MEMORANDUM AND ORDER
John W. Clark was convicted of bank robbery and sentenced to 15 years imprisonment. Before me is his motion to vacate or set aside the sentence pursuant to 28 U.S.C. § 2255.
Clark alleges various grounds for relief: (a) his reprosecution after an earlier mistrial placed him in double jeopardy; (b) he was denied due process of law because the question of his capacity to commit the offense or competency to stand trial was never adequately determined; (c) he was denied his constitutional rights to a fair and impartial jury; and (d) he received ineffective assistance of counsel because of conflicting interests.
The Honorable Edwin E. Naythons, United States Magistrate, filed a report and recommendation which stated that petitioner's first three contentions were either completely without merit or could not be raised in a Section 2255 motion. Judge Naythons did conclude, however, that Clark's claim of ineffective assistance of counsel presented a reviewable issue and recommended that the United States respond to this allegation. The report was approved by this court, and the Government has now filed an answer which denies any conflict of interest.
Clark was indicted on criminal bill number 71-163, March 25, 1971, and arraigned May 3, 1971. His first trial began June 21, 1971, and a mistrial was declared on June 23, 1971. His second trial began on August 4 and ended August 6, 1971, with post trial motions filed on August 12, 1971, being denied by this court on June 28, 1972. During the whole time, Clark was represented by Nino V. Tinari, Esquire.
Mr. Tinari also represented Darrell Anthony Jackson who was arrested for the same bank robbery as Clark. Jackson, however, was indicted on a separate bill, criminal number 71-320, at a later date, May 27, 1971, and his trial did not begin until November 3, 1971, almost three months after Clark's second trial had been concluded.
Clark claims he was denied effective assistance of counsel as guaranteed by the Sixth Amendment because he and Jackson were both represented by the same lawyer. He argues that the court has a responsibility to make sure a criminal defendant is aware of the potential risk of conflict in an attorney's dual representation. Clark goes on to assert that since no inquiry was made and no determination of an intelligent and knowledgeable waiver recorded, he is entitled to a new trial.
While the Constitution provides for a defendant's absolute right to untrammelled and unimpaired assistance of counsel, the mere fact of dual representation and a silent record has not been held enough to require relief. United States ex rel. Hart v. Davenport, 478 F.2d 203, 209-10 (3d Cir. 1973).
To the contrary,
there must be some showing of a possible conflict of interest or prejudice, however remote, before a reviewing court will find the dual representation constitutionally defective.