Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Joseph A. ALI, Defendant-Appellant.

No. 87-1316.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1988.Decided July 11, 1988.

Before KOELSCH, WALLACE and BEEZER, Circuit Judges.


MEMORANDUM* 

A jury found Joseph A. Ali guilty of importation and sale of illegal devices, failure to file FCC importation forms, and aiding and abetting. Ali appeals his conviction and sentence on grounds of ineffective assistance of counsel. Ali also contends that the district court erred in not recusing defense counsel because of conflict of interest. We affirm.

* After an investigation by the Federal Communications Commission (FCC), Ali and numerous others were charged with illegally marketing a wireless transmitter known as a "TV Genie." In a ten-count indictment, Ali was charged with importation and sale of illegal devices, failure to file FCC forms regarding imports, and aiding and abetting in violation of 47 U.S.C. §§ 302a, 501, 502, 18 U.S.C. § 2, and 47 C.F.R. Secs. 2.803, 2.1202, 2.1219, 15.122. Ali was represented by Neil R. Slocum, who also represented co-defendants Orion Industries (of which Ali was the principal) and Ali's mother Inez Stanley. The government moved under Fed. R. Crim. P. 44(c) for the court to inquire with respect to joint representation and to disqualify Slocum for prior representation and conflict of interest. Ali and Stanley opposed the government's Rule 44(c) motion through Slocum. After a thorough hearing, the magistrate found that both Ali and Stanley "understood their right to effective assistance of separate counsel, and that they [waived] the same on the record after having been canvassed by the Court." Accordingly, the motion to disqualify was denied.

The government subsequently dismissed the indictment as to defendants Russel Sanders, Steve Byington and Apollo Industries. Pursuant to plea negotiations, defendants Joseph V. Ali (appellant's father) and Stanley each pleaded guilty to one misdemeanor count. The only defendants left for trial were Ali and Orion Industries, both of which were represented by Slocum. After trial, a jury found Ali and Orion Industries guilty on nine of the ten counts. Ali was subsequently sentenced.

II

Ali contends that his counsel, Slocum, failed to render effective assistance at trial and at sentencing. To establish such a claim, Ali bears the burden of demonstrating that (1) his counsel's performance was deficient and (2) counsel's deficient performance actually prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also United States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987). Failure to make either showing defeats his ineffectiveness claim. Strickland, 466 U.S. at 700.

To establish prejudice, Ali "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694 (emphasis added); see also Darden v. Wainwright, 106 S. Ct. 2464, 2473-74 (1986). Such reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. After carefully reviewing the record, we conclude that Ali has failed to show affirmatively that his counsel's alleged deficient performance actually had an adverse affect on his defense at trial or at sentencing.1  See id. at 693. The evidence against Ali was overwhelming. Ali's conviction and sentence has not been rendered unreliable by a breakdown in the adversary process caused by his counsel's purported inadequate assistance. See id. at 687, 700.

III

Ali alternatively argues that the district court should have recused his defense counsel because of a conflict of interest. The Supreme Court has reasoned that to establish a sixth amendment violation based on conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see also United States v. Sutton, 794 F.2d 1415, 1419 (9th Cir. 1986). Prejudice to the defendant is presumed if he shows that counsel actually represented conflicting interests and that the conflict of interest actually affected the adequacy of his representation. Cuyler, 446 U.S. at 349-50; Mannhalt v. Reed, No. 87-4093, slip op. at 5929 (9th Cir. May 25, 1988).

Slocum represented Ali and his co-defendants Stanley (Ali's mother) and Orion Industries (of which Ali was the principal). In its Rule 44(c)2  motion to disqualify Slocum for conflict of interest, the government elaborated on the possible pitfalls inherent in joint representation, including the matter of plea negotiations. Opposing the motion, Ali and Stanley urged the court not to disturb representation by counsel of their choice since (1) they desired Slocum to represent them in this proceeding and (2) they believed such presentation would be advantageous to their case.

The magistrate fully complied with Rule 44(c). At the hearing, the magistrate went to great lengths to advise both Ali and Stanley of their right to effective assistance of independent, separate counsel. Ali and Stanley repeatedly affirmed that they understood the disadvantages of joint representation, including the problems with plea negotiations, and expressly waived their right to independent counsel. Accordingly, the magistrate denied the government's motion to disqualify Slocum.

By the time of trial, Stanley had pleaded guilty pursuant to plea negotiations with the government. Ali now maintains that at the time Stanley pleaded guilty, a conflict of interest existed to such an extent as to require (1) Slocum to recuse himself voluntarily, (2) the government to move once against to disqualify Slocum, or (3) the district court to recuse counsel because of conflict of interest.

Ali knowingly and intelligently waived his right to independent counsel at the Rule 44(c) hearing and raised no objection at trial. Because Ali raises the issue of conflict of interest for the first time in this appeal, he must demonstrate that an actual conflict adversely affected Slocum's performance. See Sutton, 794 F.2d at 1420. After carefully reviewing the record, we conclude that even if, arguendo, counsel actively represented conflicting interests, Ali has not shown that any such actual conflict adversely affected the adequacy of his representation. See Cuyler, 446 U.S. at 348; Sutton, 794 F.2d at 1419.3  Accordingly, Ali's contentions fail.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Because we conclude that Ali has not shown prejudice, we need not determine whether counsel's performance was deficient. See Strickland, 466 U.S. at 697

 2

Fed. R. Crim. P. 44(c) provides:

Whenever two or more defendants have been jointly charged ... and are represented by the same retained or assigned counsel ... the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take measures as may be appropriate to protect each defendant's right to counsel.

 3

Ali draws our attention to Wheat v. United States, --- U.S. ----, 108 S. Ct. 1692 (1988), to support his contention that the district judge had a responsibility in this case to raise the conflict of interest issue again sua sponte. Because we conclude that Ali has not demonstrated that any conflict of interest actually affected the adequacy of his representation, we need not reach the issue of what duty the district court may have had to raise the conflict of interest issue