                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0224
                                 Filed May 14, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT LYNN VAUGHAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (North) County, John M.

Wright, Judge.



      Robert Lynn Vaughan appeals from his conviction for arson. REVERSED

AND REMANDED.



      Mark D. Fisher of Nidey Erdahl Tindal & Fisher, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael P. Short, County Attorney, and Clinton R. Boddicker, Assistant

County Attorney, for appellee.



      Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
                                              2


POTTERFIELD, J.

         Robert Lynn Vaughan appeals from his conviction for arson. He argues

the trial court erred in failing to grant his combined motion in arrest of judgment

and motion for new trial on grounds the evidence to support his conviction was

insufficient, and his pretrial counsel had an impermissible conflict of interest. We

reverse and remand, finding the evidence is sufficient to support Vaughan’s

conviction1 but that Vaughan’s trial was unfairly tainted by his appointed

counsel’s actual conflict of interest during pretrial proceedings.

    I.   Facts and proceedings.

         In the early hours of December 20, 2011, police were called to a fire at the

house where Robert Vaughan lived with his mother. When police arrived, the

garage was engulfed in flames, as were two trees. A fire burned in the main

house as well. Vaughan and his mother left the house as the police arrived.

Shortly thereafter, firefighters arrived. Some of the family dogs were located in

Vaughan’s truck and some were found running in the yard.                   The dogs were

normally locked away in kennels near the garage. The vehicles were located

closer to the residence, instead of in their typical location adjacent to the garage.

         Police investigated the scene and found two distinct locations behind a

desk in the home office where a fire was set. In the area of this fire, the fire




1
  We reach this issue despite our reversal on the conflict issue because: “When a
reviewing court determines prejudicial trial error occurred in a criminal trial, the case will
not be remanded for retrial when the evidence at trial was insufficient to support the
conviction.” State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003).
                                           3


marshal located remnants of a “Molotov cocktail.”2 Vaughan’s mother submitted

a claim for the fire damage to her homeowner’s insurance.               The insurance

company did not pay the claim because of the suspicious circumstances

surrounding the fire. Further investigation by an electrical engineer retained by

the insurance company ruled out electrical causes of the fire. In a deposition,

Vaughan told counsel for the insurance company that investigators had

discovered a problem of “reverse-wiring” in the home, which caused the fire.

       On February 10, 2012, the State charged Vaughan by trial information

with arson in the first degree.       Four days later, the court appointed public

defender Jon Henson to represent Vaughan.

       On April 5, 2012, Henson filed an appearance in an unrelated criminal

case against George Cline, Jr. Represented by Henson, Cline entered a guilty

plea on May 31, 2012, and was sentenced on June 1. During this time, Cline

became aware Henson also represented Vaughan. Cline asked Henson to tell

the State he had information about Vaughan.3 Henson notified the State.

       Henson continued to represent both men, taking depositions of the State’s

witnesses in Vaughan’s case.

       The State added Cline as a witness against Vaughan in August. Henson

then moved to withdraw from representation of Vaughan, notifying the court in his

written motion his office represented a witness against Vaughan.             The court
2
   A “Molotov cocktail” was described by the fire marshal at trial as an improvised
incendiary device comprised in part of a glass bottle containing gasoline.
3
   The State and Henson agree Cline’s request came after guilty plea and sentencing.
Both also admit Cline was subject to ongoing criminal investigation by the prosecutor’s
office and represention by Henson’s “firm”—the public defender’s office. See, e.g., State
v. Watson, 620 N.W.2d 233, 241 (Iowa 2000) (noting the public defender’s office is a
“firm” for conflict-of-interest analysis purposes).
                                         4


entered an order allowing Henson to withdraw and appointing substitute counsel,

who represented Vaughan throughout trial. The court did not set a hearing on

the motion to withdraw.

       At Vaughan’s trial, the State presented witnesses including Cline, the fire

marshal, the electrical engineer, neighbors, and officers. Cline testified Vaughan

had solicited his help to cause the fire and that Vaughan had made an inventory

of his garage a couple of months before the fire for “insurance purposes.” The

State also presented transcripts of depositions given by Vaughan and two

acquaintances during the insurance investigation.           Vaughan’s deposition

included his statements about the “reverse-wiring.”           One acquaintance’s

testimony described the locations of the dogs and vehicles on the night of the

fire. The witnesses testified regarding the cause of the fire and the suspicious

circumstances surrounding the fire, including the potential of the fire to cause

damage to other property.

