*

The Honorable David A. Katz, Uni

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STANLEY HALL (98-5936);REX HALL (98-5937),

Defendants-Appellants.

Appeal from the United St

for the Eastern District of Ke

No. 98-00007—Karl S. Fore

Argued and Submitted: N

Decided and Filed: Jan

Before: MARTIN, Chief Judge; 

Judge; KATZ, Dist
2 United States v. Hall, et al. Nos. 98-5936/5937

_________________

COUNSEL

ARGUED: William K. Fulmer II, Erlanger, Kentucky, forAppellant. Charles P. Wisdom, Jr., OFFICE OF THE U.S.ATTORNEY, Lexington, Kentucky, for Appellee.ON BRIEF: William K. Fulmer II, Erlanger, Kentucky,Dean A. Pisacano, HELLINGS & PISACANO, Covington,Kentucky, for Appellant. Charles P. Wisdom, Jr., OFFICEOF THE U.S. ATTORNEY, Lexington, Kentucky, forAppellees. 

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OPINION

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BOYCE F. MARTIN, JR., Chief Judge. This is a case

where two brothers, Rex and Stanley Hall, were poorly servedby one attorney, David Van Horn. The younger brother,Stanley Hall, was obviously led astray by his older brother.Even though both Rex and Stanley Hall waived their rights toseparate counsel, this is one of the unusual cases where thecourt should have stepped in to ensure an adequate legaldefense for Stanley Hall. 

Rex and Stanley Hall appeal their convictions of conspiracy

to possess with intent to distribute marijuana and cocaine inviolation of 21 U.S.C § 846 and possession with intent todistribute marijuana and cocaine in violation of 21 U.S.C.§ 841(a)(1). Rex Hall claims his Sixth Amendment rightswere violated when the district court denied his request for acontinuance. Stanley Hall claims he received ineffectiveassistance of counsel because Van Horn’s dual representationconstituted a conflict of interest in violation of the SixthAmendment. We affirm Rex Hall’s conviction. We reverseStanley Hall’s conviction and remand for a new trial.

On December 10, 1997, the Kansas Highway Patrol stopped

a motor home driven by Howard Graham for a traffic
10 United States v. Hall, et al. Nos. 98-5936/5937

III.

We AFFIRM the judgment as to Rex Hall. We REVERSE

the judgment as to Stanley Hall and REMAND for a new trial.

Nos. 98-5936/5937 United violation. Inside the motor hompounds of marijuana. Graham cladrive the motor home to Kentucky Thornton and receive further instruwork with the officers and cinstructed him to go to a rest area the rest area, Graham switched vehHall. Officers followed the Halls removed the marijuana. When thfarm, Stanley Hall fled on foot buthereafter. A search of the farm anby Rex Hall, revealed an additiona5 kilograms of cocaine, and cash i

From the beginning of the pr

Stanley Hall were represented by district court, on multiple occasiondual representation could result in Halls elected to continue with the States petitioned the court for representation conflict issue. The court of several areas where pincluding unsuccessful attempts to the defense’s failure to request conflict of defenses, and the disparthe two defendants. The court cobefore trial at which time Van Horallowed to represent both Hallsrepresenting Rex Hall, for whom years. Stanley Hall again elected tbut the record remains cloudy understood the full ramifications Stanley Hall stated that he was “bemy lawyer, and I’ll do whatever hThe judge endorsed his decision Horn is a very capable and a vwouldn’t be here if he didn’t think you adequately because I’ve know
4 United States v. Hall, et al. Nos. 98-5936/5937

At trial Rex Hall asserted a public authority defense,

claiming that he was operating as an informant for thegovernment. Multiple government officials and law officerstestified that while Rex had been an informant in the past, hewas no longer working as an informant. Stanley testified hethought that his brother was an informant and that he wasassisting in an undercover operation. The day before theclose of the trial, Rex requested a continuance to obtain thepresence of three witnesses who never testified. The judgegranted his request until the beginning of the next day. Rexfailed to mention the witnesses again.

