Case: 19-20073 Document: 00516229518 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 19-20073
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ann Nwoko Sheperd,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-258-2
Before Smith, Willett, and Duncan, Circuit Judges.
Don R. Willett, Circuit Judge:
“The Sixth Amendment is the heartland of constitutional criminal
procedure.” 1 One of four amendments in the Bill of Rights that guarantees
basic protections to the criminally accused, 2 the Sixth Amendment enshrines
a cluster of rights to ensure the fairness, accuracy, and legitimacy of “all
1
Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 641
(1996).
2
See U.S. Const. amends. IV, V, VI, VIII.
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criminal prosecutions.” 3 This case concerns the Amendment’s final clause:
“Assistance of Counsel.” But “[t]his last right is a big one,” as the right to
counsel, perhaps the central feature of our adversarial system, helps make
real the Constitution’s other criminal procedure promises. 4
Ann Sheperd, the owner of a home-health agency, lawyered up after
being indicted for Medicare fraud. But there was a tiny problem:
Unbeknownst to Sheperd, her pretrial lawyer—who represented her until
days before trial—also represented one of the Government’s star witnesses.
Oops. Sheperd retained new counsel, was convicted (and sentenced to 30
years), and now appeals on various grounds related to her attorney’s conflict
of interest. We agree with Sheperd that “Assistance of Counsel” necessarily
means effective assistance, and effective assistance demands conflict-free
representation. This is certainly no less true during the pretrial phase, 5
particularly today, when roughly 97.8 percent of federal criminal convictions
are obtained not through a constitutionally prescribed jury trial but through
plea bargaining. 6
For the reasons below, we REMAND for an evidentiary hearing on
whether Sheperd’s lawyer’s conflict of interest adversely affected his
representation, but reject Sheperd’s other grounds for reversal.
3
Id. amend. VI.
4
Amar, supra note 1, at 705.
5
See Anaya v. Lumpkin, 976 F.3d 545, 550 (5th Cir. 2020) (“The Sixth Amendment
right to counsel extends to the plea-bargaining process, where defendants are ‘entitled to
the effective assistance of competent counsel.’” (quoting Lafler v. Cooper, 566 U.S. 156,
162 (2012))).
6
U.S. Sentencing Comm’n, 2020 Sourcebook of Federal
Sentencing Statistics 56 (2020), https://www.ussc.gov/sites/default/files/pdf/
research-and-publications/annual-reports-and-sourcebooks/2020/2020-Annual-Report-
and-Sourcebook.pdf.
2
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I
A
Ann Sheperd owned and operated a home-health agency. In June
2016, a grand jury indicted her (and several others) with conspiracy to
commit healthcare fraud. Sheperd retained counsel. The district court set
trial for August 2016. A month later, Sheperd replaced her counsel, and the
district court declared the case “complex.” The court also pushed back the
trial date about six months. The district court continued the trial three more
times at the request of various defendants. Sheperd made only one of these
requests. Sheperd replaced her counsel again in February 2018 with an
attorney named Bassey Akpaffiong.
Two months after entering his appearance as Sheperd’s counsel,
Akpaffiong met with FBI agents and a federal prosecutor to discuss
Sheperd’s trial. But he was not there acting on Sheperd’s behalf. Akpaffiong
was there to act on another client’s behalf—Okechukwu Okpara. Akpaffiong
had helped Okpara secure a plea deal related to healthcare fraud in a different
district court almost a year before. So why did Okpara need Akpaffiong at the
meeting? Because Okpara was Sheperd’s friend and business associate—a
relationship the Government wanted to exploit by calling Okpara as a witness
against Sheperd.
If representing both Sheperd and Okpara at the same time sounds zany
to you, then you wouldn’t be alone. The Government thought it sounded
zany, too. In fact, it even pointed out to Akpaffiong that he had an obvious
conflict. Akpaffiong replied that he hadn’t noticed. 7 Even so, the meeting
continued since, according to Akpaffiong, “Sheperd wanted to plead guilty
7
According to Akpaffiong, the oversight came from Okpara referring to Sheperd
by a different name—“Nwoko,” her middle name.
