Petition — Quinones v. United States

FEB 26 {980

Supreme Court of the United States. |

October Term, 1979.

No. 79-1328

WILLIAM ANTONIO QUINONES a/k/a CHENGO

a/k/a WILLIE and CANDIDA FIGUEROA,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

CHARLES B. Burr, II,

Attorney for Petitioners,

William Antonio Quinones

and Candida Figueroa.

Of Counsel:

GRIFFITH & Burr, P.C.,

Suite 200, 800 Chestnut Street,

Philadelphia, Pennsylvania. 19107

(215) 923-1900

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 —— Tel. (215) 727-8711

Se ee is aye dad Neeus eens vewes

I.

Il.

Ill.

By Failing to Distinguish the Facts and Circum-

stances of the Instant Case From the Post Trial Con-

flict Cases and the Actual Conflict Cases, and by

Disregarding the Petitioners’ Waiver of Conflict-Free

Representation, the Court of Appeals Has Denied

Petitioners Their Paramount, Continuing and In-

violable Right to Representation by Counsel of Their

A BREET SS NT NEO Ee

The Court of Appeals Has Erroneously Extended the

Holding of Holloway v. Arkansas and Its Opinion

Conflicts With Decisions in Other Circuits ........

Arbitrary Dismissal by the Trial Court of Petitioners’

Attorney Without Express Findings and Substantial

Reasons to Justify That Dismissal Is Clearly Erro-

neous and Violates Petitioners’ Due Process Right to

ER OS re ee

APPENDIX:

Excerpts From Transcript of Hearing, September 5, 1979,

in the United States District Court for the Eastern

I A I gi ccc c wesc cenccess

Ne tc ekeccee'elben

District Court Order Filed September 6, 1979

“ee ee we eee

Court of Appeals Opinion Filed January 17, 1980 ......

Court of Appeals Judgment Filed January 17, 1980 ....

Court of Appeals Order Denying Rehearing Filed Feb-

ne vcs n esse never sees

12

15

TABLE OF CITATIONS.

Cases: Page

Adams v. United States ex rel. McCann, 317 U. S. 269 (1942) 15

Abraham v. United States, 549 F. 2d 236 (2nd Cir. 1977) ... 6

Campbell v. United States, 352 F. 2d 359 (D. C. Cir. 1965) .. 10

Faretta v. California, 422 U. S. 806 (1975) ................ 15

Glasser v. United States, 315 U. S. 60 (1942) ............. 6

Holloway v. Arkansas, 435 U. S. 475 (1978) .............. 6,9

Johnson v. Zerbst, 304 U. S. 458 (1938) ..............000- 7

Kaplan v. Bombard, 573 F. 2d 708 (2nd Cir. 1978) ........ 6, 10

Matter of Grand Jury Empaneled January 21, 1975, 536 F. 2d

ee as ts Sri ee vip a chbbs haw av ean es 8,9

United States v. Atkinson, 565 F. 2d 1283 (4th Cir. 1977),

cert. denied, 436 U. S. 944 (1978) ...............005, 11

United States v. Dolan, 570 F. 2d 1177 (3rd Cir. 1978) ..... 3, 6,8

United States v. Donahue, 560 F. 2d 1039 (Ist Cir. 1977) ... 10

United States ex rel. Hart v. Davenport, 478 F. 2d 203 (3rd

C6 FOL G Fy a hCOR STKE ODEO LR ORL eV Ks 0 c0 3, 7,8

United States v. Garcia, 517 F. 2d 272 (5th Cir. 1975) ...... 6,7

United States v. Johnson, 569 F. 2d 269 (5th Cir.), cert.

MGR, Me Ue, LUO) ock cnc cv cccarvevdvesccc’ ll

United States v. Kidding, 560 F. 2d 1303 (7th Cir. 1977) ... 10

United States v. Laura, 607 F. 2d 52 (3rd Cir. 1979) ....... 12,14

United States v. Lawriw, 568 F. 2d 98 (8th Cir. 1977), cert.

Ue, Cae Wi Ws OPPO) ik viens ivncdeccevceca 10

United Sta*es v. Vargas-Martinez, 569 F. 2d 1102 (9th Cir.

PE ace Ae bce ihe elw kh KAR ECC AS CK oe wee bale’ ll

United States v. Villarreal, 554 F. 2d 235 (5th Cir.), cert.

ey NE Whe TE CADET). 5 iv ccerccecineesesavceces 6, 11

Statutes:

Constitution of the United States:

EE Cna ibs disks As das seca neeGdd idee hens 5

ts has spa Savas caw Gea wel el is ace 2

I ee sovncidveuceecdendisacue 2

21 U. S. C. 841(a)(1), 843(b), and 952(a) ............... 3

es ee EE Cbs NEV bce s bb SiWe Edaebedosleeneece 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979.

No.

WILLIAM ANTONIO QUINONES, a/k/a Chengo,

a/k/a Willie and CANDIDA FIGUEROA,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioners, William Antonio Quinones and Candida

Figueroa, pray that a writ of certiorari issue to the United

States Court of Appeals for the Third Circuit to review the

judgment of that court in affirming the Order of the United

States District Court for the Eastern District of Pennsyl-

vania.

OPINION BELOW.

The Order of the United States District Court for the

Eastern District of Pennsylvania, entered September 6,

1979 (App. A23) is not officially reported. The per curiam

2 Petition for Writ of Certiorari

Opinion of the United States Court of Appeals for the

Third Circuit, filed January 17, 1980 (App. A25) is not

yet officially reported.

JURISDICTION.

The judgment of the United States Court of Appeals

for the Third Circuit was entered January 17, 1980 (App.

A31). A timely petition for rehearing was denied on

February 11, 1980 (App. A33). The jurisdiction of this

Court is invoked under 28 U. S. C. 1254(1). |

QUESTION PRESENTED.

Whether, by disregarding Petitioners’ on-the-record

waiver of conflict-free representation, and in the absence

of an actual conflict of interest, the United States Court of

Appeals erroneously affirmed the trial court’s disquelifica-

tion of counsel and thereby deprived Petitioners, without

due process of law, of their paramount, continuing, and

inviolable Sixth Amendment right to retain counsel of

their choice.

CONSTITUTIONAL PROVISIONS INVOLVED.

The pertinent portion of the Sixth Amendment to the

Constitution of the United States provides:

“In all criminal prosecutions, the accused shall enjoy

the right to . . . have the Assistance of Counsel for his

defense.”

The pertinent portion of the Fourteenth Amendment

to the Constitution of the United States provides:

“... nor shall any State deprive any person of life,

liberty, or property, without due process of law . .

Petition for Writ of Certiorari 3

STATEMENT.

Petitioners were indicted, along with ten other defend-

ants, on May 31, 1979 in a twelve count indictment charg-

ing a conspiracy to engage in the unlawful traffic of heroin

in violation of 21 U. S. C. 841(a) (1), 843(b), and 952(a),

and related substantive offenses.

Both Petitioners are named in Count One, the con-

spiracy count of the indictment. Overt Act No. 15 states

that from December 1976 to February 1977, Petitioners

traveled to Philadelphia, Pennsylvania from Chicago, IIli-

nois. Paragraph 4(h) of the indictment alleges, in part,

that in order to further the objects of the conspiracy,

Quinones directed and supervised Figueroa in the ac-

ceptance of requests for purchases of heroin, the arrange-

ment of deliveries of heroin, the acceptance of payment for

delivery of heroin, and the delivery of heroin.

On August 27, 1979, upon learning that Petitioners in-

tended to be jointly represented, the government filed a

motion for a pretrial hearing to determine if Petitioners

would be denied their Sixth Amendment right to effective

assistance of counsel if they continued with joint represen-

tation, and if so, to determine if a knowing and intelligent

waiver of that right could be elicited.

For approximately two hours on September 4 and 5,

1979, the trial court conducted a hearing (which generated

73 pages of testimony ) pursuant to the Third Circuit deci-

sions in United States v. Dolan, 570 F. 2d 1177 (3rd Cir.

1978) and United States ex rel. Hart v. Davenport, 478

F. 2d 203 (3rd Cir. 1973).

Petitioners argued at the hearing that they have a con-

stitutional right to be represented jointly by retained coun-

sel of their choice and to waive certain Sixth Amendment

guarantees which might otherwise protect them. The gov-

ernment argued that if it acquiesced in allowing Petitioners

4 Petition for Writ of Certiorari

to proceed with joint representation it would be fostering

clearly reversible error, however remote, which might result

in needless and protracted litigation.