       After a brief deliberation, the jury convicted Vaughan of first-degree arson.

Vaughan filed a combined motion for new trial and motion in arrest of judgment.

He alleged, among other things, the evidence was insufficient to support the

verdict and that his first attorney, Henson, had an impermissible conflict affecting

his loyalties to Vaughan.4 The court held an evidentiary hearing and denied the

combined motion. Vaughan appeals.




4
 The motions alleged the prosecutors committed misconduct by using Cline’s testimony
because the testimony was obtained through a conflict of interest. The court and the
prosecution treated the motion as pertaining to representation of Vaughan by counsel
with a conflict.
                                             5


    II.   Analysis.

             A. Sufficiency of the evidence.

          We review sufficiency-of-the-evidence claims for the correction of errors at

law.      State v. Hennings, 791 N.W.2d 828, 832 (Iowa 2010).               We evaluate

whether the record contains substantial evidence to support the jury’s verdict. Id.

We view the evidence in the light most favorable to the State, including the

legitimate inferences and presumptions which can be deduced from the

evidence. Id. at 832–33.

          Vaughan’s argument attacks the credibility of witnesses and circumstantial

nature of the evidence.          “[D]irect and circumstantial evidence are equally

probative” when proving whether a defendant is guilty beyond a reasonable

doubt.     State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).              Further, “[t]he

credibility of witnesses, in particular, is for the jury” to decide—the jury

determines what witness to believe or disbelieve. State v. Arne, 579 N.W.2d

326, 328 (Iowa 1998). We find substantial evidence in the record supports the

jury’s verdict.5

             B. Conflict of interest.

          Vaughan presents his argument under both the Iowa and Federal

Constitutions. We review this issue de novo. State v. Smitherman, 733 N.W.2d

341, 345 (Iowa 2007).

5
 Vaughan also argues the jury was somehow pressured by weather to accelerate their
deliberations, quoting a statement by the judge to a witness about getting safely home
and the short period of deliberations. Vaughan cites no authority to support the
proposition that this constitutes reversible error. We therefore do not consider this claim.
See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may
be deemed waiver of that issue.”).
                                         6


       These constitutional provisions [which apply to an attorney’s conflict
       of interest] safeguard the defendant’s right to a fair trial, which
       expressly includes the guarantee to “assistance of counsel.” Iowa
       Const. art. I, § 10; see U.S. Const. amend. VI (using the identical
       words “Assistance of Counsel”). The assistance of counsel, of
       course, implies the effective assistance of counsel.

Id. at 346.   We may find greater protection of these rights under our state

constitution than are provided under the Federal Constitution. See id. at 347.

       Our supreme court has decided a series of cases in recent years involving

concurrent representation by defense attorneys of defendants and State’s

witnesses.    In State v. Watson, 620 N.W.2d 233 (Iowa 2000), the court

considered the simultaneous representation of a defendant and an adverse

witness. The attorney simultaneously represented the adverse witness and the

defendant throughout trial, though his co-counsel (and coworker at the public

defender’s office) conducted the cross-examination of the adverse witness.

Watson, 620 N.W.2d at 234. The court concluded the district court had a duty to

sua sponte conduct an inquiry into the conflict of interest and that “where the trial

court knew or should have known of a particular conflict, reversal is required

without a showing that the conflict adversely affected counsel’s performance,

even though no objection was made at trial.” Id. at 237.

       The United States Supreme Court rejected this bright-line rule as applied

to the Sixth Amendment in Mickens v. Taylor, 535 U.S. 162 (2002). In Mickens,

the defendant’s attorney failed to disclose his representation of the victim at the

time of the murder for which the defendant was charged. 535 U.S. at 164. The

Court concluded, “it was at least necessary, to void the conviction, for petitioner

to establish that the conflict of interest adversely affected his counsel’s
                                          7

performance.” Id. at 174. The Court noted that Mickens’s counsel labored under

a conflict of prior representation, not concurrent representation, which presents a

somewhat different inquiry.    Id. at 175 (“Thus, the Federal Rules of Criminal

Procedure treat concurrent representation and prior representation differently,

requiring a trial court to inquire into the likelihood of conflict whenever jointly

charged defendants are represented by a single attorney (Rule 44(c)), but not

when counsel previously represented another defendant in a substantially related

matter, even where the trial court is aware of the prior representation.”).

