FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 03-35178
Plaintiff-Appellee, D.C. Nos.
v. CV-97-00016-CCL
ROBERT VAIO WELLS, CR-90-00020-CCL
Defendant-Appellant. CV-90-00042-CCL
CR-90-00005-CCL
OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
July 12, 2004—Seattle, Washington
Filed January 11, 2005
Before: Betty B. Fletcher, Clyde H. Hamilton,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Hamilton;
Dissent by Judge B. Fletcher
*The Honorable Clyde H. Hamilton, Senior United States Circuit Judge,
United States Court of Appeals for the Fourth Circuit, sitting by designa-
tion.
333
336 UNITED STATES v. WELLS
COUNSEL
Marcus S. Topel and Daniel F. Cook, Topel & Goodman, San
Francisco, California, for the defendant-appellant.
James E. Seykora and Bernard F. Hubley, Assistant United
States Attorneys, Helena, Montana, for the plaintiff-appellee.
OPINION
HAMILTON, Senior Circuit Judge:
In August 1991, a jury in the United States District Court
for the District of Montana convicted Robert Wells of con-
UNITED STATES v. WELLS 337
spiracy to defraud the United States, 18 U.S.C. § 371, con-
spiracy to manufacture and distribute methamphetamine, 21
U.S.C. §§ 841(a)(1) and 846, conspiracy to invest illegal drug
profits into a business, id. §§ 854 and 846, investment of pro-
ceeds from drug transactions into a business, id. §§ 854 and
855, and distribution of methamphetamine, id. § 841(a)(1).
After unsuccessfully pursuing his remedies on direct appeal,
Wells filed a motion pursuant to 28 U.S.C. § 2255, which the
district court denied. We granted a certificate of appealability
limited to the issue of whether an actual conflict of interest
adversely affected Wells’ counsel’s representation of him. We
affirm.
I
As found by this court on direct appeal, the facts underly-
ing Wells’ convictions are as follows:
[Don] Wogamon testified that he began manufactur-
ing and distributing methamphetamine with Daniel
Jones in 1983. The following year, Jones introduced
Wogamon to Robert Wells. Wells gradually became
more involved with Wogamon in the manufacturing
process. Wogamon said that he and Wells “cooked”
methamphetamine a number of times over the next
couple of years.
In 1984, Wogamon formed a corporation called
Medallion Minerals for the purpose of mining gold
in the Butte, Montana area. Proceeds from drug sales
were deposited in Medallion in order to make the
income look legitimate. Wells and Jones agreed to
invest $1.8 million in Medallion from their metham-
phetamine manufacturing business. They received
stock from the corporation in exchange. During 1984
and 1985, Wogamon helped Wells and Jones with
their manufacturing in Santa Rosa, California and
flew back to Montana with money to deposit in
338 UNITED STATES v. WELLS
Medallion accounts. All deposits were under
$10,000 to avoid having the banks file currency
transaction reports. The cash was reflected as gold
sales on Medallion’s books.
Wells and Jones had a falling out in early 1985, and
Jones decided not to finance Medallion further.
Wogamon said he last saw Jones in February of
1985. In June 1985, William Morris, a longtime
friend of Wogamon’s, introduced him to Gene
Browning, who was involved in the mining business.
Browning had developed a device to extract gold
from ore, and was trying to find interested investors.
Wogamon and Wells agreed to put one million dol-
lars into Browning’s Nevada corporation. The
money was delivered in four $250,000 cash pay-
ments.
Browning subsequently introduced Wogamon to
William Nowlin. Nowlin was looking for investors
to fund a mining venture. In July 1985, Wogamon
and Wells agreed with Nowlin to provide one mil-
lion dollars to fund a new company called Shadow
Mountain Systems, Inc. In exchange, they received
an interest in the corporation. The million dollars
was paid in four $250,000 cash installments. Nowlin
used the money to purchase equipment for Shadow
Mountain. Wogamon testified he informed Nowlin
that the money came from the proceeds of drug
sales.
In September 1985, Wells and Wogamon manufac-
tured a fifty pound batch of methamphetamine at the
Santa Rosa laboratory. After completing the batch,
Wells was arrested with twenty-five pounds in his
car. Wells had entered Nowlin’s house while state
agents were executing a search warrant. An agent
patted down Wells and felt a hard object in his pants
UNITED STATES v. WELLS 339
pocket. The agent removed a film cannister from
Wells’ pocket and opened it. It contained a small
amount of methamphetamine. Since the agent
improperly opened the cannister, the district court
suppressed evidence of the methamphetamine found
therein and the twenty-five pounds subsequently
seized from Wells’ car. Nevertheless, Wogamon tes-
tified at trial that Wells told him that he had been
arrested with the twenty-five pounds. This testimony
was presented by the government to explain the facts
and circumstances concerning the moving of the
drug lab from Santa Rosa to near Las Vegas.
The lab equipment was initially moved to trailers
located on Shadow Mountain’s property. Nowlin had
keys to the trailers and allowed Wells and Wogamon
to put the equipment there. Wells and Wogamon
attempted to manufacture methamphetamine at the
site, but their efforts were not very successful.
Wogamon testified that Nowlin occasionally came to
the site and asked what was going on.
