
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                          I.                                      BACKGROUND                                      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.                                           -2-                                          2                      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                                         -3-                                          3            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.                                         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                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.                                         -4-                                          4            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.                                                     ___ _____________                                         -5-                                          5            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                            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.                                          ______                                         -6-                                          6                      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                                 ______                                         -7-                                          7            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                                         -8-                                          8                      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                     ___  ______                                         -9-                                          9            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.                                         -10-                                          10            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.            ______                                         -11-                                          11            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                                         -12-                                          12            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                                         -13-                                          13            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                 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.                                          -14-                                          14                      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            ______    ______                                         -15-                                          15            may  raise the  claim  anew, if  he so  chooses, in  a habeas            corpus petition.                      Affirmed.                         Affirmed.                         _________                                         -16-                                          16
