                                                                        PUBLISH


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                       FILED
                                                          U.S. COURT OF APPEALS
                        ________________________            ELEVENTH CIRCUIT
                                                                JULY 11, 2001
                                                             THOMAS K. KAHN
                              No. 00-14437                        CLERK
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket Nos. 99-10034-CV-JLK,
                                     89-10040-CR-JLK

JUAN VINCENTE CADERNO,

                                                        Petitioner-Appellant,

     versus


UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Florida
                        _________________________

                                (July 11, 2001)



Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:

       This appeal from the denial of a 28 U.S.C. § 2255 motion presents two first-

impression issues for our circuit. We must decide whether defense counsel’s

failure to move for a new trial based on a court security officer (“CSO”) or Deputy

United States Marshal’s (“Marshal”) comments to a juror that the defendants were

“pigs” was a denial of the Sixth Amendment right to effective assistance of counsel

during trial and whether a defendant’s inability to pay his counsel the full retainer

fee caused the counsel not to represent the defendant completely because of the

counsel’s financial interest. The district judge determined that the convicted

defendant was not entitled to habeas corpus relief on either ground. We AFFIRM.

                                      I. BACKGROUND

        Petitioner-appellant, Juan Vincente Caderno, was convicted for his

participation in a cocaine distribution conspiracy in violation of 21 U.S.C. §§

841(a)(1), 846, 952, and 963.1 Before sentencing, Caderno and four of his

codefendants filed pro se letters alleging that, during a break in the jury

deliberations, “spectators, relatives, lawyers and defendants” had observed a




       1
         The description of this cocaine distribution conspiracy and the proceedings in district court
are found in our opinion from the direct appeal in which we affirmed the convictions and sentences
of the eight codefendants. United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997).

                                                  2
female juror engage in a conversation with a CSO or Marshal on two occasions.2

Exh. 1-266, attached letters. Caderno and his codefendants asserted that the CSO

or Marshal told the juror that the defendants were “pigs” and that two defense

attorneys advised the presiding judge of the conversations. They acknowledge that

the judge reprimanded the juror and the CSO or Marshal and that he ordered

counsel to respond to the letters. Id.

           Caderno’s counsel responded that, immediately upon noticing an apparent

conversation between the juror and the CSO, he and other defense counsel notified

the trial judge of their observation. Exh. 1-277 at 3. He stated that the district

judge inquired about the conversations and instructed the jurors and the United

States Marshal’s office that no communications were to occur. Caderno’s counsel

stated that he witnessed the conversation but was unaware of the specific

comments allegedly made by the CSO or Marshal to the juror. Id.

       Following counsel’s responses, the district judge entered an order stating

that the defendants’ letters did not constitute motions before the court. Exh. 1-285

at 1. The judge noted that, if the defendants wanted their convictions reviewed,

they should request review through a procedurally correct motion or appeal. He



       2
         These alleged conversations occurred on the courthouse terrace provided for members of
the jury who are smokers. Exh. 1-277 at 3.

                                              3
also stated that he was satisfied by his inquiry into the issues raised in the

defendants’ pro se letters. Id..

      Thereafter, Caderno and four of his codefendants filed motions for a new

trial based on the alleged contacts between the CSO or Marshal and juror during

the jury deliberations. United States v. Calderon, 127 F.3d 1314, 1348-49 (11th

Cir. 1997). They asserted that the CSO or Marshal said to one of the jurors, in

reference to the defendants, that “[t]hese people are all pigs.” Id. at 1349. The

district judge denied the motions for a new trial on the grounds that they were

untimely under Federal Rule of Criminal Procedure 33. Exh. 1-484 at 2-3. The

judge also noted that the alleged incidents were known to the defendants prior to

the entry of the jury verdict. Id.

      Caderno was sentenced to four concurrent terms of 235 months of

imprisonment. He and his codefendants appealed the denial of their motions for a

new trial based in part on their assertion that a CSO or Marshal had improper

contact with a juror during jury deliberations. Calderon, 127 F.3d at 1349. On

direct appeal, we affirmed the district judge’s determination that Caderno and his

codefendants’ motions for a new trial were filed untimely. Id. at 1351-52.

      In his § 2255 motion, Caderno reiterates his assertions in district court. He

pursues his contention that, during jury deliberations, several of the codefendants’


                                           4
family members heard a CSO or a Marshal state to an unidentified juror, in

reference to the defendants: “‘”These people are all pigs”’ or ‘”They’re all pigs”’

and ‘”They must be like this at home.”’” R1-1 at 7, ¶ 9 (quoting Calderon, 127

F.3d at 1349). Caderno states that his attorney and other defense counsel

witnessed the exchange or were made aware of it. Id.

