UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
July 30, 1975
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
FRED MANDELL, ENID MANDELL AND ERNEST FAIRCHILD, DEFENDANTS-APPELLANTS
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division; No. 74 CR 394; PRENTICE H. MARSHALL, Judge.
Clark, Associate Judge,*fn* Stevens, Circuit Judge, and Grant, Senior District Judge.*fn**
Author: Per Curiam
Defendants Fred and Enid Mandell and Ernest Fairchild appeal from their convictions on a three-count indictment charging them with wire and mail fraud and transportation of property obtained by fraud in interstate commerce.*fn1 All three of the defendants allege that they were denied effective assistance of counsel because they were represented by the same attorney at trial. They also complain of the limitations placed on their cross-examination of the chief government witnesses, Harold Kriv and Ira Leon, and of the fact that the prosecutor was permitted to confer with Kriv continually during his testimony. Finally, Fred Mandell asserts as reversible error the fact that the government elicited testimony concerning Mandell's assertion of his right to remain silent upon his arrest.
As we find that none of these alleged errors requires reversal, we affirm the convictions entered below.
In ruling on the defendants' motions for judgments of acquittal or, in the alternative, a new trial, the district court reviewed and summarized the evidence presented to the jury. We adopt his summary as our statement of facts:
There was overwhelming credible testimony which showed that Fred Mandell, an attorney, importuned first his office associate, Harold Kriv, and then a gambling acquaintance, Ira Leon, to invest in personal injury judgments which Mandell represented he had obtained against the City of Chicago in behalf of certain of his clients. Evidently Mandell had actually obtained two nominal judgments of $1,000 against the City. He took certified copies of those judgments, altered them by dismantling the certification and substituting spurious pages showing that each judgment was in the amount of $120,000. These he flashed to Kriv, a distressingly eager victim, and regrettably, also a member of the bar, telling Kriv that he could enjoy half of the judgments for an investment of $75,000 in cash. Kriv's $75,000 was to have added to it $15,000 from Mandell, which was to be distributed $40,000 each to the two clients who had been persuaded by Mandell to sell their "judgments" for $40,000, and $10,000 to a state court judge who was to preside over the bilking of Mandell's clients.
According to Mandell, the $240,000 in judgments would be "discounted" with a judgment broker in Waukegan, Illinois who would pay within a matter of days $211,000. This would be divided between Mandell and Kriv 50-50 after the repayment to Kriv of his $75,000 investment and another $12,500 which he had invested with Mandell in regard to certain personal injury cases in which Mandell had contingent fee contracts.
Kriv came up with his $75,000 with amazing alacrity. One of the ingredients of the scheme was the need for speed, cash and no writing. Kriv went from bank to bank cleaning out his accounts and one belonging to his wife and gave Mandell the $75,000 in $100 bills and that was the last he ever saw of it.
The scheme was hopeless. There were no judgments that could be turned into $211,000 and Mandell needed some explanation for the whereabouts of Kriv's money when Mandell couldn't produce. Either fortuitously or as a part of the scheme, an explanation presented itself when Kriv was shot in his office of a Saturday afternoon by a black man who came to the office posing as a prospective client. Kriv was hospitalized and underwent major surgery. His wife was then involved by Mandell, Mandell's wife, Enid, and Ernest Fairchild who told Mrs. Kriv that her husband had been shot by irate blacks whom he had been cheating; that a black gang was out to get Kriv, Mrs. Kriv, their children, the Mandells and their children unless the $75,000 could be used to pay them off. She gave her consent ignorant of the transaction in which her husband had engaged with Mandell. Thereafter Kriv and his wife were pressured into contributing yet another $58,000 to the non-existent black gang, a portion of which was raised by a telephone call to Kriv's father in Iowa, and his mailing of a $15,000 check to Kriv in Chicago, hence the wire and mail involvements in the scheme, and that money was never seen again, after it was delivered to the two Mandells and Fairchild for payment to the black gang.
The Mandells represented to the Krivs that Enid had contributed $23,000 to the final payoff. This was another fiction. Following a disagreement some months later, Enid demanded repayment of her money threatening Kriv to send the same "guy" to do it again, only this time "he'll complete the job."
Leon was the second victim. The scheme was the same although some of the techniques were a bit different. He was importuned to invest $65,000 in a similar quick discount of judgments against the City. Mandell used the same names of clients, same judgment amounts, only this time he involved an unknown person who played the role of a lawyer for the City who flashed at Leon phony checks in large amounts which were to be Leon's and Mandell's for ready cashing in a few days. So generous was the man from the City that he offered a second check with a face value of $300,000 to Mandell and Leon if they could come up with an additional $75,000. Mandell "contributed" $17,000 and Leon parted with another $58,000. Leon has yet to see any of the total $123,000 he invested.
