UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 15, 1978
GEORGE KAPLAN, PETITIONER-APPELLANT,
ROY BOMBARD, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT-APPELLEE
Appeal from an order entered in the Southern District of New York, Gerard L. Goettel, District Judge, F. Supp. , which denied a state prisoner's petition for a writ of habeas corpus, the essential question presented being whether the district court correctly rejected petitioner's claim that he was denied his Sixth Amendment right to the effective assistance of counsel as a result of his attorney's joint representation of petitioner and two co-defendants at the state court trial which resulted in his conviction of second degree arson.
Mansfield and Timbers, Circuit Judges, and Dooling, District Judge.*fn*
TIMBERS, Circuit Judge
On this appeal from an order entered in the Southern District of New York, Gerard L. Goettel, District Judge, 444 F. Supp. 233, which denied a state prisoner's petition for a writ of habeas corpus, the essential question presented is whether the district court correctly rejected petitioner's claim that he was denied his Sixth Amendment right to the effective assistance of counsel as a result of his attorney's joint representation of petitioner and two co-defendants at their state court trial which resulted in the conviction of petitioner of second degree arson. We affirm.
In July 1973 petitioner George Kaplan, together with Jerry Gomberg and Martin Hodas, was indicated by a New York County Grand Jury of the crimes of second degree arson and criminal mischief for their participation in setting fires at two massage parlors in the Times Square area - the Palace and the French Model Studio - on May 10, 1972 and July 25, 1972, respectively. The two burned massage parlors were in competition with the Geisha House, another massage parlor in the same area which allegedly was owned by petitioner and his co-defendants. The motive for the fires, according to the evidence at the state trial, was the extreme disturbance on the part of the three defendants with the fact that the two competing massage parlors were undercutting the prices charged by the Geisha House.
On December 20, 1973, after a five day jury trial in the New York County Supreme Court before Justice Richard G. Denzer, Kaplan and Gomberg were convicted of two counts of second degree arson. Hodas was acquitted. On February 14, 1974 Kaplan and Gomberg filed a post-trial motion to set aside their convictions on the grounds, among others, that there had been a conflict of interest resulting from their attorney representing them, as well as the codefendant Hodas, at trial. Following an extensive evidentiary hearing on this motion on February 28, 1974, Justice Denzer denied the motion on April 19, 1974. On the same day sentence was imposed on both defendants. Kaplan was sentenced to an indeterminate term of imprisonment not to exceed seven years.
On December 3, 1974 the Appellate Division unanimously affirmed both convictions. People v. Gomberg, 46 A.D.2d 850, 362 N.Y.S.2d 832 (1st Dept. 1974) (mem.); People v. Kaplan, 46 A.D.2d 850, 362 N.Y.S.2d 833 (1st Dept. 1974) (mem.). The New York Court of Appeals on December 29, 1975, in a comprehensive opinion by Judge Jasen, also unanimously affirmed both convictions. People v. Gomberg and Kaplan, 38 N.Y.2d 307, 342 N.E.2d 550, 379 N.Y.S.2d 769 (1975). An application for a stay was denied by Mr. Justice Marshall of the United States Supreme Court. No further review was sought in the Supreme Court.
Having exhausted his state remedies,*fn1 Kaplan filed the instant petition for a writ of habeas corpus in the Southern District of New York on June 1, 1976, from the denial of which by Judge Goettel in a well reasoned opinion filed January 6, 1977 the instant appeal has been taken.*fn2
In view of the adequate statements of the facts in the opinions of the New York Court of Appeals and of the district court below with which we assume familiarity, we shall summarize here only those facts and prior proceedings necessary to an understanding of our rulings below on petitioner's claim of denial of effective assistance of counsel.
Turning first to the state court proceedings prior to trial, Justice Denzer conducted a hearing to determine if joint representation would create a potential conflict of interest prejudicial to any of the defendants. In the presence of defense counsel and the assistant district attorney, the judge addressed the three defendants to determine if they viewed their defense "as being in conflict or that there might be a conflict of interest with respect to any attorney that represents all three of you." When asked if he wished to change lawyers, Hodas replied that he wanted Kassner to continue to represent him. Gomberg at first appeared not to understand what the judge was getting at, stating that it might be "better for us to get another lawyer." At that point the prosecutor stated that in his view the defendants were attempting further to stall the trial which already had been delayed for several months. Defense counsel Detsky then informed the judge, in the presence of the three defendants, that he had discussed the problem with his clients several days earlier and that all three had stated that they "had confidence in our firm [Kassner & Detsky] to handle it." The judge then specifically asked Detsky, in the presence of the three defendants, whether "the way the situation stands is that you advised them of this and they told you they didn't want to hire other counsel?" Detsky replied that the judge's understanding was correct. After further discussion, the judge concluded by stating that the trial would proceed but that the defendants were at liberty to bring other counsel into the case at any time if they felt that there was a conflict. Throughout this entire proceeding the judge addressed all three defendants. Kaplan remained silent throughout.
