*1 115 Thus, possession third-degree of cocaine in only discretion, see, reviewed for abuse of 220.16(1) § e.g., Khalil, violation of is a drug 111, serious United States v. 214 F.3d (2d Cir.), denied, 122 937, offense defined 18 U.S.C. cert. 531 U.S. 924(e)(2)(A)(ii). 326, § 121 (2000), We conclude that S.Ct. King’s L.Ed.2d 262 we see attempt conviction for to no abuse of commit that of- discretion here. possession fense “involv[ed]” of cocaine King challenges also the court’s refusal distribute; with intent and since that him grant departure downward from attempt subjected offense him to a maxi- the sentencing range prescribed by the prison years, mum term of 15 it is thus Guidelines, either by reducing his criminal drug likewise serious offense within the history category on theory that it was 924(e)(1). § meaning of We thus find no by overstated or reducing his offense level error the district court’s enhancement of on ground of “an imperfect duress 924(e)(1). § King’s sentence under 56). defense” (King appeal brief on We jurisdiction lack to entertain these chal King’s We note that suggestion that lenges because there is no indication in the Congress attempts does not view mere record that the сourt any committed error engage drug trafficking as “serious” is misapprehended law or power its further rebutted the fact in dealing See, depart. United States Aceve trafficking with narcotics in violation of do, 350, (2d Cir.), cert. de law, Congress federal prescribed pre- has nied, 1027, 531 U.S. 121 S.Ct. cisely punishment the same for attempts (2000). L.Ed.2d 514 completed as for offenses. See U.S.C. § (“Any person attempts who ... CONCLUSION commit offense defined in this sub- We have considered all of King’s conten- chapter subject penal- shall be to the same properly tions that are before us and have offense, prescribed ties as those for the found them to be without merit. The object commission of which was the of the judgment of the district court is affirmed. ”). Thus, attempt .... any attempt commit a substantive federal offense fall- 924(e)’s § within
ing definition of “serious
drug offense” drug is likewise a serious
offense. Congress’s We infer that use of expansive word “involving,” dealing offenses, with state was intended to have America, UNITED STATES of law, that same effect where state for an Appellee, attempt offense, to commit drug a serious presсribes a maximum prison term of 10 PEREZ, Guillermo Aliro Defendant- years or more. Appellant. B. Other Docket No. 02-1240. Contentions
King’s provide other contentions no Appeals, United States Court of basis for reversal. He challenges eviden Second Circuit. tiary court, rulings of the trial including Argued: Dec. 2002. the admission of photographs of the April Decided: crime scene prosecution, offered and the exclusion a videotape of the proffered by
crime scene the defense. evidentiary
The trial court’s rulings are *4 D’Alessandro, Special L. Assis-
Steven Attorney, Brooklyn, tant United States (Roslynn Mauskopf, R. United New York Attorney for the Eastern District of Navickas, York, Ann M. Assistant New Jo Attorney, Brooklyn, New United States York, brief), Appellee. for on Toribio, York, York, New New Victor Defendant-Appellant. RAGGI, KEARSE, SACK, and Before: Judges. Circuit KEARSE, Judge. Circuit ap- Defendant Guillermo Aliro Perez in peals judgment from a final entered East- States District Court for the following jury York ern District of New Korman, trial Edward R. before Chief him to file a Judge, convicting failing currency report, in violation of 31 U.S.C. 5316(b), making § a false statement to of 18 government, violation U.S.C. 1001(a)(2), principal- § him sentencing imprisonment, to be fol- ly to months’ supervised three-year lowed term of appeal, princi- release. On Perez contends (1) pally that he was denied effective attorney, assistance of counsel because his (a) employer, had also been his who (b) trial, $211,772 potential rep- witness he was carrying some lug- person resenting gage, another who had been secreted six aerosol cans. (2) offense; charged with a similar opinion principally This addresses Per- allowing that the trial court erred in Perez ez’s contention that he was denied the respect to be cross-examined with to that effective assistance of counsel because Pa- person’s other conduct. For the reasons gan represented both Perez and Almonte follow, we find no merit and because awas witness contentions, Perez’s and we affirm the at Perez’s trial. judgment.
A. The First Inquiry Cureio I. BACKGROUND In January 27, 2000, September On F. John Ken- wrote to the district court pointing out the (“JFK”),
nedy
Airport
International
similarity between the money smuggling
prepared
flight
to board a
to the
Almonte,
acts of Perez and
along with
Republic,
inspector
Dominican
a customs
Pagan’s representation
defendants,
of both
him
advised
of the federal requirement
and requested that the court conduct an
report
he file a
if he was about to
inquiry
pursuant
of Perez
to United States
*5
transport
from the United
Curcio,
(2d Cir.1982)
States mone- v.
