USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1472

GEORGE M. BUCUVALAS,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA,

Respondent - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Tauro,* District Judge.

______________

_____________________

Valeriano Diviacchi for appellant.

___________________
Carole S. Schwartz,
__________________
whom

Assistant United States Attorney,

Donald K. Stern, United

_______________

appellee.

States Attorney, was

with

on brief for

____________________

October 28, 1996

____________________

____________________

Chief Judge

of the

District

of Massachusetts,

sitting by

designation.

TAURO,
TAURO,

Chief District
Judge.
Chief District
Judge.
_______________________

Appellant

George

Bucuvalas appeals the District Court's

denial of his petition to

vacate

to

his

sentence

made

pursuant

28

U.S.C.

2255.

Essentially, Bucuvalas asserts that

his Sixth Amendment right to

effective

was

assistance

attorney's fees

of

counsel

were paid by

violated

because

his co-defendants and

his

because his

attorney advised him not to testify on his own behalf.

I.
I.

Background
Background
__________

On February 15, 1989,

the

District

of

Massachusetts

conspiring to participate in,

in

violation

Organizations

of

George Bucuvalas was indicted in

the

for

in,

and

a pattern of racketeering activity

Racketeer

Act, 18 U.S.C.

participating

Influenced

1962(c)-(d),

and

Corrupt

for mail

fraud in

violation

of 18 U.S.C.

1341

and 1342, and

commit mail fraud in violation of 18 U.S.C.

for conspiracy to

371.

His employers

-- Arthur Venios, Christy Venios, and Bel-Art Realty, Inc. ("Bel-

Art") -- were indicted for the same offenses.

The

Goldings

Venios'

to represent

sought to retain

them

Bucuvalas

Bel-Art

referred

retained

at trial.

Goldings as

however, to represent

therefore,

and

well.

attorney

Bucuvalas

Goldings

Morris

subsequently

was not

willing,

both Bucuvalas and his co-defendants.

Bucuvalas

had retained

on

to Attorney

past occasions.

Terry

Segal

Segal,

He,

whom

represented

Bucuvalas in a criminal tax investigation which did not result in

an

indictment and

in a

trial for bribery

-2-

which resulted

in a

split

verdict.

representation,

Apparently

Bucuvalas

took

satisfied

Goldings'

with

Segal's

advice

past

and retained

Segal to represent him with respect to the present charges.

On

Venios'

with this

fee

in

prior

occasions,

Bucuvalas'

co-defendants,

and Bel-Art, had paid Bucuvalas' legal fees.

practice, Bucuvalas arranged

the current

matter.

Upon

for them to

retaining

the

In keeping

pay Segal's

Segal, Bucuvalas

apprised Segal that he would be paid by Bucuvalas' co-defendants.

Goldings was also aware of the payment plan.

district

Judge Woodlock, the

judge to whom the case was assigned, was never informed

of the arrangement.

Segal took the case to trial.

which

was

He adopted a strategy in

he sought to portray Bucuvalas as a low-level employee who

merely

following

his

employers'

orders

strategy,

Segal

and

who

lacked

knowledge of any wrongdoing.

As

Bucuvalas

not

government's

Bucuvalas'

part

of

his

testify

at

trial.

cross-examination

defense.

In

of

Segal

recommended

feared

Bucuvalas

particular,

Segal

would

feared

that

that

the

undermine

that

the

government's cross-examination would reveal a prior conviction on

similar charges

and would elicit

admissions to

several of

the

current charges.

Segal

was concerned

that

this

would

draw

attention away from weaknesses in the government's case and focus

it

instead on

Bucuvalas'

credibility.

Bucuvalas agreed

with

Segal's analysis and chose not to testify.

-3-

On

August 16,

1990, Bucuvalas

and his

co-defendants

were convicted on all

sentenced

three

Bucuvalas to

years

counts of the indictment.

fifty-one months

of supervised

conviction on appeal.

release.

Judge Woodlock

in prison

This

followed by

court

upheld

United States v. Bucuvalas, 970

_____________
_________

his

F.2d 937

(1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).

_____ ______

On

November 25,

sentence, pursuant to

1994, Bucuvalas

28 U.S.C.

moved to

2255, asserting

vacate his

violations of

his Sixth Amendment right to effective assistance of counsel.

claimed that his rights were violated in two respects.

argued

that

the

payment of

his

attorney's

fees

He

First, he

by his

co-

defendants created an unconstitutional conflict of interest under

Cuyler
______

v.

Sullivan,
________

446

U.S.

335

(1980).

