U.S. v. Wheat

• Decision Date: 11 May 1987
• Docket Number: No. 86-5002,86-5002
• Citation: 813 F.2d 1399
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Eric WHEAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1399

813 F.2d 1399

UNITED STATES of America, Plaintiff-Appellee, v. Mark Eric WHEAT, Defendant-Appellant.

No. 86-5002.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1986.

Decided April 2, 1987.

As Amended May 11, 1987.

John J. Cleary, San Diego, Cal., for defendant-appellant.

Roger W. Haines, Jr., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, GOODWIN and FARRIS, Circuit Judges.

GOODWIN, Circuit Judge:

Mark Eric Wheat appeals his convictions for conspiracy to possess in excess of 1,000 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; and for possessing marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Wheat was one of 14 defendants charged on counts relating to a marijuana importation and distribution scheme that spanned nearly three years. Wheat stored massive marijuana deliveries--as much as a ton or more at a time--at his house in Escondido, California.

Wheat contends: (1) that the trial court erred in denying his motion to substitute his attorney when he waived his right to conflict-free representation; (2) that he had a right to be present at, or to be informed about, the district judge's ex parte discussion with Wheat's attorney regarding that attorney's drug and alcohol abuse; and, (3) that package-deal plea bargains should be declared illegal.

I. Substitution of Attorney

The trial court balanced two sixth amendment rights: (1) the qualified right to be represented by counsel of one's choice; (2) and the right to a criminal defense conducted by an attorney who is free of conflicts of interest. The codefendants agreed to waive their rights to contest any potential or actual conflicts of interest that developed. The trial court did not abuse its discretion in overriding the waiver and denying Wheat's substitution motion.

Wheat moved to replace his original attorney of choice with Eugene Iredale, or, in the alternative, to permit Iredale to associate himself with the original attorney on the case. The government objected to the substitution on conflict of interest grounds, noting that Iredale represented two of Wheat's codefendants. At no time did Wheat contend that he wanted Iredale because he was dissatisfied with his present attorney. Rather, the record indicates that Wheat was impressed by Iredale's representation of Wheat's codefendants, and desired to benefit from his expertise.

Wheat first made the substitution request five days before trial. The request was made immediately after Javier Bravo (one of the two codefendants represented by Iredale) pleaded guilty to count one of the superseding indictment. The parties dispute whether the government originally planned to call Bravo as a witness in Wheat's trial or decided to call Bravo in order to manufacture conflicts to keep Iredale out of Wheat's case. Iredale maintained that no conflict would arise because Bravo's testimony--that he never knew or met Wheat in the marijuana distribution network--would not be adverse to Wheat.

The government also expressed concern over the potential conflict of interest regarding Iredale's other client, Juvenal Gomez-Barajas. Gomez-Barajas had already been acquitted on drug charges overlapping with the charges against Wheat. Gomez-Barajas had pleaded guilty, however, to charges of tax evasion and illegal importation of merchandise. The government contended that a conflict between Wheat and Gomez-Barajas could arise if Gomez-Barajas withdrew his guilty plea before sentencing, and then proceeded to trial. The prosecution contended that Wheat might have to testify about Gomez-Barajas' marijuana dealings relating to the income tax evasion charge on the question of Gomez-Barajas' net worth. Finally, the government noted that witnesses in Gomez-Barajas' marijuana trial had referred to Wheat more than 30 times, thus demonstrating a relationship between Gomez-Barajas and Wheat.

Despite the potential conflicts, Wheat, Gomez-Barajas, and Bravo agreed to waive any rights arising out of any potential or actual conflicts of interest. The court overrode these purported waivers and refused to permit Iredale to represent Wheat. Wheat proceeded to trial with his original lawyer and was convicted on six counts.

Discussion

Within sixth amendment limits, substitution of counsel is discretionary. We review for abuse of that discretion. United States v. Whaley, 788 F.2d 581, 583 (9th Cir.1986).

