U.S. v. Krebs

• Decision Date: 06 June 1986
• Docket Number: Nos. 83-1098,83-1099,s. 83-1098
• Citation: 788 F.2d 1166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ryan KREBS (83-1098), Bernard Levine (83-1099), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1166

788 F.2d 1166

UNITED STATES of America, Plaintiff-Appellee, v. Ryan KREBS (83-1098), Bernard Levine (83-1099), Defendants-Appellants.

Nos. 83-1098, 83-1099.

United States Court of Appeals Sixth Circuit.

Argued Nov. 12, 1985.

Decided April 18, 1986.

Rehearing and Rehearing En Banc Denied June 6, 1986.

James E. Howarth (argued), Southfield, Mich., Jill Price, Detroit, Mich., for defendant-appellant in No. 83-1099.

Robert D. Luskin (argued), Onek, Klein and Farr, Washington, D.C. (Court-appointed), for defendant-appellant in No. 83-1098.

Joel M. Shere, U.S. Atty., Detroit, Mich., Ellen Dennis (argued), for plaintiff-appellee.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This case involves a large-scale drug trafficking operation conceived and led by Nellie Bell Kassim. In the spring of 1980, Kassim developed a plan to conceal the illegal sale of prescription drugs behind a facade of apparent legitimacy. Kassim operated a succession of medical clinics specializing in the treatment of obesity, but the principal function of these clinics was to conceal several illegal drug activities. Included were the sale of individual prescriptions to clinic "patients" for their own use or for resale, the bulk sale of prescriptions for controlled substances to Detroit-area drug dealers, and the sale in Washington, D.C. and Detroit of large quantities of the controlled substances themselves, obtained through phony prescriptions.

On April 28, 1982, Ryan Krebs, a licensed medical doctor, and Bernard Levine, a licensed and registered pharmacist, and twenty-seven others were indicted by a federal grand jury in the Eastern District of Michigan and charged with distribution and intent to distribute numerous controlled substances in violation of 21 U.S.C. Secs. 841 and 846. Nellie Bell Kassim was also charged in a second count with conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Twelve defendants, including Kassim, entered a guilty plea prior to trial. Other defendants were dismissed. Ten defendants went to trial. The jury convicted four of the defendants, including Krebs and Levine, of the conspiracy. A mistrial was granted to one defendant. Five defendants were acquitted, three by the court and two by the jury. As to each convicted defendant, the jury entered a special verdict listing the specific drugs which that defendant had conspired to distribute and to possess with intent to distribute. Only Krebs and Levine appeal their convictions.

The primary issue raised by Krebs on appeal is whether his Sixth Amendment rights were violated because his counsel, Kenneth Robinson, had an actual conflict of interest which deprived Krebs of his right to effective assistance of counsel. Levine argues that he was prejudiced by the denial of his motion to sever and that severe prosecutorial misconduct deprived him of a fair trial. Prior to the indictment of the defendants in this case, Robinson had represented Kassim and had successfully represented Kassim's sister, Nancy McInnis, on drug distribution charges in Washington, D.C. in April 1981. McInnis had been arrested at National Airport with 9,000 Preludin tablets in her possession. According to the Washington, D.C. Metropolitan Police report, McInnis testified at her bond review hearing that she was "taking 10,000 Preludin tablets to the law offices of Kenny Robinson. She said that she was going to meet her sister, Nellie Bell [Kassim], at that location, and that she was going to turn the drugs over to Bell." Kassim testified as a defense witness at the McInnis trial.

Robinson represented Kassim during the conspiracy and for a brief time after her indictment in this action. After Robinson withdrew from representation of Kassim, he was retained by Krebs. Prior to trial of this case, the court ordered the government to file a memorandum listing all the conflicts of interest of which it was aware. In its memorandum of law regarding actual or potential conflicts of interest, the government noted that Robinson had previously represented Kassim. The government stated:

Since Nellie Bell Kassim and Ryan Krebs, M.D. may have conflicting interests, and Kenneth Robinson may have confidential information from Nellie Bell Kassim and from Ryan Krebs, M.D., there is a potential conflict of interest with respect to both Nellie Bell Kassim and Ryan Krebs, M.D.

Additionally, Kenneth Robinson represented Nellie Bell Kassim's sister, Nancy McInnis, in a trial conducted during April, 1981, in Virginia. In that case, Ms. McInnis was charged with possession with intent to distribute 9,000 Preludin (75 mg.). That allegation is now alleged as Overt Act # 33 of this conspiracy. Ms. McInnis is clearly a potential trial witness. Kenneth Robinson may have been given confidential information by Ms. McInnis as well as by Ryan Krebs, M.D. and Nellie Bell Kassim. His loyalties may be divided among Nellie Bell Kassim, Nancy McInnis, and Ryan Krebs, M.D.

