              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                            ---------------
                              No. 91-8235
                            ---------------

UNITED STATES OF AMERICA,                                 Plaintiff,

                                versus

ROBERT JOHN GREIG and
CRAIG WAYNE HANLEY,                                       Defendants.




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          Appeals from the United States District Court
                for the Western District of Texas
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                         (July 23, 1992)


Before BROWN, KING AND WIENER, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

     This controversy arises out of a successful reverse sting

operation in Austin, Texas involving $230,000 and 500 pounds of

marijuana, for which Appellants Greig and Hanley were convicted of

marijuana conspiracy offenses.    We affirm Hanley's conviction and

sentence. With respect to Greig, however, we find that his counsel

had a conflict of interest which denied Greig his Sixth Amendment

right to effective assistance of counsel.     Accordingly, we reverse

and remand to the district court for a new trial.



                               The Sting

     Undercover DEA agent Sanchez and government informant Clark
arranged with Craig Hanley, Ernest Vasquez, and Daniel McGarrigle

to find a buyer for a 500 pound load of marijuana.       After several

telephone   conversations,   agent    Sanchez   met   with   Hanley   on

September, 19, 1990 and showed him the marijuana. On September 20,

Sanchez met with Hanley, Vasquez, and McGarrigle to finalize the

deal. Robert Greig was contacted as a potential buyer and the same

day, agent Sanchez showed Greig the marijuana after which they

agreed on a site for the exchange later that day.     Greig arrived at

the designated time and place carrying a cardboard box full of

$230,000 in cash.   Greig, Hanley, Vasquez and McGarrigle were then

arrested.

     In October, 1990, Greig, Hanley and Vasquez were charged with

(1) conspiring to possess with intent to distribute 500 pounds of

marijuana, in violation of 21 U.S.C. § 841(a)(1)1 and 846;2 and (2)

attempting to possess with intent to distribute 500 pounds of

marijuana, in violation of 21 U.S.C. 841(a)(1) and 846.3        Vasquez

and McGarrigle entered guilty pleas, and Greig and Hanley were

tried together before a jury.        Greig was found guilty on both

     1
      Section 841(a)(1) provides in pertinent part:

     ...[I]t shall be unlawful for any person knowingly or
     intentionally ... to distribute ... a controlled
     substance....
     2
      Section 846 provides in part:

     Any person who ... conspires to commit any offense
     defined in [Title 21 of the United States Code] ...
     [shall be guilty of an offense against the United
     States.]
     3
      Section 846 also prohibits attempts to commit offenses
under Title 21 of the United States Code.

                                 2
counts, and was sentenced to two concurrent 136 month terms of

imprisonment, two concurrent five year terms of supervised release,

a fine of $17,500 and a mandatory special assessment of $100.            The

jury found Hanley guilty only on the conspiracy count, and he was

sentenced to 108 months of imprisonment, five years of supervised

release and a $50 mandatory special assessment.             Both Greig and

Hanley appeal.

     Greig raises a number of objections to the verdict and his

sentence, complaining that the district court erred by (1) refusing

to offer him the opportunity to substitute counsel; (2) allowing

the Government to call informant Clark as a rebuttal witness; (3)

increasing his sentence for obstruction of justice; (4) failing to

decrease his sentence for acceptance of responsibility for his

crime; and (5) increasing his sentence for his role as leader of

the conspiracy.        Hanley, on the other hand, raises the single

argument that the court erred in refusing to give his proposed jury

instruction regarding his alleged good faith belief that he was a

government   informant.       We   first   turn   to   Greig's   ineffective

assistance of counsel claim.



