Roberts v. United States, 72 C 116(2).

• Decision Date: 11 September 1972
• Docket Number: No. 72 C 116(2).,72 C 116(2).
• Parties: Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioners, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

348 F. Supp. 563

Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioners, v. UNITED STATES of America, Respondent.

No. 72 C 116(2).

United States District Court, E. D. Missouri, E. D.

September 11, 1972.

Carl Houston Roberts and Roy Malcolm Roberts, pro se.

Daniel Bartlett, Jr., U. S. Atty., J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for respondent.

MEMORANDUM AND ORDER

REGAN, District Judge

Roy Malcolm Roberts and Carl Houston Roberts, father and son, have jointly moved under Section 2255, 28 U.S.C., to vacate their convictions and sentences.

Petitioners, together with Jackie Leach and Robert Farris, were jointly charged and convicted under a two-count indictment, each count charging the assault on December 30, 1968 of an officer of the Bureau of Narcotics with a dangerous weapon in violation of Section 111, 18 U.S.C. The convictions as to all defendants were affirmed in United States v. Leach, 8 Cir., 429 F.2d 956, cert. den. 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151.

The present motion sets forth three grounds for the relief sought: (1) denial of petitioners' Sixth Amendment right to assistance of counsel; (2) double jeopardy in violation of the Fifth Amendment; and (3) alleged insufficiency of the evidence as to petitioner Carl Houston Roberts by reason of the asserted failure of the Government to prove that a dangerous weapon was used by him in the assaults. Of these in order.

1. The Sixth Amendment claim is to the effect that a conflict of interest was created by the action of the Court in "forcing" both petitioners to be defended by the same counsel.

"It has been firmly established that joint representation of codefendants is not per se violative of the Sixth Amendment. (Citing cases). Expressed another way, no reversible error is committed by the district court by assigning a single attorney to represent two or more codefendants in a pending criminal action, absent evidence of an actual conflict of interest or evidence pointing to a substantial possibility of conflict of interest between the codefendants." United States v. Williams, 8 Cir., 429 F.2d 158, 160-161.

The record conclusively establishes that insofar as the first trial was concerned, the contention that the Court "forced" either petitioner to be defended by the same counsel is completely frivolous. Petitioners voluntarily retained Raymond Bruntrager, a lawyer skilled in the practice of criminal law, to represent both father and son. Mr. Bruntrager filed various motions on behalf of his clients, including one for the continuance of the case from its original setting of January 27, 1969. The Court granted a continuance to February 10, 1969, and on that date the trial commenced. On the third day of trial, with both petitioners represented by Bruntrager, and the co-defendants Leach and Farris by appointed counsel Louis Gilden, a mistrial was granted on motions of all defendants.

There was not the slightest hint prior to the start of the second trial of any dissatisfaction on the part of either petitioner with respect to the services rendered by Bruntrager. This is not to say that if a conflict of interest actually existed (and we discern none), the fact that counsel was retained rather than appointed would not bar a right to relief.

We are at a loss to understand how or why, in the circumstances of this case, there either was or could be a conflict of interest between Roy and Carl. Their versions of the occurrence did not differ in the slightest. Their interests, rather than being in conflict, were in all respects identical. So far as Roy is concerned, petitioners do not even make a claim that he could possibly be adversely affected by any evidence or theory of defense which would exculpate Carl. It is not surprising that even now, and without counsel, petitioners are acting jointly. This lack of conflict in interest as affects Roy is unquestionably true not only as to the first trial but also as to the second trial at which Roy's retained counsel was "forced" to continue his representation of Carl when a continuance was denied.

The only so-called "conflict of interest" about which Roy now complains, namely, that by reason of the dual representation he was "forced to accept a mistrial" in the first trial, is in truth not a conflict at all. Rather, it pertains to the tactical judgment of his attorney. Roy's theory appears to be that since the matter which precipitated the motion for mistrial allegedly affected Carl only, Bruntrager should have limited his motion to Carl. What he fails to note is that Bruntrager's decision to request the mistrial as to both his clients was in no way mandated by any duty he owed to Carl. Over and beyond the foregoing, petitioners misconstrue the basis upon which Bruntrager, acting in good faith, determined that it would be in the best interests of both his clients to move for a mistrial. Although what precipitated the incident was a question directed to Carl, the mistrial was requested on the basis of a comment made by the Court which Bruntrager believed implied that he had concealed certain information from the jury and therefore reflected upon his integrity. In this context, it mattered not whether counsel's conduct pertained to Carl or Roy, inasmuch as counsel was employed by and represented both Roy and Carl, so that both clients were equally affected.¹

As for Carl, his complaint as to the alleged "conflict of interest" is based upon the contention that the Court should not have "forced" him to accept Bruntrager's services at the second trial which commenced on Monday, March 24, 1969. Up to the morning of that date, no intimation had been given to the Court that Carl wished to change his attorney. As the Court of Appeals stated in holding that this Court had not abused its discretion in denying Carl a continuance:

"On the day of the trial counsel for Carl Roberts requested a continuance, stating that he had been informed the Saturday before that Carl had obtained other counsel and did not wish him to represent him; however, the other attorney was not present at the trial. Carl's attorney of record also asked permission to withdraw in view of his client's dissatisfaction with him. The court denied both motions. It is contended on this appeal that the court abused its discretion in failing to grant defendant's motion for continuance `in order to permit him to retain new counsel.' We do not agree. Counsel had represented defendant for almost three months with no indication that defendant was dissatisfied with his services until the Saturday before the trial was to commence the following Monday. The court was not advised until the morning of the trial. The case had previously been tried almost to conclusion and had ended in a mistrial. Defendant's counsel was thoroughly familiar with the case and the court observed that he was well known in the community as a lawyer with great proficiency in the field of defending people charged with crime. Also, he represented Carl's father, Roy Roberts, who had apparently found no fault with his representation."

By way of amplification: On the Saturday preceding the trial date, Bruntrager conferred with Carl, who was confined at the City Jail for want of bond, and was told (for the first time) that "(Carl) had no confidence in (Bruntrager's) legal ability or apparently any other ability at that time and that he desired (Bruntrager) to withdraw." Not a word was then said implying that the lack of confidence was due to any alleged conflict of interest.

Initially, we note that if Carl actually retained an attorney from Nashville, Tennessee, as he informed the Court on the March 24 trial date, there is not the slightest corroboration in the record of this assertion. The actual taking of testimony at the second trial did not commence until the afternoon of March 25, only the jury having been selected the first day. Yet no word whatever was received from the Nashville lawyer, either by telephone, telegram or letter, to the effect that he was in the case, representing Carl. And in fact, to this day the Court has never received any communication whatsoever from the Nashville attorney. We also note that the appeal in this case was handled on behalf of both petitioners by Bruntrager, apparently without objection by Carl.

Having unsuccessfully urged on direct appeal that the Court should have granted him a continuance because he was "forced" to allow his retained counsel Bruntrager to continue to represent him, Carl now, three years later and for the first time, asserts that Bruntrager's "forced" representation of both Carl and Roy created an "incurable conflict of interest."

The alleged "incurable conflict of interest" is based on the allegation that in February, 1969, shortly after the aborted first trial, Roy allegedly informed...