Cаmeron Yost (defendant or appellant) was convicted of securities and wire fraud after an 11-day jury trial. He appeals from his judgment of conviction entered on November 20, 2001 in the United States District Court for the Southern District of New York before Chief Judge Michael B. Mukasey.
Yost’s appeal presents us with two issues to resolve. One arises from the denial of his motion for severance of his trial from that of a co-defendant; the other and more complex issue arises out of the denial of his motion for a new trial based on a claim of his counsel’s actual conflict of interest. Because a lawyer owes to a client a duty of undivided loyalty, it follows that no lawyer can serve two masters, where to do so places the lawyer under inconsistent duties — that is, a duty to argue for one client that which his duty to another client requires him to oppose.
BACKGROUND
Yost had been indicted and charged with conspiracy to commit securities fraud and wire fraud and to violate the Travel Act through commercial bribery in violation of 18 U.S.C. § 371. He was also charged with a substantive count of securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, and with three substantive counts of wire fraud in violation of 18 U.S.C. § 1343. Defendant was convicted on all counts charged, and sentenced to five years probation, restitution in the amount of $269,858.63 and a $500 special assessment.
The charges against defendant were based on his participation in a 1996 scheme designed to create artificial demand for the common stock of Banyan Corporation (Banyan), a company which he controlled and of which he was also president. The scheme envisioned inducing stock brokers employed by the Symons Financial Group to recommend Banyan stock to their customers by offering them bribes. A co-defendant, Murray Goldеnberg, not a party to this appeal, was convicted at the same trial of participating in a parallel scheme to manipulate demand for the stock of First Colonial Ventures, Ltd. (First Colonial), a company he controlled.
The indictment that charged Yost and Goldenberg also implicated Clyde Feyrer who, it was alleged, was a middleman in both schemes between Yost and Golden-berg, on the one hand, and the principals of the Symons Group, on the other. Feyrer did not stand trial because, pursuant to a cooperation agreement, he pled guilty and subsequently was sentеnced to five years probation.
In its case against Yost, the government presented evidence that from April to December 1996 he successfully defrauded purchasers of Banyan stock. The princi *113 pal proof against him consisted of the testimony of Feyrer and Richard Wolff, an associate of the Symons Group. Both men attended a meeting at Caesar’s Palace Hotel in Las Vegas, Nevada, with Yost, Gold-enberg, and Scott Symons, the Symons Group’s owner. They testified that at the meeting the conferees discussed bribing brokers to buy stock for their customers in the corporations that Yоst and Goldenberg controlled. Wolff and Feyrer suggested that their brokers would recommend Banyan and First Colonial to their clients. The evidence further showed that Feyrer, Wolff, Yost and Goldenberg arranged to transfer shares of Banyan and First Colonial to Feyrer’s control so that he could use those shares to pay the brokers at the Symons Group as an inducement to them to promote the Banyan and First Colonial stock. The testimony of Feyrer and Wolff was corroborated by the testimony of a Symons Group broker who explained that he and others at his firm received secret payments fоr selling stock, and that they withheld from prospective customers the fact that they were being paid to recommend those stocks.
Extensive documentary proof further supported Feyrer’s and Wolffs accounts of the manner in which bribes in the form of Banyan and First Colonial stock were routed to the brokers at the Symons Group. For example, brokerage and bank records reflected that beginning in April and continuing through December 1996, large blocks of Banyan stock were delivered into Wolffs Canadian brokerage accounts from accounts controlled by Feyrer. When the stock wаs sold from Wolffs accounts, the proceeds were transferred by wire to bank accounts in Florida controlled by Wolff, Feyrer, and their nominees. The government also presented evidence demonstrating that the vast majority of the retail buying in Banyan stock during the span of the stock manipulation conspiracy was generated by the clearing agent for the Symons Financial Group brokers.
