Petition for Writ of Certiorari — Pegg v. United States

Q ress

01 816 NOV 0 1 2001

OFFICE OF THE CLERK

No. 00-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2000

JOE HARRY PEGG,

Petitioner, |

US.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

_ PETITION FOR A WRIT OF CERTIORARI

MICHAEL S. PASANO WILLIAM J. GENEGO*

Zuckerman, Spaeder, Nasatir, Hirsch, Podberesky

Taylor & Evans & Genego

Suite 900 2115 Main Street

201 S. Biscayne Boulevard Santa Monica, CA 90405

Miami, FL 33131 (310) 399-3259

(305) 579-0110

Counsel for Petitioner

JOE HARRY PEGG

* Counsel of Record

4% for

Se es == = — _——

ip

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding

petitioner was required to prove his lawyer’s actual conflict

adversely affected his performance in order to establish a

Sixth Amendment violation, where the conflict was based

on the lawyer having engaged in criminal conduct related

to the charges against his client?

2. Did the Court of Appeals err in holding

petitioner was required to prove his lawyer advised him to

plead guilty because it was consistent with the lawyer’s

personal interest, and for no other reason, in order to

establish the lawyer’s actual conflict adversely affected his

performance under Cuyler v. Sulkvan, where the lawyer

admitted his advice to petitioner was affected by his own

personal interest?

3. Did the Court of Appeals err in holding

petitioner was required to satisfy the “adverse effect” test

for multiple representation conflicts established by Cayér

». Sullivan, in order to establish his lawyer’s self-interest

conflict violated the Sixth Amendment?

