Brien v. U.S., 82-1387

• Citation: 695 F.2d 10
• Decision Date: 08 December 1982
• Docket Number: No. 82-1387,82-1387
• Parties: James A. BRIEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 10

695 F.2d 10

James A. BRIEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 82-1387.

United States Court of Appeals,

First Circuit.

Submitted Sept. 17, 1982.

Decided Dec. 8, 1982.

James A. Brien on brief pro se.

William F. Weld, U.S. Atty., and Charles K. Mone, Asst. U.S. Atty., Boston, Mass., on brief for appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

James A. Brien appeals from the district court's denial of his petition brought under 28 U.S.C. Sec. 2255 to vacate sentence. Brien was convicted after a trial at which he was represented by an attorney who belonged to the same law firm as the attorney of a co-defendant. Asserting that this constituted a conflict of interest, Brien contends that he was denied the effective assistance of counsel in violation of the sixth amendment.

Brien was indicted in August 1978 for conspiracy to commit wire and mail fraud in violation of 18 U.S.C. Sec. 371 and for fraud in violation of 18 U.S.C. Sec. 1341. The charges stemmed from his involvement with Lloyd, Carr & Co., a commodities trading firm located in Boston, of which Brien had become the vice-president. Alan Abrahams, a/k/a Lloyd Carr, the firm's principal, was indicted at the same time. ¹

Following their indictment, both Brien and Abrahams were represented by attorneys from the law firm of F. Lee Bailey, which had been retained under a flat fee arrangement by Lloyd, Carr & Co. in order to defend company employees from criminal charges. Lloyd, Carr & Co. paid the law firm an initial advance payment of $125,000, half of the fee agreed upon. In September 1978, the Receiver for the now bankrupt estate of Abrahams entered a complaint in the district court seeking return of the $125,000 to the estate. The Receiver asserted that the payment had been made without present consideration.

In the fall of 1978, both Brien and Abrahams filed motions for severance and a change of venue. Anthony Cardinale, an associate of F. Lee Bailey's law firm, filed Abrahams's motion. In a supporting affidavit, Cardinale stated that he was currently counsel for both Brien and Abrahams and that "there exists an extreme and inexorable conflict" between the anticipated defenses of Brien and Abrahams. Cardinale further attested that Brien's defense intended to introduce evidence establishing that Brien had no knowledge of Abrahams's prior criminal record, and that all actions taken by Brien were based on the advice of Abrahams, whom Brien believed to be an experienced legitimate businessman.

Brien's motion was filed by Kenneth J. Fishman, another associate of the Bailey law firm. His motion stated that severance was warranted because of the adverse publicity given to some of the co-defendants and because the government might introduce statements of other co-defendants that would inculpate Brien. There was no mention of a conflict of interest arising from anticipated defenses and no affidavit was filed.

The severance motions were heard on November 25, 1978 in the District Court for the District of Massachusetts. At the hearing, Mr. Cardinale stated that he would have to withdraw from representing Brien if there was no severance as "there is no way in the world that I could represent him without an obvious conflict." ²

In December 1978 the district court granted Abrahams's motion for a severance and change of venue, but denied Brien's. Brien was tried and convicted in Massachusetts in March 1979 with Cardinale serving as Brien's defense attorney. The defense called no witnesses. Abrahams was tried the following year in New York. During the course of those proceedings he pleaded guilty.

Brien appealed from his conviction to this court and his conviction was affirmed in February 1980. United States v. Brien, 617 F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). On his appeal Brien was represented by a different attorney, Daniel Kornstein of New York. No issue of ineffective assistance of counsel was raised in the direct appeal, although Brien did raise the claim in a motion for a new trial that was filed pro se on January 10, 1980. The motion was denied without a hearing. Brien thereafter raised the issue with the aid of counsel in two motions for a reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure filed on August 18, 1980 and December 15, 1980, respectively. Both of these motions were also denied without a hearing.