The trial court ruled that a potential conflict of inter-

est existed. Despite the expressed preference of Petitioners

to retain counsel of their choice and their expressed will-

ingness to relinquish their right to conflict-free representa-

tion, the trial court, without specific findings and without

articulated substantial reasons to justify disqualification of

counsel, nevertheless, was not satisfied that Petitioners

made a knowing and intelligent waiver of their constitu-

tional right to effective assistance of counsel ( App. Al6-

A21),

Without oral argument, and in a per curiam opinion,

the Court of Appeals for the Third Circuit affirmed the

District Court on January 17, 1980 (App. A25).

Defendants, William Antonio Quinones and Candida

Figueroa, now petition this Court for a writ of certiorari

to review the judgment of the Court of Appeals.

- a

Petition for Writ of Certiorari 5

REASONS FOR GRANTING THE WRIT.

The decision of the Court of Appeals in this case, if

allowed to stand, implicitly establishes a per se rule which,

despite defendants’ expressed preference to retain counsel

of their choice and an expressed willingness to relinquish

their right to conflict-free representation, disqualifies coun-

sel under all circumstances from representing more than

one defendant in a criminal case.

The rule thus established is contrary to the United

States Constitution, numerous precedents in this Court,

and conflicts with Third Circuit decisions as well as deci-

sions in other circuits. For the orderly administration of

criminal justice it is imperative that this Court establish a

uniform rule that the expressed preference of more than

one defendant for joint representation by retained counsel

must remain paramount until (1) an actual conflict of in-

terest manifests itself on the record and (2) the trial court

makes findings and articulates substantial reasons to justify

disqualification of counsel.

I. By Failing to Distinguish the Facts and Circumstances

of the Instant Case From the Post Trial Conflict Cases

and the Actual Conflict Cases, and by Disregarding the

Petitioners’ Waiver of Conflict-Free Representation,

the Court of Appeals Has Denied Petitioners Their

Paramount, Continuing and Inviolable Right to Rep-

resentation by Counsel of Their Choice.

Petitioners assert that their right to representation by

counsel of their own choice has been violated by the trial

court’s order, affirmed by the Court of Appeals preventing

their selected attorney from representing them. They fur-

ther assert that assuming arguendo that counsel is burdened

with conflicts of interest, their right to representation by

counsel of their individual choice is a paramount, continu-

ing and inviolable right which may not be abrogated by

the judgment of either the trial court or the Court of Ap-

6 Petition for Writ of Certiorari

peals. It is clear that Petitioners do not seek to waive their

right to counsel; rather, they assert their Sixth Amendment

right to be represented by counsel of their own choice.

Kaplan v. Bombard, 573 F. 2d 708, 714 (2nd Cir. 1978);

United States v. Villarreal, 554 F. 2d 235, 236 (5th Cir.),

cert. denied, 434 U. §. 802 (1977); Abraham v. United

States, 549 F. 2d 236, 239 (2nd Cir. 1977).

In the instant case the trial judge, not satisfied by

counsel's assurances alone, conducted in accordance with

the teachings of United States v. Garcia, 517 F. 2d 272

(5th Cir. 1975), cited with approval in United States v.

Dolan, 570 F. 2d 1177 (3rd Cir. 1978), a thorough exam-

ination of each Petitioner on the record in which he ex-

plained, inter alia, the seriousness of the charges, the pos-

sibility at trial that the best protection of the interest of

one defendant may be different from the protection of the

interests of the other defendant who is represented by

the same counsel, and the right of each defendant to

separate counsel. Both defendants were required to ad-

dress the court personally, assured the trial court that they

understood what was being said, and unequivocally re-

affirmed their desire to remain with present counsel (App.

A3-A10; A12-A15). In addition, both Petitioners signed,

with the advice and in the presence of Puerto Rican coun-

sel, a letter acknowledging the possibility of a conflict of

interest but nevertheless requesting representation by the

same counsel (App. Al0-A12; A22). Indeed, based on

this record and colloquy, it appears self evident that Peti-

tioners waived their Sixth Amendment rights by “clear,

unequivocal and unambiguous language”. United States

v. Garcia, supra, 517 F. 2d at 278.

It is well-established that a defendant may waive his

right to assistance of counsel who is free from any conflict

of interest. Glasser v. United States, 315 U. S. 60, 70

(1942); Holloway v. Arkansas, 435 U. S. 475, 483, n. 5

(1978). The Court in Holloway noted that the inquiry

a

Petition for Writ of Certiorari 7

in Glasser into whether there had been a waiver confirmed

that a defendant may waive this right. Ibid. Specifically,

this Court stated that:

“One principle applicable here emerges from

Glasser without ambiguity. Requiring or permitting

a single attorney to represent codefendants, often re-

ferred to as joint representation, is not per se viola-

tive of constitutional guarantees of effective assistance

of counsel. This principle recognizes that in some

cases multiple defendants can appropriately be rep-

resented by one attorney; indeed, in some cases, cer-

tain advantages might accrue from joint representa-

tion” 435 U. S. at 482.

Unquestionably, the Third Circuit has recognized

this principle in United States ex rel. Hart v. Davenport,

478 F. 2d 203 (3rd Cir. 1973) wherein Judge Gibbons, in

dicta, stated that the right to effective assistance of counsel

may be waived as long as the dangers of joint representa-

tion are explained to the defendant at the earliest possible

time in the proceedings. Id. at 210-211.

Admittedly, the waiver of effective assistance of coun-

sel is subject to the rules governing waiver of constitu-

tional rights. Johnson v. Zerbst, 304 U. S. 458 (1938),

which delineates the standard measuring an effective

waiver of a constitutional right, requires that a waiver

must be an “intentional relinquishment or abandonment

of a known right” which is made with an awareness of the

likely consequences of the waiver. For a trial judge to find

that a waiver is knowing and intelligent, he must be satis-

fied that the defendant is aware of the foreseeable preju-

dices his attorney’s continued representation could entail

for his trial, and possible detrimental consequences of

those prejudices. United States v. Garcia, 517 F. 2d 272,

278 (5th Cir. 1975). Thus, the Third Circuit has held:

8 Petition for Writ of Certiorari

“. » when a trial court finds an actual conflict

of interest which impairs the ability of a criminal de-

fendant’s chosen counsel to conform with the ABA

Code of Professional Responsibility, the court should

not be required to tolerate an inadequate representa-

tion of a defendant.” United States v. Dolan, 570

F. 2d 1177, 1184 (1978) (emphasis added) Accord:

United States ex rel Hart v. Davenport, supra.

Conversely, the Third Circuit has held, in the absence

of an actual conflict, criminal defendants are allowed their

choice of counsel. Matter of Grand Jury Empaneled Jan-

uary 21, 1975, 536 F. 2d 1009 (3rd Cir. 1976).

Clearly, the instant case is distinguishable from Daven-

port, supra, which concerned an appeal from a denial of

a petition for habeas corpus challenging a state court con-

viction principally on the ground that defendant was de-

prived of effective assistance of counsel in his trial because

his attorney represented his codefendant. Of course, the

instant case is still in the pretrial stage and, therefore, the

concerns of the courts expressed in post trial appeals have

no applicability. United States ex rel. Hart v. Davenport,

478 F. 2d 203, 209-210 (3rd Cir. 1973) (and cases cited

therein).

Moreover, the instant case is distinguishable from

Dolan, supra, wherein the Third Circuit affirmed the lower

court's disqualification order, on the ground, inter alia,

that an actual conflict became manifest after one jointly

represented defendant (Garafola ), entered a plea of guilty

and subsequently became an important prosecution wit-

ness which, at the trial of the remaining defendant

(Dolan), prevented counsel from effectively cross-examin-

ing his former client without intruding into matters pro-

tected by the attorney-client privilege.

Unless this Court, therefore, adopts a per se rule

which automatically disqualifies counsel from representing °

RR

Petition for Writ of Certiorari 9

more than one defendant, the expressed preference of an

accused for joint representation by particular counsel must

remain paramount until an actual conflict of interest mani-

fests itself on the record. See, e.g., Matter of Grand Jury

Empaneled January 25, 1975, supra. In short, the clash

of constitutional considerations between a criminal de-

fendant’s right to retain counsel of his own choice and the

right to have the effective assistance of counsel must be

resolved, in light of the record in this case, in favor of the

former and not the latter. To suggest, as the Government

does, that it is impossible as a matter of law to waive the

Sixth Amendment right to effective assistance of counsel

even in circumstances involving serious conflicts of interest

is both novel and unfounded.

II. The Court of Appeals Has Erroneously Extended the

Holding of Holloway v. Arkansas and Its Opinion Con-

flicts With Decisions in Other Circuits.

