Petition — Jones v. United States

[Bhs - “Supreme Cour US.

83-900 a ae

24

No.

ER LL. STEVAS.

S SLERK

IN THE

Supreme Court of the United States

October Term, 1983

JOHN D. JONES, a/k/a

JACK JONES

Petitioner

v.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STANFORD SHMUKLER

Twelth Floor

1314 Chestnut Street

Philadelphia, Pa. 19107

Counsel for Appellant Jones

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

QUESTIONS PRESENTED

1. Where there is no actual conflict of interest, is the pan-

el’s Judgment Order, affirming the District Court's disqualifying

of Petitioner's counsel, inconsistent with decisions of this Court

and other Circuits in denying Petitioner his constitutional

choice of counsel?

2. Where Petitioner's counsel represents, in a state pro-

ceeding, a person who may be called as a witness against Peti-

tioner in a peripherally related federal case, but does not obtain

any confidential information from him, and thus there has not

been shown to be any actual or potential conflict of interest,

does the disqualification of counsel unconstitutionally restrict

Petitioner's choice of counsel?

TABLE OF CONTENTS

Ph TUNNNNRE: Ss 4 i eae Se

es I sa ek ds 4s eee ee

ES ENEEE e e k sea nee PME Bele

IN 6 och okay cscs «Nee be tae ee ee

Constitutional Provisions and Federal Rule of Criminal

WOON SS 325s eK oh iw ease

Reasons for Granting The Writ ................

1. In the absence of an actual conflict of interest, the

panel in approving the District Courts Disqualifica-

tion of counsel denies Petitioner of counsel of his

choice and is inconsistent with decisions of this

Court end of other Circulls . «5 i... ob ae

2. Where counsel represents, in a state proceeding, a

person who may be called as a witness against Peti-

tioner in a peripherally related federal case, but

does not obtain from him any confidential informa-

tion, there is no actual or potential conflict, and dis-

qualification of counsel deprives defendant of his

constitutional choice of counsel ............

ee Pe ee By Be

Appendix A:

Court of Appeals Judgment Order ...........

Appendix B:

District Court Order Of December 22, 1982, Dis-

ounving Counsel 2.6505 sak) Pa

Appendix C:

Memorandum Opinion J. Huyett, Dated 3/31/83

Appendix D:

Excerpts From Disqualification Hearing .......

1]

16

Al

A4

TABLE OF AUTHORITIES

Cases: Page

Cuyler v. Sullivan, 446 U.S. 335 (1980) (Cuyler II) .9, 10, 11

Dukes v. Warden, 406 U.S. 250 (1972) ........... 10

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

Smith v. Bordenkircher, 671 F.2d 936 (6th Cir, 1982) .. 10

United States ex rel. Sullivan v. Cuyler. 593 F.2d 512 (3rd

a Sere NE). see etme Se es 9, 10

United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). 10, 14

United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir.

IR terre pe menemr ae rea Snel a al aD FU 10, 12

United States v. Cunningham, 672 F.2d 1064 (2nd Cir.

BD hares bce’ cig whe tardsehtae terete eae ae ele 10

United States v. Curcio, 680 F.2d 881 (2nd Cir. 1982) . 10

United States v. Dolan, 570 F.2d 1177 (3rd Cir. 1978) 12, 13

United States v. F.M.C. Corp., 495 F.Supp 172 (E.D. Pa.

I Rr Ae, Bie eB mR a. Coy 14

United States v. Flanagan, 679 F.2d 1073, cert. granted,

32 Cr.L. 4245 (January 10, 1983) .......... 7, 8, 12

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975) . 10, 12

United States v. Provenzano, 620 F.2d 985 (3rd Cir. 1980) 13

United States v. Quinones, 613 F.2d 47 (3rd Cir. 1980) 14

United States v. Shepard, 675 F.2d 922 (8th Cir. 1982) . 14

CONSTITUTIONAL PROVISIONS

UII of on eae ey: eae

eee oor ee) oe rer yA

sae

TABLE OF AUTHORITIES — (Continued)

Cases: Page

FEDERAL RULES OF CRIMINAL PROCEDURE

RIES te polar aN fae) ls OR gs eae ee oi 2,7, 9, 10

MISCELLANEOUS

oe | aaa ee Cr ere peerings Seas Abe

Margolin and Coliver, Pretrial Disqualification of Criminal

Defense Counsel, 20 Amer. Crim. L.Rev. 227 (1982) 14

to

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JOHN D. JONES, a/k/a JACK JONES

Petitioner

v.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

John D. Jones, a/k/a Jack Jones, your Petitioner, respect-

fully prays that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Third Circuit, en-

tered in the above entitled case on September 30, 1983.

OPINIONS BELOW

On September 30, 1983 the United States Court of Appeals

for the Third Circuit entered a Judgment Order, which has not

been officially reported, but is reproduced in Appendix A, infra,

pages Al-A2, affirming the Order entered by Honorable Daniel

H. Huyett, III, Judge of the United States District Court for the

Eastern District of Pennsylvania, on December 22, 1982. That

Order is reproduced in Appendix B, infra, page A3. On March

30, 1983 Judge Huyett filed a Memorandum Opinion in Support

of his Order, which has not been officially reported, but which is

reproduced in Appendix C, infra, pages A4-A1].

l

2

JURISDICTION

The Order of the United States Court of Appeals for the

Third Circuit (Appendix A, infra, pages Al-A2) affirming the

Order of the District Court, was entered on September 30,

1983. This Court's jurisdiction is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS AND FEDERAL

RULE OF CRIMINAL PROCEDURE INVOLVED

The United States Constitution provides in pertinent part:

Amendment V:

No person shall * * * * be deprived of life, liberty, or prop-

erty, without due process of law... .

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the

right * * * * to have the assistance of counsel for his de-

fense....

The Federal Rules of Criminal Procedure provide in pertinent

part:

Rule 44(c):

Whenever two or more defendants have been jointly

charged . . . or have been joined for trial. . . , and are re-

presented by the same retained . . . counsel who are associ-

ated in the practice of law, the court shall promptly inquire

with respect to such joint representation and shall person-

ally advise each defendant of his right to the effective assis-

tance of counsel, including separate representation, Unless

it appears that there is good cause to believe no conflict of

interest is likely to arise, the court shall take such measures

as may be appropriate to protect each defendant's right to

counsel.

3

STATEMENT OF THE CASE

This Petition seeks review of a Judgment Order of the

Court of Appeals affirming the Order of the District Court dis-

qualifying counsel from representing Defendant in a criminal

proceeding because counsel had previously represented, in a

State criminal proceeding, an employee of Defendant whom the

Government expected to call as a key witness in the federal case.

On September 28, 1982 Henry Krotzer, an employee of

John D. Jones, was arrested by Pennsylvania State Police on

three charges involving theft or receipt of stolen motor vehicles.

Jones brought Krotzer to the Allentown law office of Wallace C.

Worth, Esquire, who had represented Jones in other matters.

At that time Jones had not been arrested on any of the charges

pending against Krotzer but was named as co-conspirator on one

of the charges against Krotzer. The entire discussion between

Krotzer and Worth took place in the presence of Jones; in fact,

Jones answered most of the questions (A22). Thereafter, on Oc-

tober 6, 1982, a preliminary hearing was held on two of the

charges against Krotzer, including the one in which Jones was

named as a co-conspirator. He was held for court, and the third

charge was rescheduled for a later date at the request of the

Commonwealth. Krotzer later waived a preliminary hearing on

that charge.

On November 9, 1983, Jones was indicted on the present

federal charges. The eight count indictment charged Jones with

two counts of sale of goods stolen from interstate commerce,

three counts of receipt of motor vehicles stolen from interstate

commerce, and three counts of mail fraud (one of the mail fraud

counts included a co-defendant named William Conner). Two of

the three counts of receipt of motor vehicles charged the receipt

of a tractor which was contained in one of the three State charges

against Krotzer. On Noveinber 24, 1982 the Government filed a

motion to disqualify counsel, alleging that “Worth may be forced

to reveal the confidential communications of another client in

his representation of defendant Jones”, and that “Worth’s repre-

sentation of defendant Jones has the impermissible appearance

of impropriety’. The Government requested a hearing on its

4

motion. Worth filed a Reply denying these allegations and set-

ting forth an affidavit relating to his representations of Jones and

Krotzer. On December 22, 1982, a hearing was held before the

Honorable Daniel H. Huyett, III, at which the Government

called Henry Krotzer, as well as the State Trooper who had

‘sworn to the Complaints against Krotzer. Defendant Jones and

F.B.1. Special Agent David Kolde of the Allentown F.B.I. office

were called on behalf of the defense. Relevant portions of this

hearing are reproduced in Appendix D, infra, pages A.

At the hearing on Motion to Disqualify Counsel, Krotzer

testified that he had known John Jones for 20 years, and that he

had been employed by him for the past four years. In June, 1982

State authorities had impounded his truck. Jones had obtained

the services of Wallace C. Worth, Esquire to get the truck back

for him. This involved Krotzer going to Worth’s law office to sign

papers, but he did not see Worth at that time. On September

28, 1983 Krotzer was arrested for receiving stolen goods and

driving a vehicle without the owner's consent. He told his wife

to call Jones and tell him to get hold of Worth. When he arrived

at the Police Station a telephone call was waiting for him, and

Worth was on the other end of the line. He was released on his

own recognizance. He then went to Jones’ garage, and that

afternoon or the next day they went to see Worth. Present at the

meeting along with Krotzer were Jones, Worth, and Worth’s as-

sociate, Diane Dixon, Esquire. Worth asked if he knew any-

thing about the charges. Krotzer answered that the only thing

he knew about was the Lincoln and he “couldn't really say the

truth on that,” because he got a “dirty look” from Jones when he

mentioned that. (Jones had previously told him not to tell any-

one about that matter.) He said that Jones responded more to

Worth’s questions than he did, and Krotzer would agree with

Jones, even though Jones was not answering the truth, and even

though he considered Worth to be his lawyer. (A16-A23.)

He next saw Worth at the District Justice hearing on Octo-

ber 6, when Worth represented him. He again saw Worth on

November 19, 1982 at another preliminary hearing, when

Krotzer told Worth that he had obtained another lawyer. He felt

that Jones was lying to “put something on him,” because he

5

overheard a telephone call between Jones and someone else, so

he was afraid Worth would defend Jones rather than him. (A23-

A25.)