At one point, when there was $250,000 cash infusion
into Medallion that needed to be covered, Morris
agreed to put together a story and supporting docu-
mentation to show that the cash had come from the
International Fuel Development Corporation, a for-
eign corporation. The cash was, in fact, proceeds
from methamphetamine sales.
In March 1986, Medallion Minerals filed for bank-
ruptcy, and Morris prepared the necessary filings.
Morris filed a false bankruptcy Disclosure Statement
with the bankruptcy court. In October 1986, a grand
jury subpoena was issued requiring Medallion to
produce its records and books. In an effort to buy
time, Morris suggested that he hold himself out as
custodian of Medallion’s records. This gave Woga-
340 UNITED STATES v. WELLS
mon and Morris time to alter corporate documents
and create minutes of meetings that never occurred
in an effort to throw off the grand jury.
During his efforts to “fix” the records, Morris caused
3.1 million shares of Medallion stock to be issued to
himself in order to cover the $250,000 in drug sale
proceeds that was supposed to have been received
from the International Fuel Development Corpora-
tion. Wogamon also testified that he and Morris
altered records to reflect gold production and sales
that never occurred in order to cover drug money
deposits.
Wogamon was indicted in May of 1987. Although
Morris initially served as his attorney, he was even-
tually replaced and ultimately named in the subse-
quent indictment filed in September of 1990.
United States v. Nowlin, 988 F.2d 124 (Table), 1993 WL
51814, at *1-3 (9th Cir. March 1, 1993).
On February 23, 1990, Jones and Wells were indicted on
one count of distributing methamphetamine, 21 U.S.C.
§ 841(a) (the Butte Indictment). Subsequently, on September
21, 1990, the government filed a seven-count indictment
against Jones and Wells, as well as three other individuals
(William Morris, William Nowlin, and Gene Browning) (the
Helena Indictment). All five defendants were charged in three
of the counts: conspiracy (between 1984 and 1990) to defraud
the United States by impeding, impairing, obstructing, and
defeating the IRS in the ascertainment, computation, assess-
ment, and collection of revenue, 18 U.S.C. § 371 (Count
One); conspiracy to manufacture and distribute methamphet-
amine, 21 U.S.C. §§ 841(a)(1) and 846 (Count Four); and
conspiracy (between 1984 and 1990) to invest illegal drug
profits into a business, id. §§ 854 and 846 (Count Five). All
of the defendants except Jones were charged in Count Six
UNITED STATES v. WELLS 341
with investment of proceeds from drug transactions into a
business, id. §§ 854 and 855. Browning was charged in Count
Seven with making a false declaration, 18 U.S.C. § 1623.
Wells and Jones were charged in Counts Two and Three with
filing false corporate tax returns, 26 U.S.C. § 7206(2). Brow-
ning entered into a plea agreement with the government and
the remaining defendants proceeded to trial.
Prior to trial, Wells’ counsel, Joseph “Sib” Abraham, Jr.,
filed several motions including a motion to suppress. Through
Abraham’s efforts, the district court entered an order sup-
pressing the 9mm handgun, the methamphetamine in the can-
nister, and the twenty-five pounds of methamphetamine
seized from Wells’ car in September 1985.
On July 8, 1991, the case went to trial. Just before the trial
began, the district court denied Jones’ motion for severance,
ostensibly because Jones failed to file any declaration that a
codefendant had exculpatory evidence regarding Jones that
could be presented at a separate trial. After the noon recess,
counsel for Jones submitted in open court a declaration exe-
cuted by Wells in support of Jones’ severance motion.1 Coun-
1
The declaration stated:
After consultation with my counsel, I have determined I will not
testify during the trial of the instant cause.
It has been explained to me that I have an absolute right not to
testify at the trial of my case and that I am quaranteed (sic) pursu-
ant to the Fifth Amendment of the Constitution of the United
States that particular right.
However, I represent to the Court that if I were given a separate
trial from my codefendant, Daniel Jones, I would be in a position
to provide significant exculpatory testimony on his behalf.
I understand that there are certain issues regarding whether or not
the statute of limitations would bar a prosecution of my codefen-
dant Mr. Jones.
If called to testify by Mr. Jones at a separate trial, I would clearly
indicate under oath that in fact Mr. Jones manifested a clear
342 UNITED STATES v. WELLS
sel for Jones argued that Wells would testify at a separate trial
that Jones severed his business ties with Wogamon and Wells
in 1985. Counsel further suggested that this testimony would
support Jones’ statute of limitations defense. In response to
the declaration and counsel’s argument, the district court did
not alter its ruling denying Jones’ motion for severance.
After a lengthy trial, the jury found Wells guilty of the one
count in the Butte Indictment and four counts in the Helena
Indictment (Counts One, Four, Five, and Six). Wells was
acquitted of Counts Two and Three of the Helena Indictment.
Of note, Jones was found not guilty of Counts One, Two, and
Three of the Helena Indictment. As to Jones, the jury could
not reach a verdict on Counts Four and Five of the Helena
Indictment and the one count in the Butte Indictment.
