United States District Court, E.D. Louisiana
ORDER & REASONS
STANWOOD R. DUVAL, Jr., District Judge.
The Court held an evidentiary hearing on April 22, 2015, wherein the newly appointed defense counsel for Defendant, Burnell Allen, and the Government presented evidence as to the issue of whether Burnell Allen's trial counsel were ineffective by virtue of an actual conflict of interest. Upon the conclusion of the hearing, the Court instructed the parties to brief the issues pertaining to whether an actual conflict existed, namely whether there was a conflict of interest and any adverse effect it might have produced. The Court has reviewed the parties' memoranda on this point and finds that no actual conflict of interest existed for the reasons stated herein.
On June 6, 2013, Defendant, Burnell Allen, was charged in a sixteen-count Superseding Indictment with the following charges: (1) Conspiracy to Possess and to Possess with the Intent to Distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), and 846 (Count 1); and (2) Conspiracy to possess firearms in furtherance of a drug trafficking offense in violation of 21 U.S.C. § 924(o) (Count 2). Superseding Indictment, R. Doc. 35, 1-7.
Three co-defendants maintained their innocence, and on November 3, 2014, the matter proceeded to trial. Burnell Allen was represented by Jason Williams in this matter. Nandi Campbell, an attorney associated with Mr. Williams's law practice, acted as a second-chair counsel for Burnell Allen at trial. The Government called seventeen witnesses over the course of three days, and at the close of the Government's case, the Defendant made an oral motion for judgment of acquittal under Federal Rules of Criminal Procedure Rule 29 urging that the Government's case was insufficient to carry its burden of proof beyond a reasonable doubt. The Court reserved ruling on the motion, but allowed Defendant to renew his motion at the conclusion of trial. See Minute Entry, R. Doc. 210. At the conclusion of trial, the Defendant again urged the motion with oral reasons and the Court reserved its decision and directed counsel submit written reasons for the motion.
The jury returned a verdict on November 6, 2014 of guilty against the Defendant on Count 1, the drug conspiracy count, and acquitted the Defendant on Count 2, which charged him with being a participant in a conspiracy to possess firearms in furtherance of drug trafficking crimes. The Defendant filed a Motion for New Trial pursuant to Federal Rules of Criminal Procedure Rule 33 and a Motion for Acquittal on November 25, 2014. See R. Docs. 229 and 230.
Thereafter, the Court was informed that the Defendant's trial counsel had potentially labored under a conflict of interest in that his trial counsel had formerly represented two of the Government's witnesses. New counsel enrolled and, per this Court's order, submitted briefing to the Court on the issue. See Minute Entry, Jan. 9, 2015, R. Doc. 260. This Court ordered an evidentiary be held to further develop the factual issues pertaining to Defendant's trial counsel's potential conflict of interest. See Order, March 23, 2015, R. Doc. 293. The hearing was held on April 22, 2015, and the parties submitted written memoranda thereafter supplementing their arguments as to whether Burnell Allen's trial counsel were ineffective due to an actual conflict of interest.
II. LEGAL STANDARD
The issue of whether Burnell Allen's counsel labored under a conflict of interest has been brought to the Court's attention post-trial. In essence, the claim that his counsel was conflicted is an ineffective assistance of counsel claim in violation of his Sixth Amendment right to effective assistance of counsel. See U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). "Under the Sixth Amendment, if a defendant has a constitutional right to counsel, he also has a corresponding right to representation that is free from any conflict of interest." United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993)(citing Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)).
To establish an ineffective assistance of counsel claim, a defendant generally must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 692-93, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). However, in Strickland, the Supreme Court stated that, where the ineffective assistance of counsel claim is based on an actual conflict of interest, the holding of the Court's earlier decision in Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct., at 1716-1719, applies, which warrants a limited "presumption of prejudice, " Strickland, 466 U.S. at 692-93. In order to prevail on the ineffective assistance of counsel claim based on an actual conflict of interest, the defendant "must show that [his] trial attorney was acting under the influence of an actual conflict of interest that adversely affected his performance at trial." United States v. Infante, 404 F.3d 376, 391(5th Cir. 2005)(citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)). Thus, while Strickland requires a showing that counsel's performance was deficient, in that a reasonable probability exists that counsel's error changed the result of the proceeding, Cuyler permits a defendant "who raised no objection at trial to recover upon a showing that an actual conflict of interest adversely affect counsel's performance." Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000)(" Perillo II ").
