United States v. James Harrison Barham, A/K/A Robert Meyers ( 1984 )

FAY, Circuit Judge:

Appellant, James Barham, appeals to this court for the fourth time alleging error in his conviction under 18 U.S.C. § 371 and § 471 for conspiracy to counterfeit and aiding and abetting counterfeiting. In Bar-ham’s first trial on these charges the jury deadlocked and a mistrial was declared. The second trial yielded a conviction which was reversed on appeal due to the government’s use of perjured testimony. United States v. Barham, 595 F.2d 231 (5th Cir. 1979). Appellant’s conviction at his third trial¹ was affirmed on appeal. 625 F.2d 1221 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 205 (1981). Appellant then initiated this habeas corpus petition in the Northern District of Alabama alleging denial of his constitutional right to effective assistance of counsel. The district court denied relief and we affirm.

During all three trials and in his direct appeal appellant retained Mr. E.E. Edwards to represent him. Between appellant’s second and third trial James Wayman, a prosecution witness, asked Mr. Edwards to represent him in a civil matter concerning Wayman’s United States Navy retirement benefits. Mr. Edwards agreed to and did represent the government witness, placing himself in a position that the district court found “inexcusable” and the magistrate considered “totally incorrect.” Nonetheless, the magistrate and district court denied relief.

Appellant raises one issue: “[wjhether appellant was denied the constitutionally protected right to effective assistance of counsel by the simultaneous representation, in an apparently unrelated civil matter, by appellant’s trial counsel of a government witness.”

At the evidentiary hearing on this petition the question of actual conflict was investigated. The government argued then and now that no actual conflict resulted from the simultaneous representation. The government further argues that Wayman had testified at two prior trials before the simultaneous representation began and that Wayman’s testimony at the third trial was the same as that of the previous two trials. Defense counsel’s cross-examination of Wayman was also the same in all three trials, thus suggesting that no actual prejudice resulted.

To show the insignificance of Wayman’s testimony the government’s brief explains all of the evidence in the government’s ease against Barham. We condense this as follows:

In the Spring of 1977 appellant and Simon discussed the possibility of counterfeiting money. They learned from Dennis Hathcock the equipment they would need.

June 9, 1977. Barham, now using an alias, purchased a printing press in Jackson, Tennessee.

June 11, 1977. Barham purchased 22 acres of land with a trailer and fish house near the Alabama-Tennessee border. He paid cash and put the deed in his daughter’s name.

Barham and Simon then located a plate-maker at a printing supply company in Goodletsville, Tennessee. At night Simon and another man broke into the printing company office and stole the platemaker while Barham stood watch.

About two days later Barham and Simon went to Dury Graphics in Nashville, Tennessee looking for a camera. Barham introduced himself to James Wayman, the salesman, as Robert Meyers. Barham then inquired about cameras. He used a false business name and address and told a false story about printing programs for a racetrack. On June 21, 1977 Barham, using his alias, bought a camera for cash from another printing store in Nashville. On June 23, 1977 Barham purchased supplies from a third printing store in Nashville.

After unsuccessful attempts to print money, Barham involved Charles Fowler, a printer, in a poker game. Once Fowler became indebted to Barham he was induced to aid the counterfeiting scheme. Thereafter Barham purchased paper from a store in Florence, Alabama. Barham’s wife cashed checks for amounts that equalled what Bar-ham allegedly paid to Fowler for aiding the scheme. With Fowler’s help the group printed $560,000 of counterfeit money. They aged and dryed some of the money and began selling it.

Based on an informant’s tip the Secret Service arrested some members of the conspiracy. After obtaining search warrants, Simon’s and Barham’s houses were searched and the printing equipment was found.

