U.S. v. Poston, s. 83-1146
| Citation | 727 F.2d 734 |
| Decision Date | 30 April 1984 |
| Docket Number | Nos. 83-1146,s. 83-1146 |
| Parties | 14 Fed. R. Evid. Serv. 1848 UNITED STATES of America, Appellee, v. Rosena POSTON, Appellant. UNITED STATES of America, Appellee, v. Bernard F. POSTON, Appellant. UNITED STATES of America, Appellee, v. Lizzie POSTON, Appellant. to 83-1148. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Rosenbaum, U.S. Atty., Donald M. Lewis, Asst. U.S. Atty., Dist. of Minn., Minneapolis, Minn., for appellee.
Wayne G. Nelson, Legal Intern.
Scott F. Tilsen, St. Paul, Minn., for Rosena Poston.
Mark W. Peterson, Minneapolis, Minn., for Bernard F. Poston.
Daniel M. Scott, Minneapolis, Minn., for Lizzie Poston.
Before ROSS, McMILLIAN and BOWMAN, Circuit Judges.
In this case Rosena Poston appeals from a conviction of misapplying federally insured funds in violation of 18 U.S.C. Sec. 657. Lizzie and Bernard Poston appeal from convictions of aiding and abetting Rosena's misapplication of federally insured funds in violation of 18 U.S.C. Sec. 2(b) and 18 U.S.C. Sec. 657.
In arguing for reversal, appellants assert that joint representation of the three defendants by a single attorney denied them the effective assistance of counsel guaranteed by the Fifth and Sixth Amendments. They also assert that this right was not effectively waived since the hearing conducted on the propriety of the joint representation did not meet the standards set out by Rule 44(c) of the Federal Rules of Criminal Procedure and by this court in United States v. Lawriw, 568 F.2d 98 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978). Bernard Poston asserts that evidence of other crimes was erroneously admitted against him contrary to Rules 403 and 404(b) of the Federal Rules of Evidence. Lizzie Poston asserts that the District Court should have, sua sponte, given a specific cautionary instruction admonishing the jury to consider certain evidence against Bernard and Rosena Poston only and not against her. As we find all these contentions to be without merit, we affirm.
On April 14, 1982 Bernard Poston was employed as a mail clerk at Cargill, Inc. in Wayzata, Minnesota. His sister Rosena Poston was employed as a teller-payroll clerk at the Minneapolis Federal Employees Credit Union. Bernard Poston, Rosena Poston and their mother, Lizzie Mary Poston, all had accounts at the credit union.
The City of Minneapolis issued a $15,245.78 check dated April 5, 1982 to Cargill, Inc. (Cargill check) in payment for road salt. The Cargill check was mailed in a window envelope with a return address of "Minneapolis Comptroller/Treasurer." It was possible to recognize the contents of the envelope as a check through the window. Normally the Cargill check would have been delivered by Bernard Poston to the salt division unopened along with other mail. The salt division personnel would then have opened the envelope and endorsed the Cargill check with a stamp. This check contained no such stamped endorsement.
The Cargill check, along with a $54.22 check written on the account of Bernard Poston and signed by him, was deposited in Lizzie Poston's account at the credit union. Lizzie Poston's former balance was $38.20. The deposit to Lizzie Poston's account was entered on terminal number 2. The teller code entered on Lizzie Poston's account history card was "F2," which was the teller code of Cathy Erickson, another teller in Rosena Poston's branch. Erickson denied entering the deposit. A check of the audit proof tape showed that the person making the transaction did not follow the normal procedure of printing the identification of the account holder. The person also inadvertently entered the teller identification code "B" before correcting it to read "F." "B" was Rosena Poston's teller identification code. The audit tape also revealed that the deposit was entered during mid-morning on April 14, and that Cathy Erickson took her break at about that time. That same day, $5,300 of the funds from that deposit were transferred, $2,750 into one of Rosena Poston's accounts and $2,550 into Bernard Poston's account. The transfers were made in a manner which prevented them from appearing on the audit proof tape. Rosena admitted to making these transfers.