       Five years later, the Iowa Supreme Court decided Smitherman, 733

N.W.2d at 343.       In that case, the court was again presented with the

simultaneous representation of a defendant and an adverse witness.

Smitherman, 733 N.W.2d at 343. This time, however, the conflict did not go

unnoticed throughout the trial. Id. at 344. One of two attorneys representing

Smitherman discovered he was representing an adverse witness; the attorney

moved to withdraw from his representation of Smitherman after being informed of

the prosecution’s intent to use the adverse witness’s testimony at trial; the court

allowed the withdrawal, and held a hearing about the potential conflict. Id. at

344–45. There, as here, the defendant requested the court presume prejudice

based on the conflict. See id. at 346. The court summarized the law regarding

conflict-of-interest claims: “[A] conflict-of-interest claim only requires the

defendant to make a showing whereby we can presume prejudice.” Id. The

court framed the issue before it as, “under what circumstances are we to

presume prejudice when the trial court has performed an inquiry?” Id. at 347.

The court concluded Smitherman was required to show an adverse effect
                                            8


stemming from the conflict of interest in order to prevail on his claim under the

Iowa and Federal Constitutions.6 Id.

       The court provided the following rationale:

       The nature of the conflict makes it difficult to effectively measure
       the harm visited on the trial by conflicted counsel. On the other
       hand, when the court makes an inquiry in some form into the
       conflict, the attorney is no longer quietly inflicting the inherent harm
       into the trial that supports the automatic reversal rule.

Id. at 348.

       The State and Vaughan agree that an actual conflict of interest arose

when Vaughan’s attorney, Henson, discovered he also represented an adverse

witness.      The parties do not agree whether this actual conflict began when

Henson learned Cline wanted to talk to the State about Vaughan’s case. The

State asks us to speculate that Henson could assume Cline wanted to exonerate

Vaughan. We decline to do so.

       The trial court did not conduct an inquiry into the extent of Henson’s

conflict until after Vaughan was convicted,7 although it did grant Henson’s motion

to withdraw as Vaughan’s counsel and was informed a conflict existed. Vaughan

did not acquiesce to the simultaneous representation. The court did not analyze

what effect the concurrent representation had on counsel’s pretrial behavior and

what, if any, effect would carry over into the trial. No prophylactic remedy was

put in place to prevent harm from the concurrent representation. The trial court

6
  The court also declined to decide whether the Watson presumption of prejudice
survived the Supreme Court’s decision in Mickens, noting the court could choose to
construe our state constitution more broadly than the United States Constitution.
Smitherman, 733 N.W.2d at 347.
7
  For this reason, we find Vaughan’s alternative request to reverse for a hearing into the
conflict is misplaced. See, e.g., id. at 344.
                                                9


allowed the ongoing inherent harm to continue through the trial, although

substitute counsel was appointed. See Watson, 620 N.W.2d at 237.

          Even if the automatic reversal rule adopted by the court in Watson

regarding concurrent representation under our Iowa Constitution has not survived

(see Smitherman, 733 N.W.2d at 347 (noting the Watson rule may still stand

under the Iowa Constitution and distinguishing Smitherman’s conflict from

Watson’s by important factors such as inquiry by the court, prophylactic remedy,

and acquiescence by the defendant)), the conflict here infected the entire pretrial

and preparation period during defense counsel’s eighty days of concurrent

representation. During discovery, depositions, and conferences with Vaughan,

counsel knew another client was giving information about Vaughan to the State.8

Though this concurrent conflict did not continue through trial, as noted by the

partial dissent, the pretrial process is fundamental to ensuring a defendant

receives a fair trial.

