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**
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 ...