U.S. v. Mers

Decision Date21 March 1983
Docket NumberNo. 81-7777,81-7777
Citation701 F.2d 1321
Parties12 Fed. R. Evid. Serv. 1734 UNITED STATES of America, Plaintiff-Appellee, v. Herman MERS, Lester Mers, Randy James Myers, Paul J. Ferrante, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael K. McIntyre, Federal Defender Program, Atlanta, Ga., for herman mers.

Bruce E. Pashley, Atlanta, Ga., for Lester Mers.

Kadish, Davis & Brofman, Mark J. Kadish, Atlanta, Ga., for Myers & Ferrante.

Julie E. Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge.

The four appellants, Herman Mers, Lester Mers, Paul Ferrante and Randy Myers, appeal convictions for conspiracy to possess with intent to distribute marijuana, 21 U.S.C. Secs. 841(a), 846, and aiding and abetting the distribution of marijuana, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Appellants raise divergent issues before this court but only two require serious treatment: whether a single defense attorney's representation of all four appellants at trial violated the right to effective assistance of counsel of Ferrante, Myers and Herman Mers, and whether Herman and Lester Mers were brought to trial within the time required by the Speedy Trial Act.

Their arrest on February 6, 1981 resulted from Herman Mers and his son Lester Mers having undertaken to sell a large quantity of marijuana to undercover DEA agents. Myers and Ferrante acted as armed guards during the planned exchange of the first 2,000 pounds. The Mers pled entrapment, contending that their involvement in the transaction resulted from pressure on Herman Mers by his neighbor, Michael Fiori, who was acting as a government informant. Myers and Ferrante claimed that they knew nothing of the marijuana; they were told that the marijuana-laden truck contained antiques which they were helping to protect merely as a favor to Lester Mers.

In January, 1981, Herman Mers and two undercover DEA agents flew to Atlanta to arrange the purchase. Over the succeeding week the plans were finalized. Between February 2nd and 6th, there were numerous meetings and conversations between the Mers and the DEA agents. Surreptitious tape recording of these conversations were introduced into evidence at trial. The conspirators agreed that Lester Mers would deliver the marijuana to one agent, while his father and another agent would remain at a restaurant. After the transfer of the drugs was completed, the key to the safe deposit box containing the money would be delivered to the Mers.

On February 6, Lester Mers accompanied a DEA agent to obtain the 2,000 pounds of marijuana from Lester's home. After examining the marijuana, which was stored in a truck, the agent told a second agent to drive the truck to New York. Paul Ferrante and Randy Myers were in a car a block away from the Mers' home while the marijuana was being inspected. One of the DEA agents testified that Ferrante and Myers began to follow the marijuana-laden truck. As they drove by and stopped, however, Lester Mers said "don't worry about the marijuana. Follow me. These guys are good for the money." Ferrante and Myers then followed Lester Mers and the agent to the restaurant where Herman Mers was waiting. As the party left the restaurant for the place where the money was actually to be exchanged, all four appellants were arrested. Myers was armed with a Luger pistol and a .38 caliber handgun, Ferrante was carrying a .357 magnum and agents found a .30 caliber rifle in the back seat of the car.

(1)

Joint Representation of Multiple Defendants

Bruce Pashley, an Atlanta criminal defense attorney, represented all four defendants from their arrest until the end of their trial. Appellants contend that Pashley's multiple representation created an actual conflict of interest which was not sufficiently exposed due to the district court's failure to conduct an adequate hearing under the criteria of Fed.R.Crim.P. 44(c) and United States v. Garcia, 517 F.2d 272 (5th Cir.1975). We hold that although the district court erred in failing to conduct an adequate hearing on the conflict of interest issue, that error was harmless because no actual conflict of interest existed in this case.