Later that day Lizzie Poston appeared at the downtown branch of the credit union and asked to withdraw $10,000 in cash from her account. Lizzie Poston was told such a large amount could not be paid out in cash, and was asked if she would accept a check. She said no, and the teller compromised by giving her $3,379.50 in cash and eight money orders totaling $6,622.50. 1 Lizzie Poston spent most of the cash within the next two days. Two of the money orders were given to Bernard Poston and the rest were either cashed or used to pay bills.
Bernard Poston made purchases with one of the money orders on April 16. He attempted to negotiate the second money order at a local bank. The bank teller, remembering an alert had been posted about some stolen money orders, contacted her supervisor and asked her to call the police.
Further examination of Bernard Poston's account showed that on April 12 Bernard had created an artificial balance of $15,000 in his account by depositing a check for that amount drawn on his account (i.e., a check drawn on account A and deposited in account A). This transaction, a type of "check kite," was performed by Rosena Poston at her terminal. Rosena Poston admitted to entering this deposit but testified that she had permission from her supervisor to do so. Her supervisor denied giving such permission.
All three defendants denied involvement in any misappropriation scheme. Lizzie Poston testified that she was expecting a payment from the Veterans Administration (VA) on behalf of her disabled husband when these events occurred. She asserted her belief that the large balance in her account was the result of a direct deposit by the VA. Her husband had received a $9,000 VA payment in 1980 and she had been seeking additional payments through her congressman. A VA representative testified that no authorization for direct deposits to Mr. Poston's credit was on file, and that the VA had done nothing to give the Postons the impression that a lump sum payment would be paid in April 1982.
A pretrial hearing was held before United States Magistrate Brian P. Short, pursuant to Rule 44(c) of the Federal Rules of Criminal Procedure. At this hearing, Magistrate Short advised Rosena, Bernard, and Lizzie Poston of the problems inherent in joint representation, and of their right to have separate counsel. He gave examples of conflicts and their potential impact on their attorney's ability to mount an effective defense at trial. Magistrate Short questioned each of the defendants on these points, and each of them affirmatively stated they wished to continue joint representation.
The defendants argue that the hearing conducted by Magistrate Short fails to meet the standards established by Rule 44(c) of the Federal Rules of Criminal Procedure and by this court under United States v. Lawriw, supra, for a valid waiver of the defendants' right to separate representation. Having argued the invalidity of the waiver, defendants further argue that there existed actual conflicts between the positions of the three defendants at trial which adversely affected their lawyer's representation, thus compelling reversal. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Parker v. Parratt, 662 F.2d 479, 483 (8th Cir.1981). Because we find that the waiver of the defendants' right to separate representation was knowing, voluntary, and intelligent, we need not decide whether any actual conflicts existed.
The Sixth Amendment right to assistance of counsel means the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Representation clouded by conflict of interests arising from joint representation of several criminal defendants may constitute ineffective assistance of counsel, but joint representation is not per se a constitutional violation. Holloway v. Arkansas, 435 U.S. at 482, 98 S.Ct. at 1177. Moreover, as with other constitutional rights, the right to effective assistance of counsel may be waived, provided that the waiver is knowing, voluntary and intelligent. United States v. Swanson, 509 F.2d 1205, 1210 n. 7 (8th Cir.1975). Specifically, this Court adopted a rule in United States v. Lawriw, supra, requiring the trial court to conduct a pre-trial inquiry on the propriety of joint representation. Under Lawriw, the trial court must question the defendants on their understanding of the possible problems and conflicts that might arise in the course of litigation.
The requirements of Lawriw were established under the supervisory powers of this Court. Subsequently the Supreme Court promulgated Rule 44(c), which mandates a pre-trial inquiry in all instances of joint representation in federal criminal proceedings, but does not go as far as Lawriw in specifying the particulars of the inquiry.
The chief disagreement between the defendants and the government here is over the depth and extent of such an inquiry. Defendants argue that an effective waiver of the right to separate representation requires an inquiry of the kind prescribed in United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975). In that case, the Fifth Circuit set out the following guidelines for determining a defendant's understanding of the consequences of joint representation:
[The] district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district...
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