
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1472                                 GEORGE M. BUCUVALAS,                               Petitioner - Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Tauro,* District Judge.                                         ______________                                _____________________               Valeriano Diviacchi for appellant.               ___________________               Carole S. Schwartz,  Assistant United States Attorney,  with               __________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                   October 28, 1996                                 ____________________                                        ____________________          *    Chief Judge  of the  District  of Massachusetts,  sitting by          designation.                    TAURO,   Chief  District   Judge.     Appellant  George                    TAURO,   Chief  District   Judge.                             _______________________          Bucuvalas appeals the District Court's  denial of his petition to          vacate   his  sentence  made  pursuant  to   28  U.S.C.     2255.          Essentially, Bucuvalas asserts that  his Sixth Amendment right to          effective  assistance   of  counsel  was   violated  because  his          attorney's fees  were paid by  his co-defendants and  because his          attorney advised him not to testify on his own behalf.                                          I.                                          I.                                      Background                                      Background                                      __________                    On February 15, 1989,  George Bucuvalas was indicted in          the   District  of  Massachusetts   for  participating   in,  and          conspiring to participate in,  a pattern of racketeering activity          in  violation   of   the   Racketeer   Influenced   and   Corrupt          Organizations  Act, 18 U.S.C.    1962(c)-(d),  for mail  fraud in          violation  of 18 U.S.C.    1341  and 1342, and  for conspiracy to          commit mail fraud in violation of 18 U.S.C.   371.  His employers          -- Arthur Venios, Christy Venios, and Bel-Art Realty, Inc. ("Bel-          Art") -- were indicted for the same offenses.                    The   Venios'  and  Bel-Art  retained  attorney  Morris          Goldings  to represent  them  at trial.   Bucuvalas  subsequently          sought to retain  Goldings as  well.  Goldings  was not  willing,          however, to represent  both Bucuvalas and his co-defendants.  He,          therefore,  referred  Bucuvalas  to Attorney  Terry  Segal,  whom          Bucuvalas  had retained  on  past occasions.   Segal  represented          Bucuvalas in a criminal tax investigation which did not result in          an  indictment and  in a  trial for bribery  which resulted  in a                                         -2-          split   verdict.     Apparently  satisfied   with  Segal's   past          representation,  Bucuvalas  took  Goldings'  advice  and retained          Segal to represent him with respect to the present charges.                    On  prior  occasions,  Bucuvalas'   co-defendants,  the          Venios'  and Bel-Art, had paid Bucuvalas' legal fees.  In keeping          with this  practice, Bucuvalas arranged  for them to  pay Segal's          fee  in  the current  matter.   Upon  retaining  Segal, Bucuvalas          apprised Segal that he would be paid by Bucuvalas' co-defendants.          Goldings was also aware of the payment plan.  Judge Woodlock, the          district  judge to whom the case was assigned, was never informed          of the arrangement.                    Segal took the case to trial.  He adopted a strategy in          which  he sought to portray Bucuvalas as a low-level employee who          was  merely  following  his  employers'  orders  and  who  lacked          knowledge of any wrongdoing.                    As  part  of  his   strategy,  Segal  recommended  that          Bucuvalas  not  testify   at  trial.    Segal  feared   that  the          government's  cross-examination  of  Bucuvalas   would  undermine          Bucuvalas'  defense.    In  particular,  Segal  feared  that  the          government's cross-examination would reveal a prior conviction on          similar charges  and would elicit  admissions to  several of  the          current charges.    Segal  was concerned  that  this  would  draw          attention away from weaknesses in the government's case and focus          it  instead on  Bucuvalas'  credibility.   Bucuvalas agreed  with          Segal's analysis and chose not to testify.                                         -3-                    On  August 16,  1990, Bucuvalas  and his  co-defendants          were convicted on all  counts of the indictment.   Judge Woodlock          sentenced  Bucuvalas to  fifty-one months  in prison  followed by          three  years  of supervised  release.    This  court  upheld  his          conviction on appeal.   United States v. Bucuvalas, 970  F.2d 937                                  _____________    _________          (1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).                           _____ ______                    On  November 25,  1994, Bucuvalas  moved to  vacate his          sentence, pursuant to  28 U.S.C.   2255, asserting  violations of          his Sixth Amendment right to effective assistance of counsel.  He          claimed that his rights were violated in two respects.  First, he          argued  that  the  payment of  his  attorney's  fees  by his  co-          defendants created an unconstitutional conflict of interest under          Cuyler  v.  Sullivan,  446  U.S.  335  (1980).    In  particular,          ______      ________          Bucuvalas  claimed that  the fee  arrangement  influenced Segal's          recommendation  that Bucuvalas  not  testify, because  Bucuvalas'          testimony would  have shown  that his  co-defendants orchestrated          the  wrongdoing  and would  have  thereby  incriminated the  very          persons paying Segal's fees.                    Second,   Bucuvalas   claimed   that    Segal's   trial          performance was  deficient under  Strickland  v. Washington,  466                                            __________     __________          U.S. 668 (1984).  Bucuvalas alleged that Segal's treatment of the          fee  arrangement   was  deficient,  because  he   neither  warned          Bucuvalas  of  the  risks  inherent in  the  payment  scheme, nor          disclosed  the arrangement  to the  trial court.   Bucuvalas also          argued  that  Segal's advice  that he  not testify  was deficient          because  his testimony  would have  been exculpatory.   Bucuvalas                                         -4-          claims  that  it  would  have  demonstrated  that  he  was merely          following orders and that he lacked knowledge of any wrongdoing.                    On March  4, 1996,  Judge Woodlock held  an evidentiary          hearing.   He found that  the fee arrangement  did not create  an          unconstitutional   conflict   of   interest   and   that  Segal's          performance was  not, in any  respect, deficient under  the Sixth          Amendment.  Bucuvalas' petition, therefore, was denied.                                         II.                                         II.                                       Analysis                                       Analysis                                       ________                    Bucuvalas   appeals   the   district  court's   rulings          regarding both his Cuyler and Strickland claims.  We examine each                             ______     __________          seriatim.          ________          A.  The Cuyler Claim          A.  The Cuyler Claim              ________________                    Bucuvalas  claims that  the payment  of his  attorney's          fees by his co-defendants created an unconstitutional conflict of          interest.   As a threshold  matter, he asserts  that under United                                                                     ______          States  v. Foster,  469 F.2d  1 (1st  Cir. 1972),  the government          ______     ______          bears  the burden of persuasion on the issue, because the alleged          conflict of interest was never addressed at trial by the district          court.                    1.  Foster and the Burden of Persuasion                    1.  Foster and the Burden of Persuasion                        ___________________________________                    When  the  defendant  fails  to object  to  an  alleged          conflict of interest, the  defendant bears the burden of  proving          that the alleged conflict  violates the Sixth Amendment.   United                                                                     ______                                         -5-          States  v.  Soldevila-L pez, 17  F.3d  480, 486  (1st  Cir. 1994)          ______      _______________          (citing Cuyler, 446 U.S. at 348).           ______ ______                    Pursuant  to  our supervisory  powers,  this  court has          carved out a limited exception to this rule.  Foster, 469 F.2d at                                                        ______          4.   In  Foster, we  held that  district courts  are required  to                   ______          intervene, sua  sponte, when  one lawyer represents  multiple co-                     ___  ______          defendants.  Id.   In particular,  Foster requires that  district                       ___                   ______          courts apprise  defendants of the risks  associated with multiple          representation and  of their right to  a court-appointed attorney          if necessary to avoid the multiple representation.  Id. at 5.  If                                                              ___          a court  fails to conduct  an adequate inquiry,  Foster instructs                                                           ______          that  the  burden  of  persuasion  shifts  to  the government  to          disprove  an alleged  conflict of  interest, given  an  appeal or          collateral  attack.    Id.    This  rule  seeks  to  address  the                                 ___          heightened   danger    of   prejudice   inherent    in   multiple          representation.  