The Court: lawyer at tunity to consult with no cost sult. you make that you before decision? youDo understand that? I don’t think The Defendant: I understand. The Defendant: that. now I have reason to do 9-10.) (Jan. 30 Tr. at (“I (Jan. 35-36; Tr. at 29 Tr. at see also As a result of these proceedings, my lawyer.”).) him continue
want magistrate judge found Perez’s “waiver of judge adjourned the hear- magistrate The have issues that been raised thus far ing give Perez additional time for reflec- knowing voluntary” and recommended tion. accepted the Curdo waiver be hearing The was resumed on the follow- Pagan continue as Perez’s attorney. judge briefly ing day. magistrate The (Jan. 11.) 30 Tr. at conflicts of which summarized previous day’s he had warned Perez in the B. The Government’s Motion To Dis- (See proceeding. Hearing Transcript, Jan- qualify Pagan (“Jan. 5.) Tr.”), In uary May addition, government moved to Pagan stated that the issues had Perez, disqualify Pagan as counsel for stat- been covered with Perez ing planned Pagan that it to call one very extensively and he’s also been told its witnesses at trial. The government same the members of the New Perez, arrest, argued upon York Association of Criminal De- State made statements to customs from officials Lawyers. I long fense So think which one could infer that Perez was trav- run, Mr. Perez has had more eling Pagan; government for wished to private attention from the Bar than the Pagan testify call as a rebuttal witness to normal defendant [sic ] would be before traveling that Perez in fact was not this Court. Pagan. argued also (Jan. 10.) Tr. Perez stated that he reason of Perez’s assistance to had thought about the court’s advice and representation respect of Almonte with instructions, rephrased poten- and he attempt reporta- to smuggle Almonte’s (See tial conflicts in his own words. Jan. *7 in currency ble out of the 5-9.) 30 Tr. at that the Perez stated cans, help Pagan’s testimony aerosol could him issues were clear to and that he want- likely to establish that Perez had knowl- Pagan attorney: ed to continue with as his edge that the Perez carried aerosol cans you give still want to The Couet: Do reportable currency. likewise contained up your right lawyer to have a different government’s The motion was referred to appointed represent you and continue Magistrate Judge report Gold for and rec- Pagan your attorney? with Mr. as ommendation. Yes, your Honor. The Defendant: motion, opposed contending Perez you understand that the The Do Court: this, by doing up that you’re giving your that he had not told customs officials conviction, challenge your traveling Pagan. Pagan argued if it he was for convicted, you’re testimony should be that his was not needed to es- obtained —if you for him as a complain will not be able to to this tablish that Perez worked your paralegal, stipulated. Court or the Court of for that could be Appeals Perez, argued conviction in that ca- Pagan should be set aside because also any Mr. no informa- Pagan competing pacity, interests and had had access sub- accompanying memorandum The charges against nature of to the tion as alia, stated, inter by Pagan mitted Almonte. Pagan, for although Perez had worked judge recommended magistrate The traveling on he was had stated that Perez motion disqualification government’s arrested, Perez nev- when he was business Pagan’s reasoned that He granted. traveling on business that he was er stated help government’s testimony could discovery, govern- Pagan; for Perez’s contacts by describing case Perez no evidenсe that produced ment had case; government if the the Almonte but traveling on business stated he was ever by facts other prove those were able to of, (Objections to for, Pagan. or on behalf as a means, usefully be called Pagan might Motion to Granting of Government’s govern- to counter witness Perez Counsel, July dated Disqualify judge thus magistrate proof. ment’s Objections to (“Objections” or “Perez’s potential witness for Pagan viewed 2-3.) Pagan also Disqualification”), at side. either knowledge that he had no stated objections magistrate to the Perez filed would wish to fact that recommendation, an af- submitting judge’s at trial: prove Pa- argument from from Perez and fidavit jury] [My] testimony grand [before stated, pertinent affidavit gan. Perez’s material unique nor revealed neither part, as follows: relationship between knowledge of Almonte, Mr. if such a 27th, Mr. Perez and I was September
2. On rather, my But relationship exist [sic ]. Re- en route to the Dominican arrested that: testimony revealed public. my office 1. Mr. Perez was not traveling on business 3. I was not I with Mr. Almonte’s when met I never his behalf and Pagan
