                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued January 21, 1998                                   Decided April 3, 1998


                                 No. 97-3028


                          United States of America, 

                                   Appellee


                                      v.


                              Robert N. Taylor, 

                                  Appellant


                Appeal from the United States District Court 

                        for the District of Columbia 

                              (No. 96cr00233-01)


     Lisa B. Wright, Assistant Federal Public Defender, argued 
the cause for appellant, with whom A.J. Kramer, Federal 
Public Defender, was on the briefs.  David A. Howard, 
Assistant Federal Public Defender, entered an appearance.

     Rachel Adelman-Pierson, Assistant U.S. Attorney, argued 
the cause for appellee, with whom Mary Lou Leary, U.S. 
Attorney at the time the brief was filed, John R. Fisher and 



Elizabeth Trosman, Assistant U.S. Attorneys, were on the 
brief.

     Before:  Edwards, Chief Judge, Wald and Rogers, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Rogers.

     Rogers, Circuit Judge:  Appellant Robert N. Taylor ap-
peals the denial of his pre-sentence motion to withdraw his 
guilty plea to felony criminal contempt and wire fraud.  He 
contends that, despite the fact that his plea was entered 
following the trial, the district court abused its discretion by 
not holding an evidentiary hearing on claims that his trial 
counsel had a conflict of interest that denied him the effective 
assistance of counsel under Cuyler v. Sullivan, 446 U.S. 335 
(1980).  Because Taylor's averments related to matters out-
side of the trial record and were sufficient to demonstrate, if 
credited, that trial counsel had a conflict of interest that 
adversely affected the adequacy of his representation, we 
reverse and remand the case for an evidentiary hearing.

                                      I.


     In the fall of 1995, the Securities and Exchange Commis-
sion ("SEC") filed a civil enforcement action against appel-
lant, Robert N. Taylor, alleging that he had operated his 
company, the Better Life Club of America, Inc., as a fraudu-
lent Ponzi scheme.  Thereafter, the district court issued both 
a temporary restraining order and a preliminary injunction 
freezing all of Taylor's personal and corporate assets.1  The 
instant appeal arises out of Taylor's prosecution for criminal 
contempt for his alleged violation of these freeze orders.

     The government pursued two contempt citations against 
Taylor, one for criminal contempt arising out of a series of 
bank transactions and a second for civil contempt arising out 
of Taylor's refinancing of his home.  The first effort began on 
May 1, 1996, when the government filed a show cause applica-

__________
     1  The orders were issued by different judges, but for simplicity, 
we refer to all freeze orders as being issued "by the district court."



tion for criminal contempt alleging that Taylor had violated 
the freeze orders by engaging in more than two hundred 
different banking transactions and by failing to disclose the 
existence of several bank accounts.  To avoid a jury trial, the 
government asked the district court, and it agreed, to limit 
any sentence to no more than six months imprisonment or a 
fine of no more than $5,000, effectively charging Taylor with a 
petty offense misdemeanor of criminal contempt.  See 18 
U.S.C. s 1(3) (1988);  United States v. Nachtigal, 507 U.S. 1, 
4 (1993);  Frank v. United States, 395 U.S. 147, 148-50 (1969).  
The show cause hearing began on July 1, and was continued 
until July 19, when the district court deferred its ruling until 
July 22, pending ongoing plea negotiations.

     While the criminal contempt proceeding was pending, the 
SEC learned that Taylor and his girlfriend, who had been 
brought into the civil enforcement action as a relief defen-
dant, had refinanced their home and received a "cash out" 
share of the refinancing.  It subsequently initiated a civil 
contempt proceeding, alleging that Taylor and his girlfriend 
had violated the freeze orders.  A hearing was held on July 
17, 1996, before a different judge, who took the matter under 
advisement.

     Before either judge ruled in the criminal or civil contempt 
proceedings, however, Taylor entered into a comprehensive 
plea agreement with the government.  The global agreement 
encompassed not only the banking transactions underlying 
the misdemeanor contempt proceedings, but also Taylor's 
actions in securing the home refinancing.  Taylor agreed to 
plead guilty to wire fraud, see 18 U.S.C. ss 2, 1343, for 
several alleged misrepresentations he had made in his refi-
nancing application,2 as well as to felony contempt, see 18 
U.S.C. s 401(3), for both the refinancing and the bank trans-
actions.3  Taylor faced a maximum possible sentence of five 

__________
     2  Taylor allegedly stated in his application that he was not 
subject to any litigation and was earning $9,000 a month as a 
financial advisor.

