Dеfendant-Appellant David Williams appeals from the October 16, 2002 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Judge) convicting Williams, following a jury trial, of engaging in a continuing criminal enterprise, money laundering, possession with the intent to distribute cocaine, unlawful possession of firearms, and four counts of unlawfully using a communication facility. On October 4, 2002, Williams was sentenced to, inter alia, life imprisonment under 21 U.S.C. § 848(b).
Williams makes several claims on appeal. Most significantly, he argues that his sentence is unconstitutional because his pretrial representation was impaired by an actual conflict of interest that effectively denied Williams the opportunity to enter into a cooperation agreement or other plea agreement with the government. Williams argues that he and his pretrial counsel had engaged in criminal transactions that were relevant to the crimes for which he was convicted, and that this attorney, in an effort to conceal his own wrоngdoing, actively discouraged Williams from cooperating with the government.
We conclude that Williams’ sentence was imposed in error. All parties have conceded that Williams’ pretrial attorney suffered from an actual conflict of interest. We further find that this conflicted representation led to a lapse in representation because Williams’ attorney had a self-interested incentive to prevent Williams from cooperating and took no meaningful steps to approach the government or otherwise explore a cooperation or other plea agreement, even though Williams may very well have had knowledge valuable to the government, especially at the early stages of the proceedings. For example, the government might have valued Williams’ knowledge as to the whereabouts of a co-defendant being sought by law enforcement and also might have valued Williams’ knowledge as to the criminal activity оf Williams’ conflicted attorney, who was under investigation for homicide and other crimes during his representation of Williams.
As the case proceeded to trial and conviction with conflict-free counsel, we propose a remedy tailored to fix the constitutional violation associated with the failure of Williams’ conflicted counsel to explore a cooperation or other plea agreement with the government. For the reasons discussed herein, we remand to the District Court for resentencing in accordance with this opinion.
BACKGROUND
On January 6, 1999, Defendant-Appellant David Williams was indicted by a grand jury for his role as a principal administrator in a continuing criminal enterprise that was believed to have been one of the largest suppliers of cocaine in the Buffalo, New York area. The next day, Williams and other participants were arrested. The government executed several search warrants pursuant to which it found, among other things, firearms in residences used by Williams in Buffalo, New York and in Pembroke Pines, Florida.
Soon after his arrest, Williams retained attorney Anthony F. Leonardo, Jr. to defend him against the charges. Leonardo had represented Williams on prior unrelated federal charges and was then representing him on a state weapons charge *100 arising from a traffic stop. During the course of Leonardo’s representation of Williams, Leonardo also represented Calvin Cornelious, a drug dealer who allegedly engaged in criminal activities with Williams.
In March 1999, co-defendant Mark Overall, a close confidant of Williams, began cooperating with the government soon after his arrest. Overall implicated Williams in narcotics trafficking and also alleged that Williams and his attorney, Leonardo, engaged in criminal activity together. Specifically, Overall alleged that in the summer of 1998, he saw Leonardo provide Williams with firearms silencers and that, in December 1998, he saw Williams deliver handguns and silencеrs to Leonardo who was going to have the silencers modified in order to be more effective. Overall also alleged that Leonardo and Williams conspired together to hide a witness who was going to testify against Cornelious in a state rape prosecution. Leonardo represented Cornelious in those proceedings and in a subsequent matter in federal court.
In August 1999, the government made its first motion to disqualify Leonardo from representing Williams, though not on the most obvious grounds. The government sought Leonardo’s disqualification because Leonardo was simultaneously representing both Williams and Cornelious. The government alleged that Williams and Cornelious were involved together in drug trafficking and that Leonardo’s representation of both presented a potential conflict of interest. This led to a September 29, 1999
Curdo
hearing,
see United States v. Curdo,
In the fall of 1999, the government learned that Leonardo was under investigation by the FBI in Rochester, New York and in Cleveland, Ohio concerning allegations that Leonardo was involved in money laundering and narcotics violations. In February 2000, Overall testified before the grand jury where he repeated his claims that Leonardo and Williams engaged together in illegal firearms transactions. On April 24, 2000, Overall pled guilty to three counts in the indictment. The following day, a superseding indictment was filed that added three firearms charges against Williams. Specifically, Williams and his daughter were additionally charged with possession of firearms in furtherance of drug trafficking activity and conspiracy to transport such firearms in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 371, respectively. In addition, Williams was charged with being a felon in possession of firearms. None of these additional charges were based on Overall’s testimony concerning the joint criminal activity of Williams and Leonardo.