He admitted that he never had any confidential discussions

with Worth concerning any criminal conduct, before or after his

arrest and his preliminary hearing. He also never spoke to

Worth with regards to preparing the case. Prior to the sched-

uled preliminary hearing on November 19, 1982 he never called

Worth to tell him he was getting other counsel. At the hearing

Krotzer met with Worth, Dixon, Attorney Donald Wieand and

Attorney Frederick Charles from the Public Defender’s office,

to discuss representation. (A27-A32. )

Jones testified that a search warrant had been served on his

premises in May 1951 at which time he had contacted Worth. At

the time Krotzer was arrested in September 1982, Jones was not

under arrest. Jones was indicted by a Federal Grand Jury on No-

vember 9, 1982 (A34-A35). Krotzer never discussed with Worth

criminal conduct in the presence of Jones. Jones paid Worth to

represent Krotzer because he (Jones) had an interest in the

trucks which were impounded. F.B.I. Special Agent David

Kolde confirmed that he had attended the preliminary hearing

for Krotzer in Allentown, and at that time Jones was not under

arrest. (A37-A38. )

Following argument, the Court ruled that Mr. Worth had

represented two persons at one time in criminal matters which

were related, even though only one person was a defendant and

the other was. an unindicted co-conspirator; that Worth

permitted Jones to pay him a fee to represent his employee

Krotzer; the Court thereupon granted the Government's motion

to disqualify Worth. On the same day the Court entered a writ-

ten Order to that effect (Appendix B, infra, page A2), and on

April 4, 1983 filed an Opinion, dated March 31, 1982, setting

forth the reasons for that ruling (Appendix C, infra, pages A4-

All). On December 28, 1982 a timely appeal from the Order of

December 22! was filed, and on September 30, 1983, the Court

1. On May 18, 1981 a federal search warrant had been issued for premises

in Slatington, Pennsylvania belonging to Jones Truck Sales, and on May 19 and

6

of Appeals entered its Judgment Order affirming the District

Judge's Order of disqualification (Appendix A, infra, pages Al-

A2).

NOTE — ‘Continued

May 20, 1951 a search was conducted by the F.B.I. On October 18, 1982 Wal-

lace C. Worth, Esquire filed a motion on behalf of John D. Jones for return of

property seized during that search. This was docketed as #81-0421-M, and

later renumbered #83-00053. The District Court denied relief and an appeal

was filed in the Circuit Court (#83-1123). On March 15, 1983 the Government

filed motions in the District Court to consolidate the two proceedings, the in-

dictment of Jones #52-00366, with the proceedings for return of property,

#53-00053, and on the same day filed motions in the Court of Appeals to con-

solidate the two appeals, #83-1007, involving this appeal from the Order dis-

qualifying Worth, and #83-1107, the appeal from the Order denying the mo-

tion for return of property. The Court of Appeals granted the Government's

motion permitting the Government to file one brief and listing the case for dis-

position by one panel. On September 30, 1983, a Judgment Order was entered

by the same panel affirming the District Court's Order denying the return of

property. No petition for Writ of Certiorari is being filed in connection with

that proceeding.

7

REASONS FOR GRANTING THE WRIT

This Court has recently granted Certiorari and has sched-

uled argument for November 30, 1983 in the case of United

States v. Flanagan, 679 F.2d 1073 (3rd Cir. 1982), cert. granted,

32 Cr.L. 4245 (January 10, 1983), which raises the question of

whether Rule 44(c) of the Federal Rules of Criminal Procedure

permits a federal court to undercut defendant's constitutionally

protected choice of retained counsel, denying two co-defendants

the right jointly to utilize counsel of their choice to present a

common defense, despite a valid waiver of potential conflicts of

interest. The case at bar presents an even more egregious limita-

tion on a defendant's right to select his own counsel—here it is

not a joint trial, and although counsel selected by defendant had

previously made a perfunctory appearance in a state proceeding

for a person who might be called as a witness against defendant

in this peripherally related federal proceeding, that potential

witness never disclosed any confidential information to defend-

ant’s counsel.

The District Court here nonetheless concluded that this

case was governed by the Third Circuit's decision in Flanagan,

because a conflict of interest is likely to arise, either at the trial

or before trial during plea bargaining. If this Court concludes

that the reasoning of the Third Circuit in Flanagan unduly re-

stricts a defendant's constitutional right to select his own coun-

sel, then such conclusion will apply a fortiori in the case at bar.

However, even if this Court concludes that joint representation

of co-defendants may lead to potential conflict which warrants

the Court in disqualifying counsel from representing co«efend-

ants, as in Flanagan, it should still not permit an extension of

that restriction to successive representation of defendants in

cases in different jurisdictions which are only peripherally re-

lated, where there has been no confidential disclosure.

8

1. IN THE ABSENCE OF AN ACTUAL CONFLICT OF IN-

TEREST, THE PANEL IN APPROVING THE DISTRICT

COURT'S DISQUALIFICATION OF COUNSEL DENIES

PETITIONER OF COUNSEL OF HIS CHOICE AND IS

INCONSISTENT WITH DECISIONS OF THIS COURT

AND OF OTHER CIRCUITS.

In his Memorandum Opinion, Judge Huyett reasoned that

although a conversation between a client and an attorney is not

privileged when there is a non-essential third party present,

both Jones and Krotzer were accused of a joint criminal under-

taking, and therefore meeting with the attorney representing

both did not destroy the confidentiality of the meeting (A7-A8).

Furthermore, the Court continued, Krotzer’s acquiescence in

Jones’ answers to Worth’s questions constituted confidential

communications to Worth by Krotzer (A9). This led Judge

Huyett to conclude that an actual conflict of interest was likely to

materialize, and that under Flanagan, disqualification of defense

counsel is an appropriate measure (A9-A1]1).

It should be noted that in its motion to disqualify counsel,

the Government urged that Worth’s representation of Jones

may constitute a conflict of interest in violation of ethical canons

because Worth may be forced to reveal the confidential commu-

fications of another client in his representation of Defendant

Jones and that his representation of Jones has the impermissible

appearance of impropriety. The Government did not allege that

there was an actual conflict or that a conflict was very likely to

arise. At the disqualification hearing, the Government argued

that at Krotzer’s preliminary hearing Worth was protecting the

interests of Jones. Although this could conceivably lead to a

charge by Krotzer that Worth was not effective in his represen-

tation of Krotzer, it can not give rise to any complaint by Jones.

The question presented by the motion, as well as by the perti-

nent cases discussed hereinafter, is whether Worth learned con-

fidential information from Krotzer which would prevent him

from cross-examining Krotzer if he ever became a witness

against Jones, or whether any conflict will prevent Worth from

protecting the best interests of Jones, or that Jones can argue

9

that he did not have effective assistance of counsel. It is respect-

fully submitted that no such confidential information was dis-

cussed and no such conflict or potential conflict is shown on.this

record.

Even in the area of multiple representation, this Court has

rejected potential conflict as grounds for disqualification of coun-

sel. Such potential conflict of interest was the predicate for the

Third Circuit's decision in United States ex rel. Sullivan v.

Cuyler, 593 F.2d 512 (3rd Cir. 1979) (hereinafter “Cuyler I’).

Two privately retained attorneys had represented both peti-

tioner and two co-defendants in connection with state court

murder trials. Sullivan raised no objection to such representa-

tion, based, in part, on his inability to afford his own counsel.

Sullivan was tried and convicted, after resting without present-

ing a defense. His co-defendants were later acquitted at separate

trials. After exhausting his state remedies, Sullivan filed a peti-

tion for Habeas Corpus arguing, inter alia, that counsel had a

conflict of interest based upon their representation of his two co-

defendants. The Third Circuit reversed the denial of the peti-

tion, finding that the mere possibility of conflict of interest re-

sulting from multiple representation was sufficient to deprive a

defendant of his right to effective assistance of counsel, conclud-

Ing:

“Numerous recent cases in this Circuit have repeated this

standard and made clear that actual prejudice or conflict o*

interest need not be shown. The mere possibility, however

remote, is sufficient.” Cuyler 1, supra, 593 F.2d, at 519-

520.

On appeal, this Court specifically and unequivocally held

that the standard enunciated by the Third Circuit in Cuyler I

was erroneous. The Court held both that the Rule 44(c) inquiry

is not constitutionally mandated and that multiple representa-

tion does not violate the Sixth Amendment absent an actual con-

flict of interest. Cuyler v. Sullivan, 446 U.S. 335 (1980)

(hereinafter “Cuyler II”). Accord: Holloway v. Arkansas, 435

U.S. 475, 482 (1978). Cuyler II held that a possibility of conflict

from multiple representation is insufficient to warrant a conclu-

10

sion that a lawyer's performance was adversely affected and/or

ineffective:

“We hold that the possibility of conflict is insufficient to im-

pugn a criminal conviction. In order to demonstrate a viola-

tion of his Sixth Amendment rights, a defendant must es-

tablish that an actual conflict of interest adversely affected

his lawyer's performance.” Cuyler II, supra, 446 U.S. at

350. Accord: Dukes v. Warden, 406 U.S. 250 (1972).

Both Cuyler II and Holloway make clear that only an actual

conflict of interest may permit reversal of a conviction on Sixth

Amendment grounds, and that since the Rule 44(c) inquiry is

not even constitutionally mandated, no court may deny a crimi-

nal defendant choscu counsel to present a common defense un-

less there is an actual conflict. Other circuits have come to simi-

lar conclusions. See United States v. Armedo-Sarmiento, 524

F.2d 591 (2nd Cir. 1975); United States v. Garcia, 517 F.2d 272

(5th Cir. 1975). Also see United States v. Curcio, 680 F.2d 881

(2nd Cir. 1982); United States v. Cunningham, 672 F.2d 1064

(2nd Cir °°); Smith v. Bordenkirche. , 671 F.2d 936 (6th Cir.

1982) anu United States v. Agosto, 675 F.2d 965 (8th Cir. 1982).

This Court has granted Certiorari to review the Third Cir-

cuit’s conclusion in Flanagan that the potential conflict resulting

from joint representation of co-defendants is grounds for dis-

qualifying counsel, even though there may be a knowing and in-

telligent waiver of such potential conflict of interest by the co-

defendants. If this Court rejects the Third Circuit's reasoning it,

Flanagan, then it should even more emphatically reject its rea-

soning in the case at bar, in which the potential conflict is even

less apparent.

1]

2. WHERE COUNSEL REPRESENTS, IN A STATE PRO-

CEEDING, A PERSON WHO MAY BE CALLED AS A

WITNESS AGAINST PETITIONER IN A PERIPHER-

ALLY RELATED FEDERAL CASE, BUT DOES NOT

OBTAIN FROM HIM ANY CONFIDENTIAL INFORMA-

TION, THERE IS NO ACTUAL OR POTENTIAL CON-

FLICT, AND DISQUALIFICATION OF COUNSEL DE-

PRIVES DEFENDANT OF HIS CONSTITUTIONAL

CHOICE OF COUNSEL.

