United States v. Sheperd, 27 F.4th 1075

Background

Ann Sheperd, owner of a home‑health agency, was indicted for Medicare/healthcare fraud and retained counsel Bassey Akpaffiong in Feb 2018.
Unbeknownst to Sheperd, Akpaffiong also represented Government witness Okechukwu Okpara and attended Government meetings related to Okpara’s cooperation; the conflict was not disclosed to Sheperd or the court for months.
The Government secured 5K1 cooperation credit for Okpara after meetings involving Akpaffiong; Akpaffiong continued to receive discovery for Sheperd while the conflict persisted.
Akpaffiong disclosed the conflict only days before trial, withdrew, and former state prosecutor Oyesanmi Alonge took over with limited preparation; the court denied a last‑minute continuance and trial proceeded.
Okpara was called at trial but ultimately excluded; Sheperd was convicted on all counts and sentenced to 30 years; she appealed asserting Sixth Amendment conflict‑of‑interest, denial of continuance, and related Fifth Amendment claims.
The Fifth Circuit held an actual conflict existed, found the record too sparse to resolve whether the conflict adversely affected counsel’s performance, REMANDED for a limited evidentiary hearing on adverse effect, and otherwise affirmed denial of the continuance and rejected other claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sixth Amendment: conflicted counsel/adverse effect	Akpaffiong’s dual representation of Sheperd and Okpara violated the right to conflict‑free counsel and prejudiced Sheperd	Government: conflict existed but record lacks proof that it adversely affected performance; prejudice not shown	Actual conflict conceded; remanded for a limited evidentiary hearing to determine whether the conflict adversely affected counsel’s performance (limited presumption of prejudice may apply)
Motion for continuance denial	Sheperd: denial of Alonge’s eleventh‑hour continuance was an abuse of discretion causing prejudice	Government: Alonge had weeks to prepare; delay resulted partly from Sheperd’s actions; denial was within discretion	Affirmed: totality of circumstances did not show reversible abuse of discretion in denying continuance
Fifth Amendment due process/self‑incrimination	Conflict also violated due process and self‑incrimination protections	Arguments largely derivative of Sixth Amendment claim; no independent support for self‑incrimination claim	Due process claim deferred pending remand on Sixth Amendment; self‑incrimination argument rejected for lack of developed authority/analysis
Scope of review/remand	Sheperd: court should resolve adverse‑effect and related prejudice on appeal	Government: limited inquiry should focus on whether conflicted attorney’s performance was adversely affected (not collateral effects on replacement counsel)	Court limited remand to whether Akpaffiong’s conflict adversely affected his representation; panel retained jurisdiction awaiting district‑court findings

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective‑assistance test: performance and prejudice)
Cuyler v. Sullivan, 446 U.S. 335 (1980) (actual conflict standard and adverse‑effect test for prejudice)
Mickens v. Taylor, 535 U.S. 162 (2002) (scope of inquiry in actual‑conflict cases and waiver/replacement guidance)
United States v. Infante, 404 F.3d 376 (5th Cir. 2005) (conflict‑of‑interest adverse‑effect standard and appellate review guidance)
United States v. Salado, 339 F.3d 285 (5th Cir. 2003) (remand for evidentiary hearing when record is too sparse on adverse effect)
United States v. Krout, 66 F.3d 1420 (5th Cir. 1995) (denial of eleventh‑hour continuance not an abuse of discretion)
United States v. Lewis, 476 F.3d 369 (5th Cir. 2007) (continuance factors and evaluating adequacy of defense)
United States v. Hughey, 147 F.3d 423 (5th Cir. 1998) (continuance denial principles)
United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978) (discussing deprivation of Fifth and Sixth Amendment rights through counsel conflicts)
In re Gopman, 531 F.2d 262 (5th Cir. 1976) (ethical prohibition on representing adverse interests)