United States v. James Harrison Barham, A/K/A Robert Meyers

FAY, Circuit Before TJOFLAT *, Circuit Judges, and WISDOM Senior Judge.

* Wisdom, tion. Honorable John Minor Circuit, sitting by designa- Judge for the Fifth

FAY, Judge: prior at two trials before the simultaneous representation began and that Barham, to this Appellant, appeals James at the third trial was in court for error alleging the fourth time the same as that of the previous two trials. his conviction under 18 U.S.C. § Defense counsel’s cross-examination of aid 471 for to counterfeit and conspiracy § Wayman was also the same in all three ing counterfeiting. In Bar- abetting trials, thus suggesting preju- that no actual charges ham’s first trial on these dice resulted. deadlocked and a mistrial was declared. second a conviction which yielded trial To insignificance show the of Wayman’s appeal govern reversed on due to the brief explains ment’s perjured testimony. use of United all of the evidence in the ease Barham, (5th States v. 595 F.2d 231 Cir. against Barham. We condense this as fol- 1979). Appellant’s conviction at his third lows: trial1 was affirmed on appeal. Spring of 1977 appellant and Si- (5th Cir.1980), cert. mon discussed the of counterfeit- (1981). ing money. They learned from Dennis

Appellant then corpus initiated this habeas Hathcock the equipment they would need. petition in the Northern District of Alaba ma alleging denial of his Barham, constitutional June now using an right to effective assistance of counsel. alias, Jackson, purchased printing press The district court denied relief and we af Tennessee. firm. June purchased 1977. Barham During all three and in his trials direct acres of land with a trailer and fish house appeal appellant retained Mr. E.E. Edwards near the Alabama-Tennessee border. He to represent appellant’s him. Between paid put cash and the deed in daughter’s second and third trial Wayman, James a name. prosecution witness, asked Mr. Barham and then plate- Simon located a represent him in a civil matter concerning maker at a printing supply company in Wayman’s United Navy States retirement Goodletsville, Tennessee. At night Simon benefits. agreed Mr. Edwards to and did and another man printing broke into the represent government witness, placing company office platemaker and stole the himself in a position that the district court while Barham stood watch. “inexcusable” and the About two days later Barham considered and Simon “totally incorrect.” Nonethe- less, went Dury Graphics Nashville, magistrate and district Ten- court de- nied relief. nessee for looking a camera. Barham intro- duced himself Wayman, to James the sales- Appellant “[wjhether raises one issue: man, as Meyers. Robert Barham then in- appellant was denied the constitutionally quired about cameras. He used a false protected right to effective assistance of business name and address and told a false by counsel the simultaneous representation, story printing about programs for a race- in an apparently matter, unrelated civil by track. On June using his appellant’s trial counsel of a alias, bought a camera for cash from anoth- witness.” printing er store in Nashville. On June At the evidentiary hearing peti- on this purchased 1977 Barham supplies from a tion question of actual conflict was in- printing third store in Nashville. vestigated. The government argued then After attempts print now that no unsuccessful actual conflict resulted Fowler, simultaneous money, involved Charles government further argues Wayman printer, in a poker game. Once Fowler trial, alleged 1. Before the (5th third defense the Fifth Circuit. counsel Cir. 1979). should because of not be retired jeopardy rejected the double clause. This was 1487, 1498 (11th Cir.1983). to Barham he was induced F.2d indebted See United became counterfeiting scheme. Thereaft- aid the States from a store in purchased paper er Barham Cir.1983) (“mere joint fact of Florence, Barham’s wife cashed Alabama. certainly conflict.”) will not show an actual what Bar- - equalled checks for amounts that (citations omitted) cert. aiding allegedly paid ham Fowler -, L.Ed.2d 679 help group Fowler’s scheme. With Sullivan, 335, In v. 446 Cuyler U.S. $560,000 money. of counterfeit printed 1708, (1980), 100 64 L.Ed.2d 333 S.Ct. dryed money and some of the They aged Supreme Court held that “the it. began selling and impugn conflict insufficient a criminal tip Based on an informant’s Secret conviction. In order to demonstrate a vio arrested some members of the con- Service lation of his sixth amendment a de rights, warrants, obtaining After search spiracy. fendant must establish that an actual con and Barham’s houses were searched Simon’s adversely flict of interest affected his law was found. printing equipment 350, 100 yer’s performance.” Id. at at S.Ct. All these facts are established in the 1719. To on a claim prevail of ineffective record, we too record of the trial. From assistance, a defendant must show “that his agree testimony very was represented counsel in actively