In Holloway v. Arkansas, 435 U. S. 475 (1978) a pub-

lic defender was appointed to represent three men charged

with rape and robbery. Although defense counsel stated

that there was a possibility of a conflict of interest among

the defendants, the court denied the attorney’s motions for

separate counsel. Against counsel's recommendations, all

three men testified. Because of the possibility of incrim-

inating one or all of the accused, the attorney was effec-

tively precluded from directly examining the three and

could not cross-examine them. The jury returned guilty

verdicts for all three on all counts. This Court reversed

and held that if defense counsel states that a grave risk

of conflict of interest exists, the failure of the trial court to

examine the claim carefully is a violation of the Sixth

Amendment.

The Third Circuit has erroneously extended the Hollo-

way holding by adopting implicitly a per se disqualification

10 Petition for Writ of Certiorari

of counsel rule which has the deceptive lure of simplicity

but which offends Constitutional principles. The extent of

this Constitutional intrusion is reflected in the disagreement

among the circuits regarding the scope and nature of the

trial judge’s duty to inquire whether a conflict exists.

The First, Eighth, and District of Columbia Circuits

impose an affirmative duty on the court in cases of joint

representation to warn defendants of the possible dangers

posed and to advise them of their right to separate counsel.’

Other circuits have less rigorous requirements. The Second

Circuit has held that during the trial court’s inquiry there

is no need to question the defendant personally regarding

waiver.” The Seventh Circuit requires even less: although

the trial court did not conduct an inquiry, it was reasonable

to assume from facts in the record that the defendant’s at-

torney had informed him of the dangers of joint repre-

sentation.*

1. See United States v. Lawriw, 568 F. 2d 98, 195 (8th Cir.

1977) (trial court properly held inquiry to inform defendant of

danger of joint representation and to determine if he wanted to

waive right to separate representation; without inquiry, difficult to

determine if defendant’s waiver knowing and intelligent), cert.

denied, 435 U. S. 969 (1978); United States v. Donahue, 560 F. 2d

1039, 1042 (1st Cir. 1977) (representation by different partners

in same firm equivalent to joint representation; failure to warn

defendants of dangers of joint representation shifts burden to Gov-

ernment to prove no prejudice resulted); Campbell v. United

States, 352 F. 2d 359, 360 (D. C. Cir. 1965) (in cases of joint rep-

resentation trial court has duty to ascertain whether each defendant

is aware of potential risks and has knowingly chosen joint repre-

sentation ).

2. Kaplan v. Bombard, 573 F. 2d 708, 714 (2d Cir. 1978) (de-

fendant waived right to separate counsel, even ape at pretrial

inquiry judge questioned attorney and defendants collectively, but

not individually; defendant remained quiet throughout).

3. United States v. Kidding, 560 F. 2d 1303, 1310 (7th Cir.

1977) (defense counsel told court that based on conversations with

defendants, he did not think there would be conflicting defenses

and if there were, he would advise one to get another attorney).

Petition for Writ of Certiorari 11

Similarly, the Fourth Circuit does not require a hear-

ing, although it has indicated that a trial judge should in-

quire into the possibility of conflicting interests whenever

multiple defendants are represented by the same attorney.‘

No hearing to advise an accused of his right to separate

representation is required in the Fifth Circuit unless there

is a claim that a conflict of interest exists, an objection to

joint representation is expressed, or notice is given to the

trial court of a possible conflict.’ Moreover, a defendant

may choose to be represented by a given attorney even

though possible or actual conflicts exist; such an election

waives the right to conflict-free representation if it is know-

ing and intelligent. In contrast, the Ninth Circuit has held

that when the trial court perceives an actual conflict of

interest, it may disregard the defendant’s waiver of his

right to separate counsel and order substitution of counsel

to ensure effective representation.”

4. See United States v. Atkinson, 565 F. 2d 1283, 1284-85 (4th

Cir. 1977) (although court should conduct inquiry into possible

conflict of interest in joint representation, failure to do so does

not per se violate sixth amendment), cert. denied, 436 U. S. 944

(1978).

5. See United States v. Johnson, 569 F. 2d 269, 272 (5th Cir.)

(attorney appointed to represent defendant’s husband-codefendant

later setebhat by defendant; no claim raised, record showed no

conflict of interest, and prejudice not proved by defendant), cert.

denied, 437 U. S. 906 (1978).

6. See United States v. Villarreal, 554 F. 2d 235, 236 (5th Cir. )

(defendant and key witness for Government represented by part-

ners of same law firm; during trial, judge notified parties of poten-

tially conflicting interests between defendant and witness and

advised against representation by partners of same law firm; de-

fendant knowingly and intelligently waived conflict-free representa-

tion), cert. denied, 434 U. S. 802 (1977).

7. United States v. Vargas-Martinez, 569 F. 2d 1102, 1104 (9th

Cir. 1978) (court properly denied request for joint representation

after one defendant agreed to become Government witness; con-

flict of interest inescapable).

12 Petition for Writ of Certiorari

Thus, the implications of the Third Circuit’s holding

that in the absence of an actual conflict of interest defend-

ants are precluded from retaining counsel of their choice

and waiving their right to conflict-free representation have

far-reaching and serious consequences. If freedom of

choice of counsel which is essential to a functioning

democracy is to be eliminated, either directly or by erosion,

and through judicial rather than legislative power, this

Court should accept the responsibility.

Ill. Arbitrary Dismissal by the Trial Court of Petitioners’

Attorney Without Express Findings and Substantial

Reasons to Justify That Dismissal Is Clearly Erroneous

and Violates Petitioners’ Due Process Right to Choice

of Counsel.

Despite the trial court’s sensitivity to the theoretical

possibility of a conflict of interest, despite the trial court’s

searching inquiry by careful and explicit questioning, and

despite the unconditional nature of Petitioners’ choice to

be represented jointly, the trial court concluded, without

articulating reasons or making adequate findings, that

Petitioners could not make a knowing and intelligent

waiver of their Sixth Amendment right to effective assist-

ance of counsel. This conclusion is self serving, arbitrary,

not supported in the record, and contrary to the law in

the Third Circuit.

United States v. Laura, 607 F. 2d 52 (3rd Cir. 1979)

held that it was clearly erroneous for the trial court to dis-

miss defendant's local counsel on the basis of a potential

conflict between local counsel and the judge. Moreover,

the Third Circuit held that defendant need not show that

dismissal of local counsel was prejudicial in order to obtain

remand for further proceedings to determine the propriety

of the lower court’s action. Id. at 58.

Petition for Writ of Certiorari 13

In speaking for the court, Judge Higginbotham’s views

are singularly relevant here in support of Petitioners’

position:

“The right of the assistance of counsel is a critical

element of our American system of jurisprudence. A

defendant’s decision to exercise that right and to place

mus liberty and possibly his life in the hands of an

attorney of his choice may not be lightly tampered

with. In this case, the district judge dismissed one

of the defendant’s attorneys without making any find-

ings to justify that dismissal.

oO Oo 2a

We also note that the ability of a defendant to

select his own counsel permits him to choose an indi-

vidual in whom he has confidence. With this choice,

the intimacy and confidentiality which are important

to an effective attorney-client relationship can be

nurtured.

Thus, if a defendant chooses a particular counsel,

the sixth amendment prevents a court from taking any

‘arbitrary action prohibiting the effective use of [a

particular] counsel.’ United States ex rel. Carey v.

Rundle, 409 F. 2d 1210, 1215 (3d Cir. 1969), cert.

denied, 397 U. S. 946, 90 S. Ct. 964, 25 L. Ed. 2d 127

(1970).

oo oO o

«“<

. . . the learned trial judge was appropriately

concerned about a reasonably prompt disposition of

his substantial caseload. He desired to move this case

with reasonable dispatch. But such dispatch, without

adequate findings, cannot justify the ruling below.”

607 F. 2d at 53, 57, 58 (emphasis added )

a

at)

Petition for Writ of Certiorari

Moreover, in Judge Adams’ concurring opinion, in

which Judge Rosenn joined, he noted:

“As Judge Higginbotham points out, the right of a

criminal defendant to be represented by counsel of

her choice is an important right-one that may not

lightly be frustrated. But this right is not absolute,

and a court may, for substantial reasons, refuse to

permit the defendant’s choice of counsel to participate

in a case.

Thus, the district court’s decision to dismiss [local

counsel] may be justifiable; but, like the majority, I

am unable to address that issue in a thoughtful manner

because the district judge did not set forth the reasons

for his ruling. A hearing on this issue followed by a

written explanation not only would facilitate review

by the Court, but also would help to ensure that Mrs.

