The opinion of the court was delivered by: BRODERICK
The defendant was indicted under two counts of a five count indictment in February of 1976 in the Eastern District of Pennsylvania. She was twenty-one (21) years of age at that time. In Count I, the defendant was charged with conspiracy to import cocaine, in violation of 21 U.S.C.A. § 963. Count II charged the defendant with importing cocaine, in violation of 21 U.S.C.A. § 952. Ten other people, including Anthony Laura, the defendant's husband, were named as defendants in the indictment. The defendant's husband was charged under all five counts of the indictment.
This case was originally assigned to another judge in this district. All of the defendants initially pleaded not guilty.
Both the defendant and her husband were represented by Robert Kalina, Esq. After a pretrial conference in April of 1976, the trial judge entered an order directing the defendant and her husband to obtain separate counsel on the ground that there was an apparent conflict of interest. In response to the trial judge's order, both defendants filed separate affidavits in which each stated that he and she desired to be represented by Mr. Kalina.
At a hearing on the pretrial motions on April 27, 1976, both the defendant and her husband stated on the record that they both desired to be represented by Mr. Kalina and waived their right to raise the conflict of interest issue. On the basis of their affidavits and their statements made at the hearing, the Court permitted Mr. Kalina to continue his representation of the defendant and her husband. After the hearing, the Government and the defendants entered into a plea agreement. Pursuant to the agreement, all of the defendants changed their plea from not guilty to guilty before the same trial judge in October, 1976. All of the defendants were sentenced pursuant to the plea agreement on June 20, 1977. The defendant received a sentence of probation for five years and her husband received a sentence of two years imprisonment with a special parole term of three years.
In August of 1978, while on probation, the defendant was convicted in the United States District Court for the Southern District of Florida for possession and distribution of cocaine, and in September, 1978 received a sentence of four years imprisonment with a special parole term of three years. Subsequent to her conviction and sentencing in Florida, a petition to revoke her probation was filed in this court with the trial judge. Prior to the probation revocation hearing, which was scheduled for December 28, 1978, the defendant, who was then being represented by another attorney, filed a motion to withdraw her guilty plea and vacate sentence. The trial judge ordered her to retain local counsel for this motion since her counsel was not a member of the bar of this court. She retained James Rothstein, Esq., a member of the bar of this court, as local counsel. The defendant then moved to have this motion transferred to another judge on the ground that there was a conflict of interest between the trial judge and her local counsel. The trial judge ordered Mr. Rothstein to withdraw from the case, and directed that her attorney, Mr. Casteleiro, proceed with the hearing on the motion without local counsel. After the hearing, the trial judge denied the defendant's motion to withdraw her guilty plea and vacate sentence, found her in violation of probation, revoked her probation, and sentenced her to a term of imprisonment of two years with a special parole term of three years.
We find that on the present record the dismissal of James Rothstein may have violated Laura's sixth amendment right to counsel and that the dismissal may have tainted the proceedings that followed. We will therefore remand to the district court without reaching Laura's claim as to the validity of her original 1976 conviction. Id. at 55.
The Laura Court also stated that on remand:
the district court may either grant the defendant's motion to transfer without considering the conflict of interest issue; or it may make findings on the question and act in accord with its findings.
Of course, if the matter is transferred to another judge, the sentence on revocation of probation must be vacated, so that the transferee judge may decide all of the issues ab initio. Id. at 58-59.
The trial judge vacated the sentence on revocation of probation and initiated steps to have the matter transferred. The case is now on our docket.
The defendant was in Florida when the trial judge entered his order that she and her husband should retain separate counsel because of an apparent conflict of interest. Mr. Kalina telephoned her and told her of the trial judge's order. He stated that he was going to prepare affidavits for her and her husband setting forth their respective desires to have him represent both of them and waiving their rights to separate counsel. Mr. Kalina mailed an affidavit to her, which she signed, had notarized, and returned to Mr. Kalina. The affidavit, which was filed with the court, reads as follows:
PRISCILLA LAURA, being duly sworn, deposes and says:
I am the defendant in the above captioned action. I am married to Anthony Laura, a codefendant in this case.
I have retained ROBERT I. KALINA, ESQ., 575 Lexington Avenue, New York, New York as my attorney in this matter. He is the attorney of my choice. My husband has retained him, and we have discussed this case and reviewed it. I perceive no conflict of interest in Mr. Kalina representing both myself and Anthony Laura and I desire to have Mr. Kalina continue to represent me while representing my husband in this matter. I hereby waive any claim to raise the issue at any stage of the proceeding of conflict of interest or lack of proper counsel.
Mr. Kalina has informed me that the Court stated to him at a conference on April 13, 1976 that either myself or Anthony Laura should obtain other counsel, and that Mr. Kalina could not represent both of us. I respectfully submit that this deprives me of my Sixth Amendment right to counsel of my choice, an attorney, who I believe, under all the circumstances, will be most effective for me and will best represent my interests. Any other attorney would not be counsel of my choice but would be counsel forced upon me by order of the Court. I can afford to retain other counsel, but I believe my interests are being best protected by Mr. Kalina.
I have been informed that this issue has not been raised by the Court initially, but by the Assistant United States Attorney. I know of no substantive reasons cited for the application other than that the prosecution might give discovery to one defendant that it might not give to another and that plea bargaining with one may someway effect (sic) the other. I do not wish to entertain plea bargaining and wish to go to trial in this matter if the Court decides the motions to dismiss the indictment herein adversely to me. Additionally, the Court must be aware that whatever discovery is given to the defense in this case will be shared between the defendants. To think otherwise, is an exercise in naivety (sic). My defense is being burdened for some purpose I cannot perceive.
As I understand it, there is a privileged relationship between my husband and myself that would preclude the last vestige of conflict of interest.
Notary Public State of Florida ...