In May 2000, Anthony Vaccaro, Leonardo’s business partner, was murdered with a silenced automatic firearm. Leonardo became the subject of an investigation related to the murder, based in part on Overall’s testimony that Leonardo had access to firearms and silencers. Leonardo subsequently made incriminating remarks to a confidential informant that implicated him in the Vaccaro homicide, as well as in drug trafficking activity and money laundering.
The United States Attorney’s Office engaged in ex parte meetings to bring the allegations of Leonardo’s activities to the *101 attention of the United States District Court for the Western District of New York. Beginning on June 14, 2000, Denise O’Donnell, then United States Attorney for the Western District of New York, met with Chief Judge David G. Larimer of the United States District Court for the Western District of New York to apprise him of the ongoing investigation into Leonardo’s criminal conduct. 1 O’Donnell did not at this time mention to Judge Larimer the allegations that Williams and Leonardo had engaged in joint criminal activity.
On the following day, the government again moved to disqualify Leonardo from representing Williams, on the sole grounds that Mark Funk, another attorney in Leonardo’s firm, was representing Shanique Williams, the daughter of the defendant. At a Ctircio hearing before Magistrate Judge H. Kenneth Schroeder, Jr., both David Williams and Shanique Williams waived any potential conflicts of interest stemming from their representation by the same firm. Again, no mention was made of the allegations tying Leonardo to criminal activity with Williams.
In August 2000, United States Attorney O’Donnell met again with Chief Judge Larimer regarding the Leonardo investigation. Judge Larimer advised O’Donnell that he was familiar with the matter based on his review of various electronic surveillance orders related to the investigation. During this meeting, O’Donnell informed Judge Larimer that Leonardo wаs representing both Williams and Cornelious in separate criminal cases. O’Donnell raised the possibility of alerting the judges presiding over those cases, including Judge Arcara who presided over Williams’ case. Judge Larimer subsequently did so, although Judge Arcara does not recall exactly what was said to him nor when the conversation occurred. According to the government, it did not bring evidence of the joint criminal activity between Leonardo and Williams into open court for fear of compromising its investigation into Leonardo’s other criminal activities.
On December 29, 2000, Leonardo was arrested on federal drug charges, including one count of using a firearm in furtherance of drug trafficking activity. These charges were brought by the United States Attorney for the Western District of New York, the same office prosecuting Williams. Leonardo ultimately pled guilty to facilitating the murder of his business partner, money laundering, and trafficking in cocaine in August 2001.
On January 8, 2001, the government moved to disqualify Leonardo. In so moving, the government conceded that Leonardo’s representation was marred by an actual conflict of interest. As part of its motion to disqualify, the government submitted an affidavit from the prosecuting attorney stating that:
The government foresees serious ethical, as well as practical, problems in Mr. Leonardo attempting to zealously defend a client, which may include negotiating a plea agreement, by having to deal with the same United States Attorney who has undertaken to convict Mr. Leonardo of charges which, if convicted, would result in a lengthy term of imprisonment for Mr. Leonardo.
This motion was granted, and Williams retained new counsel.
On August 21, 2001, Williams and his new counsel moved to dismiss the indiet *102 ment, asserting principally that Williams’ Sixth Amendment right to counsel was violated because of Leonardo’s conflict of interest. Williams also asserted violations of his speedy trial right and his due process right to be free of outrageous prose-cutorial tactics. The motion was denied on October 1, 2001, and the matter рroceeded to trial on November 26, 2001.