Laura's sixth amendment rights are not impaired

without adequate justification.”

2 co °

“The right to select counsel of one’s choice is a

critical constitutional right that may be abridged only

for substantial reasons. Neither this Court nor a dis-

trict court can evaluate, under the facts of a particular

case, whether the right has been unduly fettered

unless the issue has been briefed and argued, and the

trial judge sets forth findings to justify his decision.

Accordingly, I agree that the matter should be re-

manded for a further hearing and for findings.” 607

F. 2d at 60-61. (Emphasis added )

At the very least, therefore, the judgment should be

reversed, the government’s motion for summary affirmance

should be denied, and the case remanded for findings

consistent with the law of Laura, supra.

Petition for Writ of Certiorari 15

CONCLUSION.

The questions presented by this proceeding are of

such a nature that they can be resolved only by this Court.

Otherwise, as stated in an analogous context in Adams v.

United States ex rel. McCann, 317 U. S. 269 (1942):

“What were contrived as protections for the

accused should not be turned into fetters . . . To deny

an accused a choice of procedure in circumstances in

which he, though a layman, is as capable as any

lawyer of making an intelligent choice, is to impair the

worth of great Constitutional safeguards by treating

them as empty verbalisms.

<<

. . . When the administration of the criminal

law ... is hedged about as it is by the Constitutional

safeguards for the protection of an accused, to deny

him in the exercise of his free choice the right to dis-

pense with some of these safeguards . . . is to imprison

a man in his privileges and call it the Constitution.”

317 U. S. at 279-280, cited with approval in Faretta v.

California, 422 U. S. 806, 815 (1975).

For the foregoing reasons the Petition for Certiorari

should be granted.

Respectfully submitted,

CHARLES B. Burr, II,

Attorney for Petitioners,

William Antonio Quinones and

Candida Figueroa.

Of Counsel:

GRIFFITH & Burr, P. C.,

Suite 200, 800 Chestnut Street,

Philadelphia, Pennsylvania 19107

(215) 923-1900

16 Petition for Writ of Certiorari

CERTIFICATE OF SERVICE.

I hereby certify that on the 26 day of February,

1980 three (3) copies of the within Petition for Writ of

Certiorari were deposited in a United States mail box with

first class postage prepaid addressed to the only party

herein to be served: Solicitor General, Department of

Justice, Washington, D. C. 20530.

CuHaARLEs B. Burr, II,

Attorney for Petitioners,

William Antonio Quinones and

Candida Figueroa.

APPENDIX.

EXCERPTS FROM TRANSCRIPT OF HEARING,

SEPTEMBER 5, 1979, IN THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA.

[3]

Mr. Wehner: Your Honor, if I may, this is Mr. Febles

from Pretrial Services who we have asked to attend a hear-

ing today for the purposes of interpreting.

Mr. Febles: My name is Roberto Febles, your Honor.

The Court: Very nice to have you here, Mr. Febles.

We are here to resume the hearing commenced yester-

day. What we are trying to determine is whether it is

appropriate for Mr. Burr to continue to represent both

Candida Figueroa and William Quinones, in view of the

fact that they are co-defendants in this criminal case,

79-139, together with numerous other defendants. We

paused yesterday because Mr. Dennis suggested, very

properly I think, that the inquiry was one which was par-

ticularly difficult without having the assistance of an inter-

preter who could really assure that my questions and ques-

tions put by counsel, whether Mr. Burr or Mr. Dennis or

Mr. Wehner, would be completely understood by Mr.

Quinones and Miss Figueroa and, conversely, could assure

that their responses would be fully understood by those of

us not fluent in Spanish and that the record made would

be one that would be

[4]

adequate for decision here and review, if review is required

at some later stage of the case. For that reason, Mr. Febles,

we are very gratified to have you here.

(Al)

A2 Hearing, September 5, 1979

I will undertake to ask a few questions of each of the

defendants to see if I can satisfy myself that these defend-

ants do understand the possibilities of conflicting profes-

sional obligation that Mr. Burr might be thrust in if he is

to represent both of them and in order to determine

whether, notwithstanding such awareness, these defend-

ants, as Mr. Burr has represented to us yesterday, are

desirous of and capable of making a knowing and intelli-

gent waiver of the hazards of what otherwise would appear

to be a form of representation which, with all the best will

in the world, wouldn’t afford the defendants their full con-

stitutional measure of entitled legal defense.

Now I will put certain questions but, of course, with

the understanding that these can be supplemented by

counsel, by Mr. Burr and by Mr. Dennis and Mr. Wehner.

I cannot recall whether yesterday we placed Miss Figueroa

and Mr. Quinones under oath. I hope we did.

Mr. Wehner: We didn’t, your Honor.

[5]

I'd request that we do so today.

The Court: We did not?

Mr. Wehner: No, your Honor, we did not.

The Court: I think we should do that now. I am

going to ask each of you, Miss Figueroa and Mr. Quinones,

to take an oath which Miss Fears will administer to tell the

truth in this hearing today.

The Clerk: Has the interpreter been sworn, sir?

The Court: Miss Fears has made the point that we

should begin by swearing Mr. Febles, which I think is quite

proper. If you would, Miss Fears.

(The interpreter is sworn. )

:

Hearing, September 5, 1979 A3

The Court: Mr. Febles, would you tell Miss Figueroa

aud Mr. Quinones that we are now about to swear them?

I think they may have thought they were being sworn

with you.

(The defendants are sworn. )

(The following testimony is taken with the aid of

the interpreter. )

The Court: Mr. Quinones, have you had a chance to

read this indictment?

[6]

Mr. Quinones: Yes.

The Court: Can you tell me in your own words what

charges there are in this indictment against you?

Mr. Quinones: Aiding and abetting, conspiracy, two

counts in total, three counts. Also distribution of heroin.

The Court: And what do you understand, Mr.

Quinones, was the purpose of the conspiracy that was

charged against you?

The Interpreter: He doesn’t know how to answer that

particular question. He would like for you to repeat it,

your Honor, if possible.

The Court: You know that you are charged with con-

spiracy. A conspiracy to do what?

Mr. Quinones: Conspiracy to sell and distribute

heroin.

The Court: Do you know what this conspiracy

charges? I’m sorry. I beg your pardon. Do you know

what this indictment charges against Miss Figueroa? Do

you know, Mr. Quinones, what this indictment charges?

A4 Hearing, September 5, 1979

Mr. Quinones: No, he doesn’t. That’s why I don’t

feel that it is a conflict of interest.

[7]

The Court: You say you don’t know what it charges

against Miss Figueroa?

Mr. Quinones: I know what the charges are but I

don’t feel that it is a conflict of interest.

The Court: Could you tell me what you think the

charges are against Miss Figueroa?

Mr. Quinones: She is accused of conspiracy to dis-

tribute and to supervise and arrange deliveries of heroin.

The Court: Mr. Febles, would you read to Mr.

Quinones paragraph 4H of the indictment which begins at

the bottom of Page 4 and goes to the top of Page 5?

Would you read that to him in Spanish?

( Pause. )

The Court: I beg your pardon, Mr. Febles. I wonder

if you are going further than

The Interpreter: I beg your pardon. I was going

down into the fifth paragraph.

The Court: I just wondered if you would explain to

Mr. Quinones that I am just concerned for the moment

with paragraph 4H down to just where it says number five.

Now, Mr. Quinones, when this case comes to trial it

may be that the Government through Mr. Dennis

[8]

and Mr. Wehner would put witnesses on the witness stand

who would testify that the people listed at the beginning

of that paragraph, Miriam Rios, Jesse Montero, Candida

Figueroa and John Doe, also known as Moses, did the

Hearing, September 5, 1979 A5

things that are mentioned there, accepting requests for

heroin, arranging delivery of heroin, accepting payment,

etcetera. Do you understand that witnesses for the Gov-

ernment might say those things?

Mr. Quinones: Yes.

The Court: That is, that might be a way in which the

Government would prove part of its case.

Mr. Quinones: Yes.

The Court: Now, those witnesses might also say that

these people whom I have listed were acting under the

direction of yourself and your brother, Ishmael Quinones.

You understand that possibility, do you not?

Mr. Quinones: Yes.

The Court: Now, it might well be, Mr. Quinones, that

you would feel that whatever those four people did, and

again I'm talking about Rios, Montero, Figueroa and John

Doe, was not something done

[9]

at your direction. For example, you might feel maybe

they were working for your brother but not for you. You

understand that might be a line of defense that you would

want to make against these charges and it might, for

example, be that you would want to be a witness for your-

self and to say exactly that and to explain to the jury that

you had no idea what those four people were doing.

