Government of the Virgin Islands v. Zepp, Jo-Ann. Appeal of Jo Ann Zepp

enactment peal as moot as a result 98-532, reorgani- P.L. which ratified here. plan

zation at issue See EEOC Cir.1984).

CBS, Inc., (2d F.2d 969 CBS motion, .essentially arguing

opposes the requested unnecessary the relief light concluding of the imprudent opinion which reads:

paragraph of our

The order of the district court reversed

and the action is remanded to district the com-

court with a direction to dismiss

plaint. judgment to be entered appeal stayed until shall be Decem- prior If to that date con-

ber 1984.

gress pass legislation affecting shall

authority plaintiff to maintain this

action, then con- the district court shall proceedings may such further as duct be Garth, Judge, Circuit filed concurring appropriate. opinion. 743 F.2d at 976. deny panel’s opinion We the motion. resulting judgment contemplated possi- by congress, remedial action which has

ble opinion

now occurred. As a result of our therefore, judgment, the case has been further

remanded to the district court for

proceedings may appropriate, includ-

ing, necessary, a trial on the merits of

plaintiff’s underlying ADEA claim.

Motion denied.

GOVERNMENT OF ISLANDS

VIRGIN

ZEPP, Jo-Ann.

Appeal of Jo Ann ZEPP.

No. 83-3201. Appeals, Court of

United States

Third Circuit.

Argued April

Decided Nov. $5,000.00

of evidence count and fined simple possession count. alia, inter appeal challenges, This constitutionality proceedings of the trial bel Specifically, ow.2 the defendant asserts that her sixth amendment to effective assistance of counsel was violated because trial counsel had an actual conflict of inter potential liability est due to for the charges same on which she was tried and (2) the fact that he was a witness for the Thus, prosecution. the defendant chal lenges the failure of counsel to withdraw representation questions from and also propriety judge’s of the trial failure either disqualify trial counsel or to obtain a knowing waiver of effective assistance of Iversen, (argued), Michael Judd C. P.C. counsel. Francisсo, Citara, Cal., appel-

T. for San judgment We reverse the and conviction lant. and remand the matter with directions to Diehm, grant Atty., Douglas L. a new trial. James W. U.S. Capdeville, Atty. (argued), Asst. U.S. Chris- I.

tiansted, Croix, V.I., appellee. St. Zepp (“Zepp”) Ann placed Jo was under SEITZ, Judge, Before Chief GARTH and 18, arrest on December following a HIGGINBOTHAM, Judges. Circuit Fountain, “raid” on 38 Estate proper Little ty Zepp owned since 1978 and where THE OPINION OF COURT she resided with co-defendant Glenn Wil Jr., HIGGINBOTHAM, Circuit A. LEON (“Williams”). liams The raid conducted Judge. Department three officers from the of Pub (DPS) Safety lic and four Narcotics Strike Zepp appeals Ann Defendant Jo from a (NSF) agents Force was the culmination judgment and conviction for destruction of operation investigation undercover § 1506, evidence in violation of 14 V.I.C. began early St. Croix which December simple possession of a controlled substance purpose infiltrating drug of 1982 for the § of 19 607 and from violation V.I.C. property and stolen rings.3 of her for a denial motion new trial. Fol trial,1 lowing jury 18, 1982, was sentenced she approximately On December a.m., imprisonment one-year agents on the destruction 7:30 narcotics arrived at 38 appeal appeal finding govern- regarding 1. This is related to the of the erroneous whether a Virgin agent perjured Wil- Government liams, Islands Glenn ment himself. Williams and were No. 83-3189. We will not address the defendant’s first two jointly. and tried co-defendants arguments because we them find to be without point, merit. As to her final we are of thе raises three additional contentions. opinion that it is rendered irrelevant in view of First, alleges she that certain evidence seized holding. our during the narcotics raid conducted at evidence, dwelling According government's shared with Williams she should to the suppressed along pertinent testimony leading actually with been by series of events arrest Second, 8, agents. began narcotics she maintains that on December when narcotics drug agents presence during acquainted her certain transactions first became with one Jose Parrilla, finding ("Parrilla”) support was not sufficient to of her Cheo who indicated a/k/a guilt. Finally, persons claims that the the defendant he could introduce them to certain they purchase drugs. denial of her motion for a new trial was an could whom On 11, 1982, light of trial court's abuse of discretion in December Parrilla directed the under- later A warrant for the house was arrest Williams search Little Fountain to Estate warrants. drug-related charges, without day, on and executed on the same but obtained surrounded the house The armed officers bag plastic was discovered one small Sibilly, the a canine unit. David De- negative it tested for cocaine. On posi- testified that he was agent-in-charge, a search warrant for cember door. He also testi- tioned near the front septic tank connected to the house himself, asked the that he identified fied produced triangu- The search executed. dоor, and heard occupants open lar-shaped plastic bags, 20 of which tested coming.” respond, “I’m voice female positive for cocaine residue. thereafter, Sibilly again called for Shortly come out. He further occupants suppression hearing was conducted on A “suddenly” the toilets bath- testified that government in January 1983. The the house were opposite ends of rooms judge that it intended to formed the trial agents flushing simultaneously. The heard James, Zepp’s attorney, as a call Jack finally opened and the door waited objected. The government James witness. Williams, standing doorway, Zepp. necessary judge stated that it was not immediately. arrested was objection until to rule on defense counsel’s sweep agents conducted a search of The actually suppres he called.4 At the safety premises for reasons but client, hearing, representing his sion while negative. was then were Williams results prosecution called as a witness. James was headquarters, during which police taken to whereupon requested proffer He a attorney, Jack time ques government stated that there was a (“James”) Little Foun- arrived 38 Estate occasion, tion as to whether or not he had Zepp and James then entered tain. Zepp, in the house with to use the while Ac- closed the front door. residence and objected ground on the bathroom. James trial, testimony at moments later cording to relevancy ground if on the police officers heard a toilet flush several witness, it jeopar called to be a would hour after James’ arriv- times. Within one position as defense counsel.5 The dize his al, by agents at the arrested ultimately stipulation parties agreed a States At- direction of an Assistant United wherein James stated that at no time when torney. residence, approximately agents a later iden- for the arrest of Williams. At cover narcotics Fountain, Attorney p.m., Little where a 11:00 an Assistant United States tified as 38 Estate female, Zepp, following agents later identified as came to to wait until white advised the male, morning agents the house. A black later The decid- the door of to obtain warrants. Williams, proceed. identified Glenn a/k/a ed to triangular- Dugo/Indugo, gave Parrilla a small 4. CAPDEVILLE: We also intend ATTORNEY substance, glassine bag containing shaped la- Attorney government Jack James as a to call cocaine, exchange for ter identified as witness. $300.00. TFIE COURT: he been notified? Has purchase De- was made on A second cocaine right. All at 38 Estate Little Fountain. cember notified, I ATTORNEY JAMES: also was agent the same white female he had An saw him, greatly and I and I do remonstrated walking in- seen earlier December object. give also Williams Par- the house. He saw side Honor, CAPDEVILLE: Your if ATTORNEY triangular-shaped, glassine envelope clear rilla a may just that for a second— I talk about — containing positive later tested а substance to talk THE COURT: I don’t think we have cocaine. actually you it unless call him. about 17, 1982, agents the undercover On December right. All house or base of their “safe” discovered Appendix ("App.") at 110. burglarized. operation Stolen in that had been Attorney I call ATTORNEY CAPDEVILLE: burglary true identifications of the were the James, Jack sir. weapon. agents, police reports undercover you like to— THE COURT: Would unsuccessfully agents of a went search to hear a ATTORNEY JAMES: I would like agents p.m., suspect. approximately At 10:30 proffer. magis- attempted local and federal to locate We intend to ATTORNEY CAPDEVILLE: the search in order to obtain warrants for trates questions or not Mr. several as to whether ask premises Little Fountain and at 38 Estate any agreement he was in house were of the bath by parties in this instance, particular Attorney John rooms him.6 F. used James were called as a witness stipulation entered into defense sworn, that testify he would during suppression hearing counsel at the was in period time that he was in the trial, At troduced into evidence at trial.7 premises at 38 Estate Little Fountain judge following made statement 18th, 1982, on December did not jury: toilets, per- that he did flush gentlemen sonally THE Ladies and toilets. COURT: flush parties jury, of the into entered Is that a correct of the stip- statement stipulation, ulation, and a is an Mr. James? James, when he went into the house with the ATTORNEYJAMES: Will this without prejudice my appearing of Miss association ... whether or not as counsel? THE COURT: That I he had occasion within two to three will look into. No minutes one put you except yourself, into that house to use the bathroom on side so I government don’t believe I can goes nothing bar the house. That into confiden- calling you on this occasion. tiality anything that was said. App. at 111-113. questions THE COURT: Those are the sole you to ask? intend Well, ATTORNEYJAMES: I would like to Yes, ATTORNEYCAPDEVILLE: Your Hon- say Capdeville stipu- that Mr. asked if would or. late whether I had used the toilet THE COURT: Mr. James? house, and the answer is never. Honor, ATTORNEYJAMES: Your I fail to stipulate? THE COURT: You will not it; and, relevancy secondly, see the I think stipulate JAMES: ATTORNEY I will that I my position places it as defense counsel in never toilet used the in that house. jeopardy upon testify called in a you if I’m to case THE COURT: Did consult with him and, testimony, possibly stipulating of as a result if the court about I this? mean just feelings very go strong, should rule that this case should ward, are for- and we haven’t even gotten going publicity to the trial. there that was apologize ATTORNEY already my CAPDEVILLE: I that causes slur me and court, the Your Honor. Capdeville very client. I told Mr. from the and, right. outset; THE COURT: All Attorney secondly, in brief he' said James, you minutes, stipulate do that dur- put between and seven and I’ll two it ing period give stipula- of the theme way: time— tion on the record. stand, go If I am forced to to the I want it ATTORNEYCAPDEVILLE: Yes. explicit with the situation that I will not [sic] During period of the time that Mr. James participating be held, barred from when case is arrived at the house ... and inside went may ask I but I'll for a recess so inform client, Zepp, house with his Miss Jo Ann questions other counsel what I will like to period going within the of time between him put have so I can record them ask what into the house and seven minutes did not really happened then. any use of the bathrooms. Yes, Your ATTORNEYCAPDEVILLE: Hon- Mr. THE COURT: James? or. any ATTORNEYJAMES: I did use not of government problems The would no have the bathrooms then or ever. stipulated having having it instead of him right: stipulation: THE All COURT: At testify fact to the that he did not use the any no time he was in the were when house of first seven bathroom within three to minutes the bathrooms used him. minutes, or whatever. Reason said seven be- ATTORNEY I JAMES: would like to make a been cause there’s some kind of—different further that at no in time was present at time and officers were had house was the bathroom used. they different when heard the times toilet you agree Would to that? average basically figure, flush. That’s two THE Now COURT: I think we take better a objection We seven minutes. have no you testify. recess to see if want to having stipulated. it App. (emphasis added). at 113-114 right. All THE COURT: recess, statement, requests go- opening government James I’m In Since Mr. its ing permit testimony prej- stipulation: without now misstated the "And will we also question stipulation by Attorney says udice to permitted of whether it will be action. trial of this We’ll that while he was in the he did house so, James, you take a may recess flush 10-miniite Mr. toilet cocaine down there your ques- consult with co-counsel about either.” App. tions. at 126. 130 Correct, counsel”, a right as far ... to be allowed Md.

