United States v. Gallegos

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee and Cross-Appellant,

v. Nos. 95-2071 &
95-2125
SONIA GALLEGOS,

Defendant-Appellant and Cross-Appellee.
_____________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-92-486-19-JC)
_____________________

Charles L. Barth (John J. Kelly, United States Attorney, with him on the briefs),
Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee and Cross-Appellant.

Vicki Mandell-King (Michael Gordon Katz, Federal Public Defender, with her on
the briefs), Assistant Federal Public Defender for the districts of Colorado and
Wyoming), for Defendant-Appellant andCross-Appellee.
_____________________

Before BALDOCK and BRORBY, Circuit Judges, and DANIEL, * United States
District Judge.

BRORBY, Circuit Judge.

*
The Honorable Wiley Y. Daniel, United States District Judge for the
District of Colorado, sitting by designation.
 _____________________

A jury convicted Sonia Sierra Gallegos of two criminal counts, conspiracy

and money laundering, in the United States District Court for the District of New

Mexico. The district court sentenced Ms. Gallegos to seventy months

imprisonment. Ms. Gallegos appeals her conviction, and the United States

appeals the district court's application of the United States Sentencing Guidelines.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gabriel Rodriguez-Aguirre ("Mr. Aguirre") managed a family-run

organization which specialized in the sale and distribution of large amounts of

marijuana and cocaine. United States v. Denogean, 79 F.3d 1010, 1011 (10th

Cir.), cert. denied, 117 S. Ct. 154 (1996). Between 1984 and 1992, the

organization sold more than 20,000 pounds of marijuana and over "20,000 pounds

of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas,

Massachusetts, and elsewhere throughout the United States." Id. The

organization used narcotics proceeds to purchase real property and other assets.

Id.

Ms. Gallegos met Mr. Aguirre in 1989 or 1990 while she was working at

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J.C. Penney's in El Paso, Texas. Shortly thereafter, Mr. Aguirre and Ms. Gallegos

became romantically involved, and Ms. Gallegos began assisting Mr. Aguirre's

attorneys in representing Mr. Aguirre in criminal cases pending against him in

Kansas and New Mexico. Ms. Gallegos obtained documents for Mr. Aguirre's

attorneys, located and contacted witnesses, and conducted research on behalf of

Mr. Aguirre.

On October 19, 1992, the United States filed a civil complaint for forfeiture

of property in the District of New Mexico entitled United States v. Fifty-One

Items of Real Property, etc., No. CIV 92-1155-JC. Although the complaint named

Ms. Gallegos as a claimant of certain property, she did not contest the forfeiture

action by filing a claim. Consequently, the United States District Court entered a

partial default judgment, in which Ms. Gallegos' interest in the named property

was forfeited to the United States. United States v. Fifty-One Items of Real

Property, No. CIV-92-1155 JC (D.N.M. Dec. 15, 1993).

On October 20, 1992, a federal Grand Jury in the District of New Mexico

returned a twenty-three count indictment against Ms. Gallegos and twenty-one

other defendants, including Mr. Aguirre. The bill of indictment charged Ms.

Gallegos with conspiracy to distribute more than 1000 kilograms of marijuana, in

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violation of 21 U.S.C. § 841 (1994), and money laundering, in violation of 18

U.S.C. § 1956(a)(1)(B)(i) (Supp. 1996). Ms. Gallegos pled not guilty to the

charges against her and proceeded to trial with her co-defendants in January 1994.

The trial of Ms. Gallegos and her co-defendants lasted six months,

becoming "the longest federal criminal trial ever held in the District of New

Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024 (10th Cir.

1996). After deliberating for more than six weeks, the jury was unable to reach a

verdict on the majority of counts, and the trial judge declared a mistrial. Id.

Neither the United States nor counsel for Ms. Gallegos objected to the mistrial.

In August 1994, the United States obtained a superseding indictment

against Ms. Gallegos and nine of her co-defendants. In addition to the charges

included in the original indictment, the superseding indictment contained new

charges against Ms. Gallegos. Count II additionally charged Ms. Gallegos with

conspiracy to possess with intent to distribute cocaine, and conspiracy to

distribute cocaine. Count XIX additionally charged Ms. Gallegos with receiving

income from the distribution of controlled substances, and investing this income

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in Amador Investors, 1 in violation of 21 U.S.C. § 854 (1994). Although Ms.

Gallegos moved to dismiss the superseding indictment due to vindictive

prosecution, the trial court summarily denied her motion.

