Stephens v. U.S., 78-2637

Decision Date23 May 1979
Docket NumberNo. 78-2637,78-2637
PartiesJames Edwin STEPHENS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Summary Calendar * .
CourtU.S. Court of Appeals — Fifth Circuit

Reber F. Boult, Jr., W. Bruce Maloy, Atlanta, Ga., for petitioner-appellant.

John J. Daley, Jr., U. S. Atty., Wilbur V. Chaney, Asst. U. S. Atty., Jacksonville, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, CLARK and VANCE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this § 2255 motion to vacate, the petitioner, James Stephens, attacks his 1972 conviction for conspiracy to import, importation, and possession of marijuana on the ground that he was denied the effective assistance of counsel. The basis of his claim rests on his counsel's concurrent representation of the principal witness against him. 1 After an evidentiary hearing the District Judge denied relief in an extensive memorandum opinion. Because we believe that the District Judge erred in not applying the rule that prejudice need not be demonstrated after an actual conflict of interest has been established, we reverse. 2

The facts are somewhat complex, but it is not necessary to go into them in great detail. It suffices that Stephens's retained trial counsel, Wesley Asinof, had also been retained to represent Bobby Wells, petitioner's confederate and co-indictee, on related charges. 3 Wells worked out a plea agreement with the Government whereby he agreed to plead guilty to one count in each of three pending indictments in return for concurrent sentences of five years on each count. Asinof had assisted Wells in working out this plea agreement, though it appears that Wells had done much of his own bargaining and that Asinof's role had been a limited one.

Wells's guilty plea was entered and accepted prior to Stephens's trial. Sentencing was postponed until after the trial, however, and the testimony at the § 2255 hearing makes clear that the Government's recommendation of the promised concurrent sentences was dependent upon Wells's testifying in Stephens's trial. Asinof was apparently unaware that Wells had agreed to testify against Stephens, although he suspected as much.

Not surprisingly, Wells turned out to be the Government's star witness in Stephens's trial. Asinof cross-examined Wells at length in an effort to discredit him. When he began a detailed cross-examination into Wells's plea agreement and revealed that he had played a role in bringing it about, the District Court stopped Asinof and questioned him briefly about a possible conflict of interest. This was the first time that the Court had been made aware of Asinof's representation of Wells. Asinof told the Court that he had represented Wells on related charges, but that he was not currently acting as Wells's attorney.

However innocently made, Asinof's statement was not completely correct. As the District Court found in the § 2255 proceeding below, Asinof was still technically Wells's attorney. In fact, after Stephens's trial, Asinof appeared as Wells's attorney in the sentencing proceeding. The District Court found further that Asinof "most certainly knew during (Stephens's) trial that he would be attending (Wells's) sentencing hearing." Asinof's statement was not without some basis, however, as he had avoided any contact with Wells after the guilty plea had been entered.

The District Court found both that Asinof was operating under an actual conflict of interest and that Stephens had not waived the conflict. Neither of these findings are clearly erroneous. The conflict is apparent: in his role as Wells's attorney, Asinof was obligated to protect Wells's interest and to avoid jeopardizing the plea agreement; as Stephens's attorney, Asinof's responsibility was to make Wells appear as badly as possible and to thereby discredit him and his testimony. With respect to waiver, the District Judge correctly concluded that there was no evidence that Stephens formally and specifically waived his right to conflict-free counsel. See United States v. Alvarez, 5 Cir., 1978, 580 F.2d 1251, 1259-60.

The District Judge denied relief, however, on the ground that Stephens had not shown that he was prejudiced by the conflict. He recognized that the decisions of this and the Supreme Court have established that prejudice need not be shown once an actual conflict of interest has been demonstrated. See, e. g., Holloway v. Arkansas, 1978, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426; United States v. Alvarez, 5 Cir., 1978, 580 F.2d 1251, 1259. This rule applies in habeas proceedings as well as on direct review. See, e. g., Castillo v. Estelle, 5 Cir., 1974, 504 F.2d 1243; Baker v. Wainwright, 5 Cir., 1970, 422 F.2d 145, 149, Cert. denied, 399 U.S. 927, 90 S.Ct. 2243, 26 L.Ed.2d 794. The rationale for this rule was explained by Judge Hill in Alvarez:

(T)o hold otherwise would engage a reviewing court in unreliable and misguided speculation as to the amount of prejudice suffered by a particular defendant. An accused's constitutional right to effective representation is too precious to allow such imprecise calculations.

580 F.2d at 1259; see also Id. at 1256, 1257 & n. 7.

The reason that the District Judge declined to apply the rule that prejudice need not be demonstrated was his finding that "Asinof's representation of Wells had essentially come to an end before (Stephens's) trial." He then found an absence of prejudice, emphasizing that after Wells had entered his plea, Asinof directed his efforts exclusively to preparing a defense for Stephens and that Asinof conducted a vigorous cross-examination of Wells.

Our difference with the District Court rests on our perception that the law does not permit the kind of line-drawing that his analysis entails. Perhaps the most analogous case from this Court is the recent one of United States v. Alvarez, 5 Cir., 1978, 580 F.2d 1251, which was rendered after the District Court's decision below. In that case, defendant's counsel, Levine, had represented 16 of 24 indictees. Prior to trial all of his clients pleaded guilty, and the District Judge accepted the pleas of all save the defendant. He then sentenced 13 and dismissed the indictment as to two. The defendant Alvarez withdrew his plea and pleaded not guilty.

Altman and Ellis, the two clients of Levine who had received the most severe sentences, testified as prosecution witnesses in Alvarez's trial. Levine moved to withdraw as Alvarez's counsel, which motion the District Judge denied. Alvarez was found guilty on all counts. On appeal we reversed, stating:

(A)s soon as appellant's plea of guilty was rejected and it became apparent that Altman and Ellis were to be called to testify against appellant, then Levine was confronted with a glaring conflict of interest which pulled him in opposite directions. As witnesses for the government, Altman and Ellis, in order to fulfill their obligations under the plea bargaining agreement, would be expected to give incriminating testimony against appellant. Even though both Altman and Ellis had been sentenced prior to being called to testify, they would nonetheless be faced with a contempt citation should they refuse to testify and the possibility of a perjury conviction if they elected to change their story at trial. The only course of action consistent with their best interests would be to give the most credible testimony possible implicating Alvarez in the drug smuggling conspiracy, and Levine, acting as their attorney, would have to counsel and prepare them in that regard. On the other hand, as attorney for defendant Alvarez, Levine's single aim should have been the acquittal of his client by any fair and proper means. Thus, to serve appellant's cause effectively in preparing his defense, Levine was under a simultaneous duty to interview Altman and Ellis and prepare questions for trial with an eye toward discrediting their testimony. Even before the trial began, then, Levine wore two different hats, having as his dual objective the irreconcilable task of at once bolstering and discrediting the testimony of Altman and Ellis. It was at the point when Alvarez' plea was rejected that the conflict moved from the realm of the hypothetical to the actual. After appellant's plea was rejected, it became impossible for Levine to continue to represent Alvarez effectively if he also continued to counsel both Altman and Ellis. Levine should have moved to withdraw from the case at that point, but short of that, the trial court should have forced him to withdraw in the face of such an obvious conflict of...

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