U.S. v. Lawriw

• Decision Date: 30 December 1977
• Docket Number: No. 77-1409,77-1409
• Citation: 568 F.2d 98
• Parties: UNITED STATES of America, Appellee, v. Anna Erna LAWRIW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 98

568 F.2d 98

UNITED STATES of America, Appellee, v. Anna Erna LAWRIW, Appellant.

No. 77-1409.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 31, 1977.

Decided Dec. 30, 1977.

Marc G. Kurzman, St. Paul, Minn., argued and on brief, for appellant.

John M. Lee, Asst. U. S. Atty. (argued), and Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on brief, for appellee.

Before GIBSON, Chief Judge, HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Once again we are called upon to review a post-conviction claim that a defendant in a criminal trial, jointly represented with a codefendant by a single attorney, was denied effective assistance of counsel. Consistent with our earlier decisions in which we have identified the pitfalls of this practice, we announce today an affirmative duty of inquiry by the district court. Such an inquiry was conducted by the District Court ¹ in the case now before us on appeal, and we are satisfied that it accomplished the purposes to be served by such inquiry and that appellant did, as the District Court found, knowingly and intelligently waive her right to separate counsel. Since this is the only issue before us, we affirm the District Court's denial of post-conviction relief.

I.

Appellant Anna Lawriw was convicted in a joint trial with Terrance Richard Noto of unlawful possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ² The case was tried to the District Court without a jury on stipulated facts. The purpose of this procedure was to preserve for appellate review the denial of a pretrial motion to suppress evidence seized following a warrantless search of the motel where Lawriw and Noto were staying at the time of their arrest. On appeal we rejected the search and seizure contention and affirmed the conviction in an unpublished opinion. United States v. Noto, 558 F.2d 1035 (8th Cir. 1977). Thereafter, Lawriw filed a motion for a new trial on the ground of newly discovered evidence, see Fed.R.Crim.P. 33, contending that she had an independent defense that she was precluded from raising by reason of the dual representation, and hence was denied her Sixth Amendment right to effective assistance of counsel. Following a hearing, the District Court held that there was no conflict of interest making the assistance of counsel ineffective, and if there was, that Lawriw had waived this right. Her motion was denied, and this appeal followed.

Appellant's arrest occurred on April 8, 1976, when federal drug agents entered the motel room occupied by Lawriw and Noto in Hennepin County, Minnesota, and seized approximately one pound of cocaine in a flight bag also containing both male and female toiletries and a prescription vial in the name of Lawriw. As revealed by the stipulation of facts, Lawriw was seated on a bed, adjacent to which was a suitcase containing $5,700 in cash. $3100 of that amount was money paid the previous evening by federal agents to obtain two ounces of cocaine from associates of Lawriw. Documentation and correspondence, all addressed to Lawriw, were also found in the suitcase.

In this appeal appellant contends that dual representation at her joint trial deprived her of the opportunity to assert that she lacked knowledge of the presence of the cocaine in the room, and hence she could not have been guilty of possession with intent to distribute.

At the commencement of the trial the District Court and defense counsel questioned both defendants regarding their awareness of the possibility of conflict, and the record reveals that both defendants had discussed this possibility with their retained counsel and still desired him to represent them jointly. In their presence, and without challenge, their attorney, Joseph S. Friedberg, represented to the Court that he had discussed the possibility that one defendant might seek to place the blame on the other and that neither party wanted to do this.

The point presented on this appeal first surfaced when the District Court asked appellant to read the stipulation of facts into the record. When appellant appeared to be taking issue with some of the stipulated facts during the reading, the District Court ordered her placed under oath and examined her as to the facts stipulated.

The following colloquy is illustrative. Appellant had questioned the stipulation that there was a pound of cocaine in the room. The court examined her on this point.

(COURT:) Was there a pound of cocaine in that room before the agents came in there?

A. I didn't know that there was a pound of cocaine in the room before the agents came in.

THE COURT: All right. Then that ends this. We will now get ready for the trial of the case.

MR. FRIEDBERG: Your Honor, may I ask one more question?

THE COURT: Well go ahead.