In

particular,

Bucuvalas

claimed that

recommendation

the fee

that Bucuvalas

testimony would

have shown

the

and would

wrongdoing

arrangement

not

testify, because

that his

have

influenced Segal's

Bucuvalas'

co-defendants orchestrated

thereby

incriminated the

very

persons paying Segal's fees.

Second,

performance was

Bucuvalas

deficient under

U.S. 668 (1984).

fee

arrangement

was

deficient,

of

disclosed

the arrangement

because

that

the

that

Strickland
__________

Segal's

trial

v. Washington,
__________

466

Bucuvalas alleged that Segal's treatment of the

Bucuvalas

argued

claimed

risks

inherent in

Segal's advice

his testimony

because

to the

neither

payment

trial court.

that he

would have

the

he

not testify

warned

scheme, nor

Bucuvalas also

was deficient

been exculpatory.

Bucuvalas

-4-

claims

that

it

would

have

demonstrated

that

he

was merely

following orders and that he lacked knowledge of any wrongdoing.

On March

hearing.

4, 1996,

He found that

the fee arrangement

unconstitutional

conflict

performance was

not, in any

Amendment.

Judge Woodlock held

of

interest

an evidentiary

did not create

and

that

respect, deficient under

Bucuvalas' petition, therefore, was denied.

an

Segal's

the Sixth

II.
II.

Analysis
Analysis
________

Bucuvalas

appeals

the

district

court's

regarding both his Cuyler and Strickland claims.

______
__________

rulings

We examine each

seriatim.
________

A.
A.

The Cuyler Claim

The Cuyler Claim
________________

Bucuvalas

claims that

the payment

of his

attorney's

fees by his co-defendants created an unconstitutional conflict of

interest.

States
______

As a threshold

v. Foster,
______

469 F.2d

matter, he asserts

1 (1st

that under United

______

Cir. 1972),

the government

bears

the burden of persuasion on the issue, because the alleged

conflict of interest was never addressed at trial by the district

court.

1.
1.

When

Foster and the Burden of Persuasion

Foster and the Burden of Persuasion
___________________________________

the

defendant

fails

an

alleged

conflict of interest, the

defendant bears the burden of

proving

that the alleged conflict

violates the Sixth Amendment.

United
______

-5-

to object

to

States
______

v.

Soldevila-L pez, 17
_______________

F.3d

480, 486

(1st

Cir. 1994)

(citing Cuyler, 446 U.S. at 348).

______ ______

Pursuant

to

our supervisory

powers,

carved out a limited exception to this rule.

4.

In

Foster, we
______

intervene, sua
___

defendants.

sponte, when
______

Id.
___

courts apprise

held that

are required

one lawyer represents

of their right to

to

multiple co-

Foster requires that

______

defendants of the risks

court has

Foster, 469 F.2d at

______

district courts

In particular,

representation and

this

district

associated with multiple

a court-appointed attorney

if necessary to avoid the multiple representation.

a court

that

fails to conduct

the

disprove

burden

of

an alleged

an adequate inquiry,

persuasion

conflict of

shifts

attack.

Id.
___

This

heightened

danger

of

prejudice

the government

seeks

an

to

inherent

appeal or

address

in

Though he

argues

did

that he

not share

was

an

entitled

the

multiple

to a

attorney with

defendants, Bucuvalas claims that the fee arrangement

implicated

to

Id. at 4.
___

Bucuvalas

hearing.

rule

If

Foster instructs
______

interest, given

collateral

representation.

to

Id. at 5.
___

Foster
______

his

co-

indirectly

the same concerns as multiple representation, because

it subjected his attorney to the influence of

his co-defendants.

Since

the district court did not inquire into his attorney's fee

arrangement, Bucuvalas

argues that

Foster shifts the

______

burden to

the government.

We reject

Bucuvalas'

Foster to these facts.

______

argument and

The Foster
______

decline to

rule is narrow.

extend

See Brien v.
___ _____

-6-

United States,
______________

695 F.2d

10, 14

(1st

Cir. 1982)

(refusing to

extend

its

Foster and impose broader

______

own terms,

Foster
______

duty on district

only applies

courts).

to "criminal

prosecutions

where one attorney speaks for two or more defendants."

case,

therefore,

does

because there was no

not

come within

the

multiple representation.

By

scope

Id.
___

This

of Foster,
______

Segal represented

Bucuvalas and no one else.

Moreover, Segal's

same risks as

inherent

fee arrangement does not

multiple representation.

dangers

that

arise

when

While

foster the

we recognize "the

criminal

defendant

is

represented by a lawyer hired and paid by a third party," Wood v.

