United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 1998 Decided April 3, 1998
No. 97-3028
United States of America,
Appellee
v.
Robert N. Taylor,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00233-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant, with whom A.J. Kramer, Federal
Public Defender, was on the briefs. David A. Howard,
Assistant Federal Public Defender, entered an appearance.
Rachel Adelman-Pierson, Assistant U.S. Attorney, argued
the cause for appellee, with whom Mary Lou Leary, U.S.
Attorney at the time the brief was filed, John R. Fisher and
Elizabeth Trosman, Assistant U.S. Attorneys, were on the
brief.
Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Appellant Robert N. Taylor ap-
peals the denial of his pre-sentence motion to withdraw his
guilty plea to felony criminal contempt and wire fraud. He
contends that, despite the fact that his plea was entered
following the trial, the district court abused its discretion by
not holding an evidentiary hearing on claims that his trial
counsel had a conflict of interest that denied him the effective
assistance of counsel under Cuyler v. Sullivan, 446 U.S. 335
(1980). Because Taylor's averments related to matters out-
side of the trial record and were sufficient to demonstrate, if
credited, that trial counsel had a conflict of interest that
adversely affected the adequacy of his representation, we
reverse and remand the case for an evidentiary hearing.
I.
In the fall of 1995, the Securities and Exchange Commis-
sion ("SEC") filed a civil enforcement action against appel-
lant, Robert N. Taylor, alleging that he had operated his
company, the Better Life Club of America, Inc., as a fraudu-
lent Ponzi scheme. Thereafter, the district court issued both
a temporary restraining order and a preliminary injunction
freezing all of Taylor's personal and corporate assets.1 The
instant appeal arises out of Taylor's prosecution for criminal
contempt for his alleged violation of these freeze orders.
The government pursued two contempt citations against
Taylor, one for criminal contempt arising out of a series of
bank transactions and a second for civil contempt arising out
of Taylor's refinancing of his home. The first effort began on
May 1, 1996, when the government filed a show cause applica-
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1 The orders were issued by different judges, but for simplicity,
we refer to all freeze orders as being issued "by the district court."
tion for criminal contempt alleging that Taylor had violated
the freeze orders by engaging in more than two hundred
different banking transactions and by failing to disclose the
existence of several bank accounts. To avoid a jury trial, the
government asked the district court, and it agreed, to limit
any sentence to no more than six months imprisonment or a
fine of no more than $5,000, effectively charging Taylor with a
petty offense misdemeanor of criminal contempt. See 18
U.S.C. s 1(3) (1988); United States v. Nachtigal, 507 U.S. 1,
4 (1993); Frank v. United States, 395 U.S. 147, 148-50 (1969).
The show cause hearing began on July 1, and was continued
until July 19, when the district court deferred its ruling until
July 22, pending ongoing plea negotiations.
While the criminal contempt proceeding was pending, the
SEC learned that Taylor and his girlfriend, who had been
brought into the civil enforcement action as a relief defen-
dant, had refinanced their home and received a "cash out"
share of the refinancing. It subsequently initiated a civil
contempt proceeding, alleging that Taylor and his girlfriend
had violated the freeze orders. A hearing was held on July
17, 1996, before a different judge, who took the matter under
advisement.
Before either judge ruled in the criminal or civil contempt
proceedings, however, Taylor entered into a comprehensive
plea agreement with the government. The global agreement
encompassed not only the banking transactions underlying
the misdemeanor contempt proceedings, but also Taylor's
actions in securing the home refinancing. Taylor agreed to
plead guilty to wire fraud, see 18 U.S.C. ss 2, 1343, for
several alleged misrepresentations he had made in his refi-
nancing application,2 as well as to felony contempt, see 18
U.S.C. s 401(3), for both the refinancing and the bank trans-
actions.3 Taylor faced a maximum possible sentence of five
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2 Taylor allegedly stated in his application that he was not
subject to any litigation and was earning $9,000 a month as a
financial advisor.
