FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-35178

Plaintiff-Appellee, D.C. Nos.

v. CV-97-00016-CCL  CR-90-00020-CCL ROBERT VAIO WELLS,

CV-90-00042-CCL Defendant-Appellant.

CR-90-00005-CCL

OPINION 

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

July 12, 2004—Seattle, Washington

Filed January 11, 2005

Before: Betty B. Fletcher, Clyde H. Hamilton,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Hamilton;

Dissent by Judge B. Fletcher

*The Honorable Clyde H. Hamilton, Senior United States Circuit Judge,

United States Court of Appeals for the Fourth Circuit, sitting by designation. 

333
COUNSEL

Marcus S. Topel and Daniel F. Cook, Topel & Goodman, San

Francisco, California, for the defendant-appellant. 

James E. Seykora and Bernard F. Hubley, Assistant United

States Attorneys, Helena, Montana, for the plaintiff-appellee.

OPINION

HAMILTON, Senior Circuit Judge: 

In August 1991, a jury in the United States District Court

for the District of Montana convicted Robert Wells of con336 UNITED STATES v. WELLS
spiracy to defraud the United States, 18 U.S.C. § 371, conspiracy to manufacture and distribute methamphetamine, 21

U.S.C. §§ 841(a)(1) and 846, conspiracy to invest illegal drug

profits into a business, id. §§ 854 and 846, investment of proceeds from drug transactions into a business, id. §§ 854 and

855, and distribution of methamphetamine, id. § 841(a)(1).

After unsuccessfully pursuing his remedies on direct appeal,

Wells filed a motion pursuant to 28 U.S.C. § 2255, which the

district court denied. We granted a certificate of appealability

limited to the issue of whether an actual conflict of interest

adversely affected Wells’ counsel’s representation of him. We

affirm. 

I

As found by this court on direct appeal, the facts underlying Wells’ convictions are as follows: 

[Don] Wogamon testified that he began manufacturing and distributing methamphetamine with Daniel

Jones in 1983. The following year, Jones introduced

Wogamon to Robert Wells. Wells gradually became

more involved with Wogamon in the manufacturing

process. Wogamon said that he and Wells “cooked”

methamphetamine a number of times over the next

couple of years. 

In 1984, Wogamon formed a corporation called

Medallion Minerals for the purpose of mining gold

in the Butte, Montana area. Proceeds from drug sales

were deposited in Medallion in order to make the

income look legitimate. Wells and Jones agreed to

invest $1.8 million in Medallion from their methamphetamine manufacturing business. They received

stock from the corporation in exchange. During 1984

and 1985, Wogamon helped Wells and Jones with

their manufacturing in Santa Rosa, California and

flew back to Montana with money to deposit in

UNITED STATES v. WELLS 337
Medallion accounts. All deposits were under

$10,000 to avoid having the banks file currency

transaction reports. The cash was reflected as gold

sales on Medallion’s books. 

Wells and Jones had a falling out in early 1985, and

Jones decided not to finance Medallion further.

Wogamon said he last saw Jones in February of

1985. In June 1985, William Morris, a longtime

friend of Wogamon’s, introduced him to Gene

Browning, who was involved in the mining business.

Browning had developed a device to extract gold

from ore, and was trying to find interested investors.

Wogamon and Wells agreed to put one million dollars into Browning’s Nevada corporation. The

money was delivered in four $250,000 cash payments. 

Browning subsequently introduced Wogamon to

William Nowlin. Nowlin was looking for investors

to fund a mining venture. In July 1985, Wogamon

and Wells agreed with Nowlin to provide one million dollars to fund a new company called Shadow

Mountain Systems, Inc. In exchange, they received

an interest in the corporation. The million dollars

was paid in four $250,000 cash installments. Nowlin

used the money to purchase equipment for Shadow

Mountain. Wogamon testified he informed Nowlin

that the money came from the proceeds of drug

sales. 

In September 1985, Wells and Wogamon manufactured a fifty pound batch of methamphetamine at the

Santa Rosa laboratory. After completing the batch,

Wells was arrested with twenty-five pounds in his

car. Wells had entered Nowlin’s house while state

agents were executing a search warrant. An agent

patted down Wells and felt a hard object in his pants

338 UNITED STATES v. WELLS
pocket. The agent removed a film cannister from

Wells’ pocket and opened it. It contained a small

amount of methamphetamine. Since the agent

improperly opened the cannister, the district court

suppressed evidence of the methamphetamine found

therein and the twenty-five pounds subsequently

seized from Wells’ car. Nevertheless, Wogamon testified at trial that Wells told him that he had been

arrested with the twenty-five pounds. This testimony

was presented by the government to explain the facts

and circumstances concerning the moving of the

drug lab from Santa Rosa to near Las Vegas. 

The lab equipment was initially moved to trailers

located on Shadow Mountain’s property. Nowlin had

keys to the trailers and allowed Wells and Wogamon

to put the equipment there. Wells and Wogamon

attempted to manufacture methamphetamine at the

site, but their efforts were not very successful.

Wogamon testified that Nowlin occasionally came to

the site and asked what was going on. 

