                                __________

                                 95-3001
                                __________

United States of America,            *
                                     *
     Appellee,                       *
                                     *  Appeal from the United States
     v.                              *  District Court for the
                                     *  Eastern District of Missouri.
Raymond H. Flynn,                    *
                                     *
     Appellant.                      *
                                __________

                         Submitted:   April 9, 1996

                             Filed:    July 1, 1996
                                 __________

Before BEAM and MURPHY, Circuit Judges, and BURNS,* District Judge.
                               __________


MURPHY, Circuit Judge.


     Raymond H. Flynn appeals from the denial by the district court1 of
his motion under 28 U.S.C. § 2255 to vacate, correct, or set aside his
sentence.   He asks for "all relief to which he may be entitled" or a new
trial based on unconstitutional jury instructions, ineffective assistance
of counsel, and the nondisclosure of certain exculpatory evidence.      We
affirm.


     Flynn was indicted for participating in an organization directed by
Paul Leisure which was charged with committing several




     *
      The HONORABLE JAMES M. BURNS, United States District
     Judge for the District of Oregon, sitting by
     designation.
     1
      The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
violent crimes in order to maintain control of certain labor unions and to
retaliate against rival groups.   According to the indictment, these crimes
included the car bomb murders of Paul Spica and George "Sonny" Faheen and
a conspiracy to murder James Anthony Michaels III and others.


     Following a jury trial in 1987, Flynn was convicted of racketeering
under the Racketeer Influenced and Corrupt Organizations (RICO) statute,
18 U.S.C. § 1962(c), conspiring to violate RICO, 18 U.S.C. § 1962(d), and
illegally using explosives and transporting them interstate, 18 U.S.C.
§ 844(d).   He was sentenced to twenty years imprisonment for racketeering,
twenty years concurrently for conspiracy, and forty-five years concurrently
on the explosives count.   The convictions on the RICO and conspiracy counts
were affirmed, but that on the explosives count was reversed because of
insufficient evidence of interstate transportation.       United States v.
Flynn, 852 F.2d 1045 (8th Cir.), cert. denied, 488 U.S. 974 (1988).


     On his § 2255 motion, Flynn argued that his due process rights were
violated by errors in the jury instructions, that he was denied effective
assistance of trial and appellate counsel, that he should have had a
hearing in the trial court on whether his counsel had a conflict of
interest, that the prosecution failed to disclose Brady material, and that
telephone conversations and electronic surveillance were improperly sealed.
Following an evidentiary hearing and a report and recommendation denying
relief, the district court adopted the report and ordered that Flynn's
§ 2255 motion be denied.      Flynn renews the majority of his claims on
appeal, as set forth in detail below.


                                   I.


     Flynn argues that jury instructions for Count I were unconstitutional
because they did not require the jury to make a




                                        2
unanimous finding as to the two predicate acts necessary for a RICO
violation.     According to Flynn, the complexity of his case rendered it
highly probable that the jury did not find beyond a reasonable doubt every
element necessary to constitute a RICO violation, as required by the Fifth
Amendment due process clause.      See Cupp v. Naughten, 414 U.S. 141, 148
(1973).   He also contends that it was entirely probable that the jury did
not unanimously agree on the predicate acts Flynn committed, which violated
his Sixth Amendment right to a unanimous jury verdict.    See Andres v. U.S.,
333 U.S. 740, 748 (1948) (jury unanimity constitutionally required for a
guilty verdict in federal criminal cases); Johnson v. Louisiana, 406 U.S.
356, 371 (1972) (Powell, J., concurring); United States v. Eagle Elk, 820
F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867 (1987).


     Since Flynn did not challenge the instructions at trial or on direct
appeal, he may not obtain collateral relief unless he shows both cause
excusing his double procedural default and actual prejudice.    United States
v. Frady, 456 U.S. 152, 168 (1982).        A court need not determine whether
cause has been established if the defendant has failed to demonstrate
actual prejudice.    Id.