Now, at the same time, Candida Figueroa might feel

that she would wish to defend against these charges by

saying, “I was working in an office somewhere answering

the phone and sorting mail but I was just taking messages

and typing and sealing letters and I had no idea what was

being shipped or what payments were being made for,”

A6 Hearing, September 5, 1979

and she also might say, “Whatever I was doing, which was

just clerical work, I was simply following out the directions

of the two people who I was working for, who were the

Quinones brothers.”

Now, Miss Figueroa might wish to take the witness

stand to say that to the jury. Now, Mr. Quinones, I hope

you understand that I am just describing a possible situa-

tion to you because I know nothing more about this case

than what is written down

[10]

here in this indictment and I am just trying to speculate

about possible lines of defense. Of course, here we are

just talking about one small portion of a very large case

but it happens to be a portion that relates to you, Mr.

Quinones, and to Miss Figueroa.

I should say, Miss Figueroa, that I am saying all this

to Mr. Quinones but I hope you are listening too because

in a moment I will ask Mr. Quinones a question but I will

also ask you a question in a moment or two.

Now, I wonder if you see, Mr. Quinones, that I have

suggested a situation in which Miss Figueroa would be

wishing to get on the witness stand and give testimony

which would be inconsistent with the testimony which you

would wish to give because she would be testifying about

how she took orders from you as well as your brother,

while you would wish to give testimony asserting that you

had no idea what those four people, including Miss

Figueroa, were doing.

Now, in that situation, Mr. Quinones, what I want

you to think about and what I want Miss Figueroa to think

about is what Mr. Burr should do if he is representing both

of you. Would you think he should put you on the witness

stand to give your testimony,

Hearing, September 5, 1979 A7

[11]

to ask you the questions under which you would say, “No,

I had no idea what Miss Figueroa was doing,” and then

put Miss Figueroa on the witness stand to say, “Everything

I did I was doing at the direction of Mr. William Quinones

and his brother.”

Do you see there that Mr. Burr would have a conflict

of interest?

Mr. Quinones: Yes, I see in that situation the possi-

bility of a conflict of interest. What I could do in that kind

of a situation is to leave that in the hands of the attorney

for him to decide. But I agree that in a situation such as

that there could be a conflict of interest. But we are in

agreement, both of us, that even in a situation such as

that, that he still be the counsel for both of us.

The Court: I see. Miss Figueroa, have you been

listening with care to the long speech I made to Mr.

Quinones?

Miss Figueroa: Yes, I have.

The Court: And do you understand that I have de-

scribed a situation in which you might wish to give testi-

mony going in one direction and Mr. Quinones might wish

to give testimony going in a very different direction?

[12]

Miss Figueroa: Yes, I understood.

The Court: Let me ask you, if I may, if you could tell

me in your own words what the possible conflict is that is

involved in the situation that I was asking about.

Miss Figueroa: I see there might be a conflict of in-

terest in the question concerning his job or his work and

his work consisted of giving her instructions, but I prac-

A8 Hearing, September 5, 1979

tically do not agree with the possibility of a conflict of in-

terest being present even in that situation because I was in

Puerto Rico and I didn’t have anything to do with his job

because he used to work or he worked in Chicago.

The Court: I see. Mr. Quinones, suppose that Mr.

Burr in preparing this case for trial came to the conclusion

that Miss Figueroa had some knowledge and some partici-

pation in relation to this conspiracy which has been charged

against you and her and others but that Miss Figueroa

really had a very minor role as compared with you. Do

you understand I am not saying that Mr. Burr would de-

cide, well, Mr. Quinones, you are guilty but he might de-

cide, well, the Government has a strong case against you

and a very weak case against Miss Figueroa, but some case.

[13]

Do you understand?

Mr. Quinones: Yes.

The Court: Now, a lawyer who was representing Miss

Figueroa but was not representing you might feel under

those circumstances that he ought before the trial to go to

Mr. Dennis and Mr. Wehner and say, “Although I think

you have a weak case against my client, Miss Figueroa, I

realize there is some evidence and you might be able to get

a conviction if she goes to trial, but I would be willing to

recommend to my client, Miss Figueroa, that she plead

guilty, provided that you, the Government attorneys, will

agree only to recommend probation and not a prison

sentence.”

Can you imagine that there might be such a situation?

Mr. Quinones: Yes, I do.

The Court: And can you also imagine that under those

circumstances Mr. Dennis and Mr. Wehner would respond

7 ee cos

Hearing, September 5, 1979 A9

saying, “We will certainly consider that but on the under-

standing that Miss Figueroa would be a witness if we called

her, testifying against the other defendants whose activities

she knew about.”

[14]

Do you see that under those circumstances that would

mean that a lawyer might be telling Miss Figueroa, “I think

it would be in your interest to plead guilty but you will

have to testify against William Quinones and others.”

Now, can you also see that it would he very hard for

Mr. Burr or any other lawyer who represents both you and

Miss Figueroa to make that kind of arrangement against—

for Miss Figueroa but that would be damaging to your

interests? Do you see that problem that I am suggesting?

Mr. Quinones: Yes.

The Court: Can you tell me, Mr. Quinones, what you

think you would want Mr. Burr to do if that situation pre-

sented itself and he were representing both you and Miss

Figueroa?

Mr. Quinones: I think that situation would never oc-

cur, but if it does I would leave it in the hands of the

attorney for him to decide.

The Court: Miss Figueroa, have you listened also to

this question that I have just put to Mr. Quinones?

Miss Figueroa: Yes.

The Court: You see the possibility

[15]

there that Mr. Burr might be torn between his obligation

to make the best arrangement possible for you and his

obligation also to protect Mr. Quinones?

Al0 Hearing, September 5, 1979

Miss Figueroa: Yes.

The Court: What would you think Mr. Burr should

do in a situation like that?

Miss Figueroa: I think—I’m not sure—that Mr. Burr

has the skills and the honesty and he would be willing to

provide the same type of defense for both of us.

The Court: Well, I have tried to explore certain pos-

sible situations, two possible situations, and I don’t find my-

self satisfied that these defendants can be said to be in a

position to make the kind of knowing and intelligent waiver

that I think our Court of Appeals very properly requires

in a situation of potential conflict. I announce this sort

of tentatively as my immediate feeling but I want to give

you, Mr. Burr, an opportunity to perhaps ask such supple-

mentary questions or make any such comment to me as

you think would help educate me better.

Mr. Burr: May I have this document marked D-l1,

your Honor?

The Court: Yes, indeed.

[16]

(So marked. )

Mr. Wehner: May I see it?

Mr. Burr: Sure.

( Pause. )

Mr. Burr: May I proceed, your Honor?

The Court: Why, of course.

Mr. Burr: Mr. Quinones, I show you what has been

marked as Defendant’s Exhibit 1 and ask if you can

identify that, please.

Hearing, September 5, 1979 All

Mr. Quinones: This is a document that was given to

us, the attorney in Puerto Rico. He explained to me what

this document was all about and he asked us to sign and

bring it to Mr. Burr, and we understand that it was vol-

untarily signed or signed voluntarily.

Mr. Burr: Miss Figueroa, did you listen and under-

stand what Mr. Quinones’ statement just a moment ago

5

was!

Miss Figueroa: Yes.

Mr. Burr: Is that your signature on the letter dated

August 23, 1979, which has been marked as Defendant’s

Exhibit 1?

Miss Figueroa: Yes.

Mr. Burr: Mr. Quinones, is that your

[17]

signature?

Mr. Quinones: Yes, it is.

Mr. Burr: Did you sign this letter after you had dis-

cussed this case with your attorneys in Puerto Rico?

Mr. Quinones: Yes.

Mr. Burr: Your Honor, maybe for clarification—I can

certainly show this to your Honor, but would you permit

me to read it into the record?

The Court: Of course.

Mr. Burr: It’s a letter addressed to me at our law

offices regarding this case and it says: “Dear Mr. Burr:

We have been advised, hereby acknowledge and are aware

that there is always the possibility of a conflict of interest

between us which would require you as our attorney to

sacrifice the cause of one at the expense of the other.

Al2 Hearing, September 5, 1979

“However, we have discussed the facts of this case at

length with you and are completely satisfied that our

interests are identical and that the facts as we have given

them to you do not admit of a conflict between us. While

we recognize our right to be represented by separate

counsel, we nevertheless

[18]

request that you represent both of us in the above-entitled

case.”

