United States v. Barker

563 F.2d 652
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 6, 1977
DocketNo. 77-1497
StatusPublished
Cited by1 cases

This text of 563 F.2d 652 (United States v. Barker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barker, 563 F.2d 652 (4th Cir. 1977).

Opinion

WIDENER, Circuit Judge:

This is an appeal by ten witnesses from the district court’s order disqualifying Sol Z. Rosen, Esquire, and Joseph M. Whitehead, Esquire, from representing them in a grand jury investigation concerning interstate prostitution, where each witness invoked the Fifth Amendment and where the government pointed to three witnesses and Mr. Whitehead as targets of the investigation.

In February 1977, a special grand jury for the United States District Court for the Western District of Virginia convened at Lynchburg to investigate possible violations of federal laws against interstate prostitution and racketeering.1 Messrs. Rosen and Whitehead represented ten of the witnesses subpoenaed to appear before the grand jury. At the opening of the proceedings, the government informed Mr. Whitehead that he was a target of the investigation and asked him to withdraw because some of his clients might be called upon to testify against him. He refused. The court noted the possible impropriety of Mr. Whitehead’s continued representation but declined to take any action to disqualify him at that time. It then denied appellants’ initial motions to quash the subpoenas and to suppress evidence.

When the witnesses represented by Messrs. Rosen and Whitehead came before the grand jury to testify, the government told at least three that they were also potential targets of the investigation. Each of the ten refused to testify on Fifth Amendment grounds.

Several motions were again before the court on March 30, including a request for reconsideration of the motions to quash and to suppress evidence. The matter of Mr. Whitehead’s possible conflict of interest apparently came up again at that time but no action was taken.

When the grand jury reconvened on April 6, 1977, the United States filed a motion to disqualify Mr. Whitehead, arguing that representation of these clients would put him in the position to suppress possible testimony against himself. The government also sought to disqualify Mr. Rosen, arguing that he represented witnesses with possible conflicts of interest, that he could not, for example, advise any one of the witnesses to seek immunity in return for testifying against his other clients, that he would be in a position to use information obtained in attorney-client relationships to the detriment of his other clients, and that his clients made legally unwarranted assertions of Fifth Amendment privilege to protect other persons.

The attorneys filed written statements of each witness purporting to waive any defects in their attorney’s representation due to possible conflicts of interest. All the waivers were dated February 14 and 15, except one, which was dated April 5.

In response to the government’s motion to disqualify the two attorneys, the court examined five of the witnesses on voir dire, in camera and ex parte, at appellants’ request. It sealed the record of the voir dire also at appellants’ request. Based on this voir dire hearing, the court concluded there was “not only a potential but an actual conflict of interest in Mr. Whitehead and Mr. Rosen’s representation of multiple witnesses before the Grand Jury,” further aggravated because Mr. Whitehead was himself a target of the investigation.

We are told that the grand jury has reconvened and that the witnesses have retained other counsel. Still seeking representation by Messrs. Rosen and Whitehead, [655]*655the witnesses now appeal the district court’s order of disqualification. We affirm.

The government first argues that this is not an appealable order, noting that in United States v. Hankish, 462 F.2d 316 (4th Cir. 1972), this court declined to decide whether the “collateral order” rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), applies to an order disqualifying an attorney. Cohen provides for appeal from an interlocutory order:

“. . . which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

We agree with cases in other circuits considering the question since our decision in Hankish. That is, we think Cohen applies here because this order is final and conclusive as to Messrs. Whitehead’s and Rosen’s representation of these witnesses and because it concerns important rights which might be irretrievably lost if review were denied now. In re Grand Jury Empaneled January 21, 1975, 536 F.2d 1009, 1011 (3d Cir. 1976); United States v. Garcia, 517 F.2d 272, 275 (5th Cir. 1975); In re Investigation before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600, n. 8 (1976).

Appellants argue that the district court’s order unconstitutionally deprives them of an absolute right to counsel of their own choice under the Sixth Amendment. The question of whether or not there is any right to have an attorney represent a witness in grand jury proceedings apart from the Sixth Amendment is not before us, see Mandujano, 425 U.S. p. 581, 96 S.Ct. 1768 for the government has not raised this issue and does not contest such representation here. The only question we consider is whether these particular attorneys, situated as they are, may represent these particular witnesses, before this grand jury.

We think there may be doubt, after the Supreme Court’s plurality opinion in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), as to the extent of, and whether there is, a Sixth Amendment right to counsel for a grand jury witness who has not been charged or arrested, whether or not a target of the grand jury’s investigation. But, assuming there is, we are doubtful that the right would be absolute when conflicting with, and when posing a threat to, the public’s right to the proper functioning of a grand jury investigation, and to the judge’s duty to maintain the integrity of the grand jury proceeding he supervises. In re Gopman, 531 F.2d 262, 266 (5th Cir. 1976); In re Grand Jury Proceedings, 428 F.Supp. 273 (E.D.Mich., 1976); Pirillo v. Tarkiff, 462 Pa. 511, 341 A.2d 896 (1975) . Cf. In re Grand Jury Empaneled Jan. 21, 1975, 536 F.2d 1009 (3d Cir. 1976); In re Investigation before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600 (1976) ; and

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Related

In Re Investigation Before February
563 F.2d 652 (Fourth Circuit, 1977)

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Bluebook (online)
563 F.2d 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barker-ca4-1977.