United States v. Nickerson ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30382
Plaintiff-Appellee, D.C. No.
v.  CR-06-00066-M-
DAMIEN ALLEN NICKERSON, DWM-02
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Submitted January 21, 2009*
Seattle, Washington
Filed February 25, 2009
Before: Thomas M. Reavley,** Senior Circuit Judge,
Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
2299
2302 UNITED STATES v. NICKERSON
COUNSEL
Jason T. Holden, Faure Holden Attorneys at Law, Great Falls,
Montana, for the defendant-appellant.
Joshua Van de Westering, Assistant United States Attorney,
Missoula, Montana, for the plaintiff-appellee.
UNITED STATES v. NICKERSON 2303
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Damien Allen Nickerson was found
guilty by a jury of Conspiracy to Distribute Methamphet-
amine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C.
§ 846, and sentenced to 210 months in prison. Nickerson
claims that his attorney’s admitted violation of Montana Rules
of Professional Conduct Rule 4.2 in the days before trial ren-
dered her performance per se ineffective. We decline to adopt
such a per se rule. Alternatively, Nickerson alleges that his
attorney provided ineffective assistance of counsel under the
standard of Strickland v. Washington, 466 U.S. 668 (1984),
and that the district court abused its discretion by not granting
a trial continuance or appointing new counsel. We disagree,
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, Nickerson accompanied Frank Hazel to visit
Hazel’s probation officer. The probation officer, suspecting
that Hazel was using methamphetamine, searched Hazel’s
vehicle, where Nickerson was sitting in the passenger seat.
The probation officer asked Nickerson to step outside the
vehicle and, after a brief search, found a zippered pouch under
the passenger seat. Nickerson fled before the probation officer
opened the pouch to find 177 grams of methamphetamine.
In November 2006, a grand jury indicted Nickerson for
conspiracy to distribute methamphetamine, in violation of 21
U.S.C § 841(a)(1) and 21 U.S.C. § 846. Nickerson admitted
he was a drug user who associated with Hazel, but denied
being part of a conspiracy to distribute methamphetamine.
The court set an April 16, 2007 as the trial date.
A week before the scheduled trial date, Nickerson’s court-
appointed counsel, Lisa Kaufman, became aware that co-
2304 UNITED STATES v. NICKERSON
conspirator Hazel had information which might be exculpa-
tory to her client. Kaufman contacted Hazel’s attorney,
Doreen Antenor, and requested an opportunity to interview
Hazel. On at least three occasions, Antenor instructed Kauf-
man not to speak to Hazel outside of her presence. On Thurs-
day, April 12th, Antenor again told Kaufman “she was to
have no contact with [Hazel], period.” On Friday, April 13th,
Kaufman decided she wanted to subpoena or issue a writ
regarding Hazel’s testimony. She explained, however, that
“she ha[d] to speak to him before she issue[d] a writ.” She
“felt she had no choice,” that her “client ha[d] a Sixth Amend-
ment right to forced confrontation,” and that she had to follow
her “constitutional and ethical requirements to represent [her]
client zealously and ethically.” She spoke to Hazel, got his
agreement to testify, and then had the district court issue a
subpoena for his testimony.
On the scheduled trial date, Antenor appeared before the
court to discuss Kaufman’s interview of her client and the
subpoena. Antenor informed the court that Kaufman had
interviewed Hazel without her consent, and that if Hazel were
called to the stand, he would invoke his Fifth Amendment
right to remain silent. The court then questioned Hazel about
his intentions, and was informed by Hazel that he had dis-
cussed his Fifth Amendment rights with Antenor and that she
was in a position to relay his intentions to the court. Antenor
again confirmed to the court that if Hazel were called to tes-
tify, he would invoke his Fifth Amendment rights in response
to all questions. Once the court was satisfied concerning
Hazel’s intention to invoke his Fifth Amendment rights, it
promptly quashed the subpoena.
The district court next asked Nickerson whether he had
thoroughly discussed recent developments in his case with his
counsel, and whether he still wanted to go to trial that after-
noon. Nickerson said that he did, and that he had no hesitation
about doing so.
UNITED STATES v. NICKERSON 2305
After the court recessed prior to the afternoon trial, Nicker-
son discussed the morning’s developments in his case with his
family. When he again appeared before the court, Nickerson
informed Judge Molloy that he still had a problem with his
counsel, and that he wanted the court to appoint a new one,
because he wanted to have Hazel testify in his case. Judge
Molloy explained that Hazel’s lawyer had informed the court
that Hazel would invoke his Fifth Amendment rights if called
to testify. Judge Molloy then asked Nickerson if he had any
other concerns about Kaufman’s continuing to represent him.
