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Government of Virgin Islands v. Zepp

November 13, 1984


On Appeal from the United States District Court for the District of the Virgin Islands (St. Croix)

Author: Higginbotham

Before: SEITZ, Chief Judge, GARTH and HIGGINBOTHAM, Circuit Judges.


HIGGINBOTHAM, A. LEON, JR., Circuit Judge.

Defendant Jo Ann Zepp appeals from a judgment and conviction for destruction of evidence in violation of 14 V.I.C. § 1506, simple possession of a controlled substance in violation of 19 V.I.C. § 607 and from the denial of her motion for a new trial. Following a jury trial,*fn1 she was sentenced to one-year imprisonment on the destruction of evidence count and fined $5,000.00 on the simple possession count.

This appeals challenges, inter alia, the constitutionality of the trial proceedings below.*fn2 Specifically, the defendant asserts that her sixth amendment right to effective assistance of counsel was violated because trial counsel had an actual conflict of interest due to (1) his potential liability for the same charges on which she was tried and (2) the fact that he was a witness for the prosecution. Thus, the defendant challenges the failure of counsel to withdraw from representation and also questions the propriety of the trial judge's failure either to disqualify trial counsel or to obtain a knowing waiver of effective assistance of counsel.

We reverse the judgment and conviction and remand the matter with directions to grant a new trial.


Jo Ann Zepp ("Zepp") was placed under arrest on December 18, 1982 following a "raid" on 38 Estate Little Fountain, property which Zepp owned since 1978 and where she resided with co-defendant Glenn Williams ("Williams"). The raid conducted by three officers from the Department of Public Safety (DPS) and four Narcotics Strike Force (NSF) agents was the culmination of an undercover operation and investigation in St. Croix which began in early December of 1982 for the purpose of infiltrating drug and stolen property rings.*fn3

On December 18, 1982, at approximately 7:30 a.m., narcotics agents arrived at 38 Estate Little Fountain to arrest Williams on drug-related charges, without warrants. The armed officers surrounded the house with a canine unit. David Sibilly, the agent-in-charge, testified that he was positioned near the front door. He also testified that he identified himself, asked the occupants to open the door, and heard a female voice respond, "I'm coming." Shortly thereafter, Sibilly again called for the occupants to come out. He further testified that "suddenly" the toilets in bathrooms on opposite ends of the house were heard flushing simultaneously. The agents waited and the door was finally opened by Zepp. Williams, standing in the doorway, was arrested immediately.

The agents conducted a sweep search of the premises for safety reasons but the results were negative. Williams was then taken to police headquarters, during which time Zepp's attorney, Jack James ("James") arrived at 38 Estate Little Fountain. Zepp and James then entered the residence and closed the front door. According to testimony at trial, moments later police officers heard a toilet flush several times. Within one hour after James' arrival, Zepp was arrested by agents at the direction of an Assistant United States Attorney.

A search warrant for the house was later obtained and executed on the same day, but only one small plastic bag was discovered and it tested negative for cocaine. On December 21, 1982, a search warrant for the septic tank connected to the house was executed. The search produced 40 triangular-shaped plastic bags, 20 of which tested positive for cocaine residue.

A suppression hearing was conducted on January 26, 1983. The government informed the trial judge that it intended to call Jack James, Zepp's attorney, as a government witness. James objected. The trial judge stated that it was not necessary to rule on defense counsel's objection until he was actually called.*fn4 At the suppression hearing, while representing his client, James was called as a prosecution witness. He requested a proffer whereupon the government stated that there was a question as to whether or not he had occasion, while in the house with Zepp, to use the bathroom. James objected on the ground of relevancy and on the ground that if called upon to be a witness, it would jeopardize his position as defense counsel.*fn5 The parties ultimately agreed to a stipulation wherein James stated that at no time when he was in the house were any of the bathrooms used by him.*fn6

The stipulation entered into by defense counsel at the suppression hearing was introduced into evidence at trial.*fn7 At trial, the judge made the following statement to the jury:

THE COURT: Ladies and gentlemen of the jury, the parties have entered into a stipulation, and a stipulation is an agreement by the parties that in this particular instance, if Attorney John F. James were called as a witness and sworn, that he would testify that during the period of time that he was in the premises at 38 Estate Little Fountain on December 18th, 1982, he did not flush any toilets, that he did not personally flush any toilets.

Is that a correct statement of the stipulation, Mr. James?

ATTORNEY JAMES: Correct, as far as I'm concerned.

THE COURT: Mr. Capdeville?


App. at 202 (emphasis added).

The jury found Jo Ann Zepp guilty of simple possession of cocaine and destruction of evidence. She then filed a timely motion for a new trial which was denied after an evidentiary hearing. This appeal followed.


From the standpoint of basic human rights, the framers of our nation's Bill of Rights wanted to make the new government of the United States fundamentally different from that of its former ruler, England. In the sixth amendment, they enumerated, with specificity, several critical rights guaranteed the accused "in all criminal prosecutions" by the federal government. Among these rights were the assurances that the accused would have an "impartial trial" and the "Assistance of Counsel for his defence." U.S. Const. amend. VI.

