Bucuvalas v. United States

USCA1 Opinion











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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