The jury convicted Rex and Stanley Hall of conspiracy to

possess with the intent to distribute marijuana and cocaineand possession with intent to distribute marijuana andcocaine. The court sentenced Rex Hall to life imprisonmentand Stanley Hall to imprisonment for 10 years and one month.The conviction was Rex Hall’s third and Stanley Hall’s first.Both defendants made motions of acquittal to the trial courtthat were denied.

I.

Rex Hall argues that the district court violated his Sixth

Amendment rights by improperly denying him a continuanceto secure the presence of three witnesses. The district courtnever addressed this claim because it was never properlymade. “Constitutional objections ‘that appear for the firsttime on appeal are conclusively deemed to be waived, withthe effect that [the appellate court is] deprived ofjurisdiction.’” United States v. Scarborough, 43 F.3d 1021,

1025 (6th Cir. 1994) (quoting United States v. Crismon, 905F.2d 966, 969 (6th Cir.1990)). When Rex requested time tosecure the missing witnesses, the court allowed him until thenext day. The next day, Rex never mentioned the witnessesand failed to request further time to secure their presence.Because Rex did not raise his Sixth Amendment claim at anytime during the district court proceedings, he has waived hisright to object and thus we cannot entertain this claim onappeal. 

Nos. 98-5936/5937 United drug conspiracy, a poorly phraseHorn did not object. Neither side Stanley Hall’s admission includmarijuana or something else relatdeliberations, the jury submitted regarding Stanley Hall’s role in th

HELP. Both the prosecuting stressed that Rex and Stanley both the marijuana and cocainedirect evidence linking Stanley attorneys admitting full knowknowledge serve as direct evinnocence not expressed by Stanserve as evidence? If there is anby Stanley or anyone else that prappreciate it. The obvious confusion on the p

of evidence should have indicated tactual conflict of interest existed, bprejudiced Stanley Hall’s defenseUnited States, 486 U.S. 153, 160 

Federal courts have an independthat criminal trials are conducstandards of the profession and appear fair to all who observe tinterest of a criminal defendainterest in the rendition of just vmay be jeopardized by representation.

Because counsel was unable to vStanley and Rex Hall, Stanley Halconflict of interest existed at triashould have intervened and at thagainst Stanley Hall. 
8 United States v. Hall, et al. Nos. 98-5936/5937

435 U.S. 475, 490 (1978) (finding that dual representationmay prevent an attorney “from exploring possible pleanegotiations and the possibility of an agreement to testify forthe prosecution”). Van Horn failed to fully represent eachdefendant’s interests, resulting in an actual conflict. While itwas in Rex Hall’s best interest to go to trial, it clearly was inStanley Hall’s interest to plead. Stanley Hall had no previousrecord and the plea agreement was a good one.

We have held that a conflict of interest alone is not

sufficient to justify reversal of a conviction. See Foltz, 818F.2d at 480. Counsel’s performance must have beenadversely affected by the conflict. See id. Inherent in theSixth Amendment right to counsel is the right to reasonablycompetent counsel and the right to counsel’s undividedloyalty. See Strickland, 466 U.S. at 692. In Holloway v.Arkansas, 435 U.S. 475, 489-90 (1978), the Court stated:

Joint representation of conflicting interests is suspectbecause of what it tends to prevent the attorney fromdoing.... [A] conflict may . . . prevent an attorney fromchallenging the admission of evidence prejudicial to oneclient but perhaps favorable to another, or from arguingat the sentencing hearing the relative involvement andculpability of his clients in order to minimize theculpability of one by emphasizing that of another. 

 When they finally went to trial, Van Horn’s loyalty wasobviously divided as to trial strategy. He concentrated onlyon Rex Hall and his public authority defense. Van Hornnever questioned Stanley Hall about his connection to thecocaine found inside of Rex Hall’s home; rather he addressedonly whether Stanley Hall believed his brother was acting asan informant. Furthermore, he never questioned Rex Hallabout Stanley’s connection to any of the drugs. No evidencewas presented in the United States’s direct case demonstratingthat Stanley Hall had any connection to the cocaine. The onlyevidence linking Stanley Hall to the cocaine was hisaffirmative answer to the United States’s question on crossexamination whether he was admitting to involvement in the

Nos. 98-5936/5937 United 

Even if Rex Hall had properly m

court for a continuance, he hacontinuance should have been greview for a district court’s denial ois abuse of discretion. See United 483, 486 (6th Cir. 1997). A consonly if the denial was an un“insistence upon expeditiousness request for delay....[T]he defendanresulted in actual prejudice in h(citations omitted). Actual prejudcontinuance would have providcontributed to the defense. See id. prejudice. In contrast, Rex Hall’s two of the desired witnesses had nand that the third witness’s tecumulative. Absent proof that anhave been of some benefit, Rex’s his defense.

