United States v. Flood
2013 U.S. App. LEXIS 9433
10th Cir.2013Background
- Frances M. Flood sought a COA from this court challenging the denial of her § 2255 motion.
- Flood argued her counsel Labored under an actual conflict of interest due to a third-party fee arrangement and due to SCM's financial interests.
- SCM represented Flood in both civil and criminal matters; a Joint Defense Agreement with ClearOne allowed information sharing without waiving privilege, but did not create an attorney-client relationship with co-defendants.
- Flood settled with the SEC, signed a Separation Agreement with ClearOne, and SCM represented her in negotiation; ClearOne agreed to indemnify her attorneys’ fees.
- Criminal charges were brought against Flood; SCM continued to represent Flood with fees paid by ClearOne arriving in installments, and the district court considered funding issues during trial.
- Flood was convicted after a three-week trial; post-trial motions were denied, and we previously remanded to vacate merits rulings related to ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did SCM labor under an actual conflict of interest? | Flood asserts SCM served ClearOne’s interests under the Joint Defense Agreement and fee structure. | Flood contends SCM did not have an actual conflict; any conflicts were theoretical or non-prejudicial. | No actual conflict; SCM loyal to Flood with no adverse effect. |
| Did SCM's own financial interests create an actual conflict? | Flood claims SCM prioritized fees and civil suit outcomes over Flood's defense. | SCM's actions aligned with Flood’s interests (indemnification, defense funding); no dissonant self-interest shown. | No actual conflict; civil and criminal funding decisions did not show adverse self-interest. |
| Was the district court's denial of an evidentiary hearing, discovery, and judicial notice an abuse of discretion? | Flood sought discovery and an evidentiary hearing to develop conflicts evidence. | Record showed no conclusive entitlement to relief; no abuse occurred. | No abuse; evidentiary hearing and related requests properly denied. |
| Should the COA be expanded to include Flood's Strickland claim? | Flood argues a Strickland claim was raised by the record. | Record only raised conflict-of-interest theory, not a proper Strickland claim. | COA not expanded to Strickland claim. |
Key Cases Cited
- Wood v. Georgia, 450 U.S. 261 (1981) (Sixth Amendment right to conflict-free representation)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (presumption of prejudice for actual conflicts)
- United States v. Alvarez, 137 F.3d 1249 (10th Cir. 1998) (require actual conflicts evidenced by specific instances)
- Mullin v. Mullin, 342 F.3d 1100 (10th Cir. 2003) (actual conflict requires more than theoretical loyalty disputes)
- Burney v. Mullin, 756 F.2d 787 (10th Cir. 1985) (conflict must be shown with particularized facts)
- Noe v. United States, 601 F.3d 784 (8th Cir. 2010) (avoidance of speculative strategies does not prove conflict)
- Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005) (standard for COA expansion and procedural limits)