U.S. v. Winkle

• Decision Date: 05 December 1983
• Docket Number: No. 81-2176,81-2176
• Citation: 722 F.2d 605
• Parties: 14 Fed. R. Evid. Serv. 1358 UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Don WINKLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 605

722 F.2d 605

14 Fed. R. Evid. Serv. 1358

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Don WINKLE, Defendant-Appellant.

No. 81-2176.

United States Court of Appeals, Tenth Circuit.

Dec. 5, 1983.

Albert R. Matthews of Bonds, Matthews, Bonds & Hayes, Muskogee, Okl., for defendant-appellant.

Donn Baker, Asst. U.S. Atty., Gary L. Richardson, U.S. Atty., and Mark F. Green, Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.

Before HOLLOWAY, DOYLE and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal by defendant, Jimmy Don Winkle, from a conviction on two counts of knowingly and intentionally distributing controlled substances, methylphenidate (Ritalin) and oxymorphone (Numorphan), in violation of 21 U.S.C. Sec. 841(a)(1). ¹

Defendant makes three arguments on appeal: (1) he was denied his Sixth Amendment right to effective assistance of counsel; (2) the Government failed to rebut his prima facie case of entrapment, entitling him to an acquittal; and (3) the trial court erred in not admitting evidence demonstrating that it was legal for the defendant to possess the controlled substances.

We will outline the factual background and then consider these contentions.

I

The facts

When considered in the light favorable to the Government as it must be after a conviction, the record tends to show the following facts.

The defendant owned a horse ranch and was a horse trainer. The Chief of Police of the Weleetka Police Department (Chief Lucas) had received reports that the defendant was distributing controlled substances. Apparently these substances were valuable in horse racing because they could increase a horse's performance.

Several months before defendant's arrest, Chief Lucas approached Wood Lee (Buck) Cox to solicit his aid in arranging a buy of controlled substances from the defendant. The defendant and Cox were acquaintances. The defendant had employed Cox, and they had been involved in litigation together. Mr. Cox declined to assist in the investigation because several months earlier, while training to be a police officer, he had suffered a stroke. III R. 9. Approximately two months later, Cox approached Chief Lucas and offered to assist in the investigation. At this time, although Cox was unable to work full time for the police, he did hold a Police Officer's Commission with the Weleetka Police Department. III R. 17.

An undercover narcotics buy was arranged in which Cox was to obtain controlled substances from the defendant. On June 4, 1981, Cox went to the defendant's ranch. There, Cox told the defendant that he needed controlled substances for use in a horse race. There was testimony at trial that the defendant provided Cox with some controlled and uncontrolled substances in exchange for $20.00. However, no charges were filed against the defendant as a result of this transaction.

Mr. Cox again sought to obtain controlled substances from the defendant on June 9, 1981. On this date, the Government provided Cox with $400.00 in marked bills to make a purchase. Cox obtained controlled substances, Ritalin tablets and Numorphan, from the defendant and defendant accepted the $400.00. The defendant was subsequently arrested, and charged with unlawfully distributing Schedule II controlled substances and unlawfully possessing such substances with intent to distribute. ² 21 U.S.C. Sec. 841(a)(1).

During the presentation of the defendant's evidence several witnesses testified that Cox had borne a grudge against the defendant because of the litigation in which the two had earlier been involved. ³ This The prosecution objected that this was irrelevant, and the attorneys approached the bench. Out of the jury's hearing, attorney Thompson explained that he had "personal knowledge that [Cox] borrowed three hundred-fifty dollars off Mr. Winkle [the defendant] to pay me that fee." III R. 47. The court stated that defendant's attorney was "getting close to some kind of a conflict." Id. The prosecution argued that the defense should not be permitted to make this inquiry because Cox was entitled to know the rules of the attorney-client privilege and he probably did not. Id. at 48. The judge stated he did not see how the matter was important and that defendant's attorney had "better drop it," ⁴ and then sustained the Government's objection to the evidence. Id. at 48-49.

earlier litigation is crucial to the principal issue of this appeal, the claim of ineffective assistance of counsel. One of defendant's attorneys, Mr. Thompson, previously represented Mr. Cox in the earlier litigation in which the defendant and Cox were involved. During the trial of the instant case, defendant's attorney Thompson cross-examined Cox and asked if Cox had ever borrowed money from defendant Winkle, which Cox denied. III R. 44. Then Thompson asked where Cox had obtained the funds to pay his attorney (Mr. Thompson) in the earlier litigation.