II.

Stanley Hall asserts his Sixth 

violated because Van Horn’s dual a conflict of interest. While Stacquittal to the district court, hineffective assistance of counsel through a habeas corpus motionassistance of counsel usually musdistrict court pursuant to a motion See United States v. Fortson, 194 1999). As a general rule, this Courineffective assistance of counsel fappeal. See United States v. ThomCir. 1996). An exception exists, hoadequately developed to allow this of the issue. See id. In this case, t

the issue of dual representation sehearing requested by the proseaddressing Stanley’s Sixth Ame
6 United States v. Hall, et al. Nos. 98-5936/5937

ineffective assistance resulting from dual representation, therecord is complete and allows us to review this issue de novo.See id. 

Stanley Hall alleges that Van Horn’s dual representation

violated his Sixth Amendment rights. Dual representation,however, does not automatically constitute a SixthAmendment violation. See Thomas v. Foltz, 818 F.2d 476,482 (6th Cir. 1987). A defendant may waive any potentialconflicts of interest and elect to continue with dualrepresentation. See United States v. Reese, 699 F.2d 803, 804(6th Cir. 1983). This waiver, however, does not bind thecourts. The purpose of the Sixth Amendment “is to guaranteean effective advocate for each criminal defendant rather thanto ensure that a defendant will inexorably be represented bythe lawyer whom he prefers.” Wheat v. United States, 486U.S. 153, 159 (1988). While “[t]he District Court mustrecognize a presumption in favor of petitioner's counsel ofchoice, . . . that presumption may be overcome not only by ademonstration of actual conflict but by a showing of a seriouspotential for conflict.” Id. at 164. 

To analyze ineffective assistance of counsel claims, this

Court applies the two-pronged standard in Strickland v.

Washington, 466 U.S. 668 (1984). Under Strickland, adefendant must show that (1) his counsel’s performance wasdeficient, and (2) this performance prejudiced the defensethereby depriving the defendant of a fair trial. See Foltz, 818

F.2d at 480. 

Conflict of interest cases involve a slightly different

standard than that used in traditional ineffectiveness claims.See id. Where there is a conflict of interest, “counselbreaches the duty of loyalty, perhaps the most basic ofcounsel’s duties.” Strickland, 466 U.S. at 692. Thus, whenan actual conflict of interest exists, prejudice is presumed.See id. Prejudice is presumed, however, “only if thedefendant demonstrates that counsel ‘actively representedconflicting interests’ and that ‘an actual conflict of interestadversely affected his lawyer’s performance.’” Id. (quoting

Nos. 98-5936/5937 United 

Cuyler v. Sullivan, 446 U.S. 335while the rule is rigid, it is not a p

In Thomas v. Foltz, 818 F.2d 47

Court adopted the standard set fort701 F.2d 1321, 1328 (11th Cir. 19an actual conflict of interest exists

We will not find an actual conflpoint to “specific instances in tactual conflict or impairment Appellants must make a factual interests and must demonstrate tchoice between possible alternsuch as eliciting (or failing to elone client but harmful to the otsuch a choice, the conflict remaThere is no violation where the merely hypothetical”; there must conflict.” A conflict of interest was eviden

Van Horn’s failure to successfully nPrior to trial, the Halls each entewhich were signed but withdrawn the plea agreement, Rex Hall wsentence with the option of earnU.S.S.G. § 5K1.1 and 18 U.S.C. § would have pled to between three four years and nine months ramandatory minimum sentence of teStanley Hall’s first conviction asentences were exorbitantly unequin Foltz, 818 F.2d at 481, the pote

dual representation in connection Foltz, the attorney was prevented in any separate plea negotiationwithout detrimentally affecting the 481-82. Foregoing plea negotiatconflict of interest. See id.; see al