The HONORABLE JAMES M. BURNS, United States District *

Judge for the District of Oregon, sitting by

designation.

 The Honorable George F. Gunn, Jr., United States District 1

Judge for the Eastern District of Missouri.

__________

95-3001 

__________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Raymond H. Flynn, *

*

Appellant. *

__________

Submitted: April 9, 1996

Filed: July 1, 1996

__________

Before BEAM and MURPHY, Circuit Judges, and BURNS, District Judge. *

__________

MURPHY, Circuit Judge.

Raymond H. Flynn appeals from the denial by the district court of

1

his motion under 28 U.S.C. § 2255 to vacate, correct, or set aside his

sentence. He asks for "all relief to which he may be entitled" or a new

trial based on unconstitutional jury instructions, ineffective assistance

of counsel, and the nondisclosure of certain exculpatory evidence. We

affirm. 

Flynn was indicted for participating in an organization directed by

Paul Leisure which was charged with committing several
2

violent crimes in order to maintain control of certain labor unions and to

retaliate against rival groups. According to the indictment, these crimes

included the car bomb murders of Paul Spica and George "Sonny" Faheen and

a conspiracy to murder James Anthony Michaels III and others. 

Following a jury trial in 1987, Flynn was convicted of racketeering

under the Racketeer Influenced and Corrupt Organizations (RICO) statute,

18 U.S.C. § 1962(c), conspiring to violate RICO, 18 U.S.C. § 1962(d), and

illegally using explosives and transporting them interstate, 18 U.S.C.

§ 844(d). He was sentenced to twenty years imprisonment for racketeering,

twenty years concurrently for conspiracy, and forty-five years concurrently

on the explosives count. The convictions on the RICO and conspiracy counts

were affirmed, but that on the explosives count was reversed because of

insufficient evidence of interstate transportation. United States v.

Flynn, 852 F.2d 1045 (8th Cir.), cert. denied, 488 U.S. 974 (1988). 

On his § 2255 motion, Flynn argued that his due process rights were

violated by errors in the jury instructions, that he was denied effective

assistance of trial and appellate counsel, that he should have had a

hearing in the trial court on whether his counsel had a conflict of

interest, that the prosecution failed to disclose Brady material, and that

telephone conversations and electronic surveillance were improperly sealed.

Following an evidentiary hearing and a report and recommendation denying

relief, the district court adopted the report and ordered that Flynn's

§ 2255 motion be denied. Flynn renews the majority of his claims on

appeal, as set forth in detail below.

I. 

Flynn argues that jury instructions for Count I were unconstitutional

because they did not require the jury to make a
3

unanimous finding as to the two predicate acts necessary for a RICO

violation. According to Flynn, the complexity of his case rendered it

highly probable that the jury did not find beyond a reasonable doubt every

element necessary to constitute a RICO violation, as required by the Fifth

Amendment due process clause. See Cupp v. Naughten, 414 U.S. 141, 148

(1973). He also contends that it was entirely probable that the jury did

not unanimously agree on the predicate acts Flynn committed, which violated

his Sixth Amendment right to a unanimous jury verdict. See Andres v. U.S.,

333 U.S. 740, 748 (1948) (jury unanimity constitutionally required for a

guilty verdict in federal criminal cases); Johnson v. Louisiana, 406 U.S.

356, 371 (1972) (Powell, J., concurring); United States v. Eagle Elk, 820

F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867 (1987). 

Since Flynn did not challenge the instructions at trial or on direct

appeal, he may not obtain collateral relief unless he shows both cause

excusing his double procedural default and actual prejudice. United States

v. Frady, 456 U.S. 152, 168 (1982). A court need not determine whether

cause has been established if the defendant has failed to demonstrate

actual prejudice. Id. 

