United States v. Tirado , 890 F.3d 36 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 17-1127, 17-1128
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL TIRADO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John J. Farley, Acting United States Attorney, was on brief, for
appellee.
May 9, 2018

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The defendant, Manuel
Tirado, pleaded guilty and stands convicted of drug offenses, 21
U.S.C. §§ 841(a)(1) and (b)(1)(C), 846, and failure to appear
for arraignment, 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). He
appeals from the judgments of conviction on Sixth Amendment
grounds, contending that his counsel suffered from a conflict of
interest arising from violation of attorney-client privilege and
a local rule of professional conduct in particular. We affirm.
After his indictment on the drug charges by the New
Hampshire federal grand jury, the defendant was arrested in New
York, where he was released on bail and ordered to appear before
the district court in New Hampshire at a date and time
specified. He got in touch with a Rhode Island lawyer not
admitted to practice in New Hampshire, Jeffrey Pine, whom he
wished to represent him. According to Mr. Pine's unchallenged
account of events on the arraignment day, the defendant came to
the New Hampshire courthouse in the company of relations and
friends, including someone acting as an English-Spanish
interpreter, and met Mr. Pine near the courthouse. When he
asked Mr. Pine whether he thought the court would order him
committed pending trial, the lawyer said he couldn't guarantee
otherwise, but the proper course would be to appear at the
hearing as scheduled. A very short time later, the arraignment
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proceeding began, and although Mr. Pine and the defendant's
local counsel were present, the defendant was not.
When the court asked if anyone knew where the
defendant was, Mr. Pine described their recent conversation in
the company of the relations and friends, including the
defendant's question about commitment and the lawyer's
responsive advice. Some time later, the defendant was arrested,
and the arraignment was held. When local counsel filed a motion
to admit Mr. Pine pro hac vice, the Government requested the
court to conduct a hearing on the motion, on the ground that it
might call Mr. Pine as a prosecution witness to prove the charge
of failing to appear. The next step came when all parties filed
a stipulation that the defendant himself had signed, stating as
fact the substance of what Mr. Pine had told the court at the
uncompleted arraignment hearing, with the exception of the
defendant's question about commitment and the lawyer's answer.
At a subsequent hearing for change of pleas to guilty,
counsel for the Government explained that the stipulation then
on record was meant to remove any risk that Mr. Pine might be
called as a Government witness, since the defendant wished to
continue with Mr. Pine as principal counsel. Local defense
counsel agreed that the stipulation accomplished that object,
and the court indicated that there was no longer any risk of a
conflict on Mr. Pine's part at the trial stage. The court
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reprised this colloquy at the later sentencing hearing and was
careful to advise the defendant that he was entitled to
representation free of conflict, offering to appoint new counsel
at public expense if the defendant wished to discharge Mr. Pine
for any reason. The defendant declined the offer and maintained
that he desired Mr. Pine to continue to represent him. The
hearing then continued, sentences were imposed, and the
defendant was committed.
A defendant, like Tirado, "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). "[I]n order to show an
actual conflict of interest, a defendant must show that (1) the
lawyer could have pursued a plausible alternative defense
strategy or tactic and (2) the alternative strategy or tactic
was inherently in conflict with or not undertaken due to the
attorney's other interests or loyalties." United States v.
Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994).
We find no merit in the defendant's new position
claiming inadequate representation owing to a conflict of
loyalties stemming from Mr. Pine's response to the court and an
allegedly consequent need to protect himself from disciplinary
action for supposedly violating attorney-client privilege and
the local professional conduct rule. There was, to begin with,
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no breach of New Hampshire Rule of Professional Conduct 1.6,
which generally forbids "reveal[ing] information relating to the
representation of a client." However the terms of that rule
might cover Mr. Pine's response to the court, it is preempted by
New Hampshire Rule of Professional Conduct 3.3(b) and (d), which
obligate counsel "in an adjudicative proceeding[,] . . . who
knows that a person . . . has engaged in criminal or fraudulent
conduct related to the proceeding[,] [to] take reasonable
remedial measures, including, if necessary, disclosure to the
tribunal," even when information disclosed would "otherwise [be]
protected by Rule 1.6." Since the defendant's evident truancy
from the arraignment he had been ordered to attend was a
criminal violation, see 18 U.S.C. § 3146(a)(1), Mr. Pine's
response to the court was obligatory under Rule 3.3(d).
We reach the same conclusion in otherwise seeing no
breach of the attorney-client privilege in repeating the
conversation, whatever its content might be, simply because the
conversation outside the courthouse apparently occurred in the
personal, not professional, company of others, the relations and
friends. The accuracy of Mr. Pine's description of these other
parties as having been present at the discussion has never been
challenged. The consequence is that when speaking with them
present, the defendant could not assume that his words were
privileged statements to his lawyer, and thus no right to
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preserve privilege could attach. Lluberes v. Uncommon Prods.,
LLC, 663 F.3d 6, 24 (1st Cir. 2011) (the privilege "ceases . . .
when otherwise privileged communications are disclosed to a
third party"); see also United States v. Evans, 113 F.3d 1457,
1467-68 (7th Cir. 1997) (presence of friend and potential
character witness vitiated the privilege). While we do not
understand that the need for the presence of an interpreter
implicated the rule in these cases, United States v. Massa.
Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997), the whole
assemblage was not an interpreter.
A further line of reasoning confirms our rejection of
the defendant's current position: the record is devoid of any
indication that in the district court anyone suggested that Mr.
Pine's answer to the judge violated his duty to the defendant
and raised a potential for conflict on the part of counsel. It
was not the pure disclosure to the court but the specter of his
being called as a Government witness at trial that was raised as
an issue of conflict, and any such conflict would only occur in
the future. The absence in the district court of any accusation
of other actual or possible impropriety means that the defendant
can be entitled to relief on the ground he raises only if he can
demonstrate that "an actual conflict of interest adversely
affected [Mr. Pine’s] performance." Cuyler, 446 U.S. at 348.
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The defendant has done no such thing and, for reasons already
given, cannot do so.
And quite independently of the Cuyler and Soldevila-
Lopez rules, any conceivable resulting tension in the lawyer's
mind between client loyalty and professional self-preservation
would have been answered by the stipulation joined and
repeatedly avowed by the defendant. The court's conversation
with the defendant, and assurance that new counsel could be
appointed to eliminate any conflict with his lawyer's obligation
to him as trial counsel, demonstrated that the defendant
understood his rights and the consequences of proceeding as he
chose to do.
Affirmed.
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