# Sealed v. Sealed

> Court of Appeals for the Fifth Circuit · August 17, 2018 · 900 F.3d 663

URL: https://www.frixlaw.com/law-library/cases/4305108

## Case

- **Full name:** SEALED APPELLEE, Plaintiff-Appellee v. SEALED APPELLANT, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 17, 2018
- **Citations:** 900 F.3d 663
- **Precedential status:** Published
- **Opinion:** Opinion by Higginson
- **Judges:** Clement, Higginson
- **Nature of suit:** Prisoner w/ Counsel
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4305108

## How later opinions describe it (automated extraction)

- discussing implied waiver of conflict

## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-50487
FILED
August 17, 2018
Lyle W. Cayce
SEALED APPELLEE, Clerk

Plaintiff - Appellee

v.

SEALED APPELLANT,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas

Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Angus McGinty, a former Texas state court judge, pleaded guilty to
Honest Services Wire Fraud after accepting bribes for favorable rulings.
McGinty now alleges that his attorneys were suspects in the same corruption
investigation that led to his conviction. He argues that his attorneys’ potential
criminal liability created a conflict that infringed his Sixth Amendment right
to effective counsel, and seeks to vacate his conviction pursuant to 28 U.S.C.
§ 2255.
The district court denied McGinty’s motion to vacate, holding that
McGinty failed to show that his counsel’s performance was deficient or that
any deficiency prejudiced his defense. We affirm on the alternative basis that
No. 17-50487

McGinty knowingly, intelligently, and voluntarily waived the purported
conflict.
I.
Angus McGinty served as an elected judge of the 144th Judicial District
Court in Bexar County, Texas, from January 2011 until his resignation on
February 14, 2014. On April 13, 2015, McGinty pleaded guilty to one count of
Honest Services Wire Fraud. Consistent with a plea agreement entered under
Federal Rule of Criminal Procedure 11(c)(1)(C), the court imposed a 24 month
sentence.
A.
The investigation that culminated in Angus McGinty’s conviction began
with a tip. In early March 2013, an informant told an FBI agent that Albert
Acevedo, Jr., a local criminal defense attorney, was paying for repairs to
McGinty’s car in exchange for favorable rulings. Consensual recordings and a
wiretap confirmed the informant’s story.
In conversations recorded over the next several months, Acevedo
discussed paying to repair and sell McGinty’s car. When the car sold (to an FBI
agent) for $700 less than McGinty was asking, recorded conversations indicate
that Acevedo made up the difference out of his own pocket. When Acevedo
texted McGinty to say he had the cash from the car sale, McGinty responded:
“Well I’m a whore for money.” After selling McGinty’s old car, Acevedo also
paid to find, repair, and register a new car for McGinty.
In total, Acevedo provided McGinty with approximately $6,655 in car-
related services. This generosity did not go unrewarded. Acevedo told the
informant that McGinty did “a lot of shit for [him].” Acevedo raved that
McGinty sold influence at a relative steal; unlike a former judge that used to
ask for “a grand every couple days,” McGinty “doesn’t ask for much. I’ll give

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No. 17-50487

him cash and he won’t say nothing.” In August 2013, Acevedo called McGinty
and requested that one of his clients be removed from electronic monitoring.
Without asking the client’s name or what he was charged with, McGinty
agreed. Intercepted communications also show that McGinty agreed to remove
an alcohol monitoring release requirement for one defendant and to recall an
arrest warrant for another at Acevedo’s request.
In December 2013, FBI agents confronted Acevedo with the results of
their investigation and Acevedo agreed to cooperate. According to one of the
FBI agents that interviewed him, Acevedo “made a myriad of allegations
against other individuals.” Acevedo “stated that he was not the only attorney
with influence in McGinty’s court” and gave Alan Brown and Jay Norton, two
partners at a local criminal defense firm, “as examples of other attorneys who
got favorable rulings from McGinty.” 1 When pressed, however, Acevedo said
that his allegations against Brown and Norton were based only on his
“observations around the courthouse” and he “admitted that he did not have
concrete information that Brown or Norton were involved in public corruption.”
The agents returned to interview Acevedo the next day, and Brown and
Norton’s names came up again. According to the agent’s account, Acevedo said
that he gave judges campaign contributions, and then “stated that Brown and
Norton also made campaign contributions to judges and had more influence
with judges than he did.” Ten days later, in another interview, Acevedo relayed
to the agents a secondhand account “that Brown had said that he had heard

