           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0028P (6th Cir.)
                    File Name: 00a0028p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 UNITED STATES OF AMERICA,
                              
           Plaintiff-Appellee,
                              
                              
                                             Nos. 98-5936/5937
          v.
                              
                               >
 STANLEY HALL (98-5936);      
                              
      Defendants-Appellants. 
 REX HALL (98-5937),

                              
                             1

          Appeal from the United States District Court
        for the Eastern District of Kentucky at Lexington.
         No. 98-00007—Karl S. Forester, District Judge.
          Argued and Submitted: November 4, 1999
              Decided and Filed: January 19, 2000
 Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
           Judge; KATZ, District Judge.*




    *
     The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
2    United States v. Hall, et al.        Nos. 98-5936/5937

                   _________________
                        COUNSEL
ARGUED: William K. Fulmer II, Erlanger, Kentucky, for
Appellant. Charles P. Wisdom, Jr., OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: William K. Fulmer II, Erlanger, Kentucky,
Dean A. Pisacano, HELLINGS & PISACANO, Covington,
Kentucky, for Appellant. Charles P. Wisdom, Jr., OFFICE
OF THE U.S. ATTORNEY, Lexington, Kentucky, for
Appellees.
                   _________________
                       OPINION
                   _________________
  BOYCE F. MARTIN, JR., Chief Judge. This is a case
where two brothers, Rex and Stanley Hall, were poorly served
by one attorney, David Van Horn. The younger brother,
Stanley Hall, was obviously led astray by his older brother.
Even though both Rex and Stanley Hall waived their rights to
separate counsel, this is one of the unusual cases where the
court should have stepped in to ensure an adequate legal
defense for Stanley Hall.
  Rex and Stanley Hall appeal their convictions of conspiracy
to possess with intent to distribute marijuana and cocaine in
violation of 21 U.S.C § 846 and possession with intent to
distribute marijuana and cocaine in violation of 21 U.S.C.
§ 841(a)(1). Rex Hall claims his Sixth Amendment rights
were violated when the district court denied his request for a
continuance. Stanley Hall claims he received ineffective
assistance of counsel because Van Horn’s dual representation
constituted a conflict of interest in violation of the Sixth
Amendment. We affirm Rex Hall’s conviction. We reverse
Stanley Hall’s conviction and remand for a new trial.
  On December 10, 1997, the Kansas Highway Patrol stopped
a motor home driven by Howard Graham for a traffic
10   United States v. Hall, et al.      Nos. 98-5936/5937     Nos. 98-5936/5937            United States v. Hall, et al.    3

                             III.                             violation. Inside the motor home the officers found 135
                                                              pounds of marijuana. Graham claimed he had been paid to
  We AFFIRM the judgment as to Rex Hall. We REVERSE           drive the motor home to Kentucky where he would call Fred
the judgment as to Stanley Hall and REMAND for a new trial.   Thornton and receive further instructions. Graham agreed to
                                                              work with the officers and contacted Thornton, who
                                                              instructed him to go to a rest area to exchange vehicles. At
                                                              the rest area, Graham switched vehicles with Rex and Stanley
                                                              Hall. Officers followed the Halls to a farm where the Halls
                                                              removed the marijuana. When the officers approached the
                                                              farm, Stanley Hall fled on foot but was apprehended shortly
                                                              thereafter. A search of the farm and house, which was leased
                                                              by Rex Hall, revealed an additional 190 pounds of marijuana,
                                                              5 kilograms of cocaine, and cash in a safe.
                                                                 From the beginning of the proceedings both Rex and
                                                              Stanley Hall were represented by David Van Horn. The
                                                              district court, on multiple occasions, informed the Halls that
                                                              dual representation could result in a conflict of interest. Both
                                                              Halls elected to continue with the same counsel. The United
                                                              States petitioned the court for a hearing on the joint
                                                              representation conflict issue. The United States advised the
                                                              court of several areas where potential conflicts existed
                                                              including unsuccessful attempts to negotiate plea agreements,
                                                              the defense’s failure to request discovery, the potential
                                                              conflict of defenses, and the disparity in sentences sought for
                                                              the two defendants. The court conducted a hearing the day
                                                              before trial at which time Van Horn stated that if he was not
                                                              allowed to represent both Halls, he wished to continue
                                                              representing Rex Hall, for whom he had been counsel for
                                                              years. Stanley Hall again elected to continue with Van Horn,
                                                              but the record remains cloudy as to whether Stanley
                                                              understood the full ramifications of what he was doing.
                                                              Stanley Hall stated that he was “being advised by Van Horn,
                                                              my lawyer, and I’ll do whatever he advises me to do. . . . ”
                                                              The judge endorsed his decision by stating that “Mr. Van
                                                              Horn is a very capable and a very good lawyer and he
                                                              wouldn’t be here if he didn’t think he could represent both of
                                                              you adequately because I’ve known him for a long time. . . .”
4    United States v. Hall, et al.        Nos. 98-5936/5937      Nos. 98-5936/5937             United States v. Hall, et al.      9

