JACK WILLIAM JONES, PETITIONER V. UNITED STATES OF AMERICA No. 90-7635 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A 1-8) is not reported. JURISDICTION The judgment of the court of appeals was entered on January 9, 1991. The petition for a writ of certiorari was filed on March 25, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly denied petitioner's motion to vacate his guilty plea. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Missouri to armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d). The district court thereafter denied petitioner's motion to withdraw his guilty plea, and it sentenced him as a career offender to a 25-year term of imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. A 1-8. 1. On August 30, 1989, a man armed with two guns and wearing a false beard and other disguises robbed the Jefferson Savings and Loan in Fenton, Missouri, taking $5100 from the tellers. Moments later, after a pursuit on foot, petitioner was arrested a short distance from the bank. Fibers from a false beard were still glued to his face, and disguises, two guns, clothes and currency were littered along the path of the pursuit. Pet. App. A 2; Tr. 19-21; Gov't C.A. Br. Exh. 2 (stipulation of facts). After being advised of his rights upon arrest, petitioner placed the blame for the robbery on a man named Butch McCraw. Petitioner told the FBI that he could implicate McCraw and Bill Solven, the alleged leader of a bank robbery organization, but was afraid that if he testified against either man they would seek revenge against his mother. In addition, on August 31, 1989, as he was being transported to his initial court appearance, petitioner repeated to federal agents that he would not testify against Solven. Pet. App. A 2-3; Tr. 80-81, 84-85; Gov't C.A. Br. Exh. 1 (FBI interview report). A federal public defender was appointed to represent petitioner on August 31, 1989. Five days later, however, a private attorney, Michael Cady, entered his appearance as petitioner's counsel, and the federal public defender was granted leave to withdraw. Cady was also defense counsel for Solven with respect to firearms charges that were unrelated to the bank robbery for which petitioner was charged. Tr. 59-60. The magistrate conferred in chambers with Cady and the prosecutor regarding Cady's potential conflict of interest, but because of a malfunction in the tape recorder, the conference could not later be transcribed. Pet. App. A 3; Gov't C.A. Br. 3-4, 7; Gov't C.A. Br. Exh. 3 (letter from deputy clerk explaining equipment malfunction); see also Pet. 1, 4 (acknowledging conference). On December 4, 1989, petitioner pleaded guilty to armed robbery of the Jefferson Savings and Loan. In return, the government agreed not to prosecute petitioner under 18 U.S.C. 922(g)(1) and 924(e)(1) for firearms violations arising out of the robbery or for three other bank robberies that were then under investigation and the FBI was prepared to present for indictment. Pet. App. A 3-4; Tr. 16-17. 2. On January 8, 1990, petitioner filed a pro se motion to withdraw his guilty plea, alleging that Cady had a conflict of interest that denied him effective assistance of counsel. After Cady withdrew as counsel and a federal public defender was appointed to represent petitioner, the district court held a hearing on petitioner's motion. Petitioner testified that he discussed with Cady and Cady's associates the possibility of providing information to the government but that "they did not want to use it because it implicated Solven." Tr. 40-41. FBI Agent Stephen Kettner testified, however, that after petitioner's arrest, and again before the initial hearing at which a federal public defender was appointed to represent him, petitioner "said that he could not and would not testify against William Solven." Tr. 81. Both of those refusals occurred before Cady represented petitioner. Agent Kettner further testified that the day after petitioner's second refusal to testify against Solven, McGraw agreed to do so, and that in September and October 1989, two additional people agreed to furnish information; those events obviated any need for petitioner's cooperation. Tr. 85-86. At the conclusion of the hearing, the district court denied petitioner's motion to withdraw his guilty plea. Tr. 90-97. With respect to the asserted conflict of interest, the court first noted that this was not a situation involving multiple defendants in a single trial, but rather a single defendant. Tr. 90. The court also discredited petitioner's testimony, noting that he was knowledgeable about the criminal justice system and had no difficulty in discharging Cady and asking for appointment of other counsel when he wished to do so. Tr. 92-94. Against this background, the court found that petitioner "wanted Mr. Cady as (his) attorney and only after the plea, * * * and not because of Mr. Cady's also representing Mr. Solven(,) did (petitioner) believe it was in (his) best interest to discharge (Cady) and move in another direction * * *." Tr. 94-95. The court further found it conjectural whether any offer by petitioner to cooperate would have inured to his benefit, in light of substantial credibility problems his version of the events would encounter. Tr. 95-96. 