A. Actual Conflict
Clarifying what the Cuyler Court meant by "actual conflict of interest, " the Supreme Court in Mickens v. Taylor stated that the phrase "meant precisely a conflict that affected counsel's performance -as opposed to a mere theoretical division of loyalties" and that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." 535 U.S. 162, 171, 122 S.Ct. 1237, 1243, 152 L.Ed.2d 291 (2002). The Supreme Court further clarified what the inquiry as to an actual conflict involves: "[T]he [ Cuyler ] standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An actual conflict' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Id. at 172 n.5, 112 S.Ct. 1237.
The Supreme Court in Mickens also acknowledged the Fifth Circuit's observation that Circuit Courts have applied Cuyler "unblinkingly" to "all kinds of alleged attorney ethical conflicts." Id. at 174, 122 S.Ct. 1237 (quoting Beets v. Scott, 65 F.3d 1258, 1266 (5th Cir. 1995)). The Court noted that it has not extended Cuyler to multiple representation cases involving obligations to former clients rather than concurrent representation of clients and cautioned against an expansive application of the rule. Id. at 175. The Court reiterated that a defendant has established the constitutional predicate for his claim only if counsel " actively represented conflicting interests." Id. Thus, the Court declared that, while it is clear that Cuyler applies in cases of concurrent multiple representation, Cuyler's application in successive multiple representation cases-conflicts between the attorney and former clients-"remains... an open question." Id. at 176.
Nevertheless, the Fifth Circuit has "never [limited the application of Cuyler ] to concurrent representation cases in this circuit, " and has applied the rule in successive multiple representation cases. Perillo, 205 F.3d at 797-98; see also United States v. Infante, 404 F.3d 376, 391, n.12 (5th Cir. 2005); Burns, 526 F.3d at 856-57 (5th Cir. 2008). The Fifth Circuit has noted that Cuyler 's legal precepts of "actual conflict" and "adverse effect" are "rather vague." Perillo, 205 F.3d at 782 (citation omitted). Rather than apply any categorical treatment to the facts of the case to ascertain whether an actual conflict exists, the determination of actual conflict is "tightly bound to the particular facts of the case at hand." Perillo, 205 F.3d at 782 (citation omitted); see also United States v. Burns, 526 F.3d 852, 856-57 (5th Cir. 2008)("The question of whether a disqualifying conflict exists is highly fact-dependent.").
In the context of successive representation cases, the Fifth Circuit has applied a more flexible, factually sensitive inquiry into the nature of the conflict, eschewing other Circuits' narrower approach. Perillo, 205 F.3d at 798. While other Circuits have established a separate standard for successive representation cases apart from concurrent representation cases, the Fifth Circuit "has not definitely embraced the theory that there is any real and inviolate substantive difference between" those conflicts of interest. Id. at 798. The Fifth Circuit has noted that "there is an obvious temporal relationship and the substantive relationship between the two representations" in concurrent representation cases "tend[s] to be closer, " but the Fifth Circuit examines a number of other factors in light of the "guiding principle" in Sixth Amendment jurisprudence that counsel's allegiance to the accused must not be compromised by "competing obligations owed to other clients." Id. at 798. Factors that the Fifth Circuit has found to be particularly relevant include: "(1) whether the attorney has confidential information that is helpful to one client but harmful to the other client; (2) whether and how closely related is the subject matter of the multiple representations; (3) how close in time the multiple representations are; and (4) whether the prior representation has been unambiguously terminated." United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008). Thus, with regard to the factually sensitive inquiry, the Fifth Circuit has stated:
[W]hether the facts of a particular case give rise to an actual conflict depends, not so much upon the label used to define the attorney's conflict, as upon these and any other factors that illuminate whether the character and extensiveness of the prior representation were such that counsel is prevented "by his interest in another's welfare from vigorously promoting the welfare of his [current] client."
Id. at 798 (citing Vega, 149 F.3d at 360).
B. Conflict of Interest
A conflict of interest exists "when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client." Perillo, 205 F.3d at 781; see United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006). However, a defendant must show more than a potential or hypothetical conflict. Infante, 404 F.3d at 391. Although "[a]n attorney who cross-examines a former client inherently encounters divided loyalties, " to demonstrate an actual conflict, "something more must be shown." Perillo, 205 F.3d at 802. "It must be demonstrated that the attorney made a choice between possible alternative courses of ...