This amendment was a significant break from tradition because "originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest." Powell v. Alabama, 287 U.S. 45, 60 77 L. Ed. 158, 53 S. Ct. 55 (1932).*fn8 Several colonies, Maryland as an example, declared "that, in all criminal prosecutions, every man hath a right . . . to be allowed counsel", Md. Const. of 1776, art. XIX, but it was not until 1836, when by act of Parliament, that "the full right was granted in respect of felonies generally" to citizens of England. See, 1 Cooley's Const. Lim. 8th ed., 698, et seq., and notes.

While the right to assistance of counsel was assured in federal criminal prosecutions, the earliest jurisprudential debates in America pertained to whether the states were similarly obligated to appoint effective counsel for defendants in capital cases. Later the question arose as to whether adult defendants and minor defendants in criminal prosecutions by the state were entitled to counsel in non-capital felony cases. The trilogy of Powell v. Alabama, supra, Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), and In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) established the American foundation that under the due process clause of the fourteenth amendment all persons are entitled to assistance of counsel when prosecuted in state courts.

During the last two decades, the major jurisprudential focus has shifted from the issue of the right to counsel to the more subtle and problematic question of effective assistance of counsel under the fifth, sixth and fourteenth amendments. With difficulty and divisiveness our courts have attempted to define what constitutes deficient performance by counsel, and whether counsel's errors were so serious as to deprive the defendant of a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); McMann v. Richardson, 397 U.S. 759, 770-771, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970).


The recent Supreme Court decisions of Strickland v. Washington, supra, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) now set forth "the proper standards for judging a criminal defendant's contention that the Constitution requires a conviction . . . to be set aside because counsel's assistance at the trial . . . was ineffective." Strickland, 104 S. Ct. at 2056.

By virtue of the sixth amendment right to effective assistance of counsel, principles of due process, applicable to legal proceedings generally, are preserved and reinforced. Justice Stevens, writing for the majority in United States v. Cronic, observed that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." 104 S. Ct. at 2046. In the Strickland decision, handed down the same day, Justice O'Connor elaborated on the intricate relationship of the sixth amendment right to effective assistance of counsel and the fifth amendment due process guarantee to a fair trial:

[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clause, but it defines the basic elements of a fair trial . . . through the several provisions of the Sixth Amendment, including the Counsel Clause. . . .

Strickland, 104 S. Ct. at 2063. Thus, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 2064. The fundamental question thus becomes whether counsel's conduct in this instance precluded the "proper functioning of the adversarial process" and thereby deprived Jo Ann Zepp of a fair trial.

In this case, Jo Ann Zepp would have us recognize that her sixth amendment right to effective assistance of counsel is now no longer contingent upon the historical evolution of some amorphous concept. To the contrary, she strenuously asserts that at any point in the history of this country, the events that took place at her trial would be a flagrant breach of the fifth and sixth amendments.

From the litany of cases since Powell v. Alabama, supra, it is beyond dispute that the sixth amendment guarantee of effective assistance of counsel comprises two correlative rights: the right to counsel of reasonable competence, McMann v. Richardson, 397 U.S. at 770-71, and the right to counsel's undivided loyalty, Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981).

As the Court acknowledged in Strickland, courts must differentiate between counsel's duty to perform competently and counsel's duty to avoid conflicts of interest:

Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan, supra, 446 U.S., at 346, 90 S. Ct., at 1717. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See Powell v. Alabama, 287 U.S., at 68-69, 53 S. Ct., at 63-64.

Strickland, 104 S. Ct. at 2065 (emphasis added). It must be borne in mind, however, that Strickland distinguishes not only between the duty owed by counsel, but also articulates the different standards by which an alleged breach of duty must be judged. Id. at 2064.

Jo Ann Zepp's allegation of a denial of effective assistance of counsel is premised upon trial counsel's breach of the duty of loyalty and failure to avoid conflicts of interest. She does not seriously challenge James' general competence as a lawyer. Presumably, he knew the relevant rules of law, made the critical objections and prepared his case adequately. If those were the only three elements by which one measured the competence of counsel, certainly he complied with the level of performance which this court has declared meets the constitutional standard as articulated in Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (in banc), and recently reaffirmed in Government of the Virgin Islands v. Bradshaw, 726 F.2d 115 (3d Cir. 1984). Where an allegation of ineffective assistance of counsel has been made, we normally assess whether the attorney exercised "the customary skill and knowledge which normally prevails at the time and place." Moore, 432 F.2d at 736. Application of the Moore standard, however, generally involves an evaluation of counsel's competence and not counsel's loyalty.

Zepp's complaint is one of an even more fundamental nature than that of traditional lawyer competence. She asserts that she:

was denied effective assistance of counsel because her trial counsel had an actual conflict of interest due to his potential criminal liability for the same charges on which appellant was tried.

Appellant's Brief at 31.In short, she claims that her own lawyer testified against her, that her own lawyer put in damaging evidence against her, and that the evidence to which her own lawyer stipulated in order potentially extricate himself may have been enough to tip the scales in favor of her conviction. In effect, she argues that rather than James exercising his sixth amendment obligation to give legal assistance to the defendant, he instead actually and intentionally rendered legal assistance to the prosecution.

