Milton Joseph Brown v. United States

665 F.2d 271 Milton Joseph BROWN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 81-3006. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 17, 1981. Decided Jan. 7, 1982. Douglas Pope, Anchorage, Alaska, for petitioner-appellant. U. S. Atty. Rene J. Gonzalez, Anchorage, Alaska, for respondent-appellee. Appeal from the United States District Court for the District of Alaska. Before CHAMBERS and TANG, Circuit Judges, and THOMPSON, * District Judge. CHAMBERS, Circuit Judge: 1 Appellant was convicted of narcotics offenses in 1975 and thereafter filed a motion to vacate his sentence ( 28 U.S.C. § 2255 ) on the ground of ineffective assistance of counsel. He asserted that unknown to him his trial attorney had simultaneously been representing a DEA agent who had testified against him at the trial. The district judge denied relief and this court, relying on Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), affirmed judgment, finding an insufficient showing of prejudice. Brown v. United States, 605 F.2d 561 (9th Cir. 1979). The Supreme Court, 446 U.S. 2936 , 100 S.Ct. 2936 , 64 L.Ed.2d 821 , vacated the judgment and remanded for…

Appellant was convicted of narcotics offenses in 1975 and thereafter filed a motion to vacate his sentence ( 28 U.S.C. § 2255 ) on the ground of ineffective assistance of counsel. He asserted that unknown to him his trial attorney had simultaneously been representing a DEA agent who had testified against him at the trial. The district judge denied relief and this court, relying on Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), affirmed judgment, finding an insufficient showing of prejudice. Brown v. United States, 605 F.2d 561 (9th Cir. 1979). The Supreme Court, 446 U.S. 2936 , 100 S.Ct. 2936 , 64 L.Ed.2d 821 , vacated the judgment and remanded for further consideration in the light of Cuyler v. Sullivan, 466 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 , 625 F.2d 210 (1980). We thereafter remanded the case to the district court to permit it to rule on the question.

On remand the district judge found explicitly that a conflict of interest did exist in the dual representation. But the district judge continued:

Appellant has again appealed and says that the district judge did not use the correct test under Cuyler. We must agree. The weight of evidence against Brown (even such…

concurring:

I fully concur in the above opinion. I write separately only to highlight the standards that should govern the district court’s determination on remand. The district court concluded that the appellant’s representation was not adversely affected because further cross-examination of the D.E.A. agent was highly unlikely to change the verdict against the appellant. Although this is the proper inquiry under the “actual prejudice” test of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 (1979), it is not the inquiry required by Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980). To satisfy Cuyler , the district court must determine whether the appellant’s attorney refrained from a more vigorous cross-examination of the D.E.A. agent because of his divided loyalties, and, if so, whether the appellant’s representation would have benefited even marginally from a more aggressive cross-examination.