RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0129P (6th Cir.)
File Name: 00a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
WILLIAM R. RIGGS,
Petitioner-Appellant,
No. 98-6051
v.
>
UNITED STATES OF AMERICA,
Respondent-Appellee.
1
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 97-00702; 94-00099—Edward H. Johnstone,
Senior District Judge.
Argued: March 16, 2000
Decided and Filed: April 11, 2000
Before: NORRIS, MOORE, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Douglas A. Trant, Knoxville, Tennessee, for
Appellant. Mark L. Miller, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Douglas A. Trant, Knoxville, Tennessee, for
Appellant. Mark L. Miller, Terry M. Cushing, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
1
2 Riggs v. United States No. 98-6051
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner-
appellant William R. Riggs was convicted after a jury trial of
conspiracy to manufacture marijuana, manufacturing
marijuana, and possessing marijuana with intent to distribute.
He brought a motion under 28 U.S.C. § 2255 challenging his
conviction, which was denied by the district court. Riggs
claims that his conviction was invalid for two reasons. First,
Riggs argues that he received ineffective assistance of
counsel, because his attorney, a former Assistant United
States Attorney, had a conflict of interest. Second, Riggs
claims that the government violated 18 U.S.C. § 201(c)(2),
because his conviction was based, in part, on testimony that
the government obtained from witnesses in exchange for
leniency in their own criminal prosecutions. Both of these
claims are without merit, and we therefore AFFIRM the
district court’s denial of Riggs’s motion.
I. BACKGROUND
On June 16, 1995, William Riggs was convicted in the
district court for the Western District of Kentucky of
conspiring to manufacture, manufacturing, and possessing
with intent to distribute over 1,000 plants of marijuana, in
violation of 21 U.S.C. §§ 846 and 841(a)(1). He was initially
sentenced to 188 months of imprisonment and five years of
supervised release. Riggs appealed his conviction and
sentence to this court, arguing that the district court
incorrectly determined the number of marijuana plants
attributable to him. See United States v. Riggs, No. 95-5908,
1996 WL 603666, at **1 (6th Cir. Oct. 21, 1996). A Sixth
Circuit panel affirmed. See id. at **1-2. Subsequently,
Riggs’s sentence was reduced to ten years due to an
amendment in the United States Sentencing Guidelines that
occurred while Riggs’s direct appeal was pending.
10 Riggs v. United States No. 98-6051 No. 98-6051 Riggs v. United States 3
no hearing is necessary here. Riggs had the opportunity to On October 31, 1997, Riggs filed the motion in the instant
submit evidentiary materials to the district court. case. Principally, Riggs argues that he received ineffective
Furthermore, Riggs has not described any additional evidence assistance of counsel at trial because his attorney, a former
that he could present at an evidentiary hearing to support his Assistant United States Attorney, had an actual conflict of
claim. Therefore, we conclude that the record in this case interest that prevented him from zealously representing Riggs.
clearly demonstrates that Riggs is not entitled to relief under Riggs also argues that the government violated 18 U.S.C.
§ 2255. § 201(c)(2), which prohibits giving “anything of value” to a
person for testifying under oath, when it exchanged sentence
C. 18 U.S.C. § 201(c)(2) reductions for the truthful testimony of prosecution witnesses.
The district court denied Riggs’s motion in an order entered
Riggs argues that the government has acted illegally in this on July 27, 1998. Riggs filed a timely notice of appeal, the
case by offering reduced sentences to prosecution witnesses district court having granted a certificate of appealability as to
in exchange for their testimony against him, thereby violating both issues.
18 U.S.C. § 201(c)(2). Section 201(c)(2) prohibits giving,
offering, or promising “anything of value” to a person for II. ANALYSIS
testifying under oath. Only one circuit court of appeals has
ever held that the government’s practice of plea bargaining A. Standard of Review
with prosecution witnesses violates 18 U.S.C. § 201(c)(2), see
United States v. Singleton, 144 F.3d 1343,1357-58 (10th Cir. A petitioner is entitled to relief under § 2255 only upon a
1998), and that decision was vacated and reversed by an en showing of a “‘fundamental defect’ in the proceedings which
banc court, see United States v. Singleton, 165 F.3d 1297, necessarily results in a complete miscarriage of justice or an
1298 (10th Cir.), cert. denied, --U.S.--, 119 S. Ct. 2371 egregious error violative of due process.” Gall v. United
(1999). Moreover, this circuit has explicitly rejected this States, 21 F.3d 107, 109 (6th Cir. 1994) (quoting United
argument, holding in United States v. Ware, 161 F.3d 414 States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). This
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), that 18 court reviews de novo the district court’s denial of a § 2255
U.S.C. § 201(c)(2) does not apply to United States motion, but the district court’s findings of fact are reviewed
prosecutors who promise leniency in exchange for truthful only for clear error. See id. If the district court has not held
testimony. Since this panel has no authority to overrule the an evidentiary hearing, however, this court will affirm only if
decision of a prior panel, see Timmer v. Michigan Dep’t of “the motion and the files and records of the case conclusively
Commerce, 104 F.3d 833, 839 (6th Cir. 1997), we are show that the prisoner is entitled to no relief.” 28 U.S.C.
