Appeal from judgment in conviction for conspiracy to distribute cocaine entered in United States District Court for the District of Connecticut, Ellen Bree Burns, Judge. Held, defense counsel's interview of codefendant as prospective witness does not put counsel's credibility at issue when third person is present; district court limited cross-examination of principal government witness without sufficient factual findings as to existence of attorney-client privilege; appropriate sanction for defense counsel's unauthorized communication with codefendant is discipline, not exclusion of testimony. Remanded.
Oakes, Newman, and Miner, Circuit Judges.
Trevor Dennis appeals his conviction for conspiracy to distribute cocaine entered in the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge. He argues that the trial judge improperly limited the cross-examination of one of the two principal government witnesses as to the substance of a pretrial conversation he had had with Dennis's attorney.*fn1 Because we think the cross-examination should not have been so limited, we remand for further findings and for the possible grant of a new trial.
This case began when a South Carolina state trooper stopped a speeding car on Interstate Highway 95 in Sumter County, South Carolina. Carlston Pilgrim, a national of Barbados, was the driver of the car and James Brown, a Jamaican-born resident of Hartford, Connecticut, the sole passenger. The state trooper determined that the car had been rented in Connecticut, that neither Pilgrim nor Brown was listed on the rental agreement, and that the odometer had only nine miles on it. He asked to search the car, and after Brown and Pilgrim consented, discovered packages of marijuana and cocaine in the car's trunk. Brown told an investigating Drug Enforcement Administration ("DEA") agent that the drugs were to be delivered to "Mackerel," who was later identified as Trevor Dennis. Brown recounted that he had been planning a trip to Florida to bring clothes, books, and supplies to a relative who would take them to his daughter in Jamaica. Shortly before he left Hartford for Florida, he went to buy a record at the Aquarius Record Shop, a store operated by Dennis. After making his purchase, he asked Dennis for directions to Florida. Dennis replied that Brown should come back the next day and he would have directions for him. Brown said that when he returned the following evening, Dennis offered him $700 to pick up a package for him in Florida and bring it to the Aquarius Record Shop. According to Brown, Dennis told him to pick up the package from a "tall black dude" in a red Ford Fairmont at a gas station parking lot in Miami on March 21, 1987. Pursuant to Dennis's instructions, Brown said he met an unidentified man at a Miami gas station who gave him the cocaine and marijuana. Brown told the DEA agent that when he returned to Hartford he was to call Dennis at the record store to arrange final delivery of the packages.
In return for dismissal of the state charges in South Carolina (which Brown and Pilgrim were told involved mandatory twenty-five-year prison terms), they agreed to deliver the drugs to "Mackerel," a/k/a Dennis. The DEA agent flew with Brown and Pilgrim to Hartford. Brown called the record shop and spoke briefly with Dennis. Connecticut DEA agents, concerned that delivery at the Aquarius Record Shop could not be adequately controlled, asked Brown to arrange for delivery of the drugs to Dennis in the parking lot of Valle's Steak House, a Hartford restaurant. Brown called a number that he said was the Aquarius Record Shop. A few minutes later Byron Edwards left the shop and went to Valle's, where DEA agents observed Brown give him a bag containing marijuana and phony cocaine. When confronted by the DEA agents, Edwards admitted that Dennis had sent him to meet Brown. The agents asked Edwards to deliver the narcotics to Dennis, but he refused, saying that Dennis "didn't send me for any drugs and I am not going to set him up for you."
Brown, Pilgrim, and Dennis were charged with conspiracy with intent to distribute cocaine in violation of 21 U.S.C. § 846 (1982). Brown pleaded guilty but was not sentenced until after Dennis's trial.
On the day before trial, Brown told DEA agents that he had lied when he had said that the man at the Miami gas station had given him marijuana to deliver to Mackerel. He admitted that in fact the marijuana was his. He told the agents and testified at trial that after dropping off his daughter's school supplies at a relative's home in Miami, he and Pilgrim drove to the home of Reginald Hudson, a childhood friend, who spontaneously gave them on credit fifteen pounds of marijuana, worth about $13,500 wholesale, to sell in Hartford. Brown admitted that he had initially told police that the marijuana as well as the cocaine was destined for Dennis in an effort to avoid criminal charges. He added that he had also encouraged Pilgrim to lie about the marijuana. On the morning trial was to begin, the Government informed defense counsel that Brown had lied about the marijuana. Defense counsel requested a continuance in order to investigate Brown's new story and interview Hudson. The court denied that request.
Brown's trial testimony was consistent with his most recent story to DEA agents. He repeated that the cocaine was for Dennis but that the marijuana was his. He stated that he had pled guilty to conspiracy to distribute cocaine and had not yet been sentenced. He said he understood that possible penalties included fifteen years' imprisonment and a $125,000 fine, and that, since he was not a United States citizen, he could be deported. Brown added that in return for his cooperation with DEA agents and his testimony, he was told that the charges in South Carolina would be dropped and that he would not be prosecuted for marijuana possession.
After the trial had begun, the Government dropped all charges against Pilgrim. He testified that he did not personally know Dennis, and admitted that he had lied to the police until Brown had told him to change his story.
Dennis's defense at trial was simply that Brown and Pilgrim had falsely implicated him in order to protect themselves. The cross-examination at issue in this appeal involved an attempt by William Gerace, Dennis's attorney, to question Pilgrim about a conversation Gerace had had with him at his office. Gerace asked Pilgrim whether Pilgrim had made an appointment with him. Pilgrim replied that he had not, but that his parents had. Gerace asked whether Pilgrim had told Gerace a story during the meeting, and Pilgrim said he had. The prosecutor immediately objected and a long colloquy at the bench followed. The prosecutor argued that defense counsel Gerace was "putting his own credibility at issue" and that "to the extent [Pilgrim] may have consulted Mr. Gerace about any legal advice or discussed this case with him, I think that would be privileged." Gerace replied that although Pilgrim had asked Gerace to represent him, he, Gerace, terminated the discussion when he realized that Dennis, whom he already represented, and Pilgrim were defendants in the same case. He said he instructed Pilgrim
very clearly I could not be his lawyer, in fact, that I would not be his lawyer, that represented Mr. Dennis and now that that was terminated, if he chose to tell me what happened, he would be telling me as a witness and I would cross-examine him on it, and his father was there and his father agreed. They both told me the whole story. . . .
Pilgrim's court-appointed counsel, Federal Public Defender Thomas Dennis, agreed with the prosecutor that Gerace was "heading . . . towards a matter that's within the attorney/client ...