-ii-

PARTIES TO THE PROCEEDINGS

Petitioner Joe Harry Pegg was the petitioner in the

district court and appellant in the Court of Appeals for the

Eleventh Circuit. Before the district court, the respondent

was the United States of America. The Court of appeals

for the Eleventh Circuit identified the appellee as being the

United States of America, and it is the only respondent in

this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDINGS. ........... ii

SL NE ES a vii

ORDERS OF THE DISTRICT AND

SPREE eile ohantneaeeee vce. 1

EE edad + bane seneekace tides 1

CONSTITUTIONAL PROVISIONS

a dat a ciradeeW ia siw's «4 0 6s 2

a as omen y cetwes 2

STATEMENT OF THE CASE .:.........0000.: 5

A. _ Proceedings In The District Court ... 5

B. Post-Conviction Proceedings ....... 8

Cc. Proceedings In The Court of

Miia cue vam iees 060 ccees 10

REASONS FOR GRANTING THE WRIT ..... 12

I. The Court of Appeals Erred In Holding

The Attorney-Client Crime Conflict

Between Petitioner And His Counsel

Was Not Subject To The Per Se Prejudice

Rule For Sixth Amendment Violations .... 12

A. _— Certain types of impairments on

the right to counsel are subject to

a per se prejudice rule ............. 12

B. Attorney-client crime conflicts

should be subject to a per se

SUE 55 fs ise eae 13

i Fulton applies to the attorney-client

crime conflict in this case ......... 15

II. § The Court of Appeals Erred In Ruling

That Because Petitioner’s Lawyer

Identified Reasons Other Than His

Self-Interest To Advise Petitioner To

Plead Guilty, Petitioner Had Failed To

Establish His Lawyer’s Conflict

Adversely Affected His Performance ...... 18

-V-

A. An “actual conflict adversely

affects” counsel’s performance

if it “impairs” the defense,

“influences” counsel’s strategic

decisions, or prevents counsel

from pursuing a client’s interest

"ROGERS 6.6 cc cccsccecces 18

B. According to the Court of Appeals,

an actual conflict adversely affects

counsel’s performance only if the

conflict can be proved to have

caused counsel to forego an

alternative strategy ...........-... 21

1. The “link” test for determining

adverse effect, as applied by the

Court of Appeals, is inconsistent

with Su/kvan and excludes

re reer rrr 21

2. The “likely affected” standard

for adverse effect is consistent

with Su/évan and limits relief to

meritorious claims ............... 24

3. Lawyer self-interest conflicts

ptesent special problems in

determining adverse effect......... 25

CAI ASI 6 ARS COST Cire ce ovine 28

TABLE OF AUTHORITIES

Austin v. Erickson,

bt) ale SS 21

Brien v. United States,

695 F.2d 10 (1" Cir. 1982) ............. 22

Cuyler v. Sullivan,

a 19, 20, 23, 25

Foxworth v. Wainwright,

516 F.2d 1072 (5" Cir. 1975 ............ 21

Freund v. Butterworth,

165 F.3d 839 (11" Cir. 1999) ........ 21, 22,

25, 26

Glasser v. United States,

ATE ROE ice kcasi ds donscian 19

Government of Virgin Islands v. Zepp,

748 F.2d 125 (3" Cir. 1984) ............ 14

Lopez v. Scully,

58 F.3d 38 (2™ Cir. 1995) ..........-.-- 22

Mickens v. Taylor,

240 F.3d 348 (4"-Cir.), certiorari

granted, 121 S. Ct. 1651 (2001) .......... 22

“Viil-

Stoia v. United States,

22 F.3d 766 (7" Cir. 1994) ....... 24, 25, 26

Strickland v. Washington,

466 U.S. 668 (1984) ............ 12, 13, 14,

15, 18, 20

United States v. Cancilla,

728 F.2d O67 2" Cir. 1988) occ ccc cccves 13

United States v. Fahey,

ge i gto A | ee ere 22

United States v. Fulton

5F.3d 605 om Cir. 1993) ... 13, 14, 15, 16, 17

United States v. Gambino,

864 F.2d 1064 (3% Cir. 1988) ........ 22, 26

United States v. Grieg,

967 F.2d 1018 (5" Cir. 1992) ........... 14

United States v. Levy,

25 O.2l 106 B Cie. 9990) onc cccccceces 22

United States v. Mett,

65 F.3d 1531 (9" Cir. 1995) ............ 24

United States v. Ross,

33 F.3d 1507 (11 Cir. 1994) ........... 14

ix

United States v. White,

706 F.2d 506 (5" Cir. 1983) .........06. 14

Wood v. Georgia,

2 err ee Tee eee 20, 23, 25

STATUTES AND RULES

28 United States Code

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NN es oe iy weno ves wee’ 1,9

ia.

ORDERS OF THE DISTRICT AND

CIRCUIT COURT

The November 3, 2001 order of the Court of

Appeals for the Eleventh Circuit denying petitioner’s

petition for rehearing is unrepc -ted. A copy is reproduced

as Appendix A. The June 12, 2001 opinion of the Court of

Appeals affirming the district court’s denial of petitioner’s

motion pursuant to 28 U.S.C. section 2255 to vacate his

conviction is reported at 253 F.3d 1274. <A copy is

reproduced as Appendix B. The district court’s opinion

and order denying petitioner’s-section 2255 motion is

reported at 49 F. Supp.2d 1322. A copy is reproduced as

Appendix C.

JURISDICTION

Petitioner invoked the jurisdiction of the district

court by filing a motion pursuant to 24 U.S.C. section

2255. Petitioner filed a timely notice of appeal and invoked

the jurisdiction of the Court of Appeals pursuant to 28

U.S.C. sections 1291 & 2253. On August 3, 2001, the

Court of Appeals denied petitioner’s timely filed petition

for rehearing and the Court declined petitioner’s suggestion

of en banc review.

The jurisdiction of this Court to review the orders

of the Eleventh Circuit is invoked under 28 U.S.C. section

1254(1).

-2-

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI, U.S. Constitution

“Tn all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his

defence.”

Preliminary Statement

James Sharp, the lawyer who advised Joe Pegg to

plead guilty, had a personal stake in the outcome. If Pegg

continued on his intended path of proceeding to trial,

Sharp would be disqualified, and the motion the

government would file to have him disqualified would

disclose publicly that Sharp had worked with Pegg in an

attempt to obstruct justice arid suborn perjury to gain

Pegg’s acquittal. Further, if Pegg proceeded to trial, the

government would present evidence of Sharp’s alleged

crimes. That evidence would become a part of the public

record for ever after, insuring the personal and professional

fallout for Sharp would not end with the trial.

The government communicated to Sharp that

alternatively, if Pegg changed his mind and plead guilty,

Sharp would be allowed to continue to represent Pegg.

The government would not seek his disqualification, and

there would be no public disclosure or public record of the

allegations against Sharp or the evidence that supported

them.

-3-

Two weeks after firmly announcing his client would

accept no plea offers, Sharp stood before the judge on the

morning of trial and asked for a ten day continuance,

representing he was confident a plea disposition could be

reached. The court instead gave Sharp twenty-four hours.

That began what Sharp described as the most frantic,

emotionally charged period of his professional career.

Pegg expressed surprise, anger and disappointment,

alternately insisting upon trial and asking Sharp to tell him

what he should do. It ended with Pegg entering a plea

pursuant to an agreement that had literally been

constructed from scratch, and which resulted in Pegg being

sentenced to thirty years imprisonment.

The District Court and Court of Appeals

acknowledged Sharp’s representation of Pegg occurred

under the cloud of an actual conflict, which Pegg had never

waived. Both courts also agreed that the alternative to

pleading guilty - trial - was a viable and reasonable

alternative under the facts.

Sharp admitted at the post-conviction evidentiary

hearing that he considered his own-self interest in advising

Pegg. Sharp, however, maintained he had put his own

interests second to Pegg’s, and identified factors other than

his personal interest that he thought weighed in favor of

Pegg not proceeding to trial. Based on Sharp’s testimony

that his personal interest was not the reason he advised

Pegg to plead guilty, the Court of Appeals ruled Pegg had

-4.

failed to establish a violation of his Sixth Amendment right

to conflict-free counsel.