compelled to hold that Riggs’s claim is without merit. § 2255; see Baker v. United States, 781 F.2d 85, 92 (6th Cir.),
cert. denied, 479 U.S. 1017 (1986).
III. CONCLUSION
B. Ineffective Assistance of Counsel
For the foregoing reasons, the district court’s order denying
Riggs’s § 2255 motion is AFFIRMED. In order to show a violation of the Sixth Amendment right
to counsel, a defendant generally must make two showings.
First, the defendant must demonstrate that the attorney’s
performance was deficient, meaning that “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
4 Riggs v. United States No. 98-6051 No. 98-6051 Riggs v. United States 9
Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, operation; therefore, cross-examination on this subject would
the defendant must prove that the attorney’s deficient have been improper. Cox’s cross-examination was otherwise
performance was so prejudicial that it “deprive[d] the sufficient. As regards Barbara Herron, Riggs points to no
defendant of a fair trial, a trial whose result is reliable.” Id. specific problems with Cox’s cross-examination of her, and
The Supreme Court has slightly modified this rule in the a review of the transcript reveals none.
context of alleged conflicts of interest, however. In Cuyler v.
Sullivan, 446 U.S. 335 (1980), the Court held that, if a Finally, Riggs claims that Cox “opened the door” for
defendant can show “an actual conflict of interest [that] admission of Riggs’s grand jury testimony by questioning
adversely affected his lawyer’s performance,” prejudice may Detective Treadway about Riggs’s grand jury appearance.
be presumed. Id. at 348-50.1 An “actual conflict” may be This claim, too, must fail. Although Treadway did state, on
demonstrated by pointing to “specific instances in the record” re-cross-examination, that he “had a little bit of getting
that indicate that the attorney “made a choice between cooperation from Mr. Riggs”3 with respect to the
possible alternative courses of action, such as eliciting (or investigation and the grand jury hearing, J.A. at 324
failing to elicit) evidence helpful to one client but harmful to (Treadway Test.), Cox successfully obtained a cautionary
the other. If he did not make such a choice, the conflict instruction from the district judge with respect to Treadway’s
remained hypothetical.” Thomas v. Foltz, 818 F.2d 476, 481 statement. Furthermore, Riggs does not claim that any other
(6th Cir.) (quotation omitted), cert. denied, 484 U.S. 870 evidence concerning Riggs’s grand jury testimony was
(1987). admitted at trial; indeed, Cox successfully moved to prevent
the government from using that testimony against Riggs at
Riggs argues that his counsel had an actual conflict of trial. Thus, it is again difficult to see how Cox’s performance
interest while representing Riggs. Riggs points to the fact that was adversely affected by the purported conflict of interest.
Cox, a former Assistant United States Attorney (AUSA), was
still working as an AUSA at the time of Riggs’s investigation Riggs has thus come forward with insufficient evidence to
and indictment, and that Cox is listed, on the transcript cover, meet his burden of showing that Cox had an actual conflict of4
as making an appearance on behalf of the United States interest that affected his performance in Riggs’s trial.
during Riggs’s grand jury testimony. Riggs further complains Although in some cases it might be appropriate to remand for
that Cox represented the ex-wife of a prosecution witness. an evidentiary hearing in the face of such minimal evidence,
Finally, Riggs points out that Cox shared office space with
two other attorneys, who represented other co-defendants-
turned-prosecution-witnesses: Keith Kamenish, who 3
It appears that a word was omitted from this phrase in the transcript
of Treadway’s testimony: from the context, it is clear that Treadway made
a statement to the effect that he had some difficulty in obtaining Riggs’s
1 cooperation.