On December 8, 1991, Wells was sentenced under pre-
Sentencing Guidelines law. In the Helena case, Wells was
sentenced to thirty years on Count Four, ten years on Count
Five to run consecutive to the thirty-year sentence on Count
Four, five years on Count One to run consecutive to the sen-
tences on Counts Four and Five, and ten years on Count Six
to run concurrent to the sentences on Counts One, Four, and
Five. In the Butte case, Wells was sentenced to thirty years to
run concurrent with the sentences in the Helena case. Thus,
Wells received a total sentence of forty-five years’ imprison-
ment.2
intention to withdraw from all activity involving the allegations
in the Indictment in this case and did so in March of 1985.
Mr. Jones told me he wanted to have nothing to do with any
activity that Donald Wogamon was engaged in from that time
forth.
Finally, I would state that Mr. Jones did affirmatively abandon
any relationship with myself, Mr. Wogamon, or any other party
to our activity and further abandoned all economic and financial
interest in our ventures.
2
After Wells was sentenced, Jones was retried and a jury acquitted him
of all charges.
UNITED STATES v. WELLS 343
On direct appeal, we affirmed Wells’ convictions, rejecting
Wells’ sole argument that his convictions were infirm because
the district court improperly allowed the jury to hear testi-
mony about Wells’ alleged statements about his arrest for
possession of twenty-five pounds of methamphetamine. On
October 4, 1993, Wells’ petition for a writ of certiorari was
denied by the United States Supreme Court. Wells v. United
States, 510 U.S. 827 (1993).
On April 17, 1997, Wells filed a § 2255 motion in the
United States District Court for the District of Montana. The
motion alleged that Abraham had an actual conflict of interest
that adversely affected Abraham’s representation of Wells
because Abraham’s attorney’s fees were paid by Jones and
Abraham breached his duty of loyalty to Wells by taking
actions favorable to Jones and unfavorable to Wells.
On September 25, 2002, the district court held an evidenti-
ary hearing at which both Wells and Abraham testified. Wells
testified that he first met Abraham after he was transferred
from California to Helena, Montana to await trial. According
to Wells, in their first meeting, Abraham told him that his
attorney’s fees were being paid by Jones. Wells testified that,
during this first meeting, he asked Abraham what his “op-
tions” were, implying that he was interested in a plea bargain.
According to Wells, Abraham indicated that he was not inter-
ested in representing a defendant who wanted to cooperate
with the government, adding that he did not represent “snitch-
es.”
Wells also testified that Abraham did not disclose or dis-
cuss a potential conflict of interest with him and that Abraham
did not spend any time with him preparing his defense. Wells
testified that Abraham never explained the consequences of
the declaration he executed in support of Jones’ severance
motion. Wells acknowledged that he had an extensive crimi-
nal history, including numerous drug convictions, and that he
spent nine to ten years in prison between 1960 and 1988.
344 UNITED STATES v. WELLS
Wells testified that Abraham never discussed with him, either
before his trial, after his trial, or while Jones was awaiting his
retrial, the possible advantages of seeking a plea bargain with
the government.
During his testimony, Wells, invoking his Fifth Amend-
ment privilege against self-incrimination, refused to answer
questions concerning his relationship with Jones. According
to Wells’ counsel, whatever relationship Wells may have had
with Jones had “nothing to do with Mr. Abraham’s legal obli-
gations in representing” him. At the hearing, the district court
expressed skepticism about Wells’ invocation of his Fifth
Amendment privilege, commenting that the government was
pursuing a relevant inquiry in an attempt to “show a long-term
financial relationship, a financial relationship that goes
directly to the bearing of whose money this was, what was
owed to whom and so forth.”
For his part, Abraham testified that he met with Wells for
the first time in 1991, while Wells was incarcerated in Helena,
Montana. In the meeting, Wells agreed to have Abraham han-
dle his case, and Abraham told Wells that Mike Pancer
(Jones’ counsel) and Dennis Roberts (a California attorney
who had represented Wells in the past) were going to pay his
fee. When asked the source of the funds, Abraham testified
that he had “[t]he idea” that the source of the funds was
“Danny Jones.” Abraham also testified that he did not believe
there was any conflict of interest. He testified to having, with
Wells’ consent, a “Joint Defense and Confidentiality Agree-
ment” (the Joint Defense Agreement) with the codefendants
and their counsel. He admitted he probably told Wells that he
would not represent a “snitch” and that he does not represent
defendants that are interested in cooperating with the govern-
ment. He testified that he discussed the defense strategy with
Wells, which was to show that the testimony of the govern-
ment witnesses was unreliable.
Abraham also testified that he or someone else prepared
Wells’ declaration in support of Jones’ severance motion and
UNITED STATES v. WELLS 345
that he went over the declaration with Wells, explaining its
ramifications. According to Abraham, Wells was adamant
that he and Jones were involved in a legitimate gold mining
operation and that Jones had severed his business ties with the
operation in 1985. Abraham acknowledged that the declara-
tion did not “necessarily assist” Wells, but that Wells “wanted
to do it” because Wells and Jones were friends and Wells
thought the charges against Jones were “bogus.” Abraham
testified that he did not believe that the government could
make use of the declaration ostensibly because everyone
understood the declaration to mean that Wells would testify
at a separate trial that Jones was no longer involved in the
legitimate gold mining operation after 1985. Abraham added
that the government made no use of the declaration at trial.
