Unpublished Disposition, 927 F.2d 611 (9th Cir. 1989)

MEMORANDUM^** 

Manuel Gomez Moralez appeals his conviction for conspiracy and distribution of marijuana in violation of 21 U.S.C. §§ 841a(1) and 846 (1988). Moralez contends: (1) the district court denied him his sixth amendment right to counsel of his choice by disqualifying his attorney, (2) the prosecutor committed prejudicial misconduct in his questioning of witnesses and in his argument to the jury, and (3) he was denied effective assistance of counsel.

We affirm.

FACTS AND PROCEEDINGS

At the time of arrest, Moralez was a resident of Los Angeles County, California. He retained a Los Angeles attorney, Jack Janofsky, to represent him. Janofsky associated local counsel, Randall Pike, to assist in representing Moralez in the District of Nevada. Pike had formerly represented the family of Fernandez, the confidential informant and government's witness at trial. Upon learning of this successive representation, Pike withdrew from the case.¹ 

Prior to trial, Janofsky moved to dismiss the indictment because of Pike's conflict of interest resulting from his prior representation of the Fernandez family. The district court denied this motion, but concluded there was a potential conflict of interest between Janofsky and Pike that implicated Moralez's interests in the case. Although Moralez offered to waive any potential conflict, the district court nevertheless appointed Roy Garcia to represent Moralez. The case went to trial and Moralez was convicted.

DISCUSSION

A. Sixth Amendment Right to Counsel of Choice

" [T]he essential aim of the [sixth amendment] is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988) (citations omitted). While a district court must recognize a presumption in favor of a defendant's right to choose his own counsel, that presumption may be overcome by a demonstration of actual conflict or by a showing of serious potential for conflict. Id. at 164.

Moralez contends that any conflict of interest ceased when Pike withdrew as his counsel, and that even if some potential conflict remained, he waived it.

We review the district court's disqualification of Janofsky for abuse of discretion. United States v. Wheat, 813 F.2d 1399, 1401 (9th Cir. 1987), aff'd on other grounds, 108 S. Ct. 1692 (1988). "The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Wheat, 486 U.S. at 164.

In disqualifying Janofsky, the district court stated:

It also seems to me that the conflict flows both ways, and potentially both you and Mr. Pike are witnesses, and I think Mr. Moralez is going to have to have new counsel; that new attorney may have to look at this and may think that there is some basis to pursue it further--whether by way of motion to dismiss or other relief. You mention the possibility of striking the testimony of Carmen Fernandez. But you, of course, then are a witness in that situation and so is Mr. Pike.... Transcript of Proceedings (Apr. 24, 1989) at 21.

We conclude that the district court did not abuse its discretion in determining that a potential conflict of interest persisted, notwithstanding Pike's withdrawal from the case, and that this conflict was substantial enough to warrant Janofsky's disqualification.

We also reject Moralez's argument that the district court erred in not accepting Moralez's waiver of Janofsky's conflict. Such a waiver is not dispositive. See Wheat, 486 U.S. at 160. " [T]he district court must be allowed substantial latitude in refusing waivers of conflicts of interest ... where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." Id. at 163. The potential for conflict existed in this case. We conclude that Moralez's sixth amendment right to counsel was not violated by the district court's disqualification of Janofsky.

The portions of the record cited by Moralez do not support his contention that the government committed prosecutorial misconduct in the examination of witnesses. The redirect examination of Fernandez may be read as an attempt by the government to buttress her testimony, but this was done in response to the cross-examination to which she was subjected. Moreover, no objection was made at the time of trial. We also fail to discern any prosecutorial misconduct in the government's examination of witnesses Carranza and Ferrin.

Moralez argues the prosecutor committed misconduct in arguing the case to the jury. We disagree. Even if we were to assume that the prosecutor vouched to some degree for Fernandez's credibility, no objection was made to this argument. Accordingly, we review the prosecutor's remarks for plain error. United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989). Applying this standard of review, we will reverse "solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988) (internal citation omitted).

The prosecutor's comments to the jury in this case were not so egregious as to constitute plain error requiring reversal. The comments were based on the evidence and reasonable inferences therefrom. As we have stated, attorneys are "allowed reasonably wide latitude in closing argument and may strike hard blows based on the evidence and reasonable inferences from the evidence." United States v. Vaccaro, 816 F.2d 443, 451 (9th Cir.), cert. denied, 484 U.S. 928 (1987).

A convicted defendant who claims counsel's performance was so ineffective as to mandate reversal of his conviction must affirmatively establish: (1) his attorney's errors or omissions reflect a failure to exercise skill, judgment or diligence of a reasonably competent attorney, and (2) prejudice as a result of the attorney's conduct. LePage v. Idaho, 851 F.2d 251, 257 (9th Cir.), cert. denied, 488 U.S. 972 (1988) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).

A claim of ineffective assistance of counsel is a mixed question of law and fact which we review de novo. Fitzpatrick v. McCormick, 869 F.2d 1247, 1251 (9th Cir.), cert. denied, 110 S. Ct. 203 (1989). Review of trial counsel's performance is highly deferential, Strickland, 466 U.S. at 689, and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation. Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). Mere criticism of a trial tactic is insufficient to support a charge of ineffective assistance. United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986).

Applying these standards of review, we cannot say that Garcia's failure to object to the testimony now challenged in this appeal reflects any lack of skill, judgment or diligence, or that Moralez suffered prejudice as a result. The record indicates that Garcia made many trial objections, presented competent direct and cross-examination, and otherwise vigorously represented Moralez.

With regard to Moralez's contention that Garcia should have objected to the prosecutor's remarks in closing argument, these remarks were not so obviously improper, if indeed they were improper at all, to have prompted a reasonably competent trial counsel to object. Experienced counsel might well have chosen not to object, lest he call attention to evidence which supported the government's case.

In sum, Moralez's challenges to the adequacy of Garcia's representation may be classified as criticisms of his counsel's trial tactics. These challenges are insufficient to support a charge of ineffective assistance of counsel. See Ferreira-Alameda, 825 F.2d at 1254.

AFFIRMED.