Actual prejudice can be shown if the challenged instruction "so

infected the entire trial that the resulting conviction violates due

process." Id. at 169. An instruction that is undesirable, erroneous, or

even universally condemned is not sufficient reason for relief. Id. A

defendant must show that the instructional error actually and substantially

disadvantaged his entire trial, not merely that it created a possibility

of prejudice. Id. at 170. The adequacy of the instructions must be

evaluated as a whole. Id. at 169; United States v. Butler, 56 F.3d 941,

945 (8th Cir.), cert. denied, 116 S.Ct. 322 (1995).

Count I charged Flynn with committing three predicate acts in

violation of RICO: (1) conspiracy to murder, and the murder, of
 Flynn's argument for cause is that his counsel was 2

ineffective in not objecting to the instructions at trial or

challenging them on appeal. His substantive claim for

ineffective assistance of

counsel in regard to the jury instructions is discussed in the

next section.

4

John Paul Spica; (2) conspiracy to murder James Anthony Michaels III and

others; and (3) conspiracy to murder, and the murder, of George "Sonny"

Faheen. In order to convict Flynn on this count, the government had to

prove that he participated, either directly or indirectly, in an enterprise

affecting interstate commerce through a pattern of racketeering activity

involving two or more predicate acts. 18 U.S.C. §§ 1961(5) and 1962(c);

United States v. Ellison, 793 F.2d 942, 949-50 (8th Cir.), cert. denied,

479 U.S. 937 (1986). The government also had to prove that the charged

predicate acts were related to the affairs of the enterprise and were of

an ongoing and continuous nature. Id. at 950. 

Several instructions covered key RICO provisions. Instruction 20

stated that in order to establish a RICO violation, five essential elements

must be established beyond a reasonable doubt, including commission of, or

aiding and abetting, at least two acts of racketeering activity as alleged

in Count I. Instruction 25 told the jurors that they must find beyond a

reasonable doubt that Flynn committed a particular racketeering act and

"must be unanimous in [their] decision whether he did so by conspiracy to

murder, by murder, or by both." It also instructed that if Flynn committed

such an act both by conspiracy to murder and murder, it would count as only

one racketeering act. Finally, Instruction 29 required the jury to find

beyond a reasonable doubt that Flynn

committed or aided and abetted in the commission of at least two of

the predicate acts set out in Count I and you must unanimously agree

that at least two of the predicate acts were committed by that

defendant. 

Regardless of whether Flynn could establish cause to excuse his

procedural default, he has not shown a substantial likelihood 2
5

that the challenged jury instructions actually prejudiced him at trial.

See Frady, 456 U.S. at 174. In accordance with the Fifth Amendment, the

jury was instructed it could convict Flynn of violating RICO only if it

found beyond a reasonable doubt every element of the offense, including the

commission of at least two predicate acts. See Cupp, 414 U.S. at 148. The

jury was also instructed that it "must be unanimous in its decision" that

Flynn committed a predicate act and "unanimously agree that at least two

of the predicate acts" in Count I were committed by Flynn. Although it

would have been desirable if the instructions had in addition stated that

the jury must be "unanimous as to which acts" it believed the defendant had

committed, see, e.g., Devitt, Blackmar and O'Mally, Federal Practice and

Jury Instructions § 48.06, the mere possibility that the jurors might not

have unanimously agreed on the particular acts Flynn committed does not

violate the Sixth Amendment. See Eagle Elk, 820 F.2d at 961. When viewed

as a whole, the instructions were not incorrect or misleading. See Frady,

456 U.S. at 169; Butler, 56 F.3d at 945; see also Flynn, 852 F.2d at 1052

(jury had been "properly instructed" as to both RICO counts against Flynn).

Moreover, Flynn has not shown that he is innocent of the RICO

violation and that a fundamental miscarriage of justice would result from

his conviction. See Frady, 456 U.S. at 172; Flynn, 852 F.2d at 1052-54

(there was "no reason to believe" that Flynn was convicted for crimes in

which he did not participate). Since Flynn has failed to show that the

instructions infected "his entire trial with error of constitutional

dimensions," the district court properly denied him relief on this claim.

