The opinion of the court was delivered by: BONSAL
On October 16, 1972, Indictment 72 Cr. 1159 was filed in the Southern District of New York charging petitioners Willie Abraham, Erroll Holder, Walter Grant, Robert Hoke and fourteen others with conspiracy to violate the federal narcotics laws, with use of the telephone to further such violations, and charging Willie Abraham with managing a continuing narcotics enterprise in violation of Title 21, United States Code, Sections 846, 843(b) and 848, respectively. Following a six-week jury trial before Judge Bryan, and guilty verdicts as to all petitioners on the conspiracy count, as to all petitioners except Hoke on the use of the telephone to further the conspiracy, and as to Abraham on engaging in a continuing criminal enterprise, the petitioners were sentenced by Judge Bryan on June 26, 1973. On May 10, 1974, the Court of Appeals affirmed the judgments of conviction on all counts and a petition for writ of certiorari to the United States Supreme Court was thereafter denied. United States v. Sisca, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S. Ct. 328, 42 L. Ed. 2d 283 (1974).
Petitioners now move pursuant to 28 U.S.C. § 2255 for an order vacating the sentences and granting a new trial on the grounds that they were denied effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.
At the trial, petitioners and two other defendants, Alphonse Sisca and Margaret Logan, were represented jointly by the law firm of Lenefsky, Gallina, Mass, Berne and Hoffman (hereinafter referred to as the "Gallina" firm). Specifically, Abraham, Logan, and Grant were represented by Mr. Jeffrey Hoffman, Holder by Mr. John Pollok, Hoke by Mr. Robert Kiernan, and Sisca by Mr. Gino Gallina.
Petitioners contend that this multiple representation created a conflict of interest which prejudiced them because counsel failed to file a pretrial minimization motion to suppress wiretap evidence, allegedly for the reason that the evidence was beneficial to defendant Alphonse Sisca. Petitioners contend that they were not made aware of what a conflict of interest was, how it might arise in the case, or how it could lead to a bad defense. Petitioners also contend that they should have been given the opportunity to confer or consult with outside counsel prior to the conflict of interest hearing before Judge Bryan on November 22, 1972.
By Notice of Hearing dated April 15, 1976, the Court ordered an evidentiary hearing pursuant to 28 U.S.C. § 2255 on the conflict of interest issue raised by petitioners Abraham and Holder. Following the hearing on May 25, 1976, petitioners Hoke and Grant, on June 14, 1976, filed similar motions to vacate their sentences. Since the Court finds the evidence produced at the May 25, 1976 hearing is applicable to the issues raised in the Hoke and Grant motions, a new evidentiary hearing will not be ordered and all four motions will be considered together.
On November 22, 1972, before the trial, Judge Bryan conducted a hearing on the Government's motion for an order resolving possible conflicts of interest arising from the multiple representation of the defendants by the Gallina law firm. During this hearing, at which petitioners were represented by Mr. Gino Gallina a member of the Gallina firm, the Court apprised each defendant ". . . of the possibility of a situation developing during the trial in which the best protection of your interests may be different from the protection of the interests of one or more of your co-defendants who is represented by the same counsel." United States v. Sisca, et al., 72 Cr. 1159 (Transcript of hearing conducted November 22, 1972 at 25) (hereinafter, Tr. 11/22/72).
Following the specific inquiries by the Court as to each defendant's understanding of the possible conflicts of interest, and after apprising the defendants of their right to have counsel of their own choosing, including separate and individual counsel, the Court concluded that each defendant had made a deliberate election of the Gallina firm in conformity with the holding of United States v. Sheiner, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 90 S. Ct. 68, 24 L. Ed. 2d 76 (1969). (Tr. 11/22/72 at 41).
From the transcribed record of the November 22, 1972 hearing, it appears that petitioners were informed of the conflict of interest arising from the multiple representation and that they each made a considered choice to continue with the Gallina firm as their counsel. Moreover, it appears that the trial court took steps to insure that petitioners were apprised of their right to be represented by individual counsel (Tr. 11/22/72 at 24-31) and that the Court found each petitioner had voluntarily waived his right to be represented by individual counsel.
Indeed, the trial court cautioned the petitioners about retaining counsel from the same firm by stating:
"I am going to say this to each of the defendants: I want you to understand that by taking the position that you do this morning, that you want to continue with the Gallina firm representing all six of you, despite what we talked about here earlier, that you are doing this for good. You are committing yourselves now and you are never going to be able to raise this question on appeal or any other time if something develops during the trial that ...