ATTORNEY JAMES: 1776, XIX, as I’m concernеd. Const. of art. but was not 1836, Parliament, by act of Capdeville? Mr. until when THE COURT: right granted respect “the full of ATTORNEY CAPDEVILLE: Yes. generally” England. to citizens of felonies added). App. (emphasis at 202 ed., See, Cooley’s 698, Lim. 8th et Const. jury guilty Jo Ann found seq., and notes. possession cocaine and destruc- simple timely tion filed a of evidence. She then to assistance of counsel While trial which was denied motion for new prosecu- in federal criminal was assured evidentiary hearing. appeal This after an tions, jurisprudential debates in earliest followed. pertained America to whether the states similarly obligated appoint effec- were II. capital for defendants in cases. tive counsel standpoint From the of basic human question arose as to whether Later rights, our Bill the framers of nation’s adult defendants and minor defendants govern- Rights ‍​‌‌‌​‌​​‌‌‌​​​​‌​​​‌‌​‌‌‌​​​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‍make the hew wanted to prosecutions criminal state were en- fundamentally ment of the United States felony non-capital titled to counsel cases. ruler, from that its former different Alabama, trilogy supra, Powell amendment, they England. In the sixth Wainwright, 372 U.S. Gideon enumerated, specificity, crit- several (1963), re L.Ed.2d rights guaranteed ical accused “in all 1428,18 Gault, 387 L.Ed.2d U.S. by the prosecutions” federal the American foun- established Among rights government. these were the due process dation that under the clause of that the accused would have an assurances persons amendment all are the fourteenth trial" the “Assistance of “impаrtial pros- when entitled assistance counsel Const, Counsel for his defence.” U.S. ecuted state courts. VI. amend. decades, During major last two significant was a This amendment break jurisprudential focus has shifted from the “[ojriginally, from tradition because to more right issue of the to counsel the England, person charged a with treason or question problematic of subtle and counsel, the aid of ex effective felony was denied fifth, of under the sixth assistance counsel questions cept respect legal in of which the amendments. With diffi- and fourteenth might suggest.” himself Powell v. accused courts have at- culty and divisiveness our 45, 60, 55, 61, Alabama, 287 53 S.Ct. U.S. defi- tempted to define what constitutes colonies, (1932).8 77 L.Ed. 158 Several counsel, performance by and cient whether example, “[tjhat, as Maryland declared prosecutions, every so as to de- in all man hath counsel’s errors were serious trespass?” every petty Supreme prosecutions 4 in Powell v. Ala- 8. As the Court noted grounds upon One of the bama: Blackstone 355. Lord the rule was that which Coke defended right the of An affirmation of aid the. the court itself was counsel for in felonies offenses, petty and its denial in the counsel Const.Lim., supra. Cooley’s prisoner. But 1 character, gravest of where case crimes judge, purely how can a whose functions are needed, outrageous is so and such aid most discharge effectively obligations judicial, obviously pro- perversion all sense a of of sо He can and of counsel for the accused? constantly, vigorous- portion that rule was proceedings see it that before should ly passionately assailed and sometimes justly dealt with the court the accused shall be lawyers. early English As as and statesmen facts, fairly. investigate cannot 1758, Blackstone, and He although recognizing that defense, participate law, advise and direct the at common de- rule was settled necessary conferences between counsel keeping those of rest nounced as not partake sometimes of and accused which prisoners of the humane treatment reason,” of confessional. upon of inviolable character English law. what face “For rejected by colonies. The rule says, denied save “can assistance be 60-61, man, at yet S.Ct. 61. allowed him in Id. at 53 of a the life

131 See, of trial. prive having produced the defendant a fair cannot be relied — v. e.g., Washington, just Strickland Id. U.S. result.” at 2064. The fundamen- 2052, —, 2064, question 104 80 L.Ed.2d 674 tal S.Ct. thus becomes whether coun- Sullivan, Cuyler v. (1984); 335, 446 U.S. sel’s conduct in this precluded instance 1708, 344, 1716, “proper 100 L.Ed.2d 333 functioning S.Ct. of pro- the adversarial Richardson, v. (1980); McMann thereby deprived U.S. cess” and Jo Ann 759, 770-771, 1441, 1448-1449, S.Ct. 25 a fair trial. (1970).

