United States v. Elic L. Gilliam, United States of America v. Roy Lee Gilliam

23, May indicted on The Gilliams were HAMILTON, and Before MURNAGHAN money laundering 1990 on various and LEGG, Judges, and United States Circuit namely, (1) drug trafficking charges, Maryland, of Judge for the District District spiracy attempt and to conduct conduct by designation. sitting affecting financial transactions interstate in (money laundering), commerce violation OPINION 371; (2) money laundering, 18 U.S.C. of § MURNAGHAN, Judge: Circuit 18 U.S.C. in violation of §§ appeal brought by Elic The instant was 1956(a)(l)(A)(i), (ii) (B)(i) and and 31 U.S.C. (“Elic”) Roy Lee and son Gil- Gilliam 5322(b); (3) 5324(3) conspiracy and §§ Lee”) (collectively, the (“Roy “Gil- liam marijuana, intent to in with distribute viola- liams”) jury were in a trial who convicted 846; (4) possession 21 tion of with U.S.C. § money laundering, counts multiple of of in marijuana, intent to violation distribute and intent to distribute mari- conspiracy, (5) 841(a)(1); possession 21 and of U.S.C. § has juana and cocaine. cocaine, with intent to in viola- distribute had of coun- that he ineffective assistance 841(a)(1). In of 21 indict- tion U.S.C. the § repre- counsel trial because the same sel at ment, grand jury charged the that the Gil- father, him and his who a sented both marijuana in liams had been involved culti- Both also appellants co-defendant. through and from 1981 vation distribution Oregon search warrants argued that February marijuana of on a growing insufficient, offenses were Oregon transporting it to Vir- farm and regarding money charged in the indictment ginia for indictment also distribution. vague, laundering unconstitutionally spent alleged that the in ex- Gilliams properly to the Government failed es- of one dollars over cess million and above custody chain of of certain fo- tablish legitimate of their sources income. evidence, pos- of that the evidence rensic marijuana cocaine was insuf- session of and a The indictments were result of ficient, which and that none of the events by a search of farm owned Gilliams occurred in the Western led to conviction Virginia, simultaneous with search of Virginia the trial of where District Oregon. Virginia farm On Elic’s held. marijuana, recovered farm officers heater, triple being dried which was that an actual con- Because we conclude scales, large drying lights, blue trash beam possibly developed at trial due to quite flict cans, grams eleven cocaine. Roy Lee joint representation of approximately officers also recovered Elic, district court we conclude that $117,000 places cash in various on the failing to conduct a Federal Rule erred in farm, from a 44(c) hearing.1 some which was recovered Ac- Procedure Criminal truck, locked truck. Also inside locked cordingly, we remand for such a containing a notebook Finding case. officers located be conducted Lee’s right to effec- provides: vise each defendant of rule 1. That counsel, including separate tive assistance of two or more defendants Whenever appears representation. is Unless it that there charged joined jointly ... or have been good is cause no conflict interest to believe and are same trial ... arise, likely shall take such mea- assigned ... court retained protect may appropriate as each inquire respect sures be promptly shall right personally to counsel. representation ad- defendant’s and shall