At one point, when there was $250,000 cash infusion

into Medallion that needed to be covered, Morris

agreed to put together a story and supporting documentation to show that the cash had come from the

International Fuel Development Corporation, a foreign corporation. The cash was, in fact, proceeds

from methamphetamine sales. 

In March 1986, Medallion Minerals filed for bankruptcy, and Morris prepared the necessary filings.

Morris filed a false bankruptcy Disclosure Statement

with the bankruptcy court. In October 1986, a grand

jury subpoena was issued requiring Medallion to

produce its records and books. In an effort to buy

time, Morris suggested that he hold himself out as

custodian of Medallion’s records. This gave WogaUNITED STATES v. WELLS 339
mon and Morris time to alter corporate documents

and create minutes of meetings that never occurred

in an effort to throw off the grand jury. 

During his efforts to “fix” the records, Morris caused

3.1 million shares of Medallion stock to be issued to

himself in order to cover the $250,000 in drug sale

proceeds that was supposed to have been received

from the International Fuel Development Corporation. Wogamon also testified that he and Morris

altered records to reflect gold production and sales

that never occurred in order to cover drug money

deposits. 

Wogamon was indicted in May of 1987. Although

Morris initially served as his attorney, he was eventually replaced and ultimately named in the subsequent indictment filed in September of 1990. 

United States v. Nowlin, 988 F.2d 124 (Table), 1993 WL

51814, at *1-3 (9th Cir. March 1, 1993). 

On February 23, 1990, Jones and Wells were indicted on

one count of distributing methamphetamine, 21 U.S.C.

§ 841(a) (the Butte Indictment). Subsequently, on September

21, 1990, the government filed a seven-count indictment

against Jones and Wells, as well as three other individuals

(William Morris, William Nowlin, and Gene Browning) (the

Helena Indictment). All five defendants were charged in three

of the counts: conspiracy (between 1984 and 1990) to defraud

the United States by impeding, impairing, obstructing, and

defeating the IRS in the ascertainment, computation, assessment, and collection of revenue, 18 U.S.C. § 371 (Count

One); conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. §§ 841(a)(1) and 846 (Count Four); and

conspiracy (between 1984 and 1990) to invest illegal drug

profits into a business, id. §§ 854 and 846 (Count Five). All

of the defendants except Jones were charged in Count Six

340 UNITED STATES v. WELLS
with investment of proceeds from drug transactions into a

business, id. §§ 854 and 855. Browning was charged in Count

Seven with making a false declaration, 18 U.S.C. § 1623.

Wells and Jones were charged in Counts Two and Three with

filing false corporate tax returns, 26 U.S.C. § 7206(2). Browning entered into a plea agreement with the government and

the remaining defendants proceeded to trial. 

Prior to trial, Wells’ counsel, Joseph “Sib” Abraham, Jr.,

filed several motions including a motion to suppress. Through

Abraham’s efforts, the district court entered an order suppressing the 9mm handgun, the methamphetamine in the cannister, and the twenty-five pounds of methamphetamine

seized from Wells’ car in September 1985. 

On July 8, 1991, the case went to trial. Just before the trial

began, the district court denied Jones’ motion for severance,

ostensibly because Jones failed to file any declaration that a

codefendant had exculpatory evidence regarding Jones that

could be presented at a separate trial. After the noon recess,

counsel for Jones submitted in open court a declaration executed by Wells in support of Jones’ severance motion.1

 Coun1The declaration stated: 

After consultation with my counsel, I have determined I will not

testify during the trial of the instant cause. 

It has been explained to me that I have an absolute right not to

testify at the trial of my case and that I am quaranteed (sic) pursuant to the Fifth Amendment of the Constitution of the United

States that particular right. 

However, I represent to the Court that if I were given a separate

trial from my codefendant, Daniel Jones, I would be in a position

to provide significant exculpatory testimony on his behalf. 

I understand that there are certain issues regarding whether or not

the statute of limitations would bar a prosecution of my codefendant Mr. Jones. 

If called to testify by Mr. Jones at a separate trial, I would clearly

indicate under oath that in fact Mr. Jones manifested a clear

UNITED STATES v. WELLS 341
sel for Jones argued that Wells would testify at a separate trial

that Jones severed his business ties with Wogamon and Wells

in 1985. Counsel further suggested that this testimony would

support Jones’ statute of limitations defense. In response to

the declaration and counsel’s argument, the district court did

not alter its ruling denying Jones’ motion for severance. 

After a lengthy trial, the jury found Wells guilty of the one

count in the Butte Indictment and four counts in the Helena

Indictment (Counts One, Four, Five, and Six). Wells was

acquitted of Counts Two and Three of the Helena Indictment.

Of note, Jones was found not guilty of Counts One, Two, and

Three of the Helena Indictment. As to Jones, the jury could

not reach a verdict on Counts Four and Five of the Helena

Indictment and the one count in the Butte Indictment. 

