          United States Court of Appeals
                        For the First Circuit


Nos. 17-1127, 17-1128

                    UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                           MANUEL TIRADO,

                        Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph N. Laplante, U.S. District Judge]


                               Before

                     Thompson, Circuit Judge,
                   Souter, Associate Justice,
                    and Selya, Circuit Judge.


     Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John J. Farley, Acting United States Attorney, was on brief, for
appellee.


                             May 9, 2018




     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             SOUTER,     Associate      Justice.         The     defendant,         Manuel

Tirado, pleaded guilty and stands convicted of drug offenses, 21

U.S.C. §§ 841(a)(1) and (b)(1)(C), 846, and failure to appear

for arraignment, 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i).                              He

appeals    from    the   judgments      of    conviction        on    Sixth   Amendment

grounds, contending that his counsel suffered from a conflict of

interest arising from violation of attorney-client privilege and

a local rule of professional conduct in particular.                      We affirm.

             After his indictment on the drug charges by the New

Hampshire federal grand jury, the defendant was arrested in New

York, where he was released on bail and ordered to appear before

the   district      court    in   New    Hampshire       at      a    date    and    time

specified.        He got in touch with a Rhode Island lawyer not

admitted to practice in New Hampshire, Jeffrey Pine, whom he

wished to represent him.             According to Mr. Pine's unchallenged

account of events on the arraignment day, the defendant came to

the New Hampshire courthouse in the company of relations and

friends,     including       someone         acting   as        an    English-Spanish

interpreter, and met Mr. Pine near the courthouse.                              When he

asked Mr. Pine whether he thought the court would order him

committed pending trial, the lawyer said he couldn't guarantee

otherwise,    but    the    proper    course     would     be    to    appear   at    the

hearing as scheduled.         A very short time later, the arraignment




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proceeding    began,       and   although     Mr.       Pine   and     the    defendant's

local counsel were present, the defendant was not.

             When    the     court    asked       if     anyone        knew    where   the

defendant was, Mr. Pine described their recent conversation in

the   company       of   the     relations        and    friends,        including     the

defendant's     question          about     commitment           and     the     lawyer's

responsive advice.         Some time later, the defendant was arrested,

and the arraignment was held.              When local counsel filed a motion

to admit Mr. Pine pro hac vice, the Government requested the

court to conduct a hearing on the motion, on the ground that it

might call Mr. Pine as a prosecution witness to prove the charge

of failing to appear.            The next step came when all parties filed

a stipulation that the defendant himself had signed, stating as

fact the substance of what Mr. Pine had told the court at the

uncompleted     arraignment        hearing,       with     the    exception       of   the

defendant's question about commitment and the lawyer's answer.

             At a subsequent hearing for change of pleas to guilty,

counsel for the Government explained that the stipulation then

on record was meant to remove any risk that Mr. Pine might be

called as a Government witness, since the defendant wished to

continue with Mr. Pine as principal counsel.                             Local defense

counsel agreed that the stipulation accomplished that object,

and the court indicated that there was no longer any risk of a

conflict on Mr. Pine's part at the trial stage.                                The court


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reprised this colloquy at the later sentencing hearing and was

careful     to     advise    the     defendant         that    he    was   entitled        to

representation free of conflict, offering to appoint new counsel

at public expense if the defendant wished to discharge Mr. Pine

for any reason.          The defendant declined the offer and maintained

that he desired Mr. Pine to continue to represent him.                                    The

hearing     then     continued,        sentences         were       imposed,      and     the

defendant was committed.

             A defendant, like Tirado, "who raised no objection at

trial[,] must demonstrate that an actual conflict of interest

adversely        affected    his     lawyer's       performance."              Cuyler      v.

Sullivan, 446 U.S. 335, 348 (1980).                       "[I]n order to show an

actual conflict of interest, a defendant must show that (1) the

lawyer     could     have    pursued       a    plausible       alternative        defense

strategy or tactic and (2) the alternative strategy or tactic

was inherently in conflict with or not undertaken due to the

attorney's       other    interests       or    loyalties."          United      States    v.

Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994).

             We    find     no    merit    in    the    defendant's        new    position

claiming     inadequate          representation        owing    to     a   conflict        of

loyalties stemming from Mr. Pine's response to the court and an

allegedly consequent need to protect himself from disciplinary

action for supposedly violating attorney-client privilege and

the local professional conduct rule.                    There was, to begin with,


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no breach of New Hampshire Rule of Professional Conduct 1.6,

which generally forbids "reveal[ing] information relating to the

representation of a client."               However the terms of that rule

might cover Mr. Pine's response to the court, it is preempted by

New Hampshire Rule of Professional Conduct 3.3(b) and (d), which

obligate counsel "in an adjudicative proceeding[,] . . . who

knows that a person . . . has engaged in criminal or fraudulent

conduct      related    to    the   proceeding[,]        [to]      take    reasonable

remedial measures, including, if necessary, disclosure to the

tribunal," even when information disclosed would "otherwise [be]

protected by Rule 1.6."             Since the defendant's evident truancy

from   the      arraignment    he   had    been     ordered     to   attend     was    a

criminal     violation,      see    18   U.S.C.     §   3146(a)(1),       Mr.   Pine's

response to the court was obligatory under Rule 3.3(d).

             We reach the same conclusion in otherwise seeing no

breach     of     the   attorney-client          privilege    in     repeating      the

conversation, whatever its content might be, simply because the

conversation outside the courthouse apparently occurred in the

personal, not professional, company of others, the relations and

friends.        The accuracy of Mr. Pine's description of these other

parties as having been present at the discussion has never been

challenged.        The consequence is that when speaking with them

present, the defendant could not assume that his words were

privileged       statements    to    his   lawyer,      and   thus    no    right     to


                                         - 5 -
preserve privilege could attach.             Lluberes v. Uncommon Prods.,

LLC, 663 F.3d 6, 24 (1st Cir. 2011) (the privilege "ceases . . .

when   otherwise    privileged    communications          are    disclosed   to   a

third party"); see also United States v. Evans, 113 F.3d 1457,

1467-68   (7th     Cir.   1997)   (presence     of    friend      and   potential

character witness vitiated the privilege).                      While we do not

understand that the need for the presence of an interpreter

implicated the rule in these cases, United States v. Massa.

Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997), the whole

assemblage was not an interpreter.

           A further line of reasoning confirms our rejection of

the defendant's current position: the record is devoid of any

indication that in the district court anyone suggested that Mr.

Pine's answer to the judge violated his duty to the defendant

and raised a potential for conflict on the part of counsel.                       It

was not the pure disclosure to the court but the specter of his

being called as a Government witness at trial that was raised as

an issue of conflict, and any such conflict would only occur in

the future.      The absence in the district court of any accusation

of other actual or possible impropriety means that the defendant

can be entitled to relief on the ground he raises only if he can

demonstrate   that    "an   actual    conflict       of    interest     adversely

affected [Mr. Pine’s] performance."             Cuyler, 446 U.S. at 348.




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The defendant has done no such thing and, for reasons already

given, cannot do so.

             And quite independently of the Cuyler and Soldevila-

Lopez rules, any conceivable resulting tension in the lawyer's

mind between client loyalty and professional self-preservation

would      have   been    answered   by   the   stipulation   joined   and

repeatedly avowed by the defendant.             The court's conversation

with the defendant, and assurance that new counsel could be

appointed to eliminate any conflict with his lawyer's obligation

to   him    as    trial   counsel,   demonstrated   that   the   defendant

understood his rights and the consequences of proceeding as he

chose to do.



Affirmed.




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