United States v. Richard Mari

526 F.2d 117, 1975 U.S. App. LEXIS 11768

• Court: Court of Appeals for the Second Circuit
• Decided: November 25, 1975
• Docket: 318, Docket 75-2048
• Status: Published

Opinions

MULLIGAN, Circuit Judge:

On August 22, 1973 a seven-count indictment was filed in the Eastern District of New York charging appellant Richard Mari and his co-defendant William James MacQueen with extortionate extension of credit. Count I charged both defendants with a conspiracy to use extortionate means to collect and attempt to collect an extension of credit to one Joseph Freno, Jr., in violation of 18 U.S.C. § 894; Count II charged Mari alone with an extortionate extension of credit to Freno, in violation of 18 U.S.C. § 892; Count III charged both defendants with threatening Freno in order to collect from him; Counts IV and VI charged Mari alone with threatening Freno on two separate occasions; Count V alleged that both defendants used violence and other criminal means to cause harm to Freno; and Count VII accused MacQueen alone of threatening Freno. It further appears from the indictment that Mari made the initial loan to Freno, but then advised Freno that MacQueen had “purchased” the debt from Mari, so that Freno had to repay MacQueen, at an extortionate rate.

At all times throughout the proceedings both defendants were represented by the same attorney, Kenneth Salaway, Esq. On January 18, 1974, both defendants appeared before Hon. John R. Bartels, United States District Judge, to request withdrawal of their not-guilty pleas and entry of guilty pleas. At that time the court pointed out the possibility of a conflict of interest because of the joint representation, and asked both defendants and attorney Salaway if they understood the possibility of a problem. All three replied in the affirmative. Sal-away then represented that there was in fact no conflict between his clients.

On January 25, 1974, both defendants appeared again before Judge Bartels to enter their pleas. Specifically, Mari pleaded guilty to Count II of the indictment, which charged him alone with an extortionate extension of credit to Freno. An examination of the transcript of that hearing makes it clear that, in response to questions from the court, Mari claimed that he understood the nature of the charge against him, his right to proceed to trial if he wished, and the consequences of his guilty plea. In short,, there was a meticulous examination of Mari by the court to determine the voluntariness of his plea as well as the factual basis therefor.

At the same hearing defendant Mac-Queen also pleaded guilty, to a two-count superseding information. Mac-Queen’s comments indicate that he was trying to exculpate Mari by taking all the blame on himself. He concluded by saying:

I made all the threats. He just introduced me to Freno.

The Court: But Mr. Mari just told me he was guilty of the threats.

Defendant MacQueen: Well, through me. I told him what to say. I said “Just tell Mr. Freno or his son”—

The Court: Both or either of you threatened to use violence against Freno?

Defendant MacQueen: Me.

The Court: How about him?

Defendant MacQueen: No — well, I told him to say it but he never did it himself.

Oh April 5, 1974 Judge Bartels sentenced Mari to four months of imprisonment and two years eight months of probation; the period of incarceration has been served. All remaining counts against Mari were dropped. MacQueen on his guilty plea was given eighteen months’ probation.

In November 1974, after his period of imprisonment, Mari instituted the instant action to vacate his conviction, pursuant to 28 U.S.C. § 2255, on the ground that his guilty plea was involuntary and that he was denied effective assistance of counsel, because it was improper for both defendants to have been represented by the same attorney. Judge Bartels held a hearing, at which Mari testified that attorney Salaway had never discussed a possible conflict of interest with him, and that in fact he was innocent of the charge to which he pleaded guilty and had not understood his plea. Salaway testified that, while he could not recall the specific conversation with Mari, he was sure that the topic of a potential conflict of interest had arisen. After the hearing Judge Bartels denied the motion, leading to the instant appeal.

From our examination of the plea hearings there seems to be no question of the voluntariness of Mari’s plea, which means that there may well have been a waiver by him of the issue of joint representation.¹ However, in any event that issue is without merit. 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.” United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970) (citations omitted).² Here there is no showing of such prejudice. There appears to be no real conflict between Mari and his co-defendant MacQueen. Both, of course, pleaded guilty. It is true that, at the hearing on the guilty plea, Mac-Queen attempted to take the brunt of the guilt on himself and to exculpate Mari, but the latter himself still pleaded guilty voluntarily and after being fully informed of the consequences.

It is difficult to see how Salaway had any conflict of interest problem in recommending that Mari plead guilty. The record indicates that he thought that both of his clients would be convicted on trial. There was no reason for Salaway to sacrifice Mari by letting him plead guilty just because MacQueen was willing and obviously anxious to do so. Had both gone on trial and had MacQueen continued to take this position there might have been prejudice to him arising from Salaway’s joint representation of both, see United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973). In any event DeBerry only requires that the trial judge conduct a careful inquiry, including a personal interrogation of the defendants, to satisfy himself that no conflict exists and that the parties had no valid objection to joint representation. That inquiry was made here. Judge Bartels’s personal interrogation was thorough and complete. He had the opportunity on two occasions to observe the demeanor and gauge the credibility of Mari as well as MacQueen. While Mari now tries to vacate his plea on the ground that it was involuntary and that in fact he always expected to go to trial, we cannot disregard Judge Bartels’s refusal to credit Mari’s credibility.

Affirmed.

1 . See Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709-10, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958); St. Clair v. Cox, 312 F.Supp. 168, 170 (W.D. Va.1970). See generally Bishop, Waivers in Pleas of Guilty, 60 F.R.D. 513, 526-27 and cases cited (1974) (as a general principle, a guilty plea surrenders all defenses and all non-jurisdictional defects).

2 . This rule has been consistently followed by this court. E.g., United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); United States v. Wisniewski, 478 F.2d 274, 281 (2d Cir. 1973); United States v. Alberti, 470 F.2d 878, 881 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973).