United States v. Robert Vaio Wells

394 F.3d 725 UNITED STATES of America, Plaintiff-Appellee, v. Robert Vaio WELLS, Defendant-Appellant. No. 03-35178. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 12, 2004. Filed January 11, 2005. Marcus S. Topel and Daniel F. Cook, Topel & Goodman, San Francisco, CA, for the defendant-appellant. James E. Seykora and Bernard F. Hubley, Assistant United States Attorneys, Helena, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. Nos. CV-97-00016-CCL, CR-90-00020-CCL, CV-90-00042-CCL, CR-90-00005-CCL. Before: B. FLETCHER, HAMILTON, * and BERZON, Circuit Judges. HAMILTON, Senior Circuit Judge: 1 In August 1991, a jury in the United States District Court for the District of Montana convicted Robert Wells of conspiracy 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…

In August 1991, a jury in the United States District Court for the District of Montana convicted Robert Wells of conspiracy 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:

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…

dissenting:

I respectfully dissent. Robert Wells was denied effective 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 8Í8, 823 (9th Cir.2003). It is enough to prove the existence of an actual conflict — a conflict that “affected counsel’s performance.”…