3 Taylor also waived his right to an indictment on the new
criminal charges, waived venue on the wire fraud charge, and
years' imprisonment and a substantial fine on the wire fraud
charges, see 18 U.S.C. s 1343, in addition to three years of
supervised release and a requirement that he make full
restitution. The felony contempt charge carried an unspeci-
fied maximum sentence to be determined at the discretion of
the court. See 18 U.S.C. s 401. In exchange, the govern-
ment agreed to withdraw its original misdemeanor criminal
contempt charges, request the SEC to dismiss its civil con-
tempt application, and request concurrent sentences for con-
tempt and wire fraud, with the former sentence no longer
than the latter. Additionally, the government agreed to
allocute for the maximum reduction of his sentence for accep-
tance of responsibility under section 3E1.1 of the Sentencing
Guidelines, forego the underlying securities fraud claim as
relevant conduct, and not to prosecute Taylor's girlfriend.
Pursuant to the agreement, Taylor pleaded guilty, following a
Rule 11 hearing, to wire fraud and felony criminal contempt
on July 22, 1996. See Fed. R. Crim. P. 11.
Prior to sentencing, Taylor wrote a letter to the district
court indicating that he wanted to withdraw his guilty plea
and request the appointment of new counsel. On the same
day, August 30, 1996, he filed a motion to withdraw his plea
on the ground of ineffective assistance of counsel. With
newly appointed counsel, Taylor filed a revised motion and a
supporting affidavit. Taylor's ineffectiveness allegations ini-
tially consisted of three general claims: erratic conduct,
economic coercion, and a conflict of interest.
As to the first, the record shows that during the course of
the securities fraud and misdemeanor contempt proceedings,
the district court repeatedly had expressed concern about the
adequacy of Taylor's representation. Trial counsel had failed
to appear for two hearings in the SEC proceeding and
exhibited other erratic behavior as a result of personal prob-
lems relating to substance abuse. Notwithstanding sugges-
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waived any double jeopardy claim with regard to the contempt
charges arising from the bank transactions. He further agreed to
disgorge the net proceeds from the home refinancing or provide
proof of his inability to do so.
tions from the district court that he might wish to retain a
different lawyer, Taylor continually expressed satisfaction
with trial counsel.4 Nevertheless, in support of his motion to
withdraw his guilty plea, Taylor averred that trial counsel had
missed several meetings with him regarding the plea negotia-
tions and been otherwise distracted or inattentive. Addition-
ally, Taylor alleged that trial counsel had failed to explain
fourteen different provisions of the plea agreement prior to
his entry of his plea.
Taylor also claimed that trial counsel had "financially
coerced" him into pleading guilty because Taylor was unable
to meet counsel's "unrelenting" fee demands. Specifically,
Taylor alleged that in late June or early July of 1996, trial
counsel "asked for an additional $5,000 to proceed to trial,
and expressed a clear lack of interest in fighting [the] case
when [Taylor] advised him that he could not pay." Thereaf-
ter, counsel allegedly pressured Taylor to accept the govern-
ment's plea offer.
Finally, Taylor alleged that trial counsel was unable to
render effective assistance due to a conflict of interest. In
his revised motion, Taylor focused on trial counsel's substance
abuse problems and claimed that trial counsel was "inclined
to divest himself" of any additional burdens to his recovery.
He also noted that trial counsel faced possible disciplinary
action by the bar as well as a contempt sanction from the
district court. Thus, Taylor claimed, trial counsel pressured
him into accepting the government's plea agreement in order
to dispose of the case as quickly as possible.
Trial counsel's affidavit, submitted with the government's
opposition to the motion to withdraw, painted a very different
picture of his relationship with Taylor. Trial counsel denied
any economic coercion and portrayed conscientious efforts on
__________
4 At one point, Taylor sought new counsel for the misdemeanor
contempt proceedings while retaining trial counsel in the civil case.
