APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Criminal No. 76-00082-10
Before Gibbons, Hunter, Circuit Judges and Stern,*fn* District Judge.
1. The appellant, Priscilla Dominguez Laura, pled guilty in October 1976 to charges of importing and conspiring to import cocaine in violation of 21 U.S.C. §§ 952, 963.*fn1 Appellant was sentenced by the district court for the Eastern District of Pennsylvania in June 1977 to five years probation on each of two counts of the indictment, to run concurrently. Following an unrelated 1978 conviction in a federal district court in Florida for possession and distribution of cocaine, the Government moved the district court for the Eastern District of Pennsylvania to vacate appellant's probation. At that time, appellant moved to withdraw her 1976 guilty plea and to vacate the 1977 sentence.
2. This appeal raises the following issues:
a) Was appellant deprived of her sixth amendment right to the effective assistance of counsel because of the joint representation of herself and her co-defendant husband by the same attorney?
b) Did the lower court err in finding that appellant waived her right to separate representation?
c) Did the lower court err in finding that the trial court's acceptance of appellant's guilty plea was not prejudicial error?
3. We have reached the following conclusions:
a) The actual conflict of interest which resulted from the joint representation of appellant and her co-defendant husband did not adversely affect the representation afforded her. Thus, she was not deprived of her right to effective assistance of counsel.
b) The lower court did not err in finding that appellant executed a valid waiver of her right to separate counsel. The record supports the lower court's conclusion that the trial court conducted a proper inquiry into the joint representation of appellant and her husband.
c) Because appellant failed to allege or prove any prejudice, the lower court did not err in finding that the trial court's alleged technical non-compliance with Fed.R.Crim.P. 11 in accepting appellant's guilty plea did not justify relief.
4. Therefore, we affirm the judgment of the district court in all respects.
5. Appellant Laura and her husband, Anthony Laura, were among twelve defendants charged in February 1976 with participating in a cocaine-importing scheme. Appellant was charged under two counts of the indictment with violating 21 U.S.C. §§ 952, 963; her husband was charged under all five counts of the indictment, which additionally charged violations of 21 U.S.C. §§ 841, 846.*fn2
6. The Lauras retained the same attorney to represent them in the proceedings. On April 13, 1976, the district court, Judge Daniel H. Huyett, III (the "trial court"), ordered that all defendants retain separate counsel. The Lauras' attorney, Robert I. Kalina, moved to vacate this order. In support of this motion, Kalina submitted an affidavit from himself and one from each of his clients, the appellant and her husband. The latter two affidavits were identical except that references to "my husband" in appellant's affidavit were replaced with "my wife" in appellant's husband's affidavit. The affidavit from appellant, which was prepared by Kalina and sent to appellant for her signature, expressed appellant's belief that she could best be represented by Kalina even though he also represented her husband. At one point the affidavit states that appellant "perceive(s) no conflict of interest." Appendix at 104. Noting that the issue of conflict of interest had been raised not by the court, but by application of the Government, the affidavit continues:
I know of no substantive reason 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 adverse (sic) 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. 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.
7. On April 27, 1976, Judge Huyett conducted an inquiry on the issue of Kalina's representation of both appellant and her husband. Judge Huyett requested that Kalina
step forward with your clients and ... have each of them make a statement on the record that will roughly parallel the information in the affidavit so there is no question that they understand their rights, that they waive them, that they wish you as their attorney, (and) believe there is no conflict of interest.
Appendix at 8-9. The court did not address the appellant directly. Kalina undertook the examination of appellant:
Q. You have retained me to represent you in this matter?
Q. Am I the attorney of your choice?
Q. Are you aware that Anthony Laura retained me?
Q. We have discussed this case and reviewed the facts of this case?
Q. Do you perceive a conflict of interests in my representing you both, you and ...