Id. at 4.                           ___                    Bucuvalas  argues  that he  was  entitled  to a  Foster                                                                     ______          hearing.   Though he  did  not share  an  attorney with  his  co-          defendants, Bucuvalas claims that the fee arrangement  indirectly          implicated  the same concerns as multiple representation, because          it subjected his attorney to the influence of  his co-defendants.          Since  the district court did not inquire into his attorney's fee          arrangement, Bucuvalas  argues that  Foster shifts the  burden to                                               ______          the government.                    We reject  Bucuvalas'  argument and  decline to  extend          Foster to these facts.  The Foster  rule is narrow.  See Brien v.          ______                      ______                   ___ _____                                         -6-          United  States,  695 F.2d  10, 14  (1st  Cir. 1982)  (refusing to          ______________          extend  Foster and impose broader  duty on district  courts).  By                  ______          its  own terms,  Foster  only applies  to "criminal  prosecutions                           ______          where one attorney speaks for two or more defendants."  Id.  This                                                                  ___          case,  therefore,  does  not  come within  the  scope  of Foster,                                                                    ______          because there was no  multiple representation.  Segal represented          Bucuvalas and no one else.                    Moreover, Segal's  fee arrangement does not  foster the          same risks as  multiple representation.  While  we recognize "the          inherent  dangers  that  arise   when  a  criminal  defendant  is          represented by a lawyer hired and paid by a third party," Wood v.                                                                    ____          Georgia, 450 U.S. 261, 268-69 (1981), these dangers are different          _______          from  those  arising  in  multiple  representation  cases.    The          existence  of separate  counsel interposes  a buffer  between the          interests of co-defendants which  does not exist when counsel  is          shared.    In this  vein, this  court has  distinguished multiple          representation  from  independent  representation,  holding  that          "where dual  representation is involved, the  danger of conflicts          is not  so great."  United  States v. DiCarlo, 575  F.2d 952, 957                              ______________    _______          (1st Cir.), cert. denied, 439 U.S. 834 (1978).                      _____ ______                    As   here,    DiCarlo   did   not    involve   multiple                                  _______          representation.  It concerned  allegations that counsel abandoned          a defense strategy, because  it would have implicated prospective          clients of his law partner.   Id. at 955-57.  Rejecting the Sixth                                        ___          Amendment  claim, we  held there  to be  a presumption  that "the          lawyer  will subordinate  his pecuniary  interests and  honor his                                         -7-          primary professional responsibility to  his clients in the matter          at hand."  Id. at 957.  Here, the same presumption applies.                     ___                    It  would  be inappropriate  and impractical  to extend          Foster to the facts of this case.  To  do so would be to impose a          ______          duty  on district courts  to inquire into  potential conflicts of          interest when  they have no  reason to know or  suspect that such          conflicts might exist.   District judges  do not ordinarily  have          reason to know  who is paying an attorney's fees  and we question          whether  it would  be appropriate  to require  them to  routinely          inquire into such matters without any cause to do so.                    Here,  Bucuvalas never brought  the alleged conflict of          interest to  Judge Woodlock's attention.   Indeed, Judge Woodlock          did not learn  of the contested  fee arrangement until  Bucuvalas          filed this petition, four years after the fact.                    We  hold that,  where an  alleged conflict  of interest          does not  involve multiple representation, where  no party raises          the   issue  before  the  court,  and  where  the  court  has  no          independent  reason to  know  of the  alleged conflict,  district          courts  have no  duty  to  inquire  into potential  conflicts  of          interest.  In  such circumstances, a district  court's failure to          inquire does not shift  the burden of persuasion on  a subsequent          Sixth Amendment claim  to the  government.  It  follows that,  in          this case,  the district  court had no  duty to  inquire and  the          burden of persuasion did not shift to the government.  