He then changed his mind and indicated that he wished to retain
trial counsel in the criminal matter but not the civil matter. The
district court would not allow the latter arrangement, and Taylor
subsequently agreed trial counsel could represent him in both cases.
behalf of a client who was potentially facing multiple criminal
charges. Trial counsel acknowledged his advice that Taylor
pursue a global plea agreement with the government, and
described his repeated efforts, some successful, to obtain
more favorable terms.
When Taylor's motion to withdraw came before the district
court on December 9, 1996, the court observed that neither
the pleadings nor the affidavits suggested that Taylor had
any viable defense to the criminal contempt or wire fraud
charges. Taylor's new counsel then alerted the court, for the
first time, to a factual dispute over trial counsel's advice to
Taylor regarding the refinancing of his home.5 Trial counsel
stated in his affidavit that he had "specifically advised [Tay-
lor] against [the refinancing] and told him that to refinance
the house would probably constitute the encumbrance of an
asset and would likely be in violation of the court ordered
asset freeze." Taylor disputed this statement, averring that
trial counsel had advised him to proceed with the refinancing.
Thus, new counsel argued, Taylor had an advice of counsel
defense to the contempt charges of which he had not been
informed. Further, new counsel urged that trial counsel
would have had a conflict of interest in presenting this
defense. Although this issue had not been previously briefed,
the district court continued the hearing to allow Taylor to file
"whatever he alleges his defense is."
In a supplemental affidavit Taylor averred that prior to
refinancing his home he had sought advice from trial counsel
and had been told, "Go ahead and do it. There is nothing in
the [freeze orders] which prevents you from refinancing your
home." According to Taylor, trial counsel had only cautioned
that the SEC would be upset and discussed the ambiguous
nature of the order.6 Taylor also submitted documents that
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5 New counsel explained to the district court that he had not
asserted this defense in the pleadings on the motion because he did
not think that the government had a right to be privy to the nature
of Taylor's defense should the case go to trial.
6 Taylor also referred to an inadvertent-conduct defense to the
wire fraud and claimed to have suggested potential defenses and
he had sent to trial counsel indicating that at one point he did
not want to enter a guilty plea, but wanted to force the
government to prove its case, and that he had defenses
regarding several of the charges.
After further argument by counsel, the district court de-
nied Taylor's motion without an evidentiary hearing. Based
upon Taylor's affidavits, the government's oppositions to with-
drawal of the plea, trial counsel's affidavit, Taylor's sworn
statements at the Rule 11 hearing, and the court's knowledge
of the misdemeanor contempt proceedings, the district court
found that Taylor's claims of ineffective assistance were not
credible, and, alternatively, that even if Taylor's allegations
were true, he could not show that he had been prejudiced.
The court was unpersuaded by Taylor's change of heart about
trial counsel after repeatedly reaffirming his satisfaction with
counsel, and by the economic coercion claim since trial coun-
sel had taken the case to trial and the plea was not entered
until after the trial had been completed. The court recalled
Taylor's statements under oath at the Rule 11 hearing that
his plea was voluntary and that he was satisfied with his trial
counsel. Regarding prejudice, the court observed that Taylor
"was never able to present a single viable defense to the
charges," not even at the plea withdrawal proceedings, after
taking months to prepare his collateral attack. Finally, the
court noted that Taylor "cannot present any convincing evi-
dence that he might have faced better prospects at a verdict
than he did in his plea." The district court sentenced Taylor
to forty-one months imprisonment on each count, to run
concurrently, and ordered him to pay a special assessment of
$200 and to make restitution in the amount of $80,122.63.
II.
Withdrawal of a guilty plea prior to sentencing is to be
liberally granted, and permitted for "any fair and just rea-
son." Fed. R. Crim. P. 32(e); United States v. Ford, 993 F.2d
249, 251 (D.C. Cir. 1993). In reviewing the district court's
__________
witnesses for the misdemeanor contempt charge that trial counsel
failed to pursue.
denial of a motion to withdraw, this court focuses on three
factors in order to determine whether there was an abuse of
discretion: (1) "whether the defendant has asserted a viable
claim of innocence"; (2) "whether the delay between the
guilty plea and the motion to withdraw has substantially
prejudiced the government's ability to prosecute the case;"
and (3) "whether the guilty plea was somehow tainted."
