Filed: Jul. 24, 1992
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT - No. 91-8235 - UNITED STATES OF AMERICA, Plaintiff, versus ROBERT JOHN GREIG and CRAIG WAYNE HANLEY, Defendants. - Appeals from the United States District Court for the Western District of Texas - (July 23, 1992) Before BROWN, KING AND WIENER, Circuit Judges. JOHN R. BROWN, Circuit Judge: This controversy arises out of a successful reverse sting operation in Austin, Texas involving $230,000 and 500 pounds of marijuana, for which Appell
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT - No. 91-8235 - UNITED STATES OF AMERICA, Plaintiff, versus ROBERT JOHN GREIG and CRAIG WAYNE HANLEY, Defendants. - Appeals from the United States District Court for the Western District of Texas - (July 23, 1992) Before BROWN, KING AND WIENER, Circuit Judges. JOHN R. BROWN, Circuit Judge: This controversy arises out of a successful reverse sting operation in Austin, Texas involving $230,000 and 500 pounds of marijuana, for which Appella..
More
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
---------------
No. 91-8235
---------------
UNITED STATES OF AMERICA, Plaintiff,
versus
ROBERT JOHN GREIG and
CRAIG WAYNE HANLEY, Defendants.
-----------------------------------------------------------------
Appeals from the United States District Court
for the Western District of Texas
-----------------------------------------------------------------
(July 23, 1992)
Before BROWN, KING AND WIENER, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
This controversy arises out of a successful reverse sting
operation in Austin, Texas involving $230,000 and 500 pounds of
marijuana, for which Appellants Greig and Hanley were convicted of
marijuana conspiracy offenses. We affirm Hanley's conviction and
sentence. With respect to Greig, however, we find that his counsel
had a conflict of interest which denied Greig his Sixth Amendment
right to effective assistance of counsel. Accordingly, we reverse
and remand to the district court for a new trial.
The Sting
Undercover DEA agent Sanchez and government informant Clark
arranged with Craig Hanley, Ernest Vasquez, and Daniel McGarrigle
to find a buyer for a 500 pound load of marijuana. After several
telephone conversations, agent Sanchez met with Hanley on
September, 19, 1990 and showed him the marijuana. On September 20,
Sanchez met with Hanley, Vasquez, and McGarrigle to finalize the
deal. Robert Greig was contacted as a potential buyer and the same
day, agent Sanchez showed Greig the marijuana after which they
agreed on a site for the exchange later that day. Greig arrived at
the designated time and place carrying a cardboard box full of
$230,000 in cash. Greig, Hanley, Vasquez and McGarrigle were then
arrested.
In October, 1990, Greig, Hanley and Vasquez were charged with
(1) conspiring to possess with intent to distribute 500 pounds of
marijuana, in violation of 21 U.S.C. § 841(a)(1)1 and 846;2 and (2)
attempting to possess with intent to distribute 500 pounds of
marijuana, in violation of 21 U.S.C. 841(a)(1) and 846.3 Vasquez
and McGarrigle entered guilty pleas, and Greig and Hanley were
tried together before a jury. Greig was found guilty on both
1
Section 841(a)(1) provides in pertinent part:
...[I]t shall be unlawful for any person knowingly or
intentionally ... to distribute ... a controlled
substance....
2
Section 846 provides in part:
Any person who ... conspires to commit any offense
defined in [Title 21 of the United States Code] ...
[shall be guilty of an offense against the United
States.]
3
Section 846 also prohibits attempts to commit offenses
under Title 21 of the United States Code.
2
counts, and was sentenced to two concurrent 136 month terms of
imprisonment, two concurrent five year terms of supervised release,
a fine of $17,500 and a mandatory special assessment of $100. The
jury found Hanley guilty only on the conspiracy count, and he was
sentenced to 108 months of imprisonment, five years of supervised
release and a $50 mandatory special assessment. Both Greig and
Hanley appeal.
Greig raises a number of objections to the verdict and his
sentence, complaining that the district court erred by (1) refusing
to offer him the opportunity to substitute counsel; (2) allowing
the Government to call informant Clark as a rebuttal witness; (3)
increasing his sentence for obstruction of justice; (4) failing to
decrease his sentence for acceptance of responsibility for his
crime; and (5) increasing his sentence for his role as leader of
the conspiracy. Hanley, on the other hand, raises the single
argument that the court erred in refusing to give his proposed jury
instruction regarding his alleged good faith belief that he was a
government informant. We first turn to Greig's ineffective
assistance of counsel claim.