BY MR. FRIEDBERG:

Q. Did you know there was cocaine in that room?

A. I knew there was cocaine in the room.

Q. You didn't know exactly

A. I didn't know how much cocaine was in the room.

MR. FRIEDBERG: I think what she is saying, she didn't know that it was exactly a pound, Your Honor.

The District Court properly concluded from this and other testimony that appellant did in fact know that there was cocaine in the room but was unsure of the exact amount. At the post-conviction hearing on her motion for a new trial appellant testified that she only had knowledge of a small amount of cocaine, less than one gram, which she alleged was on a table in the room when the police entered. Read in the light of the whole record we find this after-the-fact assertion to be peculiarly unconvincing, and the District Court did not err in rejecting it. ³ We likewise hold on the whole record that the District Court correctly held that appellant made a knowing and intelligent waiver of her right to be represented separately and to present her independent defense. We are able to reach this conclusion because the experienced trial judge conducted a sufficient inquiry in advance of trial to assure that there was no possibility of conflict in the dual representation which appellant did not choose knowingly and intelligently to waive.

II.

It has become increasingly apparent that dual representation is fraught with risk of conflict and should be approached with caution by the parties and by counsel. Recognizing this, we have said in this Circuit that responsibility for avoiding such risks lies heavily both with the trial court, see United States v. Williams, 429 F.2d 158, 161 (8th Cir.), cert. denied,400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970), and with counsel, United States v. Valenzuela, 521 F.2d 414, 416 n.1 (8th Cir. 1975), cert. denied,424 U.S. 916, 96 S.Ct. 1117, 47 L.Ed.2d 321 (1976). ⁴ In Williams we held that such an inquiry was required of the trial court in cases involving appointed counsel. For reasons that will appear below we think this rule applies equally to retained counsel. Cf. United States v. Valenzuela, supra,521 F.2d at 416 (applying same standard of prejudice to retained counsel).

In Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), a case in which the trial court had appointed the associate counsel of one defendant to be counsel for another, the Supreme Court stated:

(T)he "Assistance of Counsel" guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer simultaneously represent conflicting interests.

The Sixth Amendment right to effective assistance of counsel contemplates the assistance of a counsel free from conflicts of interest, and able to render independent judgment on behalf of his client. See, e. g., United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973).

We have recognized in earlier decisions that dual representation of codefendants is not per se violative of the Sixth Amendment right. See, e. g., United States v. Williams, supra, 429 F.2d at 160. We have required a showing of an actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest before reversal is commanded on this ground alone. United States v. Valenzuela, supra, 521 F.2d at 416; United States v. Irons, 475 F.2d 40, 43 (8th Cir.), cert. denied, 412 U.S. 951, 93 S.Ct. 3020, 37 L.Ed.2d 1004 (1973); United States v. Williams, supra, 429 F.2d at 161.

On the other hand we have not hesitated to hold that a defendant was denied effective assistance of counsel when dual representation precluded him from asserting an independent defense. See, e. g., Robinson v. Parratt, 546 F.2d 764 (8th Cir. 1976), aff'g 421 F.Supp. 664 (D.Neb.1976). In that case the defenses of two jointly represented defendants had become antagonistic to each other because the alibi defense of one of them had fallen through and the dual representation precluded the other from asserting that the crime had been committed by his codefendant before he arrived on the scene. We rejected as inadequate the defense counsel's eleventh hour request for severance as a satisfactory alternative. In another case, we upheld a conviction on the basis that a waiver had occurred, but we criticized the joint representation of two accountants in an income tax case in which one defendant testified that the negligence of his codefendant was part of the reason he failed to file his return. United States v. Swanson, 509 F.2d 1205, 1210 n.7 (8th Cir. 1975).

Indeed, the Minnesota Supreme Court has recently identified a number of significant areas in which dual representation has presented additional burdens to the defense: "the possibility of inconsistent pleas, factually inconsistent alibis, conflicts in testimony, differences in degree of involvement in the crime, tactical admission of evidence, the calling and cross-examination and impeachment of witnesses, (and) strategy in final summation." State v. Olsen, 258 N.W.2d 898, at 905 (Minn.Sup.Ct. Oct. 7, 1977) (footnotes omitted). While the...