           Case: 14-12316   Date Filed: 04/12/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12316
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:12-cr-00515-VMC-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

SAMIH ABDEL RAHMAN,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 12, 2016)

Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.

PER CURIAM:
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      Samih Rahman and his wife were indicted on a number of federal charges.

Rahman pleaded guilty to one count of conspiracy to commit money laundering in

violation of 18 U.S.C. §§ 1956(h), 1956(a)(1), and 1957. He now appeals that

conviction, arguing that he was entitled to an interpreter at his change of plea

hearing and that his attorney had a conflict of interest that rendered his assistance

ineffective.

      Rahman, who is not a native English speaker, contends that the magistrate

judge plainly erred by failing to inquire into his need for an interpreter at his

change of plea hearing. Under the Court Interpreters Act, 28 U.S.C. § 1827, a trial

judge has a “mandatory duty to inquire as to the need for an interpreter when a

defendant has difficulty with English.” Valladares v. United States, 871 F.2d

1564, 1565 (11th Cir. 1989). A defendant is entitled to an interpreter when he

“(1) speaks only or primarily a language other than the English language; and

(2) this fact inhibits [his] comprehension of the proceedings or communication

with counsel or the presiding judicial officer.” United States v. Edouard, 485 F.3d

1324, 1337 (11th Cir. 2007) (emphasis added) (quotation marks omitted). “The

appointment of an interpreter, both under the Court Interpreters Act and as a

constitutional matter, is committed to the sound discretion of the trial judge.” Id.

We review the trial judge’s decision to determine whether the failure to provide an

interpreter rendered the proceeding “fundamentally unfair.” Id.


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      Although Rahman needed clarification at a few points during his change of

plea hearing, the record as a whole demonstrates that he understood the nature and

significance of the proceeding. He was able to communicate with the magistrate

judge and his attorney during the hearing. Neither he nor his attorney asked for an

interpreter or objected to the lack of one. In short, nothing in the record suggests

that Rahman had communication difficulties that required the magistrate judge to

inquire about whether he needed an interpreter. And nothing suggests that the

magistrate judge’s decision not to appoint one made his change of plea hearing

“fundamentally unfair.” See id. at 1339–40.

      Rahman next contends that he was denied his Sixth Amendment right to the

effective assistance of counsel because the lawyer he retained to represent him also

represented his wife. Rahman argues that this joint representation resulted in an

actual conflict of interest because, in exchange for his guilty plea, the government

allowed his wife to plead guilty to a misdemeanor charge and recommended that

she be sentenced to time served. According to Rahman, his attorney encouraged

him to accept a plea agreement that furthered his wife’s interests at the expense of

his own. Rahman also contends that the magistrate judge failed to conduct an

adequate inquiry under Fed. R. Crim. P. 44(c) to determine whether he had waived

his right to conflict-free counsel.




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      Joint representation may result in a conflict that violates a defendant’s right

to counsel. See United States v. Rodriguez, 982 F.2d 474, 476–77 (11th Cir.

1993). A defendant “may waive this conflict of interest and elect to have the

attorney continue representation, so long as that waiver is knowing, intelligent, and

voluntary.” United States v. Ross, 33 F.3d 1507, 1524 (11th Cir. 1994). Absent

such a waiver, “a defendant is entitled to representation free of actual conflict.”

United States v. Khoury, 901 F.2d 948, 968 (11th Cir. 1990). “A speculative or

hypothetical conflict,” however, “does not violate the Constitution.” Id. A

defendant must show that his lawyer “actively represented conflicting interests,”

and that “the actual conflict had an adverse effect upon his lawyer’s

representation.” Id. (quotation marks omitted). He must be able to “point to

specific instances in the record to suggest an actual conflict or impairment of [his]

interest.” Id.; see also United States v. Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)

(stating that a defendant “must make a factual showing of inconsistent interests and

must demonstrate that the attorney made a choice between alternative courses of

action”; otherwise “the conflict remain[s] hypothetical”).

       We have recognized that “[a] major difficulty with reviewing claims of

ineffective assistance on direct appeal is that the lawyer in question did not make a

record on the issue of ineffective assistance.” Khoury, 901 F.2d at 969.

Accordingly, such claims “may not be raised on direct appeal where the claim has


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not been heard by the district court nor a factual record developed.” Id.; see also

Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003) (stating

that the preferred means for deciding a claim of ineffective assistance is through a

28 U.S.C. § 2255 motion, “even if the record [on direct appeal] contains some

indication of deficiencies in counsel’s performance”).

      We agree with Rahman that the magistrate judge did not properly investigate

whether he had waived his lawyer’s alleged conflict. See United States v. Garcia,

517 F.2d 272, 276–78 (5th Cir. 1975). That failure does not warrant reversal,

however, unless Rahman can show that an actual conflict adversely affected him,

making his lawyer’s representation ineffective. See Khoury, 901 F.2d at 968–69.

Because Rahman did not raise the issue of his lawyer’s conflict of interest in the

district court, no factual record was developed on that issue. We therefore dismiss

Rahman’s ineffective assistance claim without prejudice to his reiterating that

claim and having it decided on its merits in a timely filed 28 U.S.C. § 2255

proceeding. See id.

      AFFIRMED IN PART, DISMISSED IN PART.




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