Nickerson responded that he did not, but again requested that
the court appoint him a new attorney. Judge Molloy then
recessed court to allow Nickerson and Kaufman time to dis-
cuss the reasons why Hazel was not testifying.
When court reconvened, Judge Molloy again asked Nicker-
son if he was ready to proceed to trial with Kaufman as his
counsel. Nickerson confirmed several times that he was ready
to proceed. Nickerson also stated that he did not believe he
was being pressured unfairly into commencing his trial. The
court then asked Nickerson yet again whether it was his
choice to begin the trial, to which Nickerson responded affir-
matively.
Once trial began, both the government and Kaufman called
witnesses who testified regarding Nickerson’s involvement in
the conspiracy to distribute methamphetamine. At the conclu-
sion of the trial, the jury found Nickerson guilty of conspiracy
to distribute methamphetamine. The district court sentenced
Nickerson to 210 months incarceration and 60 months super-
vised release for his violations of 21 U.S.C. § 841(a)(1) and
21 U.S.C. § 846.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. Although
ineffective assistance of counsel claims are usually pursued in
post-conviction proceedings, Nickerson can bring his claim
2306 UNITED STATES v. NICKERSON
on direct appeal, as the record has been sufficiently developed
on this issue. United States v. Ross, 206 F.3d 896, 900 (9th
Cir. 2000).
A claim that trial counsel had a conflict of interest with the
defendant is a mixed question of law and fact and is reviewed
de novo by the appellate court. United States v. Moore, 159
F.3d 1154, 1157 (9th Cir. 1998). Claims for ineffective assis-
tance of counsel are also reviewed de novo. United States v.
Mack, 164 F.3d 467, 471 (9th Cir. 1999). Finally, the district
court’s decision to grant or deny a motion for a continuance
is reviewed for an abuse of discretion. United States v.
Nguyen, 262 F.3d 998, 1002 (9th Cir. 2001).
DISCUSSION
I. Per Se Ineffective Assistance of Counsel Claim.
Nickerson argues that he was so compromised by his attor-
ney’s admitted pre-trial violation of Montana Rules of Profes-
sional Conduct Rule 4.2 that her conduct rendered her
assistance as counsel ineffective per se. Montana Rules of
Professional Conduct (MRPC) Rule 4.2 reads:
In representing a client, a lawyer shall not communi-
cate about the subject of the representation with a
person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized to do
so by law or a court order.
It is clear that Kaufman violated MRPC Rule 4.2.
[1] There is no Ninth Circuit rule that the violation of a rule
of ethics or professional conduct by counsel before trial con-
stitutes ineffective assistance of counsel per se. Nickerson
requests that we create such a rule. Such a broad rule has been
explicitly rejected by other circuits. See Beets v. Scott, 65 F.3d
UNITED STATES v. NICKERSON 2307
1258, 1271 (5th Cir. 1995) (en banc); see also United States
v. Rimell, 21 F.3d 281, 286 (8th Cir. 1994); Bellamy v. Cog-
dell, 974 F.2d 302, 309 (2d Cir. 1992); Brewer v. Aiken, 935
F.2d 850, 859-60 (7th Cir. 1991); McDougall v. Dixon, 921
F.2d 518, 534 (4th Cir. 1990).
[2] Though we have not yet explicitly rejected such a rule,
we have held that in some circumstances violations of rules
of professional conduct do not constitute ineffective assis-
tance of counsel. See LaGrand v. Stewart, 133 F.3d 1253,
1276 (9th Cir. 1998), United States v. Bosch, 914 F.2d 1239,
1245 (9th Cir. 1990). For example, in Bosch, the district court
discovered during trial that the defendant’s attorney had been
disbarred from practice and had not been properly readmitted.
914 F.2d at 1244. The court ordered the attorney to confer
with his client, and then asked whether the defendant wanted
to continue being represented by his attorney, and whether he
wanted to continue with the trial. Id. The defendant replied
that he wanted to continue with the trial, represented by the
same counsel. The appellate court determined that because the
trial court found that the defendant was competent, had been
apprised of his attorney’s disbarment, and freely elected to
proceed, his attorney’s ethical violation had no effect on the
defendant’s meeting his burden under Strickland. Id. at 1245.
Much the same occurred in this case. Nickerson was compe-
tent, aware of his attorney’s ethical violation, and freely
elected to proceed with trial.