Prior to trial on the superseding indictment, the district court randomly

selected a jury panel of approximately 250 jurors from voter registration lists for

the Roswell Division of the District of New Mexico. The district judge excused

132 jurors sua sponte after reviewing the juror questionnaires; the court only

directed 115 jurors to report for jury service. Six days prior to trial, defense

counsel were provided copies of juror questionnaires for the panel that had been

selected for service and defense counsel learned the court had excused the

remaining jurors.

On November 14, 1994, the first day of trial, Mr. Aguirre filed a motion to

stay the proceedings, and defendant David Morales filed a motion to quash the

jury venire. 2 The motions alleged the jury venire panel seriously misrepresented

1
Amador Investors was a real estate business Ms. Gallegos and Hector
Amador established in 1990. Ms. Gallegos was president of the company and she
received a monthly salary from the company.

2
Pursuant to the court's order that "one motion made by one defense
counsel applies to all [defendants]," all of the defendants, including Ms. Gallegos,
adopted the motions of Mr. Aguirre and Mr. Morales. (Vol. 11 at 10.)

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the ethnic makeup of the District of New Mexico. Specifically, the defendants

claimed persons of Hispanic origin and American Indian background were

underrepresented. The defendants sought a stay of the trial to allow time for an

investigation of the ethnic background of all the jurors. In addition, Mr. Morales'

counsel, Paul Kennedy, orally advised the court of United States v. Calabrese,

942 F.2d 218 (3d Cir. 1991), which Mr. Kennedy claimed stood for the

proposition that it is reversible error for a court to exclude a juror prior to voir

dire "simply because a juror knows a defendant." Mr. Kennedy claimed it

appeared the court had excused at least one juror because the juror stated he or

she knew one of the defendants.

Following Mr. Kennedy's comments, the court held an evidentiary hearing

at which Nancy Metzger, jury administrator for the Federal Court Clerk's office,

testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been

randomly selected from voter registration lists. Ms. Metzger testified the district

judge reviewed the jurors' questionnaires and directed her to excuse more than

100 specific jurors. Ms. Metzger stated she did not know the ethnicity of either

the excused jurors or the jurors who had reported for service.

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 The court then stated it had reviewed the individual juror questionnaires

and "retained the stack of those who, for some reason or other, claimed that they

couldn't serve." The court explained:

I think it goes without saying that the ones that were not summoned,
I never looked at the last name, whether it was [a] Hispanic surname
or whether it was not a Hispanic surname, or whether they were
American Indians or not. As a matter of fact, I'm not real sure that
that's part of the questionnaire --

Ms. Metzger confirmed the questionnaire forms did not direct the jurors to list

their ethnicity.

The district court denied the defendants' motion to stay the proceedings and

the defendants' motion to quash the jury venire. However, the court allowed the

defendants to supplement the record within ten days of the completion of the trial

with information concerning the racial composition of the District of New Mexico

and the Roswell Division. None of the defendants chose to supplement the record

with such information.

Prior to the start of trial, Ms. Gallegos' counsel, Billy Blackburn, learned

Frank Gutierrez was listed as a potential witness for Mr. Aguirre. Mr. Blackburn

had previously represented Mr. Gutierrez on drug charges in the District of New

Mexico. Upon learning Mr. Gutierrez could be called as a witness, Mr. Blackburn

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notified the court he was concerned about the attorney-client privilege and his

ability to question Mr. Gutierrez. The court stated it would take up the matter if,

and when, Mr. Aguirre called Mr. Gutierrez as a witness.

During the trial, when Mr. Aguirre called Mr. Gutierrez as a witness, the

court asked Mr. Blackburn to determine whether Mr. Gutierrez was "planning on

invoking the Fifth." Mr. Blackburn and Mr. Gutierrez then met briefly.

Following their meeting, Mr. Blackburn informed the court outside the presence

of the jury that Mr. Gutierrez had information he believed would be exculpatory

to Ms. Gallegos. However, Mr. Blackburn stated he felt he had been placed in the

position of representing competing interests. Mr. Blackburn requested the court

to ask Mr. Gutierrez whether he intended to testify, and to sever the trial of Ms.

Gallegos from that of her co-defendants.

The court then proceeded to question Mr. Gutierrez. The following

exchange took place between the court and Mr. Gutierrez:

THE COURT: All right. And you've been subpoenaed here to
testify in behalf of Mr. Gabriel Aguirre.