The sixth amendment provides that criminal defendants who can afford retained counsel have a qualified right to counsel of their choice. United States v. Ray, 731 F.2d 1361, 1365 (9th Cir.1984). The right is qualified by the need to avoid undermining public confidence in the integrity of the legal system. United States v. Washington, 797 F.2d 1461, 1465 (9th Cir.1986). Wrongful denial of this qualified right is reversible error even without a showing of prejudice. Washington, 797 F.2d at 1467. "A facet of the right to counsel of choice is the defendant's ability to waive his right to the assistance of counsel unhindered by a conflict of interest, provided that waiver is knowing and intelligent." United States v. Agosto, 675 F.2d 965, 969-70 (8th Cir.), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 74 (1982).

But the sixth amendment also guarantees each criminal defendant the right to assistance of counsel "unhindered by a conflict of interests." Cuyler v. Sullivan, 446 U.S. 335, 355, 100 S.Ct. 1708, 1722, 64 L.Ed.2d 333 (1980) (Marshall, J., concurring in part and dissenting in part), quoting Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 L.Ed.2d 426 (1978)).

The trial court was put in the position of balancing the two concerns--the right to representation free of conflicts of interest, and the right to representation of one's choice--knowing that denial of either of these would result in an appeal assigning the ruling as reversible error. Reviewing courts should be especially wary of complaints of error when the defendant's substitution request places trial courts in a position to be whipsawed in the expectation of a guaranteed error no matter which way the courts rule. Cf United States v. Jones, 512 F.2d 347, 350-51 (9th Cir.1975). The court justifiably deferred to strong sixth amendment interests in guarding against potential conflicts that were likely to develop.

A. Was there a Potential Conflict of Interest?

Most appeals involving conflict of interest claims by criminal codefendants arise following trial. See Agosto, 675 F.2d at 970. This case, however, deals with the conflict of interest concern prospectively, when the trial court has power to avoid potential conflicts that might otherwise result in reversible ineffective assistance of counsel. We recognize that determining whether codefendants' interests will be adverse is difficult before trial. See United States v. Dolan, 570 F.2d 1177, 1181-82 (3rd Cir.1978).

In successive representation, conflicts of interest arise if an attorney reveals privileged communications of the former client, or otherwise divides his loyalties so that he is incapable of diligently representing his client. See Trone v. Smith, 621 F.2d 994, 998-99 (9th Cir.1980). The government argues that such conflicts were either actually present or very likely to develop had Iredale represented Wheat.

Wheat argues that any alleged conflicts were speculative at most. He argues that his sixth amendment right to counsel of choice demands closer scrutiny of the alleged conflicts, relying on Washington, 797 F.2d 1461 (decided after Wheat's conviction). In Washington, we vacated a ruling disqualifying retained counsel on conflict of interest grounds, and remanded for a finding of fact on whether one of the retained lawyers actually received confidential information. Id. at 1466-67.

We need not remand this case for an evidentiary hearing, however, because Wheat does not deny that Iredale received privileged information from his two codefendants; Iredale simply said he did not intend to use any of the privileged communications from Bravo in cross-examination. The mere possession of a former client's and codefendant's privileged communications poses the precise potential for conflict that the trial court had the discretion to avoid in this instance. Iredale could have misused those communications in cross-examining Bravo and Gomez-Barajas in Wheat's trial, which is a matter "substantially related" to the proceedings involving his codefendants. ¹ Likewise, had Iredale represented Wheat he could have received privileged information from Wheat that could have been misused in later representations of Gomez-Barajas and Bravo. Hence, we find there was a significant potential for misuse of privileged information.

Wheat next argues that Iredale's representation would not have created any conflicts because the interests of the three codefendants were not adverse. The government disputes this, pointing out that Bravo's testimony corroborated two overt acts from Wheat's indictment. At oral argument the assistant United States attorney said that Wheat's original attorney implied that Gomez-Barajas was much more culpable in the marijuana distribution scheme than Wheat. Because of Iredale's continuing ethical duty to his client, Gomez-Barajas, he would not have been free to make the same implications had he represented Wheat. This argument strongly supports the trial court's action.

Wheat's failure to move for substitution until five days before trial makes it even clearer that the trial court did not abuse its discretion by denying the substitution request. See United States v. Michelson, 559 F.2d 567, 571-72 (9th Cir.1977) (trial court did not abuse its discretion in denying a request to remove defendant's attorney, because of alleged nonsympathy as to one of defendant's...