     3  Taylor also waived his right to an indictment on the new 
criminal charges, waived venue on the wire fraud charge, and 



years' imprisonment and a substantial fine on the wire fraud 
charges, see 18 U.S.C. s 1343, in addition to three years of 
supervised release and a requirement that he make full 
restitution.  The felony contempt charge carried an unspeci-
fied maximum sentence to be determined at the discretion of 
the court.  See 18 U.S.C. s 401.  In exchange, the govern-
ment agreed to withdraw its original misdemeanor criminal 
contempt charges, request the SEC to dismiss its civil con-
tempt application, and request concurrent sentences for con-
tempt and wire fraud, with the former sentence no longer 
than the latter.  Additionally, the government agreed to 
allocute for the maximum reduction of his sentence for accep-
tance of responsibility under section 3E1.1 of the Sentencing 
Guidelines, forego the underlying securities fraud claim as 
relevant conduct, and not to prosecute Taylor's girlfriend.  
Pursuant to the agreement, Taylor pleaded guilty, following a 
Rule 11 hearing, to wire fraud and felony criminal contempt 
on July 22, 1996.  See Fed. R. Crim. P. 11.

     Prior to sentencing, Taylor wrote a letter to the district 
court indicating that he wanted to withdraw his guilty plea 
and request the appointment of new counsel.  On the same 
day, August 30, 1996, he filed a motion to withdraw his plea 
on the ground of ineffective assistance of counsel.  With 
newly appointed counsel, Taylor filed a revised motion and a 
supporting affidavit.  Taylor's ineffectiveness allegations ini-
tially consisted of three general claims:  erratic conduct, 
economic coercion, and a conflict of interest.

     As to the first, the record shows that during the course of 
the securities fraud and misdemeanor contempt proceedings, 
the district court repeatedly had expressed concern about the 
adequacy of Taylor's representation.  Trial counsel had failed 
to appear for two hearings in the SEC proceeding and 
exhibited other erratic behavior as a result of personal prob-
lems relating to substance abuse.  Notwithstanding sugges-

__________
waived any double jeopardy claim with regard to the contempt 
charges arising from the bank transactions.  He further agreed to 
disgorge the net proceeds from the home refinancing or provide 
proof of his inability to do so.



tions from the district court that he might wish to retain a 
different lawyer, Taylor continually expressed satisfaction 
with trial counsel.4  Nevertheless, in support of his motion to 
withdraw his guilty plea, Taylor averred that trial counsel had 
missed several meetings with him regarding the plea negotia-
tions and been otherwise distracted or inattentive.  Addition-
ally, Taylor alleged that trial counsel had failed to explain 
fourteen different provisions of the plea agreement prior to 
his entry of his plea.

     Taylor also claimed that trial counsel had "financially 
coerced" him into pleading guilty because Taylor was unable 
to meet counsel's "unrelenting" fee demands.  Specifically, 
Taylor alleged that in late June or early July of 1996, trial 
counsel "asked for an additional $5,000 to proceed to trial, 
and expressed a clear lack of interest in fighting [the] case 
when [Taylor] advised him that he could not pay."  Thereaf-
ter, counsel allegedly pressured Taylor to accept the govern-
ment's plea offer.

     Finally, Taylor alleged that trial counsel was unable to 
render effective assistance due to a conflict of interest.  In 
his revised motion, Taylor focused on trial counsel's substance 
abuse problems and claimed that trial counsel was "inclined 
to divest himself" of any additional burdens to his recovery.  
He also noted that trial counsel faced possible disciplinary 
action by the bar as well as a contempt sanction from the 
district court.  Thus, Taylor claimed, trial counsel pressured 
him into accepting the government's plea agreement in order 
to dispose of the case as quickly as possible.

