### 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 o f 1 his moti on under 28 U.S.C. § 2255 to vacate, correct, or set aside hi s sentence. He asks for "all relief to which he may be entitled" or a new trial based on uncons titutional jury instructions, ineffective assistance of counsel, and the nondisclosure of certain exculpatory evidence. W e 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 c ertain labor unions and to retaliate against rival groups. According to th e 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 ille gally using explosives and transporting them interstate, 18 U.S.C

. § 844(d). He was sentenced to twenty years impr isonment for racketeering, twenty years concurrently for conspiracy, and forty-five years concurrentl y
on the explosives count. The convictions on the RICO and conspiracy count s
were affirmed, but that on the explosives count was reversed because o f insuffi cient 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 assi stance of trial and appellate counsel, that he should have had a hearing i n the trial court on whether his counsel had a conflict o f interest, that the prosecution failed to disclos e 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 mot ion be denied. Flynn renews the majority of his claims o n appeal, as set forth in detail below.

I.
Flynn argues that jury instructions for Count I were unconstitu tional because they did not require the jury to make a

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unanimous finding as to the two predicate acts necessary for a RIC O viola tion. According to Flynn, the complexity of his case rendered i t highly probable that the jury did not find beyon d 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, 14 8 (1973). He also cont ends that it was entirely probable that the jury did not unanimously agree on the predicate acts Flynn committed, which violate d 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 fed eral criminal cases); Johnson v. Louisiana , 406 U.S. 356, 371 (1972) (Powe ll, 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 in structions at trial or on direct appea l, he may not obtain collateral relief unless he shows both caus e excusing his double procedural default and actual prejudice. United State s
v. Frad y , 456 U.S. 152, 168 (1982). A court need not determine whethe r
cause h as been established if the defendant has failed to demonstrat e actual prejudice. Id.

Actual prejudice can be shown if the challenged instruction "s o infect ed the entire trial that the resulting conviction violates du e process." Id. at 169 . An instruction that is undesirable, erroneous, or
even univ ersally condemned is not sufficient reason for relief. Id. A defendant must show that the instructional error actually and substantiall y disadvantaged his entire trial, not merely that it created a possibility of prejudi ce. Id. at 170. The adequacy of the instructions must b e 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 i n 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 t o prove that he participated, either directly or indirectly, in an enterpris e 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 charge d predicate acts were related to the affairs of the enterprise and were of an ongoing and continuous nature. Id. at 950.

Sever al instructions covered key RICO provisions. Instruction 2 0 stated that in order to establish a RICO violation, five essential element s must be established beyond a reasonable doubt, i ncluding commission of, or aiding and abetting, at least two acts of racket eering activity as alleged in Count I. Instruction 25 told the jurors that they must find beyond a
reason able doubt that Flynn committed a particular racketeering act an d "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 committe d such an act both by conspiracy to murder and murder, it would count as onl y
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 tha t defendant.

Regardless of whether Flynn could establish cause to excuse hi s procedural default, he has not shown a substantial likelihood 2

### 5

that t he 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 i t found beyond a reasonable doubt every element of the offense, including th e commission of at least two predicate acts. See Cupp , 414 U.S. at 148. Th e jury was also instruc ted 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 i t would have been desir able if the instructions had in addition stated that the jury must be "unanimous as to which acts" it believed the defendant ha d committed, see , e.g. , Devitt, Blackmar and O'Mally, Federal Practice and Jury Instructions § 4 8.06, the mere possibility that the jurors might not hav e unanimously agreed on the particular acts Flynn committed does no t 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; Butl er , 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 RIC O violation and that a fundamental miscarriage of justice would result from his con viction. See Frady , 456 U.S. at 172; Flynn , 852 F.2d at 1052-5 4 (there was "no reason to believe" that Flynn was convicted for crimes in which h e did not participate). Since Flynn has failed to show that th e in structions infected "his entire trial with error of constitutiona l dimensions," the dist rict court properly denied him relief on this claim. Frady , 456 U.S. at 170.

