U.S. v. Placente, 95-30055
Decision Date | 26 April 1996 |
Docket Number | No. 95-30055,95-30055 |
Citation | 81 F.3d 555 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Kenneth PLACENTE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Cristina Walker, Assistant U.S. Attorney, Office of the United States Attorney, Shreveport, LA, Duro Julius Duplechin, Asst. U.S. Attorney, Office of the United States Attorney, Lafayette, LA, for plaintiff-appellee.
Rebecca L. Hudsmith, Office of the Federal Public Defender, Lafayette, LA, David
Kenneth Placente, pro se, Pensacola, FL, for defendant-appellant.
Appeal from the United States District Court for the Western District of Louisiana.
Before REYNALDO G. GARZA, WIENER and STEWART, Circuit Judges.
David Kenneth Placente appeals the district court's denial of his motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Placente claims that he received ineffective assistance of counsel. His pretrial attorney, Bernard McLaughlin, allegedly operated under an actual conflict of interest in representing both him and his nephew, Robert Braun; and this conflict adversely affected counsel's performance. Placente specifically alleges that in the course of the criminal proceedings against him, McLaughlin acquired certain confidential information from him and used it to Braun's benefit and his own detriment. The issue is raised for the first time on appeal. For the following reasons we now affirm the district court's denial of the motion.
On February 11, 1987, a grand jury charged Placente and fourteen other defendants in a five-count indictment in connection with the importation and distribution of marijuana. One of the defendants was Placente's nephew, Robert Braun. The trial court appointed Glen Vamvoras to represent Placente. Braun retained Bernard McLaughlin to represent him. Placente wished to consult other counsel, and Braun suggested he contact McLaughlin for assistance. 1
Vamvoras advised against Placente's seeing McLaughlin and requested a hearing before the magistrate judge. At that hearing, Placente explained that he wished to speak with McLaughlin "[n]ot as a personal attorney, as a fact finding, as he has far more resources I believe than the public defender's office has, far more resources as far as fact finding litigations [sic]." The district court was concerned whether McLaughlin could fairly represent both Placente and Braun:
If Mr. McLaughlin is acting as your [Placente's] attorney, he would be duty-bound to look out for your interest.... If he is not employed as your attorney, but he is employed as Mr. Braun's attorney, his only obligation at this time is to do what is best for Mr. Braun, not for what is best for you, I can tell you.
Vamvoras ultimately consented to McLaughlin visiting Placente in jail. According to McLaughlin's records, he and Placente met on March 4, 1988, for three hours; on March 17 for three and one-half hours; on April 26 for forty-eight minutes; and on April 27 for one and one-half hours. In addition to the interviews with Placente and Braun, McLaughlin requested and received from Placente's girlfriend all of Placente's phone books. McLaughlin did not represent Placente at trial, nor did he ever file any motions on Placente's behalf.
On April 11, 1988, pursuant to a motion to substitute counsel, Vamvoras was permitted to withdraw as counsel of record and replaced by C. Frank Holthaus. On April 28 the trial court ordered that Vamvoras be allowed to enroll as co-counsel with Holthaus. Together, Holthaus and Vamvoras represented Placente at trial and at sentencing. The district court noted that although McLaughlin was never enlisted as Placente's attorney of record he nevertheless assumed a significant role in Placente's defense. The court acknowledged there to be a prima facie showing of representation by McLaughlin, and the government conceded the same.
All the defendants, except Placente and Robert Hagmann, pleaded guilty. Braun entered into a plea agreement to "fully cooperate" with the Government. Placente and Hagmann went to trial on May 2, 1988; and both were found guilty of all five counts. Placente was sentenced to imprisonment plus a fine. He did not testify during the trial.
On July 22, 1994, Placente filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 based on ineffective assistance of counsel due to a conflict of interest. Placente alleged in his motion that McLaughlin, in order to obtain a better deal for Braun, divulged to the government confidential information related during their meetings. Placente said that he first learned the Government had this information during his trial when the prosecution showed him a report titled, "Information to Aid U.S. Attorney's Office ... Regarding the "Choupique Marijuana Bust." The report's heading indicated that it was prepared by McLaughlin on behalf of Braun. Placente claimed that in the face of the information contained in the government's memorandum, he dared not testify in his own defense. Furthermore, he argued that the report compromised his coercion defense. Among its responses, the Government contended that Placente voluntarily provided the information to McLaughlin for the purpose of aiding his nephew. The district court denied the motion, and Placente comes now seeking relief.
Following a district court's denial of a § 2255 motion, we review the district court's factual findings for clear error and questions of law de novo. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.1995). A defendant's claim that he received ineffective assistance of counsel is a mixed question of law and fact and is also reviewed de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994).
There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. Cates, 952 F.2d at 151.
A defendant who has been convicted and has exhausted or waived his right to appeal is presumed to have been fairly and finally convicted. United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). "[A] collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). Therefore, a defendant who raises a constitutional or jurisdictional issue for the first time on collateral review must show both cause for his procedural default and actual prejudice due to any such errors. Id. at 168, 102 S.Ct. at 1594. Ineffective assistance of counsel is cause for a procedural default. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992).
Ruling en banc, in Beets v. Scott, 65 F.3d 1258, 1268-71 (5th Cir.1995) (en banc), we declared that the standard for judging ineffective assistance allegations in the context of multiple client representation is that laid out by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Placente must "establish that an actual conflict of interest adversely affected his lawyers's performance." Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. If he does, then prejudice to him must be presumed. Perillo v. Johnson, 79 F.3d 441, 448 (5th Cir.1996). Beets characterized this standard as a "not quite per se rule of prejudice." Beets, 65 F.3d at 1269.
"A conflict exists when defense counsel places himself in a position conducive to divided loyalties." United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985). "An actual conflict exists if 'counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.' " United States v. Lyons, 703 F.2d 815, 820 (5th Cir.1983). "Joint representation does not necessarily create a conflict of interest." United States v. Rico, 51 F.3d 495, 508 (5th Cir.1995). However, "[w]here an attorney obtains confidential information helpful to one defendant but harmful to another, a conflict of interest may exist." Parker v. Parratt, 662 F.2d 479, 484 (8th Cir.1981), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 91 (1982) (citing United States v. Burroughs, 650 F.2d 595, 598 and n. 4 (5th Cir.1981), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981)).
Placente claims for the first time on appeal that an actual conflict existed in this case because by representing both him and his nephew McLaughlin jeopardized his defense of coercion. Because he did not raise an objection at trial, Placente must show that an actual conflict of interest affected McLaughlin's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346 (1980).
The district court found that there was no actual conflict between Placente and Braun because Placente had voluntarily provided the information to McLaughlin in an effort to aid his nephew's defense: "This court has a difficult time imagining how the defendant's information could have aided Braun without disclosure to the government."
Placente acknowledged that he voluntarily provided McLaughlin information to aid his nephew's defense, but he did not authorize McLaughlin to give this information to the government. He says it was to be used, if at all, for Braun and his...
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