Appeal from convictions entered in the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, for the interstate transportation and aiding and abetting the transportation of stolen goods in violation of 18 U.S.C. §§ 2314 and 2.
Lumbard, Mansfield and Mulligan, Circuit Judges.
These are appeals from judgments of conviction entered on July 22, 1974 in the Northern District of New York. The appellants Richard P. Carrigan and Robert E. White were indicted on March 13, 1974 on one count of wilfully, knowingly and unlawfully transporting stolen goods in interstate commerce from Gloversville, New York to Haverhill, Massachusetts in violation of Title 18 U.S.C. §§ 2314 and 2. The stolen property consisted of raw and treated cowhides, goat skins, suede leather skins and ladies cowhide coats, valued at approximately $37,475. After a three-day jury trial before the Hon. Lloyd F. MacMahon, sitting by designation, both defendants were found guilty as charged on June 17, 1974. On July 19 Judge MacMahon sentenced each defendant to eight years imprisonment and each has been imprisoned since January 1975. Both defendants were represented by the same trial attorney who was jointly retained.
The Government's case below was established by eight witnesses and some eleven exhibits. The proof disclosed that White and Carrigan contacted one Joel Greenberg to find a purchaser for leather goods. They also obtained the services of Richard Ragone and Gene Southwick to burglarize the warehouse of M. Frenville Company at Gloversville, New York. Ragone rented a truck in New York with money supplied by the defendants. On the night of March 7, 1974 White and Carrigan who had borrowed a car, led Ragone and Southwick in a U-Haul truck to the Frenville warehouse where the latter two committed the burglary. After the stolen goods were loaded into the truck, Carrigan and White led the way into Massachusetts, and Southwick and Ragone followed in the truck. White and Carrigan prearranged a meeting with Greenberg in Haverhill, Massachusetts the next day, and he brought them to the warehouse of Theodore Zikos, a leather jobber, who purchased the stolen goods, making a down payment of $5,000 by check. White and Carrigan took $4,000 of this money for themselves and paid Ragone and Southwick $1,000.
Greenberg, Ragone, Southwick and Zikos all testified for the Government. Greenberg identified White and Carrigan in court as the men who had previously arranged for the sale of the goods at a meeting at the Marriott Inn in Boston, Massachusetts, three weeks before the burglary. He also testified that he had met them on March 8, 1974 in Haverhill, Massachusetts. Greenberg testified that he had unloaded the leather goods with White at the Zikos warehouse. Zikos testified that he had purchased the goods, made the down payment and saw White in the truck with Greenberg. Both Ragone and Southwick testified that they had burglarized the warehouse at the direction of Carrigan and White.
An FBI agent testified that he had interviewed the defendant White who made the statement that he was in New York on March 7 and 8 and had not left the state; further, the agent related that White claimed to have spent the evening of March 8 at Carrigan's apartment with Carrigan, Carrigan's wife, and the people next door. Carrigan testified at the trial that he and White had been in Massachusetts on those dates, had been in contact with both Greenberg and Zikos and had arranged the sale but denied that they knew the leather had been stolen and claimed they were only participating as a favor to Ragone. White did not take the stand.
Although other questions are raised, the crucial issue on this appeal is the fact that both Carrigan and White were represented on trial by the same attorney. The Government admits, moreover, that the court did not make any inquiry either of White or Carrigan or their counsel as to whether the defendants would be prejudiced by being represented by the same attorney. Both appellants now urge that their representation by one attorney produced a conflict of interest which violated their Sixth Amendment right to counsel.
The law in this Circuit is clear. When a potential conflict of interest arises, either where a court has assigned the same counsel to represent several defendants or where the same counsel has been retained by co-defendants in a criminal case, the proper course of action for the trial judge is to conduct a hearing to determine whether a conflict exists to the degree that a defendant may be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the Sixth Amendment. The defendant should be fully advised by the trial court of the facts underlying the potential conflict and be given the opportunity to express his views. United States v. Mari, 526 F.2d 117, 119 (2d Cir. 1975); United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973); United States v. Alberti, 470 F.2d 878, 881 (2d Cir. 1972), cert. denied, 411 U.S. 919, 36 L. Ed. 2d 311, 93 S. Ct. 1557 (1973).
The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. United States v. Mari, supra, 526 F.2d at 119; United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069, 42 L. Ed. 2d 665, 95 S. Ct. 656 (1974); United States v. Wisniewski, 478 F.2d 274, 281 (2d Cir. 1973); United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 25 L. Ed. 2d 694, 90 S. Ct. 1515 (1970). In all of these cases the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the defendants involved. Here the record is barren of any inquiry by the court or any concern by the Government.
In United States v. DeBerry, supra, 487 F.2d at 453-54, we reversed the conviction of both defendants represented by the same retained counsel, finding the inquiry of the district court judge insufficient to establish lack of prejudice. We noted with approval the view of the First Circuit in United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government. 487 F.2d at 453 n.6.
Applying these principles here, we find no real alternative other than reversing both convictions and remanding for a new trial. Chief Judge Lumbard in Morgan v. United States, 396 F.2d 110, 114 (2d Cir. 1968), in pointing out the obligation of the court to make the inquiry as to possible prejudice, stated:
This is so especially where there is a question as to whether either or both of the defendants should take the stand. This kind of decision, difficult enough where two defendants at the same trial are represented by different counsel, is made doubly difficult where they are represented by the same counsel. The decision whether a defendant should testify may be unduly affected by the risk that his testimony may develop so as to disclose matters which are harmful to the other defendant or which conflict with the other defendant's story. The attorney's freedom to cross-examine one defendant on behalf of another will be restricted where the attorney represents both defendants. And if, where two defendants are represented by the same attorney, one defendant elects to take the stand and the other chooses not to, the possible prejudice in the eyes of the jury to the defendant who does not take the stand is almost inescapable.
Here the defendant Carrigan alone took the stand and his testimony directly conflicted with White's statement to the FBI that he, White, had not left the Albany-Schenectady area of New York State on the evening of March 7 or on March 8, 1974, and had nothing to do with the burglary. Carrigan testified that although neither he nor White participated in the interstate transportation of the goods or knew them to be stolen, they had prearranged the sale and they did meet Ragone and Southwick in Massachusetts on March 7, to take delivery of the goods; further, Carrigan stated that on March 8, they met with Greenberg and concluded the sale of the goods. He further testified that he and White had then flown back to ...