United States Court of Appeals,
Fifth Circuit.
No. 95-30055.
UNITED STATES of America, Plaintiff-Appellee,
v.
David Kenneth PLACENTE, Defendant-Appellant.
April 26, 1996.
Appeal from the United States District Court for the Western
District of Louisiana.
Before REYNALDO G. GARZA, WIENER and STEWART, Circuit Judges.
STEWART, Circuit Judge:
David Kenneth Placente appeals the district court's denial of
his motion to vacate, set aside or correct sentence under 28 U.S.C.
§ 2255. Placente claims that he received ineffective assistance of
counsel. His pretrial attorney, Bernard McLaughlin, allegedly
operated under an actual conflict of interest in representing both
him and his nephew, Robert Braun; and this conflict adversely
affected counsel's performance. Placente specifically alleges that
in the course of the criminal proceedings against him, McLaughlin
acquired certain confidential information from him and used it to
Braun's benefit and his own detriment. The issue is raised for the
first time on appeal. For the following reasons we now affirm the
district court's denial of the motion.
FACTS
On February 11, 1987, a grand jury charged Placente and
fourteen other defendants in a five-count indictment in connection
with the importation and distribution of marijuana. One of the
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defendants was Placente's nephew, Robert Braun. The trial court
appointed Glen Vamvoras to represent Placente. Braun retained
Bernard McLaughlin to represent him. Placente wished to consult
other counsel, and Braun suggested he contact McLaughlin for
assistance.1
Vamvoras advised against Placente's seeing McLaughlin and
requested a hearing before the magistrate judge. At that hearing,
Placente explained that he wished to speak with McLaughlin "[n]ot
as a personal attorney, as a fact finding, as he has far more
resources I believe than the public defender's office has, far more
resources as far as fact finding litigations [sic]." The district
court was concerned whether McLaughlin could fairly represent both
Placente and Braun:
If Mr. McLaughlin is acting as your [Placente's] attorney, he
would be duty-bound to look out for your interest.... If he
is not employed as your attorney, but he is employed as Mr.
Braun's attorney, his only obligation at this time is to do
what is best for Mr. Braun, not for what is best for you, I
can tell you.
Vamvoras ultimately consented to McLaughlin visiting Placente
in jail. According to McLaughlin's records, he and Placente met on
March 4, 1988, for three hours; on March 17 for three and one-half
hours; on April 26 for forty-eight minutes; and on April 27 for
one and one-half hours. In addition to the interviews with
1
According to Braun, Placente retained McLaughlin "in his
professional capacity as counsel for Placente." Braun swore he saw
Placente sign a representation agreement for McLaughlin authorizing
McLaughlin to work on Placente's case. He also swore that he was
present when Placente told Vamvoras he no longer wanted him as his
lawyer and that Bernard McLaughlin had agreed to help him with his
defense. The alleged representation agreement has not been
produced.
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Placente and Braun, McLaughlin requested and received from
Placente's girlfriend all of Placente's phone books. McLaughlin
did not represent Placente at trial, nor did he ever file any
motions on Placente's behalf.
On April 11, 1988, pursuant to a motion to substitute counsel,
Vamvoras was permitted to withdraw as counsel of record and
replaced by C. Frank Holthaus. On April 28 the trial court ordered
that Vamvoras be allowed to enroll as co-counsel with Holthaus.
Together, Holthaus and Vamvoras represented Placente at trial and
at sentencing. The district court noted that although McLaughlin
was never enlisted as Placente's attorney of record he nevertheless
assumed a significant role in Placente's defense. The court
acknowledged there to be a prima facie showing of representation by
McLaughlin, and the government conceded the same.
All the defendants, except Placente and Robert Hagmann,
pleaded guilty. Braun entered into a plea agreement to "fully
cooperate" with the Government. Placente and Hagmann went to trial
on May 2, 1988; and both were found guilty of all five counts.
Placente was sentenced to imprisonment plus a fine. He did not
testify during the trial.
On July 22, 1994, Placente filed a pro se motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255 based on
ineffective assistance of counsel due to a conflict of interest.
Placente alleged in his motion that McLaughlin, in order to obtain
a better deal for Braun, divulged to the government confidential
information related during their meetings. Placente said that he
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first learned the Government had this information during his trial
when the prosecution showed him a report titled, "Information to
Aid U.S. Attorney's Office ... Regarding the "Choupique Marijuana
Bust." The report's heading indicated that it was prepared by
McLaughlin on behalf of Braun. Placente claimed that in the face
of the information contained in the government's memorandum, he
dared not testify in his own defense. Furthermore, he argued that
the report compromised his coercion defense. Among its responses,
the Government contended that Placente voluntarily provided the
information to McLaughlin for the purpose of aiding his nephew.
The district court denied the motion, and Placente comes now
seeking relief.
