United States v. Flanagan, Crim. No. 81-270.

Decision Date02 December 1981
Docket NumberCrim. No. 81-270.
Citation527 F. Supp. 902
PartiesUNITED STATES of America v. Robert FLANAGAN, James Keweshan, Sidney Landis, Thomas McNamee.
CourtU.S. District Court — Eastern District of Pennsylvania

Luther E. Weaver, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Richard A. Sprague, Bruce L. Thall, Philadelphia, Pa., for defendants.

OPINION

LUONGO, District Judge.

Presently before me is the Government's motion to prohibit the law firm of Sprague and Rubenstone from representing all four defendants in this criminal case. The defendants, Robert Flanagan, James Keweshan, Sidney Landis and Thomas McNamee, all police officers employed by the Philadelphia Police Department, are each charged in a single indictment with conspiracy to violate the civil rights of citizens. 18 U.S.C. § 241. The indictment also charges substantive violations of citizens' civil rights, see 18 U.S.C. § 242, by Flanagan (Counts Two through Thirteen), McNamee (Counts Two through Thirteen), Landis (Counts Four through Thirteen), and Keweshan (Counts Two through Seven, and Eleven through Thirteen).

The defendants are members of a socalled "grandpop" squad, a decoy squad engaged in undercover operations to ferret out street crime. Typically, defendant Flanagan would pose as the decoy, with defendants Keweshan, Landis and McNamee as his backup. After being accosted and robbed by an assailant, Flanagan would signal the backup team by yelling: "Give me back my money." Keweshan, Landis and McNamee would then close in and make the arrest. The Government charges that over a period of about 17 months the defendants conspired to violate citizens' civil rights by arresting persons, under color of law, without probable cause, and that varying combinations of the defendants did in fact falsely arrest and/or physically abuse eight persons in violation of their civil rights.

Pursuant to the Government's request, and in accordance with Fed.R.Crim.P. 44(c),1 a hearing was held on November 12, 1981, to inquire whether defendants were aware of (1) the risk of joint representation, and (2) their right to separate representation. Each of the defendants was present at the hearing. Bruce Thall and James Leonard from the firm of Sprague and Rubenstone appeared on behalf of the defendants. At that time, Mr. Thall informed the court that, after extensive discussions with each defendant concerning the risks and pitfalls of joint representation, each still wished to be represented by the firm of Sprague and Rubenstone.

Among the areas which Mr. Thall stated had been discussed with each defendant were the following:

(1) Opening and closing statements — Unlike separate counsel, joint counsel would not be able to set one defendant apart from another.
(2) Sentencing — In the event that more than one defendant were convicted, joint counsel could not argue that one defendant was more or less culpable than another.
(3) Spillovers — Possibility that jury might infer from joint representation that if one defendant is found guilty, the others must be also.
(4) Possible grants of immunity — Each defendant was told that the Government could offer one of the defendants immunity on the condition that he testify against the others, thus interfering with a joint trial strategy.
(5) Nature of the evidence — It was explained to each defendant that the Government might introduce more evidence tending to implicate defendant Flanagan, and that as a result:
(a) the jury might infer that the others were also guilty because of joint representation,
(b) defense efforts might be more concentrated toward the defense of Flanagan.
(6) Right to testify — If one defendant exercised his right to testify on his own behalf and one or more of the others did not, the jury, from the fact of joint representation alone, might infer guilt on the part of those not testifying. Also, on cross-examination, the defendant who exercised his right to testify could be questioned as to his knowledge of activities involving the other defendants.
(7) Character and reputation testimony —Each was informed that if the defense offered character or reputation testimony on behalf of some but not all defendants, the jury might infer from the fact of joint representation that the character or reputation of the other defendants is undesirable.
(8) Right to separate counsel — Each defendant was apprised of his right to separate counsel, and that, if he could not afford counsel, the court would appoint counsel for him.