1053 Buds,” pur- “Big as and other flict terms such exists.” United Akinseye, States v. portedly marijuana-related (4th terms. Cir.1986), cert. de nied, Likewise, Oregon farm, officers (1987) L.Ed.2d (citing States of a recently found evidence harvested 1013, 1018(4th Ramsey, Cir.1981), field, grown determined to have 3,000 approximately marijuana plants, blue (1982)). Thus, 71 L.Ed.2d 874 “if the court containing mari- pounds trash cans aware, aware, or should be particu of a scales, juana,2 gloves beam triple working lar it should conduct sponte a sua smelled tarps marijuana, like Moreover, into its existence.” Id. la- packages marijuana various seeds although a defendant right waive his XXX,” Big belled “O Buds Good “V 3 representation, to conflict-free Holloway v. Stock,” and Seed “V Good Stock.” Arkansas, 475, 5, 435 483 n. 98 S.Ct. Roy represented counsel same both 5, 1173, 55 (1978), 1178 n. L.Ed.2d 426 such It undisputed Lee and Elic. is that waiver “knowing, must be intelligent, never conducted a as district court voluntary.” Akinseye, (cit 802 F.2d at 745 Rule of Rules required by the Federal ing States, 742, Brady v. United 397 U.S. Following eight of Procedure. Criminal an 25 747 L.Ed.2d trial, guilty day jury verdict was returned (1970)). against as to all counts the Gilliams. waiver, respect to With we held: have appeal instant followed. Rule 44 its notes type discuss the of II. waiver the district court should secure. The court must ad- personally A. Assistance Counsel Ineffective dress each defendant and inform him Turning to the issue inef potential representation hazards of counsel, 44(c), fective assistance Rule by attorney, right a single as well as his terms, categorial being preemptive cast in representation. separate turn, provides: defendants are free to ask the court two or more defendants have Whenever questions about nature and conse- charged jointly ... or have been quences representation: trial joined ... and are significantly, the seek Most court should by assigned retained or same response to elicit a narrative each from promptly inquire shall ... he has his defendant that been advised of respect right representation, he to effective that personally advise each defendant of shall attorney’s the details understands of his to the right effective assistance po- possible of interest and the conflict counsel, including separate representa- he perils tential of such a that appears it tion. Unless that there has discussed matter with his attor- good cause to believe no conflict of inter- ney and if he wishes with outside coun- arise, likely to take est is court shall sel, voluntarily he and that waives may appropriate such measures be protections. Sixth Amendment protect right each defendant’s to counsel. at Fed. Akinseye, (quoting 802 F.2d 745 added). held (Emphasis While we have Note). 44(c) Advisory R.Crim.P. Committee specific objection, that “in absence of a emphasized impor- repre- While we joint assume that the trial court conflict,” right represen- to conflict free tance of the present any not sentation does tation, we held the failure of is limited that statement the additional 44(c) is inquiry under Rule or rea- court to make language “unless court knows alone, not, require standing sufficient to sonably should know that a trial Oregon farm 3. at that such labels 2. The blue trash cans found on the Officers testified grade Virginia by drug to refer to the to those found on the used traffickers were identical marijuana. farm. 1054 not, provide and one who did was unable of a conviction. United States

reversal Cir.), (4th Arias, 1205 cert. effective assistance to both clients 678 F.2d situation, 74 denied, he has contended. (1982). require a Most circuits L.Ed.2d 173 appeared New counsel Lee object fails to defendant who sentencing orally advised the court of demonstrate, on representation at trial to which, he conflict of interest See, of interest. appeal, an actual conflict said, light had come Llano, Crespo de 838 States v. e.g., United it with his mother. The dis- had discussed (9th Cir.1987); United F.2d 1008 hearing, trict did not hold a but ruled court (5t Holley, States (i) of counsel the ineffective assistance