1 We emphasize that Acevedo and McGinty’s allegations against Alan Brown
and Jay Norton are nothing more than allegations. As noted below, the FBI investigated
McGinty’s allegations and could not substantiate them.
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No. 17-50487

from a local judge that Acevedo was ‘debriefing with the Fed’s on public
corruption cases’ and wanted to know if the rumor was true.” 2
By January 2014, according to FBI agents, the corruption investigation
had “become a topic of interest among attorneys” in the San Antonio area. That
month, McGinty hand-delivered a backdated check to the mechanic that had
repaired his car at Acevedo’s request. FBI agents watched and recorded the
meeting.
FBI agents confronted McGinty about two weeks later. According to the
agents, McGinty initially lied about where he got the parts to repair his car.
After being presented with the evidence against him, McGinty stated that
“[t]his looks really bad” and that it appeared he had been “bought.” McGinty
told the agents that he wanted to speak with a lawyer, Alan Brown.
B.
In June of 2014, McGinty was indicted in the Western District of Texas
for Federal Programs Bribery, Conspiracy to Commit Federal Programs
Bribery, Extortion under Color of Official Right, and twelve counts of Honest
Services Wire Fraud. McGinty retained Brown and Norton—the same two
lawyers Acevedo had identified to the FBI—to represent him. McGinty also
retained a third lawyer to serve as co-counsel to Brown and Norton, as to whom
he has made no argument of a conflict of interest.
While McGinty’s case was pending before the district court, the
government filed a Notice of Potential Conflict of Interest. The notice explained
that Brown also represented another defendant, Cruz Dosdado Aranda, whom
Acevedo had previously represented in state court.

2 According to the government, Acevedo eventually pleaded guilty to one count
of Federal Programs Bribery and adopted “an extensive factual basis detailing his corrupt
dealings with McGinty.”
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No. 17-50487

The district court addressed the potential conflict at a status hearing.
The district judge personally addressed McGinty and told him that the
government had raised a potential conflict. The judge explained that a conflict
could undermine McGinty’s representation and that McGinty had a right to
conflict-free counsel. McGinty said that he understood and wanted to proceed
with Brown and Norton.
Two weeks later, McGinty signed a plea agreement pursuant to Rule
11(c)(1)(C). In the agreement, McGinty stated that he was “fully satisfied with
[his] attorney’s legal representation.” He reiterated his satisfaction with his
multiple counsel at his plea hearing. On July 15, 2015, the district court
sentenced McGinty to 24 months’ imprisonment, consistent with the term
agreed to by McGinty in his plea agreement, which also led to the dismissal of
all but the one count. The court also imposed a one year term of supervised
release and a special assessment of $100. McGinty did not file an appeal.
C.
In December 2015, McGinty requested an interview with FBI agents.
According to one of the agents, McGinty stated at this meeting that he had
received favors from several lawyers while serving as judge. He singled out
Brown and Norton, and stated that the two attorneys had given him cash and
free legal representation. McGinty specifically alleged that Brown gave him an
envelope of cash after McGinty set bond for one of Brown’s clients. He also
stated that Brown came to his chambers to talk about a client, and that before
discussing the case, Brown asked how Norton’s (free) representation of
McGinty was going. McGinty said that he sentenced Brown’s client to
probation rather than prison based on the favors he received from Brown and
Norton. McGinty stated that he had initially wanted to cooperate with the
government, but that Brown and Norton convinced him not to. McGinty

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No. 17-50487

speculated that Brown and Norton advised him to plead guilty to protect
themselves.
The FBI was unable to substantiate McGinty’s allegations against his
attorneys. A search of McGinty’s text messages turned up nothing
incriminating. Investigation revealed that the defendant that McGinty
claimed received probation due to Brown and Norton’s influence actually got
his break based on a favorable plea deal negotiated with the prosecutor. In the
end, the United States declined to prosecute Brown and Norton.
D.
McGinty filed his first, pro se motion to vacate his sentence pursuant to
28 U.S.C. § 2255 on July 14, 2016. In his motion, McGinty stated that he first
became aware that he was the target of an FBI investigation when Norton
called to arrange an urgent meeting in a restaurant parking lot. Norton told
McGinty that a prosecutor had informed Norton and his partner Brown of the
investigation. Norton and Brown agreed that Brown would speak with two
other judges, and Norton would speak with McGinty. Norton told McGinty that
if the FBI contacted him, he should not answer any questions.
According to McGinty, after he did talk to the FBI in January 2014,
Brown and Norton were “very upset.” Brown told McGinty that Brown “had
already told others in the legal community that [McGinty] had spoken with the
government.” The lawyers said they were going to help McGinty, but told him
“not to worry” about paying. McGinty also alleged that Brown and Norton told
him they were discussing his case with other judges and members of the San
Antonio legal community. Brown told McGinty that Aranda—Brown’s other
client that the government raised as a potential conflict—told the FBI that
Acevedo had bribed another district judge. Brown said he had already warned
that judge.

