U.S. v. Gaines

• Decision Date: 13 February 1976
• Docket Number: No. 75--1466,75--1466
• Citation: 529 F.2d 1038
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rufus GAINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1038

529 F.2d 1038

UNITED STATES of America, Plaintiff-Appellee, v. Rufus GAINES, Defendant-Appellant.

No. 75--1466.

United States Court of Appeals Seventh Circuit.

Argued Jan. 23, 1976.

Decided Feb. 13, 1976.

James B. Haddad, Chicago, Ill., for defendant-appellant.

John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and HOFFMAN TONE, Circuit Judge.

This collateral review under 28 U.S.C. § 2255 presents the claim that petitioner was deprived of his sixth amendment right to the effective representation of counsel because of the divided loyalties of his retained trial counsel. The District Court denied relief. We reverse.

Rufus Gaines and two codefendants were convicted of robbing an armored truck carrying money insured by the Federal Deposit Insurance Corporation and murdering the driver, in violation of 18 U.S.C. §§ 2113(a) and (e), and were sentenced to life imprisonment. This court affirmed the conviction. United States v. English, 501 F.2d 1254 (1974). Gaines later filed a pro se § 2255 motion, which the District Court dismissed. While the motion raises several points, counsel appointed to represent Gaines on appeal has argued only the sixth amendment claim.

Gaines was arrested on March 8, 1972, some two and one-half months after the crime. On March 10 he orally confessed to participation in the crime and named Alexander English and Sam Hubbard, Jr. as the other participants. He said one of them killed the driver.

Thereafter the prosecutor offered to charge Gaines only with an offense carrying a maximum term of imprisonment of 25 years, which presumably meant that he would not be charged with the murder, if he would testify on behalf of the government. Later the prosecutor said he would 'think about' recommending 20 years. Apparently Gaines said he would testify for the government. ¹

Complaints were then filed charging Hubbard and English with robbery and murder, and they were arrested. At the preliminary hearing on March 24 they were represented by an attorney (to whom we shall sometimes refer as 'the attorney'), who also represented them on unrelated felony charges in other jurisdictions. Gaines had waived counsel and was as yet not represented. When the government called Gaines as a witness, he repudiated his confession. The attorney then moved for a dismissal of the charges against Hubbard and English. Upon the government's claim of surprise, the hearing was continued.

Ten minutes after the conclusion of the hearing, the attorney informed the prosecutor that he now also represented Gaines, as well as Hubbard and English. He filed an appearance as counsel for Gaines that same day.

On April 14 the government dismissed the complaints against Hubbard and English, and they were released from federal custody, Gaines, however, was indicted shortly thereafter and charged with murder as well as robbery.

In July the government moved to disqualify the attorney as counsel for Gaines, arguing in substance that the attorney's obligation to Hubbard and English impaired his ability to advise Gaines. The prosecutor stated that he hoped to present the question of Hubbard's and English's involvement in the crime to a grand jury, that he needed Gaines' testimony for that purpose, and added that the attorney 'cannot deal with the Government as to Gaines when he also represents the other two men and has, therefore, a self-evident conflict of interest.' The government also predicted that a conviction of Gaines with that attorney representing him would be vulnerable to a postconviction attack.

The attorney, while acknowledging his continuing representation of English and Hubbard in this and other pending matters, nevertheless insisted that he could adequately advise Gaines and characterized the motion to disqualify him as frivolous and libelous. Judge Grant denied the motion to disqualify.

Subsequently the grand jury returned an indictment against Hubbard, English, and Gaines, charging each of them with murder and robbery. The earlier indictment against Gaines was later dismissed as superseded.

All three defendants were represented by the attorney and a co-counsel at the arraignment before Judge Grant on August 18. At that time the judge addressed each of the defendants individually and explained to them in general terms the dangers inherent in the representation of more than one defendant by the same counsel. Gaines stated in response to the court's questioning that he had discussed this problem with the attorney, that he was aware of his right to separate representation and knew that if he could not afford separate representation it would be provided to him without cost, and that he nevertheless wanted the attorney to continue to represent him. Pleas of not guilty were entered for all three defendants.

