Familia-Consoro v. United States

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1467



                      JUAN FAMILIA-CONSORO,



                      Petitioner, Appellant,



                                v.



                          UNITED STATES,



                      Respondent, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



           [Hon. Francis J. Boyle, U.S. District Judge


Before



                     Torruella, Chief Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                     Lynch, Circuit Judge.


Jane Elizabeth Lee for appellant.



     Kenneth P. Madden, Assistant United States Attorney, with whom

Margaret E. Curran, United States Attorney, was on brief for

appellee.


November 17, 1998


BOWNES, Senior Circuit Judge.  After his convictions for

possession of cocaine and conspiracy to distribute cocaine were

affirmed on direct appeal, Juan Familia-Consoro ("Familia") moved

to vacate his sentence pursuant to 28 U.S.C.  2255 (1994),

contending that a conflict of interest infected his trial counsel's

performance.  The alleged conflict arose because Familia's brother,

Bonifacio, who had agreed to pay Familia's attorney's fee, still

owed the lawyer approximately three thousand dollars at the start

of trial.  At trial, Familia sought to defend himself against the

drug charges by suggesting that the cocaine discovered in his

apartment belonged to Bonifacio.  In seeking collateral relief,

Familia argued that his attorney did not aggressively pursue the

blame-the-brother strategy out of a desire to obtain the balance of

his fee.  

  The district court denied the motion after conducting an

evidentiary hearing.  We conclude that the court properly rejected

the claim, and now affirm.

                                I.

  We briefly sketch the history of the case.  On

November 11, 1991, police officers entered Familia's Providence,

Rhode Island, apartment to execute a search warrant.  A loaded .38

caliber handgun was found under the mattress.  At some point during

the search, the police discovered that one of the drawers of a

freestanding dresser was nailed shut.  When the officers looked

behind the drawer, they found a paper bag and a metal box.  The box

contained $3,866 and two Rhode Island state lottery receipts in the

name of "Juan Familia."  The paper bag contained plastic bags

filled with cocaine (299.22 grams).  Police also seized a bottle of

inositol, a cocaine cutting agent, from atop the dresser. 

  On the basis of the fruits of this search, a grand jury

indicted Familia and his live-in girlfriend, Priscilla Jackson

("Jackson"), for conspiracy to distribute cocaine in violation of

21 U.S.C.  846 (1998) and possession of cocaine with intent to

distribute in violation of 21 U.S.C.  841 (1998).  Familia was

also charged with using a firearm in connection with a drug

trafficking crime.  See 18 U.S.C.  924(c)(1998). 

  A jury convicted Familia and Jackson on the two drug

counts, but acquitted Familia on the gun count.  The district court

sentenced Familia to eighty-five months of imprisonment, followed

by five years of supervised release.

  Familia appealed pro se from his convictions.  His sole

contention on appeal was that his counsel rendered ineffective

assistance of counsel due to a conflict of interest.  We affirmed

his conviction and sentence without prejudice to his raising the

claim in a proceeding under 28 U.S.C.  2255, consistent with our

practice disfavoring the consideration of ineffective assistance

claims on direct appeal.  See United States v. Familia, No. 92-

1685, 1994 WL 390142 (1st Cir. July 11, 1994).

  On or about March 3, 1995, Familia moved to correct his

sentence pursuant to Fed. R. Crim. P. 35 on the ground that the

court miscalculated the quantity of drugs fairly attributable to

him.  The motion was denied by the district court, and we

subsequently upheld that decision.  See United States v. Familia, 

No. 95-1447, 1995 WL 674501 (1st Cir. Nov. 14, 1995).

  On January 22, 1996, Familia collaterally attacked his

sentence by challenging the propriety of certain sentencing

enhancements and the adequacy of trial counsel's representation due

to, inter alia, a conflict of interest.  He elected to proceed only

with his conflict of interest claim.

  Familia's claim hinged on the theory that economic self-

interest tainted his lawyer's representation at trial.  Early on,

Familia's brother, Bonifacio, had offered to pay Familia's legal

fees and had secured the services of a lawyer, John M. Cicilline,

on Familia's behalf.  At trial, Familia's counsel had suggested to

the jury that Bonifacio was the true owner of the cocaine

discovered in Familia's bedroom.  Familia now asserted, however,

that his attorney had not been sufficiently zealous in portraying

Bonifacio as the real culprit because he hoped that Bonifacio would

pay the remainder of the outstanding fee. 

