USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-1141
UNITED STATES,
Appellee,
v.
JOSE R. HERNANDEZ-LEBRON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Harry R. Segarra for appellant.
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Ernesto Hernandez-Milan, Assistant United States Attorney, with
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whom Guillermo Gil, United States Attorney, and Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee.
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May 18, 1994
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BOWNES, Senior Circuit Judge. Defendant-appellant,
BOWNES, Senior Circuit Judge.
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Jose Hernandez-Lebron, pleaded guilty to drug possession and
drug importation charges after he and Milagros Perez Delgado
(Perez) were indicted for conspiracy and drug offenses. At
all relevant times, a single attorney represented defendant
and Perez. Defendant argues that the joint representation
deprived him of the effective assistance of counsel, and he
seeks to withdraw his plea. Finding nothing in the record to
show that a conflict of interests impaired counsel's
performance, we deny defendant the relief he seeks.
I.
I.
BACKGROUND
BACKGROUND
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From March 1990 to June 1990, Jeanette Diaz-Laurano
(Diaz), Edgardo Lopez-Rodriguez, and Roberto Matos imported
cocaine into the United States from the Netherlands Antilles.
According to the presentence report, defendant made the
necessary arrangements, paid for travel expenses, and paid
the couriers $1000 per kilogram of cocaine. Defendant and
Perez, his common-law wife, accompanied Diaz on two trips.
In May 1991, a grand jury returned a five-count
indictment against defendant and Perez for conspiring to
import, importing, and possessing cocaine with intent to
distribute. 21 U.S.C. 841(a)(1), 952(a), 960, 963.
Defendant and Perez retained Attorney Edwin Quinones to
represent them.
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In June 1991, Perez moved to have her trial severed
from defendant's. The assigned trial judge granted a
severance on September 24, 1991 and scheduled defendant's
trial for October 11, several weeks before Perez's.
Meanwhile, the government filed motions for
reconsideration of the severance, and for a hearing, under
Fed. R. Crim. P. 44(c), on the question of whether joint
representation would "jeopardize both defendants['] rights,
particularly Milagros Perez-Delgado['s]," Government's Mot.
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for Rule 44(c) H'g, at 2. On October 7, 1991, another judge,
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to whom the litigation had been reassigned, vacated the
severance, set a joint trial for October 11, and denied the
request for a hearing into the question of a conflict of
interests because a magistrate judge had previously held such
a hearing.
On the morning of October 11, Perez pleaded guilty
to one count of importing cocaine, and the remaining counts
were dismissed as to her. Defendant followed suit several
hours later by pleading to two counts of cocaine importation
and possession, on the condition that the remaining counts be
dismissed. Quinones represented both defendant and Perez
through their plea negotiations, change of plea hearings, and
defendant's sentencing proceeding.
Prior to the date of her sentencing proceeding,
which followed defendant's, Perez filed a motion for the
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appointment of separate counsel. The trial court granted the
motion because it found that a conflict of interests
jeopardized her right to effective assistance of counsel.
Perez is not a party to this appeal.
II.
II.
Defendant's contentions on appeal are: that he was
never adequately informed of the risks of joint
representation; that the trial judge had a duty to inquire
into potential conflicts when the severance was vacated; and
that his lawyer's divided loyalties violated his Sixth
Amendment right to the effective assistance of counsel.
Defendant seeks to withdraw his plea for those reasons.1
The government responds that the magistrate judge presiding
over defendant's arraignment adequately warned him of the
risks of joint representation, and that no actual conflict
developed.
Conflicts of Interests and Sixth Amendment Principles
Conflicts of Interests and Sixth Amendment Principles
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A defendant has a right to conflict-free
representation under the Sixth Amendment. Wood v. Georgia,
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450 U.S. 261, 271 (1981); Holloway v. Arkansas, 435 U.S. 475,
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1. Defendant also raises a sentencing issue, to which we
devote nothing more than this footnote. In a single two-line
sentence in his brief, defendant argues that the trial court
erred in basing his sentence on sixteen kilograms of cocaine
rather than fourteen kilograms. The record indicates that
defense counsel explicitly conceded at sentencing that
sixteen kilograms were involved in the offense, and there is
ample support for the trial court's calculations.
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489-90 (1978). When two or more defendants share the same
counsel, conflicts of interests might arise. "[T]he conflict
is within the attorney's loyalty; the problem is that the
attorney might not be able to represent one client fully
without damaging the interests of the other client." United
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States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 437 (7th Cir.
