Stephens v. United States, 76-176-Orl-Civ-Y.
| Decision Date | 29 June 1978 |
| Docket Number | No. 76-176-Orl-Civ-Y.,76-176-Orl-Civ-Y. |
| Citation | 453 F. Supp. 1202 |
| Parties | James Edwin STEPHENS, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Reber Boult, Jr., Atlanta, Ga., for petitioner.
Kendell W. Wherry, Asst. U.S. Atty., Orlando, Fla., for respondent.
This cause is before the Court on the motion of James E. Stephens, a federal parolee, to vacate his judgment of conviction and sentence pursuant to 28 U.S.C. § 2255 (1970). On June 10, 1972, a jury sitting in Orlando, Florida, found Stephens guilty of conspiracy to import, importation and possession of marijuana. Stephens declined to perfect an appeal but now seeks to set aside his judgment of conviction and sentence on the ground that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. The Court held an evidentiary hearing to fully develop the record on Stephens' Sixth Amendment claim and then took this case under advisement. For the reasons stated below the Court concludes that the motion should be denied.
The gravamen of Stephens' Sixth Amendment claim is that he was denied the effective assistance of counsel because his privately retained lawyer's representation was hobbled by an impermissible conflict of interest. This conflict of interest resulted, Stephens maintains, from his attorney's representation of Bobby C. Wells, the government's chief witness — and Stephens' admitted co-conspirator — in related cases as well as in a guilty plea arising out of the charges in the Orlando indictment on which Stephens was convicted in this Court. In short, the alleged conflict of interest resulted from Stephens' counsel's simultaneous representation of Stephens and the prosecution's chief witness.
The facts bearing upon Stephens' claim are complicated. The story begins in 1970 when Stephens and his co-worker at Eastern Airlines in Atlanta, Bobby Wells, began discussing the feasibility of smuggling marijuana into the United States. Together the two planned an Atlanta-based smuggling operation. As their scheme developed others were recruited, and, finally, during 1970 and 1971, a number of marijuana runs to Jamaica were attempted.
Three separate criminal indictments grew out of these various smuggling operations — two in Atlanta and one in Orlando.1 The first indictment was handed down by a grand jury in Atlanta in September 1971, charging Wells, Stephens and two others with conspiracy to import and three related substantive offenses.
The second indictment was returned by an Orlando grand jury in October, 1971, again charging Wells, Stephens, and other with conspiracy and related substantive offenses. These charges stemmed from an air-smuggling incident which occurred while Wells and Stephens were out on bail and awaiting the return of the first Atlanta indictment. The final indictment was returned in Atlanta on February 9, 1972, charging Wells and others — but not Stephens — with additional conspiracy and importation charges.
Wesley R. Asinof, a Georgia criminal defense lawyer, was involved to one degree or another in all three of these criminal cases. His conduct as counsel in these matters is the principle issue in this § 2255 proceeding.
Asinof was Stephens attorney. He had acted as counsel for Stephens in previous criminal cases and when the first Atlanta indictment was returned it was Asinof to whom Stephens immediately turned for help. It was on Stephens' advice and recommendation that the three other Atlanta defendants decided to consult Asinof. At an initial office conference Asinof agreed to represent all four defendants for a lump sum payment.
Asinof was actively working on the Atlanta case when the Orlando indictment was returned. Stephens immediately retained him as defense counsel in that case as well. Wells, however, was by then negotiating directly with government prosecutors in Atlanta and was hoping to work out a plea agreement applicable to all of the pending charges. Consequently he did not retain Asinof as trial counsel in that case. But it is clear that Asinof was assisting Wells on the Orlando charges, insofar as he was helping him with the plea negotiations in Atlanta.
By the time the second Atlanta charges were made Wells had worked out — with Asinof's assistance — a comprehensive plea agreement with the government. Asinof's role in the second Atlanta case was thus a limited one, but he was clearly counsel of record for Wells and he represented him at the plea and sentencing.
Plea negotiations on behalf of Wells were initiated early in December 1971. At that time the trial of the first Atlanta indictment was scheduled for December 14, the Orlando case was still in its formative stages, and the indictment in the second Atlanta case had not yet been returned — though Wells knew that it was forthcoming.