____

Georgia, 450 U.S. 261, 268-69 (1981), these dangers are different
_______

from

those

arising

in

multiple

representation

cases.

The

existence

of separate

counsel interposes

interests of co-defendants which

shared.

In this

representation

"where dual

is not

from

vein, this

a buffer

does not exist when counsel

court has

independent

is

distinguished multiple

representation,

representation is involved, the

so great."

between the

holding

that

danger of conflicts

United States v. DiCarlo, 575

______________
_______

F.2d 952, 957

(1st Cir.), cert. denied, 439 U.S. 834 (1978).

_____ ______

As

representation.

here,

DiCarlo
_______

It concerned

a defense strategy, because

clients of his law partner.

Amendment

claim, we

did

not

involve

multiple

allegations that counsel abandoned

it would have implicated prospective

Id. at 955-57.
___

held there

to be

Rejecting the Sixth

a presumption

that "the

lawyer

will subordinate

his pecuniary

interests and

honor his

-7-

primary professional responsibility to

at hand."

Id. at 957.
___

It

would

Here, the same presumption applies.

be inappropriate

Foster to the facts of this case.

______

duty

on district courts

his clients in the matter

To

and impractical

to extend

do so would be to impose a

to inquire into

potential conflicts of

interest when

they have no

conflicts might exist.

reason to know

whether

reason to know or

District judges

suspect that such

do not ordinarily

who is paying an attorney's fees

it would

be appropriate

to require

have

and we question

them to

routinely

inquire into such matters without any cause to do so.

Here,

interest to

did not learn

Bucuvalas never brought

the alleged conflict of

Judge Woodlock's attention.

Indeed, Judge Woodlock

of the contested

fee arrangement until

Bucuvalas

filed this petition, four years after the fact.

We

does not

the

hold that,

where an

alleged conflict

involve multiple representation, where

issue

independent

before

the

reason to

court,

know

and

of the

where

the

of interest

no party raises

court

alleged conflict,

has

no

district

courts

have no

interest.

In

duty

to

into potential

such circumstances, a district

inquire does not shift

Sixth Amendment claim

this case,

inquire

conflicts

court's failure to

the burden of persuasion on

to the

the district

government.

court had no

It

duty to

on Bucuvalas to

a subsequent

follows that,

in

inquire and

the

burden of persuasion did not shift to the government.

remained

of

The burden

establish an unconstitutional conflict

of interest.

-8-

2.
2.

Conflict of Interest Analysis

Conflict of Interest Analysis
_____________________________

The Sixth

Amendment right

to effective

assistance of

counsel is violated when an actual conflict of interest adversely

affects counsel's representation.

Cuyler, 446 U.S. at 348.

______

To

meet this standard, the defendant must show that (1) the attorney

could have pursued a

plausible alternative defense strategy, and

(2) the alternative strategy

not

undertaken

loyalties.

(1st

due

the

United States v.
_____________

Cir. 1994).

issue, actual

to

When

was inherently in conflict

attorney's

other

interests

Soldevila-L pez, 17 F.3d

_______________

an alleged

prejudice need not

with or

480, 486

conflict of interest

be established.

or

is at

Id.; Cuyler,

___

______

446 U.S. at 349-50.

No

this case.

strategy

unconstitutional

existed in

testify

testimony would

that he

should have

existed in

testified on

that he was merely carrying out

his co-defendants.

not

interest

Bucuvalas claims that a plausible alternative defense

behalf to explain

he

conflict of

According to Bucuvalas,

was

impermissibly

have incriminated the

his own

the orders of

Segal's advice that

tainted because

Bucuvalas'

very persons

responsible

for Segal's fees.

The flaw in Bucuvalas'

was not a

testified,

argument is that his testifying

plausible alternative defense strategy.

a prior

conviction

on a

Had Bucuvalas

remarkably similar

would have been introduced into evidence.

charge

One of the allegations

at

trial was that Bucuvalas

prior

conviction was

had bribed a

for bribing

an

police detective; the

I.R.S. agent.

Moreover,

-9-

according to

hearing on

Bucuvalas' own testimony during

his Sixth

Amendment claims,

would have resulted in an

agree with Judge

the district court

his testimony

at trial

admission to the current charges.

Woodlock, who found

that Bucuvalas would

We

have

"offered

himself up

virtually

elements

every

to

a cross-examinational

relevant issue,

of the offenses against

effectively

meat-grinder

admitting to

him and calling

on

the

to the jury's

attention in a very specific way his role in this offense."1

Even if Bucuvalas had put forth a plausible alternative

strategy,

his

claim

would

insufficient

evidence that

relationship

with Bucuvalas'

show

his

that

interests."

counsel

Segal's

that

the

fail

because

advice was

co-defendants.

