USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-1141
UNITED STATES,
Appellee,
v.
JOSE R. HERNANDEZ-LEBRON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Harry R. Segarra for appellant.

________________
Ernesto Hernandez-Milan, Assistant United States Attorney, w
_______________________
whom Guillermo Gil, United States Attorney, and Jose A. Quil
______________
_____________
Espinosa, Senior Litigation Counsel, were on brief for appellee.
________
____________________
May 18, 1994
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Defendant-appellant,

Jose Hernandez-Lebron, pleaded guilty to drug

drug importation charges after
(Perez) were

and Perez.
deprived

he and Milagros Perez Delgado

indicted for conspiracy and drug

all relevant times, a

Defendant

possession and

offenses.

single attorney represented

argues that the

him of the effective

seeks to withdraw his plea.

At

defendant

joint representation

assistance of counsel, and he

Finding nothing in the record to

show

that

conflict

of

interests

impaired

counsel's

performance, we deny defendant the relief he seeks.

I.
I.
BACKGROUND
BACKGROUND
__________
From March 1990 to June 1990, Jeanette Diaz-Laurano
(Diaz),

Edgardo Lopez-Rodriguez, and

Roberto Matos imported

cocaine into the United States from the Netherlands Antilles.

According

to

the

presentence

necessary arrangements,
the couriers

report,

paid for travel

$1000 per kilogram

defendant made

the

expenses, and

paid

of cocaine.

Defendant and

Perez, his common-law wife, accompanied Diaz on two trips.

In
indictment
import,

May 1991,

against defendant

importing,

distribute.
Defendant

a grand

21
and

jury returned

and

and possessing
U.S.C.

Perez

Perez

retained

represent them.

-22

for conspiring

cocaine

841(a)(1),
Attorney

a five-count

with

952(a),
Edwin

to

intent to
960,

963.

Quinones to

In June 1991, Perez moved to have her trial severed

from

defendant's.

severance

The

on September

assigned
24,

trial

1991 and

judge

granted

scheduled defendant's

trial for October 11, several weeks before Perez's.

Meanwhile,
reconsideration of
Fed.

R. Crim.

the

government

the severance,

P. 44(c),

on the

representation would "jeopardize

particularly

whom

request

for a

for

hearing, under

question of

whether joint

both defendants[']

rights,

Government's Mot.
_________________

On October 7, 1991, another judge,

the litigation

severance, set a joint

motions

and for a

Milagros Perez-Delgado['s],"

for Rule 44(c) H'g, at 2.

__________________
to

filed

had

been

reassigned, vacated

trial for October 11, and

hearing into

the question

of a

the

denied the
conflict of

interests because a magistrate judge had previously held such

a hearing.
On the morning of
to one count of importing
were dismissed

October 11, Perez pleaded guilty

cocaine, and the remaining

as to her.

Defendant followed

hours later by pleading to two

counts

suit several

counts of cocaine importation

and possession, on the condition that the remaining counts be

dismissed.

Quinones

represented both

defendant and

Perez

through their plea negotiations, change of plea hearings, and

defendant's sentencing proceeding.
Prior
which

to the

date

followed defendant's,

of her
Perez

sentencing proceeding,
filed a

motion for

the

-33

appointment of separate counsel.

motion

because

jeopardized

it

found

her right

The trial court granted the

that

to

conflict

of

effective assistance

interests
of counsel.

Perez is not a party to this appeal.

II.
II.
Defendant's contentions on appeal are:
never

adequately

representation;

informed

of

that the trial

into potential conflicts when

that

his

lawyer's

divided

Amendment

right to

the

Defendant

seeks to

withdraw

The government
over

risks

judge had a

of

joint

duty to inquire

the severance was vacated; and

loyalties

effective

violated

joint representation,

his

assistance of

his plea

for those

responds that the magistrate

defendant's arraignment

risks of

the

that he was

counsel.
reasons.1

judge presiding

adequately warned
and that no

Sixth

him of

the

actual conflict

developed.
Conflicts of Interests and Sixth Amendment Principles
Conflicts of Interests and Sixth Amendment Principles

_____________________________________________________
A

defendant

representation under

has

right

to

the Sixth Amendment.

conflict-free
Wood v. Georgia,
____
_______

450 U.S. 261, 271 (1981); Holloway v. Arkansas, 435 U.S. 475,
________
________

____________________
1. Defendant also raises a sentencing issue, to which we
devote nothing more than this footnote. In a single two-line
sentence in his brief, defendant argues that the trial court
erred in basing his sentence on sixteen kilograms of cocaine
rather than fourteen kilograms.
The record indicates that
defense counsel explicitly
conceded at sentencing that
sixteen kilograms were involved in the offense, and there is
ample support for the trial court's calculations.
-44

489-90

(1978).