At the risk of repetition, your Honor, I just might like

to clarify now that the witnesses are under oath today and

I am not implying that they weren't telling the truth

yesterday but I think for emphasis, if not for clarification,

I would like to ask both witnesses whether they discussed

this case with me yesterday in my office.

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Quinones: We were in his office from 9:00 o'clock

until almost 2:00 o'clock.

Mr. Burr: During that time did we discuss the indict-

ment and the charges contained in the indictment?

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Burr: And did we discuss the possible defenses

concerning the charges alleged in that indictment?

Miss Figueroa: Yes.

Mr. Quinones: Yes.

Mr. Burr: And did we discuss the

Hearing, September 5, 1979 Al3

[19]

possibility that the defense of you, Mr. Quinones, may be

different from the defense or defenses of Miss Figueroa?

Mr. Quinones: Yes.

Mr. Burr: Did we come to the conclusion that there

would be no conflict in the defense of you and Miss

Figueroa?

Mr. Quinones: Yes.

Mr. Burr: Do you agree with that, Miss Figueroa?

Miss Figueroa: Yes.

Mr. Burr: Despite the possibility a conflict of interest

may arise, are you, nevertheless, satisfied and willing to

have me represent both of you in this case?

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Burr: And are you both willing and do you both

want me to represent you in this case even though I might

be confronted with the same types of situations that Judge

Pollak just explained to you today and are you willing to

rely on my judgment as to how to resolve that conflict in

protecting your interests?

[20]

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Burr: Do you realize that the Sixth Amendment

to the United States Constitution guarantees you the right

to effective assistance of counsel?

Mr. Quinones: Yes.

OS OF et or ib

Al4 Hearing, September 5, 1979

Miss Figueroa: Yes.

Mr. Burr: Do you realize, do you both realize that if

you waive this right you may be foregoing the issue of

effective assistance of counsel on any appeal that may arise

out of this case?

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Burr: Do you realize that you are entitled to an

attorney who represents only your individual interests?

Mr. Quinones: Yes.

Miss Figueroa: Yes.

Mr. Burr: Nevertheless, and despite the possibility of

certain conflicts of interests arising during the course of

this trial, you have confidence in my judgment?

Mr. Quinones: Yes.

[21]

Miss Figueroa: Yes.

Mr. Burr: And you do not desire to obtain separate

counsel?

Mr. Quinones: No. We are satisfied with Mr. Burr.

Mr. Burr: I believe that’s all the questions I have,

your Honor.

The Court: May I inquire, Mr. Burr, with respect to

the interview that was referred to in your office I think

yesterday evening—is that right?

Mr. Burr: During the day yesterday, most of the day.

The Court: During the day?

ae A Scr tom Sy

aa

\ Hearing, September 5, 1979 Al5

Mr. Burr: During the day.

The Court: The refere»ce to 9:00 o'clock to 2:00

o clock was during the day?

Mr. Burr: Oh, yes.

The Court: That was an interview in which you were

talking with Miss Figueroa and Mr. Quinones and Mr.

Sanchez was there?

Mr. Burr: That's right, your Honor. Mr. Sanchez who

was here yesterday, a member of the Bar of the United

States Supreme Court and a member of

[22]

the Bar of Puerto Rico, accompanied Mr. Quinones and

Miss Figueroa to my office. As a matter of fact, I met them

early in the morning and we discussed this case for approxi-

mately, I would say, four and a half hours, reviewing the

indictment, reviewing the charges, going over the evidence

which has been turned over to this point in time by the

Government, discussing possible defenses and exploring

areas and hypothetical situations which would present a

clear conflict of interest and discussing with them in the

presence also of their Puerto Rican counsel of what should

be done in the event that those situations arise.

I might say to the Court that I think it’s a fair char-

acterization that at least 50 percent of our conversation

and our discussion was oriented toward the possibility of a

conflict of interest arising and based on the information

provided to me by the Government, based on the facts

presented to me by Miss Figueroa and Mr. Quinones, as

well as their counsel, they seem satisfied not only that a

conflict will not arise, they are aware, I’m sure, of what a

conflict is and what it may mean but they are, nevertheless,

and in the unlikely event that a conflict does arise,

Al6 Hearing, September 5, 1979 __

[23]

they have expressed the sincere and earnest desire that I

continue to represent them both.

The Court: I think I hardly need say, Mr. Burr, that

I am very impressed by the care and consciousness with

which you have approached this difficult problem and,

conversely, I think the attention your clients have given

you.

I remain unsatisfied within what I think is the rubric

that’s imposed on me by the Court of Appeals in last year’s

decision in the Dolan case in 570 F. 2d I can make the

necessary finding of waiver of a knowing and intelligent

sort that, which is constitutional norms, and that notwith-

standing your representations, Mr. Burr, and this letter

which you have given me, Defendant's Exhibit 1, but

before ruling dispositively on this, I would like to hear

from the Government.

The Government, as an initial matter, has at least

taken the position this was a matter of strong concern and

that in all probability the standards set by the Court of

Appeals couldn’t be met; at least that’s a fair characteriza-

tion of the Government’s position. If it isn’t, the Govern-

ment will correct me. But it may be that the Government

was persuaded by you, Mr. Burr, and your clients as I

have not yet been,

[24]

and if the Government takes a different view at least I

would—that is, a different view from the one that tenta-

tively I lean toward, I would want to know it since, after

all, the Government is not just an adversary. The Govern-

ment has obligations to protect the constitutional rights of

the defendants and, therefore, has a view as to whether, if

I were now to conclude that you, Mr. Burr, couldn’t repre-

ee eee

Mt a AL aan or) A ach

Seed

Hearing, September 5, 1979 Al7

sent beth of these defendants simultaneously I would be

overriding their rights to counsel of their choice.

* o ao

[28]

The Court: Mr. Burr, let me just very briefly respond,

and I will give the Government something additional to

shoot at.

I recognize that the Court of Appeals has not promul-

gated a per se rule, at least in terms, but the Court of

Appeals has said, I think, and indeed I’m sure, that it is

not enough to find a waiver, indeed a fully meant, sincerely

understood, earnestly promoted waiver, which is I think

what we have here. I have no question of the sincerity of

the defendants and of their sense that they perceive the

realities of the situation and the potentialities of the situa-

tion and their willingness to forego the full range of inde-

pendent representation. I have no doubt about any of

that, but I think the Court of Appeals has quite clearly

said in Dolan that there may be instances in which the

trial judge concludes that it cannot accept what has all

the earmarks of being a full waiver as a satisfactory waiver

because the judge concludes that

[29]

the state of knowledge which the Court has, which counsel

have, which the defendants themselves have at an early

phase of the case may be sc limited that to say this is an

intelligent penetration of the issues and an intelligent

sacrifice of long-term interests is to engage in a non-

persuasive exercise.

I feel myself to be in that situation where the Court

of Appeals says implicit in this inquiry procedure is the

possibility that a trial judge may not be satisfied that the

Al8 Hearing, September 5, 1979

waiver is proper. For example, a defendant may be com-

petent enough to stand trial but not competent enough to

understand the complex, subtle and sometimes unforesee-

able dangers inherent in multiple representation. More

importantly, the judge may find that the waiver cannot be

intelligently made simply because he is not in a position

to inform the defendant of the foreseeable prejudices

multiple representation might entail for him. All of this

is on Page 1181 of Volume 57 F. 2d.

That is substantially the situation that I see presented

here and, in reaching that conclusion, as I say, it’s a tenta-

tive conclusion pending hearing from the Government but

I am not willing to settle, Mr. Burr, for the representation

which you have properly

[30]

made that the waiver which has been tendered in effect

protects against these defendants being able at some later

stage to claim lack of effective representation of counsel

if there were to be a conviction because I think what’s at

stake here is, insofar as an obligation is imposed on the

trial judge to make a ruling, what’s at stake is not my

protecting a record. I think my job is a broader one here

than that. I think my obligation is to make as sure as I

can in advance of the trial that the trial, when it takes

place, is as fully and vigorously fought out as the adversary

process contemplates and, of course, this would mean that

I am arrogantly, one may say, sacrificing putting at naught

the felt preferences of the defendants who, as you have

properly pointed out, want you, both of them want you as

their lawyer, and quite understandably so, and I’m willing

to accept that that’s both a product of their confidence in

you and their common sense of identity as warm friends

and comrades.

Hearing, September 5, 1979 Al19

I'm prepared, following what I believe to be, whether

we call it guidance or not, at least the essential meditations

of the Court of Appeals as to this kind of situation, to put

that at naught and to do so, Mr. Burr, in effect saying not

only to you but

[31]

to your clients that I can’t give Miss Figueroa and Mr.