"actively

Cuyler, 446 U.S.

______

States, 50 F.3d 1097,

______

demonstrate

still

at 350.

tainted by

attenuated hypothesis having

is

his

conflicting

See also Carey

________ _____

conflict

is

defendant must

represented

1100 (1st Cir. 1995) ("the

alleged

there

v. United
______

defendant must

more

than

little consequence to the

'some

adequacy

of representation'") (citing Brien v. United States, 695 F.2d 10,

_____
_____________

15

(1st

Cir.

("theoretical

not

1982));

or merely

constitute

Sixth

Soldevila-L pez,
_______________

17

speculative conflict of

Amendment

violation).

F.3d

at

487

interest" does

In

Carey,
_____

for

____________________

The

standard

by which

this court

reviews findings

of the

district court in ineffective assistance of counsel claims raised

on collateral attack is

not clear. United States v.

_____________

Raineri, 42
_______

F.3d 36, 43 (1st Cir. 1995), cert. denied, 115 S. Ct. 2286 (1995)
_____ ______
(standard of

review is uncertain);

United States v.
_____________

F.3d 223, 226 n.2 (1st Cir. 1993) (same).

States, 987 F.2d 48,
______
standard).

But see Lema v. United

___ ___ ____
______

53 (1st Cir. 1993) (applying

We refrain

from choosing a

"clear error"

standard here, however,

because Bucuvalas' claims fail under any standard.

-10-

McGill, 11
______

instance,

counsel

advised one

when

not to divulge

The

precluded

cooperating

speculative

defendant

Carey, 50
_____

alleged

that

him from obtaining a sentence reduction.

court held

counsel's

co-defendants and

any information regarding

cooperating with the government.

1100.

The

simultaneously represented

that

interest

the

in

link

between

protecting

his

counsel's

other

the other

F.3d at 1099-

this

advice

Id. at 1101.
___

advice

client

to establish an actual conflict of interest.

was

and

too

Id. at

___

1100.

Bucuvalas argues that

can

an actual

conflict of

be inferred from Segal's fee arrangement.

by

Bucuvalas, however, are even less

in

Carey.
_____

in

Carey shared counsel

_____

F.2d at

interest

The facts alleged

suspect than those alleged

Bucuvalas had his own attorney, whereas the defendant

with a

co-defendant. See
___

957 (individual representation less

representation).

Moreover, Bucuvalas

DiCarlo, 575
_______

risky than multiple

offers no additional facts

to show that Segal had conflicting interests.

Significantly, Judge Woodlock,

the

dynamics

of

conflict existed,

the

trial

below,

who observed

explicitly

stating, "I do not find

found

firsthand

that no

that Mr. Segal in any

fashion permitted himself to be directed by any other person

in his

professional judgment

dimensions

Segal's

of this

case."

representation

with respect

Bucuvalas has

was tainted

interest.

-11-

by

an

to

. .

the strategic

failed to

show that

actual conflict

of

The Eleventh

Circuit addressed a similar

set of facts

in Danner v. United States, 820 F.2d 1166 (11th Cir. 1987), cert.
______
_____________
_____

denied, 484 U.S. 1012 (1988), and arrived at the same conclusion.
______

In

Danner,
______

counsel.

counsel's

Id. at
___

that counsel's

fees

1168-69.

advice not

were

paid

to testify conflicted

his co-defendants.

conflict of interest existed.

For all

of these

co-defendant's

Like Bucuvalas, the defendant alleged

interest in receiving his fees because

incriminated

through

Id.
___

with counsel's

such testimony would have

The

court held

that no

Id.
___

reasons, we conclude

that Bucuvalas

has not met his burden of demonstrating that his attorney, Segal,

labored under an unconstitutional conflict of interest.

B.
B.

The Strickland Claim

The Strickland Claim
____________________

Bucuvalas alternatively claims that his Sixth Amendment

right

to counsel was violated by strategic errors made by Segal.

Under

Strickland
__________

v.

Washington,
__________

a Sixth

occurs when (1) counsel's performance

deficient performance

U.S.

at 687.

United States, 78 F.3d

_____________

Id.
___

violation

was deficient, and (2) the

prejudiced the defense.

The defendant

prongs of this test.

Amendment

bears the

Strickland,
__________

burden of

This burden is heavy.

466

proving both

Argencourt v.
__________

14, 16 (1st Cir. 1996); United States v.

______________

Lema, 987 F.2d 48, 51 (1st Cir. 1993).