3. The court of appeals affirmed. Pet. App. A 1-8. It agreed that defense counsel "had a potential conflict of interest in representing both (petitioner) and Solven," but held that because petitioner did not object prior to pleading guilty, he was not entitled to relief unless he "'demonstrate(d) that an actual conflict of interest adversely affected his lawyer's performance.'" Id. at 4-5 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). Noting that petitioner previously had told the FBI that he would not testify against Solven, the court concluded that petitioner "failed to demonstrate that his counsel had an actual conflict of interest that adversely affected (petitioner's) ability to secure a more favorable deal from the government, and thus should not prevail on his Sixth Amendment claim." Pet. App. A 4-5. The court of appeals relied on Dukes v. Warden, 406 U.S. 250 (1972), where this Court sustained a state court's refusal to allow a defendant to withdraw his guilty plea notwithstanding what the court of appeals described as "much stronger evidence of conflict than in this case." Pet. App. A 5. /1/ ARGUMENT The court of appeals correctly held that petitioner was not entitled to withdraw his guilty plea because he failed to carry his burden of showing that an actual conflict of interest adversely affected his attorney's performance. Further review of this fact-bound claim is not warranted. 1. Petitioner failed to establish that his guilty plea was infected by a conflict of interest that violated his Sixth Amendment right to counsel. It was petitioner who decided to discharge the original court-appointed defense counsel and to be represented by Cady. At no point up to and including the entry of his guilty plea did petitioner complain that Cady had a conflict of interest or express dissatisfaction with Cady's representation. To the contrary, during the extensive colloquy preceding the court's acceptance of his plea, petitioner repeatedly told the court that he was aware of his right to counsel, that he had consulted with Cady, and that he was satisfied with Cady's representation. See Tr. 4, 5-6, 8-9, 15-16. /2/ In light of petitioner's failure to object to Cady's representation until after he entered his guilty plea, the court of appeals correctly held that petitioner was required to "demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The district court held a hearing and found no Sixth Amendment violation under this standard, and the court of appeals affirmed that ruling. There is no reason for this Court to review this concurrent finding by the courts below that petitioner failed to make the showing necessary for relief. See Burger v. Kemp, 483 U.S. 776, 785 (1987) ("when the lower courts have found that a lawyer has performed his or her solemn duties in such a case at or above the lower boundary of professional competence, both respect for the bar and deference to the shared conclusions of two reviewing courts prevent us from substituting speculation for their considered opinions"). Petitioner does not claim that, absent the alleged conflict, he would have gone to trial rather than plead guilty. Cf. Hill v. Lockhart, 474 U.S. 52, 59 (1986) (defendant raising ineffective-assistance-of-counsel claim "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial"). The evidence of petitioner's guilt was overwhelming, and the plea bargain Cady negotiated offered petitioner substantial benefits, including avoidance of firearms charges in connection with the robbery (which would have carried an additional 15-year mandatory prison term without parole, see Tr. 16-17) and three other bank robbery charges for which the government was prepared to present an indictment. Instead, petitioner contends (Pet. 3, 4) that the plea bargain Cady secured was not sufficiently favorable because it did not require the government to seek a downward departure under the Sentencing Guidelines for the "substantial assistance" he asserts he could have provided the government in its investigation of Solven. As in Burger v. Kemp, 483 U.S. at 785, however, "(t)he notion that the prosecutor would have been receptive to a (better) plea bargain is completely unsupported in the record." FBI Agent Kettner testified without contradiction that on September 1, 1989 (before Cady represented petitioner and after petitioner had twice refused to testify against Solven), McGraw agreed to cooperate with the government, and that two other individuals agreed to furnish information in September and October 1989 -- thereby obviating any need for petitioner's cooperation. Tr. 85-86. Thus, as the government explained at the hearing on petitioner's motion to withdraw his plea, "(i)n terms of providing information to the government, (petitioner) had an opportunity, which he rejected early on, * * * and someone else stepped into the void." Id. at 90. Under these circumstances, there is no merit to petitioner's attempt to blame Cady for his own failure to provide timely and substantial assistance to the government. Indeed, as the court of appeals recognized, Pet. App. A 5, this Court, in Dukes v. Warden, 406 U.S. 250 (1972), rejected a claim of a conflict of interest in circumstances far more compelling than those presented here. Defendant Dukes had moved prior to sentencing to withdraw his guilty plea on the ground that defense counsel, by