                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   November 15, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff-Appellee,
                                                       No. 05-3356
 v.
                                                (D.C. No. 04-CR-20121-CM )
                                                         (D . Kan.)
 RU BEN UR IAS-BO JOR QU EZ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before M U R PHY , M cKA Y , and GORSUCH, Circuit Judges.


      After a jury trial, Ruben Urias-B ojorquez was convicted of possession with

intent to distribute 500 grams or more of methamphetamine, see 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A )(viii), and sentenced to 200 months in prison. On

appeal, M r. Urias-Bojorquez raises but a single complaint, contending that the

district court failed to conduct a hearing pursuant to Federal Rule of Criminal




      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Procedure 44(c)(2) regarding the propriety of his joint representation with co-

defendant M ario Castro-Hernandez. 1

      In United States v. Burney, 756 F.2d 787 (10th Cir. 1985), we held that the

Sixth Amendment “does not require a [district] court to initiate an inquiry” under

Rule 44(c) where, as here, “no party either objects to multiple representation or

raises a conflict issue.” Id. at 791. W e further held that a defendant who fails to

seek a Rule 44(c) inquiry from the district court but who, again as here,

nonetheless seeks on appeal to complain about the lack of such a hearing “‘must

demonstrate that an actual conflict of interest adversely affected [the] lawyer’s

performance’” in order to prevail. Id. (quoting Cuyler v. Sullivan, 446 U.S. 335,

348 (1980)). That is, we will not presume a conflict of interest arising from the

mere fact of joint representation; before reversal is warranted, the defendant must

show that a real conflict existed and that this conflict adversely impacted the

lawyer’s trial court performance. A more lenient rule would reward parties who

wait until appeal before raising joint representation concerns, and might even

encourage such conduct.




      1
         Rule 44(c) provides that where two defendants are jointly represented,
“[t]he court must promptly inquire about the propriety of joint representation and
must personally advise each defendant of the right to the effective assistance of
counsel, including separate representation.” Fed R. Crim. P. 44(c)(2). Under
Rule 44(c), joint representation occurs when “two or more defendants have been
charged jointly under Rule 8(b) . . . and . . . the defendants are represented by . . .
counsel who are associated in law practice.” Fed R. Crim. P. 44(c)(1).

                                          -2-
      M r. Urias-Bojorquez fails to satisfy the rule set forth in Burney and Cuyler.

He notes that he was represented in proceedings before the district court by

retained counsel, M r. Dale Lovelace, and that his co-defendant, M r. Castro-

Hernandez, was represented by M r. Joseph Kania. M r. Urias-Bojorquez further

notes (and the government does not dispute) that M r. Lovelace and M r. Kania

share a business address and a fax number, although they apparently have

different telephone numbers. It is undisputed as well that the two attorneys filed

their clients’ pretrial pleadings jointly, though any period of joint representation

ended prior to trial when M r. Castro-H ernandez pled guilty.

      Even assuming without deciding that these few threadbare facts might be

sufficient to suggest a form of joint representation sufficient to entitle a defendant

to request and receive a Rule 44(c) inquiry in the first instance, they fail to

suggest the existence of an “actual conflict of interest [that] adversely affected

[the] lawyer’s performance” sufficient to warrant reversal under the terms of

Cuyler and Burney. W e are directed to no evidence suggesting that M r. Urias-

Bojorquez’s attorney provided anything other than an aggressive defense.

Counsel is not alleged, for example, to have advocated a position contrary to his

client’s innocence. Nor is he alleged to have conceded any issues that benefitted

the co-defendant at M r. Urias-Bojorquez’s expense. Quite to the contrary,

counsel appeared to try to exculpate his client at trial by pinning blame for the

crime on M r. Castro-Hernandez. Given these facts, we are constrained to find

                                          -3-
that no reversible error exists under our precedents or those of the Supreme Court.

Accordingly, the judgment of the district court is AFFIRM ED.

                                      ENTERED FOR THE COURT


                                      Neil M . Gorsuch
                                      Circuit Judge




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