Riggs v. US, PETITIONER-APPELLANT

• Decision Date: 16 March 2000
• Docket Number: PETITIONER-APPELLANT,RESPONDENT-APPELLEE,No. 98-6051,98-6051
• Citation: 209 F.3d 828
• Parties: (6th Cir. 2000) WILLIAM R. RIGGS,, v. UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 828

209 F.3d 828 (6th Cir. 2000)

WILLIAM R. RIGGS, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 98-6051

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 16, 2000

Decided and Filed: April 11, 2000

Appeal from the United States District Court for the Western District of Kentucky at Louisville. Nos. 97-00702; 94-00099--Edward H. Johnstone, Senior District Judge. [Copyrighted Material Omitted] Douglas A. Trant, Knoxville, Tennessee, for Appellant. Mark L. Miller, Assistant United States Attorney, Louisville, Kentucky, for Appellee.

Terry M. Cushing, Mark L. Miller, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: Norris, Moore, and Cole, Circuit Judges.

OPINION

Karen Nelson Moore, Circuit Judge.

Petitioner-appellant William R. Riggs was convicted after a jury trial of conspiracy to manufacture marijuana, manufacturing marijuana, and possessing marijuana with intent to distribute. He brought a motion under 28 U.S.C. § 2255 challenging his conviction, which was denied by the district court. Riggs claims that his conviction was invalid for two reasons. First, Riggs argues that he received ineffective assistance of counsel, because his attorney, a former Assistant United States Attorney, had a conflict of interest. Second, Riggs claims that the government violated 18 U.S.C. § 201(c)(2), because his conviction was based, in part, on testimony that the government obtained from witnesses in exchange for leniency in their own criminal prosecutions. Both of these claims are without merit, and we therefore AFFIRM the district court's denial of Riggs's motion.

I. BACKGROUND

On June 16, 1995, William Riggs was convicted in the district court for the Western District of Kentucky of conspiring to manufacture, manufacturing, and possessing with intent to distribute over 1,000 plants of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was initially sentenced to 188 months of imprisonment and five years of supervised release. Riggs appealed his conviction and sentence to this court, arguing that the district court incorrectly determined the number of marijuana plants attributable to him. See United States v. Riggs, No. 95-5908, 1996 WL 603666, at *1 (6th Cir. Oct. 21, 1996). A Sixth Circuit panel affirmed. See id. at **1-2. Subsequently, Riggs's sentence was reduced to ten years due to an amendment in the United States Sentencing Guidelines that occurred while Riggs's direct appeal was pending.

On October 31, 1997, Riggs filed the motion in the instant case. Principally, Riggs argues that he received ineffective assistance of counsel at trial because his attorney, a former Assistant United States Attorney, had an actual conflict of interest that prevented him from zealously representing Riggs. Riggs also argues that the government violated 18 U.S.C. § 201(c)(2), which prohibits giving "anything of value" to a person for testifying under oath, when it exchanged sentence reductions for the truthful testimony of prosecution witnesses. The district court denied Riggs's motion in an order entered on July 27, 1998. Riggs filed a timely notice of appeal, the district court having granted a certificate of appealability as to both issues.

II. ANALYSIS

A. Standard of Review

A petitioner is entitled to relief under § 2255 only upon a showing of a "'fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). This court reviews de novo the district court's denial of a § 2255 motion, but the district court's findings of fact are reviewed only for clear error. See id. If the district court has not held an evidentiary hearing, however, this court will affirm only if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

B. Ineffective Assistance of Counsel

In order to show a violation of the Sixth Amendment right to counsel, a defendant generally must make two showings. First, the defendant must demonstrate that the attorney's performance was deficient, meaning that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must prove that the attorney's deficient performance was so prejudicial that it "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Id. The Supreme Court has slightly modified this rule in the context of alleged conflicts of interest, however. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court held that, if a defendant can show "an actual conflict of interest [that] adversely affected his lawyer's performance," prejudice may be presumed. Id. at 348-50, 100 S.Ct. 1708¹. An "actual conflict" may be demonstrated by pointing to "specific instances in the record" that indicate that the attorney "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical." Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.) (quotation omitted), cert. denied, 484 U.S. 870 (1987).