Mr. or on family; any one. stated that to respect only duty with 2. Mr. Perez’s Pagan Ramon to be 4. I want Mr. pick up to the Almonte case was to me in this representing my lawyer Mr. Almonte’s fam- documents from matter. [sic ] ily my them to and delivered another I be able to hire 5. will not office; financial great create a lawyer and it will Mr. did not have access to 3. my family. hardship on me and prior Mr. Almonte’s file his ar- my Mr. disqualify 6. To rest; than as re- or since other [sic ] deny my right me is to hearings[;] the “Curcio” quired choice. my of counsel of 4. I did not know that Mr. Perez was I briefly Pagan. I for Mr. worked he leaving country or when was *8 never or had access to Mr. examined returning; and re- file other than as Andres Almonte’s [sic ] surprise I to learn that 5. was hearings quired “Curdo” traveling was on business Mr. Perez yet I to meet therein. have pleadings when he arrested. was Mr. Andres Almonte. 2-3.) that the (Objections Pagan at stated proceed to with Mr. willing I am by Pagan could employment fact of Perez’s attorney. Pagan my as stipulation “in the form of a be introduced (Affidavit Perez, (Objections my having testify.” to avoid to Aliro dated of Guillermo ¶¶ 2-8.) (“Perez AS.”) 4-5.) 13, July at 2001 objections request to wrote to the district court to hearing
After a on Perez’s new recommendation, hearing. The judge’s government Curcio ex- magistrate plained that that if Perez testified at trial that Korman concluded Judge Chief Pagan he had not looked in the disqualify bag motion to had not government’s cans, the government The court found that seen the would at- should be denied. tempt impeach him Pagan’s not need to with the statement government would proffer gov- the inferred state- he made at the session. The testimony to counter traveling that he on ernment conceded that it had ment other wit- testify proffer- had now nesses who could Perez’s Pagan, because Perez to behalf that he had saying an affidavit that he was session statement looked submitted (See bag that traveling Pagan. on behalf of there thus would be no 20, Hearing Transcript, July (“July Pagan purpose; need to call for that but 17.) Further, Tr.”), 5-7, being might at after stated that Perez planned testimony defense was wish to rebut the impеaching informed that Perez’s containing by calling Pagan the aerosol cans those witnesses bag that the as his else, witness, provoke which belonged Pagan’s to someone that Perez was own would disqualification as trial doing person bag gov- that a favor to take the counsel. The Republic, requested the Dominican and that Perez ernment thus a new Curcio in- bag, quiry the court con- opened had never would Pagan’s testimony cluded that also explore conflict of inter- (See necessary on other issue.
not be defendant, est with the and then deter- 10-12.) July at 20 Tr. pre- mine whether the defendant would preserve right fer to his to call Mr. disqualification The motion for was de- (thus Pagan as a witness at trial necessi- government’s nied. motion for re- On tating disqualification) forego his or to consideration, adhered to the district court him ability his to call as a witness [sic ] court that decision. The concluded (thus him retaining at trial as his trial Pagan provide the likelihood would counsel). any testimony help govern- that would (Letter insufficient to override Perez’s ment was from SAUSA D’Alessandro (See Korman, right to counsel of his choice. Hear- Judge dated October Chief 3.) Transcript, September ing (“Sept. 17-20.) Tr.”), October, inquiry a second Curcio Gold, by Magistrate Judge who conducted Inquiry Curcio
C. Second explained retaining Pagan to Perez that Thereafter, prevent him from call- Pagan participat- Perez and would testify as to what Perez had proffer govern- ing Pagan ed in a session with the session, proffer not said—at the ses- Perez stated said—or had During ment. that, that he again air- sion. Perez once stated prior attempting to board the Pagan wished to continue with as his attor- plane, bag he had fact looked inside the 1)4 Following a hours to given ney. and had seen the aero- recess he been question fur- permit Perez to consider the sol cans. That statement was direct ther, keep that he wished to Pagan’s representation to the Perez stated conflict call Pagan, to waive the July hearing court at the the de- *9 witness, to com- any right and to waive be that Perez had nevеr fense would the case on the plain about the outcome of bag. light looked inside the of Perez’s statement, was unavailable as -wit- Pagan basis that more recent trial, consti- Pagan’s performance that found Perez’s magistrate judge ness. The deficient, and that the court voluntar[]y” tutionally knowing and to be “waiver imposed a shorter sentence proceed should have that the case recommended Sentencing from the (Hearing departing downward Perez’s counsel. Pagan as reversal, 17.) 26, 2001, Finding no basis for at Pa- Guidelines. Transcript, October attorney tri- we affirm. through Perez’s gan remained al. Allegedly
