Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 277 -- Stanley J. Roszkowski, Judge.
Eschbach and Coffey, Circuit Judges, and Campbell, Senior District Judge.*fn*
The defendant-appellant, William Bradshaw, was convicted of conspiring to steal goods moving in interstate commerce and the underlying substantive offense of stealing goods moving in interstate commerce in violation of 18 U.S.C. §§ 371 and 659. From those convictions Bradshaw raises the following issues on appeal: (1) whether the district court failed to adequately inform Bradshaw of the dangers of multiple representation as required under Fed. R. Crim. P. 44(c); (2) whether Bradshaw's attorney operated under an actual conflict of interest that affected his representation of Bradshaw thereby violating Bradshaw's Sixth Amendment right to conflict-free counsel; (3) whether an incomplete answer of a government witness, successfully objected to on hearsay grounds, improperly implied that other people had linked Bradshaw to the theft; and (4) whether there was sufficient evidence to convict. Because we do not find the defendant's arguments meritorious, we affirm the convictions.
This case involved the theft of the contents of a Blue Arrow trailer traveling in interstate commerce from Flint, Michigan via Chicago to Sioux Falls, South Dakota. The contents of that trailer amounted to approximately $43,000 worth of A/C Auto Parts, which were stolen while the trailer was in Chicago. The sole issue to be determined at trial was whether the defendants, William Bradshaw and James Urbanski were responsible for the theft. Only the defendant Bradshaw appeals his convictions.
On the date of the theft, July 4, 1980, the Blue Arrow trailer was parked at Barber Transportation Company located in Chicago, Illinois. The circumstances surrounding the theft indicated that the party or parties who participated in the theft of the trailer not only had knowledge concerning the operation of tractors and semi-trailers, but also knew the particular practices and procedures of Barber Transportation Company since the thieves were able to obtain the vehicles' keys and easily avoid Barber's security measures. The testimony showed that the defendant Urbanski worked as a terminal manager at Lincoln Transfer Company, located immediately adjacent to Barber Transport. The evidence also demonstrated that Urbanski was familiar with Barber Transport's dispatch area where keys and trailer documentation materials were kept. In addition, it was shown that Bradshaw was an experienced truck driver who at the time of the theft was laid off from his regular job, but was occasionally employed as a truck mechanic for B & B Trucking (hereinafter "B & B").
One of the witnesses to the theft testified that at 8:30 a.m. on July 4, 1980, he observed William Bradshaw's car leaving the Barber Transport terminal followed by a Barber tractor hooked to a Blue Arrow trailer. Another witness testified that at 10:30 a.m. on the same day he observed a Blue Arrow trailer parked in the vicinity of B & B Trucking (Bradshaw's place of employment at the time). That witness also stated that he had seen the defendant Bradshaw backing a Ranger Cartage truck up to the rear end of a Blue Arrow trailer. The evidence indicated that Bradshaw had access to the keys of Ranger Cartage trucks as a result of his employment at B & B. Twenty-eight pallets traced to the A/C shipment were found stacked immediately adjacent to the B & B premises. Sometime later in the morning of July 4, 1980, two of Urbanski's neighbors noticed a truck pull into his driveway. These witnesses testified that the truck was accompanied by two cars, one of which belonged to Bradshaw.
Ed Bradshaw, William Bradshaw's first cousin, who was also implicated in the theft, testified on behalf of the government. He stated that he had gone out drinking with the defendants William Bradshaw and Urbanski the night before the theft, had become very drunk and had fallen asleep in his cousin William Bradshaw's car. He testified that when he (Ed Bradshaw) finally awoke the car was at B & B.*fn1 He got out of the car and observed the Ranger Cartage truck parked "back to back" with the Blue Arrow trailer. He spoke with his cousin (defendant William Bradshaw). Following that conversation, he looked inside the trailer where he saw Urbanski. His cousin then asked him to move the Ranger Cartage truck which he attempted to do but could not because the truck failed to start. Sometime later, William Bradshaw asked him to watch over the B & B premises while he went out to get something to eat. After his cousin returned he left B & B in his own car. Ed Bradshaw further claimed that he had nothing to do with the actual theft of the automobile parts. Defendants Bradshaw and Urbanski, on the other hand, jointly testified that Ed Bradshaw was in reality the mastermind of the theft and that, in fact, they had been unwittingly tricked into helping Ed Bradshaw carry out the theft.
Prior to and during the trial of this action, defendants Bradshaw and Urbanski were represented, at their own request, by the same attorney, Mr. Robert J. McDonnell. Both were advised on three separate occasions, prior to trial, of their right to separate counsel as well as the pitfalls of joint representation. In their appearance before Magistrate Olga Jurco, on April 27, 1982, the magistrate undertook an extensive discussion of the problems involved in joint representation. A second inquiry was made by the district court during a pretrial hearing conducted on May 24, 1982. At that hearing the judge advised the defendants of their right to separate and conflict-free counsel and, in addition, stated to the defendants that they might have conflicting defenses. Finally on June 28, 1982, the government filed a motion for inquiry with respect to joint representation pursuant to Fed. R. Crim. P. 44(c). That motion asked the court to question each defendant to determine whether there was good cause to believe that no conflict of interest was likely to arise as a result of their joint representation. In response to that motion, the district court, on July 13, 1982, once more advised the defendants of their right to separate counsel and questioned them concerning the possible conflicts raised in the motion.
The defendant's first set of arguments concern his Sixth Amendment right to conflict-free assistance of counsel. There is no doubt that such a right exists. As our court stated in United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976), "the sixth amendment guarantee of the assistance of counsel includes the right to counsel whose loyalty is not divided between clients with conflicting interests." Id. at 1043 (citing Glasser v. United States, 315 U.S. 60, 70, 75-76, 86 L. Ed. 680, 62 S. Ct. 457 (1942)). See also Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978). Before proceeding into a discussion of the adequacy of the trial court's inquiry into the issue of joint representation, as required by Fed. R. Crim. P. 44(c), it seems appropriate that we consider whether Bradshaw, through his statements and representations to the magistrate and trial court, waived his right to conflict-free counsel and therefore cannot now be heard to complaint about his joint representation and any conflicts that may have arisen therefrom.
As with other constitutional rights, the right to conflict-free counsel can be waived. United States v. Gaines, 529 F.2d at 1043; United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975). The standard for measuring an effective waiver of a constitutional right was set forth in the case of Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938).
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determinatio of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."
Id. at 464. This standard was subsequently refined by the Supreme Court in Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). According to that case "waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748 (footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir. 1983) (waiver of jury trial). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. "A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack." United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir. 1982), cert. granted, 459 U.S.1101, 103 S. Ct. 721, 74 L. Ed. 2d 948 (1983). See also United States v. Garcia, 517 F.2d at 276; United States v. Gaines, 529 F.2d at 1041; and United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir. 1983).
Thus, we now turn to an examination of the circumstances surrounding Bradshaw's decision to retain his trial court attorney to determine whether he did, in fact, waive his right to conflict-free assistance of counsel. When the three occasions on which both defendants were advised of their rights concerning joint representation are examined in an objective and discriminating light, it becomes apparent that Bradshaw voluntarily, knowingly and intelligently waived his right to separate and conflict-free counsel. Short of holding that the district court was required to order Bradshaw to retain separate counsel, it is hard for us to understand how the magistrate and trial judge could have done more to avoid any possibility of conflict, or could have more thoroughly educated Mr. Bradshaw of the potential problems that might arise from joint representation.
On the first occasion, Magistrate Olga Jurco advised both Bradshaw and Urbanski of their right to separate counsel. Additionally, she noted that it was the court's obligation to fully appraise each defendant of the possible conflicts that might arise in the presentation of their defenses. During the discussion that followed, she pointed out to both defendants: (1) that defenses might be available to one which would conflict with those available to the other; (2) that conflicts might arise with respect to particular decisions that needed to be made during the trial of the case, such as whether either or both defendants should take the stand; (3) that a conflict also might arise with a respect to whether particular witnesses should be called, whether certain questions should be asked of those witnesses and whether possible cross-examination might be curtailed. She then stated that she was not able to go into the particulars of any of the possible conflicts because she was not privy to the information related in the conferences between the defendants and their counsel. However, she felt that it was important to point out to them the broad parameters where a conflict might arise. Finally, Magistrate Jurco explained, "what I want to say is that what is in the best interests of one of the defendants may not likely be in the best interest of the other defendant."
