MARK ERICK WHEAT, PETITIONER V. UNITED STATES OF AMERICA No. 87-4 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States in Opposition TABLE OF CONTENTS Questions Presented Opinion below Jurisdiction Statement Argument Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1-14) is reported at 813 F.2d 1399. JURISDICTION The judgment of the court of appeals was entered on April 2, 1987. A petition for rehearing was denied on June 3, 1987 (Pet. App. B). The petition for a writ of certiorari was filed on June 29, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly declined to permit the substitution of counsel shortly before trial, where the new counsel already represented two other defendants charged with the same offenses and where one of the new counsel's clients was expected to testify for the government. 2. Whether petitioner was prejudiced by his absence from a conference three months before trial at which his attorney and the trial judge discussed the attorney's past alcohol and drug abuse. 3. Whether the government's offer of a "package deal" plea bargain to petitioner and a co-defendant violated petitioner's rights. STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted on one count of conspiring to possess more than 1,000 pounds of marijuana with intent to distribute it, in violation of 21 U.S.C. 846, and on five counts of possessing marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). /1/ He was sentenced to ten years' imprisonment and a $125,000 fine. The court of appeals affirmed (Pet. App. 1-14). 1. The evidence at trial, the sufficiency of which is not challenged here, showed that petitioner was part of a large-scale marijuana distribution scheme. From September 1981 through June 1984, petitioner received and stored some 12 tons of marijuana at his home. Most of the individual shipments exceeded one ton. He then distributed that marijuana to the conspirators' customers. Victor Vidal, who was a key government witness at petitioner's trial, was petitioner's immediate supplier. Vidal worked for, among others, co-defendant Juvenal Gomez-Barajas. /2/ On the Thursday before the scheduled Tuesday trial date, co-defendant Javier Bravo pleaded guilty to the conspiracy charge. Immediately after Bravo entered his plea, Eugene Iredale, Bravo's attorney, moved to substitute himself as petitioner's attorney in place of petitioner's retained lawyer, or in the alternative to add himself to petitioner's defense team (Pet. App. 5). Iredale asserted that Bravo did not object to Iredale's representing petitioner. The prosecutor expressed concern that Iredale already represented both Bravo and Gomez-Barajas, who had been acquitted on the conspiracy charge in a separate trial but had entered a guilty plea to other related charges. Gomez-Barajas and Bravo were both awaiting sentencing. The prosecutor pointed out that in the course of Gomez-Barajas's trial on the conspiracy charge, attorney Iredale had repeatedly referred to petitioner during his cross-examination of Vidal (Tr. 12). In addition, the prosecutor stated that although the matter was not settled, because Bravo had just pleaded guilty, there was a possibility that Bravo would be called as a government witness at trial (ibid.). The district court set a hearing on the substitution motion for the following Monday, the day before trial. At the hearing, the government objected to the proposed substitution of counsel. The prosecutor pointed out that over the weekend co-defendant Bravo had agreed to testify for the government at petitioner's trial and that he would provide evidence adverse to petitioner. The prosecutor also said that the government's position was that Gomez-Barajas was petitioner's ultimate supplier of marijuana, and that attorney Iredale's joint representation of both defendants would inevitably result in a serious conflict of interest on Iredale's part. Iredale represented to the court that all three defendants would waive any conflicts of interest arising from Iredale's joint representation (Tr. 13, 24, 43). The district court concluded, however, that there would be an irreconcilable conflict of interest facing any attorney who attempted simultaneously to represent Bravo, Gomez-Barajas, and petitioner (Tr. 37). The court therefore denied the motion, but granted a three-day continuance of the trial to petitioner's retained lawyer (Tr. 42). /3/ 2. a. The court of appeals affirmed (Pet. App. 1-14). First, it held that the district court did not abuse its discretion in declining to allow the substitution or addition of Iredale as joint counsel for petitioner (id. at 6-11). The court noted that, in the Ninth Circuit, the wrongful denial of a defendant's request to be represented by retained counsel of his choice constitutes reversible error without the need for a showing of prejudice (id. at 6). In this case, however, the court held that the denial of the substitution motion was not wrongful. The court explained that a defendant's right to counsel of his choice is "qualified by