Before trial in November 1972 the attorney (to whom we shall now sometimes refer as 'Gaines' attorney') withdrew as counsel for Hubbard and English, leaving his co-counsel to represent them, and his co-counsel withdrew as counsel for Gaines. A motion of Hubbard and English for severance was denied, and the trial proceeded against all three before the late District Judge George N. Beamer.

The government introduced in its case in chief the oral confession of Gaines, redacted to exclude references to Hubbard and English. Gaines testified on his own behalf, denying participation in the crime. The government then sought to use Gaines' unredacted confession in cross-examining him, arguing that since he was now on the witness stand there was no longer a confrontation problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Counsel for Hubbard and English objected, and at that point the court recessed for the day.

The following morning, before proceeding in the presence of the jury, Judge Beamer told counsel he had found a case, Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), which supported the government's position. Stating the holding of the case to be 'that once the confessor takes the stand, . . . you no longer have a Bruton problem,' the judge ruled that the proposed cross-examination was proper.

In the ensuing colloquy, Gaines' attorney said that the rights of Gaines 'are being denied if he doesn't take the stand in this case; he has to take the stand.' He also said,

'(H)ow could Rufus Gaines put in evidence that his confession was no good unless he took the stand. It is impossible.

'And for him not . . . or for him to be denied his right to take the stand, because, if he did, then the other two codefendants are going to get literally 'screwed'--and that is a denial of his right.'

The court adhered to its ruling. Gaines having already taken the stand and completed his testimony on direct examination, the government proceeded to cross-examine him about his accusation of Hubbard and English in his pretrial confession. The jury was unable to reach a verdict, and Judge Beamer declared a mistrial.

The case was reassigned for further proceedings to Judge Grant, who denied a motion on behalf of Hubbard and English for judgment of acquittal and alternatively for severance. In denying the motion for severance the court referred to Nelson v. O'Neil, supra.

At the second trial, held in January 1973, the alignment of attorneys and parties remained the same. The government again introduced Gaines' confession in redacted form. This time, however, Gaines did not testify. Thus the jury did not learn that he had named Hubbard and English in his confession. In addition, Hubbard and English were able to argue on appeal, albeit unsuccessfully, that the redaction had been ineffective and they had been denied their right of confrontation under Bruton (see 501 F.2d at 1263).

Gaines' attorney, although he did not call Gaines to testify, tried to offer evidence that Gaines had repudiated his confession at the preliminary hearing, but the prosecutor's hearsay objection to this evidence was sustained. In closing argument, Gaines' attorney argued that Gaines had denied the crime. The prosecutor objected on the ground that there was no evidence of a denial. The judge resolved the objection by directing the jury to rely on its own recollection of the evidence.

After jury verdicts finding all three defendants guilty, each defendant filed a notice of appeal. The blue back on each of the three notices was imprinted with the name and address of Gaines' attorney. A motion for leave to appeal as a poor person and for appointment of counsel on appeal was filed for each defendant, each set of motion papers having a blue back imprinted with the name and address of Gaines' attorney. The motion papers are in many respects identical and appear to have been typed on the same typewriter. The affidavit of each defendant supporting the motion recites that affiant still owes 'considerable attorneys fees to my lawyers who handled the charges against me on two separate trials and motions.' In the affidavits of Hubbard and English, each of them described both attorneys as 'the attorneys who have represented me during the course of all the charges against me,' and asked that those attorneys 'be appointed as counsel to prosecute my appeal.' Gaines' affidavit names only the attorney who represented him at the trial as 'the attorney who has represented me during the course of all the charges against me,' and asks that he 'be appointed as counsel to prosecute my appeal.' The court appointed Gaines' attorney to continue representing him on appeal and the other attorney to continue representing the other two defendants. This court affirmed the convictions.

Gaines argues that his attorney's loyalties were divided between him on the one hand and Hubbard and English on the other, and that as a result he was denied effective assistance of counsel at the time of his plea...