After reviewing this pre-trial inquiry by the trial judge, the New York Court of Appeals concluded:
"We hold that the Trial Judge's inquiry of appellants and their counsel as to possible conflict of interest in this case was more than sufficient to protect the appellants' right to effective assistance of counsel. Although Gomberg initially expressed some misgivings, at the end of the proceedings all of the defendants were made aware of the possible conflict and acquiesced in the continuation of the Kassner & Detsky representation. The court took added precaution to advise the defendants that if at some later stage of the trial a conflict arose, the court would permit other counsel to enter the case. The defendants, intelligent and perceptive businessmen, never complained thereafter. They should not be permitted to complain now." 38 N.Y.2d at 315, 379 N.Y.S.2d at 776.
At the trial itself which began on December 12, 1973 the state's case relied heavily on the testimony of three employees of the Geisha House (paid accomplices) who had been ordered by Kaplan and his co-defendants to start the fires, and did so. The state also called a former associate of the defendants, Nicholas Valentine, who owned one of the competing massage parlors. Valentine, whose testimony was offered to corroborate that of the three accomplices, testified that on two occasions the defendants had threatened him. One such occasion was immediately after the first massage parlor had been burned when the defendants warned him that if he did not raise his prices his massage parlor would be next. It was.
The defense case consisted chiefly of vigorous cross-examination of the state's witnesses. The only witnesses called by the defendants were their attorney, Kassner; an accountant for several of Hodas' corporations, Herbert Levin; and Hodas, the only defendant who testified and the only one who was acquitted. Hodas testified, among other things, that he was merely a landlord of the Geisha House and therefore had no motive to set fire to competing massage parlors.
Kaplan's claim of denial of effective assistance of counsel because of the joint representation of the three defendants by the same attorney, Kassner, was first raised in his posttrial motion before Justice Denzer in the New York County Supreme Court. Substantially the same claim has now been rejected by three state courts and by the district court. For the reasons which follow, we also hold that the claim is without merit.
Upon this record of the facts and prior proceedings, the applicable law is simple and straightforward. It involves two essential questions. First, was Kaplan prejudiced by the joint representation of himself and his two co-defendants by the same attorney? Second, did he consent to such joint representation? These are the two questions which the New York Court of Appeals and the district court fully and carefully examined before concluding that Kaplan was not denied the effective assistance of counsel. We agree.
As Judge Mulligan well stated in United States v. Carrigan, 543 F.2d 1053, 1055 (2 Cir. 1976):
"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."
Accord, United States v. Mari, 526 F.2d 117, 119 (2 Cir. 1975); United States v. Vowteras, 500 F.2d 1210, 1211 (2 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 (2 Cir. 1973); United States v. Lovano, 420 F.2d 769, 773 (2 Cir.), cert. denied, 397 U.S. 1071, 25 L. Ed. 2d 694, 90 S. Ct. 1515 (1970).
In short, as the New York Court of Appeals pointed out in the instant case, 38 N.Y.2d at 312, 379 N.Y.S.2d at 773, "the joint representation of defendants is not per se a denial of the effective assistance of counsel", citing People v. Gonzalez, 30 N.Y.2d 28, 34, 280 N.E.2d 882, 885, 330 N.Y.S.2d 54, 59, cert. denied, 409 U.S. 859, 93 S. Ct. 145, 34 L. Ed. 2d 105 (1972). Nor has our Court ever subscribed to such a per se rule, and we emphatically reject it here.
