ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 79-00139-11)
Before Gibbons, Higginbotham and Sloviter, Circuit Judges.
Appellants, William Antonio Quinones and Candida Figueroa, appeal from a pretrial ruling that they could not have the same counsel because the district court was not satisfied that they "had made the "knowing and intelligent waiver' of their rights to effective assistance of counsel contemplated in United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978)." United States v. Quinones, D.C.Crim. Nos. 79-139-08 and 11 (E.D.Pa. Sept. 6, 1979).
Upon reading the record of the trial judge's patient and detailed two-day hearing, we will affirm his ruling.
William Antonio Quinones and Candida Figueroa were indicted, along with ten other defendants, on May 31, 1979 in a twelve-count indictment charging a conspiracy to engage in the unlawful traffic of heroin in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 952(a), and related substantive offenses.
Both Quinones and Figueroa are named in Count One, the conspiracy count of the indictment. Overt Act No. 15 states that from December 1976 to February 1977 defendants Quinones and Figueroa traveled to Philadelphia, Pennsylvania from Chicago, Illinois. Paragraph 4(h) on pages 4 and 5 of the indictment alleges, in part, that in order to further the objects of the conspiracy, defendant Quinones directed and supervised defendant Figueroa in the acceptance of requests for purchases of heroin, the arrangement of deliveries of heroin, the acceptance of payment for delivery of heroin, and the delivery of heroin.
On August 27, 1979, upon learning that defendants Quinones and Figueroa intended to be jointly represented by Charles B. Burr, II, the government filed a motion for a pretrial hearing, to determine if these two defendants would be denied their sixth amendment right to effective assistance of counsel if they continued with joint representation, and if so, to determine if a knowing and intelligent waiver of that right would be elicited.
On September 4 and 5, 1979, Judge Louis H. Pollak conducted a hearing pursuant to this court's decisions in United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978) (Rosenn, J.), and United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973) (Gibbons, J.).
Appellants argued at the hearing that they have a constitutional right to be represented jointly by counsel of their choice and to waive certain Sixth Amendment guarantees which might otherwise protect them. The government argues that if it acquiesced in allowing them to proceed with joint representation it would be fostering clearly reversible error which would result in needless and protracted litigation. On September 5, 1979, Judge Pollak ruled that a potential conflict of interest existed. He further ruled that he could not properly find a knowing and intelligent waiver of the defendants' constitutional right to effective representation.
On September 12, 1979, the appellants filed a notice of appeal from that ruling. Because of the appeal, the trial has been delayed, and the government has therefore filed a notice for summary affirmance.
In United States ex rel. Hart v. Davenport, this court ordered the issuance of a writ of habeas corpus, thereby invalidating a state court conviction where a single defense attorney, retained by all of the defendants' employers, had represented the ...