OpenJurist

917 F2d 1307 United States v. Lara

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Ruperto Marescal LARA, Defendant-Appellant.

No. 90-50057.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990.*
Decided Nov. 8, 1990.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Defendant Lara appeals the district court's denial of his motion to set aside his guilty plea and his resulting conviction on a drug offense, based on his contention that his attorney faced a conflict of interest. Specifically, appellant claims that his original attorney,1 by accepting his fees from a party whose interests were adverse to appellant's,2 failed to provide appellant with "represent[ation] whose loyalties are undivided," a right secured by the Sixth Amendment. Wood v. Georgia, 450 U.S. 261, 271 (1981). The district court held that there was no conflict of interest, as defendant had not shown that the attorney's loyalties were in fact divided. We affirm.

3

We review de novo trial court decisions on conflict of interest claims, except for purely factual findings, which are reviewed for clear error. U.S. v. Allen, 831 F.2d 1487, 1494 (9th Cir.1987); see also U.S. v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

4

In order to show a conflict of interest, appellant must demonstrate, first, that counsel "actively represented conflicting interests," Allen, 831 F.2d at 1487 (quoting Culyer v. Sullivan, 446 U.S. 335, 350 (1980)), and, second, that "the conflict must have 'actually affected the adequacy of his representation.' " Allen, 831 F.2d at 1495 (quoting Culyer, 446 U.S. at 349). However, actual prejudice to defendant need not be shown. Allen, 831 F.2d at 1495; see also Culyer, 446 U.S. at 349-50. The district court did not reach the second requirement, finding as a preliminary matter that counsel did not represent conflicting interests. See Transcript of January 29, 1990 Hearing ("Hearing Transcript") at 45-46. We agree.

5

The only evidence either side offered was the testimony of appellant and the original attorney, who contradicted each other on almost every material point.3 The district court explicitly based its finding on the attorney's testimony that he did not feel he was in effect representing two individuals. See Hearing Transcript at 45.4 In crediting the attorney's testimony over appellant's, the district court was clearly weighing the credibility of the two witnesses. We give special deference to a fact-finder's credibility determinations. Spain v. Rushden, 883 F.2d 712, 717 (9th Cir.1989). We find nothing in the record which casts sufficient doubt on the district judge's finding to warrant overturning her decision to credit the attorney's testimony and therefore to find no conflict.

6

The judgment is AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Appellant has been represented by a different attorney during the litigation of this motion

2

Both sides agree that the third party's interests in this matter were indeed adverse to appellant's, and that the third party did in fact pay the original attorney's fees

3

For example, appellant and the attorney differed on whether the attorney knew that the third party was paying for appellant's defense. Compare Hearing Transcript at 36 (appellant's testimony) with id. at 30, 33 (attorney's testimony). They also disagreed on the attorney's reasons for recommending that appellant plead guilty, with appellant claiming the attorney said he was beholden to the wishes of the third party, and the attorney claiming he based his recommendation on the low chances of winning an acquittal. See id. at 38 (appellant's testimony); id. at 21-22 (attorney's testimony)

4

The court also found that appellant entered his guilty plea "freely and voluntarily." Hearing Transcript at 46. This finding apparently bolstered the court's decision to discount appellant's testimony, proffered to support his claim that his guilty plea resulted from the attorney's conflict-tarnished advice, that he wanted a jury trial but had been dissuaded by the attorney's threats of physical harm at the hands of the third party should appellant insist on a trial