United States v. Justin Fowler ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN FOWLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00963-TLW-2)
Submitted: July 26, 2012 Decided: August 7, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Columbia, South Carolina; A. Bradley Parham, Assistant
United States Attorney, Florence, South Carolina; Lanny A.
Breuer, Assistant Attorney General, John D. Buretta Acting
Deputy Assistant Attorney General, Thomas E. Booth, DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Fowler appeals his conviction and sixty-month
sentence following his plea of guilty to attempting to possess
with intent to distribute 500 grams or more of cocaine, and
marijuana, in violation of 21 U.S.C. § 846 (2006). On appeal,
Fowler claims that the magistrate judge’s disqualification of
his retained counsel due to counsel’s previous and continuing
professional association with counsel for Fowler’s codefendant,
his father, violated his Sixth Amendment right to counsel of his
choosing. Finding no error, we affirm.
“[T]he Sixth Amendment secures the right to the
assistance of counsel, by appointment if necessary, in a trial
for any serious crime.” Wheat v. United States, 486 U.S. 153,
158 (1988). Although this right to counsel includes the right
to counsel of one’s choosing, it does not necessarily include
the right to choose counsel who may be operating under a
conflict of interest. Id. at 159-60; see also Hoffman v. Leeke,
903 F.2d 280, 285 (4th Cir. 1990).
Accordingly, although a court may allow waiver of the
right to conflict-free counsel, not all such conflicts may be
waived by a defendant because “[f]ederal courts have an
independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.”
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Wheat, 486 U.S. at 160. Instead, the presumption in favor of a
counsel of one’s choice may be overcome by a showing of an
actual conflict of interest or the serious potential for a
conflict of interest. United States v. Basham, 561 F.3d 302,
323 (4th Cir. 2009).
Further, the court has a duty to anticipate problems
with representation and to promptly act to remedy an actual or
potential conflict. Id. Once a conflict or potential conflict
is identified, the court is obligated and has discretion to
independently determine whether the continued representation by
counsel impedes the integrity of the proceedings and whether the
attorney should therefore be disqualified. Wheat, 486 U.S. at
161-64; United States v. Williams, 81 F.3d 1321, 1324-25 (4th
Cir. 1996). For this purpose, the court has “sufficiently broad
discretion to rule without fear that it is setting itself up for
reversal on appeal either on right-to-counsel grounds if it
disqualifies the defendant’s chosen lawyer, or on ineffective-
assistance grounds if it permits conflict-infected
representation of the defendant.” Williams, 81 F.3d at 1324.
(citing Wheat, 486 U.S. at 161-64).
Fowler’s initial contention is that the magistrate
judge erred in proceeding on the assumption that the
professional association of his and his father’s attorneys was
sufficiently close as to warrant the imputation of conflicts of
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interest between them. Having carefully reviewed the record, we
conclude that Fowler invited the error of which he complains and
has waived review of the issue.
Generally, we will not consider alleged errors that
were invited by the complaining party. United States v.
Hickman, 626 F.3d 756, 772 (4th Cir. 2010). “It has long been
recognized that a court can not be asked by counsel to take a
step in a case and later be convicted of error, because it has
complied with such request.” United States v. Herrera, 23 F.3d
74, 75 (4th Cir. 1994) (internal quotation marks omitted).
Here, Fowler’s disqualified counsel clearly invited
the magistrate judge to assume that any conflict of interest
arising from the representation of Fowler and his father as
codefendants could be imputed between himself and counsel for
Fowler’s father. Fowler may not now challenge the propriety of
such an assumption simply because the magistrate judge’s ensuing
finding that the potential for an unwaivable conflict of
interest existed was not as he had hoped. Accordingly, we find
no error in the court regarding counsel below as “associated in
law practice.” Fed. R. Crim. P. 44(c)(1).
Fowler also claims that the court erred in concluding
that the joint representation of himself and his father
presented numerous potential conflicts of interest. Given our
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highly deferential standard of review, we find no abuse of
discretion.