Robinson filed an affidavit in which he stated that "based on the facts presented thus far by Ms. Kassim and Dr. Krebs there is no real or potential conflict. Neither person has ever admitted their guilt in this case or has implicated the other by statement or inference to counsel." Kassim and Krebs filed a joint affidavit. Krebs stated:

I, RYAN KREBS, M.D., have read the above, know that Mr. Robinson previously knew Ms. Bell and others prior to knowing me and that any representation he previously had is waived as a conflict for any trial or appeal. I agree in the event that a court determines that Mr. Robinson has in fact previously represented Ms. Bell, then I still prefer and desire his representation in the instant case, I waive any conceivable--actual or potential--conflict.

On June 24, 1982, a hearing was held on the conflict issue. Robinson represented that he had discussed the potential conflict of interests issue with Kassim, Krebs and Kreb's wife, "not just whether there is a potential conflict but if in fact if one would crop up later on they can't raise on appeal or at trial...." The government adopted the position that because Robinson had previously represented Kassim and McInnis, he might not vigorously cross-examine them because of prior loyalties. The court addressed Krebs:

THE COURT: Dr. Krebs, have you heard all that has been said?

DR. KREBS: Yes, I have.

THE COURT: Are you aware that the 6th amendment of the United States Constitution guarantees you and every defendant in a criminal case the right to be represented by fully effective and fully loyal and conflict free Counsel?

DR. KREBS: I am aware of that.

THE COURT: Are you aware that if you cannot afford Counsel this Court will appoint Counsel for you?

DR. KREBS: Yes, I am.

THE COURT: And that you have a right to such appointment or a right to represent yourself if you see fit?

DR. KREBS: Yes, I have.

THE COURT: Are you aware of the maximum possible penalties that I have just described for the crime which you are accused, that is 15 years incarceration and 25 thousand dollars fine, as well as a three year special parole term and double penalty if there's is [sic] a prior drug conviction in your past?

DR. KREBS: I'm aware of that.

THE COURT: You have heard all of the allegations of the Government and your Counsel's responses thereto?

DR. KREBS: Yes.

THE COURT: And if there is potential conflict of interest in your Counsel, do you at this time waive the effective representation which he would have given you as a subject of appeal?

DR. KREBS: Yes, I do. I wish to retain Mr. Robinson.

THE COURT: And you realize that we can't know now what possible conflicts could develop in the course of the trial, particularly involving large numbers of people?

DR. KREBS: Yes, I do.

THE COURT: But you cannot raise this as an appeal--ineffective representation of Counsel on appeal.

DR. KREBS: I'm aware of it.

THE COURT: All right then.

The court also investigated the possibility of a conflict of interest arising from the representation by attorney Robert Cohn of five of the defendants. Cohn was himself a target of the investigation in this case. The court disqualified Cohn on the basis of an actual conflict of interest between and among the defendants represented by Cohn as well as between Cohn and the defendants. The court allowed Krebs to retain Robinson as his attorney.

Shortly after the June 24 conflicts of interest hearing, Kassim agreed to plead guilty and to testify for the government against the other defendants. The government did not inform defendants' counsel of this arrangement. The FBI conducted several "debriefing sessions" with Kassim; for some of the sessions FBI reports were prepared, but for other sessions they were not. Before trial Kassim made three significant allegations to the FBI involving Robinson. First, she alleged that Robinson had assured her that Daniel Lebby was not an undercover agent when Lebby had sought to become a bulk prescription buyer. FBI agents then interviewed Lebby. Secondly, in relation to the McInnis trial, Kassim stated at trial that she had told the FBI that Robinson had been aware that Kassim was bringing drugs to Washington and he had suggested ways to avoid being caught. Finally, Kassim alleged that Robinson had encouraged her to commit perjury at the McInnis trial.

On July 7, 1982, the court ordered the government to provide Jencks Act ¹ materials to defense counsel no later than five days prior to trial. The court set August 9, 1982 as the motion cut-off date. On July 8, the court ordered the government to disclose all Brady material within fifteen days. The government released the Jencks Act material on September 8, 1982. On September 16, 1982, the day before trial began, Levine moved to sever under Fed.R.Crim.P. 14 based on the following allegations:

1) That the government failed to make timely disclosure of the fact that Kassim had...