the need to avoid undermining public confidence in the integrity of the judicial system" (ibid.). In this case, the court of appeals stated, the district court "was put in the position of balancing * * * two concerns -- the right to representation free of conflicts of interest, and the right to representation of one's choice -- knowing that denial of either of these would result in an appeal assigning the ruling as reversible error" (id. at 7). The court of appeals concluded that in the circumstances of this case, the trial court "justifiably deferred to strong sixth amendment interests in guarding against potential conflicts that were likely to develop" (Pet. App. 7). The court noted that it was undisputed that Iredale had received privileged information from co-defendants Bravo and Gomez-Barajas that could have been misused in defending petitioner. Furthermore, the court observed, since Bravo and Gomez-Barajas had not yet been sentenced, Iredale "could have received privileged information from (petitioner) that could have been misused in later representations of Gomez-Barajas and Bravo." Id. at 8. The court of appeals also stressed that Iredale would not have been free to make arguments as to the relative culpability of the three defendants at sentencing or before the jury in petitioner's case. Since the interests of the three co-defendants were so plainly adverse, the court rejected petitioner's claim that the conflict of interest facing Iredale was speculative, and instead found that there was a "significant potential" for misuse of privileged information that precluded the proposed triple representation. Id. at 8-9. The court of appeals held that even though Iredale represented that all three of his clients would waive their right to conflict-free counsel, the district court was not compelled to permit Iredale to represent petitioner. The court observed that district court must have "some discretion" to override waivers of the right to conflict-free representation, both "because defendants may not be able to appreciate the significance of a waiver in light of potential conflicts" and to avoid "possible manipulation of testimony resulting from agreements between various clients, lawyers, and possible third persons not before the court" (Pet. App. 9-10). Since the potential for an actual conflict of interest in the course of Iredale's representation of petitioner was "very likely," the court of appeals held that the district court did not abuse its discretion in declining to allow substitution of Iredale as petitioner's attorney on the eve of trial (id. at 10-11). b. The court of appeals also rejected (Pet. App. 11-12) petitioner's claim that his absence from a private, off-the-record conference between the trial judge and petitioner's lawyer some three months before trial violated petitioner's rights under Fed. R. Crim. P. 43(a). At that ex parte conference, the judge questioned counsel about counsel's past problems with drugs and alcohol. The court of appeals noted (Pet. App. 11) that the conference was not one of the proceedings specified in Rule 43(a) at which the presence of the defendant is required. The court further noted that petitioner had failed to show even "a reasonable possibility of prejudice" stemming from his absence. Petitioner already knew of his attorney's previous substance abuse, and the court rejected as "merely speculative" petitioner's suggestion that he might have chosen different counsel out of fear that his original attorney had been "intimidated" by the trial judge. Id. at 12. The court of appeals did recommend, however, that if a similar situation were to arise in the future, the trial court should inform both the defendant and opposing counsel and create a record of the conference (ibid.). c. Finally, the court rejected (Pet. App. 12-14) petitioner's claim that the government violated his rights by offering him a "package deal" plea bargain, whereby the offer of a plea bargain to petitioner was contingent on his one remaining co-defendant's also agreeing to plead guilty. Noting that petitioner did not in fact plead guilty, and thus could not claim that he was coerced into doing so, the court found it impossible to see how "his right to a determination of individual guilt" was in any way impaired by the offer (id. at 13). The court therefore declined to countenance what "amounts to a request for a declaratory judgment that all package-deal plea bargains are illegal" (ibid.). ARGUMENT 1. Petitioner contends (Pet. 12-23) that the court of appeals erred in upholding the disqualification of his counsel of choice, in spite of a representation by all three co-defendants that they would waive any potential or actual conflicts of interest arising out of counsel's joint representation. In United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir. 1982), rev'd on other grounds, 465 U.S. 259 (1984), the Third Circuit held that a trial court may ovrride the preference of multiple defendants for representation by a single