I. Greig's Sixth Amendment Right to
Effective Assistance of Counsel
The Critical Sequence of Events Behind It All
On February 19, 1991, before Greig's and Hanley's trial began,
the court held Ernest Vasquez' rearraignment proceeding. There
Vasquez' lawyer brought to the court's attention the following
improper communications by Greig's counsel. He told the trial
3
judge that after he informed Greig's lawyer of Vasquez' plea
negotiations with the Government, Greig approached him and Vasquez
stating, "[t]hey [the Government] cannot convict me without your
testimony."4 Vasquez' lawyer then stated that he advised Vasquez
to have no further contact with Greig. Vasquez' lawyer next
explained to the court that after a plea agreement had been signed,
Vasquez was asked by Greig to meet with Greig and Greig's lawyer.
Vasquez met with them and was advised to plead not guilty based
upon a valid entrapment defense. Vasquez' lawyer then reported to
the court a second meeting. He stated that Greig and his counsel
visited Vasquez' job site and again suggested that Vasquez not
plead guilty on the basis that he had a valid entrapment defense.
He reported that Greig's lawyer in this meeting also told Vasquez
that he should seek other counsel. Finally, Vasquez' lawyer
complained to the trial judge that Greig's lawyer never asked for
his permission to consult with Vasquez; never informed him of the
fact that he twice met with Vasquez; and never attempted to discuss
with him the entrapment defense.
On the same day, prior to jury selection at the start of the
trial, the district court informed Greig's counsel that, in his
absence, "the Court heard evidence today of that on two different
occasions you personally visited with Mr. Vasquez, advised him that
he should not plead guilty, that he had a defense, and that his
lawyer was not doing for him what another lawyer should do or be
4
In return for a lessened sentence, Vasquez' plea agreement
with the Government required him to testify at Greig's trial.
4
able to do, that he should get another lawyer." The court then
stated that a disciplinary proceeding would be held during jury
deliberations at the end of Greig's trial.
On February 21, outside the presence of the jury and while
they were deliberating in Greig's trial, the trial judge conducted
the disciplinary proceeding, hearing testimony from Vasquez, Greig
and their respective lawyers. The trial court did not make a
ruling at the hearing, and took the matter under advisement until
after the completion of Greig's sentencing.
At Greig's sentencing hearing on April 15, 1991, Greig was
sentenced under § 3C1.1 to an extra 27 months for obstruction of
justice as a result of his participation in the illicit meetings
with Vasquez.5 Not until the completion of Greig's sentencing did
the trial court then announce its order permanently barring Greig's
lawyer from appearing as counsel before the Western District Court
of Texas.6
Greig now asserts that his lawyer's misconduct created a
5
Section 3C1.1 of the Sentencing Guidelines provides that if
the defendant willfully impeded or obstructed, or attempted to
impede or obstruct the administration of justice during the
investigation or prosecution of the offense charged, the offense
level is to be increased by two levels. As a result of the
obstruction of justice enhancement, Greig's offense level was
increased from 30 to 32, which added approximately 27 months to
his sentence using the mid-point of the guideline range.
6
As is this is not before us, we make no comment on the
propriety of the court's sanction disbarring Greig's counsel. We
add, however, that Greig's lawyer later appealed his disbarment
to this court. We reversed and remanded the matter after finding
that the district court applied the incorrect evidentiary
standard in reaching its conclusion that Greig's lawyer should be
disbarred. See In re Medrano, ___ F.2d ___ (5th Cir. 1992).
5
conflict of interest, violating his Sixth Amendment right to
effective assistance of counsel. We agree. The trial court, being
aware of critical facts, erred in not holding a Garcia7 hearing
to insure that Greig was fully informed of his counsel's ethical
violation and whether Greig nevertheless wanted counsel to continue
in his defense.
(1) No Questions Asked
A defendant's right to effective assistance of counsel
includes the right to representation free from a conflict of
interest. Mitchell v. Maggio, 679 F.2d 77, 78-79 (5th Cir. 1982).