     Trial counsel's affidavit, submitted with the government's 
opposition to the motion to withdraw, painted a very different 
picture of his relationship with Taylor.  Trial counsel denied 
any economic coercion and portrayed conscientious efforts on 

__________
     4  At one point, Taylor sought new counsel for the misdemeanor 
contempt proceedings while retaining trial counsel in the civil case.  
He then changed his mind and indicated that he wished to retain 
trial counsel in the criminal matter but not the civil matter.  The 
district court would not allow the latter arrangement, and Taylor 
subsequently agreed trial counsel could represent him in both cases.



behalf of a client who was potentially facing multiple criminal 
charges.  Trial counsel acknowledged his advice that Taylor 
pursue a global plea agreement with the government, and 
described his repeated efforts, some successful, to obtain 
more favorable terms.

     When Taylor's motion to withdraw came before the district 
court on December 9, 1996, the court observed that neither 
the pleadings nor the affidavits suggested that Taylor had 
any viable defense to the criminal contempt or wire fraud 
charges.  Taylor's new counsel then alerted the court, for the 
first time, to a factual dispute over trial counsel's advice to 
Taylor regarding the refinancing of his home.5  Trial counsel 
stated in his affidavit that he had "specifically advised [Tay-
lor] against [the refinancing] and told him that to refinance 
the house would probably constitute the encumbrance of an 
asset and would likely be in violation of the court ordered 
asset freeze."  Taylor disputed this statement, averring that 
trial counsel had advised him to proceed with the refinancing.  
Thus, new counsel argued, Taylor had an advice of counsel 
defense to the contempt charges of which he had not been 
informed.  Further, new counsel urged that trial counsel 
would have had a conflict of interest in presenting this 
defense.  Although this issue had not been previously briefed, 
the district court continued the hearing to allow Taylor to file 
"whatever he alleges his defense is."

     In a supplemental affidavit Taylor averred that prior to 
refinancing his home he had sought advice from trial counsel 
and had been told, "Go ahead and do it.  There is nothing in 
the [freeze orders] which prevents you from refinancing your 
home."  According to Taylor, trial counsel had only cautioned 
that the SEC would be upset and discussed the ambiguous 
nature of the order.6  Taylor also submitted documents that 

__________
     5  New counsel explained to the district court that he had not 
asserted this defense in the pleadings on the motion because he did 
not think that the government had a right to be privy to the nature 
of Taylor's defense should the case go to trial.

     6  Taylor also referred to an inadvertent-conduct defense to the 
wire fraud and claimed to have suggested potential defenses and 



he had sent to trial counsel indicating that at one point he did 
not want to enter a guilty plea, but wanted to force the 
government to prove its case, and that he had defenses 
regarding several of the charges.

     After further argument by counsel, the district court de-
nied Taylor's motion without an evidentiary hearing.  Based 
upon Taylor's affidavits, the government's oppositions to with-
drawal of the plea, trial counsel's affidavit, Taylor's sworn 
statements at the Rule 11 hearing, and the court's knowledge 
of the misdemeanor contempt proceedings, the district court 
found that Taylor's claims of ineffective assistance were not 
credible, and, alternatively, that even if Taylor's allegations 
were true, he could not show that he had been prejudiced.  
The court was unpersuaded by Taylor's change of heart about 
trial counsel after repeatedly reaffirming his satisfaction with 
counsel, and by the economic coercion claim since trial coun-
sel had taken the case to trial and the plea was not entered 
until after the trial had been completed.  The court recalled 
Taylor's statements under oath at the Rule 11 hearing that 
his plea was voluntary and that he was satisfied with his trial 
counsel.  Regarding prejudice, the court observed that Taylor 
"was never able to present a single viable defense to the 
charges," not even at the plea withdrawal proceedings, after 
taking months to prepare his collateral attack.  Finally, the 
court noted that Taylor "cannot present any convincing evi-
dence that he might have faced better prospects at a verdict 
than he did in his plea."  The district court sentenced Taylor 
to forty-one months imprisonment on each count, to run 
concurrently, and ordered him to pay a special assessment of 
$200 and to make restitution in the amount of $80,122.63.

                                     II.