A. The Unwaivable Conflicts Trial Testimony D. Perez’s this recent decision Invoking Court’s trial, government presented evi- At (2d Schwarz, F.3d 76 United States surrounding events Perez’s dence of the Cir.2002), right that his Perez contends defense, that In his Perez testified arrest. effective assistance of counsel was violated money in his he not know there was did (a) conflicts of interest because bag testified that con- luggage. He Almonte, as for both Perez and counsel money cans of had been taining the aerosol (b) witness at Perez’s only him a man he knew given to trial, not and that those conflicts were “Tony,” bag asked him to take the who reject waivable. We his contentions. Republic Tony’s sick the Dominican facts,” presented highly “unusual Schwarz that he had looked mother. Perez stated 96, easily analogized that are not id. cans; had seen aerosol but bag in the certainly other cases—and to this money there in them. he did not know below, for, in- as discussed Schwarz one— cross-examination, ques- Perez was On attorney’s a defense self-interest volved knowledge gained he had tioned about actually conflicted with his client’s eight days Almonte case in the of the severely permeate every as to interests so para- working his arrest while as a before aspect representation. of the attorney criminal who legal for a defense
represented Almonte. Perez testified that Multiple Representation and United he knew Almonte had been arrested for v. Schwarz $10,000 transрort attempting to more than provides The Sixth Amendment States but that he did out the United prosecutions, all criminal the ac “[i]n money not know Almonte had carried the enjoy right ... cused shall to have the in aerosol cans. Assistance of Counsel for his defense.” jury found on both guilty Const, U.S. amend. YI. This constitution counts of the indictment. He was sen- guarantee generally al ensures that an ac above, appeal tenced as indicated and this may represented by any attorney cused be followed. See, agree who will to take his case. Cunningham, 672 F.2d United States
II. DISCUSSION (2d Cir.1982). Although “[a] appeal, princi right On Perez contends defendant’s to counsel of his choice is one,” pally Pagan’s representation of both not an States v. absolute (2d Almonte, Ostrer, Cir.1979), Pagan’s potential Perez and we trial, consistently appearance recognized right as a witness at Perez’s have that the attorney un an created conflicts of interest that were of an accused who retains represented by He also that the ad is “‘a waivable. cоntends ”, referring prose of evidence to the of constitutional dimension’ United mission Wisniewski, deprived cution of Almonte him of a fair States v.
125 Cir.1973) may if “the interests of the defendant States v. Shein (quoting United (2d Cir.1969), attorney under inconsistent 337, place cert. the er, F.2d 342 410 68, time in the future.” 825, 24 duties at some United denied, 90 S.Ct. U.S. 396 (2d “[ejhoice Kliti, 150, n. (1969)). v. 156 F.3d 153 3 Hence the States L.Ed.2d 76 Cir.1998). unnecessarily ob be should not counsel v. States by the court.” United structed right the to counsel Where (2d Cir.1976); 775,
Bernstein,
F.2d
788
533
right
conflicts with the
to an attor
choice
Bubar, 567 F.2d
v.
also United States
see
loyalty, the choice as to
ney of undivided
Cir.1977)
(2d
192,
defen
(recognizing a
203
precedence must
right
which
is to take
repre
right
to be
“constitutional
dant’s
left to the defendant and
generally be
choice”), cert.
own
by counsel of his
sented
See, e.g.,
by
government.
dictated
be
217,
denied,
872,
54
U.S.
98 S.Ct.
434
Cunningham,
v.
672 F.2d at
United States
(1977);
Ar
v.
United States
L.Ed.2d 151
that a defendant’s choice
1073. To ensure
(2d
medo-Sarmiento,
591,
524 F.2d
592
exercised,
intelligently
and
knowingly
is
Cir.1975) (Sixth
protects crim
Amendment
court,
learning
after
of the
the district
retained coun
selection of
inal defendant’s
interest, deter
рossibility of a conflict of
sel).
attorney
an actual
mines whether the
has
conflict,
conflict,
potential
a
or no conflict
to the effective assis
right
See,
Levy,
v.
25
e.g.,
at all.
United States
right
also includes the
tance of counsel
If
no
free F.3d at 153.
the court discovers
attorney
an
who is
represented
be
conflict,
See,
obli
genuine
it has no further
of interest.
Wood
from conflicts
261, 271,
spec
gation.
Id. At the other end of the
450
101 S.Ct.
Georgia,
v.