  The district court, which had originally presided over

Familia's trial, held a hearing on the  2255 motion on

December 17, 1996.  Cicilline, the only witness at this hearing,

testified that Bonifacio paid him $1500 as a retainer and later

paid him an additional $500, but never paid the balance of the fee

(approximately $3000).  Cicilline acknowledged discussing with

Familia the strategy of blaming Bonifacio for stashing the drugs in

Familia's apartment and stated that he actively pursued this

defense at trial.  Cicilline also testified that Bonifacio never

instructed him not to argue that the drugs were owned by Bonifacio

and that Bonifacio did not place any restrictions on his

representation of Familia.  Finally, he explained that he had met

with Bonifacio a few times in an attempt to get paid (succeeding

once), but did not try to subpoena him to testify because he did

not know where Bonifacio lived and did not believe that Bonifacio's

testimony would be helpful.

  The district court denied Familia's  2255 motion based

on the purported conflict.  In so ruling, it accepted Cicilline's

sworn denial that he downplayed Familia's defense out of a desire

to obtain the balance of his fee.  The court concluded that

Familia's trial counsel had, in fact, presented the blame-the-

brother defense, doing "the best he could with the circumstances,"

but that the jury simply rejected the defense.

                               II.

  The Sixth Amendment guarantees a defendant effective

assistance of counsel.  There can be no doubt that a lawyer who has

an actual conflict of interest deprives his client of effective

counsel by his attempt to "serve two masters."  See Cuyler v.

Sullivan, 446 U.S. 335, 349 (1980) (quoting Glasser v. UnitedStates, 315 U.S. 60, 75 (1942)).  The question in this case is

whether there was such a conflict.  

  To prevail on a claim of unconstitutional conflict, a

defendant "who raised no objection at trial must demonstrate that

an actual conflict of interest adversely affected his lawyer's

performance."  Cuyler, 446 U.S. at 348.  If a defendant proves that

a conflict "actually affected the adequacy of his representation,"

he need not show prejudice to obtain relief.  Cuyler, 446 U.S. at

349-50.  Unless and until this threshold is met, however, a

defendant "has not established the constitutional predicate for his

claim of ineffective assistance."  Id. at 350.  In this Circuit, we

have elaborated upon the Cuyler rule to require a defendant to show

that (1) the attorney could have pursued a plausible alternative

defense strategy and (2) the alternative trial tactic was

inherently in conflict with or not pursued due to the attorney's

other loyalties or interests.  See Bucuvalas v. United States, 98

F.3d 652, 656 (1st Cir. 1996).

  Although the standard of review of a conflict claim made

in a  2255 motion has been left an open question in the past, we

resolve that issue today.  We explicitly adopt the standard we

previously had suggested only implicitly.  See, e.g., United Statesv. Raineri, 42 F.3d 36, 43 (1st Cir. 1994).  The question whether

a conflict of interest impermissibly tainted an attorney's

performance is a mixed question of law and fact, see Strickland v.

Washington, 466 U.S. 668, 698 (1984); Cuyler, 446 at 342, one that

calls for "the application of legal principles to the historical

facts of [a given] case."  Cuyler, 446 U.S. at 342.  

     On appeal from the grant or denial of a  2255 motion, we

conduct a plenary review of the lower court's ultimate legal

determination whether an unconstitutional conflict actually

existed.  In embracing the de novo standard, we join virtually

every other circuit in the land.  See United States v. Moore,  

F.3d  , No. 92-10026, 1998 WL 682173, *2 (9th Cir. Sept. 23, 1998)

("A claim of conflict of interest on the part of trial counsel is

a mixed question of law and fact that we review de novo.");

Williams v. French, 146 F.3d 203, 212 (4th Cir. 1998) (same);

Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997) (same),

cert. denied,   U.S.  , 118 S. Ct. 1060 (1998); United States v.

Kauffman, 109 F.3d 186, 187 (3d Cir. 1997) ("Because ineffective

assistance of counsel claims present mixed questions of law and

fact, our review is plenary."); United States v. Gallegos, 108 F.3d

1272, 1279 (10th Cir. 1997) ("we review the district court's

determination of whether an actual conflict existed de novo");

United States v. Hopkins, 43 F.3d 1116, 1118 (6th Cir. 1995)

("Whether the facts in a particular case give rise to a conflict of

interest is a mixed question of law and fact which we review de

novo."); Iron Wing v. United States, 34 F.3d 662, 664 (8th Cir.

1994) (applying same approach for ineffective assistance claims

generally); Porter v. Singletary, 14 F.3d 554, 561 (11th Cir. 1994)

(reviewing conflict claim de novo); Winkler v. Keane, 7 F.3d 304,

308 (2d Cir. 1993) (same); Beets v. Collins, 986 F.2d 1478, 1482

(5th Cir. 1993) (same).  But see United States v. Askew, 88 F.3d

1065, 1070-71 (D.C. Cir. 1996) (leaving question unresolved). 

