52 F.3d 924 (11th Cir. 1995), 93-6873, United States v. Jones

Docket Nº:93-6873.
Citation:52 F.3d 924
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gregory D. JONES, Defendant-Appellant.
Case Date:May 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 924

52 F.3d 924 (11th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory D. JONES, Defendant-Appellant.

No. 93-6873.

United States Court of Appeals, Eleventh Circuit

May 19, 1995

Page 925

Roger C. Appell, William K. Bradford, Birmingham, AL, for appellant.

Jack Selden, U.S. Atty., Michael V. Rasmussen, Claude Harris, Asst. U.S. Attys., Birmingham, AL, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before ANDERSON, EDMONDSON and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Gregory Jones appeals from his conviction on two counts of aiding and abetting acts of extortion in violation of 18 U.S.C. Secs. 2 and 1951. The conviction stemmed from a scheme in which Jones, then an attorney, joined with a bailbondsman to procure cash bribes from criminal defendants for a state district court judge. Jones attacks his conviction on several grounds, only one of which merits discussion. 1 Jones contends that the district court erred in denying defense counsel's mid-trial motion to withdraw and for a mistrial based upon a newly discovered defense and conflict of interest. For the reasons discussed below, we reject this contention and affirm Jones's conviction.

I.

During the presentation of its case-in-chief, the government supplied Jones with copies of grand jury testimony of some of its witnesses. After reviewing one of the grand jury transcripts, Jones's defense counsel, William N. Clark, moved to withdraw and for a mistrial arguing that that transcript revealed both the basis for raising a selective prosecution defense on Jones's behalf and a previously unknown conflict of interest that prevented Clark from pursuing that defense.

What the transcript revealed was that another of Clark's clients, also an attorney, had been under investigation based on allegations almost identical to those charged against Jones. Jones is black, the other client is white. Given that his white client had not been indicted, Clark averred in his withdrawal motion that he should raise a selective prosecution defense on Jones's behalf, but that he was precluded from doing so because of the adverse impact it would have on his other client. Clark argued that he should be permitted to withdraw from the case and a mistrial should be declared so that another attorney free to pursue the selective prosecution defense could be appointed to represent Jones. The district court denied the motion to withdraw and for a mistrial, stating that any selective prosecution argument could be raised on appeal. Jones now seeks reversal of his conviction based on the district court's denial of those motions.

II.

"Questions involving conflicts of interest are mixed questions of law and fact subject to de novo review." Porter v. Singletary, 14 F.3d 554, 561 (11th Cir.1994).

III.

In criminal cases, an attorney's conflict of interest may deprive a defendant of his Sixth Amendment right to assistance of counsel. E.g., Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446

Page 926

U.S. 335, 348, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). A conflict of interest will rise to the level of reversible constitutional error only if the defendant has demonstrated that "an actual conflict of interest adversely affected his lawyer's performance," and that counsel "actively represented conflicting interests." Cuyler, 446 U.S. at 348, 350, 100 S.Ct. at 1718, 1719; Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987) (quoting Strickland, 466 U.S....

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