APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal No. 75-342).
Gibbons, Hunter, Circuit Judges, and Weber,*fn* District Judge.
These are consolidated appeals from a judgment of sentence (No. 77-1276) and from an order denying a motion under 28 U.S.C. § 2255 (No. 77-2230). The appeals present a complex and difficult problem of the joint legal representation of two criminal defendants, one of whom, unknown to the other defendant or to the lawyer representing them, was a government informer. The problem arose out of that netherworld of illegal drug trafficking, in which, as we have so often seen, the government's chief law enforcement method appears to be reliance upon informers. We think that under the circumstances here the district court did not adequately protect appellant Donald Verna's sixth amendment right to the unfettered representation of independent counsel. Accordingly, we reverse the judgment of conviction and order that the indictment be dismissed.
I. FACTS AND PROCEEDINGS IN THE DISTRICT COURT
On July 8, 1975, Special Agent Fitzgerald of the federal Drug Enforcement Administration (DEA) arrested Nicholas Visceglia. The arrest, which took place at the office of the Bronx County District Attorney in New York, was the result of a complaint sworn to by another Special Agent of the DEA. Visceglia was taken from Bronx, New York, to Newark, New Jersey, for arraignment before a federal magistrate. After Visceglia's arraignment, while he was being fingerprinted and photographed, Fitzgerald asked him whether he would be willing to cooperate with the federal law enforcement authorities. App. at 38.*fn1 At that time the DEA knew that Visceglia had been cooperating with the Bronx District Attorney since November, 1974. App. at 75. In fact, the federal arrest at the District Attorney's office had been pre-arranged by Special Agent Riley and by an Assistant District Attorney. Id. Fitzgerald regarded Visceglia as a prime candidate for cooperation with the federal authorities.
The charge on which Visceglia was arrested involved an alleged conspiracy to distribute heroin. Frank Moten, Paul Levy, and the appellant Donald Verna were also alleged members of that conspiracy. On July 17, 1975, a federal grand jury sitting in Newark, New Jersey, indicted all four for a conspiracy in violation of §§ 841 and 846. Verna is Visceglia's uncle. At the time of the indictment Verna was the operator of the Burnside Fraternal Association in Bronx, New York, where some of the drug trafficking took place.
On July 24, 1975, Visceglia, responding to Fitzgerald's overture, approached the DEA about the possibility of cooperating. By August 6, 1975, an arrangement was finalized whereby Visceglia would become an informer for the DEA as well as for the Bronx County District Attorney. Thereafter Visceglia's activities as an informer were supervised by one or more DEA agents.
On September 8, 1975, attorney Herbert S. Siegal entered an appearance in the federal case on behalf of both Verna and Visceglia. From the moment that Visceglia was retained as a DEA informer, the DEA knew that Siegal was representing both the nephew and the uncle. In addition, the DEA knew that both Siegal and Verna were unaware of Visceglia's informer status with the Bronx District Attorney's office or of his new status as a DEA informer. App. at 192. The prosecutor in charge of the federal case, Rhonda C. Fields, of the Organized Crime and Racketeering Section of the Criminal Division of the Department of Justice (Strike Force), knew that Visceglia had been cooperating with state authorities. However, she was not immediately informed that Visceglia had become a DEA informer as well.
From August, 1975, until February, 1976, Visceglia cooperated with the DEA in connection with other matters. In February, 1976, Fields informed the federal district court in Newark of Visceglia's status as a DEA informer. The court then instructed Fields to notify the attorney for the defendants of this fact. Consequently, on February 25, 1976, the government served by mail the following:
NOTICE TO DEFENSE COUNSEL
PLEASE TAKE NOTICE that from approximately August 6, 1975, to the present, defendant Nicholas Visceglia gave information to the agents of the Drug Enforcement Administration and other federal and state agencies, concerning matters other than the captioned cases.
