U.S. v. Partin, 77-3853

• Decision Date: 07 May 1979
• Docket Number: No. 77-3853,77-3853
• Citation: 601 F.2d 1000
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1000

601 F.2d 1000

UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant.

No. 77-3853.

United States Court of Appeals Ninth Circuit.

May 7, 1979.

Rehearing Denied Aug. 27, 1979.

Kevin J. McInerney, San Diego, Cal., for defendant-appellant.

Stephen A. Mayo, Asst. U.S. Atty., and Bruce R. Castetter, Asst. U.S. Atty. (on the brief), Michael H. Walsh, U.S. Atty., Stephen A. Mayo, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before TRASK and WALLACE, Circuit Judges, and HOFFMAN, District Judge. ^*

WALTER E. HOFFMAN, District Judge:

Edward Grady Partin appealed his conviction of October 4, 1977 on three counts of conspiracy to obstruct justice in violation of 18 U.S.C. §§ 371 and 1503. We have jurisdiction of the appeal, 28 U.S.C. §§ 1291 and 1294.

Partin was indicted on October 4, 1973 in the Middle District of Louisiana on three counts of conspiracy to obstruct justice. The trial which is the subject of this appeal was Partin's third trial under this indictment and it was held in San Diego, California pursuant to Rule 21(a), F.R.Cr.P. ¹ The indictment under which Partin was charged also charged eleven other persons, each of whom was named in only one count of the indictment. Two of Partin's codefendants were Harold Sykes and Ben Trantham, both of whom were named in Count II of the indictment. ² The persons named in the indictment were not tried as one group; Partin was tried alone. Partin retained James McPherson as his attorney at his first and third trials. He was also represented in his San Diego trial by attorney Mitchell, who served as local counsel with McPherson and participated briefly throughout the trial. McPherson was likewise retained by Sykes, ³ Trantham and five other codefendants, representing them at their trials and in their appeals.

The indictment charged Partin and other codefendants with conspiracies to change the testimony of witnesses and to prevent witnesses from testifying in connection with two previous criminal cases in which Partin was a defendant. Partin was not convicted in either of those cases. The history of the earlier cases and the genesis of the indictment under which Partin now stands convicted are set forth in United States v. Partin, 552 F.2d 621 (5th Cir. 1977), Cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (reversing Partin's first conviction under the indictment because of an erroneous jury instruction which required only "slight evidence" to connect Partin with the conspiracy).

In May 1974, before any of the codefendants had come to trial, the government filed a motion requesting that the trial judge hold a hearing regarding the representation of eight of the codefendants by one attorney, James McPherson. McPherson had been retained by Partin and the codefendants; he was not appointed. The government was concerned with the possibility that this multiple representation could create a conflict of interest for McPherson and deprive defendants of their Sixth Amendment right to the assistance of counsel unimpaired by any conflict of interest. See: Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).

Judge Nauman S. Scott, United States District Judge for the Western District of Louisiana, ⁴ held a hearing at which all of the codefendants and attorney McPherson, as well as Partin, were present. At the hearing Judge Scott questioned McPherson about his representation of multiple defendants. McPherson informed Judge Scott that he had discussed the case with his clients and was satisfied that there was no conflict of interest. McPherson also stated that he had discussed with his clients the possibility of unforeseen conflicts arising and that his clients still wished to be represented by him even though they understood there might be conflict of interest problems in that representation.

After questioning McPherson, Judge Scott addressed the codefendants and advised them of the importance of their Sixth Amendment right to the effective assistance of counsel and specifically of their right to be represented by counsel who were free from any conflict of interest. He informed them of the potential problems of multiple representation and specifically of the problems created by one codefendant testifying against another codefendant. He advised them that if they could not afford separate counsel, the court would appoint counsel for them. He asked them if there were any questions; there were none. Judge Scott then told all defendants to contact the clerk of the court in Baton Rouge, Louisiana, if they wished to have counsel appointed for them. ⁵ No defendant responded to the invitation.

Partin's first trial was held on November 13, 1974. He was to be tried along with two other codefendants. However, a mistrial was declared after the first day of trial and the two codefendants were severed from Partin's trial.