[MR. GUTIERREZ]: Yes, sir.

THE COURT: If you were asked questions about that -- if you
were asked questions here in the courtroom in the presence of the
jury, Mr. Gutierrez, would you take the Fifth Amendment?

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 [MR. GUTIERREZ]: Yes, sir. My lawyer's advice was to do
that, and that's -- I guess that's -- I'll have to do that.

Thereafter, the prosecuting attorney requested the court to appoint independent

counsel for Mr. Gutierrez to resolve any conflict issues. The court then asked Mr.

Gutierrez if he would like the court to appoint another lawyer to represent him.

When Mr. Gutierrez indicated he was not interested in another attorney, the court

stated it would not appoint one for him. The court did not grant Ms. Gallegos'

request for severance and Mr. Gutierrez did not testify at trial.

The jury ultimately returned a verdict against Ms. Gallegos on counts II and

XXI -- conspiracy and money laundering. The jury was unable to reach a

unanimous verdict on count XIX, investment of illegal drug proceeds, and the

trial court declared a mistrial as to that count.

Following the jury's verdict, Ms. Gallegos filed a motion for acquittal and

for a new trial. Ms. Gallegos argued she was entitled to a new trial because of

her attorney's conflict of interest, which developed during her trial. Ms. Gallegos

also contended she was entitled to a new trial because of jury misconduct. Ms.

Gallegos attached an affidavit from defense investigator Kelly Owens to her

motion. Mr. Owens testified that following the trial, he questioned nine of the

twelve jurors who convicted Ms. Gallegos. Mr. Owens stated that one of the

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jurors, Linda Howard, admitted looking up the dictionary definition of the word

"distribution" on the first day of deliberations, and sharing its definition with the

other jurors on the following day. In her post-trial motion, Ms. Gallegos

contended this improper juror conduct prejudiced her and entitled her to a new

trial.

The district court denied Ms. Gallegos' motion for acquittal and for a new

trial, rejecting Ms. Gallegos' claims of conflict of interest and jury misconduct.

The court concluded the word distribution was one of common usage, and there

was no showing any of the jurors relied upon its dictionary definition or that it

"made any difference at all in the jury deliberations." With respect to the conflict

of interest issue, the court found it would not have made any difference whether

Mr. Gutierrez had "Mr. Blackburn, F. Lee Bailey or Mr. Shapiro representing

him." According to the court, Mr. Gutierrez did not want to get involved in the

case and he would have asserted the Fifth Amendment with or without the advice

of Mr. Blackburn. Thus, the court did not believe the conflict of interest was

sufficient to prevent Ms. Gallegos from receiving a fair trial.

At sentencing, the trial court adopted the factual findings and guideline

application in Ms. Gallegos' presentence report. The court concluded Ms.

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Gallegos' guideline range should be calculated pursuant to her involvement in

money laundering because her participation in the Aguirre drug conspiracy was

limited to money laundering. Thus, the court found Ms. Gallegos' guideline range

to be seventy to eighty-seven months, and sentenced her to a seventy-month term

of imprisonment. The court declined the United States' request to enhance Ms.

Gallegos' sentence under USSG. §3B1.1(a) for her role as a "leader" or

"organizer."

II. ISSUES RAISED ON APPEAL

Ms. Gallegos' appeal raises five issues: (1) whether the United States

obtained Ms. Gallegos' criminal convictions in violation of the Fifth Amendment's

protection against double jeopardy; (2) whether the superseding indictment filed

after the mistrial should have been dismissed on grounds of prosecutorial

vindictiveness; (3) whether the district court's pre-voir dire jury selection

procedures violated Ms. Gallegos' constitutional rights and her rights under the

Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878 (1994); 3 (4)

3
Ms. Gallegos did not raise the jury selection issue in her briefs on appeal.
However, on November 4, 1996, Ms. Gallegos filed a motion with this court to
adopt the jury selection issue raised on appeal by her co-defendants David
Morales and Eleno Aguirrre. We hereby grant Ms. Gallegos' motion to adopt the
jury selection issue.

