U.S. ex rel. Stewart on Behalf of Tineo v. Kelly

• Decision Date: 17 March 1989
• Docket Number: No. 544,D,544
• Citation: 870 F.2d 854
• Parties: UNITED STATES of America, ex rel. Martin STEWART, on Behalf of Jose TINEO, Petitioner-Appellee, v. Honorable Walter KELLY, Superintendent of Attica Correctional Facility, Respondent-Appellant. ocket 88-7857.
• Court: U.S. Court of Appeals — Second Circuit

Page 854

870 F.2d 854

57 USLW 2579

UNITED STATES of America, ex rel. Martin STEWART, on Behalf of Jose TINEO, Petitioner-Appellee, v. Honorable Walter KELLY, Superintendent of Attica Correctional Facility, Respondent-Appellant.

No. 544, Docket 88-7857.

United States Court of Appeals Second Circuit.

Argued Dec. 13, 1988.

Decided March 17, 1989.

Brian T. McGovern, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of New York, New York City, of counsel), for respondent-appellant.

Martin Stewart, New York City (Bivona & Cohen, New York City, of counsel), for petitioner-appellee.

Before VAN GRAAFEILAND, MESKILL and MINER, Circuit Judges.

MESKILL, Circuit Judge:

This appeal is brought by respondent-appellant Kelly, superintendent of Attica prison, from an order of the United States District Court for the Southern District of New York, Stanton, J., granting a petition for a writ of habeas corpus brought by petitioner-appellee Tineo pursuant to 28 U.S.C. Sec. 2254 (1982). Appellant contends that Tineo's Sixth Amendment right to counsel was not denied by the trial court when it refused to allow Tineo to be represented by the attorney he chose, Kenneth Linn, because of a conflict of interest between Tineo and a prosecution witness who was a former client of Linn. We agree with appellant, and we reverse.

BACKGROUND

Tineo was charged with sale of a controlled substance, conspiracy, and criminal possession of a controlled substance in violation of New York state law in November 1978. The possession counts were dropped, but trial was scheduled on the remaining counts. Tineo retained Attorney Kenneth Linn to represent him at trial. At a pre-trial hearing on January 4, 1980, Tineo tried to discharge Linn as his attorney. Tineo gave as his reasons that Linn could not help him and that Linn had unsuccessfully defended him in a prior matter. The trial judge denied this motion, describing it as brought on the "eve of trial."

Three days later, at another pre-trial hearing, the judge stated that he had learned that there was a potential conflict of interest on Linn's part. One of the prosecution's key witnesses, a confidential informant, had been represented by Linn in the past. The informant was scheduled to testify, and Linn asked to be relieved as counsel due to the possibility of conflict of interest. The judge "reluctantly" granted this motion.

On January 10, another pre-trial hearing was held. Tineo's former counsel, Linn, was there, as well as his new, court-appointed counsel, Frederick Seligman. At this hearing Linn objected to being relieved and Tineo asked that Linn be allowed to represent him. Linn stated that all he knew about the confidential informant was what was in his rap sheet; he argued that he could limit his cross-examination of the informant to information contained in it. As this information would have been turned over to him even if he had not previously represented the informant, Linn saw no problem with his continued representation of Tineo. Furthermore, Linn did not want "to establish this as a precedent" for other attorneys who wanted to represent clients with conflicting interests.

The trial judge rejected Linn's arguments, including the notion that if Linn circumscribed the scope of his cross-examination, he would be able to represent Tineo without conflict. The trial judge did hear from Tineo, who said that he wanted to get the case "over with," and that he did not want to have to pay a new attorney. In response, the court said it would leave "this lawyer," apparently referring to the appointed Seligman, "in for you," and adjourned the trial for a week to give Seligman time to prepare.

On January 21, Seligman reported to the court that Tineo refused to speak to him because Tineo regarded Linn as his attorney. Tineo asked the court what would happen to Linn and the court again explained the conflict of interest. Three days later, as the trial began, Seligman stated for the record that he was not Tineo's attorney of choice. Finally, on the 25th, Seligman told the court that Tineo was not satisfied with Seligman's representation Tineo did appear pro se and was convicted. See People v. Tineo, 64 N.Y.2d 531, 535, 479 N.E.2d 795, 797, 490 N.Y.S.2d 159, 161 (1985). His conviction was upheld on appeal. Id. The New York Court of Appeals held that it was "no abuse of discretion for a trial court, acting on the eve of trial, to consider the interests of judicial economy, the integrity of the criminal process, and continuous vacillation of both defendant and counsel, in denying a motion for reinstatement." Id. at 537, 479 N.E.2d at 798, 490 N.Y.S.2d at 162.

                and wanted to appear pro se.    The court responded that if Tineo proceeded pro se, it would require Seligman to be stand-by counsel
                

Tineo filed a petition for a writ of habeas corpus in the district court on August 19, 1986, challenging his conviction as violative of his Sixth Amendment right to counsel. ¹ The case was assigned to Judge Stanton, who received a report and recommendation from Magistrate Roberts. The district court substantially adopted this report, and relied primarily on United States v. Cunningham, 672 F.2d 1064 (2d Cir.1982), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984), in holding that the trial court's refusal to reinstate Linn as Tineo's counsel violated Tineo's Sixth Amendment rights. A certificate of probable cause was granted and respondent filed the instant appeal.

We reverse the decision of the district court.

DISCUSSION

This appeal presents the question whether the district court was correct in holding that the trial court denied Tineo's Sixth Amendment right to counsel of his choice because of a potential for conflict of interest. We conclude that the district court, relying on a magistrate's report issued prior to the decision in Wheat v. United States, --- U.S. ----, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), reached the wrong result. In Wheat, a federal court defendant requested substitution of counsel approximately one week prior to the start of his trial. The attorney he wanted was representing two other defendants involved in various aspects of the defendant's case. The government raised the issue of conflict of interest. The Supreme Court held that the district court correctly denied defendant's request for substitution. It described the competing interests as "the extent to which a criminal defendant's right under the Sixth Amendment to his chosen attorney is qualified by the fact that the attorney has represented other defendants charged in the same criminal conspiracy." Wheat, at ----, 108 S.Ct. at 1697.

The solution to this clash between a defendant's Sixth Amendment right to counsel and the same defendant's right to a fair trial is a balancing of interests that is committed to the discretion of the trial judge, who has "broad latitude" in this matter. Id. at ----, 108 S.Ct. at 1699. There is a presumption in favor of a defendant's choice of counsel, but this may be overcome "by a showing of a serious potential for conflict." Id.; see also United States v. Arrington, 867 F.2d 122, 128 (2d Cir.1989) (right to counsel of choice not absolute). In balancing what can be competing interests of the Sixth Amendment, the trial court has "an independent duty to ensure that criminal defendants receive a trial that is fair." Wheat, --- U.S. ----, 108 S.Ct. at 1697; see also United States v. Scopo, 861 F.2d 339, 344 (2d Cir.1988).

Although it differs from our case factually, Wheat controls. In both Wheat and the instant case, the trial judge reviewed and balanced the defendant's right to a fair trial and his right to counsel of choice. We do not believe that the trial judge abused his discretion and so we reverse the judgment entered pursuant to the order of the district court granting Tineo's petition.

Wheat emphasized the trial judge's duty to preserve the integrity of the justice system Linn was presented with the possibly conflicting interests of one client, Tineo, and one former client, the informant. There was no guarantee that Tineo's interests could be served without vigorous cross-examination of the informant in a manner wholly...