When Leon became insistent, he was told by Mandell that Mandell had become involved in an argument with the City lawyer, had killed him, that the lawyer's body was in the trunk of a car driven by Fairchild, that Fairchild wanted $50,000 to dispose of the body in Colorado, and Mandell needed $50,000 to escape the country. At that point Leon suspected something was amiss. But he went through the motions of raising the money, timing it in such a way that the checks he obtained could not be converted to cash until the next business day (which was a Monday) and over the intervening weekend he contacted his lawyers who in turn contacted the Government who in turn arranged for the apprehension of Mandell, in whose possession was found the spurious checks and other incriminating documents.
Enid Mandell's role in the Leon fleecing was that of a courier and passer of messages between Leon and her husband. Fairchild participated directly in the portion of the scheme that involved a dead body in Fairchild's trunk, etc.
Clearly, as the indictment alleged, Mandell devised a scheme to defraud Leon and Kriv and Enid Mandell and Ernest Fairchild embraced it and aided and abetted in its perpetration. The scheme was successful. The mails and interstate wire were used and some of the proceeds were transported in interstate commerce, all as alleged in the indictment.
All three defendants contend that they were prejudiced by their joint representation by a single retained trial counsel, Julius Sherwin.*fn2 As we have recently noted, the Sixth Amendment guarantee of Assistance of Counsel,*fn3 requires representation by counsel whose loyalties lie exclusively with his client. United States v. Jeffers, 520 F.2d 1256 (7th Cir., 1975).
The potential conflict of interests that exists when multiple criminal defendants are represented by the same counsel has long been recognized by the courts. In Glasser v. United States, 315 U.S. 60, 70, 86 L. Ed. 680, 62 S. Ct. 457, where, over his objection, a defendant was represented by the counsel of his co-defendant, the Supreme Court explained:
[We are] clear that the "assistance of counsel" guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired.
The danger of a conflict is so severe in such a situation that the American Bar Association has recommended that such dual representation be undertaken only in the extraordinary case:
The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.
A.B.A. Standards: The Defense Function § 3.5(b)(1971).*fn4
Defendants urge us, in view of these considerations, to follow the lead of the District of Columbia Circuit, which has placed the burden on the trial judge to determine at the outset of the criminal trial where multiple-defendant representation exists whether defendants are aware of the dangers present and whether they knowingly and intelligently waived single representation. See Lollar v. United States, 126 U.S. App. D.C. 200, 376 F.2d 243, 245-246 (D.C. Cir. 1967); Campbell v. United States, 122 U.S. App. D.C. 143, 352 F.2d 359, 360-361 (D.C. Cir. 1965).*fn5 As the court explained in Campbell:
An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. Considerations of efficient judicial administration as well as important rights of defendants are served when the trial judge makes the affirmative determination that co-defendants have intelligently chosen to be represented by the same attorney and that their decision was not governed by poverty and lack of information on the availability of assigned counsel.
352 F.2d at 360. In the D.C. Circuit, where the record does not affirmatively indicate that the defendants were so warned and that they waived any possible conflict, the burden shifts to the government to demonstrate beyond a reasonable doubt that a prejudicial conflict of interests did not exist. *fn6
Both the Third and the First Circuits have also indicated the desirability of the trial judge affirmatively inquiring of multiple defendants represented by a single defense counsel to determine whether they are cognizant of the risks of conflict of interests and whether, in the light of those risks, they still wish to maintain their common representation. See United States ex rel. Hart v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1973); United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972).*fn7
Other circuits have not adopted such a requirement, however: see United States v. Boudreaux, 502 F.2d 557, 558 (5th Cir. 1974);*fn8 United States v. Christopher, 488 F.2d 849, 851 (9th Cir. 1973); United States v. Paz-Sierra, 367 F.2d 930, 932-933 (2d Cir. 1966), cert. denied, 386 U.S. 935, 17 L. Ed. 2d 807, 87 S. Ct. 962 ; cf. Fryar v. United States, 404 F.2d 1071, 1073 (10th Cir. 1968), cert. denied, 395 U.S. 964, 89 S. Ct. 2109, 23 L. Ed. 2d 751. They would not require the trial judge to act affirmatively to ascertain whether a conflict existed unless, in the words of Boudreaux, there was "objection, claim [or] notice to the court of any alleged conflict between the interests of the defendants." 502 F.2d at 558. The harshest criticism of any rule involving the trial judge in such an inquiry has come from the Second Circuit. In Paz-Sierra, 367 F.2d at 932-933, Judge Moore explained:
The ramifications of the situation in which the court in advance of trial arrogates to itself the function of determining whether the "co-defendants have intelligently chosen to be represented by the same attorney" are so great as to cause this Court to doubt the wisdom of adopting the proposition that an affirmative determination be made by the trial court that the defendant has "intelligently chosen to be represented by the same attorney." No facts have thus far been presented that the Bar of this country is so unmindful of the canons of ethics and its obligation to avoid positions of conflict as to call for a pre-trial cross-examination of defendants and their counsel on the theory, or even presumptuous presumption, that counsel will not be faithful to the best interests of their clients and when aware of any conflict of interest between clients jointly represented whether before or during trial will not disclose it to the court and seek appropriate relief. Furthermore, should it appear that a defendant was in fact prejudiced by the sharing of counsel, he would be even more prejudiced in raising this point on appeal by the trial court's a priori finding that there was no prejudice likely to occur in proceeding with shared counsel. An appellate court could almost take judicial notice of the fact that in a joint representation situation, if one defendant were convicted and the other acquitted, appellate counsel would argue prejudice as to the convicted defendant. Hindsight being what it is, a wiser approach might well be to leave to the members of the Bar the avoidance of cases of apparent prejudice by their refusal to represent clients with conflicting interests.