Nevertheless, we have long held that, like the right to counsel of
any kind, the right to conflict-free counsel can be waived. United
States v. Howton,
688 F.2d 272, 274 (5th Cir. 1982). For a waiver
to be effective, the record must show that the trial court
determined that it was knowingly, intelligently, and voluntarily
done:
As in Rule 11 procedures, the district court should
address each defendant personally and forthrightly advise
him of the potential dangers of representation by counsel
with a conflict of interest. The defendant must be at
liberty to question the district court as to the nature
and consequences of his legal representation. Most
significantly, the court should seek to elicit a
narrative response from each defendant that he has been
advised of his right to effective representation, that he
understands the details of his attorney's possible
conflict of interest and potential perils of such a
conflict, that he has discussed the matter with his
attorney or if he wishes with outside counsel, and that
he voluntarily waives his Sixth Amendment protections.
7
United States v. Garcia, 517 F.2d 272 (5th Cir. 1972).
6
Garcia, 517 F.2d at 277-78. Plainly stated, under Garcia, we
instructed trial courts in the Fifth Circuit to conduct a hearing,
now commonly known as a Garcia hearing, to ensure that the
defendant (1) is aware that a conflict of interest exists; (2)
realizes the potential hazards to his defense by continuing with
such counsel under the onus of a conflict; and (3) is aware of his
right to obtain other counsel. United States v. Casiano,
929 F.2d
1046, 1052 (5th Cir. 1991).
In United States v. White, 706 F.2d at 506 (5th Cir. 1983),
after finding an actual conflict of interest, we held that the
defendant's waiver of his counsel's conflict of interest was
legally ineffective because of the trial court's clear failure to
follow Garcia. Counsel in White was under investigation by a grand
jury regarding his participation in his client's escape from jail.
After finding an actual conflict of interest, we reversed based
upon the defendant's invalid waiver of the conflict. Although the
trial court's inquiry in White was more detailed than the inquiry
made by the trial judge in the instant case, we nevertheless found
failure with the procedure since neither the court, the defense
attorney, nor the prosecutor informed the defendant of the precise
manner in which he might be prejudiced. Instead, the court placed
complete reliance upon counsel's statement that he had informed his
client of the dangers of the conflict of interest.
Id. at 509.
The record leaves no doubt that the trial court failed to make
any inquiry whatsoever as to whether Greig was aware of the
7
conflict and its potential hazardous effects upon his defense.
While we recognize that a trial court does not always have an
affirmative duty to inquire into the possibility of a conflict of
interest,8 it does have a duty to conduct a hearing once it has
been alerted and certainly when it knows of the existence of an
actual conflict of interest.9 The record makes clear that Vasquez'
attorney, on the same day that Greig's trial began, informed the
court of unethical meetings between Greig, Greig's lawyer and
Vasquez, which ultimately resulted in an enhancement to Greig's
sentence for obstruction of justice. The court had a duty to
inquire further into Greig's counsel's conflict of interest. Based
on the trial court's failure to conduct even a barebones Garcia
hearing, we hold that Greig could not have knowingly and
voluntarily waived his right to conflict-free counsel.
(2) Ethical Violation Created
Actual Conflict
The Government contends that the court's failure to hold a
Garcia hearing is irrelevant because no actual conflict of interest
existed. Although we agree with the Government that the necessity
8
See United States v. Medel, 592 F.2d 1305 (5th Cir. 1979),
where after finding that no actual conflict existed, we held that
the trial court does not have an affirmative duty to inquire into
the possibility of a conflict when defense counsel never
indicated to the court that a conflict might exist, and when
nothing in the record alerts the court to such a possibility.
Id. at 1312-13.
9
Compare United States v. Carpenter, 769 F.2d 258, 263 (5th
Cir. 1985), holding that there was no error for failure to hold a
Garcia hearing, since the necessity of a hearing is triggered
only by an actual conflict of interest.
8
for such a hearing is triggered only by an actual conflict,10 there
is little doubt that an actual conflict existed here.
Here, counsel was in the position of simultaneously having to
defend himself as well as his client regarding their potentially
criminal activity. Like his client, counsel was open to an
indictment for obstruction of justice based on their contacts with
Vasquez.11 At the very least, counsel faced severe disciplinary
measures, including monetary sanctions, and indeed the very loss of
the right to appear as counsel in the whole Western District of
Texas. His alleged conduct was highly unethical and clearly
violated the Model Code of Professional Responsibility as well as
the American Bar Association's Model Rules of Professional
Conduct.12
10
U.S. v. Carpenter,
769 F.2d 258, 263 (5th Cir. 1985).
11
F.R.Crim.P. § 1512(c) provides:
(c) Whoever intentionally harasses another person and
thereby hinders, delays, prevents, or dissuades any
person from-
(1) attending or testifying in an official
proceeding;
* * *
or attempts to do so, shall be fined not more than
$25,000 or imprisoned not more than one year, or both.