The burden          remained  on Bucuvalas to  establish an unconstitutional conflict          of interest.                                         -8-                    2.  Conflict of Interest Analysis                    2.  Conflict of Interest Analysis                        _____________________________                    The Sixth  Amendment right  to effective  assistance of          counsel is violated when an actual conflict of interest adversely          affects counsel's representation.   Cuyler, 446 U.S. at 348.   To                                              ______          meet this standard, the defendant must show that (1) the attorney          could have pursued a  plausible alternative defense strategy, and          (2) the alternative strategy  was inherently in conflict  with or          not  undertaken   due  to  the  attorney's   other  interests  or          loyalties.   United States v.  Soldevila-L pez, 17 F.3d  480, 486                       _____________     _______________          (1st  Cir. 1994).   When  an alleged  conflict of interest  is at          issue, actual  prejudice need not  be established.   Id.; Cuyler,                                                               ___  ______          446 U.S. at 349-50.                    No  unconstitutional  conflict of  interest  existed in          this case.  Bucuvalas claims that a plausible alternative defense          strategy  existed in  that he  should have  testified on  his own          behalf to explain  that he was merely carrying out  the orders of          his co-defendants.   According to Bucuvalas,  Segal's advice that          he  not  testify  was  impermissibly  tainted because  Bucuvalas'          testimony would  have incriminated the  very persons  responsible          for Segal's fees.                    The flaw in Bucuvalas'  argument is that his testifying          was not a  plausible alternative defense strategy.  Had Bucuvalas          testified,  a prior  conviction  on a  remarkably similar  charge          would have been introduced into evidence.  One of the allegations          at  trial was that Bucuvalas  had bribed a  police detective; the          prior  conviction was  for bribing  an  I.R.S. agent.   Moreover,                                         -9-          according to  Bucuvalas' own testimony during  the district court          hearing on  his Sixth  Amendment claims,  his testimony  at trial          would have resulted in an  admission to the current charges.   We          agree with Judge  Woodlock, who found  that Bucuvalas would  have          "offered  himself up  to  a cross-examinational  meat-grinder  on          virtually  every  relevant issue,  effectively  admitting to  the          elements  of the offenses against  him and calling  to the jury's          attention in a very specific way his role in this offense."1                    Even if Bucuvalas had put forth a plausible alternative          strategy,   his  claim   would  still   fail  because   there  is          insufficient  evidence that  Segal's  advice was  tainted by  his          relationship  with Bucuvalas'  co-defendants.   A  defendant must          show   that   his  counsel   "actively   represented  conflicting          interests."  Cuyler, 446 U.S.  at 350.  See also Carey  v. United                       ______                     ________ _____     ______          States, 50 F.3d 1097,  1100 (1st Cir. 1995) ("the  defendant must          ______          demonstrate  that  the  alleged   conflict  is  more  than  'some          attenuated hypothesis having  little consequence to the  adequacy          of representation'") (citing Brien v. United States, 695 F.2d 10,                                       _____    _____________          15   (1st  Cir.   1982));   Soldevila-L pez,  17   F.3d  at   487                                      _______________          ("theoretical  or merely  speculative conflict of  interest" does          not  constitute  Sixth  Amendment  violation).    In  Carey,  for                                                                _____                                        ____________________          1   The  standard  by which  this court  reviews findings  of the          district court in ineffective assistance of counsel claims raised          on collateral attack is  not clear. United States v.  Raineri, 42                                              _____________     _______          F.3d 36, 43 (1st Cir. 1995), cert. denied, 115 S. Ct. 2286 (1995)                                       _____ ______          (standard of  review is uncertain);  United States v.  McGill, 11                                               _____________     ______          F.3d 223, 226 n.2 (1st Cir. 1993) (same).  But see Lema v. United                                                     ___ ___ ____    ______          States, 987 F.2d 48,  53 (1st Cir. 1993) (applying  "clear error"          ______          standard).   We refrain  from choosing a  standard here, however,          because Bucuvalas' claims fail under any standard.                                         -10-          instance,  counsel  simultaneously represented  co-defendants and          advised one  not to divulge  any information regarding  the other          when  cooperating with the government.   Carey, 50  F.3d at 1099-                                                   _____          1100.    The  cooperating  defendant  alleged  that  this  advice          precluded  him from obtaining a sentence reduction.  Id. at 1101.                                                               ___          The  court held  that  the  link  between  counsel's  advice  and          counsel's  interest  in  protecting  his  other  client  was  too          speculative  to establish an actual conflict of interest.  Id. at                                                                     ___          1100.                    Bucuvalas argues that  an actual  conflict of  interest          can  be inferred from Segal's fee arrangement.  The facts alleged          by  Bucuvalas, however, are even less  suspect than those alleged          in  Carey.  Bucuvalas had his own attorney, whereas the defendant              _____          in  Carey shared counsel  with a  co-defendant. See  DiCarlo, 575              _____                                       ___  _______          F.2d at  957 (individual representation less  risky than multiple          representation).  Moreover, Bucuvalas  offers no additional facts          to show that Segal had conflicting interests.                    Significantly, Judge Woodlock,  who observed  firsthand          the  dynamics  of  the  trial  below,  explicitly  found  that no          conflict existed,  stating, "I do not find  that Mr. Segal in any          fashion permitted himself to be directed by any other person  . .          .  in his  professional judgment  with respect  to  the strategic          dimensions  of this  case."   Bucuvalas has  failed to  show that          Segal's  representation  was tainted  by  an  actual conflict  of          interest.                                         -11-                    The Eleventh  Circuit addressed a similar  set of facts          in Danner v. United States, 820 F.2d 1166 (11th Cir. 1987), cert.             ______    _____________                                  _____          denied, 484 U.S. 1012 (1988), and arrived at the same conclusion.          ______          In  Danner,  counsel's  fees  were  paid  through  co-defendant's              ______          counsel.  Id. at  1168-69.  Like Bucuvalas, the defendant alleged                    ___          that counsel's  advice not  to testify conflicted  with counsel's          interest in receiving his fees because  such testimony would have          incriminated  his co-defendants.   Id.   The  court held  that no                                             ___          conflict of interest existed.  Id.                                         ___                    For all  of these  reasons, we conclude  that Bucuvalas          has not met his burden of demonstrating that his attorney, Segal,          labored under an unconstitutional conflict of interest.          B.  The Strickland Claim          B.  The Strickland Claim              ____________________                    Bucuvalas alternatively claims that his Sixth Amendment          right  to counsel was violated by strategic errors made by Segal.          Under  Strickland  v.  Washington,  a Sixth  Amendment  violation                 __________      __________          occurs when (1) counsel's performance  was deficient, and (2) the          deficient performance  prejudiced the defense.   Strickland,  466                                                           __________          U.S.  at 687.   The defendant  bears the  burden of  proving both          prongs of this test.  Id.   This burden is heavy.   Argencourt v.                                ___                           __________          United States, 78 F.3d  14, 16 (1st Cir. 1996); United  States v.          _____________                                   ______________          Lema, 987 F.2d 48, 51 (1st Cir. 1993).          ____                    Counsel's performance is  deficient under  Strickland's                                                               __________          first  prong when  it  is  "so  inferior  as  to  be  objectively          unreasonable."   United States v.  McGill, 11 F.3d  223, 226 (1st                           _____________     ______                                         -12-          Cir. 1993).  In making this determination, "judicial scrutiny  of          counsel's  performance must  be highly  deferential." Strickland,                                                                __________          466 U.S. at 689.  "A court must indulge a strong presumption that          counsel's  conduct  falls within  the  wide  range of  reasonable          professional assistance."  Id.                                     ___                    Bucuvalas   suggests   that  Segal's   performance  was          deficient in two  respects.  First,  Bucuvalas claims that  Segal          should  have discussed the  potential risks presented  by the fee          arrangement  with Bucuvalas  and  should have  disclosed the  fee          arrangement  to  the  court.    