USA v. Sheperd, No. 19-20073 (5th Cir. 2022)

Defendant the owner of a home health agency was convicted of Medicare fraud. On appeal, she complained that her Sixth Amendment right to effective assistance of counsel had been violated. Turns out, Defendant’s pretrial counsel was also representing one of the Government’s star witnesses. The Fifth Circuit remanded for an evidentiary hearing on whether Defendant’s lawyer’s conflict of interest—a conflict the Government knew about— adversely affected his representation, and the district court answered: yes.

The Fifth Circuit vacated Defendant’s convictions and remanded for a new trial. The court explained that as the Government admits, it never offered Defendant a plea deal while she was represented by her conflicted pretrial counsel, or after. So there is no rejected plea deal to measure Defendant’s harm against. The court explained the constitutional right to counsel is “perhaps the central feature of our adversarial system,” as it “helps make real the Constitution’s other criminal procedure promises. The court wrote that the Government’s proposed remedy— to keep the convictions intact but remand for new plea negotiations— wouldn’t neutralize the taint of the constitutional violation.