RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0028P (6th Cir.) File Name: 00a0028p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   Nos. 98-5936/5937 v.  > STANLEY HALL (98-5936);   Defendants-Appellants.  REX HALL (98-5937),

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Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 98-00007—Karl S. Forester, District Judge. Argued and Submitted: November 4, 1999 Decided and Filed: January 19, 2000 Before: MARTIN, Chief Judge; DAUGHTREY, Circuit Judge; KATZ, District Judge.*

* The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 United States v. Hall, et al. Nos. 98-5936/5937

_________________ COUNSEL ARGUED: William K. Fulmer II, Erlanger, Kentucky, for Appellant. Charles P. Wisdom, Jr., OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: William K. Fulmer II, Erlanger, Kentucky, Dean A. Pisacano, HELLINGS & PISACANO, Covington, Kentucky, for Appellant. Charles P. Wisdom, Jr., OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellees. _________________ OPINION _________________ BOYCE F. MARTIN, JR., Chief Judge. This is a case where two brothers, Rex and Stanley Hall, were poorly served by one attorney, David Van Horn. The younger brother, Stanley Hall, was obviously led astray by his older brother. Even though both Rex and Stanley Hall waived their rights to separate counsel, this is one of the unusual cases where the court should have stepped in to ensure an adequate legal defense for Stanley Hall. Rex and Stanley Hall appeal their convictions of conspiracy to possess with intent to distribute marijuana and cocaine in violation of 21 U.S.C § 846 and possession with intent to distribute marijuana and cocaine in violation of 21 U.S.C. § 841(a)(1). Rex Hall claims his Sixth Amendment rights were violated when the district court denied his request for a continuance. Stanley Hall claims he received ineffective assistance of counsel because Van Horn’s dual representation constituted a conflict of interest in violation of the Sixth Amendment. We affirm Rex Hall’s conviction. We reverse Stanley Hall’s conviction and remand for a new trial. On December 10, 1997, the Kansas Highway Patrol stopped a motor home driven by Howard Graham for a traffic 10 United States v. Hall, et al. Nos. 98-5936/5937 Nos. 98-5936/5937 United States v. Hall, et al. 3

III. violation. Inside the motor home the officers found 135 pounds of marijuana. Graham claimed he had been paid to We AFFIRM the judgment as to Rex Hall. We REVERSE drive the motor home to Kentucky where he would call Fred the judgment as to Stanley Hall and REMAND for a new trial. Thornton and receive further instructions. Graham agreed to work with the officers and contacted Thornton, who instructed him to go to a rest area to exchange vehicles. At the rest area, Graham switched vehicles with Rex and Stanley Hall. Officers followed the Halls to a farm where the Halls removed the marijuana. When the officers approached the farm, Stanley Hall fled on foot but was apprehended shortly thereafter. A search of the farm and house, which was leased by Rex Hall, revealed an additional 190 pounds of marijuana, 5 kilograms of cocaine, and cash in a safe. From the beginning of the proceedings both Rex and Stanley Hall were represented by David Van Horn. The district court, on multiple occasions, informed the Halls that dual representation could result in a conflict of interest. Both Halls elected to continue with the same counsel. The United States petitioned the court for a hearing on the joint representation conflict issue. The United States advised the court of several areas where potential conflicts existed including unsuccessful attempts to negotiate plea agreements, the defense’s failure to request discovery, the potential conflict of defenses, and the disparity in sentences sought for the two defendants. The court conducted a hearing the day before trial at which time Van Horn stated that if he was not allowed to represent both Halls, he wished to continue representing Rex Hall, for whom he had been counsel for years. Stanley Hall again elected to continue with Van Horn, but the record remains cloudy as to whether Stanley understood the full ramifications of what he was doing. Stanley Hall stated that he was “being advised by Van Horn, my lawyer, and I’ll do whatever he advises me to do. . . . ” The judge endorsed his decision by stating that “Mr. Van Horn is a very capable and a very good lawyer and he wouldn’t be here if he didn’t think he could represent both of you adequately because I’ve known him for a long time. . . .” 4 United States v. Hall, et al. Nos. 98-5936/5937 Nos. 98-5936/5937 United States v. Hall, et al. 9

