FILED
NOT FOR PUBLICATION FEB 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10135
Plaintiff - Appellee, D.C. No. 1:08-cr-00212-OWW-3
v.
MEMORANDUM *
SUKHRAJ DHALIWAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted January 17, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Sukhraj Dhaliwal appeals his conviction and sentence for conspiracy to
distribute and to possess with intent to distribute cocaine, and attempted possession
with intent to distribute cocaine. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I. Waiver of the Right to Conflict-Free Counsel
Dhaliwal argues that he did not waive his right to conflict-free counsel and
appeals the district court’s denial of his motion for a new trial. We agree with the
district court’s finding that any conflict arising from the attorney fee arrangement
was waivable, and that Dhaliwal’s waiver was voluntary, knowing, and intelligent.
The Sixth Amendment provides a criminal defendant with the right to
conflict-free counsel. However, “[t]rial courts may allow an attorney to proceed
despite a conflict if the defendant makes a voluntary, knowing, and intelligent
waiver.” United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998) (internal
quotation marks omitted). Trial courts are given “substantial latitude” in
determining whether to accept a waiver of conflicts of interest. Wheat v. United
States, 486 U.S. 153, 163 (1988). During a pre-trial hearing, the district court
informed Dhaliwal of his right to conflict-free counsel, his right to seek
independent counsel, and the possible consequences of maintaining his then-
current representation, including the introduction of evidence regarding the
attorney fee arrangement with a co-defendant. Dhaliwal indicated that he
understood his rights as explained by both the court and his attorney, and
voluntarily waived the potential conflict.
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Attorney-client conflicts are waivable unless they are “‘so egregious that no
rational defendant would knowingly and voluntarily desire the attorney’s
representation.’” Martinez, 143 F.3d at 1270 (quoting United States v. Lussier, 71
F.3d 456, 461 (2d Cir. 1995)). The potential conflict of interest raised by the
payment of Dhaliwal’s attorney fees by his co-defendant was not so severe as to be
unwaivable.
II. Ineffective Assistance of Counsel
We generally do not review challenges to the effectiveness of defense
counsel on direct appeal. See United States v. Alferahin, 433 F.3d 1148, 1160 n.6
(9th Cir. 2006). The exceptions to this general practice are “(1) where the record
on appeal is sufficiently developed to permit determination of the issue, or (2)
where the legal representation is so inadequate that it obviously denies a defendant
his Sixth Amendment right to counsel.” Id. (internal quotation marks omitted).
Although Dhaliwal raises multiple arguments regarding the lack of competency of
his attorney during trial, his primary argument for ineffective assistance of counsel
focuses on the absence of conflict-free representation. As noted, no actual,
unwaivable conflict arose during trial. The district court held a post-trial hearing on
Dhaliwal’s motions for a new trial and acquittal, in which Dhaliwal’s trial attorney
testified regarding the potential conflict related to his fee arrangement. The record
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is sufficiently developed on this limited ineffective assistance of counsel claim for
us to conclude that Dhaliwal was not denied his Sixth Amendment rights based on
an alleged attorney-client conflict.
To the extent that Dhaliwal’s ineffective assistance of counsel claim is
predicated not on conflicted representation, but on the adequacy of his attorney’s
conduct, the record before us is not sufficiently developed to permit determination
on direct appeal.
III. Admissibility of Evidence
The district court did not abuse its discretion in admitting the wire transfers
into evidence, after properly balancing the probative value of the evidence against
its prejudicial effect under Federal Rule of Evidence 403. See, e.g., United States v.
Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005).
The district court permitted the government to cross-examine Dhaliwal
regarding his previous employment with a man convicted of cocaine trafficking.
Dhaliwal asserts that this constitutes evidence of other crimes irrelevant to the
crime charged and so proscribed by Federal Rule of Evidence 404(b). Even
assuming that this line of questioning was improper, in light of the admissible
evidence tying Dhaliwal to the conspiracy, there was no prejudice.
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IV. Prosecutorial Misconduct
Dhaliwal argues that the government engaged in a pattern of insinuating
facts not properly before the jury, pointing to its use of evidence concerning his
border crossings, his prior employment, and the common use of a physical address
with a co-defendant. The district court did not err in admitting any of these pieces
of evidence separately, and we therefore find no prosecutorial misconduct exists on
the ground that the prosecutor sought to enter the contested testimony and exhibits
into evidence. While there is a general prohibition on proving a defendant’s guilt
by showing that he associates with “unsavory characters,” it is acceptable to offer
evidence showing the nature of the relationship between co-conspirators. See, e.g.,
United States v. Connors, 825 F.2d 1384, 1390 (9th Cir. 1987). Further, to the
extent that Dhaliwal alleges prosecutorial misconduct because the government
asked potentially objectionable questions, this claim also fails. See United States v.
Nobari, 574 F.3d 1065, 1079 (9th Cir. 2009).
Dhaliwal also argues that the district court abused its discretion by
permitting the government attorney, over defense counsel’s objections, to engage
in “guilt by association” reasoning during her closing arguments. We conclude that
the district court’s repeated warnings to the jury that the statements of the lawyers
were not evidence and should not be treated as such were sufficient to neutralize
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any harm caused by the government’s attempt to imply a connection between
Dhaliwal’s border crossings and his prior employment with a cocaine trafficker.
Dhaliwal’s final argument of prosecutorial misconduct involves allegedly
improper vouching for a cooperating co-conspirator by the government. This
argument has no merit. On cross-examination, the defense sought to impeach the
credibility of the witness. This impeachment extended to attacking the co-
conspirator’s credibility based on his incentive to reduce his sentence. The
government’s re-direct questions regarding the co-conspirator’s truthfulness in his
statements to the government were not improper vouching.
V. Sentencing Issues
Dhaliwal challenges the jury instructions on the ground that the jury was not
specifically told that only the drug quantity that fell within the scope of Dhaliwal’s
agreement with the conspiracy, as opposed to the total amount of drugs attributed
to the conspiracy, could be considered. Dhaliwal has failed to show plain error in
the jury instructions or in the special verdict form. The jury instructions, which
were given by the court without objection, stated that an individualized finding of
the drug quantity attributable to Dhaliwal’s involvement in the conspiracy was
required. Further, the jury was given separate verdict forms for each defendant.
The jury members were unlikely to have been misled as to the required findings
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regarding the threshold drug quantity. Dhaliwal’s other claims regarding the jury
instructions and special verdict form have no merit.
Dhaliwal’s final claim is that the district court erred in denying him safety-
valve relief. This court’s review of denial of safety valve relief is deferential.
United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). The district court
found that Dhaliwal was ineligible for safety valve relief because he did not
truthfully provide information to the government. A defendant bears the burden of
proving “by a preponderance of the evidence that he is eligible for the reduction.”
United States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996). The court found that
Dhaliwal did not meet this burden because he testified that he had no knowledge
that he was involved in a drug crime, which was directly contrary to findings of the
jury. Based on this contradiction, the district court did not commit clear error in
finding that he was ineligible for safety valve relief.
AFFIRMED.
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