The “adverse effect” test applied by the Court of

Appeals conflicts with the adverse effect test of at least

three other circuits, all of which would have entitled Pegg

to relief. In fact, in the Second Circuit, the attorney-client

crime conflict between Sharp and Pegg would have been

deemed per se prejudicial, making it unnecessary to prove

adverse effect.

The adverse effect test applied by the Court of

Appeals was adopted for mutual representation conflicts,

not lawyer self-interest conflicts. Under the adverse effect

test applied by the Court of Appeals, no petitioner could

demonstrate adverse effect from a lawyer’s self-interest

conflict. That means either the Court of Appeals applied

the test incorrectly, or a different test has to be established

for lawyer self-interest conflicts.

5.

STATEMENT OF THE CASE

A. Proceedings In The District Court

On March 29, 1994, petitioner and other defendants

were charged in a two count indictment returned in the

Middle District of Florida with conspiring to import

marijuana in November, 1988 and April, 1989. App C 18.

Petitioner was represented by James E. Sharp, a

_ Washington, D.C. lawyer. App C 18. Sharp selected

Tampa attorney John Fitzgibbons to be local counsel. It

was understood Fitzgibbons was not being retained to

assist Sharp in the development or preparation of the

defense, or to actually participate in the trial. App C 19.

Approximately two weeks before the November 28

trial date, Sharp notified the government that petitioner

would not accept a plea offer and would proceed to trial.

A few days later, on November 18, 1994, Collazo “faxed”

Sharp a “proposed” motion to disqualify him (and his

partners) from representing petitioner at trial. App C 120-

21. The motion was not filed with the court. App C 23.

The government’s proposed motion revealed it had

evidence that “Sharp was involved in unethical and

criminal conduct related to the charges for which petitioner

was to stand trial.” App C 21. Specifically, the motion

detailed that cooperating witness Reggie Baxter would

testify to Sharp’s participation and role “in concocting” a

-_

version of events for Baxter to tell DEA agents as part of

his supposed cooperation. App C 21-22. The government

maintained this evidence created a conflict for Sharp that

petitioner could not waive.

The government’s proposed request for Sharp’s

disqualification, however, was conditioned upon petitioner

proceeding to trial. If petitioner went to trial, the

government would move to have Sharp disqualified; if

petitioner instead plead guilty, the government would not

seek Sharp’s disqualification. App C 22. The

government’s proposed motion became Sharp’s primary

focus and concern, to the exclusion of preparing for trial.

App C 24.

On the morning petitioner’s trial was to commence,

co-defendant Bernard Gechtman entered a plea of guilty.

The factual basis for Gechtman’s plea included a statement

that implicated petitioner in one of the alleged

importations. Gechtman, however, did not enter into a plea

agreement with the government, and instead plead “straight

up.” App C 25.

When petitioner’s case was called for trial, Sharp

told the court he believed a plea disposition could be

reached and requested a ten day continuance. The court

gave him 24 hours. App C 26.

|

x

Sharp, and his partners Lankford and Knight, met _

with petitioner the evening of November 28. Petitioner,

who expected to go to trial, was described as “very upset,”

“troubled,” “frantic,” about the sudden change of events.

He continued to express a desire to go trial. App C 27.

Sharp admitted he considered the consequences to himself

personally in counseling petitioner. He maintained,

however, that he placed petitioner’s interests first. App C

26.

Petitioner plead guilty the following morning under

an agreement which required him to plead to one count,

cooperate with the government and provide complete and

truthful cooperation and forfeit $4 million by June 1, 1995.

In return, the government would dismiss the other count,

not file second offender papers and conditionally

recommend acceptance of responsibility, and the

government had the right to seek an upward adjustment

based on petitioner’s role in the offense. If petitioner was

able to provide cooperation the government considered

“substantial assistance,” it might recommend a downward

departure. App C 26-27.

DEA Agent Sam Murad believed Sharp had

engaged in criminal conduct. However, after petitioner’s

guilty plea, Murad reasoned “[t]here was nothing further to

pursue,” and did not plan further investigation. Doc 405

Pg 63 (Murad) 3

8-

In the following months, petitioner attempted but

failed to comply with the forfeiture condition of his plea

agreement. As a consequence, the government cut-off his

debriefing and filed a motion to have him sentenced.

Sharp did not appear at petitioner’s sentencing, even

though he was still counsel of record. When petitioner was

brought to court, his first time in court since pleading

guilty, he moved to withdraw the plea. The court denied

the motion. App C 33.

Local counsel Fitzgibbons appeared with petitioner

at sentencing and orally requested a continuance to allow

petitioner further time to accomplish the required

forfeitures. In explaining why the terms of the plea had

not yet been accomplished, Fitzgibbons told the court that

petitioner had been “placed in an untenable situation

before he plead guilty because of the accusations against his

attorneys.” App C 32-33. The court denied the

continuance and sentenced petitioner to 360 months

imprisonment. App B 4.

B. Post-Conviction Proceedings

In early February, 1997, Florida attorney William F.