  At trial Rex Hall asserted a public authority defense,         drug conspiracy, a poorly phrased question to which Van
claiming that he was operating as an informant for the           Horn did not object. Neither side elaborated as to whether
government. Multiple government officials and law officers       Stanley Hall’s admission included the cocaine, just the
testified that while Rex had been an informant in the past, he   marijuana or something else relating to the charge. During
was no longer working as an informant. Stanley testified he      deliberations, the jury submitted a question to the court
thought that his brother was an informant and that he was        regarding Stanley Hall’s role in the conspiracy:
assisting in an undercover operation. The day before the
close of the trial, Rex requested a continuance to obtain the      HELP. Both the prosecuting and defense attorneys
presence of three witnesses who never testified. The judge         stressed that Rex and Stanley were admitting guilt to
granted his request until the beginning of the next day. Rex       both the marijuana and cocaine. We cannot remember
failed to mention the witnesses again.                             direct evidence linking Stanley to the cocaine. Can the
                                                                   attorneys admitting full knowledge of both clients’
  The jury convicted Rex and Stanley Hall of conspiracy to         knowledge serve as direct evidence or the lack of
possess with the intent to distribute marijuana and cocaine        innocence not expressed by Stanley or Stanley’s attorney
and possession with intent to distribute marijuana and             serve as evidence? If there is any testimony under oath
cocaine. The court sentenced Rex Hall to life imprisonment         by Stanley or anyone else that provides a link, we would
and Stanley Hall to imprisonment for 10 years and one month.       appreciate it.
The conviction was Rex Hall’s third and Stanley Hall’s first.
Both defendants made motions of acquittal to the trial court       The obvious confusion on the part of the jury and the lack
that were denied.                                                of evidence should have indicated to the court not only that an
                                                                 actual conflict of interest existed, but also that the conflict had
                              I.                                 prejudiced Stanley Hall’s defense. As stated in Wheat v.
                                                                 United States, 486 U.S. 153, 160 (1988):
   Rex Hall argues that the district court violated his Sixth
Amendment rights by improperly denying him a continuance           Federal courts have an independent interest in ensuring
to secure the presence of three witnesses. The district court      that criminal trials are conducted within the ethical
never addressed this claim because it was never properly           standards of the profession and that legal proceedings
made. “Constitutional objections ‘that appear for the first        appear fair to all who observe them . . . . Not only the
time on appeal are conclusively deemed to be waived, with          interest of a criminal defendant but the institutional
the effect that [the appellate court is] deprived of               interest in the rendition of just verdicts in criminal cases
jurisdiction.’” United States v. Scarborough, 43 F.3d 1021,        may be jeopardized by unregulated multiple
1025 (6th Cir. 1994) (quoting United States v. Crismon, 905        representation.
F.2d 966, 969 (6th Cir.1990)). When Rex requested time to
secure the missing witnesses, the court allowed him until the    Because counsel was unable to vigorously represent both
next day. The next day, Rex never mentioned the witnesses        Stanley and Rex Hall, Stanley Hall has shown that an actual
and failed to request further time to secure their presence.     conflict of interest existed at trial such that the trial judge
Because Rex did not raise his Sixth Amendment claim at any       should have intervened and at that stage severed the case
time during the district court proceedings, he has waived his    against Stanley Hall.
right to object and thus we cannot entertain this claim on
appeal.
8      United States v. Hall, et al.        Nos. 98-5936/5937       Nos. 98-5936/5937            United States v. Hall, et al.    5

