United States v. Cale, 18947.

• Decision Date: 25 November 1969
• Docket Number: No. 18947.,18947.
• Citation: 418 F.2d 897
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arden Renee CALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

418 F.2d 897 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Arden Renee CALE, Defendant-Appellant.

No. 18947.

United States Court of Appeals Sixth Circuit.

November 25, 1969.

Jack Kershaw, Nashville, Tenn., for appellant.

George LeFevre, Asst. U. S. Atty., Nashville, Tenn., for appellee, Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and BROOKS,^* District Judge.

PER CURIAM.

Appellant and her husband, Robert C. Cale, were convicted on a five-count indictment charging violations of 18 U.S.C. § 472, Uttering Counterfeit Obligations or Securities, and aiding and abetting the same. Appellant and her husband were jointly tried, and both were represented at trial by the same privately retained counsel.

During the trial a pretrial statement made by the appellant's husband was read to the jury. The statement implicated the appellant to the extent that it asserted that appellant made small purchases of items such as cigarettes, bread and ice cream at the business places where she allegedly passed the counterfeit $20.00 bills. The statement exculpated the husband by implying that he had no knowledge that his wife was using $20.00 bills to make the numerous small purchases. The privately retained counsel specifically stated that he had no objection to the husband's pretrial statement being read to the jury.

Appellant contends that the defense counsel's failure to object to the admission of the husband's pretrial statement denied her the effective assistance of counsel because it aligned the defense counsel's efforts with her husband's interests, which in light of the assertions in the statement were adverse to her own. We find no merit in this contention. The privately retained counsel's determination that there was no conflict of interest must weigh heavily against the appellant, but we need not rely solely on counsel's determination. Our own examination of the record shows that there was no actual conflict of interest between the codefendants. Both defendants took the witness stand in their own defense; the husband specifically denied the truth of those parts of the pretrial statement which tended to implicate the appellant. The appellant similarly denied the truth of those parts of the statement. Thus we find no actual conflict of interest between the codefendants, and hold that there was no denial of the effective assistance of counsel. See Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Long, 415 F.2d 307 (6th Cir. 1969); United States v. Berriel, 371 F.2d 587 (6th Cir. 1967); United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966). In light of this determination we cannot say that the District Court committed "plain error" in failing to grant appellant a severance or separate counsel on its own motion. Without basing our conclusion on this circumstance, we observe that a contrary rule of law would place a trial judge squarely on the horns of a dilemma by requiring him to determine when, if at all, he should inject himself into the defendants' case, thereby simultaneously upsetting defense strategy and offering counsel the supreme insult of accusing him of attempting to serve two masters with conflicting interests. The burden of such a responsibility would become particularly great where, as here, those masters had privately selected and planned with...