U.S. v. Fish, 93-2849

• Decision Date: 02 September 1994
• Docket Number: No. 93-2849,93-2849
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard A. FISH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 488

34 F.3d 488

UNITED STATES of America, Plaintiff-Appellee, v. Bernard A. FISH, Defendant-Appellant.

No. 93-2849.

United States Court of Appeals, Seventh Circuit.

Argued June 15, 1994.

Decided Sept. 2, 1994.

Stephen A. Ingraham, Asst. U.S. Atty. (argued), Milwaukee, WI, for plaintiff-appellee.

Karl Mueller, Derek Brown (argued), Brown & Mueller, Madison, WI, for defendant-appellant.

Before ESCHBACH, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Bernard Fish and Russell Gulmire were charged in a one-count indictment with bank robbery in violation of 18 U.S.C. Sec. 2 and Sec. 2113(a). Mr. Gulmire pleaded guilty and agreed to testify against Mr. Fish. Following a five-day jury trial, Mr. Fish was convicted and sentenced to 230 months' imprisonment. In this appeal, Mr. Fish challenges the adequacy of his trial counsel's representation.

For the reasons that follow, we affirm the judgment of the district court.

I BACKGROUND

On December 11, 1992, two men carrying pellet guns robbed the First Northern Savings Bank of Green Bay, Wisconsin of $5,598.00. The robbers were described as being either Hispanic or American Indian. Mr. Fish is Native American and Mr. Gulmire, having just returned from Florida, was tanned at the time. The robbers fled the scene, but left a trail of footprints and tire tracks. Approximately an hour after the robbery, Mr. Fish was seen spending money freely at the Paper Valley Hotel in Appleton, Wisconsin. He called his ex-wife in Green Bay and promised to give her money for their children's Christmas presents if she would visit him in Appleton that night. The next day, he and Mr. Gulmire travelled to Milwaukee and then onto Chicago where the two parted ways. Mr. Gulmire was arrested when he returned to Milwaukee to retrieve Mr. Fish's car. He implicated Mr. Fish in the robbery, which lead in turn to Mr. Fish's arrest.

Mr. Fish's attorney, Charles Koehn, informed the Assistant United States Attorney (AUSA) assigned to the case that, sometime in early 1992, he had been approached by Mr. Gulmire about working as an informant for local law enforcement. Attorney Koehn stated that he had arranged for Mr. Gulmire to meet with individuals from the Brown County Drug Metro unit. The AUSA then questioned Mr. Gulmire, who confirmed that with Attorney Koehn's help he had secured a position as a paid confidential informant with the multi-jurisdictional drug unit. Apparently while serving as an informant, Mr. Gulmire had attempted to engage Mr. Fish in illegal drug activity. Mr. Gulmire also stated that he had consulted with Attorney Koehn regarding some traffic-related charges, although he never formally retained Mr. Koehn. Finally, on one occasion, Attorney Koehn paid Mr. Gulmire to move some furniture at his residence and afterwards the two had drinks together.

On the basis of this information, the government moved to disqualify Attorney Koehn on the ground that Mr. Koehn possessed privileged information that might be helpful in impeaching Mr. Gulmire's credibility. In response, Attorney Koehn filed an affidavit in which he denied the existence of an attorney-client relationship or the exchange of any confidential information. The court held a hearing to investigate the potential conflict of interest. All parties, including the defendant, were present. Mr. Koehn again assured the court that he did not possess any confidential information concerning Mr. Gulmire. The government confirmed that Mr. Koehn had never appeared as the attorney of record on any action pertaining to Mr. Gulmire, and stated that it therefore "no longer believed that there was necessarily cause for disqualifying him." As a precautionary measure, however, the government requested that the court inform Mr. Fish on the record of his counsel's prior contact with Mr. Gulmire and ask him to waive any potential conflict of interest that might arise out of that relationship. The district court rejected the government's suggestion and denied the motion to disqualify as frivolous and without foundation.

