UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1472
GEORGE M. BUCUVALAS,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Tauro,* District Judge.
Valeriano Diviacchi for appellant.
Carole S. Schwartz, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
October 28, 1996
* Chief Judge of the District of Massachusetts, sitting by
designation.
TAURO, Chief District Judge. Appellant George
TAURO, Chief District Judge.
Bucuvalas appeals the District Court's denial of his petition to
vacate his sentence made pursuant to 28 U.S.C. 2255.
Essentially, Bucuvalas asserts that his Sixth Amendment right to
effective assistance of counsel was violated because his
attorney's fees were paid by his co-defendants and because his
attorney advised him not to testify on his own behalf.
I.
I.
Background
Background
On February 15, 1989, George Bucuvalas was indicted in
the District of Massachusetts for participating in, and
conspiring to participate in, a pattern of racketeering activity
in violation of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1962(c)-(d), for mail fraud in
violation of 18 U.S.C. 1341 and 1342, and for conspiracy to
commit mail fraud in violation of 18 U.S.C. 371. His employers
-- Arthur Venios, Christy Venios, and Bel-Art Realty, Inc. ("Bel-
Art") -- were indicted for the same offenses.
The Venios' and Bel-Art retained attorney Morris
Goldings to represent them at trial. Bucuvalas subsequently
sought to retain Goldings as well. Goldings was not willing,
however, to represent both Bucuvalas and his co-defendants. He,
therefore, referred Bucuvalas to Attorney Terry Segal, whom
Bucuvalas had retained on past occasions. Segal represented
Bucuvalas in a criminal tax investigation which did not result in
an indictment and in a trial for bribery which resulted in a
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split verdict. Apparently satisfied with Segal's past
representation, Bucuvalas took Goldings' advice and retained
Segal to represent him with respect to the present charges.
On prior occasions, Bucuvalas' co-defendants, the
Venios' and Bel-Art, had paid Bucuvalas' legal fees. In keeping
with this practice, Bucuvalas arranged for them to pay Segal's
fee in the current matter. Upon retaining Segal, Bucuvalas
apprised Segal that he would be paid by Bucuvalas' co-defendants.
Goldings was also aware of the payment plan. Judge Woodlock, the
district judge to whom the case was assigned, was never informed
of the arrangement.
Segal took the case to trial. He adopted a strategy in
which he sought to portray Bucuvalas as a low-level employee who
was merely following his employers' orders and who lacked
knowledge of any wrongdoing.
As part of his strategy, Segal recommended that
Bucuvalas not testify at trial. Segal feared that the
government's cross-examination of Bucuvalas would undermine
Bucuvalas' defense. In particular, Segal feared that the
government's cross-examination would reveal a prior conviction on
similar charges and would elicit admissions to several of the
current charges. Segal was concerned that this would draw
attention away from weaknesses in the government's case and focus
it instead on Bucuvalas' credibility. Bucuvalas agreed with
Segal's analysis and chose not to testify.
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On August 16, 1990, Bucuvalas and his co-defendants
were convicted on all counts of the indictment. Judge Woodlock
sentenced Bucuvalas to fifty-one months in prison followed by
three years of supervised release. This court upheld his
conviction on appeal. United States v. Bucuvalas, 970 F.2d 937
(1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).
On November 25, 1994, Bucuvalas moved to vacate his
sentence, pursuant to 28 U.S.C. 2255, asserting violations of
his Sixth Amendment right to effective assistance of counsel. He
claimed that his rights were violated in two respects. First, he
argued that the payment of his attorney's fees by his co-
defendants created an unconstitutional conflict of interest under
Cuyler v. Sullivan, 446 U.S. 335 (1980). In particular,
Bucuvalas claimed that the fee arrangement influenced Segal's
recommendation that Bucuvalas not testify, because Bucuvalas'
testimony would have shown that his co-defendants orchestrated
the wrongdoing and would have thereby incriminated the very
persons paying Segal's fees.
Second, Bucuvalas claimed that Segal's trial
performance was deficient under Strickland v. Washington, 466
U.S. 668 (1984). Bucuvalas alleged that Segal's treatment of the
fee arrangement was deficient, because he neither warned
Bucuvalas of the risks inherent in the payment scheme, nor
disclosed the arrangement to the trial court. Bucuvalas also
argued that Segal's advice that he not testify was deficient
because his testimony would have been exculpatory. Bucuvalas
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claims that it would have demonstrated that he was merely
following orders and that he lacked knowledge of any wrongdoing.
On March 4, 1996, Judge Woodlock held an evidentiary
hearing. He found that the fee arrangement did not create an
unconstitutional conflict of interest and that Segal's
performance was not, in any respect, deficient under the Sixth
Amendment. Bucuvalas' petition, therefore, was denied.
