U.S. v. Fulton

• Decision Date: 22 September 1993
• Docket Number: Nos. 642,897,D,s. 642
• Citation: 5 F.3d 605
• Parties: UNITED STATES of America, Appellee, v. Cortland Bay FULTON, also known as Tairu Owolabi Alabi, Defendant-Appellant. Cortland Bay FULTON, Petitioner-Appellant, v. WARDEN, RAY BROOK CORRECTIONAL FACILITY, Respondent-Appellee. ockets 91-1048, 92-2105.
• Court: U.S. Court of Appeals — Second Circuit

Page 605

5 F.3d 605

UNITED STATES of America, Appellee, v. Cortland Bay FULTON, also known as Tairu Owolabi Alabi,

Defendant-Appellant.

Cortland Bay FULTON, Petitioner-Appellant, v. WARDEN, RAY BROOK CORRECTIONAL FACILITY, Respondent-Appellee.

Nos. 642, 897, Dockets 91-1048, 92-2105.

United States Court of Appeals,

Second Circuit.

Argued Jan. 7, 1993.

Decided Sept. 22, 1993.

Lawrence D. Gerzog, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., and David C. James, Asst. U.S. Atty., of counsel) for appellee.

Mark L. Freyberg, New York City, for defendant-appellant.

Before: KEARSE, WINTER and WALKER, Circuit Judges.

WALKER, Circuit Judge:

In the middle of Cortland Bay Fulton's trial for conspiracy to possess and import heroin, the government informed the court in an ex parte conference that the government witness on the stand previously stated that he had once imported heroin for Fulton's trial counsel. In this appeal, we must decide whether this allegation created a conflict of interest for Fulton's attorney giving rise to a per se violation of Fulton's Sixth Amendment right to effective assistance of counsel, in accordance with Solina v. United States, 709 F.2d 160 (2d Cir.1983) (Friendly, J.).

On December 14, 1990, following a jury trial, judgment was entered in the United States District Court for the Eastern District of New York, (Sifton, J.), convicting Fulton of conspiring to possess with intent to distribute more than one hundred grams of heroin, in violation of 21 U.S.C. Secs. 841 and 846, and aiding and abetting the importation of more than one hundred grams of heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 960(b)(2)(A), and 18 U.S.C. Sec. 2. The district court sentenced Fulton to two concurrent terms of 63 months imprisonment, two concurrent terms of three years supervised release, and imposed a mandatory $50 special Fulton now appeals from his judgment of conviction and the denial of a motion pursuant to 28 U.S.C. Sec. 2255 to vacate the conviction and order a new trial on the grounds that his Sixth Amendment rights were violated because his counsel had an actual conflict of interest, and his waiver of this conflict was ineffective. For the reasons given below, we find that the defendant's Sixth Amendment right to the effective assistance of counsel was violated.

assessment on each count. Fulton is currently serving his sentence.

BACKGROUND

According to the evidence at trial, Fulton and three co-defendants, Samuel Lateju, Rachelle Turner, and Bilikisu Fuja, participated in a scheme to smuggle heroin from Nigeria to New York. Turner arrived at Kennedy Airport on December 13, 1989 in possession of 1.3 kilograms of heroin. She was arrested and agreed to cooperate with the government. She implicated Lateju, who was then arrested and also agreed to cooperate. In a tape-recorded conversation, Turner and Lateju called Fuja and Fulton to arrange for a meeting at a motel to exchange the heroin. When Fulton arrived at the motel, he was arrested.

At trial, Fulton was represented by two attorneys, one of whom acted as lead trial counsel with the other assisting. When cross-examining government witness Lateju, Fulton's lead trial counsel asked him about a conversation Lateju had with lead trial counsel at the Metropolitan Correctional Center in New York after Lateju was arrested. The government objected and sought an ex parte sidebar conference, at which the government related to the district court that Lateju "weeks ago called up the DEA agent and advised him with respect to a previous shipment of heroin he brought into the United States, I believe it's 200 grams, that this defense attorney received a portion of the heroin. This weekend, when we were preparing this [witness] for trial, [Lateju] also indicated--further indicated to us that the defense counsel was--he had information that he was involved in heroin trafficking on his own." The government explained that "[t]he DEA and Customs are beginning inquiry. We don't know if it's true or not."

