United States v. Hernandez Lebron

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1141

UNITED STATES,

Appellee,

v.

JOSE R. HERNANDEZ-LEBRON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Harry R. Segarra for appellant.

Ernesto Hernandez-Milan, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

May 18, 1994

BOWNES, Senior Circuit Judge. Defendant-appellant,
BOWNES, Senior Circuit Judge.

Jose Hernandez-Lebron, pleaded guilty to drug possession and

drug importation charges after he and Milagros Perez Delgado

(Perez) were indicted for conspiracy and drug offenses. At

all relevant times, a single attorney represented defendant

and Perez. Defendant argues that the joint representation

deprived him of the effective assistance of counsel, and he

seeks to withdraw his plea. Finding nothing in the record to

show that a conflict of interests impaired counsel's

performance, we deny defendant the relief he seeks.

I.

BACKGROUND

From March 1990 to June 1990, Jeanette Diaz-Laurano

(Diaz), Edgardo Lopez-Rodriguez, and Roberto Matos imported

cocaine into the United States from the Netherlands Antilles.

According to the presentence report, defendant made the

necessary arrangements, paid for travel expenses, and paid

the couriers $1000 per kilogram of cocaine. Defendant and

Perez, his common-law wife, accompanied Diaz on two trips.

In May 1991, a grand jury returned a five-count

indictment against defendant and Perez for conspiring to

import, importing, and possessing cocaine with intent to

distribute. 21 U.S.C. 841(a)(1), 952(a), 960, 963.

Defendant and Perez retained Attorney Edwin Quinones to

represent them.

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In June 1991, Perez moved to have her trial severed

from defendant's. The assigned trial judge granted a

severance on September 24, 1991 and scheduled defendant's

trial for October 11, several weeks before Perez's.

Meanwhile, the government filed motions for

reconsideration of the severance, and for a hearing, under

Fed. R. Crim. P. 44(c), on the question of whether joint

representation would "jeopardize both defendants['] rights,

particularly Milagros Perez-Delgado['s]," Government's Mot.

for Rule 44(c) H'g, at 2. On October 7, 1991, another judge,

to whom the litigation had been reassigned, vacated the

severance, set a joint trial for October 11, and denied the

request for a hearing into the question of a conflict of

interests because a magistrate judge had previously held such

a hearing.

On the morning of October 11, Perez pleaded guilty

to one count of importing cocaine, and the remaining counts

were dismissed as to her. Defendant followed suit several

hours later by pleading to two counts of cocaine importation

and possession, on the condition that the remaining counts be

dismissed. Quinones represented both defendant and Perez

through their plea negotiations, change of plea hearings, and

defendant's sentencing proceeding.

Prior to the date of her sentencing proceeding,

which followed defendant's, Perez filed a motion for the

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appointment of separate counsel. The trial court granted the

motion because it found that a conflict of interests

jeopardized her right to effective assistance of counsel.

Perez is not a party to this appeal.

II.

Defendant's contentions on appeal are: that he was

never adequately informed of the risks of joint

representation; that the trial judge had a duty to inquire

into potential conflicts when the severance was vacated; and

that his lawyer's divided loyalties violated his Sixth

Amendment right to the effective assistance of counsel.

Defendant seeks to withdraw his plea for those reasons.1

The government responds that the magistrate judge presiding

over defendant's arraignment adequately warned him of the

risks of joint representation, and that no actual conflict

developed.

Conflicts of Interests and Sixth Amendment Principles

A defendant has a right to conflict-free

representation under the Sixth Amendment. Wood v. Georgia,

450 U.S. 261, 271 (1981); Holloway v. Arkansas, 435 U.S. 475,

1. Defendant also raises a sentencing issue, to which we
devote nothing more than this footnote. In a single two-line
sentence in his brief, defendant argues that the trial court
erred in basing his sentence on sixteen kilograms of cocaine
rather than fourteen kilograms. The record indicates that
defense counsel explicitly conceded at sentencing that
sixteen kilograms were involved in the offense, and there is
ample support for the trial court's calculations.

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489-90 (1978). When two or more defendants share the same

counsel, conflicts of interests might arise. "[T]he conflict

is within the attorney's loyalty; the problem is that the

attorney might not be able to represent one client fully

without damaging the interests of the other client." United

States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 437 (7th Cir.

1983). Although "in some cases multiple defendants can

appropriately be represented by one attorney," Holloway, 435

U.S. at 482, joint representation violates the Sixth

Amendment when it gives rise to a conflict of interests

adversely affecting the lawyer's performance. Cuyler v.