II.
II.
Analysis
Analysis
Bucuvalas appeals the district court's rulings
regarding both his Cuyler and Strickland claims. We examine each
seriatim.
A. The Cuyler Claim
A. The Cuyler Claim
Bucuvalas claims that the payment of his attorney's
fees by his co-defendants created an unconstitutional conflict of
interest. As a threshold matter, he asserts that under United
States v. Foster, 469 F.2d 1 (1st Cir. 1972), the government
bears the burden of persuasion on the issue, because the alleged
conflict of interest was never addressed at trial by the district
court.
1. Foster and the Burden of Persuasion
1. Foster and the Burden of Persuasion
When the defendant fails to object to an alleged
conflict of interest, the defendant bears the burden of proving
that the alleged conflict violates the Sixth Amendment. United
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States v. Soldevila-L pez, 17 F.3d 480, 486 (1st Cir. 1994)
(citing Cuyler, 446 U.S. at 348).
Pursuant to our supervisory powers, this court has
carved out a limited exception to this rule. Foster, 469 F.2d at
4. In Foster, we held that district courts are required to
intervene, sua sponte, when one lawyer represents multiple co-
defendants. Id. In particular, Foster requires that district
courts apprise defendants of the risks associated with multiple
representation and of their right to a court-appointed attorney
if necessary to avoid the multiple representation. Id. at 5. If
a court fails to conduct an adequate inquiry, Foster instructs
that the burden of persuasion shifts to the government to
disprove an alleged conflict of interest, given an appeal or
collateral attack. Id. This rule seeks to address the
heightened danger of prejudice inherent in multiple
representation. Id. at 4.
Bucuvalas argues that he was entitled to a Foster
hearing. Though he did not share an attorney with his co-
defendants, Bucuvalas claims that the fee arrangement indirectly
implicated the same concerns as multiple representation, because
it subjected his attorney to the influence of his co-defendants.
Since the district court did not inquire into his attorney's fee
arrangement, Bucuvalas argues that Foster shifts the burden to
the government.
We reject Bucuvalas' argument and decline to extend
Foster to these facts. The Foster rule is narrow. See Brien v.
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United States, 695 F.2d 10, 14 (1st Cir. 1982) (refusing to
extend Foster and impose broader duty on district courts). By
its own terms, Foster only applies to "criminal prosecutions
where one attorney speaks for two or more defendants." Id. This
case, therefore, does not come within the scope of Foster,
because there was no multiple representation. Segal represented
Bucuvalas and no one else.
Moreover, Segal's fee arrangement does not foster the
same risks as multiple representation. While we recognize "the
inherent dangers that arise when a criminal defendant is
represented by a lawyer hired and paid by a third party," Wood v.
Georgia, 450 U.S. 261, 268-69 (1981), these dangers are different
from those arising in multiple representation cases. The
existence of separate counsel interposes a buffer between the
interests of co-defendants which does not exist when counsel is
shared. In this vein, this court has distinguished multiple
representation from independent representation, holding that
"where dual representation is involved, the danger of conflicts
is not so great." United States v. DiCarlo, 575 F.2d 952, 957
(1st Cir.), cert. denied, 439 U.S. 834 (1978).
As here, DiCarlo did not involve multiple
representation. It concerned allegations that counsel abandoned
a defense strategy, because it would have implicated prospective
clients of his law partner. Id. at 955-57. Rejecting the Sixth
Amendment claim, we held there to be a presumption that "the
lawyer will subordinate his pecuniary interests and honor his
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primary professional responsibility to his clients in the matter
at hand." Id. at 957. Here, the same presumption applies.
It would be inappropriate and impractical to extend
Foster to the facts of this case. To do so would be to impose a
duty on district courts to inquire into potential conflicts of
interest when they have no reason to know or suspect that such
conflicts might exist. District judges do not ordinarily have
reason to know who is paying an attorney's fees and we question
whether it would be appropriate to require them to routinely
inquire into such matters without any cause to do so.
Here, Bucuvalas never brought the alleged conflict of
interest to Judge Woodlock's attention. Indeed, Judge Woodlock
did not learn of the contested fee arrangement until Bucuvalas
filed this petition, four years after the fact.
We hold that, where an alleged conflict of interest
does not involve multiple representation, where no party raises
the issue before the court, and where the court has no
independent reason to know of the alleged conflict, district
courts have no duty to inquire into potential conflicts of
interest. In such circumstances, a district court's failure to
inquire does not shift the burden of persuasion on a subsequent
Sixth Amendment claim to the government. It follows that, in
this case, the district court had no duty to inquire and the
burden of persuasion did not shift to the government. The burden
remained on Bucuvalas to establish an unconstitutional conflict
of interest.