At trial Rex Hall asserted a public authority defense, drug conspiracy, a poorly phrased question to which Van claiming that he was operating as an informant for the Horn did not object. Neither side elaborated as to whether government. Multiple government officials and law officers Stanley Hall’s admission included the cocaine, just the testified that while Rex had been an informant in the past, he marijuana or something else relating to the charge. During was no longer working as an informant. Stanley testified he deliberations, the jury submitted a question to the court thought that his brother was an informant and that he was regarding Stanley Hall’s role in the conspiracy: assisting in an undercover operation. The day before the close of the trial, Rex requested a continuance to obtain the HELP. Both the prosecuting and defense attorneys presence of three witnesses who never testified. The judge stressed that Rex and Stanley were admitting guilt to granted his request until the beginning of the next day. Rex both the marijuana and cocaine. We cannot remember failed to mention the witnesses again. direct evidence linking Stanley to the cocaine. Can the attorneys admitting full knowledge of both clients’ The jury convicted Rex and Stanley Hall of conspiracy to knowledge serve as direct evidence or the lack of possess with the intent to distribute marijuana and cocaine innocence not expressed by Stanley or Stanley’s attorney and possession with intent to distribute marijuana and serve as evidence? If there is any testimony under oath cocaine. The court sentenced Rex Hall to life imprisonment by Stanley or anyone else that provides a link, we would and Stanley Hall to imprisonment for 10 years and one month. appreciate it. The conviction was Rex Hall’s third and Stanley Hall’s first. Both defendants made motions of acquittal to the trial court The obvious confusion on the part of the jury and the lack that were denied. of evidence should have indicated to the court not only that an actual conflict of interest existed, but also that the conflict had I. prejudiced Stanley Hall’s defense. As stated in Wheat v. United States, 486 U.S. 153, 160 (1988): Rex Hall argues that the district court violated his Sixth Amendment rights by improperly denying him a continuance Federal courts have an independent interest in ensuring to secure the presence of three witnesses. The district court that criminal trials are conducted within the ethical never addressed this claim because it was never properly standards of the profession and that legal proceedings made. “Constitutional objections ‘that appear for the first appear fair to all who observe them . . . . Not only the time on appeal are conclusively deemed to be waived, with interest of a criminal defendant but the institutional the effect that [the appellate court is] deprived of interest in the rendition of just verdicts in criminal cases jurisdiction.’” United States v. Scarborough, 43 F.3d 1021, may be jeopardized by unregulated multiple 1025 (6th Cir. 1994) (quoting United States v. Crismon, 905 representation. F.2d 966, 969 (6th Cir. 1990)). When Rex requested time to secure the missing witnesses, the court allowed him until the Because counsel was unable to vigorously represent both next day. The next day, Rex never mentioned the witnesses Stanley and Rex Hall, Stanley Hall has shown that an actual and failed to request further time to secure their presence. conflict of interest existed at trial such that the trial judge Because Rex did not raise his Sixth Amendment claim at any should have intervened and at that stage severed the case time during the district court proceedings, he has waived his against Stanley Hall. right to object and thus we cannot entertain this claim on appeal. 8 United States v. Hall, et al. Nos. 98-5936/5937 Nos. 98-5936/5937 United States v. Hall, et al. 5

435 U.S. 475, 490 (1978) (finding that dual representation Even if Rex Hall had properly made a motion to the district may prevent an attorney “from exploring possible plea court for a continuance, he has failed to show why a negotiations and the possibility of an agreement to testify for continuance should have been granted. The standard of the prosecution”). Van Horn failed to fully represent each review for a district court’s denial of a motion for continuance defendant’s interests, resulting in an actual conflict. While it is abuse of discretion. See United States v. King, 127 F.3d was in Rex Hall’s best interest to go to trial, it clearly was in 483, 486 (6th Cir. 1997). A constitutional violation occurs Stanley Hall’s interest to plead. Stanley Hall had no previous only if the denial was an unreasonable and arbitrary record and the plea agreement was a good one. “insistence upon expeditiousness in the face of a justifiable request for delay.…[T]he defendant must show that the denial We have held that a conflict of interest alone is not resulted in actual prejudice in his defense.” Id. at 487 sufficient to justify reversal of a conviction. See Foltz, 818 (citations omitted). Actual prejudice requires proof that the F.2d at 480. Counsel’s performance must have been continuance would have provided relevant witnesses or adversely affected by the conflict. See id. Inherent in the contributed to the defense. See id. Rex failed to show actual Sixth Amendment right to counsel is the right to reasonably prejudice. In contrast, Rex Hall’s attorney stated at trial that competent counsel and the right to counsel’s undivided two of the desired witnesses had nothing to do with the case loyalty. See Strickland, 466 U.S. at 692. In Holloway v. and that the third witness’s testimony would only be Arkansas, 435 U.S. 475, 489-90 (1978), the Court stated: cumulative. Absent proof that any of the witnesses would have been of some benefit, Rex’s claim must fail and with it Joint representation of conflicting interests is suspect his defense. because of what it tends to prevent the attorney from doing.... [A] conflict may . . . prevent an attorney from II. challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing Stanley Hall asserts his Sixth Amendment rights were at the sentencing hearing the relative involvement and violated because Van Horn’s dual representation resulted in culpability of his clients in order to minimize the a conflict of interest. While Stanley made a motion of culpability of one by emphasizing that of another. acquittal to the district court, he failed to address the ineffective assistance of counsel claim in the district court When they finally went to trial, Van Horn’s loyalty was through a habeas corpus motion. Claims of ineffective obviously divided as to trial strategy. He concentrated only assistance of counsel usually must be addressed first by the on Rex Hall and his public authority defense. Van Horn district court pursuant to a motion under 28 U.S.C. § 2255. never questioned Stanley Hall about his connection to the See United States v. Fortson, 194 F.3d 730, 736 (6th Cir. cocaine found inside of Rex Hall’s home; rather he addressed 1999). As a general rule, this Court will not review claims of only whether Stanley Hall believed his brother was acting as ineffective assistance of counsel for the first time on direct an informant. Furthermore, he never questioned Rex Hall appeal. See United States v. Thomas, 74 F.3d 701, 715 (6th about Stanley’s connection to any of the drugs. No evidence Cir. 1996). An exception exists, however, when the record is was presented in the United States’s direct case demonstrating adequately developed to allow this Court to assess the merits that Stanley Hall had any connection to the cocaine. The only of the issue. See id. In this case, the district court addressed evidence linking Stanley Hall to the cocaine was his the issue of dual representation several times, including at a affirmative answer to the United States’s question on cross- hearing requested by the prosecutor. Because we are examination whether he was admitting to involvement in the addressing Stanley’s Sixth Amendment claim based on 6 United States v. Hall, et al. Nos. 98-5936/5937 Nos. 98-5936/5937 United States v. Hall, et al. 7

