Lumbard, Chief Judge, and Smith and Feinberg, Circuit Judges.
Alphonso Morgan's appeal from the denial of his third motion under 28 U.S.C. § 2255 to vacate his sentence of four years*fn1 for causing women to be transported in interstate commerce for immoral purposes and conspiracy with others so to do, 18 U.S.C. §§ 2421, 371, turns on whether he was deprived of effective assistance of counsel because of a conflict of interest on the part of his court-appointed counsel who also represented a co-defendant Harry Stein, as Stein's retained counsel.*fn2
As the possible defenses of Stein and Morgan on the facts before us raise a question as to whether there was such a conflict of interest, we remand the case to the district court for a hearing regarding the conduct of Morgan's defense, to determine whether Morgan received advice and assistance of counsel sufficient to afford him that quality of representation guaranteed by the Sixth Amendment.
On October 29, 1962 a stag party was held at the Blue Rail, Inc., a licensed barroom and grill, in Portchester, New York, which Stein owned and operated. Morgan, Stein and their co-defendant, Gerald Gerardi, were all present at this stag party. The party was also attended by two women from Bridgeport, Connecticut, Maureen Emmanuel and Juanita Days, who performed lewd and lascivious acts in the nude and engaged in acts of prostitution. It was not disputed that Stein and Morgan had discussed having some girls perform a strip-tease at the party, that thereafter Morgan, who also lived in Bridgeport, had spoken to Emmanuel, and that Emmanuel had gone to the Blue Rail several days before the party and had talked with Stein. There are some differences in the testimony as to precisely what was said in these conversations with regard to getting girls for the party, by whom these things were said, and whether Emmanuel came to the party by arrangement with Stein or on her own initiative.
With this brief background of the factual issues in mind we resume the chronology of events. The Portchester police visited the premises the night of the party; they then advised the FBI and gave them names of persons who were present. A complaint charging violation of the Mann Act, 18 U.S.C. § 2421, was filed and on November 7, 1962 Morgan was arrested. After being advised of his constitutional rights and after speaking to an attorney, one Hirsh of Peekskill, New York, Morgan made an oral statement and then signed a written statement which was introduced in evidence at trial.*fn3
In his statement Morgan admitted talking to Stein in Portchester on October 22. According to Morgan, Stein said that he and Gerardi were going to run a party and asked if Morgan knew some girls to put on a show. Morgan spoke to Emmanuel in Bridgeport, told her that Stein was looking for some "pretty girls" to work in Portchester, and gave her Stein's telephone number. Morgan saw the girls at the party and he bought them drinks, but he had nothing to do with them after they removed their clothes. He did not give them money or transport them to Portchester or back to Connecticut. He never received any money from the girls or from Stein; he did not buy a ticket to the party.
The grand jury returned an indictment on November 19, 1962 against Stein, Morgan and Gerardi, charging violations of the Mann Act and conspiracy. On November 26 appearances were filed by attorneys for all three defendants; Robert S. Friedman for Morgan, Carl Turk for Stein, and Robert R. Goldberger for Gerardi. Thereafter on January 8, 1963, Friedman was allowed to withdraw as counsel for Morgan; just why the court permitted Morgan to be left without counsel on the eve of the trial is not clear from the record. On the day set for trial, February 5, 1963, Morgan was therefore in court without counsel; Judge Timbers appointed Stein's attorney, Carl Turk, to represent Morgan and the trial commenced that same day. There was no objection by Turk or Morgan to Turk's appointment to represent Morgan and there was no request for an adjournment of the trial. It appears that Turk, as Stein's counsel, was already familiar with the case and had talked with Morgan prior to his appointment as Morgan's counsel on February 5.
Again, it is unclear from the record why the court appointed Stein's attorney to represent Morgan. It may have been that, under the circumstances, the parties thought that it was the desirable procedure to have Turk represent both Morgan and Stein and that Morgan knowingly accepted whatever risks were involved in having both defenses presented by the same attorney. On the other hand, it appears, from a colloquy occurring later in the trial (R. 869-871), that the court had been misinformed and was under the impression that Turk was representing both Stein and Morgan in other proceedings; the court may have been acting on that supposition in appointing Turk to represent Morgan at the trial. Of course on remand the court should consider what the situation was at the time of Turk's appointment as Morgan's attorney, what the reasons were for making that appointment, and why those concerned made no objection.
As we have concluded that the district court must inquire fully into all the circumstances of Turk's representation of Morgan, a summary of the evidence at trial is unnecessary. Suffice it to point out that the government -- through Morgan's statement to the FBI and the testimony of Emmanuel, Days, and several of the men present at the party -- established that Morgan had put Emmanuel in contact with Stein, that Stein and Gerardi agreed to hire Emmanuel and another girl for the party, and that Emmanuel and Days drove from Connecticut to the party in Portchester where they performed numerous immoral acts.
Turk cross-examined the government witnesses on behalf of Stein and Morgan, and introduced a statement by Emmanuel tending to exculpate Morgan. He objected to the introduction of Morgan's statement to the FBI.
Stein took the stand in his own defense. He testified that Morgan had first suggested having some girls do a strip-tease at the party. He said that he never engaged Emmanuel to perform at the Blue Rail, that when Emmanuel, who is a negro, visited him a few days before the party he told her he was only interested in hiring white girls, and that when she and another negro girl arrived at the party he said he could not use them; he asked the girls to leave the party, but the guests objected and so he let them stay. Stein denied making any payments to Emmanuel or Days and said that he did not know where the girls came from or that they were prostitutes.
Stein was cross-examined by the prosecutor, on behalf of the government, and by Goldberger, on behalf of co-defendant Gerardi; he was not cross-examined on behalf of Morgan.
Morgan's petition alleges that Stein's testimony tended to exculpate Stein by pointing the finger of guilt at Morgan -- as it indicated that the idea originated with Morgan and that only Morgan knew where the girls were from -- and that there was therefore a conflict of interest with regard to cross-examining Stein on Morgan's behalf. Morgan also claims that there was a conflict of interest with respect to whether he should testify in his own behalf. His petition states that "Morgan did not take the stand though he avers that he desired to do so" and that had he testified "he would have denied any knowledge of intent to induce anyone to participate in immoral activities, would have denied that he initiated a conversation with Stein concerning having a strip show at the party, would have denied participation in any immoral plan, and would have ...