12
Greig's counsel was in clear violation of both the
American Bar Association's Model Rules of Professional Conduct
and the Model Code of Professional Responsibility. Rule 4.2 of
the Model Code provides:
RULE 4.2 COMMUNICATION WITH PERSON
REPRESENTED BY COUNSEL
In representing a client, a lawyer shall not
communicate about the subject of the representation
9
We find persuasive the Third Circuit's reasoning in Government
of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984). There the
defendant's lawyer did not withdraw despite the fact that he faced
a potential indictment for destruction of evidence in his client's
case.13 In finding an actual conflict of interest, the court
reasoned:
Even if not criminally charged for such events, trial
counsel could have faced severe disciplinary consequences
if it were ever known that he was involved in the
destruction of evidence. Trial counsel neither avoided
professional impropriety nor the appearance of
impropriety.... In circumstances such as these, when
defense counsel has independent personal information
regarding the facts underlying his client's charges, and
faces potential liability for those charges, he has an
actual conflict of interest.
Id. at 136 (citations omitted).
In United States v. McLain, 823 F.2d 1457 (11th Cir. 1987),
the defendant's counsel was under investigation by the same United
States attorney's office prosecuting the defendant. Further,
certain assistant U.S. attorneys suggested to the defendant's
counsel that his own indictment could be delayed until after the
with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so
by law.
The Model Code's Disciplinary Rule 7-104(A)(1) is substantially
identical.
13
After a raid and sweep search of Defendant's premises by
officers and narcotics agents, Defendant's attorney arrived at
the house. Officers then heard a toilet flush several times and
Defendant was arrested. Later, a search of the septic tank
produced 40 plastic bags, 20 of which tested positive for cocaine
residue. Zepp, 748 F.2d at 128.
10
completion of his client's trial. Finding an actual conflict of
interest, the Eleventh Circuit concluded that counsel was under an
ethical obligation to inform his client of the investigation and
the possibility that it would affect his judgment. Specifically,
the court held that since it was in counsel's best interest to have
a lengthy trial, he could not have adequately represented his
client in exploring possible plea negotiations. See also United
States v. Cancilla, 725 F.2d 867 (2d Cir. 1984).14
A few cases in our own circuit also help demonstrate the
actual conflict present in this instance. In White, 706 F.2d at
506, counsel was under investigation by a grand jury regarding his
participation in his client's escape from jail. We found, without
question, that these circumstances created an actual conflict of
interest,15 and reversed based upon the defendant's invalid waiver
of the conflict. See
discussion supra. The same lawyer, in a
related case, United States v. Snyder,16
707 F.2d 139 (5th Cir.
1983), was disqualified by the trial court from representing
White's co-conspirator and accomplice, Snyder, in his trial. The
trial court reasoned that since the lawyer was an indicted co-
14
Cancilla involved a situation where counsel was involved
in criminal activity related to that for which Defendant was
convicted. As in Zepp, 748 F.2d at 125, the Second Circuit found
that counsel's potential criminal liability created an actual
conflict.
15
Id. at 509 n.3.
16
Snyder, the defendant, was White's cellmate and was
convicted for conspiring and aiding and abetting in White's
escape. Snyder and White also shared the same lawyer, who was
also indicted for aiding White to escape.
11
conspirator, a conflict existed meriting disqualification.
Although we agreed with the court's determination that an actual
conflict existed, we affirmed the trial court's disqualification
based on our policy to preserve the integrity of the judicial
system.17
Likewise, we are convinced that the events in this case
resulted in an actual conflict of interest, a conflict which Greig
was given no opportunity to waive. This is not the end of the line
for Greig, however. For Greig to prevail, we must also find that
his counsel's conflict of interest adversely affected his
performance.
(2) Conflict Adversely Affected Counsel's Performance
The existence of an actual conflict does not warrant setting
aside the conviction in a criminal proceeding if the error had no
"adverse effect" on the judgment. United States v. Abner, 825 F.2d
835, 843 (5th Cir. 1987). "Adverse effect is not the equivalent of
prejudice, the reasonable probability of a different result, as the
term 'prejudice' is defined in Strickland.18 Injury sufficient to
17
Disqualification of an attorney may be based on either of
the following grounds: (a) conflict of interest, or (b)
integrity of the judicial system. Snyder, 707 F.2d at 145.
