United States Court of Appeals
For the First Circuit
No. 01-1187
FRANCISCO REYES-VEJERANO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Circuit Judge,
Kravitch,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Linda Backiel and Rafael F. Castro-Lang for appellant.
Irene C. Feldman, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco and
Thomas F. Klumper, Assistant United States Attorneys, were on brief for
appellee.
* Of the Eleventh Circuit, sitting by designation.
January 14, 2002
LYNCH, Circuit Judge. Francisco Reyes-Vejerano was
convicted by a jury in 1994 of five counts of conspiracy to
possess heroin with intent to distribute. Reyes-Vejerano, a
real estate broker, was sentenced to more than 15 years of
imprisonment and fined $50,000.
His conviction was affirmed in an unpublished opinion.
United States v. Jimenez-Rodriguez, Nos. 94-1968, 94-2072, 1995
WL 709639 (1st Cir. Dec. 1, 1995). He later brought a similarly
unsuccessful petition under 18 U.S.C. § 2255 in the district
court. Reyes-Vejerano v. United States, 117 F. Supp. 2d 103
(D.P.R. 2000). The district court did issue a certificate of
appealability under 28 U.S.C. § 2253(c)(2), and so we face on
this appeal the question whether the performance of his trial
counsel, Luis Rafael Rivera, was constitutionally deficient.
The significant questions in this case are those
arising from Reyes-Vejerano's claim that Rivera's advice and
strategy were motivated by interests that Reyes-Vejerano says
diverged from his own in two ways. The first claim is that
Rivera was himself the subject of a DEA drug investigation
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related to another client of his, Gustavo Delgado-Valencia, and
so had every incentive not to irritate the government. The
second claim is that Rivera faced a conflict because he
represented four other people in the Delgado-Valencia group who
were charged with operating a large-scale drug trafficking
enterprise. A case was pending against at least one member of
this group when Reyes-Vejerano himself was indicted. These
conflicts, Reyes-Vejerano argues, began with Rivera’s
representation of Reyes-Vejerano in civil forfeiture proceedings
that were pending against Reyes-Vejerano's property from the
Delgado-Valencia group criminal case.
Reyes-Vejerano advances another set of ineffective
assistance claims based on Rivera's purported failures to
perform certain pretrial investigation, to secure certain
witnesses, and to move for a continuance in order to obtain the
testimony of a codefendant, as well as a claim that the district
court erred in restricting discovery and refusing to hear
certain evidence related to Reyes-Vejerano's theories of
ineffective assistance. We rest our rejection of these other
contentions on the district court's opinion, 1st Cir. R. 27(c),
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and confine our discussion to the allegations of conflict of
interest on the present record.1
I.
Where an ineffective assistance claim is premised on
counsel's alleged conflict of interest, we review the ultimate
issue de novo, but defer to the district court's subsidiary fact
findings unless they are clearly erroneous. Familia-Consoro v.
United States, 160 F.3d 761, 764-65 (1st Cir. 1998).
The district court treated these allegations seriously,
holding a two-day evidentiary hearing and reviewing in camera
the DEA reports on which the claim was premised that counsel was
himself under investigation. This was the court's first
opportunity to reach these issues, as there were no objections
at trial from either Reyes-Vejerano or Rivera. In this regard,
we note that Reyes-Vejerano was well aware of the multiple
representation and he was obviously aware that there had been a
DEA investigation focused on the Delgado-Valencia group composed
of Rivera's clients. Thus, this case does not involve any claim
1 The district court did not address the discovery-based
claims in its written opinion. We have reviewed these questions
as well and found no error.
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about the procedures used by the district court or the district
court's failure to determine whether there was a conflict. Cf.
Wood v. Georgia, 450 U.S. 261, 272 & n.18 (1981) (placing a
"duty to inquire" on a trial court when a conflict of interest
is "apparent in the record"); Holloway v. Arkansas, 435 U.S.
