U.S. v. Hughes, No. 86-1247

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEE, REAVLEY, and JONES; EDITH H. JONES
• Citation: 817 F.2d 268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jim HUGHES, Wayne Richard Vincent, Issac Davis, Phillip Lee, Defendants- Appellants.
• Docket Number: No. 86-1247
• Decision Date: 06 May 1987

Page 268

817 F.2d 268 UNITED STATES of America, Plaintiff-Appellee,
v.
Jim HUGHES, Wayne Richard Vincent, Issac Davis, Phillip Lee,
Defendants- Appellants. No. 86-1247. United States Court of Appeals,
Fifth Circuit. May 6, 1987.
Rehearing Denied June 25, 1987.

Page 270

Walter M. Reaves, Jr. (Court-appointed), West, Tex., for Hughes & Lee.

Robert O. Harris, III (Court-appointed), Killeen, Tex., for Vincent.

Paul E. Gartner (Court-appointed), Waco, Tex., for Davis.

Thomas Booth, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GEE, REAVLEY, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants challenge their convictions arising out of a scheme to manufacture and distribute phenylacetone and methamphetamine, controlled substances, in violation of 21 U.S.C. Secs. 841, 846. We affirm.

I. FACTS

In 1983, Kenneth Jean discussed with his former employer, appellant Hughes, his desire to produce and distribute methamphetamine. Jean confided in Hughes that he needed money to purchase laboratory equipment for the venture. Hughes obligingly introduced Jean to A.H. Vahrenkamp who in turn introduced Jean to a "financial backer," Larry Renick. Renick, Jean, and Vahrenkamp thereupon agreed that Renick would finance the purchase of laboratory equipment if Jean would manufacture and sell the drug to Renick and Vahrenkamp in exchange for a share of profits from resale of the drug.

As planned, Jean purchased the equipment, began manufacturing or "cooking" methamphetamine, and distributed for resale various amounts of the drug on different occasions to Renick, Vahrenkamp, and Hughes. Renick subsequently joined in the methamphetamine manufacture and began to assert control over the amount produced. Renick wanted to limit production and distribution of the drug while Jean advocated expansion. Accordingly, Renick refused to produce and sell several pounds of the drug to Hughes, who had planned to extend his market to California. The disagreement over expansion contributed to Renick's later disassociation with Jean. Following their breakup, laboratory equipment was moved to Renick's ranch near Killeen, Texas, and Renick hired appellant Vincent to assist with the manufacturing and distribution of the drug. Renick also recruited appellant Lee who in turn recruited appellant Davis to distribute the drug.

Ultimately, the four appellants, along with other individuals, including Renick, were arrested and indicted for violating controlled substances laws. Shortly before trial, Renick pleaded guilty and agreed to testify on behalf of the Government. Hughes, Vincent, Davis, and Lee were tried by a jury and convicted of conspiracy to manufacture phenylacetone and methamphetamine, and conspiracy to possess with intent to distribute, and distribution of methamphetamine. Additionally, Hughes and Vincent were convicted of possession with intent to distribute methamphetamine. Vincent alone was convicted of manufacturing methamphetamine.

II. APPELLANTS' RIGHT TO JOINT REPRESENTATION

Originally, Renick, Vincent, Davis, and Lee each retained as their defense attorney Robert O. "Bucky" Harris, III. The Government moved to disqualify Harris from representing four defendants simultaneously. The court held three hearings over a period of months to resolve this issue and ultimately disqualified Harris from representing Davis and Lee. Harris continued to represent Renick and Vincent. Davis and Lee now contend that the court deprived them of the right to counsel of their choice. ¹

This argument is opportunistic because an actual and serious ethical conflict

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of interest arose when Bucky Harris negotiated, well in advance of trial, a plea bargain agreement for Renick which required him to testify for the Government. Renick did testify against Davis and Lee. Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure Sec. 124 (1980). Had Davis and Lee been represented at trial by Harris, they might now justly complain that their constitutional right to effective assistance of counsel was abridged. See United States v. Alvarez, 580 F.2d 1251, 1257-58 (5th Cir.1978); Stephens v. United States, 595 F.2d 1066, 1069-70 (5th Cir.1979).

Be that as it may, a defendant may waive the right to effective assistance of counsel for the sake of being jointly represented by his chosen counsel with a potential conflict of interest. He must make this waiver knowingly, intelligently, and unambiguously. United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir.1975).

The court under Fed.R.Crim.P. 44(c), is charged to perform an active role in investigating the existence of and solution to any conflict arising from joint representation, and "[u]nless 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). The Advisory Committee's Note to Rule 44(c) explains the variety of considerations and approaches to joint representation issues which will concern the district court. The trial court carefully followed Rule 44(c), which leaves most procedural details within its discretion. See United States v. Benavidez, 664 F.2d 1255, 1258-59 (5th Cir.1982), cert. denied, 457 U.S. 1121, 102 S.Ct. 2936, 73 L.Ed.2d 1334 (1982). Following the first of three hearings, the court appointed two separate counsel for Davis and Lee to consult with them on the problems inherent in multiple representation, of their rights to independent, conflict-free counsel, and their rights to waive conflict-free counsel.

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