Quinones, both of them, Mr. Burr. One of them can have

Mr. Burr. Another must be satisfied with another lawyer

who is not Mr. Burr but who is a very competent lawyer

too and to the extent that the defendants separately do not

have the financial capacity each to hire and retain for a

long trial private counsel then, of course, it becomes the

Court's obligation to appoint counsel at Government ex-

pense.

That is the situation I see on the basis of the colloquy

we had, a colloquy which has elicited on the one hand an

anticipation which you have voiced, Mr. Burr, and I think

Mr. Quinones, but most particularly I think Miss Figueroa,

that, in fact, as things will develop there will not be any

conflict, the underlying facts of the situation don’t lend

themselves to that, but that surely is a prediction which I

don't feel equipped to rely on; but alternatively, that if any

of these hypothetical conflicts or others which we could

imagine but did not explore in the questioning were to

emerge, that your clients would be satisfied with your, Mr.

Burr's, professional capacity and skill and dedication to

[32]

resolve them. In putting at naught their confidence in you

to do that, saying that I'm preparing to rule against them

and you in this respect, subject for a moment to the

Government's view—I will let them speak in a moment—I

want it absolutely clearly understood that none of this is

A20 Hearing, September 5, 1979

meant to disparage or belittle the skills you would bring

to this and which you will, in any event, bring to it on be-

half of one of these persons, Mr. Burr. It’s only to say

that I don’t think the criminal trial process ought to be

burdened with what would seem to me a virtually insoluble

and perhaps absolutely insoluble stress that might arise if

it's avoidable, as clearly it can be avoided by the appoint-

ment or retention of other counsel for one of these two

persons.

[40]

The Court: I conclude that Mr. Quinones and Miss

Figueroa—I will not permit Mr. Burr to continue to repre-

sent you both. I will ask you two to determine in con-

sultation with Mr. Burr which of the two of you will con-

tinue to be represented by Mr. Burr during the pretrial

and trial and if there are any postrial phases of this case.

I will ask Mr. Burr to continue to represent the other one

of you until such time as, with his assistance, arrangements

can be made for another attorney to represent that one of

you whom Mr. Burr will not be representing throughout

the later stages of this case and I would repeat that if

whichever of you requires the selection of a new lawyer

cannot afford to retain a lawyer then, with Mr. Burt’s as-

sistance, an application can be made to this Court for the

appointment at Government expense of a very

[41]

capable lawyer.

I have come to the conclusion that I cannot permit

Mr. Burr to continue the dual representation in this case

because, without in any way questioning the sincerity and

the care with which Mr. Quinones and Miss Figueroa ap-

proach the question of waiver, a waiver which they have

Hearing, September 5, 1979 A21

attempted to embody in their letter of August 23 to Mr.

Burr, which is Defendant’s Exhibit 1, I, nonetheless, con-

clude that this is an instance in which, within the meaning

of the Court of Appeals’ ruling in Dolan, 570 F. 2d 1177 at

1181 to 1183, I cannot properly find a knowing and intelli-

gent waiver of the very precious constitutional right to

effective representation of counsel.

I conclude this because I find that at this stage of this

case I can hypothesize conflicts of interest which are poten-

tial, some of which I have put to these defendants, but I

cannot satisfy myself that these potential conflicts or others

are only theoretical and abstract and have no likelihood of

occurring. My information is not sufficient to be able to

help the defendants more than I have tried to do today to

speculate on the possibilities of conflict.

Though I am sure Mr. Burr is better informed

[42]

than I, I find that at this stage he too is not able to do more

than give partial guidance to these defendants as to the

conceivable occasions for divergence of interests between

them. For these reasons I feel impelled now to override

the express preference of Mr. Quinones and Miss Figueroa

both to be represented by the same able counsel.

Wherefore I conclude that, with great gratitude to

Mr. Burr, I must ask him to step aside as counsel for one

of these two defendants as soon as he has been able to

make appropriate provision for the substitution of new

counsel.

A22 Exhibit D-1

EXHIBIT D-1.

August 23, 1979

Charles B. Burr, II, Esquire

Griffith & Burr, P. C.

Suite 200

800 Chestnut Street

Philadelphia, Pennsylvania 19107

Re: United States of America vs. William Antonio

Quinones a/k/a “Chengo” and Candida Figueroa,

et al. Crim. No. 79-139

Dear Mr. Burr:

We have been advised, hereby acknowledge and are

aware that there is always the possibility of a conflict of

interest between us which would require you, as our

attorney, to sacrifice the cause of one at the expense of

the other.

However, we have discussed the facts of this case at

length with you and are completely satisfied that our

interests are identical and that the facts as we have given

them to you do not admit of a conflict between us. While

we recognize our right to be represented by separate

counsel, we nevertheless request that you represent both

of us in the above entitled case.

Very truly yours,

/s/ Witt1aM A. QuINONEs

William Antonio Quinones

/s/ CanpwiDA FIGUEROA

Candida Figueroa

District Court Order A23

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN DistTrRICT OF PENNSYLVANIA

CRIMINAL No. 79-139

UNITED STATES OF AMERICA

v.

WILLIAM ANTONIO QUINONES

a/k/a CHENGO, a/k/a WILLIE

and

CANDIDA FIGUEROA

ORDER

On September 4 and 5, 1979, I held a pre-trial hearing

in this case pursuant to the Government's Motion of August

27, 1979, “TO DETERMINE WHETHER DEFEND-

ANTS QUINONES AND FIGUEROA, DUE TO JOINT

REPRESENTATION, MAY BE PREVENTED FROM

RECEIVING ADVICE AND ASSISTANCE OF COUN-

SEL SUFFICIENT TO AFFORD THEM THE QUAL-

ITY OF REPRESENTATION GUARANTEED BY THE

SIXTH AMENDMENT.” At that hearing, Mr. Quinones

and Ms. Figueroa sought to establish, through counsel and

by testimony, (a) their awareness of the theoretical possi-

bility of conflicts of legal interest between them, (b) their

sense of assurance that such possible conflicts would be

extremely unlikely to materialize in fact, (c) their con-

fidence that their jointly retained attorney, Charles B.

Burr, Esquire, would satisfactorily handle any such conflict

A24 District Court Order

as might materialize, and (d) their very strong preference

to have Mr. Burr continue as attorney for both of them.

I concluded nonetheless, on the basis of that hearing and

for reasons stated from the bench, that I could not satisfy

myself that Mr. Quinones and Ms. Figueroa had made the

“knowing and intelligent waiver” of their rights to effective

assistance of counsel contemplated by United States v.

Dolan, 570 F. 2d 1177 (3d Cir. 1978). Accordingly, it is

this 6th day of September, 1979,

ORDERED

that Charles B. Burr, Esquire withdraw from the repre-

sentation of either William Quinones or Candida Figueroa

in this case as soon as arrangements have been made for

one of them to retain new counsel and such new counsel

shall enter an appearance.

/s/ Louis H. PotiaKx

Louis H. Pollak

es ad

SAR OT dele ALIS NO AIL Se BEE a seat le aie Laois ODO attthe CD Bhi al bl

Court of Appeals Opinion A25

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 79-2310

UNITED STATES OF AMERICA

v.

QUINONES, WILLIAM ANTONIO

a/k/a Chengo a/k/a Willie, Appellant

(D. C. Crim. No. 79-00139-08 )

No. 79-2311

UNITED STATES OF AMERICA

v.

FIGUEROA, CANDIDA

Candida Figueroa, Appellant

(D. C. Crim. No. 79-00139-11)

On APPEAL FROM THE UNITED STATES District CouRT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Submitted November 13, 1979

Before: Grspons, HIGGINBOTHAM and SLOVITER,

Circuit Judges

ein, lata aialaaaiaiaiiiaiat iis,

A26 Court of Appeals Opinion

Opinion on Motion by Appellee for Summary Affirmance

(Filed: January 17, 1980)

Cuar es B. Burr, II, Esquire

Griffith & Burr, P. C.

Suite 200

800 Chestnut Street

Philadelphia, PA 19107

Attorney for Appellants

PETER F.. Vara

United States Attorney

Wa ter S. Batry, JR.

Assistant U. S. Attorney

Chief, Appellate Section

STEPHEN V. WEHNER

Assistant U. S. Attorney

Epwarp S. G. Dennis, JR.

Assistant U. S. Attorney

3310 U. S. Courthouse

Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

Per CurRIAM:

Appellants, William Antonio Quinones and Candida

Figueroa, appeal from a pretrial ruling that they could

not have the same counsel because the district court was

not satisfied that they “had made the ‘knowing and intel-

ligent waiver’ of their rights to effective assistance of

counsel contemplated in United States v. Dolan, 570 F. 2d

Court of Appeals Opinion A27

1177 (3d Cir. 1978).” United States v. Quinones, D. C.

