U.S. v. Acty, 95-1779

• Decision Date: 20 May 1996
• Docket Number: No. 95-1779,95-1779
• Citation: 77 F.3d 1054
• Parties: UNITED STATES of America, Appellee, v. Lana Christine ACTY, also known as Chris Acty, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1054

77 F.3d 1054

UNITED STATES of America, Appellee, v. Lana Christine ACTY, also known as Chris Acty, Appellant.

No. 95-1779.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1995.

Decided March 7, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 20, 1996.

Appeal from the United States District Court for the Southern District of Iowa; Charles R. Wolle, Judge.

Alfredo Parrish, Des Moines, Iowa, argued, for appellant.

Lester Allen Paff, Assistant U.S. Attorney, Des Moines, Iowa, argued, for appellee.

Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Lana Christine Acty (Acty) appeals the district court's ¹ denial of her motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Acty contends she was denied effective assistance of counsel due to her attorneys' conflicts of interest and their adoption of an unreasonable defense to the charges against her. We affirm.

I. BACKGROUND

In 1977, Acty and her husband (now former husband), George Michael Moore (Moore), formed "Posters 'N' Things, Ltd." (Posters), an Iowa corporation consisting of three component businesses. Subsequently law enforcement officials began receiving complaints that one of these businesses, a merchandise store, was selling drug paraphernalia. Authorities initiated an investigation, and on March 28, 1990, conducted a search of the merchandise store and of the residence of Acty and Moore. In the raid, officials seized various items of merchandise and several volumes of financial records related to the business.

The following day, Acty and Moore met with attorney Lawrence Scalise (Scalise) in his Des Moines, Iowa, office. Scalise agreed to represent Acty, Moore, and Posters on any criminal or civil charges brought against them. Scalise did not, however, receive a retainer fee from either Acty or Moore at this meeting.

Shortly after this initial meeting, Acty and Moore arranged another appointment with Scalise, this time in Las Vegas, Nevada. The two arranged for Robert Vaughn (Vaughn), an attorney and Executive Director of the American Pipe and Tobacco Council, to attend this meeting. Acty was a member of the American Pipe and Tobacco Council, and Vaughn had regularly advised Acty regarding the various drug paraphernalia laws applicable to the operation of Posters. Vaughn acted as a consultant to Acty and Moore during the Las Vegas meeting. It was at this meeting that Scalise received a retainer for his services from Acty and Moore.

On May 16, 1990, Acty, Moore, and Posters were formally indicted on various offenses related to the sale of drug paraphernalia. ² In the months following the indictment, Acty and Moore continued to meet with Scalise and, later, also with Scalise's partner, John Sandre (Sandre). During this time, Acty and Moore experienced intermittent periods of marital discord which would occasionally come to the attention of their lawyers. Nevertheless, Scalise and Sandre continued to represent all three defendants until November 1990. At that time, Acty sought alternative counsel in Vaughn.

At a joint jury trial held in December 1990, Vaughn appeared on Acty's behalf, Scalise represented Moore, and Sandre served as counsel for Posters. The attorneys divided some of the tasks of trial preparation and presentation, however, with each attorney accepting primary responsibility for particular charges. At the conclusion of trial, Acty was convicted of each of the nine counts charged against her and was sentenced to 108 months in prison. Acty's conviction was ultimately affirmed in Posters 'N' Things, Ltd. v. United States, --- U.S. ----, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994).

On July 22, 1994, Acty filed a motion for postconviction relief, claiming she was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. The district court denied the requested relief, and Acty appeals. Acty argues that she received ineffective assistance of counsel because her attorneys labored under a conflict of interest due to their dual representation of both Acty and Moore. Acty further alleges that her first attorney's reliance on an "advice of counsel" defense to the charges against her constituted ineffective assistance of counsel.