Relying on the second ground to affirm the disqualification, we
held that it was not necessary for us to reach the question of
whether the defendant could have waived the conflict. See also
McCuin v. Texas Power & Light Co.,
714 F.2d 1255 (5th Cir. 1983),
where we affirmed the lawyer's disqualification based on the
necessity to maintain the bar's high ethical standards.
18
Strickland articulates the general standards for judging
the various ineffectiveness claims. Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Conflict of
12
justify reversal is presumed from the showing of adverse effect."
Id. (citing Nealy v. Cabana,
782 F.2d 1362, 1365 (5th Cir. 1986).
Although adverse effects are not always readily apparent from
the record, our examination of the record provides ample evidence
that counsel's conflict had an adverse effect on both Greig's trial
and sentence.
First, we find at the outset that Greig's counsel was
preoccupied with his own disciplinary proceeding. Counsel was
warned at the very start of the trial that he would soon be
required to show cause why he should not be disciplined because of
his contacts with Vasquez. Throughout Greig's trial, counsel must
have been plagued by the fear of sanctions, which could, as they
actually did, result in disbarment in the Western District. Added
to that was the uncertainty of whether he would be indicted for
obstruction of justice.
As evidenced by the following exchange at Greig's trial,
counsel failed to defend Greig vigorously and single-mindedly
interest claims warrant a limited presumption of prejudice, and
any deficiencies in counsel's performance must be prejudicial to
the defense in order to constitute ineffective assistance under
the Constitution. Id. at 692.
The Strickland Court reasoned that such a limited
presumption is necessary on the grounds that:
it is difficult to measure the precise effect on the
defense of representation corrupted by conflicting
interests. Given the obligation of counsel to avoid
conflicts of interest and the ability of trial courts
to make early inquiry in certain situations likely to
give rise to conflicts, . . . it is reasonable for the
criminal justice system to maintain a fairly rigid rule
of presumed prejudice for conflicts of interest.
Strickland, 466 U.S. at 692.
13
completely free from his own necessity of avoiding incrimination,
sanctions or even disbarment. The Government on direct examination
asked Vasquez whether he had met with Greig and Greig's attorney
without his lawyer being present. On redirect, the Government
similarly questioned Vasquez about whether Greig and Greig's lawyer
tried to convince him to abandon his guilty plea and not testify
against Greig. Uninterrupted by objection from Greig's counsel,
Vasquez responded yes. Moreover, Greig's counsel made no attempt
on cross-examination to counter Vasquez' testimony. On recross,
instead of attempting to in some way diminish the unfavorable
testimony against his client, counsel immediately covered his own
tracks:
Q [Greig's Counsel] And so I never went ahead and -- and told you
or intimidated you or harassed you in any way, did I, sir?
A [Vasquez] No, sir.
Q In fact, if anything, I told you, "Perhaps your attorney
doesn't know about this tape, go play it to him and discuss it with
him," correct?
A Correct.
Q And isn't it true that I also told you that I could not go
ahead and represent you because I was representing Mr. Greig,
correct?
A Correct.
Q And you asked me that if in fact you chose to switch to
another lawyer, if I could recommend one, and I said, "Well, I can
recommend a friend of mine, Mr. Cantu," correct?
A Correct.
Regardless of the truthfulness or untruthfulness of Vasquez'
answers, it is plainly obvious to this court that Greig's counsel
was preoccupied with conducting his own defense. We cannot ignore
14
the fact that all of this could have been easily avoided by the
court conducting a Garcia hearing to ensure that Greig was fully
informed of his counsel's conflict.
Though the disciplinary proceeding was held at the end of
Greig's trial while the jury was deliberating, counsel's
representation of Greig at the proceeding further demonstrates
counsel's preoccupation. After first questioning Vasquez, counsel
called his client Greig to the stand to testify about their
meetings with Vasquez:
Q [Counsel] Did I ever tell him that his lawyer wasn't
doing a good job?
A [Greig] I can't say I didn't say that.
Q Did you say that, Mr. Greig?
A I -- yes.
Q You're under oath.
A More than once.
Q You're the gentleman that told him to go ahead and
switch lawyers?
A Yes....