Ford, 993 F.2d at 251. The third factor is the "most impor-
tant," and the standard for allowing withdrawal of a plea is
fairly lenient when the defendant can show that the plea was
entered unconstitutionally. Id. Here, the government does
not claim substantial prejudice under the second factor, and
Taylor's conflict of interest claim is directly related to his
contention that he has presented a viable claim of innocence,
at least for some of the charges against him. Hence, our
focus is on the third factor, for Taylor contends that his guilty
plea was tainted by the ineffective assistance of his trial
counsel and, consequently, he did not knowingly enter his
plea.
"A plea is not voluntary or intelligent," and therefore
unconstitutional, "if the advice given by defense counsel on
which the defendant relied in entering the plea falls below the
level of reasonable competence such that the defendant does
not receive effective assistance of counsel." United States v.
Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990). To withdraw
a plea on this basis, a defendant must ordinarily satisfy the
two-pronged standard of Strickland v. Washington, 466 U.S.
668, 687 (1984), for violations of the Sixth Amendment guar-
antee. See Hill v. Lockhart, 474 U.S. 52, 57-60 (1985);
United States v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997);
United States v. Horne, 987 F.2d 833, 835 (D.C. Cir. 1993). A
defendant must therefore show first, that his counsel's perfor-
mance "fell below an objective standard of reasonableness" by
identifying specific "acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment." Strickland, 466 U.S. at 687-88, 690. Second, a
defendant must demonstrate that the deficiencies in his rep-
resentation were prejudicial to his defense. Id. at 692. He
"must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 59.
Taylor maintains, however, that his assertions of ineffec-
tiveness fall within a "genre" of ineffective assistance claims
based upon a counsel's conflict of interest. United States v.
Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996). In Cuyler v.
Sullivan, 446 U.S. 335, 349-350 (1980), the Supreme Court
recognized that a defendant's Sixth Amendment right to
effective assistance of counsel may be violated when an actual
conflict of interest adversely affects the adequacy of the
defendant's representation. See id. at 349-51. In that event,
prejudice will be presumed "if the defendant demonstrates
that counsel 'actively represented conflicting interests' " and
that the conflict "adversely affected his lawyer's perfor-
mance." Strickland, 466 U.S. at 692 (quoting Cuyler, 446
U.S. at 350, 348); accord Bruce, 89 F.3d at 893. In order to
present a valid Cuyler claim, this court requires a defendant
to show that his counsel advanced his own, or another client's,
interest to the detriment of the defendant. See Bruce, 89
F.3d at 893. Counsel's action, moreover, must be knowing;
counsel who remains unaware of adverse interests among
clients does not have an "actual conflict." See United States
v. Gantt, No. 97-3053 (D.C. Cir.) (opinion forthcoming). "If
an attorney fails to make a legitimate argument because of
the attorney's conflicting interest ... then the Cuyler stan-
dard has been met." Bruce, 89 F.3d at 896 (emphasis in
original).
It is true that the court has generally been reluctant to
allow defendants to "force their ineffective assistance claims
into the 'actual conflict of interest' framework ... and there-
by supplant the strict Strickland standard with the far more
lenient Cuyler test." United States v. Bruce, 89 F.3d 886,
893 (D.C. Cir. 1996) (citing United States v. Leggett, 81 F.3d
220, 227 (D.C. Cir. 1996), and United States v. Farley, 72 F.3d
158, 166 (D.C. Cir. 1995)). In Cuyler, the Supreme Court was
confronted with special problems of multiple representation:
two attorneys jointly represented three defendants. See
Cuyler, 446 U.S. at 337. The record indicated that counsel
differed in their views about how one defendant's case should
be handled, and that there were ways in which proceeding on
behalf of one defendant might have harmed another defen-
dant. See id. at 338-340. Emphasizing that "the possibility
of conflict is insufficient to impugn a criminal conviction," the
Court held that to demonstrate a violation of the Sixth
Amendment "a defendant must establish that an actual con-
flict of interest adversely affected his lawyer's performance."