The District Court's reliance on Flanagan, approved by the

Third Circut panel's Judgment Order, appears to be misplaced.

Flanagan involved a question of simultaneous representation of

co-defendants. In that case, four Philadelphia police officers

were charged with conspiracy to violate civil rights of citizens

and substantive violations. The defendants chose to present a

common defense, and all retained one law firm to represent

them. Pursuant to Government request, the District Court con-

ducted a hearing to determine whether defendants were aware

of the risks of joint representation and their right to separate re-

presentation. The District Court found that each defendant was

completely aware of the potential conflicts of joint representa-

tion and that each defendant had voluntarily and intelligently

chosen to waive any claim of conflict of interest in electing to be

represented by one counsel. But because the District Court also

found that a conflict of interest “was very likely to arise in the

course of proceedings,’ it held that the waivers need not be ac-

cepted and ordered that the firm should be disqualified from re-

presenting any of the defendants. Judge Gibbons, speaking for a

three Judge panel of the Third Circuit affirmed this action, rec-

ognizing that the Supreme Court had acknowledged that waiver

of potential conflicts is possible, in Cuyler II, supra, 446 U.S.

335 (1980).* The Third Circuit cited its earlier decision in United

2. It should be noted that in the case at bar the trial Judge refused to per-

mit counsel to question Defendant Jones about his willingness to waive any

conflict, and to explore whether such waiver was knowing and intelligent (A36-

A37).

12

States v. Dolan, 570 F.2d 1177 (3rd Cir. 1978), which held that a

trial court need not accede to a waiver of conflict of interest

when faced with an actual serious conflict of interest on the part

of an attorngy representing two co-defendants. In Flanagan the

Third Circuit noted that Dolan does not require the trial court to

accede to a waiver when the conflict is anything short of actual.

The panel noted that the trial court had found, and the defend-

ants did not dispute, that a conflict of interest is very likely to

arise. The trial court had expressed its concern that the likely

conflicts might well develop into actual conflicts before the trial

came to a close. Accordingly, the panel in Flanagan affirmed the

disqualification, concluding there was no abuse of discretion.

It should be noted that other circuits have come to contrary

conclusions. See, e.g., United States v. Armedo-Sarmiento, 524

F.2d 491 (2d Cir. 1975), and United States v. Garcia, 17 F.2d

272 (5th Cir. 1975), where the Second and Fifth Circuits held

that defendants have a constitutional right to a knowing and in-

telligent waiver of any disqualification of defense attorneys.

Both cases involved representation of former clients in substan-

tially-related criminal proceedings. Furthermore, this Court has

granted Certiorari to review the Third Circuit's ruling in Flana-

gan.

Not only did Flanagan involve a question of simultaneous

representation of co-defendants, but Dolan also involved simul-

taneous representation of co-defendants in the same federal

case. In that case one attorney represented a defendant who

pled guilty before trial, and who was awaiting sentence at the

time of the trial of his co-defendant, who was represented by the

same attorney. At his trial, defendant took the stand and testi-

fied that he was only assisting the guilty-pleading co-defendant.

The government then announced its intention to call the plead-

ing defendant as a rebuttal witness. There was no question in

that case that counsel had obtained confidential communications

from both clients, and that he would be forced into a position of

cross-examining one of his own clients in order to protect the

interest of his other client. The trial court again questioned both

defendants as to their desire to waive and even though they per-

sisted, granted a motion for mistrial and ordered the attorney to

withdraw from representing one or the other. Defendant, still

13

desiring to have the attorney represent him, took an appeal.

Thus, the sole question before the court was whether the clients

could effectively waive this clear and obvious actual conflict.

Judge Rosenn, speaking for a three Judge panel, concluded:

“{W]hen a trial court finds an actual conflict of interest

which impairs the ability of a criminal defendant's chosen

counsel to conform with the ABA Code of Professional Re-

sponsibility, the court should not be required to tolerate an

inadequate representation of a defendant.” 570 F.2d, at

1184 (emphasis added).

However, in cases involving successive representation of

defendant, rati: r than simultaneous representation, a different

standard has been applied in the Third Circuit. In United States

v. Provenzano, 620 F.2d 985 (3rd Cir. 1980), an attorney was

disqualified from representing one of the defendants charged

with RICO and conspiracy because he had previously repre-

sented the Government's key witness in the case on a State mur-

der conviction charge. The District Court held that he would be

in a contlict of interest situation between the duty of vigorous

representation of his client and the duty of loyalty tu the wit-

ness, since confidences relating to the witness’ murder convic-

tion and events of that period would be usetul to impeach him as

a witness against the defendant. Although the defendant stated

he was willing to waive effective representation as the price for

retaining his attorney, the Court concluded that there is no ab-

solute right to particular counsel when there is an actual conflict

of interest, citing Dolan. Judge Garth, speaking for a three

Judge panel of the Third Circuit, noted that although the Dis-

trict Judge did not make explicit findings that the attorney knew

specific facts that would have involved him in conflict, the Dis-

trict Court “correctly concluded that he must assume as much,

since he could not actually inquire about that matter without

thereby himself destroying the confidence.” 620 F.2d, at 1005.

The Court concluded that the attorney's access to privileged in-

formation is “conclusively presumed.” However, in the case at

bar, Worth’s access to privileged information has been conclu-

sively refuted by Krotzer and Jones.

y—

14

In United States v. Agosto, 675 F.2d 965, 972 (Sth Cir.

1982), the Eighth Circuit held that the “irrefutable presump-

tion” doctrine should not be invoked as to a knowlecgeable cli-

ent who maintains that, in fact, no confidential communications

were made. In that case the District Court had disqualified an

attorney from representing one defendant because he had pre-

viously represented grand jury witnesses, even though the

grand jury witnesses had submitted affidavits stating that they

did not consider their communications to be confidential. That

Circuit's reasoning is, a fortiori, applicable to the facts of the in-

stant case, where the witness Krotzer has acknowledged under

oath at a ‘udicial hearing that he made no confidential disclo-

sures to attorney Worth, and that any disclosures made by De-

fendant Jones in his presence were not the truth. Also see

United States v. Laura, 667 F.2d 365 (3rd Cir. 1981). Further-

more, the Agosto case discussed the potentiality of conflict

which could arise from the attorney's continuing pecuniary in-

terest in a former client. 675 F.2d, at 976-77. No such continu-

ing pecuniary interest has been shown in the case at bar — in

fact, it has been conclusively refuted, since it was Jones who had

paid Worth for representing Krotzer in the State proceeding.

Also see United States v. Shepard, 675 F.2d 922 (8th Cir. 1982);

United States v. F.M.C. Corp., 495 F.Supp. 172, 173 (E.D. Pa.

1980).

The practice of the Government moving to disqualify attor-

neys for mere advice to individuals who later may be designated

as witnesses has been discussed and criticized in Margolin and

Coliver, Pretrial Disqualification of Criminal Defense Counsel,

20 Amer .Crim.L.Rev. 227 (1982).

In cases where the court has found a potential conflict even

as to simultaneous representation of co-defendants, the remedy

has not been complete disqualification, but merely requiring

counsel to represent one or the other defendant. For example,

in United States v. Quinones, 613 F.2d 47 (3rd Cir. 1980), two

defendants, charged along with ten other defendants in a twelve

count drug conspiracy indictment, sought to be jointly repre-

sented by one attorney. The Government filed a motion for pre-

trial hearing, following which the District Judge ruled that a po-

tential conflict of interest existed and that he could not properly

.

15

find a knowing and intelligent waiver of both defendants’ consti-

tutional right to effective representation. A three Judge panel of

the Third Circuit, Per Curiam, affirmed the order of the District

Court requiring the attorney to withdraw from representation of

either of the defendants. Thus, the Court appeared not to be

concerned with the question of whether counsel had obtained

confidential communications or whether access to privileged in-

formation could be presumed, or even whether there was likely

to be actual conflict, in allowing him to continue as counsel for

one of the defendants. If this is true as to simultaneous represen-

tation, then it is even more true as to successive representation

of different individuals, especially on the record in this case.

In the case at bar, the record shows clearly that there is no

actual conflict. Whether or not the statements made by Jones in

the presence of Krotzer, and Krotzer’s “assent” thereto, can be

considered to be confidential communications, as concluded by

the trial Judge (A9), Krotzer testified that there were no disclo-

sures made by Krotzer which could be utilized by Worth to help

Worth cross-examine Krotzer if Krotzer is actually called as a

witness at the trial of Jones; therefore, this is distinguishable

from the situation in Dolan. Nor is there any concession by the

Defendant that a conflict is very likely to arise, as was true in

Flanagan. Nor was there any continuing pecuniary interest by

Worth in Krotzer which would hamper or impede his effective

representation of Jones, as discussed in Agosto and Shepard.

The trial Judge also refused to permit counsel to explore the

question of knowing and intelligent waiver of any conflict by De-

fendant Jones.

For all these reasons, the trial Judge in ordering Worth dis-

qualified as attorney for Jones, has deprived petitioner Jones of

his constitutionally guaranteed right to choose his own counsel

in mistaken reliance upon and extension of an inapplicable and

no longer viable standard enunciated in Flanagan. The Judg-

ment Order affirming this remedy thus violates the decisions of

this Court and conflicts with the decisions in other Circuits, and

violates Petitioner's constitutional rights.

16

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issue to

the Court of Appeals for the Third Circuit so that this Honorable

Court may review and correct the decision below.

Respectfully submitted:

STANFORD SHMUKLER

Counsel for Petitioner

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1007

UNITED STATES OF AMERCIA

v.

JONES, JOHN D. a/k/a Jack Jones

John D. Jones,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. $2-00366-01)

District Judge: Honorable Daniel H. Huyett, 3rd

Submitted Under Third Circuit Rule 12(6)

September 29, 1983

Before: ALDISERT and BECKER Circuit Judges,

and COHILL, District Judge .*

JUDGMENT ORDER

After considering the contentions raised by appellant, to-

wit, that: the district court erred in disqualifying counsel for

defendant where counsel had previously represented in state

proceedings a potential witness against defendant but had not

obtained confidential communications from him; it is

* Honorable Maurice B. Cohill, Jr., of the United States District Court

for the Western District of Pennsylvania, sitting by designation.

A-l

A-2

ADJUDGED and ORDERED that the judgment of the

district court be and is hereby affirmed.