h Cir.1987), (ii) argument had been made too late and But see 99 L.Ed.2d S.Ct. judge court did not witness Davenport, Ex. Hart v. States Bel. during anything trial that would Cir.1973) (3rd (holding that either a conflict or ineffective assistance of shows no Court where record counsel. concerning joint representation, conflicts court should We hold that district pre should be prejudice and non-waiver 44(c)hearing when the issue of have held sumed). raised, at the last a conflict was albeit case, that In the instant we find minute, sentencing. The lower court conflict, alleged actual Roy Lee has an evidentiary hearing an to should have held 44(c)hearing. Cuyler a Rule requiring See (i) there a conflict determine whether 335, 348, Sullivan, v. so, (ii) assistance and if whether it rendered 64 L.Ed.2d 333 Four Therefore, Roy we re- to Lee ineffective. trial, the days jury into the Government court to con- mand the case to the district Roy plea agreement Elic a offered Lee and 44(c) hearing.4 such a Rule duct to ten Elic would be sentenced wherein case, Roy By remanding Lee would be the we do not mean years imprisonment and years. The terms of reached the sentenced to seven to dictate the result to be the two would face imprisonment that it exercises its discretion lower court when have they accepted agreement the would matters. There exists substantial spend Elic the probably meant that would evidence, although the district court not on Lee, jail; Roy while rest of his life (i) record, the to that either man, not. relatively young would Accord cloth, out of whole flict was manufactured Lee, vehemently opposed ing Roy to Elic (ii) remedy to redress the there exists no contending plea agreement, accepting the plea bargain the offered to conflict because days final spend not to his that he did want longer Roy during Lee trial is no available. insisting they could beat the jail suggestion that the There is also no charges together. ability of counsel to impaired conflict the jury. The conflict present case to the that if appeal, Roy Lee has contended On allegedly im- as it only is involved insofar attorney he his own would have he had Mr. Rasnick to advise paired ability taking plea arrange- talked into merits of the independently of the attorney, Roy Lee The trial when faced with ment. accept arrangement.5 plea plea who wished to one client correctly from Assuming up govern- lawyer might constrained until the time of the be 4. advising both clients. properly agreement plea there offer of the was no ment’s father, Elic, interest between conflict of Sullivan, 100 Cuyler 446 5. See Lee, son, Roy may developed there well have (1980) (holding L.Ed.2d 333 S.Ct. agreement. plea upon the conflict offer a violation of the establish that "in order by single Amendment, who raised no a defendant Sixth objection since, brought about conflict then that an actu- must demonstrate at trial deal, government probably accepted Lee adversely affected his law- al conflict of interest required, as a condition of the would yer’s performance”). father, testify against bargain, Rasnick, rep- During argument, Mr. who oral direct this situation of Elic. Roy Lee at trial and Elic Elic and resented both B.Insufficiency Search Warrants Ex- Road Malheur County, Oregon common- Oregon ecuted in ly referred to as the Weiser Annex bor- dered Buckhorn Road.” (Emphasis add- Next, the Gilliams have contended ed). such, As the warrant described the permitting that the district court erred in particularity farm with and was sufficient the introduction of evidence seized in Ore to avoid the risk of a search of the wrong gon because the search warrant for Elie’s property. Therefore, we conclude that the Oregon farm contained a defective bound warrant was sufficient support ary description in erroneously that it stated search and the evidence obtained from the property that the bordered the Snake Riv Oregon farm is not excludable that ba- property er. Because the did not border River, sis. the Snake the Gilliams claim that the search warrant was defective. C. Custody Chain Certain Forensic determining sufficiency de- Evidence searched, scription place key of a be The Gilliams also have that the place is “whether the searched be admitting district court erred in certain fo particularity described with sufficient rensic evidence obtained from Virginia executing enable the locate officer to search because the chain of evidence was identify premises ef- reasonable properly not upon established. Based fort, and whether there is reasonable record, evidence in the we find that probability premises might that another be government established a sufficient chain mistakenly searched.” United States custody. See United States v. Howard-

McCain, (8th Cir.1982). Arias, (4th Cir.), 365-66 case, In the instant the initial search warrant, search, providing an aerial (1982). L.Ed.2d 136 Accordingly, the dis following description: the contained refusing trict court did not err in to exclude parcel approximately A of land 45.5 acres upon evidence argu based the Gilliams’ containing dwelling, large one storage a ment that an insufficient custody chain of house, building, dilapidated a small a existed. outbuilding, being only smaller the farm Ripple

