Mariano Salomon v. J. Edwin Lavallee, Superintendent, Clinton Correctional Facility

MANSFIELD, Circuit Judge

(concurring in part and dissenting in part):

I concur in Judge Feinberg’s opinion except for its remand of the case to the district court to permit the State to assume the burden, pursuant to our decision in United States v. Carrigan, 543 F.2d 1053, 1056 (2d Cir. 1976), cited with approval in Kaplan v. Bombard, 573 F.2d 708, 714 n.7 (2d Cir. 1978), of proving that petitioner was not prejudiced by the joint representation of himself and Colon. In my view the remand is unnecessary because the record already demonstrates that the State cannot sustain the burden. Accordingly, I would reverse with directions to grant the writ unless the State retries the petitioner within a reasonable period.

By attempting to establish co-defendant Colon’s defense that he was acting as an “agent for the buyer” (i. e., for the undercover agent) in negotiating for the purchase of cocaine, which was then delivered by petitioner to Colon and the officer, the joint counsel focused the spotlight upon petitioner as the cocaine supplier or dealer. Had petitioner been independently represented, on the other hand, his counsel could have argued that he was merely acting as an innocent “mule” or courier, or that petitioner was acting as an agent for Colon as the buyer. Such defenses would have been consistent with the other evidence tending to exculpate petitioner, including his statement, made to Colon and the undercover agent at the time of the sale, that he had “nothing to do with this deal. It’s just [between] you and him”, and petitioner’s continued presence in the store when the police entered even though he had had time to flee. However, the joint counsel for petitioner and Colon could hardly portray *1056petitioner as an agent for Colon, as the buyer, since this would incriminate Colon and be inconsistent with Colon’s defense that he was acting as an agent for the officer. Moreover, in view of the possible inconsistency between petitioner’s defense that he was merely an innocent courier and Colon’s defense that he was acting as an agent for the buyer, it is unlikely that a joint counsel could present petitioner’s defense with the effectiveness of a wholly independent counsel representing petitioner alone.

Under the circumstances, I see no purpose to be served by the remand other than to determine “the precise degree of prejudice sustained . . . [which] is at once difficult and unnecessary”. See Glasser v. United States, 315 U.S. 60 at 75-76, 62 S.Ct. 457, 467, 86 L.Ed.2d 680 (1942), quoted with approval in Holloway v. Arkansas,-U.S. -, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Such “nice calculations as to the amount of prejudice” should be avoided. Glasser v. United States, supra, at 76, 62 S.Ct. at 467.