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Seventh Circuit addresses conflict of interest

The Seventh Circuit held on Oct. 18 that, even though the defendant could have offered information to the government against a former client of the attorney, the mere possibility does not create a conflict of interest on the attorney’s part.

Attorney Andrea Gambino was defense counsel for both Fabian Lafuente and Eddie Cardona. Both had connections to the Insane Deuces street gang.
Her representation of Cardona began on April 26, 2002, and ended on Dec. 4, 2002.

On Oct. 9, 2002, she began representing Lafuente, to defend him against an assortment of drug and weapon charges. The case went to trial in September 2003, and Lafuente was found guilty of three of five counts. Cardona was not called as a witness at trial, and his name never appeared on any list of potential witnesses.

In October 2003, Gambino withdrew as counsel.

Through successor counsel, Lafuente moved for a new trial, asserting ineffective assistance of counsel. Among the claims alleged by Lafuente was that Gambino had a conflict of interest.

What the court held

Case: U.S. v. Fabian Lafuente, No. 04-2194.

Issue: Is a defendant prejudiced where his attorney had previously represented a fellow gang affiliate?

Holding: No. Where there is nothing to suggest that the defendant would have testified against the affiliate in exchange for a benefit from the government, there was no prejudice, even if a conflict of interest was present.

The district court denied the motion, and in April 2004, the case proceeded to sentencing. Cardono provided information to the government concerning Lafuente’s prior drug dealings and gang involvement, but no information regarding the charges for which he was sentenced, and the information did not result in any sentencing enhancement.

Lafuente was sentenced to 300 months imprisonment and he appealed. The Seventh Circuit affirmed the conviction, in an opinion by Judge Michael S. Kanne, but issued a limited remand on sentencing pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).

The court held that, because there was no joint representation in the same proceeding, of Cardona and Lafuente, there was no presumption of prejudice. In addition, Cardona was never listed as a witness, so Gambino was never faced with having to cross-examine a former client to the detriment of a current client.

Because Lafuente did not raise his claim prior to trial, he was required to show that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). However, the court declined to consider whether there was any actual conflict of interest, because it determined that there is no likelihood that Gambino’s performance would have been different, even if there was a conflict, and thus, no prejudice.

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7th Circuit Court of Appeals

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Case Analysis

The court wrote, “Lafuente’s only argument related to an adverse effect is that Gambino’s representation of Cardona foreclosed the possibility of an agreement under which Lafuente would testify against Cardona in exchange for a recommendation by the government for a reduced sentence. There is more than adequate evidence in the record and recounted above to show that Lafuente was dead set against cooperation with the government, and that a plea bargain was never a possibility. Lafuente’s own letters and trial testimony admitted as much.”

The court added that the information provided by Cardona did not form the basis for any sentencing enhancement. Accordingly, the court affirmed the conviction.

The court issued a limited remand, however, because the sentencing occurred prior to the Seventh Circuit’s decision in U.S. v. Booker, and the sentencing court thus erroneously treated the sentencing guidelines as mandatory, rather than advisory.

Click here for Case Analysis.

David Ziemer can be reached by email.

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