### 6 II.

Flynn also raises several claims of ineffective assistance o f counsel. In order to succeed on these claims, Flynn must show hi s
counse l'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

. Washingto n , 466 U.S. 668, 691, 694 (1984). If Flynn fails to prov e unreasonable performance, then the prejudice pro ng 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 re viewing counsel's performance, there is a strong presumptio n that a ll significant decisions fell within "the wide range o f professionally competent assistance." Strickland , 466 U.S. at 689. The correct inquiry is not whether counsel's decisio n was correct or wise, but whether it "was an unreasonable one which only an incompetent attorne y would adopt" considering all the circumstances. Stokes , 851 F.2d at 1092. Prejud ice, 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 hi s counsel's failure to object to the jury instruct ions at trial or raise the issue on direct appeal. As discussed previously, the jury instructions di d not violate Flynn's due process rights or the Sixth Amendment unanimit y requirement. The instructions, taken as a whole , were not incorrect. His
counse l's actions in regard to these instructions were therefore no t object ively unreasonable or prejudicial under the Sixth Amendment. Se e Strickland , 466 U.S. at 697.
Flynn next contends that his trial attorney's prior

### 7

repres entation 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 c riminal history when cross examini ng him. Flynn also contends that the trial court inadequatel y inquired about the possibility of a conflict of interest.

Counsel b reaches the duty of loyalty to a client when burdened with

an actual conflict of interest. Id. at 692. Prejudice is presumed if a def endant demonstrates that counsel "actively represented conflictin g interests" and that "an actual conflict of inter est adversely affected his lawyer's performance. " Id. , citing Cuyler v. Sullivan , 446 U.S. 335, 350 (1980). In determining whether a conflict of in terest exists, substantial wei ght is given to defense counsel's representations. United States v

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

The me re fact that a trial lawyer had previously represented a prosecution witness d oes not entitle a defendant to relief. Simmons , 915 F.2d at 378. The def endant 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 cross

examination of a former client is impeded for fear of misusing confidentia l information. Agosto , 675 F.2d at 971.

A trial c ourt has flexibility in making the difficult assessment of the potential for con flict. 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 conf lict, in the absence of an acceptable waiver, is the one which will alleviate the effects of the conf lict 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 1 987, and there is no indication that he had useful information 3 not employed in cross-examination. See id. at 972. Substantial weigh t must also be accorded the attorney's representations. Id. When asked by the trial judge if he had worked out the Stoneking problem, he ha d respond ed that the situation had been "neutralized." In his affidavit, 4 the attorney also stated he had "felt no inhibitions" in cross-examining Stonek ing, that he "had no conflict of interest at the time of [his ] represent ation of Mr. Flynn, and that at no time was [his] complete an d utmost representationof Mr. Flynn obstructed, restricted, or constrained by [his] prior representations of Mr. Stoneking."

The attorney's statements are suppor ted by examination of his crossexamin ation of Stoneking about the government's payments for hi s cooperation. It is u nlikely that further attempts to discredit Stoneking using his criminal re cord would have made a difference. Stoneking was one of some si xty government witnesses during a three week trial, and hi s fift een minute testimony on direct examination was only one piece o f 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 meet ing at which Stoneking and Paul Spica were installed in different unions, and that Flynn "wasn't happ y with Paul Spica coming on." Since Stoneking could have implicated Flynn in oth er illegal activities, counsel's choice not to expand Stoneking' s testimo ny by delving into his past was "within the range o f consti tutionally acceptable lawyering." See Simmons , 915 F.2d at 37 9 ("[t]he best cross-examiner is one who knows when to stop").

The distr ict court did not err in denying relief on the ineffective assi stance claim based on conflict of interest. Flynn has failed t o demons trate an actual conflict of interest sufficient to raise a presumption of prejud ice. Strickland , 466 U.S. at 692. Since he did not make a sufficient sho wing of conflict of interest, his complaint that the trial court should have made further inquiry into the alleged conflict als o fails

. The court asked counsel about his prior representation o f Stoneking, he responded that the situation had been neutralized, and the
co urt was under no duty to hold a further hearing on the issue. Se e Agosto , 675 F.2d at 970 n.3.