L.Ed.2d 763 case, Jo Ann would have us recognize that her sixth right amendment A. to effective assistance of counsel is now no Supreme The recent Court decisions of longer contingent the historical evolu- Washington, supra, Strickland amorphous concept. tion of some To the — Cronic, U.S. —, United States v. contrary, strenuously she asserts that at L.Ed.2d 657 now set any point history country, of this judging proper “the standards for forth place events at that took her trial would be criminal defendant’s contention that flagrant breach the fifth and sixth requires a ... Constitution conviction amendments. set aside because counsel’s assistance at Strickland, the trial was ineffective.” ... of cases since Pow litany From the Alabama, supra, ell v. 104 S.Ct. beyond dispute it is that the guarantee sixth amendment of ef By right virtue of the sixth amendment comprises fective assistance of counsel two counsel, princi- to effective assistance rights: right correlative to counsel of ples process, applicable legal pro- of due competence, McMann Rich reasonable ceedings generally, preserved are and rein- ardson, 770-71, 397 U.S. at 90 S.Ct. at Stevens, writing forced. Justice for the 1448-49, right and the to counsel’s undivid Cronic, majority in United States v. ob- v. Georgia, Wood loyalty, ed 450 U.S. served that “the effective as- 1097, 1103, 67 L.Ed.2d 220 recognized sistance of counsel is not for its (1981). sake, of the effect it own but because has ability on the the accused to receive a As the Strick- acknowledged Court fair trial.” 104 S.Ct. at In the land, courts must differentiate between decision, Strickland handed down the duty perform counsel’s competently day, same Justice O’Connor elaborated on duty counsel’s to avoid conflicts interest: relationship the intricate the sixth Representation of a criminal defendant right to amendment effective assistance of entails certain basic duties. Counsel’s pro- fifth counsel and the amendment due defendant, function is to assist the guarantee to a fair trial: cess duty owes a counsel the client hence of right to Sixth Amendment counsel [T]he loyalty, duty to avoid conflicts of exists, needed, protect and is to order Sullivan, Cuyler interest. v. su- See the fundamental to a fair trial. pra, 446 U.S., S.Ct., at 90 at 1717. guarantees a fair Constitution trial From counsel’s function as assistant to Clauses, through the Due Process but it overarching defendant derive the a fair trial defines the basic elements of duty to advocate the defendant’s cause through provisions ... the several of the particular and to the more duties consult Amendment, including Sixth the Counsel with important the defendant on deci- Clause____ keep sions and to the defendant informed Strickland, Thus, important developments S.Ct. at of 104 course also has a judging of Counsel prosecution. “benchmark for claim of inef- duty bring skill and bear such be whether con- fectiveness must counsel’s knowledge will render the trial a proper functioning so duct undermined process. testing reliable adversarial process of the adversarial trial 132 effect, Alabama, In U.S., in favor of her conviction. she v. 287 at 68-

See Powell exercising argues that rather than James 69, 53 at 63-64 S.Ct. obligation give le- sixth amendment his Strickland, (emphasis 2065 at defendant, gal assistance to the he instead mind, added). how- It must be borne actually intentionally legal and rendered distinguishes ever, that Strickland prosecution. to the assistance counsel, only duty owed between the different standards also articulates but where chal- those situations Unlike must be alleged duty of by which an breach lenge competency is and the to counsel’s Id. at 2064. judged. required affirmatively defendant is dem- (1) performance onstrate that counsel’s allegation of a denial of Jo Ann perform- the deficient deficient and premised is of counsel effective assistance defense, actually prejudiced the ance duty of counsel’s breach trial Strickland teaches that certain sixth avoid of loyalty failure to conflicts and contexts, presumed prejudice is challenge amendment seriously does not interest. She Specifically, -the lawyer. circumstances. competence as a general James’ rules of stated: he the relevant Court Presumably, knew law, objections pre critical and made the type One of actual ineffectiveness If were adequately. case those pared his similar, though more claim warrants by which one meas only three elements limited, prejudice. of presumption counsel, certainly competence of ured the Sullivan, 345-350, U.S., at Cuyler 446 performance of the level complied 1716-1719, S.Ct., held at the Court 90 meets court has declared which this presumed coun- prejudice is when as articulated constitutional standard is burdened an actual sel conflict of States, 432 Moore v. United F.2d circumstances, interest. In those coun- Cir.1970) (in banc), recently reaf (3d and loyalty, duty perhaps sel breaches Virgin Is firmed in Government of More- of counsel’s duties. the most basic Bradshaw, (3d Cir. lands v. 726 F.2d 115 over, precise it difficult to measure the is 1984). allegation ineffective Where representation effect on the defense made, been we of counsel has assistance corrupted by conflicting interests. Giv- exer normally assess whether avoid obligation counsel to en knowledge customary skill cised “the ability interest and conflicts of normally prevails at the time which early inquiry in trial courts to make Moore, Applica at place.” F.2d give likely to rise certain situations standard, however, gen tion of the Moore see, e.g., conflicts, Fed.Rule Crim.Proc. erally an evaluation of counsel’s involves 44(c), is criminal reasonable loyalty. competence and not counsel’s rigid fairly justice system maintain more

Zepp’s complaint presumed prejudice one of an even for conflicts rule of Prejudice presumed nature than that of traditional fundamental of interest . . . . she: lawyer asserts that demonstrates that competence. She the defendant conflicting “actively represented counsel coun- assistance of effective denied an actual conflict interests” “that actu- her counsеl had an sel adversely lawyer’s his interest affected potential interest due al conflict of Sullivan, su- performance.” Cuyler liability charges on for the same 350, 348, U.S., at pra, tried. appellant was omitted). (footnote short, In she Brief at 31. Appellant’s Strickland, (emphasis at 2067 lawyer her own testified claims thereby re- added). Court Strickland her, put in lawyer that her own against deci- holding of its previous her, affirmed against damaging evidence Sullivan, supra, 446 U.S. Cuyler stip- lawyer own sion to which her the evidence (1980). 1708, 335, 100 64 L.Ed.2d 333 S.Ct. potentially him- extricate ulated in order Sullivan, supra, Supreme Cuyler enough to tip been the scales may self Court reversed and remanded a decision of general As a policy, courts appeals prisoner seeking this court wherein a state have “refused to notice errors of type objection the absence of an corpus trial”, federal habeas relief claimed con we have likewise noted “preference multiple representa flict of interest due to Rad-O-Lite, this course.” 612 F.2d at appeal 744. tion. On from the district court’s The rationale underlying these cases is that holding that multiple there had been no an evidentiary hearing must be conducted representation, only we determined not to establish whether performance counsel’s multiple representation that there was as a up or was not to the competency stan- matter of law but that a possibility of a espoused States, Moore v. United dard conflict of interest was sufficient to consti supra, (3d Cir.1970). 432 F.2d 730 tute a violation of the sixth amendment to effective assistance of counsel. We have thus declined to hear a claim of United ‍​‌‌‌​‌​​‌‌‌​​​​‌​​​‌‌​‌‌‌​​​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‍States ex rel. Cuyler, Sullivan v. ineffective assistance of counsel where that (3d Cir.1979) (Sullivan I). 593 F.2d 512 issue has not specifically been raised at Supreme “[sjuch Court reversed and frequently remanded claims in- questions volve conduct that oc- requiring regarding a demonstration petitioner curred purview outside the district that “actual conflict of adversely interest court and therefore can be resolved Cuyl lawyer’s performance.” affected his after a factual development Sullivan, appropri- at an er v. 446 U.S. at 100 S.Ct. at hearing.” Swinehart, ate 617 F.2d at 340 1718. We in turn remanded to the district added). (emphasis granted petition court which for writ of corpus, following habeas an evidentiary Where the claim of ineffective as hearing, on the subsequent basis that a sistance of counsel is based on evidentiary hearing provided sufficient incompetence the fully lack of a developed proof anof actual conflict of interest readily record justifies our reluctance “to adversely performance. affected counsel’s inquire into the strategy elements of ruling We affirmed the of the district may tactics that have entered into [defense Cuyler, Sullivan v. court. 723 F.2d 1077 Garcia, counsel’s 544 F.2d at actions].” (3d Cir.1983) (Sullivan II). Therefore, inquiry along these lines may often necessitate a remand for an However, before we analy- undertake an evidentiary hearing develop the facts sis of whether in fact attorney was about counsel’s role in representation incapable representing his client provide defendant and to the defend constitutionally adequate given manner al- ant a full and fair hearing on the issue. interest, leged imperative conflict of it is Similarly, may there be cases where an that we first determine appro- whether it is attorney’s conflict of may interest more priate for this court to review this claim on appropriately be considered in the course appeal, direct or whether may only corpus attack, of a habeas Sulli collateral validly raised a collateral proceeding. II, van 1084-1085, 723 F.2d at or common-