Unlike those situations where the challenge is to counsel's competency and the defendant is required to affirmatively demonstrate that (1) counsel's performance was deficient and that (2) the deficient performance actually prejudiced the defense, Strickland teaches that in certain sixth amendment contexts, prejudice is presumed from the circumstances. Specifically, the Court stated:

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-350, 90 S. Ct. at 1716-1719, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim. Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. . . . Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and "that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, 990 S. Ct., at 1719, 1718 (footnote omitted).

Strickland, 104 S. Ct. at 2067 (emphasis added). The Strickland Court thereby reaffirmed the previous holding of its decision in Cuyler v. Sullivan, supra, the Supreme Court reversed and remanded a decision of this court wherein a state prisoner seeking federal habeas corpus relief claimed conflict of interest due to multiple representation. On appeal from the district court's holding that there had been no multiple representation, we determined not only that there was multiple representation as a matter of law but that a possibility of a conflict of interest was sufficient to constitute a violation of the sixth amendment right to effective assistance of counsel. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979) (Sullivan I). The Supreme Court reversed and remanded requiring a demonstration by the petitioner that "actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. at 348. We in turn remanded to the district court which granted the petition for writ of habeas corpus, following an evidentiary hearing, on the basis that a subsequent evidentiary hearing provided sufficient proof of an actual conflict of interest that adversely affected counsel's performance. We affirmed the ruling of the district court. Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983)(Sullivan II).

However, before we undertake an analysis of whether in fact Zepp's attorney was incapable of representing his client in a constitutionally adequate manner given alleged conflict of interest, it is imperative that we first determine whether it is appropriate for this court to review this claim on direct appeal, or whether it may only be validly raised in a collateral proceeding.


Several recent opinions by our court indicate that a criminal defendant may not attack the competence of counsel on a direct appeal, but should pursue the issue through 28 U.S.C. § 2255 (1976) actions. See e.g., United States v. Swinehart, 617 F.2d 336 (3d Cir. 1980); United States v. Rad-O-Lite of Philadelphia, 612 F.2d 740 (3d Cir. 1979); United States v. Garcia, 544 F.2d 681 (3d Cir. 1976); 28 U.S.C. § 2255.

As a general policy, courts of appeals have "refused to notice errors of this type in the absence of an objection at trial", and we have likewise noted a "preference for this court." Rad-O-Lite, 612 F.2d at 744. The rationale underlying these cases is that an evidentiary hearing must be conducted to establish whether counsel's performance was or was not up to the competency standard espoused in Moore v. United States, supra, 432 F.2d 730 (3d Cir. 1970).

We have thus declined to hear a claim of ineffective assistance of counsel where that issue has not been specifically raised at trial because "such claims frequently involve questions regarding conduct that occurred outside the purview of the district court and therefore can be resolved only after a factual development at an appropriate hearing." Swinehart, 617 F.2d at 340 (emphasis added).

Where the claim of ineffective assistance of counsel is based on attorney incompetence the lack of a fully developed record readily justifies our reluctance "to inquire into the elements of strategy or tactics that may have entered into [defense counsel's actions]." Garcia, 544 F.2d at 684. Therefore, inquiry along these lines may often necessitate a remand for an evidentiary hearing to develop the facts about counsel's role in the representation of the defendant and to provide the defendant a full and fair hearing on the issue. Similarly, there may be cases where an attorney's conflict of interest may more appropriately be considered in the course of a habeas corpus collateral attack. Sullivan II, 723 F.2d at 1084-1085, or common-law writ of error coram nobis. Rad-O-Lite, 612 F.2d at 744.

In this case, however, we conclude that we do have an adequate record and thus an additional evidentiary hearing need not be conducted to develop the facts. See, e.g., United States v. Young, 644 F.2d 1008 (4th Cir. 1981), later app. 677 F.2d 381 (4th Cir. 1982); Parker v. Parratt, 662 F.2d 479 (8th Cir. 1981), cert. denied, 459 U.S. 846, 74 L. Ed. 2d 91, 103 S. Ct. 102 (1982); Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980).

Furthermore, this court recognizes an important countervailing policy of not "penalizing the accused for the failure of its attorney to object at trial . . ." where there is a claim of attorney conflict of interest. Rad-O-Lite, 612 F.2d at 744. To do so "would make sense only if we accept the proposition that the responsibility for protecting against conflicts of interests rests entirely upon the accused." Id. Thus, where an objection has been properly made at trial, or, where the record clearly shows actual conflict of interest and objections made at trial did or should have put the trial court on notice that potential conflict of interest existed,*fn9 this court's "preference" for developing such issues on collateral attack need not be followed, and a full consideration of the issue is appropriate.

While direct appeals must generally be distinguished from collateral appeals, given the plethora of issues that would constitute reversible error if raised on a direct appeal but would not constitute reversible error if raised in the context of a 28 U.S.C. § 2255 or 28 U.S.C. ...

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