United States v. Jeraldon Green , 701 F.3d 541 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1442
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeraldon Green
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: November 16, 2012
Filed: December 11, 2012
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Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
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RILEY, Chief Judge.
A jury convicted Jeraldon Green of being a felon in possession of a firearm.
Green appeals, alleging the district court1 erred in allowing a trial witness, Daniel
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The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
Herrod, to be advised by an attorney who had previously represented Green in the
early stages of the case. We affirm.
I. BACKGROUND
On May 17, 2011, officers approached Green, a convicted felon, to conduct a
field interview. Green successfully fled from the officers. While in pursuit, the
officers saw what appeared to be a firearm in Green’s back waistband. On May 18,
2011, officers went to a neighborhood where officers had been told Green might be.
Officers observed Green sitting on the front stoop of a house and saw him throw a
large, black, metal object through the open front door. Officers took Green into
custody. Officers then searched the residence with permission of the homeowner and
found a loaded 9 mm Glock 19 firearm with a 30 round magazine under a chair near
the front door. Officers also found two other firearms inside the residence. Herrod,
the homeowner’s son, was home at the time of Green’s arrest.
On May 19, 2011, the government filed a criminal complaint against Green.
On May 26, 2011, a grand jury charged Green with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Assistant Federal Public Defender
Sean Vicente entered an appearance on Green’s behalf on May 25, 2011. Vicente
filed pretrial motions and appeared with Green at a hearing. On August 16, 2011,
Green retained private counsel, and Vicente withdrew as Green’s attorney of record.
The district court held a pretrial conference on November 16, 2011. During
this hearing, the government suggested some of Green’s witnesses may need counsel
if any intended to testify that they possessed one or more of the firearms at issue in
the case. Green’s attorney stated he anticipated a witness would testify the Glock 19,
for which Green was being charged, belonged to the witness. The district court
directed Green’s attorney to inform his witnesses they should seek advice from
counsel before testifying and stated the district court would appoint an attorney to
standby.
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At trial, the district court asked the Federal Public Defender to have an attorney
available, and Vicente responded. Vicente spoke to Green’s witness, Herrod, before
Herrod testified. The district court directed the attorneys to question Herrod outside
the presence of the jury to determine whether Herrod intended to invoke his Fifth
Amendment privilege. Herrod answered most of the attorneys’ questions, but also
indicated Vicente told him to assert his privilege against self-incrimination. Green
then called Herrod as a witness.
Herrod testified he did not see Green with a firearm on the day of Green’s
arrest and he had never seen Green with a firearm. Herrod also testified he did not
see the officers remove any guns from the house on the day of Green’s arrest. When
the government asked Herrod whether he was aware police found a revolver in
Herrod’s bedroom, he responded, “I plead the Fifth, sir.” When the government
asked Herrod whether he was aware of any of the firearms seized from his house,
Herrod again responded, “I plead the Fifth, sir.” The prosecutor then asked Herrod:
Q. Have you ever possessed any of these firearms?
A. No, sir, I haven’t.
Q. Do you own any of these firearms that I just showed you?
A. No, sir.
Q. You [sic] never seen it before, is that what you’re saying?
A. I plead the Fifth.
On November 22, 2011, the jury convicted Green. At sentencing, Green
personally said he felt there was a conflict of interest during the trial because Vicente
represented Herrod despite knowing “all about” Green’s case. The district court
acknowledged Green’s argument and then sentenced Green to 60 months
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imprisonment. Green appeals, contending the district court abused its discretion in
failing to recognize and remedy Vicente’s conflict of interest.
II. DISCUSSION
Green did not object at trial regarding Vicente’s alleged conflict of interest.
“Errors not properly preserved are reviewed only for plain error under Rule 52(b) of
the Federal Rules of Criminal Procedure, as construed in [United States v.] Olano[,
507 U.S. 725, 731 (1993)] and its progeny.” United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005).
To obtain relief under a plain-error standard of review, the party seeking
relief must show that there was an error, the error is clear or obvious
under current law, the error affected the party’s substantial rights, and
the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.
United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). “Plain error review
permits reversal only if the error was so prejudicial as to have affected substantial
rights resulting in a miscarriage of justice.” United States v. Gavin, 583 F.3d 542,
546 (8th Cir. 2009) (quoting United States v. Weaver, 554 F.3d 718, 722 (8th Cir.
2009)) (internal quotation marks omitted).
This court has previously stated that prejudice is presumed where the district
court failed to inquire into a known conflict of interest, and reversal is automatic
regardless of the nature of the conflict. See Caban v. United States, 281 F.3d 778,
781 (8th Cir. 2002). Because Green maintains the per se rule of reversal applies and
relies on Sixth Amendment cases, we assume Green is arguing a violation of his Sixth
Amendment right to effective assistance of counsel.
Green incorrectly asserts the per se rule of reversal applies to this case. That
per se rule applies where the trial court fails to inquire regarding a possible conflict
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of interest related to the attorney representing the defendant. See id. Green does not
allege Vicente had a conflict of interest when Vicente represented Green before trial,
nor that the attorney who represented Green at trial had any conflict of interest. See
United States v. Poe, 428 F.3d 1119, 1122-23 (8th Cir. 2005) (indicating a similar
contention “entail[ed] the pounding of a square peg into a round hole”).
Green bases his argument on what he perceives to be a violation of the Rules
of Professional Conduct. The District Court for the Eastern District of Missouri has
adopted the Rules of Professional Conduct promulgated by the Supreme Court of
Missouri. E.D. Mo. Local R. 83-12.02. Under “Duties to Former Clients,” spelled
out in Missouri Supreme Court Rule 4-1.9(a):
A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the
interest of the former client unless the former client gives informed
consent, confirmed in writing.
Green asserts on appeal that Vicente’s representation of Herrod violated this rule
because Herrod’s interest, in not facing criminal prosecution for illegally possessing
the gun for which Green was charged, was materially adverse to Green’s interest.
While it may have been a better practice to have Herrod advised by an attorney
who had never represented Green, such error, if it is one, is neither clear nor obvious
under current law. The district court did not plainly abuse its discretion.
Green also failed to demonstrate he was in any material way prejudiced by
Vicente’s representation of Herrod. The district court appointed an attorney to advise
the witness in this case because the witness’s testimony could potentially subject him
to criminal prosecution and the witness needed to be informed of his constitutional
privilege not to self-incriminate. Green does not suggest a different attorney
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appointed in Vicente’s place would have advised Herrod any differently. Herrod
testified on Green’s behalf, despite the advice he received from his allegedly
conflicted counsel. Although Herrod may not have testified precisely as Green
expected, Herrod did not invoke his Fifth Amendment privilege when asked whether
he ever possessed or owned the firearms at issue. Herrod also testified he did not see
Green with the subject firearms and he had never seen Green with a firearm. Green
has failed to demonstrate any error affected his substantial rights or affected the
fairness, integrity, or public reputation of the judicial proceeding.
III. CONCLUSION
Not finding plain error, we affirm.
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