On October 31, 2002, the district court denied Wells’
§ 2255 motion. The court initially noted that Wells manufac-
tured large quantities of methamphetamine and laundered 1.6
million dollars in drug sale proceeds. The court also noted we
found on direct appeal that the evidence against Wells was
overwhelming. The court noted that Wells had a lengthy crim-
inal history and was no stranger to the criminal justice system.
The district court further found that, after Wells’ arrest, he
initially attempted to hire Dennis Roberts, who had repre-
sented him in the past. Wells did not discuss a fee payment
with Roberts and did not know who paid Roberts to appear at
his arraignment. Roberts did not represent Wells because of
other commitments.
The district court made extensive findings concerning
Abraham’s representation of Wells. The court found that
Wells’ decision to go to trial was made before Abraham ever
entered the case. In fact, the court found that Wells wanted an
experienced trial attorney to handle his case because he
(Wells) had no intention of pleading guilty or cooperating
with the government. The court found that Wells knew that
the funds used to retain Abraham came from Jones, but the
346 UNITED STATES v. WELLS
court also found that Wells refused to disclose whose money
(Jones or Wells’) actually was being paid to Abraham.3
Because Wells refused to testify regarding his relationship
with Jones and, particularly, his financial relationship with
Jones, the district court drew an adverse inference from
Wells’ failure to answer the questions. In its written order, the
court stated: “The Court believes that the money advanced by
Danny Jones for Wells’ representation could in fact have been
owed by Jones to Wells. The money might even be Wells’
funds and not Jones’ funds.” Wells, Nos. CV 97-16-H, 97-42-
BU, slip op. at 8. The court added, “this is not a case where
a drug mule or courier was represented by counsel provided
by the codefendant drug boss.” Id.
The district court also made extensive findings concerning
Abraham’s effectiveness as Wells’ attorney. The court found
that Abraham was successful in suppressing a large amount of
methamphetamine and a 9mm handgun; made an appropriate
opening statement and closing argument; vigorously cross-
examined the government’s witnesses; and was intelligent,
competent, and vigorous in his representation of Wells. The
court also found that Abraham was an experienced and tal-
ented attorney who had practiced criminal law for forty-one
years; had specialized in trial work; and had tried approxi-
mately twenty cases each year of his practice. The court found
Abraham to be a credible witness, although the court did
express some concern that Abraham “may have understated
his testimony to favor” Wells. Id. at 10.
3
Wells testified that, in 1995, Jones told him that he (Jones) paid Abra-
ham $100,000 for the trial and $30,000 for the appeal. Abraham testified
that he was paid $60,000 for the trial and $25,000 for the appeal. Wells
received $10,000 “indirectly” from Jones in order to hire an attorney to
file his § 2255 motion. United States v. Wells, Nos. CV 97-16-H, 97-42-
BU, slip op. at 7 (D. Mont. October 31, 2002). The record reflects that
Wells “borrowed” money from Jones to pursue his § 2255 motion.
UNITED STATES v. WELLS 347
The district court then turned to its findings concerning the
existence of an actual conflict of interest. The court found that
Abraham told Wells that he did not represent “snitches” and
“by that [Abraham] meant that he specialized in trying cases.”
Id. at 10-11. Abraham told Wells that he had been hired by
Jones, and Wells told Abraham that this arrangement for rep-
resentation was acceptable. The court found that Wells was
not concerned that Abraham did not represent snitches
because Wells was not and did not consider himself a snitch.
Wells simply had no intention of pleading guilty or cooperat-
ing with the government.
In making its findings concerning the effect of the fee
arrangement on Abraham’s representation of Wells, the dis-
trict court stated the case was hard-fought pursuant to the
Joint Defense Agreement and counsel put on a vigorous
defense. The district court also found that Wells’ assertion
that he would have been interested in pleading guilty in return
for the court’s leniency was “simply not credible.” Id. at 12.
In this regard, the court found that Wells was unwilling to tes-
tify as a witness for the government and was not concerned
that Abraham “did not plan to seek a plea agreement from the
government.” Id. The court found that Wells simply had no
intention of pleading guilty and/or accepting responsibility for
the multi-million dollar quantities of methamphetamine
involved in the drug conspiracy. The court also found that
Abraham discussed strategy with Wells, both before and dur-
ing the trial.
The district court next addressed Abraham’s handling of
Wells’ declaration filed in support of Jones’ severance
motion. The court found that Abraham had asked Wells if he
wanted to help Jones by submitting a written declaration to
the court corroborating Jones’ statute of limitations defense.
The court also found that Wells willingly agreed. The court
found that Wells’ written declaration offered in support of
Jones’ severance motion was not used against Wells in any
way nor could it have been used against him given his defense
348 UNITED STATES v. WELLS
strategy. The court also found that the written declaration
merely “parroted” Wells’ defense strategy and did not prevent
Wells from testifying at trial. Id. at 15. Finally, the court
found that Wells was advised not to testify because of his
extensive criminal history.
Based on the above findings, the district court concluded
that there had been no actual conflict that adversely affected
Abraham’s performance in representing Wells. The court fur-
ther found that, considering Wells’ age, education, intelli-
gence, and criminal history, he waived any potential conflict
of interest. Accordingly, the court denied Wells’ § 2255
motion.
