842 F.3d 766
1st Cir.2016Background
- Cardona pled guilty to a drug-conspiracy count (possession with intent to distribute near public housing) and a § 924(c) firearm count pursuant to a plea agreement that set offense level but left criminal history open and included an appeal waiver if sentence conformed to the agreement.
- After the plea but before sentencing, Cardona accused his attorney Diaz of coercing the plea; Diaz moved to withdraw and the court held a hearing to consider plea-withdrawal and counsel-withdrawal issues.
- Miguel Oppenheimer, counsel for a co-defendant, was asked by the court to interview the parties and assist; after the hearing the court denied plea withdrawal, allowed Diaz to withdraw, and appointed Oppenheimer to represent Cardona at sentencing.
- The government raised the possibility that Oppenheimer’s dual representation could present a conflict because a co-defendant allegedly executed a murder ordered by Cardona; the court found no actual conflict and left it to Oppenheimer to check with his other client and inform the court if a Foster inquiry was needed.
- Oppenheimer never reported a conflict, represented Cardona at sentencing, and the court increased Cardona’s offense level to 34 (rejecting acceptance credit), adopted Criminal History III, and sentenced Cardona to 180 months for the drug count and 60 months consecutive for the firearm count.
- On appeal Cardona argued the district court should have held a Foster inquiry and that Oppenheimer labored under an actual conflict of interest requiring resentencing; the First Circuit affirmed, finding no actual conflict or prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by not conducting a Foster inquiry after appointing counsel who also represented a co-defendant | Gov't: No reversible error because no actual conflict existed and any inquiry would have shown no prejudice | Cardona: Court should have conducted a Foster inquiry and should have appointed conflict-free counsel because of potential murder-related conflict | Court: Even assuming Foster applied, government showed prejudice was improbable; no actual conflict existed, so no reversible error |
| Whether Oppenheimer’s joint representation created an actual conflict of interest depriving Cardona of Sixth Amendment protection | Gov't: Joint representation alone is not per se violative; Cardona must show an actual conflict that adversely affected counsel's performance | Cardona: Hypothetical scenarios (breach of plea, withdrawal and trial, §2A1.1 cross-reference) show plausible alternative defenses were foreclosed by dual representation | Court: The scenarios were speculative and never realized; Cardona did not show a plausible alternative strategy was foreclosed, so no actual conflict |
| Burden of proof when no Foster inquiry appears on the record | Cardona: Court’s failure to hold an inquiry shifts burden to government to show no prejudice | Gov't: Even without a formal Foster record, the government can demonstrate that prejudice was unlikely here | Court: If inquiry missing, government must show prejudice improbable; it did so by demonstrating no actual conflict occurred |
| Whether appellate waiver bars this claim | Gov't: Appeal is precluded by plea appeal waiver | Cardona: Challenges to ineffective assistance/conflict claims may survive waiver | Court: Assumed arguendo waiver did not bar review and decided the claim on the merits |
Key Cases Cited
- United States v. Foster, 469 F.2d 1 (1st Cir. 1972) (describing courts' duty to inquire about conflicts in joint-representation contexts)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (multiple representation violates Sixth Amendment only when it gives rise to an actual conflict affecting performance)
- Familia-Consoro v. United States, 160 F.3d 761 (1st Cir. 1998) (defendant who did not object below must show actual conflict that adversely affected counsel)
- United States v. Lachman, 521 F.3d 12 (1st Cir. 2008) (to prevail, defendant must show plausible alternative strategy foreclosed by conflict)
- Brien v. United States, 695 F.2d 10 (1st Cir. 1982) (speculative or hypothetical alternatives do not establish conflict-based reversal)
- United States v. Mazzaferro, 865 F.2d 450 (1st Cir. 1989) (if no satisfactory inquiry on record, government bears burden to show prejudice improbable)
- Mickens v. Taylor, 535 U.S. 162 (2002) (rejects automatic reversal rule for conflicts that do not adversely affect counsel’s performance)
- United States v. Newton, 326 F.3d 253 (1st Cir. 2003) (no automatic reversal where conflict did not affect adequacy of representation)