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2. Conflict of Interest Analysis
2. Conflict of Interest Analysis
The Sixth Amendment right to effective assistance of
counsel is violated when an actual conflict of interest adversely
affects counsel's representation. Cuyler, 446 U.S. at 348. To
meet this standard, the defendant must show that (1) the attorney
could have pursued a plausible alternative defense strategy, and
(2) the alternative strategy was inherently in conflict with or
not undertaken due to the attorney's other interests or
loyalties. United States v. Soldevila-L pez, 17 F.3d 480, 486
(1st Cir. 1994). When an alleged conflict of interest is at
issue, actual prejudice need not be established. Id.; Cuyler,
446 U.S. at 349-50.
No unconstitutional conflict of interest existed in
this case. Bucuvalas claims that a plausible alternative defense
strategy existed in that he should have testified on his own
behalf to explain that he was merely carrying out the orders of
his co-defendants. According to Bucuvalas, Segal's advice that
he not testify was impermissibly tainted because Bucuvalas'
testimony would have incriminated the very persons responsible
for Segal's fees.
The flaw in Bucuvalas' argument is that his testifying
was not a plausible alternative defense strategy. Had Bucuvalas
testified, a prior conviction on a remarkably similar charge
would have been introduced into evidence. One of the allegations
at trial was that Bucuvalas had bribed a police detective; the
prior conviction was for bribing an I.R.S. agent. Moreover,
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according to Bucuvalas' own testimony during the district court
hearing on his Sixth Amendment claims, his testimony at trial
would have resulted in an admission to the current charges. We
agree with Judge Woodlock, who found that Bucuvalas would have
"offered himself up to a cross-examinational meat-grinder on
virtually every relevant issue, effectively admitting to the
elements of the offenses against him and calling to the jury's
attention in a very specific way his role in this offense."1
Even if Bucuvalas had put forth a plausible alternative
strategy, his claim would still fail because there is
insufficient evidence that Segal's advice was tainted by his
relationship with Bucuvalas' co-defendants. A defendant must
show that his counsel "actively represented conflicting
interests." Cuyler, 446 U.S. at 350. See also Carey v. United
States, 50 F.3d 1097, 1100 (1st Cir. 1995) ("the defendant must
demonstrate that the alleged conflict is more than 'some
attenuated hypothesis having little consequence to the adequacy
of representation'") (citing Brien v. United States, 695 F.2d 10,
15 (1st Cir. 1982)); Soldevila-L pez, 17 F.3d at 487
("theoretical or merely speculative conflict of interest" does
not constitute Sixth Amendment violation). In Carey, for
1 The standard by which this court reviews findings of the
district court in ineffective assistance of counsel claims raised
on collateral attack is not clear. United States v. Raineri, 42
F.3d 36, 43 (1st Cir. 1995), cert. denied, 115 S. Ct. 2286 (1995)
(standard of review is uncertain); United States v. McGill, 11
F.3d 223, 226 n.2 (1st Cir. 1993) (same). But see Lema v. United
States, 987 F.2d 48, 53 (1st Cir. 1993) (applying "clear error"
standard). We refrain from choosing a standard here, however,
because Bucuvalas' claims fail under any standard.
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instance, counsel simultaneously represented co-defendants and
advised one not to divulge any information regarding the other
when cooperating with the government. Carey, 50 F.3d at 1099-
1100. The cooperating defendant alleged that this advice
precluded him from obtaining a sentence reduction. Id. at 1101.
The court held that the link between counsel's advice and
counsel's interest in protecting his other client was too
speculative to establish an actual conflict of interest. Id. at
1100.
Bucuvalas argues that an actual conflict of interest
can be inferred from Segal's fee arrangement. The facts alleged
by Bucuvalas, however, are even less suspect than those alleged
in Carey. Bucuvalas had his own attorney, whereas the defendant
in Carey shared counsel with a co-defendant. See DiCarlo, 575
F.2d at 957 (individual representation less risky than multiple
representation). Moreover, Bucuvalas offers no additional facts
to show that Segal had conflicting interests.
Significantly, Judge Woodlock, who observed firsthand
the dynamics of the trial below, explicitly found that no
conflict existed, stating, "I do not find that Mr. Segal in any
fashion permitted himself to be directed by any other person . .
. in his professional judgment with respect to the strategic
dimensions of this case." Bucuvalas has failed to show that
Segal's representation was tainted by an actual conflict of
interest.
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The Eleventh Circuit addressed a similar set of facts
in Danner v. United States, 820 F.2d 1166 (11th Cir. 1987), cert.
denied, 484 U.S. 1012 (1988), and arrived at the same conclusion.