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No. 17-50487

McGinty further alleged in this first, pro se habeas motion that Brown
and Norton’s self-interest led them to forcefully discourage him from
cooperating with the government. McGinty alleged that Brown and Norton told
him that if he cooperated he would be labeled a snitch, his life would be in
danger, and Brown and Norton would refuse to further represent him.
Consequently, McGinty sought to vacate his guilty plea on the grounds that
his defense counsel had discouraged him from cooperation that would have
been beneficial to him.
E.
The district court appointed an attorney to represent McGinty in his
§ 2255 proceeding. 3 McGinty’s attorney filed an amended motion, arguing that
Brown and Norton were suspects in the FBI’s corruption investigation and that
this conflict violated McGinty’s Sixth Amendment right to counsel. Relying on
Cuyler v. Sullivan, 446 U.S. 335 (1980), the amended motion argued that
McGinty need not show any prejudice resulting from Brown and Norton’s
performance because an actual conflict of interest adversely affected their
performance. In an affidavit attached to the amended motion, McGinty stated
that Brown and Norton “never reviewed the discovery with [McGinty] that
mentioned their names in the FBI 302s as possible witnesses, suspects or
targets in the corruption investigation.” McGinty further asserted that he
“would never have consented to a Waiver of Conflict as it relates to Jay Norton
and Alan Brown’s personal conflict of interest in this case.” In an affidavit

3 McGinty further based this argument on our statement in Beets v Scott that “a
powerful argument can be made that a lawyer who is a potential co-defendant with his client
is burdened by a ‘multiple representation’ conflict that ought to be analyzed under Cuyler.”
65 F.3d 1258, 1271 n.17 (5th Cir. 1995) (en banc).
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No. 17-50487

submitted with his reply brief, McGinty attested that, if he had conflict-free
representation, he would have gone to trial.
The district court denied McGinty’s motion. Rejecting McGinty’s
invocation of Cuyler, the court held that McGinty’s ineffective assistance of
counsel claim should be considered under the familiar, and more arduous,
standard announced in Strickland v. Washington, 466 U.S. 668 (1984).
According to the district court, McGinty’s motion failed both Strickland prongs;
he failed to show that his counsels’ performance fell below an objective
standard of reasonableness or that the purported conflict prejudiced his
defense. The district court granted a certificate of appealability, and McGinty
now appeals.
II.
A federal prisoner may be afforded relief under § 2255 if his “sentence
was imposed in violation of the Constitution.” 28 U.S.C. § 2255(a). The Sixth
Amendment guarantees criminal defendants the right to effective assistance
of counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). This right “includes the
‘right to representation that is free from any conflict of interest.’” United States
v. Hernandez, 690 F.3d 613, 618 (5th Cir. 2012) (quoting United States v.
Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006)); see also Cuyler, 446 U.S. at
345, 348. A defendant is entitled to effective counsel at all “critical stages of a
criminal proceeding,” including entry of a guilty plea. Lee v. United States, 137
S. Ct. 1958, 1964 (2017) (quoting Lafler v. Cooper, 566 U.S. 156, 165 (2012)).
In an appeal from denial of a § 2255 motion, the court reviews legal
conclusions de novo and factual findings for clear error. United States v.
Batamula, 823 F.3d 237, 239–40 (5th Cir. 2016) (en banc). A district court may
deny a § 2255 motion without conducting an evidentiary hearing “only if the
motion, files, and records of the case conclusively show that the prisoner is

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No. 17-50487

entitled to no relief.” United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992). Denial of an evidentiary hearing is reviewed for abuse of discretion. Id.
A.
The government brings as a threshold argument, persuasive to us, that,
even if McGinty’s attorneys were constitutionally deficient, McGinty waived
his right to non-conflicted counsel. “[W]e have long held that, like the right to
counsel of any kind, the right to conflict-free counsel can be waived.” United
States v. Greig, 967 F.2d 1018, 1021 (5th Cir. 1992). Waiver is effective when
it is “knowingly, intelligently, and voluntarily done.” Id.
Despite this general rule, not all conflicts are waivable, and McGinty
asserts that the conflict he alleges is unwaivable. See, e.g., United States v.
Vaquero, 997 F.2d 78, 90 (5th Cir. 1993) (stating that no waiver is effective
where a conflict “is so severe as to render a trial inherently unfair [such that]
the integrity of the judicial system has been undermined, and the accused has
been deprived of his right to effective assistance of counsel.”). The government
responds that, even if Brown and Norton’s conflict would have been unwaivable
if timely raised before the district court, an exception exists where the
defendant knows of the conflict, keeps the district court in the dark, and later
seeks to invalidate his conviction based on the alleged conflict. We agree.
We have generally recognized that a defendant may “waive his right to
independent counsel . . . by intentionally, and in bad faith, pursuing a course
of action deliberately designed to lay a groundwork for reversal.” United States
v. Alvarez, 580 F.2d 1251, 1260 (5th Cir. 1978). Echoing this sentiment, other
circuits have found that defendants waived conflicts similar to that at issue
here.
In Bridges v. United States, Bridges alleged in a § 2255 motion that he
and his attorney had committed a litany of crimes together. 794 F.2d 1189,