law writ of error coram nobis. Rad-O- B. Lite, 612 F.2d at 744. opinions by recent Several our court indi- case, however, In this we conclude that may cate that a criminal defendant adequate we do have an record and thus an competence attack the of counsel on a di- evidentiary hearing additional need not be appeal, pursue rect should but the issue See, e.g., develop conducted to facts. §

through 28 U.S.C. actions. Young, United States v. (4th 644 F.2d 1008 Swinehart, e.g., See United States v. Cir.1981), (4th app. later 677 F.2d 381 Cir. (3d Cir.1980); Parratt, United States v. F.2d 336 1982); Parker v. (8th 662 F.2d 479 Philadelphia, denied, Rad-O-Lite Cir.1981), 612 F.2d 740 cert. 459 U.S. Garcia, (3d Cir.1979); United States v. (1982); 544 Ross v. 74 L.Ed.2d 91 § (3d Cir.1976); Heyne, (7th Cir.1980). F.2d 681 U.S.C. 638 F.2d 979 134 An judgment . . . . ineffectiveness recognizes that Furthermore, court however, claim, as our articulation of the countervailing policy of not important an govern of such decision standards the failure of accused for “penalizing the clear, on the is an attack claims makes ...” where object at its proceeding fairness of the fundamental attorney conflict of is a claim

there challenged. Rad-O-Lite, result is at 744. To whose 612 F.2d interest. accept only if make sense we so “would do added). (emphasis 2070 104 S.Ct. at responsibility for proposition that the de therefore believe We interests conflicts of against protecting appeal- is claim of ineffectiveness fendant’s Id. the accused.” entirely upon rests that it also falls within ambit able and properly has been Thus, objection an where Thus, in II.10 Sullivan holding of our or, clearly trial, the record where made at make out a the defendant order for objec interest and conflict of shows actual rights, sixth amendment of her violation put or should have made at trial did tions actual conflict that an she must establish con potential court on notice the trial per adversely affected counsel’s interest existed,9 “pref this court’s interest flict of need not demonstrate but she formance issues on col developing such erence” for Id. at 1084. prejudice. actual followed, and attack need not be lateral appropri is of the issue full consideration III. ate. representation a de Whether generally be must appeals Whilе direct “constitution received at trial was fendant appeals, given from collateral distinguished question a mixed of law ally inadequate” is Washington, v. that would constitute plethora of issues 104 Strickland fact. and Sullivan, Cuyler v. appeal 2070; see if raised on direct error at reversible S.Ct. “clearly 342, 100 reversible error at The not constitute S.Ct. but would U.S. at § 2255 we are inapplicable a 28 U.S.C. in the context of erroneous rule” raised § “freely review the district proceeding, the Su- called or 28 U.S.C. ex rel. court’s conclusion.” United States indicated has Strickland preme Court Johnson, 169, 174 n. 531 F.2d Johnson that: denied, Cir.), cert. (3d 425 U.S. principles governing ineffective- Thus, (1976). 2214, 48 L.Ed.2d 823 col- apply in claims should ness federal of coun allegation ineffective assistance they direct proceedings as do on lateral in a careful requires that we conduct sel a new trial. motions appeal or in for surrounding the circumstances quiry into preju- “cause and by the As indicated case, particular mindful overcoming procedural for dice” test given ac whether error, determination presump- claims of [a] waivers of amounted counsel tion or omission is final is judgment a criminal tion that divorced assistance cannot be ineffective attacks on strongest in collateral its context, may required but prejudice” in that objections, at trial albeit counsel’s not 9. Trial inapplicable Baynes hearing, appeal. have suf- direct suppression should nоt on but at ficiently put corpus proceeding with re- as court on notice was habeas the trial because interest. Trial spect appeal conflict of it raised to the issue of because opposed direct but testifying vigorously that his attorney’s competence, asserted counsel of defense the issue jeopardize prosecution would for the a witness coun- is defense before this court the issue while App. at 112. position counsel. as defense Supreme As the of interest. sel’s conflict Sullivan, supra, Cuyler decisions Court’s deci- government argues this court’s 10. 64 L.Ed.2d 446 U.S. (3d Baynes, 687 F.2d 659 States v. sion in United Cir.1982) Strickland, our supra, as well as proposition that ineffec- stands for indicate, the standard II decision Sullivan reversible constitutes of counsel tive assistance context of interest in a conflict error reversible that there where it is shown error consequent showing of actual conflict is a Baynes is prejudice. Zepp contends actual distinguishable performance which on counsel's adverse effect a habeas cor- it involved prejudice. presumption of warrants asserting implicitly that "actual pus proceeding,

135 peculiar often consideration of the facts used and seldom defined.” 446 U.S. 356, 3, 1722, coun- and circumstances that influenced n. 100 S.Ct. at n. 3. Fortu- judgment. nately, prevailing practice provide sel’s norms of guidance. Strickland, some 104 S.Ct. at DeCoster, 196, United States v. 624 F.2d (in banc) (D.C.Cir.1979) (plurality opin- 203 ion). Virgin The Islands Bar Association ad- II, prove we held that Sullivan heres to the Model Code of Professional “[t]o of interest violative of the sixth Responsibility adopted by conflict the American amendment,” (1) “prove V, a defendant had to Appendix Bar Association. 5 V.I.C. multiple representation 57(e)(2). created an The Rule Model Code of Profes- (3) adversely actual conflict of interest Responsibility proscribes repre- sional lawyer’s performance.” 723 affected the conflicting sentation of interests in order to F.2d at 1084. interference fiduciary avoid with counsel’s obligations loyalty, to maintain undivided by principles, must ex- Guided these we preserve attorney-client confidentiality amine the conduct of defendant’s competent representation and to assure prevailing professional in light counsel each client: standards, partic- as well as the and ethical requires lawyer case, Canon 5 that a exercise facts of this to determine wheth- ular independent judgment on representation Ann received the behalf of er Jo proscribes employment client. DR 5-105 demands. Constitution may which interfere lawyer’s with the A. “independent professional judgment” on behalf of another client. The Code does giv typical conflict of interest cases specifically “conflicting” refer to in- ing rise to claims of ineffective assistance terests, problem multiple representation but describes the in EC of сounsel involve concerning as clients —the conflict exists 5-14 clients who have “dif- between interests,” fering and the whether interests of one defendant interests such interests inconsistent, “conflicting, of other defendants served the same be diverse or infrequently matter not con pro- otherwise discordant.” The Code’s —a Court. See Strick Supreme sidered relationship focuses hibition be- land, supra; supra; Georgia, Wood v. clients, differing tween the inter- Sullivan, supra; Holloway Cuyler v. v. may independence affect the ests Arkansas, 1173, 435 98 U.S. S.Ct. attorney’s professional judgment. v. (1978); Glasser United L.Ed.2d 426 Levit, Legal Malpractice Mallen and States, 315 U.S. 86 L.Ed. (2d 1981). ed. (1942). that, despite We believe the fact II we designated inWhile Sullivan “mul- present this case does not the usual representation” as one element neces- tiple situation, multiple representation “conflict sary of interest viola- to establish conflict ing per interests” nonetheless arise out of Constitution, our decision must tive of the interests of “incon counsel were sonal narrowly construed so as to encom- not be sistent, diverse or otherwise discordant” pass those factual situations where his with those of client and which affected simultaneously represents differ- counsel professional judgment the exercise of his Supreme Court ent defendants. of his client. Model Code of behalf Cuyler v. Sullivan indicated the crit- 5-2; Responsibility Professional EC EC inquiry “actively ical is whether counsel (1980) 5-14 . conflicting reprеsented interests”. However, 350,100 It is now well-established that multi at 1719. U.S. at ple representation merely possibility aptly Marshall observed Justice so Sullivan, Cuyler conflicting interest does not constitute a dissenting opinion “ in- The conflict of ‘[cjonflict is a term that constitutional violation. of interests’ Georgia, impropriety. appearance Model Code Wood must “actual.” terest supra. This adopted Responsibility court the American DR 9-101 Professional of conflict of (1980). Association’s definition Bar Eth- Professional interest the Canons of Therefore, this court it is unrealistic for II that: Sullivan held in ics and Zepp’s attorney vigorously to assume interest is evidenced conflict of [a]ctual entirely ‍​‌‌‌​‌​​‌‌‌​​​​‌​​​‌‌​‌‌‌​​​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‍his client’s interest pursued best if, during representa- the course of concern to free from the influence of his diverge tion, interests defendants’ own incrimination. United avoid his or respect to with a material factual Salinas, (5th Cir.), v. States 618 F.2d 1092 action. legal or a course issue of denied, 374, 961, 101 cert. 449 U.S. 66 S.Ct. added). (emphasis F.2d at 1086.