      In his report, a magistrate judge recommended that Caderno’s § 2255 motion

be denied. The magistrate judge concluded that Caderno failed to supply any

reliable indicia that a CSO or Marshal made any improper comments to one of the

jurors and that, if the comments were made, they were addressed by the trial judge

either on the record or informally outside the courtroom. R1-17 at 6-7. Thus, the

magistrate judge reasoned that a timely motion for new trial probably would not

have been granted. Id. at 7. Over Caderno’s objections, the district judge affirmed

the magistrate’s report and denied Caderno’s § 2255 motion. Proceeding pro se,

Caderno appealed the denial of his § 2255 motion based on two alleged instances

of ineffective assistance of counsel: (1) his attorney’s failure to move for a new

trial because of the CSO or Marshal’s improper communication to a juror and (2)

his contention that his attorney had a personal financial interest that conflicted with

and adversely affected his defense of Caderno because Caderno was unable to pay

his counsel the full retainer fee, which prevented his attorney from providing


                                           5
Caderno with a complete defense.3

                                       II. DISCUSSION

A. Failure to Move for New Trial Based on Security Officer’s Communications
   with a Juror

      We review de novo a claim of ineffective assistance of counsel, which is a

mixed question of law and fact. Greene v. United States, 880 F.2d 1299, 1305

(11th Cir. 1989). The defendant must show that counsel’s performance fell below

constitutional standards and that his defense was prejudiced as a result. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Ineffective assistance exists if: (1) counsel’s performance was objectively

unreasonable; and (2) a reasonable probability exists that the outcome would have

been different absent the deficiency. Id. at 691, 104 S.Ct. at 2066. There is a strong

presumption that counsel’s performance was reasonable and adequate, with great

deference shown to choices dictated by reasonable trial strategy. Rogers v. Zant, 13

F.3d 384, 386 (11th Cir. 1994). Our review of an ineffective-assistance-of-counsel

claim is from the perspective of defense counsel, and we consider the facts “as they


       3
          Because Caderno filed his § 2255 motion after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), the AEDPA governs this appeal. Our review is
limited to the issues specified in the certificate of appealability: 1) whether Caderno’s counsel was
ineffective for failing to raise a timely objection or motion for a new trial based on an alleged
conversation between a CSO or Marshal and a juror; and 2) whether counsel had a financial conflict
of interest that adversely affected Caderno’s defense. R1-25; Jones v. United States, 224 F.3d 1251,
1254 (11th Cir. 2000).

                                                 6
were known to counsel at the time of the representation.” United States v. Teague,

953 F.2d 1525, 1535 (11th Cir. 1992).

      We have not addressed a § 2255 motion alleging counsel’s ineffectiveness for

failing to file a motion for a new trial after a security officer’s improper contact

with a juror. In an appeal from the denial of a defendant’s state motion for post-

conviction relief, the Supreme Court found that a bailiff’s comment to three jurors,

“[o]h that wicked fellow [petitioner], he is guilty,” deprived the defendant of a trial

by a fair and impartial jury. Parker v. Gladden, 385 U.S. 363, 363, 87 S.Ct. 468,

470, 17 L.Ed. 2d 420 (1966) (per curiam) (alteration in original). In reversing the

defendant’s conviction, the Court noted that, “petitioner was entitled to be tried by

12, not 9 or even 10, impartial and unprejudiced jurors.” Id. at 366, 87 S.Ct at 471.

On direct appeal in this case, we decided that the district court properly dismissed

Caderno’s motion for a new trial as untimely, but we did not address his allegation

that improper juror contact warranted a new trial. See Calderon, 127 F.3d at 1351-

52.

      Although Caderno maintained that his counsel observed the CSO or

Marshal’s having a conversation with a juror in his pro se letter to the court,

Caderno never asserted in district court, nor does he assert on appeal, that his

counsel knew the substance of the conversation. Additionally, in his response to


                                            7
the trial judge’s order, Caderno’s counsel stated that he was not able to overhear

any conversation which may have occurred between the CSO or Marshal and the

juror. Consequently, Caderno has failed to establish that his counsel had any reason

to object on the record or to move for a new trial because he has not shown that his

counsel knew the allegedly prejudicial nature of the exchange between the CSO or

Marshal and the juror when it occurred. It is uncontested that Caderno’s counsel,

along with codefendants’ counsel, immediately brought to the trial judge’s attention

that a conversation had taken place between the CSO or Marshal and the juror.

Therefore, we conclude that Caderno’s counsel did not act unreasonably by not

objecting on the record to the conversation between the CSO or the Marshal and the

juror, since he did not know the substance of it, or by not filing a timely motion for

new trial based on that conversation. Strickland, 466 U.S. at 691, 104 S.Ct. at

2066; see Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that

a petitioner is not entitled to habeas relief “‘when his claims are merely “conclusory

allegations unsupported by specifics” or “contentions that in the face of the record

are wholly incredible”’” (citation omitted)).

B. Conflict of Interests

      Caderno also asserts that his counsel had a financial conflict of interest that

adversely affected his defense because Caderno was unable to pay his counsel the


                                          8
full retainer fee. Caderno contends that this resulted in his counsel’s having “to sit

through many days of trial proceedings without being paid fees he could have been

earning by working on other defendants’ cases.” Appellant’s Brief at 33.