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No. 17-50487

1191–92 (7th Cir. 1986). Among other things, Bridges asserted that he supplied
cocaine to his attorney and that his attorney had bribed a state court judge on
his behalf to secure acquittal on an earlier charge. Id. The Seventh Circuit held
that Bridges implicitly waived any conflict. Id. at 1195. It noted that Bridges
“had all the information long before entering his guilty plea” and nonetheless
chose to trust his attorney despite the attorney’s “known untrustworthiness.”
Id. at 1194. Given Bridges’ superior knowledge, the court refused to permit
him to “take advantage of the criminal justice system by sort of salting away
and saving, through what alone he knows, something he thinks will vacate and
render null and void a long, tortuous criminal justice procedure that is
undertaken in good faith by other parties.” Id. at 1195.
The Fourth Circuit considered a similar § 2255 motion in United States
v. Reckmeyer, 900 F.2d 257 (4th Cir. 1990) (table decision). There, Reckmeyer
learned that he was the target of a grand jury investigation and retained
counsel. Id. at *1. When Reckmeyer divulged the scope of his drug trafficking
operation, his attorney substantially increased his fee and knowingly accepted
payment by fraudulent cashier’s checks and money that had been smuggled
into the country. Id. at *1–2. As Reckmeyer attempted to move cash into the
country to pay his inflated legal fees, one package was intercepted by
authorities. Id. at *2. This attempted smuggling was later listed as an overt
act in Reckmeyer’s eventual indictment. Id. Emphasizing that “Reckmeyer
must have known that [his attorney] was self-interested and that his self-
interest could run counter to Reckmeyer’s,” the court held that Reckmeyer
waived any conflict of interest. Id. at *6–7. Because Reckmeyer “inevitably
understood and accepted the conflict,” he knowingly and intelligently waived
it by choosing to proceed with his coconspirator as counsel. Id. at *6.

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No. 17-50487

We agree with the conclusions of the Seventh and Fourth Circuits.
Whether McGinty could have waived an attorney conflict of this nature had it
been disclosed in district court is not before us. We must instead assess
whether any alleged error was waived when this issue was raised for the first
time in a post-conviction proceeding. Failing to find that such a conflict is
waivable “would be to condone the knowing complicity of defendants in conflict-
creating misconduct of their counsel while preserving as an anchor to
windward the claim of a constitutional violation resulting from that
misconduct.” Id. at *7.
B.
We therefore turn to whether McGinty did, in fact, voluntarily,
knowingly, and intelligently waive Norton and Brown’s alleged conflict. When
a defendant opts to proceed with his chosen counsel in the face of a known or
suspected conflict, district courts in this circuit must “address each defendant
personally and forthrightly advise him of the potential dangers of
representation by counsel with a conflict of interest.” United States v. Garcia,
517 F.2d 272, 278 (5th Cir. 1975), abrogated on other grounds by Flanagan v.
United States, 465 U.S. 259 (1984). It is undisputed that the district court held
no Garcia hearing regarding the conflict at issue here. The government argues
that, despite the lack of a formal hearing, the record shows a knowing,
intelligent, and voluntary waiver.
Although this appears to be the first time we have considered an implicit
waiver of an attorney conflict, we have upheld analogous waivers. When a
defendant wishes to waive his right to counsel and proceed pro se, “a colloquy
between a defendant and a trial judge is the preferred method of ascertaining
that a waiver is voluntary, knowing, and intelligent.” Wiggins v. Procunier, 753
F.2d 1318, 1320 (5th Cir. 1985). But such a colloquy, though preferred, is not

