Familia-Consoro v. U.S.

• Decision Date: 05 October 1998
• Docket Number: P,No. 97-1467,FAMILIA-CONSOR,97-1467
• Citation: 160 F.3d 761
• Parties: Juanetitioner, Appellant, v. UNITED STATES, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 761

160 F.3d 761

Juan FAMILIA-CONSORO, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.

No. 97-1467.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 1998.

Decided Nov. 17, 1998.

Jane Elizabeth Lee for appellant.

Kenneth P. Madden, Assistant United States Attorney, with whom Margaret E Curran, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

After his convictions for possession of cocaine and conspiracy to distribute cocaine were affirmed on direct appeal, Juan Familia-Consoro ("Familia") moved to vacate his sentence pursuant to 28 U.S.C. § 2255 (1994), contending that a conflict of interest infected his trial counsel's performance. The alleged conflict arose because Familia's brother, Bonifacio, who had agreed to pay Familia's attorney's fee, still owed the lawyer approximately three thousand dollars at the start of trial. At trial, Familia sought to defend himself against the drug charges by suggesting that the cocaine discovered in his apartment belonged to Bonifacio. In seeking collateral relief, Familia argued that his attorney did not aggressively pursue the blame-the-brother strategy out of a desire to obtain the balance of his fee.

The district court denied the motion after conducting an evidentiary hearing. We conclude that the court properly rejected the claim, and now affirm.

I.

We briefly sketch the history of the case. On November 11, 1991, police officers entered Familia's Providence, Rhode Island, apartment to execute a search warrant. A loaded .38 caliber handgun was found under the mattress. At some point during the search, the police discovered that one of the drawers of a freestanding dresser was nailed shut. When the officers looked behind the drawer, they found a paper bag and a metal box. The box contained $3,866 and two Rhode Island state lottery receipts in the name of "Juan Familia." The paper bag contained plastic bags filled with cocaine (299.22 grams). Police also seized a bottle of inositol, a cocaine cutting agent, from atop the dresser.

On the basis of the fruits of this search, a grand jury indicted Familia and his live-in girlfriend, Priscilla Jackson ("Jackson"), for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (1998) and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (1998). Familia was also charged with using a firearm in connection with a drug trafficking crime. See 18 U.S.C. § 924(c)(1998).

A jury convicted Familia and Jackson on the two drug counts, but acquitted Familia on the gun count. The district court sentenced Familia to eighty-five months of imprisonment, followed by five years of supervised release.

Familia appealed pro se from his convictions. His sole contention on appeal was that his counsel rendered ineffective assistance of counsel due to a conflict of interest. We affirmed his conviction and sentence without prejudice to his raising the claim in a proceeding under 28 U.S.C. § 2255, consistent with our practice disfavoring the consideration of ineffective assistance claims on direct appeal. See United States v. Familia, No. 92-1685, 1994 WL 390142 (1st Cir.1994).

On or about March 3, 1995, Familia moved to correct his sentence pursuant to Fed.R.Crim.P. 35 on the ground that the court miscalculated the quantity of drugs fairly attributable to him. The motion was denied by the district court, and we subsequently upheld that decision. See United States v. Familia, No. 95-1447, 1995 WL 674501 (1st Cir.1995).

On January 22, 1996, Familia collaterally attacked his sentence by challenging the propriety of certain sentencing enhancements and the adequacy of trial counsel's representation due to, inter alia, a conflict of interest. He elected to proceed only with his conflict of interest claim.

Familia's claim hinged on the theory that economic self-interest tainted his lawyer's representation at trial. Early on, Familia's brother, Bonifacio, had offered to pay Familia's legal fees and had secured the services of a lawyer, John M. Cicilline, on Familia's behalf. At trial, Familia's counsel had suggested to the jury that Bonifacio was the true owner of the cocaine discovered in Familia's bedroom. Familia now asserted, however that his attorney had not been sufficiently zealous in portraying Bonifacio as the real culprit because he hoped that Bonifacio would pay the remainder of the outstanding fee.

