United States v. Taft , 221 F. App'x 277 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ISAAC A. TAFT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (4:04-cr-00052-H)
Submitted: February 15, 2007 Decided: March 9, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,
for Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isaac A. Taft (“Appellant”) appeals his conviction for
conspiracy to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1), 846. Appellant argues that the district court erred in
allowing the testimony of a witness who was represented by an
attorney who had previously represented Appellant in this matter.
For the reasons that follow, we affirm.
I.
On August 24, 2004, Appellant was indicted on three drug
related charges. The following day, the Federal Public Defender’s
Office assigned attorney Mark Ward to represent Appellant. On
November 24, 2004, Ward filed a motion to withdraw as Appellant’s
counsel for various reasons not relevant here, which motion was
granted six days later.
On February 9, 2005, a grand jury issued a superseding
indictment against Appellant that included five drug-related
charges, including the conspiracy count at issue here. Appellant
pleaded guilty to four of the five counts and proceeded to trial on
the conspiracy count.
Prior to trial, Appellant filed a motion to prevent the
government from calling Erik Garza, an individual who had purchased
drugs from Appellant, as a witness because Ward served as counsel
for Garza in an unrelated criminal proceeding and had undertaken
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that representation three weeks before withdrawing as Appellant’s
counsel in this matter. The district court denied Appellant’s
motion.
Following a jury trial, Appellant was convicted of the
conspiracy charge and sentenced to sixty months imprisonment. This
appeal followed.
II.
Appellant’s sole argument on appeal is that the district court
erred by allowing Garza’s testimony, because the fact that he was
represented by the same attorney who at one time had represented
Appellant called into question the fairness and integrity of the
judicial process here. Appellant’s argument implicates two
distinct constitutional principles, and we address each in turn.
First, an attorney’s overlapping representation of two clients
can compromise the Sixth Amendment guarantee of effective
assistance of counsel when it creates an actual conflict of
interest. See United States v. Tatum, 943 F.2d 370, 375 (4th Cir.
1991). To invoke this Sixth Amendment protection, a defendant must
show “‘some real conflict of interest . . . resulting from [the]
representation.’” United States v. Atkinson, 565 F.2d 1283, 1284
(4th Cir. 1977) (quoting United States v. Lovano, 420 F.2d 769, 772
(2d Cir. 1970)). The mere fact of overlapping representation is
insufficient to create a Sixth Amendment violation. See id.3
With respect to the Sixth Amendment, Appellant’s argument must
fail because he has offered no evidence that Ward’s representation
of both him and Garza created any actual conflict of interest. The
overlapping representation lasted for a brief period of time,
during which neither individual was involved in the same proceeding
or implicated in the same criminal conduct. Indeed, Appellant’s
trial counsel admitted that his argument was based on the
appearance of impropriety, rather than evidence of any actual
conflict of interest. See J.A. 46. Accordingly, we find no Sixth
Amendment violation.
Second, an attorney’s overlapping representation of two
clients can violate the Fifth Amendment guarantee of due process
where it compromises the fundamental fairness of a defendant’s
trial. See United States v. Young, 644 F.2d 1008, 1012 (4th Cir.
1981). To establish such a violation, Appellant must demonstrate
that Ward’s conflict of interest is “of sufficient significance
that it denie[d him] the right to a fair trial.” United States v.
Barnette, 211 F.3d 803, 818 (4th Cir. 2000). Appellant cannot make
this showing because he proffers no evidence that Ward’s
overlapping representation had any impact on Appellant’s trial,
much less one that undermined its fundamental fairness. Therefore,
we find no Fifth Amendment violation on these facts.
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III.
For the foregoing reasons, we affirm Isaac A. Taft’s
conviction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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