When two

or more defendants

counsel, conflicts of interests might arise.

is within

the attorney's

attorney might

not be

loyalty; the

able

"[T]he conflict

problem is

to represent

without damaging the interests of

share the same

one client

the other client."

States ex rel. Tonaldi v. Elrod, 716

______________________
_____

that the
fully
United
______

F.2d 431, 437 (7th Cir.

1983).

Although "in

some

cases

multiple defendants

appropriately be represented by one

U.S.

at

482,

joint

Amendment

when

it gives

adversely

affecting

the lawyer's

Sullivan,
________

446

335,

Mazzaferro,
__________

U.S.

attorney," Holloway, 435

________

representation
rise

to a

348

violates
conflict

the

performance.
(1980);

Sixth

of interests
Cuyler
______

v.

United States
______________

v.

865 F.2d 450, 455 (1st Cir. 1989).

such cases is presumed.

can

Prejudice in

Mazzaferro, 865 F.2d at

__________

455; Brien
_____

v. United States, 695 F.2d 10, 15 (1st Cir. 1982).

_____________
Conflicts may
because

codefendants

situated.
defendant
evidence
plea

The
over

are

joint
the

favorable to

negotiations,

arise at

any stage of

rarely,

attorney

other

if

have

at trial,

where,

identically-

to

prefer
for

example,

harms another;

undermines the position of others, or when a plea

bargaining

on one

defendant

for

during

defendant

conditioned

advocacy

one

one

offer is

where

ever,

may

one defendant

a proceeding

testifying

against

another; and at sentencing, where sentencing factors compel a

lawyer to distinguish

between clients.

-55

See United States v.

___ _____________

Curcio, 680 F.2d

______
examples

of

881, 887 (2d

conflicts); Fed.

committee's notes;
Defense Function
"It

R.

Crim.

ABA Standards for

P. 44(c)

myriad
advisory

Criminal Justice,

The

4-3.5 (2d ed. 1980).

has

long

inherent difficulties"
interests.

Cir. 1982) (providing

been

recognized

in reviewing

that

claims of

there

are

conflicts of

Mazzaferro, 865 F.2d at 456 (citing Holloway, 435

__________
________

U.S. at 490).

These difficulties arise because "in a case of

joint representation
is in what

of conflicting interests the evil . . .

the advocate finds

from doing . .
original).

. ."
It

interests, and

is

himself compelled to

Holloway, 435 U.S.

________
often unclear

refrain
_______

at 490 (emphasis in

"that

the

not pure trial strategy," is

the tactics adopted--or forgone--at trial."

conflict

of

the reason "for

Curcio, 680 F.2d
______

at 887.
Trial Court's Duty of Inquiry
Trial Court's Duty of Inquiry
_____________________________
So
multiple

"ubiquitous and

insidious"

representation, Curcio,
______

680

are the

F.2d at

risks

of

887, and

so

fundamental is the right to counsel, that the Sixth Amendment

imposes duties on trial courts in certain cases.
U.S.

at

346.

Defendant's

representation must be
made

court

knows

objections

investigated, and

into the propriety

the trial

timely

Cuyler, 446
______
to

joint

inquiries must

be

of multiple representation whenever

or

reasonably should

particular conflict exists.

know

that

Cuyler, 446 U.S. at 346-47.

______

-66

Federal
these
a

Rule of

Criminal Procedure

44(c) expands

duties by requiring an inquiry into the possibility of

conflict in

all

cases where

retain the same counsel.

jointly-charged

defendants

Under Rule 44(c), the

trial court

must "inquire with respect to such joint representation and .

.

