Appeal from a denial of a motion under 28 U.S.C. § 2255 to vacate a conviction on the grounds that appellant and his co-defendant, who both pleaded guilty, were improperly represented by the same attorney. Affirmed.
Mulligan, Oakes and Meskill, Circuit Judges. Oakes, Circuit Judge (concurring).
On August 22, 1973 a seven-count indictment was filed in the Eastern District of New York charging appellant Richard Mari and his co-defendant William James MacQueen with extortionate extension of credit. Count I charged both defendants with a conspiracy to use extortionate means to collect and attempt to collect an extension of credit to one Joseph Freno, Jr., in violation of 18 U.S.C. § 894; Count II charged Mari alone with an extortionate extension of credit to Freno, in violation of 18 U.S.C. § 892; Count III charged both defendants with threatening Freno in order to collect from him; Counts IV and VI charged Mari alone with threatening Freno on two separate occasions; Count V alleged that both defendants used violence and other criminal means to cause harm to Freno; and Count VII accused MacQueen alone of threatening Freno. It further appears from the indictment that Mari made the initial loan to Freno, but then advised Freno that MacQueen had "purchased" the debt from Mari, so that Freno had to repay MacQueen, at an extortionate rate.
At all times throughout the proceedings both defendants were represented by the same attorney, Kenneth Salaway, Esq. On January 18, 1974, both defendants appeared before Hon. John R. Bartels, United States District Judge, to request withdrawal of their not-guilty pleas and entry of guilty pleas. At that time the court pointed out the possibility of a conflict of interest because of the joint representation, and asked both defendants and attorney Salaway if they understood the possibility of a problem. All three replied in the affirmative. Salaway then represented that there was in fact no conflict between his clients.
On January 25, 1974, both defendants appeared again before Judge Bartels to enter their pleas. Specifically, Mari pleaded guilty to Count II of the indictment, which charged him alone with an extortionate extension of credit to Freno. An examination of the transcript of that hearing makes it clear that, in response to questions from the court, Mari claimed that he understood the nature of the charge against him, his right to proceed to trial if he wished, and the consequences of his guilty plea. In short, there was a meticulous examination of Mari by the court to determine the voluntariness of his plea as well as the factual basis therefor.
At the same hearing defendant MacQueen also pleaded guilty, to a two-count superseding information. MacQueen's comments indicate that he was trying to exculpate Mari by taking all the blame on himself. He concluded by saying:
I made all the threats. He just introduced me to Freno.
The Court: But Mr. Mari just told me he was guilty of the threats.
Defendant MacQueen: Well, through me. I told him what to say. I said "Just tell Mr. Freno or his son" -
The Court: Both or either of you threatened to use violence against Freno?
The Court: How about him?
Defendant MacQueen: No - well, I told him to say it but he ...