LUIS CARLOS GUERRERO, PETITIONER V. UNITED STATES OF AMERICA No. 90-7091 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-13) is not reported. JURISDICTION The judgment of the court of appeals was entered November 1, 1990, and a petition for rehearing was denied November 28, 1990. The petition for a writ of certiorari was filed February 12, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner validly waived any claim that counsel was burdened by a conflict of interest. STATEMENT After a jury trial in the United States District Court for the Middle District of Tennessee, petitioner was convicted of conspiracy to import cocaine into the United States (21 U.S.C. 963), conspiracy to distribute cocaine (21 U.S.C. 846), and seven substantive counts of distributing cocaine (21 U.S.C. 841(a)(1)). Petitioner was sentenced to 175 years in prison and was fined a total of $2,025,000. The court of appeals affirmed. Pet. App. 1-13. 1. The evidence, the sufficiency of which is not challenged, showed that from 1984 through 1986 petitioner engaged in a multimillion dollar business involving the importation and distribution of hundreds of kilograms of cocaine. On two separate occasions, petitioner and Francis Edward White, a pilot, picked up more than 300 kilograms of cocaine in Jamaica and flew it to a Caribbean island. From there, they had it shipped into the United States. Petitioner also frequently shipped kilogram quantities of cocaine to White in Nashville, Tennessee, which White in turn distributed to Billy Hiett for resale in the mid-Tennessee area. In addition to laudering more than $1 million in drug proceeds through Panamanian shell corporations, petitioner provided White with $120,000 to purchase a commuter airline in Tennessee. These and other drug-related activities ultimately came to light after White and Hiett were arrested in Tennessee with four kilograms of cocaine supplied by petitioner. Gov't C.A. Br. 3-8. 2. Petitioner's original trial, which lasted from May 31 through June 15, 1988, resulted in a mistrial because the jury was unable to reach a verdict. On July 1, 1988, about two weeks before the scheduled start of the second trial, the government moved to disqualify petitioner's defense counsel, John F. O'Donnell. The government indicated its intent to seek introduction of testimony by cooperating witness Francis White that, after he had been arrested in 1986, attorney O'Donnell visited him in prison and inquired whether White had sufficient funds to post bond and hire a lawyer. According to White, O'Donnell conveyed petitioner's promise to "stand behind" White but warned there would be trouble if White turned against the "Colombians." The government indicated that O'Donnell might well be required to testify for the defense to respond to White's testimony, and that he therefore should not serve as defense counsel in the case. Pet. App. 1-2. The defense strongly opposed the government's disqualification motion, describing it as "untimely" and a "bad faith" effort on the eve of retrial to deny petitioner the counsel of his choice. Pet. Exh. 3. After a hearing, the district court held that White could not testify about attorney O'Donnell's alleged threat regarding the "Colombians" (which O'Donnell disputed) but that he could testify that O'Donnell conveyed petitioner's willingness to help with White's bond and attorney's fees (which O'Donnell did not dispute). O'Donnell indicated that he could handle that aspect of White's testimony on cross-examination, thus obviating any need for him to be a witness. The court then addressed petitioner directly, asking several times whether petitioner understood and consented to what was happening. Responding to several different formulations of the court's questions, petitioner consistently indicated his understanding that O'Donnell would not be able to contradict White's testimony about petitioner's offer to stand behind him. Moreover, petitioner expressly agreed to "waive" this right and indicated that "I'll not change my mind about that." Pet. App. 2-3, 10-11. At trial, Francis White testified about O'Donnell's offer to pay bond and attorney's fees for both White and Hiett. The district court later inquired outside the jury's presence whether a mistrial was necessary because White testified more broadly than expected regarding O'Donnell's offer to pay for Hiett as well as White. While O'Donnell charged the government with breaking its pretrial agreement regarding the scope of White's testimony, he indicated that he could clear up the matter on cross-examination. In response to O'Donnell's questioning, first outside the jury's presence and then in front of the jury, White acknowledged that he had informed O'Donnell about Hiett's arrest and that he rather than O'Donnell had raised the issue of Hiett's fees. Pet. App. 3-4. 