U.S. v. Alvarez, 82-7070

• Decision Date: 31 January 1983
• Docket Number: No. 82-7070,82-7070
• Citation: 696 F.2d 1307
• Parties: 12 Fed. R. Evid. Serv. 537 UNITED STATES of America, Plaintiff-Appellee, v. Rafael ALVAREZ, Jr., Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1307

696 F.2d 1307

12 Fed. R. Evid. Serv. 537

UNITED STATES of America, Plaintiff-Appellee, v. Rafael ALVAREZ, Jr., Defendant-Appellant.

No. 82-7070

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Jan. 31, 1983.

Humberto Aguilar, Miami, Fla., for Alvarez.

William R. Favre, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Luis Rodriguez, Eduardo Rodriguez, and appellant were charged with conspiring to possess marijuana with the intent to distribute it in violation of 21 U.S.C. Sec. 846. Luis Rodriguez and appellant were convicted, but Eduardo Rodriguez was acquitted. Luis Rodriguez was additionally charged with and convicted of possession of marijuana with the intent to distribute it.

Appellant challenges his conspiracy conviction on three grounds. First, he contends that he was denied effective assistance of counsel because both he and Eduardo Rodriguez were represented by the same attorney, and actual conflicts of interest were present. Second, he contends that the government failed to adduce substantial independent evidence of Alvarez's involvement in the conspiracy sufficient to allow the introduction of coconspirators' statements under United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Appellant's final contention, although not clearly articulated in his brief, is that the evidence was insufficient to convict him. Finding no reversible error, we affirm appellant's conviction.

Appellant's first challenge to his conviction is based on the trial court's failure to follow Fed.R.Crim.P. 44(c) and inquire as to possible conflicts inherent in counsel's joint representation of both appellant and Eduardo Rodriguez. The conflict arose, according to appellant, because Rodriguez testified and appellant did not.

Fed.R.Crim.P. 44(c) provides:

Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his 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.

In the instant case, the trial court neither inquired about the joint representation nor personally advised the defendants of their right to effective assistance of counsel, including separate representation.

The purpose of rule 44(c) is to avoid actual conflicts of interest in joint representation situations. The rule acts as a prophylactic to insure that any conflict problems will be resolved by the trial judge early in the course of the proceedings. One secondary goal is to minimize the number of appeals such as the present one. It cannot be gainsaid that at least one ground for this appeal would have been avoided had the lower court complied with the rule. It does not follow, however, that the mere failure to adhere to the rule, without more, constitutes reversible error.

The new Fifth Circuit in United States v. Benavidez, 664 F.2d 1255 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2963, 73 L.Ed.2d 1352 (1982), recently addressed this issue and held that where no actual conflict is demonstrated, the failure to follow rule 44(c) does not require reversal of the conviction. As the Benavidez court noted, the goal of the rule is not to promote the process of inquiry or the giving of advice but rather the avoidance of actual conflict. "If there is no actual conflict, then the rule's purpose will not be served by reversal of a conviction." Id. at 1258.

The failure in a particular case to conduct a rule 44(c) inquiry would not, standing alone, necessitate the reversal of a conviction of a jointly represented defendant. However, as is currently the case, a reviewing court is more likely to assume a conflict resulted from the joint representation when no inquiry or an inadequate inquiry was conducted.

Fed.R.Crim.P. 44(c) advisory committee note. Our review, therefore, must focus on the presence of any actual conflict in the joint representation.

Appellant argues that the conflict was present because Eduardo Rodriguez testified and appellant did not. If Rodriguez's testimony inculpated appellant, an actual conflict would arise. Where, however, the testimony of the codefendant is corroborative or exculpatory, no conflict arises. See United States v. Medel, 592 F.2d 1305, 1310 (5th Cir.1979); United States v. Risi, 603 F.2d 1193, 1195 (5th Cir.1979). As in Risi, 603 F.2d at 1195, appellant here does not allege that his codefendant's defense was in any way inimical to appellant's defense. He argues merely that he was prejudiced by Rodriguez's act of testifying. Prejudice need not be shown where an actual conflict of interest is demonstrated. United States v. Medel, 592 F.2d 1305, 1310 (5th Cir.1979). That Rodriguez took the stand, however, does not, without more, prove the existence of an actual conflict. We find no merit in appellant's ineffective assistance claim.

Appellant asserts as additional grounds for reversal that the evidence offered at trial was insufficient to allow into evidence the statements of his alleged coconspirators and further was insufficient to support his conviction of conspiracy.

Under United...