Appeal from the United States District Court for the Northern District of Indiana, Lafayette Division - No. H CR 74 56 ALLEN SHARP, Judge.
Leonard P. Moore,*fn* Senior Circuit Judge, Stevens and Sprecher, Circuit Judges.
The principal question presented by this appeal is whether the failure of defense counsel to conduct a thorough cross-examination of a former client who testified as a prosecution witness requires reversal of a conviction for a conspiracy to distribute heroin and cocaine.*fn1 Additionally, defendants contend that the court erred by failing to suppress certain physical evidence and statements, and defendant Warner S. Smith argues that the evidence of his participation in the conspiracy was insufficient to support his guilty verdict.
The government proved that defendants were members of a highly-structured and on-going narcotics distribution network in the Gary, Indiana, area known as "the Family." During the morning of the sixth day of trial, the government called as a witness James Berry, a former member of the Family. As Berry took the stand, counsel for defendants, Max Cohen,*fn2 approached the bench and informed the court and the government that Berry had been represented by a partner of his in a prior state court homicide case. Cohen explained that he had had no knowledge that Berry would be called as a witness. He continued:
This places us in an irreconcilable conflict where a witness for the Government is a former client of our firm, and if - we would, if the Government proposes to insist upon calling him, it is ethically incumbent upon us to request the Court for leave to withdraw as counsel for these defendants.
Prosecutor Van Bokkelen admitted that the government had thought about the possible conflict, but that he did not consider that any conflict of interest resulted from the fact that a partner of Cohen's had obtained an acquittal for Berry in late 1972. Tr. 996-997. On the basis of this information, the court ruled:
I find nothing in the record right here that indicates any conflict of interest right at this time other than the - the only fact I find that is possible to establish any conflict of interest is the fact that this was a former client that the defense law firm represented successfully and got acquitted, and I don't think that establishes it, gentlemen.
I appreciate your bringing it to my attention and I hope I am as sensitive about this as anyone. I know you gentlemen all are.
The government then suggested that if, during cross-examination, defense counsel found themselves in a quandary over the use of information possibly received in confidence from Berry, they could approach the bench for a ruling on its use. Tr. 1001. See also Tr. 1003.
Cohen repeated that he had never seen Berry before,*fn4 and that he personally possessed no confidential information. Tr. 1001-1002. He agreed with the court that, therefore, he could not breach the attorney-client privilege. Tr. 1002. But he repeated his motion
for leave to withdraw as counsel and permit these people to obtain other counsel. I have to make that motion. I am ethically obliged to make that motion.
Id. The judge once again stated that he found no conflict and denied the motions, and the direct examination of Berry was conducted. Tr. 1004. During his 55-page testimony, Berry effectively implicated all of the defendants, with the exception of Warner Smith, in the conspiracy.
The direct examination of Berry also brought out certain facts bearing on his credibility. He acknowledged personal participation in extensive criminal activities; he testified that in February, 1974, he had been disciplined by the Family, more particularly, that he had been shot by several parties, including the defendant Garland Jeffers. Tr. 1059-1060. His status as an informer was, of course, apparent and his demeanor when testifying against former business associates was subject to observation by the jury.
At the close of direct examination a short recess was held. When the jury returned, Cohen questioned Berry about his prior representation by the firm of Cohen & Thiros. In addition to the homicide acquittal in late 1972 or early 1973, it was learned that the firm had represented him after his arrest on a later charge of visiting a common nuisance. Cross-examination further developed the fact that Berry had agreed to become a witness for the government after he "found out that the Family was looking for me to do something to me because I left." Tr. 1064. When Cohen suggested that that would have been about June 3, 1974, Berry disclaimed knowledge of the exact date. Cohen further brought out the fact that Berry had not informed any member of Cohen's law firm that he was going to testify as a witness for the government. At this point, Cohen once again requested leave to withdraw on the conflict of interests ground and sought leave to make the motion before the jury "so that the jury will know why I cannot cross examine this witness." Tr. 1065.*fn5 The court repeated that it did not find any conflict "of any kind," and denied both motions. Tr. 1067-1068.
At this point Cohen disclosed that, during the recess, his associate had contacted the partner who had represented Berry in the past.
We have become privy to information, to matters and specifics, concerning this witness which we could only have obtained as a result of Mr. Thiros' representation; that, perhaps, another lawyer might have obtained the same information, but we obtained our information only as a result of our representation.
Now I feel that on this state of the record, it is incumbent upon this firm to withdraw . . . .
Tr. 1069. The government responded by repeating its suggestion that, if any problems regarding confidential communications came up, Cohen could approach the bench and seek a ruling on their use. Tr. 1070. At this point the court recessed for lunch.
Upon resuming, the district court reported on its research and deliberations.
I see nothing in the record at this time that even remotely points in any direction that the defense counsel cannot properly and completely cross examine this witness.
Tr. 1077-1078.*fn6 Cohen then informed the court that during the noon recess he had informed his ...