U.S. v. Soto Hernandez, 86-1827

• Decision Date: 24 June 1988
• Docket Number: No. 86-1827,86-1827
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector SOTO HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1325

849 F.2d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Hector SOTO HERNANDEZ, Defendant-Appellant.

No. 86-1827.

United States Court of Appeals, Tenth Circuit.

June 24, 1988.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

David N. Williams, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Mark D. Jarmie, Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.

Before LOGAN, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Hector Soto Hernandez was convicted of two counts each of possession with intent to distribute and distribution of heroin in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) and 18 U.S.C. Sec. 2. Soto argues that he was denied his sixth amendment right to effective assistance of counsel and he seeks a new trial on this ground. The district court denied the defendant's new trial motion. We affirm.

Soto was arrested on November 10, 1985, and charged in New Mexico state court with trafficking in heroin and conspiracy. After Soto's arrest, he was informed that he was not eligible for appointed counsel in the New Mexico system. His fiancee, Kelly Edge, sought to engage an attorney for Soto and went to Mexico to see Astolpho Perez, for whom both she and Soto had worked, about money she claimed he owed her. She planned to use the money Perez owed her to procure an attorney's services. Perez did not give Edge any money, but when she told him that Soto needed a lawyer, he referred her to Chris Lackmann, who had previously represented Perez in a child custody matter. Lackmann was hired. Edge originally thought that Perez was going to pay for Soto's representation. He did not, and Edge paid Lackmann $6,000. The state charges were subsequently dismissed and a federal grand jury indicted Soto on charges of possession with intent to distribute and distribution of heroin.

Soto's sole defense was that any illegal acts he may have committed were the product of duress. Soto initially told Lackmann that the source of his duress was someone named Ruben, but he eventually told him that it was Perez who had coerced him to participate in heroin trafficking by threatening both Soto and his family. Because he had represented Perez in the custody suit, Lackmann sought outside guidance concerning whether there was a conflict of interest. He concluded that there was none. He also informed Soto of his prior representation of Perez and offered to withdraw. Soto indicated, however, that he wanted Lackmann to continue to serve as his attorney. Soto now claims that, because he had been denied appointed counsel in the New Mexico state system, he believed he was not entitled to appointed counsel in federal court. He believed that his choice was between Lackmann and no counsel at all, and he chose to stay with Lackmann.

Even though he told Lackmann before trial that Perez had coerced him, when called upon to testify at trial Soto again named Ruben as the one who had threatened him and his family. Soto also testified that he knew of Ruben's violent acts against others and he suspected that Ruben was responsible for an "accident" involving Soto's father. Edge, who was the only other defense witness, testified that Perez had threatened her and the defendant. Soto was convicted of all counts in the indictment.

Soto, through newly appointed counsel, filed a motion for a new trial on the ground that his trial counsel was ineffective. The trial court denied the motion as untimely. Soto appealed to this court and requested that the court remand the matter for the limited purpose of an evidentiary hearing on the new trial motion. This court granted the request and an evidentiary hearing was held on November 21, 1986.

At the hearing, Soto testified that he did not fully cooperate with his attorney because he did not trust him. Among his reasons for this lack of trust were his fear of Perez and his concern that Lackmann was relaying information to Perez that he obtained from Soto in the course of his representation. ¹ He also contends that because he thought that Perez was going to pay Lackmann's legal fees, he believed that Lackmann was representing Perez's interests rather than his own. The district court denied the new trial motion on the merits and Soto appeals.

Soto's ineffective assistance claim is three-fold. First, he alleges that his lack of trust in his counsel, precluded counsel from providing effective assistance. Second, he contends that his trial counsel was operating under an actual conflict of interest that denied Soto the representation he is guaranteed under the sixth amendment. Third, he argues that even if his counsel was not per se ineffective either because of a lack of communication or an actual conflict of interest, Lackmann's performance was constitutionally deficient.

I.

Soto's first argument arises out of the unusual manner in which his relationship with his counsel, Lackmann, was initiated. He contends that because he perceived that Lackmann was acting as an "agent" for Perez, he did not communicate as fully with Lackmann as he could have. He argues that his perception made him so distrustful of his attorney that an effective attorney/client relationship was impossible.

In United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984), the Supreme Court held that in certain circumstances a presumption of ineffectiveness arises making it unnecessary to examine actual performance of counsel. A complete breakdown in communication between an attorney and client may give rise to such a presumption. For example, the Ninth Circuit has held that a breakdown in communication between an attorney and his or her client can be severe enough to prevent even the most able counsel from providing effective assistance. See, e.g., United States v. Williams, 594 F.2d 1258, 1259-61 (9th Cir.1979); Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970).

In Brown, a dispute between a first-degree murder defendant and his appointed counsel arose almost immediately after the attorney's appointment. 424 F.2d at 1169. As a result of that dispute, "Brown was forced into trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate." Id. (emphasis added). The defendant was convicted of second-degree murder and challenged his conviction on sixth amendment grounds. The Ninth Circuit held that one who "undergoe[s] a trial with the assistance of an attorney with whom he has become embroiled in an irreconcilable conflict" is deprived of the effective assistance of counsel. Id. at 1170. Similarly, in Williams, where the attorney/client "relationship had been a stormy one with quarrels, bad language, threats, and counter-threats," 594 F.2d at 1260, the court found that the irreconcilable conflict frustrated the attorney's ability to provide the effective assistance of counsel that the sixth amendment guarantees. Id.

We are not faced here with the sort of irreconcilable conflict that marked the attorney/client relationships in Brown and Williams. In fact, the relationship between Soto and Lackmann was marked by significant communication. The district court found that whatever the level of Soto's mistrust of Lackmann, it "did not result in a lack of communication between Lackmann and defendant as to the essentials of defendant's defense, nor did it lead to a breakdown of the attorney/client relationship." We are satisfied that any lack of communication was not such that it rendered Lackmann's assistance per se ineffective.

II.

Soto also claims that Lackmann operated under an actual conflict of interest while representing Soto at trial. The sixth amendment entitles a criminal defendant to an attorney free of interests that actually conflict with those of the accused. See Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). This right is not limited to cases involving joint representation of codefendants at a single trial, but extends to any situation in which a defendant's counsel owes conflicting duties to that defendant and some other third person. Wood v. Georgia, 450 U.S. 261, 268-72, 101 S.Ct. 1097, 1101-1103, 67 L.Ed.2d 220 (1981); United States v. Winkle, 722 F.2d 605, 609-10 (10th Cir.1983). To prevail on an ineffective assistance claim of this variety "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Once an actual conflict and an adverse effect are shown, an accused need not show prejudice to receive relief. Id. at 349-50, 100 S.Ct. at 1718-19; Winkle, 722 F.2d at 610. Soto contends that Lackmann's previous representation of Perez in a child custody case created a conflict with Lackmann's representation of Soto in the present matter.

While we review the district court's ultimate determination of whether an actual conflict existed de novo, the court's resolution of the underlying facts giving rise to its conclusion is subject to a clearly erroneous standard of review. Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714. We agree with the district court's determination that no actual conflict existed.

In Winkle, this court recognized that an attorney's previous representation of someone other than the defendant may give rise to an actual conflict for the attorney. 722 F.2d at 610. In that case, however, the preexisting attorney/client relationship was between a defense attorney and someone who was subsequently the principal government witness in a case against the attorney's current client. Moreover, the attorney had represented the witness in "litigation with a factual relationship to some issues" in the case involving the attorney's present client. Id.

The case...