BY THE COURT,

/s/ ALDISERT

Circuit Judge

Attest:

/s) SALLY MRVOS

Sally Mrvos, Clerk

Dated: September 30, 1953

A-3

APPENDIX B

LNS:lem

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v. Criminal No.

§2-00366

JOHN D. JONES,

a/k/a Jack Jones

ORDER

AND NOW, this 22nd day of December, 1982, upon con-

sideration of the Government's Motion to Disqualify Counsel

and Supporting Memorandum, and the hearing held thereon, it

is hereby

ORDERED

that Wallace ©. Worth, Jr., Esquire is disqualified from repre-

senting or participating in any way in the representation of John

D. Jones in connection with the above-captioned criminal case.

A statement of reasons shall be filed shortly

BY THE COURT:

‘s) DANIEL H. HUYETT, Ill

A-4

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL

v. : ACTION

JOHN D. JONES, No. 82-366

a/k/a Jack Jones

MEMORANDUM

HUYETT, J. March 31, 1983

In this criminal matter, defendant John D. Jones a/k/a Jack

Jones has been charged with violations of 18 U.S.C. §§ 2315 and

2313. The government alleges that the defendant has received

motor vehicles stolen from interstate commerce and that he has

sold goods stolen from interstate commerce. Jones is also

charged with mail fraud in violation of 18 U.S.C. § 1314.

The defendant retained the firm of Wallace C. Worth, Jr. to

represent him. Before me is the government's motion to dis-

qualify Worth from representing or participating in the repre-

sentation of the defendant because Worth previously repre-

sented a key government witness, Henry Krotzer. I held a

hearing and issued my order and decree granting the govern-

ment’s motion. This memorandum constitutes my findings of

fact conclusions of law, and statement of my reasons for ruling as

I did.

Henry Krotzer testified at the hearing. I found him to be a

credible witness. He was candid and answered the questions of

counsel in an open and forthright manner

Henry Krotzer and John Jones had known each other for a

period of twenty years. Jones operated Jones’ Truck Sales,

where he employed Krotzer from approximately 1978 until

1982. Jones bought and sold used tractor trailer and truck parts.

Krotzers employment related to this operation. Krotzer left

Jones’ employ after the events described below.

A-5

On September 28, 1982, Krotzer was arrested on state

charges, which included receiving stolen property, unauthor-

ized use of a motor vehicle, conspiracy and falsification of an

identification number. Jones was named in the state charges as a

co-conspirator. Following his arrest, Krotzer voluntarily agreed

to provide information to the FBI concerning Jones. Jones was

indicted by a federal grand jury on the present federal charges

on November 9, 1982. One vehicle, an International Harvester

tractor, identification number D4227HHA10108, forms the ba-

sis for one of the three state charges against Krotzer and counts 3

and 4 of the federal indictment against Jones.

Worth’s representation of Krotzer preceded Krotzer’s ar-

rest in September. In June, 1982, pursuant to a state search war-

rant, Krotzer’s trucks were searched and impounded by Penn-

sylvania State Police. Krotzer discussed the matter with Jones,

his employer. Jones told Krotzer that if the Pennsylvania State

Police were to arrest him as a result of the search, he should call

Worth and Jones immediately. This was the second time that

Jones arranged to have Worth represent Krotzer in matters re-

lating to Krotzer’s business activities with Jones.

The first time that Worth was hired by Jones to represent

Krotzer involved the repossession of a truck which Jones told

Krotzer he would attempt to get returned to him. To effect this

return, Jones told Krotzer he had retained Wallace Worth, who

had represented Jones on several prior occasions over a two-vear

period. As he was instructed by Jones, Krotzer went to Worth’s

office to sign papers in blank in connection with Worth’s efforts

to have the truck returned. He did not speak to Worth on that

occasion.

Upon his arrest on September 25, 1982, Krotzer asked his

wife to call Jones and have Jones contact Worth, as was prear-

ranged. When Krotzer arrived at the police station, he received

a call from Worth, who advised him to remain silent. Krotzer

was released on his own recognizance.

After his release, Krotzer went to discuss the matter with

Jones. According to Krotzer, Jones instructed him not to tell

anyone what he knew about the allegations contained in the

state complaint, or of Jones alleged involvement in the events

A-6

stated in the charges. Following their conversation, Jones took

Krotzer to the office of Worth.

Present at the meeting were Wallace Worth, Diane Dixon,

Esquire, Worth’s associate, Krotzer and Jones. Worth asked

Krotzer whether he knew anything about the charges against

him. Krotzer responded that he knew about the Lincoln auto-

mobile mentioned in one of the complaints. According to

Krotzer, as hc began to explain, he was interrupted by a “dirty

look” from Jones, which reminded him of Jones’ alleged prior

warning not to admit knowledge of the events to anyone. Worth

continued to question Jones and Krotzer about various cars,

trucks and parts mentioned in the complaint. Jones answered

Worth’s questions regarding the items, explaining how he and

Krotzer acquired them, and Krotzer agreed with Jones’ explana-

tions. Although he now states that he believed Jones was not be-

ing truthful in his responses, Krotzer states that he did not

object because of Jones’ warning not to reveal to anyone his

knowledge of the alleged events.

As the meeting ended, Worth agreed to represent Krotzer

at the preliminary hearing on the charge. Jones agreed to pay

Worth for all of Krotzer’s legal expenses. Jones and Jones’ wife

accompanied Krotzer to the first hearing, on two of the three

state charges, held on October 6, 1982 before Magistrate James

Stahl. Worth was also present. Krotzer believed Worth was act-

ing as his attorney and would represent his interest. At the hear-

ing testimony was given by several witnesses. Some of the wit-

nesses testimony incriminated Jones, as well as Krotzer, in the

alleged activities. Throughout the hearing Worth acted as if he

were representing the interests ot both Jones and Krotzer. He

vigorously cross-examined the witnesses about Jones. Although

Jones was not a defendant at the hearing, Worth objected when

some testimony was elicited regarding Jones.

Prior to the second preliminary hearing, which was held on

November 19, 1982, Krotzer went to the Lehigh County Public

Defenders’ office to seek another attorney because he felt he

could not trust either Jones or Worth. Krotzer stated that he had

overheard a telephone conversation by Jones regarding truck

parts in which Jones told the caller he had acquired the parts

A-7

from Henry Krotzer. Krotzer believed Jones was trying to place

the blame for a stolen motor on him, by saying he purchased it

from Krotzer, when this was not in fact true. Additionally,

Krotzer stated that he had become uneasy because of the state-

ments that Jones made to Worth at the meeting on September

29, 1982 about Krotzer’s involvement in the activities

underlying the state charges. Krotzer stated that he believed

that Worth could not defend both of them. Krotzer feared that

because Jones was paying Worth, and Worth had representd

Jones in other matters, Worth could represent Jones more

diligently than he would represent Krotzer.

Worth attempted to contact Krotzer to prepare for the sec-

ond preliminary hearing on November 19, 1982, however, he

did not speak to Krotzer prior to that hearing. Kortzer arrived at

the hearing with two attorneys from the Public Defenders’ of-

fice. At the hearing, Krotzer told Worth that he no longer

wanted Worth to represent him.

On November 9, 1952mébe federal grand jury returned the

present indictment against John Jones.

The government contends that the continued representa-

tion of Jones by Worth would be improper because of an actual

or apparent conflict of interest. It asserts that Worth may be

forced to reveal a confidential communication by Krotzer in his

representation of Jones because Worth represented Krotzer in a

criminal matter closely related to the federal charges now pend-

ing against Jones. The government further asserts that Worth’s

former relationship with Krotzer will make it impossible for him

to represent Jones with the independence of judgment required

by the sixth amendment.

The defendant argues that no conflict of interest is present

because no confidential communication took place ever between

Worth and Krotzer. The defendant also contends that Jones’

presence in Worth’s office during the meeting between Krotzer

and Worth precludes such a finding.

Conversations between a client and his attorney are not

privileged where there is a non-essential third-party present.

Johnson v. United States, 542 F.2d 941, 942 (5th Cir.), cert. de-

nied, 430-U.S. 934 (1976); C. McCormick, Evidence §91, at 188

A-8

(2d ed. 1972). It does not follow from this rule of law, however,

that the presence of a third-party necessarily vitiates the attor-

ney-client privilege. For example, the presence of employees of

the attorney does not destroy the confidentiality of the conversa-

tion. See United States v. United Shoe Machinery Corp., 89 F.

Supp. 357, 358 (D. Mass. 1950). Similarly, when two persons

accused of a joint criminal undertaking meet with an attorney

representing both, the presence of one client should not affect

the other client's right to confidentiality. Accordingly, individu-

als who are alleged to have been involved together in criminal

activity must be able to seek legal advice and speak freely with

counsel without fear that their disclosures will be used against

them in subsequent proceedings.

Jones’ presence at the meeting with Krotzer and Worth on

September 29, 1982 does not destroy the confidential nature of

the meeting and the information disclosed to Worth. Krotzer

and Jones each believed that the other was an essential party to

this meeting because the subject of the meeting related to their

joint activity. Jones and Krotzer had known each other for many

years. Krotzer worked for Jones at Jones’ Truck Sales ior several

years prior to his arrest. The allegations in the state complaint

related to Krotzer’s and Jones’ business activities. Although he

had not been arrested on state charges at that time, Jones was

named as a co-conspirator in the state charges filed against

Krotzer. It is apparent that Jones and Krotzer believed them-

selves to be implicated together in the events. The present fed-

eral indictment of Jones refers to one of the same vehicles which

formed the basis of the state charges against Krotzer. Addition-

ally, Jones stated that he had an interest in two of the trucks im-

pounded as a result of Krotzer’s arrest. The circumstances of the

first preliminary hearing also demonstrate that all parties be-

lieved that Jones and Krotzer were implicated together, and

were presenting one defense. Jones accompanied Krotzer to the

state preliminary hearing, at which Worth acted as if both

Krotzer and Jones were his clients. By his cross-examination of

the witnesses he not only protected Krotzer’s interests, but

Worth also challenged testimony which appeared to implicate

Jones.

A-9

Additionally, Jones and Krotzer each understood that

Worth was representing both of them. Krotzer knew Worth was

Jones’ attorney. Jones had arranged for Worth to represent

Krotzer. Jones advised Krotzer what to do if he was arrested and

how to handle his defense. Krotzer believed that Worth was his

attorney and would protect his interests. He also expected that

the disclosures made would not be revealed to anyone not

present at the meeting. I conclude that a confidential relation-

ship existed between Worth and Krotzer.