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whether the district court deprived Ms. Gallegos of her Sixth Amendment right to

conflict-free representation; and (5) whether the jury's consideration of

extraneous information, the dictionary definition of distribution, created a

presumption of prejudice which the United States failed to rebut. The United

States' cross-appeal raises two issues: (1) whether the district court erred in

failing to apply the drug conspiracy guidelines, instead of those applicable to

money laundering, to Ms. Gallegos, and (2) whether the district court erred in

determining Ms. Gallegos was not an organizer or leader of the conspiracy. 4

III. ANALYSIS

A. Ms. Gallegos' Appeal

1. Double Jeopardy

Ms. Gallegos claims her criminal convictions should be dismissed because

the government obtained her convictions in violation of the Fifth Amendment's

prohibition against double jeopardy. According to Ms. Gallegos, the judicial

forfeiture proceeding that preceded her criminal convictions served to adjudicate

her personal culpability. Thus, upon entry of default judgment in the forfeiture

4
Subsequent to the filing of the United States' cross appeal, Ms. Gallegos
filed a motion to dismiss the United States' appeal for lack of jurisdiction. We
entered an order denying Ms. Gallegos' motion to dismiss on November 19, 1996.

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proceeding, Ms. Gallegos contends jeopardy attached, precluding the United

States from instituting criminal proceedings against her based on the same

underlying conduct.

Unfortunately for Ms. Gallegos, we decided an identical double jeopardy

claim in the recent appeal of Ms. Gallegos' co-defendant, Doloras Contreras. See

United States v. Contreras, __ F.3d ___ (10th Cir. Mar. 11, 1997). Noting the

United States Supreme Court recently determined civil forfeiture proceedings do

not constitute punishment under the Double Jeopardy Clause of the Fifth

Amendment, we dismissed the plaintiff's double jeopardy claim in Contreras. Id.

at ___ (citing United States v. Ursery, 116 S. Ct. 2135, 2141-42, 2149 (1996)).

Under this same reasoning, Ms. Gallegos' double jeopardy claim fails.

2. Prosecutorial Vindictiveness

Ms. Gallegos contends the district court should have dismissed the

superseding indictment because of prosecutorial vindictiveness. Following the

mistrial, the United States filed a superseding indictment expanding the

conspiracy charges against Ms. Gallegos to include cocaine, and adding another

count against Ms. Gallegos relating to the investment of funds in Amador

Investors. Ms. Gallegos asserts the United States was aware of the information

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giving rise to the increased charges prior to her first trial. Given its prior

knowledge, along with the negative publicity the United States suffered following

the mistrial, Ms. Gallegos contends "there is a reasonable likelihood that the

increased charges were motivated by vindictiveness."

Once again, we decided a virtually identical vindictive prosecution claim in

Contreras. __ F.3d at ___. Looking to the totality of the circumstances in

Contreras, we determined there was no reasonable likelihood the increased

charges against Ms. Contreras stemmed from prosecutorial vindictiveness. Id. at

___. Based on our reasoning in Contreras, we likewise conclude the enhanced

charges against Ms. Gallegos were not motivated by prosecutorial vindictiveness.

3. Jury Selection

Ms. Gallegos argues the district court's excusal of over half of the original

jury panel, off the record and outside the presence of the defendants and counsel,

violated the Jury Selection and Service Act, as well as Ms. Gallegos' Fifth and

Sixth Amendment rights. 28 U.S.C. § 1867(d) requires all motions challenging

compliance with the Jury Selection and Service Act to be accompanied by a

"sworn statement of facts which, if true, would constitute a substantial failure to

comply with the [Jury Selection and Service Act]." 28 U.S.C. 1867(d). In

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Contreras, we determined Ms. Contreras' claim under the Jury Selection and

Service Act was barred by the defendants' failure to accompany their motions

challenging the district court's jury selection procedures with an adequate sworn

statement as required by 28 U.S.C. § 1867(d). Contreras, __ F.3d at ___. Here,

as in Contreras, Ms. Gallegos failed to file a sworn affidavit in support of her

motions challenging the district court's jury selection procedures. Consequently,

Ms. Gallegos' Jury Selection and Service Act claim is barred.

Also in Contreras, we denied Ms. Contreras' Fifth and Sixth Amendment

challenges to the jury selection procedures. See id. at ___. Specifically, we

determined Ms. Contreras could not establish a prima facie case of a fair cross

section violation or an equal protection violation, and we concluded Ms.

Contreras' Sixth Amendment impartial jury claim was without merit. Id. For the

reasons stated in Contreras, we likewise find no merit in Ms. Gallegos'

constitutional challenges to the district court's jury selection procedures. 5

5
In Contreras, we also determined the district court did not violate Fed. R.
Crim. P. 43 or 28 U.S.C. § 753(b) (1944)by failing to dismiss the 132 jurors in
open court and in the presence of the defendants. See Contreras. __ F.3d at ___.
To the extent Ms. Gallegos asserts claims under Rule 43 or 28 U.S.C. § 753(b),
these claims are rejected pursuant to our reasoning in Contreras.