After a jury verdict, Williams was found guilty of (1) engaging, as one of several principal administrators, in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a) and (b); (2) conducting a financial transaction involving the proceeds of unlawful activity with the intent to promote unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (ii); (3) possessing with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (4) possessing firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) and (2); and (5) four counts of using a telephone while committing a drug trafficking crime, in violation of 21 U.S.C. § 843(b). Williams was principally sentenced to life imprisonment for the first and third of these offenses, a consecutive term of 5 years’ imprisonment on the fourth offense, and a concurrent term of 20 years’ imprisonment on the remaining offenses. This appeal followed.
DISCUSSION
I. WILLIAMS’ SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defencе.” U.S. CONST, amend. VI. This right to counsel includes a “correlative right to representation that is free from conflicts of interest.”
Wood v. Georgia,
We group attorney conflicts of interest into three general categories. The first category describes those conflicts that are so severe that they are deemed
per se
violations of the Sixth Amendment. Such violations are unwaivable and do not require a showing that the defendant was prejudiced by his representation.
See United States v. Fulton,
A. Per Se Conñict of Interest
As noted, a
per se
conflict of interest requires “automatic reversal without a showing of prejudice.”
John Doe No. 1,
In
United States v. Cancilla,
In
United States v. Fulton,
When Fulton sought habeas relief, claiming that the conflict of interest deprived him of his Sixth Amendment right to counsel, the petition was denied. Id. at 608-09. This Court reversed, however, finding that Fulton’s attorney suffered from a per se conflict of interest which was unwaivable. Id. at 612-614. We held that where it is alleged that defense counsel engaged in the same or similar crimes for which a defendant stood trial, the conflict “so permeates the defense that no meaningful waiver can be obtained.” Id. at 613. “In such a case, we must аssume that counsel’s fear of, and desire to avoid, criminal charges ... will affect virtually every aspect of his or her representation of the defendant.” Id. While Fulton involved a defendant whose conflicted attorney proceeded through trial and sentencing, we noted how the conflict likely affected the defendant’s pretrial representation:
At the pre-trial stage, counsel’s ability to advise the defendant as to whether he or she should seek to cooperate with the government is impaired. Cooperation almost always entails a promise to answer truthfully all questions put by the government.... In such circumstances, counsel is hardly an appropriate negotiator of a plea and cooperation agreement. Counsel’s judgments about potential defense strategies may be affected by the fear that evidence concerning counsel’s involvement might come out....
Id. Based on the attorney’s powerful self-interest in avoiding criminаl liability, we determined that the conflict in this case was unwaivable:
Given the breadth and depth of this kind of conflict, we are unable to see how a meaningful waiver can be obtained. The conflict here involves a bias arising out of counsel’s powerful self-interest in avoiding criminal charges or reputational damage and is thus of a different character than other conflicts.... Advice as well as advocacy is permeated by counsel’s self-interest, and no rational defendant would knowingly and intelligently be represented by a lawyer whose conduct was guided largely by a desire for self-preservation.
Id. Lastly, although the government was aware of the allegations weeks before its witness testified at trial, it was not until trial that the government informed the court about the issue. Hence, we admonished the government in “future cases [to] immediately inform the court of the existence of such a conflict once it becomes aware of it.” Id.
In some ways, the conflict affеcting Williams’ representation treads more upon Sixth Amendment concerns than the one in Fulton. In the case at bar, the government had far more than mere allegations that Leonardo was engaged in criminal activity, as the government’s investigation increasingly corroborated Overall’s allegations. Thus, it is more likely that Leonardo, as opposed to Fulton’s attorney, in fact, had something to hide. Nevertheless, Leonardo represented Williams in this matter for approximately two years. In addition, the court below did not apprise Williams of the conflict of interest soon after learning of it, as it did in Fulton. And while it is unclear from Fulton exactly what the nexus was between the attorney’s alleged criminal conduct and the defendant’s alleged criminal conduct, the Court made clear that the crimes need not be identical. See id. at 613 (noting that waiver is inappropriate where a defendant’s *105 attorney is “implicated in related criminal activity”) (emphasis added).
On the other hand, Fulton’s conflicted representation extended through trial, while Williams’ did not. Furthermore, this case is perhaps distinguishablе from
Fulton
because it is clear in this case that Williams knew of his attorney’s criminal activities. Some of our cases note that the
per se
rule has only been applied where the client is unaware of his attorney’s underlying conflict.
