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BOEHMER v. UNITED STATES

March 23, 1976

Ralph Paul BOEHMER
v.
UNITED STATES of America



The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the Court is petitioner Ralph Paul Boehmer's motion pursuant to Title 28 U.S.C. § 2255 to withdraw his plea of guilty to Counts I and II of Criminal Indictment No. 74-710 and vacate judgment and sentence. The petitioner and his wife, co-defendant Ann Marie Boehmer, were represented by the same attorney, Joseph P. Zawrotny, Esquire, from a time prior to the arraignment through the entry of the guilty plea. Petitioner alleges that he was prejudiced by a conflict of interest resulting from this joint representation, and was therefore denied his Sixth Amendment right to the effective assistance of counsel. *fn1" A brief history of the proceedings to date is necessary to place this section 2255 motion in context.

 I. PROCEDURAL HISTORY

 On December 3, 1974, Ralph Boehmer and his wife were indicted under Criminal Indictment Number 74-710, which superseded Criminal Indictment Number 74-497 returned on August 27, 1974. The superseding indictment averred that petitioner and his wife were involved in a scheme to possess and deal in counterfeit currency in violation of Title 18 U.S.C. §§ 472, 473. More specifically, petitioner was charged in four counts with distribution of seven thousand dollars ($7,000.00) in counterfeit twenty dollar Federal Reserve Notes, and Ann Marie Boehmer was charged in a single count as an aider and abettor of the distribution scheme in that she facilitated a sale between her husband and a recipient of the counterfeit bills.

 On March 17, 1975, Ralph Boehmer entered a plea of guilty to Counts I and II of the four count indictment, and acknowledged that on March 27, 1974, he received six hundred dollars ($600.00) in genuine currency for passing two thousand dollars ($2,000.00) of counterfeit currency. This plea was entered in accordance with an agreement made by petitioner, acting through counsel, with the United States Government. Pursuant to this plea bargain, the Government agreed to dismiss the charges against Ralph Boehmer in Counts III and IV of the indictment, and agreed not to proceed against Ann Marie Boehmer under Count II.

 The Court accepted the guilty plea and the terms of the plea arrangement, and on April 8, 1975, sentenced petitioner to six years incarceration under Count I, with a consecutive term of five years probation under Count II. Pursuant to Title 18 U.S.C. § 4208(a)(2), petitioner's eligibility for parole was placed within the discretion of the Parole Board. This sentence reflected the Court's consideration of several factors including the defendant's criminal record *fn2" and his favorable demonstration of contriteness and concern for his wife and family. *fn3"

 Ralph Boehmer filed two post-sentencing motions for reduction of sentence, both of which were denied by the Court. *fn4" On October 14, 1974, he filed another collateral attack on his conviction, the instant section 2255 motion to set aside his guilty plea and subsequent sentence. As a corollary, he also sought enlargement upon his own recognizance pending disposition of the substantive motion; however, following a hearing, this motion for release was denied.

 On February 10, 1976, after the Report and Recommendation of the United States Magistrate was received and adopted, a hearing was held on petitioner's section 2255 motion to determine "whether or not the joint representation by Mr. Zawrotny abridged the plaintiff's right to the effective assistance of counsel." *fn5" On the basis of facts disclosed at this hearing as well as other facts apparent from the record, the Court denies the motion for the reasons discussed below.

 II. PETITIONER WAIVED HIS RIGHT TO SEPARATE, INDEPENDENT COUNSEL

 In Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), the Supreme Court held that the Sixth Amendment right to the fair and effective assistance of counsel can be abridged when several defendants are represented by single counsel. This right to the unimpaired assistance of an attorney applies prior to trial when a defendant is considering how to plead, as well as during trial. Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948); Glasser v. United States.

 Although it is fundamental, this constitutional right can be knowingly and intelligently waived. Glasser v. United States, 315 U.S. at 70-71, 62 S. Ct. at 465; Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S. Ct. 236, 240, 87 L. Ed. 268 (1942); Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In this regard, the Third Circuit does not require trial judges to ascertain from defendants whether their choice of joint counsel is an informed decision, but it does refuse to find a waiver of this constitutional right in the face of a silent record. Government of Virgin Islands v. Hernandez, 476 F.2d 791, 793-94 (3d Cir. 1973). This is consistent with the Supreme Court's admonition in Glasser that trial judges should indulge every reasonable presumption against waiver. 315 U.S. at 70, 62 S. Ct. at 465, Government of the Virgin Islands v. John, 447 F.2d 69, 74 (3d Cir. 1971).

 The present action is not a silent record case; on the contrary, the facts demonstrate a waiver by petitioner of his right to separate counsel. On September 24, 1974, at arraignment, the United States Magistrate instructed petitioner as follows:

 
You are also entitled to have counsel and if you are unable to afford an attorney and are otherwise qualified, I will appoint a lawyer to represent you free of charge. I note, however, the appearance of Mr. Zawrotny, who represents both of you [Ralph Paul Boehmer and Ann Marie Boehmer]. I point out to both of you and to Mr. Zawrotny what I stated earlier in the other cases, that in the case of dual representation there is a possibility of a conflict of interest. If such a possibility exists, it behooves the parties to have separate counsel and for counsel to examine these facts very closely and make a determination as to what the proper representation should be. *fn6"

 Thus, consistent with the position of the Third Circuit that such warnings should come at the earliest stage of the criminal justice process, petitioner was informed at arraignment of the potential dangers of joint representation and of his right to court appointed counsel if he qualified as an indigent. *fn7" ...


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