. personally

effective

advise each

assistance

representation."
there is good

Id.
___

cause to

of

defendant of
counsel,

Moreover,

the right

including

"[u]nless it

believe no conflict

to the
separate

appears that

of interest

is

likely to arise," Rule 44(c) requires the court to "take such

measures as

may be

right to counsel."
Rule
United States
_____________
Foster,
______

we

appropriate to protect

each defendant's

Id.
__

44(c)

has

v. Foster,
______
exercised

an antecedent
469 F.2d

our

1 (1st

supervisory

in

this

Circuit,

Cir. 1972).
powers

in

In
cases

involving jointly-represented defendants:

[I]t shall be the duty of the trial
court, as early in the litigation as
practicable, to comment on some of the
risks confronted where defendants are
jointly
represented
to insure
that
defendants are aware of such risks, and
to inquire diligently whether they have
discussed the risks with their attorney,
and whether they understand that they may
retain separate counsel appointed by the
court and paid for by the government.
Id. at 5.
___
Id.;
___
notes.

The warning and the inquiry must be on the record.

accord
______

Fed. R.

Crim.

P.

44(c) advisory

committee's

We require a Foster inquiry to ensure that defendants

______

-77

have

been properly

that

arises when defendants

ignorance
F.2d

warned and

or misadvice."

912, 915

n.3 (1st

(1980); see also

___ ____

to "prevent

make post-conviction
United States v.
______________

Cir.), cert.
_____

Colon v. Fogg, 603

_____
____

ascertaining

prejudice the

whether

the

Martorano, 620
_________
U.S. 952

F.2d 403, 407

(2d Cir.

joint

defendant . . . .").

claims of

denied, 449
______

1979) ("Such an inquiry is usually the only

of

the uncertainty

practical method

representation

may

Where there is no record

of a satisfactory inquiry, the government bears the burden of

proving

that

prejudice

to

the

defendant

was improbable.

Mazzaferro, 865 F.2d at 454.

__________
The
defendant

and

magistrate
Perez

judge

engaged

at
in

the

the

arraignment

following

regarding the risks of joint representation:

[Magistrate:]
[W]hen one
attorney
represent two or more Defendants in this
same case, there is always a possibility
of conflict of interest.
The Court of Appeals for the First
Circuit has established in the case of
United States vs. Foster that when such
_________________________
possibility exists the Court must discuss
some of the risks confronted when two or
more Defendants are jointly represented
to ensure that the Defendants are aware
of such risks and to ask whether they
have discussed the
risk with
their
attorney and whether they understand that
they may retain separate counsels.
If Defendant is financially unable
to pay for such services a counsel will
be appointed and paid by the Government.

of

dialogue

Now, I must appraise [sic] you that

it may be possible that during the course
of this action that with respect of
particular defenses and decisions, such
-88

as whether or not to take the stand or to

call particular witnesses or
how to
conduct a cross examination what may be
in one's best interest will turn out not
to be in the best interest of the other.
It is imperative that you, as the
Defendants, understand the importance of
my advice concerning the conflict of
interest.
Defendant, do you understand the
problem?
[Defendant:] Yes.
. . .
[Magistrate:]
Have you been able to
discuss the problem with your counsel?
[Defendant:] Yes.
. . .
[Magistrate:]
Do you still wish to
proceed with the same counsel as you're
co-Defendants?
[Defendant:] At this time, yes.
. . .
[Magistrate:] Well, if at any time any
one of you understand that a possible
conflict of interest is present let the
Court know of it so necessary steps will
be taken to protect your Constitutional
Rights and to
be represented by
a
competent counsel.
Is that clear?
[Defendant:] Yes.

. . .
While the government argues that the magistrate's inquiry was
adequate,
that

defendant takes

the opposite

the magistrate did not "fully

view on

the ground

advise" defendant of the

risks and did not elicit a narrative response.

Defendant
essential to
lacked.

We

has

failed

a Foster hearing that

______
do not

require that

responses, or that defendants

risk.

to

See
___

Foster,
______

identify

any

element

the magistrate's inquiry

defendants make

narrative

be warned of every conceivable

469 F.2d

at

(form

of

hearing is

court's discretion).