On appeal, Yost contends principally that the district court erred by denying his motions for severance and his motion for a new trial. He asserts he should have been tried separately from cо-defendant Golden-berg. Defendant also urges that he should have been granted a new trial premised on an allegation that his counsel had a conflict of interest and was, in addition, ineffective in providing him assistance. Because we find no error in the trial court’s dispositions of these issues, we affirm.
DISCUSSION
I Severance Motions
Defendant’s motions for severance were made both before and after Feyrer’s guilty plea, pursuant to Federal Rules of Criminal Procedure 8(b) and 14. Yost challenges his and co-defendant Golden-berg’s joint trial as prejudicial because the indictment, in his estimation, charged them with involvement in twо separate conspiracies.
Rule 8(b), which governs the joinder of two or more defendants in the same indictment, permits such joinder if the joined defendants “are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Fed.R.Crim.P. 8(b). The propriety of Rule 8 joinder raises a question of law subject to
de novo
review. Unless the standards set out in Rule 8(b) are met, a motion for severance should be granted even absent a showing of prejudice.
See United States v. Lane,
*114 In support of his contention that he and Goldenbеrg were improperly joined, Yost asserts that they were actually accused of two separate and distinct conspiracies. He maintains that the Banyan and First Colonial conspiracies did not involve a common object and that they were neither factually nor temporally related. Appellant also points out that neither he nor Goldenberg was charged in the conspiracy counts of the other, and that Feyrer, the only defendant charged with participating in both conspiracies, pled guilty prior to trial.
In
United States v. Attanasio,
■It is also true that the schemes were run at the same time and that—after participating in the Las Vegas meeting with Feyrer and Wolff—Yost and Goldenberg were aware of each other’s participation in fraud. Indeed, even if the district court had tried these two defendants separately, the evidence at one trial would essentially duplicate the evidence at the other, as the district court found. We use a common sense approach when considering the propriety of joinder under Rule 8(b) and, in the instant case, we think “a reasonable person would easily recognize the common factual elements that permit joinder.”
Turoff,
Even with proper joinder under Rule 8, Rule 14 provides that a district court may nonetheless grant a severance of defendants’ joint trial “[i]f it appears that a defendant or the government is prejudiced by a joinder.” Fed.R.Crim.P. 14(a). Rule 14 severance does not raise a question of law for our review; rather, its appliсation is tested under the abuse of discretion standard. The Supreme Court has instructed that a district court should grant a Rule 14 severance motion only when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”
Zafiro v. United States,
For reasons of economy, convenience and avoidance of delay, there is a preference in the federal system for providing defendants who are indicted together with joint trials.
See Zafiro,
Appellant urged before trial that a joint trial with Goldenberg would prejudice him because it created risks of evidentiary spillover and jury confusion. Chief Judge Mukasey rejected this argument reasoning that because each defendant was aware of the manipulation scheme involving the stock of the other’s company, and in fact attended the same conspiratorial meeting in Las Vegas, proof of both schemes would be admissible against both defendants, even at severed trials.
Thе district court therefore ruled there was no prejudice to either defendant that was unique to a joint trial, and that to the extent that any prejudice arose it could be cured by jury instructions and by the careful presentation of evidence by competent counsel. At the conclusion of the trial, Chief Judge Mukasey provided the jury— with no objection from appellant — a charge properly reminding the jury that appellant was accused of the Banyan scheme and Goldenberg of the First Colonial scheme, specifying that separate consideration was to be given to each count against each defendant. Consequently, the denial of appellant’s Rule 14 motion for severance may not be said to be an abuse of discretion.
II Ineffective Assistance of Counsel
Yost’s principal contention on appeal is that it was error to deny his motion to set aside his guilty verdict and grant him a new trial because, as he declares, his trial had been prejudiced by the ineffective assistance of his counsel. He advances two distinct arguments with respect to this claim: (1) one of his attorneys had an actual conflict of interest; and (2) there was a potential conflict of interest and there were a number of other alleged deficiencies in the legal representation he received. We take up each of these arguments in turn.