Id. at 350. Under such circumstances, the Court determined
prejudice would then be presumed. Id. at 350. Subsequent-
ly, in Strickland, the Court reemphasized that "[p]rejudice is
presumed only if the defendant demonstrated that counsel
'actively represented conflicting interest' and that 'an actual
conflict of interest adversely affected his lawyer's perfor-
mance.' " 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348).
In the context of joint representation, this standard is more
easily satisfied because "when an attorney represents two
clients with opposing interests, the attorney cannot serve
both clients adequately.... [The attorney] 'must fail one or
do nothing and fail both.' " Perillo v. Johnson, 79 F.3d 441,
447 (5th Cir. 1996) (quoting Beets v. Scott, 65 F.3d 1258, 1270
(5th Cir. 1995)). But when other conflicts are alleged to have
impaired counsel's performance, the defendant's burden is to
show that counsel actually acted in a manner that adversely
affected his representation by doing something, or refraining
from doing something, that a non-conflicted counsel would not
have done. See United States v. Soldevila-Lopez, 17 F.3d
480, 486-87 (1st Cir. 1994).
In order for there to be an "actual conflict," an attorney
must be forced to make a choice advancing his own interest at
the expense of his client's. See Bruce, 89 F.3d at 893. An
ethical lapse is not the same as a conflict of interest, Bruce,
89 F.3d at 893-94, and a Cuyler conflict does not arise from
mere "friction between trial counsel and the court," Shark, 51
F.3d at 1076, or from a misunderstanding between a defen-
dant and trial counsel on trial tactics. See United States v.
Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996). Neither is a
hypothetical conflict having no effect on trial counsel's repre-
sentation enough to come within Cuyler's reach and thus
avoid the need to show Strickland prejudice. See Cuyler, 446
U.S. at 350; Bucuvalas v. United States, 98 F.3d 652, 657 (1st
Cir. 1996) (requiring more than some attenuated hypothesis
having little consequence to the adequacy of representation);
United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988).
As a threshold matter, we find unpersuasive the govern-
ment's contention that Taylor waived any right to contest his
trial counsel's deficient representation. Taylor's appeal relies
on events of which he was not then aware or that occurred
after he had assured the district court that he was satisfied
with his trial counsel. Throughout the course of the trial,
Taylor was aware of his trial counsel's personal difficulties
and professional lapses and was offered the opportunity to
change counsel by the court. On several occasions the dis-
trict court warned Taylor that by allowing counsel to contin-
ue, Taylor would "waive any rights that [he] ha[d] to object to
his failure to properly represent [him] in the past or at
present or in the future because of his condition." Still he
decided to retain his trial counsel. Because a defendant can
entirely waive his or her right to counsel, see Johnson v.
Zerbst, 304 U.S. 458, 464-65 (1938), and courts have recog-
nized that a co-defendant can waive his or her right to
conflict-free counsel in agreeing to joint representation, see,
e.g., United States v. Rico, 51 F.3d 495, 509-512 (5th Cir.
1995), the government contends that Taylor could similarly
waive in advance all claims concerning the quality of his
representation. Taylor's response to the district court's re-
peated warnings, it maintains, constitutes such a general
waiver.
The court, however, must "indulge every reasonable pre-
sumption against the waiver of the unimpaired assistance of
counsel." Campbell v. United States, 352 F.2d 359, 361 (D.C.
Cir. 1965) (citing Glasser v. United States, 315 U.S. 60, 70
(1942)). Consequently, Taylor's averments of satisfaction are
properly viewed more narrowly than the government urges.