Those are

-99

generally within
requirements we
prelude

to

representation.
challenge

his

the trial
might

impose if

waiver

of

the

But it is not.
conviction

on

Foster inquiry
______
right

to

were

conflict-free

A defendant can successfully

the ground

that

conflict

impaired his lawyer's performance, even if an adequate Foster

______

inquiry

occurred.

See Mazzaferro,
___ __________

865 F.2d at 455; Foster,

______

469 F.2d at 5.
We

have required that

courts explain

the risks of joint representation, in

enable

defendants to

lay persons' terms, to

appreciate how conflicts

the lawyer's performance.

and explore

might impair

United States v. Elkins, 774 F.2d

______________
______

530,

541 (1st Cir. 1985); United States v. Waldman, 579 F.2d

_____________
_______

649,

653 (1st Cir. 1978); United States v. Donahue, 560 F.2d

_____________
_______

1039, 1043-44 (1st Cir.

1977).

The magistrate in

this case

personally addressed defendant regarding the possibility of a

conflict,

stated that he

had a

right to

separate counsel,

provided examples of conflicts that might arise at trial, and

elicited an unequivocal "Yes,"

in response to a

whether defendant had discussed

question on

"the problem" with counsel.2

Defendant argues that his mental health problems, illiteracy,

and

lack

of

formal

education

rendered

the

inquiry

____________________
2. The magistrate also obtained defendant's signature on a
form entitled, "Acknowledgment
of Joint
Representation
Admonishment," which essentially repeated what the magistrate
stated in open court.
-1010

inadequate.

The record

defendant was

incompetent, or

the

does

not

that he could

magistrate's explanation.

acknowledged

that

he

suggest, however,

On the

understood.

that

not comprehend

contrary, defendant

Moreover,

defendant's

qualified response as to whether he desired to continue to be

represented

by Quinones--"At

that his answers

might not

have

were not

this

time, yes."--

merely rote.

been exemplary,

it was

suggested

While the

inquiry

adequate to

ensure

defendant understood the risks.

Next, defendant
duty to

inquire

interests

into

later

severance.

in

the

possibility

of

proceeding, when
to

defendant,

defense counsel

favoring one client

court's

the

According

decision placed

argues that the trial

over the

court had a

conflict

of

it

vacated

the

the

trial

in the position

other at trial,

court's

of perhaps

and that

the

failure to provide a Foster hearing at that time was

______

improper.3
We agree

with defendant that the trial court had a

duty to investigate

the possibility

of a

conflict when

vacated the severance.

Under Rule 44(c), the

duty

the possibility

to

inquire

into

____________________

of

it

trial court's
a

conflict

of

3. The government, not defense counsel, requested a second

Foster hearing when it moved for reconsideration of the
______
severance order.
The trial judge denied the government's
motion, shortly after vacating the severance, when defense
counsel confirmed that the magistrate previously held a
Foster hearing.
______
-1111

interest

is

advisory

committee's

reinitiating

"a continuing

one."

notes.

an inquiry

That

when

separate
week

this case,

trials until

before

trial.

the severance

heightened the risk that a

defense
680

F.2d

887

counsel for multiple

one defendant

may

entail

"new developments"

order

was

preparing for

was vacated,
vacating

the

only one
severance

conflict might infect certain

counsel's strategic decisions.

at

P. 44(c)

Id.
___

defense counsel

The

R. Crim.
duty

there are

suggesting a potential conflict.

In

Fed.

(discussing

See,
___

dilemmas

e.g., Curcio,
____ ______

confronting

defendants, including "whether

testify while the other

of

trial
to have

remains silent"); cf.

___

Cuyler,
______

446

U.S.

significantly
interests).

at

347

(provision

of

reduced

the

potential for

separate
a

trials

divergence

in

Given that heightened risk, the court had a duty

to inquire whether a conflict would develop at trial.

Contrary
however,

we find

duty.