After a recess, at a second ex parte sidebar, the district judge told the government that he saw "no alternative under the circumstances but to disclose this to the defense lawyer and to his client in order for the client to consider whether the lawyer's conduct will be influenced by the accusation that this witness is making against him." The district judge continued, "it will be necessary for [the defendant] to give up the right to cross-examine the witness on the subject since--if he is unwilling to waive the conflict, then he needs a new lawyer. If he is unwilling to waive the right of cross-examination, he needs to do so." The district judge stated that if the investigation was of such importance that the government objected to the disclosure of the allegation, the government might have to choose between pursuing Fulton or his attorney. The government replied that "disclosing it would obviously put the witness, Mr. Lateju, in--I believe in great, great, great risk." The district judge recommended that the government "get him protection."

The district judge told the government that he was "going to disclose that to the lawyer and the defendant and ask the defendant to consider it and see whether he wants a new attorney who, given the fact that this attorney--his attention may be distracted, given the fact that this attorney cannot cross-examine him on this subject." The government requested that the district judge "at least sanitize [the allegation] to some extent, either as to the source or merely just leave it to the fact that there is an allegation?" The district judge replied, "[w]ell, he has to know that it is a subject that this defendant, if he didn't have this lawyer, would have the right to cross-examine this witness.... [A]lthough, I don't have to suggest that's the only source of the information."

The district court stated, "[lead trial counsel], could you come up with your client. I'll ask the other attorney to not come up given the nature of what we're discussing." The district judge explained that he had a serious subject to discuss: "[i]t appears that this The district judge told Fulton that "in a situation like this you have to consider whether [lead trial counsel] can continue to represent you." Regardless of "the truth of this statement that Mr. Lateju has apparently made, the very fact ... the accusation is made against your attorney, makes your attorney personally involved in this trial in a way that is different from his professional involvement as a lawyer who has only your interests to be concerned with." The district judge stated that lead trial counsel "[n]ow ... must be concerned not only with your interests but with his personal reputation, and more than that, the potential that he himself might be accused of a crime."

witness who is on the stand ... has advised the agents in this case that on a prior occasion he brought drugs into the country and that these drugs were either delivered to or belonged to [lead trial counsel], your attorney."

The district judge explained that lead trial counsel could not "act both as a witness and a lawyer" and, therefore, that lead trial counsel could not "take the stand and testify to say that's not true that he never did bring drugs to me." The district judge stated that "there is a possibility of a conflict but not an actual conflict.... [Lead trial counsel], having been accused by this witness individually, may be to some degree distracted from doing his best job representing you."

The district judge advised Fulton to think about these matters and discuss them with lead trial counsel. He told Fulton that "[i]f you understand what we're talking about and are prepared to waive the potential conflicts I foresee, that I have been talking about, then we can go ahead." He reiterated that lead trial counsel would be affected by his concern over the witness's statement and that lead trial counsel would "be unable to cross-examine the witness on the truth of this statement that on a prior trip the witness brought him heroin."

When lead trial counsel asked to respond, the district judge responded that "in these circumstances anything you say on this subject could be used against you[,]" and he "assume[d] if you were given an opportunity to respond to this you would deny it." The district judge then suggested that "[s]ince there are two counsel here, it might be well for the other attorney to get involved so Mr. Alabi [Fulton] can have his perspective on it as well as yours."

After the recess, at sidebar, the district judge asked, "have you determined--has Mr. Alabi [Fulton] determined what to do?" The defendant began to answer, but the district judge interrupted and told him that he "[didn't] have to speak." He asked the lawyers how "you decided to proceed?" Lead trial counsel, the attorney in question, responded that "[h]e has decided to go ahead with me...." The court stated, "[a]nd you understand that that means that, first of all, [lead trial counsel] will be to some extent distracted by this and, secondly, that he will not be able to cross-examine the witness about this; you understand that?" Fulton replied, "yes, your Honor."

When lead trial counsel requested that the government not "bring this up," the district court stated that "this is not going to be explored at all by the government but that they were concerned that this was information they were privy to which I should be aware of and I've determined that you ought to be aware of it." Lead trial counsel, assisted by co-counsel, continued to represent Fulton throughout the trial.

After his conviction and sentencing, Fulton filed a Sec. 2255 petition alleging that he had been deprived of his Sixth Amendment right to effective assistance of counsel because his counsel had an actual conflict of interest, or alternatively, a potential conflict of interest which affected his representation...