3
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and would do so by [the next month, in] May.” Turns out, the meeting was
a success . . . for Okpara. Afterward, the Government amended Okpara’s
plea deal to include “5K1 consideration.” That is, in exchange for Okpara
having provided the Government with “substantial assistance in the
investigation or prosecution of another person who has committed an
offense,” the Government agreed to permit Okpara to receive a reduced
sentence. 8
Months went by. Nobody told Sheperd about Akpaffiong’s conflict.
Nobody told the district court about it either. But that time was not wasted.
The Government used it to bring six more counts of healthcare fraud against
Sheperd. The grand jury returned a superseding indictment that charged
Sheperd with all six counts. Akpaffiong, for his part, continued to receive
Government-provided discovery. Not until August—with trial looming—
did Akpaffiong start trying to address his conflict. He approached a former
state Assistant Attorney General with experience prosecuting healthcare-
fraud cases—Oyesanmi Alonge—about taking over Sheperd’s defense.
Akpaffiong had worked with Alonge before, and Alonge “got involved,” in
his words, on August 14.
Days later, on August 20, Akpaffiong finally revealed to Sheperd his
conflict and proposed solution. 9 But Sheperd felt burned. She claims her
experience with Akpaffiong made her “extremely distrustful of lawyers.”
Two days later, on August 22, Sheperd told Alonge not to represent her.
8
U.S. Sent’g Guidelines Manual § 5K1.1.
9
There is some disagreement on the exact date Sheperd was informed that Alonge
was taking over. Sheperd told the district court that she did not hear about Akpaffiong’s
conflict and Alonge taking over until August 20. But Alonge’s motion for continuance
asserted that she knew the same day he first got involved in the case on August 14. If the
precise date Sheperd found out about Alonge’s involvement has any relevance, we leave it
to the district court to resolve this factual discrepancy on remand.
4
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Alonge conveyed this information to the Government. The Government
conveyed it to the district court. The district court set a status conference.
The status conference took place on August 27, 2018. Alonge was not
present. Akpaffiong assured the court that Alonge would be prepared for trial
two weeks later. That same day, Sheperd changed her mind about Alonge.
She agreed to let him represent her, and Akpaffiong then withdrew as
counsel.
A few days later Sheperd’s case was transferred to a new judge. The
new judge held a pretrial conference on September 4. At the conference the
judge asked the parties if they could move up the trial date. All parties
represented they could not, pointing, in part, to Alonge’s recent appearance
in the case. Counsel for defendants also flagged the conflict issue for the
district court, but suggested that the trial could proceed so long as Okpara
did not testify. After discussing the conflict, the judge stated that after “32
years on the federal side plus 8 on the state side, I have not seen th[is]” type
of conflict. The district court then, to the surprise of all parties, moved the
trial date up by three days—to Friday, September 7.
On September 6, the day before trial, Alonge moved for a continuance,
arguing, “The unfortunate circumstances surrounding the status of Ms.
Shepherd’s [sic] counsel ha[d] denied [him] significant trial preparation
time.” He had “only worked meaningfully on [the] case for approximately
one week,” despite having been involved for three. Alternatively, Alonge
moved to withdraw. That same day, all defendants also filed a joint motion,
asking the court to, among other things, continue the trial and exclude
Okpara’s testimony. The court did not rule on the motions. Trial began the
next day.
5
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B
A few days into trial, the Government called Okpara as a witness. That
brought the conflict-of-interest issue to a head. Defense counsel collectively
reasserted the arguments from their pretrial motion: (1) Akpaffiong could
have provided Okpara with privileged information to enhance Okpara’s
efforts to cooperate with the Government; (2) if Okpara testified, he could
share self-incriminating statements that Sheperd shared with Akpaffiong;
and (3) the current indictment could have been based on tainted information
from Okpara. Akpaffiong and Sheperd took the stand. The district court
ultimately excluded Okpara from testifying.