All of these facts are established in the record of the trial. From the record, we too agree that Wayman’s testimony was very circumstantial and insignificant. The government’s case would have been made without it, for it only established that Bar-ham used the alias when looking at cameras. He actually bought the camera used in the counterfeiting elsewhere. Appellant argues that Wayman’s identification of him was shaky² and perhaps could have fallen under vigorous cross-examination. Even if it had, the government’s case was very strong. Because Wayman’s testimony and Edwards’ cross-examination were the same in all three trials we cannot conclude that Edwards’ advocacy was dulled due to the simultaneous representation. Further, even if Wayman could have been impeached on the third cross-examination this would not have affected the outcome.

The sixth and fourteenth amendments guarantee reasonably effective assistance of counsel. Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.1982) cert. denied, - U.S. -, 103 S.Ct. 3750, 77 L.Ed.2d 1411 (1983). When counsel has a conflict of interest it may “cause counsel’s representation to fall below the sixth amendment standard,” however, “not all conflicts are so egregious as to constitute a sixth amendment violation.” Westerbrook v. Zant, 704 F.2d 1487, 1498 (11th Cir.1983). See United States v. Mers, 701 F.2d 1321, 1326 (11th Cir.1983) (“mere fact of joint representation will certainly not show an actual conflict.”) (citations omitted) cert. denied, - U.S. -, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983).

In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court held that “the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his sixth amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 350, 100 S.Ct. at 1719. To prevail on a claim of ineffective assistance, a defendant must show “that his counsel actively represented conflicting interests.” Id.

In Baty v. Balkcom, 661 F.2d 391, 396 (5th Cir.1981) (Unit B), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982), Cuyler was interpreted as not “requiring proof of adverse effect on counsel in addition to proof of an actual conflict of interest.” Thus, “prejudice must be presumed, and except under the most extraordinary circumstances, the error cannot be considered harmless.” Id. at 395, quoting Turnquest v. Wainwright, 651 F.2d 331, 334 (5th Cir.1981) (Unit B), quoting Johnson v. Hopper, 639 F.2d 236, 239 (5th Cir.1981) cert. denied, 454 U.S. 1010, 102 S.Ct. 548, 70 L.Ed.2d 412 (1982). The threshold issue is whether there is an actual conflict; for if so, prejudice will be presumed. Therefore, even though we acknowledge that the appellant suffered no prejudice we must examine if there was an actual conflict.

Is This Actual Conflict?

The test of actual conflict for this circuit was formulated in the context of joint representation of co-defendants. “An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Baty v. Balcom, 661 F.2d at 395; Turnquest v. Wainwright, 651 F.2d 331, 333 (5th Cir.1981); United States v. Freeman, 619 F.2d 1112, 1121-22 (5th Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975).

This court has explained recently how the test of actual conflict is applied.

We will not find an actual conflict unless appellants can point to ‘specific instances in the record to suggest an actual conflict or impairment of their interests.’ United States v. Fox, 613 F.2d 99, 102 (5th Cir. 1980). Appellants must make a factual showing of inconsistent interests and must demonstrate that the attorney ‘made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.’

United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.1983) quoting Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 T.Crim.L. & Criminology, 226, 232 (1977). In Mers the court found that joint representation of co-defendants was not an actual conflict because “[n]o appellant has pointed to any different defense theory or new evidence or testimony that independent counsel could have elicited.” 701 F.2d at 1329-30.

The analysis suggested in Mers is difficult to perform in the instant case because we have very little record to examine. The only record before this court consists of the transcript from the Magistrate’s hearing on this petition. During that hearing the appellant testified that after his second trial Mr. Edwards, his attorney, told him that he knew that Wayman’s identification of the appellant was shaky but that he could not bring it out at trial because this knowledge was gleaned under circumstances protected by the attorney-client privilege.³ R.Vol. 2 at 12-13. Mr. Edwards denied having made this statement or having learned any information protected under the attorney-client privilege.⁴ R.Vol. 2 at 50. He testified that his representation of Wayman “had not the remotest connection” with Mr. Barham’s trial and that he considered there to be no conflict. Mr. Edwards testified that he decided to cross examine Mr. Way-man in a friendly rather than hostile, manner because the jury would not have been pleased had he done otherwise. He felt the jury would identify with Mr. Wayman, a citizen, who had coincidental knowledge of a fact and had been inconvenienced three times to travel from Nashville to Birmingham to testify. R.Vol. 2 at 46-47. The Magistrate did not find either Mr. Edwards or the appellant more credible than the other.