     Withdrawal of a guilty plea prior to sentencing is to be 
liberally granted, and permitted for "any fair and just rea-
son."  Fed. R. Crim. P. 32(e);  United States v. Ford, 993 F.2d 
249, 251 (D.C. Cir. 1993).  In reviewing the district court's 

__________
witnesses for the misdemeanor contempt charge that trial counsel 
failed to pursue.



denial of a motion to withdraw, this court focuses on three 
factors in order to determine whether there was an abuse of 
discretion:  (1) "whether the defendant has asserted a viable 
claim of innocence";  (2) "whether the delay between the 
guilty plea and the motion to withdraw has substantially 
prejudiced the government's ability to prosecute the case;" 
and (3) "whether the guilty plea was somehow tainted."  
Ford, 993 F.2d at 251.  The third factor is the "most impor-
tant," and the standard for allowing withdrawal of a plea is 
fairly lenient when the defendant can show that the plea was 
entered unconstitutionally.  Id.  Here, the government does 
not claim substantial prejudice under the second factor, and 
Taylor's conflict of interest claim is directly related to his 
contention that he has presented a viable claim of innocence, 
at least for some of the charges against him.  Hence, our 
focus is on the third factor, for Taylor contends that his guilty 
plea was tainted by the ineffective assistance of his trial 
counsel and, consequently, he did not knowingly enter his 
plea.

     "A plea is not voluntary or intelligent," and therefore 
unconstitutional, "if the advice given by defense counsel on 
which the defendant relied in entering the plea falls below the 
level of reasonable competence such that the defendant does 
not receive effective assistance of counsel."  United States v. 
Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990).  To withdraw 
a plea on this basis, a defendant must ordinarily satisfy the 
two-pronged standard of Strickland v. Washington, 466 U.S. 
668, 687 (1984), for violations of the Sixth Amendment guar-
antee.   See Hill v. Lockhart, 474 U.S. 52, 57-60 (1985);  
United States v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997);  
United States v. Horne, 987 F.2d 833, 835 (D.C. Cir. 1993).  A 
defendant must therefore show first, that his counsel's perfor-
mance "fell below an objective standard of reasonableness" by 
identifying specific "acts or omissions of counsel that are 
alleged not to have been the result of reasonable professional 
judgment."  Strickland, 466 U.S. at 687-88, 690.  Second, a 
defendant must demonstrate that the deficiencies in his rep-
resentation were prejudicial to his defense.  Id. at 692.  He 
"must show that there is a reasonable probability that, but for 



counsel's errors, he would not have pleaded guilty and would 
have insisted on going to trial."  Hill, 474 U.S. at 59.

     Taylor maintains, however, that his assertions of ineffec-
tiveness fall within a "genre" of ineffective assistance claims 
based upon a counsel's conflict of interest.  United States v. 
Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996).  In Cuyler v. 
Sullivan, 446 U.S. 335, 349-350 (1980), the Supreme Court 
recognized that a defendant's Sixth Amendment right to 
effective assistance of counsel may be violated when an actual 
conflict of interest adversely affects the adequacy of the 
defendant's representation.  See id. at 349-51.  In that event, 
prejudice will be presumed "if the defendant demonstrates 
that counsel 'actively represented conflicting interests' " and 
that the conflict "adversely affected his lawyer's perfor-
mance."  Strickland, 466 U.S. at 692 (quoting Cuyler, 446 
U.S. at 350, 348);  accord Bruce, 89 F.3d at 893.  In order to 
present a valid Cuyler claim, this court requires a defendant 
to show that his counsel advanced his own, or another client's, 
interest to the detriment of the defendant.  See Bruce, 89 
F.3d at 893.  Counsel's action, moreover, must be knowing;  
counsel who remains unaware of adverse interests among 
clients does not have an "actual conflict."  See United States 
v. Gantt, No. 97-3053 (D.C. Cir.) (opinion forthcoming). "If 
an attorney fails to make a legitimate argument because of 
the attorney's conflicting interest ... then the Cuyler stan-
dard has been met."  Bruce, 89 F.3d at 896 (emphasis in 
original).

