concurring.
While I agree with the conclusion that Judge Greenberg reaches in affirming the district court’s denial of Gambino’s motion pursuant to 28 U.S.C. § 2255, I reach that result by a somewhat different analytic route. I do not believe this is an appropriate case in which to divorce the inquiry regarding the presence of an actual conflict of interest from that of its adverse effect. In light of the procedural history of this case, I view the issue before us as only whether counsel for Rosario Gambino, Jacob Evseroff, was laboring under an actual conflict of interest which adversely affected his performance during the trial of Gam-bino.
We must examine the record before us in light of the Supreme Court’s holding in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), that a mere potential conflict of interest is insufficient to taint a criminal conviction. Instead, the Court held, in order to establish a Sixth Amendment violation, defendant must demonstrate that “an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348, 100 S.Ct. at 1718.
The first time this issue was before this court was on the direct appeal from the conviction. See United States v. Gambino, 788 F.2d 938 (3d Cir.1986). At that time, Gambino argued that Evseroff’s representation of him in this case while simultaneously representing Mazzara in the Ba-dalamenti case in New York created an actual conflict of interest. Gambino argued that the actual conflict of interest was established by Evseroff’s omissions in (1) failing to question government agents about Mazzara’s involvement in the January 18 drug transaction, (2) failing to investigate and obtain additional witnesses to implicate Mazzara and exonerate Gambino, (3) failing to vigorously suggest to the jury during summation that Mazzara was a supplier of heroin, and (4) failing to alert the trial judge of his dual representation either before trial or during trial when the conflict became apparent. Id. at 953.
This court concluded that “it is far from manifest that an actual conflict existed.” Id. We stated that “[w]hile the evidence strongly indicates that there may have been a conflict, ‘a possible conflict inheres in almost every instance of multiple representation.’ ” Id. at 953 (emphasis in original). We stated that inasmuch as “both parties have advanced various, plausible interpretations of the trial strategy” of Evser-off, we would affirm the conviction without prejudice to Gambino’s ability to initiate a section 2255 collateral proceeding for the resolution of his conflict of interest claim. Id.
Because we distinguished Gambino’s situation from the “exceptional situation” where it was apparent that “trial counsel labored under an actual conflict of interest,” id., I view our earlier holding as conclusively deciding that if Gambino produced nothing more than proof of the four omissions referred to above, we would not find an actual conflict of interest. An examination of the evidence produced at the section 2255 proceeding shows that Gambi-no did not produce persuasive evidence that Evseroff’s trial conduct was tainted by the multiple representation. Thus, I respectfully disagree with Judge Mansmann’s conclusion “that we are unrestricted by our prior decision.”
In essence, Judge Mansmann relies for her conclusion that there was an actual conflict of interest which adversely affected Evseroff’s performance on precisely the same conduct by Evseroff that Gambino referred to in his direct appeal when he argued that his Sixth Amendment right was violated. Were these omissions enough to fatally infect the trial, the first panel would have so held. Because nothing new and material was developed at the section 2255 hearing, we must give some effect to the first panel’s decision, and thus I cannot agree with Judge Mansmann that we are “unrestricted.”
*1074In this case, the district court was instructed to determine whether Gambino's interpretation of trial counsel’s performance or the government’s contrary interpretation was more plausible, should the case return to it on a section 2255 motion. The district court, after hearing the evidence presented at the hearing, found that Evseroff “presented a credible picture of an experienced trial lawyer making legitimate, reasonable choices regarding a course of cross-examination and the pursuit of one or more defenses. . . ” App. at 692. The court further found that “it was completely consistent with Evseroff’s representation of both clients [Mazzara and Gambi-no] that he not launch blindly a ‘Mazzara defense’ in the Gambino litigation. The interests of [Gambino] were best served by this decision and the defense developed for him was a good one, had the witnesses supporting it been believed.” App. at 697.
Of course, had the district court credited Evseroff’s affidavit in which he stated that he avoided asking the FBI agents questions which could implicate Mazzara because he did not want to jeopardize Maz-zara’s impending trial, this case would be governed by our decision in Sullivan v. Cuyler, 723 F.2d 1077, 1086-87 (3d Cir.1983). There we held that the testimony by one of the attorneys who had represented co-defendants that he would have employed a different strategy if he had only represented defendant Sullivan was enough to show an actual conflict of interest. Here, however, the district court gave no credence to Evseroff’s affidavit because it found that the affidavit was procured under circumstances which suggested “the presence of underlying forces and pressures.” App. at 691. Instead, the district court credited Evseroff’s testimony at the hearing that his conduct at trial was motivated by trial strategy rather than by an effort to protect his other client, Mazzara.
It is apparent from the Supreme Court’s most recent discussion of this issue following Cuyler v. Sullivan that an appellate court must defer to such findings by the district court. In Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), the Court upheld the district court's conclusion that the overlap of counsel whose office represented two defendants implicated in the same crime did not so infect the representation as to constitute an active representation of competing interests. The Court stated that the district judge “is in a far better position than we are to evaluate a charge of this kind,” and referred to the role of the court of appeals as conducting “appellate review of these heavily fact-based rulings.” Id. 107 S.Ct. at 3121.1
While I may have had grave reservations had I been the district judge about what could be viewed from the cold record as a possible attempt by the government to influence Evseroff’s testimony at the hearing by complaining to a bar disciplinary committee about his conduct as reflected in the affidavit and subpoenaing his tax records, I am not free to make such a credibility determination. Since I am bound by the one made by the district court, I believe it follows that we are also bound to accept its conclusion that there was no actual conflict of interest which adversely affected Evser-.off’s representation of Gambino at his trial. For this reason, I also vote to affirm.
. Moreover, although Judge Mansmann states that the evidence of an actual conflict was not as strong here as in Burger v. Kemp, in Burger the majority of the Supreme Court rejected the conflict of interest claim over the strong dissent of three Justices who believed that the evidence there showed that counsel’s joint representation caused him to forego on appeal a lesser culpability defense for one of the defendants. 107 S.Ct. at 3129-3133 (Blackmun, J., dissenting).