U.S. v. Sutton

• Decision Date: 22 July 1986
• Docket Number: Nos. 85-1265,85-1301 and 85-1307,s. 85-1265
• Citation: 794 F.2d 1415
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William John SUTTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Freddie Goldbaum ORTIZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Valentine Frank PROITTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1415

794 F.2d 1415

UNITED STATES of America, Plaintiff-Appellee, v. William John SUTTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Freddie Goldbaum ORTIZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Valentine Frank PROITTE, Defendant-Appellant.

Nos. 85-1265, 85-1301 and 85-1307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1986.

Decided July 22, 1986.

Susan Ehrlich, Phoenix, Ariz., Eugene Bracamonte, Jon R. Cooper, Tucson, Ariz., for plaintiff-appellee.

Roger S. Auerbach, Adrian G. Hall, Bolding & Zavala, Tucson, Ariz., Stephen Ralls, South Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of arizona.

Before CHOY, ALARCON, and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Appellants are three members of a group that smuggled large quantities of marijuana by air into the United States. They appeal their judgments of conviction on various grounds. We address each contention and the facts pertinent thereto under separate headings.

I. SUTTON

Defendant-appellant William John Sutton was indicted on nine counts: (1) conspiracy to import more than 50 kilograms of marijuana into the United States in violation of 21 U.S.C. Sec. 963 (Count 1); (2) conspiracy to possess with intent to distribute and to distribute in excess of 50 kilograms of marijuana in violation of 21 U.S.C. Sec. 846 (Count 2); (3) engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (Count 3); (4) possession with intent to distribute approximately 1,500, 500 and 600 pounds of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Counts 8, 13, 18); and (5) interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. Secs. 2, 1952 (Counts 11, 12, 15).

Sutton pleaded guilty to engaging in a continuing criminal enterprise as charged in Count 3, pursuant to a plea agreement with the government. The government dismissed the eight remaining charges against Sutton in return for his guilty plea. The government also dismissed charges against co-defendants Lynn Ann Morgan, Sutton's longtime female companion, and Tamberly Morgan, Lynn Ann's sister, pursuant to the plea agreement. On August 26, 1985, Sutton was sentenced to 30 years on the continuing criminal enterprise charge.

Roger S. Auerbach represented both Sutton and Lynn Ann Morgan in the proceedings below. Auerbach arranged the plea bargain whereby the charges against Sutton and the Morgan sisters were dropped. Auerbach represents Sutton on this appeal. ¹

Sutton contends that he should be allowed to withdraw his guilty plea because Auerbach's dual representation gave rise to a conflict of interest which deprived him of his right to the effective assistance of counsel. We conclude that the dual representation did not violate Sutton's sixth amendment rights and affirm.

Joint representation is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). In 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); United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.), cert. denied, --- U.S. ---, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19.

Conversely, a sixth amendment violation occurs when an accused timely raises an objection to joint representation based on the risk of a conflict of interest, and the trial judge fails either to appoint separate counsel or to take adequate steps to ascertain whether the risk is too remote to warrant individual representation. Holloway, 435 U.S. at 484, 98 S.Ct. at 1178. Thus, whenever a trial court improperly requires joint representation over timely objection based on possible conflicting interests, prejudice is presumed and reversal is automatic. Id. at 488-89, 98 S.Ct. at 1180-81.

The record reveals that Sutton never objected to Auerbach's joint representation before the trial court. He raises the issue of ineffective assistance of counsel and conflict of interest for the first time on this appeal. ² Therefore, Sutton must demonstrate that an actual conflict of interest adversely affected Auerbach's performance in order to establish his sixth amendment claim. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718.

When confronted with joint representation, the court has the duty of assuring itself that the defendants are aware of their right to separate counsel. Fed.R.Crim.P. 44(c). Rule 44(c) provides that "the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation."

The district court fully complied with Rule 44(c). Sutton was told that because he was subject to severe penalties, there was a possibility that a conflict in representation could arise. Sutton and Auerbach represented to the court that they were satisfied that no conflict existed. ³ Sutton again stated to the court during the hearing on his change of plea that he was satisfied with Auerbach's representation. ⁴ Nonetheless Sutton now contends an actual conflict existed in this case because the plea agreement arranged by Auerbach sacrificed Sutton's rights to secure a benefit for Lynn Ann Morgan.

The Supreme Court was presented with an analogous situation in Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972). Dukes pleaded guilty on the advice of two lawyers, one of whom also represented Duke's co-defendants on an unrelated charge. Dukes later learned that his lawyer had sought leniency for the co-defendants by arguing that their cooperation with the police induced Dukes to plead guilty. Dukes argued in the Supreme Court that his lawyer's conflict of interest had infected his plea. The Supreme Court found "nothing in the record ... which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent." Id. at 256-57, 92 S.Ct. at 1554-55. Because Dukes did not identify an actual lapse in representation, the Supreme Court affirmed the denial of habeas corpus relief. See Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718.

Similarly, Sutton has not identified an actual lapse in Auerbach's representation leading to Sutton's guilty plea. To the contrary, both of Auerbach's clients benefited considerably from his representation and the plea agreement. Although Sutton pleaded guilty, it was to only one of nine counts in the indictment. The charges against Lynn Ann Morgan were dismissed. Sutton's subsequent discontent with the sentence imposed on the one count does not establish a lapse in representation that resulted in ineffective assistance of counsel.

The proper standard for attorney performance is that of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). "[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.' " Id. (quoting McMann v. Richardson, 397 U.S. 759, 770, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)); see also Hill v. Lockhart, --- U.S. ---, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (where a defendant is represented by counsel during the plea process and enters a plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases). When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2065.

Auerbach's representation of Sutton in this case was within the acceptable range of competence and did not fall below the objective standard of reasonableness. Id. Counsel may advise a defendant to plead guilty "if that advice falls within the range of reasonable competence under the circumstances." United States v. Cronic, 466 U.S. 648, 656-57 n. 19, 104 S.Ct. 2039, 2045 n. 19, 80 L.Ed.2d 657 (1984). Auerbach's advice to Sutton to plead guilty to one of nine counts was reasonable under the circumstances of this case. The government advised the trial court that it was prepared to go to trial on all nine counts charged in the indictment. In fact, the eight counts against Sutton which were dismissed constituted the series of violations on which the continuing criminal enterprise charge was based. In admitting guilt to the continuing criminal enterprise charge, Sutton effectively admitted he was guilty of the eight counts which were dismissed. Moreover, Sutton does not maintain on appeal that he is innocent of the charges in the indictment or that a plausible defense to those charges exists.

Sutton's final argument in his attempt to set aside his guilty plea is that his plea was coerced "under threat of prosecution and imprisonment of his female companion, who is the mother of his children...." The district judge specifically explained to Sutton that if he felt "threatened, or coerced, or under duress, or ... have been promised something which you're not sure that whoever promised it to you can deliver, then you shouldn't enter a plea of guilty." Reporter's Transcript 7-8-85 pp. 15-16. When the...