Therefore, Caderno argues that an actual conflict of interests existed because his

counsel’s personal financial interest conflicted with his defense of Caderno.

Because of his attorney’s personal financial concerns, Caderno alleges that his

attorney met with him only twice before trial, failed to object to the alleged

improper comments made by a CSO or Marshal to a juror, declined to employ an

interpreter to assist in communications with Caderno, agreed to cancel a discovery

conference, and refused to move the court for a bond hearing pending sentencing.

      We review de novo an appellant’s contention that his attorney had a conflict

of interests and, consequently, provided ineffective assistance. Mills v. Singletary,

161 F.3d 1273, 1287 (11th Cir. 1998) (per curiam), cert. denied, 528 U.S. 1082, 120

S.Ct. 804, 145 L.Ed.2d 677 (2000). To succeed on an ineffective-assistance claim

based on a conflict of interests, the appellant must show specific instances in the

record that demonstrate “that an actual conflict of interest adversely affected his

lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708,

1718, 64 L.Ed.2d 333 (1980); see United States v. Marrera, 768 F.2d 201, 208 (7th

Cir. 1985) (defining “performance” in the conflict-of-interest context as meaning


                                           9
“any defense counsel decision which can reasonably be expected to affect the

ultimate defense whether that decision be made before, during, or after trial”). “The

possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler, 446

U.S. at 350, 100 S.Ct. at 1719. “A speculative or hypothetical conflict . . . does not

violate the Constitution,” the appellant must demonstrate that his lawyer “‘actively

represented conflicting interests.’” United States v. Khoury, 901 F.2d 948, 968

(11th Cir.) (quoting Cuyler, 446 U.S. 350, 100 S.Ct. at 1719), modified on other

grounds, 910 F.2d 713 (1990) (per curiam).

      Caderno asserts that his counsel had a financial conflict of interest based on

Caderno’s failure to pay fully his counsel’s fees, which conflicted with his defense

of Caderno. We have not addressed specifically a conflict-of-interests argument

based on a contention that counsel was concerned with his own financial interest

throughout the trial, which resulted in his not providing the defendant with a full

representation. Under the reasoning in Cuyler and Khoury, it is manifest that

Caderno must establish that an actual financial conflict existed by showing that his

counsel actively represented his own financial interest during Caderno’s trial, rather

than showing the possibility of an actual financial conflict. See Cuyler, 446 U.S. at

350, 100 S.Ct. at 1719; see also Khoury, 901 F.2d at 968.

      In support of his argument that his counsel had a financial conflict of interest,


                                          10
Caderno filed his counsel’s motion to withdraw and three letters written from his

attorney to Caderno after his conviction. R1-3 at Attachments F1, G1, H1, I1.

These documents, however, fail to show that Caderno’s counsel had an actual

financial conflict; the letters show only the possibility of such a conflict. For

example, Caderno’s counsel’s motion to withdraw, filed after the conclusion of

Caderno’s trial, states that, although Caderno never paid him for his services, their

differences were unrelated to payment. R1-3 at Attachment F1. Although the

letters by Caderno’s counsel, sent after the conclusion of Caderno’s trial, clearly

expressed Caderno’s counsel’s frustration at not being paid attorney’s fees for

representing Caderno at trial, the letters do not indicate that Caderno’s attorney had

an actual financial conflict because of his own financial interest during Caderno’s

trial. See id. at Attachments G1, H1, I1); see also Cuyler, 446 U.S. at 350, 100

S.Ct. at 1719.

      In this court, Caderno supports his argument that his counsel had a actual

financial conflict during his trial with his counsel’s motion to withdraw and post-

trial letters. Because Caderno only speculates that his counsel had an actual

financial conflict, he has failed to establish that his counsel’s financial interest

actually conflicted with his representation of Caderno thereby adversely affecting

Caderno’s defense. Without a showing of actual conflicting interests, there is no


                                            11
constitutional violation. See Khoury, 901 F.2d at 968. “Although a ‘defendant’s

failure to pay fees may cause some divisiveness between attorney and client,’ courts

generally presume that counsel will subordinate his or her pecuniary interests and

honor his or her professional responsibility to a client.” United States v. Taylor,

139 F.3d 924, 932 (D.C. Cir. 1998) (quoting United States v. O’Neil, 118 F.3d 65,

71 (2d Cir. 1997).

                                III. CONCLUSION

      In this appeal from the denial of his § 2255 motion, Caderno argues that his

counsel rendered ineffective assistance by failing to move for a new trial upon

learning that a CSO or Marshal commented to a juror that the defendants were

“pigs.” He also speculates that his attorney had an actual financial conflict of

interests because Caderno could not pay his full retainer fee, which adversely

affected Caderno’s defense. For the reasons that we have explained, the district

judge’s denial of Caderno’s § 2255 motion is AFFIRMED.




                                          12