     Actual prejudice can be shown if the challenged instruction "so
infected the entire trial that the resulting conviction violates due
process."    Id. at 169.   An instruction that is undesirable, erroneous, or
even universally condemned is not sufficient reason for relief.       Id.   A
defendant must show that the instructional error actually and substantially
disadvantaged his entire trial, not merely that it created a possibility
of prejudice.     Id. at 170.     The adequacy of the instructions must be
evaluated as a whole.      Id. at 169; United States v. Butler, 56 F.3d 941,
945 (8th Cir.), cert. denied, 116 S.Ct. 322 (1995).


     Count I charged Flynn with committing three predicate acts in
violation of RICO:    (1) conspiracy to murder, and the murder, of




                                       3
John Paul Spica; (2) conspiracy to murder James Anthony Michaels III and
others; and (3) conspiracy to murder, and the murder, of George "Sonny"
Faheen.   In order to convict Flynn on this count, the government had to
prove that he participated, either directly or indirectly, in an enterprise
affecting interstate commerce through a pattern of racketeering activity
involving two or more predicate acts.    18 U.S.C. §§ 1961(5) and 1962(c);
United States v. Ellison, 793 F.2d 942, 949-50 (8th Cir.), cert. denied,
479 U.S. 937 (1986).    The government also had to prove that the charged
predicate acts were related to the affairs of the enterprise and were of
an ongoing and continuous nature.    Id. at 950.


     Several instructions covered key RICO provisions.       Instruction 20
stated that in order to establish a RICO violation, five essential elements
must be established beyond a reasonable doubt, including commission of, or
aiding and abetting, at least two acts of racketeering activity as alleged
in Count I.   Instruction 25 told the jurors that they must find beyond a
reasonable doubt that Flynn committed a particular racketeering act and
"must be unanimous in [their] decision whether he did so by conspiracy to
murder, by murder, or by both."   It also instructed that if Flynn committed
such an act both by conspiracy to murder and murder, it would count as only
one racketeering act.   Finally, Instruction 29 required the jury to find
beyond a reasonable doubt that Flynn


     committed or aided and abetted in the commission of at least two of
     the predicate acts set out in Count I and you must unanimously agree
     that at least two of the predicate acts were committed by that
     defendant.



     Regardless of whether Flynn could establish cause to excuse his
procedural default,2 he has not shown a substantial likelihood




     2
      Flynn's argument for cause is that his counsel was
ineffective in not objecting to the instructions at trial or
challenging them on appeal. His substantive claim for
ineffective assistance of
counsel in regard to the jury instructions is discussed in the
next section.

                                     4
that the challenged jury instructions actually prejudiced him at trial.
See Frady, 456 U.S. at 174.    In accordance with the Fifth Amendment, the
jury was instructed it could convict Flynn of violating RICO only if it
found beyond a reasonable doubt every element of the offense, including the
commission of at least two predicate acts.   See Cupp, 414 U.S. at 148.   The
jury was also instructed that it "must be unanimous in its decision" that
Flynn committed a predicate act and "unanimously agree that at least two
of the predicate acts" in Count I were committed by Flynn.       Although it
would have been desirable if the instructions had in addition stated that
the jury must be "unanimous as to which acts" it believed the defendant had
committed, see, e.g., Devitt, Blackmar and O'Mally, Federal Practice and
Jury Instructions § 48.06, the mere possibility that the jurors might not
have unanimously agreed on the particular acts Flynn committed does not
violate the Sixth Amendment.   See Eagle Elk, 820 F.2d at 961.   When viewed
as a whole, the instructions were not incorrect or misleading.    See Frady,
456 U.S. at 169; Butler, 56 F.3d at 945; see also Flynn, 852 F.2d at 1052
(jury had been "properly instructed" as to both RICO counts against Flynn).


     Moreover, Flynn has not shown that he is innocent of the RICO
violation and that a fundamental miscarriage of justice would result from
his conviction.   See Frady, 456 U.S. at 172; Flynn, 852 F.2d at 1052-54
(there was "no reason to believe" that Flynn was convicted for crimes in
which he did not participate).    Since Flynn has failed to show that the
instructions infected "his entire trial with error of constitutional
dimensions," the district court properly denied him relief on this claim.
Frady, 456 U.S. at 170.