Partin's second trial was held from February 17 to March 4, 1975 and resulted in a conviction on all three counts of the indictment. At this trial Partin did not retain attorney McPherson to represent him. One of Partin's codefendants, Ben Trantham, testified as a government witness against Partin at the trial. Trantham's testimony concerned Count II of the indictment. At the time Trantham testified he was appealing his conviction on Count II of the indictment. ⁶ He had been represented at his trial and, at the time he testified, he was being represented on appeal by McPherson. Partin's conviction was reversed by the Fifth Circuit on May 19, 1977. United States v. Partin, supra.

As mentioned above, Partin's third trial (presently before us) was held in San Diego as a result of a transfer motion. This trial was held from September 26 to October 4, 1977, and resulted in Partin's conviction on all three counts of the indictment. At this trial Partin retained attorney McPherson to represent him. Although McPherson's client Trantham did not testify at this trial, McPherson's client and Partin's former codefendant Harold Sykes appeared as a government witness. At the time of his testimony at Partin's trial, Sykes had been convicted on Count II of the indictment and was being represented by McPherson on a petition for writ of certiorari to the United States Supreme Court. ⁷

Partin raises a number of issues in his appeal, the first two of which are related to the appearance of his original codefendant, Harold Sykes, as a government witness at trial. In connection with Sykes' appearance Partin raises the following issues: (1) whether the government's contact with Sykes, which was done without the knowledge of Sykes' attorney, McPherson, was unethical and grounds for reversing Partin's conviction; (2) whether Partin's representation at trial by attorney McPherson, who also represented former codefendant/government witness Sykes, denied Partin his Sixth Amendment right to the effective assistance of counsel. The two other issues raised by Partin are (3) whether the jury instruction concerning the witness security program which was given during the course of trial, was prejudicial to Partin and, therefore, grounds for reversing his conviction; and (4) whether Judge Scott's refusal to recuse himself was error.

Government Contact with Sykes

Shortly after Sykes' conviction was affirmed by the Fifth Circuit, Sykes called Assistant United States Attorney Mayo, the prosecutor in charge of the trials of Partin and his codefendants. Sykes told Mayo that he wished to cooperate with the government because he believed that attorney McPherson considered Partin's interests to be paramount to his. Sykes requested that his cooperation be kept a secret because he feared for his safety if his cooperation became known. Subsequently, Sykes gave two statements to the FBI prior to Partin's trial. He signed a waiver of his right to counsel at the time he gave these statements. McPherson represented Sykes during this period of time. However, Mayo did not inform McPherson of his contact with Sykes or of the FBI interviews with Sykes. No attorney represented Sykes in his contacts with the government.

Appellant Partin argues that Assistant United States Attorney Mayo violated ABA Disciplinary Rule 7-104 ⁸ in not notifying McPherson of his contacts with Sykes and that such an ethical violation is reversible error. We agree with appellant that Mayo's action violated Disciplinary Rule 7-104; however, the violation is not, on the facts of this case, reversible error.

Appellant correctly cites cases in this circuit in which we have condemned practices similar to that followed by Mayo. See, e. g., United States v. Four Star, 428 F.2d 1406, 1407 (9th Cir. 1970), Cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253; Reinke v. United States, 405 F.2d 228 (9th Cir. 1968); Coughlan v. United States, 391 F.2d 371 (9th Cir.), Cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968). We have not, however, reversed convictions where ethical violations on the prosecutor's part have appeared and an effective waiver of the accused's right to counsel has occurred. See, United States v. Four Star, Reinke v. United States, Coughlan v. United States, supra. The instant case is distinguishable from the above cases because Sykes was not an accused at the time of the government's contact with him. His conviction had already been affirmed on appeal and was pending on certiorari.

We need not, however, consider Sykes' status or whether he knowingly and intentionally waived his Sixth Amendment right to counsel in his contacts with Mayo and the FBI. For even if we assume that Sykes' Sixth Amendment right to counsel was violated, that right is a personal right, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and its violation as to...