*The Honorable David A. Katz, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0028P (6th Cir.)File Name: 00a0028p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.STANLEYHALL(98-5936);REXHALL(98-5937),Defendants-Appellants.;>1Nos. 98-5936/5937Appeal from the United States District Courtfor the Eastern District of Kentucky at Lexington.No. 98-00007—Karl S. Forester, District Judge.Argued and Submitted: November 4, 1999Decided and Filed: January 19, 2000Before: MARTIN, Chief Judge; DAUGHTREY, CircuitJudge; KATZ, District Judge.*2United States v. Hall, et al.Nos. 98-5936/5937_________________COUNSELARGUED: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._________________OPINION_________________BOYCE F. MARTIN, JR., Chief Judge. This is a casewhere 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 conspiracyto 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 stoppeda motor home driven by Howard Graham for a traffic10United States v. Hall, et al.Nos. 98-5936/5937III.We AFFIRM the judgment as to Rex Hall. We REVERSEthe judgment as to Stanley Hall and REMAND for a new trial.Nos. 98-5936/5937United States v. Hall, et al.3violation. Inside the motor home the officers found 135pounds of marijuana. Graham claimed he had been paid todrive the motor home to Kentucky where he would call FredThornton and receive further instructions. Graham agreed towork with the officers and contacted Thornton, whoinstructed him to go to a rest area to exchange vehicles. Atthe rest area, Graham switched vehicles with Rex and StanleyHall. Officers followed the Halls to a farm where the Hallsremoved the marijuana. When the officers approached thefarm, Stanley Hall fled on foot but was apprehended shortlythereafter. A search of the farm and house, which was leasedby Rex Hall, revealed an additional 190 pounds of marijuana,5 kilograms of cocaine, and cash in a safe.From the beginning of the proceedings both Rex andStanley Hall were represented by David Van Horn. Thedistrict court, on multiple occasions, informed the Halls thatdual representation could result in a conflict of interest. BothHalls elected to continue with the same counsel. The UnitedStates petitioned the court for a hearing on the jointrepresentation conflict issue. The United States advised thecourt of several areas where potential conflicts existedincluding unsuccessful attempts to negotiate plea agreements,the defense’s failure to request discovery, the potentialconflict of defenses, and the disparity in sentences sought forthe two defendants. The court conducted a hearing the daybefore trial at which time Van Horn stated that if he was notallowed to represent both Halls, he wished to continuerepresenting Rex Hall, for whom he had been counsel foryears. Stanley Hall again elected to continue with Van Horn,but the record remains cloudy as to whether Stanleyunderstood the full ramifications of what he was doing.Stanley Hall stated that he was “being advised by Van Horn,my lawyer, and I’ll do whatever he advises me to do. . . . ”The judge endorsed his decision by stating that “Mr. VanHorn is a very capable and a very good lawyer and hewouldn’t be here if he didn’t think he could represent both ofyou adequately because I’ve known him for a long time. . . .”4United States v. Hall, et al.Nos. 98-5936/5937At 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 topossess 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 SixthAmendment 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) (quotingUnited 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. 98-5936/5937United States v. Hall, et al.9drug conspiracy, a poorly phrased question to which VanHorn did not object. Neither side elaborated as to whetherStanley Hall’s admission included the cocaine, just themarijuana or something else relating to the charge. Duringdeliberations, the jury submitted a question to the courtregarding Stanley Hall’s role in the conspiracy:HELP. Both the prosecuting and defense attorneysstressed that Rex and Stanley were admitting guilt toboth the marijuana and cocaine. We cannot rememberdirect evidence linking Stanley to the cocaine. Can theattorneys admitting full knowledge of both clients’knowledge serve as direct evidence or the lack ofinnocence not expressed by Stanley or Stanley’s attorneyserve as evidence? If there is any testimony under oathby Stanley or anyone else that provides a link, we wouldappreciate it.The obvious confusion on the part of the jury and the lackof evidence should have indicated to the court not only that anactual conflict of interest existed, but also that the conflict hadprejudiced Stanley Hall’s defense. As stated inWheat v.United States, 486 U.S. 153, 160 (1988):Federal courts have an independent interest in ensuringthat criminal trials are conducted within the ethicalstandards of the profession and that legal proceedingsappear fair to all who observe them . . . . Not only theinterest of a criminal defendant but the institutionalinterest in the rendition of just verdicts in criminal casesmay be jeopardized by unregulated multiplerepresentation.Because counsel was unable to vigorously represent bothStanley and Rex Hall, Stanley Hall has shown that an actualconflict of interest existed at trial such that the trial judgeshould have intervened and at that stage severed the caseagainst Stanley Hall.8United States v. Hall, et al.Nos. 98-5936/5937435 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 notsufficient 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. InHolloway 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 theNos. 