U.S. v. Benavidez
| Citation | 664 F.2d 1255 |
| Decision Date | 04 January 1982 |
| Docket Number | No. 81-1041,81-1041 |
| Parties | 9 Fed. R. Evid. Serv. 1006 UNITED STATES of America, Plaintiff-Appellee, v. Ralph BENAVIDEZ and Abel Tavarez, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Levey & Goldstein, Gerald H. Goldstein, Mark Stevens, San Antonio, Tex., for defendants-appellants.
David K. Chapman, San Antonio, Tex., for Abel Tavarez.
Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GEE, GARZA and REAVLEY, Circuit Judges.
Appellants Ralph Benavidez and Abel Tavarez were convicted, along with Charles Luna, of conspiring to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a). In addition, the two appellants were each convicted on two substantive counts involving Schedule I Narcotic Drug Controlled Substances. See 21 U.S.C. § 841(a), (b)(1)(A). They appeal, arguing that the trial court's failure to comply with new Rule 44(c) of the Federal Rules of Criminal Procedure requires reversal, that the attorney who represented both of them labored under an "actual conflict of interest," and that the trial court's refusal to allow them to cross-examine a government informant-witness on a pending state criminal charge violated their right to confront the witness. Appellant Tavarez also argues that the prosecutor made an improper comment on his failure to testify. We reject these contentions and affirm.
Appellants' convictions on the substantive counts were based on three purchases of drugs by government agents and informants.
On May 9, 1979, codefendant Luna sold a small quantity of heroin to DEA agent Milton Shoquist. The sale was arranged with the aid of an informant, Roger Jones. Luna obtained the heroin from appellant Tavarez immediately before the sale. Tavarez was convicted of distributing heroin under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
On August 28, 1979, Luna sold a small quantity of monoacetylmorphine-like heroin, a Schedule I Narcotic Drug Controlled Substance-to agent Shoquist. Once again, Jones helped Shoquist carry out the transaction. This time, however, Luna obtained the narcotic from appellant Benavidez at Benavidez' father's house immediately before the sale. Benavidez was convicted of distribution.
After these first two transactions, Jones dropped out of the DEA's investigation, and the agency attempted to set up another purchase using different agents and informants. On June 9, 1980, Tavarez sold a small quantity of heroin to Juan Salas, a former heroin addict working as a DEA informant. Tavarez obtained the heroin from Benavidez immediately before making the sale. Both Tavarez and Benavidez were convicted of possession with intent to distribute.
The evidence establishing the conspiracy included Jones' testimony concerning meetings he had with Luna, Tavarez, and Benavidez and Luna's out-of-court identification of Benavidez and Tavarez as his source of heroin to Shoquist.
Both appellants were represented by the same attorney at trial. Each has retained separate counsel on this appeal.
On December 1, 1980, the first day of the trial, Tavarez' counsel moved, at Tavarez' request, to withdraw from the case and to have Benavidez' counsel represent both defendants. That same day, new Rule 44(c) went into effect:
Whenever two or more defendants ... are represented by the same retained or assigned counsel ... 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.
Fed.R.Crim.P. 44(c) (emphasis added).
The trial court did inquire concerning the joint representation in this case. The court asked Tavarez' counsel and Benavidez' counsel whether they saw any potential conflict; they replied that they saw none. Benavidez' counsel explained that there was no conflict because "both Defendants contend that (the crimes) in fact did not happen." The court then ascertained that Benavidez' counsel had discussed the matter with both Benavidez and Tavarez. Finally, he asked Benavidez and Tavarez individually whether either had any objection to the joint representation; each responded negatively.
Despite this inquiry, however, it is clear that the trial court did not fully comply with Rule 44(c), because it did not "personally advise" either appellant of his rights as required by the Rule. Appellants argue that the mandatory language of the Rule makes this failure reversible error. We disagree and hold that the trial court's failure to comply with the Rule is not in itself grounds for reversal.
The question presented is not one of constitutional dimension; when a trial court has no reason to believe that a conflict exists, its failure to inquire concerning the propriety of joint representation or to advise a criminal defendant of his right to conflict-free representation is not in itself a denial of his constitutional rights. See Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717 (1980); United States v. Boudreaux, 502 F.2d 557, 558 (5th Cir. 1974). The question is whether failure to comply with a rule of criminal procedure requires reversal. The answer lies in the purpose of Rule 44(c).
Rule 44(c) was adopted to "establish( ) a procedure for avoiding the occurrence of events which might otherwise give rise to a plausible post-conviction claim that because of joint representation the defendants in a criminal case were deprived of their Sixth Amendment right to the effective assistance of counsel." Advisory Committee Notes, 77 F.R.D. 507, 594 (1978). The rule is thus intended as a prophylactic; compliance with its terms, it is hoped, will reduce the number of cases in which we are faced with appeals, such as this one, by defendants who desired joint representation at the time of trial, but who claim on appeal that such representation was not in their best interests.
The requirements of the rule are designed to advance its prophylactic purpose: the inquiry by the court will help to identify any potential conflict raised by joint representation so that the court can carry out its duty to "take such measures as may be appropriate to protect each defendant's right to counsel," Fed.R.Crim.P. 44(c); personally advising the defendants of their rights will increase the likelihood that any waiver of conflict-free counsel will be a voluntary, knowing, and intelligent one. See 77 F.R.D. at 597, 599-600; cf. United States v. Lawriw, 568 F.2d 98, 104 (8th Cir. 1977) (), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978). 2 But neither the inquiry nor the advice is itself the goal of the rule; that goal is preventing conflicts. If there is no actual conflict, then the rule's purpose will not be served by reversal of a conviction. The Advisory Committee could not have made this more clear: "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." 77 F.R.D. at 603.
Thus, we think that it would be a distortion of the purpose of Rule 44(c) to hold that failure to comply with the rule is in itself reversible error without requiring any showing that defendant has been denied the Sixth Amendment right that the rule was designed to protect. We hold that, even if the trial court fails to comply fully with the mandates of Rule 44(c), a defendant must still demonstrate an "actual conflict of interest" before we will reverse his conviction.
"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718. The defendant does not have to demonstrate prejudice from the joint representation; 3 but he must "show( ) that his counsel actively represented conflicting interests." Id. at 350, 100 S.Ct. at 1719.
In this case, appellants seek an unprecedented application of the "actual conflict" rule. All of our previous cases granting relief on grounds of actual conflict have involved one or more of the following situations: (1) the conflict was brought to the trial court's attention at the outset of the trial or at the time when the conflict first became apparent; 4 (2) one defendant had evidence that would have exculpated himself but inculpated a codefendant; 5 (3) the prosecution's evidence offered defendant a theory under which he could prove his own innocence by proving his codefendant's guilt. 6
This case involves none of these situations. No hint of conflict was ever brought to the trial court's attention. At the outset of the trial, both appellants joined in the united "it didn't happen" strategy; neither argues that counsel had any reason to believe at the outset that the united strategy was not in his best interests, or even that counsel had any reason to believe at that time that a plausible alternative strategy was available. 7 Nor does either claim that he could have offered any evidence, or that the government offered any evidence, in support of an alternative strategy.
Instead, each argues that the prosecutor's evidence against his codefendant was stronger than the evidence against himself. Faced with such evidence, each argues, his defense counsel should have adopted a strategy of "shifting the blame" to his codefendant and emphasizing the relative weakness of the case...
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