Kaplan v. United States
| Decision Date | 18 April 1967 |
| Docket Number | No. 20728.,20728. |
| Citation | 375 F.2d 895 |
| Parties | Bernard KAPLAN and Alberto Berumen, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maurice Inman, Jr., Gary Goldman, Alexander, Inman & Fine, Los Angeles, Cal., for appellants.
Manuel L. Real, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Crim. Div., Gerald F. Uelmen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before JONES, Judge, U. S. Court of Claims, and BARNES and JERTBERG, Circuit Judges.
This is an appeal from convictions after a court trial of a five count indictment charging appellants and one other codefendant in Count I with conspiracy to pass counterfeit money (18 U.S.C. §§ 371, 472); Berumen in Counts II and IV with passing counterfeit money (18 U.S. C. § 472); Kaplan with aiding and abetting the passing of counterfeit money by the codefendant in Count III; and Kaplan and the codefendant with possession and concealment of counterfeit money in Count V.
All defendants were acquitted on Count I, Berumen convicted on Counts II and IV, and Kaplan convicted on Counts III and V and the codefendant Reinhardtsen acquitted on both substantive counts.
Jurisdiction below rested on 18 U.S.C. § 3231. It exists here pursuant to 28 U.S.C. § 1291.
Counsel representing the successful defendant below now represents both appellants. He urges six grounds for reversals, with heavy emphasis on the first two. They are:
1. Appellants were denied effective assistance of counsel due to an inherent conflict of interest;
2. The trial court erroneously examined certain reports of government agents;
3. The denial of the defendant Kaplan's motion to suppress six $100 counterfeit bills invalidated his conviction under Count V;
4. Kaplan could not be guilty of aiding and abetting under Count III as a matter of law 5. The denial of inspection of defendants' statements "in hands of the government" was error; and
6. Appellant Kaplan was denied due process of law.
We consider each alleged error in turn.
Appellants are entitled to meaningful representation by counsel, without any possibility of conflict of interest present between any two of two or more defendants. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942), Lugo v. United States, 350 F.2d 858, 859 (9th Cir. 1965). In determining this question, the trial court must be able, and be freely permitted, to rely upon counsel's representations that the possibility of such a conflict does or does not exist. The necessary adequate representation by an attorney which the law requires implies that the court may rely on the solemn representation of a fact made by such attorney as an officer of the court. The court may go further into the factual situation if he desires, but is under no original or continuing obligation to do so. Having determined the facts, he must then rule on the legal issues.
On March 29, 1965, Mr. Beckler, counsel in the court below representing Mr. Berumen and Mr. Kaplan, represented to the trial judge there was a recently discovered possible conflict of interest in his joint representation.1 He failed to disclose what it was. (Supp.Tr. VIII and IX.)2
On March 29, 1965, a three day continuance to April 1st, 1965, was ordered (Supp.Tr. XIII) and a requested three weeks continuance denied. When counsel for appellants, once a longer continuance was denied, agreed he could be ready "today," a continuance of one day was ordered by the court.3
When the case was called for trial on March 30, 1965, Mr. Beckler announced for his clients: "The defendant Kaplan and defendant Berumen are ready to proceed." (Tr. p. 4.)
After careful separate waivers of a jury trial (Tr. pp. 4-10), counsel for the government raised the problem whether there then existed any conflict or apparent conflict of interest. Mr. Beckler stated the conflict had been (Tr. pp. 12, 13.)
The trial court then satisfied himself of two things: (a) that the question of whether or not a jury trial should be had was the sole issue or conflict between the defendants, and (b) that it had been settled, not only to the satisfaction of the defendants' counsel, but to the complete satisfaction of each defendant. (Tr. p. 13, l. 1 to p. 14, l. 5.)4
Unlike Glasser v. United States, supra, and other law cited by appellants, the record clearly and convincingly proves there was an intentional and intelligent waiver by each defendant of separate counsel. The trial judge here did precisely what Glasser requires — made a "clear record" of a "proper waiver," i. e., a waiver "knowingly and intentionally made."
Just as we cannot speculate as to whether a conflict of interest, once it exists, would affect a trial (we can assume arguendo that it would), neither can we speculate that a right, once intelligently and knowingly waived, should not have been waived; or speculate whether or not there could have existed some other possible conflict of interest not factually disclosed, or even suggested, by a careful reading of the record before us. Appellants' concession is of importance.5
We find no merit in appellants' position on alleged Error I.
When Agent Tomsic was called to the stand, counsel for the government presented certain documents to counsel for defendants. Codefendant's counsel requested a ten minute recess to read the statements. These documents were referred to and described as follows:
The court then requested to see a copy of the statement. After identifying the witness on the stand, government counsel stated: "At this time, your Honor, I would like to state this defendant (sic) is only offered on the motion itself." (Tr. p. 159, ll. 12-14.)
This reference to "a motion" was to the pending motion of defendant Reinhardtsen to suppress. (See note 1, supra.) On March 15, 1965, it had been continued to the date of trial. (C.T. p. 105.)
Before Tomsic testified, the question was raised whether the court, as the trier of fact, could see the Jencks Act statements, delivered to counsel for the defendants by the government prior to the time any request was made on the record by counsel for defendants for their production. This question was never resolved or ruled upon. (Tr. p. 159, l. 17 to p. 162, l. 7.)
Counsel for appellants stated:
No counsel for any defendant made any objection, or motion of any kind. Counsel for the codefendant conceded the delivery of the statements was "proper."
Appellants state that they "strenuously questioned the right of the trier of facts to examine such documents without there being a Jencks motion made."
We flatly disagree. It was at best a half-hearted inquiry. When no protest or objection is made, no motion to strike made, no mistrial urged, and no record of any kind laid, it is inaccurate to describe such conduct as "strenuous questioning."
Neither can we agree that the trial judge commenced reading the statements "before either counsel was aware of the actions of the court." (Appellants' Brief, pp. 31-32.)
The unchallenged record clearly discloses Mr. Inman, counsel for the acquitted defendant, requested the Jencks Act statements of the government. (Tr. p. 154, l. 17 to p. 155, l. 2.) Mr. Beckler, counsel for these appellants "agreed" and "appreciated" the courtesy of government counsel, and stated: (Tr. p. 155, ll. 4-7.)
A recess was then called so defense counsel could read the statement, as they requested. Only then did the court look at the document.
The Tomsic statement falls within item three of the motion to suppress (C.T. p. 13), which motion the court then had under consideration (R.T. p. 158). The only purpose for Tomsic's testimony (R.T. p. 175, l. 22; 179) was to aid the court in its determination of this motion.
We conclude not only that the perusal of the statements by the court was necessary and proper in this case in view of the pending motions; but that counsel for defendants, by his silence and inaction, inferentially waived any objections to such an examination.
We can deal more quickly with the other errors urged. The third had to do with the admission of the six $100 counterfeit bills.
These were found in the white Chevrolet with Ohio license plates and a "dented" front left fender. (Tr. p. 171, ll. 6-9) after its seizure.
No search was made until after...
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