Kaplan's claim of prejudice centers chiefly on the asserted conflict which he says arose because his co-defendant Hodas testified that as landlord he lacked the motive to set the fires. Kaplan contends that defense counsel's emphasis on Hodas' lack of motive in turn emphasized that he and his co-defendant Gomberg did have a motive. While it is true that Hodas did present a separate defense which was unavailable to Kaplan, it does not follow that the positions of the three defendants necessarily were in conflict. Hodas did not attempt to place the blame for the arson on Kaplan. Nor did his lack of motive argument conflict with Kaplan's defense. The prosecution charged uniform participation by each defendant.*fn3 Thus they all had a common interest in attacking the credibility of the state's witnesses. In the course of emphasizing Hodas' lack of motive, defense counsel sought to undermine the testimony of the state's witnesses that Hodas had participated. To the extent that this impugned the credibility of the state's witnesses, it aided in the defense of Kaplan and Gomberg. Kaplan's claim of prejudice is grounded on speculation as to what the jury thought. It fails to show any "specific instance of prejudice" or any "real conflict of interest". United States v. Carrigan, supra, 543 F.2d at 1055.
Kaplan also urges that he was prejudiced by his attorney's failure to call him as a defense witness, although Hodas did testify. True, joint representation does present problems when one of several defendants takes the stand. Morgan v. United States, 396 F.2d 110, 114 (2 Cir. 1968).*fn4 As stated above, however, Hodas' testimony did not conflict in any way with Kaplan's defense. Nor is it clear that Kaplan's testimony would have added anything new to the defense. Moreover, if Kaplan had testified, he would have been subject to cross-examination on his criminal record. Hodas had no prior criminal record, whereas both Kaplan and Gomberg did. The decision not to call Kaplan was a matter of sound trial tactics. United States v. Garguilo, 324 F.2d 795, 797 (2 Cir. 1963) (Kaufman, J.).*fn5
We hold that Kaplan was not prejudiced by the joint representation of himself and his two co-defendants by the same attorney.*fn6
We come finally to the question whether Kaplan consented to the joint representation.
At the outset we note that, although counsel have cast the question as one of waiver, we believe that this "is not truly a case of waiver of a constitutional right; it is a decision to assert one constitutional right instead of another." United States v. Bubar, 567 F.2d 192, 203 n. 18 (2 Cir. 1977), cert. denied, 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 (1977) quoting from United States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 133-34 (2 Cir. 1975) (Feinberg, J.), cert. denied, 426 U.S. 937, 96 S. Ct. 2652, 49 L. Ed. 2d 388 (1976). See United States ex rel. Martinez v. Thomas, 526 F.2d 750, 756 n. 8 (2 Cir. 1975). Upon the record before us we believe that the question presented is not whether Kaplan waived his constitutional right to the effective assistance of counsel, but more accurately whether he asserted his constitutional right to be represented by counsel of his own choice - in short, to be represented jointly by counsel who also represented his co-defendants.
We have summarized above, (Slip Op.) pp. 4-5 supra, the trial judge's pre-trial inquiry on the issue of a potential conflict of interest arising from joint representation - an inquiry which the New York Court of Appeals held was "more than sufficient to protect the appellants' right to effective assistance of counsel." 38 N.Y.2d at 315, 379 N.Y.S.2d at 776. Kaplan nevertheless contends that this inquiry was insufficient to impose the burden of proof on him*fn7 or to establish waiver. He argues that the trial judge was obliged to conduct a personal inquiry of each defendant and to obtain from each his express consent on the record to joint representation.
Upon the facts of this case, we hold that the trial judge's failure to address each defendant personally and to elicit a response from each does not preclude a finding of consent to joint representation.*fn8 The evidence shows that Kaplan consented to joint representation at a meeting with counsel prior to trial. At the pre-trial inquiry he heard defense counsel report his consent. He did not object. He was warned specifically about a possible conflict by the trial judge. He was offered the opportunity to obtain separate counsel. At no time during the pre-trial inquiry or during the trial did he object to joint representation.
We agree with the observation of the New York Court of Appeals in the instant case that "it is appropriate, under such circumstances, for the court to place great weight upon counsel's representation that there is no conflict in his joint representation. Similarly, the court may rely upon counsel's assurances that he fully discussed the potentiality of conflict with his clients and received their continued approbation." 38 N.Y.2d at 314, 379 N.Y.S.2d at 775, citing United States v. Armone, 363 F.2d 385, 406 (2 Cir.), cert. denied, 385 U.S. 957, 17 L. Ed. 2d 303, 87 S. Ct. 391 (1966).