723 (1980); Investigation In Re 228 L.Ed.2d government’s position that there It is the 1977, February, Lynchburg Grand Before no actual conflict of interest because was Cir.1977); See (4th Jury, 563 F.2d 652 subject to attorney never Zepp’s trial was Clarkson, 270 United States 567 F.2d his a result of charges as Cir.1977). (4th as circumstances such thus 1982 and conduct on December indepen these, defense has when counsel liability. conclude potential no We faced regarding the personal information dent аctual an of interest conflict underlying charges, and facts client’s two on this In at least present record. liability charges, potential faces for those the de- respects trial counsel’s interest and See actual interest. he has an conflict of respect “diverge[d] interest with fendant’s Crockett, States 506 F.2d 759 United to a legal material factual or issue or to a denied, 423 U.S. (5th Cir.) cert. 96 First, trial Id. action.” course of (1975). agree L.Ed.2d We for the could have indicted counsel been these Zepp’s contention that with represented charges which same there was actual conflict of facts alone second, was a wit- Zepp, and trial counsel required by trial withdrawal interest which prosecution. As to both ness for disqualification by the court. or counsel that defense counsel points, asserts repre- duty to from further had a withdraw Wit- Counsel as Prosecution (ii) Defense agree. and we sentation ness De- Liability (i) Potential Criminal of Secondly, stipulation made Counsel fense hearing suppression at the Zepp’s counsel of there is no direct evidence beyond While dis and admitted into evidence was counsel, wrongdoing by trial it is not neces adverse to pute contained inferences conclude sary wrongdoing to assume of presumption innocence. of interest— he had an actual conflict repeat analysis purposes we will For opportu equal counsel had access trial pro- colloquy nity alone the house with while ceeded it: It is clear cocaine down the toilet. flush Your CAPDEVILLE: ATTORNEY aiding potentially he was liable Honor, approach could we sidebar? abetting encouraging the destruction Yes, sir. THE COURT: evidence. Thereupon, parties ap- counsel for all criminally charged for such if not Even conferred proached bench and events, faced se- could have counsel at sidebar as follows: the court if it were disciplinary consequences

vere stipula- THE COURT: That isn’t in the involved known that he was ever it, stipulation, I remember tion. Bar As- American evidence. destruction Ethics; stipulate willing to Mr. James was sociation, Canons Professional he was during period of time neither (1967). counsel Trial Canon any toilets. he did not flush premises nor the impropriety professional avoided simple stipulation; is that That was a cocaine do not fall off of trees septic into correct? only way in plastic tanks. The which those gotten bags septic could have JAMES: That correct. into the tank

ATTORNEY being their flushed down the toilet. Okay. ATTORNEY CAPDEVILLE: Accordingly, anyone who had access to the you THE I don’t think COURT: during toilets at Little Fountain the time like Mr. to use words cocaine with arrest on December 18 could conceiv- jury, I’ll tell that was what James. ably attempting destroy have been your stipulation was. evidence. record established that Yes, ATTORNEY CAPDEVILLE: when Jack and Jo Ann Your Honor. house, Zepp they into the went were the You what ATTORNEY JAMES: know only persons premises on the and a toilet I wanted. to flush was heard several times. [Thereupon, parties counsel for all re- places, proceedings sumed and their stipulation, evidence From this and the a court, in open were conducted as fol- jury any have the following could made of lows:] (1) inferences: Jack James alone flushed gentlemen THE Ladies COURT: and the and was probably toilet therefore he jury, parties of the have into the entered destroy (2) attempting the evidence or Jo stipulation, stipulation a and a is an Ann alone flushed the toilet for the agreement parties the by that this or same reasons both of them flushed instance, Attorney John F. particular if the for the same toilet reasons. Statistical- James were called as a witness and evidence, ly, any only without further sworn, testify that he would dur- that toilet, person one flushed the there was a ing period the time that he was in of probability that James did and a 50% 50%' premises the at 38 Estate Foun- Little probability that Zepp prosecu- did it. The 18th, 1982, did tain on December obviously proba- tor a aware that 50% toilets, per- any that he did not flush bility might factor create in the minds of sonally any toilets. flush jurors some a reasonable doubt as to Jo stip- Is that a statement of correct the Therefore, guilt. Zepp’s presumably Ann ulation, Mr. James? doubt, wanting to eliminate that he “re- Correct, as ATTORNEY JAMES: far quired” testify sig- thus James and as I’m concerned. nificant inference of doubt could Mr. Capdeville? THE COURT: favorable to been the defendant was ATTORNEY CAPDEVILLE: Yes. by equivalent of sworn eradicated testi- it, you may THE COURT: So take if mony by lawyer. her offered own testified, he had been called and he that Also, carefully must we note how testify what oath. he would under stipulation was drawn. It did not state added). (emphasis App. at 201-203 were flushed. Rather it was wo toilets emphasized it must At the outset “he did any a not flush statement was introduced stipulation as substan- toilets, that he did not personally flush jury when tive evidence for to consider added). toilets.” Id. at 202 (emphasis making of the innocence its determination Lastly, stipulation by referred to Zepp. guilt stipulation or Ann This of Jo judge the trial in his instructions to the must in relation to the other be considered jury: by that had been introduced evidence facts, the sole You are finders of jury had informed government. The been 21, 1982, you those facts from the evi- find pursuant to a that on December consisting this case of the testi- warrant, tank dence in septic a search of the search persons, you produced triangular- mony of the exhibits Zepp’s of home bring you been admit- bags, 20 tested will that have shaped plastic of which. bags ted, stipulation I positive residue. Plastic and think there was one for cocaine lawyer credibility a when the right; there was —that’s you. lawyer appears gave That is also as an advocate Attorney evidence, wit- and that forms the basis case. An advocate who becomes a unseemly and your ness is in the ineffective decision. arguing credibility. position his own (“Tr.”) Transcript at 838. roles advocate wit- also the cumulative One must consider inconsistent; ness are function of proper instruc impact judge’s the trial argue an advocate is advance evidence, Tr. tions on circumstantial another, wit- cause while government’s jury summation to objectively. ness is state facts Ann unlawful de concerning Jo added). (emphasis 5-9 EC toilets, flushing cocaine struction of 761-62, that “the Tr. and the assertion carefully the cases We have searched let police have never should and have found no instance where defense [James Zepp] ... a crime scene inside house actually testify permitted counsel was Moreover, Ann . . . . ” Tr. 814. neither Jo against purporting client his own while testi nor of the other defendants representative capacity. Nor continue Therefore, sup fied. the critical link was stipu- this an instance which-counsel’s plied by Zepp’s own surprise. a matter of At the lation came as statement, believed, only one if left other hearing government had suppression the the he did not flush the toilet inference —if position made clear their that James would only person the who could have flushed suppres- called After the be as a witness. Thus, Zepp. given Ann the toilet was Jo recognizing possibility, hearing, sion Zepp the toilet flushed evidence that while counsel; could have withdrawn were in аnd defense counsel alone response suppression instead his at house, in other evidence and without hearing go that “I am forced to was them dicating the two of stand, who between explicit situa- I want with the toilet, inference flushed the the reasonable tion not be barred will [sic] thereby de Zepp toilet is flushed the App. is participating when case held.” your lawyer stroying evidence. own With designed is at The sixth amendment you, testifying against should there be give panoply a full of the defendant you guilty? finds surprise jury rights. framers of the amendment did against Ann Defense counsel testified Jo propose it to assure an individual coun- right Zepp was to cross- and she denied right testify against his client sel a own in of the sixth examine him violation in participate still case. and amendment. stipulation even Arguably, was her Not was Jo Ann denied by reason of the fact coerced right to cross-examine sixth amendment government presented Zepp’s counsel with deprived her of testimony but counsel’s was in effect an ultimatum —either what roles of counsel. The effective assistance subjected into the or be enter inher- an and of a witness are of advocate face possible as a witness and examination ently Ethical Considera- inconsistent. implication coconspirator. coun- as a Trial Model of Professional tions of the Code testifying on his own be- sel’s interest provide: Responsibility impaired independent the exerсise of half judgment on of his professional behalf Occasionally lawyer a is called view, of he From our the admission particular a case client. decide in whether testimony egregious it con- If a is so or an advocate. such will be a witness witness, loyalty of the and stitutes total abandonment lawyer both counsel Thus, client. we in- counsel owes his easily impeachable for becomes more agree Jo Ann contention also may thus be less effective terest and required to trial withdraw opposing coun- counsel Conversely, the witness. testimony would challenging regardless whether his may handicapped sel be 1117, 102 exculpatory inculpatory. Such a 454 U.S. S.Ct. 70 L.Ed.2d 655 given (1981). statement under these circumstances her fifth and