insignificant. circumstantial and The terests.” Id. case would have made been Balkcom, 391, v. 661 F.2d 396 it, that Bar- without for it established Cir.1981) (Unit denied, looking (5th B), ham used the alias when at cam- cert. 456 actually bought eras. He the camera used 1011, 2307, U.S. counterfeiting Appellant in the elsewhere. was as not “re Cuyler interpreted argues that of him Wayman’s identification effect on counsel quiring proof adverse shaky2 perhaps was fallen could have of an actual conflict of proof addition under if vigorous cross-examination. Even Thus, “prejudice pre interest.” must be had, very case was sumed, except the most extraor under strong. Wayman’s testimony Because circumstances, the error cannot be dinary Edwards’ cross-examination were the same 395, harmless.” quoting considered Id. in all three trials we cannot conclude 331, v. 651 F.2d 334 Turnquest Wainwright, advocacy Edwards’ was dulled due to the (5th Cir.1981) (Unit B), Johnson v. quoting Further, simultaneous Cir.1981) Hopper, 639 F.2d 239 even if Wayman impeached could been denied, 548, 70 cert. S.Ct. on the third cross-examination this would (1982). L.Ed.2d 412 The threshold issue not have affected outcome. conflict; if an actual whether there is The sixth and fourteenth amend Therefore, so, will be guarantee ments effective as reasonably ap though acknowledge we even Alabama, sistance of counsel. 671 Mylar must ex suffered no pellant (11th Cir.1982) cert. amine there was an actual conflict. if - U.S. -, This Actual Is Conflict? When counsel has a conflict of of actual conflict for this circuit test representa interest it “cause counsel’s joint rep- formulated in the context of tion to fall below the sixth amendment of co-defendants. “An actual resentation standard,” however, “not all conflicts are so introduction of conflict exists if counsel’s egregious as to constitute a sixth amend Zant, arguments ment probative plausible violation.” Westerbrook v. evidence by Wayman protected hearing 2. Barham under circumstances the habeas counsel, Edwards, attorney-client privilege. pursue testified to he asked his mis- identity Wayman post-trial with Edwards that taken with and Edwards re- two conversations story. According con- refused Edwards denied such fused. Edwards affirm this potential Magistrate Ed- did not find to recall because the of mis- versations. identity than Barham’s. more credible taken was learned wards’ one significantly benefit defend independent counsel could ant damage the defense of another have elicited.” 701 F.2d at 1329-30. defendant repre whom same counsel is The analysis suggested in Mers is diffi- 395; Balcom, senting.” Baty v. 661 F.2d at perform cult to in the instant case because Turnquest Wainwright, 651 F.2d 333 we have little very record to examine. The (5th Cir.1981); Freeman, United States only record before this court consists of the (5th Cir.1980), 1121-22 transcript from the Magistrate’s hearing on this petition. During hearing ap- (1981); L.Ed.2d 334 Foxworth v. Wain pellant testified that after his second trial wright, (5th Cir.1975). Edwards, attorney, told him that he

This court has explained recently how the knew that identification of the test applied. of actual conflict is shaky but that he could not bring

We will not find an actual conflict it out at trial knowledge unless because this appellants point ‘specific gleaned can instances was protected under circumstances in the suggest record to an actual conflict by the attorney-client privilege.3 R.Vol. 2 or impairment of their interests.’ United at 12-13. Mr. Edwards having denied Fox, 99, States v. 613 F.2d 102 Cir. made this statement or having any learned 1980). Appellants must make a factual protected information attorney- under the of showing inconsistent interests and privilege.4 client R.Vol. 2 at 50. He testi- must demonstrate that the attorney fied that his representation Wayman of ‘made a choice possible between alterna- “had not the remotest connection” with Mr. action, tive courses of (or such as eliciting Barham’s trial and that he considered there failing elicit) to evidence helpful to one to be no Mr. conflict. Edwards testified client but harmful to the other. If he did that he decided cross examine Mr. choice, not make such a the conflict re- hostile, man in a friendly rather than man- hypothetical.’ mained ner because the not have jury would been pleased had he done otherwise. He felt the 1321, United States v. (11th Cir.1983) Comment, identify with Mr. a quoting Wayman, Conflict citizen, of Interests in who had coincidental Multiple Representation knowledge Co-Defendants, Criminal a fact and had been inconvenienced three T.Crim.L. & Criminology, times to travel from Birming- Mers the Nashville to court found that joint representation of ham to testify. co- R.Vol. at 46-47. The defendants was not Magistrate an actual conflict be did not find either Mr. Edwards cause appellant has pointed or the any appellant more credible than the “[n]o different defense theory or new evidence or other. uncertainty

