkins, John Halas, Glen Gossard, James Calderone and Jerry Barnhouse during the Grand Jury proceedings.¹⁰ The resolution of this inquiry requires an accommodation between the right to counsel of one's own choosing and the individual's right to meaningful legal representation.

DISCUSSION

"Phyllis Johns"

The Sixth Amendment of the United States Constitution guarantees that every individual has the right to effective assistance of counsel. A penumbra of this Sixth Amendment right is the right to retain counsel of one's own choosing. The right to choose one's own counsel, however, is not absolute. Cf. United States v. Garafola, 428 F.Supp. 620, 626 (D.N.J.1977). As stated in Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009, 1012 (3d Cir. 1976): "the government may obtain, in appropriate circumstances, judicial interference with private arrangements for multiple legal representation of witnesses called to testify before a grand jury . . .."

Recognizing that the right to choose one's counsel is not absolute, the issue arises whether there is a conflict of interest in Mr. Janavitz's and Mr. Sandler's (hereinafter "respondents") representation of Phyllis Johns.

Phyllis Johns has been cloaked with statutory use immunity. In addition, Mrs. Johns has an offer of non-prosecution by the government outstanding. Respondents are legal counsel for Mrs. Johns. Mrs. Johns' testimony given pursuant to immunity could be detrimental to others being investigated by the Grand Jury such as Gregory Kocan, Richard Jenkins, John Halas, Glen Gossard, James Calderone and Jerry Barnhouse. The above-named individuals are also represented by respondents.

The conflict created by this dual representation is both direct and immediate. The conflict is certainly direct in that respondents represent a person that is operating under a grant of statutory use immunity as well as people that are prospective defendants. The conflict is also immediate because Mrs. Johns has a formal offer of non-prosecution by the government. It requires but a statement of the obvious to realize that negotiations for a promise of non-prosecution cannot properly be conducted by attorneys who also represent those people who may well be hurt by testimony resulting from such a promise.¹¹ There can be no better example of the ancient axiom that "no man can serve two masters."

Having concluded that there is both a direct and immediate conflict of interest in respondents' representation of Phyllis Johns, the issues arise as to whether Mrs. Johns can waive such a conflict of interest, and if she can, whether or not she properly did so.

As a general principle, an individual may waive the right to conflict-free assistance of counsel. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). The waiver, however, must be an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Not only must the waiver be a relinquishment of a known right but also must be done with "awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

At the hearing before this Court on June 21, 1977, Phyllis Johns was asked whether she voluntarily agreed to continue respondents' representation even though a possibility of conflict existed. Mrs. Johns answered yes.¹² It is this Court's opinion that Mrs. Johns did not waive her right to effective assistance of counsel at the hearing because of an inability to satisfy the standards of Johnson and Brady.

The problem of eliciting a valid waiver from Mrs. Johns largely stems from the fact that her immediate employer, Gregory Kocan, is a prospective defendant. Merely informing Mrs. Johns of the existence of a potential conflict and seeking a waiver from her does not adequately deal with the problem of multiple representation in this situation. Mrs. Johns' "waiver" is likely a function in large part of one's natural hesitancy to alienate their employer rather than a product of a free and unrestrained will.

Additionally, respondents themselves had made their clients aware of a potential for conflicts of interest while advising them that such a conflict did not yet exist. Mr. Sandler testified at the hearing:

"I explained to them, as Your Honor has told them here in Court today, of the possibilities of conflict between representing multiple defendants. I indicated to them that in my opinion, at this point, since there was no offer of immunity, since they were all potential defendants, that I did not feel that I could not fairly represent them, but if I reached a point where I felt that I could not give them one hundred per cent loyalty and devotion, I would step out of the picture."¹³

A waiver under these circumstances would be purely illusory. As stated in Garafola, supra at 624 under a similar factual setting:

"He has already told his clients that there is no conflict in their interests. Thus, when the defendants answer the Court's inquiry, they actually are relying upon the advice received from their lawyer. If he tells them there is no conflict and that he can effectively represent them, how can their responses to the court be deemed to amount to a Johnson v. Zerbst waiver of their sixth amendment right to effective aid of counsel?"

While one court has held that representation of both employer and employee in this type of situation is inherently improper, In Re Abrams, 56 N.J. 271, 266 A.2d 275 (1970), this Court will not adopt such a wide-ranging view. Today's decision is limited by the facts sub judice. Under these facts, Mrs. Johns was incapable of making a waiver which complies with Johnson and Brady.

This Court finds that a serious conflict of interest exists in Respondents' representation of Phyllis Johns and that such conflict could not have been...