                 I.    Greig's Sixth Amendment Right to
                      Effective Assistance of Counsel

          The Critical Sequence of Events Behind It All

     On February 19, 1991, before Greig's and Hanley's trial began,

the court held Ernest Vasquez' rearraignment proceeding.               There

Vasquez' lawyer brought to the court's attention the following

improper communications by Greig's counsel.             He told the trial

                                      3
judge that after he informed Greig's lawyer of Vasquez' plea

negotiations with the Government, Greig approached him and Vasquez

stating, "[t]hey [the Government] cannot convict me without your

testimony."4   Vasquez' lawyer then stated that he advised Vasquez

to have no further contact with Greig.           Vasquez' lawyer next

explained to the court that after a plea agreement had been signed,

Vasquez was asked by Greig to meet with Greig and Greig's lawyer.

Vasquez met with them and was advised to plead not guilty based

upon a valid entrapment defense.       Vasquez' lawyer then reported to

the court a second meeting.   He stated that Greig and his counsel

visited Vasquez' job site and again suggested that Vasquez not

plead guilty on the basis that he had a valid entrapment defense.

He reported that Greig's lawyer in this meeting also told Vasquez

that he should seek other counsel.           Finally, Vasquez' lawyer

complained to the trial judge that Greig's lawyer never asked for

his permission to consult with Vasquez; never informed him of the

fact that he twice met with Vasquez; and never attempted to discuss

with him the entrapment defense.

     On the same day, prior to jury selection at the start of the

trial, the district court informed Greig's counsel that, in his

absence, "the Court heard evidence today of that on two different

occasions you personally visited with Mr. Vasquez, advised him that

he should not plead guilty, that he had a defense, and that his

lawyer was not doing for him what another lawyer should do or be


     4
      In return for a lessened sentence, Vasquez' plea agreement
with the Government required him to testify at Greig's trial.

                                   4
able to do, that he should get another lawyer."     The court then

stated that a disciplinary proceeding would be held during jury

deliberations at the end of Greig's trial.

     On February 21, outside the presence of the jury and while

they were deliberating in Greig's trial, the trial judge conducted

the disciplinary proceeding, hearing testimony from Vasquez, Greig

and their respective lawyers.     The trial court did not make a

ruling at the hearing, and took the matter under advisement until

after the completion of Greig's sentencing.

     At Greig's sentencing hearing on April 15, 1991, Greig was

sentenced under § 3C1.1 to an extra 27 months for obstruction of

justice as a result of his participation in the illicit meetings

with Vasquez.5   Not until the completion of Greig's sentencing did

the trial court then announce its order permanently barring Greig's

lawyer from appearing as counsel before the Western District Court

of Texas.6

     Greig now asserts that his lawyer's misconduct created a


     5
      Section 3C1.1 of the Sentencing Guidelines provides that if
the defendant willfully impeded or obstructed, or attempted to
impede or obstruct the administration of justice during the
investigation or prosecution of the offense charged, the offense
level is to be increased by two levels. As a result of the
obstruction of justice enhancement, Greig's offense level was
increased from 30 to 32, which added approximately 27 months to
his sentence using the mid-point of the guideline range.
     6
      As is this is not before us, we make no comment on the
propriety of the court's sanction disbarring Greig's counsel. We
add, however, that Greig's lawyer later appealed his disbarment
to this court. We reversed and remanded the matter after finding
that the district court applied the incorrect evidentiary
standard in reaching its conclusion that Greig's lawyer should be
disbarred. See In re Medrano, ___ F.2d ___ (5th Cir. 1992).

                                 5
conflict of interest, violating his Sixth Amendment right to

effective assistance of counsel. We agree. The trial court, being

aware of critical facts, erred in not holding a Garcia7 hearing

to insure that Greig was fully informed of his counsel's ethical

violation and whether Greig nevertheless wanted counsel to continue

in his defense.



                         (1)     No Questions Asked

      A   defendant's    right    to   effective     assistance   of   counsel

includes the right to representation free from a conflict of

interest.    Mitchell v. Maggio, 679 F.2d 77, 78-79 (5th Cir. 1982).