Under this branch of the inquiry as to whether Kaplan was denied the effective assistance of counsel, we conclude under the circumstances of this case that he consented to the joint representation.*fn9 Here again we agree with the conclusion reached by the New York Court of Appeals:
"The trial court, by its careful and measured response to the conflict of interest issue, more than fulfilled its obligation to make a reasonable inquiry of possible conflict. The defendants, after being alerted to the existence of a possible conflict of interest and given the opportunity to retain separate counsel, consented to continued representation by Kassner & Detsky. By his consent, which was knowingly and intelligently made, defendant Kaplan, as well as defendant Gomberg, waived any claim of possible prejudice resulting from the joint representation." 38 N.Y.2d at 316, 379 N.Y.S.2d at 777.
We have carefully considered Kaplan's other claims of error and find them to be without merit.*fn10
MANSFIELD, Circuit Judge (concurring).
Although we have not held that joint representation of two defendants in a criminal case amounts to a per se denial of effective assistance of counsel, I view it as something to be frowned upon because of its potential for conflict of interest on the counsel's part. The rules we have established in a long line of cases raising this constantly recurring problem should therefore be strictly construed. Applying them here, I find myself able to concur solely because of the absence of sufficient particularized prejudice from the joint representation of Kaplan and two co-defendants to warrant a finding that he was unconstitutionally denied his right to effective assistance of counsel under the Sixth Amendment.
Although Hodas' successful effort at trial to disassociate himself from Kaplan and Gomberg by showing his lack of the motive they possessed and by taking the witness stand, which they did not, might have hurt Kaplan in the jury's eyes, the possible harm is speculative at best and there is no showing that if Kaplan had been separately represented his counsel would have improved his tactical trial position or chosen to expose his criminal record by putting him on the witness stand. Thus, with or without separate counsel, the potential prejudice to Kaplan arising out of Hodas' separate defense remained substantially the same.
When it comes to the questions of whether Kaplan consented to joint representation and whether the trial judge followed the proper procedure in resolving that issue, I do not share the views expressed by the majority opinion. While we have occasionally relied upon defense counsel's statement as the basis for permitting joint representation, the preferred procedure is for the trial court, before permitting such representation, to address the defendants personally and elicit from them responses clearly indicating their understanding of the risks involved and their desire to be jointly represented. Abraham v. United States, 549 F.2d 236, 239 (2d Cir. 1977) ("defendant should be given the opportunity to express his views"); United States v. Mari, 526 F.2d 117, 118 (2d Cir. 1975), cert. denied, 429 U.S. 941, 50 L. Ed. 2d 311, 97 S. Ct. 358 (1976) (defendants "replied in the affirmative" that they understood possibility of conflict and wanted to be jointly represented). The personal responses of the defendants were elicited in 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 (2d Cir. 1973); and United States v. Sheiner, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 24 L. Ed. 2d 76, 90 S. Ct. 68 (1969).
Here, in contrast, the trial judge did not obtain a personal response from Kaplan. Moreover, joint representation of the three defendants was permitted after one, Gomberg, repeatedly stated to the trial judge that he would like to confer with another lawyer and after his counsel had stated to the court that "There might be a conflict"; that he had unsuccessfully moved for a severance of Hodas on that ground; and that he had suggested to them (Gomberg and Kaplan) that they should get a different lawyer than counsel representing Hodas but that they had decided to continue with him as their joint attorney. In the verbal melee that followed in the courtroom, Kaplan does not appear to have been accorded any opportunity to express his views or state whether he wished to be represented by the same attorney who represented the other two defendants. Nor does the background of Kaplan, a person with a sixth grade education, suggest that he understood the import of counsel's colloquy with the court or intelligently concurred in it.
Under all of these circumstances I cannot join in the conclusion that the trial judge's inquiry measured up to the standards we have established or that Kaplan's conviction should be affirmed on the ground that he knowingly and intelligently consented to continued joint representation. However, even if we assume that because of the inadequacy of the state judge's inquiry the burden was on the state to show lack of prejudice, see United States v. Carrigan, 543 F.2d 1053, 1056 (2d Cir. 1976); United States v. DeBerry, 487 F.2d 448, 453-54 n.6 (2d Cir. 1973), I believe that burden was sustained in the present case. Absent a claim or indication of some specific instance of prejudice attributable to the joint representation, the state cannot be required to go any further in proving a negative.