DISCUSSION
Following a district court's denial of a § 2255 motion, we
review the district court's factual findings for clear error and
questions of law de novo. United States v. Seyfert, 67 F.3d 544,
546 (5th Cir.1995). A defendant's claim that he received
ineffective assistance of counsel is a mixed question of law and
fact and is also reviewed de novo. United States v. Faubion, 19
F.3d 226, 228 (5th Cir.1994).
Threshold Issues
There are four grounds upon which a federal prisoner may move
to vacate, set aside, or correct his sentence: (1) the sentence
was imposed in violation of the Constitution or laws of the United
States; (2) the court was without jurisdiction to impose the
sentence; (3) the sentence exceeds the statutory maximum sentence;
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or (4) the sentence is "otherwise subject to collateral attack."
28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151
(5th Cir.), cert. denied, 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d
238 (1992). The scope of relief under § 2255 is consistent with
that of the writ of habeas corpus. Cates, 952 F.2d at 151.
A defendant who has been convicted and has exhausted or
waived his right to appeal is presumed to have been fairly and
finally convicted. United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir.1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct.
978, 117 L.Ed.2d 141 (1992). "[A] collateral challenge may not do
service for an appeal." United States v. Frady, 456 U.S. 152, 165,
102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). Therefore, a
defendant who raises a constitutional or jurisdictional issue for
the first time on collateral review must show both cause for his
procedural default and actual prejudice due to any such errors.
Id. at 168, 102 S.Ct. at 1594. Ineffective assistance of counsel
is cause for a procedural default. United States v. Pierce, 959
F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct.
621, 121 L.Ed.2d 554 (1992).
Actual Conflict
Ruling en banc, in Beets v. Scott, 65 F.3d 1258, 1268-71 (5th
Cir.1995) (en banc), we declared that the standard for judging
ineffective assistance allegations in the context of multiple
client representation is that laid out by the Supreme Court in
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980). Placente must "establish that an actual conflict of
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interest adversely affected his lawyers's performance." Cuyler,
446 U.S. at 350, 100 S.Ct. at 1719. If he does, then prejudice to
him must be presumed. Perillo v. Johnson, --- F.3d ----, ----, No.
94-20759, 1996 WL 125024, at *6 (5th Cir. Mar. 21, 1996). Beets
characterized this standard as a "not quite per se rule of
prejudice." Beets, 65 F.3d at 1269.
"A conflict exists when defense counsel places himself in a
position conducive to divided loyalties." United States v.
Carpenter, 769 F.2d 258, 263 (5th Cir.1985). "An actual conflict
exists if "counsel's introduction of probative evidence or
plausible arguments that would significantly benefit one defendant
would damage the defense of another defendant whom the same counsel
is representing.' " United States v. Lyons, 703 F.2d 815, 820 (5th
Cir.1983). "Joint representation does not necessarily create a
conflict of interest." United States v. Rico, 51 F.3d 495, 508
(5th Cir.1995). However, "[w]here an attorney obtains confidential
information helpful to one defendant but harmful to another, a
conflict of interest may exist." Parker v. Parratt, 662 F.2d 479,
484 (8th Cir.1981), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74
L.Ed.2d 91 (1982) (citing United States v. Burroughs, 650 F.2d 595,
598 and n. 4 (5th Cir.1981), cert. denied, 454 U.S. 1037, 102 S.Ct.
580, 70 L.Ed.2d 483 (1981)).
Placente claims for the first time on appeal that an actual
conflict existed in this case because by representing both him and
his nephew McLaughlin jeopardized his defense of coercion. Because
he did not raise an objection at trial, Placente must show that an
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actual conflict of interest affected McLaughlin's performance.
Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64
L.Ed.2d 333, 346 (1980).
The district court found that there was no actual conflict
between Placente and Braun because Placente had voluntarily
provided the information to McLaughlin in an effort to aid his
nephew's defense: "This court has a difficult time imagining how
the defendant's information could have aided Braun without
disclosure to the government."
Placente acknowledged that he voluntarily provided McLaughlin
information to aid his nephew's defense, but he did not authorize
McLaughlin to give this information to the government. He says it
was to be used, if at all, for Braun and his mutual benefit.
Placente's defense theory was that John David McKibbin, one of the
lead conspirators, compelled him to remain a member of the
conspiracy through threats. According to Placente, the information
in the memorandum was "far more inculpatory and descriptive for
[sic] other individuals than Appellant, yet it still carried the
connotation that Appellant was a part of those operations because
he knew and provided the information and was named therein." We
find Placente's argument unpersuasive. He fails to demonstrate an
actual conflict.
For there to be an actual conflict, there must be an attorney
and client relationship to be compromised. Placente contends that
McLaughlin was his attorney, unequivocally, and so was obligated to
promote his interests. Dereliction of this responsibility created
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the actual conflict of which Placente now complains. In response,
at oral argument, the government attempted to qualify the scope of
McLaughlin's representation of Placente as "very narrow," not so
extensive as to compel the usual protections reserved to
attorney-client situations. Supporting this argument is the fact
that at no time was McLaughlin ever identified as the counsel of
record for Placente.