                                     5
                                             II.


       Flynn    also    raises    several    claims       of   ineffective     assistance    of
counsel.       In order to succeed on these claims, Flynn must show his
counsel's      performance       was   professionally          unreasonable,    and   also   a
"reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."                           Strickland v.
Washington, 466 U.S. 668, 691, 694 (1984).                       If Flynn fails to prove
unreasonable performance, then the prejudice prong need not be considered,
and vice versa.        Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir. 1988),
cert. denied, 488 U.S. 1019 (1989).


       In reviewing counsel's performance, there is a strong presumption
that   all     significant       decisions      fell      within    "the   wide    range     of
professionally competent assistance."                Strickland, 466 U.S. at 689.           The
correct inquiry is not whether counsel's decision was correct or wise, but
whether it "was an unreasonable one which only an incompetent attorney
would adopt" considering all the circumstances.                 Stokes, 851 F.2d at 1092.
Prejudice, for purposes of an ineffective assistance of counsel claim,
means that "one's confidence in the outcome of the trial is undermined."
Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).


       Flynn    bases    his   first    claim       of   ineffective   assistance     on    his
counsel's failure to object to the jury instructions at trial or raise the
issue on direct appeal.          As discussed previously, the jury instructions did
not violate Flynn's due process rights or the Sixth Amendment unanimity
requirement.     The instructions, taken as a whole, were not incorrect.                    His
counsel's actions in regard to these instructions were therefore not
objectively unreasonable or prejudicial under the Sixth Amendment.                          See
Strickland, 466 U.S. at 697.


       Flynn next contends that his trial attorney's prior




                                                6
representation of a government witness named Jesse Stoneking created a
conflict of interest.    Flynn points out that his attorney had represented
Stoneking in the past and did not touch on his criminal history when cross
examining him.    Flynn also contends that the trial court inadequately
inquired about the possibility of a conflict of interest.


     Counsel breaches the duty of loyalty to a client when burdened with
an actual conflict of interest.      Id. at 692.   Prejudice is presumed if a
defendant demonstrates that counsel "actively represented conflicting
interests" and that "an actual conflict of interest adversely affected his
lawyer's performance."    Id., citing Cuyler v. Sullivan, 446 U.S. 335, 350
(1980).   In determining whether a conflict of interest exists, substantial
weight is given to defense counsel's representations.        United States v.
Agosto, 675 F.2d 965, 972 (8th Cir. 1982).


     The mere fact that a trial lawyer had previously represented a
prosecution witness does not entitle a defendant to relief.      Simmons, 915
F.2d at 378.   The defendant must show that this successive representation
had some actual and demonstrable adverse effect on the case, not merely an
abstract or theoretical one.   Id.   An example may be where counsel's cross-
examination of a former client is impeded for fear of misusing confidential
information.   Agosto, 675 F.2d at 971.


     A trial court has flexibility in making the difficult assessment of
the potential for conflict.    Id. at 970.   There is no affirmative duty to
hold a hearing on the possibility of conflicts in all cases of successive
representation.   Id. at 970 n.3.     Rather, "the chosen method for dealing
with a potential conflict, in the absence of an acceptable waiver, is the
one which will alleviate the effects of the conflict while interfering the
least with defendant's choice of counsel."     Id. at 970.




                                       7
     The record does not support Flynn's claim that his lawyer's previous
representation of Stoneking actually and adversely affected his defense.
The lawyer had not represented Stoneking for some years prior to Flynn's
trial in 1987,3 and there is no indication that he had useful information
not employed in cross-examination.       See id. at 972.     Substantial weight
must also be accorded the attorney's representations.        Id.   When asked by
the trial judge if he had worked out the Stoneking problem, he had
responded that the situation had been "neutralized."         In his affidavit,4
the attorney also stated he had "felt no inhibitions" in cross-examining
Stoneking, that he "had no conflict of interest at the time of [his]
representation of Mr. Flynn, and that at no time was [his] complete and
utmost representation of Mr. Flynn obstructed, restricted, or constrained
by [his] prior representations of Mr. Stoneking."