Jung sent Sharp & Lankford a draft section 2255 motion

Jung had prepared for petitioner. The draft motion quoted

and reiterated Baxter’s accusations against Sharp from the

government’s proposed disqualification motion. Promptly

-9-

upon receiving the draft, Sharp & Lankford sent a letter to

Jung telling him that if the memorandum were filed, the

firm would “consider all privileges waived,” and “shall sue

civilly, seek Rule 11 sanctions, and initiate bar disciplinary

proceedings against those who are a party to it.” Pet’s Exh

11.

On February 18, 1997, with the assistance of new

counsel, petitioner filed a motion pursuant to 28 U.S.C.

section 2255 to vacate his conviction and sentence. The

grounds stated for relief included the denial of petitioner’s

Sixth Amendment right to effective assistance of counsel

due to his attorney’s actual conflict.’ After the government

filed an opposition to the motion and petitioner filed a

reply, an evidentiary hearing was conducted. App B 4.

The district court ruled Sharp had an actual conflict

which petitioner had not waived. App C 38-39. The court

also acknowledged that where a defendant is represented

by counsel who is alleged to have participated “in criminal

conduct related to the crimes against the defendant,” the

resulting actual conflict entitles the defendant to relief

without the need to show the conflict adversely affected

counsel’s performance. The court, however, said the rule

' The motion sought relief on two additional grounds,

denial of presentence motion to withdraw guilty plea,

and government breach of plea agreement, neither which

were pursued beyond the district court.

-10-

was inapplicable here because it accepted as true Sharp’s

unrebutted testimony at the evidentiary denying that

Baxter’s allegations were false. App C 40. The court also

ruled that petitioner had not demonstrated the conflict

“adversely affected” counsel’s performance. The court

agreed that trial was a reasonable and viable alternative

strategy for petitioner to pursue, but ruled the record did

not establish the alternative of trial was not undertaken

“due to” the conflict, or that it was inherently in conflict

with Sharp’s loyalties or interests. App C 41.

C. Proceedings In The Court of Appeals

In a published opinion, the Court of Appeals

affirmed the district court. App B. The Court held that to

be entitled to relief, petitioner was required to prove his

counsel’s actual conflict adversely affected his

performance. To prove adverse effect, petitioner had to

establish (1) there was a plausible alternative defense

strategy that might have been pursued, (2) which was

reasonable under the facts, and (3) a link between the actual

conflict and the decision to forgo the alternative strategy.

To establish the “link,” petitioner had to prove the

alternative strategy was not undertaken “due to” the

conflict or that it was inherently in conflict with the

conflicting interest. App B 10.

The Court of Appeals ruled petitioner had failed to

establish the required “link,” and relied on three facts.

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First, “the plan under which [petitioner] was to plead guilty

was devised by Fitzgibbons, an attorney who did not act

under any conflict.” App B 11. Second, all of petitioner’s

lawyers concurred in the recommendation. App B 11.

Third, if petitioner had not plead guilty, “Getchman, a co-

conspirator turned government witness, would have

testified against [petitioner] at trial and his testimony would

have been devastating to [petitioner’s] case.” App B 12.

The record demonstrates all three facts are clearly

erroneous. First, Fitzgibbons specifically testified the plan

for petitioner to plead guilty was not devised by him but by

Sharp. Doc 405 Pg 40-41 (Fitzgibbons) Second, Knight,

one of petitioner’s lawyers, testified he believed the plea

was not in petitioner’s best interest, because its terms could

not be fulfilled and Knight communicated his view to

Sharp. Doc 397 Pg 182-183, 233-34 (Knight). Third,

Getchman had not “turned government witness.” As the

district court noted, Getchman did not even have a plea

agreement. App C 25.

The Court of Appeals also held that the per se

reversal rule of the Second Circuit which petitioner urged

the Court to adopt did not apply to his case, for the same

reason given by the district court. App B 13-14.

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REASONS FOR GRANTING THE WRIT

A

The Court of Appeals Erred In Holding The

Attorney-Client Crime Conflict Between Petitioner

And His Counsel Was Not Subject To The Per Se

Prejudice Rule For Sixth Amendment Violations

A. Certain types of impairments on the right to

counsel are subject to a per se prejudice rule.

Infringement on a defendant’s right to counsel

ordinarily must be proved to be prejudicial for the

infringement to constitute a constitutional violation.

Strickland v. Washington, 466 U.S. 668, 692 (1984) In certain

instances, however, prejudice is presumed due to the nature

of the infringement. The “[a]ctual or constructive denial of

the assistance of counsel altogether is legally presumed to

result in prejudice,” as are “various kinds of state

interference with counsel’s assistance.” Strickland, 466 U.S.

at 692 (citation omitted)

A distinguishing feature common to this category of

infringements is that “[p]rejudice . . . is so likely that a case-

by-case inquiry into prejudice is not worth the cost.”

Strickland, 466 U.S. at 692. Additionally, they “involve

impairments of the Sixth Amendment right that are easy to

identify and, for that reason and because the prosecution is

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directly responsible, easy for the government to prevent.”