The district court, which had originally presided over Familia's trial, held a hearing on the § 2255 motion on December 17, 1996. Cicilline, the only witness at this hearing, testified that Bonifacio paid him $1500 as a retainer and later paid him an additional $500, but never paid the balance of the fee (approximately $3000). Cicilline acknowledged discussing with Familia the strategy of blaming Bonifacio for stashing the drugs in Familia's apartment and stated that he actively pursued this defense at trial. Cicilline also testified that Bonifacio never instructed him not to argue that the drugs were owned by Bonifacio and that Bonifacio did not place any restrictions on his representation of Familia. Finally, he explained that he had met with Bonifacio a few times in an attempt to get paid (succeeding once), but did not try to subpoena him to testify because he did not know where Bonifacio lived and did not believe that Bonifacio's testimony would be helpful.

The district court denied Familia's § 2255 motion based on the purported conflict. In so ruling, it accepted Cicilline's sworn denial that he downplayed Familia's defense out of a desire to obtain the balance of his fee. The court concluded that Familia's trial counsel had, in fact, presented the blame-the-brother defense, doing "the best he could with the circumstances," but that the jury simply rejected the defense.

II.

The Sixth Amendment guarantees a defendant effective assistance of counsel. There can be no doubt that a lawyer who has an actual conflict of interest deprives his client of effective counsel by his attempt to "serve two masters." See Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (quoting Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). The question in this case is whether there was such a conflict.

To prevail on a claim of unconstitutional conflict, a defendant "who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. If a defendant proves that a conflict "actually affected the adequacy of his representation," he need not show prejudice to obtain relief. Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708. Unless and until this threshold is met, however, a defendant "has not established the constitutional predicate for his claim of ineffective assistance." Id. at 350, 100 S.Ct. 1708. In this Circuit, we have elaborated upon the Cuyler rule to require a defendant to show that (1) the attorney could have pursued a plausible alternative defense strategy and (2) the alternative trial tactic was inherently in conflict with or not pursued due to the attorney's other loyalties or interests. See Bucuvalas v. United States, 98 F.3d 652, 656 (1st Cir.1996).

Although the standard of review of a conflict claim made in a § 2255 motion has been left an open question in the past, ¹ we resolve that issue today. We explicitly adopt the standard we previously had suggested only implicitly. See, e.g., United States v. Raineri, 42 F.3d 36, 43 (1st Cir.1994). The question whether a conflict of interest impermissibly tainted an attorney's performance is a mixed question of law and fact, see Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cuyler, 446 U.S. at 342, 100 S.Ct. 1708, one that calls for "the application of legal principles to the historical facts of [a given] case." Cuyler, 446 U.S. at 342, 100 S.Ct. 1708.

On appeal from the grant or denial of a § 2255 motion, we conduct a plenary review of the lower court's ultimate legal determination whether an unconstitutional conflict actually existed. ² In embracing the de novo standard, we join virtually every other circuit in the land. See United States v. Moore, 159 F.3d 1154, 1998 WL 682173, at * 2 (9th Cir.1998) ("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."); Williams v. French, 146 F.3d 203, 212 (4th Cir.1998) (same); Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir.1997) (same), cert. denied, --- U.S. ----, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998); United States v. Kauffman, 109 F.3d 186, 187 (3d Cir.1997) ("Because ineffective assistance of counsel claims present mixed questions of law and fact, our review is plenary."); United States v. Gallegos, 108 F.3d 1272, 1279 (10th Cir.1997) ("we review the district court's determination of whether an actual conflict existed de novo"); United States v. Hopkins, 43 F.3d 1116, 1118 (6th Cir.1995) ("Whether the facts in a particular case give rise to a conflict of interest is a mixed question of law and fact which we review de novo."); Iron Wing v. United States, 34 F.3d 662, 664 (8th Cir.1994) (applying same approach for ineffective assistance claims generally); Porter v. Singletary, 14 F.3d 554, 561 (11th Cir.1994) (reviewing conflict claim de novo); Winkler v. Keane, 7 F.3d 304, 308 (2d Cir.1993) (same); Beets v. Collins, 986 F.2d 1478, 1482 (5th Cir.1993) (same). But see United States v. Askew, 88 F.3d 1065, 1070-71 (D.C.Cir.1996) (leaving question unresolved).

We recognize that the question--whether a lawyer had an "actual" conflict that "adversely affected" the quality of his services--is intensely fact-bound in nature. The claim often turns on the precise details giving rise to the purported conflict, including...