on the N.E. corner of Road and D. Vagueness Argu- Unconstitutional Buckhorn county, Road Malheur Ore- Respect ment Money With Laun- gon commonly referred to as the Weiser dering Statutes annex bordered Buckhorn Road. On cornfield, boundary a standing Next, the S.W. maintained the Gilliams have River, boundary on the S.E. the Snake on that the under money laundering statutes boundary standing the East and a corn- they which unconstitu were convicted are field on the North and N.W. boundaries. tionally are not vague in that the crimes certainty so that described with sufficient inaccuracy in only foregoing the de- ordinary persons what con can determine scription apparently is the fact that the Government, on duct is criminalized. farm at issue does not border the Snake However, hand, the the statutes argues the search other River. warrant de- vague, the only vague the farm as “the farm on the are not that even scribes Ripple N.E. corner of Road and Buckhorn evidence Government introduced sufficient questioned appeal, reject their chances about the conflict. decided deal and take the panel explained nothing He told the that he to his clients jury. with the Rasnick saw Mr. possible at the outset of the case the conflicts prevailed upon Gilliam that the elder attorney represents involved when an two de- gov- reluctantly, younger reject, the the albeit case, a fendants in criminal and that elect- plea bargain. ernment’s (he proceed with ed to him retained rather that his father first contend did not court-appointed). than plea bargain accepting the talked him out During strongly Mr. Rasnick recom- fact, sentencing. shortly until before they accept both clients that mended to argument not raised in the conflict was about bargain, "mighty characterized as a which he sentencing. day of until the court Elic, said, fine deal.” Both Lee and he son, (7th Cir.1991) under- 838-39 to demonstrate that the Gilliams Sanders, money laundering prohibitions. (citing stood the United States (10th Cir.1991)). Therefore, issue, 18 U.S.C. The statutes prove specific must intent to Government 1956(a)(l)(B)(i) (ii) provide, inter §§ structure a transaction so as to conceal the alia, that: proceeds. Requir nature of the true Id. (a)(1) Whoever, knowing proper- that the specific ing proof intent satisfies the rep- ty involved in a financial transaction vagueness element of the void for first proceeds of some form resents test, in that the convicted must had attempts activity, conducts unlawful proscribed notice that the conduct is financial transaction to conduct such a specific required intent order proceeds fact involves Jackson, money laundering for the crime. activity— specified unlawful Boyce 935 F.2d at 839. Motor See also (A)(i) promote intent to with the Lines, States, Inc. v. activi- specified unlawful carrying on 329, 331, (1952); 96 L.Ed. 367 ty; or Flipside, Estates Es Hoffman Hoffman tates, Inc., 489, 499, (B) is de- knowing that the transaction 71 L.Ed.2d 362 part—in signed in whole or case, in- In the instant the Government nature, (i) disguise the to conceal or showing troduced evidence Gil- source, location, ownership, liams intended to structure their transac- proceeds speci- or the control of the require- reporting tions so as to avoid the activity; or fied unlawful and so as to hide the fact that the ments (ii) reporting re- to avoid a transaction being drug proceeds. The funds used were law, federal quirement under state or introduced evidence that the Government money laundering in violation guilty spent had one million dollars over Gilliams evaluating a criminal of the statute. any legitimate and above sums of income. vagueness under the void for doc- statute Special Agent, An Internal Revenue Tom trine, Supreme has established a Court Semesky, testified Gilliams test, penal part stating first that two “[a] deposits their to avoid re- structured bank must define the criminal offense statute requirements in- porting for transactions ordinary that with sufficient definiteness $10,000. volving Semesky also testified pro- understand what conduct is people can that the Gilliams had structured a land Lawson, 461 U.S. Kolender v. hibited.” County in in to accu- purchase Scott order 1855, 1858, 352, 357, L.Ed.2d S.Ct. capital purchase. mulate for the Testimo- (1983). Second, the criminal offense proper- ny purchasing indicated that in “in a manner that does must be described $18,000 in ty, brought in cash Gilliams discriminatory encourage arbitrary and not check, requesting separate three re- and a Moreover, “vagueness enforcement.” Id. $9,000 ceipts, two for each and another threatening statutes not First challenges to check, presumably report- to avoid light are examined in Amendment interests requirements. ing hand; the stat- facts of the case of the as-applied judged on an basis.” ute the tes- The Government also introduced Cartwright, 486 U.S. Maynard v. the Farm- timony of Katherine Miller with 1853, 1857-58, 100 L.Ed.2d 372 testified er’s Home Administration who payments their loan that the Gilliams made Roy Lee that had informed cash and she Gilliams, in conclude applied to the we As $10,000she brought that if he in more than vague. prove a is not To that the statute report it to the IRS. She 1956(a)(l)(B)(i) (ii), would have to or section case under Roy informing Lee of upon that prove that testified must government “the fact, the effect that replied he one or that designed was to conceal transaction Furthermore, testimo- that. banks also do of the enumerated attributes another First American employees at ny of involved.” States Jack- proceeds Furthermore, indicated at trial Kingsport, Tennessee Elic’s ex-wife testi- in Bank reporting re- cultivating marijuana discussed the fied that he had been they had that A teller at since 1981. with the Gilliams. Claude Sloan testified that he quirement Roy Lee weighing that when had seen bagging bank testified $9,000 deposit, in she brought marijuana Ricky in cash Sloan testified that he report him that she would weighed marijuana informed Lee in amount, thought the whereupon he said he respect Elic’s basement. With to the co- Then, $10,000. he reporting caine, amount was executing the officer the search tes- deposits approxi- in of bringing grams started tified that he located the 11.25 $5,000 $6,000 again and the teller mately in a jar cocaine mason which was situated required him that she was to re- plastic tarp informed under side Elic’s $5,000 port Following transactions. that driveway, approximately 30 feet from the $4,500 conversation, bring in began Furthermore, he marijuana house. residue foregoing testimony is less in cash. The along found with the cocaine. Under circumstances, that the Gil- more than sufficient evidence viewing such the evidence reporting require- light liams understood govern- in the most favorable to the deposits ment, to structure their ments how we determine that the evidence is Therefore, ap- reporting. support avoid sufficient Gilliams’ convic- Gilliams, is not plied to the the statute possession with intent to tions distribute respect to the first issue be- vague with marijuana and cocaine. the evidence was sufficient to show

cause Sufficiency F. that Money requisite possessed that the Gilliams of Proof Laundering Crimes intent, Occurred Vir- implicitly they confirms that ginia proscribed. of what conduct was had notice Finally, the Gilliams have contended issue, Turning wheth to the second there was no evidence that of sufficiently defined so as er the statute is in the fenses were committed Common enforcement, discretionary to circumscribe Virginia or in the Dis wealth of Western the numerous and de we conclude argued Virginia. trict of The Gilliams have used in the tailed definitions of the terms Tennessee, they that since banked sufficiently cur money laundering statute marijuana occurred since cultivation the discretion of law enforcement offi

tails Oregon, no evidence links them with Jackson, cers. 935 F.2d at 839. crime in the commission of a Common Therefore, argue that venue Sufficiency E. the Evidence wealth. District of improper in the Western- Next, the Gilliams have Virginia. the Government failed to establish either possession drugs It is clear that an offense committed actual or constructive may prosecuted possession more than one district be necessary for a conviction such offense was be any We review the in district that with intent to distribute. continued, completed. 18 U.S.C. sufficiency light gun, the evidence in the most 3237(a). Furthermore, conspiracy may a favorable Government. Glasser § States, 60, 80, in prosecuted in district which 62 S.Ct. be (1942). or in which an act agreement was formed 86 L.Ed. 680 conspiracy com in furtherance of the was clearly enough evidence to There was Lewis, 676 F.2d mitted. United States v. possession constructive establish Cir.), (11th search was executed on drugs. When the 313, 74 L.Ed.2d 291 occupied by the property owned and case, the evidence was suffi In the instant Gilliams, marijuana variety found in a Dis support in the Western cient to venue found, triple scales were places, beam Virginia. trict of and a lights, large sums of cash drying Virgi- located in farm was writing discussing “Big The Gilliams’ with notebook recovered therefrom nia and evidence was marijuana-related terms. Buds” and other nothing traf- convicted. Rasnic saw the Gilliams were indicated that money- pressured Roy rejecting that Elic Lee into drugs. respect to the ficking With convictions, plea agreement at trial in- which he had been of- laundering evidence Lee, sentencing, Roy repre- now purchased fered. At dicated that the Gilliams counsel, County by structuring the sented for the first property in new Scott requirements, perfor- that his chosen trial counsel’s reporting time capital to avoid the objective money laundering stat- mance fell below an standard of in violation of the Furthermore, indicated because an actual conflict the evidence reasonableness utes. pay- government numerous land of interest arose when the made Gilliams Virginia plea support of this variety made offer. ments in cash on argument, Roy points apparent made to his payments were properties, which drugs. accept plea agreement trafficking willingness money earned from against accepting evi- Elic’s foregoing amounts to sufficient vehemence agreement The district plea with the Com- tendered him. linking dence the Gilliams (1) held that the ineffective assis- purposes of venue. court monwealth argument of counsel raised too tance III. (2) nothing that late and it was aware of at trial which demonstrated a con- occurred up, sum we remand to To majority flict of interest. Because a Federal Rule of Criminal court to conduct reaches the untenable conclusion that the 44(c) hearing to determine Procedure court should have conducted a Rule district deprived Roy Lee was of the effec- whether 44(c) hearing sentencing, respectfully I of counsel because of tive assistance dissent. of himself and Elic. joint representation opin- respects, the district court’s all other majority opinion begins, where it