     The attorney's statements are supported by examination of his cross-
examination    of   Stoneking   about   the   government's   payments   for   his
cooperation.   It is unlikely that further attempts to discredit Stoneking
using his criminal record would have made a difference. Stoneking was one
of some sixty government witnesses during a three week trial, and his
fifteen minute testimony on direct examination was only one piece of
evidence implicating Flynn in the




     3
      He had represented Stoneking when he was arrested for
murder in the late 1970's; Stoneking was never charged and was
released after five hours. He had also represented Stoneking on
a double murder charge, which resulted in a manslaughter
conviction, and on Dyer Act violations, for which Stoneking was
convicted in the early 1980's. In 1983 or 1984, the attorney
learned that Stoneking had been secretly cooperating with the
government, and he did not represent him after that. Flynn
testified at his § 2255 hearing that prior to his trial he knew
that his counsel had previously represented Stoneking and that
Stoneking was a potential witness against him.
     4
      The parties stipulated to the use of the affidavit filed by
Flynn's trial counsel, who was deceased at the time of the § 2255
hearing.

                                        8
racketeering enterprise.            See Flynn, 852 F.2d at 1052.             The substance of
his testimony was that Flynn had attended a meeting at which Stoneking and
Paul Spica were installed in different unions, and that Flynn "wasn't happy
with Paul Spica coming on."              Since Stoneking could have implicated Flynn
in other illegal activities, counsel's choice not to expand Stoneking's
testimony      by      delving    into     his       past    was   "within       the    range    of
constitutionally acceptable lawyering."                      See Simmons, 915 F.2d at 379
("[t]he best cross-examiner is one who knows when to stop").


     The district court did not err in denying relief on the ineffective
assistance claim based on conflict of interest.                        Flynn has failed to
demonstrate       an    actual    conflict       of    interest    sufficient      to    raise   a
presumption of prejudice.           Strickland, 466 U.S. at 692.             Since he did not
make a sufficient showing of conflict of interest, his complaint that the
trial court should have made further inquiry into the alleged conflict also
fails.      The     court   asked    counsel      about      his   prior   representation        of
Stoneking, he responded that the situation had been neutralized, and the
court was under no duty to hold a further hearing on the issue.                                 See
Agosto, 675 F.2d at 970 n.3.


     Flynn also alleges that he was denied effective assistance of trial
counsel   by    the     failure   adequately          to    investigate    and   use    available
exculpatory evidence.        He complains that counsel did not file any pre-trial
discovery motions and did not obtain documents or call witnesses concerning
police reports allegedly identifying other individuals with a motive to
kill Spica, an officer's observation of a truck driver near Spica's bombed
car, implications of others in the Spica and Faheen bombings, and a police
report indicating that Flynn had not possessed the explosives allegedly
used to kill Faheen.


     The absence of pre-trial discovery motions does not mean that Flynn's
trial lawyer did not investigate the information in




                                                 9
question or receive the documents from the government.           Flynn testified at
the hearing on his § 2255 motion that his counsel contacted several
witnesses and used them at trial to support his alibi defense.                 Flynn's
attorney    also   testified   by   affidavit    that   he   "fully   and   completely
investigated all pertinent and relevant matter[s] to both the government's
and defendant's case, by either interviewing witnesses, obtaining reports,
questioning Mr. Flynn, or other means of investigation. . . ."              He further
stated that "[h]e thoroughly contemplated the use of all witnesses . . .
and that any decision to call or not call any particular witness was based
on a comprehensive evaluation as to their effectiveness in relation to Mr.
Flynn's defense."