Although the Cuyler standard was laid out in the context of conflicts
of interest arising from multiple representation, this circuit applies the 4
Cuyler analysis to all Sixth Amendment conflict-of-interest claims. See To the extent that Riggs intends to suggest that Cox had conflicting
United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996). One exception, loyalties due to the mere fact of his former employment by the
not applicable here, is in those cases where the trial court was informed government, we reject this suggestion. Indeed, we believe that a former
by counsel or the defendant of a potential conflict of interest but failed to AUSA who is just beginning his career as a defense attorney would likely
inquire into that conflict: in such cases, prejudice is presumed and have an incentive to represent his early clients particularly zealously, so
reversal is automatic. See Holloway v. Arkansas, 435 U.S. 475, 484-91 as to win more clients in the future. In addition, Cox’s familiarity with
(1978). Riggs has made no showing in this case that the trial judge knew the functioning of the United States Attorney’s Office would probably
of any potential conflict of interest. inure to the benefit, not the detriment, of his clients in criminal cases.
8 Riggs v. United States No. 98-6051 No. 98-6051 Riggs v. United States 5
$25,000 when the police raided a warehouse where the represented Rosco Driskell, and Mark Chandler, who
marijuana was grown. Because the parties have not informed represented Gary Napier.
the court of the nature of Cox’s representation of Driskell’s
ex-wife, it is difficult to determine whether there would be an The government responds by pointing out that, although
actual problem of divided loyalty, as in McConico v. Cox’s name appears on the cover of the grand jury transcript,
Alabama, 919 F.2d 1543 (11th Cir. 1990), in which an a review of the transcript itself does not reveal any
attorney represented both a criminal defendant at his murder participation by Cox in the hearing. Cox testified in an
trial and the murder victim’s sister in her claim for the affidavit that he was not assigned to the Riggs case in any
victim’s life insurance benefits. In that case, the Court of capacity while working in the United States Attorney’s
Appeals for the Eleventh Circuit held that an actual conflict Office; rather, Cox claims that he merely wandered into the
of interest existed, because the two legal matters were related; grand jury room during Riggs’s hearing, and for that reason
furthermore, the attorney had an incentive not to cross- the court reporter listed his name on the transcript cover.
examine the victim’s sister — his client — on the issue of Furthermore, the government points out, Riggs is required to
whether the victim had been the aggressor and the defendant show that this potential conflict adversely affected Cox’s
had killed in self-defense, because the sister would not be representation of Riggs in some way; otherwise, the conflict
entitled to the insurance proceeds if the victim had been the would remain merely hypothetical and thus insufficient to
aggressor. See id. at 1547-48. Additionally, the court noted require reversal of Riggs’s conviction. See, e.g., United
that actual conflicts are less likely in cases of successive, States v. Hopkins, 43 F.3d 1116, 1118-19 (6th Cir.), cert.
rather than simultaneous, representation. See id.; see also denied, 514 U.S. 1135 (1995); United States v. Horton, 845
Takacs v. Engle, 768 F.2d 122, 125 (6th Cir. 1985) (holding F.2d 1414, 1418-20 (7th Cir. 1988) (declining to adopt a per
that defense counsel’s prior representation of a prosecution se rule that a conflict of interest exists when defense counsel
witness did not create a conflict where the witness waived is being considered for a position as a United States Attorney
attorney-client privilege as to confidential information, and and ruling that the defendant was still required to point to
defense counsel therefore had no incentive not to cross- specific evidence showing a conflict). Finally, the
examine the witness vigorously). Since Riggs has not come government claims that Riggs waived any possible conflict of
forward with any specific reasons why Cox would have an interest that may have existed, because he was aware that
incentive to perform lax cross-examination of Driskell, his Cox’s name appeared on the grand jury transcript and yet
argument must fail. Furthermore, the transcript indicates that agreed to Cox’s representation.2
Cox quite effectively crossed and re-crossed Driskell. Cox’s
failure to cross-examine Driskell on one statement allegedly Riggs points to several specific acts and omissions by his
made to him by Riggs does not demonstrate an actual conflict attorney that purportedly evidence an actual conflict of
that adversely affected Cox’s performance, particularly since interest. First, Riggs asserts that Cox never requested a
Riggs does not point to any extrinsic evidence with which buyer-seller instruction, nor did he discuss the possibility of
Driskell’s testimony could be impeached. a buyer-seller defense with Riggs. The government responds
by stating that, according to Cox’s affidavit, Cox did argue for
With respect to Napier, Riggs contends that Cox should a buyer-seller instruction; furthermore, the government
have cross-examined him about the number of marijuana
plants involved. However, a review of the transcript indicates
that Napier was not questioned on direct examination 2
regarding the quantity of marijuana involved in Riggs’s Our disposition of this case makes it unnecessary for us to decide
the waiver issue; therefore, we do not address it in this opinion.
