United States v. Helton, 79 Crim. 288 (VLB).

• Decision Date: 05 June 1979
• Docket Number: No. 79 Crim. 288 (VLB).,79 Crim. 288 (VLB).
• Citation: 471 F. Supp. 397
• Parties: UNITED STATES of America v. Claude HELTON, Roy Haygood, Maxine Lawrence, Charles McKinney, Richard Helton, Calvin Griffin, Robert Lewis Pinson, Marie Louise Byron, Altagracia Velez, Defendants.
• Court: U.S. District Court — Southern District of New York

471 F. Supp. 397

UNITED STATES of America v. Claude HELTON, Roy Haygood, Maxine Lawrence, Charles McKinney, Richard Helton, Calvin Griffin, Robert Lewis Pinson, Marie Louise Byron, Altagracia Velez, Defendants.

No. 79 Crim. 288 (VLB).

United States District Court, S. D. New York.

June 5, 1979.

Robert B. Fiske, Jr., U.S. Atty., Southern District of New York, by Richard Lawler, Asst. U.S. Atty., New York City, for plaintiff.

Jerry Feldman, Goldberger, Feldman & Dubin, New York City, for defendant Claude Helton.

Lawrence Dubin, Goldberger, Feldman & Dubin, New York City, for defendant Richard Helton.

MEMORANDUM

VINCENT L. BRODERICK, District Judge.

I

In this action, the government charges all defendants with conspiracy to violate the federal narcotics laws. Various defendants are also charged with substantive narcotics violations. Trial is scheduled to begin July 9, 1979.

The government made a pre-trial motion seeking the disqualification of either Mr. Jerry Feldman or Mr. Lawrence Dubin, defense counsel for Mr. Claude Helton and Mr. Richard Helton, respectively, who are members of the same firm;¹ the government argued that the joint representation by the Feldman-Dubin firm of co-defendants in this case is impermissible because of potential conflicts of interest.

I instructed the government and defense counsel to submit briefs on the issue of joint representation. After receipt of the briefs, I held a hearing on May 31, 1979 with the government, defendants, and defense counsel. At the hearing, the government argued that by the very nature of the charges against the defendants, and the different nature and degree of their alleged involvement in the crimes charged, joint representation of the two defendants will entail conflict of interest. Defense counsel responded that the government's predictions of conflict are unfounded and designed to obstruct defendants' choice of counsel. Defense counsel represented that they had fully advised their clients of potential conflicts, and that their clients wish to proceed with them as counsel and waive any conflict claims.

Claude Helton is charged in six counts of the indictment, with conspiracy to violate the federal narcotics laws, with engagement in a continuing criminal enterprise, and with four counts of distributing and possessing with intent to distribute narcotics. He is characterized in the indictment as the ringleader of the conspiracy.

Richard Helton is charged with conspiracy to violate the federal narcotics laws, and with one count of distributing and possessing with intent to distribute narcotics. Richard Helton is described in the indictment as one of Claude Helton's "lieutenants". Claude and Richard Helton are named together in one of the alleged overt acts of the conspiracy, and in an apparently related substantive count.

Richard Helton is likely to have defenses or defense tactics available to him which are inconsistent with or may undermine defense postures taken by Claude Helton, and vice versa.²

The Government represented that the defendants, who are brothers, have very different backgrounds. Claude Helton has previously been convicted of a felony whereas Richard Helton apparently has no convictions. The Government plans to file a second offender information with respect to Claude Helton.

On the basis of the above, I found that it was impossible for Claude and Richard Helton to make a knowing and effective and intelligent waiver of their right to effective assistance of counsel. To insure their Sixth Amendment right to effective assistance of counsel, I directed that Claude Helton and Richard Helton be represented by attorneys who are independent of each other.

II

Analytically, there are three possible approaches to a conflict of interest stemming from joint representation. One is the approach which I have taken in this case.

Another approach is the invocation of a per se rule against joint representation of co-defendants in any criminal trial. Although defendants, at the May 31 hearing, sought to characterize my ruling as a per se rule, that ruling was made in the context of this case and does not operate as or under any per se rule.

A third approach is that suggested by defendants, who urged that certain opinions of the Court of Appeals in this Circuit divest the trial court of power to prohibit joint representation of defendants in criminal cases where the defendants, after being advised of the danger of actual and potential conflicts of interests, choose to proceed with jointly retained counsel.³

III

The problems associated with joint representation have long been recognized in this Circuit. For that reason, the Court of Appeals has established certain rules with respect to joint representation. Before joint representation can be permitted, the trial court must hold a hearing to ferret out actual and potential conflicts; defendants must satisfy the trial judge that they knowingly and intelligently waive any claims which might arise from counsel's conflict of interest. In Re Taylor, 567 F.2d 1183 (2d Cir. 1977). Then, if joint representation does occur, on appeal a conviction will be overturned only if defendant can show prejudice resulting from the joint representation. Salomon v. LaVallee, 575 F.2d 1051 (2d Cir. 1978).

Defendants cite to In Re Taylor, 567 F.2d 1183, 1191 (2d Cir. 1977) for their argument that the trial court cannot, consistent with the Sixth Amendment, order separate counsel if defendants state that they are aware of possible conflict and yet choose to proceed with the counsel of their choice:

Once the court is satisfied, however, that such a client knowingly and intelligently wishes to proceed with joint representation, the court's responsibility is met, and it is without power unilaterally to obstruct the choice of counsel. See Abraham v. United States, 549 F.2d 236 (2d Cir. 1976); United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975).

Defendants assert that whenever a defendant states that he or she wishes to proceed with joint representation, the court necessarily must be satisfied that the defendant's choice is "knowingly and intelligently" made and must, under the Sixth Amendment, permit the joint representation. That is not so.

The Court of Appeals recognized in In Re Taylor, supra, 567 F.2d at 1186, that defendants do not have a Sixth Amendment claim to joint representation:

Although two or more defendants are not entitled to have the same lawyer as a matter of right, Abraham v. United States, supra, . . . each suspect or accused may knowingly and intelligently waive any claims which might arise from counsel's conflict of interest. United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975).

In Abraham v. United States, 549 F.2d 236 (2d Cir. 1976), the Court held that defendants had knowingly and intelligently waived any claims from conflict of interest by their attorney. The Court pointed out that while choice of counsel should not be unnecessarily obstructed by the trial court, in an appropriate case the trial court can preclude joint representation despite defendants' choice to proceed with joint representation.

Choice of counsel should not be obstructed unnecessarily by the court. We wish to stress, however, that defendants are not entitled to joint representation as a matter of right. If a district judge perceives

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