U.S. v. Moore

• Decision Date: 23 September 1998
• Docket Number: 97-15412,Nos. 92-10026,s. 92-10026
• Parties: 98 Cal. Daily Op. Serv. 7359 UNITED STATES of America, Plaintiff-Appellee, v. Carl Dexter MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1154

159 F.3d 1154

98 Cal. Daily Op. Serv. 7359

UNITED STATES of America, Plaintiff-Appellee, v. Carl Dexter MOORE, Defendant-Appellant.

Nos. 92-10026, 97-15412.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 13, 1998.

Decided Sept. 23, 1998.

Michael Bradley Bigelow, Sacramento, CA, for defendant-appellant.

Christopher A. Nuechterlein, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. Nos. CR-90-00117-WBS, CV-93-00795-WBS.

Before: FLETCHER, D.W. NELSON and BEEZER, Circuit Judges.

FLETCHER, Circuit Judge:

Carl Dexter Moore ("Moore") challenges his conviction for conspiring to distribute cocaine and possession of cocaine with intent to distribute, and his sentence of 30 years. Moore claims (1) that his trial counsel, Philip Cozens, had an actual conflict of interest because of Cozens' relationship with Moore's codefendant Kimbel LeMaux; and (2) that there was an irreconcilable conflict between Moore and his attorney, Cozens, that denied Moore his Sixth Amendment right to counsel. ¹

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and § 2255. Although we do not find sufficient evidence of an actual conflict of interest, we find that Moore had an irreconcilable conflict with Cozens that denied Moore his Sixth Amendment right to counsel, and reverse and remand for a new trial.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

Between 1982 and 1987, codefendant Kimbel LeMaux operated a criminal enterprise for the purchase and distribution of cocaine and marijuana throughout Northern California. Associated with LeMaux's enterprise were Moore, John-John Moore ("John-John"), Dennis O'Brien, Jerry Silva, and Tom D'Anna. Silva and D'Anna were among LeMaux's principal distributors. Moore was While extensive evidence links Moore to LeMaux's operation from 1982 until 1985, Moore disputes that he was involved in the conspiracy after April of 1985. The applicable statute of limitations bars prosecution for activities occurring prior to April, 1985. However, the testimony of Teacia Opperman that Moore, Vega and others met frequently at Silva's residence after April of 1985, where they either discussed or engaged in drug transactions, weighs against Moore's claim of withdrawal. Opperman also testified that in late 1987, Moore went to Silva's and informed him that cocaine deliveries would be discontinued because of Moore's fears that they were under investigation and that Moore's deliveries to Silva subsequently slowed and eventually stopped.

LeMaux's debt collector, enforcer, and one of his drug distributors. Between 1983 and 1985, Moore and O'Brien would go two to three times a week to collect LeMaux's drug money, frequently using violence to collect the debts. In 1983, Moore got his son, John-John, involved in LeMaux's drug operations doing distributions and collections. John-John continued to work for LeMaux until 1987.

In September of 1990, the government filed a superceding indictment charging Moore and eleven codefendants with three counts: count one charged all defendants with intent to distribute cocaine from July 1984 to June 1988 in violation of 21 U.S.C. §§ 841(a)(1) & 846; count two charged Kimbel LeMaux alone with conducting a continuing criminal enterprise; count three charged Moore, LeMaux, Ingrid, and John-John with conspiracy to collect extensions of credit by extortion.

On four separate occasions before trial, Moore, in person or through Cozens, informed the district court that he could not communicate with Cozens and that he was dissatisfied with Cozens' investigations and preparations. The district court refused to order substitution of counsel but agreed to allow substitution if Moore could find an attorney that could be ready by the scheduled trial date. Moore was unable to secure a substitute and went to trial with Cozens as his attorney. The jury convicted Moore on count one, intent to distribute cocaine, but acquitted on count three, conspiracy to collect extensions of credit by extortion.

