United States v. Tracy

Opinion

USCA1 Opinion

March 27, 1996          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 95-2144



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  PATRICK W. TRACY,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Patrick W. Tracy, on brief pro se.
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            Jay  P.  McCloskey,   United  States  Attorney  and  Margaret   D.
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        McGaughey, Assitant U.S. Attorney.
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Per Curiam.   Appellant Patrick  Tracy appeals  the
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            denial by the  United States District Court for  the District



            of  Maine of Tracy's motion  to vacate, set  aside or correct



            his  sentence pursuant  to  28 U.S.C.     2255.   Tracy  also



            alleges  that the court erred  in denying his  request for an



            evidentiary hearing.    We  affirm  the denial  of  both  the



            petition and  the hearing, essentially for  the reasons given



            by the  magistrate judge  in his recommended  decision, dated



            August 16, 1995.   Only one of Tracy's claims  merits further



            comment.



                 During Tracy's trial, three articles appeared in a local



            newspaper referring to Tracy's  previously having been  found



            not guilty  by reason of insanity  in a different  case.  The



            appearance  of the  articles was  noted by  the court  at the



            time.    However, the  prosecutor  and  the defense  attorney



            agreed that  it was  better not to  question the jury  on the



            matter  since  to do  so might  call  undue attention  to it.



            Tracy alleges that the  failure of his counsel to  request an



            examination of the jury constituted ineffective assistance of



            counsel.  We disagree.  



                 The record makes clear that, both prior to and after the



            articles' appearance, the  court specifically instructed  the



            jury  not to  listen  to or  to read  accounts of  the trial.



            Absent  evidence  to the  contrary,  jurors  are presumed  to



            follow a  court's instruction,  United States v.  Boylan, 898
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F.2d  230, 263 (1st Cir.), cert. denied, 498 U.S. 849 (1990),
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            and no evidence existed at  the time, nor has any  since been



            presented,  that  any member  of the  jury  was aware  of the



            articles   in  question.    In  such  circumstances,  Tracy's



            counsel's  decision  not to  request  an  examination of  the



            jurors  may reasonably  be  understood as  sound strategy  to



            avoid calling undue  attention to the  articles.  See  United
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            States  v. Anello, 765 F.2d  253, 259 (1st  Cir.) (absent any
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            indication  that jurors  were  aware of  incident, court  was



            within  its  discretion in  not  drawing attention  to  it by



            inquiring about incident), cert. denied, 474 U.S. 996 (1985).
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            As such it clearly "falls within the wide range of reasonable



            professional  assistance" and  thus  precludes  a finding  of



            ineffective assistance.   Strickland v. Washington,  466 U.S.
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            668, 689 (1984).



                 Tracy also claims  that his attorney  failed to ask  the



            court  to examine the  jury because the  attorney was himself



            the source of  the newspaper  story and feared  that, if  the



            issue were pursued, he  would be discovered to  have violated



            District of Maine Local Rule 40(a)(4).  This rule prohibits a



            defense attorney from releasing  information during trial "if



            there is a reasonable likelihood that such dissemination will



            seriously interfere with  a fair trial."   Tracy alleges that



            the resulting  conflict of interest between  the attorney and



            himself constitutes constitutionally ineffective assistance.


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To show a conflict  of interest, "a defendant  must show



            that  (1) the lawyer  could have pursued  a plausible defense



            strategy or tactic and (2) the alternative strategy or tactic



            was  inherently in conflict with or not undertaken due to the



            attorney's other  interests or loyalties."   United States v.
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            Soldevila-Lopez, 17  F.3d 480, 486  (1st Cir. 1994).   Courts
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            have  recognized that a conflict  of interest may result when



            pursuit of  a  client's interest  would lead  to evidence  of



            attorney malpractice.  See United States v. Ellison, 798 F.2d
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            1102, 1106-08 (7th  Cir. 1986), cert.  denied, 479 U.S.  1038
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            (1987)  (defendant  had  accused  attorney  of  malpractice);



            Mathis  v. Hood, 937 F.2d 790, 795 (2d. Cir. 1991) (defendant
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            had filed grievance with  disciplinary committee).  A showing



            of  an  actual conflict  of  interest  obviates the  need  to



            demonstrate prejudice  and constitutes a per  se violation of
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            the Sixth Amendment.  Soldevila-Lopez, 17 F.3d at 486-87.  
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                 Even if we credit Tracy's  allegations, he has not  made



            the requisite  showing that his attorney's failure to seek an



            examination  of  the  jury  was  due to  other  interests  or



            loyalties.   First,  Tracy  has not  explained how  examining



            whether  or not  the jury  had been  exposed to  the articles



            would  have led  to the  further examination  of who  was the



            source  of the articles.  Moreover,  at the time the issue of



            the articles arose, Tracy's attorney had not been  accused of



            any wrongdoing.   This  fact distinguishes Tracy's  case from


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both  Ellison and  Mathis.    In  the  absence  of  any  such
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            accusation  of the  attorney or  other evidence  of a  per se
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            violation of the  Sixth Amendment, the charge  of conflict of



            interest  is   simply  too   "speculative"   to  support   an



            ineffective  assistance  of  counsel claim.    See Soldevila-
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            Lopez, 17 F.3d at 486-87.
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                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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