U.S. v. Gilliam

• Decision Date: 17 September 1992
• Docket Number: Nos. 91-5862,91-5864,s. 91-5862
• Citation: 975 F.2d 1050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elic L. GILLIAM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee GILLIAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1050

975 F.2d 1050

UNITED STATES of America, Plaintiff-Appellee, v. Elic L. GILLIAM, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee GILLIAM, Defendant-Appellant.

Nos. 91-5862, 91-5864.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1992.

Decided Sept. 17, 1992.

Thomas Lee Rasnic, Rasnic & Rasnic, Jonesville, Va., argued, for defendant-appellant Elic Gilliam.

Donald Edward Earls, Norton, Va., argued, for defendant-appellant Roy Gilliam.

Eric M. Hurt, Summer Intern, Office of U.S. Atty., Roanoke, Va., argued (E. Montgomery Tucker, U.S. Atty., Jerry W. Kilgore, Sp. Asst. U.S. Atty., Abingdon, Va., Stephen Urban Baer, Office of U.S. Atty., Roanoke, Va., on brief), for plaintiff-appellee.

Before MURNAGHAN and HAMILTON, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation.

OPINION

MURNAGHAN, Circuit Judge:

The instant appeal was brought by Elic Gilliam ("Elic") and his son Roy Lee Gilliam ("Roy Lee") (collectively, the "Gilliams") who were convicted in a jury trial of multiple counts of money laundering, conspiracy, and intent to distribute marijuana and cocaine. Roy Lee has argued that he had ineffective assistance of counsel at trial because the same counsel represented both him and his father, who was a co-defendant. Both appellants also have argued that the Oregon search warrants were insufficient, that the offenses charged in the indictment regarding money laundering were unconstitutionally vague, that the Government failed properly to establish the chain of custody of certain forensic evidence, that the evidence of possession of marijuana and cocaine was insufficient, and that none of the events which led to conviction occurred in the Western District of Virginia where the trial was held.

Because we conclude that an actual conflict quite possibly developed at trial due to the joint representation of Roy Lee and Elic, we conclude that the district court erred in failing to conduct a Federal Rule of Criminal Procedure 44(c) hearing. ¹ Accordingly, we remand for such a hearing to be conducted in Roy Lee's case. Finding no error, except any reversal and retrial necessity for Roy Lee which may arise as a result of the Rule 44(c) hearing, we otherwise affirm the convictions.

I.

The Gilliams were indicted on May 23, 1990 on various money laundering and drug trafficking charges, namely, (1) conspiracy to conduct and attempt to conduct financial transactions affecting interstate commerce (money laundering), in violation of 18 U.S.C. § 371; (2) money laundering, in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i), (B)(i) and (ii) and 31 U.S.C. §§ 5313, 5324(3) and 5322(b); (3) conspiracy with intent to distribute marijuana, in violation of 21 U.S.C. § 846; (4) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); and (5) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). In the indictment, the grand jury charged that the Gilliams had been involved in marijuana cultivation and distribution from 1981 through February of 1990, growing marijuana on a farm in Oregon and transporting it to Virginia for distribution. The indictment also alleged that the Gilliams had spent in excess of one million dollars over and above their legitimate sources of income.

The indictments were the result of a search of a farm owned by the Gilliams in Virginia, simultaneous with a search of Elic's farm in Oregon. On the Virginia farm the officers recovered marijuana, which was being dried by a heater, triple beam scales, drying lights, large blue trash cans, and eleven grams of cocaine. The officers also recovered approximately $117,000 cash in various places on the farm, some of which was recovered from a locked truck. Also inside the locked truck, officers located a notebook containing terms such as "Big Buds," and other purportedly marijuana-related terms.

