Rosenwald v. U.S., 88-3478

• Decision Date: 12 March 1990
• Docket Number: No. 88-3478,88-3478
• Citation: 898 F.2d 585
• Parties: Melvyn Jack ROSENWALD, Petitioner-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 585

898 F.2d 585

Melvyn Jack ROSENWALD, Petitioner-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 88-3478.

United States Court of Appeals, Seventh Circuit.

Submitted March 12, 1990. ^*

Decided April 2, 1990.

Melvyn J. Rosenwald, P.O. Box 1000, Tallahassee, Fla., pro se.

Frederick J. Hess, U.S. Atty., Stephen B. Clark, Asst. U.S. Atty., East St. Louis, Ill., for U.S.

Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

PER CURIAM.

Melvyn Rosenwald pleaded guilty to a charge of aiding and abetting the distribution of cocaine in the Southern District of Illinois. On September 8, 1986, Chief Judge Foreman sentenced him to ten years in prison to be followed by three years of special parole. The sentence was to run concurrently with a sentence of the same length imposed for narcotics activity in the Southern District of Florida. Rosenwald now attacks his Illinois conviction and sentence in a motion under 28 U.S.C. Sec. 2255. He alleges that he was denied the effective assistance of counsel in that his attorney, Ellis S. Simring, knowingly gave him false information as to the magnitude of the sentence he could expect in order to encourage Rosenwald to plead guilty. Simring did this, Rosenwald charges, because Simring was simultaneously performing legal work on an unrelated civil matter for Rostyslaw Kindratiw, the government's chief witness against Rosenwald, and because Simring wished to avoid having to cross-examine his own client. The district court denied Rosenwald's motion, holding that Rosenwald had shown no prejudice from his counsel's alleged misdeeds. Rosenwald filed a timely notice of appeal to this Court.

Rosenwald's argument is in two related parts. First he argues that the conflict of interest under which Simring labored deprived Rosenwald of the effective assistance of counsel, and that because of the conflict, the representation he received was adversely affected. Second, he argues that even without reference to the conflict of interest, Simring's misinformation alone made his representation constitutionally inadequate.

We note at the outset that Rosenwald failed to raise these matters by direct appeal from his conviction. This bars consideration of the issues on a motion under Sec. 2255 unless cause for the procedural default and prejudice arising from it are shown. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Norris v. United States, 687 F.2d 899 (7th Cir.1982); Williams v. United States, 805 F.2d 1301 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987). Rosenwald's Sec. 2255 motion alleges ineffective assistance of counsel, and ineffective assistance, if established, constitutes cause for a default under Frady. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). Where the ineffectiveness of counsel is predicated on a conflict of interest and the trial court is made aware of the conflict, prejudice is presumed if the attorney "actively represented conflicting interests." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). Even if the trial court is not notified at trial of the conflict, the movant is still not required to make the full showing of prejudice usually required under Strickland (i.e., that it is more likely than not that the outcome of the proceeding would have been different had the attorney acted properly), but needs only to show that an "actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988); Walberg v. Israel, 766 F.2d 1071, 1075 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). Because Rosenwald never raised the conflict before his conviction, he must show an actual conflict of interest and an adverse effect of that conflict on the representation he received.

The district court, without affording an evidentiary hearing and without reaching the cause component of the Strickland standard, found that Rosenwald had not shown any prejudice arising from Simring's representation of the government's witness. The district court wrote:

Simring's representation of Kindratiw in unrelated civil matters was not so fraught with the danger of dividing counsel's loyalties as to justify a present finding of a sixth amendment violation as a result of conflicting interests. Petitioner has not set forth any facts demonstrating that Simring decided not to pursue a possible defense or misinformed petitioner because of his representation of Kindratiw. Furthermore, petitioner never went to trial and Kindratiw did not appear at petitioner's sentencing hearing. Hence, Simring's representation of Kindratiw on unrelated civil matters did not prejudice his representation of the petitioner.

The district court may have believed that the civil nature of Simring's representation of Kindratiw made the conflict less onerous. We disagree with that proposition. The pragmatic pressure on counsel in cases such as these is purely financial--the lawyer does not want to lose a client whether that client is seeking advice on civil or on criminal matters. The ethical dilemma is also the same--the attorney must still guard secrets and confidences and must seek to promote the client's interests whether the client is being represented in a civil or a criminal matter. See ABA Model Code of Professional Responsibility, DR 4-101, EC 4-5 and n. 7 (confidentiality), DR 5-101(A), EC 5-14, 5-15, 5-16 (conflict of interest); ABA Model Rules of Professional Conduct Rule 1.6(a) (confidentiality), 1.7(b) (conflict of interest). The fact that the simultaneous representation is on a civil matter makes no difference in the conflict of interest inquiry. See Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974).

We also disagree with the district court's ruling that the fact that Rosenwald did not go to trial undermined his allegations of prejudice. If Simring took steps in advance of trial to avoid having to cross-examine Kindratiw, Rosenwald was nonetheless the victim of Simring's divided loyalties. Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978); United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986) (review of counsel's performance includes actions not taken at trial). The record before us does not conclusively establish that Simring's representation of...