U.S. v. Punch, 82-2075

• Decision Date: 23 December 1983
• Docket Number: No. 82-2075,82-2075
• Citation: 722 F.2d 146
• Parties: 14 Fed. R. Evid. Serv. 1201 UNITED STATES of America, Plaintiff-Appellee, v. David PUNCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 146

722 F.2d 146

14 Fed. R. Evid. Serv. 1201

UNITED STATES of America, Plaintiff-Appellee, v. David PUNCH, Defendant-Appellant.

No. 82-2075.

United States Court of Appeals Fifth Circuit.

Dec. 23, 1983.

Samuel E. Stubbs, Laurence S. Kurth, Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN and RANDALL, Circuit Judges, and MITCHELL ^*, District Judge.

RANDALL, Circuit Judge:

Defendant-Appellant David Punch was convicted of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846 ¹ and 21 U.S.C. Sec. 841(a)(1). ² On appeal, Punch contends that his conviction should be reversed because (1) he was denied effective assistance of counsel in violation of the sixth amendment; (2) the district court erred in admitting evidence of an extrinsic offense; and (3) there was insufficient evidence to support his conviction. Because we hold that Punch was denied his sixth amendment right to counsel, the judgment of the district court is reversed.

I. FACTUAL AND PROCEDURAL BACKGROUND.

This appeal is a companion to United States v. Caballero, 712 F.2d 126 (5th Cir.1983). In Caballero, Punch's codefendants were convicted of possession with intent to distribute marijuana in violation of section 841(a)(1). In affirming these defendants' convictions, Judge Garza recited the facts pertinent to this appeal as follows:

The charges against defendants arose from a Drug Enforcement Administration (DEA) investigation into the suspected narcotics operations of David Punch. That investigation was conducted primarily by one DEA agent, Paul Herring, who posed as an individual involved in the business of importing and storing marihuana. Herring was assisted in his investigation by a number of DEA agents, including Agent Arturo Ramirez, who entered the investigation in late February and was present during the negotiations of the specific transaction for which defendants were indicted.

Agent Herring was introduced to Punch by a DEA informer in October of 1980. Over the course of the next few months, the two had numerous discussions about narcotics operations. For much of the fall, they negotiated the purchase by Herring of ten tons of marihuana. Government seizure in December of the vessel carrying the marihuana eliminated the possibility of that sale. In February, Agent Herring accompanied Punch to Florida for a meeting with his contacts in the smuggling business. This led to renewed negotiations about the importation of a large amount of marihuana. In discussions, Herring had let it be known that he was interested in not only the importation and storage facets of the smuggling operation but also the direct sale aspect of the venture. He told Punch that he had contacts in Denver who could sell the marihuana. Punch again responded to this expressed interest on March 4, 1981, when he mentioned to the agents that he knew someone interested in selling 15,000 pounds of marihuana. The agents expressed interest and generally discussed the idea with Punch for two weeks. These discussions solidified on March 19 when the agents met with Punch at his Galveston home. At that meeting, the agents met Ezell Minton who told them that he had 15,000 pounds of marihuana stored in a warehouse located between Galveston and Houston. The agents told Minton that they were interested in purchasing the drugs but that before they could agree about a price they needed to inspect the marihuana. Minton did produce a two-pound sample, and the agents made an offer to purchase the marihuana, conditioned upon their ability to inspect the product.

The next day, the same parties held another meeting for the purpose of discussing specifics of the sale. Ezell Minton left for a short while during the meeting and returned with defendant Juan Caceres. Later, the agents again insisted on inspecting the marihuana; Caceres explained that this would have to be done in Houston. The five left Punch's home and proceeded to the Candlelight Lounge. Caceres arrived twenty-five minutes after the rest of the group. The ensuing discussion included talk about who would bear the loss in case of government interference with the smuggling operation. Minton and Caceres agreed to bear one-half of the loss, and Herring agreed to absorb the other half.

When Caceres informed the group that his associates had arrived, Herring suggested that Ramirez go to inspect the marihuana. This was consistent with Ramirez' role as one of Herring's assistants.

