U.S. v. Bradshaw, 82-2540

• Decision Date: 19 October 1983
• Docket Number: No. 82-2540,82-2540
• Citation: 719 F.2d 907
• Parties: 14 Fed. R. Evid. Serv. 760 UNITED STATES of America, Plaintiff-Appellee, v. William BRADSHAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 907

719 F.2d 907

14 Fed. R. Evid. Serv. 760

UNITED STATES of America, Plaintiff-Appellee, v. William BRADSHAW, Defendant-Appellant.

No. 82-2540.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 1983.

Decided Oct. 19, 1983.

Barry A. Spevack, Michael D. Monico, Ltd., Chicago, Ill., for defendant-appellant.

Sheila A. Markin, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

COFFEY, Circuit Judge.

The defendant-appellant, William Bradshaw, was convicted of conspiring to steal goods moving in interstate commerce and the underlying substantive offense of stealing goods moving in interstate commerce in violation of 18 U.S.C. Secs. 371 and 659. From those convictions Bradshaw raises the following issues on appeal: (1) whether the district court failed to adequately inform Bradshaw of the dangers of multiple representation as required under Fed.R.Crim.P. 44(c); (2) whether Bradshaw's attorney operated under an actual conflict of interest that affected his representation of Bradshaw thereby violating Bradshaw's Sixth Amendment right to conflict-free counsel; (3) whether an incomplete answer of a government witness, successfully objected to on hearsay grounds, improperly implied that other people had linked Bradshaw to the theft; and (4) whether there was sufficient evidence to convict. Because we do not find the defendant's arguments meritorious, we affirm the convictions.

I.

This case involved the theft of the contents of a Blue Arrow trailer traveling in interstate commerce from Flint, Michigan via Chicago to Sioux Falls, South Dakota. The contents of that trailer amounted to approximately $43,000 worth of A/C Auto Parts, which were stolen while the trailer was in Chicago. The sole issue to be determined at trial was whether the defendants, William Bradshaw and James Urbanski were responsible for the theft. Only the defendant Bradshaw appeals his convictions.

On the date of the theft, July 4, 1980, the Blue Arrow trailer was parked at Barber Transportation Company located in Chicago, Illinois. The circumstances surrounding the theft indicated that the party or parties who participated in the theft of the trailer not only had knowledge concerning the operation of tractors and semi-trailers, but also knew the particular practices and procedures of Barber Transportation Company since the thieves were able to obtain the vehicles' keys and easily avoid Barber's security measures. The testimony showed that the defendant Urbanski worked as a terminal manager at Lincoln Transfer Company, located immediately adjacent to Barber Transport. The evidence also demonstrated that Urbanski was familiar with Barber Transport's dispatch area where keys and trailer documentation materials were kept. In addition, it was shown that Bradshaw was an experienced truck driver who at the time of the theft was laid off from his regular job, but was occasionally employed as a truck mechanic for B & B Trucking (hereinafter "B & B").

One of the witnesses to the theft testified that at 8:30 a.m. on July 4, 1980, he observed William Bradshaw's car leaving the Barber Transport terminal followed by a Barber tractor hooked to a Blue Arrow trailer. Another witness testified that at 10:30 a.m. on the same day he observed a Blue Arrow trailer parked in the vicinity of B & B Trucking (Bradshaw's place of employment at the time). That witness also stated that he had seen the defendant Bradshaw backing a Ranger Cartage truck up to the rear end of a Blue Arrow trailer. The evidence indicated that Bradshaw had access to the keys of Ranger Cartage trucks as a result of his employment at B & B. Twenty-eight pallets traced to the A/C shipment were found stacked immediately adjacent to the B & B premises. Sometime later in the morning of July 4, 1980, two of Urbanski's neighbors noticed a truck pull into his driveway. These witnesses testified that the truck was accompanied by two cars, one of which belonged to Bradshaw.

