Appeal by defendants in a criminal prosecution from an order of the District Court for Connecticut, T. F. Gilroy Daley, Judge, after remand from this court, 680 F.2d 881 (1982), which refused, after a hearing, to permit their joint representation. Reversed.
Before: FRIENDLY, MESKILL and CARDAMONE, Circuit Judges.
This appeal by Francis and Gus Curcio, who are defendants along with three other persons in a criminal prosecution under 18 U.S.C. § 892 in the District of Connecticut, is a sequel to United States v. Curcio, 680 F.2d 881 (2 Cir. 1982), familiarity with which is assumed. In Curcio I we vacated an order of Judge Daly disqualifying, at the Government's request and over the Curcios' opposition, Jacob D. Zeldes and his firm, Zeldes, Needle & Cooper, P.C. (hereafter Zeldes) from appearing for either or both of the Curcio brothers, whom Zeldes had represented in a number of criminal proceedings in state and federal courts over a period of 13 years. We vacated that order on the ground that the judge had not afforded the Curcios adequate opportunity to make a knowing and intelligent waiver of their rights to conflict-free representation. We remanded the case to the district court iwth instructions to afford the the Curcios the opportunity previously denied.
The Facts and the Decision Below
On remand, the district court held hearings on July 16, July 19, and July 27, 1982.The judge began the Friday, July 16 hearing by eliciting that both Francis and Gus Curcio knew of this court's ruling in Curcio I and had discussed it with Zeldes. The judge made clear that he was going to review "certain areas" and that the Curcios were then to have the weekend to discuss them further, with the "absolute right" to consult outside counsel. Both Curcios acknowledged understanding this. Judge Daly then asked whether both understood "that there are certain risks that adhere to both of you using the same lawyer", adding "[Y]ou may not agree that it's very risky, but there are certain risks that adhere to that". Both Curcios said they understood. They also stated they had discussed some of these risks with Zeldes and had also discussed with him the nature of the Government's proof insofar as this was available. Each also acknowledged understanding that he was entitled to raise defenses which might be adverse to the other and that with the same counsel this was "going to be virtually impossible." They understood that Zeldes could not "make a recommendation" or "use information" favorable to one but unfavorable to the other without the consent of both. When the judge referred to the phrase in Judge Kearse's opinion for this court, 680 F.2d at 887, characterizing the dangers of dual representation as "ubiquitous", which he characterized as meaning "everywhere", the Curcios stated that they and Zeldes had discussed this. Zeldes interjected that he could not be certain he had "thought of every conceivable situation that will arise," and the judge said that was going to be his next question. After explaining that no lawyer could anticipate the precise course which a trial would take, he asked whether the Curcios understood that if some unexpected turn of events should cause one or the other to want to discharge Zeldes, no delay in the trial would be permitted. Both brothers said they understood. The judge next put the case of a prosecution witness whom Zeldes might think could be cross-examined to the advantage of Francis but to the disadvantage of Gus or vice versa. He asked if they realized that in such a situation Zeldes would be "hampered from free and independent representation of at least one" of them and that even if they both agreed as to the course Zeldes should take, one of them might be compromising what would be in his own best interests; the Curcios said they understood. Judge Daly put the classic case of one defendant wishing to testify and the other not. Gus said it was his understanding that Zeldes couldn't prevent him from testifying. The judge answered that this was so, but that Gus' decision to testify might nevertheless place Zeldes in a position where he could no longer represent him. Gus said he understood that this could happen and also that if Zeldes had to withdraw or Gus had to fire him, no delay in the trial would be tolerated. After reverting to the case of the witness favorable to one defendant but unfavorable to the other, the judge went on to discuss plea negotiations. He inquired whether they understood that if only one wished to plead guilty, it "could be difficult for Mr. Zeldes to represent that defendant in those negotiations . . .". The Curcios said they understood. After elaborating still further on the theme of the witness favorable to one Curcio but unfavorable to the other, which Zeldes agreed should be further explored over the weekend, inquiring whether the Curcios wished to ask him any questions, eliciting that the Curcios understood that Zeldes would have to share all communications from the Government with both of them, and obtaining negative answers to his inquiry whether the Curcios' responses to his questions or their desire to waive the right to separate counsel had been induced by promises or threats of any kind, the judge adjourned the hearing until July 19. He asked Zeldes to discuss the problem of joint representation with the Curcios again and requested them to consult with another lawyer or lawyers if they wished. At the conclusion of the hearing, the Government informed the court that, in light of our opinion in Curcio I, it had no further opposition to Zeldes' representing just one of the Curcio brothers.
When the hearing resumed on July 19, the court announced its intention to examine the defendants one at a time and to have Francis, who was in custody, "kept downstairs until we have done Gus Curcio." Zeldes objected without success that each defendant was entitled to hear the colloquy with the other. We can omit the court's discussion with Gus since only Francis' waiver of the right to conflict-free representation was found to be not knowing and intelligent.*fn1 The judge began the discussion with Francis by reventilating a problem discussed at the July 16 hearing, namely, whether one of the Curcios could "fire" Zeldes if unexpected problems should arise during the trial. The judge clarified his position as being that he would be the one to decide whether Zeldes should be removed from the case; Francis said he understood this. The judge then ascertained that Francis was feeling better than he had been on Friday and that he had conferred over the weekend with Zeldes and with his brother. In contrast to Gus, however, he had not conferred with outside counsel, explaining "I don't feel the need to, "cause I want Mr. Zeldes for my counsel." The following colloquy then ensued:
The Court: Now, having thought about the matter and having consulted with Mr. Zeldes, is it still your wish that Mr. Zeldes represent you in this case?
Def. F. Curcio: Yes, your Honor.
The Court: And that he also represent your brother?
Def. F. Curcio: Yes, your Honor. Yes, sir.
The court then endeavored to have Francis tell him what it was he was waiving by having Zeldes represent both him and his brother. The discussion continued:
Def. F. Curcio: Waiving, that he could tell my brother anything that goes on in the case.
The Court: Do your see any other matters that might be risky to you in having him represent two people in this case?
Def. F. Curcio: No, I don't see no -- I don't see nothing.
The Court: What about if he can't cross-examine a witness the way he might want to for you because he's representing Gus?
Def. F. Curcio: We go into that, we know what we're doing if we go into that.
The Court: You see that potential risk since you want something done that can't be done because it may be against Gus' interests to do it?
Def. F. Curcio: I don't think it's a risk.
The Court: You don't think it's a risk?
Def. F. Curcio: It may be, but, I mean, you know, I know what we're doing. We know what we're doing. I know what I'm doing.
The Court: All right. What about the risk that it might shape up in, you know as much as or as little as any of us know about this case, or think we know about it, you're a person of experience, as is your brother and, of course, Mr. Zeldes has had considerable experience in the courtroom, and I have had a little bit here and ...