The defendant also contends that Krotzer disclosed no con-

fidential information to Worth. Upon Worth’s initial questions

to Krotzer at the meeting on September 29, 1982, Krotzer told

Worth that he had knowledge of the allegations contained in the

complaint regarding one of the automobiles, a white Lincoln.

Following this statement, Krotzer permitted Jones to respond to

Worth’'s questions and communicated to Worth his assent to

Jones’ responses. This conduct by Krotzer constitutes confiden-

tial communications to Worth.

In United States v. Flanagan, 679 F.2d 1072 (3d Cir. 1982),

cert. granted, January 10, 1983, our court of appeals held that

where an actual contiict of interest is very likely to materialize,

disqualification of defense counsel is an appropriate measure.

Id. at 1076. While Flanagan involved the joint representation of

co-defendants by one firm, I believe that the facts of this case are

analogous to those in Flanagan. In this case Worth has, in effect,

represented two persons allegedly involved in a joint undertak-

ing which has resulted in criminal charges. Even though Jones

had not been formally charged by the state, he was named as a

co-conspirator throughout the state charges against Krotzer.

Those state charges are very closely related to the federal

charges now pending against Jones.

I am gravely concerned that a conflict of interest is very

likely to arise in this case, either at trial or before trial during

plea bargaining, because of Worth’s representation of Krotzer.

Because a conflict is very likely to materialize during these pro-

ceedings, Worth must be disqualified as Jones’ attorney. The

fact that Krotzer subsequently retained other counsel does not

preclude Worth’s disqualification. A serious potential for conflict

A-10

is still present. See United States v. Garafola, 428 F. Supp. 620,

622-23 (D.N.J. 1977), affd sub nom. United States v. Dolan,

570 F. 2d 1177 (3d Cir. 1978). The government has stated that it

intends to call Krotzer as a government witness at trial. Because

of his employment by Jones, his alleged involvement in the

events and his knowledge of the items contained in the charges,

Krotzer will be an important government witness in its trial

against Jones. It appears to me that Worth cannot effectively

cross-examine Krotzer in light of their prior confidential rela-

tionship. Mr. Worth cannot ask Krotzer questions on cross-ex-

amination regarding any of the confidential disclosures he made

during Krotzer’s meeting with Jones and Worth on September

28, 1982 without touching upon matters protected by the attor-

ney-client privilege. As his testimony at the hearing demon-

strated, Krotzer is likely to testify to facts different from those

related to Worth by Krotzer and Jones at the meeting on Sep-

tember 28, 1982. While Krotzer now states that he believed the

information provided by Jones at the meeting to be false, he did

not tell Worth this. Krotzer now explains that his failure to dis-

agree with Jones was based upon alleged prior warnings from

Jones and a threatening look by Jones at the meeting. Worth

would be faced with a former client testifying to facts inconsis-

tent with those disclosed to him in a confidential communica-

tion. Worth would be tempted to use the prior inconsistent

statements made by Krotzer when he assented to Jones state-

ments at the meeting to impeach Krotzer, in an effort to zeal-

ously defend Jones. It is also possible that Worth, aware of his

obligation to his former client, would overcompensate and be

less than zealous in his cross-examination of Krotzer thereby

denying Jones his sixth amendment right to effective assistance

of counsel. See, United States v. Garafola, 428 F. Supp. 620

(D.N.J. 1977), affd sub nom. United States v. Dolan, 570 F. 2d

1177 (3rd Cir. 1978).

Despite Jones present desire to have Worth represent him

at this criminal trial, Jones, if convicted, may later become dis-

satisfied with Worth’s representation and move for a new trial,

alleging he was denied effective assistance of counsel. If Worth

were permitted to continue as Jones’ counsel, any plea agree-

A-ll

ment reached with the government might also be vulnerable to

a subsequent attack by Jones on the same grounds. Jones could

challenge any such agreement on the ground that it was the re-

sult of possible pressure on Jones or Worth to plead guilty rather

than go to trial, at which a conflict of interest would crystallize.

My decision does not abrogate Jones’ sixth amendment

rights. While the sixth amendment grants a criminal defendant

the unqualified right to assistance of counsel, it does not provide

him with an absolute right to the counsel of his choice. Davis v.

Stamler, 650 F.2d 477 (3d Cir. 1981). A criminal defendant's

right to be represented by the counsel of his choice must be bal-

anced against the public's interest in a fair criminal proceeding,

free from future attacks. See United States v. Flanagan, 527 F.

Supp. 902, 906 (E.D. Pa. 1981), affd, 679 F.2d 1072 (3d Cir.

1982), cert. granted Jan. 10, 1983. This is not a case in which the

nature of the conflict is highly speculative. I have carefully con-

sidered the circumstances of this case and find that an actual

conflict of interest is very likely to arise before the end of the

defendant's trial. The sixth amendment guarantees all criminal

defendants “the assistance of counsel for his defense.” Such as-

sistance must be “untrammeled and unimpaired.” Glasser v.

United States, 315 U.S. 60, 70 (1942). If Worth continued to

represent the defendant, it is likely that a conflict of interest

would arise during the trial proceedings, and therefore the de-

fendant would not receive independent assistance of counsel as

required by the sixth amendment.

For the reasons stated above, I concluded (nat Worth’s con-

tinued representation of Jones is very likely to lead to an actual

conflict of interest in this case. Worth must, therefore, be dis-

qualified from representing the defendant. Accordingly, |

granted the government's motion.

/s) DANIEL H. HUYETT, III

Daniel H. Huyett, 3rd, Judge

A-12

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Criminal Action

v.

JOHN D. JONES,

a/k/a JACK JONES . NO. 82-366

Philadelphia, Pennsylvania

December 22, 1982

HEARING ON GOVERNMENT's MOTION

to

DISQUALIFY DEFENSE COUNSEL

Before HONORABLE DANIEL H. HUYETT, 3rd, J.

APPEARANCES:

PETER F. VAIRA, ESQ.,

UNITED STATES ATTORNEY,

Eastern District of Pennsylvania

Third Floor — United States Courthouse

601 Market Street

Philadelphia, PA 19106

BY: LYNELL N. STATON, ESQ.,

and

JOANNE A. EPPS, ESQ.

Assistant United States Attorneys

A-13

WALLACE C. WORTH, JR., ESQ.,

and

DIANNE M. DICKSON, ESQ.,

Attorneys for Defendant

515 Linden Street

Allentown, PA 18101

THE COURT: Good morning. This is a hearing pursuant

to the Government's Motio: to Disquality Defendant's Counsel

and it is scheduled pursuant to my Order of December 17, 1982.

Are counsel ready to proceed?

MS. STATON: Yes, sir.

THE COURT: Would the Government proceed.

MS. STATON: Thank you, your Honor.

Your Honor, the Government calls Tropper Richard Diskin

to the stand.

THE COURT REPORTER: What was the name?

MS. STATON: Richard Diskin.

THE COURT REPORTER: Would vou remain standing,

please, and state your full name?

THE WITNESS: Tropper Richard Diskin, D-I-S-K-I-N.

(Witness sworn. )

MS. STATON: May I approach the witness, vour Honor?

THE COURT: ‘es. There's no need to seek leave to do

that in this type of proceeding, unless there is a problem and |

assume there will nct be.

Would you proceed?

MS. STATON: Thank you.

DIRECT EXAMINATION

BY MS. STATON:

Q. Tropper Diskin, could vou state for the record what vou

do for a living?

A-14

A. I'm employed by the Pennsylvania State Police, cur-

rently assigned to the Bureau of Criminal Investigation in

Harrisburg, Pennsylvania.

Q. And, for how long have you been assigned to that Bu-

reau?

A. I've been assigned to the Bureau of Criminal Investiga-

tions for a little over two years now.

Q. Have you been assigned to investigate matters concern-

ing the defendant in this case, Jack Jones?

A. Yes, I have.

THE COURT: Would you keep your voice up?

THE WITNESS: Yes, sir.

THE COURT: The both of you, so, that I could — particu-

larly Miss Staton.

MS. STATON: Your Honor, I have to apologize. I have a

very bad cold, but I will do my best.

THE COURT: All right — okay. We have to hear you and

the reporters have to hear you.

CONTINUED DIRECT EXAMINATION

BY MS. STATON:

Q. Tropper Diskin, I would like to show you three com-

plaints, all dated September 23, 1982 and [ ask you if you

can identify those?

A. Yes, I can, Ma'am.

Q. --can you tell us if you are the affiant on those com-

plaints?

A. Lam.

Q. And, who is charged in them?

A. On these three complaints, here, Henry Krotzer is the

defendant.

Q. And, briefly, can you tell us what violations he was

charged with on those?

A. Three counts of receiving stolen property, three counts

of criminal conspiracy, two counts of unauthorized use of a

A-15

vehicle and sections from the Motor Vehicle Code with re-

gards to removal or falsification of identification numbers.

Q. Can you tell us if preliminary hearings have been held

in the state with regards to these charges?

A. With regard to two charges, there was a preliminary

hearing held before Magistrate James Stahl in the City of

Allentown on October 6th.

Q. And —

A. The third complaint was waived on I believe November

19th.

MS. STATON: Thank you, I have no further questions.

THE COURT: Cross-examination?

MR. WORTH: I have no questions, your Honor.

THE COURT: All right. Thank you

You may step down, sir.

THE WITNESS: Thank you, Judge.

(Witness leaves stand. )

MS. STATON: The Government's next witness is Henry

Krotzer.

THE COURT REPORTER: Would you remain standing,

please, and state your full name?

THE WITNESS: Henry G. Krotzer.

(Witness sworn.)

MS. STATON: Your Honor, the Government requests that

Mr. Krotzer be read his Constitutional rights with regard to por-

- tions of his testimony.

THE COURT: Would you do that?

MS. STATON: Certainly.

Mr. Krotzer, I would like to inform you that there are going

to be certain questions asked of you today that pertain to charges

that are pending against you in the state and I want you to be

fully apprised that you do not have to answers [sic] these ques-

tions; that you have the right to remain silent; that anything you

say can be used against you in court; that you have a right to talk

to a lawyer for advice before we ask you any questions and to

have a lawyer with you during questioning. If you cannot afford

A-16

a lawyer, one with be appointed for you before any questioning,

if you wish.

If you decide to answer questions now without a lawyer

present, you will still have the right to stop answering at any

time. You also have the right to stop wuswering at any time until

you talk to your — until you talk to your lawyer.

Do you understand that? wo

THE WITNESS: Yes.

THE COURT: Mr. Krotzer, do you have any questions

concerning the warning just administered to you by the Assist-

ant U.S. Attorney?