U.S.
trum,
(1981);
1097,
Holloway v.
if the court determines
counsel
220
67 L.Ed.2d
475, 481-82,
Arkansas,
has an actual conflict that is so severe
98 S.Ct.
435 U.S.
(1978);
1173,
per
rendering
indicate
se that
Armienti v.
cascio,
931
although
principal
6 F.3d
the
Arrington,
attorney’s self-preser-
F.2d
conflict involved the
States v.
United
(2d Cir.1989).
liberty
reputa-
vation not in terms of his
or
But absent such institu-
tion,
Fulton,
as in
but rather in
of
concerns,
matters
will not “assume too
tional
courts
finance. The Schwarz case involved the
protecting
in
the
paternalistic an attitude
officers,
prosecution
police
of several
in-
himself,”
the
although
defendant from
Schwarz,
cluding
in connection with the
“may
of counsel
some-
defendant’s choice
assaults of Abner Louima en route to and
court,
woefully
times seem
foolish” to the
police precinct
a
inside of
house. Louima
remains his. United States v.
the choice
precinct
that in
asserted
house he had
(2d Cir.1982).
Curdo,
by
Volpe
been assaulted
officer Justin
opinions in
States v. Fulton
Our
another officer.
had an
Schwarz
interest
v. Schwarz illustrate
and United States
showing
in
either that there was no second
very
category of cases in
narrow
which
assaulting officer or that the second officer
attorney
we
held
conflicts to be un-
have
was someone other than himself. The at-
Fulton,
prosecution
waivable.
In
a
torney representing
recently
Schwarz had
heroin,
conspiracy
possess
import
a
formed a
firm that
law
received a two-
implicated
witness had
the de-
year,
represent
million retainer to
$10
fendant’s trial counsel
related heroin
Policeman’s
Benevolent
Association
importation. That accusation meant that
(“PBA”), which was a defendant in a civil
the attorney needed to be concerned not
by
alleging cover-up
suit filed
Louima
only with the interests of the defendant
involving
the events
the assault on him.
attorney’s
“personal
but
with the
also
own
suit,
In light of the civil
it would have been
that,
reputation,
poten-
and more than
against
the interest of the PBA for the
tial
might
that he himself
be accused of a
jury in the criminal trial to find that there
(internal
crime,”
quotation
officer,
was a
second
even he were some-
omitted).
consequence,
marks
As a
we
Thus,
one other than Schwarz.
as a sub-
concluded that there was an actual conflict
matter,
stantive
the interests of Schwarz
per
interest so severe as to amount to
and the PBA were divergent.
attornеy’s
se ineffective
assistance.
importantly,
More
Schwarz’s interests
avoiding
charges
self-interest
criminal
diverged from the
of his attor-
self-interest
reputational
or
damage
powerful
was so
ney.
Although
attorney and his firm
virtually every aspect
“affect
of [coun-
were to have no
formal role
the civil
defendant,”
representation of the
sel’s]
suit,
PBA
right
had a
to hold back a
and to be of “a different character than
portion
otherwise-quarterly-
of counsel’s
other conflicts.” Id. at 613. “Advice as payable
million retainer “to ensure the
$10
advocacy
permeated
well as
be]
[would
PBA’s satisfaction with
...
per-
firm’s
self-interest,
counsel’s
and no rational de-
formance”; the PBA also had
fendant
knowingly
intelligently
would
agreement
cancel the retainer
days’
on 30
represented by lawyer
whose conduct
notice;
expect
and the
“could
guided largely by
a desire for self-
performance
satisfaction with the firm’s
preservation.” Id. Given the “breadth and would result in a renewal of the retainer
depth”
conflict,
of this
we concluded that
upon
expiration.”
its
We
these
tion
him significant
incentive to
finding an
protect
PBA,
unwaivable conflict in United
the interests of the
even
attorney despite
attorney’s
ed
with the interests
they conflicted
where
another accused.
Id.
representation of
Schwarz.
rationally opt
can
Where
defendant
sum,
“representation
counsel’s
*12
despite a
retain
of his choice
con
counsel
with his
only
not
was
conflict
Schwarz
flict,
hearing
the
conducts a Curdo
court
client,
PBA his
to the
as
obligation
ethical
whether the defendant know
to determine
self-inter-
with his own substantial
but also
his
to
ingly
intelligently
and
waives
retainer
million
two-year,
in the
est
$10
See,
representation.
conflict-free
had en-
newly formed firm
his
agreement
Leslie,
v.
United States
96. The
the PBA.” Id. at
tered
with
into
denied,
Cir.), cert.
520 U.S.
self-interest
by counsel’s
conflict generated
(1997);
L.Ed.2d 837
117 S.Ct.
rise to “the dis-
give
as to
was so severe
Levy, 25 F.3d
States v.
