U.S. v. Garcia
| Citation | 517 F.2d 272 |
| Decision Date | 07 August 1975 |
| Docket Number | 74-3718,Nos. 74-3527,s. 74-3527 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Y. GARCIA, Douglas W. Albert, Bennard D. Jackson, Gilbert Gonzalez, Jesse C. Smith, John J. Davis, and Delbert D. Collins, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Antonio V. ZAVALA and Carlos Avila, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James A. Moore, Robert C. Hunt, Houston, Tex., for defendants-appellants in No. 74-3527.
Ronald J. Waska, James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee in No. 74-3527.
Jerry D. Patchen, Gerald M. Birnberg, Houston, Tex., for defendants-appellants in No. 74-3718.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Ronald J. Waska, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee in No. 74-3718.
Appeals from the United States District Court for the Southern District of Texas.
Before GEWIN, DYER and ADAMS, * Circuit Judges.
In these consolidated cases we review a district court's disqualification of three criminal defense attorneys because of apparent conflicts of interest. The central question concerns a criminal defendant's right to retain counsel of his own choice even though the trial court considers such counsel to be disqualified because of a conflict of interest. The distinctive aspect of this case is that the defendants do not seek to waive the right to counsel. Rather they seek to waive the Sixth Amendment guarantees which might otherwise protect them in circumstances adjudged by the district court to disqualify counsel.
The appellants (appellants or defendants) contend that their right to representation by counsel of their own choice has been violated by the district court's order preventing their selected attorneys from representing them at trial. They assert that assuming arguendo that counsel are burdened with conflicts of interest, their right to representation by counsel of their individual choice is a paramount, continuing, and inviolable right which may not be abrogated by the judgment of the trial court. We are fully conscious of the serious and delicate nature of the issue presented. A resolution of the problem requires a cautious and sensitive consideration and balancing of individual constitutional protections, public policy and public interest in the administration of justice, and basic concepts of fundamental fairness. While we remain wary of the hazards of potential conflicts of interest in this case, we conclude that even should such conflicts exist, the defendants enjoy the right to knowingly and intelligently waive any disqualification noted by the district court. Accordingly, we remand to that court for a determination as to whether the appellants in this case wish to make such a waiver in accordance with the principles herein delineated.
Appellants are members of the Houston Police Department, narcotics division, charged with a variety of federal crimes. 1 Each appellant privately retained counsel to conduct his defense; Zavala and Avila engaged Greene while Garcia, Albert, Collins, Jackson, Gonzalez, Smith, and Davis employed Moore and Hunt. The primary difficulty in this case emanates from these three attorneys' simultaneous representation of other unindicted Houston policemen, some of whom are potential witnesses against the appellants. Attorneys Moore and Hunt represent approximately fifteen other such officers, including several whom they represented when they testified before the federal grand jury which indicted Garcia and his co-defendants. Moreover, Moore was asked by the Houston Police Officers Association to be special prosecutor in the case of Zavala and Avila. While he never undertook this task, he apparently had temporary access to official, confidential records concerning the alleged criminal activities of the officers in the Houston Police Department. Greene likewise represents other Houston policemen who have been subpoenaed as witnesses against Avila and Zavala. He also previously represented one Sebastian Mirelez, a convicted felon who is a government witness against Avila and Zavala.
At arraignment in both cases, Judge Seals of the United States District Court for the Southern District of Texas admonished both groups of defendants concerning the hazards of joint representation, and each defendant replied that he wished to retain his present attorney. The government then moved the district court to consider conflicts of interest and possible disqualification of the attorneys. Prior to the commencement of trial, the original indictments, except the two naming only Garcia, were dismissed and new ones were returned. The government thereupon filed a new Motion for Determination of Conflicts of Interest before Judge Hannay.
The government's motion described three circumstances allegedly creating conflicts of interests for these attorneys: (1) representation of co-defendants; (2) Greene's prior representation of Mirelez, now a witness for the government, and (3) multiple and simultaneous representation of defendants and potential prosecution witnesses. Defense counsel and their clients reviewed the government's motion and unanimously determined to oppose it. During the subsequent evidentiary hearing, the government called two witnesses in an effort to establish the attorneys' conflicts of interest, but neither testified conclusively on this point. Affidavits from other Houston policemen indicate that Moore in fact represents potential adverse witnesses in this case. There was conflicting evidence as to whether the other members of the police department whom Greene represents had given testimony before the federal grand jury which was incriminating to either Zavala or Avila. Greene also argued that his former client Mirelez had not been subpoenaed as a government witness. The attorneys requested that the government identify any "other" adverse witnesses the attorneys represented, but the government declined, asserting privilege under Rule 16, Federal Rules of Criminal Procedure.
At the conclusion of the hearing all of the defendants filed affidavits stating that they had carefully reviewed Judge Hannay's admonitions and had fully discussed the pitfalls of dual representation with their retained counsel and "independent counsel." Zavala's statement was typical:
I have discussed these facts in detail with Mr. Greene and other attorneys, and I am fully aware that it is my right to employ other counsel if I wish to. I have read the Government's motions concerning a conflict of interest and have discussed this extensively with Mr. Greene. He has represented me continuously since March 23, 1973, and in my opinion he knows more of the facts and has a better command of the situation than any other attorney would have. To deprive me of his representation would deprive me of effective assistance of counsel, a right guaranteed me by the United States Constitution.
Various other members of the Houston Police Department described as "potential witnesses" who are also represented by the attorneys in question filed similar affidavits.
The district court, apparently determining that the Sixth Amendment guarantees of effective assistance of counsel had not been or could not be waived in these circumstances, ordered the nine defendants to retain other counsel and disqualified Greene, Moore and Hunt from further participation in this case. The court founded its conclusion on a finding that the defendants "do not as laymen fathom or foresee the professional vice and treachery pregnant in the situation at hand." The authority cited in the Memorandum and Order suggest that the district court concentrated principally on the problem of representation of co-defendants rather than simultaneous representation of defendants and potential adverse witnesses. 2
The threshold issue in this case is whether the district court's order disqualifying the attorneys in question constitutes an appealable order. Under the principles articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, 1536, we hold that the disqualification order, although not a "final judgment" in the traditional sense, involves a claim "separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." See also Tomlinson v. Florida Iron and Metal, Inc., 291 F.2d 333 (5th Cir. 1961); Tomlinson v. Poller, 220 F.2d 308 (5th Cir. 1955). Cf. American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971); Uniweld Products, Inc. v. Union Carbide Corp., 385 F.2d 992 (5th Cir. 1967). In this case, deferral of review until after completion of the trial would dissipate judicial resources and possibly jeopardize the defendants' case by prohibiting representation at trial by counsel of their choice.
On appeal, the defendants offer two rationales for reversal. First, they contend, their attorneys' multiple representation does not subject them to conflicts of interest, and second, even if there are conflicts, as determined by the district court, these defendants may waive the right to conflict-free representation. In deciding this case, we need not actually determine whether the multiple representation evident in this case will result in ineffective assistance of counsel. Not only would such a pre-trial ruling on the appellate level be speculative and premature, it is inappropriate in the posture of this case. A finding that the defendants can and did waive their constitutional right to conflict-free representation would obviate the necessity of deciding the merits of their Sixth Amendment issue. While we find that the record presently before us does not permit a determination of whether the defendants...
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