ion is affirmed. should, 44(c). It with Fed.R.Crim.Proc. provides: IN AND REMANDED REVERSED PART. AND AFFIRMED IN PART two or more defendants have Whenever repre- jointly charged ... and are HAMILTON, concurring Judge, Circuit counsel, by the same ... sented part: part dissenting inquire respect promptly shall opinion per- in all join Judge Mur.naghan’s I and shall II.A. defendant of the sonally Part advise each but counsel, right to effective assistance of son, Lee, father and Elic including separate representation. Un- the same together tried appears good that there is cause to less it counsel, Rasnic, who faithful- Thomas trial likely no conflict interest believe perils ly instructed the defendants as to arise, the court shall take such measures court representation. The district appropriate protect each be 44(c)hearing. Dur- conduct a Rule did not right to counsel. defendant’s govern- day fourth ing the blush, appear Rule agree- At it would first offered the defendants ment where defen accept requires per se reversal Roy Lee would sev- ments which no eviden- jointly represented and Elic ten. Rasn- dants are imprisonment and years en held, have declined tiary hearing is but we that each de- vehemently recommended ic adopt approach. See United which to such an accept plea agreement, fendant 1202, (4th Arias, 1205 678 F.2d “mighty fine deal.” States v. as a he characterized 910, denied, Cir.), they cert. 459 U.S. declined because The defendants There, (1982). not 218, we anything. 74 L.Ed.2d 173 they guilty of were not claimed 44(c)hearing did Rule of a guilt, the defen- ed the omission professed neither Because itself, not, necessitate a reversal interest with in and of no conflict of perceived dants unequivocal apparent the Rule’s despite and did not raise representation their the Rule’s relied on Id. We language. court. Both de- the issue with Notes, “The failure which state: Advisory but were ably represented, fendants