The court may assume for purposes of the instant appeal that
his expressions of satisfaction with his trial counsel's perfor-
mance bar any claims arising from prior acts or omissions of
counsel of which Taylor reasonably could or should have
known. Furthermore, in light of the district court's warn-
ings, the court may assume that Taylor also knowingly and
voluntarily waived any future claims of ineffective assistance
based upon trial counsel's drug abuse, at least to the extent it
was known and understood by Taylor. But Taylor did not
indiscriminately waive his right to pursue ineffectiveness
claims on other grounds, such as those addressed here. Cf.
United States v. Lowry, 971 F.2d 55, 63 (7th Cir.1992).
Taylor could not have foreseen trial counsel's conduct in plea
negotiations with the government and was unaware of trial
counsel's alleged conflicts when he affirmed the adequacy of
his representation. Cf. United States v. Raynor, No. 97-
0186, 1997 WL 800395, at *1 (D.D.C. Dec. 29, 1997). Even if
Taylor's statements were broadly construed to include his
present conflict of interest claims, they could not have formed
a valid waiver because he did not know of his possible advice
of counsel defense when he made them. See Johnson, 304
U.S. at 464.
Turning to the merits, Taylor contends on appeal that trial
counsel had three different conflicts, only one of which re-
quires extended discussion. First, he maintains that trial
counsel was inclined to end the case as quickly as possible
because trial counsel risked being held in contempt if he did
not continue to satisfy the district court that he was comply-
ing with his drug treatment program. Standing alone this is
insufficient to show a conflict of interest inasmuch as the
court has previously observed that such a claim is meritless.7
See United States v. Shark, 51 F.3d 1072, 1075-76 (D.C. Cir.
1995). Because all attorneys potentially face contempt cita-
tions, no particular attorney can be considered ineffective due
to a concern that he or she might be so cited. See id. at
1076.
Second, Taylor maintains that trial counsel's personal fi-
nancial interest also motivated him to dispose of the case
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7 Alternatively, as the government contends, Taylor has waived
his claim that counsel was conflicted because he performed under
the threat of a contempt sanction. Taylor knew about this when he
agreed to retain counsel and this claim arises out of counsel's
substance abuse problems.
through a plea without regard for Taylor's interests. Yet,
this too, is unpersuasive for the reasons noted by the district
court, and because many defendants undoubtedly face similar
financial demands from their counsel. Although a "defen-
dant's failure to pay fees may cause some divisiveness be-
tween attorney and client," courts generally presume that
counsel will subordinate his or her pecuniary interests and
honor his or her professional responsibility to a client.8 Unit-
ed States v. O'Neill, 118 F.3d 65, 71 (2d Cir. 1997), cert.
denied, 118 S. Ct. 728 (1998); United States v. Jeffers, 520
F.2d 1256, 1265 (7th Cir. 1975) (Stevens, J.). But cf. Daniels
v. United States, 54 F.3d 290, 294 (7th Cir. 1995). The
district court rejected Taylor's allegations of financial pres-
sure as incredible in view of the fact that trial counsel had
completed the trial before Taylor pleaded guilty. Even if
Taylor's trial costs were not necessarily at an end because he
potentially faced felony contempt and wire fraud charges, his
affidavit focuses solely on the past, alleging that trial counsel
asked him for more money on several occasions, the last
being July 12. Trial counsel, however, continued to represent
Taylor at both the civil contempt hearing on July 17 and the
criminal contempt hearing on July 19 without incident. Tay-
lor admits, moreover, that trial counsel never stated or other-
wise threatened that he would cease his representation if
Taylor failed to pay more money. Viewed in combination
with Taylor's sworn statement at the Rule 11 hearing that he
had not been coerced, he fails to allege any credible "actual
conflict" with trial counsel. Cf. Gantt, No. 97-3023 (D.C. Cir.)
(opinion forthcoming).