At the close of trial, Alonge renewed the defendants’ joint pretrial
motion, asking the district court to dismiss the case because of the conflict of
interest. The district court denied the motion. The jury found Sheperd guilty
on all counts. The district court sentenced her to 30 years in prison. Sheperd
timely appealed, alleging several grounds to reverse based on Akpaffiong’s
conflict of interest.
II
Sheperd mainly argues that Akpaffiong’s conflict violated her Sixth
Amendment right to conflict-free counsel. We review ineffective-assistance-
of-counsel claims, like this one, as a mixed question of law and fact subject to
de novo review. 10 Because the district court did not find, one way or the
other, whether Akpaffiong’s conflict adversely affected his representation of
Sheperd, we REMAND for a limited evidentiary hearing on this issue.
10
United States v. Infante, 404 F.3d 376, 391 (5th Cir. 2005).
6
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A
The Constitution guarantees criminal defendants the right to a fair
trial. The Supreme Court has explained that one of the safeguards making
trials fair is the right to counsel. 11 “In all criminal prosecutions,” the Sixth
Amendment declares, “the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” 12 That’s no hollow guarantee. The
Counsel Clause does not countenance empty suits; it requires “effective
assistance of counsel” 13—the presence of competence and absence of
conflicts.
Unfortunately, not all representations meet that standard. At times a
representation may suffer from “actual ineffectiveness”—one that “so
undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” 14 That standard is
satisfied when the defendant can show that (1) her “counsel’s representation
fell below an objective standard of reasonableness,” 15 and (2) that the
“deficiencies in counsel’s performance [were] prejudicial to the defense.” 16
That two-pronged test has a special application when a defendant
argues that her representation was infected with a conflict of interest. One of
the most indispensable duties that any counsel owes his client is the duty of
loyalty. Counsel breaches that duty when he labors under an actual conflict
11
See Strickland v. Washington, 466 U.S. 668, 684–86 (1984).
12
U.S. Const. amend. VI.
13
Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970)) (emphasis added).
14
Id.
15
Id. at 688.
16
Id. at 692.
7
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of interest. And if he breaches the bedrock duty of loyalty, then his
representation will fall below the objective standard of reasonableness that
the Constitution requires. 17
But what about prejudice? Defendants still need to show it in actual-
conflict cases. They show it, though, in a special way—by showing that their
case is subject to a limited presumption of prejudice. Whether it applies boils
down to one question: Did the conflict “adversely affect[]” counsel’s
performance? 18 That’s a lighter lift for defendants. Proving prejudice directly
means showing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” 19 On the other hand, the limited presumption of prejudice in
actual-conflict cases turns on whether the conflict adversely affected the
representation itself. 20 One way defendants can answer that mixed question
of law and fact is through “evidence that counsel’s judgment was actually
fettered by concern over the effect of certain trial decisions on other
clients.” 21
17
Id.
18
Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)); see also Infante, 404
F.3d at 390–91 (explaining that a defendant “must show that his trial attorney was acting
under the influence of an actual conflict of interest that adversely affected his performance
at trial”).
19
Strickland, 466 U.S. at 694. The Supreme Court in Strickland also explained that
“[a] reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
20
See Infante, 404 F.3d at 391.
21
Id. at 393 (quoting Perillo v. Johnson, 205 F.3d 775, 807 (5th Cir. 2000) (internal
quotation marks omitted)).
8
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B
The Government concedes “[t]here is no dispute that Akpaffiong
operated under a conflict of interest.” It also concedes that both it and
Akpaffiong “were obligated by rules of ethics to bring the conflict to the
court’s attention.” 22 Still, that’s only the first half of Sheperd’s burden. She
still must prove that Akpaffiong’s conflict adversely affected his
performance. And on that question, on this record, we can’t tell one way or
the other.
For instance, Sheperd argues that Akpaffiong was not “proactive” in
seeking a plea deal for her. Rather, in Sheperd’s words, “he persuaded her
that the Government’s case was weak and that she should go to trial where
she would prevail.” That seems to square with Akpaffiong’s testimony at a
midtrial hearing on his conflict: “I never try to get my clients to plea.” But it
also strays from his pretrial representations to the Government—when it
realized Akpaffiong was conflicted—that Sheperd wanted to plead out. All to
say, questions abound about what advice Akpaffiong gave or did not give
Sheperd, and what he did or did not do on her behalf.
