U.S. v. Greig

• Citation: 967 F.2d 1018
• Decision Date: 23 July 1992
• Docket Number: No. 91-8235,91-8235
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert John GREIG and Craig Wayne Hanley, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1018

967 F.2d 1018

UNITED STATES of America, Plaintiff-Appellee, v. Robert John GREIG and Craig Wayne Hanley, Defendants-Appellants.

No. 91-8235.

United States Court of Appeals,

Fifth Circuit.

July 23, 1992.

Terrence W. Kirk, Joseph A. Turner, Austin, Tex., for defendant-appellant Craig Wayne Hanley.

Cloud H. Miller, III, Atlanta, Ga., for defendant-appellant Robert John Greig.

Mark R. Stelmach, Asst. U.S. Atty., Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before BROWN, KING and WIENER, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This controversy arises out of a successful reverse sting operation in Austin, Texas involving $230,000 and 500 pounds of marijuana, for which Appellants Greig and Hanley were convicted of marijuana conspiracy offenses. We affirm Hanley's conviction and sentence. With respect to Greig, however, we find that his counsel had a conflict of interest which denied Greig his Sixth Amendment right to effective assistance of counsel. Accordingly, we reverse and remand to the district court for a new trial.

The Sting

Undercover DEA agent Sanchez and government informant Clark arranged with Craig Hanley, Ernest Vasquez, and Daniel McGarrigle to find a buyer for a 500 pound load of marijuana. After several telephone conversations, agent Sanchez met with Hanley on September, 19, 1990 and showed him the marijuana. On September 20, Sanchez met with Hanley, Vasquez, and McGarrigle to finalize the deal. Robert Greig was contacted as a potential buyer and the same day, agent Sanchez showed Greig the marijuana after which they agreed on a site for the exchange later that day. Greig arrived at the designated time and place carrying a cardboard box full of $230,000 in cash. Greig, Hanley, Vasquez and McGarrigle were then arrested.

In October, 1990, Greig, Hanley and Vasquez were charged with (1) conspiring to possess with intent to distribute 500 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1) ¹ and 846; ² and (2) attempting to possess with intent to distribute 500 pounds of marijuana, in violation of 21 U.S.C. 841(a)(1) and 846. ³ Vasquez and McGarrigle entered guilty pleas, and Greig and Hanley were tried together before a jury. Greig was found guilty on both counts, and was sentenced to two concurrent 136 month terms of imprisonment, two concurrent five year terms of supervised release, a fine of $17,500 and a mandatory special assessment of $100. The jury found Hanley guilty only on the conspiracy count, and he was sentenced to 108 months of imprisonment, five years of supervised release and a $50 mandatory special assessment. Both Greig and Hanley appeal.

Greig raises a number of objections to the verdict and his sentence, complaining that the district court erred by (1) refusing to offer him the opportunity to substitute counsel; (2) allowing the Government to call informant Clark as a rebuttal witness; (3) increasing his sentence for obstruction of justice; (4) failing to decrease his sentence for acceptance of responsibility for his crime; and (5) increasing his sentence for his role as leader of the conspiracy. Hanley, on the other hand, raises the single argument that the court erred in refusing to give his proposed jury instruction regarding his alleged good faith belief that he was a government informant. We first turn to Greig's ineffective assistance of counsel claim.

I. Greig's Sixth Amendment Right to Effective Assistance of Counsel The Critical Sequence of Events Behind It All

On February 19, 1991, before Greig's and Hanley's trial began, the court held Ernest Vasquez' rearraignment proceeding. There Vasquez' lawyer brought to the court's attention the following improper communications by Greig's counsel. He told the trial judge that after he informed Greig's lawyer of Vasquez' plea negotiations with the Government, Greig approached him and Vasquez stating, "[t]hey [the Government] cannot convict me without your testimony." ⁴ Vasquez' lawyer then stated that he advised Vasquez to have no further contact with Greig. Vasquez' lawyer next explained to the court that after a plea agreement had been signed, Vasquez was asked by Greig to meet with Greig and Greig's lawyer. Vasquez met with them and was advised to plead not guilty based upon a valid entrapment defense. Vasquez' lawyer then reported to the court a second meeting. He stated that Greig and his counsel visited Vasquez' job site and again suggested that Vasquez not plead guilty on the basis that he had a valid entrapment defense. He reported that Greig's lawyer in this meeting also told Vasquez that he should seek other counsel. Finally, Vasquez' lawyer complained to the trial judge that Greig's lawyer never asked for his permission to consult with Vasquez; never informed him of the fact that he twice met with Vasquez; and never attempted to discuss with him the entrapment defense.

