United States v. Lana Christine Acty

___________
No. 95-1779
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Lana Christine Acty, *
also known as Chris Acty, *
*
Appellant. *
___________
Submitted: November 14, 1995
Filed: March 7, 1996
___________
Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
BEAM, Circuit Judge.
Lana Christine Acty (Acty) appeals the district court's1 denial of
her motion to vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255. Acty contends she was denied effective assistance of
counsel due to her attorneys' conflicts of interest and their adoption of
an unreasonable defense to the charges against her. We affirm.
I. BACKGROUND
In 1977, Acty and her husband (now former husband), George Michael
Moore (Moore), formed "Posters ``N' Things, Ltd." (Posters), an Iowa
corporation consisting of three component businesses. Subsequently, law
enforcement officials began receiving complaints
1
The Honorable Charles R. Wolle, United States District Court
Judge for the Southern District of Iowa.
that one of these businesses, a merchandise store, was selling drug
paraphernalia. Authorities initiated an investigation, and on March 28,
1990, conducted a search of the merchandise store and of the residence of
Acty and Moore. In the raid, officials seized various items of merchandise
and several volumes of financial records related to the business.
The following day, Acty and Moore met with attorney Lawrence Scalise
(Scalise) in his Des Moines, Iowa, office. Scalise agreed to represent
Acty, Moore, and Posters on any criminal or civil charges brought against
them. Scalise did not, however, receive a retainer fee from either Acty
or Moore at this meeting.
Shortly after this initial meeting, Acty and Moore arranged another
appointment with Scalise, this time in Las Vegas, Nevada. The two arranged
for Robert Vaughn (Vaughn), an attorney and Executive Director of the
American Pipe and Tobacco Council, to attend this meeting. Acty was a
member of the American Pipe and Tobacco Council, and Vaughn had regularly
advised Acty regarding the various drug paraphernalia laws applicable to
the operation of Posters. Vaughn acted as a consultant to Acty and Moore
during the Las Vegas meeting. It was at this meeting that Scalise received
a retainer for his services from Acty and Moore.
On May 16, 1990, Acty, Moore, and Posters were formally indicted on
various offenses related to the sale of drug paraphernalia.2 In the months
following the indictment, Acty and Moore continued to meet with Scalise
and, later, also with Scalise's partner, John Sandre (Sandre). During this
time, Acty and Moore experienced intermittent periods of marital discord
which would occasionally come to the attention of their lawyers.
Nevertheless, Scalise and Sandre continued to represent all three
2
Acty was named in nine counts in the indictment, while Moore
was named in six of the counts charged.
-2-
defendants until November 1990. At that time, Acty sought alternative
counsel in Vaughn.
At a joint jury trial held in December 1990, Vaughn appeared on
Acty's behalf, Scalise represented Moore, and Sandre served as counsel for
Posters. The attorneys divided some of the tasks of trial preparation and
presentation, however, with each attorney accepting primary responsibility
for particular charges. At the conclusion of trial, Acty was convicted of
each of the nine counts charged against her and was sentenced to 108 months
in prison. Acty's conviction was ultimately affirmed in Posters 'N'
Things, Ltd. v. United States, 114 S. Ct. 1747 (1994).
On July 22, 1994, Acty filed a motion for postconviction relief,
claiming she was denied effective assistance of counsel as guaranteed by
the Sixth Amendment to the United States Constitution. The district court
denied the requested relief, and Acty appeals. Acty argues that she
received ineffective assistance of counsel because her attorneys labored
under a conflict of interest due to their dual representation of both Acty
and Moore. Acty further alleges that her first attorney's reliance on an
"advice of counsel" defense to the charges against her constituted
ineffective assistance of counsel.
II. DISCUSSION
A. Conflict of Interest
The Sixth Amendment right to counsel embraces the right to
representation that is free from conflicts of interest or divided
loyalties. See, e.g., Dawan v. Lockhart, 31 F.3d 718, 720-21 (8th Cir.
1994) (subsequent history omitted). Conflicts may arise when an attorney
simultaneously represents clients with differing interests. Salam v.
Lockhart, 874 F.2d 525, 527 (8th Cir.), cert. denied, 493 U.S. 898 (1989).