     It is true that the court has generally been reluctant to 
allow defendants to "force their ineffective assistance claims 
into the 'actual conflict of interest' framework ... and there-
by supplant the strict Strickland standard with the far more 
lenient Cuyler test."  United States v. Bruce, 89 F.3d 886, 
893 (D.C. Cir. 1996) (citing United States v. Leggett, 81 F.3d 
220, 227 (D.C. Cir. 1996), and United States v. Farley, 72 F.3d 
158, 166 (D.C. Cir. 1995)).  In Cuyler, the Supreme Court was 
confronted with special problems of multiple representation:  
two attorneys jointly represented three defendants.  See 
Cuyler, 446 U.S. at 337.  The record indicated that counsel 
differed in their views about how one defendant's case should 
be handled, and that there were ways in which proceeding on 



behalf of one defendant might have harmed another defen-
dant.  See id. at 338-340.  Emphasizing that "the possibility 
of conflict is insufficient to impugn a criminal conviction," the 
Court held that to demonstrate a violation of the Sixth 
Amendment "a defendant must establish that an actual con-
flict of interest adversely affected his lawyer's performance."  
Id. at 350.  Under such circumstances, the Court determined 
prejudice would then be presumed.  Id. at 350.  Subsequent-
ly, in Strickland, the Court reemphasized that "[p]rejudice is 
presumed only if the defendant demonstrated that counsel 
'actively represented conflicting interest' and that 'an actual 
conflict of interest adversely affected his lawyer's perfor-
mance.' "  466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348).  
In the context of joint representation, this standard is more 
easily satisfied because "when an attorney represents two 
clients with opposing interests, the attorney cannot serve 
both clients adequately....  [The attorney] 'must fail one or 
do nothing and fail both.' "  Perillo v. Johnson, 79 F.3d 441, 
447 (5th Cir. 1996) (quoting Beets v. Scott, 65 F.3d 1258, 1270 
(5th Cir. 1995)).  But when other conflicts are alleged to have 
impaired counsel's performance, the defendant's burden is to 
show that counsel actually acted in a manner that adversely 
affected his representation by doing something, or refraining 
from doing something, that a non-conflicted counsel would not 
have done.  See United States v. Soldevila-Lopez, 17 F.3d 
480, 486-87 (1st Cir. 1994).

     In order for there to be an "actual conflict," an attorney 
must be forced to make a choice advancing his own interest at 
the expense of his client's.  See Bruce, 89 F.3d at 893.  An 
ethical lapse is not the same as a conflict of interest, Bruce, 
89 F.3d at 893-94, and a Cuyler conflict does not arise from 
mere "friction between trial counsel and the court," Shark, 51 
F.3d at 1076, or from a misunderstanding between a defen-
dant and trial counsel on trial tactics.   See United States v. 
Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996).  Neither is a 
hypothetical conflict having no effect on trial counsel's repre-
sentation enough to come within Cuyler's reach and thus 
avoid the need to show Strickland prejudice.  See Cuyler, 446 
U.S. at 350;  Bucuvalas v. United States, 98 F.3d 652, 657 (1st 



Cir. 1996) (requiring more than some attenuated hypothesis 
having little consequence to the adequacy of representation);  
United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988).

     As a threshold matter, we find unpersuasive the govern-
ment's contention that Taylor waived any right to contest his 
trial counsel's deficient representation.  Taylor's appeal relies 
on events of which he was not then aware or that occurred 
after he had assured the district court that he was satisfied 
with his trial counsel.  Throughout the course of the trial, 
Taylor was aware of his trial counsel's personal difficulties 
and professional lapses and was offered the opportunity to 
change counsel by the court.  On several occasions the dis-
trict court warned Taylor that by allowing counsel to contin-
ue, Taylor would "waive any rights that [he] ha[d] to object to 
his failure to properly represent [him] in the past or at 
present or in the future because of his condition."  Still he 
decided to retain his trial counsel.  Because a defendant can 
entirely waive his or her right to counsel, see Johnson v. 
Zerbst, 304 U.S. 458, 464-65 (1938), and courts have recog-
nized that a co-defendant can waive his or her right to 
conflict-free counsel in agreeing to joint representation, see, 
e.g., United States v. Rico, 51 F.3d 495, 509-512 (5th Cir. 
1995), the government contends that Taylor could similarly 
waive in advance all claims concerning the quality of his 
representation.  Taylor's response to the district court's re-
peated warnings, it maintains, constitutes such a general 
waiver.