violates sixth amendment due Glasser, Supreme Court held that process rights to a fair trial. right to assistance of counsel “contem- plates that such assistance be untrammeled C. unimpaired by a court order requiring The defendant also contends that lawyer that one shall simultaneously repre- judge put the trial on notice of the conflicting sent interests.” 315 atU.S. conflict and made no determination as to Although Glasser dealt fully whether she understood the nature of allegation with an of ineffective assistance conflict, intelligent did not seek an joint counsel the context of represen- waiver, competent disqualify did not defendants, tation of certain princi- basic defense counsel. Government the Vir ples emerge ambiguity. without The court John, (3d gin Islands v. 447 F.2d 69 Cir. reasoned in Glasser: 1971). agree We and conclude that Upon judge the trial rests duty judge failing abused his discretion seeing that the trial is conducted with to do so. solicitude for the rights essential of the Normally, the trial court should conduct accused . . . . The trial court should evidentiary hearing inquiry or factual protect the right an accused to have disqualification determine whether ap- the assistance counsel. propriate inquire and should into na- 315 U.S. at 62 S.Ct. at 465. The trial ture of the conflict and the client’s aware- protect court this case failed to ness of the conflict. The court should also of Jo Ann to have the effective determine whether there has assist- been waiver conflict, ance whether of counsel. the waiver was possible. effective or whether a waiver was States, generally, See Glasser v. United D. supra; Virgin Government Islands Having determined that an actual John, supra; In Re Investigation before record, conflict of interest exists on this we February, supra. hold that it was not incumbent nothing There is in the record before prejudice defendant to show actual but court to show either the court or de- prejudice may presumed be from the sur explained fense counsel Zepp to Jo Ann rounding circumstances. The relevant con given pres- conflict which counsel faced his sideration is whether the actual conflict of ence the house at thе time of the toilet- “adversely interest affected” per counsel’s flushing or his conflict after he was called formance. It is to inconceivable us that prosecution as a witness. The court did the admission of the into evi

not rule as to whether there was a conflict dence did not have an “adverse effect”' on requested and no waiver was received or Zepp. where, We conclude that inas Zepp. case, attorney only instant was not Certainly, being apprised the trial court potential liability, faced with criminal but potentially damaging of this evidence was prosecution fact became a witness while obligated question the defendant most simultaneously representing defendant, explicitly to ascertain whether this awas only was there an “adverse effect” but right knowingly waiving. might she was It prejudice unequivocal. is clear and questionable even be as to whether a court permit knowingly could ever a defendant to IV. her waive the effective assistance reasons, testify foregoing For the we conclude lawyer of counsel when her own will against rights her. United v. DeFal the defendant’s constitutional See States co, (3d Cir.1980), denied, 644 F.2d 132 reh. have been will therefore re- violated. We generally of counsel ‍​‌‌‌​‌​​‌‌‌​​​​‌​​​‌‌​‌‌‌​​​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‍claims involve grant sistance with directions and remand