Sullivan, 446 U.S. 335, 348 (1980); United States v.

Mazzaferro, 865 F.2d 450, 455 (1st Cir. 1989). Prejudice in

such cases is presumed. Mazzaferro, 865 F.2d at 455; Brien

v. United States, 695 F.2d 10, 15 (1st Cir. 1982).

Conflicts may arise at any stage of a proceeding

because codefendants are rarely, if ever, identically-

situated. The joint attorney may have to prefer one

defendant over the other at trial, where, for example,

evidence favorable to one defendant harms another; during

plea negotiations, where advocacy for one defendant

undermines the position of others, or when a plea bargaining

offer is conditioned on one defendant testifying against

another; and at sentencing, where sentencing factors compel a

lawyer to distinguish between clients. See United States v.

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Curcio, 680 F.2d 881, 887 (2d Cir. 1982) (providing myriad

examples of conflicts); Fed. R. Crim. P. 44(c) advisory

committee's notes; ABA Standards for Criminal Justice, The

Defense Function 4-3.5 (2d ed. 1980).

"It has long been recognized that there are

inherent difficulties" in reviewing claims of conflicts of

interests. Mazzaferro, 865 F.2d at 456 (citing Holloway, 435

U.S. at 490). These difficulties arise because "in a case of

joint representation of conflicting interests the evil . . .

is in what the advocate finds himself compelled to refrain

from doing . . . ." Holloway, 435 U.S. at 490 (emphasis in

original). It is often unclear "that the conflict of

interests, and not pure trial strategy," is the reason "for

the tactics adopted--or forgone--at trial." Curcio, 680 F.2d

at 887.

Trial Court's Duty of Inquiry

So "ubiquitous and insidious" are the risks of

multiple representation, Curcio, 680 F.2d at 887, and so

fundamental is the right to counsel, that the Sixth Amendment

imposes duties on trial courts in certain cases. Cuyler, 446

U.S. at 346. Defendant's timely objections to joint

representation must be investigated, and inquiries must be

made into the propriety of multiple representation whenever

the trial court knows or reasonably should know that a

particular conflict exists. Cuyler, 446 U.S. at 346-47.

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Federal Rule of Criminal Procedure 44(c) expands

these duties by requiring an inquiry into the possibility of

a conflict in all cases where jointly-charged defendants

retain the same counsel. Under Rule 44(c), the trial court

must "inquire with respect to such joint representation and .

. . personally advise each defendant of the right to the

effective assistance of counsel, including separate

representation." Id. Moreover, "[u]nless it appears that

there is good cause to believe no conflict of interest is

likely to arise," Rule 44(c) requires the court to "take such

measures as may be appropriate to protect each defendant's

right to counsel." Id.

Rule 44(c) has an antecedent in this Circuit,

United States v. Foster, 469 F.2d 1 (1st Cir. 1972). In

Foster, we exercised our supervisory powers in cases

involving jointly-represented defendants:

[I]t shall be the duty of the trial
court, as early in the litigation as
practicable, to comment on some of the
risks confronted where defendants are
jointly represented to insure that
defendants are aware of such risks, and
to inquire diligently whether they have
discussed the risks with their attorney,
and whether they understand that they may
retain separate counsel appointed by the
court and paid for by the government.

Id. at 5. The warning and the inquiry must be on the record.

Id.; accord Fed. R. Crim. P. 44(c) advisory committee's

notes. We require a Foster inquiry to ensure that defendants

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have been properly warned and to "prevent the uncertainty

that arises when defendants make post-conviction claims of

ignorance or misadvice." United States v. Martorano, 620

F.2d 912, 915 n.3 (1st Cir.), cert. denied, 449 U.S. 952

(1980); see also Colon v. Fogg, 603 F.2d 403, 407 (2d Cir.

1979) ("Such an inquiry is usually the only practical method

of ascertaining whether the joint representation may

prejudice the defendant . . . ."). Where there is no record

of a satisfactory inquiry, the government bears the burden of

proving that prejudice to the defendant was improbable.

Mazzaferro, 865 F.2d at 454.

