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United States v. Dolan

filed: January 23, 1978.

UNITED STATES OF AMERICA
v.
JOHN DOLAN, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Crim. No. 77-1-2.

Rosenn and Van Dusen, Circuit Judges, and Maurice B. Cohill, Jr., District Judge.*fn*

Author: Rosenn

ROSENN, Circuit Judge.

This case presents a troublesome problem at the interface of two spheres of prime judicial concern: the scope of the sixth amendment rights of a criminal defendant and the enforcement of appropriate standards of professional conduct for members of the criminal defense bar.

The genesis of this appeal lies in the indictment of Michael Garofolo and John Dolan in the United States District Court for the District of New Jersey for unlawful possession of chattels stolen from foreign commerce, 18 U.S.C. ยง 659 (1970). Both defendants retained Samuel R. DeLuca, Esquire, to represent them in this matter, and both entered pleas of not guilty. Pursuant to this court's decision in United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), Judge Herbert Stern conducted a hearing to determine whether Mr. DeLuca's joint representation of the defendants would give rise to a prejudicial conflict of interest. Despite Judge Stern's advice as to the merits of separate representation, both defendants stated their desire to continue to retain Mr. DeLuca.*fn1

On the eve of trial set before Judge Frederick Lacey, Attorney DeLuca communicated with the Assistant United States Attorney in charge of the case seeking a dismissal of the charges against Dolan in exchange for Garofolo's guilty plea. The Government refused to negotiate such a deal. Garofolo was unaware of this attempted bargain.

The next day, Garofolo pleaded guilty. Before accepting the plea, Judge Lacey conducted a hearing to ensure the knowing and voluntary nature of the guilty plea. In addition, he conducted another Davenport hearing in which his questions elicited from Garofolo answers indicating that Garofolo did not believe that he had been prejudiced in any way by the joint representation. Mr. DeLuca similarly indicated, in response to Judge Lacey's questions, that he saw no conflict of interest in the joint representation. The judge further examined Dolan:

THE COURT: . . . Have you [Mr. Dolan] heard all of these questions I put to Mr. Garafolo?

MR. DOLAN: Yes, sir, I have.

THE COURT: All right.

And now, of course, Mr. DeLuca would continue to represent you. Is that right?

MR. DOLAN: Yes, sir.

THE COURT: All right.

Are you satisfied that your interests will in no way be prejudiced by the fact that Mr. DeLuca up until this point and, indeed, through the taking of this guilty plea has been representing Mr. Garafolo as well as you? Are you satisfied ...


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