Id.

B. Attorney-client crime conflicts should be

subject to a per se prejudice rule.

Actual conflicts generally are subject to a limited

presumption of prejudice. Séick/and, 466 U.S. at 692. One

specific type of actual conflict, however, has been held to

be subject to the per se rule of prejudice - - “[w]hen a

government witness alleges that the defendant’s couz.sel

engaged in criminal conduct related to the charges for

which the defendant is not trial,” the resulting actual

conflict is subject to the per se prejudice rule, unless “the

attorney is demonstrably innocent and the government

witness’s allegations are plainly false.” United States v.

Fulton, 5 F.3d 605, 610 (2d Cir. 1993); United States v.

Cancilla, 725 F.2d 867, 870 (2d Cir. 1984).

This type of conflict is “of a different character than

other conflicts,” as it “involves a bias arising out of

counsel’s powerful self-interest in avoiding criminal charges

or reputational damage...” Fulton, 5 F.3d at 613. Not

only is the corrupting influence of the conflict stronger, but

its scope is much broader:

Where a government witness implicates

defense counsel in a related crime, the resulting

conflict so permeates the defense that no

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meaningful waiver can be obtained. In such a

case, we must assume that counsel’s fear of, and

desire to avoid, criminal charges, or even the

reputational damage from an unfounded but

ostensibly plausible accusation, will affect virtually

every aspect of his or her representation

of the defendant.

Fulton, 5 F.3d at 613 (emphasis added).

Application of the per se rule of prejudice to this

attorney-client crime conflicts is also appropriate because

they exhibit the characteristics that make application of the

per se rule appropriate to other types of impairments.

First, “[p]rejudice . . . is so likely that case-by-case

inquiry into prejudice is not worth the cost.” S#ickland,

466 U.S. at 692 (citation omitted). As case law confirms,

given the scope of the conflict and the powerful influence

of self-preservation, prejudice is virtually inevitable. See

United States v. Ross, 33 F.3d 1507, 1524, n.29 (11™ Cir

1994); United States v. Greig, 967 F.2d 1018, 1022-23 (Sth

Cir. 1992); Govt. of Virgin Islands v. Zepp, 748 F.2d 125, 136

(3rd Cir. 1984); United States v. White, 706 F.2d 506 (5® Cir

1983).

Most, if not all of these cases, never would have

atisen with a per se prejudice rule. For example, a per se rule

would have prevented this case, because it would have

-15-

required Sharp’s disqualification regardless of whether

petitioner went to trial or plead guilty. The existence of

this case, and others like it, thus illustrate the high cost of

a case-by-case determination of prejudice.

Second, as evidenced by this case, the “prosecution

is directly responsible” for the impairment, and it is an

impairment that is “easy for the government to prevent.”

Sirickland, 466 U.S. at 692 (citation omitted). The

prosecution was responsible for the conflict in the sense

that it intended to call Baxter to testify to Sharp’s criminal

conduct, knowing the conflict it would create. The

government could have easily prevented it, by moving to

disqualify Sharp without conditioning it on whether

petitioner plead guilty.

Further, the per se prejudice rule is appropriate

because attorney-client crime conflicts are sufficiently

disabling as to render them equivalent to the constructive

denial of the right to counsel. Fuston, 5 F.3d at 611, citing,

Strickland, 466 U.S. at 692.

C. Fulton applies to the attorney-client crime

conflict in this case.

The District Court accepted Fu/ton’s holding that

attorney-client crime conflicts are subject to a per se

prejudice rule, and the Court of Appeals accepted that the

per se rule might be applicable to such conflicts. App C 40;

-16-

App B 14. Both courts, however, believed petitioner’s case

was not subject to Fu/ton based on the district court’s

determination to “accept Sharp’s uncontroverted testimony

[at the post-conviction evidentiary hearing] that Baxter’s

allegations were false.” App B 1279.

The Court of Appeals believed this determination

by the district court made Fw/ton inapplicable, because

Fulton says that where it is determined the allegations _

against the lawyer are false, a waiver is possible. App B

1279, ceting, Fulton, 5 F.3d at 613. The Court mistakenly

equated the pretrial determination that Fu/on requires for

a meaningful waiver, with the post-conviction

determination the district court made in this case.

Fulton provides that a “if a district court holds a full

hearing and can definitively rule out the possibility that the

allegations are true, a meaningful waiver is possible . . .”

Fulton, 5 F.3d at 613. As Fulton explains, a waiver is

possible in that circumstance because the district court’s

determination changes the nature of the conflict by

assuring the lawyer he no longer needs to be concerned

with defending himself against criminal liability. The all

pervasive conflict that exists when a lawyer is concerned

with defending himself, and which Fu/ton says cannot be

waived by the defendant under any circumstances, becomes

a narrowly confined conflict, as “the falsely accused

attorney is conflicted only to the extent she cannot cross-

examine the witness regarding the false allegations.” Fuston,

AT

5 F.3d at 613.

A post-conviction determination that the allegations

are false cannot be equated with a determination made

pretrial, because the post-conviction determination does

not and cannot change the nature of the conflict post hoc.