[3] We are mindful of the Supreme Court’s admonition that
“[p]er se rules should not be applied . . . in situations where
the generalization is incorrect as an empirical matter; the jus-
tification for a conclusive presumption disappears when appli-
cation of the presumption will not reach the correct result
most of the time.” Coleman v. Thompson, 501 U.S. 722, 737
(1991). While we readily acknowledge that a violation of pro-
fessional or ethical rules could lead to a deficient attorney per-
formance that prejudices the defendant, as contemplated by
Strickland, infra, Bosch is evidence that such is not always the
2308 UNITED STATES v. NICKERSON
case. 914 F.2d at 1245. With that uncertainty in mind, we
hold that an attorney’s violation of a rule of ethics or profes-
sional conduct before trial does not constitute per se ineffec-
tive assistance of counsel.
[4] Even though Nickerson’s argument that his counsel’s
pre-trial ethical violation constituted ineffective assistance of
counsel per se fails, his argument is perhaps better construed
as a claim that Kaufman’s ethical violation created an actual
conflict with Nickerson’s interests. Under United States v.
Moore, Nickerson must show that an actual conflict of interest
adversely affected his lawyer’s performance. 159 F.3d at
1157; see also United States v. Wells, 394 F.3d 725, 733 (9th
Cir. 2005). Further, Nickerson must “prove actual conflict,
not just a possibility of conflict, ‘through a factual showing on
the record.’ ” Moore, 159 F.3d at 1157 (citing Morris v. Cali-
fornia, 966 F.2d 448, 455 (9th Cir. 1991)); see also United
States v. Shwayder, 312 F.3d 1109, 1117-20 (9th Cir. 2002)
(holding that the defendant must show that “counsel was
influenced in his basic strategic decisions” by the conflict of
interest); United States v. Baker, 256 F.3d 855, 860 (9th Cir.
2001) (noting that an “attorney has an actual, as opposed to
a potential, conflict of interest when, during the course of the
representation, the attorney’s and the defendant’s interests
diverge with respect to a material factual or legal issue or to
a course of action”) (citation and internal quotation marks
omitted).
[5] Nickerson claims that Kaufman’s actual conflict of
interest — her ethical violation — inhibited her performance
because her performance was “guarded at best, and incompre-
hensible at worst.” However, Nickerson’s claim fails because
he does not point to any evidence in the record that demon-
strates why Kaufman’s violation created any actual interests
divergent from his own, and which impaired her ability to
effectively represent him. While Nickerson has certainly
shown that his attorney’s behavior was unethical and irre-
sponsible, he has not proven that his violation created an
UNITED STATES v. NICKERSON 2309
actual conflict which impaired her ability to effectively repre-
sent him.
II. Traditional Ineffective Assistance of Counsel Claim.
[6] Nickerson also brings a traditional ineffective assistance
of counsel claim. In order for Nickerson to show ineffective
assistance of counsel, he must demonstrate both deficient per-
formance by counsel and prejudice, under the standard estab-
lished in Strickland. 466 U.S. at 687-88. To establish
prejudice, Nickerson must show that the outcome of the trial
would have been different but for Kaufman’s errors. See Str-
ickland, 466 U.S. at 694.
Nickerson claims ineffective assistance of counsel because
the subpoena for Hazel’s testimony was quashed in part
because of Kaufman’s violation of MRPC Rule 4.2. Nicker-
son argues that “but for his counsel’s violation of Rule 4.2,
Mr. Hazel would have testified,” and that “[b]ecause of her
unethical interview, Mr. Hazel invoked his Fifth Amendment
rights and the District Court quashed Mr. Hazel’s subpoena.”
On April 17, 2007, Hazel’s attorney, Antenor, informed the
court that Kaufman had interviewed Hazel without her con-
sent, and that if Hazel were called to testify, Hazel would
invoke his Fifth Amendment right to remain silent. The court
then directly questioned Hazel regarding his intentions, and
Hazel informed the court that he had discussed his Fifth
Amendment rights with Antenor, and that she was authorized
to advise the court of his intentions. Antenor then re-
confirmed to the court that Hazel would, if called, invoke his
Fifth Amendment right not to testify in response to all ques-
tions. Only at this point did Judge Molloy quash the sub-
poena.
[7] Although there is no way for us to know Hazel’s moti-
vation for invoking his Fifth Amendment rights with cer-
tainty, it appears from the record that Hazel made that choice
2310 UNITED STATES v. NICKERSON
under the continuing advice of his counsel, and that Hazel
would not have testified regardless of Kaufman’s inappropri-
ate interview. As Judge Molloy stated, “Ms. Antenor is the
one advising [Hazel], and she had represented [Hazel] is
invoking, will invoke, intends to invoke, has always intended
to invoke his right against self-incrimination.” (Emphasis
added).