A. Actual Conflict of Interest
Six months after his conviction, appellant moved for a new trial pursuant to Federal Rule of Criminal Procedure 33 alleging that one of his two attorneys, Roger Fidler, Esq., labored under an actual conflict of interest. This motion was made by attorney Robert Siméis, Esq., who had been contacted by attorney Fidler for assistance in handling defendant’s trial one month before it began. The district court initially denied the motion for a new trial in a written opinion. Appellant subsequently urged the trial court to conduct an evidentiary hearing, which it agreed to do. After holding an evidentiary hearing, Chief Judge Mukasey handed down an amended opinion adhering to his original denial of appellant’s Rule 33 new trial motion.
1. Law Governing Conflicts of Interest
The Sixth Amendment guarantees a criminal defendant the right to counsel, and with that guarantee comes the correlative right that such representation be free from conflicts of interest. Wood
v. Georgia,
While a defendant is required to demonstrate prejudice to prevail on most claims of ineffective assistance of counsel,
see Strickland v. Washington,
We have held previously that “[a]n attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney’s and defendant’s interests diverge with respect to a material factual or legal issue or to a course of action.”
Id.
at 91. An actual conflict of interest does not present grounds for a new trial if it does not rise to more than “a-mere theoreticаl division of loyalties.”
See Mickens v. Taylor,
2. Appellant’s Allegations of Actual Conflict
As Yost tells it, attorney Fidler had an actual conflict of interest arising from his simultaneous representation of Yost and Paul Syracuse, an associate of Feyrer and Banyan investor who was also under investigation by the United States Attorney’s office for allegedly participating in a broker-bribery scheme with Feyrer. Appellant avers that Fidler’s actual conflict of interest became apparent when Syracuse offered to provide exculpatory testimony and other evidence, including taped phone conversations, at appellant’s trial. He says Fidler led him to believe that Syracuse would be an important witness for him and, in fact, that Syracuse’s testimony would be the centerpiece of his defense.
Although Syracuse did initially offer to testify, this offer was withdrawn after the commencement of Yost’s trial. Syracuse withdrew his offer after retaining a second lawyer — Thomas Sjoblom, Esq. — who contacted the United States Attorney’s office and thereafter allegedly advised Syracuse that the government would come after him if he testified for Yost. Apрellant contends that he was therefore deprived of the effective assistance of counsel because, despite the fact that Syracuse had exculpatory information, Fidler — operating under dual loyalties towards him and Syracuse— *117 failed to secure Syracuse’s testimony, resulting in the collapse of his defense.
We review the relevant record for proof in support of these allegations. Attorney Siméis submitted two affidavits to the district court in support of Yost’s motion. In them he made a litany of assertions regarding the relationships and interactions of Yost, Fidler, Syracusе, Sjoblom, and the United States Attorney’s office. Observing that Siméis was not a direct participant in the events that determine whether Fi-dler had a conflict of interest, the district court ruled that Siméis’ affidavits — consisting principally of what he was told by Fidler, Syracuse and Yost — constituted, for the most part, inadmissible hearsay. Yost’s affidavit, in support of his motion, also relied heavily upon a recounting of statements made to him by Fidler. Hence, the district court concluded that it too is similarly inadmissible hearsay to the extent that it addresses Fidler’s relationship with Syracuse, Sjoblom’s dealings with the United States Attorney’s office, and what potential defense witnesses would have said at trial.
Attorney Fidler submitted a letter that the trial court found was rambling and contradictory, contained inadmissible hearsay, and of little or no value on the issue of an actual conflict in representation. The primary admissible evidence regarding the alleged conflict of interest comes from two affidavits by Syracuse, an affidavit from Assistant United States Attorney Patrick Smith, and the hearing testimony of Fidler and Syracuse.
With these sources of proof in mind, we turn now to the threshold question of whether Fidler actively represented conflicting interests.