On December 8, 1991, Wells was sentenced under preSentencing Guidelines law. In the Helena case, Wells was

sentenced to thirty years on Count Four, ten years on Count

Five to run consecutive to the thirty-year sentence on Count

Four, five years on Count One to run consecutive to the sentences on Counts Four and Five, and ten years on Count Six

to run concurrent to the sentences on Counts One, Four, and

Five. In the Butte case, Wells was sentenced to thirty years to

run concurrent with the sentences in the Helena case. Thus,

Wells received a total sentence of forty-five years’ imprisonment.2

intention to withdraw from all activity involving the allegations

in the Indictment in this case and did so in March of 1985. 

Mr. Jones told me he wanted to have nothing to do with any

activity that Donald Wogamon was engaged in from that time

forth. 

Finally, I would state that Mr. Jones did affirmatively abandon

any relationship with myself, Mr. Wogamon, or any other party

to our activity and further abandoned all economic and financial

interest in our ventures. 

2After Wells was sentenced, Jones was retried and a jury acquitted him

of all charges. 

342 UNITED STATES v. WELLS
On direct appeal, we affirmed Wells’ convictions, rejecting

Wells’ sole argument that his convictions were infirm because

the district court improperly allowed the jury to hear testimony about Wells’ alleged statements about his arrest for

possession of twenty-five pounds of methamphetamine. On

October 4, 1993, Wells’ petition for a writ of certiorari was

denied by the United States Supreme Court. Wells v. United

States, 510 U.S. 827 (1993). 

On April 17, 1997, Wells filed a § 2255 motion in the

United States District Court for the District of Montana. The

motion alleged that Abraham had an actual conflict of interest

that adversely affected Abraham’s representation of Wells

because Abraham’s attorney’s fees were paid by Jones and

Abraham breached his duty of loyalty to Wells by taking

actions favorable to Jones and unfavorable to Wells. 

On September 25, 2002, the district court held an evidentiary hearing at which both Wells and Abraham testified. Wells

testified that he first met Abraham after he was transferred

from California to Helena, Montana to await trial. According

to Wells, in their first meeting, Abraham told him that his

attorney’s fees were being paid by Jones. Wells testified that,

during this first meeting, he asked Abraham what his “options” were, implying that he was interested in a plea bargain.

According to Wells, Abraham indicated that he was not interested in representing a defendant who wanted to cooperate

with the government, adding that he did not represent “snitches.” 

Wells also testified that Abraham did not disclose or discuss a potential conflict of interest with him and that Abraham

did not spend any time with him preparing his defense. Wells

testified that Abraham never explained the consequences of

the declaration he executed in support of Jones’ severance

motion. Wells acknowledged that he had an extensive criminal history, including numerous drug convictions, and that he

spent nine to ten years in prison between 1960 and 1988.

UNITED STATES v. WELLS 343
Wells testified that Abraham never discussed with him, either

before his trial, after his trial, or while Jones was awaiting his

retrial, the possible advantages of seeking a plea bargain with

the government. 

During his testimony, Wells, invoking his Fifth Amendment privilege against self-incrimination, refused to answer

questions concerning his relationship with Jones. According

to Wells’ counsel, whatever relationship Wells may have had

with Jones had “nothing to do with Mr. Abraham’s legal obligations in representing” him. At the hearing, the district court

expressed skepticism about Wells’ invocation of his Fifth

Amendment privilege, commenting that the government was

pursuing a relevant inquiry in an attempt to “show a long-term

financial relationship, a financial relationship that goes

directly to the bearing of whose money this was, what was

owed to whom and so forth.” 

For his part, Abraham testified that he met with Wells for

the first time in 1991, while Wells was incarcerated in Helena,

Montana. In the meeting, Wells agreed to have Abraham handle his case, and Abraham told Wells that Mike Pancer

(Jones’ counsel) and Dennis Roberts (a California attorney

who had represented Wells in the past) were going to pay his

fee. When asked the source of the funds, Abraham testified

that he had “[t]he idea” that the source of the funds was

“Danny Jones.” Abraham also testified that he did not believe

there was any conflict of interest. He testified to having, with

Wells’ consent, a “Joint Defense and Confidentiality Agreement” (the Joint Defense Agreement) with the codefendants

and their counsel. He admitted he probably told Wells that he

would not represent a “snitch” and that he does not represent

defendants that are interested in cooperating with the government. He testified that he discussed the defense strategy with

Wells, which was to show that the testimony of the government witnesses was unreliable. 

Abraham also testified that he or someone else prepared

Wells’ declaration in support of Jones’ severance motion and

344 UNITED STATES v. WELLS
that he went over the declaration with Wells, explaining its

ramifications. According to Abraham, Wells was adamant

that he and Jones were involved in a legitimate gold mining

operation and that Jones had severed his business ties with the

operation in 1985. Abraham acknowledged that the declaration did not “necessarily assist” Wells, but that Wells “wanted

to do it” because Wells and Jones were friends and Wells

thought the charges against Jones were “bogus.” Abraham

testified that he did not believe that the government could

make use of the declaration ostensibly because everyone

understood the declaration to mean that Wells would testify

at a separate trial that Jones was no longer involved in the

legitimate gold mining operation after 1985. Abraham added

that the government made no use of the declaration at trial. 