[8] In determining whether a defendant was prejudiced by
counsel’s inadequate representation, we examine the evidence
that could have been presented to the jury had counsel per-
formed competently and compare that to the evidence that the
jury actually heard. See Bonin v. Calderon, 59 F.3d 815, 834
(9th Cir. 1995). Here, the jury was never aware of Hazel’s
potential testimony. While the issue was highlighted by Kauf-
man’s inappropriate contact with Hazel, the record contains
no evidence that Hazel intended to testify before Kaufman
contacted him, nor would his attorney have advised him to do
so. Thus, the jury would not have heard from Hazel, regard-
less of whether Kaufman’s ethical violation had occurred or
not. Because Nickerson does not provide evidence that Kauf-
man’s violation of MRPC Rule 4.2 prevented the jury from
hearing Hazel’s testimony, Nickerson does not establish prej-
udice under Strickland, and his ineffective assistance of coun-
sel claim fails.
III. Request for Trial Continuance and Appointment of
New Counsel.
[9] Nickerson also argues that his trial should have been
continued and that the court should have appointed new coun-
sel for him once Kaufman’s ethical violation was discovered.
The request for new counsel can best “be analyzed as the
denial of a continuance or the denial of a motion to substitute
counsel.” Nguyen, 262 F.3d at 1001. Generally, district judges
have broad latitude to deny a motion for substitution of coun-
sel on the eve of trial when the request would require a con-
tinuance. United States v. Castro, 972 F.2d 1107, 1109 (9th
UNITED STATES v. NICKERSON 2311
Cir. 1992) (overruled on other grounds by United States v.
Recio, 537 U.S. 270 (2003)). “However, this discretion must
be balanced against the defendant’s Sixth Amendment right to
counsel.” Nguyen, 262 F.3d at 1003.
Nickerson requested a new attorney after Kaufman’s viola-
tion was made known to the court and Hazel’s subpoena was
quashed. Although Nickerson eventually changed his mind
and proceeded to trial after repeatedly affirming his choice to
have Kaufman continue to represent him, Nickerson now
argues that “[h]e did not knowingly waive his right to a newly
appointed attorney because he was not provided independent
advice from an attorney who was not compromised before the
District Court.”
Nickerson’s concern with Kaufman’s representation
stemmed from his desire to have Hazel testify on his behalf.
After Judge Molloy explained to Nickerson that Hazel would
not have testified even if Kaufman had not spoken to him,
Nickerson maintained his request for a new attorney. The dis-
trict court judge then allowed a short recess so Nickerson
could speak with his attorney. When they returned on the
record, Kaufman informed the district court that “Damien
[Nickerson] was getting very mixed signals and now, [after]
the final conversation we’ve had, the father understands that
the lawyer he’s been speaking to has only received piecemeal
information and that it would be in Damien’s best interest to
proceed. Damien feels comfortable with that decision. I
believe we are ready to proceed.” Judge Molloy then asked
Nickerson in at least seven different ways whether he wanted
to go forward with Kaufman as his attorney, and Nickerson
answered each inquiry affirmatively.
[10] The record demonstrates that Judge Molloy adequately
explained the situation and allowed Nickerson to make the
final decision whether to proceed. Nguyen, 262 F.3d at 1002(“[T]his Court affirms the denial of a continuance only if the
district court displays adequate care and concern for the
2312 UNITED STATES v. NICKERSON
defendant’s rights.”). Judge Molloy offered a continuance
twice, and made it clear to Nickerson that going forward with
the trial was his choice and that no one was pressuring him
to proceed to trial. Unlike in Nguyen and Castro, where the
defendants went into trial requesting a different attorney,
Nickerson went into trial affirming his decision to continue to
be represented by Kaufman. Nickerson has not produced any
evidence that his decision was not “knowing,” as he alleges.
The district court did not abuse its discretion when it declined
to grant a continuance or appoint new counsel.
CONCLUSION
We hold that an attorney’s violation of a rule of ethics or
professional conduct before trial does not constitute per se
ineffective assistance of counsel. Nor has Nickerson shown
prejudice under a traditional ineffective assistance of counsel
analysis. Finally, Judge Molloy displayed continuous concern
for Nickerson’s rights, and did not abuse his discretion by not
granting a continuance or appointing new counsel for Nicker-
son.
AFFIRMED.