Nevertheless, we have long held that, like the right to counsel of

any kind, the right to conflict-free counsel can be waived. United

States v. Howton, 688 F.2d 272, 274 (5th Cir. 1982).              For a waiver

to   be   effective,    the   record   must   show   that   the   trial   court

determined that it was knowingly, intelligently, and voluntarily

done:

      As in Rule 11 procedures, the district court should
      address each defendant personally and forthrightly advise
      him of the potential dangers of representation by counsel
      with a conflict of interest. The defendant must be at
      liberty to question the district court as to the nature
      and consequences of his legal representation.        Most
      significantly, the court should seek to elicit a
      narrative response from each defendant that he has been
      advised of his right to effective representation, that he
      understands the details of his attorney's possible
      conflict of interest and potential perils of such a
      conflict, that he has discussed the matter with his
      attorney or if he wishes with outside counsel, and that
      he voluntarily waives his Sixth Amendment protections.


      7
        United States v. Garcia, 517 F.2d 272 (5th Cir. 1972).

                                       6
Garcia, 517 F.2d at 277-78.          Plainly stated, under Garcia, we

instructed trial courts in the Fifth Circuit to conduct a hearing,

now   commonly   known   as   a   Garcia   hearing,   to   ensure   that   the

defendant (1) is aware that a conflict of interest exists; (2)

realizes the potential hazards to his defense by continuing with

such counsel under the onus of a conflict; and (3) is aware of his

right to obtain other counsel.       United States v. Casiano, 929 F.2d

1046, 1052 (5th Cir. 1991).

      In United States v. White, 706 F.2d at 506 (5th Cir. 1983),

after finding an actual conflict of interest, we held that the

defendant's waiver of his counsel's conflict of interest was

legally ineffective because of the trial court's clear failure to

follow Garcia.    Counsel in White was under investigation by a grand

jury regarding his participation in his client's escape from jail.

After finding an actual conflict of interest, we reversed based

upon the defendant's invalid waiver of the conflict.           Although the

trial court's inquiry in White was more detailed than the inquiry

made by the trial judge in the instant case, we nevertheless found

failure with the procedure since neither the court, the defense

attorney, nor the prosecutor informed the defendant of the precise

manner in which he might be prejudiced.         Instead, the court placed

complete reliance upon counsel's statement that he had informed his

client of the dangers of the conflict of interest.             Id. at 509.

      The record leaves no doubt that the trial court failed to make

any inquiry whatsoever as to whether Greig was aware of the


                                      7
conflict and its potential hazardous effects upon his defense.

While we recognize that a trial court does not always have an

affirmative duty to inquire into the possibility of a conflict of

interest,8 it does have a duty to conduct a hearing once it has

been alerted and certainly when it knows of the existence of an

actual conflict of interest.9    The record makes clear that Vasquez'

attorney, on the same day that Greig's trial began, informed the

court of unethical meetings between Greig, Greig's lawyer and

Vasquez, which ultimately resulted in an enhancement to Greig's

sentence for obstruction of justice.              The court had a duty to

inquire further into Greig's counsel's conflict of interest. Based

on the trial court's failure to conduct even a barebones Garcia

hearing,   we   hold   that   Greig       could   not   have   knowingly   and

voluntarily waived his right to conflict-free counsel.



                   (2)   Ethical Violation Created
                            Actual Conflict

     The Government contends that the court's failure to hold a

Garcia hearing is irrelevant because no actual conflict of interest

existed.   Although we agree with the Government that the necessity

     8
      See United States v. Medel, 592 F.2d 1305 (5th Cir. 1979),
where after finding that no actual conflict existed, we held that
the trial court does not have an affirmative duty to inquire into
the possibility of a conflict when defense counsel never
indicated to the court that a conflict might exist, and when
nothing in the record alerts the court to such a possibility.
Id. at 1312-13.
     9
      Compare United States v. Carpenter, 769 F.2d 258, 263 (5th
Cir. 1985), holding that there was no error for failure to hold a
Garcia hearing, since the necessity of a hearing is triggered
only by an actual conflict of interest.

