U.S. v. Dolan

Decision Date23 January 1978
Docket NumberNo. 77-1496,77-1496
Citation570 F.2d 1177
PartiesUNITED STATES of America v. DOLAN, John E., Appellant.
CourtU.S. Court of Appeals — Third Circuit

Samuel R. DeLuca, Joseph W. Gallagher, Jersey City, N.J., for appellant.

Jonathan L. Goldstein, U. S. Atty., Ralph A. Jacobs, Asst. U. S. Atty., Newark, N.J., for appellee.

Before ROSENN and VAN DUSEN, Circuit Judges, and COHILL, District Judge. *


ROSENN, Circuit Judge.

This case presents a troublesome problem at the interface of two spheres of prime judicial concern: the scope of the sixth amendment rights of a criminal defendant and the enforcement of appropriate standards of professional conduct for members of the criminal defense bar.

The genesis of this appeal lies in the indictment of Michael Garofolo and John Dolan in the United States District Court for the District of New Jersey for unlawful possession of chattels stolen from foreign commerce, 18 U.S.C. § 659 (1970). Both defendants retained Samuel R. DeLuca, Esquire, to represent them in this matter, and both entered pleas of not guilty. Pursuant to this court's decision in United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), Judge Herbert Stern conducted a hearing to determine whether Mr. DeLuca's joint representation of the defendants would give rise to a prejudicial conflict of interest. Despite Judge Stern's advice as to the merits of separate representation, both defendants stated their desire to continue to retain Mr. DeLuca. 1

On the eve of trial set before Judge Frederick Lacey, Attorney DeLuca communicated with the Assistant United States Attorney in charge of the case seeking a dismissal of the charges against Dolan in exchange for Garofolo's guilty plea. The Government refused to negotiate such a deal. Garofolo was unaware of this attempted bargain.

The next day, Garofolo pleaded guilty. Before accepting the plea, Judge Lacey conducted a hearing to ensure the knowing and voluntary nature of the guilty plea. In addition, he conducted another Davenport hearing in which his questions elicited from Garofolo answers indicating that Garofolo did not believe that he had been prejudiced in any way by the joint representation. Mr. DeLuca similarly indicated, in response to Judge Lacey's questions, that he saw no conflict of interest in the joint representation. The judge further examined Dolan:

The Court: . . . Have you (Mr. Dolan) heard all of these questions I put to Mr. Garofolo?

Mr. Dolan: Yes, sir, I have.

The Court: All right.

And now, of course, Mr. DeLuca would continue to represent you. Is that right?

Mr. Dolan: Yes, sir.

The Court: All right.

Are you satisfied that your interests will in no way be prejudiced by the fact that Mr. DeLuca up until this point and, indeed, through the taking of this guilty plea has been representing Mr. Garofolo as well as you? Are you satisfied that your interests will not be prejudiced for that reason?

Mr. Dolan: Yes.

The Court: And you're perfectly willing to continue with Mr. DeLuca.

Mr. Dolan: Yes, sir.

The court accepted the guilty plea, and the case against Dolan, with DeLuca as his attorney, proceeded to trial.

The defendant took the stand as the first defense witness. He testified, in essence, that he was only assisting his co-worker Garofolo in what he believed, at the time, was an innocent endeavor to recover television sets from an abandoned van and therefore lacked the requisite criminal state of mind. The court interrupted the Government's cross-examination with questions of its own, and the defense moved for a mistrial on the ground that those questions had been prejudicial.

During the conference in chambers on the mistrial motion, Judge Lacey again probed the possibility of conflict of interest. Attorney DeLuca stated that he believed there was no conflict as long as Garofolo did not testify and inculpate Dolan which he said Garofolo had indicated to him he would not do. The Government stated, however, that it had subpoenaed Garofolo, intending to call him as a rebuttal witness. Judge Lacey questioned DeLuca as to how he could give Garofolo legal advice uncolored by his continuing representation of Dolan, or cross-examine Garofolo effectively while still representing him in the upcoming sentencing. 2 Mr. DeLuca adhered to his perception that there was no conflict. Judge Lacey granted the motion of mistrial and, after a thorough study of the cases, the professional standards, and a well-reasoned analysis, ordered DeLuca to withdraw from representing either Garofolo or Dolan. United States v. Garafola, 428 F.Supp. 620 (D.N.J.1977).

Garofolo ultimately retained separate counsel and entered a guilty plea. While awaiting a new trial, Dolan, still desiring to have DeLuca represent him, took this appeal. 3

To protect the interests of criminal defendants enmeshed in the midst of our adversarial system of justice, the Sixth Amendment of the United States Constitution guarantees each defendant the "assistance of counsel for his defense." This guarantee "contemplates that such assistance be untrammeled and unimpaired," Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). Representation of co-defendants by one attorney, when it is possible to discern a prejudicial conflict of interest arising therefrom, 4 is no longer "untrammeled and unimpaired" and will constitute a constitutionally defective denial of effective counsel. Walker v. United States, 422 F.2d 374 (3d Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970). 5

It is evident from the record in the instant case that, for the reasons carefully enumerated by Judge Lacey in his opinion in United States v. Garafola, supra, and Supplement (filed April 13, 1977), Mr. DeLuca cannot render to appellant Dolan effective assistance of counsel. 6 Dolan contends, however, that under the rule in United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), he has the right to waive effective assistance of counsel and proceed with DeLuca as his attorney in spite of the conflict of interest. We hold that the rule in Davenport does not dictate such a result and we affirm.

Davenport concerned an appeal from a denial of a petition for habeas corpus challenging a state court conviction on the ground, inter alia, that the defendant was deprived of the effective assistance of counsel in his trial because his attorney represented his co-defendant. Noting that the record of the state proceedings clearly met the Walker test of a showing of conflict of interest, the court held that the defendant was denied the effective assistance of counsel. In dicta, Judge Gibbons stated that the right to effective assistance of counsel could be waived, 478 F.2d at 210, as long as the dangers inherent in joint representation were explained to the defendant at the earliest possible time in the proceedings. Id. at 211. Accord, Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009, 1012 (3d Cir. 1976); United States ex rel. Horta v. De Young, 523 F.2d 807, 810 (3d Cir. 1975).

The waiver of effective assistance of counsel which the Davenport rule facilitates is subject to the limitations established earlier by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a waiver of a constitutional right must be made knowingly, intelligently, and with awareness of the likely consequences of the waiver. Whether the waiver is intelligent and competent "should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See United States v. Woods, 544 F.2d 242, 268-69 (6th Cir. 1976); United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973). For a trial judge to find that a waiver is knowing and intelligent, he must be satisfied that the defendant is aware of the foreseeable prejudices his attorney's continued representation could entail for his trial, and possible detrimental consequences of those prejudices. 7 United States v. Carrigan, 543 F.2d 1053, 1055 (2d Cir. 1976); United States v. Gaines, 529 F.2d 1038, 1043-44 (7th Cir. 1976); United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975); United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972); Campbell v. United States, 122 U.S.App.D.C. 143, 144-45, 352 F.2d 359, 360-61 (1965).

The form of the inquiry should follow in substance, though not necessarily in precise form, the procedure as adopted by the Fifth Circuit in Garcia, supra, in which the court said:

As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney's possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. It is, of course, vital that the waiver be established by "clear, unequivocal, and unambiguous language."

517 F.2d at 278 (footnotes omitted). See Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra L.Rev. 315, 334 (1977).

Implicit in this inquiry procedure is the possibility that a trial judge may not be satisfied that the...

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