475, 484 (1978) (requiring a trial court faced with a timely
objection to joint representation "either to appoint separate
counsel or to take adequate steps to ascertain whether the risk
was too remote to warrant separate counsel").
A defendant who raises no objection at trial must
demonstrate in his § 2255 petition that an actual conflict of
interest adversely affected the adequacy of his representation.
Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980); Familia-
Consoro, 160 F.3d at 764. That proof of actual conflict (at
least in situations where it is not obvious) has two components,
each of which the defendant must show: "(1) the attorney could
have pursued a plausible alternative defense strategy and (2)
the alternative trial tactic was inherently in conflict with or
not pursued due to the attorney's other loyalties or interests."
Familia-Consoro, 160 F.3d at 764; see also Brien v. United
States, 695 F.2d 10, 15 (1st Cir. 1982) (adopting this test).
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Reyes-Vejerano has satisfied the first part of this test. It
was a plausible (though likely unwise) alternative defense
strategy for him to take the stand and testify he was innocent.
The body of this opinion therefore deals with the second part.
II.
A. Allegations that Counsel was Under Investigation
Reyes-Vejerano says that Rivera was mentioned in
several DEA investigative reports and that this means Rivera was
under investigation. He extrapolates from this that Rivera knew
of the investigation and, therefore, faced an incentive not to
be too aggressive in conducting Reyes-Vejerano's defense.
The district court reviewed in camera the DEA reports
concerning an investigation into international cocaine smuggling
on which this claim is based. This court has reviewed those
sealed documents as well.2 Although the district court stated
at the hearing that there was no investigation, its written
opinion made no express finding on the subject. We will assume
for purposes of this appeal that Rivera was indeed investigated
2 We have also taken judicial notice of the materials from the
district court pleadings in the original case that Reyes-Vejerano has
submitted to this court.
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by the DEA concerning his involvement in the Delgado-Valencia
operation.
The district court found that Rivera did not know he
was the subject of an investigation based upon Rivera's
testimony at the evidentiary hearing. He testified that if he
was under investigation he was unaware of it. He was aware he
had a contentious relationship and had exchanged some heated
words with both a prosecutor and a DEA agent. He once told the
prosecutor that if the prosecutor thought he was obstructing
justice, the prosecutor should indict him. He also admitted he
might well have said the government was out to get him. The
district court's finding that Rivera did not know of any
investigation was not clearly erroneous. The record does,
however, clearly show at least some thought on Rivera's part --
not rising to the level of certain knowledge -- that the
government might suspect him.
The district court also found that no conflict of
interest motivated Rivera's advice to Reyes-Vejerano that he not
testify. At the evidentiary hearing, Rivera said he gave the
advice for a number of reasons. Reyes-Vejerano had close
personal relationships with several people -- also clients of
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Rivera -- charged with and convicted of drug trafficking.
Indeed, Reyes-Vejerano had put up bail for some of them.
Further, Reyes-Vejerano had rented out space below his own
office to a video store that the government later proved was
used in drug trafficking. He had also been involved in a real
estate transaction with Delgado-Valencia. Rivera testified that
he thought it too risky to open the door to the government's use
of this potentially prejudicial evidence. He also feared that
the jury would conclude from Reyes-Vejerano's accent that he was
from Colombia, the source country for the drugs. Rivera's last
concern was that Reyes-Vejerano was a man of immense wealth and
the jury might conclude his money came from drug dealing.
Finally, Rivera testified that it was ultimately Reyes-
Vejerano's choice, free from coercion, not to testify.3
3 The district court found that Rivera did not coercively
prevent Reyes-Vejerano from testifying. It thus credited Rivera
over Reyes-Vejerano, who testified that he insisted on
testifying but that Rivera would not permit him to do so, and
that had he known the decision was his, he would have testified.