                                      8
for such a hearing is triggered only by an actual conflict,10 there

is little doubt that an actual conflict existed here.

      Here, counsel was in the position of simultaneously having to

defend himself as well as his client regarding their potentially

criminal activity.        Like his client, counsel was open to an

indictment for obstruction of justice based on their contacts with

Vasquez.11      At the very least, counsel faced severe disciplinary

measures, including monetary sanctions, and indeed the very loss of

the right to appear as counsel in the whole Western District of

Texas.       His alleged conduct was highly unethical and clearly

violated the Model Code of Professional Responsibility as well as

the   American     Bar   Association's   Model   Rules   of   Professional

Conduct.12

      10
           U.S. v. Carpenter, 769 F.2d 258, 263 (5th Cir. 1985).
      11
           F.R.Crim.P. § 1512(c) provides:

      (c) Whoever intentionally harasses another person and
      thereby hinders, delays, prevents, or dissuades any
      person from-

           (1) attending or testifying in an official
      proceeding;
                          *   *   *
      or attempts to do so, shall be fined not more than
      $25,000 or imprisoned not more than one year, or both.

      12
      Greig's counsel was in clear violation of both the
American Bar Association's Model Rules of Professional Conduct
and the Model Code of Professional Responsibility. Rule 4.2 of
the Model Code provides:

                    RULE 4.2 COMMUNICATION WITH PERSON
                          REPRESENTED BY COUNSEL

      In representing a client, a lawyer shall not
      communicate about the subject of the representation

                                     9
     We find persuasive the Third Circuit's reasoning in Government

of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984).   There the

defendant's lawyer did not withdraw despite the fact that he faced

a potential indictment for destruction of evidence in his client's

case.13     In finding an actual conflict of interest, the court

reasoned:

     Even if not criminally charged for such events, trial
     counsel could have faced severe disciplinary consequences
     if it were ever known that he was involved in the
     destruction of evidence. Trial counsel neither avoided
     professional   impropriety    nor   the   appearance   of
     impropriety....   In circumstances such as these, when
     defense counsel has independent personal information
     regarding the facts underlying his client's charges, and
     faces potential liability for those charges, he has an
     actual conflict of interest.

Id. at 136 (citations omitted).

     In United States v. McLain, 823 F.2d 1457 (11th Cir. 1987),

the defendant's counsel was under investigation by the same United

States attorney's office prosecuting the defendant.       Further,

certain assistant U.S. attorneys suggested to the defendant's

counsel that his own indictment could be delayed until after the


     with a party the lawyer knows to be represented by
     another lawyer in the matter, unless the lawyer has the
     consent of the other lawyer or is authorized to do so
     by law.

The Model Code's Disciplinary Rule 7-104(A)(1) is substantially
identical.


     13
      After a raid and sweep search of Defendant's premises by
officers and narcotics agents, Defendant's attorney arrived at
the house. Officers then heard a toilet flush several times and
Defendant was arrested. Later, a search of the septic tank
produced 40 plastic bags, 20 of which tested positive for cocaine
residue. Zepp, 748 F.2d at 128.

                                  10
completion of his client's trial.      Finding an actual conflict of

interest, the Eleventh Circuit concluded that counsel was under an

ethical obligation to inform his client of the investigation and

the possibility that it would affect his judgment.     Specifically,

the court held that since it was in counsel's best interest to have

a lengthy trial, he could not have adequately represented his

client in exploring possible plea negotiations.      See also United

States v. Cancilla, 725 F.2d 867 (2d Cir. 1984).14

     A few cases in our own circuit also help demonstrate the

actual conflict present in this instance.     In White, 706 F.2d at

506, counsel was under investigation by a grand jury regarding his

participation in his client's escape from jail.    We found, without

question, that these circumstances created an actual conflict of

interest,15 and reversed based upon the defendant's invalid waiver

of the conflict.      See discussion supra.   The same lawyer, in a

related case, United States v. Snyder,16 707 F.2d 139 (5th Cir.

