371 F2d 587 United States v. Berriel

371 F.2d 587

UNITED STATES of America, Plaintiff-Appellee,
Daniel Raymond BERRIEL, Defendant-Appellant.

No. 16671.

United States Court of Appeals Sixth Circuit.

Jan. 30, 1967.

Sheldon Otis (Court Appointed) and Justin C. Ravitz, Detroit, Mich., for appellant.

Robert J. Grace, Asst. U.S. Atty., Detroit, Mich., for appellee. Lawrence Gubow, U.S. Atty., Detroit, Mich., on brief.

Before WEICK, Chief Judge, and O'SULLIVAN and PECK, Circuit Judges.


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Appellant, Daniel Raymond Berriel, and a co-defendant McGrath, were convicted upon a jury trial of bank robbery, in violation of 18 U.S.C. 2113(a). Both defendants were identified by several eyewitnesses as participants in the crime. Error is assigned in the failure to appoint separate counsel and in the cross-examination of appellant as to his previous conviction of felonies


1) Separate counsel.


Appellant and his co-defendant were arraigned in the District Court for the Eastern District of Michigan, and one attorney was appointed to represent both. The District Judge then advised that if the appointed counsel considered that there could be any conflict of interest, he should inform the judge. For reasons undisclosed here the originally appointed attorney did not conduct the defense, and the case was tried before a different judge. This judge appointed a different attorney who conducted the defense for both defendants. Neither the defendants nor the appointed counsel requested that each defendant have his own attorney. The record discloses no conflict of interest between defendants, and the appeal points to no substantial prejudice that came to either defendant because of the single attorney's conduct of the defense.


Our recent decision in United States v. Burkeen 355 F.2d 241 (CA 6, 1966) is dispositive of this question. We there quoted from United States v. Dardi, 330 F.2d 316, 335 (CA 2) as follows:


'Such an assignment (a single attorney for co-defendants) is not, in itself, a denial of effective assistance of counsel. Since Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), it has been clear that some conflict of interest must be shown before an appellant can successfully claim that representation by an attorney also engaged by another defendant deprived him of his right to counsel.'


We find neither conflict of interest nor prejudice to support this claim of error.


2) Cross-examination of appellant.

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Appellant testified in his own defense and cross-examination brought out previous felony convictions. We have recently ruled against appellant's contention that such cross-examination was improper. United States v. Jackson, 344 F.2d 922, 923 (CA 6, 1965). See also United States v. Walker, 313 F.2d 236, 238 (CA 6, 1963).


Judgment affirmed.