Mr. Wayman also testified. He stated that he had no relationship of any sort with the appellant nor any interest in the outcome of his trial. Mr. Wayman testified that he never discussed his testimony at the Barham trial with Mr. Edwards and he specifically denied having ever indicated any equivocation about his identification of Barham. He also stated that his testimony was the same in all three trials.

From this transcript we gather that the only decision Mr. Edwards made that potentially affected both of his clients was whether to cross examine Mr. Wayman in a friendly or hostile manner. This hardly rises to the actual conflict standards enunciated above. There is no indication that Mr. Edwards made a choice between possible actions that would or could have been helpful to one client and harmful to the other. Mr. Wayman and Mr. Barham’s interests do not intersect, much less conflict, in this case. As our earlier discussion of the evidence against Mr. Barham shows, Mr. Way-man’s testimony was wholly inconsequential to the state’s case. We conclude that the alleged conflict in this case remained hypothetical and thus does not meet the sixth amendment threshold announced in Cuyler.

Our conclusion in this case should not be read as condoning defense counsel’s simultaneous representation of a prosecution witness. In the abstract, or the hypothetical, it is not a good idea at all. These facts, however, present the “extraordinary circumstances” excepted from the rule in Baty v. Balcom, supra, and the precedent of this circuit that prejudice is presumed. We find no conflict and no prejudice resulted from this dual representation.

We therefore affirm the district court’s finding that appellant was not denied effective assistance of counsel.

1 . Before the third trial, defense counsel alleged that appellant should not be retired because of the double jeopardy clause. This was rejected by the Fifth Circuit. 608 F.2d 602 (5th Cir. 1979).

2 . Barham testified at the habeas hearing that he asked his counsel, Edwards, to pursue mistaken identity with Wayman and Edwards refused. According to Barham, Edwards refused to recall Wayman because the potential of mistaken identity was learned by Edwards from Wayman under circumstances protected by the attorney-client privilege. Barham testified to two post-trial conversations with Edwards that affirm this story. Edwards denied such conversations. The Magistrate did not find Edwards’ testimony more credible than Barham’s.

3 . Had such an admission of uncertainty occurred in circumstances protected by the attorney-client privilege it would not be grounds for reversal nor would it change our conclusion that no prejudice resulted. In United States v. Alberti, 470 F.2d 878 (2d Cir. 1972) cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973), the court addressed facts similar to those of the instant case and concluded that no conflict or prejudice resulted. The court noted that the information gleaned from the attorney-client relationship to the government witness was helpful in structuring cross-examination. As long as the conflict was not real, the dual representation actually worked to the defendant’s advantage. Here too if counsel learned that Mr. Wayman’s identification was shaky, this would have been an advantage rather than a detriment. Mr. Edwards could have preserved his client’s confidence, yet still conduct more effective cross-examination than an attorney without this knowledge.

4 . Appellant’s counsel did not bring to the trial court’s attention his simultaneous representation of Mr. Wayman and appellant. Appellant testified that he only learned of the situation after his third trial but before the direct appeal. R.Vol. 2 at 8. Mr. Edwards represented appellant in his direct appeal. Mr. Edwards testified that he mentioned the simultaneous representation to appellant and explained that there was no possibility that appellant’s interest and Mr. Wayman’s interests would conflict. Appellant’s testimony is in direct conflict with Mr. Edward’s and because the Magistrate found neither witness more credible than the other we are unable to conclude appellant consented to the joint representation.