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1983). Although "in some cases multiple defendants can
appropriately be represented by one attorney," Holloway, 435
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U.S. at 482, joint representation violates the Sixth
Amendment when it gives rise to a conflict of interests
adversely affecting the lawyer's performance. Cuyler v.
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Sullivan, 446 U.S. 335, 348 (1980); United States v.
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Mazzaferro, 865 F.2d 450, 455 (1st Cir. 1989). Prejudice in
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such cases is presumed. Mazzaferro, 865 F.2d at 455; Brien
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v. United States, 695 F.2d 10, 15 (1st Cir. 1982).
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Conflicts may arise at any stage of a proceeding
because codefendants are rarely, if ever, identically-
situated. The joint attorney may have to prefer one
defendant over the other at trial, where, for example,
evidence favorable to one defendant harms another; during
plea negotiations, where advocacy for one defendant
undermines the position of others, or when a plea bargaining
offer is conditioned on one defendant testifying against
another; and at sentencing, where sentencing factors compel a
lawyer to distinguish between clients. See United States v.
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Curcio, 680 F.2d 881, 887 (2d Cir. 1982) (providing myriad
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examples of conflicts); Fed. R. Crim. P. 44(c) advisory
committee's notes; ABA Standards for Criminal Justice, The
Defense Function 4-3.5 (2d ed. 1980).
"It has long been recognized that there are
inherent difficulties" in reviewing claims of conflicts of
interests. Mazzaferro, 865 F.2d at 456 (citing Holloway, 435
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U.S. at 490). These difficulties arise because "in a case of
joint representation of conflicting interests the evil . . .
is in what the advocate finds himself compelled to refrain
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from doing . . . ." Holloway, 435 U.S. at 490 (emphasis in
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original). It is often unclear "that the conflict of
interests, and not pure trial strategy," is the reason "for
the tactics adopted--or forgone--at trial." Curcio, 680 F.2d
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at 887.
Trial Court's Duty of Inquiry
Trial Court's Duty of Inquiry
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So "ubiquitous and insidious" are the risks of
multiple representation, Curcio, 680 F.2d at 887, and so
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fundamental is the right to counsel, that the Sixth Amendment
imposes duties on trial courts in certain cases. Cuyler, 446
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U.S. at 346. Defendant's timely objections to joint
representation must be investigated, and inquiries must be
made into the propriety of multiple representation whenever
the trial court knows or reasonably should know that a
particular conflict exists. Cuyler, 446 U.S. at 346-47.
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Federal Rule of Criminal Procedure 44(c) expands
these duties by requiring an inquiry into the possibility of
a conflict in all cases where jointly-charged defendants
retain the same counsel. Under Rule 44(c), the trial court
must "inquire with respect to such joint representation and .
. . personally advise each defendant of the right to the
effective assistance of counsel, including separate
representation." Id. Moreover, "[u]nless it appears that
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there is good cause to believe no conflict of interest is
likely to arise," Rule 44(c) requires the court to "take such
measures as may be appropriate to protect each defendant's
right to counsel." Id.
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Rule 44(c) has an antecedent in this Circuit,
United States v. Foster, 469 F.2d 1 (1st Cir. 1972). In
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Foster, we exercised our supervisory powers in cases
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involving jointly-represented defendants:
[I]t shall be the duty of the trial
court, as early in the litigation as
practicable, to comment on some of the
risks confronted where defendants are
jointly represented to insure that
defendants are aware of such risks, and
to inquire diligently whether they have
discussed the risks with their attorney,
and whether they understand that they may
retain separate counsel appointed by the
court and paid for by the government.
Id. at 5. The warning and the inquiry must be on the record.
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Id.; accord Fed. R. Crim. P. 44(c) advisory committee's
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notes. We require a Foster inquiry to ensure that defendants
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have been properly warned and to "prevent the uncertainty
that arises when defendants make post-conviction claims of
ignorance or misadvice." United States v. Martorano, 620
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F.2d 912, 915 n.3 (1st Cir.), cert. denied, 449 U.S. 952
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(1980); see also Colon v. Fogg, 603 F.2d 403, 407 (2d Cir.
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1979) ("Such an inquiry is usually the only practical method
of ascertaining whether the joint representation may
prejudice the defendant . . . ."). Where there is no record
of a satisfactory inquiry, the government bears the burden of
proving that prejudice to the defendant was improbable.
Mazzaferro, 865 F.2d at 454.
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The magistrate judge at the arraignment of
defendant and Perez engaged in the following dialogue
regarding the risks of joint representation:
[Magistrate:] [W]hen one attorney
represent two or more Defendants in this
same case, there is always a possibility
of conflict of interest.