See Strickland,
B. Resolution of Actual Conflict Issue
We next consider whether the conflict affected counsel’s performance. In our estimation, it did not. To prevail on his claim that his representation was compromised by an actual conflict of interest, appellant had to demonstrate that Fidler was confronted with more than a “thеoretical division of loyalties” and prove instead that Fidler’s representation of Syracuse actually affected the adequacy of his representation of Yost.
See Mickens,
In his submissions to us appellant declares that Fidler’s conflict of interest adversely impacted his defense because Fi-dler failed to subpoena Syracuse. In *118 support of his assertion that the pursuit of Syracuse’s testimony was a viable alternative defense strategy, Yost points to averments by Syracuse in his second affidavit that government witness Feyrer acted alone in his relationships with Richard Wolff, and without the knowledge of Cameron Yost, and that Feyrer lied about many significant matters during Yost’s trial. Syracuse further elaborated on .his potential trial testimony at the district court’s evidentiary hearing, declaring on direct examination that he became very upset after reading portions of the transcript from Yost’s trial because he “had dоcumentation with [Feyrer’s] signature on it in writing and on tapes that counteracted everything [Feyrer] said, about 90 percent of what he said.”
We have held previously that a defendant represented by conflicted counsel need not demonstrate that the alternative strategy or tactic foregone by counsel was reasonable. Rather, the defendant need only prove that the alternative strategy was plausible.
United States v. Malpiedi,
The problems with Syracuse’s potential trial testimony are myriad and severe. First, the district court correctly ruled that Syracuse’s statement regarding Yost’s knowledge of Feyrer and Wolffs stock manipulation activities is beyond Syracuse’s competence as a witness and is based on inadmissible hearsay. Second, regarding Syracuse’s broad challenge to the truthfulness of Feyrer’s trial testimony, Syracuse subsequently admitted on cross-examination at the evidentiary hearing that he had only reviewed eight to 11 transcript pages of Feyrer’s testimony, out оf a narrative that extended for two or three days and occupied several hundred pages of transcript. Syracuse also admitted that he only reviewed pages that were pointed out to him, and that he only looked at those pages to evaluate certain statements that Feyrer made about him. Third, to the extent that Syracuse might have challenged any of Feyrer’s testimony, that testimony — as elicited by the government — did not implicate Yost and was peripheral to the government’s case against him. The only testimony from Feyrer that pertained to both Syracuse and Yost was elicited by Yost’s own attorney (Siméis not Fidler) on cross-examination. Fourth, Syracuse was forced to acknowledge during cross-examination at the hearing that the allegedly exculpatory tapes he possessed only contained the voice of Yost’s co-defendant Goldenberg, and not Yost’s, Feyrer’s, or Wolffs. Finally, Syracuse’s testimony at the evidentiary hearing contradicted his two affidavits — including an affidavit sworn to during his testimony— seriously undermining his credibility as a witness.
Even had appellant presented evidence that the pursuit of Syracuse’s testimony at trial in fact represented a plausible alternative defense strategy, he would still have to demonstrate that Fidler faded to secure Syracuse’s testimony because such pursuit was inherently in conflict with Fidler’s other loyalties.
Winkler,
Syracuse, for his part, proffered contradictory reasons as to why he chose to *119 withdraw his offer to testify on Yost’s behalf. During direct examination at the evidentiary hearing he intimated he was informed by his attorney Sjoblom, who had contacted the United States Attorney’s office, that if he testified it would challenge his credibility. Syracuse went on to explain that, as a result, “[i]f I would be subpoenaed I would assert the Fifth Amendment, right, wrong or indifferent.” Curiously, when asked by the government on cross examination if he didn’t testify because he was worried about incriminating himself, Syracuse responded that he didn’t testify because there were certain names on the tapes that he didn’t want surfacing. Even stranger, Syracuse immediately offered and spelled out one such name, which he claimed was connected to “the mafia.” After this bizarre twist Syracuse, when confronted with statements from his first affidavit, confirmed the plain sense of his initial affidavit — namely, that he refused to testify because he was concerned for his own position and didn’t want the government to come after him.
