United States v. Gougis, 15638

• Decision Date: 15 March 1967
• Docket Number: 15639.,No. 15638,15638
• Citation: 374 F.2d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ulysses GOUGIS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward BURKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.2d 758 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Ulysses GOUGIS, Jr., Defendant-Appellant.

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

Nos. 15638, 15639.

United States Court of Appeals Seventh Circuit.

March 15, 1967.

COPYRIGHT MATERIAL OMITTED

Edward R. Lev, Patrick W. O'Brien, Theodore G. Maheras, Chicago, Ill., for appellants.

Edward V. Hanrahan, U. S. Atty., Robert J. Weber, Asst. U. S. Atty., Chicago, Ill. (John Peter Lulinski, Jules Terrence Brunner, Asst. U. S. Attys., on the brief), for appellee.

Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge, and SCHNACKENBERG, Circuit Judge.

DUFFY, Senior Circuit Judge.

We have for consideration, two separate appeals from judgments of conviction on charges contained in a five-count indictment. The alleged offenses had to do with the possession and sale of narcotics in violation of Title 26 U.S. C. § 4705(a), and Title 21 U.S.C. § 174. The trial was had before the Court without a jury.

Defendant Gougis was charged in three of the counts. Count 1 charged that on July 14, 1964, Gougis with defendants James Phillips and Edward Burke, did unlawfully sell, barter, etc. 3.2 grams of heroin to Carl Jackson (violation of Title 26 U.S.C. § 4705(a)); and in count 2, that defendant Gougis, with Phillips and Burke, did receive, conceal, buy, sell and facilitate the transportation, concealment and sale of 3.2 grams of heroin (violation of Title 21 U.S.C. § 174). Count 5 charged that Gougis alone, on January 27, 1965, concealed, bought, sold and facilitated the transportation, concealment and sale of 4.960 grams of heroin. (Violation of Title 21 U.S.C. § 174).

As charged in the indictment, count 5 was a solo offense by Gougis. No mention was made therein of any of the other defendants. Also, there was no mention of the July 1964 offenses described in counts 1 to 4 inclusive.

Defendant Gougis was found not guilty of the charges in counts 1 and 2, but guilty of the charges contained in count 5. Counts 3 and 4 did not mention Gougis, but charged defendants Burke and Phillips with crimes on July 17, 1964, almost identical to those specified in counts 1 and 2 as having occurred on July 14, 1964.

Defendant Burke was found guilty on the charges contained in counts 1, 2, 3 and 4. Phillips was found guilty only of charges in counts 3, and thereafter, the trial court set aside this conviction and granted Phillips a new trial.

Each defendant was represented by court-appointed counsel. The same counsel represented both defendants Gougis and Phillips. The three defendants were tried together. Gougis did not testify while Burke and Phillips each testified in his own behalf.

We first consider the Gougis appeal. His main point is that in his trial there was a clear violation of Rule 8(b), F.R. Cr.P.¹ in that multiple defendants were charged with offenses which were in no way connected, and then were tried together. Gougis urges that the improper joinder of the defendants was highly prejudicial to him.

The Government argues that all three defendants participated in the July 14, 1964 sale of narcotics to agent Jackson upon which counts 1 and 2 were based. However, the Court found Gougis not guilty of the charges contained in counts 1 and 2, and he was not charged at all in counts 3 and 4.

The Government further urges that Phillips testified that Gougis was the source of the narcotics. However, the transcript shows that the testimony of Phillips in this respect was stricken by the Court as to defendant Gougis. We are forced to conclude that there is no evidence in the record to support the Government's assertion that his arrest on January 27, 1965, "arose out of Gougis' participation in the prior sales."

There can be no doubt that Gougis and Phillips had conflicting interests. Yet, they were represented by the same court-appointed counsel. It is quite apparent that Government agent Connolly tried to obtain Phillips' cooperation in order to obtain evidence against Gougis. It was the Government's theory that Gougis was the supplier of Phillips and Burke. To be more specific, it was contended that Burke supplied Phillips, and that Gougis supplied Burke.

