                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 15, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-5213
          v.                                           (N.D. Oklahoma)
 KENNETH W AYN E STIGER,                         (D.C. No. CR-00-126-HDC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




      Defendant/appellant Kenneth W ayne Stiger appears before this court for the

third time, following his conviction on one count of conspiracy to distribute

controlled substances, in violation of 21 U.S.C. § 846, and one count of

conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). On this

occasion, Stiger appeals the denial of his motion for a mistrial. W e affirm.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 BACKGROUND

      The basic facts underlying Stiger’s conspiracy convictions were

summarized in one of our prior opinions as follow s:

      This appeal represents the culmination of the government’s
      investigation and prosecution of an extensive drug conspiracy. As
      the government proved at trial, the central player in the conspiracy
      was Darrell Bellamy of Phoenix, Arizona. From Phoenix,
      M r. Bellamy coordinated shipments of powder cocaine, crack
      cocaine, and marijuana to various cities, including Tulsa, Oklahoma;
      W ichita, Kansas; and Detroit, M ichigan.

      At trial, several witnesses testified to M r. Stiger’s involvement in the
      conspiracy. Specifically, these witnesses testified to seeing
      M r. Stiger prepare marijuana for shipping, arrange for and assist in
      the transportation of marijuana and cocaine, and transfer and instruct
      other to transfer large amounts of money to M r. Bellamy.

United States v. Stiger, 413 F.3d 1185, 1189 (10th Cir.) (“Stiger II”), cert. denied,

546 U.S. 1049 (2005).

      Stiger was indicted on charges of conspiracy to possess and distribute

marijuana, cocaine and crack cocaine over a period of time between 1993 and

2001. Richard Taylor was one of Stiger’s co-defendants.

      On April 30, 2001, R. Thomas Seymour, of the Seymour Law Firm, was

appointed to represent Taylor. On July 30, 2001, Robert Burton, of the Seymour

Law Firm, was also appointed to represent Taylor. In August of 2001, Taylor

pled guilty to certain counts of the indictment and was sentenced to sixty-three

months’ imprisonment. Taylor also agreed to testify as a witness for the

government.

                                         -2-
       Stiger proceeded to trial on the charges in the indictment. At the trial,

Taylor testified about Stiger’s role in the conspiracy. During the second day of

Taylor’s testimony, Stiger’s attorney, M ark M atheson, informed the court as

follow s:

       Your Honor, it came to my attention yesterday that Robert Burton,
       who works for Thomas Seymour, and Thomas Seymour represents
       M r. Taylor, he came up to visit my client three times before this trial
       started to try and get his business, once in W ichita, once in
       Oklahoma City and once in Tulsa, and they had discussion [sic]
       about the case, and I don’t know if that’s going to be prejudicial to
       my client or not, but they work in the same law firm.

Tr. of Trial at 1630, R. Vol. III. M atheson informed the court that he did not

know the content of the conversations between Burton and Stiger, nor if they

were prejudicial. M atheson made a motion for a mistrial based upon an alleged

conflict of interest between Burton’s and the Seymour Law Firm’s representation

of Taylor and Burton’s conversations with Stiger about representing him (Stiger). 1

The district court overruled the motion.

       Following the jury trial, which lasted for twenty-three days and involved

more than fifty witnesses, Stiger was convicted and sentenced to life



       1
        Stiger’s counsel characterized the alleged conflict as follows: “it’s
obviously a conflict of interest if [Burton] goes and talks to one client that’s on
this indictment and then turns around and represents another one, that’s a conflict
of interest on the attorney’s part.” Tr. of Trial at 1631, R. Vol. III. Stiger’s
counsel also alleged several times that it was “prejudicial” to his client if Stiger
revealed confidential information about his case to Burton, who in turn divulged
that information to Seymour, who in turn divulged that information to Taylor,
who was testifying against Stiger during the trial.

                                           -3-
imprisonment on the conspiracy to distribute controlled substances count and to

twenty years’ imprisonment on the conspiracy to launder money count, with the

sentences to run concurrently. Stiger appealed, and we affirmed his conviction

but remanded the case to the district court for an evidentiary hearing to resolve

the claim for a mistrial relating to an alleged conflict of interest based upon

Burton’s and the Seymour Law Firm’s representation of co-defendant Taylor.

United States v. Stiger, 371 F.3d 732 (10th Cir. 2004) (“Stiger I”), vacated on

reh’g, 413 F.3d 1185 (10th Cir.), cert. denied, 546 U.S. 1049 (2005). On Stiger’s

petition for rehearing of Stiger I, we granted the petition for rehearing on the

basis of the Supreme Court’s intervening decision in United States v. Booker, 543

U.S. 220 (2005). W e again affirmed Stiger’s conviction, but again remanded to

the district court with instructions to hold an evidentiary hearing on the mistrial

claim. Stiger II, 413 F.3d 1185.

      The district court conducted an evidentiary hearing, at which Burton,

Seymour and Tulsa attorney Brad Fuller testified, 2 as well as Stiger. At the

conclusion of the hearing, the district court made detailed findings of fact and

conclusions of law, and determined that “neither an actual nor an implied attorney

client relationship exists between defendant Kenneth Stiger and Tulsa attorney



      2
       Family members of Stiger initially contacted Fuller to ask about legal
representation for Stiger. Because Fuller did not have extensive criminal defense
experience, he contacted Burton, who informed him that the Seymour Law Firm
was already representing Taylor.