Wells filed a timely notice of appeal and requested a certifi-
cate of appealability from the district court, which the district
court denied. We granted a certificate of appealability limited
to the issue of whether an actual conflict of interest adversely
affected Abraham’s representation of Wells.
II
Wells contends that the district court erred when it con-
cluded that he failed to demonstrate that an actual conflict of
interest adversely affected Abraham’s performance. More
specifically, Wells contends that the fee arrangement—that
Abraham’s fee was paid by Jones—adversely affected Abra-
ham’s representation of Wells.4 We review the district court’s
4
Like the district court, we do not countenance Wells’ unwillingness to
testify concerning the true source of the funds paid to Abraham. In our
view, Wells should not be permitted to argue that Jones paid his attorney’s
fees without first answering the question of whether or not the money paid
to Abraham was his (Wells’) money by way of Jones. After all, if the
money paid to Abraham was Wells’ money, Wells’ case falls flat on its
face. To resolve this case, however, we do not need to reach the question
raised by Wells’ evasiveness because his conflict of interest claim fails
even if Jones paid Abraham his fee.
UNITED STATES v. WELLS 349
denial of a § 2255 motion de novo. United States v. Ratigan,
351 F.3d 957, 961 (9th Cir. 2003).
[1] Under the Sixth Amendment, a criminal defendant has
the right to effective assistance of counsel at trial. This right
includes the entitlement to representation that is free from
conflicts of interest. Strickland v. Washington, 466 U.S. 668,
688 (1984). “In order to establish a violation of the Sixth
Amendment [based on a conflict of interest], a defendant who
raised no objection at trial must demonstrate that an actual
conflict of interest adversely affected his lawyer’s perfor-
mance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). If this
standard is met, prejudice is presumed. Mickens v. Taylor,
535 U.S. 162, 166 (2002); United States v. Rodrigues, 347
F.3d 818, 823 (9th Cir. 2003).
[2] Of note, “the Sullivan standard is not properly read as
requiring inquiry into actual conflict as something separate
and apart from adverse effect.” Mickens, 535 U.S. at 172 n.5;
see also Rodrigues, 347 F.3d at 823 & n.7 (rejecting dual
inquiry); United States v. Shwayder, 312 F.3d 1109, 1117-20
(9th Cir. 2002) (citing Mickens and discussing “actual con-
flict” as an initial step in determining whether there was the
requisite “adverse effect”), cert. denied, 124 S. Ct. 181
(2003). Under this standard, an “ ‘actual conflict’ ” is “a con-
flict that affected counsel’s performance—as opposed to a
mere theoretical division of loyalties.” Mickens, 535 U.S. at
171; see also United States v. Baker, 256 F.3d 855, 860 (9th
Cir. 2001) (noting that an “attorney has an actual, as opposed
to a potential, conflict of interest when, during the course of
the representation, the attorney’s and the defendant’s interests
diverge with respect to a material factual or legal issue or to
a course of action”) (citation and internal quotation marks
omitted). In Shwayder, we held that, to prove an adverse
effect, the defendant must show that “counsel was influenced
in his basic strategic decisions” by loyalty to another client or
former client. 312 F.3d at 1118 (citation and internal quota-
tion marks omitted). In other words, to show adverse effect,
350 UNITED STATES v. WELLS
a defendant need not demonstrate prejudice—that the out-
come of his trial would have been different but for the conflict
—but only “that some plausible alternative defense strategy or
tactic might have been pursued but was not and that the alter-
native defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests.”
United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996) (citation
and internal quotation marks omitted).
[3] In this particular case, we have no doubt that the fee
arrangement created a “theoretical division of loyalties.”
Mickens, 535 U.S. at 171. The Supreme Court in Wood v.
Georgia made this clear when it stated:
Courts and commentators have recognized the inher-
ent dangers that arise when a criminal defendant is
represented by a lawyer hired and paid by a third
party, particularly when the third party is the opera-
tor of the alleged criminal enterprise. One risk is that
the lawyer will prevent his client from obtaining
leniency by preventing the client from offering testi-
mony against his former employer or from taking
other actions contrary to the employer’s interest.
450 U.S. 261, 268-69 (1981) (footnotes omitted); see also In
re Grand Jury Subpoena Served upon Doe, 781 F.2d 238, 248
n.6 (2d Cir. 1986) (en banc) (“Accepting payment of clients’
fees from a third party may subject an attorney to undesirable
outside influence, particularly . . . in criminal matters [where]
the third party is the head of a criminal enterprise of which the
clients are members. In such a situation, an ethical question
arises as to whether the attorney’s loyalties are with the client
or the payor.”). Thus, the question before us is whether the fee
arrangement, which created a theoretical division of loyalties,
adversely affected Abraham’s representation of Wells.
A
Wells argues that the fee arrangement adversely affected
Abraham’s representation of him because Abraham enticed
UNITED STATES v. WELLS 351
him to sign the declaration in support of Jones’ severance
motion. According to Wells, without his loyalty to Jones,
Abraham would have discouraged Wells from signing the
declaration because the declaration essentially prevented
Wells from testifying at trial.