Just as problematically, even if we knew with precision what
Akpaffiong did or did not do for Sheperd, this record sheds little light on his
motives for doing or not doing it. If Akpaffiong’s motives arose from a mind
fettered with concern for Okpara, then Sheperd might be correct that her
right to counsel was violated. Indeed, some circumstantial evidence already
points that way. The Government agreed to a reduced sentence for Okpara
based on his cooperation in prosecuting Sheperd. And that deal was enabled,
through and through, by Akpaffiong.
22
See In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976) (discussing ethical
prohibitions on “representing parties with adverse interests”).
9
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Though the district court held a midtrial hearing on Akpaffiong’s
conflict, its limited scope left the record too underdeveloped for us to
meaningfully review troubling questions about Akpaffiong’s representation.
Where an actual conflict existed, but the record is too “spars[e]” for us to
review adverse effect, it is appropriate for us to allow the district court to
more-fully develop the record with an evidentiary hearing. 23 Therefore, we
must REMAND for the district court to do just that. 24
III
Sheperd advances two other grounds for reversing the district court.
First, she argues that it abused its discretion by denying Alonge’s
continuance. Second, she contends that Akpaffiong’s conflict violated her
rights to due process and against self-incrimination. Because Sheperd’s due
process ground is derivative of her Sixth Amendment issue, we cannot decide
23
See United States v. Salado, 339 F.3d 285, 291–92 (5th Cir. 2003) (remanding for
an evidentiary hearing on actual conflict and adverse effect in the joint-representation
context due, in part, to the “sparsity of the record”); Infante, 404 F.3d at 393 (remanding
for an evidentiary hearing on adverse effect because the record was not “sufficiently
developed”).
24
But the scope of our remand is limited. Sheperd also urges that she was adversely
affected because the lateness of Akpaffiong’s withdrawal left her trial counsel with only
days to prepare for trial. The Supreme Court, though, has already clarified that what
matters in actual-conflict cases, like this one, is whether the conflicted attorney’s
representation was adversely affected—not a subsequent attorney’s. See Mickens v. Taylor,
535 U.S. 162, 172 n.5 (2002); see also id. at 173 (“[A] judge [can] avoid all possibility of
reversal by either seeking waiver [of the conflict] or replacing a conflicted attorney.”
(emphasis added)). Therefore, the district court need not inquire into any collateral effect
that Akpaffiong’s conflict may have had on Alonge’s representation. Further, if Sheperd is
raising a separate ineffective-assistance-of-counsel claim against Alonge, we cannot review
it on this record since it was not presented to the district court. See United States v. Wallace,
32 F.3d 921, 930 (5th Cir. 1994) (stating that an ineffective-assistance-of-counsel claim
“cannot be resolved on direct appeal unless adequately raised in the district court”).
10
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it until after remand to the district court. We otherwise reject Sheperd’s
additional grounds for the reasons below.
A
Sheperd claims that the trial court abused its discretion by failing to
rule on her motion for a continuance given the conflict of interest. 25 She says
that the district court “rushed forward to trial in reaction to the case
previously having been continued and out of a general predisposition for
expeditious litigation, which was so extreme as to be troubling.”
We will “reverse a denial [of a motion for a continuance] only when
the district court has abused its discretion and the defendant can establish
that he suffered serious prejudice.” 26 And “[w]hether a continuance was
properly denied depends on the circumstances of the case.” 27 Even so, not
every “harsh” denial of a continuance is reversible. 28 To decide whether the
district court reversibly abused its discretion, we look to the totality of the
circumstances. We often find certain factors helpful in reviewing them:
(1) “the amount of time available”; (2) “the defendant’s role in shortening
the time needed”; (3) “the likelihood of prejudice from denial”; (4) “the
availability of discovery from the prosecution”; (5) “the complexity of the
case”; (6) “the adequacy of the defense actually provided at trial”; (7) “the
25
Although the court did not rule on Sheperd’s motion for a continuance, the
motion was implicitly denied. Snider v. L-3 Commc’ns Vertex Aerospace, L.L.C., 946 F.3d
660, 667 (5th Cir. 2019) (explaining that when a district court “enters a final judgment, it
has implicitly denied any outstanding motions, even if the court does not explicitly deny a
particular motion” (footnote omitted)).
