U.S. v. Allen

• Decision Date: 09 November 1987
• Docket Number: No. 84-4360,84-4360
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Arthur Andrew ALLEN, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1487

831 F.2d 1487

UNITED STATES of America, Plaintiff/Appellee, v. Arthur Andrew ALLEN, Defendant/Appellant.

No. 84-4360.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 3, 1985.

Decided Nov. 9, 1987.

Ken Bauman, AUSA, Portland, Or., for plaintiff/appellee.

Hoffman, Matasar & Glaeser, Lawerence Matasar, Portland, Or., for defendant/appellant.

Appeal from the United States District Court for the District of Oregon.

Before FLETCHER and BOOCHEVER, Circuit Judges, and AGUILAR, ^* District Judge.

AGUILAR, District Judge:

The defense of this marijuana smuggling case illuminates the serious constitutional and ethical problems facing lawyers who represent multiple co-defendants, or who orchestrate a joint defense or plea negotiation

                among several co-conspirators. 1   The Boston criminal defense firm of Oteri & Weinberg spearheaded the defense of the seventeen co-defendants here. 2   The issue on this appeal is whether petitioner Arthur Allen was denied effective assistance of counsel due to unwaived conflicts of interest inherent in Oteri & Weinberg's simultaneous representation of Allen, his co-defendant and boss Charles Minnig, and the unindicted "generals" of the smuggling operation.  We conclude that although Oteri & Weinberg's pre-trial representation of Allen bordered on a failure to comply with sixth amendment requirements, Allen was not denied effective assistance of counsel at trial and sentencing
                

FACTS

In 1976 and 1977, Allen traveled to Europe several times on behalf of his childhood friend, Timothy Minnig. On these trips he deposited large sums of cash in a Swiss bank and arranged for the transfer of money for the purchase of a freighter that would ultimately be used to smuggle marijuana. In mid-1977, Allen located and purchased a beachfront ranch on the southern Oregon coast to be used for the operation. He had been instructed to purchase the property and was provided the money to do so by Timothy Minnig.

Law enforcement agents raided the freighter and the ranch as the smuggling operation was underway, ultimately arresting seventeen persons including Allen. Although the government originally thought Allen was one of the three principals of the operation, it now concedes that Allen primarily acted as a "caretaker" of the ranch and took his orders from co-defendant The defendants had been instructed before the operation to contact Oteri & Weinberg should they be caught. Oteri & Weinberg was notified of the arrests, and attorney James Lawson of the firm immediately flew to Oregon to counsel the defendants. Lawson told the group not to talk to anyone, and that "[y]our friends are taking care of you [and] will be providing for you." Joseph Oteri and Martin Weinberg have since testified that they had an ongoing attorney-client relationship with the two men who subsequently would be indicted as the generals of the smuggling operation: Timothy Minnig and Robert Frappier. Indeed, Oteri was a "social friend" of Timothy Minnig. Unidentified persons delivered large sums of cash to the offices of Oteri & Weinberg which funds were used to defend the seventeen defendants. ³

Charles Minnig, the brother of Timothy Minnig.

At the defendants' preliminary appearances and arraignment before Magistrate George Juba in January and March of 1978, all seventeen men were represented by the firm of Oteri & Weinberg, and Norman Sepenuk, an Oregon attorney retained and paid by Oteri & Weinberg to serve as local counsel. ⁴ Magistrate Juba was aware of the possible conflicts arising out of the joint representation, and engaged counsel and defendants in lengthy colloquies. ⁵ Oteri and Weinberg told the Magistrate and the defendants, and have testified in the instant proceedings, that the only potential conflict they foresaw in the pretrial stage was if one or more defendants decided to cooperate with the government. The attorneys did not mention to the defendants or Magistrate Juba found that Allen waived his right to separate counsel. None of the several judges who subsequently heard the case inquired about conflicts.

Magistrate the possibility of conflict arising from joint plea bargaining, or from the fact that Oteri & Weinberg at the same time had a relationship with Timothy Minnig and Robert Frappier. Indeed, Oteri and Weinberg believed they would not be able to mention the latter conflict without first having Minnig and Frappier waive their own attorney-client privileges.

After the initial appearances before Magistrate Juba, Oteri and Weinberg procured identical written waivers ⁶ and declarations ⁷ from each defendant, including Allen. Moreover, they obtained separate, "independent" counsel for most of the defendants, and paid their retainers from the funds anonymously delivered on defendants' behalf.