Nevertheless, joint representation of
-3-
codefendants by a single attorney is not per se violative of a defendant's
right to effective assistance of counsel. Dokes v. Lockhart, 992 F.2d 833,
836 (8th Cir. 1993), cert. denied, 115 S. Ct. 437 (1994). Instead, in
order to establish a constitutional violation due to conflict of interest,
a defendant who fails to make a timely objection to her counsel must
demonstrate that "an actual conflict of interest adversely affected [her]
lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Until a defendant shows that her counsel "actively represented conflicting
interests, [she] has not established the constitutional predicate for [her]
claim of ineffective assistance." Id.3 at 350.
In determining whether a defendant has satisfied her burden under
Cuyler, we employ two separate standards of review. We engage in a de novo
review of ineffective assistance claims, which present mixed questions of
law and fact, but we review the district court's underlying findings of
historical fact for clear error. Battle v. Delo, 19 F.3d 1547, 1552 (8th
Cir. 1994) (subsequent history omitted).
3
Under Cuyler, the mere potential for a conflict is
insufficient to demonstrate a violation of a defendant's Sixth
Amendment rights. Cuyler, 446 U.S. at 350. A potential conflict
of interest may, however, form the basis of an ineffective
assistance of counsel claim under the two-pronged test of
Strickland v. Washington, 466 U.S. 668 (1984). See Pool v.
Armontrout, 852 F.2d 372, 375 (8th Cir. 1988), cert. denied, 489
U.S. 1023 (1989). ("Absent an actual conflict of interest, Pool
must establish that his counsel was ineffective under the two-
pronged Strickland test."). A defendant asserting a Strickland
claim of ineffective assistance due to a potential conflict would
receive relief only "by showing both that (1) [her] attorney had a
potential conflict of interest and (2) the potential conflict
prejudiced [her] defense." Stoia v. United States, 22 F.3d 766,
770 (7th Cir. 1994). In this case, Acty has elected to proceed
only under Cuyler, and therefore we do not consider any alternative
Strickland claim.
-4-
1. Pretrial Representation
Acty contends that her attorneys had an actual conflict of interest
at various stages in the criminal proceedings against her. Initially, Acty
argues that from the outset of Scalise's representation of Acty and Moore,
Moore began to minimize his own role in the operation of the merchandise
store and to shift blame to Acty. Acty asserts that this representation,
along with the couple's marital difficulties, gave rise to competing
interests between the two defendants. According to Acty, Scalise's
continued representation of both defendants in the face of this conflict
compromised Acty's interests during the preparatory stages of the criminal
proceedings, particularly during preliminary plea discussions with the
government.
We have recognized that where different defenses are offered by two
codefendants, and particularly "where one defendant attempts to exonerate
himself by pointing the finger of guilt at codefendants," a conflict of
interest can arise. Parker v. Parratt, 662 F.2d 479, 484 (8th Cir. 1981),
cert. denied, 459 U.S. 846 (1982). We disagree, however, that an actual
conflict of interest existed during the pretrial stages of this case.
The district court found that Acty and Moore acted as a team during
the beginning phase of the proceedings against them. The two were unified
in their defense throughout the early pretrial stages, each declaring that
they lacked the intent to sell drug paraphernalia, believing the items in
their store would be used for legitimate purposes. While it is evident the
couple was experiencing marital difficulties at that time, nothing in the
record indicates that the marital problems were related to disagreements
over either party's responsibility for the operation of the store or over
trial strategy. Moreover, both Scalise and Sandre testified at the hearing
on Acty's section 2255 motion that they did not believe a conflict of
interest existed between the two
-5-
codefendants during the early stages of the case. The district court
properly credited this testimony, recognizing that "[a]n ``attorney
representing two defendants in a criminal matter is in the best position
professionally and ethically to determine when a conflict of interest
exists . . . .'" Holloway v. Arkansas, 435 U.S. 475, 485 (1978), (quoting
State v. Davis, 514 P.2d 1025, 1027 (Ariz. 1973)). Given these facts, we
fail to see an actual conflict during this period.
A potential conflict did eventually begin to develop as the trial
approached. In approximately November 1990, Moore began to minimize his
role in the operation of the merchandise store. This potential conflict
was promptly resolved by Scalise and Sandre, however, when they immediately
informed Acty that they would no longer be able to represent both Acty and
Moore and advised her to seek alternative counsel. We are satisfied that
these actions adequately addressed the developing tensions between the
codefendants before an actual conflict could affect the representation.
Assuming, for the sake of argument, that Acty had demonstrated an
actual conflict, we are convinced that the conflict of interest did not
have an adverse effect on the performance of Acty's attorneys. Acty
contends that the conflict stifled the amount of information that Scalise
and Sandre imparted to her regarding her potential punishment under the
sentencing guidelines. She also argues that the conflict affected the
aggressiveness with which her attorneys pursued potential plea agreements
on her behalf. After carefully reviewing the record, we find Acty's
assertions to be without merit. First, the district court found that
Scalise did indeed explain the sentencing guidelines to Acty, a finding
adequately supported by Scalise's correspondence with the government
regarding sentencing calculations. Second, nothing in the record indicates
that Acty was excluded from the plea negotiation process. Some of the
preliminary plea correspondence
-6-
between Scalise and the government was written with specific reference to
Moore, while other correspondence addressed both defendants. None of the
preliminary negotiations, however, were ever concealed from Acty. To the
contrary, the record supports the district court's finding that each of the
preliminary plea proposals was discussed with both defendants, and that
both rejected the proposals because they would involve prison sentences.
On this record, Acty has failed to show how her attorneys would have
performed differently had they not been affected by the alleged conflict
of interest.
In short, Acty has not satisfied either prong of the Cuyler test.
Therefore, we find that Acty was not denied her Sixth Amendment right to
effective assistance of counsel during the pretrial stages of her
prosecution.
2. Representation of Acty at Trial
Acty also contends that an actual conflict of interest infected
Vaughn's representation during the trial of her case. According to Acty,
a conflict of interest was created by Vaughn's contact with Moore4 and by
Vaughn's agreement with Scalise and Sandre to divide work on the issues in
the case. This conflict, Acty argues, colored Vaughn's advice to Acty that
she not testify in her own defense at trial.
Nothing in the record supports Acty's assertions that Vaughn's advice
against testifying was the result of an actual conflict of interest. The
district court found that Vaughn had secured the suppression of evidence
prejudicial to Acty's case, and that he advised Acty not to testify out of
concern that her testimony would
4
Throughout the early stages of the criminal proceedings,
Moore had sent letters to Vaughn asking questions regarding the
status of the defense. One letter reached Vaughn after Vaughn
entered his appearance as attorney for Acty.
-7-
open the door to presentation of this evidence on cross-examination. The
court below also found that Vaughn believed Acty's testimony would be of
little benefit to her defense. These findings are not clearly erroneous
and in fact are amply supported in the record.
Neither Moore's letters to Vaughn nor Vaughn's cooperation with
Scalise and Sandre compels the conclusion that Vaughn's advice was
motivated by an actual conflict. Moore's communications with Vaughn were
one-sided, and simply fail to establish that Vaughn's loyalties were in any
way divided between Acty and Moore. While the division of labor between
the three attorneys certainly required a degree of cooperation between
them, communication by separate counsel in a joint trial does not
necessarily create an actual conflict of interest. Nor is there any
evidence that this particular agreement between the attorneys created a
conflict for Vaughn.5 Accordingly, we find that Vaughn's trial
representation was not clouded by an actual conflict of interest, and that
Acty is not entitled to relief under Cuyler.
B. "Advice of Counsel" Defense
As her second ground for relief from her conviction, Acty contends
that Scalise provided ineffective assistance of counsel by pursuing an
"advice of counsel" defense to the drug paraphernalia charges alleged in
the indictment. Scalise proposed to develop the defense at trial by
offering evidence that Acty relied heavily on Vaughn's advice regarding the
scope of the drug paraphernalia laws
5
The agreement between the attorneys did not, for example,
include a provision that the attorneys refrain from pursuing a line
of questioning if it would be detrimental to a codefendant. To the
contrary, the trial transcript indicates that each attorney was
free to, and indeed did, take the opportunity to ask questions and
make objections on behalf of his client at any time during the
trial regardless of whether that attorney had primary
responsibility for the particular charge at issue.