          Our supreme court has stated, “An important purpose of a deposition is to

allow a defendant to take the testimony of a witness under oath to determine the

extent of the witness’s knowledge of the facts of the case.” State v. Folkerts, 703

N.W.2d 761, 765 (Iowa 2005). At least in a case where identification was at

issue, the supreme court has stated that the testing of the strength of a witness’s

observation during a deposition is crucial. Id. (concluding the defendant may be

absent during the part of the deposition where such testing of a witness’s

recollection of identification is made).            Even the dissent in Folkerts noted a


8
    It is not clear whether the State also was aware of the conflict during the pretrial period.
                                          10

deposition may be a “critical stage” of the proceedings. Id. at 766–67 (Cady, J.,

dissenting).

         Here, Vaughn’s first attorney was laboring under an actual conflict at the

time the depositions of material witnesses, including the lead investigator, were

taken.     The attorney’s torn allegiance during a critical stage of pretrial

proceedings constitutes circumstances of such magnitude allowing us to

presume prejudice. See Mickens, 535 U.S. at 166-167. Perhaps if the witnesses

had been re-deposed by new defense counsel or the witnesses were only

marginally important to the case, the “magnitude” of the circumstances would

have been lessened, requiring proof of probable effect on the outcome.

However, the witnesses were not re-deposed. Furthermore, placing a burden to

prove the probable effect on the outcome of the trial on the defendant may

require measuring the importance of the depositions in each specific case—an

almost unworkable and impractical burden.9

         Further, Vaughan has shown a particularized instance where his

attorney’s divided loyalties worked to his detriment. Henson told the State about

Cline’s information—an act which may have benefitted Cline10 but hurt

Vaughan’s case. Henson’s simultaneous representation continued for months

after Cline’s request to speak with the State, unlike the mere days in

Smitherman. See Smitherman, 733 N.W.2d at 344. This continued concurrent

representation during the pretrial period, discovery, and depositions allowed

9
   However, if the proper measure is the importance of the witnesses deposed to the
case, we think Vaughan has still met his burden.
10
   While Cline had entered a guilty plea to one charge at this point, it is unclear what
effect this disclosure had on the ongoing prosecution of his other charges.
                                           11


Henson to “quietly inflict[] harm” for an extended period of time before the trial

court allowed Henson to step aside. See id. at 348.

       The length of time over which counsel had an actual conflict, in addition to

taking depositions of material witnesses when counsel’s allegiance was divided,

allows us to presume prejudice. We therefore reverse and remand for a new trial

with conflict-free counsel.11

       Our supreme court has previously found the proper remedy for a conflict

of interest arising from concurrent representation of a witness and defendant to

be reversal and remand for new trial. Watson, 620 N.W.2d at 242. We decline

the State’s request in oral argument to find Watson no longer stands for the

proposition that reversal is an available remedy under the Iowa Constitution in

the case of actual conflict. We also do not agree with the State’s argument that

Vaughan has already received the remedy he seeks: conflict-free trial counsel.

To the contrary, by granting a new trial, the discovery deadlines will begin anew

and witnesses may be re-deposed free of conflict.

       Vaughan’s request goes farther, however, asking our court not only to

order a new trial but also to exclude Cline’s testimony. Vaughan did not move to

exclude the testimony in a motion in limine before trial, object to Cline’s testimony

at trial, or raise the issue in his posttrial motions. At no point did the district court

consider excluding Cline’s testimony. See Lamasters v. State, 821 N.W.2d 856,

11
   Our supreme court recently reversed a trial court’s disqualification of counsel for
concurrent representation within the same firm. State v. Smith, 761 N.W.2d 63, 77 (Iowa
2009). Besides actual concurrent representation in this case, several other differences
distinguish Smith, including non-conflicted co-counsel, voluntary waiver by the
defendant, careful avoidance within the firm, and the speculative nature of the conflict.
Id. at 72.
                                        12


864 (Iowa 2012) (holding the indication of a district court’s consideration of an

issue was sufficient to preserve error). Further, Vaughan cites to no authority to

support his request for this particular remedy.         See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”).

        We therefore remand without the exclusion of Cline’s testimony.

        REVERSED AND REMANDED.

        Danilson, C.J., concurs; McDonald, J., concurs in part and dissents in

part.
                                          13


MCDONALD, J. (concurring in part and dissenting in part)

       I concur there is sufficient evidence to support the jury’s verdict but

respectfully dissent from the conclusion Vaughan established a conflict of interest

that infringed his constitutional rights. Indeed, it is not clear from this record that

Vaughan established any actual conflict of interest.