On the same day, prior to jury selection at the start of the trial, the district court informed Greig's counsel that, in his absence, "the Court heard evidence today of that on two different occasions you personally visited with Mr. Vasquez, advised him that he should not plead guilty, that he had a defense, and that his lawyer was not doing for him what another lawyer should do or be able to do, that he should get another lawyer." The court then stated that a disciplinary proceeding would be held during jury deliberations at the end of Greig's trial.

On February 21, outside the presence of the jury and while they were deliberating in Greig's trial, the trial judge conducted the disciplinary proceeding, hearing testimony from Vasquez, Greig and their respective lawyers. The trial court did not make a ruling at the hearing, and took the matter under advisement until after the completion of Greig's sentencing.

At Greig's sentencing hearing on April 15, 1991, Greig was sentenced under § 3C1.1 to an extra 27 months for obstruction of justice as a result of his participation in the illicit meetings with Vasquez. ⁵ Not until the completion of Greig's sentencing did the trial court then announce its order permanently barring Greig's lawyer from appearing as counsel before the Western District Court of Texas. ⁶

Greig now asserts that his lawyer's misconduct created a conflict of interest, violating his Sixth Amendment right to effective assistance of counsel. We agree. The trial court, being aware of critical facts, erred in not holding a Garcia ⁷ hearing to insure that Greig was fully informed of his counsel's ethical violation and whether Greig nevertheless wanted counsel to continue in his defense.

(1) No Questions Asked

A defendant's right to effective assistance of counsel includes the right to representation free from a conflict of interest. Mitchell v. Maggio, 679 F.2d 77, 78-79 (5th Cir.1982). Nevertheless, we have long held that, like the right to counsel of any kind, the right to conflict-free counsel can be waived. United States v. Howton, 688 F.2d 272, 274 (5th Cir.1982). For a waiver to be effective, the record must show that the trial court determined that it was knowingly, intelligently, and voluntarily done:

As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney's possible conflict of interest and potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections.

Garcia, 517 F.2d at 277-78. Plainly stated, under Garcia, we instructed trial courts in the Fifth Circuit to conduct a hearing, now commonly known as a Garcia hearing, to ensure that the defendant (1) is aware that a conflict of interest exists; (2) realizes the potential hazards to his defense by continuing with such counsel under the onus of a conflict; and (3) is aware of his right to obtain other counsel. United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir.1991).

In United States v. White, 706 F.2d 506 (5th Cir.1983), after finding an actual conflict of interest, we held that the defendant's waiver of his counsel's conflict of interest was legally ineffective because of the trial court's clear failure to follow Garcia. Counsel in White was under investigation by a grand jury regarding his participation in his client's escape from jail. After finding an actual conflict of interest, we reversed based upon the defendant's invalid waiver of the conflict. Although the trial court's inquiry in White was more detailed than the inquiry made by the trial judge in the instant case, we nevertheless found failure with the procedure since neither the court, the defense attorney, nor the prosecutor informed the defendant of the precise manner in which he might be prejudiced. Instead, the court placed complete reliance upon counsel's statement that he had informed his client of the dangers of the conflict of interest. Id. at 509.

The record leaves no doubt that the trial court failed to make any inquiry whatsoever as to whether Greig was aware of the conflict and its potential hazardous effects upon his defense. While we recognize that a trial court does not always have an affirmative duty to inquire into the possibility of a conflict of interest, ⁸ it does have a duty to conduct a hearing once it has been alerted and certainly when it knows of the existence of an actual conflict of interest. ⁹ The record makes clear that Vasquez'...