# Petition for Writ of Certiorari — Pegg v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 970

## Text

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
ico, ccs iuie chk sewer 1

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.

-11-

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.

-12-

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

-13-

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

-14-

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

-19-

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.

-22-

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0841%3A1. Public record. Not legal advice.