* * *
Q And on -- on the second occasion, sir,... you were
the one that drove me by his place of business, isn't
that correct?
A Right....
* * *
A ...And I admit that I -- I tracked him down because
I wanted to hear what Gary [Vasquez' counsel] had to say,
what his defense was and what he was going to do....
Q But I never told you to call Mr. Vasquez?
15
A No, never.
When Greig finally on his own attempted to defend his actions in
meeting with Vasquez, counsel quickly squelched Greig's explanation
in terms which put the blame on Greig:
A [Greig] ...I just wanted to make sure that Ernest
[Vasquez] got all the facts, cut and dried, that's all he
-- I ever wanted him to do, was be able to obtain all the
facts to what was going on...I had nothing to do with
trying to persuade him, to protect myself.
Q [Counsel] I understand that, sir. I understand. I'm
not trying to -- to -- tell you that that's not
important, but the issue is this: Those two meetings
that we had, the Court is concerned with that. Did I
initiate us meeting with Mr. Vasquez in either of those
occasions?
A No.
Q In fact, the first time, I didn't know that he was
going to go ahead and show up, did I?
A No.
Q And the second time, you didn't tell me even that
you had called him, that we were on our way over there,
you just drove me over there, didn't you? In fact, isn't
it true that you made me miss my 5:00 o'clock flight?
A That's right.
Q So, when you went ahead and called Mr. Vasquez, it
wasn't because I requested you to do so, correct?
A Correct.
Lastly, Government counsel cross-examined Greig at the disciplinary
proceeding. The following exchange is evident of what counsel
should have done in the first place:
Q [Government Counsel] Were you concerned with Mr.
Vasquez's welfare or were you more interested in
preventing or prohibiting him or discouraging him from
testifying against you?
A [Greig] No, sir....
16
[Greig's Counsel] Excuse me. I'm going to object to
this line of questioning. It's clearly outside the scope
of what we're here for. The issue is --
THE COURT: It's not at all outside the scope, Mr.
Medrano [Greig's counsel]. You may want to advise your
client concerning the Fifth Amendment -- that would be
another thing entirely -- but it's certainly not outside
the scope of your questioning of him.
[Greig's Counsel] I will go ahead and advise my client,
at this time, to go ahead and -- and not answer any
questions concerning the motives or reasons why you went
ahead and had conversations with Mr. Vasquez.
Counsel's advice to Greig to plead the Fifth Amendment,
prompted incidentally by the judge, came way too late. Although we
certainly recognize that the entire purpose of the disciplinary
proceeding was to permit Greig's counsel to defend his own conduct,
he, on the other hand, may not do it at his client's expense.
Greig's counsel failed in his duty both to protect and advance his
client's interest. As is clearly indicated by the exchange at the
disciplinary proceeding, Greig was required more than once by his
counsel's questions to implicate himself, while exonerating his
counsel. Crucial to our determination that counsel's conflict
adversely affected his client is the fact that the above testimony
at the disciplinary proceeding occurred before the sentencing
hearing. Even though the trial judge delayed ruling on counsel's
disciplinary matter until after Greig's sentencing hearing, we
still are left with no choice but to conclude that this whole
incident had a detrimental effect on Greig's defense. Even though
counsel fully objected at the sentencing hearing to the court's
obstruction of justice enhancement, this was too little too late.
We repeat that this is something which an experienced trial judge
17
should and would anticipate occurring so that a knowing and
intelligent waiver can then be made by following the procedures
under Garcia.
Our inquiry ends here. We conclude that the district court's
failure to hold a Garcia hearing after learning counsel had an
actual conflict of interest, which later adversely affected his
performance, entitles Greig to a new trial.19 Any other course
would simply not do justice. If we were to remand only for
resentencing and enable Greig to find another lawyer, as the
parties suggest, the same result would be inevitable, since most of
the damage had already been done at the trial level and at the
disciplinary proceeding. Even a different sentencing judge could
not erase the harm caused at trial by counsel's conflict.
Accordingly, we reverse Greig's conviction and remand to the
district court for a new trial.
II. Hanley: Jury Instruction More than Adequate
Co-defendant Hanley's defense at trial was that he had a good
faith belief that he was acting as a government informant, and thus
did not possess the requisite criminal intent to support his
conviction. His attack here is on the court's failure to give a
"good faith" instruction.20 He urges that the court's instruction
19
Because we find in fact no waiver, we need not discuss
whether the conflict in Greig's case was unwaivable. See
Plewniak, 947 F.2d at 1288-89, where we question whether certain
conflict of interests are unwaivable.