At trial, Mr. Fish presented an alibi defense that he was in Appleton to deliver drugs at the time the bank robbery occurred in Green Bay. Mr. Gulmire's testimony--that together he and Mr. Fish had committed the robbery--was the key evidence against the defendant. The only other direct evidence was the rebuttal testimony of Sandra Mikkelson, one of the bank tellers and the government's first witness in its case in chief, who offered identification testimony previously unknown to defense counsel. On the evening of the third day of trial, Ms. Mikkelson informed the prosecutor that, while watching the trial from the back of the courtroom, she noted that the posterior build of the defendant was similar to that of the bank robber. She also produced an essay that she had written shortly after the robbery in which she expressed her belief that the man behind the teller counter during the robbery was either Hispanic or American Indian. Over defendant's objection, this evidence was At sentencing, Mr. Fish claimed that he was unaware of his attorney's prior consultations with the codefendant until after trial. He stated that, had he known of these matters, he would not have retained Mr. Koehn. Mr. Koehn informed the court, however, that he had more than once discussed the extent of his prior consultation with Mr. Fish and that the defendant wanted counsel to continue to represent him. The district court then took the opportunity to comment on his observation of counsel's performance during the trial; in the court's view, Mr. Koehn had provided very able assistance to the defendant.

admitted. Following the close of all evidence, the jury returned a guilty verdict against Mr. Fish.

II ANALYSIS

Represented by new counsel on appeal, Mr. Fish submits that his trial counsel's representation was constitutionally ineffective in three respects. First, he argues that, owing to prior contacts with Mr. Gulmire, his trial counsel labored under a conflict of interest. Second, he states that, even absent any conflict of interest, his trial counsel failed to cross-examine Mr. Gulmire adequately. Finally, he contends that his trial counsel should have requested a continuance to prepare for the cross-examination of the government's rebuttal witness. We shall address each issue in turn.

We note at the outset that, because counsel is presumed effective, a defendant bears a heavy burden in making out a successful ineffective assistance challenge. United States v. Jimenez, 992 F.2d 131, 134 (7th Cir.1993). ¹ To do so, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068, that is to say, a defendant must show "that the deficient performance prejudiced the defense," that it "deprive[d] the defendant of a fair trial, a trial whose result is reliable," id. at 687, 104 S.Ct. at 2064. See also Lockhart v. Fretwell, --- U.S. ----, ---- - ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993); United States v. Kamel, 965 F.2d 484, 495 (7th Cir.1992). "Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

However, if an ineffective assistance claim is premised on an alleged conflict of interest, "a defendant bears a lighter burden with respect to demonstrating prejudice." United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988); see also Crisp v. Duckworth, 743 F.2d 580, 588 (7th Cir.1984), cert. denied, 469 U.S. 1226, 105 S.Ct. 1221, 84 L.Ed.2d 361 (1985) (stating that, in reviewing an ineffective assistance claim based on a conflict of interest, courts apply a "slightly easier prejudice standard"). "But for" prejudice need not be shown under these circumstances because the existence of a conflict itself demonstrates a denial of effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). "This presumption of prejudice is necessary because a true conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impossible to measure." United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). As the Strickland Court stated:

Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.

466 U.S. at 692, 104 S.Ct. at 2067 (citation omitted).

The extent to which a defendant asserting a conflict of interest must demonstrate prejudice depends on whether and to what extent the alleged conflict was brought to the district court's attention. When the defendant raises the issue or the trial judge otherwise knows or reasonably should know of the possibility of a conflict of interest, the judge must inquire adequately into the potential conflict. Otherwise, "a reviewing court will presume prejudice upon a showing of possible prejudice." Horton, 845 F.2d at 1418. This approach was established in Holloway v. Arkansas, 435 U.S. 475, 484-91, 98 S.Ct. 1173, 1178-82, 55 L.Ed.2d 426 (1978), in which the Supreme Court reversed three convictions without reaching the issue of whether there was an actual conflict of interest. The Court determined that, because...