verse deficiency representation. These are trial. a new

classically situations which GARTH, Judge, concurring: inadequate in the allеged Circuit to have been representation of his client. Strickland v. tried Ann must be agree I that Jo — U.S. —, Washington, however, separately, be- I write anew. (1984). 80 L.Ed.2d 674 majori- with the I am not in accord cause agree can I with those ty’s analysis. Here, majority “po Nor contends that the majority opinion which dis- liability re portions criminal of James was tential” liability potential criminal creating a “conflict of inter sponsible cuss James’ a criminal imply Zepp. Underlying his involvement as which est” between James 137, 138, 139). analysis is its concern that (Maj.Op. majority’s co-conspirator Zepp, defending he was while James was majority’s emphasis suggest I engaged attempt exculpate in an also analysis on a conflict of interest and on However, liability. criminal himself from potential complicity James’ criminal is mis- suggest no evidence to the record reveals placed. proper analyzing focus in criminally nor does it liable that James Zepp’s sixth amendment claim should not with his that James was concerned disclose purported be on James’ conflict of interest I find no basis own vindication.1 necessarily implicates speculative supporting a conflict of interest be record complicity re- and which would majority Zepp as the has tween James and Rather, hearing. quire evidentiary an stipula find that the characterized it. do correct focus on whether James’ should be had the re entered tion into which James representation adequate rendering performance as coun sult satisfy Zepp’s amend- sufficient sixth inadequate Zepp seriously sel guarantee ment of assistance of counsel— prejudiced the fairness extent analysis, requires which on this record States, Uptain v. United See trial. hearing. evidentiary no Cir.1982). (5th It is 692 F.2d I am this circumstance because of Zepp must tried anew. persuaded that I. claims of ineffective amendment Sixth A. generally divided counsel are assistance of trial, majori- granting Zepp a new involving those conflict categories, two into that inter- ty has relied on the fact James’ involving deficiency and those of interest Zepp’s that of cases est conflicted with of interest representation. Conflict potential implicated as a attor- he himself was traditionally concerned with an are defendants, There is no evi- suspect co-conspirator. multiple or represents ney who establishing either the in the record may be dence interests where the defendants’ implication or the conclusion of fact of his Wood divergent. actually potentially or time was interest. James at no conflict of Georgia, 450 U.S. Sullivan, charges, inves- subject any to criminal Cuyler v. (1981); ever L.Ed.2d disciplinary a result tigations, or actions as 335,100 64 L.Ed.2d 446 U.S. Zepp at in the house with hand, presence of his ineffective as- (1980). the other On insensitivity record, may be said of James’ Whatever that was the the concern 1. As I read any poten appearing as counsel circumstance of expressed James did not involve to this client, any attempt part liability testifying against his it is a or on criminal in effect tial while that he not escape concern was suggesting it. His James himself was cry to that far from attorney. step Zepp’s "If required as implicated to aside possibly as a criminally liable or stand, go it with the I want to the I am forced Zepp associates. co-conspirator or other with barred I will not be explicit situation that [sic] the case is held . . . .” participating when 112). (App. at flushing opportunity took alone in the house with alleged while time that the the Attorney Indeed, the It Zepp the United States to flush cocaine down toilet. is place. the any complicity on potentially that liable for aid- disclaimed clear he was 39), just at (Appellee’s Brief of James part abetting encouraging or ing and the de- conflict, claiming a de Zepp, although as struction of evidence.” (Maj.Op. 136). at wrongd guilty any nied that James faulty This premise then leads the majority oing.2 to conclude that “it unrealistic for this court to assume that Zepp’s attorney vigor- that disclose is the record does What ously pursued his client’s best arrived police the first at interest en- when tirely free from the Williams, they while influence and house arrest his con- cern to house, avoid his they heard own still outside the were incrimination.” (Maj.Op. 136.) at (App. flushed. at being repeatedly toilets рresent 163a, 191a, 206). not at James was disagreement My majority’s with the period. Only Zepp during this house the analysis stems from the fact that without re- had been arrested and Williams after slightest it was the evidence that James ap- did James first from the house moved either flushed controlled substances who that en- It at that time James pear. activities, the toilet or aided in such down client Zepp the house to meet with his tered majority makes the unwarranted and the alleged again it was Zepp. Ann Once Jo speculative assumption that he did so. It flushed, it was the were that toilets the court must be remembered that district flushing gave the latter rise to evidentiary an as hearing never conducted effort call James as government’s time place during to what took the in which government witness. That effort eventual- house, Zepp Zepp were in the James stipulation being in a read ly resulted accordingly, dealing we are here Attorney “if John F. James jury the itself, the record rather than ... would called as a witness he were evidentiary ei record directed issues of testify during period time that inadequate repr ther conflict of interest or house], Zepp did he was [James] [the esentation.3 202). (App. at flush toilets.” light The record itself sheds little flushings significance toilet of the transpired while James and what police the fact that found results from minimal the house. What illumina- were containing glassine envelopes controlled exists, fragments must be drawn from tion septiс tank. Yet substances they pre-trial proceedings as relate evidence as record barren testimony of “toilet flush- officers’ flushings toilet of these either septic ings,” and tank search. envelopes in deposit resulted Indeed, envelopes in septic tank. 26, 1983, approximately January On just easily been tank could trial, suppression prior to the three weeks at the time of flushed down toilet government hearing was held which flushing place flushing took initial —a call as a made known its intention to vicinity appeared James even before time, in- government witness. At house. James about dicated that it desired to ask house circumstance, Zepp use of the in the bathroom majority the Despite this day Zepp (Decem- the that was arrested flush- completely ignores the initial opinion 18, 1982). objected he James unsupportable ber ing and makes the assertion testify that if he were forced equal access and felt “trial counsel had that inadequate representation respect or "there no evi concedes that brief may developed. wrongdoing by be See Unit James . conflict of interest dence . . .” (Appellant’s31). Swinehart, (3d at Cir. brief 617 F.2d 336 ed States v. 1980); Philadel States v. Rad-O-Lite United classes cases is procedure in both 3. Normal (3d 1979). Inc., 740 Cir. phia, F.2d evidentiary hearing so facts that the to order an used”, him might “participating from when bathroom pursued. bar was never 112). Indeed, Therefore, at (App. gleaned the is held.” all that can case be from the express ruling respecting alleged an sought he that he would record James’ criminal complicity representing Zepp not from is that: be barred he government suggested then testified. (1) flushing Officers heard toilets before stipulation. that it would be satisfied with house; Zepp James at the arrived Again, stipula- James asked whether the (2) Zepp house; James arrived at the prejudice tion would “be without to [his] (3) claimed Officers to have heard toilets (App. 113). as counsel.” at appearing house; Zepp flush while James was in the colloquy place: following then took (4) stipulated James did not that he flush Well, I ATTORNEY JAMES: would toilets; say Capdeville that Mr. like to asked if I stipulate I whether had would used the (5) stipulate James offered to that at no house, toilet in answer is time was in while he the house was the never. used; bathroom stipulate? THE COURT: not You will days Three later sep- a search of the stipulate ATTORNEY I JAMES: will produced glassine envelopes, tic tank that I never used the toilet that house. positive of which tested for cocaine residue. any of the ATTORNEY ^{[*] [*]} bathrooms then JAMES: ^{[*] [*]} I did not ^[*] ever. ^[*] use flict of It is majority based interest opinion on that terms of his discusses meager James’ record that potential con- right; stipula- THE COURT: All liability and his desire own no tion: At time when he was in the complicity. avoid criminal Ignoring the were flushings house of the bathrooms used place earlier that took on Decem- him. ber at before James arrived house, Zepp majority opinion concludes I ATTORNEY would like JAMES: that, glassine the evidence of en- stipulation make a further that at no velopes tank, being septic found in the time I was was the house bath- presence house, Zepp of James and room used. alleged flushing, sounds of second you agree Would to that? and James’ had never THE COURT: think Now I we better toilet, flushed jury could have take recess to if you see want to testi- drawn the was a inference there “50% fy- probability” glas- that James flushed the If he ATTORNEY JAMES: doesn’t sine down envelopes (Maj.Op. the toilet. stipulate, want to I’ll withdraw it. 30). typescript suggest major- at one, first To the not second one. ity opinion unfairly read has the record Okay; you stipulate. won’t respect. THE COURT: Let me now so there septic The envelopes found in tank misunderstanding will no on the very could well have been the result of James, Mr. understand that record having disposed long Williams of them be- you stipulate you that at no time while Zepp fore James even had arrived at were inside residence 38 Little We, course, house. cannot know what Fountain the bath- [the house] actually place when visited the took by you. room used house, hearing the absence of correct, ATTORNEY JAMES: That is record, develop such a information sir; stipulate. I so known, will remain unknown. What 113-115). (App. two, however, one, is that there were reasons, stipula- alleged second flushings For unknown toilet and that sets of make, sought admittedly present tion to at the that James to wit: wаs not in persuaded I time of I cannot “that at no time was in the house was the the first. be 143 that, equivo- alleged gambling had given illegal the been conduct a circumstance such record, we should cality represented evidence and one of the ed. He defendants has, that majority as the James’ conspiracy conclude charged who had been with rise a conflict of complicity gave to criminal operation illegal gambling of an the busi requiring Zepp. new trial for a interest subpoenaed to attorney ness. The tes tify at trial of the defendant. When the B. gambling, attorney pled the asked about supported us James’ If the record before claiming the amendment that evi fifth involvement, I fault the would not (the might him given incriminate at dence analysis and conclusion. The majority’s torney). appeals, holding The court of confirm majority opinion in the cases cited prejudiced not that the defendant was ei is position, although significant it this attorney’s privilege claim of by ther the had been a of those cases there in each attorney’s subsequent testimony the by to district that the finding made the court gambling place had taken effect at disqualified be be attorney involved should club, focused on the fact that neither target grand of a he was either cause attorney’s fear of self-incrimination nor under indictment. jury investigation or was attorney’s testimony incriminated Salinas, 618 F.2d v. United States See defendant. court went on to сomment denied, 961, Cir.), cert. (5th 449 U.S. 1092 impropriety of the attor on the obvious (1980); In re 374, 228 101 66 L.Ed.2d S.Ct. ney’s to failure withdraw from case February, Investigation Before testify when he realized that he would be (4th Jury, 563 F.2d 652 Lynchburg Grand witness, ing prosecution did a but not Cir.1977) disqualified because (attorneys analyze issue in conflict terms of of concerning activi targets investigation of interest.4 involved); United clients were ties which (4th Clarkson, F.2d 270 Cir. States v. 567 If not for the fact that James’ it were 1977) (attorney disqualified under because facially prejudicial is related to for criminal activities indictment interest, agreed my I would not have client). grant new trial be- colleagues purport- cause I do believe James’ each of these only I assume can is substantiated ed conflict interest held not judge the trial cases where Indeed, of this before discretion, the record case. was suffi- there have abused analysis could even take conflict of interest support record cient evidence case, it attorney place in the circumstances is finding district court’s disqualified. evidentiary hearing each case the should clear that an should be subject that, disqualification was order of have been held so as establish developed house, a record appeal an based the time James was Here, course, we no such have below. glassine envelopes yet had discarded. equivocal scraps have record. We overlooking two majority, Yet sets abovе. to which I referred of evidence place, rejects the flushings took No district hearing has ever been held. No evidentiary hearing and seeks need for an has ever been made. court determination support its conflict of interest conclusion brought. have ever been charges No ambiguous in this totally that is on record hand, respect. no such evi- On other Crockett, F.2d 506 759 United States analysis hearing required if the dentiary denied, Cir.), cert. (5th U.S. along suggest, the lines which proceeds (1975), a case simi 46 L.Ed.2d representation, that of deficient one, who lar to this involved as to unequivocal the record clear club where was active in the had been States, sentation; Uptain F.2d Indeed, United see in comment- later Circuit case Fifth following. Crockett, 1982) (5th analyzed sixth in text ing the relevant discussed Cir. repre- adequacy of issue in terms amendment stipulation the content of the into which inquiry counsel “involves an as to whether performance, entered. James counsel's actual in considered light totality of the in circumstances do, however, by entering I find that into case, seriously inadequate was and wheth- stipulation, James rendered an inade- inadequacy er prejudiced counsel’s the fair- performance quate Zepp’s attorney, as ness of his client’s trial.” Id. so, doing prejudiced her trial. It is for reason, earlier, apparent It is to me that as I that I that our focus too indicated question must Thus, be on of whether would reverse сonviction. as James it, inadequately represented Zepp this proper I see this court case issue which when he entered into a confront is not should whether James’ ac- implicated If, her suggest, interest, defense. as constituted a tions conflict of but analysis our must follow employed right whether James denied her to Uptain, then the dual test of Strickland assistance of effective counsel when his — U.S. —, Washington, stipulation was entered the record at into implicated. L.Ed.2d In trial. her Strickland, Supreme required Court II. predicate that two determinations must be made a court before can decide a de States, Uptain In v. United 692 F.2d 8 fendant has been denied effective assist- (5th Cir.1982), directly the Fifth ad- Circuit ' First, anee of counsel. the defendant must attorney giving dressed the issue of an performance show that counsel’s defi was against Uptain evidence his client. in- cient; second, dem defendant must a bail jumping volved trial which the onstrate performance deficient government called the attor- defendant's prejudiced the defense. 104 S.Ct. at 2064. ney, Kirby, given to testify that he had his client, Uptain, notice of the trial date. Kir- Zepp clearly deficiency satisfies by testified that two prong he had sent letters to of the In analysis. Strickland informing his client him trial of the date. explained Strickland Court that an at- He also testified that torney’s he had discussed the performance is deficient if setting Uptain by telephone prior trial “prevailing professiоn- unreasonable under trial procedure and that his normal al prevail- norms.” S.Ct. at 2065. The have been ing would to inform his client of the trial advocacy, rules of as set forth trial, During date., Kirby Code of Responsi- Model Professional Uptain bility, cross examined both and another require attorney as withdraw attorney appointed whom the court had appears testimony counsel when it that his Uptain represent during testimony. Kirby’s might prejudicial to his client. Model Kirby closing argument made the defense’s Code of Professional Responsibility DR 5- jury. Uptain (B), Crockett, was convicted. also see United States v. supra, 760-61. unquestionably analyzed The court in- the issue one withdraw, duty had a his fail- volving inadequate representation and con- so, his ure to do continued defense of Kirby’s testimony Up- cluded violated regarded cannot be as other than deficient. sixth guarantee tain’s amendment of the right to Recognizing counsel. inherent Strickland also holds that de where the problem attorney testifying against of an alleges fendant a deficiency in client, emphasized Kirby the court performance, the defendant must show that, possibly “could not an effective is a been that “there reasonable probability errors, when primary argu- unprofessional advocate the aim of his but for counsel’s jury to the proceeding ment should have been dimin- result of the would have been weight, credibility, A ish not the of his reasonable is a probability different. testimony.” probability оwn Id. at 10. court in sufficient to confi undermine Uptain explained application outcome.” 104 S.Ct. at dence case, guarantee Zepp prejudiced sixth amendment against Zepp’s fairness See Uptain, her the of trial. by the fact that James testified at 692 F.2d 10. stipulation, but record indicates by his the of Zepp denied the benefit that James also III. his exculpatory evidence contained the gone length, however, have some I to to negotiating proposed stipulation. While question majority’s the conflict-of-interest the to the language stipulation of read the I do not analysis because believe that on a stipulate proposed to that jury, James also one, appropriate record such as this it is to he in the was no time while was house at incriminating accuse James of his James, however, used.5 the bathroom charges own client to save himself from of stipulation. The the second withdrew complicity. professional criminal why proposed the record does not disclose consequences labeling of such can personal stipulation jury If the had was withdrawn. out, dire, pointed I have I be think police had that the not been convinced support present record cannot such flushings, of toilet heard second series conclusion. stipulated that had James testified or my reading testimony of Indeed of not used he bathroom had been while suppression hearing stip- where James’ house, jury’s may inwas verdict evolved, first indicates to me ulation that If, however, we different.6 well been thoughtless amore a calculated was than the scenario at time trial with consider stipulation agreed. had A to which James James, stipulation given by that was reading testimony fair of that indicates to i.e., only who not that it was James had me that James’ sole endeavor at that time bathroom, Zepp is prejudice to used curry government’s not to was favor or apparent. prevent government to seek look- stipulation, my opinion, James’ inad- him ing- co-conspirator as a or as a otherwise, vertent or constitutes evidence defendant, rath- potential but was jury have inferred from which the could Zepp’s er to remain as counsel the case. intention, however, Zepp guilty possession of co- Regardless was of James’ was, opinion, (Count III) my prejudicial so of evi- the effect caine and/or destruction her conviction must be (Count V). my is sufficient in case dence This trial, Yet, granting aside. her a new set require a new trial be judgment I do not think we strain find a should under circumstances of ordered appears. none conflict interest where was other evidence case where there little Here, charges. as in Zepp link to these particularly This is so when there is a I Uptain, supra, conclude that there was analysis ready problem to test the kind of counsel, refer, ineffective assistance of I presented has to us. been performance “seriously course, concept inadequate inade- or James’ me, “inadequacy” prejudiced deficient assistance counsel. To quate” and the stipulation: right; At dence at was the bathroom THE All 38 Little Fountain COURT: by you. the house were no time when was in used correct, sir; him. of the bathrooms used I JAMES: That is ATTORNEY like ATTORNEYJAMES: I would to make stipulate. so I that at no time was added). 114-115) (emphasis (App. at further house was the bathroom used. agree you Would to that? suggest that been I do not James should have we take a THE COURT: Now I think better even where his both witness and counsel testify. you recess see if want to testimony exculpatory. point may have been want to JAMES: If he doesn’t ATTORNEY only true neither out that if the fact stipulate, I'll withdraw it. nor toilet while flushed the one, To the second one. the first house, of them were and James’ two testimony Okay; you stipulate. won’t fact, that testimo- could establish that THE Let me now so there will COURT: ny have been denied to in favor should not misunderstanding no on the record under- representation James. of her continued James, you stipulate that stand that Mr. you no while were inside the resi- time judged action should be James’ not accord

