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UNITED STATES v. MERLINO

April 4, 1975

UNITED STATES of America
v.
Anthony MERLINO


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

 Presently before the Court is Anthony Merlino's motion to vacate and/or reduce a sentence imposed by this Court on November 20, 1974. A hearing was held February 6, 1975.

 On May 28, 1974, the defendant was indicted on seven counts charging him with conspiracy, illegal use of a communication facility, and with distribution of various controlled substances. The same indictment named eight other individuals as coconspirators and named various codefendants on several of the other substantive counts. On October 21, 1974, the defendant changed his plea from not guilty to guilty on three of the counts. *fn1" On November 20, 1974, the defendant was sentenced to five years imprisonment with a special parole term of five years to follow. *fn2" The Court, pursuant to the Government's motion, dismissed the remaining four counts after the sentence was imposed.

 The defendant was represented by privately retained counsel. This same counsel also was retained by three codefendants; Ann Merlino, the wife of the defendant, Albert Carter and Margaret H. Delconte. The Court accepted from each of these three codefendants a change of plea from not guilty to guilty on the same date as it accepted the defendant's change of plea, and all three were sentenced by the Court on the same date as the defendant.

 The defendant contends that he was denied the effective assistance of counsel and due process of law as a result of the conflict of interest which allegedly arose from the representation at sentencing of the four codefendants by the same privately retained counsel. He also alleges that he was prejudiced by the incompetence of his counsel. With respect to this second claim, the standard of competence of counsel to which a defendant is entitled was articulated in Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970):

 
. . . the standard of adequacy of legal service as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.

 The defendant offered no testimony or argument that his counsel did not exhibit the "customary skill and knowledge" required of attorneys in criminal proceedings. Without further discussion, we therefore dismiss the claim of incompetence of counsel.

 Defendant contends that the conflict arose at sentencing where he was placed in an unfavorable light with respect to the codefendants represented by his counsel and was not benefited by witnesses who would have produced favorable testimony on his behalf. He further alleges that his counsel should have presented to the Court certain evidence concerning his background and character which were relevant to his sentencing.

 When faced with a contention by a defendant that he was a victim of a conflict of interest in the joint representation of himself and other codefendants, we must bear in mind that the defendant has the burden of showing a possible prejudice from the joint representation. Walker v. United States, 422 F.2d 374 (3d Cir. 1970). In United States v. Rispo, 470 F.2d 1099 (3d Cir. 1973), the Third Circuit stated at 1103:

 
A defendant is, of course, entitled to "untrammeled and unimpaired" assistance of counsel for his defense. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). We have held, however, that joint representation of codefendants by the same attorney is not per se a denial of the effective assistance of counsel guaranteed by the sixth amendment. The defendant asserting such a denial must make some showing of a possible conflict of interest or prejudice arising from the joint representation. E.g. United States ex rel. Small v. Rundle, 442 F.2d 235, 237-238 (3d Cir. 1971). The Small case presented the issue in a habeas corpus context, and hence solely in its constitutional dimension. Undoubtedly we could impose for trials in the federal courts a preventive rule as to joint representation more strict than that required by the sixth and fourteenth amendments. Thus far we have chosen not to do so.

 Although the present claim of conflict of interest arises in the context of a sentencing proceeding, we can perceive no difference in the standard to be applied in assessing a claim of conflict at trial and such a claim at sentencing after a guilty plea. See Walker v. United States, 422 F.2d 374 (3d Cir. 1970).

 Although our Circuit Court has not imposed upon the trial judge an affirmative obligation to ascertain from defendants whether their choice of joint counsel is an informed decision, it has, however, recommended that the trial judge warn each defendant of the possible dangers of joint representation. Government of the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir. 1973). As Judge Rosenn stated in Hernandez, supra, at 793:

 
The Supreme Court has held that the sixth amendment right to fair and effective assistance of counsel can be abridged when several defendants are represented by one counsel. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Although recognizing that this constitutional right could be waived, the Court said any waiver must be made knowingly and intelligently. 315 U.S. at 70-71, 62 S. Ct. 457, 86 L. Ed. 680. Drawing on Glasser's imposition on the trial judge of a duty to preserve a defendant's right to effective assistance of counsel, the District of Columbia Circuit has required trial judges to ascertain from defendants whether their choice of joint counsel is an informed decision. Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965). We have never gone so far as to impose this affirmative obligation on the trial judge. United States v. Rispo, 470 F.2d 1099, 1102 (3d Cir. 1973). We have, however, refused to find a waiver of this right in the face of a silent record on the issue, noting that Glasser required "the trial judge . .. to 'indulge every reasonable presumption against the waiver.'" Government of the Virgin Islands v. John, 447 F.2d 69, ...

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