Do you — do you understand?

Do you have any questions?

Would you like to ask me anything concerning the warning

that has just been administered to you?

THE WITNESS: No, your Honor.

| — I talked to my lawyer before I came down here.

THE COURT: You considered this before you came down

here?

THE WITNESS: Yes.

THE COURT: And, vou understand the warning that has

just been administered to you?

THE WITNESS: I do.

THE COURT: And, you've given it to consideration before

vou came here? Is that what you are telling me?

THE WITNESS: Yes.

THE COURT: All right, anything else, Ms. Staton, on this

point?

MS. STATON: No, sir.

THE COURT: All right, would vou proceed, then?

MS. STATON: Yes, thank vou.

DIRECT EXAMINATION

BY MS. STATON:

Q. Mr. Krotzer, do you know the defendant Jack Jones?

A. Yes, I do.

A-17

Q. Do you see him in the courtroom today?

A. Yes, Ma’am.

Q. Can you please point him out and describe what he is

wearing?

A. Sitting next to Mr. Worth over there.

THE COURT: You must keep your voice up —

THE WITNESS: — on the end.

THE COURT: — sir, if you would. Keep your voice up.

A. (Continuing) The man on the end, sitting next to Mr.

Worth.

MS. STATON: Your Honor, may the record reflect the wit-

ness has identified Jack Jones?

THE COURT: Yes.

MS. STATON: Thank you

Q. How do you know him, Mr. Krotzer?

A. I worked for Mr. Jones for about four years.

THE COURT: You must speak a little louder. We —

A. (Continuing) | worked for Mr. Jones for about four

years.

THE COURT: We're making a record of this and that mike

is not working as well as it should. You must speak up. Thank

you.

Q. Prior to the time that you started working for Mr.

Jones, did you know him?

A. Yes, I knew him for off and on for maybe 20 years.

Q. Again, just try to really keep your voice up, Mr.

Krotzer.

A. Offand on for 20 years I met him, talked to him. I knew

him.

Q. Do you know Mr. Wallace Worth?

A. Yes, I do.

Q. Do you see Mr. Worth in the courtroom today?

A. He's sitting next to Mr. Jones there.

MS. STATON: Your Honor, again, may the record reflect

that the witness has identified Wallace Worth?

THE COURT: Yes.

Q. How do you know Mr. Worth?

A-15

A. He was my lawyer.

(Q. When was that, Mr. Krotzer?

A. It was from when you first impounded the trucks, up

until I think, the 19th or — my last hearing, Just before the

last hearing.

Q. Now, when you say when they first impounded your

trucks, can you give us an approximate date for that?

A. Ah —

Q. Could that have been in June of this year?

A. Yes, June.

Q. And, when you say your last hearing, was that Novem-

ber of 1982?

A. November, 1982. Yes. November, 1982

Q. Now, directing your attention to the incident with the

trucks in June of this year, what contact did you have with

Wallace Worth and under what circumstances?

A. Well, I never really had contact with him, personally, at

all, until after 1 was arrested.

Q. Well, let's start at the beginning. "

You said that your trucks were impounded?

A. Right.

(. Exactly what happened, Mr. Krotzer?

A. Well, they had a search warrant to search the truck, be-

cause they had vii there that it was supposed to have stolen

parts in it,

Q. And, your truck was impounded by state authorities —

A. Yes —

Q. — is that correct?

A. It's impounded right now.

Q. Were any efforts made to have that truck returned to

you?

A. Yes, Mr. Worth — ah —

Q. Could you keep your voice up, please?

A. Yes.

Mr. Worth was keeping in contact, trying to get it back.

Q. Now, you said that you didn't have any direct contact

with Mr. Worth?

A. No.

A-19

Q. How do you know that Mr. Worth was making any ef-

forts to get your truck back?

A. Mr. — Mr. Jones is the one who got Mr. Worth to go to

work on it and that’s what Mr. Jones was telling me.

Q. Can you keep your voice up?

Did you say that’s what Mr. Jones —

A. Yes.

Q. — told you?

A. Yes, that’s what Mr. Jones told me.

Q. Thank you.

Did you have to sign anthing in connection with getting

your trucks back?

A. Well, I went up one day. He told me I had to go to the

office and sign some papers and I went to Mr. Worth’s of-

fice and his secretary come out and I signed two blank

forms.

Q. You signed them at Mr. Worth’s — Worth’s office?

A. Yes.

Q. And, who told you you have to go there to sign the pa-

pers?

A. Mr. Jones said I had to go down.

Q. Directing your attention to September 28, 1982, do vou

recall the events of that day?

A. Yes, I was arrested.

Q. Id like to show you copies of the complaints that have

been issued in your name — that are on these complaints.

Can you identify those?

A. Yes, I can.

Q. Are these the reasons that you were arrested on Sep-

tember 28th?

A. Yes, these are the reasons.

Q. Do you know why vou were arrested?

A. Yes.

Q. Can you explain that to us?

A. Only — ah — on there, it says about stolen truck parts,

conspiracy — ah — on three counts and — ah — receiving

stolen goods and — ah — driving a vehicle without owner's

consent.

A-20

Q. Now, I'm not going to ask you any specifics about these

charges, because they're still pending against you in state

court; is that correct?

A. Right.

MS. STATON: However, your Honor, I would like to bring

to the notice of the Court the fact that the International Har-

vester tractor vehicle, Identification No. DF227HHA10108

named in one of the complaints, one of the three complaints

against Mr. Krotzer, is also charged in Counts 3 and 4 of the

Federal indictment against Defendant Jones.

THE COURT: All right, I will take judicial notice of that, in

the absence of any objection.

Q. Mr. Krotzer, was your wife present when you were

taken into custody?

A. Yes, she was.

Q. What, if anything did she do at the time that you were

arrested, if you know?

A. Well, I told her to call Jack — Mr. Jones and tell him to

get a hold of Wally Worth.

Q. Why did you tell her to get a hold of Wally Worth?

A. Because that’s what I was told to do, if anything hap-

pened. I was supposed to get a hold of Wally Worth.

. And, who told you to do that if anything happened?

Mr. Jones.

. Do you know if she in fact called Mr. Jones?

Yes, I do.

. You know and did she call him?

Yes, she did.

. What happened when you arrived at the police station?

Well, there was a phone call there for me.

. Can you keep your voice up, please?

. There was a phone call in there for me and it was Mr.

Worth on the phone.

Q. Did you speak to him at that time?

A. Yes, I did.

Q. Concerning this case?

A. He just told me not to say anything.

POPOPOPOPO

A-21

Q. Was bail set? Were you released that day?

A. Yes, I was released on my own recognizance.

THE COURT REPORTER: What was that?

THE WITNESS: I was released on my recognizance.

Q. Following your release on September 28th of this year,

did you have a conversation with Mr. Jones?

A. Yes, I went — after I was released, I went up to — up to

the office to the — to the garage.

Q. Up to whose office?

A. Mr. Jones — up to the garage.

Q. What was discussed during this conversation?

A. Well, we discussed — I had the charges there and we

had to go to town to see Mr. Worth, which I think was the

next dav or that afternoon. I'm not quite sure.

Did you in fact go to see Mr. Worth —

Yes.

— concerning these charges?

Yes, me and Mr. Jones went down.

Do you recall how you got there?

In Mr. Jones’ car.

And, this was, you think the next day?

. And, I think — it was either that afternoon or the next

day.

Q. Did you have conversations at Mr. Worth’s office that

next day or that same afternoon following your arrest con-

cerning the eharges — the state charges brought against

you?

A. Yes.

Q. Can you recall who was present during your conversa-

tions, if anyone, during your conversations with Mr.

Worth?

A. Yes, it was Mr. Worth and Dianne Dixon and Jack

Jones.

Q. Please remember to keep your voice up.

A. I'm sorry.

Q. I think we heard that part, though.

Did Mr. Worth ask you any questions at this meeting?

POPOrOrO

A-22

A. Yes.

Q. What did he ask you?

A. He asked me if I knew anything about anything that’s on

there, on any of the charges.

Q. And, what did you say?

A. I told him no, the only thing I knew about was the Lin-

coln and I couldn't really say the truth on that, because I

got a dirty look when I even mention that, from Mr. Jones.

Q. Can you keep your voice up?

You got a dirty look —

A. Yes.

Q. — when you mentioned that? From whom —

A. I—I wasn't supposed to say nothing about it to nobody,

that I knew anything about it.

Q. Who told you that?

A. Mr. Jones.

Q. After you mentioned the Lincoln to Mr. Worth — is the

Lincoln one of the vehicles mentioned in one of these com-

plaints?

A. Yes it is.

Q. After you mentioned that to Mr. Worth, how did the

remainder of the conversation go?

A. Well, the remainder of the conversation, I just an-

swered — when he asked about certain parts in that, Mr.

Jones and I just said, well, did this part come for a wreck

over in the junkyard, this part come here and I — and I

know nothing about this other truck and I just agreed with

everything. That's all.

Q. Now, again, you're not being quite clear.

Who responded to Mr. Worth’s questions?

A. Mr. Jones more than me.

Q. And, then, what did you do after Mr. Jones would re-

spond to the questions?

A. Id agree.

Q. To your knowledge, was Mr. Jones answering Mr.

Worth’s questions truthfully during this meeting?

A. No.

A-23

Q. But, you were agreeing to everything he said, anyway:

is that correct?

A. Yes.

Q. Because Jones had given you a signal?

A. Yes.

Q. As far as you were concerned, Mr. Krotzer, was Mr.

Worth your lawyer, as you were talking to him in his office?

Yes.

When did you next see or talk to Mr. Worth?

It was the day of the hearing at Mr. Stahl’s which was —

Magistrate Stahl’s?

Yes, which was on the 6th, I think. October 6th.

How did you get to that hearing?

Mr. Jones.

. Did you know that Mr. Worth would be representing

you at that hearing?

A. Yes, I did.

Q. So, you expected to see him there?

A. Yes, I did.

Q. And, was he in fact there at the hearing?

A. Yes, he was.

Q. I'd like to show you a copy of a transcript, dated Octo-

ber 6th, 1982 (handing).

This is a preliminary hearing in front of Magistrate James E.

Stahl, S-T-A-H-L, in Allentown, Pennsylvania.

Can you identity that transcript?

tbh doaliogs

Yes.

. First of all, have you ever seen it before?

Yes, I have.

. When did you see it?

I seen it today.

Could you speak up, please?

I seen it today.

In my office?

In your office.

And, did you look through this transcript?

Yes, I did.

