Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 57 CR 523--Ilana Diamond Rovner, Judge.
Wood, Jr., Posner, and Coffey, Circuit Judges.
The two defendants, Sandra Alamo and Francisco Hernandez, at all times prior to trial made it abundantly clear that they wanted to be represented by the same trial counsel. After extensive colloquy with the trial judge their request for joint counsel was allowed. However, now after conviction each defendant claims that the allowance of their prior joint counsel demand resulted in the denial of effective assistance of counsel. That is the principal issue on appeal although each defendant additionally raises one or more minor issues.
Factually, this is no more than the typical efforts of the parties, one an undercover agent, to conclude a cocaine transaction which resulted in arrest. Sergeant Clarence Travis was a veteran Chicago police officer assigned to the Drug Enforcement Administration (DEA) Task Force. It begins when Sergeant Travis posing as a dealer along with a confidential informant met with Manuela Gomez*fn1 and Blanca Garcia,*fn2 both unknown to Sergeant Travis, to arrange a purchase of cocaine. The price for the kilo of cocaine was $26,000, which Sergeant Travis represented he had. After meeting they all drove to the home of Francisco Hernandez who was indicated to be the cocaine source, but he was not there. They then unsuccessfully looked for him elsewhere, but separated until Gomez could get "her act together." Gomez finally contacted Hernandez. She then notified Sergeant Travis that she had the cocaine, which she did not, and asked him to meet her at a particular location. Gomez then again went to the home of Hernandez. This time he was home. Sandra Alamo was also present. Hernandez agreed to see if he could get the cocaine and instructed Gomez to meet him later at another location.
In the meantime Sergeant Travis had driven to the location as first directed by Gomez. A car came by driven by Hernandez with Alamo in the front seat and with Gomez and Garcia in the back. Gomez got out and told Sergeant Travis that the driver was the supplier and that Alamo was his wife. Gomez wanted to go to a different location to conclude the transaction. Sergeant Travis refused. The Hernandez car then pulled alongside and Alamo asked why the delay. Finally, they agreed to meet at the new location.
Upon arriving there Alamo came to Sergeant Travis for the money. There was an argument about how the money-cocaine exchange was to be accomplished with the result that the transaction was terminated and the parties separated. A short time later Gomez again contacted Sergeant Travis by phone about trying to conclude the sale. After Hernandez spoke directly to Sergeant Travis they again agreed to meet. Alamo arrived by car at the specified location along with Gomez and Garcia. Alamo and Gomez got in Sergeant Travis' car and Gomez was allowed to count the money. Alamo left to call Hernandez to tell him that it was finally arranged. She returned and got back in their car with Gomez and Garcia. A few minutes later Hernandez showed up on a motorcycle, took out the cocaine package from inside his jacket, and gave it to Gomez to give to Sergeant Travis. Sergeant Travis then moved to take the money out of the trunk of his car. By a prearranged signal backup agents put an end to the whole affair. Hernandez tried to get away on his motorcycle but it jumped the curb and tipped over. It was just not his day. All were arrested.
Defendants Alamo and Hernandez, along with Gomez, on August 7, 1987 were charged in a five-count indictment with conspiring to knowingly and to intentionally possess with intent to distribute cocaine and knowingly and intentionally distribute cocaine, in violation of Title 21, United States Code, Section 846 and also with knowingly and intentionally distributing approximately 1000.53 grams of a mixture containing cocaine, in violation of Title 21, United States Code, Section 841(a)(1).*fn3
At their arraignment before Judge Rovner on August 14, 1987 and again later, two weeks prior to trial, on February 16, 1988 the matter of each defendant being represented by the same attorney, Richard Kagan, was raised, extensively considered, and reconsidered by Judge Rovner. On each occasion, pursuant to Federal Rule of Criminal Procedure 44(c)*fn4 Judge Rovner very carefully explained the joint representation problems and engaged in an extensive dialogue with the defendants and their joint attorney about the ramifications of that representation. In addition, Judge Rovner explored the competency of each defendant to fully understand the proceedings and the seriousness of the charges. She carefully explained the possible conflicts that could be caused by dual representation: that it might at times inhibit the ability of their attorney to cross-examine government witnesses, that it would prohibit the attorney in final argument from trying to place the blame on only one of the defendants, that it would prohibit the attorney from engaging in post-trial negotiations with the government as to full disclosure by one defendant against the other, and that it would prohibit the attorney from arguing to the sentencing judge the relative culpability of the defendants. Judge Rovner advised that judges strongly recommend against dual representation. She further advised that a court-appointed lawyer was available to represent either of them, or to confer with them about the dual representation situation.
Attorney Kagan was asked by Judge Rovner how he would propose to represent both defendants to avoid the possible problems. He explained that he had examined the government's evidence and discussed it all in great detail with each defendant. Also he represented to Judge Rovner that there would be no conflict within the defenses of his two clients; that they did not have opposing defenses; that each defendant's acts were independent, separate parts of the alleged conspiracy; that their defenses were not "finger pointing defenses;" and also that there did not appear to be any information that either of the defendants had or might have already disclosed or would disclose that would incriminate or implicate the other defendant that the government did not already have. Judge Rovner went over it all with each defendant and came to the conclusion that each defendant understood the problems, and that each persisted in waiving any right to separate attorneys. This was reduced to separate written waivers fully setting forth possible joint representation problems. Mr. Kagan discussed these written waivers with his clients as did Judge Rovner before a waiver was executed by each defendant.
On each of these two occasions this joint representation problem was all gone into meticulously and extensively. In the course of these proceedings Judge Rovner made certain statements on each of the two occasions which the defendants now highlight as error. At the August 14, 1987 hearing, Judge Rovner said in part, "It is your case, your situation, and you have the responsibility of making the final decision." Later, at the February 10, 1988 hearing Judge Rovner further stated, "If that is your decision, it is your decision. Again, I tell you it is a decision this Court cannot agree with, but must accept." Judge Rovner then accepted the waivers and the case ...