26
United States v. Rounds, 749 F.3d 326, 336 (5th Cir. 2014) (quoting United States
v. Castro, 15 F.3d 417, 423 (5th Cir. 1994)) (internal quotation marks omitted).
27
United States v. Hopkins, 916 F.2d 207, 217 (5th Cir. 1990).
28
United States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998).
11
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experience of the attorney with the accused”; 29 and (8) the timeliness of the
motion. 30
(1)
The first factor—the time available—weighs against finding an abuse
of discretion. Sheperd repeatedly contends that Alonge had less than two
weeks to prepare since he did not file his notice to appear until August 28,
2018—the day after Akpaffiong withdrew. But we mark the time differently.
Again, Alonge got involved in Sheperd’s case as early as August 14. He also
attended a proffer session with the Government three days later, on August
17. Since trial did not begin until September 7, that gave Alonge about three-
and-a-half weeks to get ready for trial. We have upheld denial of a motion for
continuance before in a case involving “ten defendants, even more witnesses,
and voluminous discovery” where counsel was appointed only a week-and-
a-half before trial. 31 On these facts, then, Alonge had ample time to prepare
for trial.
(2)
The second factor—the defendant’s role in shortening the time
needed—weighs weakly in favor of finding an abuse of discretion. Sheperd
did not create Akpaffiong’s conflict. And, as the Government concedes, it
was Akpaffiong who delayed informing Sheperd and the district court about
29
United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009).
30
See United States v. Krout, 66 F.3d 1420, 1435–36 (5th Cir. 1995) (“Denial of an
eleventh hour . . . motion for a continuance—even when an attorney unfamiliar with the
case must take over representation of a defendant—is not an abuse of discretion.”). The
parties only weakly dispute what factors we should consider in determining whether the
district court abused its discretion. As Sheperd concedes, the factors they propose “are
essentially substantively similar and relevant.”
31
United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007).
12
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it. Even so, Sheperd contributed to Alonge’s time crunch. As a reminder, she
told Alonge on August 22 not to represent her, and did not rehire him until
August 27. So this factor does not weigh as far in Sheperd’s favor as it
otherwise could.
(3)
The third factor—the likelihood of prejudice from denial—is neutral.
On the one hand, perhaps Akpaffiong’s conflict adversely affected his
representation of Sheperd. That is why we are sending part of this case back
to the district court. On the other hand, and as we detail more below in the
sixth factor, Alonge competently defended Sheperd at trial. With facts
pointing both ways, the most we can conclude is that the third factor is
neutral.
(4)
The fourth factor—the availability of discovery from the
prosecution—favors finding an abuse of discretion. Sheperd contends that
Alonge “never received six of fourteen discovery discs.” And of the discs he
did receive, Akpaffiong did not send Alonge the passwords for five of them
until 10:00 pm the night before trial. Nor does the Government contend that
it provided discovery to Alonge directly. So the fourth factor weighs in favor
of finding an abuse of discretion.
(5)
The fifth factor—the complexity of the case—is neutral. The
Government admits that this was a “complex” case. At the same time,
though, Alonge represented to the jury that he formerly worked as an
Assistant Attorney General, and that he had prosecuted healthcare-fraud
cases before. Alonge’s experience mitigates the case’s complexity.
