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UNITED STATES v. HARMON

January 31, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
MAURICE HARMON, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is defendant Maurice Harmon's ("Harmon") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the court finds that Harmon's counsel should be disqualified and Harmon's motion stricken.

 I. BACKGROUND

 In March 1992, Harmon was indicted, along with numerous others in a multi-count indictment, on one count of conspiracy with intent to distribute heroin and cocaine and one count of aggravated assault in aid of racketeering activity. One of Harmon's codefendants was Rufus Sims, the alleged leader of the drug trafficking conspiracy.

 While Harmon was in jail prior to his indictment, representatives of the United States Attorney's Office and Drug Enforcement Agency interviewed him. In the interview, Harmon talked about his involvement in the "Rufus Sims drug organization." Harmon said that he sold drugs for Sims from 1985 to 1988, and identified other people who also sold drugs for Sims. (Govt.'s Resp. to Def.'s § 2255 Petition Ex. A.)

 In October 1992, Harmon pleaded guilty on the drug trafficking conspiracy count. In the plea hearing, the government told the court that if the case were to proceed to trial, its proof would show that Harmon participated in an extensive narcotics conspiracy with Sims and others, that Sims was the leader of the narcotics organization, that Sims paid Harmon for his role in the organization, and that Sims ordered Harmon and others to inflict serious beatings on members of the conspiracy who stole narcotics or otherwise violated the rules of the organization. (Govt.'s Resp. to Def.'s § 2255 Petition Ex. B at 13-15.) Harmon agreed that all of this was true, and that he was guilty of the conspiracy count. (Id. at 15-16.) Accordingly, the court entered a judgment of conviction against Harmon on the conspiracy count.

 In July 1993, the court sentenced Harmon to 235 months' imprisonment, which was the lowest end of the sentencing range that the court found applicable to Harmon's case. Harmon appealed his conviction and sentence, both of which the Seventh Circuit Court of Appeals affirmed on June 8, 1995.

 In the meantime, Sims fled Illinois for California after the 1992 indictments were returned; he remained a fugitive for two and a half years. Sims eventually was found and returned to Illinois to stand trial. In July 1995, after a six-week trial, a jury convicted Sims of numerous counts of money laundering and structuring financial transactions, but acquitted him of drug trafficking and racketeering charges. On December 6, 1995, this court sentenced Sims to 327 months' imprisonment. Sims immediately appealed his conviction and sentence to the Seventh Circuit. Throughout his trial, at sentencing, and, as far as this court has been informed, on appeal, Sims has been and is represented by attorneys Bernard Nathan and Jeffrey Gehl.

 In September 1995, Harmon retained attorneys Nathan and Gehl to represent him. Harmon now is asking this court to vacate, set aside, or correct his sentence. In its response to Harmon's motion to set aside, vacate, or correct his sentence, the government has raised an objection to Harmon's representation by the same attorneys that represent Harmon's codefendant, Sims.

 II. DISCUSSION

 A.

 The Sixth Amendment to the Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to have the effective assistance of counsel." U.S. CONST. AM. VI. The Sixth Amendment bestows two corollary rights: the right to choose and be represented by one's preferred counsel; see Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988); United States v. Lowry, 971 F.2d 55, 59 (7th Cir. 1992); and the right to be represented by an attorney "with unwavering, undivided loyalty to the defendant." United States v. Messino, 852 F. Supp. 652, 654 (N.D. Ill. 1994) (citing Lowry, 971 F.2d at 59 (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980))).

 However, when codefendants want to be represented by the same attorney, these two rights can clash, and the court must step in. See Lowry, 971 F.2d at 59. "While 'permitting a single attorney to represent codefendants ... is not per se violative of constitutional guarantees of effective assistance of counsel,' ... a court confronted with and alerted to possible conflicts of interests must take adequate steps to ascertain whether the conflicts warrant separate counsel." Wheat, 486 U.S. 153, 159-60, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988) (quoting Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978)).

 Furthermore, although a defendant may waive his or her right to conflict-free counsel, the trial court still remains obligated to address the situation. The court has a duty "to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment." Messino, 852 F. Supp. at 655 (citing Wheat, 486 U.S. at 161, 108 S. Ct. at 1698). The court also has an "institutional interest in the rendition of just verdicts in criminal cases," ...


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