See United States v. Rondon,
Thus, we consider it unresolved in this Circuit whether the
per se
conflict rules are applicable where the defendant is aware of the facts underlying what would otherwise be a
per se
conflict. In this case, the issue is not properly before us. Though Williams argued below that he suffered from a
per se
conflict in his motion to dismiss the indictment against him, he has chosen not to pursue this argument on appeal. Because he does not press this argument and because we provide relief to Williams on other grounds, we do not reach the issue of whether or not Williams’ representation was marred by a
per se
conflict of interest. Nevertheless, the analysis of whether his representation was so hindered informs our analysis of Williams’ claims that his representation suffered from an actual conflict of interest which deprived Williams of his right to counsel.
See United States v. Schwarz,
B. Actual Conñict of Interest
The District Court, the government, and the defendant agree that Leonardo’s representation of Williams was burdened by an actual conflict of interest. Leonardo and Williams made unlawful firearms exchanges during the period of Williams’ continuing criminal enterprise, and Williams was indicted for having used firearms to further his criminal activities. Whether or not the crimes for which Williams was indicted involved particular firearms transacted with Leonardo is irrelevant. At least some of Leonardo’s criminal conduct was of the same type as at least some of the criminal conduct for which Williams was prosecuted, and the fact that they engaged in that criminal activity jointly provides the necessary link between their crimes. Conceding the actual conflict of interest, the parties only dispute whether this conflict led to a lapse of representation to entitle Williams to relief and whether Williams’ retention of Leonardo waived this actual conflict.
*106 i. Lapse in Representation
Once an actual conflict is established, a defendant “need not prove prejudice, but simply that a lapse in representation resulted from the conflict.”
United States v. Malpiedi,
The test is a strict one because a defendant has a right to an attorney who can make strategic and tactical choices free from any conflict of interest. An attorney who is prevented from pursuing a strategy or tactic because of the canons of ethics is hardly an objective judge of whether that strategy or tactic is sound trial practice. Counsel’s inability to make such a conflict-free decision is itself a lapse in representation.
Williams has demonstrated the requisite advеrsity in his attorney’s performance by showing that his conflicted counsel failed to make any significant effort to negotiate- a plea or cooperation agreement on his behalf. Williams claims that Leonardo never discussed the possibility of a plea bargain with him. He further claims that his conflicted counsel actively discouraged him from cooperating, even though many of Williams’ co-defendants made cooperation agreements in exchange for substantially reduced sentences. While Williams obviously has an incentive to take this position, even if we do not accept his representations at face value, the government offers but one instance of a very cursory plea discussion with Leonardo and that did not occur until December 22, 2000. This means that the government offers no evidence of any plea discussion or any attempt by Leonardo to engage in a plea discussion until approximately two years after Williams’ arrest and one week before Leonardo’s arrest. Given that the government knew on December 22, 2000 that Leonardo was about to be arrested, we cannot take seriously any plea discussion the government had with Leonardo at that time, as any agreement could surely have been challenged had it been consummated. Thus, we are left with no evidence that Williams’ conflicted counsel ever engaged in a legitimate effort to seek a plea bargain on Williams’ behalf. Moreover, it is clear that no plea discussion is alleged to have occurred during the critical months after Williams’ arrest when Williams asserts that he had valuable information that he could have offered the government concerning the location of Alvin Jackson, a co-defendant who had not yet been apprehended by law enforcement.
While seeking to make an agreement with the prosecution was surely a “plausible alternative defense strategy or tactiс,”
Levy,
The government argues that Williams has not demonstrated the requisite lapse in representation because it maintains that it never had and never would have offered Williams a plea agreement involving a sentence short of life imprisonment. It claims to have pursued such a hardline becаuse: (1) Williams was one of the largest cocaine suppliers in the Buffalo area; (2) it had a very strong case against Williams; and (3) Williams engaged in additional uncharged crimes.