     Flynn's experienced attorney had received discovery on the same
racketeering events some two years earlier while representing a fellow
enterprise member, Charles M. Loewe, in a 34 day jury trial.                See United
States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932
(1988).    In light of these circumstances and "applying a heavy measure of
deference to counsel's judgments", it has not been shown that counsel's
decisions     about   trial    preparation      were    objectively    unreasonable.
Strickland, 466 U.S. at 691.         Flynn has also not shown that use of the
information he references would have changed the outcome of the trial, see
id., or that it would have aided the alibi defense he relied on, or would
have outweighed the other evidence connecting him to the Leisure group's
activities.    See Flynn, 852 F.2d at 1052.      Since Flynn has not established
either that his counsel's actions were professionally incompetent or
prejudicial, his claim of ineffective assistance of counsel on this basis
was properly denied.     See Strickland, 466 U.S. at 691, 694.


     Flynn next contends that his attorney's performance was adversely
affected by his physical and emotional problems.             His attorney was taking
medication for high blood pressure and was reportedly experiencing mood
swings during the trial.       Flynn has




                                           10
not specified in what way counsel's condition caused constitutionally
deficient assistance at trial.   In his affidavit, Flynn's attorney stated
that the medication did not affect his ability to concentrate and that his
medical condition was under control during the trial.    The trial took place
over a period of three weeks, during which time Flynn's attorney cross-
examined numerous government witnesses and called several witnesses to
substantiate Flynn's defense.     Nothing in the record suggests that his
professional judgment or strategy choices did not remain well within the
range of reasonable decisions.   See id. at 699.   Flynn has therefore failed
to establish ineffective assistance because of counsel's physical and
mental condition.


       Flynn bases his last claim of ineffective assistance on his appellate
counsel's failure to ask the Court of Appeals to reverse Counts I and II
of the indictment.   Flynn argues that the evidence admitted on Count III,
the count which was reversed and which charged transportation and receipt
of dynamite in interstate commerce, prejudicially spilled over into the
other counts.   He contends that his counsel should have raised this issue
on appeal when he presented an insufficiency of the evidence claim on Count
III.   Alternatively, Flynn argues that counsel should have raised the issue
by way of a motion for rehearing, or a transfer to the court en banc, upon
receiving the panel opinion.


       The reason Flynn's conviction on Count III was reversed was because
there was insufficient evidence the dynamite had been transported between
states.    See Flynn, 852 F.2d at 1056.   Proof of interstate transportation
was not required to convict Flynn of the RICO or conspiracy charges.
Appellate counsel had challenged the sufficiency of the evidence on both
Counts I and II, but the court affirmed the convictions on both counts.
See id. at 1052 ("Flynn's participation in the enterprise amounted to more
than the mere predicate acts with which he was charged; he actively
participated in the Leisure enterprise.").         Mere speculation that the
evidence




                                     11
on Count III prejudicially spilled over into Counts I and II does not
establish professionally incompetent assistance.         Counsel's performance has
therefore not been shown to be deficient in respect to the handling of the
issues relating to Counts I and II or in deciding not to seek rehearing.
See Strickland, 466 U.S. at 690, 694.


                                         III.


       Finally,   Flynn   argues    that   the    government   failed     to   disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
This   evidence   consists   of    the   police   reports   and   other   information
underlying Flynn's previously discussed claim of inadequate investigation
by his trial counsel.


       Flynn's trial counsel testified that "the Government fully complied
with Brady v. Maryland, by disclosing to [him] all favorable evidence to
Mr. Flynn regarding the John Paul Spica killing and the George 'Sonny'
Faheen killing, and that [he] fully and totally examined this discovery
material and all other discovery material made available to [him]."                 The
only evidence that exculpatory material was withheld is Flynn's assertion
that he first saw the documents after his trial when they were obtained by
a different attorney for a state court case.         The possibility that counsel
did not show Flynn these documents does not mean that the government did
not comply with its Brady obligations, however.                   Our review of the
documents also does not show that the evidence was material either to
Flynn's guilt or punishment.       See id. at 87.    The district court therefore
did not err in determining that no Brady violation had occurred.5




       5
      We note that Flynn did not raise this issue on appeal. In
view of our conclusion that no Brady violation occurred, we need
not address whether Flynn failed to preserve this issue.

                                           12
For these reasons, the judgment of the district court is affirmed.


A true copy.


      Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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