II. DISCUSSION

A. Conflict of Interest

The Sixth Amendment right to counsel embraces the right to representation that is free from conflicts of interest or divided loyalties. See, e.g., Dawan v. Lockhart, 31 F.3d 718, 720-21 (8th Cir.1994) (subsequent history omitted). Conflicts may arise when an attorney simultaneously represents clients with differing interests. Salam v. Lockhart, 874 F.2d 525, 527 (8th Cir.), cert. denied, 493 U.S. 898, 110 S.Ct. 252, 107 L.Ed.2d 202 (1989). Nevertheless, joint representation of codefendants by a single attorney is not per se violative of a defendant's right to effective assistance of counsel. Dokes v. Lockhart, 992 F.2d 833, 836 (8th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 437, 130 L.Ed.2d 348 (1994). Instead, in order to establish a constitutional violation due to conflict of interest, a defendant who fails to make a timely objection to her counsel must demonstrate that "an actual conflict of interest adversely affected [her] lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Until a defendant shows that her counsel "actively represented conflicting interests, [she] has not established the constitutional predicate for [her] claim of ineffective assistance." Id. ³ at 350, 100 S.Ct. at 1719.

In determining whether a defendant has satisfied her burden under Cuyler, we employ two separate standards of review. We engage in a de novo review of ineffective assistance claims, which present mixed questions of law and fact, but we review the district court's underlying findings of historical fact for clear error. Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir.1994) (subsequent history omitted).

1. Pretrial Representation

Acty contends that her attorneys had an actual conflict of interest at various stages in the criminal proceedings against her. Initially, Acty argues that from the outset of Scalise's representation of Acty and Moore, Moore began to minimize his own role in the operation of the merchandise store and to shift blame to Acty. Acty asserts that this representation, along with the couple's marital difficulties, gave rise to competing interests between the two defendants. According to Acty, Scalise's continued representation of both defendants in the face of this conflict compromised Acty's interests during the preparatory stages of the criminal proceedings, particularly during preliminary plea discussions with the government.

We have recognized that where different defenses are offered by two codefendants, and particularly "where one defendant attempts to exonerate himself by pointing the finger of guilt at codefendants," a conflict of interest can arise. Parker v. Parratt, 662 F.2d 479, 484 (8th Cir.1981), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 91 (1982). We disagree, however, that an actual conflict of interest existed during the pretrial stages of this case.

The district court found that Acty and Moore acted as a team during the beginning phase of the proceedings against them. The two were unified in their defense throughout the early pretrial stages, each declaring that they lacked the intent to sell drug paraphernalia, believing the items in their store would be used for legitimate purposes. While it is evident the couple was experiencing marital difficulties at that time, nothing in the record indicates that the marital problems were related to disagreements over either party's responsibility for the operation of the store or over trial strategy. Moreover, both Scalise and Sandre testified at the hearing on Acty's section 2255 motion that they did not believe a conflict of interest existed between the two codefendants during the early stages of the case. The district court properly credited this testimony, recognizing that "[a]n 'attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists....' " Holloway v. Arkansas, 435 U.S. 475, 485, 98 S.Ct. 1173, 1179, 55 L.Ed.2d 426 (1978), (quoting State v. Davis, 110 Ariz. 29, 514 P.2d 1025, 1027 (1973)). Given these facts, we fail to see an actual conflict during this period.

A potential conflict did eventually begin to develop as the trial approached. In approximately November 1990, Moore began to minimize his role in the operation of the merchandise store. This potential conflict was promptly resolved by Scalise and Sandre, however, when they immediately informed Acty that they would no longer be able to represent both Acty and Moore and advised her to seek alternative counsel. We are satisfied that these actions adequately addressed the developing tensions between the codefendants before an actual conflict could affect the representation.

Assuming, for the sake of argument, that Acty had demonstrated an actual conflict, we are convinced that the conflict of interest did not have an adverse effect on the performance of Acty's attorneys. Acty contends that the conflict stifled the amount of information that Scalise and Sandre imparted to her regarding her potential punishment under the sentencing guidelines. She also argues that the conflict affected the aggressiveness with which her attorneys pursued potential plea agreements on her behalf. After carefully reviewing the record, we find Acty's assertions to be without merit. First, the district court found that Scalise did indeed explain the sentencing guidelines to Acty, a finding adequately supported by Scalise's correspondence with the government regarding sentencing calculations. Second, nothing in the record indicates that Acty...