The government’s argument fails for two reasons. First, Williams has demonstrated the requisite lapse in representation simply by showing that his attorney failed to make any significant effort at plea bargaining when circumstances dictated that he should have. The government’s ultimate response to plea efforts that were not attempted is irrelevant. To show a lapse in representation, defendants need not show “that the alternative strategy or tactic not adopted by a conflicted counsel was reasonable, that the lapse in representation affected the outcome of the trial, or even that, but for the conflict, counsel’s conduct of the trial would have been different.” Malpiedi,
Second, in any event, we cannot take the government’s hardline bargaining position аt face value. The government claims that it would not have consented to any sentence short of life imprisonment. Yet, in circumstances like this, it is the job of defense counsel to convince, or at least attempt to convince the government, why that position is unreasonable and not in the government’s best interests. In addition, if Williams had a zealous advocate, the government would have had more incentive to negotiate a plea agreement and might not have taken such a strong stance against plea bargaining in the first place. Furthermore, even if we accepted the government’s representation that it would not have consented to a sentence short of life imprisonment, it is also true that the government might have consented to a plea that involved just one count of conviction leading to life imprisonment, rather than the eight counts for which Williams ultimately was convicted and sentenced. Similarly, even if the government maintained its tоugh stance, the District Court might not have accepted the government’s recommendation as to sentencing were Williams to have pled guilty. Thus, Williams.has shown that his representation suffered from an actual conflict and that his attorney’s performance demonstrated a lapse in representation that was adverse to Williams’ interests.
ii. Waiver
“In most cases when a defendant is faced with a situation in which his attorney has an actual or potential conflict of interest, it is possible for him to waive his right to conflict-free counsel in order to retain the attorney of his choice.”
Schwarz,
The government argues that because Williams had knowledge of the underlying facts which led to the conflict at the time he retained Leonardo — namely, Williams had knowledge of the crimes they committed together — Williams waived the conflict when he elected nonetheless to hire Leonardo to represent him. Thus, the government attempts to distinguish Williams’ conflict from the conflict in Fulton on the sole ground that the defendant in Fulton did not know of the conflict at the time he hired defense counsel, whereas in this case, Williams was obviously aware of the crimes the pair previously committed. The District Court found this view persuasive stating, in its decision to deny Williams’ motion to dismiss the indictment, that:
Where, as here, the defendant retains the services of [an] attorney with whom he is engaged in illegal activity, he cannot later claim that his Sixth Amendment rights were violated. It was the defendant, not the government, who created the conflict of interest in this case by retaining the services of an attorney whom he knew to be criminal. To permit the defendant to later accuse the government of failing to timely remedy a conflict that he himself manufactured would essentially reward the defendant for engaging in criminal activity with his attorney. Under these circumstances, the Court finds that Williams knowingly waived his right to conflict-free counsel.
Before considering whether, in fact, Williams waived the conflict of interest by retaining Leonardo, we note three prerequisite's to such a determination. First, in order to make a successful waiver argument, it must be the case that the conflict here was
waivable
at all.
See Schwarz,
Second, it is undisputed that the government and the Western District of New York had knowledge of the conflict long before Leonardo’s ultimate disqualification. Yet, Williams was never informed of the conflict by either the court or the government until the government’s disqualification motion on January 8, 2001. We have stated that a district court “is obligated to conduct an inquiry into a potential conflict of interest when ‘sufficiently- apprised of even the possibility’ that a conflict of interest may exist.”
United States v. O’Neil,
Lastly, as a final precondition to finding waiver, we would need to believe that the government has not precluded itself from making the waiver argument based on its submissions to the District Court. As part of its January 8, 2001 motion to disqualify Leonardo, the government took the position that Williams could not wаive the conflict of interest with Leonardo. The government’s affidavit in support of its motion states that this was not a “conflict[ ] of interest where a defendant may waive the conflict.” The government then cited
Fulton,
In this case, we need not resolve whether or not the conflict of interest was waivable, whether the proper waiver procedures were followed, or whether the government has waived the waiver argument because, in any event, we find that Williams did not waive the conflict of interest. It is undisputed that Williams was aware of at least some of Leonardo’s criminal activity. However, Williams did not necessarily know the extent of Leonardo’s criminal activities, nor did he know that Leonardo was the subject of a grand jury investigation. Thus, even Williams’ knowledge of the underlying facts concerning waiver was incomplete. Perhaps, more importantly, even if Williams knew the relevant facts concerning Leonardo’s criminal activity, there is no evidence that Williams knew how these facts translate into a conflict of interest. A defendant might believe that defense counsel’s status as a former criminal compatriot renders counsel especially trustworthy. In addition, on two occasions the government sought to disqualify Leonardo on other grounds, perhaps leaving Williams with the impression that his relationship with Leonardo was not an impediment to his representation of Williams. In any event, we have no evidence that Williams believed that Leonardo’s representation would suffer from an actual conflict of interest.
