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Representing a government witness on a pending appeal definitely a conflict of interest

Stephon Williams was convicted of federal charges of conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. 846 following a jury trial in a Georgia federal court. Williams was charged with conspiring with his codefendant Donterius Toombs who also went trial with Williams. The government called a witness named Bennet to testify at their trial.

At the time of this trial Bennet was appealing his drug conviction by challenging his sentence enhancement for an obstruction of justice for sending a letter to Toombs, Williams’ coconspirator, asking him to cooperate on Bennett’s in exchange for a substantial payment and to market a cooperation-for-hire scheme to inmates seeking sentence reductions. The attorney representing Williams at his trial was also representing Bennet on his sentence enhancement challenge in the Eleventh Circuit court of appeals.

In his testimony Bennet did not mention Williams by name but he supported the government’s case against both Williams and Toombs by directly describing and by corroborating other witnesses’ testimony concerning the drug distribution conspiracy alleged in the indictment. In his direct examination, Bennet made no mention of his letter to Mr. Toombs or how he had received and obstruction of justice enhancement at sentencing. Toombs’ counsel cross-examined Bennet but did not bring up the topic. Williams’ counsel asked no questions when it came to his turn on cross examination.

In this appeal Williams claimed that his federal criminal defense attorney had a conflict of interest due to his simultaneous representation of Bennet and the conflict had an adverse effect on his performance at trial. The court of appeals determined that the undisputed facts established a conflict of interest because the attorney represented two clients concurrently and when one of them testified at the other’s trial, the attorney had to decide whether to cross-examine. The court concluded that on these facts Williams made out a strong case of an adverse effect on the counsel’s performance.

The defense attorney’s decision not to cross-examine Bennett appears to have “possessed sufficient substance to be a viable alternative” given the facts that led to Bennett’s obstruction of justice enhancement.

The government argued no harm no foul because Bennett did not incriminate Williams during his testimony and therefor there was nothing to be gained by cross examining Bennett. The court rejected this argument because Williams only had to show the cross possessed a sufficient substance to be a viable alternative. It also found that Bennett’s testimony helped to establish the existence of the charged conspiracy, one of the key elements of the section 846 offense and the role of various players in the scheme. Impeaching Bennett with this obstructive conduct would have at least served the purpose of undermining his credibility and possibly a portion of the government’s case. The government’s argument fell short because Williams was not required to show the Strickland standard of actual prejudice.   The case was remanded for the limited purpose of having the district court conduct an evidentiary hearing on whether the criminal defense attorney’s conflict resulted in an adverse effect.