A review of Yost’s submissions reveals that, beyond bald assertions, he presents no evidence that Fidler failed to pursue Syracuse’s testimony because of an actual conflict of interest. Although it might be possible, absent evidence to the contrary, tо infer that the pursuit of Syracuse’s testimony was foreclosed by a conflict of interest, Syracuse’s own testimony suggests otherwise. To begin with, although we stated earlier that the extent to which Fidler actively represented both Yost and Syracuse was unclear, Syracuse’s testimony decisively indicates that, with respect to the point at which he was deciding whether to testify for Yost, Syracuse was represented by Sjoblom and not Fidler. Further, any relationship that he had with Fidler notwithstanding, Syracuse maintains — in both of his affidavits and in most of his hearing testimony — that he made an independent decision not to testify on Yost’s bеhalf. In addition, although Fidler could nonetheless have attempted to compel Syracuse’s testimony, we think that it is unlikely that Fidler chose to forego this course of action because of an actual conflict. Rather, it seems more likely that Fidler considered it poor trial strategy to subpoena a peripheral, reluctant and not very credible witness who planned in any event to invoke his Fifth Amendment privilege.
Consequently, for all of these reasons, we hold that the pursuit of Syracuse’s testimony did not constitute a plausible alternative trial strategy for Yost. Accordingly, absent that рroof, the claim of an actual conflict of interest on the part of appellant’s counsel must fail.
Ill Was Defendant Otherwise Deprived of Effective Assistance?
Yost raises a second effectiveness of counsel argument. He contends that, even in the absence of an actual conflict of interest, he was still entitled to a new trial because he was otherwise deprived of the effective assistance of counsel.
In contrast to a defendant’s claim that counsel is burdened by an actual conflict of interest, a convicted defendant’s claim that he wаs generally deprived of the effective assistance of counsel is subject to a more rigorous test.
See Lindstadt v. Keane,
*120 Yost alleges here that Fidler’s representation was deficient because Fidler failed to: (a) refuse to represent him despite a potential conflict of interest; (b) conduct a proper pre-trial investigation; (c) present a defense; (d) interview witnesses; and (e) pursue or discuss plea possibilities with him.
This contention of generally deficient representation is wholly without merit. To the extent that we assumed that Fidler was burdened by an actual conflict of interest, but nonetheless concluded that the conflict did not occasion any lapse in representation, Yost cannot possibly succeed on a claim that, but for Fidler’s potential conflict of interest, there is a reasоnable probability that he would have been found not guilty. Next, although appellant goes to great lengths in his submissions to insist that Fidler was his lead trial counsel and that attorney Siméis was retained for the sole purpose of assisting with the cross-examination of a single government witness, Yost’s arguments identifying alleged shortcomings in Fidler’s representation are at the very least disingenuous because the record reveals that attorney Siméis actually tried the entire case — from opening to closing — and that Siméis did so quite well, in the estimation of the judge who presided at the trial, Chief Judge Mukasey.
At any rate, to the extent that it is in any way a tenable positiоn that Fidler was entirely responsible for pre-trial investigation, trial strategy, and the presentation of a defense case, Yost has made only the most conclusory assertions with respect to Fidler’s shortcomings and the likely effect of these alleged deficiencies on the jury’s verdict.
Moreover, Yost’s allegation that Fidler failed to pursue or discuss plea possibilities with him is unavailing. To prevail on this point, Yost must demonstrate a reasonable probability that, but for Fidler’s deficiencies, he would have pled guilty.
See Purdy v. United States,
CONCLUSION
We have considered the remaining arguments raised by appellant and find them all to be without merit. Accordingly, for the reasons stated, the judgment of conviction is affirmed.