The defendant presented several witnesses who testified concerning defendant's good reputation for truth and veracity and Cox's bad reputation in that respect. Defendant then testified at length concerning his close friendship with Cox; that Cox had come to him and explained his extreme need for the substances to run his horses; that defendant tried to get Cox to use a non-controlled substance before giving him the controlled substances; and that Cox gave him the $400 as repayment on previous loans. III R. 199-201.

After the arguments and the charge to the jury, the jury deliberated and returned verdicts of guilty on Counts I and II on which sentences were later imposed. ⁵ This appeal followed.

II

Assistance of counsel

Defendant's first argument on appeal is that he was denied his Sixth Amendment right to effective assistance of counsel. He says that neither of his two trial counsel conducted proper pretrial investigation to prepare the case for trial; that one of his trial counsel was incapable of participating in his trial because of his physical condition and also had expressed a willingness to let the defendant go to jail; that Mr. Thompson, the attorney who presented defendant's case at trial, had an actual conflict of interest because he had previously represented the Government's key witness (Cox), and this conflict adversely affected Mr. Thompson's performance. Appellant's Brief at 12, 15, 17, 21.

All the complaints of ineffective representation except that of a conflict of interest require only brief comment. The trial record shows vigorous presentation of the defense at trial. Mr. Thompson made the actual objections and arguments, conducted cross-examination and examined the several defense witnesses, vigorously and professionally. The trial judge asked defendant at sentencing whether he was satisfied with the attorneys' services and he asserted his dissatisfaction with their performance. He said he felt the final day was "handled very badly." III R. 276. ⁶

                The trial judge stated for the record that he felt the trial attorneys "handled themselves admirably and conducted themselves properly and submitted the evidence to the Court and the Jury as well as they could."    The judge stated that defendant's attorneys did "a good job."    III R. 281-82
                

From our examination of the trial record we agree with this assessment by the trial judge. We note also that trial counsel for defendant prevailed on their motion to suppress substantial amounts of Government evidence, which led to the dismissal of Counts III through VII. Thus we find no merit in defendant's general complaint that his counsel were ineffective. ⁷

There remains, however, a more serious specific claim of conflict of interests. As noted, the record reveals that Mr. Thompson's prior representation of Cox created a doubt whether the defendant's representation was adequate. The Sixth Amendment entitles a defendant in a criminal case to the effective assistance of competent counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. King, 664 F.2d 1171, 1172 (10th Cir.1981). The constitutional guarantee demands that defense counsel "exercise the skill, judgment and diligence of a reasonably competent defense attorney." Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). To establish a violation of the guarantee a defendant must show that his counsel failed to meet that standard and that the inadequacy " 'has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense.' " United States v. Glick, 710 F.2d 639, 644 (10th Cir.1983) (quoting United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981)).

However, there are special considerations which apply where a defendant's counsel has a conflict of interests. In Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180, 55 L.Ed.2d 426 (1978), the Court said that it read Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), as holding that whenever a trial court improperly requires joint representation over timely objection, reversal is automatic. The Court stressed that in cases of joint representation of conflicting interests, the evil "is in what the advocate finds himself compelled to refrain from doing." Holloway, supra, 435 U.S. at 490, 98 S.Ct. at 1182 (emphasis in original).

In Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), the Court discussed possible conflicts which inhere in almost every instance of multiple representation, concluding that the defendant who does object at trial to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. The Court held that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual...