Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 74 CR 806, 84 C 168 - John F. Grady, Judge.
Before WOOD and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
Defendant Marrera's guilt is clear, but so is his trial counsel's serious breach of ethics which created at least a potential conflict of interest. The impact of counsel's ethical breach on his representation of Marrera and on the jury's guilty verdict is the principal issue.
Defendant and his conspiring friends made off one October weekend in 1974 with 4.3 million dollars from the vault of Purolator Services, Inc. The government calls it a spectacular robbery; perhaps, but in some respects it was an amateurish caper for it left the defendant, the only Purolator employee on duty at the time of the robbery, looking very suspicious. The suspicions quickly developed into evidence and the defendant and his friends were indicted for conspiracy,*fn1 and various other bank robbery related charges.*fn2 Marreara's case was severed for trial.*fn3
Marreara's retained counsel also perceived it as a spectacular caper, one worthy of Hollywood. So, before trial, Marrera and his counsel took it to Hollywood, agreeing to share equally in the anticipated good fortune resulting from Marrera's otherwise bad fortune. After trial and his sentencing to twenty years on the various counts, Marrera filed a direct appeal raising evidentiary questions; subsequently he filed a habeas corpus petition alleging that he had been denied his constitutional right to effective assistance of counsel because of his attorney's Hollywood conflict of interest. We consolidated the direct and collateral attacks. Before reaching the legal issues, we examine a few highlights of the story.
Purolator provides armored car and storage security services for a number of federally insured banks in the Chicago area and the Hawthorne Racetrack. Part of that service involves picking up its customer banks' money as agent and storing it overnight or over a weekend in its vaults pending deposit in the designated bank. While in Purolator vaults, which are protected by an alarm system, the money is stored in separate sealed containers. On weekends the vaults are closed Saturday evenings and not opened until Monday morning. While the vaults are closed, only two persons are regularly on duty, an alarm operator and a vault guard.
On the weekend of the robbery Marrera was on duty as vault guard with responsibility for monitoring all building entrances, which are kept locked, and for acting as temporary custodian for the personal effects of any person entering the vault area. The alarm operator that weekend was Angela Hughes. Early on Sunday evening, shortly after receiving a phone call, Marrera suggested to Ms. Hughes that she leave early. Ms. Hughes left four hours early, around 8:00 P.M. Her shift replacement did not arrive until midnight.
Shortly after the relief alarm operator arrived, Marrera telephoned the Purolator manager to report a fire in one of the two vaults. the manager and firemen arrived soon thereafter and opened the vault. The fire had not destroyed everything in the vault, apparently because of insufficient oxygen in the closed vault. The money containers, coins, and some currency were strewn about. Also remaining were the residue of a flare and a few plastic containers of gasoline, but $4.3 million was gone. The padlocked container in which Hawthorne's proceeds*fn4 had been stored was found open and empty except for one of the unignited plastic bags of gasoline. The entrance to the building had not been forced. The vault had not been forced. The padlock on the Hawthorne money box had not been forced. The circumstances suggested an inside job and Marrera was the only person present for a period of several hours prior to his report of the fire.
Other evidence also pointed to Marrera. On several weekends prior to the robbery weekend, when Marrera was on duty, there had been vault fire false alarms, now viewed as burglary experiments. Not long before the robbery Marrera had asked another employee whether the stored currency was marked and what the money containers weighed. He then tried to life one. Additionally, Marrera, as vault guard, had access to the Hawthorne padlock number which was enough to have a duplicate key made. The words and deeds of Marrera's outside co-conspirators also pointed to Marrera. They told an undercover agent about their plans for a "big score," and sought to enlist the agent's help in acquiring a van for the purpose. They in fact did acquire a van and Marrera was seen riding in it. After the robbery the van was recovered and contained evidence suggesting that it had been used to haul the loot. Later, when arrested, one of the co-conspirators, Charles Marzano, was found with some of Hawthorne's money in his pocket. Marrera was also implicated by the discovery of a fresh concrete vault filled with Hawthorne money in his grandmother's vacant house. Before the robbery witnesses saw two men hauling sacks of concrete into the house and dirt out. The fingerprints of one of the co-conspirators was found on a Hawthorne bill in Marrera's grandmother's basement.
Marrera's own statements provided the final evidence of guilt. In an interview with the FBI on the day following the robbery, he denied knowing Charles Marzano. Later, after becoming aware that he had been seen in the van with Marzano before the robbery, he recanted, admitting that he knew Marzano, a profession burglar with whom he had been regularly having lunch. Marrera also admitted that he had used the van to deliver some plyboard to one of the other conspirators. Plyboard was used in the basement vault. Marrera also admitted knowing another of his co-conspirators, an alarm and security system expert and no doubt a valuable member of the team. Marrera admitted having Hughes, the only other employee present on the night of the robbery, permission to leave early even though he knew in so doing he risked losing his job.
In a subsequent interrogation, however, Marrera assumed a more uncooperative attitude and advised Chicago police, "If you have enough evidence, charge me, then convict me. This is the biggest score ever. I will take twenty or thirty years, go to the joint, write a book and make another million." Marrera was as impressed as the government with what he and his friends had accomplished. Indictment followed. ...