United
that,
point
...
at each
the
possibility
tinct
felt,
sacrifice
would
[counsel]
conflict was
case,
present
proffered
Perez has
In the
PBA.”
interests for those of the
Schwarz’s
be concluded
no facts on which it could
Thus,
rational
concluded that “no
Id.
we
an
con-
Pagan
that
had
unwaivable actual
position
would
Schwarz’s
defendant
representa-
flict of
based on the
interest
desired
knowingly
intelligently
and
have
Seeking
and Almonte.
tion of both Perez
and that
attorney’s] representation,”
[that
circumstances to the ex-
analogize
respect
to when
rationale with
“Fulton’s
conflict at
traordinary actual
issue
a con-
attorney’s
an
self-interest renders
Schwarz,
Pagan
that
Perez states
“equally applicable
flict unwaivable” was
by his own substantial self-inter-
“blinded
of the
case.
the unusual facts”
Schwarz
a
gain
in that he stood to
considerable
est
Id.
remained counsel
amount of
he
monies
(Perez
appeal
brief on
to both defendants”
Fulton,
plain in
As we made
22).
statement, howevеr,
eon-
is
That
conflicts,
however,
such
an attor
lesser
any citation to
unsupported by
and
clusory
or more defen
of two
ney’s representation
record,
nothing
have seen
and we
a trial
representation of
prior
or his
dants
any-
had
Pagan
indicate that
whatever to
witness,
Unit
waivable. See
generally
are
of fiscal self-
thing approaching
sort
Fulton,
Al
victed. defendants, both Defendant-Appellant was prevented pursuing from a defense that Pagan aas Potential Witness would have established that he was travel- reject (Perez
We also ing contention that on business for Pagan.” Mr. Pagan 25.) had an conflict unwaivable of inter appeal brief on at Leaving aside the est because he was a witness for lack any explained connection between government trial. The representation record the dual and the defense shows that the government’s motion to Perez now pursue, states he wished to this disqualify Pagan so he could be called contention is ignores baseless because it as a witness was denied sever Perez’s sworn statement to the district al prior court, months to trial. The government, that “I was not traveling on busi- in its initial (Per- letter to the court its Pagan ness for Mr. or on his behalf’ Peterson, added)). ¶ made Stаtes (emphasis Aff. 3 ez Cir.1987); Alan generally Charles court ex- see the district this statement Graham, Jr., Feder- Wright the court & Kenneth W. persuade in order pressly Procedure: Evidence disqualified. al Practice Pagan should be (1978). matter “Similarity, being a disqualify § required was not court later, might degree relevancy, judged that Perez is premise on representation prior approaches act near identi- despite his sworn which the court, story. his change of the offense ty decide with the elements necessity syn- charge[d]. There is no sum, not disclose the record In does rel- onymity but there substantial must could not part Pagan that on the conflict ” Kasouris, evancy .... United States waived. intelligently be knowingly and (5th Cir.1973) (emphasis court that the district question is no There original). hearings, and we proper conducted Curdo conclusions in the court’s see no error to al determining whether knowingly that Perez juncture each evidence, judge act” the trial low “similar to waive intelligently exercised *14 analy perform balancing required to is in order part the of any cоnflict on evidence, sis, the even may and he exclude choice. counsel of to retain his prove to knowl if it has some relevance “substantially probative if its value is edge, About Perez B. Cross-Examination of preju unfair by danger the of outweighed Case the Almonte 403; see Fed.R.Evid. Fed.R.Evid. dice.” that he is en contends Perez also (1972). 404(b) Advisory Note P. Committee court the district titled to reversal because after evidence The admission other-act to cross-examine government allowed the Rule 403 performed has the the trial court Almonte knowledge of the him about his only for analysis is reviewable balancing (a) government the requiring case without See, e.g., United of discretion. abuse be similarity or connection “identify to Tarricone, States prior makes the two acts that tween the Martino, (2d Cir.1993); United knowledge of establishing to act relevant (2d Cir.1985). see We (Perez appeal on act” brief the current here. no abuse of discretion (b) 29), probative the weighing without the First, question there can be no its against that evidence vаlue of were similar. Perez and Almonte acts of had after Perez prejudice for unfair until carry- identity person of the Although the Perez’s conclu reject both testified. We different, travel- was both ing money the premises. and his factual sion destination, they carried had the same ers Evidence Rules of The Federal money, and both similar amounts of “other the admission evidence allow in aero- secreted money the instances was crimes, prove, wrongs, or order acts” two that the Perez’s contention sol cans. alia, knowl had that the defendant inter to be suffi- were shown of acts not sets fact. Fed.R.Evid. edge pertinent of a ciently is frivolous. similar 404(b). If is unconnected the other act Second, the question no conduct, there is it must be offense alleged the intro- case were per details of Almonte that conduct to