     The court, however, must "indulge every reasonable pre-
sumption against the waiver of the unimpaired assistance of 
counsel."  Campbell v. United States, 352 F.2d 359, 361 (D.C. 
Cir. 1965) (citing Glasser v. United States, 315 U.S. 60, 70 
(1942)).  Consequently, Taylor's averments of satisfaction are 
properly viewed more narrowly than the government urges.  
The court may assume for purposes of the instant appeal that 
his expressions of satisfaction with his trial counsel's perfor-
mance bar any claims arising from prior acts or omissions of 
counsel of which Taylor reasonably could or should have 
known.  Furthermore, in light of the district court's warn-



ings, the court may assume that Taylor also knowingly and 
voluntarily waived any future claims of ineffective assistance 
based upon trial counsel's drug abuse, at least to the extent it 
was known and understood by Taylor.  But Taylor did not 
indiscriminately waive his right to pursue ineffectiveness 
claims on other grounds, such as those addressed here.  Cf. 
United States v. Lowry, 971 F.2d 55, 63 (7th Cir.1992).  
Taylor could not have foreseen trial counsel's conduct in plea 
negotiations with the government and was unaware of trial 
counsel's alleged conflicts when he affirmed the adequacy of 
his representation.  Cf. United States v. Raynor, No. 97-
0186, 1997 WL 800395, at *1 (D.D.C. Dec. 29, 1997).  Even if 
Taylor's statements were broadly construed to include his 
present conflict of interest claims, they could not have formed 
a valid waiver because he did not know of his possible advice 
of counsel defense when he made them.  See Johnson, 304 
U.S. at 464.

     Turning to the merits, Taylor contends on appeal that trial 
counsel had three different conflicts, only one of which re-
quires extended discussion.  First, he maintains that trial 
counsel was inclined to end the case as quickly as possible 
because trial counsel risked being held in contempt if he did 
not continue to satisfy the district court that he was comply-
ing with his drug treatment program.  Standing alone this is 
insufficient to show a conflict of interest inasmuch as the 
court has previously observed that such a claim is meritless.7  
See United States v. Shark, 51 F.3d 1072, 1075-76 (D.C. Cir. 
1995).  Because all attorneys potentially face contempt cita-
tions, no particular attorney can be considered ineffective due 
to a concern that he or she might be so cited.   See id. at 
1076.

     Second, Taylor maintains that trial counsel's personal fi-
nancial interest also motivated him to dispose of the case 

__________
     7  Alternatively, as the government contends, Taylor has waived 
his claim that counsel was conflicted because he performed under 
the threat of a contempt sanction.  Taylor knew about this when he 
agreed to retain counsel and this claim arises out of counsel's 
substance abuse problems.



through a plea without regard for Taylor's interests.  Yet, 
this too, is unpersuasive for the reasons noted by the district 
court, and because many defendants undoubtedly face similar 
financial demands from their counsel.  Although a "defen-
dant's failure to pay fees may cause some divisiveness be-
tween 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.8  Unit-
ed States v. O'Neill, 118 F.3d 65, 71 (2d Cir. 1997), cert. 
denied, 118 S. Ct. 728 (1998); United States v. Jeffers, 520 
F.2d 1256, 1265 (7th Cir. 1975) (Stevens, J.).  But cf. Daniels 
v. United States, 54 F.3d 290, 294 (7th Cir. 1995).  The 
district court rejected Taylor's allegations of financial pres-
sure as incredible in view of the fact that trial counsel had 
completed the trial before Taylor pleaded guilty.  Even if 
Taylor's trial costs were not necessarily at an end because he 
potentially faced felony contempt and wire fraud charges, his 
affidavit focuses solely on the past, alleging that trial counsel 
asked him for more money on several occasions, the last 
being July 12.  Trial counsel, however, continued to represent 
Taylor at both the civil contempt hearing on July 17 and the 
criminal contempt hearing on July 19 without incident.  Tay-
lor admits, moreover, that trial counsel never stated or other-
wise threatened that he would cease his representation if 
Taylor failed to pay more money.  Viewed in combination 
with Taylor's sworn statement at the Rule 11 hearing that he 
had not been coerced, he fails to allege any credible "actual 
conflict" with trial counsel.  Cf. Gantt, No. 97-3023 (D.C. Cir.) 
(opinion forthcoming).