We are aware, of course, of the potential to abuse the system by hiring conflicted counsel in order to have an opportunity to contest the effectiveness of that counsel should a court or jury resolve matters unfavorably for a defendant. Implicit in such attempts to game the system, however, is an understanding that a defendant could challenge the effectiveness of counsel based on the conflict of interest. Any defendant attempting such a scheme is implicitly aware that the underlying facts
*110
constituting the conflict can translate into a judicially-recognized conflict of interest. Thus, if there were any evidence at all that Williams was seeking to exploit the conflict of interest rules by retaining conflicted counsel, we would treat the case quite differently, as we might have been able to infer the possibility that the defendant could translate the underlying facts constituting the conflict into knowledge of the сonflict itself.
Cf Bridges v. United States,
All of the key parties in the proceedings below, including the government, the court, the defendant’s conflicted attorney, and the defendant himself were aware that it was, at minimum, quite likely that Leonardo had engaged in criminal activity related to firearms. Yet, the government and the District Court would blame Williams, the least legally sophisticated party, for failing to take action based on the conflict. This concerns us because “[flederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards, of the profession and that legal proсeedings appear fair to all who observe them.”
Wheat,
Hi. Remedy
Having found that Williams’ pretrial representation was marred by a conflict of interest in violation of the Sixth Amendment, we now turn to the appropriate remedy. Ordering a new trial in this case would be inappropriate, as Leonardo’s actual conflict of interest did not affect the conduct of Williams’ trial. Nor would -a hew trial reheve in any way the constitutional error suffered by Williams— ineffective assistance of counsel during the pretrial stage and the possibility that cooperation purposely was not pursued.
It is clear that Williams suffered from a tangible violation of his Sixth Amendment right to counsel during prеtrial proceedings. Even though a defendant does not have a right to a plea agreement, we provide relief to defendants who suffer from constitutionally defective counsel during pretrial stages.
See Holloway v. Arkansas,
Our remedy in this case is similar to the remedy imposed in
Carmichael.
In that case, we - stated that “a finding of ineffective assistance requires a remedy specifically tailored to the constitutional error.”
In Carmichael, where a defendant’s delay in accepting a plea offer was the result of defense counsel’s ineffective assistance, and in which the delay resulted in a less favorable plea agreement, we held that the appropriate remedy was to resentence the defendant “to the terms [the defendant] would have received had he been given proper legal advice.” Id. at 227. We cautioned, however, that a lesser sentence was not inevitable as the District Court on remand would have to inquire, at an appropriate hearing, as to the terms of the agreement the defendant could have received, whether the defendant would in fact have accepted the plea, and even whether the district court would have followed the sentencing recommendations contained in the agreement. See id.
We similarly hold that Williams is entitled to be resentenced “to the terms [he] would have received had he been given prоper legal advice.” Id. We acknowledge that this will be a difficult task, and the District Court ought to gather any evidence needed to reconstruct the likely result Williams would have obtained had he not had conflicted counsel. For example, the court might hear evidence as to the relative culpability of co-defendants who did enter into plea agreements as well as evidence concerning Williams’ assertion that he had knowledge that would have been valuable to the government, especially knowledge of the whereabouts of a missing co-defendant.
As in Carmichael, we caution that it is possible that Williams’ sentence ought not be reduced at resentencing. Should the court determine that even if Williams had constitutionally effective counsel after his arrest, the same sentence would have eventuated, then the court may, subject to Williams’ opportunity to appeal, impose the same sentence that he, in fact, received after his jury conviction. At a minimum, however, Williams has earned the right to be resentenced in a manner that addresses the constitutionally defective representation that he had for two years.