The nature of Sharp’s actual conflict at the time he was

representing petitioner made the per se rule of Fulton

applicable. The district court’s determination five years

later to accept Sharp’s testimony that the allegations were

false, does not change the nature of the conflict as it

existed at the time of the representation in 1994, nor does

it affect the applicability of the per se prejudice rule to the

conflict.

The Court of Appeals also mistakenly read Fus/ton to

apply only at trial. App B 13-14. (“the accusation in Fulton

that counsel was involved in the alleged crime would seem

to affect counsel’s handling of the trial.”) The Court

offered no explanation why the allegations would affect

counsel’s “handling of the trial,” but not affect the decision

whether to go to trial at all. In any event, the Court of

Appeals misread Fulton, as the court there explicitly

recognized the allegations affect counsel’s ability to advise

the defendant about whether to plead guilty or go to trial.

| Fulton, 5 F.3d at 610 (“the attorney is not in a position to

give unbiased advice to the client about such matters as

whether or not to testify or to plead guilty and cooperate since

such testimony or cooperation from the defendant may

-18-

unearth evidence against the attorney.”)

Contrary to the ruing of the Court of Appeals,

Fulton applies to the attorney-client crime conflict in this

case, and the Second Circuit’s per se prejudice rule for such

conflicts as reflected by Fuston, should be adopted.

Il.

The Court of Appeals Erred In Ruling

That Because Petitioner’s Lawyer Identified

Reasons Other Than His Self-Interest To Advise

Petitioner To Plead Guilty, Petitioner Had Failed

To Establish His Lawyer’s Conflict

Adversely Affected His Performance

A. An “actual conflict adversely affects”

counsel’s performance if it “impairs” the

defense, “influences” counsel’s strategic

decisions, or prevents counsel from pursuing

a client’s interest “single-mindedly.”

To establish a violation of the Sixth Amendment

right to counsel based on a conflict of interest, “a

defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely

affected his lawyer’s performance.” Strickland v. Washington,

466 U.S. at 692, quoting, Sullivan, 446 U.S. at 348. The

Court first articulated this standard in stating the holding of

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Sullivan: “We hold that the possibility of a conflict is

insufficient to impugn a criminal conviction. In order to

demonstrate a violation of his Sixth Amendment rights, a

defendant must establish that an actual conflict adversely

affected his lawyer’s performance.” Id. 446 U.S. at 350

(emphasis added).

Sullivan used Glasser v. United States, 315 U.S. 60

(1942), as an example of where an actual conflict adversely

affected counsel’s performance. In G/asser, two defendants,

Glasser and Kretske, were initially represented by separate

counsel. During trial, Kretske dismissed his lawyer. The

trial judge then appointed Glasser’s lawyer Stewart to

represent Kretske also. After becoming counsel for both

Glasser and Kretske, Stewart failed to cross-examine a

government witness who tied Glasser to the conspiracy and

failed to object to the admission of arguably inadmissible

evidence. The Court viewed those failures to be the result

of Stewart’s desire to protect Kretske’s interests by

diminishing the jury’s perception of his guilt and was thus

“indicative of Stewart’s struggle to serve two masters... .”

Glasser, 315 U.S. at 75. The Court in Su/ivan explained that

“[s]ince this actual conflict impaired Glasser’s defense, the

Court reversed his convictions.” Sudivan, 446 U.S. at 349

(emphasis added).

The Court in Su/dvan made explicit that the adverse

effect standard did not require a showing of prejudice, that

is, a showing the conflict affected the outcome of the

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proceeding. Sw/kvan, 446 U.S. at 349, citing, Glasser, 315

U.S. at 76. Rather, as Sérickland, later explained, the

showing of adverse effect required by Su/kvan provides a

basis for presuming the conflict was prejudicial. Id, 466

US. at 692.

Wood v. Georgia, which followed Sul/ivan, provided

further guidance as to the meaning of “adverse effect.” In

Wood, an owner of an adult book store had paid for a

lawyer to defend employees of his store who were charged

with crimes committed in connection with their

employment. The employer continued to pay the lawyer to

represent the employees at a probation revocation hearing

arising out of their failure to pay the fines imposed upon

their convictions. On these facts, the Court expressed its

concern that the lawyer “may not have pursued their

interests single-mindedly.” «Id, 450 U.S. at 271-272

(emphasis added). —

The Court ordered a remand to the state court to

determine if the defendants right to counsel was violated by

an actual conflict. The question that needed to be

answered to make that determination, as stated by the

Court, was “whether counsel was influenced in his basic

strategic decisions by the interests of the employer who

hired him.” Id., 450 U.S. at 272 (emphasis added).

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B. According to the Court of Appeals, an actual

conflict adversely affects counsel’s

performance only if the conflict can be

proved to have caused counsel to forego an

alternative strategy.

