U.S. v. Alvarez

• Citation: 580 F.2d 1251
• Decision Date: 28 September 1978
• Docket Number: No. 77-5040,77-5040
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro L. ALVAREZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1251

580 F.2d 1251

UNITED STATES of America, Plaintiff-Appellee, v. Pedro L. ALVAREZ, Defendant-Appellant.

No. 77-5040.

United States Court of Appeals Fifth Circuit.

Sept. 28, 1978.

Bernard H. Dempsey, Jr., Tampa, Fla., for defendant-appellant.

William T. Moore, Jr., U. S. Atty., Augusta, Ga., Elizabeth C. Chalker, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.

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

Before HILL, RUBIN and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

On July 28, 1976, Pedro L. Alvarez was found guilty by a jury on all counts of a three-count indictment charging him with (1) conspiracy to import, distribute and possess marijuana, (2) importation of marijuana, and (3) possession with intent to distribute marijuana. Appellant Alvarez urges that his trial attorney's simultaneous representation of both appellant and two codefendants who pled guilty and testified at his trial as government witnesses created a conflict of interest depriving him of his Sixth Amendment right to effective assistance of counsel and his Fifth Amendment due process right to a fair trial. Because we find appellant's claims meritorious, we reverse.

I.

On the evening of August 23, 1975, near Sutherland's Bluff, McIntosh County, Georgia, federal customs agents observed a small boat leading a shrimp trawler toward Sapelo Sound without running lights. Parked nearby in a camping area, awaiting the arrival of the trawler to begin unloading, were seven pickup trucks and a van-type truck. The trawler proceeded along the shore and anchored next to a houseboat, at which time the unloading operation began. As federal officials moved into the area, numerous individuals were observed fleeing into the surrounding woods. Customs officials subsequently arrested twenty persons in the immediate vicinity of the load zone and seized approximately twenty-five thousand pounds of marijuana, although appellant was not one of those arrested.

On November 21, 1975, appellant and twenty-three codefendants were indicted for the offenses for which appellant was ultimately convicted. Of the twenty-four persons indicted, defendant's trial attorney, Arnold Levine, ¹ represented sixteen. With the exception of two co-indictees against whom the indictment was eventually dismissed, all of Levine's clients originally pled guilty pursuant to a plea bargaining agreement which required them to testify against codefendant Nathan, who was represented by another attorney. Subsequently, five of those who originally pled guilty changed their pleas to Nolo contendere.

The district judge accepted the pleas of all of Levine's clients except Alvarez. He fined and sentenced thirteen to various terms of imprisonment and dismissed the indictment as to two of them, with Frederic Altman and Albert Ellis receiving the most severe sentences of the thirteen.

After the district court refused to accept Alvarez' plea agreement, he withdrew his guilty plea and pled not guilty.

At appellant's trial Altman and Ellis were called to testify on behalf of the prosecution. Levine continued to represent Altman and Ellis at this time, and prior to the impanelling of the jury, argued a three-part motion on their behalf in which he contended that Altman and Ellis should not be required to testify because of their Fifth Amendment right against self-incrimination and that to require them to testify would violate the terms of their plea bargaining agreement. The government agreed to grant immunity and the district court therefore ordered them to testify.

In a colloquy between Levine and the court during the course of the trial, the district judge made it clear that if Levine sought to impeach the credibility of Altman and Ellis by showing that they were testifying under the terms of a plea bargaining agreement, then the prosecution would be entitled to show that Levine had represented them during the plea bargaining proceedings. Realizing the uncompromising position this placed him in, Levine moved to withdraw from the case, but the district court neither allowed nor required him to do so. ² Consequently, Levine conducted a very limited cross-examination of Altman and Ellis in which he eschewed any mention of the circumstances surrounding their guilty pleas. The jury returned a verdict finding the appellant guilty on all three counts of the indictment. Following the denial of his motion for new trial and the imposition of sentence, this appeal was taken.

II.

The Sixth Amendment guarantees a defendant in a federal criminal trial the right to "counsel reasonably likely to render And rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), Modified, 289 F.2d 928, Cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); See also Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). As the law has recognized for quite some time, though, the Sixth Amendment right to counsel implies much more than a minimum level of professional competence: even otherwise competent trial lawyers may sometimes find themselves in a position in which they are unable to render effective assistance of counsel. Thus, where defense counsel in a criminal trial represents one of several clients with conflicting interests, his effectiveness as a vigorous advocate for a particular defendant may be impaired by his commitment to other clients:

(Effective representation) is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others.

Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962). Undivided loyalty and fidelity of commitment is therefore the guiding principle in this important area of Sixth Amendment jurisprudence.

The guarantee of conflict-free counsel originated in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), where the Supreme Court held that, in the context of simultaneous representation of codefendants, the Sixth Amendment contemplates that "assistance of counsel" be "untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." 315 U.S. at 70, 62 S.Ct. at 465. Since Glasser, however, the courts have discovered a variety of situations, not limited to multiple representation of codefendants, in which attorneys have hazarded to represent conflicting interests. See, e. g., Porter v. United States, 298 F.2d 461 (5th Cir. 1962) (conflict created by defense counsel's simultaneous representation of a potential witness who could establish the defense of entrapment, but who could not be called to testify without implicating himself); MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), Modified, 289 F.2d 928, Cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) (conflict created by defense counsel's relationship with district attorney); Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974) (conflict created by defense counsel's simultaneous representation of prosecution witness). See generally 34 A.L.R.3d 470 (1970). In each instance this court has insisted that counsel's allegiance to the defendant remain unaffected by competing obligations to other clients.

Although an accused is entitled to counsel free of conflicting obligations, not every conflict in representation will be so egregious as to constitute a violation of the Sixth Amendment. For example, joint representation of codefendants is not a Per se violation of the Sixth Amendment. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975); United States v. Fannon, 491 F.2d 129 (5th Cir.), Cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974). In other words, an actual, not merely hypothetical or speculative conflict must be demonstrated before it can be said that an accused has been deprived of effective assistance of counsel. United States v. Fannon, 491 F.2d 129 (5th Cir.), Cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974).

The government argues that this formulation should be the test for determining the effectiveness of Appointed counsel, but that a different, more stringent test should be applied in the context of Retained counsel. This argument is based on the language in some of our opinions ³ decided since Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.), Cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975).

Fitzgerald constructed the conceptual framework within which Sixth Amendment claims were to be analyzed, while at the same time establishing the criteria by which such claims were to be judged when Retained counsel is involved. The reason for the distinctions drawn in Fitzgerald between retained and appointed counsel is the requirement of state action imposed by the Fourteenth Amendment on all rights incorporated thereunder. ⁴ When the court appoints counsel for the defendant, state involvement is obvious, but when counsel is retained, the nexus with governmental action is not always so clear. Fitzgerald thus identified two situations involving retained counsel which satisfy the state action requirement. In the first instance, where a lawyer's ineffectiveness renders the trial fundamentally unfair, state action is present because the state's criminal justice system has failed and enforcement of the resultant judgment would violate due process, regardless of whether counsel is retained or appointed. In the second instance, where retained counsel is less than reasonably effective yet not so ineffective as to render the proceedings fundamentally unfair, requisite state involvement is established by showing:

. . . that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the...