Hastings, Chief Judge, Duffy, Senior Circuit Judge, and Kiley, Circuit Judge.
Following a jury trial, defendant Lon Austin Florence was convicted on both counts of a two-count indictment charging him with violations of § 472, 18 U.S.C.A. (possession of counterfeit obligations) and § 473, 18 U.S.C.A. (dealing in counterfeit obligations) on the evening of September 7, 1965.
Defendant was sentenced to imprisonment for a term of seven years on each count, the sentences to run concurrently. He now appeals.
The only question raised on this appeal is whether a conflict of interest on the part of one of defendant's trial counsel existed at the trial and, if so, whether such conflict deprived defendant of his constitutional right to effective assistance of counsel under the Sixth Amendment to the Federal Constitution.
The facts surrounding this controversy are simple and undisputed. The following narrative should adequately frame the issue.
The grand jury indictment against defendant was returned November 24, 1965. After arrest and before arraignment, defendant privately employed counsel of his own choice, John W. Curren. The professional competence of Mr. Curren is not challenged. On December 6, 1965, defendant was arraigned and entered a plea of not guilty.
On January 25, 1966, defendant appeared for trial with his counsel, Curren. At the same time attorney Thomas F. Londrigan, a former Assistant United States Attorney in that judicial district (Southern District of Illinois), entered his appearance as co-counsel for defendant. It appears that defendant had employed Londrigan the previous day.
Londrigan moved for a continuance for the reason that since he had formerly served as an Assistant United States Attorney, he might have had a previous official connection with certain evidence, obtained as a result of a raid on defendant, which might be introduced at trial. Government counsel then assured the court and defendant that the government's intended proof would not contain matters which were the official concern of Londrigan while he was in office, and that if such matters were brought out it would be by the defense. The trial court denied the motion for continuance.
Curren and Londrigan both participated in the ensuing trial of the defendant. The government's case in chief was concluded without reference to any matters which concerned Londrigan's former association with the office of the United States Attorney.
Defendant voluntarily took the witness stand and testified in his own defense. He was questioned on direct examination by Londrigan. We have carefully examined the transcript and it reveals that the issue of criminal intent and knowledge, upon which evidence obtained in the raid previously mentioned may have had a bearing, was raised by defendant's testimony.
On direct examination, defendant testified concerning his prior criminal record and his imprisonment for a total of forty years on Dyer Act and robbery convictions. Defendant then testified concerning his business dealings with a government witness, Andrews, and his sale of a suit, an overcoat, watch and some tires to Andrews.
In answer to Londrigan's question on direct examination, "Do you have any bills or receipts or bills of sale or anything for this?", defendant answered, "Well, I tell you, the last month -- not the last, the raid before that, they took all, every piece of paper I had in that house and they haven't returned it." He continued on direct examination to relate other dealings with Andrews concerning the purchase of an automobile; Andrews' introduction to him of a man named Motto; talk about the sale of jewelry, including two rings; questions by Motto about counterfeit money; and the final sale by defendant of the two rings for $500.
On cross-examination, government counsel questioned defendant about these occurrences. It was established that the prior raid alluded to by defendant on direct examination occurred nine or ten months before the offense for which defendant was being tried and that ...