The Court of Appeals for the First
Circuit has established in the case of
United States vs. Foster that when such
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possibility exists the Court must discuss
some of the risks confronted when two or
more Defendants are jointly represented
to ensure that the Defendants are aware
of such risks and to ask whether they
have discussed the risk with their
attorney and whether they understand that
they may retain separate counsels.
If Defendant is financially unable
to pay for such services a counsel will
be appointed and paid by the Government.
Now, I must appraise [sic] you that
it may be possible that during the course
of this action that with respect of
particular defenses and decisions, such
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as whether or not to take the stand or to
call particular witnesses or how to
conduct a cross examination what may be
in one's best interest will turn out not
to be in the best interest of the other.
It is imperative that you, as the
Defendants, understand the importance of
my advice concerning the conflict of
interest.
Defendant, do you understand the
problem?
[Defendant:] Yes.
. . .
[Magistrate:] Have you been able to
discuss the problem with your counsel?
[Defendant:] Yes.
. . .
[Magistrate:] Do you still wish to
proceed with the same counsel as you're
co-Defendants?
[Defendant:] At this time, yes.
. . .
[Magistrate:] Well, if at any time any
one of you understand that a possible
conflict of interest is present let the
Court know of it so necessary steps will
be taken to protect your Constitutional
Rights and to be represented by a
competent counsel.
Is that clear?
[Defendant:] Yes.
. . .
While the government argues that the magistrate's inquiry was
adequate, defendant takes the opposite view on the ground
that the magistrate did not "fully advise" defendant of the
risks and did not elicit a narrative response.
Defendant has failed to identify any element
essential to a Foster hearing that the magistrate's inquiry
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lacked. We do not require that defendants make narrative
responses, or that defendants be warned of every conceivable
risk. See Foster, 469 F.2d at 5 (form of hearing is
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generally within the trial court's discretion). Those are
requirements we might impose if a Foster inquiry were a
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prelude to a waiver of the right to conflict-free
representation. But it is not. A defendant can successfully
challenge his conviction on the ground that a conflict
impaired his lawyer's performance, even if an adequate Foster
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inquiry occurred. See Mazzaferro, 865 F.2d at 455; Foster,
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469 F.2d at 5.
We have required that courts explain and explore
the risks of joint representation, in lay persons' terms, to
enable defendants to appreciate how conflicts might impair
the lawyer's performance. United States v. Elkins, 774 F.2d
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530, 541 (1st Cir. 1985); United States v. Waldman, 579 F.2d
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649, 653 (1st Cir. 1978); United States v. Donahue, 560 F.2d
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1039, 1043-44 (1st Cir. 1977). The magistrate in this case
personally addressed defendant regarding the possibility of a
conflict, stated that he had a right to separate counsel,
provided examples of conflicts that might arise at trial, and
elicited an unequivocal "Yes," in response to a question on
whether defendant had discussed "the problem" with counsel.2
Defendant argues that his mental health problems, illiteracy,
and lack of a formal education rendered the inquiry
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2. The magistrate also obtained defendant's signature on a
form entitled, "Acknowledgment of Joint Representation
Admonishment," which essentially repeated what the magistrate
stated in open court.
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inadequate. The record does not suggest, however, that
defendant was incompetent, or that he could not comprehend
the magistrate's explanation. On the contrary, defendant
acknowledged that he understood. Moreover, defendant's
qualified response as to whether he desired to continue to be
represented by Quinones--"At this time, yes."-- suggested
that his answers were not merely rote. While the inquiry
might not have been exemplary, it was adequate to ensure
defendant understood the risks.
Next, defendant argues that the trial court had a
duty to inquire into the possibility of a conflict of
interests later in the proceeding, when it vacated the
severance. According to defendant, the trial court's
decision placed defense counsel in the position of perhaps
favoring one client over the other at trial, and that the
court's failure to provide a Foster hearing at that time was
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improper.3
We agree with defendant that the trial court had a
duty to investigate the possibility of a conflict when it
vacated the severance. Under Rule 44(c), the trial court's
duty to inquire into the possibility of a conflict of
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3. The government, not defense counsel, requested a second
Foster hearing when it moved for reconsideration of the
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severance order. The trial judge denied the government's
motion, shortly after vacating the severance, when defense
counsel confirmed that the magistrate previously held a
Foster hearing.
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interest is "a continuing one." Fed. R. Crim. P. 44(c)
advisory committee's notes. That duty may entail
reinitiating an inquiry when there are "new developments"
suggesting a potential conflict. Id.