     Third, and more troubling, Taylor maintains that trial 
counsel had a conflict of interest in presenting an advice of 

__________
     8 For this reason, at least one circuit has held that the non-
payment of legal fees does not constitute a Cuyler conflict and is 
more properly analyzed under Strickland.  See O'Neil, 118 F.3d at 
72; United States v. Wright, 845 F. Supp. 1041, 1078 n.35 (D.N.J., 
aff'd 46 F.3d 1120 (3d Cir. 1994).



counsel defense and therefore it was in counsel's personal 
interest to bring the case to a prompt conclusion through a 
global plea.  Specifically, he maintains that his trial counsel 
failed to advise him of a viable advice of counsel defense to 
the charges of felony criminal contempt that, along with the 
independent wire fraud charges, were a significant motivating 
factor in his decision to accept the global plea agreement.  He 
asserts this failure was caused, in part, by trial counsel's 
concern that informing him of his defense would reveal to his 
client, the district court, and the prosecutors that trial counsel 
had provided his client with clearly inaccurate legal advice.  
Hence, Taylor contends, trial counsel's interest in avoiding an 
advice of counsel defense was in competition with Taylor's 
interest to be informed of all viable defenses to the charges 
when making a decision whether to accept a plea offer.

     Ordinarily, when a defendant seeks to withdraw a guilty 
plea on the basis of ineffective assistance of trial counsel the 
district court should hold an evidentiary hearing to determine 
the merits of the defendant's claims.  "An evidentiary hearing 
is critical to [an] evaluation of most ineffective assistance of 
counsel claims, because these frequently concern matters 
outside the trial record, such as whether counsel properly 
investigated the case, considered relevant legal theories, or 
adequately prepared a defense."  United States v. Cyrus, 890 
F.2d 1245, 1247 (D.C. Cir. 1989).  On the other hand, some 
claims of ineffective assistance of counsel can be resolved on 
the basis of the trial transcripts and pleadings alone.  See 
United States v. Fennell, 53 F.3d 1296, 1303-4 (D.C. Cir. 
1995), modified on reh'g, 77 F.3d 510 (1996);  United States v. 
Pinkney, 543 F.2d 908, 914 (D.C. Cir. 1976).  For example, 
the alleged acts of deficient performance by counsel may have 
occurred in the course of proceedings before the trial court, 
thereby making a hearing unnecessary.  Cf. Pinkney, 543 
F.2d at 915.  Or the motion may fail to allege sufficient facts 
or circumstances "upon which the elements of constitutionally 
deficient performance might properly be found."  Id. at 916.  
Summary disposition may also be appropriate where the 
defendant has failed to present any affidavits or other eviden-
tiary support for the naked assertions contained in his mo-
tion.  See id. at 916-17.  Furthermore, in challenging a guilty 



plea on the basis of ineffective assistance, the representations 
of the defendant at the plea hearing as to the adequacy of 
counsel and the knowing and voluntary nature of his plea, see 
Fed. R. Crim. P. 11(d), may "constitute a formidable barrier" 
to his later refutations.   Blackledge v. Allison, 431 U.S. 63, 
74 (1977).  But that barrier, "although imposing, is not invari-
ably insurmountable," and does not necessitate the summary 
denial of a motion to withdraw a guilty plea.   Id.  Only if the 
district court concludes that the defendant has not alleged 
any cognizable claim for relief, or that the defendant's "con-
clusory allegations [are] unsupported by specifics," or that the 
defendant's allegations "in the face of the record are wholly 
incredible" may it summarily dismiss the motion.   Id.

     Taylor's Cuyler claim is premised on the fact that had he 
not pleaded guilty, he could only have received a maximum 
sentence of six months imprisonment for misdemeanor con-
tempt and would then have faced charges for wire fraud and 
felony contempt, based solely on the refinancing of his home.  
Had he known of his advice of counsel defense to the refi-
nancing contempt charges, there is a reasonable probability, 
cf. Hill, 474 U.S. at 59, that he would not have accepted the 
global plea agreement in which he pled guilty to felony 
contempt for both the bank transactions and the refinancing.  
Instead, he might have accepted the district court's ruling on 
misdemeanor contempt and attempted to defend against the 
more serious felony contempt charges.  It was, after all, as 
trial counsel's affidavit confirms, the fear of future criminal 
contempt and wire fraud prosecutions that had driven the 
final plea negotiations.

