Case o' The Week: Ninth, Conflicted - Walter-Eze and "Actual" Conflicts of Interest

Actual conflict = actual presumed prejudice?

Actually, not this time.  

United States v. Sylvia Ogbenyeanu Walter-Eze, 2017 WL 3648511 (9th Cir. Aug. 25, 2017), decision available here.

Players: Decision by visiting D NY DJ Amon, joined by CJ Thomas. Concurrence (only in judgement) by Judge Nguyen.

Facts: Walter-Eze was charged with health care fraud. Id. at *2. Court-appointed counsel received three trial continuances. Id.

  Two weeks before trial, retained counsel appeared. Id. The district court allowed the substitution after receiving commitments to proceed on an agreed-upon trial date. Id. Nonetheless, on the first day of trial, counsel filed an emergency motion to continue, explaining they were not prepared. Id. at *3.

   The court agreed to continue if counsel agreed to pay witness and jury fees. Id. Defense counsel worried that this might get reported to the California State Bar, so agreed to proceed to trial. Id.

   On appeal, Walter-Eze chronicled defense counsel’s failure to review government exhibits, failure to prepare jury instructions, complete a PowerPoint presentation in time for closing, failure to secure attendance of defense witnesses, or give the government a timely list of witnesses or experts. Id. at *10.

  Walter-Eze was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . . . [on the ground that] a conflict of interest created by the district court when it conditioned an adjournment on counsel’s paying jury costs and witness fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held: “[F]or the purposes of Sullivan’s presumption of prejudice, we hold that under the circumstances present here, both the threat of fees and the threat of potential sanctions created a conflict of interest that adversely affected counsel’s performance.” Id. at *6.

  “In this case, the conflict was concretely manifest in real time, as Darden was called upon to choose between being fined and potentially facing a bar investigation or going to trial even though he and his co-counsel repeatedly indicated on the record that they were unprepared. For this reason, the government is wrong to assert that Darden was faced with only a ‘possible’ conflict. In fact, the existence and impact of the conflict could not have been clearer.” Id. at *7.

  “[U]nder the facts of this case, Walter-Eze must show that she was prejudiced by this actual conflict, and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision, the Supreme Court presumed prejudice when defense counsel had an actual conflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume prejudice after it finds an “actual conflict” on these particular facts.

  In an important (albeit confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual conflict” – prejudice will not be presumed in this case. Id. at *5.

  Judge Nguyen doesn’t understand this analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger the presumption of prejudice. Id. at *18.

  Practically speaking, the Walter-Eze decision may effectively limit “presumed prejudice” to cases where defense counsel represents multiple clients in the same case. However, as Judge Nguyen complains, this outcome is a fact-entangled “rule” that seems ripe for further exploration.

How to Use: Whatever its shortcomings, Walter-Eze is an exhaustive discussion of conflicts. Id. at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful compilation of authority.

                                        

For Further Reading: Can you avoid a Ninth Circuit decision, just because mandate has been stayed? No – and neither can judges. As the Ninth just concluded, “Notwithstanding this high threshold, petitioners have demonstrated that the judges within the District of Arizona who found that Sanchez-Gomez was not binding on them committed clear error.” See Ord. here. 

  A remarkable win in the righteous shackling saga – congrats to D. Az. AFPD Dan Kaplan.

Image of “Conflict of Interest” from http://freedomradio91.com/wp-content/uploads/2016/05/Article-Conflict-of-Interest.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website available here.

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