Segal's  failure  to  take  these          measures,   however,  was  not   unreasonable.     An  attorney's          obligation in such circumstances is encapsulated by Massachusetts          Supreme Judicial Court Rule 3:07, DR 5-107.  It states, "[e]xcept          with  the consent of his  client after full  disclosure, a lawyer          shall not . .  . accept compensation for his  legal services from          one other than his client."  Massachusetts Supreme Judicial Court          Rule 3:07, DR 5-107 (West 1996).  Segal fulfilled his obligations          under this  rule.   Bucuvalas' consent  was evident,  and further          disclosure was  not necessary because  Bucuvalas orchestrated the          fee arrangement.   Judge Woodlock, in fact,  found that Bucuvalas          "was  fully  aware  of  the relationships  that  are  necessarily          involved in  this  case  and, consequently,  made  his  own  good          judgments or, at least, fair judgments about how to proceed . . .          ."                    We agree  that Segal's handling of  the fee arrangement          did not constitute deficient performance.                                         -13-                    Bucuvalas  also claims  that  Segal's  performance  was          deficient, because he should have advised Bucuvalas to testify on          his  own behalf.    In  Lema,  however,  this  court  found  that                                  ____          counsel's  advice that his client  not testify did not constitute          deficient performance  when such testimony would  have divulged a          prior conviction.   Lema, 987  F.2d at  50-53.   Lema held  that,                              ____                         ____          "[u]naccompanied by coercion, legal advice concerning exercise of          the right to testify infringes no  right."  Id. at 52.   See also                                                      ___          ________          United States v. Teague,  953 F.2d 1525, 1534-35 (11th  Cir.) (en          _____________    ______                                        __          banc), cert. denied, 506 U.S. 842 (1992).          ____   _____ ______                    Bucuvalas makes no allegations  of coercion.  This case          is,  therefore, analogous  to  Lema because  Bucuvalas' testimony                                         ____          would  have  divulged a  prior  conviction  for similar  charges.          Here, in fact,  there was  an additional reason  not to  testify.          His testimony at trial  would likely have led to  an admission of          several of the charges.  Judge Woodlock commented that "[p]utting          Mr.  Bucuvalas on  the stand  in  these circumstances  would have          opened  him up to a  scorching cross examination,"  and that "Mr.          Segal  gave  the  recommendation  which,  frankly,  any competent          criminal  defense   attorney  would   have   given  under   these          circumstances, that  Mr. Bucuvalas not  take the witness  stand."          We agree.   Segal gave Bucuvalas the  best possible advice.   His          performance was  not constitutionally  deficient in  any respect.          Bucuvalas has,  therefore, failed to  satisfy the first  prong of          Strickland.          __________                                         -14-                    Even   if  Bucuvalas   had  established   that  Segal's          performance was deficient,  his claim still fails  because he has          not satisfied  the second prong  of Strickland, which  requires a                                              __________          showing  of prejudice.  To  establish prejudice, a defendant must          show  that  "there  is  a reasonable  probability  that,  but for          counsel's unprofessional  errors, the  result  of the  proceeding          would  have  been  different."    Strickland, 466  U.S.  at  694;                                            __________          Argencourt, 78 F.3d  at 16.   Bucuvalas claims  that, absent  the          __________          alleged errors,  he would have taken the  stand on his own behalf          and, as a result, he would not have been convicted.  We disagree.          Had Bucuvalas  testified, the likelihood of  his conviction would          have  been increased by the introduction  of the prior conviction          and by Bucuvalas'  inevitable admissions.  We find that Bucuvalas          has  failed  to  establish   prejudice  and  cannot,   therefore,          establish a Sixth Amendment violation under Strickland.                                                      __________                                         III.                                         III.                                      Conclusion                                      Conclusion                    For the  reasons discussed above, we  find that neither          counsel's fee arrangement nor counsel's advice that Appellant not          testify violated Appellant's  Sixth Amendment right  to effective          assistance of counsel.                    AFFIRMED.                                         -15-