     We recognize that the question   whether a lawyer had an

"actual" conflict that "adversely affected" the quality of his

services   is intensely fact-bound in nature.  The claim often

turns on the precise details giving rise to the purported conflict,

including what actions were taken by counsel, counsel's

explanations for his conduct, and even counsel's (and perhaps

defendant's) credibility.  For this reason, we accord the district

court's underlying factual findings due deference, as we do to

state court findings under 28 U.S.C.  2254(d), rejecting them only

if they are clearly erroneous.  See Fed. R. Civ. P. 52(a);

Strickland, 466 U.S. at 698 ("district court findings [associated

with ineffective assistance claims] are subject to the clearly

erroneous standard of Federal Rule of Civil Procedure 52(a)"); Lemav. United States, 987 F.2d 48, 53 (1st Cir. 1993) (applying clearly

erroneous standard to factual findings underpinning ineffective

assistance claim in  2255 petition); cf. Ornelas v. United States,

517 U.S. 690, 700 (1996) (holding that questions of reasonable

suspicion and probable cause under Fourth Amendment should be

reviewed de novo but that "findings of historical fact" should be

examined "only for clear error").

     Familia promotes two lines of argument on appeal: that

his counsel's continued representation of him posed such a threat

to his right to adequate counsel as to constitute a per se breach

of the Sixth Amendment; and that, even if it did not rise to the

level of a per se violation, the facts nevertheless demonstrate

that a conflict of interest adversely affected his lawyer's

performance.  Neither of these claims has merit.  We address them

seriatim.  

     While courts have found per se conflicts in especially

egregious circumstances, we decline Familia's invitation to hold

that his lawyer's continued representation of him posed an

inherent, irreconcilable conflict of interest.  The cases in which

per se conflicts have been found typically involved situations

where a lawyer failed to divulge a conflict implicating his own

criminal conduct.  See, e.g., United States v. Cancilla, 725 F.2d

867, 870 (2d Cir. 1984) (foregone defense may have revealed

lawyer's own involvement in related conspiracy); Solina v. United

States, 709 F.2d 160, 164 (2d Cir. 1983) (trial counsel's failure

to disclose his unlicensed status amounted to concealing criminal

conduct).  In marked contrast, the inherent risk of harmful

conflict here was not so great that a defendant faced with such

circumstances necessarily suffers an "[a]ctual or constructive

denial of the assistance of counsel altogether."  Strickland, 466

U.S. at 692.  There is always a possibility when a third party with

an arguable stake in the outcome holds the purse strings that a

lawyer might place his own proprietary interest above those of his

client.  But the inflexibility of a per se rule would be unjust and

unworkable.  We think the best approach is to conduct a

particularized inquiry in each case to see whether a conflict has

improperly tainted the proceedings. 

     We follow that tack here.  On the facts before us, we can

discern no real conflict that infected the quality of his lawyer's

representation.  We presume, until it is shown otherwise, that a

lawyer ordinarily "will subordinate his pecuniary interests and

honor his primary professional responsibility to his clients." 

Bucuvalas, 98 F.3d at 656 (quoting United States v. DiCarlo, 575

F.2d 952, 957 (1st Cir. 1978)); see United States v. O'Neil, 118

F.3d 65, 71 (2d Cir. 1997) (rejecting claim that fee dispute posed

conflict of interest), cert. denied,   U.S.  , 118 S. Ct. 728

(1998).  By the same token, that a possible coperpetrator pays a

defendant's legal fees does not, without more, demonstrate that a

real conflict tainted the representation he or she received.  See,

e.g., Bucuvalas, 98 F.3d at 656-57 (payment of fees by codefendants

did not give rise to actual conflict).

     It must be emphasized that Familia does not contend that

his attorney failed to pursue an alternative strategy of placing

the blame on Bonifacio (he did advance it), but that he did not

pursue it aggressively enough for fear of alienating Bonifacio. 

Because the defense actually was presented at trial, Familia faces

an uphill battle to show that an improper economic motive dampened

his lawyer's ardor.

     When we examine the record closely, the claim

disintegrates completely.  The unrebutted testimony of Cicilline at

the hearing was that Bonifacio never placed any restrictions on the

representation to be provided Familia.  There is no evidence that

Bonifacio used the outstanding debt as leverage to influence the

course of the defense.  Bonifacio never promised full payment only

if Cicilline torpedoed his brother's defense.  Nor did Bonifacio

attempt to dissuade Cicilline from arguing that the cocaine

belonged to him, not Familia, by threatening to withhold payment. 

Defendant therefore has failed to demonstrate that his attorney

"actively represented conflicting interests."  Cuyler, 446 U.S. at

350. 

