The opinion of the court was delivered by: ZIEGLER
Marie Bowers was indicted by a grand jury for alleged violation of 29 U.S.C. §§ 439(c) and 501(c), and 18 U.S.C. § 2. The indictment was filed on September 25, 1978, and an arraignment was held on December 8, 1978. Charles F. Bowers, Jr., appeared as counsel for defendant
until he moved to withdraw due to a "potential conflict of interest" inasmuch as he would be required to be a witness at trial. That motion was granted on January 4, 1979. H. David Rothman, Esquire, entered an appearance on December 18, 1978, and filed a written waiver of defendant's right to a speedy trial pending her cooperation with the United States. The record was sealed on joint-motion of the parties due to the ongoing investigations.
On October 9, 1979, Attorney Rothman filed a motion to dismiss the indictment alleging ineffective assistance of counsel in that defendant was represented prior to indictment by counsel with a "clear conflict of interest" because he was acting on behalf of a third person, and further that Attorney Charles Bowers had failed to seek immunity from prosecution for defendant because counsel "was and is otherwise involved in obstructing justice in this case." Attorney Rothman seeks dismissal of the charges on the thesis that his client would not have been indicted, if Miss Bowers had been effectively represented prior to the initiation of adversary proceedings. We are urged to order dismissal to afford defendant the benefit of an offer allegedly made to her lawyer prior to indictment but never conveyed to the client.
On April 8, 1981, defendant entered a conditional plea of guilty to the first count thereby preserving the contentions raised in her motion to dismiss the indictment.
If the motion is granted, the indictment must be dismissed. If the motion is denied, the court has been urged to approve a plea bargain that limits the judgment of sentence to an unspecified period of probation based on defendant's cooperation with the government. On April 8, 1981, the court reserved decision on whether to accept the guilty plea pending receipt of evidence that such a sentence is fair and just, and consistent with the interests of justice. Of course, if the indictment is dismissed we need not reach that question.
The first question presented is whether the United States tendered an offer of immunity to counsel for Marie Bowers prior to her indictment. Defendant denies that counsel conveyed any offer to her. If the offer was made, we must examine its terms and conditions, and then decide whether defendant would have accepted those terms, assuming that the proposal had been conveyed to her. This inquiry is important because if defendant would have been unwilling to accept the terms and conditions prior to indictment, her post-indictment cooperation may be relevant to a just sentence but it may not serve as a predicate for dismissal.
III. The Offer of Immunity
At the hearing on June 22, 1981, Thomas E. Crawford, Esquire, counsel for the United States when the indictment was returned, testified that he advised Attorney Charles Bowers that Marie Bowers would be granted "pocket" or informal immunity from prosecution in return for her cooperation with the government.
The offer was conveyed in the following language: "Does your client desire to be a witness or a defendant?" Cooperation included assistance in various ongoing investigations and defendant's willingness to testify at the trial of any person who was indicted based on evidence supplied by her. When counsel failed to respond on two occasions on or about March 2, 1978, the grand jury returned a two-count indictment against defendant.
The evidence of the offer is clear. The language is susceptible of one interpretation only, and the United States presented no evidence to the contrary. We have no reason to doubt the testimony of Mr. Crawford and, therefore, this court finds that the United States tendered an offer of immunity to counsel for Marie Bowers prior to the initiation of adversary proceedings.
This finding leads to the question of whether Attorney Bowers had a duty to convey the offer to his client. Relying on the transcript of the telephone conversation of April 24, 1979, which was subsequent to her indictment, the government seems to suggest that counsel had no duty to convey the offer because ...