1059 44(c) particular in a case to conduct a rule The record evidence demonstrates that not, alone, standing necessi- Roy would Lee and Elic were not inclined to ac- jointly tate the reversal of a conviction of a cept plea they thought they represented defendant.” rap.” addition, could “beat the In argument conceded that when he dis- Tatum, In we United States v. observed government’s cussed the plea offers with implicated sixth amendment is “[t]he appellants, they perceived no conflict be- only representation when the of counsel is any cause denied wrongdoing. No adversely affected an actual conflict.” conflict of interest arose because counsel 370, (4th Cir.1991). F.2d 943 375 Numer strongly fervently recommended that ous circuits held that in the absence appellants accept plea agree- both specific objection joint representa of a to noted, ments. As trial counsel tion, it was “a the defendant must demonstrate an mighty fine deal.” What See, patently is clear e.g., actual conflict. United States v. perceived is that Lee Llano, (9th a conflict when it Crespo de 838 F.2d 1006 Cir. posh to do 1987); so—after his conviction Holley, United States v. 826 F.2d facing (5th Cir.1987), denied, substantially when a sentence 331 cert. 1222, years excess of the seven 108 99 L.Ed.2d 422 he had been S.Ct. Here, Roy objection offered. Lee’s Akinseye, In 802 F.2d relates United States (4th Cir.1986), denied, solely to the sentence he cert. received and not any to 96 L.Ed.2d 678 dissatisfaction with his chosen coun- (1987), performance sel’s noted the absence of a at trial. we “[i]n specific objection, the trial court as Ramsey, conflict arose sume that does not inability from trial counsel’s zealously to conflict, present any unless effectively present each of the three reasonably or that a knows should know jointly-represented theory defendant’s particular (citing conflict exists.” defense. The charged defendants were (4th Ramsey, States v. conspiracy import marijuana, Cir.1981), 102 spiracy to distribute cocaine and distribu- (1982)). S.Ct. 71 L.Ed.2d 874 Defendants, tion Ramsey of cocaine. Lee Thus, spe- Wray, any and Sharon denied where a defendant makes no involvement Defendant, drug dealings. objection joint representation, cific our with illicit Zed Ramsey, circuit will for failure contended that while he had con- disturb conviction coconspirators versations with unindicted conduct Rule two (1) regarding drug smuggling, these conversa- distinct situations: where an actual con- (2) hoax in their present flict is tions were a order obtain where the district in financing assistance his real estate de- court knew or should have known that a velopments. holding Id. at 1015-17. particular conflict existed. appellants that the showed neither an actu- alternative, Roy the first Under al conflict of interest nor that district must show that an actual conflict existed. judge possi- should have been aware this, To demonstrate the defendant “must bility of some we noted: ‘plausible show that there was some alter “Viewing perspec- these theories from strategy defense or tactic’ that native completed it clear that tive of a is might pursued, an alterna [or] nothing inherently there is inconsistent strategy inherently in con tive that ‘was theories], that a about defense [the not undertaken due to the flict with or ” zealously competent attorney trial could attorney’s loyalties other or interests.’ effectively present each of the theories 15, 17 Cunningham, Guaraldi jury.” to a Id. at 1019. (1st Cir.1987) (quoting v. Fa United States analogous Ramsey. There (1st Cir.1985))(fur Our case is F.2d hey, 769 omitted). nothing intrinsically inconsistent with Roy Lee claims ther citations they both that, appellants’ defense representation, in the of dual absence theories— wrongdo- general denial of consist of a accepted seven-year he would have addition, nothing incon- ing. there was simply The record belies this asser offer. once the appellants’ interests sistent tion. government plea agreements. offered the cludes that the district court should have argue separate one could coun- conducted an evidentiary hearing While when Roy Roy alleged bargained sel for Lee could have for a raised the conflict of inter- sentencing despite est at Roy “sweeter deal” in return for the fact that Lee’s Elic, alleged testimony against conflict occurred at trial and this is not a rational not at sentencing. First, assessment the circumstances. Roy categorically reject- Lee and Elic both majority’s The novel on insistence a Rule plea agreements inception ed the at the 44(c)hearing sentencing is misconceived. Second, despite Rasnic’s recommendation. placing The cornerstone of this burden on unequivocally Lee and Elic denied the district court is to ensure that the trial Third, drugs. illicit involvement with reli- continues without conflicts of interest. testimony misplaced ance on Lee’s is 44(c) Advisory Notes to Rule state light government of the fact that 44(c) “the mere inquiry fact that a rule was thus, plea, also offered Elic a his testi- conducted does not relieve the court of all mony unnecessary. Finally responsibility regard —this this thereafter. repeating strongly