We discount the relevance of this finding because defendants
have the right to receive independent advice from their lawyers
unburdened by an actual conflict of interest on the part of
counsel. Every defendant is, after all, entitled to
"representation that is free from conflicts of interest." Wood
v. Georgia, 450 U.S. 261, 271 (1981). Had Rivera's conduct been
caused by an actual conflict of interest, we would not require
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At the hearing before the district court, Reyes-
Vejerano's current counsel argued that these reasons did not
hold up. Because Reyes-Vejerano was not indicted in the cases
involving Gustavo and Jules Delgado-Valencia, Jairo Parra, and
Ismenia Perdomo, any cross-examination regarding them would
arguably be irrelevant, or inadmissible as collateral evidence,
or both. If the evidence came in, Reyes-Vejerano maintained
that he had innocent explanations for all suspicious links.
Moreover, as Rivera admitted at the hearing, Reyes-Vejerano was
articulate and presentable and would not have made a bad
witness. Reyes-Vejerano does not repeat these arguments on
appeal, possibly because they tend to undermine his second claim
that Rivera kept him off the stand in the interest of the other
clients. Instead, he focuses on his assertion that Rivera faced
a substantial incentive to curry favor with the agents and
prosecutors handling Reyes-Vejerano's case.
The argument is not frivolous that a defense lawyer
within the sights of a targeted criminal prosecution may find
his personal interests at odds with his duty to a client.
that it rise to the level of coercion to sustain Reyes-
Vejerano's claim.
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A lawyer in these circumstance[s], while dealing on
behalf of his client with the office that is
prosecuting him personally may, consciously or
otherwise, seek the goodwill of the office for his own
benefit. A lawyer's attempt to seek the goodwill of
the prosecutor may not always be in the best interest
of the lawyer's client.
Armienti v. United States, 234 F.3d 820, 825 (2d Cir. 2000).
While recognizing that a defense lawyer afraid of retaliation
might lack vigor, see Thompkins v. Cohen, 965 F.2d 330, 332 (7th
Cir. 1992), the Seventh Circuit has rejected any per se rule of
conflict. See United States v. Montana, 199 F.3d 947, 949 (7th
Cir. 1999); United States v. Hubbard, 22 F.3d 1410, 1418 (7th
Cir. 1994). We, too, adopt a rule that a defendant has not
shown a fatal conflict by showing only that his lawyer was under
investigation and that the lawyer had some awareness of an
investigation.
The defendant must still meet the Cuyler standard of
actual conflict and adverse effect: the defendant must show some
causal relationship between the lawyer's awareness of the
investigation and the alleged deficiency in representation.
Here it is unclear whether, but arguable that, counsel was being
investigated and that counsel had some sense the prosecutors
were "out to get him," even if he did not know in an absolute
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sense that he was being investigated. But there is nothing to
show counsel pulled any of his punches. The defense throughout
was actual innocence, and no effort was made, on the evidence
presented, to force Reyes-Verejano into an unwelcome plea
bargain. Indeed, even were counsel under investigation about
his relationship with the Delgado-Valencia operation, Reyes-
Vejerano has offered no reason to think Rivera's personal
interests diverged from those of Reyes-Vejerano other than the
general and unspecified theory that Rivera must have wanted to
please the government.
This is a far cry from the situation of a government
witness at trial suddenly accusing defense counsel of
involvement in drug trafficking. Cf. United States v. Fulton,
5 F.3d 605 (2d Cir. 1993) (holding that such a situation
presented a conflict too great for the defendant to waive). Nor
is it a case of defense counsel being indicted during his
representation of a client by the same office prosecuting his
client, and then entering a plea of guilty after negotiations
with that office. Cf. United States v. DeFalco, 644 F.2d 132,
136-37 (3d Cir. 1980) (en banc) (plurality opinion) (holding
that such a situation presented a conflict possibly subject to
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waiver). Rather, we are left with sheer speculation, and that
is not enough. See United States v. Canessa, 644 F.2d 61, 63-64
(1st Cir. 1981).