1983), was disqualified by the trial court from representing

White's co-conspirator and accomplice, Snyder, in his trial.     The

trial court reasoned that since the lawyer was an indicted co-


     14
      Cancilla involved a situation where counsel was involved
in criminal activity related to that for which Defendant was
convicted. As in Zepp, 748 F.2d at 125, the Second Circuit found
that counsel's potential criminal liability created an actual
conflict.
     15
          Id. at 509 n.3.
     16
      Snyder, the defendant, was White's cellmate and was
convicted for conspiring and aiding and abetting in White's
escape. Snyder and White also shared the same lawyer, who was
also indicted for aiding White to escape.

                                  11
conspirator,      a    conflict     existed    meriting   disqualification.

Although we agreed with the court's determination that an actual

conflict existed, we affirmed the trial court's disqualification

based on our policy to preserve the integrity of the judicial

system.17

      Likewise, we are convinced that the events in this case

resulted in an actual conflict of interest, a conflict which Greig

was given no opportunity to waive.           This is not the end of the line

for Greig, however.       For Greig to prevail, we must also find that

his   counsel's       conflict    of   interest   adversely   affected   his

performance.



       (2) Conflict Adversely Affected Counsel's Performance

      The existence of an actual conflict does not warrant setting

aside the conviction in a criminal proceeding if the error had no

"adverse effect" on the judgment.           United States v. Abner, 825 F.2d

835, 843 (5th Cir. 1987).         "Adverse effect is not the equivalent of

prejudice, the reasonable probability of a different result, as the

term 'prejudice' is defined in Strickland.18           Injury sufficient to

      17
      Disqualification of an attorney may be based on either of
the following grounds: (a) conflict of interest, or (b)
integrity of the judicial system. Snyder, 707 F.2d at 145.
Relying on the second ground to affirm the disqualification, we
held that it was not necessary for us to reach the question of
whether the defendant could have waived the conflict. See also
McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir. 1983),
where we affirmed the lawyer's disqualification based on the
necessity to maintain the bar's high ethical standards.
      18
      Strickland articulates the general standards for judging
the various ineffectiveness claims. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Conflict of

                                       12
justify reversal is presumed from the showing of adverse effect."

Id. (citing Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir. 1986).

     Although adverse effects are not always readily apparent from

the record, our examination of the record provides ample evidence

that counsel's conflict had an adverse effect on both Greig's trial

and sentence.

     First,   we   find   at   the   outset   that   Greig's   counsel   was

preoccupied with his own disciplinary proceeding.              Counsel was

warned at the very start of the trial that he would soon be

required to show cause why he should not be disciplined because of

his contacts with Vasquez.      Throughout Greig's trial, counsel must

have been plagued by the fear of sanctions, which could, as they

actually did, result in disbarment in the Western District.          Added

to that was the uncertainty of whether he would be indicted for

obstruction of justice.

     As evidenced by the following exchange at Greig's trial,

counsel failed to defend Greig vigorously and single-mindedly


interest claims warrant a limited presumption of prejudice, and
any deficiencies in counsel's performance must be prejudicial to
the defense in order to constitute ineffective assistance under
the Constitution. Id. at 692.
     The Strickland Court reasoned that such a limited
presumption is necessary on the grounds that:

     it is difficult to measure the precise effect on the
     defense of representation corrupted by conflicting
     interests. Given the obligation of counsel to avoid
     conflicts of interest and the ability of trial courts
     to make early inquiry in certain situations likely to
     give rise to conflicts, . . . it is reasonable for the
     criminal justice system to maintain a fairly rigid rule
     of presumed prejudice for conflicts of interest.

