United States v. Alshawntus Beck ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2017
Decided December 28, 2017
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16-1200
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11-cr-00640
ALSHAWNTUS BECK,
Defendant-Appellant. Robert M. Dow, Jr.,
Judge.
ORDER
Alshawntus Beck pleaded guilty to possessing a controlled substance with intent
to distribute, 21 U.S.C. § 841(a)(1), and the district court sentenced him to 96 months’
imprisonment. Beck now appeals, arguing for the first time that his plea was
involuntary because, in his view, the district court did not ensure that he knowingly
waived a potential conflict of interest with one of his lawyers. Because Beck has not
shown that the district court erred in accepting his waiver or guilty plea, we affirm.
Agents with the Drug Enforcement Administration learned about Beck’s drug
trafficking during an investigation of Arturo Flores, a wholesaler of heroin and cocaine.
This year-long investigation involved wiretaps, surveillance, and two seizures of heroin
No. 16-1200 Page 2
from Flores’s courier. The agents recorded numerous telephone conversations during
which Beck used coded language to arrange purchases of heroin from Flores. Four of
the conversations occurred mere hours after Beck was sentenced to 74 months’
imprisonment for his part in an unrelated mortgage fraud scheme. The sentencing
judge in the fraud case had allowed Beck to wait several months to voluntarily
surrender to prison, but before that could happen federal agents arrested Beck, Flores,
and several of their associates on drug-trafficking charges.
In September 2011, a grand jury charged Beck with conspiracy to distribute
heroin, using a cell phone to further that conspiracy, and three substantive counts of
possessing at least 100 grams of heroin with intent to distribute. After two and a half
years of pretrial litigation, Beck pleaded guilty to one count of possessing heroin with
intent to distribute; in exchange for his plea, the government agreed to dismiss the
remaining counts, abandon some of its forfeiture allegations, and withdraw an
information that would have enhanced the statutory penalty range based on a prior
controlled-substance offense.
Attorneys Andrea Gambino and Sheldon Sorosky jointly represented Beck at the
change-of-plea hearing. At the outset of that hearing Gambino told the court that she
and Beck had discussed a potential conflict of interest arising from the fact that
Gambino was herself under federal criminal investigation at the time. This disclosure
triggered the following colloquy among Gambino, Beck, the district judge, and the
assistant United States attorney:
GAMBINO: . . . I informed Mr. Beck of the potential conflict of interest
because the government is investigating another one of my
clients and has told me that I’m a subject of that
investigation. So I have explained that to him and the fact
that that means you could look at it as a potential conflict in
the event that he believes that I’m serving the government
instead of him, and having told him that, he is willing to
waive the conflict and proceed.
JUDGE: Okay. Mr. Beck, let me just ask you, sir, have you had a
chance to ask Ms. Gambino all the questions you wanted to
ask her about that potential conflict?
BECK: Yes.
No. 16-1200 Page 3
JUDGE: And so you’re aware of the situation with the U.S.
Attorney’s Office?
BECK: Yes.
JUDGE: And you’re aware that you have a right to what’s called
conflict-free representation? Do you understand that?
BECK: Yes.
JUDGE: And that means that you need to be intelligently advised of
the circumstances, and you need to decide whether you
want to proceed with Ms. Gambino as your lawyer. And is
that your choice, sir?
BECK: Yes.
JUDGE: Okay.
AUSA: And, your Honor, for the record, I would also like to point
out that we also have—that Mr. Beck’s counsel is also
Mr. Sorosky, who has been his counsel from the beginning,
who has no potential conflict.
JUDGE: Right. And you’re aware then, Mr. Beck, that Mr. Sorosky is
not in the same circumstance as Ms. Gambino. He is not
being investigated at all or none of his clients are being
investigated in connection with the investigation of
Ms. Gambino’s client? Do you understand that, sir?
BECK: Yes.
After complying with all of the requirements of Rule 11, the district judge then accepted
Beck’s guilty plea.
Gambino and Sorosky also represented Beck during lengthy sentencing
proceedings, with Gambino taking the lead. After sustaining several of Beck’s
objections to the presentence report, the district judge arrived at a guidelines range of
121 to 151 months’ imprisonment and imposed a 96-month sentence, to be served
consecutively to Beck’s 74-month sentence for mortgage fraud. (Beck had served more
than half of the latter sentence when he was sentenced in this case.)
No. 16-1200 Page 4
Beck’s argument on appeal is difficult to follow, but we understand him to assert
that the district court’s colloquy about Gambino’s potential conflict was so grossly
inadequate that it made his purported waiver of the conflict unknowing and thus
ineffective. It follows, he says, that his guilty plea also was entered unknowingly. He
asks us to vacate his conviction so he can withdraw his plea.