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In this case, defense counsel was preparing for
separate trials until the severance was vacated, only one
week before trial. The order vacating the severance
heightened the risk that a conflict might infect certain of
defense counsel's strategic decisions. See, e.g., Curcio,
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680 F.2d at 887 (discussing dilemmas confronting trial
counsel for multiple defendants, including "whether to have
one defendant testify while the other remains silent"); cf.
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Cuyler, 446 U.S. at 347 (provision of separate trials
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significantly reduced the potential for a divergence in
interests). Given that heightened risk, the court had a duty
to inquire whether a conflict would develop at trial.
Contrary to defendant's argument on appeal,
however, we find that the trial court did not shirk that
duty. Prior to vacating the severance, the court
investigated whether the defense strategies of Perez and
defendant would diverge. Defendant's affidavit supporting
the request for separate trials stated that, if the trials
were severed, he would testify at Perez's trial that he had
had an affair with Jeanette Diaz (the government's key
witness), and that she was falsely incriminating both
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defendant and Perez--his common-law wife--because defendant
"did not please [Diaz]." The court concluded from that
affidavit and from inquiries he made of defense counsel at
the hearing on the motion for reconsideration that the
codefendants' strategies were harmonious. Defendant has
identified no other developments in his case occurring prior
to the order vacating the severance that should have
implicated a duty to inquire further.
Although the trial court had a duty to investigate
the potential for a conflict when it vacated the severance,
the court did not err by not giving defendant any further
explication of the perils of joint representation. The
magistrate cautioned defendant before the cases were severed
that "with respect of particular defenses and decisions, such
as whether or not to take the stand or to call particular
witnesses or how to conduct a cross examination what may be
in one's best interest will turn out not to be in the best
interest of the other." While it would have been advisable
to repeat this admonition, it was not necessary to do so. We
are satisfied that the magistrate's Foster hearing,
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supplemented by the trial court's determination that the
defenses were consistent, adequately explored the potential
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for a conflict and ensured that defendant was not ignorant or
misadvised in his choice of counsel.4
Defendant's Burden of Showing Conflict of Interests
Defendant's Burden of Showing Conflict of Interests
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Our determination that an adequate inquiry occurred
does not end our analysis of whether a conflict of interests
violated defendant's right to effective assistance of
counsel. Rather, because a satisfactory inquiry appears in
the record, we turn to whether defendant carried the burden
of showing that an actual conflict adversely affected his
lawyer's performance. Mazzaferro, 865 F.2d at 455; Foster,
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469 F.2d at 5.
Defendant makes two arguments in an effort to carry
that burden. First, he asserts that a conflict of interests
resulted in the disparity between his sentence and Perez's
(188 months versus time served). We cannot infer from that
disparity, however, that a conflict of interests adversely
affected his lawyer's performance. According to the
government, Perez's drastically lower sentence reflected her
substantial assistance in obtaining convictions in unrelated
cases.
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4. One might argue that the trial court had a duty to
inquire further into the potential for a conflict of
interests prior to accepting defendant's guilty plea, where
Perez, still represented by Quinones, changed her plea
several hours earlier. We decline to consider that issue,
however, because neither party has addressed it.
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Defendant's remaining claim of ineffective
assistance pertains to the circumstances surrounding his
decision to change his plea several hours after Perez changed
hers. While this may be a stronger claim, our ability to
evaluate it is hampered by the state of the record. There is
little evidence regarding defendant's decision to plead
guilty. In addition, we have no record of what transpired
during Perez's change of plea hearing. The government stated
at oral argument that defendant sat in the courtroom while
Perez accepted the government's version of the facts at her
change of plea hearing. But neither her plea agreement, nor
the transcript of her Rule 11 hearing is part of the record
in this case. The record does not indicate that Perez would
have testified if defendant had gone to trial. Cf. Trammel
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v. United States, 445 U.S. 40, 53 (1980) (witness-spouse
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holds privilege to refuse to testify adversely).
Consequently, we cannot fairly assess whether a conflict of
interests infected Quinones's representation of defendant
during plea negotiations and his change of plea hearing.
Because this is not a case where the record allows us to
evaluate fully and fairly the merits of defendant's claim of
ineffective assistance of counsel, we deny his request on
direct appeal for leave to withdraw his plea. See United
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States v. Rinard, 956 F.2d 85, 87 (5th Cir. 1992). Defendant
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may raise the claim anew, if he so chooses, in a habeas
corpus petition.
Affirmed.
Affirmed.
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