3. Had such an admission of oc more effective cross-examination than an attor- protected by curred in circumstances ney the attor knowledge. without ney-client privilege grounds it would not be change reversal nor would it our conclusion Appellant’s bring counsel did not to the trial that no In United States v. resulted. representa- court’s attention his simultaneous Alberti, 1972) (2d cert. 470 F.2d 878 Cir. Wayman appellant. Appellant tion of Mr. only testified that he learned of the situation the court addressed facts similar appeal. after his third trial but before the direct those of the instant case and concluded that no represented appel- R.Vol. 2 at 8. Mr. Edwards conflict or resulted. The court noted appeal. lant in his direct Mr. Edwards testified gleaned attorney- that the information from the representa- that he mentioned the simultaneous relationship government client to the witness appellant explained tion to that there was helpful structuring cross-examination. appellant’s no interest and Mr. long real, As as the conflict was not the dual Appel- interests would conflict. representation actually worked to the defend testimony lant’s is in direct conflict with Mr. advantage. ant’s Here too if counsel learned Magistrate Edward’s and because the found shaky, that Mr. identification was neither witness more credible than the other advantage this would have been an rather than appellant are unable to we conclude consented pre a detriment. Mr. Edwards could have joint representation. confidence, yet served his client’s still conduct ham, defendant, a a Wayman, He stated criminal testified. also Wayman Mr. witness, sort with relationship any did not create an “ac- prosecution that he had no in the out- any nor tual Both the conflict”. Wayman Mr. of his trial. come judge correctly district such at the that he never discussed majority, desiring conflict did exist. he Mr. Edwards and trial with clearly ought conviction that to be uphold a ever indicated having denied specifically to hold that simultaneous upheld, appears about his identification any equivocation of a defendant and an ad- also stated that his Barham. He verse witness will not vitiate a conviction in all three trials. was the same unless the defendant can adduce on-the-rec- in a way ord evidence that his counsel acted transcript gather From made that majority opinion’s decision Mr. Edwards that harmed him. The only of his clients was affected both potentially circumstanc “extraordinary reliance on the in a Wayman to cross examine Mr. whether Balkcom, Cir.1981, es” test of ris hardly manner. This friendly or hostile enunciat conflict standards es to actual indicates that Mr. There is no indication ed above. intended. holding is not such broad possible between Edwards made choice misunderstanding avoid the risk of help have actions that would or could been squarely on by basing our affirmance harmful to the other. ful to one client and case: “extraordinary” facts of this truly interests do and Mr. Barham’s Wayman not a key intersect, in this much less not of counsel witness, actions evi case. As our earlier discussion Barham are prejudiced might shows, Way- Mr. Barham against dence subject therefore the record and are inconsequential wholly man’s court, that we have scrutiny by that the to the state’s case. We conclude which we can com- trials with previous two hypo in this case remained alleged conflict Way- of cross-examination pare Edwards’s meet the sixth thetical and thus does not trial. This “extraor- during man the third Cuyler. announced in amendment threshold allows comparison dinary” opportunity should not be conclusion in this case Our attorney Edwards although us to find simul- defense counsel’s condoning read as duties, con- this actual conflicting did wit- prosecution taneous of a representation Barham. prejudice flict did not abstract, or the hypothetical, ness. In the facts, a idea at all. These good is not I. cir- however, “extraordinary present v. relies on United States majority from the rule in excepted cumstances” Cir.1983, Balcom, of this supra, precedent - -, find We S.Ct. circuit that resulted no conflict and no this Court L.Ed.2d in which this dual actual conflict demonstrated stated that factual petitioner habeas when a “make[s] the district court’s therefore affirm We . .. interests and inconsistent showing of effec- was not denied finding ‘made a demonstrate^] assistance of counsel. tive courses alternative possible ehoice between WISDOM, concur- Judge, majority concedes Senior of action....’” ring: thoroughly how he decided when affirm the district agree that we should But the Wayman. to cross-examine lightly petition, Barham’s habeas court’s denial of that, because then holds majority reservations about but I have some “inconsequential”, testimony was man’s the court’s language of