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 4. Right to Conflict-Free Counsel

Next, Ms. Gallegos contends the district court deprived her of her Sixth

Amendment right to conflict-free counsel. Ms. Gallegos argues her counsel, Mr.

Blackburn, suffered an actual conflict of interest, because his "client witness"

(Mr. Gutierrez) asserted his Fifth Amendment privilege in order to avoid exposure

to new charges, at the expense of failing to provide favorable testimony for Ms.

Gallegos. According to Ms. Gallegos, the district court's failure to either sever

her from the remaining defendants or inquire as to whether she would waive the

conflict requires this court to reverse her convictions.

In reviewing an ineffective assistance of counsel claim based upon a

conflict of interest, we review the district court's determination of whether an

actual conflict existed de novo, and we review the district court's factual findings

under a clearly erroneous standard. United States v. Martin, 965 F.2d 839, 841

(10th Cir. 1992) (citing United States v. Suntar Roofing, Inc., 897 F.2d 469, 480

(10th Cir. 1990)). "A ruling on a motion for mistrial is within the sound

discretion of the district court, and will not be disturbed absent a clear abuse of

that discretion." United States v. Wacker, 72 F.3d 1453, 1466 (10th Cir. 1995),

cert. denied, 117 S. Ct. 136 (1996). Similarly, we review a district court's

decision to grant or deny a motion for a new trial under an abuse of discretion

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standard. Ms. Gallegos asserted this claim during trial and in a motion for a new

trial. United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.), cert. denied, 115

S. Ct. 175 (1994).

Generally, ineffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal. See United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc). "Such claims brought on direct

appeal are presumptively dismissible, and virtually all will be dismissed." Id.

This rule "encourages development of a record on the tactical reasons for trial

counsel's decisions, the extent of trial counsel's alleged deficiencies, and the

asserted prejudicial impact on the outcome of the trial." Beaulieu v. United

States, 930 F.2d 805, 807 (10th Cir. 1991), overruled in part by Galloway, 56

F.3d at 1241.

Nevertheless, we have considered ineffective assistance of counsel claims

on direct appeal where such claims were adequately developed by the district

court prior to appeal. Galloway, 56 F.3d at 1240-41. The instant appeal contains

just such a claim. As stated, Ms. Gallegos asserted her conflict of interest

argument (which is the basis for her ineffective assistance of counsel claim) at

trial and in a post-trial motion. In its post-trial order, the district court weighed

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the merits of her argument and denied her claim. Ms. Gallegos' ineffective

assistance of counsel claim is well-documented in the record and, therefore, we

will review her claim on direct appeal.

The Sixth Amendment to the United States Constitution entitles a defendant

in a criminal case to the effective assistance of counsel. Powell v. Alabama, 287

U.S. 45 (1932). "The purpose [of this amendment] is to ensure that criminal

defendants receive a fair trial." Strickland v. Washington, 466 U.S. 668, 689

(1984) (citation omitted). A defendant's right to the effective assistance of

counsel includes a right to "'representation that is free from conflicts of interest.'"

United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (quoting Wood v.

Georgia, 450 U.S. 261, 271 (1981)). This right to conflict-free representation

"'extends to any situation in which a defendant's counsel owes conflicting duties

to that defendant and some other third person.'" Id. (quoting United States v. Soto

Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)).

In Holloway v. Arkansas, 435 U.S. 475 (1978), the Supreme Court set forth

principles for evaluating whether a defendant's right to conflict-free

representation has been violated in situations where the alleged conflict of

interest has been brought to the trial court's attention in a timely fashion. The

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district court in Holloway jointly tried three defendants who were represented by

one public defender. Id. at 477. Prior to trial, the defendants' attorney moved the

court to appoint separate counsel for each defendant because of a potential

conflict of interest. Id. After conducting a hearing on the motion, the court

declined to appoint separate counsel. Id. On the second day of trial, the

defendants' counsel informed the court all three defendants had decided to testify

and the "conflict will probably be now coming up." Id. at 478. In response, the

court stated "[t]hat's all right; let them testify. There is no conflict of interest."

Id. at 479. Following the defendants' testimony, the jury returned guilty verdicts

on all counts. Id. at 481.