Some of the most damaging testimony against Gougis came from defendant Phillips. While denying he was present at the alleged sale of narcotics on July 14, 1964, Phillips placed Gougis in the house where the sale occurred and told the Court that government agents had urged him to help get Gougis. There was no cross examination of Phillips on this important point. Counsel for Gougis was also counsel for Phillips.

Defendant Gougis did not testify in his own behalf. Apparently no evidence was presented on his behalf as to the January 1965 offense.

We intend no criticism of court-appointed counsel for Gougis and Phillips for she found herself in a most difficult position in representing conflicting interests. It would, however, have been entirely proper for her to have invited the attention of the trial court to her difficult situation.

In announcing his findings, the trial judge stated: "* * * I would suppose that a careful investigation would find that the defendant Ulysses Gougis is the person who has been for some time engaged in narcotic traffic, and much more involved than Burke and Phillips. * * *" And, "* * * He may be the source all the way through this. * * *"

In Glasser v. United States, 315 U.S. 60, at 76, 62 S.Ct. 457, at 468, 86 L.Ed. 680, the Supreme Court said:

"Our examination of the record leads to the conclusion that Stewart\'s representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser."

Moreover, there is no need on the part of a defendant to show that he has been prejudiced by the multiple representation. Glasser v. United States, supra, at pages 75-76, 62 S.Ct. 457.

These principles have been applied to hold improper multiple representation of co-defendants with conflicting interests. Campbell v. United States, 122 U.S.App.D.C. 143 (1965), 352 F.2d 359; Case v. State of North Carolina, 4 Cir., (1963) 315 F.2d 743; Craig v. United States, 6 Cir. (1954), 217 F.2d 355. In the case of appointed counsel, it is especially important for the court to determine that no prejudice will result from multiple representation. Cf. Criminal Justice Act of 1964, 18 U.S.C. § 3006 A(b), (c).

It seems clear, and we so hold, that the representation of Gougis was not as effective as it might have been had his counsel not been required by the trial court to also represent defendant Phillips. Gougis was thus denied his right to the effective assistance of counsel guaranteed by the Sixth Amendment. This error alone requires that the verdict be set aside as to defendant Gougis, and that he be given a new trial.

The Government strongly urges that defendants' failure to object to the alleged improper joinder before or during the trial constitutes a waiver. The Government further urges that in any event, Gougis was not prejudiced by the joinder and contends that as the trial was to the Court, we must presume the Court distinguished as to what evidence properly applied to each defendant.

It is true that Rule 12(b) (2), F.R.Cr.P., requires the defendant to make a motion before trial if he objects to the joinder. But, the rule also states that "the court for cause shown may grant relief from the waiver." An appellate court, like the trial court, should not be barred from considering on the merits whether relief should be granted under Rule 12(b) (2).

"The question of waiver may come up on appeal, as well as at trial, since defendant may fail to raise the defense or objection at the trial itself. In determining whether to grant relief, it is customary for the court to go into the merits to determine whether defendant would be prejudiced by enforcing the waiver." 8 Moore, Federal Practice, Criminal Rules § 12.03(4).

In the case of a violation of Rule 8 (b), there is substantial authority holding that joinder is per se improper where "multiple defendants are charged with offenses in no way connected * * *." Ingram v. United States, 4 Cir. (1959) 272 F.2d 567; United States v. Spector, 7 Cir. (1963), 326 F.2d 345.

In United States v. Spector, supra, we reversed the conviction of a defendant who had been joined in an indictment charging another defendant with an unrelated offense. We cited Ingram v. United States, supra, where the Court stated 272 F.2d at page 570: "In other words, where multiple defendants are charged with offenses in no way connected, and are tried together, they are prejudiced by that very fact, and the trial judge has no discretion to deny relief."

It is true that in Spector and Ingram, the defendants had moved for severance in the trial court, but it does not follow that a failure to object is the equivalent of an express waiver. An important feature here is that Gougis' counsel may well have felt limited and restricted in the trial strategy that she should or could adopt, and therefore did not object to the misjoinder.

Rule 14 F.R.Cr.P. does not specifically require a motion for severance for it states — "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." The wording of the Rule would indicate a continuing duty during the trial on the part of the court to avoid prejudice as a result of a joinder.

The Supreme Court considered Rules 8(b) and 14 in Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 ...