Ed Bradshaw, William Bradshaw's first cousin, who was also implicated in the theft, testified on behalf of the government. He stated that he had gone out drinking with the defendants William Bradshaw and Urbanski the night before the theft, had become very drunk and had fallen asleep in his cousin William Bradshaw's car. He testified that when he (Ed Bradshaw) finally awoke the car was at B & B. ¹ He got out of the car and observed the Ranger Cartage truck parked "back to back" with the Blue Arrow trailer. He spoke with his cousin (defendant William Bradshaw). Following that conversation, he looked inside the trailer where he saw Urbanski. His cousin then asked him to move the Ranger Cartage truck which he attempted to do but could not because the truck failed to start. Sometime later, William Bradshaw asked him to watch over the B & B premises while he went out to get something to eat. After his cousin returned he left B & B in his own car. Ed Bradshaw further claimed that he had nothing to do with the actual theft of the automobile parts. Defendants Bradshaw and Urbanski, on the other hand, jointly testified that Ed Bradshaw was in reality the mastermind of the theft and that, in fact, they had been unwittingly tricked into helping Ed Bradshaw carry out the theft.

Prior to and during the trial of this action, defendants Bradshaw and Urbanski were represented, at their own request, by the same attorney, Mr. Robert J. McDonnell. Both were advised on three separate occasions, prior to trial, of their right to separate counsel as well as the pitfalls of joint representation. In their appearance before Magistrate Olga Jurco, on April 27, 1982, the magistrate undertook an extensive discussion of the problems involved in joint representation. A second inquiry was made by the district court during a pretrial hearing conducted on May 24, 1982. At that hearing the judge advised the defendants of their right to separate and conflict-free counsel and, in addition, stated to the defendants that they might have conflicting defenses. Finally on June 28, 1982, the government filed a motion for inquiry with respect to joint representation pursuant to Fed.R.Crim.P. 44(c). That motion asked the court to question each defendant to determine whether there was good cause to believe that no conflict of interest was likely to arise as a result of their joint representation. In response to that motion, the district court, on July 13, 1982, once more advised the defendants of their right to separate counsel and questioned them concerning the possible conflicts raised in the motion.

II.

The defendant's first set of arguments concern his Sixth Amendment right to conflict-free assistance of counsel. There is no doubt that such a right exists. As our court stated in United States v. Gaines, 529 F.2d 1038 (7th Cir.1976), "[t]he sixth amendment guarantee of the assistance of counsel includes the right to counsel whose loyalty is not divided between clients with conflicting interests." Id. at 1043 (citing Glasser v. United States, 315 U.S. 60, 70, 75-76, 62 S.Ct. 457, 646, 647, 86 L.Ed. 680 (1942)). See also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Before proceeding into a discussion of the adequacy of the trial court's inquiry into the issue of joint representation, as required by Fed.R.Crim.P. 44(c), it seems appropriate that we consider whether Bradshaw, through his statements and representations to the magistrate and trial court, waived his right to conflict-free counsel and therefore cannot now be heard to complain about his joint representation and any conflicts that may have arisen therefrom.

As with other constitutional rights, the right to conflict-free counsel can be waived. United States v. Gaines, 529 F.2d at 1043; United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). The standard for measuring an effective waiver of a constitutional right was set forth in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

Id. at 464, 58 S.Ct. at 1023. This standard was subsequently refined by the Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). According to that case "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748, 90 S.Ct. at 1469 (footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir.1983) (waiver of jury trial). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. "A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack." United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 721, 74 L.Ed.2d 948 (1983). See also United States v. Garcia, 517 F.2d at 276; United States v. Gaines, 529 F.2d at 1041; and United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir.1983).

Thus, we now turn to an examination of the circumstances surrounding Bradshaw's decision to retain his trial court attorney to determine whether he did, in fact, waive his right to conflict-free assistance of counsel. When the three occasions on which both defendants were advised of their rights concerning joint representation are examined in an objective and discriminating light, it becomes apparent that Bradshaw voluntarily, knowingly and...