On December 15, 1980, Brien filed the present section 2255 petition claiming that Cardinale had been burdened by a conflict of interest arising from the joint representation of Brien and Abrahams and the fee litigation in the bankruptcy court. ³ Brien asserted that because of the conflict, Cardinale failed to call both Brien and Abrahams to testify, and to vigorously interrogate and then call other potential witnesses. Brien further argued that under the supervisory rule announced in United States v. Foster, 469 F.2d 1 (1st Cir.1972), the district judge had the duty to warn Brien about the dangers of joint representation, and that because the judge failed to give the warnings, the government had the burden of proving an unlikelihood of prejudice. Id. at 5.

The district court held an evidentiary hearing on Brien's petition. ⁴ It concluded in a memorandum issued on April 22, 1982 that the warning required by Foster had not been necessary because of the severance of Abrahams's trial, and that Brien therefore had the burden of proving "an actual conflict of interest that adversely affected his lawyer's performance," quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). The court further held that Brien failed to establish an actual conflict and found that Cardinale's actions were all justified by legitimate tactical considerations. ⁵

In this appeal Brien reiterates that it was error for the trial judge not to have warned him of the dangers of joint representation. This failure, he contends, under Foster, forces upon the government the burden of disproving prejudice. And even if the burden were otherwise, Brien urges us to find a prejudicial conflict of interest here.

Before turning to the merits of Brien's claims, a preliminary matter must be discussed. The government has argued that the Supreme Court's recent opinion in United States v. Frady, --- U.S. ----, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), compels the application of the "cause and actual prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), to this case because Brien did not raise his claim either during the trial or on direct appeal.

This case is very different from Frady. The error Frady sought to litigate by means of a section 2255 petition which he filed long after his conviction, was one that he should have raised in the original criminal proceeding both by objection and on direct appeal. Emphasizing that "a final judgment commands respect" and that "a collateral challenge may not do service for an appeal," --- U.S. at ----, 102 S.Ct. at 1593, the Court held that for Frady now to succeed he must show "cause" excusing his double procedural fault, and "actual prejudice," at ----, 102 S.Ct. at 1594.

Brien's situation is not the same. Unlike Frady, Brien could not have been expected to raise his inadequate assistance claim at trial, since he was then dependent for advice upon his allegedly inadequate attorney. Nor, although he had a different attorney by then, could Brien have raised his claim on direct appeal. While some ineffective assistance claims might be capable of presentation solely on the record of the criminal trial itself, most such claims require the independent development of evidence outside of, and collateral to, the criminal proceeding. In the instant section 2255 proceeding, the district court properly determined that Brien's claim warranted allowing him to present witnesses in support of his charge that significant evidence had been available which Mr. Cardinale failed to use. By the same token, Cardinale's deposition explaining and defending his own conduct of the case was essential. None of this evidence formed part of the record in the direct appeal, which was limited to matters presented at the criminal trial. See United States v. Campa, 679 F.2d 1006, 1014 (1st Cir.1982); United States v. Santiago Barbosa, 666 F.2d 704, 708 n.6 (1st Cir.1981); United States v. Carlson, 561 F.2d 105, 109 (1st Cir.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977).

Thus, unlike Frady, this is a case where the claim could only be presented in a collateral proceeding at which evidence could be taken, such as in a post-conviction motion or a section 2255 petition. We note, moreover, that Brien acted expeditiously. His pro se motion for new trial citing the present ground was filed while his direct appeal was pending. This was denied without hearing. He filed the present section 2255 petition that same year, several months after summary denial of his Rule 35 motion which also raised the issue. Accordingly, without the circumstances which underlay the requirement in Frady we believe its standard to be inapplicable here. ⁶

We turn now to Brien's claim. Brien first argues that his case is controlled by this court's decision in United States v. Foster, 469 F.2d 1 (1st Cir.1972). In that case we announced a supervisory rule requiring district judges to inform defendants represented by the same attorney about the dangers of joint representation. We further stated that the government would bear the burden of proving that the defendants were not prejudiced by the joint representation whenever the required warnings were not given.

Brien contends that he should have been given Foster warnings because of the fact that both he and Abrahams...