     The final and conclusive blow to Familia's claim is that

his lawyer, in fact, implemented the blame-the-brother strategy. 

Cicilline elicited from a police detective on cross-examination not

only that Bonifacio was a suspected drug dealer, but that he had

been arrested for selling cocaine.  He presented evidence from

Familia's landlady that Bonifacio had access to the apartment.  She

testified that she had seen Bonifacio in Familia's apartment on

several occasions and that she was aware that he had a key to the

apartment.  Finally, Cicilline reminded the jury in his closing

argument that Bonifacio was a known cocaine dealer and frequently

stayed at the apartment.  Given Cicilline's efforts to suggest an

alternative version of the facts, Familia has failed to show that

his lawyer's conduct was "actually affected" by the alleged

conflict of interest.  See, e.g., United States v. Carbone, 880

F.2d 1500, 1501 (1st Cir. 1989) (rejecting claim where nothing in

record showed that purported conflict negatively affected counsel's

cross-examination). 

     Familia quarrels with several of his counsel's decisions

regarding trial strategy, arguing that they reveal a deliberate

effort to protect Bonifacio.  We address only three of the alleged

lapses by his lawyer:  the decision not to call Bonifacio to the

stand, the failure to elicit from Familia himself that Bonifacio

owned the drugs recovered from Familia's bedroom, and the decision

not to highlight the physical similarities between Bonifacio and

the drug dealer described in a police affidavit used to secure the

search warrant. 

     Although defendant insists that his lawyer should have

called Bonifacio to the stand, he offers no reason for believing

that Bonifacio would have testified at all, much less that he would

have accepted full responsibility for stashing the drugs in

Familia's bedroom without his knowledge.  To call Bonifacio would

hardly have been a plausible alternative tactic.  Additionally, the

district court accepted Cicilline's explanation that he did not

subpoena Bonifacio because he believed that Bonifacio would likely

have asserted the Fifth Amendment privilege against self-

incrimination.  The court did not err in finding that a non-

conflict motive informed trial counsel's refusal to subpoena

Bonifacio.  See, e.g., United States v. Garcia-Rosa, 876 F.2d 209,

231 (1st Cir. 1989) (rejecting claim where defendant failed to show

that lawyer's decision not to call witness was due to purported

conflict).

     Likewise, that defense counsel opted not to ask Familia

directly who he believed owned the cocaine discovered in his

apartment is not indicative of a conflict of interest.  The

decision by Cicilline not to ask the question appears to have been

sound trial strategy.  If Familia had acknowledged that Bonifacio

owned the drugs, he would have made a tacit admission that he knew

the drugs were in his apartment, permitting the jury to find that

he constructively possessed the cocaine.  Moreover, Familia himself

seemed reluctant to point the finger at his brother.  In response

to the government's question on cross-examination as to who he

claimed to be the true owner of the drugs, he answered, somewhat

vaguely, that Bonifacio was the only one who he knew was involved

in drugs in the past, but that he was not aware that Bonifacio was

still mixed up with drugs.  See Familia, 1994 WL 309142, at *2 n.3. 

     Finally, defendant faults his lawyer for not emphasizing

at trial that the individual described in the police affidavit

(referred to as "Juan") as having sold cocaine to a government

informant matched the description of Bonifacio.  But doing so would

have highlighted, to Familia's detriment, that an informant

apparently purchased cocaine from "Juan" on three separate

occasions, from Familia's apartment, from Familia's van, and from

the vehicle registered to Familia's girlfriend.  Pointing out the

similarities between Bonifacio and "Juan" may have tended to show

that the informant did not actually buy those drugs from Familia,

but at the risk of bolstering the case for conspiracy against

Familia.  

     None of these strategic choices, alone or in combination,

demonstrate that Cicilline's advocacy was compromised by his desire

to be fully compensated for his work.  At most, they show an effort

to walk a fine line by showing that Familia was not aware of the

drugs and that Bonifacio may have hidden them in Familia's bedroom

to divert suspicion from himself.  To pursue this defense even more

vigorously, however, was fraught with danger.  Familia's attorney

would have run the risk of accentuating damaging evidence or

providing the jury with a basis for finding that Familia knew the

cocaine belonged to his brother and that Familia knowingly

possessed it. 

     Defendant has failed to demonstrate that an actual

conflict influenced his attorney's trial decisions.  See Cuyler,

446 U.S. at 350 (mere "possibility of conflict is insufficient to

impugn a criminal conviction").  We do not discount the possibility

that in a rare case a lawyer's financial self-interest might be so

corrupting as to compel him or her to intentionally refuse to

zealously pursue a certain line of defense.  But we are satisfied

that did not happen here.  

     Affirmed.