Crim. Nos. 79-139-08 and 11 (E. D. Pa. Sept. 6, 1979).

Upon reading the record of the trial judge’s patient

and detailed two-day hearing, we will affirm his ruling.

I.

William Antonio Quinones and Candida Figueroa

were indicted, along with ten other defendants, on May

31, 1979 in a twelve-count indictment charging a con-

spiracy to engage in the unlawful traffic of heroin in viola-

tion of 21 U.S. C. §§ 841(a) (1), 843(b), and 952(a), and

related substantive offenses.

Both Quinones and Figueroa are named in Count

One, the conspiracy count of the indictment. Overt Act

No. 15 states that from December 1976 to February 1977

defendants Quinones and Figueroa traveled to Philadel-

phia, Pennsylvania from Chicago, Illinois. Paragraph 4(h)

on pages 4 and 5 of the indictment alleges, in part, that in

order to further the objects of the conspiracy, defendant

Quinones directed and supervised defendant Figueroa in

the acceptance of requests for purchases of heroin, the ar-

rangement of deliveries of heroin, the acceptance of pay-

ment for delivery of heroin, and the delivery of heroin.

On August 27, 1979, upon learning that defendants

Quinones and Figueroa intended to be jointly represented

by Charles B. Burr, II, the government filed a motion for a

pretrial hearing to determine if these two defendants would

be denied their sixth amendment right to effective assist-

ance of counsel if they continued with joint representation,

and if so, to determine if a knowing and intelligent waiver

of that right would be elicited.

On September 4 and 5, 1979, Judge Louis H. Pollak

conducted a hearing pursuant to this court’s decisions in

United States v. Dolan, 570 F. 2d 1177 (3d Cir. 1978)

A28 Court of Appeals Opinion®

(Rosenn, J.), and United States ex rel. Hart v. Davenport,

478 F. 2d 203 (3d Cir. 1973) (Gibbons, J.)

Appellants argued at the hearing that they have a

constitutional right to be represented jointly by counsel of

their choice and to waive certain Sixth Amendment guar-

antees which might otherwise protect them. The govern-

ment argues that if it acquiesced in allowing them to

proceed with joint representation it would be fostering

clearly reversible error which would result in needless and

protracted litigation. On September 5, 1979, Judge Pollak

ruled that a potential conflict of interest existed. He

further ruled that he could not properly find a knowing and

intelligent waiver of the defendants’ constitutional right to

effective representation.

On September 12, 1979, the appellants filed a notice

of appeal from that ruling. Because of the appeal, the trial

has been delayed, and the government has therefore filed a

notice for summary affirmance.

In United States ex rel. Hart v. Davenport, this court

ordered the issuance of a writ of habeas corpus, thereby

invalidating a state court conviction where a single defense

attorney, retained by all of the defendants’ employers, had

represented the petitioner, two employers and three other

co-defendants. There we emphasized:

The legal standard to be applied to a claim of

prejudice from joint representation is clear enough.

The right to counsel guaranteed by the sixth and

fourteenth amendments contemplates the service of

an attorney devoted solely to the interests of his client.

The right to such untrammelled and unimpaired as-

sistance applies both prior to trial in considering how

to plead, Von Moltke v. Gillies, 332 U. S. 708, 68 S. Ct.

316, 92 L. Ed 309 (1948), and during trial, Glasser v.

United States, 315 U. S. 60, 70, 62 S. Ct. 457, 86 L. Ed.

680 (1942). Recognizing that the right to such assist-

ance of counsel may be waived, e.g., Adams v. United

ww —s —

ae

Court of Appeals Opinion A29

States ex rel. McCann, 317 U. S. 269, 275, 63 S. Ct.

236, 87 L. Ed. 268 (1942), we have refused to find

any such waiver from a silent record... . [Wle have

rejected the approach that before relief will be con-

sidered the defendant must show some specific in-

stance of prejudice... . Instead, we have held that

upon a showing of a possible conflict of interest or

prejudice, however remote, we will regard joint repre-

sentation as constitutionally defective.

Id. at 209-10.

In United States v. Dolan, we noted with precision

the procedure that a trial judge must follow in such cases.

The waiver of effective assistance of counsel

which the Davenport rule facilitates is subject to the

limitations established earlier by the Supreme Court

in Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82

L. Ed. 1461 (1938), and Brady v. United States, 397

U. S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970),

that a waiver of a constitutional right must be made

knowingly, intelligently, and with awareness of the

likely consequences of the waiver. Whether the waiver

is intelligent and competent “should be clearly deter-

mined by the trial court, and it would be fitting and

appropriate for that determination to appear upon the

record.” For a trial judge to find that a waiver is

knowing and intelligent, he must be satisfied that the

defendant is aware of the foreseeable prejudices his

attorney's continued representation could entail for his

trial, and possible detrimental consequences of those

prejudices.

2 = =

Implicit in this inquiry procedure is the possi-

bility that a trial judge may not be satisfied that the

A30 Court of Appeals Opinion

waiver is proper. For example, a defendant may be

competent enough to stand trial, but not competent

enough to understand the complex, subtle, and some-

times unforeseeable dangers inherent in multiple rep-

resentation. More importantly, the judge may find

that the waiver cannot be intelligently made simply

because he is not in a position to inform the defendant

of the foreseeable prejudices multiple representation

might entail for him.

Id. at 1181 (citations and footnotes omitted ).

Most recently, in United States v. Rad-O-Lite of

Phila., Inc., No. 79-1551 (3d Cir. December 28, 1979 )

(Seitz, C. J.), we again recognized this requirement that

the district court scrutinize potential conflicts of interest

in joint representation of counsel. We stated that “[t]he

district court bears a substantial responsibility for ensuring

that conflicts of interest resulting from joint representation

do not deprive the accused of a fair trial.” Slip Op. at 7.

Judge Pollak applied the precepts of Dolan and

Davenport. His findings are not clearly erroneous. We

will grant the government’s motion for summary affirmance

and will affirm the order of the district court requiring

Burr to withdraw from representation of either William

Quinones or Candida Figueroa.’

1. Judge Gibbons, while he agrees with this opinion insofar as

it discusses the merits of the appeal, does not agree that the case

was one which required summary disposition. He would have

denied the government’s motion for summary affirmance and per-

mitted the appeal to proceed on a normal briefing schedule.

Court of Appeals Judgment A8l

UNITED STATES COURT OF APPEALS

For THE Turrp Circuit

Nos. 79-2310/79-2311

UNITED STATES OF AMERICA

v.

QUINONES, WILLIAM ANTONIO

a/k/a Chengo a/k/a Willie,

Appellant in No. 79-2310

UNITED STATES OF AMERICA

v.

FIGUEROA, CANDIDA

Candida Figueroa,

Appellant in No. 79-2311

(D. C. Criminal No. 79-00139-08 and 11)

On APPEAL FROM THE UNITED STATES Districr Court

FOR THE EASTERN District OF PENNSYLVANIA

Present: Grspons, HIGGINBOTHAM and SLOVITER,

Circuit Judges

JUDGMENT.

This cause came on to be heard on the record from

the United States District Court for the Eastern District

A32 Court of Appeals Judgment

of Pennsylvania and was submitted on motion by appellee

for summary affirmance on November 13, 1979.

On consideration whereof, it is now here ordered and

adjudged by this Court that the government’s motion is

granted and the judgment of the said District Court, filed

September 6, 1979, be, and the same is hereby affirmed.

; ATTEST:

THoMas F, QuINN

Clerk

January 17, 1980

Court of Appeals Order Denying Rehearing A33

UNITED STATES COURT OF APPEALS

For THE Tuirp Crrcuir

No. 79-2310

UNITED STATES OF AMERICA

v.

QUINONES, WILLIAM ANTONIO

a/k/a Chengo a/k/a Willie, Appellant

No. 79-2311

UNITED STATES OF AMERICA

v.

FIGUEROA, CANDIDA

Candida Figueroa, Appellant

SUR PETITION FOR REHEARING.

Present: Serrz, Chief Judge, ALpIisERT, ADAMS, GIBBONS,

RosENN, HunTER, WeE!s, GARTH, HIGGINBOTHAM

and SLoviter, Circuit Judges.

The petition for rehearing filed by Appellants in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

A34 Court of Appeals Order Denying Rehearing

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied. Fa

By THE COURT,

/s/ A. Leon HiccinsorHam

Circuit Judge

Dated: February 11, 1980