       Assuming for present purposes that Vaughan’s first counsel, Henson,

operated under a conflict of interest, I think it important to begin the discussion by

framing the issue.     Vaughan contends the district court erred in denying his

motion in arrest of judgment and motion for new trial because Henson had a

conflict of interest. He contends this conflict of interest infringed his rights arising

under the Sixth Amendment to the United States Constitution and article I,

section 10 of the Iowa Constitution.         While his claim is not styled as an

ineffective-assistance-of-counsel claim, we analyze his claim using that rubric.

See Smitherman, 733 N.W.2d at 345-46 (stating where “a defendant alleges a

violation of these constitutional rights due to an impermissible conflict of interest,

our basic analysis does not change depending on how the defendant has framed

the violation—i.e., as a claim of ineffective assistance of counsel or otherwise.

The analysis we use . . . is largely the same analysis we would use if the

defendant had specifically alleged a claim of ineffective assistance of counsel

due to an impermissible conflict of interest”). Importantly, Vaughan does not

claim that his second counsel, his trial counsel, also operated under a conflict of

interest or was otherwise ineffective.       We are thus not presented with the

question of whether Vaughan’s trial counsel could have or should have done

more during pretrial proceedings or during trial in light of Henson’s prior action.
                                         14


The only question presented is whether, on this record, Vaughan has made a

showing his pretrial counsel operated under a conflict of interest from which we

can presume prejudice. See id. at 346. (“The analysis is basically one question:

whether the defendant has made a showing whereby we can presume

prejudice.”). He has not.

      The seminal Iowa case regarding impermissible conflicts of interest is

Watson, 620 N.W.2d 233. In that case, one of the defendant’s two trial attorneys

represented an adverse witness in the defendant’s case in an unrelated criminal

contempt proceeding, although the representation of the adverse witness had

concluded by the time of the defendant’s trial. Watson, 620 N.W.2d at 235, 240.

At trial, the defendant’s other—and conflict-free—trial counsel cross-examined

the adverse witness. Id. at 240-241. Counsel did not raise the issue of the

conflict. The defendant did not object to the representation. Id. The court did

not inquire about any conflict of interest. Id. The Watson court, relying almost

exclusively on Cuyler v. Sullivan, 446 U.S. 335 (1980), held as follows:

      A trial court has the duty sua sponte to inquire into the propriety of
      defense counsel’s representation when it knows or reasonably
      should know that a particular conflict exists. If an actual conflict
      existed and the trial court knew or should have known of the
      conflict, yet failed to make inquiry, reversal is required. If the record
      on appeal shows only the possibility of a conflict, then the case
      must be remanded for a determination as to whether an actual
      conflict existed and/or whether the defendant made a valid waiver
      of his right to independent counsel. If, on remand, an actual conflict
      is found, prejudice is presumed and reversal is mandated. If there
      is no indication that the trial court knew or should have known of an
      actual conflict, and defendant made no objection to his
      representation, then the defendant, in order to obtain a reversal on
      appeal, must prove that his counsel rendered ineffective assistance
      by proving that an actual conflict adversely affected counsel’s
      performance.
                                        15

Watson, 620 N.W.2d at 238 (citations and quotation marks omitted).

      Subsequent to Watson, in Mickens, 535 U.S. 162, the United States

Supreme Court addressed the constitutional implications of counsel operating

under a concurrent conflict of interest where there was no objection to the

representation or inquiry from the trial court. The court rejected the defendant’s

argument that Sullivan required reversal of a criminal conviction upon a showing

that counsel operated under a concurrent conflict of interest without any showing

the conflict adversely affected counsel’s performance:

      As used in the remand instruction, however, we think “an actual
      conflict of interest” meant precisely a conflict that affected counsel’s
      performance—as opposed to a mere theoretical division of
      loyalties. It was shorthand for the statement in Sullivan that “a
      defendant who shows that a conflict of interest actually affected the
      adequacy of his representation need not demonstrate prejudice in
      order to obtain relief.” 446 U.S. at 349–350. . . .
               Petitioner’s proposed rule of automatic reversal when there
      existed a conflict that did not affect counsel’s performance, but the
      trial judge failed to make the Sullivan-mandated inquiry, makes little
      policy sense. As discussed, the rule applied when the trial judge is
      not aware of the conflict (and thus not obligated to inquire) is that
      prejudice will be presumed only if the conflict has significantly
      affected counsel’s performance—thereby rendering the verdict
      unreliable, even though Strickland prejudice cannot be shown. The
      trial court’s awareness of a potential conflict neither renders it more
      likely that counsel’s performance was significantly affected nor in
      any other way renders the verdict unreliable. Nor does the trial
      judge’s failure to make the Sullivan-mandated inquiry often make it
      harder for reviewing courts to determine conflict and effect,
      particularly since those courts may rely on evidence and testimony
      whose importance only becomes established at the trial.
               Nor, finally, is automatic reversal simply an appropriate
      means of enforcing Sullivan’s mandate of inquiry. . . . And in any
      event, the Sullivan standard, which requires proof of effect upon
      representation but (once such effect is shown) presumes prejudice,
      already creates an “incentive” to inquire into a potential conflict. In
      those cases where the potential conflict is in fact an actual one,
      only inquiry will enable the judge to avoid all possibility of reversal
      by either seeking waiver or replacing a conflicted attorney.
                                       16

Mickens, 535 U.S. at 171-73.

      As the majority notes, our supreme court revisited the issue of attorney

conflicts of interest post-Mickens in Smitherman, 733 N.W.2d 341. There, the

court addressed the question of the showing required to obtain relief where the

district court held a Watson hearing.       The court recognized that Mickens

seriously undermined Watson and then held, under both the United States and

Iowa Constitutions, the defendant was required to establish an actual conflict of

interest that adversely affected challenged counsel’s performance:

      We recognize our holding in Watson under the Sixth Amendment
      is impacted by the Supreme Court’s decision in Mickens. Of
      course, Watson may still be valid under our state constitution. But
      we need not decide that question now because a different question
      is before us: namely, under what circumstances are we to
      presume prejudice when the trial court has performed an inquiry?
      We are convinced those circumstances must include the
      defendant’s ability to show what was required in Mickens—
      adverse effect upon defense counsel’s performance. While we
      were willing to presume prejudice without requiring adverse effect
      in Watson, we believe the facts of Watson are sufficiently
      distinguishable from this case so the reasons behind our holding in
      Watson, even if still viable after Mickens under our state
      constitution, are not applicable here. Under the circumstances in
      this case, we hold Smitherman must show adverse effect in order
      to prevail under either the Sixth Amendment or article I, section 10
      of the Iowa Constitution.

Smitherman, 733 N.W.2d at 347. In distinguishing Watson, the court explained

the harm sought to be prevented in Watson was a trial-related harm—that

“confidence in the result of the verdict is undermined” where counsel is operating

under an undisclosed conflict of interest. Id. at 348. The court explained that

merely holding a hearing on the conflict “ameliorates the suspicion of harm and

lessens the need for a rigid rule of automatic reversal.” Id. So where does that

leave Vaughan?
                                           17


       Although the State does not press the point, Vaughan has received all the

relief our conflict-of-interest cases provide: his pretrial counsel operating under

an alleged conflict of interest was replaced by admittedly conflict-free counsel

who represented Vaughan during the remainder of pretrial proceedings and

through trial. See Mickens, 535 U.S. at 173 (stating that the trial court can “avoid

all possibility of reversal by either seeking waiver or replacing a conflicted

attorney”); Harris v. United States, No. 3:07CR419, 2009 WL 5098970, at *4

(E.D. Va. Dec. 16, 2009) (holding the conflict-of-interest claim failed where

counsel withdrew upon learning of his concurrent representation of the informant

who caused defendant’s arrest and where the defendant was represented by

conflict-free counsel thereafter). The conclusion that no further relief is available

is demonstrated by the relief the majority orders in this case: Vaughan’s

conviction should be vacated and this matter remanded for trial with conflict-free

counsel. But isn’t that what just occurred? The fact that no further relief is

available under the Mickens and Smitherman conflict-of-interest cases leads me

to conclude that the appointment of conflict-free counsel remedied the

constitutional taint, if any, and rendered the conflict-of-interest cases—Watson,