On October 31, 2002, the district court denied Wells’

§ 2255 motion. The court initially noted that Wells manufactured large quantities of methamphetamine and laundered 1.6

million dollars in drug sale proceeds. The court also noted we

found on direct appeal that the evidence against Wells was

overwhelming. The court noted that Wells had a lengthy criminal history and was no stranger to the criminal justice system.

The district court further found that, after Wells’ arrest, he

initially attempted to hire Dennis Roberts, who had represented him in the past. Wells did not discuss a fee payment

with Roberts and did not know who paid Roberts to appear at

his arraignment. Roberts did not represent Wells because of

other commitments. 

The district court made extensive findings concerning

Abraham’s representation of Wells. The court found that

Wells’ decision to go to trial was made before Abraham ever

entered the case. In fact, the court found that Wells wanted an

experienced trial attorney to handle his case because he

(Wells) had no intention of pleading guilty or cooperating

with the government. The court found that Wells knew that

the funds used to retain Abraham came from Jones, but the

UNITED STATES v. WELLS 345
court also found that Wells refused to disclose whose money

(Jones or Wells’) actually was being paid to Abraham.3

Because Wells refused to testify regarding his relationship

with Jones and, particularly, his financial relationship with

Jones, the district court drew an adverse inference from

Wells’ failure to answer the questions. In its written order, the

court stated: “The Court believes that the money advanced by

Danny Jones for Wells’ representation could in fact have been

owed by Jones to Wells. The money might even be Wells’

funds and not Jones’ funds.” Wells, Nos. CV 97-16-H, 97-42-

BU, slip op. at 8. The court added, “this is not a case where

a drug mule or courier was represented by counsel provided

by the codefendant drug boss.” Id.

The district court also made extensive findings concerning

Abraham’s effectiveness as Wells’ attorney. The court found

that Abraham was successful in suppressing a large amount of

methamphetamine and a 9mm handgun; made an appropriate

opening statement and closing argument; vigorously crossexamined the government’s witnesses; and was intelligent,

competent, and vigorous in his representation of Wells. The

court also found that Abraham was an experienced and talented attorney who had practiced criminal law for forty-one

years; had specialized in trial work; and had tried approximately twenty cases each year of his practice. The court found

Abraham to be a credible witness, although the court did

express some concern that Abraham “may have understated

his testimony to favor” Wells. Id. at 10. 

3Wells testified that, in 1995, Jones told him that he (Jones) paid Abraham $100,000 for the trial and $30,000 for the appeal. Abraham testified

that he was paid $60,000 for the trial and $25,000 for the appeal. Wells

received $10,000 “indirectly” from Jones in order to hire an attorney to

file his § 2255 motion. United States v. Wells, Nos. CV 97-16-H, 97-42-

BU, slip op. at 7 (D. Mont. October 31, 2002). The record reflects that

Wells “borrowed” money from Jones to pursue his § 2255 motion. 

346 UNITED STATES v. WELLS
The district court then turned to its findings concerning the

existence of an actual conflict of interest. The court found that

Abraham told Wells that he did not represent “snitches” and

“by that [Abraham] meant that he specialized in trying cases.”

Id. at 10-11. Abraham told Wells that he had been hired by

Jones, and Wells told Abraham that this arrangement for representation was acceptable. The court found that Wells was

not concerned that Abraham did not represent snitches

because Wells was not and did not consider himself a snitch.

Wells simply had no intention of pleading guilty or cooperating with the government. 

In making its findings concerning the effect of the fee

arrangement on Abraham’s representation of Wells, the district court stated the case was hard-fought pursuant to the

Joint Defense Agreement and counsel put on a vigorous

defense. The district court also found that Wells’ assertion

that he would have been interested in pleading guilty in return

for the court’s leniency was “simply not credible.” Id. at 12.

In this regard, the court found that Wells was unwilling to testify as a witness for the government and was not concerned

that Abraham “did not plan to seek a plea agreement from the

government.” Id. The court found that Wells simply had no

intention of pleading guilty and/or accepting responsibility for

the multi-million dollar quantities of methamphetamine

involved in the drug conspiracy. The court also found that

Abraham discussed strategy with Wells, both before and during the trial. 

The district court next addressed Abraham’s handling of

Wells’ declaration filed in support of Jones’ severance

motion. The court found that Abraham had asked Wells if he

wanted to help Jones by submitting a written declaration to

the court corroborating Jones’ statute of limitations defense.

The court also found that Wells willingly agreed. The court

found that Wells’ written declaration offered in support of

Jones’ severance motion was not used against Wells in any

way nor could it have been used against him given his defense

UNITED STATES v. WELLS 347
strategy. The court also found that the written declaration

merely “parroted” Wells’ defense strategy and did not prevent

Wells from testifying at trial. Id. at 15. Finally, the court

found that Wells was advised not to testify because of his

extensive criminal history. 

Based on the above findings, the district court concluded

that there had been no actual conflict that adversely affected

Abraham’s performance in representing Wells. The court further found that, considering Wells’ age, education, intelligence, and criminal history, he waived any potential conflict

of interest. Accordingly, the court denied Wells’ § 2255

motion. 