Third, and more troubling, Taylor maintains that trial
counsel had a conflict of interest in presenting an advice of
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8 For this reason, at least one circuit has held that the non-
paymnet of legal fees does not constitute a Cuyler conflict and is
more properly analyzed under Strickland. See O'Neil, 118 F.3d at
72; United States v. Wright, 845 F. Supp. 1041, 1078, n.35 (D. N.J.,
aff'd 46 F.3d 1120 (3rd Cir. 1994).
counsel defense and therefore it was in counsel's personal
interest to bring the case to a prompt conclusion through a
global plea. Specifically, he maintains that his trial counsel
failed to advise him of a viable advice of counsel defense to
the charges of felony criminal contempt that, along with the
independent wire fraud charges, were a significant motivating
factor in his decision to accept the global plea agreement. He
asserts this failure was caused, in part, by trial counsel's
concern that informing him of his defense would reveal to his
client, the district court, and the prosecutors that trial counsel
had provided his client with clearly inaccurate legal advice.
Hence, Taylor contends, trial counsel's interest in avoiding an
advice of counsel defense was in competition with Taylor's
interest to be informed of all viable defenses to the charges
when making a decision whether to accept a plea offer.
Ordinarily, when a defendant seeks to withdraw a guilty
plea on the basis of ineffective assistance of trial counsel the
district court should hold an evidentiary hearing to determine
the merits of the defendant's claims. "An evidentiary hearing
is critical to [an] evaluation of most ineffective assistance of
counsel claims, because these frequently concern matters
outside the trial record, such as whether counsel properly
investigated the case, considered relevant legal theories, or
adequately prepared a defense." United States v. Cyrus, 890
F.2d 1245, 1247 (D.C. Cir. 1989). On the other hand, some
claims of ineffective assistance of counsel can be resolved on
the basis of the trial transcripts and pleadings alone. See
United States v. Fennell, 53 F.3d 1296, 1303-4 (D.C. Cir.
1995), modified on reh'g, 77 F.3d 510 (1996); United States v.
Pinkney, 543 F.2d 908, 914 (D.C. Cir. 1976). For example,
the alleged acts of deficient performance by counsel may have
occurred in the course of proceedings before the trial court,
thereby making a hearing unnecessary. Cf. Pinkney, 543
F.2d at 915. Or the motion may fail to allege sufficient facts
or circumstances "upon which the elements of constitutionally
deficient performance might properly be found." Id. at 916.
Summary disposition may also be appropriate where the
defendant has failed to present any affidavits or other eviden-
tiary support for the naked assertions contained in his mo-
tion. See id. at 916-17. Furthermore, in challenging a guilty
plea on the basis of ineffective assistance, the representations
of the defendant at the plea hearing as to the adequacy of
counsel and the knowing and voluntary nature of his plea, see
Fed. R. Crim. P. 11(d), may "constitute a formidable barrier"
to his later refutations. Blackledge v. Allison, 431 U.S. 63,
74 (1977). But that barrier, "although imposing, is not invari-
ably insurmountable," and does not necessitate the summary
denial of a motion to withdraw a guilty plea. Id. Only if the
district court concludes that the defendant has not alleged
any cognizable claim for relief, or that the defendant's "con-
clusory allegations [are] unsupported by specifics," or that the
defendant's allegations "in the face of the record are wholly
incredible" may it summarily dismiss the motion. Id.
Taylor's Cuyler claim is premised on the fact that had he
not pleaded guilty, he could only have received a maximum
sentence of six months imprisonment for misdemeanor con-
tempt and would then have faced charges for wire fraud and
felony contempt, based solely on the refinancing of his home.
Had he known of his advice of counsel defense to the refi-
nancing contempt charges, there is a reasonable probability,
cf. Hill, 474 U.S. at 59, that he would not have accepted the
global plea agreement in which he pled guilty to felony
contempt for both the bank transactions and the refinancing.
Instead, he might have accepted the district court's ruling on
misdemeanor contempt and attempted to defend against the
more serious felony contempt charges. It was, after all, as
trial counsel's affidavit confirms, the fear of future criminal
contempt and wire fraud prosecutions that had driven the
final plea negotiations.