Mickens and Smitherman—inapplicable to this case.              I would thus hold that

where pretrial counsel operating under an alleged conflict of interest is replaced

by counsel operating without any conflict of interest, the defendant must show

ineffective assistance of counsel under the traditional Strickland standard to

obtain relief. See Triana v. United States, 205 F.3d 36, 43-44 (2d Cir. 2000)

(holding that conflicted counsel’s “negligible participation” in trial “did not result in

a breakdown in the adversarial process that our system counts on to produce just
                                        18


results” where unconflicted counsel actually tried case (citation and quotation

marks omitted)). I would further hold any such claim of ineffective assistance

should be preserved for postconviction relief proceedings where the facts can be

more fully developed and the issues more fully briefed. For example, whether

Henson’s conduct resulted in any prejudice if the postconviction record showed

Cline was going to speak to law enforcement with or without Henson’s

assistance.

       Although I conclude Vaughan’s claim should be analyzed under the

Strickland standard rather than the less demanding standard set forth in the

conflict-of-interest cases, see Smitherman, 733 N.W.2d at 346 (“The difference

can be summarized quite easily: A defendant has less to prove in conflict-of-

interest cases. Whereas in a typical claim of ineffective assistance of counsel

the defendant must prove prejudice by showing the result of the proceeding

would have been different, a conflict of interest claim only requires the defendant

to make a showing whereby we can presume prejudice.”), to the extent the

conflict-of-interest cases are applicable here, it is clear that Smitherman and not

Watson is the controlling authority. The Smitherman court concluded that the

mere holding of a Watson hearing without removing conflicted counsel

sufficiently mitigated the risk of trial-related harm to no longer require automatic

reversal. See id. at 348. That holding applies with greater force in this case.

Here, the court did more than hold a hearing; the court granted pretrial counsel’s

motion to withdraw and appointed conflict free-counsel to represent defendant

through the remainder of pretrial proceedings and at trial. At minimum, Vaughan
                                         19


is thus required to make a showing of an actual conflict of interest that adversely

affected defense counsel’s performance. See id. at 347. He has not done so.

         The majority asserts that Henson’s representation of Vaughan for eighty

days after Cline requested to speak to the authorities quietly inflicted harm on

Vaughan’s case.      This is unsupported by the record.     Cline did not provide

Henson with the substance of the information. The assistant county attorney

testified that law enforcement did not contact Cline until approximately two

months after Cline’s initial request due to the investigating officer taking a leave

of absence. During this time, Henson continued to represent Vaughan in pretrial

proceedings unaware of whether Cline spoke to law enforcement or what

information Cline might have provided.

         Henson testified that he did not become aware of any conflict until he saw

the additional minutes of testimony identifying Cline as a witness.        There is

nothing in the record showing that Henson’s representation of Vaughan during

this eighty-day period was adversely affected by Henson’s representation of

Cline.    For example, there is no indication that Henson failed to investigate

factual and legal defenses to the charge. There is no indication that Henson

failed to interview witnesses or conduct depositions. There is no indication that

Henson’s performance during the depositions was in any way deficient. We are

not permitted to speculate or presume that Henson’s performance was adversely

affected; it is Vaughan’s burden to make that showing, and he has not done so.

See, e.g., Noe v. United States, 601 F.3d 784, 790 (8th Cir. 2010) (“To make

such a showing, the defendant must identify a plausible alternative defense

strategy or tactic that defense counsel might have pursued, show that the
                                       20


alternative strategy was objectively reasonable under the facts of the case, and

establish that the defense counsel’s failure to pursue that strategy or tactic was

linked to the actual conflict.”).

       The majority also contends that Vaughan has shown a particularized

instance where Henson’s allegedly divided loyalties worked to Vaughan’s

detriment—“Henson told the State about Cline’s information—an act which

benefitted Cline but hurt Vaughan’s case.” I disagree. First, the record does not

support the conclusion that Cline’s information benefitted Cline. As the majority

notes, Cline’s request to speak to law enforcement followed his guilty plea and

sentencing in the matter in which Henson was representing him. Cline already

had gained any concessions available to him in that matter prior to speaking to

law enforcement.