Flynn als o alleges that he was denied effective assistance of trial
counse l by the failure adequately to investigate and use availabl e exculpatory evidence. He complains that counsel did not file any pre-tria l discovery motions and did not obtain documents or call witnesses concernin g police reports allegedly identifying other individuals with a motive t o kill Spica, an officer's observation of a truck driver near Spica's bombed car, implications of others in the Spica and Fah een bombings, and a police report indicating that Flynn had not possessed the explosives allegedl y used to kill Faheen.
The absence of pre-trial discovery motions does not mean that F lynn's trial lawyer did not investigate the information in

### 10

question or receive the documents from the gover nment. Flynn testified at the heari ng on his § 2255 motion that his counsel contacted severa l witnesses and used them at trial to support his alibi defense. Flynn' s attorn ey also testified by affidavit that he "fully and completel y investigated all pertinent and relevant matter[s ] to both the government's and defendant's case, by either interviewing wit nesses, obtaining reports, questioning Mr. Flynn, or other means of investi gation. . . ." He further stated that "[h]e thoroughly contemplated the use of all witnesses . . . and that any decision to call or not call any pa rticular witness was based on a comprehensive evaluation as to their effect iveness in relation to Mr. Flynn's defense."

Fly nn's experienced attorney had received discovery on the sam e racket eering events some two years earlier while representing a fello w 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. 93 2 (1988). In light of these circumstances and "applying a heavy measure of def erence to counsel's judgments", it has not been shown that counsel' s decisions about trial preparation were objectively unreasonable

. Stri ckland , 466 U.S. at 691. Flynn has also not shown that use of th e 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 ei ther that his counsel's actions were professionally incompetent o r prejudicial, his clai m 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 adversel y affected by his physi cal and emotional problems. His attorney was taking medica tion for high blood pressure and was reportedly experiencing moo d swings during the trial. Flynn has

### 11

not spe cified in what way counsel's condition caused constitutionall y deficient assistance at trial. In his affidavit, Flynn's attorney stated that the medication did not affect his ability t o concentrate and that his medical condition was under control during the trial. The trial took plac e
over a period of three weeks, during which time Flynn's attorney cross

exam ined numerous government witnesses and called several witnesses t o substantiate Flynn's defense. Nothing in the record suggests that hi s professional judgment or strategy choices did not remain well within the range of reasonable decisions. See id. at 699. Flynn has therefore faile d to esta blish ineffective assistance because of counsel's physical an d mental condition.
Flynn bases his last claim of ineffective assistance on his app ellate counsel's failure to ask the Court of Appeals to reverse Counts I and II of the indictment. F lynn argues that the evidence admitted on Count III, the count which was r eversed and which charged transportation and receipt of dyn amite in interstate commerce, prejudicially spilled over into th e other counts. He con tends that his counsel should have raised this issue
on appeal when he presented an insufficiency of the evidence claim on Coun t III. Alternatively, Flynn argues that counsel should have raised the issu e by way of a motion for rehearing, or a transfer to the court en banc, upon receiving the panel opinion.

The reaso n Flynn's conviction on Count III was reversed was because there was insufficien t evidence the dynamite had been transported between states. See Flynn , 8 52 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 e nterprise amounted to more than the mere predicate acts with which he was charged; he activel y partic ipated in the Leisure enterprise."). Mere speculation that th e 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 no t establish professionally incompetent assistance. Counsel's performance ha s therefore not been shown to be deficient in resp ect 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.

Fina lly, Flynn argues that the government failed to disclos e exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963)

. This e vidence consists of the police reports and other informatio n underlying Flynn's pr eviously discussed claim of inadequate investigation by his trial counsel.

Flynn's t rial counsel testified that "the Government fully complied with Brady v. Maryland , by disclosing to [him] all favorable evidence to Mr. F lynn regarding the John Paul Spica killing and the George 'Sonny ' Fah een killing, and that [he] fully and totally examined this discover y material and all other discovery material made available to [him]." The only evidence that ex culpatory 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. Th e 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 th e documents also does not show that the evidence was material either t o Flynn's guilt or punishment. See id. at 87. Th e 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.