U.S. v. Medel, 77-5783

• Decision Date: 12 April 1979
• Docket Number: No. 77-5783,77-5783
• Citation: 592 F.2d 1305
• Parties: 4 Fed. R. Evid. Serv. 458 UNITED STATES of America, Plaintiff-Appellee, v. Raquel N. MEDEL, and Rogelio M. Medel, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1305

592 F.2d 1305

4 Fed. R. Evid. Serv. 458

UNITED STATES of America, Plaintiff-Appellee, v. Raquel N. MEDEL, and Rogelio M. Medel, Defendants-Appellants.

No. 77-5783.

United States Court of Appeals Fifth Circuit.

April 12, 1979.

Rehearing and Rehearing En Banc Denied May 30, 1979.

Louis M. Jepeway, Jr., Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U.S. Atty., Marsha L. Lyons, Alan L. Weisberg, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellants Rogelio and Raquel Medel, husband and wife, were convicted by a jury of willfully subscribing to false income tax returns for the years 1970 and 1971 (counts I and II of the four-count indictment) and of willfully attempting to evade income taxes due for the years 1972 and 1973 (counts III and IV). 26 U.S.C.A. §§ 7206(1), 7201. On appeal, the Medels raise a number of objections to the proceedings below. They claim that (1) they were deprived of their Sixth Amendment right to effective assistance of counsel because they were represented by one lawyer; (2) the District Court erred in allowing a government agent to testify regarding a statement made by the wife about her husband; (3) the trial court improperly limited the Medels' questioning of certain witnesses; (4) their right to a fair trial was impinged due to prosecutorial misconduct; and (5) there was insufficient evidence to support their convictions. (6) Additionally, the Medels have renewed a motion to unseal the I.R.S. Special Agents' report, only parts of which were previously disclosed following a court order in response to Jencks and Brady demands. We have considered all of the points raised by the Medels and find no reversible error. We affirm.

I. Facts

In 1969, Mr. Medel and David Egozi, M.D., formed a Florida corporation, the Doctor's Latin Center, Inc. The Doctor's Latin Center, a clinic, employed various physicians who treated clinic patients in return for a percentage of the medical fees generated. Other physicians rented office space at the Doctor's Latin Center and would reimburse it for the use of its services, such as x-ray or laboratory work.

Medel and Egozi were the sole shareholders of the corporation, each having a 50% Ownership interest. Medel ran the clinic, with the assistance of Mrs. Medel, who processed insurance claims and handled the Center's billings. Dr. Egozi was not involved in the administration of the clinic.

The government contended that the Medels diverted to their own use funds that should have gone to the Doctor's Latin Center and thereby kept these funds from being reported on the income tax returns of either the Medels or the clinic. To prove its case, the government employed the "specific items" method to trace specific income items that should have gone to the clinic but were instead received by the Medels and unreported on their federal income tax returns. ¹

The defendants claim that they had not intentionally signed false tax returns or evaded their tax obligations. Instead, they argued that they had always acted in good faith, relying on their accountant who had prepared their tax returns. The defendants also attempted to show that the unreported income items were either offset by unreported capital and business losses or were not income at all but merely loan repayments.

The jury did not credit the Medels' story, finding them guilty on all four counts. Mr. Medel was sentenced to serve four concurrent three-month sentences and pay a fine of $2,000 for each violation. Mrs. Medel was fined $500 on each count.

II. Conflict Of Interest

At trial, and indeed on this appeal, the Medels were represented by a single attorney. The Medels now claim that the joint representation at trial was unconstitutional in light of the conflicting interests of the two defendants.

The defendants are quite correct in pointing out that where codefendants' interests are in conflict, the joint representation of codefendants by a single attorney may deprive a codefendant of his Sixth Amendment right to effective assistance of counsel. See e. g., Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (constitutional violation for Court to order attorney to represent codefendants whose interests are in conflict); White v. United States, 5 Cir., 1968, 396 F.2d 822 (constitutional violation for attorney to represent one codefendant who seeks to absolve himself by implicating second codefendant).