3. On appeal, petitioner argued that he had been denied his Sixth Amendment right to conflict-free counsel, and that he had not validly waived that right. The court of appeals affirmed. Pet. App. 1-13. The court determined that, while the "conflict was greatly diminished by the trial court's exclusion of the threat, the weight of the case law supports a finding that an actual conflict existed before trial." Id. at 8. /1/ The court noted that a "trial judge must carefully balance" the competing interests, id. at 3, and further noted that a trial court enjoys "considerable discretion to refuse proffered waivers in light of actual or potential conflicts of interest," id. at 9 (citing Wheat v. United States, 486 U.S. 153 (1988)). The court then held, based on the extensive colloquy between the district court and petitioner, that petitioner's waiver of his right to conflict-free counsel was knowing and intelligent; the court found that "it was always clear that (petitioner) could have obtained other counsel." Pet. App. 10-11. Turning to whether the district court had properly accepted petitioner's waiver, the court held that such waivers should be accepted "absent compelling circumstances." Id. at 12. The court stated that a "review of the record suggests that the (district) court considered the fact that (the disqualification motion was filed) two days before trial, that (petitioner) wanted to keep O'Donnell as counsel, (and) that it did not appear obvious that O'Donnell would have to testify in light of the exclusion of White's testimony on the threat and in light of the fact that O'Donnell was able to clear up White's testimony as to Hiett on cross-examination." Ibid. The court held that, on balance, "the requirement that O'Donnell testify was not so 'obvious' that it outweighed the prejudice to (petitioner) of depriving him of his chosen counsel two days before trial." Id. at 13 (quoting DR 5-102(a) of Model Code of Professional Responsibility). Finally, the court rejected petitioner's challenge to the district court's failure to disqualify Francis Clarke, whom the government had urged should not serve as co-counsel because he too might be required to testify as a defense witness (on matters unrelated to those involving O'Donnell). The district court had agreed with the defense suggestion that Clarke be allowed to sit at defense table as "case agent"; in that capacity, Clarke could and did testify as a defense witness. Pet. App. 3, 9, 13. The court of appeals accepted this arrangement, finding there was no prejudice to petitioner, because Clarke "was functioning in the role of 'case agent'" rather than as a participating attorney. Pet. App. 13. ARGUMENT Petitioner contends that he was denied his Sixth Amendment right to conflict-free counsel and that he did not validly waive that right. 1. This Court held in Wheat v. United States, 486 U.S. 153, 164 (1988), that a district court "must recognize a presumption in favor of (a defendant's) counsel of choice but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." The Court emphasized that a district court must be afforded "substantial latitude" in determining whether defense counsel should be disqualified despite defendant's agreement to waive any conflict. Id. at 163; see also id. at 164 ("evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court"). The court of appeals properly applied the principles set forth in Wheat to the facts of this case. The court stated that a valid waiver should be accepted absent "compelling circumstances," Pet. App. 12, but it also emphasized that a "trial court has considerable discretion to refuse proffered waivers in light of actual or potential conflicts of interest," id. at 9 (citing Wheat). The court held that the district court properly exercised its discretion in balancing these competing concerns. See id. at 12. On balance, the court concluded, "the requirement that O'Donnell testify was not so 'obvious' that it outweighed the prejudice to (petitioner) of depriving him of his chosen counsel two days before trial." Id. at 13 (quoting DR 5-102(a) of Model Code of Professional Responsibility). There is no merit to petitioner's claim that the district court erred in acceding to his wishes. /2/ As the court of appeals recognized, it was reasonable for the district court to credit petitioner's assertion that he would be severely prejudiced by the disqualification of his counsel. Petitioner strongly desired to continue to be represented by the same counsel who had ably represented him on the same charges at the prior trial, which ended in a hung jury. Moreover, the need for O'Donnell to testify, and thus to be disqualified as counsel, was minimized by the district court's pretrial ruling prohibiting White from testifying about O'Donnell's alleged threat. Although White did testify about O'Donnell's promise to pay his bond and attorney's fees, O'Donnell never disputed making that promise, and he got White to agree with every leading question he posed on cross-examination. See Gov't C.A. Br. 14. Thus, it was reasonable for the district court to conclude that petitioner's interest in having O'Donnell as his counsel outweighed any need for O'Donnell to testify about the apparently undisputed matters. 2. The district court was faced with a difficult choice in determining whether to disqualify O'Donnell. Under all the circumstances, it is likely that the court would not have abused its discretion if it had granted the government's motion by disqualifying O'Donnell. See, e.g., United States v. Arrington, 867 F.2d 122, 129 (2d Cir.), cert. denied, 110 S. Ct. 70 (1989). But the possibility that the court of appeals, or other appellate courts, would have upheld an order disqualifying counsel on the same facts does not mean that the district court erred, nor does it indicate a conflict among the circuits. When a district court is granted discretion on a particular matter, that means that within a range of reasonableness, the district court will be upheld whichever way it rules. See Wheat, 486 U.S. at 164 ("Other district courts might have reached differing or opposite conclusions with equal justification, but that does not mean that one conclusion was 'right' and the other 'wrong.'"). The court