We agree with appellants that the district court's failure to make full inquiry concerning the conflict issue violated rule 44(c) and Garcia. Rule 44(c) provides that whenever two or more criminal defendants who have been jointly charged are represented by the same counsel, the court "shall personally advise each defendant of his rights to the effective assistance of counsel, including separate representation." Garcia articulated the standard for determining whether a defendant has voluntarily waived his right to conflict-free counsel. In Garcia, defendants in a federal criminal proceeding selected counsel to represent them. The trial court refused to allow the retained attorneys to serve as counsel because of a conflict of interest. In holding that defendants have the privilege of waiving their constitutional right to conflict-free counsel, the fifth circuit remanded the case for a hearing to ascertain whether the defendants had knowingly and voluntarily waived their sixth amendment protections.

The court detailed the procedures to be followed in making this determination, stating that district courts should adhere to a procedure similar to that promulgated in Fed.R.Crim.P. 11. 517 F.2d at 278. The court should address each defendant individually and advise him of the potential dangers of joint representation. The defendants must have the opportunity to question the court about the nature and consequences of their legal representation. "Most importantly, the district court should obtain a response from each defendant indicating that he has been advised of his right to effective representation, that he understands the details of the attorney's possible conflict of interest and the potential perils of such a conflict and that he voluntarily waives his Sixth Amendment protections." Id. at 278.

The district court was aware of attorney Pashley's potential conflict of interest. During the second day of trial, when the government's counsel learned that Pashley intended to raise the defense of entrapment on behalf of Herman and Lester Mers, he requested that the court conduct a Garcia hearing. The court asked Pashley whether he had discussed the matter with his clients. Pashley answered that he had not discussed it in the context of a conflict problem, since he saw no conflict. The district judge then described to the defendants the nature of the entrapment defense, after which she recessed the proceedings so that Ferrante and Myers, who were not asserting the defense of entrapment, could confer with Pashley.

Following the recess, Pashley advised the court that he had discussed the matter with his clients and invited the court to proceed with its inquiry. The judge then personally addressed Myers and Ferrante and determined that each felt that he had received an adequate explanation of his position relative to the entrapment defense advanced by the Mers. During this colloquy, Pashley noted that he was asserting an entrapment defense only with regard to the Mers and that his defense with regard to Ferrante and Myers was that they were simply doing a friend a favor, that they had conspired with no one and that they were guilty of nothing. The court then asked Myers:

THE COURT: ... To the extent there is any conflict between your position and that of Mr. Lester Mers and Mr. Herman Mers, do you waive your rights in connection with any such conflict?

MR. MYERS: I don't see any conflict, no, I don't.

THE COURT: If there is a conflict, do you consent to Mr. Pashley representing you as well as Lester and Herman Mers?

MR. MYERS: At this time, I do.

THE COURT: All right, and do you have any objection to Mr. Pashley raising the entrapment defense as he indicated he would?

MR. MYERS: No, Your Honor.

An almost identical line of inquiry was made of Ferrante. In a post trial order disposing of defendants' request for judgment NOV or a new trial, the court observed that "[d]efendants are correct that the inquiry undertaken by the Court at the request of the Government and despite defense counsel's position to the contrary, with regard to trial counsel's potential conflict of interest, did not meet the requirements of United States v. Garcia ...." In a later evidentiary hearing the judge admitted that "the admonition the Court gave to the defendants was not specific enough because it did not detail to the defendants exactly the nature of the conflict."

Thus, neither the probing inquiry mandated by rule 44(c) nor that required by Garcia was satisfied in this case. The district court did not specifically advise defendants of their right to separate representation, as required by rule 44(c). The district judge candidly admitted failing to comply with Garcia. But although her inquiry constituted error under Garcia and rule 44(c), that error will not require reversal unless Pashley's representation of these multiple defendants did in fact constitute an actual conflict of interest.

Although joint representation of multiple criminal defendants creates a danger of counsel conflict of interest, the "mere fact of joint representation will certainly not show an actual conflict." United States v. Medel, 592 F.2d 1305, 1310 (5th Cir.1979). Accord Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177-78, 55 L.Ed.2d 426 (1978); United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981); Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975). Further, failure to comply with Garcia will not mandate reversal absent an actual conflict of interest. In United States v....

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