Indeed, very recently, both the Supreme Court and this Court have had occasion to emphasize the commitment to the principle of conflict-free representation. In Holloway v. Arkansas, 1978, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, the Supreme Court held that where defense counsel had notified the trial court of a possible conflict, the trial court's failure either to appoint separate counsel or to inquire into the need for separate counsel required an "automatic" reversal of the convictions of three codefendants who had been represented by a single court-appointed attorney. More recently, in United States v. Alvarez, 5 Cir., 1978, 580 F.2d 1251, this Court held that the joint representation by retained counsel of a defendant who had pleaded not guilty and two codefendants who had pleaded guilty and testified for the government at defendant's trial created an impermissible conflict of interest. In reversing the defendant's conviction, the Court stated this Circuit's rule for conflict of interest cases: "We hold today that an accused, whether represented by appointed or retained counsel, is deprived of his Fifth and Sixth Amendment right to effective assistance of counsel, even in the absence of a showing of prejudice, when his attorney operates under an actual conflict of interest." Id. at 1260.

Of course, in each of these cases, the crucial underpinning to the finding of a constitutional violation was the finding of an actual conflict of interest. Thus, in Alvarez, we emphasized that "an actual conflict of interest must always be demonstrated before an accused can establish a denial of effective assistance of counsel . . . ." Id. See also United States v. Fannon, 5 Cir., 1974, 491 F.2d 129, 132, Cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286. In other words, there must be some divergence in the parties' interests. Burston v. Caldwell, 5 Cir., 1975, 506 F.2d 24, 30, Cert. denied, 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480.

The mere fact of joint representation will certainly not show an actual conflict: "Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel." Holloway v. Arkansas, 435 U. S. at 482, 98 S.Ct. at 1178. See also Foxworth v. Wainwright, 5 Cir., 1975, 516 F.2d 1072, 1076 ("Joint representation by appointed counsel does not inherently deprive a defendant of the effective assistance of counsel."); United States v. Fannon, 491 F.2d at 132 ("(A) conflict will not be inferred from the mere fact of joint representation."). Nor can a conflict be established through hypothesis or speculation. United States v. Alvarez, 580 F.2d at 1260. Accord, United States v. Williams, 8 Cir., 1970, 429 F.2d 158, Cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253.

Additionally, where codefendants' statements are largely corroborative, repetitive, or serve the same purpose, there is no conflict. For example, in Burston v. Caldwell, supra, Burston challenged his robbery conviction on the grounds that there was a conflict in the interests of himself and a codefendant, Askew. Basically, Askew's testimony was that Burston only assaulted and did not rob the victim and that she, Askew, had had nothing to do with the assault. Burston contended that Askew's statement, implicating him and exculpating herself, revealed a conflict of interest. This Court found that this testimony would not support a finding of a "divergence of interest" between the two codefendants:

(B)oth defendants exonerated Askew and both were concerned with proving that no money had been taken from the victim. Askew's testimony, exonerating petitioner of a capital offense, was crucial even though it implicated him in a misdemeanor charge. In these circumstances, petitioner has failed to establish that any conflict of interest existed . . . .

506 F.2d at 31.

Similarly, in United States v. Fannon, supra, Reimbold, a codefendant, pleaded guilty and testified against Fannon, describing the occurrences that culminated in the codefendants' arrests. Subsequently, Fannon testified, admitting that the activities described by Reimbold had occurred but seeking to excuse his participation on the grounds that he was coerced by others. On appeal, Fannon contended that because of the conflicting interests of Fannon and Reimbold, their attorney had failed adequately to cross examine Reimbold, with the result that Fannon was deprived of his Sixth Amendment rights. This Court, however, disagreed and held that there was no conflict:

It is . . . clear that appellant (Fannon) has not demonstrated any actual conflict of interest. For once appellant took the stand and admitted the substance of Reimbold's testimony, defense counsel could gain nothing from impeaching Reimbold. Fannon has not alleged that he would not have testified had his attorney attempted to impeach Reimbold. Indeed, in his brief, appellant adheres to his defense of coercion.

491 F.2d at 132.

On the other hand, a conflict will be found when the testimony of one codefendant inculpates another, White v. United States, 396 F.2d at 823-24, or when procedures or tactics are pursued that benefit one codefendant while harming another. Holland v. Henderson, 5 Cir., 1972, 460 F.2d 978; Baker v. Wainwright, 5 Cir., 1970...