U.S. v. Acevedo, 89-1176

• Citation: 891 F.2d 607
• Decision Date: 14 August 1989
• Docket Number: No. 89-1176,89-1176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angelica ACEVEDO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 607

891 F.2d 607

UNITED STATES of America, Plaintiff-Appellee, v. Angelica ACEVEDO, Defendant-Appellant.

No. 89-1176.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1989.

Decided Aug. 14, 1989.

Thomas M. Durkin and Robert S. Rivkin (argued), Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Kenneth J. Wadas (argued), Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUDAHY and KANNE, Circuit Judges.

BAUER, Chief Judge.

A federal grand jury indicted defendant Angelica Acevedo on one count of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). A jury found Acevedo guilty of both counts. Acevedo's attorney filed a motion to vacate the judgment of guilty and for a new trial, alleging an error in the jury instructions. The district court denied the motion. Before sentencing, Acevedo retained new counsel who filed another motion for a new trial, this one alleging ineffective assistance of counsel. The district court again denied the motion. The court then sentenced Acevedo to 121 months imprisonment, to be followed by four years of supervised release. This is Acevedo's appeal.

On August 23, 1987, Georgia State Patrolman Ralston stopped a 1984 Toyota van near Dalton, Georgia, because its taillights were out. He arrested its driver, George Vasquez, for driving with a suspended New York license, and impounded the van after noticing a small amount of marijuana in the right front passenger seat. The van was registered to a Rick Muniz. Ralston obtained a warrant and then searched the van, but did not find anything other than marijuana residue. A couple of days later, two people from Chicago, claiming to know Vasquez, tried to pick up the van. Because they could not prove ownership, the sheriff's department refused to release the van. Ralston became suspicious and searched the van again. This time he found a one kilogram package of cocaine behind the taillight and four more one kilogram packages of cocaine in the insulation behind the van's rear air-conditioning control panel. The Drug Enforcement Agency (DEA) then took over responsibility for the investigation. DEA agents "dummied" the five packages of cocaine by replacing the cocaine with flour. In two of the five packages, the DEA agents also placed a half gram bag of the same cocaine which they had just removed from the packages. The packages were then dusted with an invisible fluorescent powder and returned to the van.

Approximately five months later, on January 28, 1988, Angelica Acevedo bought three airline tickets and flew from Chicago to Atlanta with two men. Upon arriving in Atlanta, Acevedo rented a car and drove to Dalton, where she rented a motel room for the night. Acevedo then took a taxi to the Dalton sheriff's department. After obtaining release of the van, she drove it back to the motel and spent the night there. (From the time that she picked up the van until her arrest in Chicago three days later, DEA agents kept Acevedo and the van under twenty-four hour surveillance.) The next morning, Acevedo and the two unidentified men headed north in the van. They arrived in Chicago that evening and left the van near Acevedo's home. On January 31, Acevedo returned to the van and drove around in an evasive manner for about forty-five minutes. The DEA agents figured that Acevedo knew she was being followed and arrested her after she got out of the van.

Attorney George Pfeifer represented Acevedo at trial. After the government rested its case, Pfeifer told the court that Acevedo was his only projected defense witness and that she had not yet decided whether to testify. The court granted Pfeifer a fifteen minute recess. Pfeifer returned and stated that Acevedo did not want to testify. The court then asked Acevedo whether she understood that the decision not to testify was her decision to make, not her attorney's. Acevedo answered "yes" and stated again that she did not want to testify. The defense then rested. After the jury found Acevedo guilty, Pfeifer filed a motion for a new trial, alleging that an erroneous jury instruction had deprived the defendant of a fair trial. The court denied the motion. Prior to sentencing, Acevedo retained new counsel who filed a second motion for a new trial, or in the alternative for an evidentiary hearing on the motion. This motion alleged that Acevedo had been denied effective assistance of counsel.

In the affidavit attached to the motion, Acevedo alleged that she "had a good faith defense to the charges." Acevedo stated that Pfeifer had arranged for the release of the van and represented to her that she would be able to purchase the van. Two days before she went to Dalton to pick up the van, Acevedo claims that she and Pfeifer met and that he gave her "papers and instructions on who to contact in Georgia to obtain the release of the van." Acevedo further alleged that she wanted to testify at trial but that "immediately prior to the time for the defense to present its case, attorney Pfeifer told [her] that if she testified, she could not mention his name, otherwise he could not represent her." She also alleged that "Pfeifer indicated that she could not testify without making him a defense witness." Acevedo concluded that her decision not to testify "was made without benefit of effective assistance of counsel because of her attorney Pfeifer's conflict of interest in her case as a potential witness." The district court disagreed with this conclusion and denied the motion for a new trial.

On appeal, Acevedo pursues her claim that she was denied effective assistance of counsel because of Pfeifer's alleged conflict of interest. To establish a violation of the constitutional right to effective assistance, Acevedo must demonstrate, one, that serious attorney error occurred and, two, that "but for" the error, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The prejudice prong of the test, however, is altered when the defendant alleges the existence of an attorney conflict of interest, as in this case. Had Acevedo put the trial court on notice of a potential conflict and the court failed to inquire further, a reviewing court will presume prejudice "upon a showing of possible prejudice." United States v. Marrera, 768 F.2d 201, 205 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321. But because Acevedo did not inform the court of a potential conflict, Acevedo must now ...