Frady, 456 U.S. at 170. 
6

II.

Flynn also raises several claims of ineffective assistance of

counsel. In order to succeed on these claims, Flynn must show his

counsel's performance was professionally unreasonable, and also a

"reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland v.

Washington, 466 U.S. 668, 691, 694 (1984). If Flynn fails to prove

unreasonable performance, then the prejudice prong need not be considered,

and vice versa. Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir. 1988),

cert. denied, 488 U.S. 1019 (1989).

In reviewing counsel's performance, there is a strong presumption

that all significant decisions fell within "the wide range of

professionally competent assistance." Strickland, 466 U.S. at 689. The

correct inquiry is not whether counsel's decision was correct or wise, but

whether it "was an unreasonable one which only an incompetent attorney

would adopt" considering all the circumstances. Stokes, 851 F.2d at 1092.

Prejudice, for purposes of an ineffective assistance of counsel claim,

means that "one's confidence in the outcome of the trial is undermined."

Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

 

Flynn bases his first claim of ineffective assistance on his

counsel's failure to object to the jury instructions at trial or raise the

issue on direct appeal. As discussed previously, the jury instructions did

not violate Flynn's due process rights or the Sixth Amendment unanimity

requirement. The instructions, taken as a whole, were not incorrect. His

counsel's actions in regard to these instructions were therefore not

objectively unreasonable or prejudicial under the Sixth Amendment. See

Strickland, 466 U.S. at 697. 

Flynn next contends that his trial attorney's prior
7

representation of a government witness named Jesse Stoneking created a

conflict of interest. Flynn points out that his attorney had represented

Stoneking in the past and did not touch on his criminal history when cross

examining him. Flynn also contends that the trial court inadequately

inquired about the possibility of a conflict of interest.

Counsel breaches the duty of loyalty to a client when burdened with

an actual conflict of interest. Id. at 692. Prejudice is presumed if a

defendant demonstrates that counsel "actively represented conflicting

interests" and that "an actual conflict of interest adversely affected his

lawyer's performance." Id., citing Cuyler v. Sullivan, 446 U.S. 335, 350

(1980). In determining whether a conflict of interest exists, substantial

weight is given to defense counsel's representations. United States v.

Agosto, 675 F.2d 965, 972 (8th Cir. 1982). 

The mere fact that a trial lawyer had previously represented a

prosecution witness does not entitle a defendant to relief. Simmons, 915

F.2d at 378. The defendant must show that this successive representation

had some actual and demonstrable adverse effect on the case, not merely an

abstract or theoretical one. Id. An example may be where counsel's crossexamination of a former client is impeded for fear of misusing confidential

information. Agosto, 675 F.2d at 971.

A trial court has flexibility in making the difficult assessment of

the potential for conflict. Id. at 970. There is no affirmative duty to

hold a hearing on the possibility of conflicts in all cases of successive

representation. Id. at 970 n.3. Rather, "the chosen method for dealing

with a potential conflict, in the absence of an acceptable waiver, is the

one which will alleviate the effects of the conflict while interfering the

least with defendant's choice of counsel." Id. at 970. 

 
 He had represented Stoneking when he was arrested for 3

murder in the late 1970's; Stoneking was never charged and was

released after five hours. He had also represented Stoneking on

a double murder charge, which resulted in a manslaughter

conviction, and on Dyer Act violations, for which Stoneking was

convicted in the early 1980's. In 1983 or 1984, the attorney

learned that Stoneking had been secretly cooperating with the

government, and he did not represent him after that. Flynn

testified at his § 2255 hearing that prior to his trial he knew

that his counsel had previously represented Stoneking and that

Stoneking was a potential witness against him. 

 The parties stipulated to the use of the affidavit filed by 4

Flynn's trial counsel, who was deceased at the time of the § 2255

hearing.

