U.S. v. Litchfield

• Decision Date: 24 March 1992
• Docket Number: No. 90-8102,90-8102
• Citation: 959 F.2d 1514
• Parties: , 35 Fed. R. Evid. Serv. 280 UNITED STATES of America, Plaintiff-Appellee, v. Douglas William LITCHFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1514

959 F.2d 1514

60 USLW 2667, 35 Fed. R. Evid. Serv. 280

UNITED STATES of America, Plaintiff-Appellee, v. Douglas William LITCHFIELD, Defendant-Appellant.

No. 90-8102.

United States Court of Appeals, Tenth Circuit.

March 24, 1992.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

John R. Green, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Gay Woodhouse, Asst. U.S. Atty., and Maynard D. Grant, Sp. Asst. U.S. Atty., with him on the brief), D.Wyo., Cheyenne, Wyo., for plaintiff-appellee.

Before LOGAN and BRORBY, Circuit Judges, and OWEN, District Judge. ^*

LOGAN, Circuit Judge.

Defendant Douglas Litchfield appeals his conviction and the sentence imposed upon him for conspiracy in violation of 18 U.S.C. § 371, several counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, a count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and aiding and abetting in violation of 18 U.S.C. § 2. These violations were found in connection with an investment scheme in an alleged mining operation that defrauded investors.

Defendant asserts errors in his trial and sentencing as follows: (1) defendant was prejudiced when his appointed counsel breached his ethical duty and had a conflict of interest; (2) admission of certain evidence was erroneous and prejudicial to defendant; (3) the jury instruction explaining reasonable doubt was erroneous and prejudicial; (4) the district court in sentencing defendant improperly found defendant was an organizer or leader meriting a four point increase in offense level; (5) the court erred in giving defendant a two point increase in offense level for obstruction of justice; and (6) the court abused its discretion by sentencing defendant to consecutive, rather than concurrent, prison terms.

I

Defendant asserts that his trial counsel had a conflict of interest and breached his ethical duty by his ex parte revelations to the district court, requiring reversal of the convictions. This claim stems from a transcribed, ex parte discussion between defendant's trial counsel and the district court judge, which occurred during trial. In the ex parte discussion, initiated at the defense lawyer's request, the lawyer expressed concern to the court about a perceived conflict between his ethical duty to his client and to the court. Counsel explained he had advised defendant that he believed defendant could not prevail without personally testifying. Counsel further explained that defendant wished to testify, largely because of that advice. Counsel was concerned, however, that the testimony he would elicit during his direct examination would include untruths, thus implicating counsel's duty as an officer of the court. The court responded, appropriately we believe, as follows:

Well, you're not in a position that seems to me to decide--not in the best position, let's put it that way, to decide what is true and not true. Certainly, there may be things that he testifies to that are contradictory. Nor am I in a good position even based upon what I've heard from you because I don't hear a declaration from you that I believe that my client will speak untruthfully or that a fraud will be perpetrated upon the Court, and so I'm not making up my mind or making any decision in that regard and would prefer to let the jury listen to the evidence, weigh it and arrive at its own conclusions.

Id. at 6-7. Counsel concluded by explaining:

it's going to be, as I think you'll see from the cross-examination from start to finish, there are what I consider to be many, many inherent inconsistencies. And I just--I guess I really just want to make it clear to the Court that I do not feel comfortable being part of this, but I feel I have to ask the questions that I have to ask because my client has made the decision to take the stand.

Id. at 8.

A defendant can pursue an ineffective assistance of counsel claim by showing that counsel had an actual conflict of interest. E.g., Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir.1988). Ordinarily, a defendant claiming ineffective assistance of counsel must show prejudice to the defendant, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); however, if defendant shows that trial counsel actually represented conflicting interests, prejudice is presumed. Id. at 692, 104 S.Ct. at 2067; Nix v. Whiteside, 475 U.S. 157, 176, 106 S.Ct. 988, 999, 89 L.Ed.2d 123 (1986); Osborn, 861 F.2d at 626. "In order to establish an actual conflict, [defendant] must demonstrate 'as a threshold matter ... that the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests.' " United States v. Acevedo, 891 F.2d 607, 610 (7th Cir.1989) (quoting United States v. Horton, 845 F.2d 1414, 1419 (7th Cir.1988)) (ellipsis in original).