Just prior to trial a bargain was struck. Wells would be allowed to plead guilty to one count of the first Atlanta indictment, to enter a Rule 20 guilty plea to one count of the pending Orlando indictment and finally to plead guilty to one count of the forthcoming second Atlanta indictment; all other charges would be dismissed. In addition, the government agreed to recommend a sentence of five years imprisonment on each count to run concurrently, so that Wells would face a maximum term of imprisonment of five years.
The plea agreement was honored by all concerned. Wells entered a plea of guilty to the Atlanta charge on December 13, a day before trial. On January 21, 1972 Wells entered a Rule 20 plea to the Orlando charge and finally on February 11, Wells entered a plea of guilty to the second Atlanta indictment. A sentencing date was set for all three of the charges and thereafter continued until after the Orlando trial of Stephens and the other defendants was completed.
On August 25, after the Orlando trial, Wells was finally sentenced, receiving a term of five years on each of the three charges, to run concurrently as agreed. The remaining counts of the indictment were dismissed on the government's motion.
Stephens did not fare nearly as well as his partner. He rejected a plea agreement proposed by the government and went to trial on both the Atlanta and Orlando charges. He was convicted in each case.
Wells turned out to be the star witness for the government in the Orlando trial, and it was his testimony that sealed Stephens' fate. As the Court of Appeals observed in United States v. Jones2, 480 F.2d 954 (5th Cir. 1973), it was largely on the strength of Wells' detailed and lengthy account of the marijuana schemes that Stephens and his co-defendants were convicted. Wells veracity as a witness was the crucial issue in the trial and defense counsel, including Asinof, were forced to devote many hours of cross-examination in attempting to discredit him.
During the trial Wells admitted on cross-examination that he had secretly intended to testify from the moment he entered his plea and that he expected his testimony to be of assistance to him in sentencing. The testimony of Elijah Jernigan, a defense lawyer, suggests that Wells' reasons for testifying were far more substantial than a general expectation of favorable treatment. According to Jernigan, Wells told him just before trial that he was going to have to testify for the government because if he did not the Atlanta prosecutor, Robert Smith, would see that he got fifteen years rather than five. In addition, the government's motion to postpone sentencing of Wells until after the Orlando trial suggests that the prosecution did not wish to recommend the promised concurrent sentences until it had obtained the expected testimony from Wells.
The evidence available to the Court suggests that Asinof was not privy to this understanding. Asinof did testify however at the 2255 evidentiary hearing that he suspected that Wells would testify and his suspicion grew as the time for trial drew nearer.
In fact, whether Wells would testify was a prominent subject of concern between Stephens and Asinof, as well as among the other co-defendants and their counsel. Stephens, it is clear, had no personal knowledge of Wells' intentions but he knew that Wells had struck a good bargain and he also was suspicious. Stephens and Asinof discussed the possibility of Wells testifying on a number of occasions. But at no point did they discuss the conflict of interest that might arise if Wells did in fact take the stand.
Wells, it should be noted, was doing his best to keep the Orlando defendants in the dark. On more than one occasion he assured Stephens that he would not turn "state's evidence" and he once fabricated a story about a planned marijuana run to Mexico in order to leave Stephens with the impression that he was still on his side. Similar representations were apparently made to the other defendants.
Nevertheless Asinof certainly knew by the time of trial, at the latest, that there was a very great likelihood that Wells would testify and hence that he would be faced with the dilemma of discrediting a client on the witness stand. The Atlanta and Orlando government prosecutors almost certainly knew as much. Neither the government nor the defense counsel however informed the court, and Stephens was never advised that the retention of other defense counsel might be appropriate.
It did not become apparent to the Court, having never been advised by counsel of the matter, that Asinof might have a conflict of interest until Asinof — in the middle of the trial — began a detailed cross-examination into Wells' plea agreement and Asinof's role in bringing it about. At that time the Court briefly questioned Asinof about the status of his representation. Asinof indicated that he had been Wells' counsel in the Atlanta case but that he was not currently acting as his attorney.
This statement was not completely accurate because even though Asinof may...
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...a promise of non-prosecution for a witness that might result in testimony that would hurt his other client. In Stephens v. United States, 453 F.Supp. 1202, 1209-10 (M.D.Fla.1978), defense counsel in a criminal case was also the attorney for a co-conspirator, the Government's chief witness a......