On appeal, the Supreme Court reversed the convictions. Id. at 484-91. The

Court determined that although defense counsel brought the potential conflict of

interest to the court's attention in a timely fashion, the trial court erred in failing

to either "appoint separate counsel or to take adequate steps to ascertain whether

the risk was too remote to warrant separate counsel." Id. at 484. According to

the Court, the trial court's failure to take such precautionary measures "deprived

[the defendants] of the guarantee of 'assistance of counsel,'" and mandated

reversal. Id. at 484, 488-90. The Court declared the "assistance of counsel is

among those 'constitutional rights so basic to a fair trial that their infraction can

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never be treated as harmless error.'" Id. at 489 (quoting Chapman v. California,

386 U.S. 18, 23 (1967)). Thus, where timely objection is made to joint

representation of conflicting interests, and where the trial court fails to adequately

address the conflicting interests, reversal is automatic. Holloway, 435 U.S. at

488-90.

Of course, a court may avoid a conflict of interest problem by securing a

waiver of a defendant's right to conflict-free representation. It is well settled that

a defendant may waive his right to conflict-free counsel. See Holloway, 435 U.S.

at 483 n.5 ("a defendant may waive his right to the assistance of an attorney

unhindered by a conflict of interests") (citing Glasser v. United States, 315 U.S.

60, 70 (1942)); see also Edens v. Hannigan, 87 F.3d 1109, 1118 (10th Cir. 1996).

However, the waiver of a constitutional right must not only be voluntary, but must

be a knowing, intelligent act "done with sufficient awareness of the relevant

circumstances and likely consequences." Brady v. United States, 397 U.S. 742,

748 (1970). In determining whether a defendant has waived his right to conflict-

free representation, a court must "indulge every reasonable presumption against

the waiver." Glasser, 315 U.S. at 70.

Recently, the Tenth Circuit was presented with a conflict of interest claim

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strikingly similar to Ms. Gallegos' claim. In Cook, defendants Lewis Cook and

Yvonne Cross retained counsel Jeffrey Fischer to jointly represent them following

their arrest on drug charges. 45 F.3d at 391. Ms. Cross entered into a plea

agreement which required her to testify against her co-defendant. Id. Thereafter,

the United States filed a motion to recuse Mr. Fischer from representing Ms.

Cross due to the conflict of interest. Id. The district court granted the motion

and appointed separate counsel for Ms. Cross. Id.

When the United States called Ms. Cross to testify at Mr. Cook's trial, Ms.

Cross refused to testify against Mr. Cook. Id. The district court then ordered Mr.

Fischer to "visit with Ms. Cross" and advise her of the consequences of her

failure to testify. Id. Although Mr. Fischer reminded the court of his conflict of

interest, the court reiterated its order. Id. Mr. Fischer, along with the prosecuting

attorney and Ms. Cross' court-appointed attorney, then met with Ms. Cross. 6 Id.

Following the meeting, Ms. Cross testified against Mr. Cook, and Mr. Cook was

ultimately convicted. Id.

6
At the meeting, Mr. Fischer did not actually communicate with Ms.
Cross. Id. He was merely an observer to the conversation between Ms. Cross, the
prosecuting attorney, and Ms. Cross' court-appointed attorney. Id.

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 On appeal, Mr. Cook argued he was denied effective assistance of counsel

free from conflicts of interest when the trial court ordered Mr. Fischer to advise

Ms. Cross to comply with her plea agreement. Id. at 393. Noting Mr. Cook

timely objected to the conflict of interest at trial, we determined the principles set

forth by the Supreme Court in Holloway were controlling. Id. We reasoned:

In the face of this timely objection, and after previously recusing
Fischer from representing Cross because of the conflict of interest,
the district court "turn[ed] a blind eye to an obvious possible
conflict," and again insisted that Fischer meet with Cross "for the
limited purpose of ... advising her of what [could] happen" if she
failed to testify in accordance with her plea agreement. Under these
circumstances, we conclude the district court failed to comply with
the dictates of Holloway by ... "'insisting ... that counsel undertake to
concurrently represent interests which might diverge from those of
his first client, when the possibility of that divergence is brought
home to the court.'" As a result, Defendant was deprived of his Sixth
Amendment right to conflict-free assistance of counsel.

Id. at 394 (citations omitted) (emphasis added).