Defendant alleges a conflict of interest between counsel's duty of loyalty to defendant and counsel's desire to protect his own reputation before the district court. Defendant acknowledges that "[c]ounsel ethically cannot assist his client in presenting what the attorney has reason to believe is false testimony." United States v. Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978). But, defendant argues, "[a]n attorney must clearly know rather than suspect fraud on the court before advising the court." Appellant's Opening Brief at 15.

Our reading of the Rules of Professional Conduct for attorneys, however, convinces us that counsel did not clearly violate his ethical responsibility; counsel merely sought to satisfy both his duty to the court and his duty to defendant. Wyoming Rule of Professional Conduct 3.3, for example, provides that "A lawyer shall not knowingly: ... offer evidence that the lawyer knows to be false.... A lawyer may refuse to offer evidence that the lawyer does not know to be false but reasonably believes is false...." The commentary to Rule 3.3 explains at length that although the rule applies to counsel for criminal defendants, the obligation it imposes in specific circumstances is a matter of debate. See Wyo. Rule of Professional Conduct 3.3, comment -. In the instant case, defendant, on advice of counsel, wished to exercise his constitutional right to testify in his own defense. At the same time, counsel had reason to believe, based upon his experience with defendant, that some of the testimony counsel would elicit upon examination of defendant would be false. This situation presented counsel with a difficult dilemma, and we cannot say that his ex parte discussion with the district court was a violation of his ethical duty or evidence of a conflict of interest.

Defendant asserts that counsel should have withdrawn as counsel rather than make the disclosure to the district court. However, it is unlikely the court would have permitted his withdrawal in the middle of a lengthy trial because of the prejudice to both the defendant and the state. Cf. Wyo. Rule of Professional Conduct 3.3, Comment . The court noted that defense counsel had "been devoting virtually all of his time to [defendant] ... and preparing for this litigation and working very diligently." III R. 24. Moreover, defense counsel had "worked very diligently throughout the case to preserve points for appeal on the record." XIII R. 40. We see no actual conflict of interest and no ground for an ineffective assistance of counsel claim.

II

Defendant also argues reversible error based upon the admission of evidence of a separate, but closely analogous, gold marketing scheme, OREO; evidence that defendant had been cited for failing to acquire certain permits; and evidence of an Indiana cease and desist order. "Determinations of whether to allow the admission of evidence lies within the sound discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion." United States v. Morgan, 936 F.2d 1561, 1571 (10th Cir.), petition for cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992).

A

OREO was a separate gold mining scheme that mirrored WESCON, the scheme at issue in this case. The ore that allegedly existed to provide the gold under the OREO scheme was immediately adjacent to the ore that allegedly existed to support the WESCON scheme, and defendant's participation in OREO was identical with his participation in the WESCON scheme. The WESCON marketing booklet and allegedly false representations in the booklet, which are central to the charges in the instant case, were also used in essentially the same form in the OREO scheme.

Defendant made a motion in limine to exclude all evidence regarding the OREO scheme as irrelevant and potentially prejudicial. The government argued, however, that the evidence was relevant to show lack of mistake or accident on the part of defendant and to establish intent to defraud investors. See Fed.R.Evid. 404(b). The district court recognized the potential for jury confusion and prejudice and excluded all OREO evidence except the OREO booklet itself and its representations, and defendant's knowledge of the booklet and its representations. The district court cautioned the jury that OREO was not involved in the case and they should "sort through what [they were] about to hear and decide and listen for those conversations or those things that relate to the WesCon portions of transactions." VIII R. 90. On another occasion, the district court sustained defendant's objection and instructed the jury to disregard a question involving OREO investments.

Evidence of lack of mistake or accident is relevant in proving fraudulent intent, an element of mail and wire fraud. See, e.g., United States v. Taylor, 832 F.2d 1187, 1192 (10th Cir.1987) (fraudulent intent is an element of mail fraud); United States v. Gamble, 737 F.2d 853, 856 (10th Cir.1984) (specific...