After Mr. Thall completed his outline of the areas discussed with the defendants, I questioned each defendant, individually and under oath, to ensure that each was aware of the potential conflicts that very likely could arise in this case. In addition to questioning the defendants on matters which had been explored by counsel, I also ascertained that each defendant understood that separate counsel could present a united defense strategy but, unlike joint counsel, could present alternative defenses as well. More importantly, I assured myself that financial considerations played no part in defendants' choice of joint counsel. Defendants advised me that their legal expenses were being paid by their union, the Fraternal Order of Police. Further, I advised each defendant that, if I ordered separate counsel and the union refused to defray the cost of such counsel, I would appoint counsel for them. Finally, in the presence of the court and defense counsel only, each defendant was given the opportunity to explain in his own words why, in light of the several risks created by joint representation, he wished to be represented jointly with the other defendants.

At the conclusion of the hearing, I found that (1) a conflict of interest was very likely to arise in the course of the proceedings against defendants; (2) each defendant was fully and completely aware of the potential conflicts; and (3) each defendant, without financial pressure, had voluntarily and intelligently chosen to waive any claim of conflict of interest and elected to be represented by one counsel. Defense counsel and the Government were then instructed to brief the question of whether I must accept the defendants' waiver, notwithstanding the conflict of interest that I find is very likely to arise. In addition, I asked the parties to address the question of whether I must disqualify the firm of Sprague and Rubenstone from the case entirely, in the event that I order that each defendant be separately represented.

Both sides have now filed memoranda of law. Since defense counsel concedes1(a) that "logic mandates" that the firm of Sprague and Rubenstone must be disqualified should separate counsel be ordered, the sole question before me is whether I may, and should, reject the defendants' voluntary, knowing and intelligent waiver of their right to separate counsel, given the conflict which is very likely to arise.

To find that a conflict is likely to arise in this case, one need not look beyond the indictment and the numerous pretrial motions, together with supporting memoranda of law, filed by defense counsel. It is immediately apparent from reading the indictment that all four defendants are not charged in each count, reflecting the fact that each defendant's involvement may vary significantly from that of the others. Indeed, the basis of defendants' motion to dismiss Count One of the indictment focuses almost entirely on the differences in each defendant's role in the allegedly false arrests:

The indictment, then, charges that since arrests occurring on five days within the 17 month period (September 27, 1979; December 18, 1979; May 19, 1980; November 3, 1980; and January 6, 1981) were made without probable cause, therefore each of the movants necessarily conspired with each other to "arrest various citizens without probable cause" Indictment, Count One, Paragraph 2 throughout the length and breadth of the 17 month period. In addition, only two movants, Flanagan and McNamee, participated in each of the five arrests. As is reflected in the "Indictment Breakdown", Landis was not involved in the arrest or other proceedings involving Walker and Howard, so that the indictment contains no hint that Landis could have been part of the conspiracy alleged, at least until the arrests of Woodrit and Young, on December 18, 1979.
Similarly, movant Keweshan is not alleged to have acted in any capacity, or even been present at, the arrests of Ford and Tooles on May 19, 1980. Indeed, the only arrests in which each movant is alleged to have participated, are those of Woodrit and Young, Adams, and Bibbs.

Defendants' Memorandum of Law in Support of Motion to Dismiss Count One of the Indictment (Document 12, at p. 3).

And again,

Indeed, the different identity of the alleged co-conspirators present during each "illegal" arrest, coupled with the disparate times within which the conspiracy is alleged to have existed, and the fact that, despite performing the same activity throughout the totality of the period ostensibly covered by the conspiracy, on no other dates with no other arrests are such acts deemed to be "illegal", suggests not only that each "illegal arrest" was the product of a separate and distinct agreement, but also that each movant, on the other dates within the period while working as a police officer, necessarily "withdrew" from any agreement to violate any law.

Id. at 13. The likelihood that one or more defendants might, at some point, wish to distinguish his or their particular role from the others is hardly remote. Furthermore, defense counsel has observed correctly that this is a complex case which will most likely turn on circumstantial evidence which is "subject to various interpretations and fine distinctions." Defendants' Memorandum of Law in Support of Defendants' Motion for Discovery and Inspection (Document 10) at p. 3. Implicit within this complexity is the fact that essential to the Government's case is proof of each defendant's...

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