Prior

investigated
defendant

to

defendant's

that the
to

would diverge.

the request for

an

the

defense

did not

strategies

Defendant's

appeal,

shirk that
the

court

of Perez

and

affidavit supporting
that, if the

trials

testify at Perez's trial that

he had

affair

with

Jeanette Diaz

and

that

she

witness),

on

severance,

separate trials stated

were severed, he would

had

trial court

vacating

whether the

argument

was

(the

falsely

government's
incriminating

key
both

-1212

defendant and Perez--his

"did not

please

affidavit and
the

hearing

defendant

The

court concluded

from

from inquiries he

made of defense

counsel at

on

[Diaz]."

common-law wife--because

the

motion for

reconsideration

that

that

the

codefendants'

strategies

were

harmonious.

identified no other developments

to

the

order

vacating

the

Defendant has

in his case occurring prior

severance

that

should

have

implicated a duty to inquire further.

Although the trial court
the potential for a
the court did
explication

conflict when it vacated

not err
of

had a duty to investigate

by not giving

the perils

of

defendant any

joint

magistrate cautioned defendant before

the severance,
further

representation.

The

the cases were severed

that "with respect of particular defenses and decisions, such

as whether or

not to take

witnesses or how to
in one's

the stand or

to call

particular

conduct a cross examination what

best interest will turn

interest of the other."

out not to be

While it would have

may be

in the best

been advisable

to repeat this admonition, it was not necessary to do so.

are

satisfied

supplemented

that
by the

the
trial

defenses were consistent,

magistrate's
court's

Foster
______

-1313

hearing,

determination that

adequately explored the

We

the

potential

for a conflict and ensured that defendant was not ignorant or

misadvised in his choice of counsel.4
Defendant's Burden of Showing Conflict of Interests
Defendant's Burden of Showing Conflict of Interests
___________________________________________________
Our determination that an adequate inquiry occurred
does

not end our analysis of whether a conflict of interests

violated

defendant's

counsel.

to

effective

Rather, because a satisfactory

the record, we turn to

of

right

showing that

of

inquiry appears in

whether defendant carried the

an actual

lawyer's performance.

assistance

conflict adversely

Mazzaferro, 865 F.2d

__________

burden

affected his

at 455; Foster,
______

469 F.2d at 5.
Defendant makes two arguments in an effort to carry
that

burden.

resulted in

First, he asserts that a conflict of interests

the disparity

(188 months versus time

disparity,
affected

between his sentence

served).

however, that a
his

lawyer's

substantial
cases.

We cannot infer

conflict of

performance.

government, Perez's drastically

and Perez's
from that

interests adversely
According

to

the

lower sentence reflected her

assistance in obtaining convictions in unrelated

____________________
4. One might argue that the trial court had a duty to
inquire further into the
potential for a conflict of
interests prior to accepting defendant's guilty plea, where
Perez, still represented by Quinones, changed her plea
several hours earlier.
We decline to consider that issue,
however, because neither party has addressed it.
-1414

Defendant's
assistance

pertains

remaining
to

the

claim

of

circumstances

ineffective

surrounding his

decision to change his plea several hours after Perez changed

hers.

While

this may be

a stronger claim,

our ability

evaluate it is hampered by the state of the record.

little
guilty.

evidence

regarding

In addition, we

defendant's
have no record

during Perez's change of plea hearing.

at oral

argument that defendant

Perez accepted the government's

change
the

of plea hearing.

case.

There is
to

plead

of what transpired

The government stated

sat in the

courtroom while

version of the facts

at her

But neither her plea agreement, nor

transcript of her Rule 11

in this

decision

to

hearing is part of the record

The record does not indicate that Perez would

have testified if defendant

had gone to trial.

Cf. Trammel

___ _______
v.

United States,
_____________

holds

445

U.S. 40,

to

refuse

privilege

Consequently, we
interests
during
Because

to

(witness-spouse

testify

cannot fairly assess whether

infected

Quinones's

plea negotiations
this is not

and

a case

assistance of

direct appeal for

leave to

adversely).
a conflict of

representation of
his change

where the

evaluate fully and fairly the

ineffective

53 (1980)

defendant

of plea

hearing.

record allows

us to

merits of defendant's claim of

counsel, we

deny his

withdraw his plea.

request on
See
___

States v. Rinard, 956 F.2d 85, 87 (5th Cir. 1992).

______
______

United
______

Defendant

-1515

may

raise the

claim

corpus petition.
Affirmed.
Affirmed.
_________

anew, if

he so

chooses, in

a habeas

-1616