lawyer, despite a knowing waiver of conflicts by all defendants, where it is "very likely" that an actual conflict of interest will develop. We acquiesced in the petition for a writ of certiorari in that case because of a conflict between the decision of the Third Circuit and decisions of the Second and Fifth Circuits holding that co-defendants have a constitutional right to be jointly represented by counsel, despite any conflicts of interest that may arise. In its opinion in Flanagan, this Court did not reach the merits of the joint representation question. Instead, the Court held that an order disqualifying counsel could not be appealed before trial. As a consequence, the conflict among the circuits on the merits of the joint representation issue was not resolved. In light of more recent developments, however, we believe that the conflict among the circuits on this issue is not as sharp as it appeared to be at the time of Flanagan. In any event, we submit that the unusual features of this case render it an unsuitable vehicle for review of the joint representation question. At the time of Flanagan, it appeared that the Second and Fifth Circuits had endorsed a rule flatly forbidding a district court from disqualifying counsel from joint representation if the defendants were all willing to waive their right to conflict-free counsel. See United States v. Curcio, 680 F.2d 881, 885-888 & n.3 (2d Cir. 1982); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). Subsequent decisions from the Second Circuit, the Fifth Circuit, and the Eleventh Circuit suggest that the principles of Garcia and Curcio are not as inflexible as they may have seemed, and that in making a disqualification decision, a district court may weigh not only the defendant's interest in representation by counsel of his choice, but other interests as well, including the interest of the government as a party to the lawsuit and the interest of the public in the proper administration of justice. In a recent decision the en banc Second Circuit stated that "(w)hile involuntary disqualification of counsel may prevent an accused from retaining counsel of his choice, courts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accused's constitutional right" (In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 250-251, cert. denied, 475 U.S. 1108 (1986)); see also United States v. James, 708 F.2d 40, 45 (2d Cir. 1983) (disqualification inquiry requires weighing competing interests "of the government, the witness, and the public" against the defendant's desire to be represented by a particular counsel). The Fifth Circuit has endorsed a similar balancing test, seemingly rejecting the view that a court has no authority to disqualify counsel if the defendant or defendants have waived their right to conflict-free counsel. See United States v. Snyder, 707 F.2d 139, 143 (1983); United States v. Salinas, 618 F.2d 1092, 1093, cert. denied, 449 U.S. 961 (1980). Although those cases involved attorneys who were either the target of a related criminal investigation or an indicted co-conspirator, the court in both cases noted that the right of a defendant in a criminal case to retain an attorney of his choice "does not outweigh the countervailing public interest in the fair and orderly administration of justice" (Salinas, 618 F.2d at 1093; Snyder, 707 F.2d at 143). In particular, the court in Snyder agreed with the district court in that case that in spite of the decision in Garcia, the defendant's waiver of his right to conflict-free counsel "will not eliminate (the district) court's responsibility to balance the right to one's own counsel with the court's interest in preserving the integrity and the fair administration of justice" (Snyder, 707 F.2d at 143). The Eleventh Circuit, which follows the former Fifth Circuit's decision in Garcia, also has not read Garcia as establishing a per se ruling requiring a district court to accept potentially conflict-plagued representation any time it is accompanied by the affected parties' waivers of the right to conflict-free counsel. See In re Paradyne Corp., 803 F.2d 604, 611 n.16 (1986) ("The right to counsel of one's choice is not absolute. The right does not override the broader societal interests in the effective administration of justice * * * or in the maintenance of 'public confidence in the integrity of our legal system.'"); United States v. Padilla-Martinez, 762 F.2d 942, 946, cert. denied, 474 U.S. 952 (1985); United States v. Hobson, 672 F.2d 825, 828, cert. denied, 459 U.S. 906 (1982) (counsel may be disqualified despite waiver where "necessary to further some overriding social or ethical interest"). Other circuits, including the Ninth Circuit, have adopted a generally similar approach. Those courts have emphasized the importance of the defendant's right to counsel of his choice, while preserving in the district courts the discretion to disqualify counsel in compelling circumstances, even in the face of a waiver. See United States v. Washington, 797 F.2d 1461, 1465 (9th Cir. 1986); United States v. O'Malley, 786 F.2d 786, 792 (7th Cir. 1986); United States v. Reese, 699 F.2d 803, 805 (6th Cir. 1983); United States v. Agosto, 675 F.2d 965, 972 (8th Cir.), cert. denied, 459 U.S. 834 (1982). As was evidenced in Flanagan, the Third Circuit has permitted district courts broader leeway than other circuits to override defendants' waivers of their right to conflict-free counsel. See also United States v. Provenzano, 620 F.2d 985, 1004-1005, cert. denied, 449 U.S. 899 (1980); United States v. Dolan, 570 F.2d 1177, 1183 (1978). But the Ninth Circuit in this case did not adopt the Third Circuit's liberal standard on disqualification. This case therefore does not squarely present the conflict between the Third Circuit's liberal view of disqualification in joint representation cases and the position of courts that have rejected that view. Moreover, because of several unusual features of this case, it is not clear that this case would have been resolved differently in any other circuit. First, petitioner's interest in being represented by Iredale was entitled to less weight in the circumstances of this case than it might be accorded in other settings. Petitioner did not express an interest in having Iredale as his attorney until after Bravo pleaded guilty, which occurred shortly before trial. At that time petitioner was already represented by the attorney of his choice, and he gave no indication that he was dissatisfied with that attorney's performance. As petitioner's attorney explained to the district court, petitioner was not complaining about his retained counsel's performance, he simply wished to add Iredale to "his defense team" (Tr. 52). Second, as the court of appeals noted (Pet. App. 9), the substitution request was not made until shortly before the trial. All courts recognize that a district court has discretion to refuse to accept a substitution of counsel, in spite of a waiver from the defendant, when the request for substitution is made at the eleventh hour. See United States v. Mastroianni, 749 F.2d 900, 913-914 (1st Cir. 1984); United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980). In this case, the hearing on the motion had to be held on an expedited basis the day before trial, and in light of the short time period allotted to resolve the matter, it is open to question whether valid waivers could have been obtained from all three defendants. In order to obtain waivers that would be secure from later challenge, for example, it might have been necessary to ensure that both Bravo and Gomez-Barajas had separate representation for purposes of the substitution hearing, and it would have been necessary for the court to conduct a detailed inquiry in person, rather than simply accepting Iredale's representation that they were willing to waive any objection to his representation of petitioner. The shortness of time before trial made such procedures impractical, if not impossible. Third, the circumstances of the substitution motion in this case raised a particularly serious risk of undermining public confidence in the integrity of the legal system. Petitioner moved to have attorney Iredale represent him immediately after one of the co-defendants represented by Iredale pleaded guilty, and at a time when it appeared likely that the co-defendant might testify for the government. The public could well view that arrangement with concern for two reasons. On the one hand, petitioner could be perceived as trying to influence the witness's testimony (e.g., to keep him from turning on petitioner at trial) by hiring that witness's attorney as his own. Alternatively, the selection of Bravo's attorney could be viewed as an effort on petitioner's part to obtain the advantage of confidential information revealed by Bravo to his attorney before Bravo testified against petitioner. The risk of such adverse perception was increased in this case by the fact that Iredale represented not only Bravo, but Gomez-Barajas as well. The public could conclude that by retaining Iredale, petitioner was seeking to ensure that Gomez-Barajas, petitioner's alleged marijuana supplier, would not become a government witness and testify against petitioner at trial. Thus, quite apart from the adverse effects of the potential conflict of interest on the three defendants represented by Iredale, the negative impact of Iredale's representation on the public perception of the fairness of the proceedings was sufficient to justify the district court's action in this case. In sum, we acknowledge that there is a difference in approach among the circuits on this issue. And we agree that that difference might call for review by this Court in an appropriate case. But because this case arose from a circuit that gives district courts only limited authority to disqualify defense counsel over a defendant's waiver, and because the unusual facts of this case make a particularly compelling case for disqualification, review by this Court in this case is not warranted. /4/ 