Here, as in Holloway and Cook, defense counsel brought the potential

conflict of interest to the trial court's attention in a timely fashion. On the first

day of trial, when Mr. Blackburn learned Mr. Gutierrez was listed as a potential

witness, Mr. Blackburn informed the district court he was concerned about the

attorney-client privilege and his ability to question Mr. Gutierrez without a waiver

of that privilege. Prior to the calling of Mr. Gutierrez as a witness during the

trial, Mr. Blackburn reiterated his concerns to the court with more specificity. As

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stated by Mr. Blackburn:

my loyalties to [Mr. Gutierrez] has to be to say you need to take the
Fifth Amendment. My loyalties to my client, Sonia Gallegos, is that
he should testify. I see no way to rectify that decision ....

Due to this conflict, Mr. Blackburn requested the court to sever the trial of Ms.

Gallegos from that of her co-defendants. We believe Mr. Blackburn's

advisements to the district court on these two occasions sufficiently apprised the

court of the conflict of interest.

Because Mr. Blackburn brought the conflict of interest to the trial court's

attention in a timely fashion, Holloway controls the outcome of Ms. Gallegos'

conflict of interest claim. In order for the district court to have complied with the

mandates of Holloway, the court must have, upon learning of the potential

conflict, either: (1) appointed separate counsel to represent Mr. Gutierrez; (2)

taken "adequate steps to ascertain whether the risk was too remote to warrant

separate counsel;" or (3) determined if both Ms. Gallegos and Mr. Gutierrez were

willing to waive their right to conflict-free representation. See Holloway, 435

U.S. at 483-84 & n.5. The district court's failure to take one or more of these

measures requires reversal. We now turn to the district court's actions.

When Mr. Blackburn informed the court of his concerns on the first day of

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trial, the court took no action. Rather, it informed the parties it would deal with

the issue when and if Mr. Gutierrez was called as a witness. We do not believe

the trial court erred in electing not to resolve the issue on the first day of trial. At

that stage, there was a distinct possibility the potential conflict of interest would

never surface. Mr. Gutierrez was merely listed as a witness on one of the ten

defendants' witness lists. Rarely do all such witnesses testify at trial. Thus, the

trial court's decision to defer consideration of the issue until it arose was not,

standing alone, erroneous.

Nevertheless, the trial court's actions immediately preceding the calling of

Mr. Gutierrez as a witness require closer scrutiny. When the trial court learned

Mr. Aguirre would be calling Mr. Gutierrez as his next witness, the court asked

Mr. Blackburn if he would like to confer with his "client" (Mr. Gutierrez). The

trial court then asked Mr. Blackburn to determine whether Mr. Gutierrez was

"planning on invoking the Fifth." After Mr. Blackburn and Mr. Gutierrez met

briefly, Mr. Blackburn informed the court of his conflict of interest concerns and

requested a severance for Ms. Gallegos. The court then asked Mr. Gutierrez if he

intended to assert his Fifth Amendment rights. When Mr. Gutierrez replied he

would be invoking the Fifth Amendment based on the advice of his lawyer (Mr.

Blackburn), the prosecuting attorney requested the court to appoint independent

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counsel for Mr. Gutierrez to resolve any conflict issues. The court and Mr.

Gutierrez then engaged in the following exchange:

THE COURT: ... [Y]ou don't mind getting another lawyer, do
you, Mr. Gutierrez?

[MR. GUTIERREZ]: I'd rather -- I've always had -- dealt with
Billy. I'd rather have him.

THE COURT: Okay. Well, I won't appoint you another one.
If you don't want anybody, that's it.

The court did not grant Ms. Gallegos' request for severance and Mr. Gutierrez did

not testify at trial. 7

Thus, the trial court did not appoint separate counsel for Mr. Gutierrez or

take any steps to ascertain whether the risk of conflict was too remote to warrant

separate counsel. Moreover, the trial court neglected to determine whether Mr.

Gutierrez and Ms. Gallegos were willing to waive their Sixth Amendment right to

conflict-free representation. The record reveals the court was oblivious to the

duty Mr. Blackburn owed to Ms. Gallegos. The trial court focused exclusively on

the obligation Mr. Blackburn owed to Mr. Gutierrez. As the district court in Cook

7
Following the district court's decision to not appoint another lawyer for
Mr. Gutierrez, a sealed in camera hearing was held at the request of Mr.
Blackburn. During the hearing, Mr. Blackburn elaborated on the nature of the
conflict of interest. The district court made no rulings or substantive comments at
the in camera hearing.