1. The “link” test for determining adverse

effect, as applied by the Court of

Appeals, is inconsistent with Sullivan

and excludes meritorious claims.

To demonstrate Sharp’s actual conflict “adversely

affected” his performance, the Court of Appeals required

petitioner to show: “(1) the existence of a plausible

alternative defense strategy or tactic that might have been

pursued; (2) that the alternative strategy or tactic was

reasonable under the facts; and (3) a link between the actual

conflict and the decision to forgo the alternative strategy of

defense.” App B 10, citing, Freund v. Butterworth, 165 F.3d

839, 860 (11th Cir. 1999) (en banc). To “link” that

petitioner was required to establish was that the alternative

strategy "was inherently in conflict with or not undertaken

due to the attorney's other loyalties or interests." App B

10, citing, Freund, 165 F.3d at 860.

The origin of this link test for “adverse effect”

actually precedes Su/ivan, and was originally articulated as

a formulation for determining an actual conflict. Foxworth

v. Wainwright, 516 F.2d 1072, 1079 (5™ Cir. 1975); Austin v.

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Enickson, 477 F.2d 620, 624 (8" Cir. 1972). Its first post-

Sullivan use appears to be Brien v. United States, 695 F.2d 10,

15 (1st Cir. 1982), where is was still used to define an

“actual conflict of interest.” It was used again by the First

Circuit to define an actual conflict in United States v. Fahey,

769 F.2d 829, 836 (ist Cir. 1985). The Third Circuit

adopted the formulation of Fahey in 1988, and in doing so,

described it as a test that “includes both the actual conflict

and adverse effects prongs of the conflict of interest

analysis.” United States v. Gambino, 864 F.2d 1064, 1070-

1071 (3d Cir. 1988). The link test has since been adopted

by other circuits, including the Second, Fourth and

_ Eleventh Circuits. Mickens v. Taylor, 240 F.3d 348. (4

Cir.) (en banc), certiorari granted, 121 S. Ct. 1651 (2001); Freund,

165 F.3d at 860. United States v. Levy, 25 F.2d 146 (2d Cir.

1994)

The “link” element of the formulation requires a

petitioner to show the alternative strategy was not pursued

“because” of the conflict. See, ¢.g., Lopez v. Scully, 58 F.3d

38, 42 (2d Cir. 1995). In other words, it requires a showing

that “but for” the conflict, the alternative strategy would

have been pursued. See Freund, 165 F.3d at 866 (rejecting

argument that “but for” conflict, counsel would have

pursued alternative strategy).

Under this approach, as this case illustrates, the

required link cannot be established as long as a plausible

reason, other than the conflict, can be identified for not

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pursuing the alternative strategy. As a result, the link test

limits adverse effect to those circumstances where no

plausible reason exists, other than the conflicting interest,

for the lawyer not to pursue the alternative strategy. Thus,

even if Sharp’s self-interest influenced his decision to

advise petitioner to plead guilty, or even if Sharp’s self-

interest was the determining factor for his decision to

advise petitioner guilty, Sharp’s conflicting self-interest

cannot be shown to have adversely affected his

performance under the link test applied by the Court of

Appeals.

In fact, under the test applied by the Court of

Appeals, adverse effect exists only in two circumstances.

If there was no plausible reason to support a lawyer’s

decision between alternative strategies other than the

conflicting interest, or where a lawyer chooses between

alternative strategies that will affect two clients in the

opposite way.

In Sulivan and Wood, the Court described an

“adverse effect’ of an actual conflict to include

circumstances where a conflict “impaired” the defense,

influenced counsel’s strategic decisions, or precluded

counsel from pursuing the interests of his client “single-

mindedly.” Su/ivan, 446 U.S. at 349; Wood, 450 U.S. at 271-

272. Under the link test applied by the Court of Appeals,

none of these circumstances would be deemed to

constitute an adverse effect. The link test for adverse

-24-

effect applied by the Court of Appeals is therefore

inconsistent with Sudivan, and it also denigrates the value

the Sixth Amendment right to conflict-free counsel, as it

allows violations of that right to go unremedied.

2. The “likely affected” standard for

adverse effect is consistent with

Sullivan and limits relief to meritorious

claims.

Other circuits read the “adverse effect” of conflicts

that Su/évan deems presumptively prejudicial more broadly.

For example, the Seventh Circuit deems an actual conflict

to have adversely affected counsel’s performance if but for

the attorney’s actual conflict, there is “‘a [reasonable

]likelihood that counsel’s performance would have been

different.” Stoia v. United States, 22 F.3d 766, 771 (7™ Cir.

1994), quoting, Frazier v. United States, 18 F.3d 778, 787 (9"

Cir. 1994). The Ninth Circuit deems an actual conflict that

“likely affected” counsel’s performance with respect to

particular aspects of the case to constitute an adverse

effect. United States v. Mett, 65 F.3d 1531, 1535 (9" Cir.