POPOrPOrPOroOe

A-24

(Q. And, is this an accurate representation of what took

place the preliminary hearing in front of Magistrate Stahl?

A. Yes, it is.

Q. Mr. Krotzer, when is the next time, if at all, that you

saw or talked to Mr. Worth?

A. That was on the 19th of —

THE COURT: 19th of what?

THE WITNESS: 19th of November.

THE COURT: ‘82?

THE WITNESS: ‘82.

Q. And, you haven’s seen or talked to him since your first

hearing; is that correct?

A. That's correct.

Q. What took place on November 19th, 1982?

A. Well, a situation arised where I got another lawyer, be-

cause I felt that he wasn't abie to do a job for me.

(). First of all, where did you see Mr. Worth?

A. At the hearing. Mr. Stahl’s.

Q. You had a second preliminary hearing on one of these

three complaints; is that correct?

A. Yes, I did.

Q. And, when you showed up for the hearing, Mr. Worth

was there?

A. Yes, he was.

Q. And, you had a discussion with Mr. Worth.

A. Yes, I did.

Q. What did you say:

A. I told Mr. Worth © had another lawyer and that I

didn't need him any mc *

Who was this other lawyer?

He’s a public defender — ah —

That's — he was a public —

Yes.

— defender in Allentown?

Yes.

So, Mr. Krotzer, is Mr. Worth still your lawyer today?

No, he isn't.

POPOP OPO

A-25

Q. Why not? What reasons did you give him for discharg-

ing him?

A. Well, I gave him the reasons — I couldn't tell him the

truth and it was really, you know, if you can't tell the truth

to the lawyer, you can't tell the truth to nobody.

(). Were there any particular circumstances that made you

believe you couldn't tell him the truth or that — uhm —

would give you more reason to want to discharge him?

A. Yes, there was. Mr. Jones got a call over in New Jersey

one day and I —

Q. I'm sorry. J didn’t understand that. Could you speak

up?

A. Mr. Jones got a call from New Jersey one day about an

engine that was in the truck and he told the guy on his

phone that he bought it from Henry Krotzer and I felt right

there that Henry is going to get put in the woodpile.

Q. What does that mean?

A. That means, like, he was going to let Henry — you

know, he’s just putting something else on me. Here, a sto-

len motor, I have these charges and he tells the guy in New

Jersey that he bought the engine from Henry Krotzer and

that’s what J need on top of the other charges, is that — a

stolen engine that I sold to him.

Q. Well, are you saying then, that — tell me if I’m correct.

Are you saying that one of the reasons for discharging Mr.

Worth is that — was that you didn't feel you could trust Mr.

Jones?

A. Right, I didn’t — I didn’t know what was going to hap-

pen if they were going to, you know, when it comes to law-

yers — if it comes down to brass taxes, he’s going to defend

Henry Krotzer or Mr. Jones and I wasn’t paying the bill.

Q. So, you weren't sure if you could trust Mr. Jones, ei-

ther?

A. Right.

Q. Have you ever spoken to Government agents — I'm

sorry.

A-26

You weren't sure you could trust Mr. Worth, either?

A. Yes. Yes, that’s right.

(). Have you spoken to Government agents about your in-

volvement in this case, as well as the involvement of

others?

A. Yes, I have.

Q. You've agreed to cooperate with the Government in

this case; have you not?

A. Yes, I have.

Q. Has the Federal Government made any threats or

promises to you—

A. Nothing.

). —in exchange for your cooperation to date?

4. None, whatsoever.

Q. And, do you expect to testify against Jack Jones, if this

case in fact goes to trial?

A. I gave — ah — my lawyer said that’s what I should do

and that’s what I'm going to de

MS. STATION: I have no further questions, your Honor.

THE COURT Cross-examuination?

CROSS EXAMINATION

BY MR. WORTH:

Q. Mr. Krotzer, I believe you said you never saw me in

your life until you were arrested; is that not correct?

A. That's right.

Q. And, sir. the document you had signed in my office had

to do with a civil matter; did it uot, a replevin of a motor

vehicle?

A. I guess — I don't know. I signed a blank.

Q. And, did you get a vehicle back that had been im-

pounded?

A. Yes, I did.

Q. And, that involved, I believe, Lehigh Valley Salvage;

did it not?

A. Yes, it did.

A-27

Q. You were the plaintiff and Lehigh Valley Salvage was

the defendant; is this correct?

A. Correct.

Q. And, they did return the vehicle to you; did they not?

A. Yes, they did.

Q. Now, sir, did you und I at that time have any confiden-

tial discussions concerning any criminal conduct?

A. No. No, we never did.

Q. When were you arrested—

THE COURT: Mr. Worth—

MR. WORTH: Yes, sir?

THE COURT: Won't seek conclusions. We're after facts. I

would prefer that you phrase — rephrase that question.

Q. Did you discuss any crimes in any aspect at all with me

at that time?

A. No, I never met you until the day after I was arrested.

Q. Now, when were you arrested, if you recall, sir?

A. It was on the 28th of September.

Q. And, is it fair to say the first you saw me was when vou

appeared at my office with Mr. Jones?

A. Yes, that’s right.

Q. And, at that time, with the exception of the fact that vou

said you were involved with a Lincoln automobile, did you

discuss any criminal conduct with me?

A. No, I didn't.

Q. Asa matter of fact, I told you I would be willing to rep-

resent you at a preliminary hearing; did I not?

A. Yes, you did.

Q. And, did I tell you that later on you may have to get

other counsel?

A. No, you did not.

Q. I did not?

A. No, you did not.

(). All right. Did I tell you what a preliminary hearing was

about?

A. It was to find out if | was — if it would be going to court

or get it dismissed.

Mr.

A-28

Q. All right. Do remember the term, “prima facie case”?

A. No, I don't.

Q. You don't remember that term?

Did I tell you at the preliminary hearing your guilt or

innocence would not be determined?

A. Yes, that’s what you said.

Q. I told you that, yes.

And, I went to the hearing; did I not?

A. Yes, you did.

Q. And, that was before James Stahl. Did you discuss with

me at the hearing any criminal conduct on your part?

A. No, none whatsoever.

Q. Who paid me to represent you at that time, if you

know?

A. Mr. Jones.

Q. And, sir, I believe you indicated today to this Court that

I represented you until the 19th of November; is that

correct?

A. That's correct.

Q. Was Mr. Jones under arrest at that time when you had

your hearing?

MS. STATON: Excuse me, your Honor, which hearing?

MR. WORTH: The only one I attended.

THE COURT: All right, Would you rephrase the question,

Worth, rather than —

Q. When you had the preliminary hearing, sir—

A. Yes?

Q. — where I cross examined witnesses, was Mr. Jones

under arrest then?

Yes, he was.

Are you sure of that?

I'm not sure.

You're not sure?

But —

Okay. If you're not sure, sir, you just say don't know.

I don't know.

All right. Do you have federal charges against you?

Orororor

A-29

A. Not yet.

Q. Not vet.

Now, are you aware or did you have knowledge of the

fact that I had called your home a number of times in an

effort to prepare your case?

A. Yes, I did.

Q. And, do you know the answers I received when I would

call there?

A. I don't know. I wasn't there.

Q. Did you ever talk to me?

A. No.

Q. You are aware, are you not, that your wife said that you

were on runs in New Jersey?

A. Yes.

Q. She told you that; didn't she? Did she?

A. That you talked — talked to her?

Q. Yes, sir; and in fact, you were home much of the time;

werent you?

A. No, I wasn't. I wasn’t at my house there.

Q. So, then, you never talked to me in regards to prepar-

ing the case; did you, sir?

A. No, I did not.

Q. In the meantime, you were in contact with FBI Agent

David Kolde; were you not?

A. He was talking to me.

Q. Yes. And, Trooper Diskin?

A. Yes.

Q. They had been talking to you; had they not?

A. Yes, they had.

Q. And, did they suggest to you that I should not represent

you, because I represented Mr. Jones?

I come on that decision myself when that —

Do you understand my question?

I understand.

Did they say that to you?

No, they didn't.

They said nothing like that to you?

No, they didn't.

POP Oro

A-30

Q. Sir, you went to the public defender’s office in Lehigh

County; did you not?

A. Yes.

Q. Who was with you?

A. They were with me, because I asked them to be with

me. I wanted to know how to go about it, because I didn't

have no money to get a lawyer.

Q. But, you went to the public defender; that's free, isn't

it?

A. Yes.

Q. Yes, sir.

A. And, they helped me through the paperwork and every-

thing.

Q. Do you remember who did the talking there?

A. I think they both talked.

Q. They both talked. You didn't do the talking; did you,

sir?

A. A little bit.

Q. Did you ever call me and tell me not to appear on the

19th of November, that in fact, you had other counsel.

namely Donald Wieand?

A. No, I didn't.

THE COURT REPORTER: Spell it.

MR. WORTH: I believe that’s W-I-E-A-N-D.

J. And, so, lappeared on the 19th of November; did I not,

at the hearing before James Stahl?

A. Yes, you did.

Q. And, Mr. Wienad was there, also?

A. Yes, he was.

Q. And, was Frederick Charles, attorney, also there, from

the Public Defender’s office?

Yes, he was.

And, we had a discussion, then; did we not —

Yes, we did.

—in Mr. Stahl’s private office?

Right.

And, in that room, were you and I ever alone?

No, we were never alone.

POPOPO>

A-31

Q. Do you recall who was present in that room?

A. It was — ah — it was Mr. Wieand, you, Dianne Dison,

Mr. Charles.

Q. So, at that time, all we discussed was your representa-

tions; did we not?

A. That is right.

Q. Did we discuss any criminal conduct on your part dur-

ing that conference at any time?

A. No, we did not.

Q. With the exception of mentioning that you were in-

volved with a Lincoln automobile, sir, at any time in your

life, have you discussed criminal conduct on your part with

me?

A. No, I didn't.

Q. Did you ever meet alone with me and have any confi-

dential discussions?

A. No, I never did.

MR. WORTH: Thank you. I have no further questions,

your Honor.

THE COURT: Cross-examination —

MS. STATON: If I may —

THE COURT. Or, redirect, I'm sorry.

MS. STATON: If I may have one moment, your Honor?

THE COURT: Yes.

REDIRECT EXAMINATION

By MS. STATON:

Q. Mr. Krotzer, at the first meeting that you had with Mr.

Worth and Miss Dixon and Mr. Jones in Mr. Worth’s office

the day after you were arrested — do you recall that meet-

ing?