435 U.S. 475, 490 (1978) (finding that dual representation             Even if Rex Hall had properly made a motion to the district
may prevent an attorney “from exploring possible plea               court for a continuance, he has failed to show why a
negotiations and the possibility of an agreement to testify for     continuance should have been granted. The standard of
the prosecution”). Van Horn failed to fully represent each          review for a district court’s denial of a motion for continuance
defendant’s interests, resulting in an actual conflict. While it    is abuse of discretion. See United States v. King, 127 F.3d
was in Rex Hall’s best interest to go to trial, it clearly was in   483, 486 (6th Cir. 1997). A constitutional violation occurs
Stanley Hall’s interest to plead. Stanley Hall had no previous      only if the denial was an unreasonable and arbitrary
record and the plea agreement was a good one.                       “insistence upon expeditiousness in the face of a justifiable
                                                                    request for delay.…[T]he defendant must show that the denial
  We have held that a conflict of interest alone is not             resulted in actual prejudice in his defense.” Id. at 487
sufficient to justify reversal of a conviction. See Foltz, 818      (citations omitted). Actual prejudice requires proof that the
F.2d at 480. Counsel’s performance must have been                   continuance would have provided relevant witnesses or
adversely affected by the conflict. See id. Inherent in the         contributed to the defense. See id. Rex failed to show actual
Sixth Amendment right to counsel is the right to reasonably         prejudice. In contrast, Rex Hall’s attorney stated at trial that
competent counsel and the right to counsel’s undivided              two of the desired witnesses had nothing to do with the case
loyalty. See Strickland, 466 U.S. at 692. In Holloway v.            and that the third witness’s testimony would only be
Arkansas, 435 U.S. 475, 489-90 (1978), the Court stated:            cumulative. Absent proof that any of the witnesses would
                                                                    have been of some benefit, Rex’s claim must fail and with it
    Joint representation of conflicting interests is suspect        his defense.
    because of what it tends to prevent the attorney from
    doing.... [A] conflict may . . . prevent an attorney from                                     II.
    challenging the admission of evidence prejudicial to one
    client but perhaps favorable to another, or from arguing          Stanley Hall asserts his Sixth Amendment rights were
    at the sentencing hearing the relative involvement and          violated because Van Horn’s dual representation resulted in
    culpability of his clients in order to minimize the             a conflict of interest. While Stanley made a motion of
    culpability of one by emphasizing that of another.              acquittal to the district court, he failed to address the
                                                                    ineffective assistance of counsel claim in the district court
  When they finally went to trial, Van Horn’s loyalty was           through a habeas corpus motion. Claims of ineffective
obviously divided as to trial strategy. He concentrated only        assistance of counsel usually must be addressed first by the
on Rex Hall and his public authority defense. Van Horn              district court pursuant to a motion under 28 U.S.C. § 2255.
never questioned Stanley Hall about his connection to the           See United States v. Fortson, 194 F.3d 730, 736 (6th Cir.
cocaine found inside of Rex Hall’s home; rather he addressed        1999). As a general rule, this Court will not review claims of
only whether Stanley Hall believed his brother was acting as        ineffective assistance of counsel for the first time on direct
an informant. Furthermore, he never questioned Rex Hall             appeal. See United States v. Thomas, 74 F.3d 701, 715 (6th
about Stanley’s connection to any of the drugs. No evidence         Cir. 1996). An exception exists, however, when the record is
was presented in the United States’s direct case demonstrating      adequately developed to allow this Court to assess the merits
that Stanley Hall had any connection to the cocaine. The only       of the issue. See id. In this case, the district court addressed
evidence linking Stanley Hall to the cocaine was his                the issue of dual representation several times, including at a
affirmative answer to the United States’s question on cross-        hearing requested by the prosecutor. Because we are
examination whether he was admitting to involvement in the          addressing Stanley’s Sixth Amendment claim based on
6    United States v. Hall, et al.        Nos. 98-5936/5937       Nos. 98-5936/5937            United States v. Hall, et al.       7