We agree with Judge Moore that the primary responsibility for the ascertainment and avoidance of conflict situations must lie with the members of the bar.*fn9 This is especially true in the common representation situation, for all courts have recognized that common representation, without a showing of conflicting interests, is not in itself a violation of the Sixth Amendment, and that there may be excellent reasons for preferring the use of a single attorney in a particular case. We think the Sixth Amendment rights of defendants are adequately safeguarded by imposing the duty of informing defendants of the potential dangers of multiple-client representation initially on the attorneys, as officers of the court, and by admonishing the trial judges to be watchful for indicia of conflict during the trial. Thus, we do not feel the D.C. Circuit's affirmative inquiry requirement is mandated by the Sixth Amendment, Glasser, or any other Supreme Court pronouncement. And, at this time, we join the Third Circuit in declining to adopt such a rule based on our inherent supervisory authority.*fn10
Having concluded that the district court did not err in failing to determine that the defendants were aware of the risks in having Sherwin represent all of them, we believe that it is incumbent upon the defendants to demonstrate, with a reasonable degree of specificity, that a conflict of interests actually existed at trial.*fn11
Defendants Enid Mandell and Ernest Fairchild contend that a conflict existed because of the differing degrees of culpability that existed among the defendants and because Sherwin spent most of his time and efforts in an attempt to defend Fred Mandell. They make no allegations that there was any inconsistency in the defenses the three defendants did or could have put forth. Instead, they merely assert that they were forgotten by Sherwin in his attempt to acquit Fred Mandell.
The record does not support these contentions. Both Enid Mandell and Fairchild testified on their own behalf, were vigorously examined by Sherwin, and denied all of the allegations contained in the indictment. In his closing argument, Sherwin spent considerable time reviewing and highlighting their testimony.
Moreover, defense strategy in this case was a common one that applied consistently to all three defendants - that there was no scheme to defraud, that Harold Kriv fabricated his story after reading about the arrest of Fred Mandell in the newspapers, and that Ira Leon was covering up his embezzlement of company funds. Any added emphasis that Sherwin gave to Fred Mandell's participation in the scheme of necessity redounded to the benefit of the other defendants as well.
Thus, the record in this case does not disclose the complete ignoring of a less culpable defendant, in favor of his more deeply inculpated codefendant, by common counsel that existed in the cases of United States v. Marshall, 488 F.2d 1169, 1190-94 (9th Cir. 1973), and Campbell v. United States, 122 U.S. App. D.C. 143, 352 F.2d 359, 361 (1965), where convictions were reversed on Sixth Amendment grounds. If we were to find a Sixth Amendment violation on the basis of these defendants' argument, we would, in effect, have to find such a violation in any case where two defendants of unequal culpability are represented by the same counsel. The Sixth Amendment guarantee of Assistance of Counsel commands no such rule.*fn12
Fred Mandell also complains of the conflict of interests, based on a statement made by Sherwin during closing argument.*fn13 We have read the statement in the context of Sherwin's argument and do not find it to constitute an admission against Fred Mandell. All that counsel was doing at that point was summarizing the allegations of the indictment. His reference to the fact that the rest of the indictment referred only to Fred Mandell was merely a continued summary and in no way prejudiced his client.*fn14
Consequently, we reject defendants' conflict of interests arguments.
Defendants next complain of rulings of the trial judge which, they claim, limited their ability adequately to cross-examine government witnesses, Kriv, Leon, and Kruse to expose their possible interests, bias, and motives in testifying against the defendants.
