U.S. v. Mari, 318

• Decision Date: 25 November 1975
• Docket Number: D,No. 318,318
• Parties: UNITED STATES of America, Appellee, v. Richard MARI, Defendant-Appellant. ocket 75--2048.
• Court: U.S. Court of Appeals — Second Circuit

Page 117

526 F.2d 117

UNITED STATES of America, Appellee, v. Richard MARI, Defendant-Appellant.

No. 318, Docket 75--2048.

United States Court of Appeals Second Circuit.

Argued Oct. 29, 1975.

Decided Nov. 25, 1975.

Richard R. Romero, Dept. of Justice, Washington, D.C. (David G. Trager, U.S. Atty., E.D.N.Y., and Peter M. Shannon, Jr., Dept. of Justice, Washington, D.C., of counsel), for appellee.

Patrick F. Broderick, Bayside, N.Y., for defendant-appellant.

Before MULLIGAN, OAKES and MESKILL, Circuit Judges.

MULLIGAN, Circuit Judge:

On August 22, 1973 a seven-count indictment was filed in the Eastern District of New York charging appellant Richard Mari and his co-defendant William James MacQueen with extortionate extension of credit. Count I charged both defendants with a conspiracy to use extortionate means to collect and attempt to collect an extension of credit to one Joseph Freno, Jr., in violation of 18 U.S.C. § 894; Count II charged Mari alone with an extortionate extension of credit to Freno, in violation of 18 U.S.C. § 892; Count III charged both defendants with threatening Freno in order to collect from him; Counts IV and VI charged Mari alone with threatening Freno on two separate occasions; Count V alleged that both defendants used violence and other criminal means to cause harm to Freno; and Count VII accused MacQueen alone of threatening Freno. It further appears from the indictment that Mari made the initial loan to Freno, but then advised Freno that MacQueen had 'purchased' the debt from Mari, so that Freno had to repay MacQueen, at an extortionate rate.

At all times throughout the proceedings both defendants were represented by the same attorney, Kenneth Salaway, Esq. On January 18, 1974, both defendants appeared before Hon. John R. Bartels, United States District Judge, to request withdrawal of their not-guilty pleas and entry of guilty pleas. At that time the court pointed out the possibility of a conflict of interest because of the joint representation, and asked both defendants and attorney Salaway if they understood the possibility of a problem. All three replied in the affirmative. Salaway then represented that there was in fact no conflict between his clients.

On January 25, 1974, both defendants appeared again before Judge Bartels to enter their pleas. Specifically, Mari pleaded guilty to Count II of the indictment, which charged him alone with an extortionate extension of credit to Freno. An examination of the transcript of that hearing makes it clear that, in response to questions from the court, Mari claimed that he understood the nature of the charge against him, his right to proceed to trial if he wished, and the consequences of his guilty plea. In short, there was a meticulous examination of Mari by the court to determine the voluntariness of his plea as well as the factual basis therefor.

At the same hearing defendant MacQueen also pleaded guilty, to a two-count superseding information. MacQueen's comments indicate that he was trying to exculpate Mari by taking all the blame on himself. He concluded by saying:

I made all the threats. He just introduced me to Freno.

The Court: But Mr. Mari just told me he was guilty of the threats.

Defendant MacQueen: Well, through me. I told him what to say. I said 'Just tell Mr. Freno or his son'--

The Court: Both or either of you threatened to use violence against Freno?

Defendant MacQueen: Me.

The Court: How about him?

Defendant MacQueen: No--well, I told him to say it but he never did it himself.

On April 5, 1974 Judge Bartels sentenced Mari to four months of imprisonment and two years eight months of probation; the period of incarceration has been served. All remaining counts against Mari were dropped. MacQueen on his guilty plea was given eighteen months' probation.

In November 1974, after his period of imprisonment, Mari instituted the instant action to vacate his conviction, pursuant to 28 U.S.C. § 2255, on the ground that his guilty plea was involuntary and that he was denied effective assistance of counsel, because it was improper for both defendants to have been represented by the same attorney. Judge Bartels held a hearing, at which Mari testified that attorney Salaway had never discussed a possible conflict of interest with him, and that in fact he was innocent of the charge to which he pleaded guilty and had not understood his plea. Salaway testified that, while he could not recall the specific conversation with Mari, he was sure that the topic of a potential conflict of interest had arisen. After the hearing Judge Bartels denied the motion, leading to the instant appeal.

From our examination of the plea hearings there seems to be no question of the voluntariness of Mari's plea, which means that there may well have been a waiver by him of the issue of joint representation. ¹ However, in any event that issue is without merit. It is settled in this Circuit that 'some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel.' United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970) (citations omitted). ² Here there is no showing of such prejudice. There appears to be no real conflict between Mari and his co-defendant MacQueen. Both, of course, pleaded guilty. It is true that, at the hearing on the guilty plea, MacQueen attempted to take the brunt of the guilt on himself and to exculpate Mari, but the latter himself still pleaded guilty voluntarily and after being fully informed of the consequences.

It is difficult to see how Salaway had any conflict of interest problem in recommending that Mari plead guilty. The record indicates that he thought that both of his clients would be convicted on trial. There was no reason for Salaway to sacrifice Mari by letting him plead guilty just because MacQueen was willing and obviously anxious to do so. Had both gone on trial and had MacQueen continued to take this position there might have been prejudice to him arising from Salaway's joint representation of both, see United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973). In any event DeBerry only requires that the trial judge conduct a careful inquiry, including a personal interrogation of the defendants, to satisfy himself that no conflict exists and that the parties had no valid objection to joint representation. That inquiry was made here. Judge Bartels's personal interrogation was thorough and complete. He had the opportunity on two occasions to observe the demeanor and gauge the credibility of Mari as well as MacQueen. While Mari now tries to vacate his plea on the ground that it was involuntary and that in fact he always expected to go to trial, we cannot disregard Judge Bartels's refusal to credit Mari's credibility.

Affirmed.

OAKES, Circuit Judge (concurring):

It is true that the cases in our circuit have to date required a specific showing of prejudice or a real conflict of interest resulting from joint representation of codefendants by one attorney before Sixth Amendment rights may be said to have been invaded. United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970); see United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973). Under this test, which as the law of the circuit each judge is bound to follow, I am required to concur here, for the reasons well stated in Judge Mulligan's opinion. See also Dukes v. Warden, 406 U.S. 250, 256, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972).

The time is rapidly approaching, however, when, in the light of more exacting standards of the Bar and the decisions of other leading courts, we may have to reexamine our rule. The American Bar Association now takes the view, albeit with not altogether crystalline clarity, that

Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.

ABA Standards Relating to the Prosecution Function and the Defense Function § 3.5 (Approved Draft 1971) at 211, 213. See also P. Wilson, Pattern Rules of Court and Code Provisions (prepared for the Committee on Implementation of Standards for the Administration of Criminal Justice of the Section of Criminal Justice of the ABA, 1975) at 38--39.

The District of Columbia Circuit has a rule of automatic appointment of separate counsel initially under the Criminal Justice Act, 18 U.S.C. § 3006A. See Ford v. United States, 126 U.S.App.D.C. 346, 379 F.2d 123, 126 (1967); Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967). The First Circuit as an exercise of its supervisory power requires the trial court to comment on the risks inherent in dual representation, and to inquire as to each defendant's discussion of the risks with counsel, and...