The opinion of the court was delivered by: BRODERICK
In this action, the government charges all defendants with conspiracy to violate the federal narcotics laws. Various defendants are also charged with substantive narcotics violations. Trial is scheduled to begin July 9, 1979.
The government made a pre-trial motion seeking the disqualification of either Mr. Jerry Feldman or Mr. Lawrence Dubin, defense counsel for Mr. Claude Helton and Mr. Richard Helton, respectively, who are members of the same firm;
the government argued that the joint representation by the Feldman-Dubin firm of co-defendants in this case is impermissible because of potential conflicts of interest.
I instructed the government and defense counsel to submit briefs on the issue of joint representation. After receipt of the briefs, I held a hearing on May 31, 1979 with the government, defendants, and defense counsel. At the hearing, the government argued that by the very nature of the charges against the defendants, and the different nature and degree of their alleged involvement in the crimes charged, joint representation of the two defendants will entail conflict of interest. Defense counsel responded that the government's predictions of conflict are unfounded and designed to obstruct defendants' choice of counsel. Defense counsel represented that they had fully advised their clients of potential conflicts, and that their clients wish to proceed with them as counsel and waive any conflict claims.
Claude Helton is charged in six counts of the indictment, with conspiracy to violate the federal narcotics laws, with engagement in a continuing criminal enterprise, and with four counts of distributing and possessing with intent to distribute narcotics. He is characterized in the indictment as the ringleader of the conspiracy.
Richard Helton is charged with conspiracy to violate the federal narcotics laws, and with one count of distributing and possessing with intent to distribute narcotics. Richard Helton is described in the indictment as one of Claude Helton's "lieutenants". Claude and Richard Helton are named together in one of the alleged overt acts of the conspiracy, and in an apparently related substantive count.
Richard Helton is likely to have defenses or defense tactics available to him which are inconsistent with or may undermine defense postures taken by Claude Helton, and vice versa.
The Government represented that the defendants, who are brothers, have very different backgrounds. Claude Helton has previously been convicted of a felony whereas Richard Helton apparently has no convictions. The Government plans to file a second offender information with respect to Claude Helton.
On the basis of the above, I found that it was impossible for Claude and Richard Helton to make a knowing and effective and intelligent waiver of their right to effective assistance of counsel. To insure their Sixth Amendment right to effective assistance of counsel, I directed that Claude Helton and Richard Helton be represented by attorneys who are independent of each other.
Analytically, there are three possible approaches to a conflict of interest stemming from joint representation. One is the approach which I have taken in this case.
Another approach is the invocation of a Per se rule against joint representation of co-defendants in any criminal trial. Although defendants, at the May 31 hearing, sought to characterize my ruling as a Per se rule, that ruling was made in the context of this case and does not operate as or under any Per se rule.
A third approach is that suggested by defendants, who urged that certain opinions of the Court of Appeals in this Circuit divest the trial court of power to prohibit joint representation of defendants in criminal cases where the defendants, after being advised of the danger of actual and potential conflicts of interests, choose to proceed with ...