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requested defense counsel to confer with the witness-client, the district court here

encouraged Mr. Blackburn to meet with Mr. Gutierrez. The court even went so

far as to request Mr. Blackburn to inquire whether Mr. Gutierrez would be

invoking the Fifth Amendment.

If the trial court had, in fact, taken "adequate steps to ascertain whether the

risk was too remote to warrant separate counsel," Holloway, 435 U.S. at 484, the

court would have determined there was indeed a material conflict of interest

present. As Mr. Blackburn explained to the court, he was in a very precarious

situation. Because Mr. Gutierrez possessed information that was exculpatory to

Ms. Gallegos, Mr. Blackburn's duty to Ms. Gallegos was to encourage Mr.

Gutierrez to testify and to attempt to elicit this exculpatory information from him.

On the other hand, Mr. Blackburn's obligation to Mr. Gutierrez was to discourage

him from testifying. If Mr. Gutierrez had testified, he would have subjected

himself to the risk of additional criminal charges. Thus, there was a real conflict

of interest present, and the trial court erred in failing to either obtain a waiver

from Ms. Gallegos or take adequate steps to protect Ms. Gallegos' right to

conflict-free representation.

The United States cites United States v. McCullah, 76 F.3d 1087 (10th

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Cir.), petition for cert. filed, (U.S. Nov. 22, 1996) (No. 96-6841), for the

proposition that because Mr. Gutierrez never testified, a conflict never

materialized. In McCullah, the defendant argued his attorney, an assistant public

defender, represented him under a conflict of interest because a prospective

United States witness was being represented by another assistant in the same

public defenders' office. Id. at 1098. However, we determined a conflict of

interest never materialized because the trial court did not permit the United States'

witness to testify. Id. at 1099. The trial court in McCullah "assessed the risk of

conflict and properly determined that disallowing [the potential conflicting

witness'] testimony adequately eliminated any risk." Id. By doing so, the trial

court complied with the mandates of Holloway. Id. at 1098-99.

McCullah is inapposite to the instant case. Here, unlike McCullah, the trial

court did not assess the risk of conflict and determine Mr. Gutierrez could not

testify on behalf of Mr. Aguirre. Instead, the record indicates the court was

perfectly willing to allow Mr. Gutierrez to testify. Although Mr. Gutierrez

asserted his Fifth Amendment privilege, this did not obviate Mr. Blackburn's

conflict of interest. Because Mr. Gutierrez could have given exculpatory

testimony on Ms. Gallegos' behalf, his refusal to testify, based on the advice of

Mr. Blackburn, actualized the conflict of interest. As in Cook, Mr. Blackburn

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"was placed in a position of representing interests of a ... witness directly adverse

to those of his client." 45 F.3d at 394. If the trial court had recognized the

conflict of interest and the duty Mr. Blackburn owed to Ms. Gallegos rather than

focusing solely on Mr. Blackburn's duty to Mr. Gutierrez, the trial court would

either have sought a waiver from Ms. Gallegos of her right to conflict-free

representation or appointed independent counsel to represent Mr. Gutierrez.

Unfortunately, the trial court did neither and, therefore, under Holloway, it

committed reversible error. 8

5. Jury Misconduct

Finally, Ms. Gallegos contends the jury's improper reliance on the

dictionary definition of the term "distribution" created a presumption of prejudice

that was not rebutted by the United States. Having determined Ms. Gallegos is

entitled to a new trial based on the violation of her Sixth Amendment right to

conflict-free representation, we need not consider the issue of jury misconduct.

8
Nor can the trial court's post-trial observations on the conflict issue cure
the trial court's failure to follow the mandates of Holloway. The trial court denied
Ms. Gallegos' motion for a new trial based upon ineffective assistance of counsel
because it determined Mr. Gutierrez would have asserted the Fifth Amendment
with or without the advice of Mr. Blackburn. This may or may not be true. The
fact remains the trial court failed to secure a waiver or otherwise adequately
address the conflict situation when it arose, as required by Holloway.

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 B. United States' Appeal

The United States contends the district court erred in (1) failing to apply

the drug conspiracy guidelines to Ms. Gallegos and (2) determining Ms. Gallegos

was not an organizer or leader of the conspiracy. Because Ms. Gallegos is

entitled to a new trial, we have no reason to consider these issues.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the convictions of Ms. Gallegos

and REMAND this action to the district court for further proceedings consistent

with this opinion.

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