Doherty v. United States

948 F. Supp. 111, 1996 U.S. Dist. LEXIS 18437, 1996 WL 711376
CourtDistrict Court, D. Massachusetts
DecidedNovember 20, 1996
DocketCivil Action No. 96-11112-WGY
StatusPublished
Cited by1 cases

This text of 948 F. Supp. 111 (Doherty v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doherty v. United States, 948 F. Supp. 111, 1996 U.S. Dist. LEXIS 18437, 1996 WL 711376 (D. Mass. 1996).

Opinion

MEMORANDUM AND ORDER

YOUNG, District Judge.

John Doherty (“Doherty”) has petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2255. Doherty asserts that his conviction before this Court was constitutionally defective because he was deprived effective assistance of counsel. Specifically, Doherty claims that his trial counsel “labored under an impermissible conflict of interest” which led him to abandon critical lines of cross-examination and which permitted the government to impugn the credibility of Doherty’s counsel in front of the jury.

I. BACKGROUND

Doherty was convicted on June 16, 1995 of racketeering under 18 U.S.C. § 1962(c), racketeering conspiracy under 18 U.S.C. § 1962(d), aiding and abetting attempted murder under 18 U.S.C. §§ 1959(a)(3) and (2), and conspiracy to distribute cocaine under 21 U.S.C. § 846. These offenses stemmed from Doherty’s involvement in an organized racketeering and drug distribution enterprise (the “enterprise”) in Charlestown, Massachusetts. The Superseding Indictment charged Doherty, along with John Houlihan, Michael Fitzgerald, and nine others, with a variety of criminal conduct arising out of this enterprise.

Doherty hired attorney Charles Clifford (“Clifford”) of Charlestown, Massachusetts to represent him in this matter. Clifford, a local Charlestown attorney, had previously represented an individual by the name of Michael Nelson (“Nelson”), who turned out to be another member of the enterprise.1 Nelson was scheduled to appear as a government witness against Doherty. In addition, Clifford represented Joyce Driscoll (“Driscoll”), who was charged with obstructing justice before the same grand jury that returned the indictment against Doherty.

The government filed a motion to disqualify Clifford from simultaneously representing both Doherty and Driscoll. The government’s motion also sought to disqualify Clifford from representing Doherty on the ground that Clifford had previously represented Nelson. The government stated in its motion that Nelson would not waive the attorney-client privilege as to matters discussed with Clifford.2 Clifford opposed the motion to disqualify him. Attached to the opposition was an affidavit signed by Doherty stating that he understood the conflict of interest facing Clifford and that he nonetheless “waive[d] any claim or appeal which might arise due to the potential conflict of interest.” Affidavit of John Doherty, Jul. 12, 1994, Crim. No. 93-10291-WGY (Docket # 161).

This Court conducted a hearing on the motion to disqualify attorney Clifford from representing Doherty. During the hearing, this Court informed Doherty of the conflict of interest confronting Clifford. In addressing Doherty, this Court stated the following:

The government, it’s clear that the government now is going to be calling, or appar[114]*114ently in Mr. Doherty’s case, a couple of people who in the past Mr. Clifford represented. And those folks, at least while Mr. Clifford represented them, he owed them the same as he now owes you. That is a duty of 100 percent faithful fidelity to do the very best he could for those clients when he represented them.
. And part of that relationship, under our law means that those clients, just as you can now, can feel free to confide in him those things that he needs to know to give them back when he was representing them, adequate representation, and you can feel free to confide in him those things that he needs to know to give you adequate representation....
Well now, these two former clients, they at least say, or the government fellow tells me this, that they’ve told Mr. Clifford things and he can’t use what he knows from them, just because they told the government now, the same things because he only knows it because they told him in the privacy of representation____
And that means that if he does know things, and the only way he. knows them, the only way he could find them out or discover them, is from what these -two former clients told them or some witness before the grand jury, what he told them. He cannot use those things on your behalf. To that extent, he’s a lawyer with one hand tied behind his back. Because when he gets up to examine these witnesses, he can’t use what he knows, he can’t use anything he knows that they told him in the privacy of the attorney ¡client relationship.

Transcript of Motion Hearing, July 14, 1994 (“Motion Tr.”) at 24-26 (spelling of Defendants name corrected from original) (emphasis added).

This Court then asked Doherty the following question:

But what I want to know this afternoon is, knowing these things that I’ve told you ... about ... his former representation of these other witnesses, a couple who will be witnesses for the government ... Do you nevertheless want him for your attorney?

Id. at 26-27. Doherty answered ‘Yes, Sir.” Id. at 27. • This Court then emphasized the seriousness of Doherty’s actions stating:

The Court: You understand now, one other thing, if you go ahead now and he represents you, and things don’t turn out right, you’re convicted of something here, I at least, looking you right in the eye and telling you this, I’m going to be pretty skeptical if I then hear from you well, he didn’t do a good enough job for me because- he represented other people. Are you very clear on that?
Mr. Doherty: Yes, sir, I am.

Id. After the colloquy in open court and in consideration of the documents submitted, this Court denied the motion to disqualify and allowed Clifford to remain as Doherty’s counsel.

At trial, as expected, the government called Nelson as a witness against Doherty. During cross-examination, Clifford attempted to elicit testimony about the content of conversations he had with Nelson in the course of his representation. At one point during the cross-examination, Clifford asked Nelson: ‘You never mentioned to me during that time any of the names that have been involved in this case, did you?” Trial Transcript (“Tr.”), Vol. 7 at 153. The Assistant United States Attorney properly objected and a side bar conference followed. During that conference, the following exchange occurred:

THE COURT: ... [Ijt’s a personal privilege here. Now, I wouldn’t force Mr. Clifford off the case, but you’ve asked for that — that question asked for privileged material, ostensibly privileged material, and he can claim it, if he wants. Now I don’t see his counsel here and I don’t know whether he’ll claim it, but I’m not going to let you rove around through privileged material____
‡ ‡ ‡ ‡ ‡
MR. CLIFFORD: And the reason that I am asking that is because even as it goes to the. privilege, Mr.

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Bluebook (online)
948 F. Supp. 111, 1996 U.S. Dist. LEXIS 18437, 1996 WL 711376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doherty-v-united-states-mad-1996.