Abraham testified that he explained the “high points and
low points” of the declaration to Wells. Abraham acknowl-
edged that the declaration did not “necessarily assist” Wells,
but that Wells “wanted to do it” because Wells and Jones
were friends and Wells thought the charges against Jones
were “bogus.” Abraham testified that he did not believe that
the government could make use of the declaration and pointed
out that the government indeed did not use the declaration in
any manner. Abraham also testified that the reason he advised
Wells not to take the stand was Wells’ extensive criminal his-
tory.
[4] With regard to the declaration, we do not see how the
fee arrangement adversely affected Abraham’s handling of
the issue. First, there was no assertion in the district court
habeas proceedings that Wells had, at any time, an intention
to testify at trial. In fact, Abraham advised Wells not to take
the stand because of his extensive criminal history and this
advice was eminently reasonable under the circumstances.
Thus, if having Wells testify was an implausible or unsound
defense strategy, it cannot be said that the fee arrangement
adversely affected Abraham’s handling of the declaration
issue because the interests of Jones and Wells never diverged
with regard to that strategic decision. Stantini, 85 F.3d at 16.
[5] In any event, even if having Wells testify represented
a sound trial strategy, which it did not, the result would be no
different. Wells’ defense was based on the assertion that he
and Jones were involved in a legitimate business. All parties,
including the government and the district court, viewed the
declaration as an indication that Jones left the legitimate gold
mining operation in 1985. Nothing in the declaration admitted
352 UNITED STATES v. WELLS
the truth of the criminal allegations in the indictment. If there
had been any implication of such an admission, surely the
government would have sought to introduce the declaration,
yet it did not. A statement regarding when Jones’ involvement
in the assertedly legitimate enterprise terminated certainly did
not conflict with Wells’ defense or support the criminal
indictment.
B
Wells also contends that the fee arrangement prevented
Abraham from entering into plea negotiations with the gov-
ernment, either before or after his trial. We disagree.
[6] Wells has an extensive criminal record. He is familiar
with the criminal justice system and the plea bargaining pro-
cess. However, in this particular case, Wells was unwilling to
plead guilty and was unwilling to cooperate with the govern-
ment in any fashion, as the district court so found. If Wells
was unwilling to plead guilty or cooperate with the govern-
ment, either before or after his trial, it cannot be said that
Abraham’s performance as Wells’ counsel was adversely
affected by his failure to engage in futile plea negotiations
with the government, even though, in a hypothetical sense,
Wells may have obtained a reduced sentenced by testifying
against Jones at his retrial. In view of Wells’ unwillingness to
plead guilty and/or cooperate, Abraham had nothing to offer
the government, even after the verdict. Thus, we are con-
strained to conclude that Wells’ decisions, not those of Abra-
ham, prevented Wells from pursuing a plea bargain with the
government. Cf. Armienti v. United States, 313 F.3d 807, 815
(2d Cir. 2002) (holding that, even though counsel did not dis-
cuss the option of a plea agreement, conflict of interest claim
premised on counsel’s failure to pursue a plea agreement
failed where defendant adamantly refused to cooperate with
the government).
[7] Moreover, and critically, there simply is no indication
in the record, either in the original trial or in the habeas pro-
UNITED STATES v. WELLS 353
ceedings here, that Wells had any information concerning
Jones’ activities that could have been helpful in convicting
him. Nor is there evidence in the record that the government
was interested in obtaining information from Wells about
Jones. There is also nothing in the record that indicates Jones’
defense, which later resulted in his acquittal, was not true, that
Wells had any information that it was not, or that his lawyer
had any reason to believe that Wells had such information. Cf.
Belmontes v. Woodford, 350 F.3d 861, 886 (9th Cir. 2003)
(holding that speculative alleged failings by counsel are insuf-
ficient to support a conflict of interest claim). Absent any
showing to the contrary, we cannot conclude there was an
actual conflict of interest adversely affecting Abraham’s rep-
resentation of Wells, even after the jury’s verdict.
III
In summary, this simply is not a case in which counsel
(Abraham) took, or refrained from taking, favorable action on
behalf of one client (Jones) to the detriment of another client
(Wells). Cf. Shwayder, 312 F.3d at 1118-20 (in successive
representation case where the defendant had an interest in lay-
ing blame on coconspirator who cooperated with the govern-
ment and testified at defendant’s trial, court found no adverse
effect on counsel’s performance because counsel was not ethi-
cally restricted from vigorously cross-examining coconspira-
tor and counsel had actually impugned coconspirator’s
credibility several times throughout the trial); see also Lewis
v. Mayle, No. 03-16152, 2004 WL 2699900, at *7-9 (9th Cir.
November 29, 2004) (in a successive representation case
where the state’s primary witness and only eyewitness to the
murder allegedly committed by the petitioner, court found
that an adverse effect was demonstrated because counsel
failed to pursue three viable avenues of impeachment of the
state’s primary witness); McFarland v. Yukins, 356 F.3d 688,
709-10 (6th Cir. 2004) (holding that counsel labored under
actual conflict of interest in violation of Sixth Amendment in
jointly representing defendant and codefendant charged with
354 UNITED STATES v. WELLS
possessing same drugs in their jointly occupied apartment,
where counsel forewent obvious and strong defense of incul-
pating codefendant as possessor of drugs and instead implau-
sibly argued that third parties possessed drugs); Quintero v.