ing hypothetical he had some to whether

speculative motive to avoid criminal liabili

ty, performance but whether was ‍​‌‌‌​‌​​‌‌‌​​​​‌​​​‌‌​‌‌‌​​​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‍defi so, inadequate, prej

cient or and if whether is,

udice to his client. resulted That wheth reasonably probable

er it is that absent

James’ actions —actions about which no

speculation they is needed7 because are

clearly reflected the record —a different

outcome of would result

ed. I am satisfied that it would have. reason,

It is for that and that reason

alone, supports and because record analysis,

such an would reverse

Zepp’s conviction.

Doyle TRESSLER, Appellant, HECKLER,

Margaret Secretary of

Health and Human Services.

No. 84-5270. Appeals,

United States Court of

Third Circuit. 12(6)

Submitted Under Third Circuit Rule

Oct. 1984.

Decided Nov.

As Amended Jan. 23, 1985.

Rehearing Denied Jan. speculate perform- appears suppression hearing 7. We need not about James’ in full in the part majority opinion ance on the which both the and I have challenged into which James entered referred.

Case Details

Case Name: Government of the Virgin Islands v. Zepp, Jo-Ann. Appeal of Jo Ann Zepp

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 13, 1984

Citation: 748 F.2d 125

Docket Number: 83-3201

Court Abbreviation: 3rd Cir.