98-5936/5937United States v. Hall, et al.5Even if Rex Hall had properly made a motion to the districtcourt for a continuance, he has failed to show why acontinuance should have been granted. The standard ofreview for a district court’s denial of a motion for continuanceis abuse of discretion.See United States v. King, 127 F.3d483, 486 (6th Cir. 1997). A constitutional violation occursonly if the denial was an unreasonable and arbitrary“insistence upon expeditiousness in the face of a justifiablerequest for delay....[T]he defendant must show that the denialresulted in actual prejudice in his defense.”Id.at 487(citations omitted). Actual prejudice requires proof that thecontinuance would have provided relevant witnesses orcontributed to the defense.See id.Rex failed to show actualprejudice. In contrast, Rex Hall’s attorney stated at trial thattwo of the desired witnesses had nothing to do with the caseand that the third witness’s testimony would only becumulative. Absent proof that any of the witnesses wouldhave been of some benefit, Rex’s claim must fail and with ithis defense.II.Stanley Hall asserts his Sixth Amendment rights wereviolated because Van Horn’s dual representation resulted ina conflict of interest. While Stanley made a motion ofacquittal to the district court, he failed to address theineffective assistance of counsel claim in the district courtthrough a habeas corpus motion. Claims of ineffectiveassistance of counsel usually must be addressed first by thedistrict court pursuant to a motion under 28 U.S.C. § 2255.See United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999). As a general rule, this Court will not review claims ofineffective assistance of counsel for the first time on directappeal.SeeUnited States v. Thomas, 74 F.3d 701, 715 (6thCir. 1996). An exception exists, however, when the record isadequately developed to allow this Court to assess the meritsof the issue.See id.In this case, the district court addressedthe issue of dual representation several times, including at ahearing requested by the prosecutor. Because we areaddressing Stanley’s Sixth Amendment claim based on6United States v. Hall, et al.Nos. 98-5936/5937ineffective assistance resulting from dual representation, therecord is complete and allows us to review this issuede novo.See id.Stanley Hall alleges that Van Horn’s dual representationviolated his Sixth Amendment rights. Dual representation,however, does not automatically constitute a SixthAmendment violation.SeeThomas 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, thisCourt applies the two-pronged standard inStrickland v.Washington, 466 U.S. 668 (1984). UnderStrickland, 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, 818F.2d at 480.Conflict of interest cases involve a slightly differentstandard 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.(quotingNos. 98-5936/5937United States v. Hall, et al.7Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1985)). Thus,while the rule is rigid, it is not aper serule.See id.InThomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987), thisCourt adopted the standard set forth inUnited States v. Mers,701 F.2d 1321, 1328 (11th Cir. 1983), to determine whetheran actual conflict of interest exists:We will not find an actual conflict unless appellants canpoint to “specific instances in the record to suggest anactual conflict or impairment of their interests.” . . .Appellants must make a factual showing of inconsistentinterests and must demonstrate that the attorney “made achoice between possible alternative courses of action,such as eliciting (or failing to elicit) evidence helpful toone client but harmful to the other. If he did not makesuch a choice, the conflict remained hypothetical.” . . .There is no violation where the conflict is “irrelevant ormerely hypothetical”; there must be an “actual significantconflict.”A conflict of interest was evident in Stanley Hall’s case byVan Horn’s failure to successfully negotiate a plea agreement.Prior to trial, the Halls each entered into plea agreementswhich were signed but withdrawn at the last moment. Underthe plea agreement, Rex Hall would have received a lifesentence with the option of earning a motion pursuant toU.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), and Stanley Hallwould have pled to between three years and ten months andfour years and nine months rather than receiving themandatory minimum sentence of ten years. Because this wasStanley Hall’s first conviction and Rex Hall’s third, thesentences were exorbitantly unequal. This Court recognizedinFoltz, 818 F.2d at 481, the potential problems created bydual representation in connection with plea negotiations. InFoltz, the attorney was prevented from effectively engagingin any separate plea negotiations on one party’s behalfwithout detrimentally affecting the co-defendants.See id.at481-82. Foregoing plea negotiations is proof of an actualconflict of interest.See id.;see also Holloway v. Arkansas,