rationale conflict to the actual “hardly rises attorney Ed- conflict agree I cannot opinion. Bar- of Mers. of standards” representation wards’s simultaneous The majority’s approach improperly conf- no less inconsistent with the law of effec- lates two inquiries effect, into one: tive assistance of counsel than would be a says there majority was no “actual conflict” direct demand for proof of prejudice. because the effects of the conflict were I respectfully suggest the majority harmless. This approach is at odds with the applies too stringent a standard for finding prophylactic nature of the against rules “actual conflict” in part because it relies conflicts of interest. The right to effective entirely on cases involving joint repre- counsel is basic to our system adversary of sentation of co-defendants a single attor- justice, and essential if that is to system ney. joint Such representation has never yield just results belief among the been considered a per se denial of effective participants, and the citizenry at large, that assistance. Holloway, 435 U.S. at justice has been Babcock, done. See Fair 55 L.Ed.2d at 433. In some Play: Evidence Favorable to an Accused cases, multiple representation be ad- may and Effective Counsel, Assistance of vantageous to the co-defendants notwith- Stan.L.Rev. 1133 If we are pre- standing potential some conflicts. “Joint serve that belief in the justice essential representation is a means of insuring the system, we protect must against not against reciprocal recrimination. A com- only the fact but the appearance of injus- mon defense system gives strength against tice. In the usual of conflicting case inter- a common Glasser, attack”. 315 U.S. at ests, the fact of prejudice “may subtle, be 86 L.Ed. at (Frank- even 710-11 unconscious. It elude detection furter, J., on review. A dissenting). A reviewing per court se deals with rule record, against cold joint capable, perhaps, deprive exposing gross instances of incompetence but defendants this strategy often even in cases giving no clue to the erosion of zeal where the which strategy be beneficial to may ensue from divided loyalty.” Castillo their defense. The courts are therefore Estelle, Cir.1974, 1245. willing to potential tolerate so long conflicts A conflict interest may affect the actions as those conflicts only hypothetical remain of an attorney in many ways, the great- but and not actual. There is no comparable est “evil ... is in what the advocate finds reason to facilitate a single attorney’s con- himself compelled to refrain from do current representation of a defendant and ing. ...” Holloway Arkansas, 1978, 435 an adverse party or witness. Such concur- 475, 490, 1173, 1182, 55 L.Ed.2d rent is inherently adverse to 426, 438. In such circumstances a review the defendant’s interests. ing court cannot be certain that the conflict The majority finds “that the only decision did not prejudice the defendant. Accord Mr. Edwards made potentially that affected ingly, it is settled that once an actual con both of his clients was whether to cross-ex- flict shown, Cuyl amine Mr. Wayman in a friendly hostile er v. Sullivan, 1980, 338, 349-50, 446 U.S. manner”, and that concludes Way- because 333, 347; man’s testimony was “inconsequential” the Holloway, 435 490-91, U.S. at 98 S.Ct. conflict “remained hypothetical”. But in 438; 55 L.Ed.2d at Glasser Unit- this habeas States, proceeding ed the 60, 75-76, 315 U.S. 62 S.Ct. 457, 467-78, Wayman’s 702; testimony, while L.Ed. Baty, 661 brief, F.2d was “certainly a significant 396. The chain majority does directly not n contest events in prosecution’s this the principle. case”. Instead, it The rec- states supports because the ord effects of assessment. conflict in of Bar- Each were insignificant, case ham’s three trials there was no has turned on issues of “actual conflict”. This is a Indeed, demand for credibility.1 this Court reversed proof of prejudice in guise, another and it is Barham’s first conviction because 1. While appears evidence hung jury. Barham’s first trial ended in a overwhelming, it is instructive to remember principal one of the two witnesses for the perjured testimony, used espe- was “credibility emphasized Again, the Court found it un- prosecution. in in which two important this case cially inquire alleged into instances necessary ... irreconcila- presented sets of witnesses the fact of prejudice; conflicting ble stories.” United States enough was to create a “real” conflict. 504 Cir.1979, 242-43. present attorney F.2d at 1245. In the case alias, an that Barham had used Edwards’s decision to cross-examine “in a address, explanation and a false false manner” have had little im- friendly camera. printing buying his interest pact on the outcome of the case. But all the few witnesses Wayman was one of same, duties to Edwards had was not involved in the al- this case who his two clients and this conflict became likely His leged conspiracy. required actual when he was to cross-exam- significant impact jury’s to have a on the Wayman. ine credibility. of Barham’s Even assessment a suc- apparent more is the adverse effect had

