U.S. v. Mett, 94-10503
| Decision Date | 19 September 1995 |
| Docket Number | No. 94-10503,94-10503 |
| Parties | 95 Cal. Daily Op. Serv. 7356, 95 Daily Journal D.A.R. 12,583 UNITED STATES of America, Plaintiff-Appellee, v. William D. METT; Marvin L. Wiseman; Center Art Galleries--Hawaii, Ltd., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Katz, Katz & Associates, Los Angeles, CA, for defendant-appellant William D. Mett.
Dennis P. Riordan, Riordan & Rosenthal, San Francisco, CA, for defendant-appellant Marvin L. Wiseman.
Marc J. Zilversmit, San Francisco, CA, for defendant-appellant Marvin L. Wiseman.
Elton John Bain, Kessner, Duca, Umebayashi, Bain & Matsunaga, Honolulu, HI, for defendant-appellant Center Art Galleries.
Leslie E. Osborne, Jr., Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee United States of America.
Ephraim Margolin, San Francisco, CA, for amicus curiae National Association of Criminal Defense Lawyers.
John T. Philipsborn, San Francisco, CA, for amicus curiae California Attorneys for Criminal Justice.
Appeal from the United States District Court for the District of Hawai'i.
Before: POOLE and KLEINFELD, Circuit Judges, and GONZALEZ, * District Judge.
Opinion by Judge GONZALEZ; Concurrence by Judge KLEINFELD.
On February 1, 1989, Honolulu police arrested Assistant United States Attorney Leslie E. Osborne Jr. for drunk driving. Two days later, he hired solo practitioner Benjamin B. Cassiday III to represent him in connection with that charge. Sometime later in February, petitioner Center Art Galleries--Hawaii Inc. ("Center Art"), whom Osborne was prosecuting, asked Cassiday to represent it as local counsel. All parties appear to have waived any possible conflict orally, and Cassiday assumed the representation. Nothing was put in writing, and the district court was not informed.
In March 1989, the United States Attorney for Hawaii, Daniel Bent, learned of the conflict and telephoned Cassiday, urging him to withdraw from representing Osborne. Cassiday agreed to do so, but did not actually withdraw as counsel of record until just before Osborne pleaded guilty on April 27.
On May 4, 1990, following a five-month trial before Judge Harold M. Fong, a jury convicted petitioners Center Art, Mett, and Wiseman of numerous counts of mail and wire fraud in connection with the sale of art works. Petitioners' primary counsel in that trial were Honolulu lawyer Brook Hart and three New York lawyers. Cassiday acted as local counsel and helped with jury selection. Petitioner Mett has declared that the defense attorneys' fees for the trial exceeded $5 million, of which Cassiday billed about $5,200.
On April 15, 1993, we affirmed petitioners' sentences on direct appeal. United States v. Wiseman, 991 F.2d 804, 1993 WL 118176 (9th Cir.1993) (table), cert. denied, --- U.S. ----, 114 S.Ct. 1542, 128 L.Ed.2d 194 (1994). They subsequently filed a motion for a new trial under Fed.R.Crim.P. 33 and a Sec. 2255 petition, which the district court denied on October 14, 1994, after holding an evidentiary hearing. Petitioners appealed. We have jurisdiction under 28 U.S.C. Secs. 1291 and 2255, and we affirm.
The United States contends that petitioner Center Art lacked standing to bring its ineffective assistance claim. Defendants sentenced only to pay a fine cannot attack sentences by means of the state habeas statute, 28 U.S.C. Sec. 2254. Edmunds v. Won Bae Chang, 509 F.2d 39, 40 (9th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). The reasoning of Edmunds, based primarily on the phrase "in custody" in the statute, applies also to Sec. 2255. Petitioner Center Art was sentenced only to a fine. Consequently, Center Art had no standing to join in Mett and Wiseman's Sec. 2255 petition.
Petitioners' motion in the district court was based on Fed.R.Crim.P. as well as on Sec. 2255. A Rule 33 motion brought more than seven days after the verdict or finding of guilty must be based on newly discovered evidence. "[A] Rule 33 motion based upon 'newly discovered evidence' is limited to where the newly discovered evidence relates to the elements of the crime charged." United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1702, 131 L.Ed.2d 564 (1995). Because Center Art proffered no evidence relating to the elements of the crime charged Center Art could not raise its Sixth Amendment claim through a Rule 33 motion.