With respect to Kriv, they contend that they were not permitted to develop fully the facts surrounding his participation in a conspiracy to bribe a state court judge, the reasons behind his dismissal of a civil suit against defendants Fred and Enid Mandell, and his violations of professional ethics. We have read the record references cited to us by defendants and are not persuaded that they in fact were not given an ample opportunity to explore each of these three areas. To the extent that the trial judge did place limits on the inquiry, we find that he acted well within his discretion to limit the scope and extent of cross-examination. See United States v. Isaacs, 493 F.2d 1124, 1162 (7th Cir. 1974), cert. denied, 417 U.S. 976, 41 L. Ed. 2d 1146, 94 S. Ct. 3183 .
Similarly, we find no improper limitation on the scope of defendants' cross-examination of Leon with respect to a possible embezzlement of funds from his corporation. The only sustained government objection that was cited by defendants was to the improper defense question, "That was an illegal transaction, wasn't it?"
And we agree with the ruling of the trial judge that the amount of money Kriv paid Attorney Kruse in connection with a contemplated action against the Mandells for fraud was simply irrelevant. Clearly, however, even if error, the ruling was harmless.
During his direct examination of the government's first witness, Kriv, the prosecutor privately spoke to the witness while he was on the witness stand. He explained that such conversations were necessary because "Mr. Sherwin has raised some points in his opening that came as a complete surprise to me." Tr. 79. The trial judge held that such discussions were permissible but admonished the prosecutor, "I don't think that he [Kriv] should discuss the testimony that he has already given." Tr. 78-79. Under the circumstances, we think it was within the discretion of the trial judge to permit such conference to take place, subject to the admonition, and we find no error, especially since the defendants did not object to such discussions at trial.
Finally, defendant Fred Mandell argues that his right to a fair trial was severely prejudiced when the government presented evidence that he, when arrested, invoked his constitutional privilege to remain silent.
This court has consistently criticized prosecutorial conduct designed to elicit the fact that a defendant has so relied on his Fifth Amendment rights. See United States v. Bridges, 499 F.2d 179, 182-183 (7th Cir. 1974), cert. denied, 419 U.S. 1010, 95 S. Ct. 330, 42 L. Ed. 2d 284; United States v. Matos, 444 F.2d 1071, 1072-1073 (7th Cir. 1971); United States v. Kroslack, 426 F.2d 1129, 1130-1131 (7th Cir. 1970); see also Baker v. United States, 357 F.2d 11 (5th Cir. 1966).
Agent Kogut, who arrested the defendant, testified as to the circumstances surrounding the arrest. He stated that the Miranda warnings were given to Mandell; then the agent was asked:
Q. And what, if anything, did he say?
A. Well, at this point Mr. Mandell told me that he was a practicing attorney, and he was very much aware of his rights; that he understood everything I was speaking to him about when it came to the rights that I explained.
Tr. 866.*fn15 No objection was made to this question; no motion to strike was made with respect to the answer; no request for a mistrial was tendered by defendant. At the conclusion of the witness' testimony and outside the presence of the jury, the trial judge brought the matter of the aforementioned response to the attention of counsel sua sponte, and suggested that an instruction should be given the jury to disregard the answer. The prosecutor stated that the reply had come as a surprise to him. When the jury returned, the court stated:
The Court: Ladies and gentlemen, we are going to perform a little legal surgery, and I want you to pay close attention to what I am about to say to you.
During the course of Agent Kogut's testimony, when he was testifying with respect to the arrest, he stated that Mr. Mandell said to him that he did not want to discuss the matter.
If an objection had been made at that time, I would have sustained it, and I would have ordered that answer stricken. And I am now ordering it stricken, and I am instructing you to disregard it.
Every person, when arrested, has the right to decline to discuss the charge that has been made against him. That is a right that all of us enjoy, you and me and everyone else, and you should disregard to the greatest extent that you are humanly capable any reference to the fact that at the time of his arrest, Mr. Mandell elected not to discuss the matter with the agent.
Tr. 905. The answer was not discussed by the government during its closing argument. Defendants' post-trial motion failed to list this question and answer as error.
Under the circumstances of this case, although we do not condone the lack of foresight shown by the prosecutor in asking the question, we do not think Mandell's right to a fair trial was prejudiced by the agent's answer. This is a far less egregious case than Bridges, where questions eliciting the impermissible response were asked on three separate occasions; Matos, where the improper question was asked after the prosecutor was informed during a voir dire that he was entering "troubled waters" and where the trial judge refused to give a cautionary instruction; or Kroslack, where the desire of the defendant to remain silent was elicited on two occasions, once after the prosecutor was specifically informed by defense counsel that he was "sailing into troubled waters again," and no cautionary instruction was given the jury. This is not a case involving deliberate prosecutorial misconduct. As the trial judge stated, "[My] recollection is it was a perfectly innocuous question on its face." Tr. 902. We agree. At most the question and its response were harmless error.
Accordingly, the judgments entered by the district court, in all particulars, are