The magistrate judge at the arraignment of

defendant and Perez engaged in the following dialogue

regarding the risks of joint representation:

[Magistrate:] [W]hen one attorney
represent two or more Defendants in this
same case, there is always a possibility
of conflict of interest.
The Court of Appeals for the First
Circuit has established in the case of
United States vs. Foster that when such

possibility exists the Court must discuss
some of the risks confronted when two or
more Defendants are jointly represented
to ensure that the Defendants are aware
of such risks and to ask whether they
have discussed the risk with their
attorney and whether they understand that
they may retain separate counsels.
If Defendant is financially unable
to pay for such services a counsel will
be appointed and paid by the Government.
Now, I must appraise [sic] you that
it may be possible that during the course
of this action that with respect of
particular defenses and decisions, such

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as whether or not to take the stand or to
call particular witnesses or how to
conduct a cross examination what may be
in one's best interest will turn out not
to be in the best interest of the other.
It is imperative that you, as the
Defendants, understand the importance of
my advice concerning the conflict of
interest.
Defendant, do you understand the
problem?
[Defendant:] Yes.
. . .
[Magistrate:] Have you been able to
discuss the problem with your counsel?
[Defendant:] Yes.
. . .
[Magistrate:] Do you still wish to
proceed with the same counsel as you're
co-Defendants?
[Defendant:] At this time, yes.
. . .
[Magistrate:] Well, if at any time any
one of you understand that a possible
conflict of interest is present let the
Court know of it so necessary steps will
be taken to protect your Constitutional
Rights and to be represented by a
competent counsel.
Is that clear?
[Defendant:] Yes.
. . .

While the government argues that the magistrate's inquiry was

adequate, defendant takes the opposite view on the ground

that the magistrate did not "fully advise" defendant of the

risks and did not elicit a narrative response.

Defendant has failed to identify any element

essential to a Foster hearing that the magistrate's inquiry

lacked. We do not require that defendants make narrative

responses, or that defendants be warned of every conceivable

risk. See Foster, 469 F.2d at 5 (form of hearing is

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generally within the trial court's discretion). Those are

requirements we might impose if a Foster inquiry were a

prelude to a waiver of the right to conflict-free

representation. But it is not. A defendant can successfully

challenge his conviction on the ground that a conflict

impaired his lawyer's performance, even if an adequate Foster

inquiry occurred. See Mazzaferro, 865 F.2d at 455; Foster,

469 F.2d at 5.

We have required that courts explain and explore

the risks of joint representation, in lay persons' terms, to

enable defendants to appreciate how conflicts might impair

the lawyer's performance. United States v. Elkins, 774 F.2d

530, 541 (1st Cir. 1985); United States v. Waldman, 579 F.2d

649, 653 (1st Cir. 1978); United States v. Donahue, 560 F.2d

1039, 1043-44 (1st Cir. 1977). The magistrate in this case

personally addressed defendant regarding the possibility of a

conflict, stated that he had a right to separate counsel,

provided examples of conflicts that might arise at trial, and

elicited an unequivocal "Yes," in response to a question on

whether defendant had discussed "the problem" with counsel.2

Defendant argues that his mental health problems, illiteracy,

and lack of a formal education rendered the inquiry

2. The magistrate also obtained defendant's signature on a
form entitled, "Acknowledgment of Joint Representation
Admonishment," which essentially repeated what the magistrate
stated in open court.

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inadequate. The record does not suggest, however, that

defendant was incompetent, or that he could not comprehend

the magistrate's explanation. On the contrary, defendant

acknowledged that he understood. Moreover, defendant's

qualified response as to whether he desired to continue to be

represented by Quinones--"At this time, yes."-- suggested

that his answers were not merely rote. While the inquiry

might not have been exemplary, it was adequate to ensure

defendant understood the risks.

Next, defendant argues that the trial court had a

duty to inquire into the possibility of a conflict of

interests later in the proceeding, when it vacated the

severance. According to defendant, the trial court's

decision placed defense counsel in the position of perhaps

favoring one client over the other at trial, and that the

court's failure to provide a Foster hearing at that time was

improper.3

We agree with defendant that the trial court had a

duty to investigate the possibility of a conflict when it

vacated the severance. Under Rule 44(c), the trial court's

duty to inquire into the possibility of a conflict of

3. The government, not defense counsel, requested a second
Foster hearing when it moved for reconsideration of the

severance order. The trial judge denied the government's
motion, shortly after vacating the severance, when defense
counsel confirmed that the magistrate previously held a
Foster hearing.

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interest is "a continuing one." Fed. R. Crim. P. 44(c)

advisory committee's notes. That duty may entail

reinitiating an inquiry when there are "new developments"

suggesting a potential conflict. Id.