Center Art contends, however, that the district court could have reached the merits of its Sixth Amendment claim by construing its petition as seeking a writ of coram nobis, and that it actually put this theory to the district court in one of its papers. An individual no longer in custody may employ the rarely-used writ of coram nobis to make a Sixth Amendment assistance of counsel attack on his conviction. United States v. Morgan, 346 U.S. 502, 511-13, 74 S.Ct. 247, 252-54, 98 L.Ed. 248 (1954). There is no reason why a corporation, also not in custody and thus lacking access to Sec. 2255 relief, should not be able to use the writ to seek redress for a constitutional error of that magnitude. 1 For this reason, we hold that petitioner Center Art had standing to raise its Sixth Amendment claim, construing its petition in the district court as one for a writ of coram nobis.
"We review de novo both the denial of a Sec. 2255 motion and a determination that the prisoner was not denied his Sixth Amendment right to counsel." Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994). "We review for clear error any factual findings the district court made in deciding [a Sec. 2255] motion." Doganiere v. United States, 914 F.2d 165, 167 (9th Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1398, 113 L.Ed.2d 454 (1991).
The Sixth Amendment entitles criminal defendants to the effective assistance of counsel, which includes a right to conflict-free counsel. See, e.g., Garcia v. Bunnell, 33 F.3d 1193, 1198 & n. 4 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1374, 131 L.Ed.2d 229 (1995); United States v. Baker, 10 F.3d 1374, 1399 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994); United States v. Allen, 831 F.2d 1487, 1494 (9th Cir.1987), cert. denied, 487 U.S. 1237, 108 S.Ct. 2907, 101 L.Ed.2d 939 (1988).
In order to prove a violation of his Sixth Amendment right to conflict-free counsel, "a defendant who raised no objection [to the conflict] at trial must demonstrate that an actual conflict adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). However, no prejudice need be shown. Id. at 349-50, 100 S.Ct. at 1718-19. In this case, it is undisputed that petitioners did not object to the conflict at trial, so the Cuyler standard applies. 2
The district court found that "petitioners' claim of an actual conflict is not completely meritless," but does not seem to have found squarely that there was an actual conflict. We assume without deciding that there existed an actual conflict of interest affecting not only Cassiday's client, Center Art, but also Mett and Wiseman.
Even though Cuyler's adverse effect prong does not require actual prejudice, "it remains a substantial hurdle." Maiden v. Bunnell, 35 F.3d 477, 481 (9th Cir.1994). Our cases have not set up any formal test for determining whether counsel's performance was adversely affected. However, in United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992), we stated that "[t]o establish that a conflict of interest adversely affected counsel's performance, the defendant need only show that some effect on counsel's handling of particular aspects of the trial was 'likely.' " In Miskinis, for example, we listed as possible adverse effects the failure to put on certain defenses and witnesses. In Allen, one adverse effect was that counsel representing two defendants failed to argue that one of them had a more subordinate role in the criminal organization than the other. See Allen, 831 F.2d at 1497. The strength of the prosecution's case is not relevant to whether counsel's performance was adversely affected. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). This is in accord with the rule that no showing of prejudice is required.
Petitioners contend that the conflict adversely affected Cassiday's performance in three ways: (1) other attorneys deferred to him in jury selection; (2) he failed to move for the prosecutor's disqualification on the basis of the conflict of interest; (3) he allowed Hart to make an inadequate disclosure of the conflict to Mett and Wiseman.
The first alleged inadequacy in counsel's performance, taking a lead role in jury selection, is not supported by any evidence whatsoever indicating that Cassiday did anything wrong in selecting the jury. A court cannot infer from this absence of evidence that it is likely that Cassiday's performance in jury selection was adversely affected by the alleged conflict of interest.
The second of these alleged adverse effects has a certain superficial plausibility. After all, Cassiday's loyalty towards Osborne arguably kept him from doing something--moving for Osborne's disqualification--which could perhaps have helped his client. However, the purpose of the Sixth Amendment right to conflict-free counsel is to ensure that defendants are not harmed by their counsel's conflicts of interest. Its purpose is not to ensure that defendants benefit from those conflicts of interest. By complaining that Cassiday failed to move to recuse Osborne, petitioners are saying that they were deprived of a benefit that ...
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