United States, 33 F.3d 1133, 1136-37 (9th Cir. 1994) (holding
that evidentiary hearing warranted on conflict of interest
claim where counsel’s advice to defendant to reject plea
agreement was not in defendant’s best interest and, thus,
advice to reject plea agreement could have been motivated by
a desire to keep the defendant from implicating the person
paying the defendant’s attorney’s fees). Nor is this a case
where a drug courier or low-level drug dealer is at the mercy
of a drug kingpin or unknown third party. Quintero, 33 F.3d
1136-37. As noted above, there is no evidence that the fee
arrangement affected Abraham’s handling of any issue in the
case. In fact, the record reflects that Abraham’s performance
was unaffected by the fee arrangement and he, as the district
court found, put on a spirited defense in his representation of
Wells, a defense, which in all principal respects mirrored
Jones’ defense. Cf. Berry v. United States, 293 F.3d 501, 505
(8th Cir. 2002) (holding that, although counsel had an actual
conflict at sentencing, no adverse effect shown where coun-
sel’s advice at sentencing “was more than reasonable, and evi-
dently unaffected by any ulterior consideration”).5
Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent. Robert Wells was denied effective
5
Because Wells’ conflict of interest claim fails on the merits, we need
not address the district court’s alternative holding that Wells waived any
conflict of interest.
UNITED STATES v. WELLS 355
assistance of counsel in two respects. His defense attorney,
Joseph Abraham, labored under an actual conflict of interest.
Abraham’s legal fees were paid by Daniel Jones, one of
Wells’s indicted co-conspirators,1 and the record establishes
that this fee arrangement adversely affected Abraham’s repre-
sentation. Second, Abraham was absolutely unwilling to
negotiate with the government on behalf of Wells even
though it could have materially decreased Wells’ sentence.
I.
“A criminal defendant’s Sixth Amendment right to counsel
includes the right to be represented by an attorney with undi-
vided loyalty.” Lockhart v. Terhune, 250 F.3d 1223, 1226 (9th
Cir. 2001). Unlike other Sixth Amendment claims, a claim
that a lawyer operated under an actual conflict of interest does
not require the petitioner to prove that his counsel’s deficient
performance prejudiced his defense. Id. (quoting Delgado v.
Lewis, 223 F.3d 976, 981 (9th Cir. 2000)); see also United
States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003). It is
enough to prove the existence of an actual conflict—a conflict
that “affected counsel’s performance.” Mickens v. Taylor, 535
U.S. 162, 171 (2002).
II.
Wells meets his burden with evidence that the potential
conflict created by Abraham’s fee arrangement actually
affected Abraham’s representation in two ways. First, Abra-
ham asked Wells to sign a declaration that helped Jones, but
that could have prejudiced Wells’s own defense. Second,
Abraham flatly refused to negotiate with the government on
Wells’s behalf—a refusal that could only have benefitted
Jones.
1
The majority suggests that although Jones advanced the money, the
money actually might have been Wells’s. What is critical, however, is that
Abraham thought its source was Jones.
356 UNITED STATES v. WELLS
A.
On July 8, 1991, shortly after the criminal trial in this case
had begun, Abraham presented Wells with a prepared declara-
tion that Abraham intended to file in support of Jones’s
motion to sever his trial from that of his co-defendants. Wells
signed the declaration, apparently after a brief discussion with
Abraham. The declaration stated that Wells had decided not
to testify at his own trial, but that if Jones were given a sepa-
rate trial, Wells would testify at that trial that in March 1985
Jones withdrew “from all activity involving the allegations in
the Indictment” and “abandoned all economic and financial
interest in our ventures.”
There is no evidence in the record that Abraham ever dis-
cussed with Wells the potentially inculpatory nature of this
declaration. For example, if one assumes, as co-conspirator
Don Wogamon testified at trial, that Wells and Jones con-
spired to manufacture and distribute methamphetamine from
1983 through the early part of 1985, then Wells’s declaration
immediately takes on an incriminating cast. It admits Wells’s
participation in what Wogamon described, in detail, as an
illicit, business venture centered around the manufacture and
distribution of methamphetamine. Contrary to the majority,
the language that Wells, if called to testify in a separate trial
of Jones would testify that Mr. Jones “manifested a clear
intention to withdraw from all activity involving the allega-
tions in the Indictment in this case” is incriminating. It does
not limit the “activity” to the gold mine operation as the
majority suggests.
At the evidentiary hearing on Wells’s § 2255 motion,
Wells’s habeas counsel asked Abraham to explain what possi-
ble benefit could have accrued to Wells as a result of the July
8, 1991 declaration. Abraham could not point to any benefit.
Instead, he explained that he presented the declaration to
Wells because it provided support for the severance motion of
UNITED STATES v. WELLS 357
Wells’s friend Jones—the co-conspirator and co-defendant,
who Abraham thought was paying his legal fees.
B.