In this case, defense counsel was preparing for

separate trials until the severance was vacated, only one

week before trial. The order vacating the severance

heightened the risk that a conflict might infect certain of

defense counsel's strategic decisions. See, e.g., Curcio,

680 F.2d at 887 (discussing dilemmas confronting trial

counsel for multiple defendants, including "whether to have

one defendant testify while the other remains silent"); cf.

Cuyler, 446 U.S. at 347 (provision of separate trials

significantly reduced the potential for a divergence in

interests). Given that heightened risk, the court had a duty

to inquire whether a conflict would develop at trial.

Contrary to defendant's argument on appeal,

however, we find that the trial court did not shirk that

duty. Prior to vacating the severance, the court

investigated whether the defense strategies of Perez and

defendant would diverge. Defendant's affidavit supporting

the request for separate trials stated that, if the trials

were severed, he would testify at Perez's trial that he had

had an affair with Jeanette Diaz (the government's key

witness), and that she was falsely incriminating both

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defendant and Perez--his common-law wife--because defendant

"did not please [Diaz]." The court concluded from that

affidavit and from inquiries he made of defense counsel at

the hearing on the motion for reconsideration that the

codefendants' strategies were harmonious. Defendant has

identified no other developments in his case occurring prior

to the order vacating the severance that should have

implicated a duty to inquire further.

Although the trial court had a duty to investigate

the potential for a conflict when it vacated the severance,

the court did not err by not giving defendant any further

explication of the perils of joint representation. The

magistrate cautioned defendant before the cases were severed

that "with respect of particular defenses and decisions, such

as whether or not to take the stand or to call particular

witnesses or how to conduct a cross examination what may be

in one's best interest will turn out not to be in the best

interest of the other." While it would have been advisable

to repeat this admonition, it was not necessary to do so. We

are satisfied that the magistrate's Foster hearing,

supplemented by the trial court's determination that the

defenses were consistent, adequately explored the potential

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for a conflict and ensured that defendant was not ignorant or

misadvised in his choice of counsel.4

Defendant's Burden of Showing Conflict of Interests

Our determination that an adequate inquiry occurred

does not end our analysis of whether a conflict of interests

violated defendant's right to effective assistance of

counsel. Rather, because a satisfactory inquiry appears in

the record, we turn to whether defendant carried the burden

of showing that an actual conflict adversely affected his

lawyer's performance. Mazzaferro, 865 F.2d at 455; Foster,

469 F.2d at 5.

Defendant makes two arguments in an effort to carry

that burden. First, he asserts that a conflict of interests

resulted in the disparity between his sentence and Perez's

(188 months versus time served). We cannot infer from that

disparity, however, that a conflict of interests adversely

affected his lawyer's performance. According to the

government, Perez's drastically lower sentence reflected her

substantial assistance in obtaining convictions in unrelated

cases.

4. One might argue that the trial court had a duty to
inquire further into the potential for a conflict of
interests prior to accepting defendant's guilty plea, where
Perez, still represented by Quinones, changed her plea
several hours earlier. We decline to consider that issue,
however, because neither party has addressed it.

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Defendant's remaining claim of ineffective

assistance pertains to the circumstances surrounding his

decision to change his plea several hours after Perez changed

hers. While this may be a stronger claim, our ability to

evaluate it is hampered by the state of the record. There is

little evidence regarding defendant's decision to plead

guilty. In addition, we have no record of what transpired

during Perez's change of plea hearing. The government stated

at oral argument that defendant sat in the courtroom while

Perez accepted the government's version of the facts at her

change of plea hearing. But neither her plea agreement, nor

the transcript of her Rule 11 hearing is part of the record

in this case. The record does not indicate that Perez would

have testified if defendant had gone to trial. Cf. Trammel

v. United States, 445 U.S. 40, 53 (1980) (witness-spouse

holds privilege to refuse to testify adversely).

Consequently, we cannot fairly assess whether a conflict of

interests infected Quinones's representation of defendant

during plea negotiations and his change of plea hearing.

Because this is not a case where the record allows us to

evaluate fully and fairly the merits of defendant's claim of

ineffective assistance of counsel, we deny his request on

direct appeal for leave to withdraw his plea. See United

States v. Rinard, 956 F.2d 85, 87 (5th Cir. 1992). Defendant

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may raise the claim anew, if he so chooses, in a habeas

corpus petition.

Affirmed.

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