After conducting this exhaustive colloquy she asked Bradshaw if he had discussed the above-noted risks with his counsel, to which he replied that he had. She repeated that question to Urbanski who also answered in the affirmative. She then asked their counsel, Attorney McDonnell, whether he had considered the possibility of a conflict and had discussed that risk with his clients. He replied, "I have, your Honor. I have gone into it in depth with them and in my opinion there could not possibly be a conflict, and if indeed I foresee anything I will immediately call in other counsel." This statement was made on the record in the presence of both Urbanski and Bradshaw. The magistrate then asked Urbanski whether he wished to have Mr. McDonnell represent him. He replied that he did. Following that response, the magistrate asked Bradshaw if this was also his wish. He replied, "yes, your Honor."
A second inquiry concerning joint representation was undertaken by the trial judge during a pretrial hearing held on May 24, 1982. He initially addressed Urbanski in the presence of Bradshaw. The trial judge told Urbanski that he had a right to separate counsel and that he might have a defense contrary to that of Bradshaw. He then asked Urbanski whether he still wanted to be represented by Mr. McDonnell. Urbanski replied that he did. Next the trial court asked Bradshaw whether he understood that as well. Bradshaw stated that he understood. The court then asked Bradshaw whether Mr. McDonnell had explained that he had a right to separate counsel. Again Bradshaw replied in the affirmative. Turning his attention to Mr. McDonnell, the court asked whether he had explained the existence of that right to both defendants. Mr. McDonnell stated that he had. He also told the court that if there was "even the slightest hint of a conflict" he would bring in another attorney. Finally, the court admonished Mr. McDonnell to take another "good hard look" at the situation to determine if there was any possibility of a problem and to bring in separate counsel if there was the "slightest conflict."
The trial court again addressed the issue of joint representation on July 13, 1982, in response to the government's motion for inquiry with respect to joint representation pursuant to Fed. R. Crim. P. 44(c). That motion delineated the following as possible areas of conflict as perceived by counsel for the government: (1) there were differing degrees of culpability and involvement by each defendant; (2) three of the government's witnesses were defendant Bradshaw's brothers-in-law, and another witness was his cousin; (3) Urbanski might have a defense that conflicted with Bradshaw's defense; and (4) there might be a problem with cross-examination of the above-noted witnesses in the presentation of Urbanski's defense.In addition, the government's motion pointed out that it had made an offer to allow the defendants to plead guilty to the first count, dismiss the second count and make no recommendation as to sentencing. Its concern was that defense counsel might be reluctant to relate this offer to the defendants due to the fact that a defendant accepting the plea bargain would be required to cooperate and testify, and that such cooperation might result in the implication of the other defendant in the crime charged.
During its consideration of this motion, the trial court addressed both defendants. He asked each defendant whether or not he understood that he had a right to separate counsel. Both replied that they did. The court then proceeded to recite the possible areas of conflict noted in the government's motion. Finally, the court concluded:
"The measures that I am going to take is to advise you that each of you are entitled to be represented by separate counsel because you may have conflicting defenses in this case.
"Do you understand that, each of you? Mr. Urbanski?
" THE COURT: Mr. Bradshaw, do you understand that?
For the record the court stated that he had heard the government's motion for inquiry with respect to joint representation and that both defendants continued to "persist" in their desire to be jointly represented by Attorney McDonnell.
After examining the preceding three inquiries, we can only conclude that Bradshaw accepted joint representation with his eyes open. It is apparent to this court that the magistrate and trial court carefully and meticulously advised Bradshaw in simple, understandable terms both of his right to separate counsel and of the perils of joint representation. On each occasion, the defendant, William Bradshaw, chose to accept those perils voluntarily, intelligently and knowingly by insisting that he be represented by Attorney McDonnell. As our court stated in United States v. Gaines, 529 F.2d 1038 (1976):
"When an actual conflict appears, the court must bring the fact of its existence and the resulting dangers which are reasonably foreseeable to the attention of each affected defendant so he can make an informed judgment at that time as to whether he wishes new counsel or wishes to continue with present counsel. Having done that, the court has fulfilled its duty and, if, despite the conflict and the attendant ...