8

The record does not support Flynn's claim that his lawyer's previous

representation of Stoneking actually and adversely affected his defense.

The lawyer had not represented Stoneking for some years prior to Flynn's

trial in 1987, and there is no indication that he had useful information 3

not employed in cross-examination. See id. at 972. Substantial weight

must also be accorded the attorney's representations. Id. When asked by

the trial judge if he had worked out the Stoneking problem, he had

responded that the situation had been "neutralized." In his affidavit,4

the attorney also stated he had "felt no inhibitions" in cross-examining

Stoneking, that he "had no conflict of interest at the time of [his]

representation of Mr. Flynn, and that at no time was [his] complete and

utmost representation of Mr. Flynn obstructed, restricted, or constrained

by [his] prior representations of Mr. Stoneking." 

The attorney's statements are supported by examination of his crossexamination of Stoneking about the government's payments for his

cooperation. It is unlikely that further attempts to discredit Stoneking

using his criminal record would have made a difference. Stoneking was one

of some sixty government witnesses during a three week trial, and his

fifteen minute testimony on direct examination was only one piece of

evidence implicating Flynn in the
9

racketeering enterprise. See Flynn, 852 F.2d at 1052. The substance of

his testimony was that Flynn had attended a meeting at which Stoneking and

Paul Spica were installed in different unions, and that Flynn "wasn't happy

with Paul Spica coming on." Since Stoneking could have implicated Flynn

in other illegal activities, counsel's choice not to expand Stoneking's

testimony by delving into his past was "within the range of

constitutionally acceptable lawyering." See Simmons, 915 F.2d at 379

("[t]he best cross-examiner is one who knows when to stop"). 

The district court did not err in denying relief on the ineffective

assistance claim based on conflict of interest. Flynn has failed to

demonstrate an actual conflict of interest sufficient to raise a

presumption of prejudice. Strickland, 466 U.S. at 692. Since he did not

make a sufficient showing of conflict of interest, his complaint that the

trial court should have made further inquiry into the alleged conflict also

fails. The court asked counsel about his prior representation of

Stoneking, he responded that the situation had been neutralized, and the

court was under no duty to hold a further hearing on the issue. See

Agosto, 675 F.2d at 970 n.3. 

Flynn also alleges that he was denied effective assistance of trial

counsel by the failure adequately to investigate and use available

exculpatory evidence. He complains that counsel did not file any pre-trial

discovery motions and did not obtain documents or call witnesses concerning

police reports allegedly identifying other individuals with a motive to

kill Spica, an officer's observation of a truck driver near Spica's bombed

car, implications of others in the Spica and Faheen bombings, and a police

report indicating that Flynn had not possessed the explosives allegedly

used to kill Faheen. 

The absence of pre-trial discovery motions does not mean that Flynn's

trial lawyer did not investigate the information in
10

question or receive the documents from the government. Flynn testified at

the hearing on his § 2255 motion that his counsel contacted several

witnesses and used them at trial to support his alibi defense. Flynn's

attorney also testified by affidavit that he "fully and completely

investigated all pertinent and relevant matter[s] to both the government's

and defendant's case, by either interviewing witnesses, obtaining reports,

questioning Mr. Flynn, or other means of investigation. . . ." He further

stated that "[h]e thoroughly contemplated the use of all witnesses . . .

and that any decision to call or not call any particular witness was based

on a comprehensive evaluation as to their effectiveness in relation to Mr.

Flynn's defense." 

Flynn's experienced attorney had received discovery on the same

racketeering events some two years earlier while representing a fellow

enterprise member, Charles M. Loewe, in a 34 day jury trial. See United

States v. Leisure, 844 F.2d 1347 (8th Cir.), cert. denied, 488 U.S. 932

(1988). In light of these circumstances and "applying a heavy measure of

deference to counsel's judgments", it has not been shown that counsel's

decisions about trial preparation were objectively unreasonable.