bears recom- obligation placed upon —Rasnic acceptance mended of the offers. one, continuing rule is a and thus in a Thus, obligation Rasnic fulfilled his of zeal- particular inquiry case further be nec- ously effectively representing essary aon later occasion because new clients. developments suggesting potential a con- flict of In Akinseye, interest.” where the simply par This case is not on with cases alleged prejudice arose one co-de- in which an actual conflict was found. For fendant took the stand and the other did example, this is neither a case where de- not, we noted that testifying once the de- fense counsel failed to cross-examine a practice fendant took the stand “the better prosecution testimony witness whose would have been for the trial court to con- material, nor one failed where counsel inquiry duct a further rule 44 when Akin- presentation arguably resist the admissi- and, seye necessary, took the stand se- evidence. ble See Glasser v. United waiver,” cure a further 802 F.2d at 745 States, 60, 72-75, (footnote omitted), although previ- the one 465-67, addition, 86 L.Ed. 680 ously secured was sufficient to withstand jointly- this case is not one which a appeal. attack on defendant had a stake See, proceeding. outcome of the e.g., throughout The common thread au- these Hoff- Leeke, (4th Cir.1990) man v. application thorities and its here is that the (defendant’s negotiated trial counsel a co- inquiry district court’s burden of does not operation agreement for defendant’s cocon- sentencing alleged arise at where the con- spirator, coconspirator under which became nothing flict arose at there was at the defendant). against witness These cases alleged time the conflict of interest arose to profoundly involve severe conflicts of inter- suggest the district court knew or opposed est as to the non-existent conflict particular could have known that a conflict currently existed, interest before us. Under the longer and the conflict no exists. circumstances, Rather, (1) an actual conflict did not duty inquire its arises where: Consequently, exist. under the first alter- suggest particular circumstances that a native, exists, (2) no remand is warranted. specific conflict of ob- interest a jection noted to the places The second alternative a burden arises, (3) alleged at the time conflict inquire into the court to specific representa- objection a potential existence of a conflict of interest tion is noted at a time where when the district court “knows or reason to infect the conflict of interest continues ably particular should know that a conflict pending proceeding. Ramsey, exists.” 661 F.2d at 1019. “If aware, aware, of question, nothing the court is or should be there is in the Without it should conduct sua the district court record to possibili- sponte into its existence.” Akin knew or should have known ty particular conflict interest ex- seye, majority 802 F.2d at 744. The that a government poses, isted at the time the appears offered adopt per se rule re plea agreements. quiring The district court reversal in the absence of a Rule tangentially appraised was not 44(c) even hearing conclusion we have cate —a plea negotiations. Fed.R.Crim.Proc. gorically Arias, rejected. 678 F.2d at 1205. Cf. 11(e)(1)(C)(district partici- court shall not In summary, glean I resounding one thing addition, pate plea negotiations). from this record—unlike strug Stewart’s specific objection there was no at the time gle Glasser, “struggle Rasnic’s to serve alleged conflict of interest Fi- arose. seriously two masters be doubted.” [can] nally, objection was raised at a time Glasser, 315 U.S. at 62 S.Ct. at 467. where the conflict of interest did reasons, For these I would affirm the con ongoing proceeding, not infect the sentenc- victions and sentences of both defendants.* ing,

separate sentencing counsel at and the trial already concluded with the offer longer

no available. essence, majority’s approach, America, UNITED STATES of sentencing hearing turns the into round Plaintiff-Appellee, This, proceeding. one of a 2255 habeas I § opine only create an unnecessary delay will v. already in an complicated sentencing hear- ELLIS, Tree, David a/k/a ing. unnecessary This interference with Defendant-Appellant. sentencing certainly purpose neither the America, 44(c) UNITED STATES of encompassed of Rule nor in the man- Plaintiff-Appellee, judge date that a trial make further judge if reasonably knew or should v. known that a conflict of AGO, Heaven, Bernadell MAN a/k/a Moreover, sug- interest existed. I would Defendant-Appellant. gest that when this issue is raised so belat- edly, it is left to a proceeding best habeas America, UNITED STATES of hearing rather than an evidentiary at sen- Plaintiff-Appellee, Tatum, tencing. (typically, 943 F.2d at 379 v. competency of counsel is best left within JOHNSON, Wayne Defendant-Appellant. province review). of collateral America, UNITED STATES I harbor additional cause for concern be- Plaintiff-Appellant, I suspect majority’s ap- cause proach will instill a wait-and-see attitude jointly-represented Jointly- defendants. JOHNSON, Wayne Defendant-Appellee. represented defendants who did not receive 91-5620, 91-5665, Nos. 91- 44(c) evidentiary a Rule hearing, or a fur- 5709 and 91-5718. required, ther when will now be go inclined to to trial and await the out- Appeals, United States Court of convicted, jury come of the verdict. If Fourth Circuit. jointly-represented conjure defendants can Argued June 1992. tale, up suspect an illustrious similar I Sept. Decided 1992. us, why they the one before as to As Amended Nov. 1992. deprived counsel, of effective assistance of necessitating hearing. a Rule majority opinion, though

I am afraid the result,

disavowing practical pur this for all * (1978). Roy repeatedly Even I strained to find conflict of interest L.Ed.2d 426 Lee was here, sufficiently developed the record is to con- appraised by perils right clude that Lee waived his to conflict- attempt representation, to "beat the but chose to Arkansas, representation. Holloway free choice, rap” Mr. Rasnic. with his counsel of 483 n. 1178 n.

Case Details

Case Name: United States v. Elic L. Gilliam, United States of America v. Roy Lee Gilliam

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 17, 1992

Citation: 975 F.2d 1050

Docket Number: 91-5862, 91-5864

Court Abbreviation: 4th Cir.