13
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(6)
The sixth factor—the adequacy of the defense provided at trial—
weighs against finding an abuse of discretion. Sheperd asserts a litany of
complaints against Alonge: broadly, that he failed to pursue appropriate
remedies for Akpaffiong’s conflict; that he failed to subpoena or cross-
examine relevant witnesses; and that he failed to put on a defense. But for all
Sheperd’s complaints about Alonge now on appeal, we cannot help noticing
that she did not raise an independent ineffective-assistance-of-counsel claim
against him in the district court. And from where we sit, Sheperd has little to
complain about. Alonge was not alone in pursuing his strategy that the
Government had failed to meet its burden. Ramirez’s counsel pursued the
same strategy. So, too, did Nwoko’s counsel, who called only one, very-brief
character witness. No attorney cross-examined five of the witnesses that
Alonge declined to cross examine. Moreover, Alonge directly examined
Sheperd at trial to help exclude Okpara’s testimony because of Akpaffiong’s
conflict. And, at closing arguments, Alonge minimized Sheperd’s role in the
fraud to the jury. We have found that defense counsel performed adequately
before on similar facts. 32 As a result, the sixth factor weighs against finding
an abuse of discretion.
(7)
The seventh factor—the experience of the attorney with the
accused—weighs against an abuse of discretion. As we already outlined
above, Alonge had about three-and-a-half weeks to prepare for trial. He also
32
See Lewis, 476 F.3d at 387 (holding that counsel’s performance was adequate
where he cross-examined adverse witnesses and minimized his client’s role during opening
and closing arguments).
14
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held himself out to the jury as an experienced attorney familiar with
healthcare-fraud cases.
(8)
The eighth factor—the timeliness of the motion—weighs heavily
against an abuse of discretion. We have said before that district courts do not
abuse their discretion when denying “eleventh hour” motions for
continuances. 33 And that includes when the continuance is filed by attorneys
“unfamiliar with the case [that] must take over representation of a
defendant.” 34 Here, Alonge was familiar with the case and defendant. Here,
Akpaffiong assured the district court that Alonge was ready for trial. And
here, Alonge had weeks to prepare for trial. If he needed a continuance, then
he should have filed it sooner than the night before jury selection.
* * *
After considering the totality of the circumstances, two factors weigh
or weigh weakly in favor of finding an abuse of discretion, two factors are
neutral, and four factors weigh against or heavily against finding an abuse of
discretion. On balance, then, we cannot say on this record that the district
court erred in denying Alonge’s motion for a continuance.
B
Finally, Sheperd contends that her Fifth Amendment rights were
violated twice over. She first contends that Akpaffiong’s conflict violated her
due process right to a fair trial. Because her brief argument is completely
derivative of her Sixth Amendment’s, it will have to be resolved after this
33
Krout, 66 F.3d at 1435.
34
Id. at 1435–36.
15
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case returns to the district court. 35 Sheperd also spends a single paragraph
contending that Akpaffiong’s conflict violated her Fifth Amendment right
against self-incrimination. Because she cites no supporting authority for this
novel argument, we will not address it. 36
IV
Conflicted counsel is rarely effective counsel. Yet we cannot decide
on this record if this case is the exception. Therefore, we REMAND for the
district court to conduct a limited evidentiary hearing on whether
Akpaffiong’s conflict adversely affected his representation. Only then can a
court decide if Sheperd’s Fifth and Sixth Amendment rights to conflict-free
counsel were violated. This is a limited remand, however. This panel retains
jurisdiction awaiting the district court’s findings and conclusions. Otherwise,
we AFFIRM the district court’s denial of Alonge’s eleventh-hour
continuance, and we reject Sheperd’s additional grounds for reversal.
35
See United States v. Alvarez, 580 F.2d 1251, 1260 (5th Cir. 1978) (“We hold today
that an accused . . . is deprived of his Fifth and Sixth Amendment right to effective
assistance of counsel, even in the absence of a showing of prejudice, when his attorney
operates under an actual conflict of interest.” (emphasis added)).
36
See Fed. R. App. P. 28(a)(8)(A) (“The appellant’s brief must contain . . . [an]
argument, which must contain . . . appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies . . . .”); see
also Willis v. Cleco Corp., 749 F.3d 314, 318 n.3 (5th Cir. 2014) (explaining that we will
disregard appellate arguments where “citations are minimal, and legal analysis relating
facts to the law is largely absent”).
16