In March 1978 Oteri subjected Allen to two polygraph tests in part to assure that he had not turned state's evidence. Oteri then arranged for Albert Cullen, a Boston attorney with offices down the hall from Oteri & Weinberg, to represent Allen. According to Weinberg, there was no contractual relationship between Oteri & Weinberg and Cullen. Cullen was paid $10,000 by a check drawn on Oteri & Weinberg's account. The check was made out to Charles Minnig, who endorsed it to Allen, who then endorsed it over to Cullen.

Even after the numerous defendants had their own "independent" attorneys appointed and paid by Oteri & Weinberg, Oteri, Weinberg, and Lawson continued to coordinate the proceedings. They perceived themselves, and were perceived by the other defense attorneys and the prosecution, as the "lead counsel" and "delegates" for the group. One of the defendants testified that Oteri and Weinberg "called the shots and ran the show." The probation officer thought they were "most definitely running the whole show." Indeed, this probation officer consulted only with Oteri and Weinberg, never with Cullen, regarding Allen's presentence report. Large joint meetings of the numerous defendants and attorneys were regularly conducted to strategize and resolve problems. According to Oteri himself, "we would like to act as consultants, have everybody get a separate attorney and we would do the legal work for everybody. We would act as consultants and in fact represent all of them without actually being there." Oteri told Allen that "I was kind of going to be a consultant, second counsel for all of them, and that was the agreement, that I would be there to consult with all of them or with their lawyers on any specific problems they had. So I consider myself having an attorney-client relationship with all seventeen defendants."

Oteri, Weinberg, and Lawson were primarily responsible for conducting the plea bargaining for all seventeen defendants. Oteri and Weinberg acknowledge that they counseled defendants to present a united front, believing that they could obtain a more favorable bargain for all the defendants if no one turned evidence against the others. Oteri testified that he "argued strenuously" for all the defendants to plead. They deny that this strategy was designed to protect the then-unindicted bosses of the ring.

By May 11, 1978, Oteri and Weinberg had discussed the government's evidence with the prosecutors and had devised a culpability list for purposes of plea bargaining. This ranking, entitled "Defendants' Requests For Sentences," listed each defendant and the sentence requested for that defendant. Allen was one of three defendants with the highest requested sentence: no more than two years, with six months to be served. Defendant Charles Minnig, who was Allen's boss in the smuggle, was listed for a sentence of no greater than one year, three months to be served. The lowest sentence was one year, thirty days to be served.

Oteri and Weinberg have testified in the instant proceedings that the rankings and Defense counsel never suggested to the prosecution or the judges that this culpability list was merely a restatement of the government's position. The probation officer testified that he assumed it was the defendants' own ranking, and that based on the list he believed that Allen had commanded the ranch operations. He so informed Judge Tanner. ⁸ The testimony also indicates that, whereas Minnig's full role was indeed a "question mark" for the government, the prosecution had information that Charles Minnig "ran the show", and was not completely satisfied that Arthur Allen was one of the bosses. Oteri and Weinberg resolved the prosecution's uncertainty in favor of Charles Minnig and against Arthur Allen.

                recommendations of the culpability list were based on what they believed the government knew at the time about each defendant.  The list "was not intended to accurately reflect culpability."    Indeed, before the list was distributed Oteri had "the perception" that Charles Minnig was Allen's boss.  Similarly, Weinberg had "knowledge, conjecture, or suspicion" that Minnig was more culpable than Allen.  Neither attorney conveyed this information to the government, and when asked why Minnig was not ranked above Allen, Weinberg responded:  "I think that would have demonstrated to the government something that they didn't know, whereas otherwise the list was completely consistent with what they did know or what they informed me they knew."    According to Weinberg, Charles Minnig was the government's "biggest question mark," and "[o]ne of our major strengths was the ignorance of the government as to the specific involvements ... amongst the seventeen people.... [To fill in the details] would not reduce Allen's six-month role, but might expand the scope of the numbers.... Mr. Allen's culpability might rise to ten years.  Mr. Minnig's might have been 15 years."
                

Cullen was not present at the discussions between the prosecution and the defense camp's delegates. He necessarily relied on Oteri and Weinberg's characterizations of the government's evidence at the mass meetings and their...