ineffective assistance resulting from dual representation, the    Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1985)). Thus,
record is complete and allows us to review this issue de novo.    while the rule is rigid, it is not a per se rule. See id.
See id.
                                                                    In Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987), this
  Stanley Hall alleges that Van Horn’s dual representation        Court adopted the standard set forth in United States v. Mers,
violated his Sixth Amendment rights. Dual representation,         701 F.2d 1321, 1328 (11th Cir. 1983), to determine whether
however, does not automatically constitute a Sixth                an actual conflict of interest exists:
Amendment violation. See Thomas v. Foltz, 818 F.2d 476,
482 (6th Cir. 1987). A defendant may waive any potential            We will not find an actual conflict unless appellants can
conflicts of interest and elect to continue with dual               point to “specific instances in the record to suggest an
representation. See United States v. Reese, 699 F.2d 803, 804       actual conflict or impairment of their interests.” . . .
(6th Cir. 1983). This waiver, however, does not bind the            Appellants must make a factual showing of inconsistent
courts. The purpose of the Sixth Amendment “is to guarantee         interests and must demonstrate that the attorney “made a
an effective advocate for each criminal defendant rather than       choice between possible alternative courses of action,
to ensure that a defendant will inexorably be represented by        such as eliciting (or failing to elicit) evidence helpful to
the lawyer whom he prefers.” Wheat v. United States, 486            one client but harmful to the other. If he did not make
U.S. 153, 159 (1988). While “[t]he District Court must              such a choice, the conflict remained hypothetical.” . . .
recognize a presumption in favor of petitioner's counsel of         There is no violation where the conflict is “irrelevant or
choice, . . . that presumption may be overcome not only by a        merely hypothetical”; there must be an “actual significant
demonstration of actual conflict but by a showing of a serious      conflict.”
potential for conflict.” Id. at 164.
                                                                    A conflict of interest was evident in Stanley Hall’s case by
  To analyze ineffective assistance of counsel claims, this       Van Horn’s failure to successfully negotiate a plea agreement.
Court applies the two-pronged standard in Strickland v.           Prior to trial, the Halls each entered into plea agreements
Washington, 466 U.S. 668 (1984). Under Strickland, a              which were signed but withdrawn at the last moment. Under
defendant must show that (1) his counsel’s performance was        the plea agreement, Rex Hall would have received a life
deficient, and (2) this performance prejudiced the defense        sentence with the option of earning a motion pursuant to
thereby depriving the defendant of a fair trial. See Foltz, 818   U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), and Stanley Hall
F.2d at 480.                                                      would have pled to between three years and ten months and
                                                                  four years and nine months rather than receiving the
   Conflict of interest cases involve a slightly different        mandatory minimum sentence of ten years. Because this was
standard than that used in traditional ineffectiveness claims.    Stanley Hall’s first conviction and Rex Hall’s third, the
See id. Where there is a conflict of interest, “counsel           sentences were exorbitantly unequal. This Court recognized
breaches the duty of loyalty, perhaps the most basic of           in Foltz, 818 F.2d at 481, the potential problems created by
counsel’s duties.” Strickland, 466 U.S. at 692. Thus, when        dual representation in connection with plea negotiations. In
an actual conflict of interest exists, prejudice is presumed.     Foltz, the attorney was prevented from effectively engaging
See id. Prejudice is presumed, however, “only if the              in any separate plea negotiations on one party’s behalf
defendant demonstrates that counsel ‘actively represented         without detrimentally affecting the co-defendants. See id. at
conflicting interests’ and that ‘an actual conflict of interest   481-82. Foregoing plea negotiations is proof of an actual
adversely affected his lawyer’s performance.’” Id. (quoting       conflict of interest. See id.; see also Holloway v. Arkansas,