Wells filed a timely notice of appeal and requested a certificate of appealability from the district court, which the district

court denied. We granted a certificate of appealability limited

to the issue of whether an actual conflict of interest adversely

affected Abraham’s representation of Wells. 

II

Wells contends that the district court erred when it concluded that he failed to demonstrate that an actual conflict of

interest adversely affected Abraham’s performance. More

specifically, Wells contends that the fee arrangement—that

Abraham’s fee was paid by Jones—adversely affected Abraham’s representation of Wells.4

 We review the district court’s

4Like the district court, we do not countenance Wells’ unwillingness to

testify concerning the true source of the funds paid to Abraham. In our

view, Wells should not be permitted to argue that Jones paid his attorney’s

fees without first answering the question of whether or not the money paid

to Abraham was his (Wells’) money by way of Jones. After all, if the

money paid to Abraham was Wells’ money, Wells’ case falls flat on its

face. To resolve this case, however, we do not need to reach the question

raised by Wells’ evasiveness because his conflict of interest claim fails

even if Jones paid Abraham his fee. 

348 UNITED STATES v. WELLS
denial of a § 2255 motion de novo. United States v. Ratigan,

351 F.3d 957, 961 (9th Cir. 2003). 

[1] Under the Sixth Amendment, a criminal defendant has

the right to effective assistance of counsel at trial. This right

includes the entitlement to representation that is free from

conflicts of interest. Strickland v. Washington, 466 U.S. 668,

688 (1984). “In order to establish a violation of the Sixth

Amendment [based on a conflict of interest], a defendant who

raised no objection at trial must demonstrate that an actual

conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). If this

standard is met, prejudice is presumed. Mickens v. Taylor,

535 U.S. 162, 166 (2002); United States v. Rodrigues, 347

F.3d 818, 823 (9th Cir. 2003). 

[2] Of note, “the Sullivan standard is not properly read as

requiring inquiry into actual conflict as something separate

and apart from adverse effect.” Mickens, 535 U.S. at 172 n.5;

see also Rodrigues, 347 F.3d at 823 & n.7 (rejecting dual

inquiry); United States v. Shwayder, 312 F.3d 1109, 1117-20

(9th Cir. 2002) (citing Mickens and discussing “actual conflict” as an initial step in determining whether there was the

requisite “adverse effect”), cert. denied, 124 S. Ct. 181

(2003). Under this standard, an “ ‘actual conflict’ ” is “a conflict that affected counsel’s performance—as opposed to a

mere theoretical division of loyalties.” Mickens, 535 U.S. at

171; see also United States v. Baker, 256 F.3d 855, 860 (9th

Cir. 2001) (noting that an “attorney has an actual, as opposed

to a potential, conflict of interest when, during the course of

the representation, the attorney’s and the defendant’s interests

diverge with respect to a material factual or legal issue or to

a course of action”) (citation and internal quotation marks

omitted). In Shwayder, we held that, to prove an adverse

effect, the defendant must show that “counsel was influenced

in his basic strategic decisions” by loyalty to another client or

former client. 312 F.3d at 1118 (citation and internal quotation marks omitted). In other words, to show adverse effect,

UNITED STATES v. WELLS 349
a defendant need not demonstrate prejudice—that the outcome of his trial would have been different but for the conflict

—but only “that some plausible alternative defense strategy or

tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not

undertaken due to the attorney’s other loyalties or interests.”

United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996) (citation

and internal quotation marks omitted). 

[3] In this particular case, we have no doubt that the fee

arrangement created a “theoretical division of loyalties.”

Mickens, 535 U.S. at 171. The Supreme Court in Wood v.

Georgia made this clear when it stated: 

Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is

represented by a lawyer hired and paid by a third

party, particularly when the third party is the operator of the alleged criminal enterprise. One risk is that

the lawyer will prevent his client from obtaining

leniency by preventing the client from offering testimony against his former employer or from taking

other actions contrary to the employer’s interest. 

450 U.S. 261, 268-69 (1981) (footnotes omitted); see also In

re Grand Jury Subpoena Served upon Doe, 781 F.2d 238, 248

n.6 (2d Cir. 1986) (en banc) (“Accepting payment of clients’

fees from a third party may subject an attorney to undesirable

outside influence, particularly . . . in criminal matters [where]

the third party is the head of a criminal enterprise of which the

clients are members. In such a situation, an ethical question

arises as to whether the attorney’s loyalties are with the client

or the payor.”). Thus, the question before us is whether the fee

arrangement, which created a theoretical division of loyalties,

adversely affected Abraham’s representation of Wells. 

A

Wells argues that the fee arrangement adversely affected

Abraham’s representation of him because Abraham enticed

350 UNITED STATES v. WELLS
him to sign the declaration in support of Jones’ severance

motion. According to Wells, without his loyalty to Jones,

Abraham would have discouraged Wells from signing the

declaration because the declaration essentially prevented

Wells from testifying at trial. 