virtue of representing his codefendants in another case, had a conflict of interest. Counsel, in fact, had sought leniency for the codefendants by blaming Dukes for their involvement. Nonetheless, the Court affirmed the denial of collateral relief, concluding that there was "nothing in the record * * * which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent." 406 U.S. at 256. The same is true here. 2. Petitioner also contends (Pet. 5) that the district court improperly failed to "inquire into the propriety of multiple representation even though no party lodge(d) an objection." But nothing in the Federal Rules of Criminal Procedure, much less the Constitution, required such an inquiry in the present case. A district court has an affirmative obligation under Fed. R. Crim. P. 44(c) to assure itself of the propriety of joint representation where "two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13." See generally Wheat v. United States, 486 U.S. 153 (1988). Because petitioner and Solven were not jointly charged or joined for trial, this case did not involve joint representation. Accordingly, no inquiry was required under Rule 44(c). See Shaba v. United States, 721 F. Supp. 132, 138 (E.D. Mich.), aff'd mem., 896 F.2d 554 (6th Cir. 1990). /3/ Nor, contrary to petitioner's contention, did the Sixth Amendment require judicial inquiry into whether defense counsel had an actual conflict of interest. The Court in Cuyler recognized that "a possible conflict exists in almost every instance of multiple representation," 446 U.S. at 348, but that "nothing in (the Court's) precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case." Id. at 346. The Court therefore held that "(a)bsent special circumstances, * * * trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Id. at 346-347. In concluding that an inquiry was not required in Cuyler itself, the Court observed that no objection had been raised at trial and also that the fact that defendants had been tried separately "significantly reduced the potential for a divergence in their interests." Id. at 347. Accord Burger v. Kemp, 483 U.S. at 784 (trial courts are generally entitled to rely on defense counsel's good faith and judgment in avoiding conflicts of interest, especially when the potential for conflict is reduced by separate trials). There is even less basis in this case for concluding that the district court had a constitutional obligation to inquire about Cady's representation of petitioner. Not only were petitioner and Solven charged separately; they were charged with entirely different and unrelated offenses. Thus, absent any objection by petitioner, the court was entitled to "assume either that multiple representation entail(ed) no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Cuyler, 446 U.S. at 346-347. Moreover, there were inquiries into Cady's representation, both when he initially entered his appearance before the magistrate and when the district court determined at the time of the guilty plea that petitioner was satisfied with Cady. Those precautions serve further to undercut petitioner's Sixth Amendment claim. Petitioner suggests (Pet. 5) that his position is supported by the statement in Cuyler, that "(u)nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." 446 U.S. at 347. According to petitioner (Pet. 6-7), this case comes within the exception contemplated by the quoted passage because the situation was brought to the magistrate's attention when Cady entered his appearance, yet the magistrate "failed to inquire on the record about the multiple representation situation." Petitioner's claim is without merit because, although the magistrate was informed by the government of the existence of a potential for a conflict of interest arising from Cady's representation, there is no indication that anyone suggested that there was an actual conflict. Moreover, the magistrate did inquire into the matter, although the record of that proceeding was not preserved due to the malfunctioning of the tape recorder. See page 3, supra. In any event, an actual conflict would not have been apparent even to one who knew all of the circumstances, because petitioner already had twice refused to testify against Solven and petitioner and Solven were charged separately with separate offenses. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney MAY 1991 /1/ The court of appeals also rejected petitioner's challenges to his classification as a career offender and to the district court's statement of reasons for imposing sentence. Pet. App. A 6-7. Petitioner does not renew those claims here. /2/ Petitioner does not challenge the adequacy of the colloquy that accompanied his guilty plea. /3/ Even where Rule 44(c) applies, the failure to comply with its provisions does not require reversal unless noncompliance resulted in a Sixth Amendment violation -- i.e., unless defense counsel had an actual conflict of interest that adversely affected his performance. See, e.g., United States v. Pungitore, 910 F.2d 1084, 1140-1141 (3d Cir. 1990); United States v. Crespo de Llano, 838 F.2d 1006, 1013 (9th Cir. 1987); United States v. Holley, 826 F.2d 331, 333 (5th Cir. 1987), cert. denied, 485 U.S. 960 (1988). As we explain in the text, petitioner failed to make the requisite showing under this standard.