712 F.2d at 128. Ramirez then left with one of Caceres' associates to inspect the marijuana and, when they returned, Punch and the others were arrested.

Punch and Caceres were both charged with conspiring to possess with intent to distribute marijuana in violation of sections 846 and 841(a)(1), and with possession with intent to distribute marijuana in violation of section 841(a)(1). Their codefendants were charged with the same and all the parties were tried together on November 12-21, 1981.

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Akins' Efforts to Withdraw.

Punch alleges ineffective assistance of counsel because his attorney operated under a conflict of interest. Both Punch and Caceres had retained Windi Akins to represent them. At trial Punch intended to present a defense of entrapment, whereas Caceres would deny any involvement in the events leading up to the arrest. On May 19, 1981, nearly six months before trial, Akins moved the court to sever Punch's trial from that of his codefendants because Punch's defense was so "completely antagonistic to the other co-defendants' defenses." Akins also moved the court to hold a Garcia hearing ³ so that the court could advise Punch of the dangers of representation by counsel with a conflict of interest, and determine if Punch would waive his right to conflict-free counsel. The court failed to respond to either of these motions. In mid-September Akins asked the court to allow her to withdraw as Punch's counsel, but her request was denied. At a pretrial conference on the morning trial began, Akins asked again that a Garcia hearing be held. The court replied that such a hearing would be held following the voir dire. During this conference Akins also reasserted that she had a conflict of interest in representing both Punch and Caceres, and asked again that she be allowed to withdraw as counsel for Punch. ⁴ The court also refused to rule on this motion until after the voir dire.

Trial began later that day. Following the voir dire the court entertained Akins' motion for a Garcia hearing. Akins again explained to the court that she faced a conflict of interest because her clients' defenses were irreconcilable. Akins also told the court that Punch intended to testify as to his entrapment, leaving her in the position of either challenging Punch's credibility on behalf of Caceres, or commenting on Caceres' silence. The court's only response was to propose that if and when Punch actually took the stand and incriminated Caceres, Punch could move for a severance. Thus, even though timely and repeatedly informed of a conflict of interest by counsel, the court failed to hold the requested Garcia hearing or a hearing prescribed by Federal Rule of Criminal Procedure 44(c). ⁵

At this point Akins again moved to withdraw as Punch's counsel. The court denied this motion. ⁶ Finally, in an attempt to provide some form of adequate representation for Punch, Akins asked the court if additional counsel could appear and represent Punch. The court acceded to this request.

Later that day, Akins asked in chambers that Punch and Caceres both testify for the record that they did not waive any conflict of interest. The court allowed Akins to question both defendants and they refused to waive their right to conflict-free counsel. Punch also testified that he was aware that Akins had moved to withdraw as his counsel, and that he had no objections to her withdrawal. ⁷

On the next day of trial, James Skelton appeared to represent Punch. Akins, however, remained Punch's attorney of record and was not allowed to withdraw as counsel until Punch was convicted.

Punch contends that he was denied effective assistance of counsel because (1) Akins' conflict of interest denied him adequate representation prior to and during the first day of trial; (2) he did not consent to the association of Skelton as co-counsel; (3) the court failed to conduct a Garcia hearing or a Federal Rule of Criminal Procedure 44(c) hearing; and (4) throughout trial Akins was saddled by a conflict of interest, and Skelton was unprepared to provide an adequate defense.

Because we hold that the district court's failure to allow Akins to withdraw as Punch's counsel when she timely asserted a conflict of interest requires a reversal of Punch's conviction, we are not required to address Punch's other allegations of ineffective assistance of counsel.

B. Conflict of Interest Claims under Holloway v. Arkansas.

Joint representation per se does not violate the Constitution. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). But because joint representation of criminal defendants is so fraught with potential conflicts, the trial court must be ever vigilant with regard to any sign of conflict to safeguard the accused's right to effective assistance of counsel. When a trial court ignores or refuses to consider properly a counsel's claim of conflict of interest, considerable danger exists that sixth amendment rights will be violated.

In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), a single public defender represented three defendants at the same trial. The trial judge refused to consider the appointment of separate counsel despite the defense lawyer's timely and repeated assertions that the interests of his clients...