cessful cross-examination could have on II. attorney case. If Ed- In the usual case the existence of an to convince the wards were able require grant actual conflict would us to identification of Barham was petition. the habeas This Court its mistaken, might jury’s percep- affect the predecessor have several times stated that credibility prosecution’s tion of the of the “ex an actual conflict cannot be harmless Therefore, it in Barham’s entire case. extraordinary under the most circum cept attorney probe deeply for his 395; Turnquest 661 F.2d at Baty, stances”. identifi- into the Cir.1981, Wainwright, mistaken, memory cation was that his 334; Cir.1981, 639 Hopper, Johnson v. coaching, by government been “refreshed” denied, 1981, hand, Edwards, on the other and the like. 70 L.Ed.2d 412. These his client would not want alienate have not discussed what circumstanc- cases annoyingly persist- in an by engaging man es would rise to the level of “extraordina- of his client ent cross-examination on behalf actually has never before ry”, and Barham. exception, invoked this but believe “If a defense owes duties to present- are “extraordinary circumstances” those party whose interests are adverse to the rule The reasons that underlie ed here. defendant, an actual conflict then “harmless er- application proscribing client and exists. The interests of the other here. inapplicable ror” doctrine are adverse if it sufficiently the defendant are duty is shown that owes a real, could First, although some action that the defendant to take cross-examination of affect Edwards’s could be detrimental to his other client.” therefore, Holloway, Wayman. Unlike Cir.1979, Alabama, Zuck v. State no concern that the conflict there is denied, 1979, 444 conduct before have affected off-the-record Zuck, In 62 L.Ed.2d 42. or after trial. See represented the the defense also Any at 438. ef- matter. prosecutor in an unrelated civil conflicting interests fects of Edwards’s showing that the de- While there was no for preserved in a record identified could be attorneys actually anything fense did review. and collateral appellate because of doing anything refrained from Castillo, the con- Second, Zuck and unlike held that representation, this dual infect the not one that could flict here was to their attorneys’ prosecu- not the Wayman was entire trial. to create an actual clients were sufficient crime, he had tor victim or the Similarly, in Cas- conflict. Id. at 439-40. of the trial. the outcome no interest tillo, represented also the defense not “in- testimony was crime, who was charged Although the victim of the consequential”, Wayman was minor only a

witness. America, UNITED STATES Plaintiff-Appellee, importantly,

Most we can assess the risk in this case because there have previous been two trials and Edwards has SHABAZZ, Karriem Al-Amin twice before cross-examined Wayman. The Defendant-Appellant. magistrate and the district court compared No. 82-5080. that, cross-examinations and found if anything, Edwards’s cross-examination of Appeals, United States Court of Wayman improved after Wayman became Eleventh Circuit. Edwards’s client. Inquiry into the effects Feb. of an error is difficult and undesirable in context, any because it is difficult to deter-

mine with absolute what certainty “would

have happened” in the absence of the error.

Conflicts of present especially sub-

tle risks of prejudice, which make the in-

quiry even more difficult and less desirable. case, however, we know what

“would happened” because the same

cross-examination was conducted both be-

fore and after the conflict of interest arose.

This rare opportunity comparison allows

us say that, with certainty despite the interest,

actual conflict of Barham was not

deprived of effective assistance of counsel.

The majority also invokes the “extraordi-

nary circumstances” exception of Baty, and

even though it finds no actual conflict the

majority is careful to consider whether Bar-

ham prejudice. incurred Whether the theo- of this

ry ease is that there was no actual holds, as the majority or that prej-

udice need not presumed here, be Ias would

hold, the holding of the case is limited to its

very special circumstances: where the pros-

ecution one, witness is a minor the conflict

affects on-the-record conduct that can

be reviewed, completely and there is a pre-

vious provides cross-examination that a ba-

sis for comparing counsel’s conduct before

and after the conflict arises.

Case Details

Case Name: United States v. James Harrison Barham, A/K/A Robert Meyers

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 16, 1984

Citation: 724 F.2d 1529

Docket Number: 82-7419

Court Abbreviation: 11th Cir.