The opinion of the court was delivered by: FOGEL
Defendant's motion to dismiss the indictment on the grounds of an alleged violation of her Fifth Amendment protection against double jeopardy was denied by Order dated March 21, 1978. This memorandum sets forth the basis for that denial.
The defendant, Rethamae McKoy, was indicted October 5, 1977, on three counts charging: possession of stolen mail, 18 U.S.C. § 1708; aiding and abetting forgery of a United States Treasury check, 18 U.S.C. §§ 495 and 2(a); and aiding and abetting uttering of a forged United States Treasury check, 18 U.S.C. §§ 495 and 2(a). All of the three counts of the indictment find a common thread in the following allegations: that on or about October 21, 1976, Mrs. McKoy possessed a United States Treasury check which was stolen from the mails; that one Zelda Crabbe forged the signature of the payee on the check; and then Mrs. McKoy had another unnamed person negotiate the check at a store.
At her arraignment on October 11, 1977, Mrs. McKoy pled "not guilty" to all counts.
Defendant filed three pretrial motions: (1) to dismiss the indictment; (2) to suppress oral statements; and (3) to suppress photographic identification. A hearing was held in open court on January 24, 1978, in order to adduce testimony and hear argument on these motions.
At this hearing, Evan Jenkins, a Secret Service Special Agent, testified as to his investigation. Jenkins stated that Grigori Piatigorski told him that the defendant was present in his store when the check was negotiated by another woman.
Upon learning that Louis Lipschitz, Esquire, counsel for defendant, had spoken with Piatigorski that very morning, and that Piatigorski had told Mr. Lipschitz that the defendant was not in the store when the check was cashed, the Court immediately raised the issue of the propriety of Mr. Lipschitz continuing as counsel in a situation in which he could be a material and valuable witness for his client.
As to the motion to suppress photographic identification, Mr. Lipschitz said that his testimony would directly contradict Mr. Piatigorsky's expected testimony. Mr. Lipschitz stated that his testimony would only be needed for that motion. We stated that other counsel should be obtained in connection with the motion to suppress photographic identification. Mr. Lipschitz agreed and asked the Court to set another date for the hearing.
We also said that if the motion to suppress was denied, then Mr. Lipschitz would have a duty to bring forward his testimony at trial. The Court further stated that if Mr. Lipschitz testified at the trial, then he would not be permitted to remain as counsel.
After hearing testimony and argument, the Court granted the motion to suppress oral statements and denied the motion to dismiss the indictment. The hearing on the remaining motion was rescheduled in order to give Mr. Lipschitz time to discuss with Mrs. McKoy the issue of whether he would testify as a witness or continue as her attorney.
We stated that Mr. Lipschitz had a duty to his client to decide if his value as a witness was important both at the pretrial hearing, and at the trial itself; if so he was told that he must obtain other counsel. The Court informed Mr. Lipschitz, that, in light of this advance notice of the Court's position, he would not be allowed to plead surprise at the trial if this issue was again raised.
Mr. Lipschitz elected to refrain from testifying, and, at the February 17, 1978 hearing, he acted as counsel for Mrs. McKoy. Additional testimony on the motion was heard on February 21, 1978, and Mr. Lipschitz again did not testify. The motion to suppress the photographic identification was then denied by the Court.
At the trial before a jury, Mr. Piatigorsky positively identified the defendant as the person who brought a girl with the United States Treasury check into his store on October 21, 1976. He stated that Mrs. McKoy asked him to accept the check since it was given to the girl, her daughter, by the girl's grandfather.
Piatigorsky stated that Mrs. McKoy returned to his store after the bank had notified him that the check had been forged. Mrs. McKoy told him to not worry, in that she would return the money to him, if there were a "misunderstanding."
Piatigorsky further stated that Mrs. McKoy returned to his store, at a later date, and told him that she had not been there when the check was cashed. Mrs. McKoy testified that she never saw or possessed the check in question and was not in the store when it was cashed.
Upon further questioning on direct examination, Mrs. McKoy was asked about recent visits made to Piatigorsky's store. She stated that she went to the store with a girlfriend named Tammy Tamara. She did not state that Mr. Lipschitz was with her in the store. Counsel for the defendant asked for a sidebar conference with the Court at this point.
Mr. Lipschitz indicated that if Mrs. McKoy told the truth then he would not be able to continue as her counsel in the case. After a lengthy sidebar conference, the Court decided to continue with the testimony and speak with the defendant during the recess.
Mrs. McKoy testified that after her conversation with Piatigorsky she went to the courthouse with Tammy Tamara and Mr. Lipschitz. Although she did not state that Mr. Lipschitz was in the ...