B. Counsel's Representation of Other Defendants
Reyes-Vejerano next says that the reason Rivera advised
Reyes-Vejerano not to testify was that Rivera feared Reyes-
Vejerano would be cross-examined about Gustavo and Jules
Delgado-Valencia, Jairo Parra, and Ismenia Perdomo, all of whom
Rivera represented, and that the cross-examination would hurt
these other clients.
The government's initial argument is that there is no
connection at all between the two cases and so there could be no
conflict created. Some background is needed. Reyes-Vejerano
initially retained Rivera to represent him in civil forfeiture
proceedings in which the United States alleged that Reyes-
Vejerano was laundering money for the Gustavo Delgado-Valencia
drug operation.4 His defense against forfeiture was successful.
4 Reyes-Vejerano argues that Rivera had a duty to Reyes-
Vejerano as an innocent owner to show he was not a part of the
Delgado-Valencia criminal enterprise, and that counsel's
appearance for Reyes-Vejerano "could only signal to the United
States that Reyes, too, was part of the enterprise." Any such
signal followed from Reyes-Vejerano's knowing choice of counsel
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For this and other reasons, we reject as too blithe the
government's argument that there is absolutely no connection
between the Delgado-Valencia drug case and this one. But Reyes-
Vejerano has not shown that the connection is such as to create
an actual conflict of interest.
The district court concluded that Reyes-Vejerano had
shown neither that his counsel faced a conflict of interest nor
that his advice was motivated by his representation of others,
rather than by his obligations to Reyes-Vejerano. The
subsidiary factual findings are not clearly in error, and these
conclusions follow from them.
Representation of different defendants in different but
related cases by one counsel may give rise to a conflict of
interest. See, e.g., Horowitz v. Henderson, 514 F.2d 740 (5th
Cir. 1975) (affirming a grant of habeas corpus to a petitioner
whose attorney had represented a codefendant who pled guilty
separately and then testified at the petitioner's trial). For
example, one client may stand to gain through negotiations with
prosecutors that will injure another, raising concerns of
and occurred in the civil forfeiture case, long before this
criminal case.
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loyalty; or information obtained in the representation of one
client may be potentially useful to another, raising concerns of
confidentiality -- particularly if the first client is a
possible witness at the second client's trial. The record does
not reveal, however, any specific facts that demonstrate any of
these problems arising in Rivera's defense of Reyes-Vejerano.5
It might arouse our suspicion if Rivera, seeing some
potential overlap between the two representations, had failed to
disclose that representation. We observe, however, that just
the opposite happened. Reyes-Vejerano retained Rivera to
represent him, initially in the forfeiture action and later in
the criminal action, precisely because Rivera was representing
the others. We are not suggesting that Reyes-Vejerano's conduct
rose to the level of a knowing and voluntary waiver of his
5 Reyes-Vejerano does point out that the district court
found that Rivera was motivated by the desire not to reveal
Reyes-Vejerano's relationship with the Delgado-Valencia clients
in advising him not to testify. In context, however, it is
clear what the district court meant: Rivera's worry was not that
the Delgado-Valencia clients, convicted felons, would be tainted
by association with Reyes-Vejerano, a purportedly innocent
businessman, but instead the more reasonable fear that Reyes-
Vejerano would be tainted by association with the Delgado-
Valencia clients. This finding is therefore no evidence that
Rivera's advice was motivated by anything but his professional
judgment exercised on Reyes-Vejerano's behalf.
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rights as to an existing conflict; the district court made no
such finding and the issue was never developed. Instead, that
conduct is one factor among several that show the absence of a
conflict in the first place.
III.
Because Reyes-Vejerano has not shown an actual conflict
of interest on either theory, we reject that claim, and so
reject his Sixth Amendment ineffective assistance of counsel
claim. The denial of the § 2255 petition is affirmed.
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