In Danner, counsel's fees were paid through co-defendant's
counsel. Id. at 1168-69. Like Bucuvalas, the defendant alleged
that counsel's advice not to testify conflicted with counsel's
interest in receiving his fees because such testimony would have
incriminated his co-defendants. Id. The court held that no
conflict of interest existed. Id.
For all of these reasons, we conclude that Bucuvalas
has not met his burden of demonstrating that his attorney, Segal,
labored under an unconstitutional conflict of interest.
B. The Strickland Claim
B. The Strickland Claim
Bucuvalas alternatively claims that his Sixth Amendment
right to counsel was violated by strategic errors made by Segal.
Under Strickland v. Washington, a Sixth Amendment violation
occurs when (1) counsel's performance was deficient, and (2) the
deficient performance prejudiced the defense. Strickland, 466
U.S. at 687. The defendant bears the burden of proving both
prongs of this test. Id. This burden is heavy. Argencourt v.
United States, 78 F.3d 14, 16 (1st Cir. 1996); United States v.
Lema, 987 F.2d 48, 51 (1st Cir. 1993).
Counsel's performance is deficient under Strickland's
first prong when it is "so inferior as to be objectively
unreasonable." United States v. McGill, 11 F.3d 223, 226 (1st
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Cir. 1993). In making this determination, "judicial scrutiny of
counsel's performance must be highly deferential." Strickland,
466 U.S. at 689. "A court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Id.
Bucuvalas suggests that Segal's performance was
deficient in two respects. First, Bucuvalas claims that Segal
should have discussed the potential risks presented by the fee
arrangement with Bucuvalas and should have disclosed the fee
arrangement to the court. Segal's failure to take these
measures, however, was not unreasonable. An attorney's
obligation in such circumstances is encapsulated by Massachusetts
Supreme Judicial Court Rule 3:07, DR 5-107. It states, "[e]xcept
with the consent of his client after full disclosure, a lawyer
shall not . . . accept compensation for his legal services from
one other than his client." Massachusetts Supreme Judicial Court
Rule 3:07, DR 5-107 (West 1996). Segal fulfilled his obligations
under this rule. Bucuvalas' consent was evident, and further
disclosure was not necessary because Bucuvalas orchestrated the
fee arrangement. Judge Woodlock, in fact, found that Bucuvalas
"was fully aware of the relationships that are necessarily
involved in this case and, consequently, made his own good
judgments or, at least, fair judgments about how to proceed . . .
."
We agree that Segal's handling of the fee arrangement
did not constitute deficient performance.
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Bucuvalas also claims that Segal's performance was
deficient, because he should have advised Bucuvalas to testify on
his own behalf. In Lema, however, this court found that
counsel's advice that his client not testify did not constitute
deficient performance when such testimony would have divulged a
prior conviction. Lema, 987 F.2d at 50-53. Lema held that,
"[u]naccompanied by coercion, legal advice concerning exercise of
the right to testify infringes no right." Id. at 52. See also
United States v. Teague, 953 F.2d 1525, 1534-35 (11th Cir.) (en
banc), cert. denied, 506 U.S. 842 (1992).
Bucuvalas makes no allegations of coercion. This case
is, therefore, analogous to Lema because Bucuvalas' testimony
would have divulged a prior conviction for similar charges.
Here, in fact, there was an additional reason not to testify.
His testimony at trial would likely have led to an admission of
several of the charges. Judge Woodlock commented that "[p]utting
Mr. Bucuvalas on the stand in these circumstances would have
opened him up to a scorching cross examination," and that "Mr.
Segal gave the recommendation which, frankly, any competent
criminal defense attorney would have given under these
circumstances, that Mr. Bucuvalas not take the witness stand."
We agree. Segal gave Bucuvalas the best possible advice. His
performance was not constitutionally deficient in any respect.
Bucuvalas has, therefore, failed to satisfy the first prong of
Strickland.
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Even if Bucuvalas had established that Segal's
performance was deficient, his claim still fails because he has
not satisfied the second prong of Strickland, which requires a
showing of prejudice. To establish prejudice, a defendant must
show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694;
Argencourt, 78 F.3d at 16. Bucuvalas claims that, absent the
alleged errors, he would have taken the stand on his own behalf
and, as a result, he would not have been convicted. We disagree.
Had Bucuvalas testified, the likelihood of his conviction would
have been increased by the introduction of the prior conviction
and by Bucuvalas' inevitable admissions. We find that Bucuvalas
has failed to establish prejudice and cannot, therefore,
establish a Sixth Amendment violation under Strickland.
III.
III.
Conclusion
Conclusion
For the reasons discussed above, we find that neither
counsel's fee arrangement nor counsel's advice that Appellant not
testify violated Appellant's Sixth Amendment right to effective
assistance of counsel.
AFFIRMED.
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