ineffective assistance resulting from dual representation, the Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1985)). Thus, record is complete and allows us to review this issue de novo. while the rule is rigid, it is not a per se rule. See id. See id. In Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987), this Stanley Hall alleges that Van Horn’s dual representation Court adopted the standard set forth in United States v. Mers, violated his Sixth Amendment rights. Dual representation, 701 F.2d 1321, 1328 (11th Cir. 1983), to determine whether however, does not automatically constitute a Sixth an actual conflict of interest exists: Amendment violation. See Thomas v. Foltz, 818 F.2d 476, 482 (6th Cir. 1987). A defendant may waive any potential We will not find an actual conflict unless appellants can conflicts of interest and elect to continue with dual point to “specific instances in the record to suggest an representation. See United States v. Reese, 699 F.2d 803, 804 actual conflict or impairment of their interests.” . . . (6th Cir. 1983). This waiver, however, does not bind the Appellants must make a factual showing of inconsistent courts. The purpose of the Sixth Amendment “is to guarantee interests and must demonstrate that the attorney “made a an effective advocate for each criminal defendant rather than choice between possible alternative courses of action, to ensure that a defendant will inexorably be represented by such as eliciting (or failing to elicit) evidence helpful to the lawyer whom he prefers.” Wheat v. United States, 486 one client but harmful to the other. If he did not make U.S. 153, 159 (1988). While “[t]he District Court must such a choice, the conflict remained hypothetical.” . . . recognize a presumption in favor of petitioner's counsel of There is no violation where the conflict is “irrelevant or choice, . . . that presumption may be overcome not only by a merely hypothetical”; there must be an “actual significant demonstration of actual conflict but by a showing of a serious conflict.” potential for conflict.” Id. at 164. A conflict of interest was evident in Stanley Hall’s case by To analyze ineffective assistance of counsel claims, this Van Horn’s failure to successfully negotiate a plea agreement. Court applies the two-pronged standard in Strickland v. Prior to trial, the Halls each entered into plea agreements Washington, 466 U.S. 668 (1984). Under Strickland, a which were signed but withdrawn at the last moment. Under defendant must show that (1) his counsel’s performance was the plea agreement, Rex Hall would have received a life deficient, and (2) this performance prejudiced the defense sentence with the option of earning a motion pursuant to thereby depriving the defendant of a fair trial. See Foltz, 818 U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), and Stanley Hall F.2d at 480. would have pled to between three years and ten months and four years and nine months rather than receiving the Conflict of interest cases involve a slightly different mandatory minimum sentence of ten years. Because this was standard than that used in traditional ineffectiveness claims. Stanley Hall’s first conviction and Rex Hall’s third, the See id. Where there is a conflict of interest, “counsel sentences were exorbitantly unequal. This Court recognized breaches the duty of loyalty, perhaps the most basic of in Foltz, 818 F.2d at 481, the potential problems created by counsel’s duties.” Strickland, 466 U.S. at 692. Thus, when dual representation in connection with plea negotiations. In an actual conflict of interest exists, prejudice is presumed. Foltz, the attorney was prevented from effectively engaging See id. Prejudice is presumed, however, “only if the in any separate plea negotiations on one party’s behalf defendant demonstrates that counsel ‘actively represented without detrimentally affecting the co-defendants. See id. at conflicting interests’ and that ‘an actual conflict of interest 481-82. Foregoing plea negotiations is proof of an actual adversely affected his lawyer’s performance.’” Id. (quoting conflict of interest. See id.; see also Holloway v. Arkansas,