U.S. v. Jiang
Decision Date | 19 March 1998 |
Citation | 140 F.3d 124 |
Parties | UNITED STATES of America, Appellee, v. Chang Kui JIANG, Defendant, Peter A. Mahiques, Appellant. Docket 97-1245. |
Court | U.S. Court of Appeals — Second Circuit |
Patrick H. NeMoyer, United States Attorney, Western District of NY, Joseph J. Karaszewski, Assistant United States Attorney, Buffalo, NY, for appellee.
The Legal Aid Society, Federal Defender Division, Appeals Bureau, Steven M. Statsinger, New York City, for appellant.
Before: KEARSE and WALKER, Circuit Judges, WEINSTEIN, Senior District Court Judge *.
In January 1996, Chang Kui Jiang and Peter A. Mahiques, appellant, were indicted on four counts: conspiring to violate immigration laws under 18 U.S.C. § 371 ("Count I"); alien smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(i) ("Count II"); transporting aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) ("Count III"); and inducing aliens to enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) ("Count IV").
Jiang, a Canadian citizen, pled guilty to Count I in May of 1996 in the United States District Court for the Western District of New York, John T. Curtin, presiding. He was sentenced to probation. During his plea colloquy, Jiang admitted that he had conspired to transport illegal aliens and inculpated appellant by stating that they had assisted each other in bringing the aliens into the United States. As part of his plea agreement, Jiang promised to cooperate with the government during appellant's trial. After Jiang was sentenced--but prior to appellant's trial--forfeiture proceedings were instituted against his automobile, which allegedly had been used in commission of the crimes.
Prior to appellant's trial, Jiang had been shown a six photograph array during an interview with Agent James Higgins of the United States Immigration and Naturalization Service. Jiang was unable to identify appellant as his co-conspirator and he made statements which were potentially exculpatory to appellant. Shortly thereafter, Jiang returned to Canada to serve his period of probation.
Jiang was unavailable during appellant's trial, but his declarations exculpatory of appellant to Agent Higgins were admitted. The government was not permitted to impeach these statements with Jiang's plea colloquy implicating appellant.
During appellant's trial the government advised the judge that no record had been made of a pre-trial conversation among the parties and the court regarding defense counsel's possible conflict of interest. Appellant's trial counsel stated that his law partner was currently representing Jiang in the forfeiture proceeding. He assured the district court that "since Mr. Jiang is not going to be a witness and information that was obtained from Mr. Jiang ... is not part of our defense in this particular case, I don't think there is a problem."
The transcript reads:
MR. KARASZEWSKI [for the United States]: We had a conversation before the trial began about a potential conflict of interest if you recall and we never put anything on the record with regard to that.
THE COURT: Conflict?
MR. HARRINGTON [for the defense]: Because of my partner representing Mr. Jiang in that forfeiture proceeding.
After this colloquy, and without the court making a specific finding regarding the possible conflict, the trial resumed. Appellant was convicted on Counts I, II, and III, and received a sentence of two years' probation, four months of home confinement, 100 hours of community service, and a special assessment of $150.
Discussion:
Appellant argues that the court did not satisfy its duty of inquiry regarding a possible conflict of interest and that his conviction should be overturned under this circuit's "automatic reversal" rule. See Ciak v. United States, 59 F.3d 296, 302, 304-306 (2d Cir.1995); United States v. Levy, 25 F.3d 146, 153-54 (2d Cir.1994). Alternatively, he seeks reversal because the court did not obtain his waiver of his right to unconflicted counsel pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir.1982).
The Sixth Amendment's right to counsel contains "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). In order to ensure that a criminal defendant's right to conflict-free counsel is not abridged, a district court must "initiate an inquiry when it knows or reasonably should know of the possibility of a conflict of interest." Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir.1991). This initial obligation to inquire arises whenever a district court is "sufficiently apprised of even the possibility of a conflict of interest." Levy, 25 F.3d at 153. When a possible conflict has been "entirely ignored" by the district court, reversal has been "automatic." See id; see also Ciak, 59 F.3d at 307 ( ); United States v. Lussier, 71 F.3d 456, 461 (2d Cir.1995) (, )cert. denied, 517 U.S. 1105, 116 S.Ct. 1321, 134 L.Ed.2d 474 (1996).
Here, the district court was made aware of a possible conflict of interest. "[A]ny doubt as to whether the court should have been aware of the [conflict] problem is dispelled by the fact that the [prosecution] raised the conflict problem explicitly" at trial. Wood, 450 U.S. at 272-73, 101 S.Ct. at 1104.
Jiang was represented by the law partner of appellant's trial counsel. A showing that two attorneys are partners or represent "themselves to the world at large as partners," and whose interests overlap "in the acceptance of clients and in the sharing of fees" is sufficient to ground a conflict of interest claim, assuming that there is proof that the clients' interests may have been in conflict. Anwar v. United States, 648 F.Supp. 820, 827 (N.D.N.Y.1986), aff'd, 823 F.2d 544 (2d Cir.1987); see also Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir.1976) ( ); Model Rules of Professional Conduct Rule 1.10 cmt. 6 (1983) ("Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for the purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.").
It is conceivable that Jiang's attorney might have had an interest in keeping his client off the witness stand--even though he might have exculpated appellant--for several reasons. First, Jiang's testimony at trial could possibly have been used against him in the pending forfeiture...
To continue reading
Request your trial-
Frazier v. Kelly, 98-CV-6049FE.
...reaches the erroneous conclusion that no conflict exists. United States v. Kliti, 156 F.3d 150, 153 (2d Cir.1998); United States v. Jiang, 140 F.3d 124, 128 (2d Cir. 1998). ...
-
U.S. v. Blount
...fact that two lawyers from the same firm represent two codefendants, even in unrelated proceedings. See, e.g., United States v. Jiang, 140 F.3d 124, 127 (2d Cir.1998) (per curiam). In order to "ensure that a criminal defendant's right to conflict-free counsel is not abridged," id., an initi......
-
U.S. v. Blau
...220 (1981); Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Kliti, 156 F.3d at 153; United States v. Jiang, 140 F.3d 124, 127 (2d Cir.1998); United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994). "[A] defendant has suffered ineffective assistance of counsel in......
-
U.S. v. Pizzonia
...a conflict of interest claim, assuming that there is proof that the clients' interests may have been in conflict." United States v. Jiang, 140 F.3d 124, 127 (2d Cir.1998) (internal quotation marks and citation omitted). See also United States v. Blount, 291 F.3d 201, 211 (2d Cir.2002) ("A c......