Likewise, on the Oregon farm, officers found evidence of a recently harvested field, which they determined to have grown approximately 3,000 marijuana plants, blue trash cans containing 127 pounds of marijuana, ² triple beam scales, working gloves and tarps that smelled like marijuana, and various packages of marijuana seeds labelled as "O Big Buds XXX," "V Good Seed Stock," and "V Good Stock." ³

The same counsel represented both Roy Lee and Elic. It is undisputed that the district court never conducted a hearing as required by Rule 44(c) of the Federal Rules of Criminal Procedure. Following an eight day jury trial, a guilty verdict was returned as to all counts against the Gilliams. The instant appeal followed.

II.

A. Ineffective Assistance of Counsel

Turning to the issue of the ineffective assistance of counsel, Rule 44(c), being cast in categorial preemptive terms, provides:

Whenever two or more defendants have been jointly charged ... or have been joined for trial ... and are represented by the same retained or assigned counsel ... the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.

(Emphasis added). While we have held that "in the absence of a specific objection, the trial court may assume that joint representation does not present any conflict," that statement is limited by the additional language "unless the court knows or reasonably should know that a particular conflict exists." United States v. Akinseye, 802 F.2d 740, 744 (4th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987) (citing United States v. Ramsey, 661 F.2d 1013, 1018 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982)). Thus, "if the court is aware, or should be aware, of a particular conflict, it should conduct a sua sponte inquiry into its existence." Id. Moreover, although a defendant may waive his right to conflict-free representation, Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 L.Ed.2d 426 (1978), such waiver must be "knowing, intelligent, and voluntary." Akinseye, 802 F.2d at 745 (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)).

With respect to waiver, we have held:

Rule 44 and its notes discuss the type of waiver which the district court should secure. The court must personally address each defendant and inform him of the potential hazards of representation by a single attorney, as well as his right to separate representation. In turn, the defendants are free to ask the court questions about the nature and consequences of the 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 the potential perils of such a conflict, that he has discussed the matter with his attorney and if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections.

Akinseye, 802 F.2d at 745 (quoting Fed.R.Crim.P. 44(c) Advisory Committee Note).

While we have emphasized the importance of the right to conflict free representation, we have held that the failure of the court to make inquiry under Rule 44(c) is not, standing alone, sufficient to require reversal of a conviction. United States v. Arias, 678 F.2d 1202, 1205 (4th Cir.), cert. denied, 459 U.S. 910, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982). Most circuits require a defendant who fails to object to the joint representation at trial to demonstrate, on appeal, an actual conflict of interest. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1008 (9th Cir.1987); United States v. Holley, 826 F.2d 331, 334 (5th Cir.1987), cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 422 (1988). But see United States Ex. Rel. Hart v. Davenport, 478 F.2d 203 (3rd Cir.1973) (holding that where record shows no inquiry by Court concerning conflicts in joint representation, prejudice and non-waiver should be presumed).

In the instant case, we find that Roy Lee has alleged an actual conflict, requiring a Rule 44(c) hearing. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Four days into the jury trial, the Government offered Roy Lee and Elic a plea agreement wherein Elic would be sentenced to ten years imprisonment and Roy Lee would be sentenced to seven years. The terms of imprisonment that the two would face if they accepted the agreement would have meant that probably Elic would spend the rest of his life in jail; while Roy Lee, a relatively young man, would not. According to Roy Lee, Elic vehemently opposed accepting the plea agreement, contending that he did not want to spend his final days in jail and insisting that they could beat the charges together.

On appeal, Roy Lee has contended that if he had his own attorney he would have been talked into taking the plea arrangement. The trial attorney, when faced with one client who wished to accept the plea and one who did not, was unable to provide effective assistance to both clients in that situation, he has contended.

New counsel appeared for Roy Lee at sentencing and orally advised the court of the alleged conflict of interest which, he said, had come to light because Roy Lee had discussed it with his mother. The district court did not hold a hearing, but ruled that (i) the ineffective assistance of counsel argument had been made too late and (ii) the district court judge did not witness anything during trial that would suggest either a conflict or ineffective assistance of counsel.

We hold...