Abraham testified that he explained the “high points and

low points” of the declaration to Wells. Abraham acknowledged that the declaration did not “necessarily assist” Wells,

but that Wells “wanted to do it” because Wells and Jones

were friends and Wells thought the charges against Jones

were “bogus.” Abraham testified that he did not believe that

the government could make use of the declaration and pointed

out that the government indeed did not use the declaration in

any manner. Abraham also testified that the reason he advised

Wells not to take the stand was Wells’ extensive criminal history. 

[4] With regard to the declaration, we do not see how the

fee arrangement adversely affected Abraham’s handling of

the issue. First, there was no assertion in the district court

habeas proceedings that Wells had, at any time, an intention

to testify at trial. In fact, Abraham advised Wells not to take

the stand because of his extensive criminal history and this

advice was eminently reasonable under the circumstances.

Thus, if having Wells testify was an implausible or unsound

defense strategy, it cannot be said that the fee arrangement

adversely affected Abraham’s handling of the declaration

issue because the interests of Jones and Wells never diverged

with regard to that strategic decision. Stantini, 85 F.3d at 16.

[5] In any event, even if having Wells testify represented

a sound trial strategy, which it did not, the result would be no

different. Wells’ defense was based on the assertion that he

and Jones were involved in a legitimate business. All parties,

including the government and the district court, viewed the

declaration as an indication that Jones left the legitimate gold

mining operation in 1985. Nothing in the declaration admitted

UNITED STATES v. WELLS 351
the truth of the criminal allegations in the indictment. If there

had been any implication of such an admission, surely the

government would have sought to introduce the declaration,

yet it did not. A statement regarding when Jones’ involvement

in the assertedly legitimate enterprise terminated certainly did

not conflict with Wells’ defense or support the criminal

indictment. 

B

Wells also contends that the fee arrangement prevented

Abraham from entering into plea negotiations with the government, either before or after his trial. We disagree. 

[6] Wells has an extensive criminal record. He is familiar

with the criminal justice system and the plea bargaining process. However, in this particular case, Wells was unwilling to

plead guilty and was unwilling to cooperate with the government in any fashion, as the district court so found. If Wells

was unwilling to plead guilty or cooperate with the government, either before or after his trial, it cannot be said that

Abraham’s performance as Wells’ counsel was adversely

affected by his failure to engage in futile plea negotiations

with the government, even though, in a hypothetical sense,

Wells may have obtained a reduced sentenced by testifying

against Jones at his retrial. In view of Wells’ unwillingness to

plead guilty and/or cooperate, Abraham had nothing to offer

the government, even after the verdict. Thus, we are constrained to conclude that Wells’ decisions, not those of Abraham, prevented Wells from pursuing a plea bargain with the

government. Cf. Armienti v. United States, 313 F.3d 807, 815

(2d Cir. 2002) (holding that, even though counsel did not discuss the option of a plea agreement, conflict of interest claim

premised on counsel’s failure to pursue a plea agreement

failed where defendant adamantly refused to cooperate with

the government). 

[7] Moreover, and critically, there simply is no indication

in the record, either in the original trial or in the habeas pro352 UNITED STATES v. WELLS
ceedings here, that Wells had any information concerning

Jones’ activities that could have been helpful in convicting

him. Nor is there evidence in the record that the government

was interested in obtaining information from Wells about

Jones. There is also nothing in the record that indicates Jones’

defense, which later resulted in his acquittal, was not true, that

Wells had any information that it was not, or that his lawyer

had any reason to believe that Wells had such information. Cf.

Belmontes v. Woodford, 350 F.3d 861, 886 (9th Cir. 2003)

(holding that speculative alleged failings by counsel are insufficient to support a conflict of interest claim). Absent any

showing to the contrary, we cannot conclude there was an

actual conflict of interest adversely affecting Abraham’s representation of Wells, even after the jury’s verdict. 

III

In summary, this simply is not a case in which counsel

(Abraham) took, or refrained from taking, favorable action on

behalf of one client (Jones) to the detriment of another client

(Wells). Cf. Shwayder, 312 F.3d at 1118-20 (in successive

representation case where the defendant had an interest in laying blame on coconspirator who cooperated with the government and testified at defendant’s trial, court found no adverse

effect on counsel’s performance because counsel was not ethically restricted from vigorously cross-examining coconspirator and counsel had actually impugned coconspirator’s

credibility several times throughout the trial); see also Lewis

v. Mayle, No. 03-16152, 2004 WL 2699900, at *7-9 (9th Cir.

November 29, 2004) (in a successive representation case

where the state’s primary witness and only eyewitness to the

murder allegedly committed by the petitioner, court found

that an adverse effect was demonstrated because counsel

failed to pursue three viable avenues of impeachment of the

state’s primary witness); McFarland v. Yukins, 356 F.3d 688,

709-10 (6th Cir. 2004) (holding that counsel labored under

actual conflict of interest in violation of Sixth Amendment in

jointly representing defendant and codefendant charged with

UNITED STATES v. WELLS 353
possessing same drugs in their jointly occupied apartment,

where counsel forewent obvious and strong defense of inculpating codefendant as possessor of drugs and instead implausibly argued that third parties possessed drugs); Quintero v.

