U.S. v. Rodriguez Rodriguez

• Citation: 929 F.2d 747
• Decision Date: 18 March 1991
• Docket Number: No. 90-1266,90-1266
• Parties: UNITED STATES, Appellee, v. Carlos RODRIGUEZ RODRIGUEZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 747

929 F.2d 747

UNITED STATES, Appellee, v. Carlos RODRIGUEZ RODRIGUEZ, Defendant, Appellant.

No. 90-1266.

United States Court of Appeals First Circuit.

Submitted Aug. 1, 1990.

Decided March 18, 1991.

Carlos Rodriguez Rodriguez, on brief pro se.

Daniel F. Lopez-Romo, U.S. Atty., and Juan A. Pedrosa, Asst. U.S. Atty., on brief, for appellee.

Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.

PER CURIAM.

Appellant Carlos Rodriguez Rodriguez was indicted on June 22, 1983 on six counts of bank robbery and one count of narcotics possession. After Rodriguez pleaded not guilty, a jury on April 12, 1984 found him guilty on all relevant counts of the indictment. Rodriguez was sentenced on June 29, 1984 to a total of fifty-four years in prison and $55,000 in fines.

On May 6, 1988, Rodriguez filed a motion to vacate sentence under 28 U.S.C. Sec. 2255. In this motion Rodriguez made two claims, both charging ineffective assistance of counsel. First, Rodriguez alleged that his trial counsel, Pedro Varela, acted incompetently by insisting that Rodriguez stand trial and expose himself to a potential seventy-five year jail sentence rather than accept a government plea offer including only a potential twenty-year sentence. According to Rodriguez, Varela misled him into rejecting the plea offer by incompetently misstating and minimizing the nature and extent of the government's evidence against Rodriguez and by failing adequately to explain the potential consequences of going to trial.

Second, Rodriguez alleged that Varela's representation was rendered ineffective by an actual conflict of interest because Varela was a member of the Macheteros organization, which had advised Rodriguez to hire Varela and which, Rodriguez discovered after trial, had paid half of Varela's fee. Rodriguez asserted that this conflict had an adverse impact on Varela's representation because Varela acted to protect the interests of the Macheteros organization over Rodriguez' interests. Thus, Rodriguez alleged, for example, that Varela advised him not to cooperate with the government by fingering other members of the organization, and Varela deliberately failed to tell the government of a counter-offer proposed by Rodriguez that included an offer of limited cooperation.

On January 9, 1989, a magistrate judge issued a report and recommendation rejecting Rodriguez' claims without an evidentiary hearing. The magistrate found that Varela's urging to reject a plea agreement and to stand trial was a matter of trial tactics, and that Rodriguez was not prejudiced because even if Rodriguez had agreed to a plea bargain the district court could have refused to accept the agreement. The magistrate further found that there was no actual conflict of interest adversely affecting Varela's representation because Rodriguez had offered nothing beyond "speculation" to suggest that Varela's efforts had been compromised. With regard to Rodriguez' allegation that Varela failed to tell the government of a counteroffer, the magistrate noted that, in the government's opposition, the government's attorney alleged that he himself had received a phone call from Varela containing a counteroffer made on Rodriguez' behalf. In addition, the magistrate found "insufficient and meritless" Rodriguez' statement in support of his allegation that an "unknown" federal agent had later told him "that he could not recall anyone mentioning a cooperation counter-offer during the plea bargaining process in the original trial." Finally, the magistrate noted that, even assuming Varela was a member of the Macheteros, Rodriguez knew that when he retained Varela.

Rodriguez filed a set of objections to the magistrate's report and recommendation in which Rodriguez named the federal agent who allegedly had said he had not known of a counter-offer. Rodriguez restated his readiness to present the testimony of this agent and other named witnesses at an evidentiary hearing.

On October 8, 1989, the district court issued a six-page opinion denying Rodriguez' Sec. 2255 motion without a hearing. The district court dismissed Rodriguez' claim of incompetence on essentially the same grounds adduced by the magistrate. In dismissing Rodriguez' claim based on conflict of interest, the district court found that Rodriguez had not demonstrated the existence of an "actual" conflict. The court first found, "We cannot rest on defendant's allegation that counsel is a member of the Macheteros. Defendant has provided no support for his claim that counsel belongs to the Macheteros organization." Then the court found that Rodriguez had failed to demonstrate "that the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests," since "[t]he statement of an unknown agent that counsel failed to inform the government of a counter-offer" was insufficient. Rodriguez appeals. We vacate the district court's denial of Rodriguez' Sec. 2255 motion and remand the case to the district court for an evidentiary hearing.

It is well settled that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest 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). Although Cuyler itself involved counsel's joint representation of criminal defendants, the Cuyler standard has been applied generally to other conflict of interest situations. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988); United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988); Zamora v. Dugger, 834 F.2d 956, 960-61 (11th Cir.1987); United States v. McLain, 823 F.2d 1457, 1463 (11th Cir.1987); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

Rodriguez alleged not only that his counsel, Varela, was a member of the Macheteros, but that Rodriguez was advised to hire Varela by Rodriguez' superior in the Macheteros organization. Further, Rodriguez asserted, when after trial Rodriguez offered to pay Varela the remaining half ($10,000) of Varela's fee, Varela informed Rodriguez that that portion of his fee had been paid by the Macheteros. There can be no question that these allegations, if proven, would constitute a potential conflict of interest. The Supreme Court made this clear in Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), when it stated,

Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise. One risk is that the lawyer will prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer's interest.

Id. at 268-69, 101 S.Ct. at 1101-02. See United States v. Allen, 831 F.2d 1487, 1496-97 (9th Cir.1987), cert. denied, 487 U.S. 1237, 108 S.Ct. 2907, 101 L.Ed.2d 939 (1988); United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985) (no adverse effect on representation shown); United States v. Bernstein, 533 F.2d 775, 788 (2nd Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976).

The district court indicated otherwise, stating, "We cannot rest on defendant's allegation that counsel is a member of the Macheteros. Defendant has provided no support for his claim that counsel belongs to the Macheteros organization." As we have said, however, Rodriguez made specific allegations that went beyond a claim of Macheteros membership, most notably the allegation that half of Varela's fee was paid by the Macheteros. Furthermore, section 2255 provides that a petitioner is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." Accordingly, "a petition can be dismissed without a hearing if the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or if the allegations cannot be accepted as true because 'they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.' " Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990) (quoting Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989)). Rodriguez' allegations concerning Varela's divided loyalty relate to matters outside the record of his conviction, are not inherently incredible, and are not conclusory. Rodriguez, therefore, did not need to provide any further support for this aspect of his claim--the alleged existence of a potential conflict of interest--in order to avoid dismissal without an evidentiary hearing.

The magistrate noted that Rodriguez admitted he knew of Varela's Macheteros membership when he retained him as counsel. However, the government does not argue, nor could it, that Rodriguez thereby somehow waived his sixth amendment right to effective assistance of counsel. For one thing, there is nothing in the record to indicate that Rodriguez knew until after trial that half of Varela's fee had been or would be paid by the Macheteros.

Furthermore, the government alleged nothing that would fulfill the requirement that a waiver of sixth amendment rights must be knowing and intelligent. United States v. Fahey, 769 F.2d 829, 834-35 (1st Cir.1985). Ordinarily, a knowing and intelligent waiver can occur only after adequate warning by the district court of the potential hazards posed by the conflict of interest and of the accused's right to other counsel. See, e.g., United States v. Waldman, 579 F.2d 649, 651 (1st Cir.1978); United States...