1995) (“need only show that some effect on counsel’s

handling of particular aspects of the trial was likely”),

quoting, United States v. Miskinis, 966 F.2d 1263, 1268 (9"

Cir. 1992).

These formulations of adverse effect include within

their scope circumstances in which an actual conflict

-25-

“influences” counsel’s strategic decisions, or “impairs” the

defense, or prevents the lawyer from pursuing the interests

of his client “single-mindedly.” Sudkvan, 446 U.S. at 349;

Wood, 450 U.S. at 271-272. At the same time, they do not

provide relief based on a showing of an actual conflict

alone, or where there the relationship between a conflict

and a strategic decision is speculative or tenuous. By

striking this balance, the “likely affected” and “reasonable

probability” formulations of adverse effect are true to

Sullivan and provide a sound basis for presuming the actual

conflict to be prejudicial.

a. Lawyer self-interest conflicts present

special problems in determining

adverse effect.

The adverse effect requirement was adopted in

the context of a mutual representation conflict and was

intended to identify when an actual conflict in the interests

of clients represented by the same lawyer should be

presumed prejudicial. Su/ivan, 446 U.S. at 350. As some

courts have suggested, the criteria for determining adverse

effect from a mutual representation conflict, is not

necessarily well-suited for determining adverse effect from

a lawyer’s self-interest conflict. See Freund, 165 F.3d at 886

(Tjoflat, J., dissenting); Stoia v. United States, 22 F.3d at 770,

n.3 (courts continue to apply same test to both, “even

though the fit is less than perfect.”)

-26-

In a mutual representation conflict, an actual

conflict exists when a lawyer is in the position of having to

make a strategic decision as to which the interests of his

clients diverge. Gambino, 864 F.2d at 1070. In that

circumstance, the client harmed by the lawyer’s decision

can prove the conflict caused the lawyer’s decision not to

pursue the alternative strategy that favored him, because

but-for the interests of the other client, there would have

been no reason for the lawyer not to pursue the alternative

strategy. See Stoia, 22 F.3d at 770, n.3.

; In a lawyer self-interest conflict, an actual conflict

exists when a lawyer is in the position of making a strategic

decision on behalf of a client that will affect the lawyer’s

personal interest differently depending upon the decision.

See Freund, 165 F.3d at 886 (Tjoflat, J., dissenting). In that

circumstance, proving the lawyer’s self-interest caused the

lawyer’s decision not to pursue one alternative strategy over

another, is practically impossible, absent an admission. The

lawyer must decide which alternative that will advance the

interests of the client the most, not between one alternative

that will advance the client’s interest and another that will

harm it. Given that the lawyer is choosing between

competing plausible strategic alternatives, the conflict can

never be isolated as the cause-in-fact for the lawyer’s

decision.

Again, this case illustrates the point. The

alternatives of trial or plea were not ones that conversely

-27-

advanced or harmed petitioner’s interests. They were

competing plausible alternatives, with arguments for and

against each. On the other hand, it was in Sharp’s personal

interest for petitioner to plead guilty, and contrary to

Sharp’s interest for petitioner to proceed to trial.

Nevertheless, Sharp’s personal interest cannot be proved to

have caused his decision to advise petitioner to plead guilty

under the link test, because other reasons could be given

for recommending the alternative of a guilty plea.

Lawyer self-interest conflicts can and often do result

in compromised representation, and results which for that

reasOui cannot be considered reliable. Once unheard of,

lawyer self-interest conflicts are becoming increasingly

common. To require in a lawyer self-interest conflict that

a petitioner prove subjectively that the lawyer’s self-interest

was the cause-in-fact for the lawyer’s decision not to

pursue a strategic alternative, would be to exempt such

conflicts from enforcement and deprive those harmed by

them of a remedy. Thus, if the adverse effect standard of

Sullivan does requite a petitioner to demonstrate that the

conflict caused counsel’s decision not to pursue an

alternative strategy, a new standard needs to be established

for determining adverse effect for purposes of lawyer self-

interest conflicts.

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CONCLUSION

The original conflicts rules of Su/évan simply don’t

work well in the context of attorney-client crime conflicts.

This fact is well-demonstrated by the split in the Circuits

over a per se prejudice rule and in the differing adverse

effect tests that have emerged. At a time when more

lawyers are being investigated and prosecuted, it is

important to the criminal justice system that its conflict

rules be clear and uncompromising. For all the foregoing

reasons, this Court should issue a writ of certiorari to the

United States Court of Appeals for the Eleventh Circuit to

review the questions presented in this petition.

Respectfully submitted,

MICHAEL S. PASANO WILLIAM J. GENEGO*

Zuckerman, Spaeder, Nasatir, Hirsch,

Taylor & Evans Podberesky & Genego

201 Biscayne Boulevard, 2115 Main Street

Suite 900 Santa Monica, CA 90405

Miami, Florida 33131 (310) 399-3259

(305) 579-0110

Counsel for Petitioner

JOE HARRY PEGG

* Counsel of Record