sufficiently similar to likely had help show that draw the duced mit a rational factfinder he carried cans knowledge that aerosol pro knowledge inference advocated currency. Perеz See, reportable contained ponent of the evidence. knowledge issue. He Almonte-related squarely put evidence “allowed the given bag by been jury testified that he had knowledge conclude Perez had mother, but “Tony” Tony’s funds, for that he was of how to smuggle these where this name, given Tony’s not mother’s was not knowledge being wholly denied description given the name or of the wom- Defendant-Appellant.”).) bag, an to whom he was to deliver the Finally, although Perez also contends given contingency telephone not perform that the trial did judge a Rule number or other means of contacting any- balancing analysis until after it allowed Republic one in Dominican arrange government’s cross-examination of him that, delivery bag. of the Perez stated circumstances, on the Almonte the record because the situation was “odd” and could support does not this contention. The (Trial him get Transcript into trouble Oc- matter of the in- evidence as to Perez’s (“Trial Tr.”), 207), tober he had volvement with Pagan’s handling of the opened bag carefully inspected its extensively by Almonte case was discussed contents, noting presence of the aero- the court at September 10 status con- sol cans. But he testified that he did not ference, several weeks before trial. That Thus, money. know the cans contained discussion occurred in the context of the had maintained from the court’s government’s consideration of the outset, the central issue the case was request for reconsideration of the denial of knowledge. Perez’s disqualify Pagan its motion to in order to The mere fact that the Almonte case call him as a trial witness. The court facts, course, involved similar would not concluded that there was no information *15 have been sufficient to warrant admission the government could elicit from Pagan pattern of the Almonte fact to show knowl- it get that could not from Perez on cross- edge part on the of Perez. But evidence examination; repeatedly pondered but it exposure of Perez’s to the facts of the whethеr might there be “an element of provided Almonte case a basis from which potentially prejudice” unfair in admitting it could be inferred that Perez knew of testimony. 13; (Sept. 10 Tr. at see Almonte’s similar acts. That evidence was 13-19.) also id. at The court declined at Almonte, arrest, upon that repre- his was conference, however, that to make a defini- by Pagan; sented that Perez at that time tive ruling admissibility as to “in a vacu- employed by Pagan; and that Perez 19.) um.” (Sept. 10 Tr. at in assisting Pagan some role Al- on trial, At before presented the defense its facts, monte’s case. In light of these it case, the court apparently had determined was not error for the trial court to con- that evidence as to the Almonte case clude that the combination of Perez’s em- would not except be allowed rebuttal ployment similarity role and the between Perez testified that he had no knowledge provided the two cases relevant evidence (a) that there money in the permit that would aerosol cans. an inferencе that Thus, when the government sought Perez had to of- knowledge that there were at- fer tempts pattern the Almonte fact smuggle money out of into evidence the Unit- (b) cans, part case-in-chief, ed States in of its given aerosol the district what acknowledged he court refused to allow it. were “odd” cir- The court ruled leading possession cumstances that could ask “ap- cans, such that propriate” Perez knew the questions cans he about his “work[ ] on reportable carried contained currency. a case with identical facts” if Perez took (See, (the (Trial appeal 128-29.) Perez brief on at 28 the witness stand. Tr. at CONCLUSION judge that the trial indication see no We Rule 403 necessary perform the failed to con- considered all of Perez’s We have 404(b), or misapplied Rule analysis, or properly that are before us and tentions any way. his discretion abused them to be merit. The have found without the district court is affirmed. judgment of Other Contentions C. Pagan’s perfor- that Perez also contends RAGGI, concurring in the Judge, Circuit constitutiоn- trial counsel was
mance as his judgment. defective, trial court ally de- him a downward granted have should affirmance of Per- join I in the Court’s sentencing. These contentions parture separately only conviction and write ez’s discussion. require extended do not an on his claim of unwaivable ineffective-assistance-of-counsel conflict of interest. In order to estab- without merit. claim is on To the extent Perez relies (1) claim, show that Perez must lish such Schwarz, Cir. v. an fell below performance his counsel’s 2002), claim, I support agree this reasonableness objective standard the circumstances my colleagues norms, professional
judged by prevailing
analogous
not at
to the
this case are
all
(2)
there is
deficiency,
that but for
”
prompted
facts’
“highly ‘unusual
that the outcome
probability
a reasonable
in Schwarz.
finding of unwaivable conflict
differ-
have been
proceeding
would
(quoting United States
124]
ante at
[See
Washington,
ent. See Strickland
96).