____

Counsel's performance is

deficient under

Strickland's
__________

first

prong when

unreasonable."

it

is

"so

inferior

United States v.
_____________

as

to

McGill, 11 F.3d
______

be

objectively

223, 226 (1st

-12-

Cir. 1993).

counsel's

In making this determination, "judicial scrutiny

performance must

466 U.S. at 689.

be highly

of

deferential." Strickland,
__________

"A court must indulge a strong presumption that

counsel's

conduct

falls within

professional assistance."

Bucuvalas

deficient in two

should

suggests

range of

Segal's

reasonable

performance

Bucuvalas claims that

potential risks presented

arrangement

with Bucuvalas

arrangement

to

however,

that

First,

have discussed the

measures,

wide

Id.
___

respects.

the

the

and

court.

was

should have

Segal's

not

unreasonable.

to

An

Segal

by the fee

disclosed the

failure

was

take

fee

these

attorney's

obligation in such circumstances is encapsulated by Massachusetts

Supreme Judicial Court Rule 3:07, DR 5-107.

It states, "[e]xcept

with

disclosure, a lawyer

the consent of his

shall not . .

client after full

. accept compensation for his

one other than his client."

legal services from

Massachusetts Supreme Judicial Court

Rule 3:07, DR 5-107 (West 1996).

Segal fulfilled his obligations

under this

rule.

disclosure was

not necessary because

fee arrangement.

"was

fully

involved in

Bucuvalas' consent

was evident,

Bucuvalas orchestrated the

Judge Woodlock, in fact,

aware

of

this

case

and further

the relationships

found that Bucuvalas

that

and, consequently,

made

are

his

necessarily

own

good

judgments or, at least, fair judgments about how to proceed . . .

."

We agree

that Segal's handling of

did not constitute deficient performance.

-13-

the fee arrangement

Bucuvalas

also claims

that

Segal's

performance

was

deficient, because he should have advised Bucuvalas to testify on

his

own behalf.

counsel's

In

Lema,
____

however,

advice that his client

deficient performance

prior conviction.

this

court

that

not testify did not constitute

when such testimony would

Lema, 987
____

found

F.2d at

50-53.

have divulged a

Lema held
____

that,

"[u]naccompanied by coercion, legal advice concerning exercise of

the right to testify infringes no

United States v. Teague,

_____________
______

right."

Id. at 52.
___

See also
________

953 F.2d 1525, 1534-35 (11th

Cir.) (en
__

banc), cert. denied, 506 U.S. 842 (1992).

____
_____ ______

Bucuvalas makes no allegations

is,

therefore, analogous

would

have

divulged a

Here, in fact,

there was

His testimony at trial

several of the charges.

Mr.

Bucuvalas on

opened

Segal

gave

criminal

the

Lema because
____

prior

conviction

defense

This case

Bucuvalas' testimony

for similar

an additional reason

charges.

not to

would likely have led to

testify.

an admission of

Judge Woodlock commented that "[p]utting

in

these circumstances

scorching cross examination,"

recommendation

circumstances, that

We agree.

to

the stand

him up to a

of coercion.

attorney

which,

would

Mr. Bucuvalas not

Segal gave Bucuvalas the

frankly,

have

given

would have

and that "Mr.

any competent

under

take the witness

these

stand."

best possible advice.

His

performance was

Bucuvalas has,

not constitutionally

therefore, failed to

deficient in

any respect.

satisfy the first

prong of

Strickland.
__________

-14-

Even

if

Bucuvalas

performance was deficient,

had

established

his claim still fails

that

Segal's

because he has

not satisfied

showing

show

the second prong

of prejudice.

that

"there

is

To

have

been

alleged errors,

errors, the

different."

Argencourt, 78 F.3d
__________

at 16.

probability

result

of the

Strickland, 466
__________

Bucuvalas claims

he would have taken the

that,

have

has

been increased by the introduction

failed

to

that, absent

prejudice

694;

the

We disagree.

his conviction would

of the prior conviction

inevitable admissions.

establish

at

stand on his own behalf

testified, the likelihood of

and by Bucuvalas'

but for

proceeding

U.S.

and, as a result, he would not have been convicted.

Had Bucuvalas

requires a

establish prejudice, a defendant must

a reasonable

counsel's unprofessional

would

of Strickland, which
__________

and

We find that Bucuvalas

cannot,

establish a Sixth Amendment violation under Strickland.

therefore,

__________

III.
III.

Conclusion
Conclusion

For the

reasons discussed above, we

find that neither

counsel's fee arrangement nor counsel's advice that Appellant not

testify violated Appellant's

Sixth Amendment right

assistance of counsel.

AFFIRMED.

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