2. Petitioner further argues (Pet. 23-28) that his absence from an ex parte conference between his lawyer and the trial judge several months before trial violated Fed. R. Crim. P. 43(a) and resulted in a conflict of interest that should have been disclosed to petitioner. Neither of these contentions merits review. Rule 43(a) provides that "(t)he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule." As the court of appeals correctly noted (Pet. App. 11), the district court's ex parte conference with petitioner's counsel did not fit into any of these categories, and petitioner's presence at the conference was not required. The better practice would have been to advise petitioner of the conference, but petitioner suffered no prejudice from the trial judge's failure to do so. Petitioner admitted that he already knew of his attorney's past substance abuse, knew that he was a member of Alcoholics Anonymous, and knew that he might also have been a member of Narcotics Anonymous (R. 107-108). /5/ The court of appeals properly rejected as "merely speculat(ive)" petitioner's assertion that his counsel might have been intimidated by the trial court (Pet. App. 12). Petitioner, as the court noted, "has alleged no facts indicating prejudice from an intimidated, less-than-diligent defense" (ibid.). Thus, even if the trial court did err in not informing petitioner of the conference, the error was harmless, as the court of appeals concluded (ibid.). In any event, the fact-bound question of whether the error was harmless in the circumstances of this case does not warrant review, especially in light of the court of appeals' admonition that if a similar situation should arise in the future, it should be handled differently (see page 5, supra). 3. Finally, petitioner claims (Pet. 28-31) that the "package deal" plea bargain offered to petitioner and his co-defendant was impermissible. Petitioner's complaint appears to be that because his co-defendant rejected the plea offer, he was prevented from striking an advantageous bargain with the government. /6/ It is axiomatic, however, that "there is no constitutional right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). See Santobello v. New York, 404 U.S. 257, 262 (1971). As the court below recognized (Pet. App. 14), since petitioner was not coerced into pleading guilty his right to an individual determination of guilt was not infringed. And since he has no right to a plea bargain, he has no grounds for complaint that the offer he would have liked to accept was never made to him individually. Because petitioner has suffered no deprivation of his rights, the general propriety of "package deal" plea bargains is not presented in this case. Only a defendant who complained that he had been compelled to plead guilty because of the pressure from co-defendants who were parties to the "package deal" could complain about the "package deal" offer. In any event, the desire to conserve judicial and prosecutorial resources by avoiding a trial altogether, which is the motive force behind such an offer, is perfectly legitimate, and the trial court can ensure the voluntariness of any resulting pleas by a careful adherence to the requirements of Rule 11(d). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General LOUIS M. FISCHER Attorney AUGUST 1987 /1/ Petitioner was acquitted on one substantive count, as well as on a charge of conspiring to import marijuana. /2/ The factual summary is based on the government's brief in the court of appeals. /3/ Petitioner's retained attorney pointed out to the court that petitioner had not complained about the quality of his representation. Rather, counsel had himself advised his client to make the substitution, because he thought it was advisable to have Iredale's assistance (Tr. 52). /4/ Petitioner suggests (Pet. 18, 22-23) that the court of appeals improperly adopted an "abuse of discretion" standard in reviewing the district court's order denying substitution of counsel. The court's opinion makes clear that it was referring to the district court's sphere of discretion on this issue and was not suggesting that an order disqualifying defense counsel would almost invariably be upheld. Rather, the term was used to indicate that, even where the affected parties have waived their right to conflict-free counsel, a district court retains some authority to disqualify counsel, if the court determines in its discretion that the multiple representations should not be permitted. In that sense, the reference to "abuse of discretion" is simply another way of stating that the defendant's Sixth Amendment right does not totally foreclose a district court from ordering disqualification in such cases. /5/ "R." refers to the record on appeal in the court o of appeals. /6/ Petitioner does not suggest what relief he seeks, but presumably he would like to have his conviction vacated and the prosecutor ordered to offer petitioner individually the same plea bargain that was offered only as part of the package deal.