United States Court of Appeals
For the First Circuit
No. 01-2394
UNITED STATES OF AMERICA,
Appellee,
v.
WALDEMAR BURGOS-CHAPARRO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Greenberg,* Senior Circuit Judge.
Lorenzo J. Palomares, by appointment of the court, for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, were on
brief for the United States.
October 23, 2002
*
Of the Third Circuit, sitting by designation.
BOUDIN, Chief Judge. Waldemar Burgos-Chaparro, the
defendant-appellant in this case, was indicted along with 27 others
on September 22, 1999, for his role in a major drug conspiracy
involving cocaine and marijuana. Burgos was charged in one count
with conspiracy to distribute both drugs and in a second count with
conspiracy to import them. The defendants were allocated to four
different cases before different judges--seven defendants to a
case. The cases were numbered 99-305 through 99-308, Burgos being
included in No. 99-307.
On January 31, 2000, at the insistence of the government,
a Foster hearing1 was held to explore a possible conflict because
Burgos' then-counsel--Ernesto Hernandez-Milan--was representing a
co-defendant, Roberto Lopez-Morales, in No. 99-308. After having
the risk of conflict explained to him by the judge, Burgos said he
preferred to continue being represented by Hernandez; but during
the same hearing Hernandez was replaced as counsel for Lopez by
another lawyer (Luis Rivera) at Lopez's request. It appears that
Hernandez continued as counsel for Lopez in another unrelated
criminal case.
After discovery, a trial date for Burgos was set for
February 27, 2001. Two days before trial, Burgos reached an
1
Under United States v. Foster, 469 F.2d 1 (1st Cir. 1972), a
federal court is obligated to conduct a hearing to inquire into the
adequacy of a defendant's representation whenever co-defendants are
represented by the same counsel. Id. at 4-5; see also Fed. R.
Crim. P. 44(c).
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agreement with the government and pled guilty to one of the two
counts, the other being dismissed. On April 6, 2001, a new
counsel, Lydia Lizarribar-Masini, replaced Hernandez as counsel for
Burgos and represented Burgos in his sentencing proceedings.
Lizarribar also represented Lopez in No. 99-308, having apparently
taken over from Rivera in December 2000. On August 30, 2001,
Burgos--represented by Lizarribar--was sentenced to 168 months in
prison.
Now represented by new counsel (his third), Burgos has
appealed, claiming that his Sixth Amendment right to counsel has
been violated by conflicts of interest on the part of both
Hernandez and Lizarribar. The record is poorly developed, as one
might expect, because none of the present claims of conflict was
presented to the district court by Burgos; indeed, even in this
court his Sixth Amendment claims are not easy to disentangle. But
nothing presented to us suggests that Burgos has been adversely
affected by the potential conflicts of which he complains.
It might well be asked at the outset why Burgos should be
entitled to present what are at best marginal claims--certainly no
plain error is apparent--when he did not raise any of them in the
district court. The short answer is that where a defendant's
counsel in a criminal case labors under a supposed conflict, it is
unreasonable to expect that counsel to accuse himself (or the
already-represented defendant to represent himself on that issue).
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See generally 3 LaFave, Israel, & King, Criminal Procedure §
11.7(e) at 629 & n.53 (2d ed. 1999). Whatever qualifications may
exist on the right to raise such issues for the first time on
appeal, the government in this case makes no objection.
We turn then to the merits. In general, a criminal
defendant is entitled to conflict-free representation, although the
right may often be waived after appropriate warnings. See Wheat v.
United States, 486 U.S. 153, 159-63 (1988). In this case Burgos is
not complaining about the conflict issue aired in the Foster
hearing. Not only did Burgos after warnings agree to having
Hernandez represent him and co-defendant Lopez in their related
cases, but the potential conflict was negated on the spot by
Lopez's decision to have Rivera supplant Hernandez as Lopez's
counsel in No. 99-308.
Instead, the focus of Burgos' appeal is on two other
alleged conflicts. In brief, Burgos says that Hernandez also
represented a different co-defendant--Luis A. Feliciano-Valentin--
in one of the related cases (No. 99-308) without any examination of
the conflict by the district court or waiver by Burgos; and Burgos
says that Lizarribar's representation of him at sentencing is
similarly flawed because after Rivera took over the representation
of co-defendant Lopez, Lizarribar in turn succeeded Rivera and
represented Burgos and Lopez at the same time without judicial
scrutiny or consent.
