U.S. v. Martorano

• Decision Date: 10 January 1980
• Docket Number: No. 78-1445,78-1445
• Citation: 610 F.2d 36
• Parties: UNITED STATES of America, Appellee, v. James MARTORANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 36

610 F.2d 36

UNITED STATES of America, Appellee, v. James MARTORANO, Defendant-Appellant.

No. 78-1445.

United States Court of Appeals First Circuit.

Argued March 15, 1979.

Decided Dec. 6, 1979.

Rehearing En Banc Granted and Opinion Vacated Jan. 10, 1980.

Richard J. Vita, Boston, Mass., for defendant-appellant.

Wade Livingston, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., and Joseph S. Davies, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

BOWNES, Circuit Judge.

In this appeal from the denial of his motion for a new trial, appellant seeks reversal of his extortion conviction on grounds of ineffective assistance of counsel due to joint representation.

Appellant and Brian Halloran were tried together on four counts of extortion in June 1976. The jury acquitted Halloran, but found appellant guilty on all counts. We affirmed appellant's conviction and denied his petition for rehearing. United States v. Martorano, 557 F.2d 1 (1st Cir.), Rehearing denied, # 76-1372 (1st Cir. May 23, 1977) (unpub.) And 561 F.2d 406 (1st Cir. 1977), Cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978).

In February 1978, appellant moved for a new trial on grounds of newly discovered evidence. Because final judgment had been entered more than one year before the motion was filed, a motion for new trial on any other grounds would have been untimely. See Fed.R.Crim.P. 33. Appellant's "newly discovered evidence" was that he had been prejudiced at trial because he and Halloran had been jointly represented by members of the same law firm. This "evidence" was said to be "newly discovered" because appellant did not learn of the prejudice until he obtained new (his present) counsel, which was after his appeal and petition for rehearing had been decided.

The district court held an evidentiary hearing on appellant's motion for a new trial, at which appellant and all counsel involved in his trial testified. In its opinion and order on the motion, the court ruled, as a threshold matter, that it was treating the motion as one to vacate a sentence under 28 U.S.C. § 2255, on the ground that the issue of ineffective assistance due to joint representation does not constitute "newly discovered evidence" within the meaning of Rule 33. As to the merits of the motion, the court found that, prior to his trial, appellant had knowingly waived his sixth amendment right to separate counsel. Because, however, the trial judge had not complied with United States v. Foster, 469 F.2d 1, 4-5 (1st

Cir. 1972), by personally addressing appellant concerning his waiver, the district court, in ruling on the motion for a new trial, believed it was necessary to reach the issue whether appellant had been prejudiced by his joint representation and to place the burden of proof on this issue on the government. After reviewing the evidence bearing on the issue of prejudice, the district court ruled that appellant had not been harmed by the fact he had shared trial counsel with Halloran. Accordingly, the court denied appellant's motion for a new trial. United States v. Martorano, 457 F.Supp. 803, 810 (D.Mass.1978). This timely appeal followed.

WAIVER

Appellee argues that since the district court's finding of a knowing and voluntary waiver is supported by the record, we should affirm the denial of the new-trial motion on that ground and not reach the issue of prejudice. Appellant contends that the district court's finding of waiver is erroneous and that, in any event, the issue of prejudice must be reached because the trial judge failed to comply with its duty of inquiry under Foster. We agree with the latter portion of appellant's argument.

The right to separate counsel, guaranteed by the sixth amendment, is waivable in recognition of the fact that occasionally joint representation can be appropriate or even advantageous to multiple defendants. United States v. Waldman, 579 F.2d 649, 651 (1st Cir. 1978). An understanding, or even an awareness, of the risks inherent in joint representation, however, is not a part of the basic knowledge of the average layperson. For this reason, and because waiver of any constitutional right is a serious matter, courts bear a special responsibility in evaluating a criminal defendant's purported waiver of his sixth amendment right to separate counsel. Id. In view of this responsibility, in Foster we devised a rule under our supervisory powers for district courts to adhere to in evaluating such waivers. The district court's "duty of inquiry" under Foster requires a trial court to comment, "as early in the litigation as practicable," on some of the risks indigenous to joint representation and to "inquire diligently" of jointly-represented defendants whether they have discussed these risks with counsel and whether they are aware of their rights to separate (and, if indigent, court-appointed) counsel. ¹ 469 F.2d at 5.