First, the magistrate judge noted the potential for
conflicts of interest normally raised by any situation of joint
representation, and that such representation is generally
disfavored. The court also recognized that the allegations and
charges against Fowler and his father were not identical, and
that their familial relationship likely amplified the potential
for conflicting interests and the need for independent counsel.
Further, Fowler’s other attorney below openly admitted
that Fowler’s best interests were not necessarily aligned with
his father’s, thus undercutting Fowler’s claim on appeal that
the magistrate judge erred by finding a potential for conflict
based solely on the Government’s representations. Also contrary
to Fowler’s contentions, the court was not required to more
fully apprise itself of the facts and circumstances surrounding
the Fowlers’ charges or their respective defenses before making
a finding regarding the potential for conflict. See Wheat, 486
U.S. at 162. Nor was the magistrate judge required to accept
the assurance of disqualified counsel that the two men’s
defenses would not become acrimonious. Id. at 163.
Accordingly, the court properly exercised its discretion in
identifying the potential for conflicts of interest. Id. at
164; Basham, 561 F.3d at 324.
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Last, Justin contends that the district court, having
identified the potential for a conflict of interest, failed to
comply with Fed. R. Crim. P. 44(c)(2) when determining that
counsel should be disqualified.
Rule 44(c)(2) provides the manner in which a court
must inquire into the joint representation of multiple
defendants. Pursuant to the rule, a trial court must alert a
defendant to the risks of joint representation, ensure that he
is aware of such risks and has discussed them with counsel, and
inform him of his right to the effective assistance of separate
counsel. See United States v. Swartz, 975 F.2d 1042, 1049 (4th
Cir. 1992). Once a defendant is properly apprised, the court
may take appropriate measures to protect his right to counsel.
Fed. R. Crim. P. 44(c)(2). The court must ensure that any
subsequent waiver of an actual or potential conflict is knowing,
intelligent, and voluntary. See Swartz, 975 F.2d at 1048-49.
Justin first claims that the court erred by failing to
fully advise him of the facts underlying the potential conflicts
of interest it identified. As we have previously expressed, a
defendant facing the disqualification of counsel is entitled “to
be told in generic terms the basis for any alleged conflict in
the representation of his selected counsel and the potential
consequences of such conflict.” See United States v. Duklewski,
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567 F.2d 255, 257 (4th Cir. 1977) (internal quotation marks
omitted).
Here, the magistrate judge, addressing Fowler
personally, clearly explained the nature of its concern, and
Fowler, having discussed it with counsel, indicated that he
understood the “situation.” Accordingly, we find that Fowler
was appropriately informed.
Next, Fowler claims that the court should have
explicitly offered him the opportunity to personally address the
court, express his views regarding any potential conflict, and
waive any such conflict. Generally, the colloquy required by
Fed. R. Crim. P. 44(c)(2) should allow a defendant to ask any
questions he may have regarding the nature and consequences of
joint representation and address the court regarding an
identified potential for conflict. See Swartz, 975 F.2d at
1048-49; Duklewski, 567 F.2d at 257.
Here, although the magistrate judge did not expressly
offer Fowler the chance to ask questions or comment regarding
the disqualification of counsel, the court addressed Fowler
personally and confirmed that he understood why counsel was
being disqualified, and Fowler did not express any desire to
discuss the matter further. We find no reversible error in the
court’s conduct. Fed. R. Crim. P. 52(a).
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Further, the court, having been repeatedly apprised by
Fowler’s counsel of Fowler’s willingness to waive any potential
conflict of interest, did not violate Fed. R. Crim. P. 44(c)(2)
or otherwise commit reversible error by failing to elicit from
Fowler himself a reiteration of the same willingness, especially
in light of the court’s determination that the potential
conflicts it identified were unwaivable. See Basham, 561 F.3d
at 323.
Accordingly, we affirm Fowler’s conviction and
sentence. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid in the decisional
process.
AFFIRMED
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