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In general, ineffective assistance of counsel--as opposed
to the complete absence of counsel at a critical stage--is tested
under the familiar Strickland test; this requires the defendant to
show that counsel's performance is so impaired as to be
constitutionally inadequate and that this likely affected the
outcome of the case. See Strickland v. Washington, 466 U.S. 668,
694 (1984). However, a lesser showing of prejudice is enough
where ineffectiveness is traced to a conflict of interest--rather
than some other impairment of the right to counsel--that was not
identified and properly waived. See Mickens v. Taylor, 122 S. Ct
1237, 1240-41 (2002). Why Supreme Court precedent so qualifies
Strickland need not concern us here.
It is a commonplace that divided loyalties may undermine
the ability of a single lawyer to represent effectively two
defendants charged in the same case. This "potential," said
Mickens, ripens into an "actual" conflict where such "a division of
loyalties" is shown to have "affected counsel's performance."
Mickens, 122 S.Ct. at 1243. Where such an effect is shown,
reversal is required without any further showing that the defect in
performance altered the outcome. This lessening of the Strickland
burden occurs, according to Mickens, whether or not the court has
itself failed in its duty to inquire into the conflict. Id. at
1244.
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We start with Burgos' claim that Hernandez's dual
representation (of Burgos and Feliciano) amounted to such an actual
conflict. The district court files in No. 99-308 show that on
November 12, 1999, attorney David Roman entered an appearance
reciting that he had been retained in this case by Feliciano and
that Hernandez agreed to "this substitution." Thus, even before
the Foster hearing afforded Burgos and well before his guilty plea,
it appears that Hernandez was no longer conflicted on account of
his earlier representation of Feliciano in the related case.
Burgos' brief is based on the premise, which appears to be
mistaken, that Hernandez continued to represent both Feliciano and
Burgos during the latter's plea negotiations.
In any event, even if Hernandez had represented both
Burgos and Feliciano at some time that mattered, Burgos would have
to identify some way in which his representation by Hernandez was
compromised by the latter's representation of Feliciano. This
could be because of some action taken by Hernandez or by some
opportunity foregone, see Guaraldi v. Cunningham, 819 F.2d 15, 17
(1st Cir. 1987) (Breyer, J.); but some adverse action or inaction
is required that can be traced to the conflict in loyalty. Merely
to speculate that the divided loyalty could have caused such a step
is not enough. See, e.g., United States v. Hernandez-Lebron, 23
F.3d 600, 606-07 (1st Cir. 1994).
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All Burgos offers is speculation. Thus, Burgos says that
where counsel represents two plea bargaining defendants, each
defendant may have an interest in implicating the other in order to
secure a better deal. Burgos certainly did bargain for a plea.
But now represented by conflict-free counsel, he points to nothing
to suggest that the government needed Burgos' help against
Feliciano, nor that Hernandez failed to get the best deal he could
for Burgos because he was trying to protect Feliciano's interest.
Our case law, admittedly pre-Mickens, says that it may be
enough to point to an alternative strategy or approach, beneficial
to the complaining defendant, that counsel might have taken but was
foregone because of conflicting loyalties. See United States v.
Michaud, 925 F.2d 37, 40 (1st Cir. 1991). Burgos says that he
might have chosen to plead innocent and insisted on trial. But, of
course, Michaud assumes a showing that such a course would have
been undertaken but for counsel's dual loyalty; and Burgos makes no
showing on this point. Nor, given the evidence against Burgos, is
there any reason to think that this course held out any promise.
The plea colloquy reveals that the government had multiple
witnesses ready to testify against Burgos and, apparently, had a
videotape of Burgos' illegal activities.
Finally, Burgos says that his plea agreement designated
him as a leader of the conspiracy, an admission that would normally
adversely affect the guideline range. This is a concession that
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could be influenced by dual representation; but again Burgos offers
nothing to show that it was so affected. The concession may have
been compelled by the evidence or been made a requirement of the
plea bargain by the government. Nor did Burgos' concession mean
that Feliciano could not also be designated as a leader: "There
can, of course, be more than one person who qualifies as a leader
. . . of a criminal . . . conspiracy." U.S.S.G. § 3B1.1 app. n.4
(2001).
Burgos' alternative claim--that Lizarribar provided
ineffective assistance--is even more quickly answered. It is true
that while representing Burgos at sentencing, Lizarribar also
represented co-defendant Roberto Lopez-Morales. By the time she
began to represent the latter, Lopez had already determined to
plead guilty. Burgos provides no reason to think that this dual
representation adversely affected Burgos. At most, he speculates
that he could have sought to withdraw his own guilty plea but
offers no reason to think that this was either a plausible course
or that it was adversely affected because Lizarribar also
represented Lopez.
Affirmed.
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