A. Yes, I do. Yes, I do,

Q. And, he asked you about — he asked you whether or

not you knew anything about the case and you started to tcll

him about the Lincoln and then, you were interrupted; is

that correct?

A. That's correct.

A-32

Q. Did Mr. Worth ask any other questions to you or to Mr.

Jones in your presence about this particular case while you

were there?

A. Yes, he asked where — where the parts come from —

that were on the International, like the sleeper box and Mr.

Jones said come out of the junkyard, off a junked Kenworth.

Q. So, these were the types of questions that Mr. Jones

was responding to and then you were just agreeing to —

A. Right.

Q. — is that correct?

A. Yes, and he asked about the tractor, if we knew any-

thing about that.

Q. And, these were also the respo ises by Mr. Jones, that

you testified were untruthful at the time —

A. Right.

Q. Is that correct?

A. That's correct.

MS. STATON: I have no further questions, your Honor.

THE COURT: Recross?

MR. WORTH: Pardon me, your Honor.

RECROSS EXAMINATION

BY MR. WORTH:

Q. Then, you didn't tell me anything; did you sir?

A. No, really, I didn't tell you an: thing.

MR. WORTH: Not really, that’s ¢ orrect. Thank you sir.

THE COURT: Are we finished with the witness?

MS. STATON: Yes, sir.

THE COURT: Thank you. You may step down sir.

(Witness leaves stand. )

MS. STATON: Your Honor, the Government offers the

documents that have been identified — ah — the three com-

plaints — the state complaints, in which Krotzer has been

charged and the transcript, if your Honor wants to take a look at

these.

A-33

THE COURT: Have you given them numbers?

MS. STATON: No, sir.

THE COURT: Why don't you — Why don't you label them

for identification purposes. You can — you can call them G-1,

G-2 —

MS. STATON: Fine.

THE COURT: — and G-3.

Do you wish to have them admitted in evidence or merely

have me look at them?

MS. EPPS: Have them admitted.

MS. STATON: I would like to have them admitted.

THE COURT: Any objection to G-1 —

MR. WORTH: No objection, your Honor.

THE COURT: — G-2 and G-3?

MR. WORTH: No objection.

Rather than cluttering the record — if the purpose for ad-

mitting transcripts is for showing that it was at the hearing.

There's no question, | will stipulate to that.

MS. STATON: There's more to that than that, your Honor.

We ask that they be admitted.

THE COURT: All right. Are there three exhibits, is that

correct? What are —

MS. STATON: There are four.

THE COURT: All right, what — what are they?

MS. STATON: This is —

THE COURT: What is G-1?

MS. STATON: G-1 is the complaint issued by the State Po-

lice — the State of Pennsylvania against Henry G. Krotzer,

dated September 23, 1982 and the complaint number is E26172.

MS. EPPS: Excuse me, your Honor.

MS. STATON: G-2 is Complaint E26173, issued on Sep-

tember 23, 1982 against Henry G. Krotzer, by the Common-

wealth of Pennsylvania. G-3 is Complaint No. E26170, issued on

September 23, 1982 against Henry G. Krotzer, by the Common-

wealth of Pennsylvania and G-4 is a two-volume copy of a tran-

script of the preliminary hearing that was held on Wednesday,

October 6, 1982 in front of Magistrate James E. Stahl in Allen-

town, Pennsylvania.

A-34

THE COURT; All right, all of those exhibits, G-1, G-2, G-3

and G-4 are all admitted in evidence.

(Whereupon, the above-referred to exhibits were admitted

in evidence. )

THE COURT: What else?

MS. STATON: Nothing further, your Honor.

THE COURT: All right, Mr. Worth?

MR. WORTH: Mr. Jones, would you take the stand?

THE COURT REPORTER: Would you state your full

name, please?

THE WITNESS: John D. Jones.

(Witness sworn.)

DIRECT EXAMINATION

BY MR. WORTH:

Q. Mr. Jones, state your name and address for the record,

please?

A. John D. Jones, RD 3, Slattington, Pennsylvania.

Q. Sir, you're the defendant in certain federal charges; are

you not?

A. Yes, sir.

Q. Had a search warrant ever been served upon you by the

federal authorities concerning this — these charges?

A. I don't follow that.

Q. Was a search warrant ever served upon you and your

premises searched by the federal agents?

A. Yes, sir.

Q. And, do you recall when that was, sir?

A. (No response. )

Q. Approximately.

A. Two years ago.

Q. Could it have been around May of ‘81?

A. Ah — yes. Yes, the date — yes, it would be the 18th or

19th.

Q. All right, sir, Did you contact me concerning this?

A. Yes.

A-35

Q. Has any other lawyer participated in the matters arising

out of that search warrant since that date, any other lawyer

but myself on your behalf?

A. No. Dianne Dixon, you know, the — Wallace Worth.

Q. Now, sir — ah —

THE COURT: What was the answer? Would the — ah —

MR. WORTH: I believe he said only Wallace Worth, your

Honor.

THE COURT: All right.

Q. Sir, when Mr. Krotzer was arrested, were you under ar-

rest?

A. No.

Q. Where you under arrest in October of 1982?

A. I'm not much good in — I — I'm under arrest now. I

don't know what the date is.

Q. Now you are?

A. Yes.

Q. When we attended the hearing — you were present at

the hearing of Mr. Krotzer; were you not?

A. Yes, sir.

Q. Were vou under arrest then?

A. No.

Q. Had you brought Mr. Krotzer to my office?

A. Yes.

Q. You were indicted by a federal grand jury on November

9, 1982; were vou not?

A. Yes, sir.

Q. Now, sir, when you were present with Mr. Krotzer in

my office, did Mr. Krotzer discuss any criminal conduct on

his part with me?

A. No.

Q. The hearing that was attended before District Justice

Stahl, was that a public hearing?

A. I—

Q. Do you understand my question?

A. No.

A-36

Were there other — were there people there —

Yes.

— people free to come and go?

Yes.

. Did Mr. Krotzer testify at that hearing?

No.

. Who had paid me to be there on behalf of Mr. Krotzer?

I did.

. Why did you do that, sir?

The two trucks that were impounded — I had — I had

interest in those trucks.

Q. Had these been titled in Mr. Krotzer’s name? Whose

name were they in?

A. At the time, they were in his.

Q. And, you say you had an interest in those vehicles?

A. Yes.

MR. WORTH: I have no further questions, your Honor.

THE COURT: Cross-examination?

MS. STATON: No questions.

THE COURT: Thank you, sir. You may step down.

MR. WORTH: Oh, if I may, there is one point. I — I

POP DPOF OPO

apologize to the Court.

THE COURT: All right, go ahead.

CONTINUED DIRECT EXAMINATION

BY MR. WORTH:

Q. Sir, do you know of any conflict of interest that would

exist to your detriment if the Court were to see fit to not

disqualify me as your defense counsel?

MS. STATON: Objection.

THE COURT: Sustained. You're seeking a conclusion

from this witness. We're seeking facts, not conclusions.

If you want to reach that point, you'll have to lay a founda-

tion. I don't know what education this witness has. I don't know

if he is able to answer this question.

I have sustained the objection. Would you proceed, sir?

A-37

MR. WORTH: May it please the Court, what I was going

to ask, and I might state to the Court, that the American Bar

Association just came down with a whole treatise on the subject

THE COURT: Werre trying to make a factual record here.

MR. WORTH: Yes, sir. And, what I'm —

THE COURT: My ruling is based upon that.

MR. WORTH: What I'm concerned about, your Honor, is

whether or not, if there were any possible conflict, that this man

could knowingly waive it, that situation.

THE COURT: I've ruled.

MR. WORTH: No further questions.

THE COURT: I take it there’s no cross-examination?

MS. STATON: No, sir. ©

THE COURT: All right. Thank you.

(Witness leaves the stand.)

THE COURT: Other testimony, Mr. Worth?

MR. WORTH: May L ask your indulgence, your Honor, tor

a moment?

THE COURT: Yes, of course.

(Whereupon, Ms. Dixon and Mr. Worth conferred, after

which the following transpired:)

MR. WORTH: Your Honor, I'd like to call Agent Kolde to

the stand. David Kolde.

THE COURT: Very well.

THE COURT REPORTER: Would you siate your fu!l

name, please?

THE WITNESS. David Kolde. K-O-L-D-E.

(Witness sworn. )

DIRECT EXAMINATION

BY MR. WORTH:

Q. Sir, would you state your name and address for the

record, please?

A. David Lee Kolde, assigned to the Allentown office of

the FBI.

A-38

Q. Sir, you're familiar with Henry Krotzer; are you not?

A. Yes, I am.

Q. I believe you attended a preliminary hearing before

District Magistrate James Stahl in Allentown, Pennsylva-

nia; didn’t you?

. I was there. yes.

Q. Yes, sir. You observed?

A. Sure did.

Q

A

. You were there physicially.

>

At that time, was Jack Jones under arrest?

No, he was not.

Q. Did you, sir, or any other law enforcement officer in

your presence ever suggest to Henry Krotzer that there was

a conflict of interest in my representing him?

A. No, I did not.

Q. Did you appear at the office of the Public Defender on

behalf of Mr. Krotzer?

A. I appeared with Mr. Krotzer. Yes.

Q. Yes, sir. And, you spoke there on his behalf; did you

not?

A. Yes, I did.

Q. And, did you not tell that office that there was a conflict

of interest and he needed another lawyer?

A. No, I did not. My only purpose for attending with Mr.

Krotzer was at his request and the only thing we did that

day was obtain the necessary forms, so that Mr. Krotzer

could fill them out to obtain the services of a Public De-

fender.

Q. And, you did not discuss the conflict with him, nor did

Trooper Diskin in your presence?

A. Not in my presence and I did not.

Q. Not in your presence. Thank you, sir.

MR. WOR -H: I have no further questions.

THE COURT: Cross-examination.

MS. STATON: No questions.

THE COURT: Thank you, sir. You may step down.

(Witness leaves the stand. )

MR. WORTH: Nothing further, your Honor.

A-39

THE COURT: All right, is there — is there any further

evidence or testimony by the Government or defendant?

MS. STATON: Not from the Government, sir.

THE COURT: All right, are we — are counsel ready for

argument? Shall we have argument?

* * * * *

(Whereupon, a recess was taken, after which the following

transpired in open court with all counsel and the defendant be-

ing present;)

THE COURT: I have considered the motion of the Gov-

ernment to disqualify counsel, the response filed by defendant,

the record produced today, memoranda filed, arguments of

counsel and I will grant the Government's motion.

I will shortly file a statement of reasons in support of the

action I take today. Thank you.

(Court was adjourned at 12:45 p.m.)