[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 01-1071

UNITED STATES,

Appellee,

v.

EMILSON MUÑOZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge, Lynch, Circuit Judge and DiClerico, District Judge.*

Rafael F. Castro Lang on brief for appellant. Guillermo Gil, United States Attorney, Jorge E. Vega- Pacheco, Assistant United States Attorney, and Nelson Pérez- Sosa, Assistant United States Attorney, on brief for appellee.

December 3, 2001

_________________ *Of the District of New Hampshire, sitting by designation.

Per Curiam. Emilson Muñoz ("Muñoz") appeals from

his conviction by guilty plea for possession with intent to

distribute heroin, claiming that he was denied his Sixth

Amendment right to conflict-free counsel. The alleged

conflict stems from the fact that Muñoz and his co-defendant

Sandra Mercado-González ("Mercado-González") were both

represented by the Federal Public Defender's Office, though

different attorneys in the office handled their respective

cases. We conclude that the conviction should be vacated.

I.

On March 23, 2000, a federal grand jury returned

a two count indictment charging Muñoz and Mercado-González

with aiding and abetting each other in importing

approximately 3,814 grams of heroin, see

(a);

(count one), and with aiding and abetting each

other in possessing with intent to distribute the same

amount of heroin, see

(a)(1);

(count two). The court appointed an Assistant Federal

Public Defender to represent Mercado-González. A private

attorney was appointed to represent Muñoz. Mercado-González

and Muñoz both entered pleas of not guilty.

-2- On June 9, 2000, co-defendant Mercado-González pled

guilty to count two. Muñoz was also scheduled to plead

guilty, but his change of plea hearing was cancelled.

Shortly thereafter, counsel for Muñoz filed a motion to

withdraw citing irreconcilable differences with his client.

The motion to withdraw was allowed, and the court appointed

a different Assistant Federal Public Defender to represent

Muñoz. A trial date was set for August 3, 2000.

On July 18, 2000, the Federal Public Defender's

Office moved to withdraw as counsel for Muñoz alleging a

conflict of interest in the office's joint representation of

Muñoz and co-defendant Mercado-González. The motion stated

that Mercado-González had provided information to the

government detrimental to the interests of Muñoz, namely,

that Muñoz had hired Mercado-González to act as a drug

courier. The motion also stated that Mercado-González had

expressed a willingness to cooperate with the government,

and that, although the government had indicated that it had

no present intent to call her as a trial witness, Mercado-

González remained a potential witness against Muñoz. The

Federal Public Defender's Office represented that the

prosecutor shared its concerns about a conflict of interest.

-3- On July 21, 2000, the district judge denied the

motion to withdraw by margin order without hearing. The

order stated that "[a]s long as Sandra Mercado is not a

witness in this case, the alleged conflict is too tenuous to

require discharging the FPD from representing E. Muñoz."

Following the denial of the motion to withdraw, Muñoz pled

guilty to count two of the indictment. On October 17, 2000,

Mercado-González was sentenced to imprisonment for twelve

months and one day followed by a supervised release term of

four years. On November 13, 2000, Muñoz was sentenced to

seventy months imprisonment followed by a supervised release

term of five years.

II.

The first question is whether the district judge

had a duty to make inquiry into the alleged conflict over

and above the inquiry he made. We conclude that he did.

There was more than just a question here of whether the two

defendants could be represented by the same federal public

defender office. Both sides had asserted a potential

conflict of interest, namely, the fact that Mercado-González

was willing to cooperate and had provided information

detrimental to the interests of Muñoz.

-4- The district judge seemingly thought that the

concerns raised were answered by the fact that the

government did not intend to call Mercado-González as a

trial witness. However, the import of the Federal Public

Defender's explanation was also that Mercado-González was in

a position to provide testimony that might be useful at

sentencing and that might work to Muñoz's disadvantage and

her own advantage. Obviously, a single lawyer could not

properly represent both defendants under these

circumstances.

We do not have to consider now whether an

artificial separation within the Federal Public Defender's

Office could have eliminated the possibility of a conflict.

No such suggestion was made here, and the issue is not

before us. While joint representation by the same office is

not as potentially dangerous as joint representation by a

single attorney, the fact remains that the two defendants in

this case were in antagonistic positions, that neither case

had been completely resolved, that client confidential

information may have been disclosed within the office, and

that either defendant was in a position to gain an advantage

by turning on the other, possibly at trial, and, if not, at

-5- sentencing. Perhaps the apparent conflict could have been

resolved with an inquiry, but an inquiry was required.

III.

The second question is what to do now that we have

found a substantial possibility of a conflict and a failure

on the part of the district judge to make adequate inquiry.

The law in this area may be open to different

interpretations.

Holloway v. Arkansas,

(1978),

seems to say that a reversal is required, at least where one

counsel represents several defendants, whenever there was a

timely conflict objection and a failure to make adequate

inquiry. While such a ruling was arguably unnecessary in

Holloway since there was an actual conflict manifest in the

record, the case has sometimes been read as establishing a

rule of automatic reversal. See, e.g., Selsor v. Kaiser,

(10th Cir. 1994) ("Under the Holloway

standard, the trial court's failure to appoint separate

counsel, or adequately inquire into the possibility of

conflict, in the face of a timely objection by defense

counsel, demonstrates ineffective assistance of counsel

without a showing of actual conflict of interest."). But

see Garcia v. Bunnell,

(9th Cir. 1994)

-6- (stating that even on the assumption that defendant timely

objected, Holloway did not require a reversal since there

was no actual conflict).

By contrast, Cuyler v. Sullivan,

(1980), establishes a much more demanding test where there

was no conflict objection and the trial court was under no

duty to make inquiry. Under these circumstances, a

defendant must demonstrate that "an actual conflict of

interest adversely affected his lawyer's performance" in

order to establish a Sixth Amendment violation. Cuyler,

. However, if the defendant meets this test, he

need not demonstrate prejudice to obtain relief.

.

It can be argued that Wood v. Georgia,

(1981), modified Holloway because in Wood the Court failed

to make inquiry into a possible conflict of interest, even

though the conflict issue had been raised by the State, and

the Court instead of vacating the conviction remanded for a

finding of whether there was an actual conflict. See Wood,

; Mountjoy v. Warden,

(1st

Cir. 2001). We note that Wood involved an objection to a

possible conflict raised by the prosecutor, while Holloway

involved the assertion of a conflict made by defense

-7- counsel. It can further be argued that if, on remand, it

can be established that no actual conflict existed, a

defendant should not be entitled to vacation of his

conviction--at least in the absence of some showing that the

failure to make inquiry otherwise prejudiced him.

We have concluded that we do not need to resolve

the question whether Wood modified Holloway. The government

has done nothing to argue the point other than to suggest

that it would not oppose a remand or any other remedy that

this court deems proper. The defendant is asking that the

conviction be vacated. We do not see much prospect that a

remand to explore the conflict issue would be likely to

result in a finding of no actual conflict, dissipate the

uncertainty whether defendant's guilty plea was in some way

affected by counsel's perception that he was operating under

a conflict of interest, or dispel the inference that at

least some communication occurred between Mercado-González's

attorney and Muñoz's. Finally, this is a case where the

government has direct evidence and is hardly likely to be

prejudiced by a need to present the evidence afresh.

Accordingly, we vacate the conviction and sentence,

set aside the guilty plea, and remand the case for further

proceedings consistent with this opinion.

-8- -9-