UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4577
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID BARREN, a/k/a James Willie Jones, a/k/a Vincent
Hutchins,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cr-00053-PJM-1)
Submitted: June 29, 2012 Decided: July 12, 2012
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Mushtaq Gunja, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Barren appeals his convictions and life sentence
following a jury trial on a fifty-three-count second superseding
indictment charging him with drug, money laundering, and evasion
of financial reporting offenses. On appeal, Barren contends
that the district court’s pretrial rulings deprived him of the
effective assistance of counsel. Finding no error, we affirm.
Barren first argues that the district court deprived
him of the effective assistance of counsel by permitting an
attorney with a conflict of interest to represent him. To prove
ineffective assistance based on a conflict of interest, the
defendant must demonstrate that (1) counsel “operated under a
‘conflict of interest’ and (2) such conflict ‘adversely affected
his lawyer’s performance.’” United States v. Nicholson, 611
F.3d 191, 205 (4th Cir. 2010) (quoting Cuyler v. Sullivan, 446
U.S. 335, 348 (1980)); see Mickens v. Taylor, 240 F.3d 348, 361
(4th Cir. 2001) (providing test for proving adverse effect). * We
conclude that because ineffective assistance does not
conclusively appear from the record, Barren’s claim is not
*
Although Barren urges us to apply the per se conflict of
interest rule espoused by the Second Circuit in United States v.
Williams, 372 F.3d 96, 102-03 (2d Cir. 2004), we decline to do
so under the facts here presented.
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cognizable on direct appeal. See United States v. Martinez, 136
F.3d 972, 979 (4th Cir. 1998) (providing standard).
Barren also asserts that the district court deprived
him of the effective assistance of counsel by denying his motion
for a continuance. “[B]road discretion must be granted trial
courts on matters of continuances; only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks omitted). “The later that a
motion for a continuance is made, the more likely it is made for
dilatory tactics; hence, it is less likely that the district
court arbitrarily denied the continuance.” United States v.
LaRouche, 896 F.2d 815, 824 (4th Cir. 1990). Upon review, we
conclude that the district court did not abuse its discretion in
denying the motion for a continuance. See United States v.
Williams, 445 F.3d 724, 739 (4th Cir. 2006) (providing standard
of review).
Accordingly, we affirm the district court’s judgment
and deny Barren’s motions for leave to file a pro se
supplemental brief. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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