Schwarz,
similarly
I
(2d Cir.1993)). hand, obliged disqualify attorney.” is other if an On the Levy, v. 25 United States F.3d 153. or attorney [actual] suffers from “lesser Levy, expand did not on Court what it conflict,” only the conflict is defendant,” by meant perhaps “no rational waivable, provided the defendant’s choice its was not rationality because focus on the knowingly intelligently [See is made. choice, or defendant but on his v. (quoting ante at United States 126] failure to receive the information neces- (2d 146, Cir.1994)); Levy, 25 F.3d 153 of. sary knowing to execute a and intelligent Locascio, 924, v. 6 F.3d United States waiver his attorney’s myriad conflicts. (2d Cir.1993) (recognizing courts’ discre Levy, Id. at 155-59. After reference to reject intelligent waiv knowing tion to the “no rational defendant” standard be- attorney integ er when conflict infects came involving any routine cases conflict rity judicial proceedings); United States challenge. of interest See Ciak v. United (2d 122, F.2d Arrington, v. Cir. States, (2d Cir.1995) 296, 59 F.3d 305 n. 5 1989) (same). In this much of the Court’s (reversing inquire for failure to into attor- join. I analysis, prepared My am con conflict); Lussier, ney United cern is with the Court’s further reference (2d Cir.1995) (rejecting de- to whether a conflict is one that “no ration fendant’s claim that his conflict waiver was al defendant” would waive. knowing intelligent); appears It the Court first refer- Malpiedi, States v. 62 F.3d 468 n. 2 enced “no rational defendant” in the Cir.1995) con- (reversing conviction where text of an unwaivable conflict in 1993 in defendant attorney did not waive conflict Fulton, Unitеd States 5 F.3d lapse representation); that resulted in There, however, Kliti, purpose empha- its towas United States v. (2d Cir.1998) (reversing
size that no defendant could waive an at-
conviction where
inquire
court failed to
torney
equate
conflict so severe as to
defendant was
conflict).
willing
to waive
per se ineffective assistance of counsel.
recently,
More
the “no rational defen-
representation
The danger arising from
dant” standard
was invoked
the Court
implicated
a counsel who has been
Schwarz,
in United States v.
explain
activity by
govern-
related criminal
that “the
rep-
conflict between [counsel’s]
ment
of a different
witness is
order of
Schwarz,
hand,
resentation of
on the one
magnitude, however. Advice as well as
and his
obligation
ethical
to the PBA as
advocacy
permeated by
is
counsel’s self-
his client and his self
interest
the PBA
interest,
and no rational defendant
retainer,
other,
on the
was so severe that
*17
knowingly
would
and intelligently be
no rational defendant in
posi-
Schwarz’s
represented by
lawyer
a
whose conduct
tion would have knowingly
intelligent-
guided
largely by a desire for self-
ly
attorney’s] representation.”
[the
desired
preservation.
might would defendant” “no rational
clude with by lawyer a represented to be
choose conflict, especially when particular them ada standing is before
defendant is asserting cogently
mantly and America, STATES little UNITED They would find his choice. precisely Appellee, the common looking assistance person A “rational.” meaning of word is “rational” he usually is considered Olanrewaju BADMUS, Yinka competent his reason possession Defendant-Appellant. Third New Interna it. See Webster’s use (1993). not, I do Dictionary tional Docket No. 02-1225. Schwarz however, the Court understand Appeals, States Court the defendant’s questioning been to have Circuit. Second respect competency, whether mental or other representation choice of to his Argued: March Neither could aspect of defense. 27, 2003. Decided: March con rejected the defendant’s have Court it simply because viewed waiver flict foolish,” “woefully when
choice as is to how an accused is whether and
issue counsel, not courts will represented by an attitude paternalistic too
“assume from himself.”
protecting defendant (quoting United States ante at 126]
[See Cir.1982)).
Curcio, 14, 25 sum, quite am not because I certain “no reference to we mean our
what identifying unwaiva-
rational defendant” conflicts, use I not continue to would
ble mind, a is my To conflict standard.
this rational defen- no unwaivable because under such circum- proceed
dant would Rather, conflict is unwaivable
stances. . cir- extraordinary presents
because it such rational defendant
cumstances even *18 knowing offer a permitted
cannot be correct, If I am we intelligent waiver. identifying those narrow focus on
should possible. To precisely as
circumstances “no ra- conflicts that to refer
continue