Riggs argues that his counsel had an actual conflict of interest while representing Riggs. Riggs points to the fact that Cox, a former Assistant United States Attorney (AUSA), was still working as an AUSA at the time of Riggs's investigation and indictment, and that Cox is listed, on the transcript cover, as making an appearance on behalf of the United States during Riggs's grand jury testimony. Riggs further complains that Cox represented the ex-wife of a prosecution witness. Finally, Riggs points out that Cox shared office space with two other attorneys, who represented other co-defendants-turned-prosecution-witnesses: Keith Kamenish, who represented Rosco Driskell, and Mark Chandler, who represented Gary Napier.

The government responds by pointing out that, although Cox's name appears on the cover of the grand jury transcript, a review of the transcript itself does not reveal any participation by Cox in the hearing. Cox testified in an affidavit that he was not assigned to the Riggs case in any capacity while working in the United States Attorney's Office; rather, Cox claims that he merely wandered into the grand jury room during Riggs's hearing, and for that reason the court reporter listed his name on the transcript cover. Furthermore, the government points out, Riggs is required to show that this potential conflict adversely affected Cox's representation of Riggs in some way; otherwise, the conflict would remain merely hypothetical and thus insufficient to require reversal of Riggs's conviction. See, e.g., United States v. Hopkins, 43 F.3d 1116, 1118-19 (6th Cir.), cert. denied, 514 U.S. 1135 (1995); United States v. Horton, 845 F.2d 1414, 1418-20 (7th Cir. 1988) (declining to adopt a per se rule that a conflict of interest exists when defense counsel is being considered for a position as a United States Attorney and ruling that the defendant was still required to point to specific evidence showing a conflict). Finally, the government claims that Riggs waived any possible conflict of interest that may have existed, because he was aware that Cox's name appeared on the grand jury transcript and yet agreed to Cox's representation.²

Riggs points to several specific acts and omissions by his attorney that purportedly evidence an actual conflict of interest. First, Riggs asserts that Cox never requested a buyer-seller instruction, nor did he discuss the possibility of a buyer-seller defense with Riggs. The government responds by stating that, according to Cox's affidavit, Cox did argue for a buyer-seller instruction; furthermore, the government argues, the facts of this case did not support a such an instruction. The district court, in reviewing Riggs's § 2255 motion, agreed with the government that a buyer-seller instruction would not have been warranted in this case. See, e.g., Bucyrus-Erie Co. v. General Prods. Corp., 643 F.2d 413, 420 (6th Cir. 1981) (holding that it is not error for the district court to refuse to give an instruction if there is insufficient evidence in the record to support that instruction). The government also argues that the general conspiracy instruction given by the district judge sufficiently ensured that no conspiracy would be found if the government had proven only a buyer-seller relationship involving Riggs.

The government is correct that Riggs was not entitled to a buyer-seller instruction in this case. There appears to be some support for a buyer-seller instruction in Riggs's own trial testimony; therefore, such an instruction would not have been inappropriate. However, this court held in United States v. Stephens, 492 F.2d 1367 (6th Cir.), cert. denied, 419 U.S. 874 (1974), and 419 U.S. 852 (1974), that a buyer-seller instruction is unnecessary if the district judge has given a complete instruction reciting all the elements of conspiracy and requirements for membership in a conspiracy. See id. at 1377. The district judge gave such an instruction in this case. Thus, Riggs was not entitled to a specific buyer-seller instruction. Moreover, even if Cox should have requested a buyer-seller instruction in this case and failed to do so, it is difficult to see how the failure to do so would be a manifestation of Cox's alleged conflict of interest. Riggs has not explained any causal connection between Cox's failure to request the instruction and his prior AUSA position, his representation of Driskell's ex-wife, or...