                                          -4-
Robert Burton and the R. Thomas Seymour law firm which would warrant a

motion for mistrial or an untimely motion to disqualify counsel. Further, from a

review of the record in this case, the Court further finds and concludes that

defendant Kenneth Stiger was not denied the ‘right to a fair and impartial trial.’”

Order at 13, R. Vol. I, tab 998. The court accordingly denied Stiger’s motion for

a mistrial. This appeal followed.



                                    D ISC USSIO N

      “In determining whether to grant a mistrial, a district judge must first

determine whether an error has occurred and, if so, whether that error impaired

the ‘defendant’s right to a fair and impartial trial.’” Stiger II, 413 F.3d at 1194

(quoting United States v. M eridyth, 364 F.3d 1181, 1183 (10th Cir. 2004)). “W e

review a district court’s refusal to grant a mistrial for abuse of discretion.” Id.

(further quotation omitted). “In reviewing a court’s determination for abuse of

discretion, we will not disturb the determination absent a distinct showing it was

based on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” Id. (further quotation omitted).

      Stiger argues the district court erred in failing to grant his motion for a

mistrial because he told Burton confidential information based upon the existence

of an attorney-client relationship between himself and Burton, which conflicted

with the representation of co-defendant Taylor by the Seymour Law Firm. W e

                                          -5-
discussed the formation of the attorney-client relationship and the existence of

potential conflicts flowing therefrom in Stiger II. W e examined Stiger’s motion

for a mistrial and considered it as also raising a motion to disqualify the Seymour

Law Firm from representing Stiger’s co-defendant, Taylor. W e noted that “[t]wo

sources inform whether a district court should disqualify an attorney. ‘First,

attorneys are bound by the local rules of the court in which they appear. . . . .

Second, because motions to disqualify counsel in federal proceedings are

substantive motions affecting the rights of the parties, they are decided by

applying standards developed under federal law.’” Id. at 1195 (quoting Cole v.

Ruidoso M un. Schools, 43 F.3d 1373, 1383 (10th Cir. 1994)).

      Applying the Oklahoma Rules of Professional Conduct, we noted that “a

party seeking to disqualify opposing counsel must establish [inter alia] that . . . an

actual attorney-client relationship existed between the moving party and the

opposing counsel” and that the interests of co-defendant Taylor were “materially

adverse” to those of Stiger. Id. at 1196 (further quotation omitted). 3 Thus, the

      3
        In Stiger II, we discussed and applied Oklahoma Rule of Professional
Conduct 1.9, which governs conflicts of interest involving former clients. The
government suggests that Rule 1.7, governing conflicts of interest involving
current clients, applies to this case, rather than 1.9. W e note simply that Rules
1.7 and 1.9 cover a variety of situations involving conflicts of interest relating to
current and former clients. The commentary to Rule 1.7 provides that “[w]here
more than one client is involved and the lawyer withdraws because a conflict
arises after representation, whether the lawyer may continue to represent any of
the clients is determined by Rule 1.9.” Comment, O kla. R. Prof. Conduct 1.9.
W e need not plumb the depths of the Oklahoma Rules of Professional Conduct to
                                                                        (continued...)

                                          -6-
initial question is whether an attorney-client relationship existed between Stiger

and Burton/the Seymour Law Firm. “To show that an attorney-client relationship

existed, M r. Stiger need not show that ‘the parties . . . executed a formal contract’

or that he paid fees. M r. Stiger need only ‘show that (1) [he] submitted

confidential information to a lawyer and (2) [he] did so with the reasonable belief

that the lawyer was acting as [his] attorney.’” Id. (quoting Cole, 43 F.3d at

1384).

         As indicated, the district court conducted an evidentiary hearing and then

made factual findings based upon the testimony and evidence presented at the

hearing. The district court found credible the testimony by all three attorneys

involved (Fuller, Burton and Seymour) that their conversations with Stiger w ere

brief and directed to determining whether Stiger could afford to hire their services

and to making sure Stiger understood that a conflict waiver would be necessary

before he could retain their legal services. The court further found credible their

testimony that they did not discuss with Stiger any substantive or confidential

details concerning his case, nor did the attorneys impart any legal advice to

Stiger. On the other hand, the court found not credible Stiger’s testimony that he




         3
        (...continued)
determine exactly which rule governs, since all parties agree that the crucial
initial question in this case is whether an attorney-client relationship developed
between Burton/the Seymour Law Firm and Stiger, and that would be the initial
question under either Rule 1.9 or 1.7.

                                           -7-
revealed confidential details about his case to Burton and/or Fuller and/or

Seymour.

      The district court made multiple, detailed factual and credibility findings

which are amply supported by the record and are not clearly erroneous. W e

therefore affirm the district court’s conclusion “that an attorney client relationship

did not exist between defendant Stiger and M r. Burton or the Seymour law firm.”

Order at 11. W e further agree with the district court that the record in this case

reveals that neither the Seymour Law Firm’s representation of co-defendant

Taylor nor any contact and/or conversations between Burton/the Seymour Law

Firm and Stiger affected Stiger’s right to a fair and impartial trial.



                                   C ON CLU SIO N

      For the forgoing reasons, the district court’s order denying Stiger’s motion

for a m istrial is A FFIR ME D.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                          -8-