United States, 33 F.3d 1133, 1136-37 (9th Cir. 1994) (holding

that evidentiary hearing warranted on conflict of interest

claim where counsel’s advice to defendant to reject plea

agreement was not in defendant’s best interest and, thus,

advice to reject plea agreement could have been motivated by

a desire to keep the defendant from implicating the person

paying the defendant’s attorney’s fees). Nor is this a case

where a drug courier or low-level drug dealer is at the mercy

of a drug kingpin or unknown third party. Quintero, 33 F.3d

1136-37. As noted above, there is no evidence that the fee

arrangement affected Abraham’s handling of any issue in the

case. In fact, the record reflects that Abraham’s performance

was unaffected by the fee arrangement and he, as the district

court found, put on a spirited defense in his representation of

Wells, a defense, which in all principal respects mirrored

Jones’ defense. Cf. Berry v. United States, 293 F.3d 501, 505

(8th Cir. 2002) (holding that, although counsel had an actual

conflict at sentencing, no adverse effect shown where counsel’s advice at sentencing “was more than reasonable, and evidently unaffected by any ulterior consideration”).5

Accordingly, the judgment of the district court is affirmed.

AFFIRMED. 

B. FLETCHER, Circuit Judge, dissenting: 

I respectfully dissent. Robert Wells was denied effective

5Because Wells’ conflict of interest claim fails on the merits, we need

not address the district court’s alternative holding that Wells waived any

conflict of interest. 

354 UNITED STATES v. WELLS
assistance of counsel in two respects. His defense attorney,

Joseph Abraham, labored under an actual conflict of interest.

Abraham’s legal fees were paid by Daniel Jones, one of

Wells’s indicted co-conspirators,1 and the record establishes

that this fee arrangement adversely affected Abraham’s representation. Second, Abraham was absolutely unwilling to

negotiate with the government on behalf of Wells even

though it could have materially decreased Wells’ sentence. 

I.

“A criminal defendant’s Sixth Amendment right to counsel

includes the right to be represented by an attorney with undivided loyalty.” Lockhart v. Terhune, 250 F.3d 1223, 1226 (9th

Cir. 2001). Unlike other Sixth Amendment claims, a claim

that a lawyer operated under an actual conflict of interest does

not require the petitioner to prove that his counsel’s deficient

performance prejudiced his defense. Id. (quoting Delgado v.

Lewis, 223 F.3d 976, 981 (9th Cir. 2000)); see also United

States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003). It is

enough to prove the existence of an actual conflict—a conflict

that “affected counsel’s performance.” Mickens v. Taylor, 535

U.S. 162, 171 (2002). 

II.

Wells meets his burden with evidence that the potential

conflict created by Abraham’s fee arrangement actually

affected Abraham’s representation in two ways. First, Abraham asked Wells to sign a declaration that helped Jones, but

that could have prejudiced Wells’s own defense. Second,

Abraham flatly refused to negotiate with the government on

Wells’s behalf—a refusal that could only have benefitted

Jones. 

1The majority suggests that although Jones advanced the money, the

money actually might have been Wells’s. What is critical, however, is that

Abraham thought its source was Jones. 

UNITED STATES v. WELLS 355
A.

On July 8, 1991, shortly after the criminal trial in this case

had begun, Abraham presented Wells with a prepared declaration that Abraham intended to file in support of Jones’s

motion to sever his trial from that of his co-defendants. Wells

signed the declaration, apparently after a brief discussion with

Abraham. The declaration stated that Wells had decided not

to testify at his own trial, but that if Jones were given a separate trial, Wells would testify at that trial that in March 1985

Jones withdrew “from all activity involving the allegations in

the Indictment” and “abandoned all economic and financial

interest in our ventures.” 

There is no evidence in the record that Abraham ever discussed with Wells the potentially inculpatory nature of this

declaration. For example, if one assumes, as co-conspirator

Don Wogamon testified at trial, that Wells and Jones conspired to manufacture and distribute methamphetamine from

1983 through the early part of 1985, then Wells’s declaration

immediately takes on an incriminating cast. It admits Wells’s

participation in what Wogamon described, in detail, as an

illicit, business venture centered around the manufacture and

distribution of methamphetamine. Contrary to the majority,

the language that Wells, if called to testify in a separate trial

of Jones would testify that Mr. Jones “manifested a clear

intention to withdraw from all activity involving the allegations in the Indictment in this case” is incriminating. It does

not limit the “activity” to the gold mine operation as the

majority suggests. 

At the evidentiary hearing on Wells’s § 2255 motion,

Wells’s habeas counsel asked Abraham to explain what possible benefit could have accrued to Wells as a result of the July

8, 1991 declaration. Abraham could not point to any benefit.

Instead, he explained that he presented the declaration to

Wells because it provided support for the severance motion of

356 UNITED STATES v. WELLS
Wells’s friend Jones—the co-conspirator and co-defendant,

who Abraham thought was paying his legal fees. 

B.