20
Hanley's defense goes as follows: Approximately three
months before the drug deal in the instant case, United States
18
was insufficient to convey his good faith defense:
You may consider evidence that Defendant Craig Hanley
was, or in good faith believed himself to be, a
government informant in determining whether he had the
requisite intent to become a conspirator.
Specifically, Hanley argues that the jury was wrongfully permitted
to consider his good-faith belief defense only as one factor in
determining whether he intended to conspire. Instead, he contends
that his good faith defense should have been conclusive on the
issue of intent and that the following proposed jury instruction
should have been granted:
Our law provides that a person does not have the criminal
intent required for conviction if he acts as government
informant or in the honest, good-faith belief that he is
a government informant.
A district court's refusal to include a defendant's proposed
jury instruction is reviewed under an abuse of discretion standard,
and the trial court is afforded substantial latitude in formulating
its instructions. United States v. St. Gelais, 952 F.2d 90, 93
(5th Cir. 1992); United States v. Rochester,
898 F.2d 971, 978 (5th
Cir. 1990).
In determining whether the court abused its discretion, we
Customs Agent Walter Tylenda stopped an airplane on which Hanley
was a passenger. Tylenda suspected that the airplane was
transporting drugs into Mexico. Hanley and the owner of the
plane consented to a search, but no drugs were found. Tylenda
then gave his business card to Hanley and requested that Hanley
notify him if he became aware of any drugs being transported
across the Mexican border.
Hanley acknowledged at trial that he was not to take any
action as informant before contacting Tylenda or another customs
agent. In fact, about two weeks prior to the instant
transaction, Hanley contacted Tylenda and informed him of a
possible drug smuggling transaction in Presidio, Texas.
19
must determine whether the requested instruction (1) is a correct
statement of the law; (2) was substantially given in the charge as
a whole; and (3) concerns an important aspect of the trial so that
the failure to give it seriously impaired the defendant's ability
to effectively present a given defense. United States v. Daniel,
957 F.2d 162, 170 (5th Cir. 1992); St.
Gelais, 952 F.2d at 93;
Rochester, 898 F.2d at 978.
In United States v. Welch, 810 F.2d 485 (5th Cir. 1987), the
defendant requested that the trial court give an instruction almost
identical to the one requested by Hanley.21 Reviewing for plain
error, we concluded that the charge, read as a whole, sufficiently
suggested to the jury that they must find specific intent before
the defendants could be convicted.
In the recent case of United States v. Daniel, 957 F.2d at
170, the defendant also requested an instruction on good faith.
Because the jury was properly instructed on the elements of the
offense, including the requisite mental state, we held that a good
faith instruction was not necessary.22
21
The Welch defendants were also facing conspiracy charges,
and requested the following charge:
You may consider whether or not the defendants or
either of them were cooperating with the F.B.I. with
regard to the specific offense charge in the indictment
in determining whether the defendants possessed the
intent necessary to commit the crime charged.
22
See also United States v. Luffred, 911 f.2d 1011, 1016
(5th Cir. 1990) and United States v. Gunter, 876 F.2d 1113, 1119-
20 (5th Cir. 1989), holding that a good faith instruction was not
required where the jury was properly instructed on the requisite
mental states.
20
Similarly, the trial court in this case gave more than
adequate instructions on the specific intent terms of "knowingly"
and "willfully".23 Hanley was also given full latitude to testify
concerning his good faith and to argue good faith to the jury.
Accordingly, we hold that taken as a whole, the good faith
instruction to the jury was adequate.24
In conclusion, we reverse Greig's conviction and remand for a
new trial, and affirm Hanley's conviction and sentence.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
23
The court instructed the jury as follows:
The word "knowingly" as that term has been used from
time to time in these instructions, means that the act
was done voluntarily and intentionally, not because of
mistake or accident.
The word "willfully" as that term has been used from
time to time in these instructions, means that the act
was committed voluntarily and purposely, with the
specific intent to do something the law forbids; that
is to say, with bad purpose either to disobey or
disregard the law.
24
In any event, Hanley's proposed instruction is probably
not a correct statement of the law, as the district court so
concluded. We agree with the lower court that a defendant might
have a good faith belief that he was acting as government
informant and still commit a crime with the requisite intent.
21