Strickland, 466 U.S. at 692.

                                     13
completely free from his own necessity of avoiding incrimination,

sanctions or even disbarment. The Government on direct examination

asked Vasquez whether he had met with Greig and Greig's attorney

without his lawyer being present.       On redirect, the Government

similarly questioned Vasquez about whether Greig and Greig's lawyer

tried to convince him to abandon his guilty plea and not testify

against Greig.     Uninterrupted by objection from Greig's counsel,

Vasquez responded yes.     Moreover, Greig's counsel made no attempt

on cross-examination to counter Vasquez' testimony.     On recross,

instead of attempting to in some way diminish the unfavorable

testimony against his client, counsel immediately covered his own

tracks:

Q [Greig's Counsel] And so I never went ahead and -- and told you
or intimidated you or harassed you in any way, did I, sir?

A [Vasquez]     No, sir.

Q    In fact, if anything, I told you, "Perhaps your attorney
doesn't know about this tape, go play it to him and discuss it with
him," correct?

A    Correct.

Q    And isn't it true that I also told you that I could not go
ahead and represent you because I was representing Mr. Greig,
correct?

A    Correct.

Q    And you asked me that if in fact you chose to switch to
another lawyer, if I could recommend one, and I said, "Well, I can
recommend a friend of mine, Mr. Cantu," correct?

A    Correct.

     Regardless of the truthfulness or untruthfulness of Vasquez'

answers, it is plainly obvious to this court that Greig's counsel

was preoccupied with conducting his own defense.    We cannot ignore

                                  14
the fact that all of this could have been easily avoided by the

court conducting a Garcia hearing to ensure that Greig was fully

informed of his counsel's conflict.

     Though the disciplinary proceeding was held at the end of

Greig's   trial   while   the   jury     was   deliberating,   counsel's

representation of Greig at the proceeding further demonstrates

counsel's preoccupation.    After first questioning Vasquez, counsel

called his client Greig to the stand to testify about their

meetings with Vasquez:


     Q [Counsel] Did I ever tell him that his lawyer wasn't
     doing a good job?

     A [Greig]    I can't say I didn't say that.

     Q    Did you say that, Mr. Greig?

     A    I -- yes.

     Q    You're under oath.

     A    More than once.

     Q    You're the gentleman that told him to go ahead and
     switch lawyers?

     A    Yes....

                            *   *        *

     Q    And on -- on the second occasion, sir,... you were
     the one that drove me by his place of business, isn't
     that correct?

     A    Right....

                            *   *        *

     A    ...And I admit that I -- I tracked him down because
     I wanted to hear what Gary [Vasquez' counsel] had to say,
     what his defense was and what he was going to do....

     Q    But I never told you to call Mr. Vasquez?

                                    15
     A    No, never.

When Greig finally on his own attempted to defend his actions in

meeting with Vasquez, counsel quickly squelched Greig's explanation

in terms which put the blame on Greig:

     A [Greig]   ...I just wanted to make sure that Ernest
     [Vasquez] got all the facts, cut and dried, that's all he
     -- I ever wanted him to do, was be able to obtain all the
     facts to what was going on...I had nothing to do with
     trying to persuade him, to protect myself.

     Q [Counsel] I understand that, sir. I understand. I'm
     not trying to     -- to -- tell you that that's not
     important, but the issue is this: Those two meetings
     that we had, the Court is concerned with that. Did I
     initiate us meeting with Mr. Vasquez in either of those
     occasions?

     A    No.

     Q    In fact, the first time, I didn't know that he was
     going to go ahead and show up, did I?

     A    No.

     Q    And the second time, you didn't tell me even that
     you had called him, that we were on our way over there,
     you just drove me over there, didn't you? In fact, isn't
     it true that you made me miss my 5:00 o'clock flight?

     A    That's right.

     Q    So, when you went ahead and called Mr. Vasquez, it
     wasn't because I requested you to do so, correct?