Abraham and Wells first met in 1991, after Wells had been

arrested on the charges at issue in this case. At their first

meeting, Abraham made it clear that his offer of representation was limited. When Wells asked about his “option[s]”

other than trial, Abraham said: “[I] don’t represent snitches.”

A policy like Abraham’s raises serious ethical questions.

See United States v. Lopez, 4 F.3d 1455, 1464-66 (9th Cir.

1993) (B. Fletcher, J., joined by T.G. Nelson, J., concurring);

see also ABA Model Rule of Professional Conduct 1.2(a)

(“[A] lawyer shall abide by a client’s decisions concerning the

objectives of representation . . . . In a criminal case, the lawyer shall abide by the client’s decision, after consultation with

the lawyer, as to a plea to be entered, whether to waive jury

trial and whether the client will testify.”); id. at 1.2(c) (“A

lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client

gives informed consent.”) (emphasis added). The plea bargaining process is so important in our criminal justice system

that a defense lawyer who refuses to negotiate with the government will often fail to provide the effective assistance

required by the Sixth Amendment. See Turner v. Calderon,

281 F.3d 851, 879 (9th Cir. 2002) (explaining that negotiations with the government are a “critical stage” of a prosecution for Sixth Amendment purposes). The type of truncated

representation offered by Abraham certainly falls far short of

the ideal attorney-client relationship expounded in Strickland.

See Lopez, 4 F.3d at 1464 (“[T]he model of a successful

attorney-client relationship, as expounded in Strickland v.

Washington, is one in which counsel’s actions are based on

informed strategic choices made by the defendant and on

information supplied by the defendant.”) (internal quotation

marks and alterations omitted). 

UNITED STATES v. WELLS 357
Notwithstanding these ethical problems with Abraham’s

approach, Abraham stuck to his policy throughout Wells’s

trial, even after the jury convicted Wells but was unable to

reach a verdict as to Jones on several counts. The majority

suggests that Abraham may have decided not to pursue negotiations with the government because Wells had no useful

information to give—not because Abraham was affected by a

conflict of interest.2 This view of the record is flawed in two

respects. 

First, the majority’s view assumes that Jones had a valid

statute of limitations defense, and that Wells could not have

implicated Jones in any illegal acts within the limitations

period. However, Jones was charged in at least one count for

which Wells could have provided critical testimony and for

which Jones did not have an obvious statute of limitations

defense. The “Butte indictment” charged Jones with manufacturing and distributing methamphetamine on March 11, 1985.

Because that indictment was filed on February 23, 1990, the

charged violation fell within the five-year limitations period.

Second, Abraham testified at the evidentiary hearing on

Wells’s § 2255 motion that he and Wells never discussed

whether Wells could provide assistance to the government. It

is difficult to imagine that a defense attorney unaffected by a

conflict of interest would not at least have asked Wells if he

could provide information useful to the government, particularly when Wells had already been convicted and Jones faced

a second trial on the hung-jury counts. Compelling trial testimony established that Jones and Wells had manufactured

methamphetamine together for several years in the early

1980s. Even if Wells could not have provided the government

with information about Jones’s involvement in the March 11,

2Similarly, the majority implies that the government had no interest in

obtaining information from Wells about Jones. I find this specious —

Jones’ first jury was hung. His second acquitted. The government needed

help and Wells was the obvious source. 

358 UNITED STATES v. WELLS
1985 distribution, or about Jones’s involvement in criminal

acts within five years of the “Helena indictment,” Wells

clearly had a wealth of incriminating background information

about Jones that he could have provided to the government.

Yet Abraham failed to broach the subject of cooperation with

the government. This unexplained failure could have benefitted only Jones.3

The most logical explanation for Abraham’s conduct is that

his representation of Wells was adversely affected by a conflict of interest. This is the only explanation, in fact, that

accords with Jones’s conduct. Jones agreed to pay for Wells’s

criminal defense even though Jones and Wells had had a falling out in 1985 and had not spoken before the 1991 trial. It

strains credulity to assume that Jones volunteered to pay

Abraham’s significant legal fees4 without at least expecting

loyalty in return. 

III.

The July 8, 1991 declaration and Abraham’s refusal to

negotiate with the government, viewed in light of Jones’s

unexplained willingness to pay for Wells’s defense, lead me

to conclude that Abraham’s representation was adversely

affected by an actual conflict of interest. I would grant the

writ.

3Abraham suggested at the evidentiary hearing on Wells’s § 2255

motion that he simply preferred trials to plea negotiations: “Whenever I

get ready to be involved in a case, I candidly tell the person that I’m about

to be involved with that if he wants to be a government witness he doesn’t

need me to represent him.” Even if true, this preference does not explain

Abraham’s failure to raise the issue of government cooperation after Wells

was convicted. At that point, Abraham had already had his chance to take

the case to trial. Abraham had nothing to lose and Wells had everything

to gain. 

4Wells testified that Abraham was paid $100,000 for his trial representation and $30,000 for his appellate work. Abraham testified that he probably received $60,000 for the trial and $25,000 for his appellate work. At

a minimum Jones paid $85,000 for Wells’s criminal defense. 

UNITED STATES v. WELLS 359