Fifth Circuit Affirms Defendant's Waiver of Counsel Conflict of Interest and Punts on Ineffective Assistance of Counsel Claim on Direct Appeal (12/10/21)

In United States v. Fields (5th Cir. 12/10/21) (Unpublished and Nonprecedential), here, Fields was found guilty by the jury “of mail fraud, conspiracy to commit mail fraud and wire fraud, and 13 counts of aiding and assisting in preparation and presentation of false tax returns.”  On appeal, Fields argued that “his attorney labored under several conflicts of interest, that the district court should have rejected his waiver of his right to conflict-free counsel, and that counsel was ineffective in failing to advise him to accept the Government’s plea offer.”

Fields' criminal conduct involved filing about 200 fraudulent returns claiming refunds, some of which were made.  Upon indictment, Fields was represented by three attorneys, one of whom (Dwight Jefferson) during the underlying criminal conduct used his lawyer trust account to cash some of the fraudulent refund checks and deliver the proceeds to Fields net of a fee for his “services.”

The Government raised the issue of possible conflict of interest with Jefferson as Fields’ attorney in the criminal trial.  The district court held two hearings on whether Fields’ validly waived the potential conflict of interest.  In the Fifth Circuit, those conflict of interest waiver hearings are called Garcia hearings.  United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984).  Upon the conclusion of those hearings, the district court held that “Fields had validly waived his right to conflict-free representation.”

On appeal, the Fifth Circuit panel held that the district court had properly considered Fields’ waiver and that Fields “has not shown that his waiver was involuntary or unknowing.”  The panel further held:

            Fields has not shown that Jefferson’s belief that the potential conflicts would not affect his representation of Fields was unreasonable. See Rico, 51 F.3d at 511. Jefferson maintained that his testimony was unnecessary to explain the use of his IOLTA or inconsistencies between Fields’s representations to the IRS and his verified pleading in the TRO litigation. Jefferson also explained that Fields would be raising the defense of reliance on the advice of the IRS, rather than advice of counsel and nothing in the record indicates that the defense of reliance on the advice of counsel should have been raised at trial. In addition, the Government explained that it had no reason to believe Jefferson knowingly participated in the fraud, and Fields’s other two attorneys, who were independent of Jefferson, agreed that the conflict was waivable.

[*6]

            Thus, Fields has not shown that any conflict was sufficient to impugn the judicial system or render Fields’s trial inherently unfair, such that his right to conflict-free counsel was unwaivable.

Finally, the panel held that the record was not sufficiently developed to address the ineffective assistance of counsel issue and that it could be raised, without prejudice, on collateral review (where such ineffective assistance claims are normally raised).

JAT Comments:

1. None, except that I am surprised that Fields would have waived Jefferson’s potential conflict.  Still, if Fields persisted, the general rule is that a criminal defendant is entitled to counsel of his choice if he waives any potentially waivable conflicts, which he did here.