     A    Correct.

Lastly, Government counsel cross-examined Greig at the disciplinary

proceeding.     The following exchange is evident of what counsel

should have done in the first place:

     Q [Government Counsel]    Were you concerned with Mr.
     Vasquez's welfare or were you more interested in
     preventing or prohibiting him or discouraging him from
     testifying against you?

     A [Greig]    No, sir....

                                 16
     [Greig's Counsel] Excuse me. I'm going to object to
     this line of questioning. It's clearly outside the scope
     of what we're here for. The issue is --

     THE COURT:    It's not at all outside the scope, Mr.
     Medrano [Greig's counsel]. You may want to advise your
     client concerning the Fifth Amendment -- that would be
     another thing entirely -- but it's certainly not outside
     the scope of your questioning of him.

     [Greig's Counsel] I will go ahead and advise my client,
     at this time, to go ahead and -- and not answer any
     questions concerning the motives or reasons why you went
     ahead and had conversations with Mr. Vasquez.

     Counsel's advice to Greig to plead the Fifth Amendment,

prompted incidentally by the judge, came way too late. Although we

certainly recognize that the entire purpose of the disciplinary

proceeding was to permit Greig's counsel to defend his own conduct,

he, on the other hand, may not do it at his client's expense.

Greig's counsel failed in his duty both to protect and advance his

client's interest.   As is clearly indicated by the exchange at the

disciplinary proceeding, Greig was required more than once by his

counsel's questions to implicate himself, while exonerating his

counsel.   Crucial to our determination that counsel's conflict

adversely affected his client is the fact that the above testimony

at the disciplinary proceeding occurred before the sentencing

hearing.   Even though the trial judge delayed ruling on counsel's

disciplinary matter until after Greig's sentencing hearing, we

still are left with no choice but to conclude that this whole

incident had a detrimental effect on Greig's defense.   Even though

counsel fully objected at the sentencing hearing to the court's

obstruction of justice enhancement, this was too little too late.

We repeat that this is something which an experienced trial judge

                                17
should and       would   anticipate    occurring     so   that   a   knowing   and

intelligent waiver can then be made by following the procedures

under Garcia.

      Our inquiry ends here.        We conclude that the district court's

failure to hold a Garcia hearing after learning counsel had an

actual conflict of interest, which later adversely affected his

performance, entitles Greig to a new trial.19                Any other course

would simply not do justice.                If we were to remand only for

resentencing and enable Greig to find another lawyer, as the

parties suggest, the same result would be inevitable, since most of

the damage had already been done at the trial level and at the

disciplinary proceeding.         Even a different sentencing judge could

not   erase      the   harm   caused   at    trial   by   counsel's    conflict.

Accordingly, we reverse Greig's conviction and remand to the

district court for a new trial.



           II.    Hanley:     Jury Instruction More than Adequate

      Co-defendant Hanley's defense at trial was that he had a good

faith belief that he was acting as a government informant, and thus

did not possess the requisite criminal intent to support his

conviction.       His attack here is on the court's failure to give a

"good faith" instruction.20         He urges that the court's instruction

      19
      Because we find in fact no waiver, we need not discuss
whether the conflict in Greig's case was unwaivable. See
Plewniak, 947 F.2d at 1288-89, where we question whether certain
conflict of interests are unwaivable.
      20
      Hanley's defense goes as follows: Approximately three
months before the drug deal in the instant case, United States

                                        18
was insufficient to convey his good faith defense:

     You may consider evidence that Defendant Craig Hanley
     was, or in good faith believed himself to be, a
     government informant in determining whether he had the
     requisite intent to become a conspirator.

Specifically, Hanley argues that the jury was wrongfully permitted

to consider his good-faith belief defense only as one factor in

determining whether he intended to conspire.   Instead, he contends

that his good faith defense should have been conclusive on the

issue of intent and that the following proposed jury instruction

should have been granted:

     Our law provides that a person does not have the criminal
     intent required for conviction if he acts as government
     informant or in the honest, good-faith belief that he is
     a government informant.