App. at 17. Siegal apparently received this notice shortly after it was mailed. On March 12, 1976, Siegal represented Visceglia in the Bronx County Supreme Court for sentencing on a state indictment to which Visceglia had previously pleaded guilty and for the entry of a guilty plea and subsequent sentencing on another state indictment. On April 19, 1976, Siegal wrote to Visceglia, stating that he planned to withdraw as Visceglia's attorney in the federal case in Newark. Siegal's letter to Visceglia states in part:
In view of the fact that I also represent another defendant, Donald Verna, Jr., I find that I must withdraw as your attorney because of a conflict of interest.
I hereby advise you to retain other counsel to represent you in the above case.
App. at 18. Copies of this letter were also sent to counsel for the co-defendants, to the government attorney, and to the district court itself. There is no indication, however, that a copy was sent to appellant Verna. The letter does not refer to Siegal's representation of Visceglia in the Bronx proceedings and does not identify the nature of the conflict of interest to which it refers.
On May 20, 1975, Siegal moved, on Verna's behalf, to dismiss the indictment or, alternatively, to obtain such other relief as the court deemed proper. Siegal argued that Visceglia's participation in discussions between Siegal and Verna constituted a governmental intrusion into the attorney-client relationship. An initial hearing was held on the motion in the district court on June 14, 1976. There is no indication in the record that Verna was present at that hearing. The government informed the district court that it had tentatively decided not to prosecute Visceglia, for whom the court had by then appointed separate counsel. The government also represented to the court that Fields had notified the court of the informer problem as soon as she learned of it. Although the government acknowledged that an opportunity to obtain attorney-client confidences had existed, it urged that no such information had actually been communicated in this case. The government asked the district court to hold an evidentiary hearing at which the absence of any communications could be established. That request raised the specter of further inroads into the attorney-client relationship in order to establish what confidential information Visceglia had obtained and whether that information had been communicated to the government. In order to obviate this difficulty, the court proposed to hold an in camera hearing, at which the government would be represented by an attorney who had no prior connection with the case and who would be prohibited from disclosing to the actual prosecutor anything which transpired in camera. An additional problem was whether Siegal's testimony would be necessary at such a hearing. The following colloquy discloses that the court was aware of this problem:
The Court: Do you think you would have to testify?
Mr. Siegal: I don't know. I will determine that after I examine Mr. Visceglia.
The Court: I would suggest that you ought not to testify and be counsel in the same proceeding.
Mr. Siegal: I understand that.
Transcript of June 14, 1976 hearing, at 13. However, the court did not inquire as to any duty of loyalty that Siegal may have owed to Visceglia. Moreover, the court did not ask Siegal whether he was representing Visceglia in the New York state court proceedings or elsewhere. The government was well aware that Siegal had continued to represent Visceglia in New York.
On August 4, 1976, the proposed in camera evidentiary hearing commenced. The record discloses that Verna was present at this hearing, still represented by Siegal. The court did not ask Verna whether, in light of a possible conflict of interest between him and Visceglia, he desired new legal representation. Nor did the court suggest to Verna that Siegal was a potential witness in the hearing which was about to commence. At the hearing the government produced the testimony of several DEA agents and of prosecutor Fields. Visceglia testified as a court witness. In addition, at the court's direction, the government produced the DEA case files on Verna and on co-defendant Levy. In its opinion denying the motion to dismiss the indictment, the district court summarized the testimony at the hearing as follows:
The testimony reveals some equivocation on the part of the Drug Enforcement Administration agents concerning the propriety of addressing inquiries to Visceglia about the present matter. The agents would have it that whatever Visceglia told them was volunteered by them. Visceglia's testimony was that the agents from time to time would make some oblique and general inquiries as to the intentions of Verna and Siegal. I am prepared to accept Visceglia's version that the agents did make some inquiry about the present matter; any other conclusion would be at war with natural expectations. It is most unlikely that Drug Enforcement Administration agents could associate ...