-8-
applicable to her business. In fact, prior to Acty's decision to retain
Vaughn as trial counsel, Scalise had planned to call Vaughn as a witness
to attest to his frequent advice to Acty during the operation of her
business.
According to Acty, Scalise's error in relying on the "advice of
counsel" defense was twofold. First, the defense was faulty because Vaughn
advised Acty only in his capacity as Executive Director of the American
Pipe and Tobacco Council and not as her retained attorney. Second, the
defense was designed to establish Acty's lack of subjective intent to
violate the drug paraphernalia statute, a factor which became irrelevant
when the trial judge ruled that the statute required only objective
scienter.6 Acty asserts that Scalise's focus on this defense, to the
exclusion of others, rendered his representation constitutionally
ineffective.
To succeed in this ineffective assistance claim, Acty must establish:
"first, [her] counsel's assistance fell below an objective standard of
reasonableness in that counsel failed to exercise the customary skill and
diligence that a reasonably competent attorney would use under like
circumstances; and second, that the deficient performance prejudiced [her]
defense." Battle, 19 F.3d at 1554 (citing Strickland, 466 U.S. at 687).
In Strickland, the Supreme Court stated that in order to establish
prejudice, a defendant "must show that there is a reasonable
6
At the time of the trial, the question of whether the statute
under which Acty was charged contained a subjective scienter
requirement or an objective scienter requirement was widely
debated. See United States v. Posters ``N' Things, Ltd., 969 F.2d
652, 656-57 (8th Cir. 1992), aff'd, 114 S. Ct. 1747 (1994). On
November 8, 1990, approximately one month before trial, the trial
court entered an order in Acty's case ordering that the prosecution
would be required to establish only objective scienter on the part
of Acty and Moore. On direct appeal, this court held that the
statute contained an objective scienter requirement. Id. at 657-
58. The United States Supreme Court ultimately adopted this
determination.
-9-
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." 466 U.S. at 694. More recently
in Lockhart v. Fretwell, 113 S. Ct. 838 (1993), however, the Supreme Court
admonished that the prejudice prong encompasses more than mere outcome
determination. Rather, the ultimate focus of the question of prejudice is
"whether counsel's deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair." Id. at 844.
Under these standards, we find that Acty has failed to demonstrate
Scalise's use of the "advice of counsel" defense constituted ineffective
assistance of counsel. The defense was a professionally reasonable one at
the time of trial in light of the split in authorities over the statute's
intent requirement. Furthermore, although the trial court made a pretrial
ruling that the prosecution was required to prove only objective intent,
the court nevertheless explicitly refused to foreclose use of the "advice
of counsel" defense by the defendants. As in any ineffective assistance
claim, we must resist the temptation to engage in a hindsight evaluation
of a defense attorney's tactics. See Strickland, 466 U.S. at 689.
Scalise's strategy in developing the "advice of counsel" defense was a
reasonable strategy developed after professionally adequate research of the
law as it stood at the time of Acty's case.
Even if we concluded that Scalise's decision to develop the "advice
of counsel" defense was deficient, we would still reject Acty's claim due
to the lack of evidence that prejudice resulted from Scalise's decision.
Acty argues that if Scalise had not focused on the "advice of counsel"
defense he would have cultivated other defenses and the outcome of her case
would have been different. This assertion is not only entirely
speculative, it is completely unsupported by the record. The record
reveals that the government had a solid case against Acty to which few
defenses could be mounted. Because there was never a question that Acty
-10-
sold the items which were eventually found to be drug paraphernalia, Acty's
attorneys necessarily grounded her defense on her knowledge of the various
uses of the items and her intent in selling them. Although Acty believes
her best defense would have been to shift blame to Moore, such a strategy
would have yielded her little in this case. Acty has suggested no other
defenses, and we can think of none, which would have changed the outcome
of her proceedings. Thus, Acty has not met her burden of showing that, but
for Scalise's strategic choices, the result of her proceedings would have
been different. Nor has she demonstrated that Scalise's strategy rendered
the proceedings fundamentally unfair or unreliable. Accordingly, Acty has
failed to establish that Scalise's "advice of counsel" defense violated her
Sixth Amendment right to effective assistance of counsel.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-11-