     A district court's refusal to include a defendant's proposed

jury instruction is reviewed under an abuse of discretion standard,

and the trial court is afforded substantial latitude in formulating

its instructions.   United States v. St. Gelais, 952 F.2d 90, 93

(5th Cir. 1992); United States v. Rochester, 898 F.2d 971, 978 (5th

Cir. 1990).

     In determining whether the court abused its discretion, we


Customs Agent Walter Tylenda stopped an airplane on which Hanley
was a passenger. Tylenda suspected that the airplane was
transporting drugs into Mexico. Hanley and the owner of the
plane consented to a search, but no drugs were found. Tylenda
then gave his business card to Hanley and requested that Hanley
notify him if he became aware of any drugs being transported
across the Mexican border.
     Hanley acknowledged at trial that he was not to take any
action as informant before contacting Tylenda or another customs
agent. In fact, about two weeks prior to the instant
transaction, Hanley contacted Tylenda and informed him of a
possible drug smuggling transaction in Presidio, Texas.


                                19
must determine whether the requested instruction (1) is a correct

statement of the law; (2) was substantially given in the charge as

a whole; and (3) concerns an important aspect of the trial so that

the failure to give it seriously impaired the defendant's ability

to effectively present a given defense.   United States v. Daniel,

957 F.2d 162, 170 (5th Cir. 1992); St. Gelais, 952 F.2d at 93;

Rochester, 898 F.2d at 978.

     In United States v. Welch, 810 F.2d 485 (5th Cir. 1987), the

defendant requested that the trial court give an instruction almost

identical to the one requested by Hanley.21    Reviewing for plain

error, we concluded that the charge, read as a whole, sufficiently

suggested to the jury that they must find specific intent before

the defendants could be convicted.

     In the recent case of United States v. Daniel, 957 F.2d at

170, the defendant also requested an instruction on good faith.

Because the jury was properly instructed on the elements of the

offense, including the requisite mental state, we held that a good

faith instruction was not necessary.22


     21
      The Welch defendants were also facing conspiracy charges,
and requested the following charge:

     You may consider whether or not the defendants or
     either of them were cooperating with the F.B.I. with
     regard to the specific offense charge in the indictment
     in determining whether the defendants possessed the
     intent necessary to commit the crime charged.
     22
      See also United States v. Luffred, 911 f.2d 1011, 1016
(5th Cir. 1990) and United States v. Gunter, 876 F.2d 1113, 1119-
20 (5th Cir. 1989), holding that a good faith instruction was not
required where the jury was properly instructed on the requisite
mental states.

                                20
     Similarly,       the   trial   court   in   this   case   gave    more   than

adequate instructions on the specific intent terms of "knowingly"

and "willfully".23      Hanley was also given full latitude to testify

concerning his good faith and to argue good faith to the jury.

Accordingly,     we   hold   that   taken   as   a   whole,    the    good    faith

instruction to the jury was adequate.24

     In conclusion, we reverse Greig's conviction and remand for a

new trial, and affirm Hanley's conviction and sentence.


AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




     23
          The court instructed the jury as follows:

     The word "knowingly" as that term has been used from
     time to time in these instructions, means that the act
     was done voluntarily and intentionally, not because of
     mistake or accident.

     The word "willfully" as that term has been used from
     time to time in these instructions, means that the act
     was committed voluntarily and purposely, with the
     specific intent to do something the law forbids; that
     is to say, with bad purpose either to disobey or
     disregard the law.
     24
      In any event, Hanley's proposed instruction is probably
not a correct statement of the law, as the district court so
concluded. We agree with the lower court that a defendant might
have a good faith belief that he was acting as government
informant and still commit a crime with the requisite intent.

                                       21