II. THE GOVERNMENT’S CONDUCT WAS NOT SO OUTRAGEOUS AS TO WARRANT DISMISSAL OF THE INDICTMENT
We now briefly turn to Williams’ remaining arguments. Williams asserts that the indictment against him should be dismissed because the “government and the court made a mockery of [Williams’ constitutional] rights when they allowed Williams to be represented by attorney Leonardo, who they knew suffered from an actual conflict of interest, that pitted [Williams’ attorney’s] own self-interest against that of his client, for nearly two years, and which was akin to no representation at all.” Appellant’s Opening Brief at 9.
A defendant has a due process defense to prosecution where (1) the government violates a protected right of the defendant and (2) the government’s conduct is sufficiently outrageous.
See United States v. Cuervelo,
Even though Williams’ right to conflict-free counsel was violated during pretrial proceedings, the government’s conduct does not rise to the necessary level of outrage to invoke this defense. Although the government had allegations that Leonardo engaged in criminal conduct for almost two years, it did try to work with the Western District of New York to balance its obligation to notify the court of a conflict of interest affecting Williams and to effectivеly pursue its investigation of Leonardo.
See United States v. Morrison,
Even if the government failed to find the perfect balance in this case, conduct sufficiently outrageous to implicate this due process defense involves prosecutorial and investigatory activities far more egregious than what was observed here.
See, e.g., Cuervelo,
Ill WILLIAMS’ RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED
Williams claims that the delay of nearly three years from his January 6, 1999 indictment to the commencement of his trial on November 26, 2001 violated his Sixth Amendment right to a speedy trial. He argues that the government intentionally delayed seeking a superseding indictment until fifteen months after the filing of the original indictment and further delayed trial by permitting proceedings to go on for аpproximately two years without seeking disqualification of Leonardo on the most obvious grounds.
To determine whether pre-trial delay represents a constitutional violation, we weigh the factors elucidated by the Supreme Court in
Barker v. Wingo,
We find that the District Court did not abuse its discretion when it weighed the Barko factors and determined that Williams’ right to a speedy trial was not violated. The District Court identified several factors which weighed against a finding of unconstitutional delay. Most importantly, the District Court found that Williams failed to articulate prejudice from the delay with any specificity, only to say that ‘Witnesses have disappeared; recollections are dim; and the investigation is impaired.” Williams has not identified anything more specific on appeal. The court was also skeptical of Williams’ speedy trial claim given that his conflict-free counsel had sought its own adjournment of trial and waited seven months from taking on the case before asserting Williams’ speedy trial rights. In addition, the court noted the extraordinary complexity of the case and that much of the delay before trial was justifiably required for investigation associated with the superseding indictment and for time spent on discovery and pre-trial motions. While we have already expressed our reservations as to the government’s failure to disclose earlier Leonardo’s actual conflict of interest, we do not find that the delay in this case rises to such a level as to violate Williams’ right to a speedy trial.
TV. WE DO NOT REACH WILLIAMS’ SENTENCING ARGUMENT
Lastly, Williams аrgues that the District Court misapplied the sentencing guidelines and relevant Supreme Court precedent when it imposed a life sentence for his conviction of engaging in a continuing criminal enterprise in violation of 21 U.S.C. §§ 848(a) and (b). Because we remand for resentencing, we need not reach this issue. 2
CONCLUSION
For the reasons stated, we hereby REMAND this case for resentencing in accordance with this opinion.
Notes
. As no transcript was made of the conversation, most of what is known about these meetings comes from Denise O'Donnell’s affidavit, as well as an affidavit from Assistant United States Attorney Joseph M. Guerra, III. Williams argues that he has been disadvantaged by the failure to maintain a contemporaneous record of these ex parte meetings.
. As a final matter, the government moved this Court to strike portions of Williams’ appendix pursuant to Federal Rule of Appellate Procedure 30(a)(1). On May 8, 2003, that motion was denied without prejudice to renewal at oral argument. As the government did not renew this motion at oral argument, we do not address it further.