The lynchpin of Beck’s appeal is his insistence that prejudice must be presumed
because the district judge failed to “adequately address” the potential conflict of interest
before accepting Beck’s waiver. But as we recently reiterated in United States v. Lewisby,
a defendant who alleges for the first time on appeal that he was deprived of his right to
conflict-free counsel must show that “an actual conflict of interest adversely affected his
lawyer’s performance.” 843 F.3d 653, 657 (7th Cir. 2016) (quoting Cuyler v. Sullivan,
446 U.S. 335, 348 (1980)).
There is nothing to show how Beck could have suffered prejudice from any
deficiencies in the district court’s colloquy. The record belies any concern that Gambino
“pulled her punches” in an effort to curry favor with the government: thanks in part to
her zealous advocacy Beck received a 96-month sentence instead of a sentence within a
range of 210 to 262 months, as the government had originally requested. The judge even
described the sentencing hearings as “extraordinary,” both for their length (lasting
more than six hours total) and for the number of letters and witnesses Gambino
presented in mitigation. It’s absurd to think that Beck would have risked a substantially
longer sentence and taken his (rather bleak) chances at trial if only the district court had
spent marginally more time warning him about a potential conflict of interest that, as
far as Beck has shown, never materialized.
It is also unclear why Beck thinks that the district court’s efforts to address the
potential conflict were inadequate. He says that the colloquy about Gambino’s potential
conflict of interest was “facially deficient” in light of United States v. Hubbard, 22 F.3d
1410, 1418–19 (7th Cir. 1994). But this court upheld Hubbard’s waiver of a potential
conflict of interest, stressing that a defendant’s choice of representation must be
respected so long as “the defendant understands something of the consequences of a
conflict.” Hubbard, 22 F.3d at 1418. Here Beck confirmed that he knew about his right to
conflict-free counsel, that he had had a chance to ask Gambino questions about the
potential conflict, and that he still wanted Gambino to represent him.
No. 16-1200 Page 5
As Beck accurately asserts, the district court did not expressly inform him of the
“specific, possible risks” of maintaining Gambino as his advocate. But Gambino herself
explained the risk on the record. She succinctly described the nature of the conflict
when she stated that Beck might fear that she was “serving the government instead of
him.” This captures the hypothetical outcomes that Beck now says he failed to
appreciate: that Gambino “might make a deal with the government” or “provide less
than zealous representation in an effort to curry favor or protect herself from
prosecution.” Beck does not say why there would be anything problematic about the
only explanation of the conflict being provided (in open court) “by the very attorney
who was potentially compromised.”
Moreover, Beck has not made any record about the substance of his
communications with Gambino, Sorosky, or both, outside of court, even though the
nature of those conversations surely informs whether he suffered prejudice. The record
reflects that he had at least one conversation about the conflict with Gambino. Also,
Beck’s argument that the district court was required to put on the record whether Beck
had ever spoken to Sorosky about the conflict has no merit. Nothing in Hubbard or any
other relevant case mandates a verbal confirmation of the defendant’s understanding of
the conflict. Beck cites no law that would require that a defendant consult a second
attorney about the conflict, let alone tell the district court about it on the record. There is
no constitutional or statutory right even to have two lawyers, except when requested by
a defendant in a capital case. See 18 U.S.C. § 3005; Rodriguez v. Montgomery, 594 F.3d 548,
551 (7th Cir. 2010) (recognizing that “even in federal capital prosecutions the
entitlement to a second lawyer is statutory”). If needed, Beck had the good fortune of
having a second lawyer available to him to consult before or during the hearing.
Beck’s current contention that he did not understand the meaning of conflict of
interest or a conflict-free attorney is contradicted by his statement at the plea hearing
that he did understand, and the statement in his plea agreement that his plea was
“entirely voluntary.” At the hearing Beck was not yet under oath when he confirmed
his understanding and affirmatively chose to proceed with Gambino as his lawyer. Just
because those statements would not technically constitute perjury if his current position
is credited is no reason to ignore them altogether. This court does not look favorably on
arguments for withdrawing a guilty plea that conflict with statements made at the time
the plea was entered. See, e.g., United States v. Walker, 447 F.3d 999, 1004–05 (7th Cir.
2006).
No. 16-1200 Page 6
Finally, if Beck wants to argue that either or both of his retained attorneys
rendered constitutionally ineffective assistance by not adequately advising him about
the conflict, the argument is best left for collateral review. See United States v. Flores, 739
F.3d 337, 341 (7th Cir. 2014).
AFFIRMED.