of appeals' decision in this case does not conflict with the decision of any other court. In Mannhalt v. Reed, 847 F.2d 576 (9th Cir.), cert. denied, 488 U.S. 908 (1988), and Government of the Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984), cited by petitioner, the courts found actual conflicts of interest where defense counsel's own conduct had come under question. That is precisely the same conclusion the court of appeals reached in this case, where the court held that O'Donnell had an actual conflict of interest. See Pet. App. A7-A8. This case differs fro those in one critical respect, however, because in neither Mannhalt nor Zepp did the defendant seek to waive his attorney's conflict. See Mannhalt, 847 F.2d at 580-581 (holding that defendant "cannot prevail on (conflict) claim if he has waived it by consenting to (counsel's) representation" but the "trial court was unaware of the conflict and thus never discussed it with" defendant); Zepp, 748 F.2d at 139 ("no waiver (of the conflict) was received or requested from" the defendant). Here, by contrast, petitioner insisted on proceeding to trial with O'Donnell as his counsel, and the district court granted him that request. If O'Donnell had been disqualified and petitioner had been convicted, petitioner would no doubt be before this Court contending that the district court abused its discretion by denying him the counsel of his choice. 3. Petitioner suggests his waiver of any conflict was not knowing and voluntary, but the court of appeals properly rejected that claim (Pet. App. 10-12). The district court engaged in an extensive on-the-record colloquy with petitioner regarding this matter. Id. at 10-11. Petitioner unequivocally indicated his understanding that O'Donnell would not be able to contradict White's testimony, and expressly agreed to "waive" his right to call O'Donnell as a witness, volunteering that "I'll not change my mind about that." Ibid. While petitioner now complains that the district court never expressly informed him that he could obtain new counsel and thus preserve his right to call O'Donnell as a witness, that was the whole point of the colloquy, and the court of appeals correctly observed, id. at 11, that "it was always clear that (petitioner) could have obtained other counsel." See also ibid. (noting that petitioner "was experienced in legal proceedings, had hired his present legal counsel and had already been through one trial"). Petitioner makes the related contention (Pet. 21) that his waiver was involuntary because he was forced to choose between having O'Donnell as his attorney and calling O'Donnell as a witness. But the district court was entirely justified in insisting on the traditional rule that counsel should not appear as a fact witness in a case lest counsel end up arguing his own credibility to the jury. See Mannhalt v. Reed, supra; Groper v. Taff, 717 F.2d 1415 (D.C. Cir. 1983); United States v. Cortellesso, 663 F.2d 361 (1st Cir. 1981). Since the district court could have taken the more drastic step of disqualifying O'Donnell over petitioner's objection, petitioner cannot now complain that the court confronted him with an impermissible choice when the court permitted him to elect whether to continue with O'Donnell as his counsel or reserve the right to call O'Donnell as a defense witness. 4. Nor is there any merit to petitioner's claim that Francis Clarke should have been disqualified, for unrelated reasons, from serving as co-counsel. Petitioner again is attacking something that the district court did for his benefit, as it was the defense that urged that Clarke be allowed to sit at defense table as "case agent." Pet. App. 3, 9, 13. Cf. Fed. R. Evid. 615 (court should not exclude from courtroom "a person whose presence is shown by a party to be essential to the presentation of the party's cause"). The court of appeals accepted this arrangement, finding there was no prejudice to petitioner because Clarke "was functioning in the role of 'case agent'" rather than as a participating attorney. Pet. App. 13. In that capacity, Clarke could and did testify as a defense witness, thus rendering hollow any claim that petitioner was prejudiced rather than benefited by the arrangement. 5. Finally, there is no merit to petitioner's suggestion that the court of appeals held that the waiver of his right to conflict-free counsel also waived his right to the effective assistance of counsel. Nothing in the court's opinion suggests that it did any such thing. On the contrary, the court found that petitioner was not deprived of the effective assistance of counsel, because it found "no indication in the record that (petitioner's) representation suffered due to O'Donnell's conflict of interest . . . ." Pet. App. 8. 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 APRIL 1991 /1/ The court found that a conflict was not created by White's additional testimony at trial regarding O'Donnell's alleged offer to pay the fees of Hiett as well as White. See Pet. App. 9 ("since White's testimony on cross-examination before the jury exonerated O'Donnell of any offer of attorney's fees or bond for Hiett, there was no need for O'Donnell to testify and no conflict was created"). /2/ The Court in Wheat warned that courts might be "whipsawed" this way. 486 U.S. at 161-162 ("we note, without passing judgment on, the apparent willingness of Courts of Appeals to entertain ineffective-assistance claims from defendants who have specifically waived the right to conflict-free counsel") (citations omitted).