To demonstrate the need for an evidentiary hearing, Taylor
focuses on the factual dispute over trial counsel's advice on
the refinancing. Because the home financing was not the
subject of the misdemeanor contempt trial, it was impossible
for the district court to determine from the trial record what
communications Taylor and trial counsel may have had re-
garding the home financing, much less for the district court to
evaluate trial counsel's explanation without the benefit of
cross-examination. Were the district court to determine,
after an evidentiary hearing, that Taylor's allegations are
true, then trial counsel would have failed to advise him of an
advice of counsel defense that trial counsel's own affidavit
implies would have been a significant factor in Taylor's deci-
sion to accept the global plea agreement. Once Taylor's
averment regarding trial counsel's advice is credited, it is not
difficult to believe that trial counsel failed to provide Taylor
with this important information at least in part because to do
so would reveal to Taylor, the district court, and the prosecu-
tor that trial counsel had provided his client with inaccurate
legal advice. So viewed, trial counsel's interest in avoiding an
advice of counsel defense was in competition with Taylor's
interest to be informed of all viable defenses to the charges
against him when making a decision whether to accept the
global plea offer. But see Farley, 72 F.3d at 166.9 In a real
sense, then, "[trial counsel] 'was required to make a choice
advancing his own interests to the detriment of his client's
interests.' " Bruce, 89 F.3d at 893 (citations omitted).
Having presented an "actual conflict" by affidavit and
otherwise sufficient, nonconclusory allegations about trial
counsel's advice and its relationship to his decision to plead
guilty, Taylor need only show that the conflict of interest
"adversely affected his lawyer's performance." Strickland,
466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348). The
alleged conflict must have "had some negative effect upon his
defense (defined as 'an actual lapse in representation')."
Shark, 51 F.3d at 1075. In the instant case, trial counsel's
lapse was his very failure to apprise Taylor of a potential
defense that, if proved, could have provided a complete
defense to the felony contempt charges arising out of Taylor's
refinancing of his home.10 Cf. Gambino, 864 F.2d at 1070.
__________
9 Farley is distinguishable because the defendant's claim that
his counsel misadvised him was directly contradicted by the defen-
dant's description of the advice to the district court. See Farley, 72
F.3d at 165 & n.6. Also, had he misunderstood the guilty plea for
any reason, the plea would have been involuntary and unconstitu-
tional regardless of any advice his counsel may have given to him.
So viewed, there could be no conflict of interest.
10 The government does not contest the availability of an advice
of counsel defense for charges of criminal contempt. The district
court assumed that the defense was available in making its findings
and we presently have no need to address the issue.
Notwithstanding the strong presumption that counsel "made
all significant decisions in the exercise of reasonable profes-
sional judgment," Strickland, 466 U.S. at 690, trial counsel's
failure to inform his client about this defense clearly consti-
tuted deficient representation. Cf. Teague v. Scott, 60 F.3d
1167, 1170 (5th Cir. 1995). Taylor was entitled to make an
informed decision about whether to plead guilty or risk the
district court's judgment in the misdemeanor contempt trial
and defend against possible additional criminal charges. Cf.
United States v. Shepherd, 102 F.3d 558, 563 (D.C. Cir. 1997).
Moreover, Taylor is not required to establish ultimate preju-
dice as defined by Strickland and Hill. Therefore, Taylor's
allegation that trial counsel had failed to inform of him of this
defense due to his conflict of interest presents a valid Cuyler
claim, even if trial counsel succeeded in obtaining for Taylor
what appears, on its face, to be a favorable plea agreement.
Accordingly, we reverse and remand the case to the district
court for an evidentiary hearing to determine whether Tay-
lor's allegation that his trial counsel advised him that refi-
nancing his home would not violate the freeze orders is
plausible, and if it is, to permit Taylor to withdraw his plea.