6 Riggs v. United States No. 98-6051 No. 98-6051 Riggs v. United States 7
argues, the facts of this case did not support a such an guilty had he been aware of this possible consequence. As the
instruction. The district court, in reviewing Riggs’s § 2255 government points out, however, Riggs took the position at
motion, agreed with the government that a buyer-seller sentencing that he was entitled to a sentence reduction for
instruction would not have been warranted in this case. See, acceptance of responsibility, in part because “he repeatedly
e.g., Bucyrus-Erie Co. v. General Prods. Corp., 643 F.2d 413, urged Mr. Napier to plead guilty and testify against him. . . .
420 (6th Cir. 1981) (holding that it is not error for the district which Mr. Napier did on the last day of trial.” J.A. at 380
court to refuse to give an instruction if there is insufficient (Sentencing Tr.). Moreover, Riggs has again failed to show
evidence in the record to support that instruction). The any logical connection between Cox’s alleged conflict and his
government also argues that the general conspiracy instruction attorney’s purported omission. Therefore, we hold that Riggs
given by the district judge sufficiently ensured that no has failed to make the showing required by Cuyler with
conspiracy would be found if the government had proven only respect to this issue.
a buyer-seller relationship involving Riggs.
Third, Riggs points to one instance in which Cox “argued
The government is correct that Riggs was not entitled to a on behalf of Mr. Napier at the trial.” Appellant’s Br. at 16.
buyer-seller instruction in this case. There appears to be some Arguing against granting the government additional time to
support for a buyer-seller instruction in Riggs’s own trial prepare for trial, Cox stated, “Mr. Napier, and I am speaking
testimony; therefore, such an instruction would not have been on behalf of Mr. Chandler now, has been incarcerated
inappropriate. However, this court held in United States v. basically since the day or day after the indictment was
Stephens, 492 F.2d 1367 (6th Cir.), cert. denied, 419 U.S. 874 returned last November.” J.A. at 290 (Tr.). This statement
(1974), and 419 U.S. 852 (1974), that a buyer-seller does not demonstrate that Cox was simultaneously
instruction is unnecessary if the district judge has given a representing conflicting interests. Indeed, at the time the
complete instruction reciting all the elements of conspiracy statement was made, Napier had not yet pleaded guilty;
and requirements for membership in a conspiracy. See id. at therefore, the two defendants’ interests were aligned, as both
1377. The district judge gave such an instruction in this case. would have desired to prevent the government from obtaining
Thus, Riggs was not entitled to a specific buyer-seller more time to prepare for trial. Cf. United States v. Gantt, 140
instruction. Moreover, even if Cox should have requested a F.3d 249, 254 (D.C. Cir.) (holding that the Cuyler
buyer-seller instruction in this case and failed to do so, it is requirements were not met where the attorney did not learn of
difficult to see how the failure to do so would be a a potential conflict between two clients’ interests until after
manifestation of Cox’s alleged conflict of interest. Riggs has the attorney had ceased representing the first client), cert.
not explained any causal connection between Cox’s failure to denied, --U.S.--, 119 S. Ct. 361 (1998). Therefore, this
request the instruction and his prior AUSA position, his argument is without merit.
representation of Driskell’s ex-wife, or his sharing office
space with Kamenish and Chandler. Thus, he has not shown Fourth, Riggs claims that due to Cox’s representation of
“that an actual conflict of interest adversely affected his Driskell’s ex-wife and his sharing office space with Driskell’s
lawyer’s performance.” Cuyler, 446 U.S. at 348. and Napier’s lawyers, Cox performed insufficient cross-
examination of Driskell, Napier, and Barbara Herron
Second, Riggs argues that Cox never informed him that (Driskell’s girlfriend, to whom Riggs had sold marijuana). In
Gary Napier, Riggs’s step-son and co-conspirator, would particular, Riggs states that Cox failed to cross-examine
testify against Riggs if Napier pleaded guilty; Riggs appears Driskell on his testimony regarding a statement, allegedly
to suggest that he would not have encouraged Napier to plead made by Riggs to Driskell, to the effect that Riggs lost