Abraham and Wells first met in 1991, after Wells had been
arrested on the charges at issue in this case. At their first
meeting, Abraham made it clear that his offer of representa-
tion was limited. When Wells asked about his “option[s]”
other than trial, Abraham said: “[I] don’t represent snitches.”
A policy like Abraham’s raises serious ethical questions.
See United States v. Lopez, 4 F.3d 1455, 1464-66 (9th Cir.
1993) (B. Fletcher, J., joined by T.G. Nelson, J., concurring);
see also ABA Model Rule of Professional Conduct 1.2(a)
(“[A] lawyer shall abide by a client’s decisions concerning the
objectives of representation . . . . In a criminal case, the law-
yer shall abide by the client’s decision, after consultation with
the lawyer, as to a plea to be entered, whether to waive jury
trial and whether the client will testify.”); id. at 1.2(c) (“A
lawyer may limit the scope of the representation if the limita-
tion is reasonable under the circumstances and the client
gives informed consent.”) (emphasis added). The plea bar-
gaining process is so important in our criminal justice system
that a defense lawyer who refuses to negotiate with the gov-
ernment will often fail to provide the effective assistance
required by the Sixth Amendment. See Turner v. Calderon,
281 F.3d 851, 879 (9th Cir. 2002) (explaining that negotia-
tions with the government are a “critical stage” of a prosecu-
tion for Sixth Amendment purposes). The type of truncated
representation offered by Abraham certainly falls far short of
the ideal attorney-client relationship expounded in Strickland.
See Lopez, 4 F.3d at 1464 (“[T]he model of a successful
attorney-client relationship, as expounded in Strickland v.
Washington, is one in which counsel’s actions are based on
informed strategic choices made by the defendant and on
information supplied by the defendant.”) (internal quotation
marks and alterations omitted).
358 UNITED STATES v. WELLS
Notwithstanding these ethical problems with Abraham’s
approach, Abraham stuck to his policy throughout Wells’s
trial, even after the jury convicted Wells but was unable to
reach a verdict as to Jones on several counts. The majority
suggests that Abraham may have decided not to pursue nego-
tiations with the government because Wells had no useful
information to give—not because Abraham was affected by a
conflict of interest.2 This view of the record is flawed in two
respects.
First, the majority’s view assumes that Jones had a valid
statute of limitations defense, and that Wells could not have
implicated Jones in any illegal acts within the limitations
period. However, Jones was charged in at least one count for
which Wells could have provided critical testimony and for
which Jones did not have an obvious statute of limitations
defense. The “Butte indictment” charged Jones with manufac-
turing and distributing methamphetamine on March 11, 1985.
Because that indictment was filed on February 23, 1990, the
charged violation fell within the five-year limitations period.
Second, Abraham testified at the evidentiary hearing on
Wells’s § 2255 motion that he and Wells never discussed
whether Wells could provide assistance to the government. It
is difficult to imagine that a defense attorney unaffected by a
conflict of interest would not at least have asked Wells if he
could provide information useful to the government, particu-
larly when Wells had already been convicted and Jones faced
a second trial on the hung-jury counts. Compelling trial testi-
mony established that Jones and Wells had manufactured
methamphetamine together for several years in the early
1980s. Even if Wells could not have provided the government
with information about Jones’s involvement in the March 11,
2
Similarly, the majority implies that the government had no interest in
obtaining information from Wells about Jones. I find this specious —
Jones’ first jury was hung. His second acquitted. The government needed
help and Wells was the obvious source.
UNITED STATES v. WELLS 359
1985 distribution, or about Jones’s involvement in criminal
acts within five years of the “Helena indictment,” Wells
clearly had a wealth of incriminating background information
about Jones that he could have provided to the government.
Yet Abraham failed to broach the subject of cooperation with
the government. This unexplained failure could have benefit-
ted only Jones.3
The most logical explanation for Abraham’s conduct is that
his representation of Wells was adversely affected by a con-
flict of interest. This is the only explanation, in fact, that
accords with Jones’s conduct. Jones agreed to pay for Wells’s
criminal defense even though Jones and Wells had had a fall-
ing out in 1985 and had not spoken before the 1991 trial. It
strains credulity to assume that Jones volunteered to pay
Abraham’s significant legal fees4 without at least expecting
loyalty in return.
III.
The July 8, 1991 declaration and Abraham’s refusal to
negotiate with the government, viewed in light of Jones’s
unexplained willingness to pay for Wells’s defense, lead me
to conclude that Abraham’s representation was adversely
affected by an actual conflict of interest. I would grant the
writ.
3
Abraham suggested at the evidentiary hearing on Wells’s § 2255
motion that he simply preferred trials to plea negotiations: “Whenever I
get ready to be involved in a case, I candidly tell the person that I’m about
to be involved with that if he wants to be a government witness he doesn’t
need me to represent him.” Even if true, this preference does not explain
Abraham’s failure to raise the issue of government cooperation after Wells
was convicted. At that point, Abraham had already had his chance to take
the case to trial. Abraham had nothing to lose and Wells had everything
to gain.
4
Wells testified that Abraham was paid $100,000 for his trial represen-
tation and $30,000 for his appellate work. Abraham testified that he proba-
bly received $60,000 for the trial and $25,000 for his appellate work. At
a minimum Jones paid $85,000 for Wells’s criminal defense.