It is undisputed that the trial court failed to address appellant about the waiver which appellant filed with the court. The trial court first learned that appellant and Halloran were being represented by two members (Oteri and Weinberg) of the same firm at Halloran's arraignment, which was held several days after appellant's. Upon learning of the joint representation, the magistrate, in recognition of his duty under Foster, questioned Halloran about possible conflicts of interest. He then instructed attorney Weinberg, who had accompanied Halloran, to inform Halloran and appellant about their right to separate counsel and, if either defendant wished to waive that right, to have him send a letter of waiver to the court. Appellant was not present at Halloran's arraignment and at no other time during the course of the trial did the magistrate or the trial judge speak to him about his joint representation.

The district court found, however, upon the basis of the evidence presented at the hearing on the motion for a new trial, that appellant did in fact voluntarily and knowingly Conflicting evidence was presented at the hearing concerning whether Weinberg ever explained the meaning of the letters to appellant. The district court found that Weinberg did discuss the contents of the letters with appellant and ruled, on the basis of the letters and this discussion, that appellant's letter to the magistrate constituted a knowing and voluntary waiver of appellant's right to conflict-free counsel. Appellee argues that this finding is supported by the record, so there is no need for us to reach the issue of prejudice even though the trial court failed to comply with Foster.

waive his right to separate counsel before he was tried. The evidence upon which the court's finding was based is the following. Shortly after Halloran's arraignment, appellant was called to the office of Oteri and Weinberg. There, Weinberg gave him two letters which Weinberg had drafted, one purporting to be from Oteri to Martorano (advising Martorano of the magistrate's instructions to counsel) and the other from Martorano to the magistrate (stating that appellant was aware of his right to separate counsel and of the risks of joint representation, but that he still wished to retain his present counsel). Appellant was given a few minutes to read these letters, he then signed them, and later Weinberg had the letter to the magistrate filed with the court.

The short answer to appellee's argument is that rarely, if ever, will we consider a waiver adequate when the trial court has not met its duty of inquiry under Foster (and where applicable, Donahue, see note 1 Infra ), United States v. Lawriw, 568 F.2d 98, 105 (8th Cir. 1977), Cert. denied 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978) (dictum); Cf. Waldman, supra, 579 F.2d at 651-53 & n.6, and this case does not constitute such a rarity. The purpose of the Foster rule is to ensure that there is an on-the-record exchange between the trial court and defendant from which it can readily be inferred that the waiver was voluntary and knowing. In the absence of such an exchange, it is doubtful that the evidence of a valid waiver would ever be so unambiguous that, "indulg(ing) (in) every reasonable presumption" against a finding of waiver, Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we could still affirm a district court's pro-waiver finding.

Here, the evidence that appellant's waiver was voluntary and knowing was certainly not unambiguous. The letters which Martorano signed stated that he had been informed of the risks of sharing trial counsel and of his right to separate counsel. These letters, however, do not constitute strong evidence that he understood the dangers involved because they only stated that appellant was "aware" of the "risks" and did not describe any risks. ² Appellant testified,

as did attorneys Oteri and Weinberg, that he never did discuss the contents of the letters with his attorneys. Counsel believed that there were no conflicts of interest between Halloran and appellant. Thus, they viewed the preparation of the letters as a mere technicality to ensure, in view of the magistrate's instructions, their continued representation of appellant and Halloran. Appellant testified that, given this attitude of counsel towards the letters, he felt no need to satisfy himself as to their meaning before signing them. Due to this conflicting evidence concerning the validity of appellant's waiver, the district court was correct in proceeding to consider the issue of prejudice and in placing the burden of proof on appellee. ³

PREJUDICE

Citing to Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), appellant argues that, when a jointly-represented defendant has not voluntarily and knowingly waived his right to separate counsel, we should find prejudice as a matter of course....