[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1071
UNITED STATES,
Appellee,
v.
EMILSON MUÑOZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge and
DiClerico, District Judge.*
Rafael F. Castro Lang on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, on brief for appellee.
December 3, 2001
_________________
*Of the District of New Hampshire, sitting by designation.
Per Curiam. Emilson Muñoz ("Muñoz") appeals from
his conviction by guilty plea for possession with intent to
distribute heroin, claiming that he was denied his Sixth
Amendment right to conflict-free counsel. The alleged
conflict stems from the fact that Muñoz and his co-defendant
Sandra Mercado-González ("Mercado-González") were both
represented by the Federal Public Defender's Office, though
different attorneys in the office handled their respective
cases. We conclude that the conviction should be vacated.
I.
On March 23, 2000, a federal grand jury returned
a two count indictment charging Muñoz and Mercado-González
with aiding and abetting each other in importing
approximately 3,814 grams of heroin, see 21 U.S.C. § 952(a);
18 U.S.C. § 2 (count one), and with aiding and abetting each
other in possessing with intent to distribute the same
amount of heroin, see 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2
(count two). The court appointed an Assistant Federal
Public Defender to represent Mercado-González. A private
attorney was appointed to represent Muñoz. Mercado-González
and Muñoz both entered pleas of not guilty.
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On June 9, 2000, co-defendant Mercado-González pled
guilty to count two. Muñoz was also scheduled to plead
guilty, but his change of plea hearing was cancelled.
Shortly thereafter, counsel for Muñoz filed a motion to
withdraw citing irreconcilable differences with his client.
The motion to withdraw was allowed, and the court appointed
a different Assistant Federal Public Defender to represent
Muñoz. A trial date was set for August 3, 2000.
On July 18, 2000, the Federal Public Defender's
Office moved to withdraw as counsel for Muñoz alleging a
conflict of interest in the office's joint representation of
Muñoz and co-defendant Mercado-González. The motion stated
that Mercado-González had provided information to the
government detrimental to the interests of Muñoz, namely,
that Muñoz had hired Mercado-González to act as a drug
courier. The motion also stated that Mercado-González had
expressed a willingness to cooperate with the government,
and that, although the government had indicated that it had
no present intent to call her as a trial witness, Mercado-
González remained a potential witness against Muñoz. The
Federal Public Defender's Office represented that the
prosecutor shared its concerns about a conflict of interest.
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On July 21, 2000, the district judge denied the
motion to withdraw by margin order without hearing. The
order stated that "[a]s long as Sandra Mercado is not a
witness in this case, the alleged conflict is too tenuous to
require discharging the FPD from representing E. Muñoz."
Following the denial of the motion to withdraw, Muñoz pled
guilty to count two of the indictment. On October 17, 2000,
Mercado-González was sentenced to imprisonment for twelve
months and one day followed by a supervised release term of
four years. On November 13, 2000, Muñoz was sentenced to
seventy months imprisonment followed by a supervised release
term of five years.
II.
The first question is whether the district judge
had a duty to make inquiry into the alleged conflict over
and above the inquiry he made. We conclude that he did.
There was more than just a question here of whether the two
defendants could be represented by the same federal public
defender office. Both sides had asserted a potential
conflict of interest, namely, the fact that Mercado-González
was willing to cooperate and had provided information
detrimental to the interests of Muñoz.
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The district judge seemingly thought that the
concerns raised were answered by the fact that the
government did not intend to call Mercado-González as a
trial witness. However, the import of the Federal Public
Defender's explanation was also that Mercado-González was in
a position to provide testimony that might be useful at
sentencing and that might work to Muñoz's disadvantage and
her own advantage. Obviously, a single lawyer could not
properly represent both defendants under these
circumstances.
We do not have to consider now whether an
artificial separation within the Federal Public Defender's
Office could have eliminated the possibility of a conflict.
No such suggestion was made here, and the issue is not
before us. While joint representation by the same office is
not as potentially dangerous as joint representation by a
single attorney, the fact remains that the two defendants in
this case were in antagonistic positions, that neither case
had been completely resolved, that client confidential
information may have been disclosed within the office, and
that either defendant was in a position to gain an advantage
by turning on the other, possibly at trial, and, if not, at
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sentencing. Perhaps the apparent conflict could have been
resolved with an inquiry, but an inquiry was required.
III.
The second question is what to do now that we have
found a substantial possibility of a conflict and a failure
on the part of the district judge to make adequate inquiry.
The law in this area may be open to different
interpretations.
Holloway v. Arkansas, 435 U.S. 475, 484-91 (1978),
seems to say that a reversal is required, at least where one
counsel represents several defendants, whenever there was a
timely conflict objection and a failure to make adequate
inquiry. While such a ruling was arguably unnecessary in
Holloway since there was an actual conflict manifest in the
record, the case has sometimes been read as establishing a
rule of automatic reversal. See, e.g., Selsor v. Kaiser, 22
F.3d 1029, 1033 (10th Cir. 1994) ("Under the Holloway
standard, the trial court's failure to appoint separate
counsel, or adequately inquire into the possibility of
conflict, in the face of a timely objection by defense
counsel, demonstrates ineffective assistance of counsel
without a showing of actual conflict of interest."). But
see Garcia v. Bunnell, 33 F.3d 1193, 1198 (9th Cir. 1994)
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(stating that even on the assumption that defendant timely
objected, Holloway did not require a reversal since there
was no actual conflict).
By contrast, Cuyler v. Sullivan, 446 U.S. 335
(1980), establishes a much more demanding test where there
was no conflict objection and the trial court was under no
duty to make inquiry. Under these circumstances, a
defendant must demonstrate that "an actual conflict of
interest adversely affected his lawyer's performance" in
order to establish a Sixth Amendment violation. Cuyler, 446
U.S. at 348. However, if the defendant meets this test, he
need not demonstrate prejudice to obtain relief. Id. at
349-50.
It can be argued that Wood v. Georgia, 450 U.S. 261
(1981), modified Holloway because in Wood the Court failed
to make inquiry into a possible conflict of interest, even
though the conflict issue had been raised by the State, and
the Court instead of vacating the conviction remanded for a
finding of whether there was an actual conflict. See Wood,
450 U.S. at 272-73; Mountjoy v. Warden, 245 F.3d 31, 38 (1st
Cir. 2001). We note that Wood involved an objection to a
possible conflict raised by the prosecutor, while Holloway
involved the assertion of a conflict made by defense
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counsel. It can further be argued that if, on remand, it
can be established that no actual conflict existed, a
defendant should not be entitled to vacation of his
conviction--at least in the absence of some showing that the
failure to make inquiry otherwise prejudiced him.
We have concluded that we do not need to resolve
the question whether Wood modified Holloway. The government
has done nothing to argue the point other than to suggest
that it would not oppose a remand or any other remedy that
this court deems proper. The defendant is asking that the
conviction be vacated. We do not see much prospect that a
remand to explore the conflict issue would be likely to
result in a finding of no actual conflict, dissipate the
uncertainty whether defendant's guilty plea was in some way
affected by counsel's perception that he was operating under
a conflict of interest, or dispel the inference that at
least some communication occurred between Mercado-González's
attorney and Muñoz's. Finally, this is a case where the
government has direct evidence and is hardly likely to be
prejudiced by a need to present the evidence afresh.
Accordingly, we vacate the conviction and sentence,
set aside the guilty plea, and remand the case for further
proceedings consistent with this opinion.
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