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No. 17-50487

required. Id.; see also Neal v. Texas, 870 F.2d 312, 315 n.3 (5th Cir. 1989) (“Neal
argues that because the trial court failed to conduct a ‘waiver of counsel’
hearing, any purported request to waive counsel could not have been
knowingly and intelligently made. Neal misperceives the law of this circuit.
There is no constitutional requirement for such a hearing or dialogue.”).
Instead, in such cases, “the proper inquiry is to evaluate the circumstances of
each case as well as the background of the defendant.” Wiggins, 753 F.2d at
1320. The same is true here.
The undisputed record reveals that McGinty waived the alleged conflict
he now asserts. The aim of a Garcia hearing is to “ensure that the defendant
(1) is aware that a conflict of interest exists; (2) realizes the potential hazards
to his defense by continuing with such counsel under the onus of a conflict; and
(3) is aware of his right to obtain other counsel.” Greig, 967 F.2d at 1022. The
record shows that McGinty’s knowledge satisfied all three prongs.
There is little doubt that the latter two requirements are met. Over his
decades-long career as an attorney, McGinty worked as a prosecutor, a
criminal defense attorney, and a judge. 4 See Neal, 870 F.2d at 315 (upholding
waiver of counsel made “by an experienced criminal lawyer, who for four years
had been a district attorney” despite lack of colloquy); United States v. Roth,
860 F.2d 1382, 1389 (7th Cir. 1988) (“Roth’s waiver was valid. He has been a
lawyer for more than 20 years and knows what conflicts of interest are and
their consequences.”); see also Garcia, 517 F.2d at 277 n.5 (“The determination
of whether there has been an intelligent waiver of right to counsel must
depend, in each case, upon the particular facts and circumstances surrounding

4 McGinty unconvincingly attempts to downplay his experience by pointing out
that he worked in the state, not federal, criminal justice system. But, of course, the Sixth
Amendment right to conflict-free counsel applies in both.
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No. 17-50487

that case, including the background, experience, and conduct of the accused.”).
Even if McGinty’s experience somehow left him ignorant to the risk of conflicts
and his right to unconflicted counsel, the district judge brought those points
home when he conducted a Garcia hearing regarding Brown’s concurrent
representation of Aranda.
The uncontested record also shows that McGinty was aware of the
alleged conflict. The government asserts, relying on an affidavit from an FBI
agent, that McGinty told investigators that Brown and Norton had given him
favors in exchange for favorable rulings in the past. Specifically, for example,
McGinty admitted to receiving an envelope of cash from Brown after a
favorable ruling. He stated that he gave his lawyer a favorable ruling in
exchange for a gift. McGinty does not affirmatively embrace these prior
statements, but neither does he dispute them. And McGinty’s brief before this
court affirmatively cites as fact other parts of the same FBI agent affidavit that
recounts his allegations of collusion with Brown and Norton.
McGinty cannot create an issue of fact by dancing around his own
statements. “Contested fact issues in § 2255 cases must be decided on the basis
of evidentiary hearings.” United States v. Kayode, 777 F.3d 719, 732 (5th Cir.
2014) (alteration omitted) (quoting Reagor v. United States, 488 F.2d 515, 517
(5th Cir. 1973)). But uncontested fact issues, for obvious reasons, do not merit
the same treatment. Because McGinty failed, despite ample opportunity, to
contest the veracity of his own prior statements of collusion with Brown and
Norton, the district court and we are entitled to rely on them. See, e.g., Gregory
v. Polk, No. 05-20, 2006 WL 1877262, at *5 (4th Cir. July 7, 2006) (affirming
denial of habeas petition without evidentiary hearing based in part on
petitioner’s earlier, uncontested statement). We therefore have no trouble
concluding that, if McGinty’s attorneys had a conflict, the uncontested facts

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No. 17-50487

show that McGinty opportunistically knew, even took advantage of, that fact
better than anyone. Whether or not that approach was ultimately wise, the
record shows that it was intelligent, knowing, and voluntary. Accordingly, we
hold that McGinty waived Norton and Brown’s purported conflict.
C.
One final point is worth comment. Though the government now
downplays the extent of its knowledge, the government was aware of at least
a potential conflict in McGinty’s representation. We take this opportunity to
remind prosecutors that the prudent course in a case like this is promptly and
fully to disclose a potential conflict to the district court. After all, “[w]hen an
attorney discovers a possible ethical violation concerning a matter before a
court, he is not only authorized but is in fact obligated to bring the problem to
that court’s attention.” In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976). That
is especially true where, as here, the relevant material has already been
disclosed to the allegedly conflicted counsel, so there is no danger of
undermining the investigation. Few defendants are as sophisticated as
McGinty, and many could have less knowledge of their attorneys’ alleged
misdeeds.
III.
The judgment of the district court is AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4305108. Public record. Not legal advice.