     To demonstrate the need for an evidentiary hearing, Taylor 
focuses on the factual dispute over trial counsel's advice on 
the refinancing.  Because the home financing was not the 
subject of the misdemeanor contempt trial, it was impossible 
for the district court to determine from the trial record what 
communications Taylor and trial counsel may have had re-
garding the home financing, much less for the district court to 
evaluate trial counsel's explanation without the benefit of 
cross-examination.  Were the district court to determine, 
after an evidentiary hearing, that Taylor's allegations are 



true, then trial counsel would have failed to advise him of an 
advice of counsel defense that trial counsel's own affidavit 
implies would have been a significant factor in Taylor's deci-
sion to accept the global plea agreement.  Once Taylor's 
averment regarding trial counsel's advice is credited, it is not 
difficult to believe that trial counsel failed to provide Taylor 
with this important information at least in part because to do 
so would reveal to Taylor, the district court, and the prosecu-
tor that trial counsel had provided his client with inaccurate 
legal advice.  So viewed, trial counsel's interest in avoiding an 
advice of counsel defense was in competition with Taylor's 
interest to be informed of all viable defenses to the charges 
against him when making a decision whether to accept the 
global plea offer.  But see Farley, 72 F.3d at 166.9  In a real 
sense, then, "[trial counsel] 'was required to make a choice 
advancing his own interests to the detriment of his client's 
interests.' "   Bruce, 89 F.3d at 893 (citations omitted).

     Having presented an "actual conflict" by affidavit and 
otherwise sufficient, nonconclusory allegations about trial 
counsel's advice and its relationship to his decision to plead 
guilty, Taylor need only show that the conflict of interest 
"adversely affected his lawyer's performance."  Strickland, 
466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348).  The 
alleged conflict must have "had some negative effect upon his 
defense (defined as 'an actual lapse in representation')."   
Shark, 51 F.3d at 1075.  In the instant case, trial counsel's 
lapse was his very failure to apprise Taylor of a potential 
defense that, if proved, could have provided a complete 
defense to the felony contempt charges arising out of Taylor's 
refinancing of his home.10  Cf. Gambino, 864 F.2d at 1070.  

__________
     9  Farley is distinguishable because the defendant's claim that 
his counsel misadvised him was directly contradicted by the defen-
dant's description of the advice to the district court.  See Farley, 72 
F.3d at 165 & n.6.  Also, had he misunderstood the guilty plea for 
any reason, the plea would have been involuntary and unconstitu-
tional regardless of any advice his counsel may have given to him.  
So viewed, there could be no conflict of interest.

     10  The government does not contest the availability of an advice 
of counsel defense for charges of criminal contempt.  The district 
court assumed that the defense was available in making its findings 
and we presently have no need to address the issue.



Notwithstanding the strong presumption that counsel "made 
all significant decisions in the exercise of reasonable profes-
sional judgment," Strickland, 466 U.S. at 690, trial counsel's 
failure to inform his client about this defense clearly consti-
tuted deficient representation.  Cf. Teague v. Scott, 60 F.3d 
1167, 1170 (5th Cir. 1995).  Taylor was entitled to make an 
informed decision about whether to plead guilty or risk the 
district court's judgment in the misdemeanor contempt trial 
and defend against possible additional criminal charges.  Cf. 
United States v. Shepherd, 102 F.3d 558, 563 (D.C. Cir. 1997).  
Moreover, Taylor is not required to establish ultimate preju-
dice as defined by Strickland and Hill.  Therefore, Taylor's 
allegation that trial counsel had failed to inform of him of this 
defense due to his conflict of interest presents a valid Cuyler 
claim, even if trial counsel succeeded in obtaining for Taylor 
what appears, on its face, to be a favorable plea agreement.

     Accordingly, we reverse and remand the case to the district 
court for an evidentiary hearing to determine whether Tay-
lor's allegation that his trial counsel advised him that refi-
nancing his home would not violate the freeze orders is 
plausible, and if it is, to permit Taylor to withdraw his plea.

             
