DISCUSSION

The Sixth Amendment right to counsel may be violated in some circumstances

where counsel has a conflict of interest that adversely affects their representation of

the defendant. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). For ineffective

assistance of counsel claims where the appellant entered a guilty plea, the appellant

must establish “there is a reasonable probability that, but for counsel’s [alleged

conflict], he would not have pleaded guilty and would have insisted on going to

trial.” Washington v. Lampert, 422 F.3d 864, 873 (9th Cir. 2005) (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985)). To prevail on an ineffective assistance claim

3 where there was no such claim before the district court, the appellant “must

demonstrate that an actual conflict of interest adversely affected his lawyer’s

performance.” Cuyler, 446 U.S. at 348.

I. Davis’s representation of an unrelated defendant is not an actual

conflict.

Zuberi has established neither that Davis had divided loyalties nor, even if

divided loyalties existed, that the conflict adversely affected Davis’s performance.

Arsan’s case is not as similarly situated as Zuberi argues. Where Arsan was a

middleman in a roughly $300,000 scheme, Zuberi was the leader in a multi-million-

dollar effort to funnel foreign funds into federal election campaigns. Zuberi

attempted to bribe a witness to keep the individual from cooperating with the FBI,

deleted emails after receiving a government subpoena, and backdated a check to

obscure his violations of FARA.

Zuberi, under Davis’s counsel, signed his plea agreement on October 6, 2019.

Arsan, also under Davis’s counsel, signed his DPA on November 10, 2020, over a

year later. While Davis might have known the possible terms of Arsan’s plea

agreement at the time Zuberi entered his plea deal, Davis was unaware of the final

terms on which the government and Arsan would agree. Given the factual

distinctions between Zuberi’s and Arsan’s situations, the lack of connection between

Zuberi’s and Arsan’s respective schemes, and the temporal differences in Davis’s

4 representation of Zuberi and Arsan, there is no showing that Davis had divided

loyalties and a conflict in representing these two individuals.

II. Davis’s performance was not adversely affected by his

representation of Arsan.

It is “at least necessary, to void the conviction, for petitioner to establish that

the conflict of interest adversely affected his counsel’s performance.” Mickens v.

Taylor, 535 U.S. 162, 174 (2002). “The central question that we consider in

assessing a conflict’s adverse effect is ‘what the advocate found himself compelled

to refrain from doing’ because of the conflict.” Lockhart v. Terhune, 250 F.3d 1223,

1231 (9th Cir. 2001) (cleaned up) (quoting United States v. Allen, 831 F.2d 1487,

1497 (9th Cir. 1987)).

Zuberi argues the conflict forced Davis to stay silent about Arsan’s DPA,

which resulted in Davis “fail[ing] to inform [Zuberi] of viable ‘alternative courses

of action’ based on the same prosecuting agency’s offers to similarly situated

defendants.” Zuberi fails to recognize that Davis and co-counsel did seek a DPA on

his behalf. In an April 2018 meeting with the USAO, at which Davis was present,

co-counsel James Bowman “stated ZUBERI is still seeking a deferred prosecution.”

There is no evidence in the record that Davis’s representation was restricted due to

his conflict.

Zuberi has the burden of showing what Davis found “himself compelled to

refrain from doing” because of his representation of Arsan. Allen, 831 F.2d at 1497

5 (emphasis omitted) (quoting Holloway v. Arkansas, 435 U.S. 475, 490 (1978)).

While Zuberi claims that had he known of Arsan’s plea he “would have . . .

negotiat[ed] harder based on better information,” there is no evidence that Davis

refrained from seeking the best agreement he could secure on Zuberi’s behalf.

CONCLUSION

Because Davis’s representation of an unrelated defendant in a factually

distinguishable matter is not a conflict that adversely affected his ability to represent

Zuberi, we find that Zuberi’s right to conflict-free counsel was not violated. We

affirm Zuberi’s conviction, but as explained in the sealed memorandum, we issue a

limited remand regarding issues raised by Zuberi in his appeal of his sentence.

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