       Second, the record does not support the statement that Henson told the

State “about Cline’s information.” In denying the motion in arrest of judgment,

the district court found that Cline did not tell Henson the substance of the

information Cline wanted to convey to the State, only that he wanted to speak to

law enforcement. Thus, while Henson informed the State that Cline wanted to

provide information, Henson did not know or communicate the substance of

Cline’s information.

       Third, although the majority characterizes Henson’s conduct as a

concurrent conflict, Henson’s representation of Cline concluded after sentencing

in Cline’s case.    As the majority notes, this occurred prior to the time Cline

requested Henson contact law enforcement and prior to the time Henson actually

contacted law enforcement. At best, this is a matter involving only a potential
                                          21


conflict between a former client and a current client. Claims regarding potential

conflicts and non-concurrent conflicts should be analyzed under the Strickland

prejudice standard. See Mickens, 535 U.S. at 175 (stating the Sullivan standard

applies only where “counsel actively represented conflicting interests”); see, e.g.,

Potts v. United States, 566 F. Supp. 2d 525, 532 (N.D. Tex. 2008) (explaining

that Sullivan applies to concurrent conflicts and Strickland applies to all other

conflicts of a “different ilk”).

        Even assuming the representations were concurrent, however, Henson’s

mere mention to law enforcement that Cline wished to speak with them is

insufficient to establish an “actual conflict of interest” from which we can presume

prejudice. See, e.g., People v. Serrano, 952 N.Y.S.2d 669, 672 (N.Y. App. Div.

2012) (holding the defendant failed to establish a conflict-based claim of

ineffective assistance of counsel where the public defender represented a

confidential informant and the defendant).           In a very similar case, the

Massachusetts Court of Appeals concluded that there was no conflict of interest

where defense counsel did not know the substance of an adverse witness’s

information and was unaware of the conflict:

        It is true that Keene represented the defendant after the
        defendant’s arrest, prior to the defendant’s hiring of McBride
        several months before trial. This fact establishes that there could
        have been a period where Keene represented both Lobello and the
        defendant. But this could not have given rise to a conflict, because,
        as the judge found, Keene was not aware of Lobello’s status as an
        informant against the defendant until one week before trial—a point
        by which his activities on Lobello’s behalf had long since ended.
        Since a conflict occurs when the independent professional
        judgment of trial counsel is impaired . . . by the interests of another
        client, common sense dictates that Keene’s judgment could not
        have been impaired when he was not aware of the potentially
        divergent interests of his two clients. Moreover, there is no
                                         22


       indication that Keene somehow gained access to privileged
       information through his representation of both the defendant and
       Lobello that was used to the defendant’s detriment.

Com. v. Teti, 801 N.E.2d 279, 285 (Mass. App. Ct. 2004) (citation and quotation

marks omitted). By way of another example, New York concluded that there was

no impermissible conflict where counsel represented the defendant and an

adverse witness but was actually unaware of the conflict:

       Whether a conflict operates on the defense is a mixed question of
       law and fact. Here, there is record support for the Appellate
       Division’s conclusion that the potential conflict did not operate on
       the attorney’s representation, and as such, the determination is
       beyond our further review. Albanese was unaware that the
       confidential informant was cooperating against Harris and although
       he advised the informant to continue cooperating with the District
       Attorney’s office—clearly contrary to the interests of defendant
       Harris—the representation was not affected by the potential
       conflict. The grand jury testimony had been given before Albanese
       began his representation of the informant, and during Albanese’s
       brief pretrial representation of Harris, he never learned the identity
       of the informant in the Harris case.
               Typically, a conflict requiring reversal exists when defense
       counsel simultaneously represents defendant and the primary
       prosecution witness. . . . Here, although the interests of the
       defendant and the informant were materially divergent, the record
       supports the lower courts’ conclusion that defense counsel’s
       unawareness of the potential conflict precludes a finding that he
       was somehow inhibited in single-mindedly pursuing Harris’s best
       interests during the course of the representation. Put another way,
       there is nothing in the record to suggest that had Albanese earlier
       learned of the representation and withdrawn as Harris’s attorney,
       subsequent counsel would have defended him in some more
       vigorous, less inhibited manner.

People v. Harris, 783 N.E.2d 502, 506-07 (N.Y. 2002).

       I find the reasoning in these and other similar cases compelling.

Accordingly, I concur in part and dissent in part.