Even accepting Placente's argument as to the scope of
McLaughlin's representation, there is still no showing of an actual
conflict to justify Placente's ineffective assistance claim.
The Memorandum
Placente also fails to establish that the information in the
report provided to the government by McLaughlin came from his
conversations with McLaughlin. The government contends that it
already possessed most of that information, much of it obtained
through plea negotiations with Placente himself. Placente does not
contradict the government's explanation. His strongest evidence is
an affidavit from his trial counsel, Holthaus, who swears that "it
was and is [his] strong impression that Placente believed that the
information came from McLaughlin." Because Holthaus and Placente
considered the information in the government's memorandum to be
highly incriminating, they decided not to allow Placente to
testify.
However, the information in the memorandum itself is not so
inculpatory as to undermine a coercion defense. It, in fact,
contains the allegation that Placente feared harm from McKibbin if
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he withdrew from the operation, exactly his purported defense
theory. The memorandum related Placente's role as that of
"radioman." He set up radio equipment at the radio outpost in
Columbia and on the vessel. Placente regularly is reported to be
taking orders from McKibbin and occasionally traveling with him,
every time in relation to delivering or setting up radio equipment.
Paragraph 14 reads, "Placente sent to Columbia to fix radio again;
watches fuel, food, bales put on boat; gets scared; almost
arrested at army checkpoints; wants to get out but afraid he will
be killed." The fact that Placente appears to play a prevalent
role in the conspiracy does not dismiss his coercion contention.
Furthermore, review of the trial transcript shows that he did
argue his coercion theory at trial. In closing arguments Holthaus
presented the theory that Placente had been threatened and acted
out of fear. Thus, there was evidence and argument presented of
McKibbin's alleged propensity toward violence and of Placente's
being threatened to engage in the conspiracy.
Adverse Effect
Even if Placente were able to establish an actual conflict, he
fails to show an adverse effect justifying reversal. Placente says
the "critical issue for purposes of gaging the adverse effect of a
conflict of interest is whether the counsel's decision-making
regarding one client was unfettered by the effect of that decision
on his other client." He says that the disclosure of the
information in the memorandum compromised his defense in that he
felt he could no longer testify. Still he does not give enough
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detail as to exactly what his testimony would have been and the
difference it could have made to prove an adverse effect worthy of
reversal.
Placente's arguments are unconvincing. They do not make a
clear case that McLaughlin operated under an actual conflict.
There is no indication that McLaughlin curtailed any activities on
behalf of Placente in order to prevent detrimental effects to
Braun's case.
Waiver
The Sixth Amendment's right to counsel includes the right to
conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271, 101
S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). For a waiver of a
defendant's right to conflict-free counsel to be effective, the
record must show that the trial court determined that it was done
knowingly, intelligently, and voluntarily. United States v. Greig,
967 F.2d 1018, 1021 (5th Cir.1992).2 Essentially, trial courts in
2
The formal procedure for ascertaining the effectiveness of a
defendant's waiver of conflict-free counsel was spelled out in
United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir.1975):
As in Rule 11 procedures, the district court should
address each defendant personally and forthrightly advise
him of the potential dangers of representation by counsel
with a conflict of interest. The defendant must be at
liberty to question the district court as to the nature
and consequences of his legal representation. Most
significantly, the court should seek to elicit a
narrative response from each defendant that he has been
advised of his right to effective representation, that he
understands the details of his attorney's possible
conflict of interest and potential perils of such a
conflict, that he has discussed the matter with his
attorney or if he wishes with outside counsel, and that
he voluntarily waives his Sixth Amendment protections.
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this circuit are to conduct a hearing to ensure that the defendant
(1) is aware that a conflict of interest exists; (2) realizes the
potential hazards to his defense by continuing with such counsel
under the onus of a conflict; and (3) is aware of his right to
obtain other counsel. Greig, 967 F.2d at 1022.
The Government argues that Placente waived his right to
conflict-free counsel by insisting on speaking with McLaughlin.
Placente responds that the March 2, 1988, hearing in which Placente
expressed an interest in securing McLaughlin's services did not
satisfy the requirements of United States v. Garcia, 517 F.2d 272
(5th Cir.1975), for establishing the existence of a conflict.
We find no actual conflict justifying Placente's ineffective
assistance claim. Moreover, the trial judge warned Placente that
McLaughlin, even if he agreed to meet with him, would retain his
obligation to pursue Braun's best interests. Placente responded
that he was fully aware of McLaughlin's role with respect to his
nephew; and he, nevertheless, wished to speak with him. Under the
circumstances, no Garcia hearing was necessary.
We find no actual conflict and, therefore, affirm the district
court's denial of Placente's ineffective assistance of counsel
claim.
AFFIRMED.
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