Strickland, 466 U.S. at 691. Flynn has also not shown that use of the

information he references would have changed the outcome of the trial, see

id., or that it would have aided the alibi defense he relied on, or would

have outweighed the other evidence connecting him to the Leisure group's

activities. See Flynn, 852 F.2d at 1052. Since Flynn has not established

either that his counsel's actions were professionally incompetent or

prejudicial, his claim of ineffective assistance of counsel on this basis

was properly denied. See Strickland, 466 U.S. at 691, 694. 

Flynn next contends that his attorney's performance was adversely

affected by his physical and emotional problems. His attorney was taking

medication for high blood pressure and was reportedly experiencing mood

swings during the trial. Flynn has
11

not specified in what way counsel's condition caused constitutionally

deficient assistance at trial. In his affidavit, Flynn's attorney stated

that the medication did not affect his ability to concentrate and that his

medical condition was under control during the trial. The trial took place

over a period of three weeks, during which time Flynn's attorney crossexamined numerous government witnesses and called several witnesses to

substantiate Flynn's defense. Nothing in the record suggests that his

professional judgment or strategy choices did not remain well within the

range of reasonable decisions. See id. at 699. Flynn has therefore failed

to establish ineffective assistance because of counsel's physical and

mental condition. 

Flynn bases his last claim of ineffective assistance on his appellate

counsel's failure to ask the Court of Appeals to reverse Counts I and II

of the indictment. Flynn argues that the evidence admitted on Count III,

the count which was reversed and which charged transportation and receipt

of dynamite in interstate commerce, prejudicially spilled over into the

other counts. He contends that his counsel should have raised this issue

on appeal when he presented an insufficiency of the evidence claim on Count

III. Alternatively, Flynn argues that counsel should have raised the issue

by way of a motion for rehearing, or a transfer to the court en banc, upon

receiving the panel opinion. 

The reason Flynn's conviction on Count III was reversed was because

there was insufficient evidence the dynamite had been transported between

states. See Flynn, 852 F.2d at 1056. Proof of interstate transportation

was not required to convict Flynn of the RICO or conspiracy charges.

Appellate counsel had challenged the sufficiency of the evidence on both

Counts I and II, but the court affirmed the convictions on both counts.

See id. at 1052 ("Flynn's participation in the enterprise amounted to more

than the mere predicate acts with which he was charged; he actively

participated in the Leisure enterprise."). Mere speculation that the

evidence
 We note that Flynn did not raise this issue on appeal. In 5

view of our conclusion that no Brady violation occurred, we need

not address whether Flynn failed to preserve this issue. 

12

on Count III prejudicially spilled over into Counts I and II does not

establish professionally incompetent assistance. Counsel's performance has

therefore not been shown to be deficient in respect to the handling of the

issues relating to Counts I and II or in deciding not to seek rehearing.

See Strickland, 466 U.S. at 690, 694.

III.

Finally, Flynn argues that the government failed to disclose

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

This evidence consists of the police reports and other information

underlying Flynn's previously discussed claim of inadequate investigation

by his trial counsel. 

Flynn's trial counsel testified that "the Government fully complied

with Brady v. Maryland, by disclosing to [him] all favorable evidence to

Mr. Flynn regarding the John Paul Spica killing and the George 'Sonny'

Faheen killing, and that [he] fully and totally examined this discovery

material and all other discovery material made available to [him]." The

only evidence that exculpatory material was withheld is Flynn's assertion

that he first saw the documents after his trial when they were obtained by

a different attorney for a state court case. The possibility that counsel

did not show Flynn these documents does not mean that the government did

not comply with its Brady obligations, however. Our review of the

documents also does not show that the evidence was material either to

Flynn's guilt or punishment. See id. at 87. The district court therefore

did not err in determining that no Brady violation had occurred.5
13

For these reasons, the judgment of the district court is affirmed.

A true copy.

 Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.