As part of his motion for a new trial in June 1991, Moore again informed the district court that he was dissatisfied with Cozens' performance for failing to present a withdrawal defense and that Cozens had a conflict of interest in the case because of his relationship with Moore's codefendant, LeMaux. The district court put over the issue until July of 1991. In July, the district court determined that it was inappropriate to argue ineffective assistance of counsel in a new trial motion, stating that the appropriate means to challenge counsel's representation is pursuant to 28 U.S.C. § 2255. The district court then denied Moore's new trial motion but without prejudice to Moore's right to raise the issue by way of a § 2255 petition. Before sentencing, the district court again gave Moore the option of representation by new counsel but declined to extend any extra time to allow new counsel to prepare for sentencing. The district court strongly advised Moore to retain Cozens. Moore again protested Cozens' failure to present the withdrawal defense but followed the advice of the district court and retained Cozens for sentencing. Moore received a 30-year sentence on November 8, 1991. The sentence was pursuant to pre-guidelines law because the district court found that Moore's criminal activities had ended by November 1, 1987.

Following the filing of Moore's Notice of Appeal, we granted a limited remand, enabling the district court to entertain a 28 U.S.C. § 2255 petition before we reviewed Moore's direct appeal. Moore filed an initial § 2255 petition alleging that he was denied his constitutional right to testify at trial and that he was denied effective assistance of counsel. ² Following withdrawal of his appellate counsel, Moore was permitted to file a pro se supplemental § 2255 petition in June of 1996, in which he added an allegation that The district court denied Moore an evidentiary hearing on his § 2255 petition and denied him relief on his claims. Specifically, the district court found that Moore was not denied his right to testify and that he received effective assistance of counsel. Moore's direct appeal and his appeal from denial of his § 2255 petition are consolidated before this court.

Cozens had a conflict of interest that denied him effective assistance of counsel.

ANALYSIS

I. Conflict of Interest

Moore claims that an actual conflict of interest adversely affected Cozens' performance. A claim of conflict of interest on the part of trial counsel is a mixed question of law and fact that we review de novo. See Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir.1994).

Moore has a right to conflict free representation under the Sixth Amendment. See id. To establish a Sixth Amendment violation, Moore must show "that an actual conflict of interest adversely affected his lawyer's performance." Id. at 1198 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Moore must prove actual conflict, not just a possibility of conflict, "through a factual showing on the record." Morris v. California, 966 F.2d 448, 455 (9th Cir.1991). Once an actual conflict is shown, Moore need demonstrate only "that some effect on counsel's handling of particular aspects of the trial was 'likely.' " United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992). Prejudice is presumed. Id. If, however, there is only a possibility of conflict, Moore must meet the "performance and prejudice" standard of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Miskinis, 966 F.2d at 1268.

Moore presents two sources of the actual conflict of interest between himself and Cozens-Cozens' relationship with Moore's codefendant, LeMaux, and Moore's threat to sue Cozens over Cozens' handling of the plea bargain. Moore's first claim is that Cozens had loyalties to LeMaux that were in conflict with Cozens' duty to Moore since Moore wanted to pursue a withdrawal defense that would have undermined LeMaux's defense that the conspiracy never happened. Given the conflict between the two defenses, proof of Cozens' loyalty to LeMaux would establish an actual conflict of interest between Cozens and Moore.

In a pretrial proceeding, Cozens told the district court that he knew LeMaux "in passing" but that he did not find himself conflicted in this case. On appeal, Moore argues that Cozens had a much closer relationship to LeMaux than he admitted to the district court. Although not presented before the district court, we now know that Cozens' "in passing" relationship stems from his living next door to LeMaux for approximately 8 to 10 months. Further, Moore claims that Cozens told him that "he [Cozens] and Kimbel LeMaux had 'wined and dined' together during the course of the trial" and that when they were neighbors "LeMaux had offered [Cozens] the use of a spare bedroom in LeMaux's home as a 'hideout,' and the use of a shotgun for Cozens' defense of his own home."

If true, these statements evidence a stronger relationship between Cozens and LeMaux than Cozens represented to the district court in pretrial proceedings. Presumably relying on Cozens' claim that he only knew LeMaux "in passing," the district court found, without further inquiry, that there was no conflict in Cozens' representation. Although at that time there was insufficient evidence before the district court to establish an actual conflict of interest, the district court's failure to inquire further is troubling. However, since there was no additional information at that time to suggest a conflict, the district court did not err in accepting Cozens' characterization of his relationship with LeMaux. Nor do we find sufficient evidence in the record before us to sustain...