United States of America v. Stanley Hall (98-5936); Rex Hall (98-5937)

*The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0028P (6th Cir.)
File Name: 00a0028p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
S TANLEY HALL (98-5936);
R EX HALL (98-5937),
Defendants-Appellants.
;>

1
Nos. 98-5936/5937
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 98-00007—Karl S. Forester, District Judge.
Argued and Submitted: November 4, 1999
Decided and Filed: January 19, 2000
Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
Judge; KATZ, District Judge.*

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2 United States v. Hall, et al. Nos. 98-5936/5937
_________________
COUNSEL
ARGUED: William K. Fulmer II, Erlanger, Kentucky, for
Appellant. Charles P. Wisdom, Jr., OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: William K. Fulmer II, Erlanger, Kentucky,
Dean A. Pisacano, HELLINGS & PISACANO, Covington,
Kentucky, for Appellant. Charles P. Wisdom, Jr., OFFICE
OF THE U.S. ATTORNEY, Lexington, Kentucky, for
Appellees.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Chief Judge. This is a case
where two brothers, Rex and Stanley Hall, were poorly served
by one attorney, David Van Horn. The younger brother,
Stanley Hall, was obviously led astray by his older brother.
Even though both Rex and Stanley Hall waived their rights to
separate counsel, this is one of the unusual cases where the
court should have stepped in to ensure an adequate legal
defense for Stanley Hall.
Rex and Stanley Hall appeal their convictions of conspiracy
to possess with intent to distribute marijuana and cocaine in
violation of 21 U.S.C § 846 and possession with intent to
distribute marijuana and cocaine in violation of 21 U.S.C.
§ 841(a)(1). Rex Hall claims his Sixth Amendment rights
were violated when the district court denied his request for a
continuance. Stanley Hall claims he received ineffective
assistance of counsel because Van Horn’s dual representation
constituted a conflict of interest in violation of the Sixth
Amendment. We affirm Rex Hall’s conviction. We reverse
Stanley Hall’s conviction and remand for a new trial.
On December 10, 1997, the Kansas Highway Patrol stopped
a motor home driven by Howard Graham for a traffic

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10 United States v. Hall, et al. Nos. 98-5936/5937
III.
We AFFIRM the judgment as to Rex Hall. We REVERSE
the judgment as to Stanley Hall and REMAND for a new trial.
Nos. 98-5936/5937 United States v. Hall, et al. 3
violation. Inside the motor home the officers found 135
pounds of marijuana. Graham claimed he had been paid to
drive the motor home to Kentucky where he would call Fred
Thornton and receive further instructions. Graham agreed to
work with the officers and contacted Thornton, who
instructed him to go to a rest area to exchange vehicles. At
the rest area, Graham switched vehicles with Rex and Stanley
Hall. Officers followed the Halls to a farm where the Halls
removed the marijuana. When the officers approached the
farm, Stanley Hall fled on foot but was apprehended shortly
thereafter. A search of the farm and house, which was leased
by Rex Hall, revealed an additional 190 pounds of marijuana,
5 kilograms of cocaine, and cash in a safe.
From the beginning of the proceedings both Rex and
Stanley Hall were represented by David Van Horn. The
district court, on multiple occasions, informed the Halls that
dual representation could result in a conflict of interest. Both
Halls elected to continue with the same counsel. The United
States petitioned the court for a hearing on the joint
representation conflict issue. The United States advised the
court of several areas where potential conflicts existed
including unsuccessful attempts to negotiate plea agreements,
the defense’s failure to request discovery, the potential
conflict of defenses, and the disparity in sentences sought for
the two defendants. The court conducted a hearing the day
before trial at which time Van Horn stated that if he was not
allowed to represent both Halls, he wished to continue
representing Rex Hall, for whom he had been counsel for
years. Stanley Hall again elected to continue with Van Horn,
but the record remains cloudy as to whether Stanley
understood the full ramifications of what he was doing.
Stanley Hall stated that he was “being advised by Van Horn,
my lawyer, and I’ll do whatever he advises me to do. . . . ”
The judge endorsed his decision by stating that “Mr. Van
Horn is a very capable and a very good lawyer and he
wouldn’t be here if he didn’t think he could represent both of
you adequately because I’ve known him for a long time. . . .”

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4 United States v. Hall, et al. Nos. 98-5936/5937
At trial Rex Hall asserted a public authority defense,
claiming that he was operating as an informant for the
government. Multiple government officials and law officers
testified that while Rex had been an informant in the past, he
was no longer working as an informant. Stanley testified he
thought that his brother was an informant and that he was
assisting in an undercover operation. The day before the
close of the trial, Rex requested a continuance to obtain the
presence of three witnesses who never testified. The judge
granted his request until the beginning of the next day. Rex
failed to mention the witnesses again.
The jury convicted Rex and Stanley Hall of conspiracy to
possess with the intent to distribute marijuana and cocaine
and possession with intent to distribute marijuana and
cocaine. The court sentenced Rex Hall to life imprisonment
and Stanley Hall to imprisonment for 10 years and one month.
The conviction was Rex Hall’s third and Stanley Hall’s first.
Both defendants made motions of acquittal to the trial court
that were denied.
I.
Rex Hall argues that the district court violated his Sixth
Amendment rights by improperly denying him a continuance
to secure the presence of three witnesses. The district court
never addressed this claim because it was never properly
made. “Constitutional objections ‘that appear for the first
time on appeal are conclusively deemed to be waived, with
the effect that [the appellate court is] deprived of
jurisdiction.’” United States v. Scarborough, 43 F.3d 1021,
1025 (6th Cir. 1994) (quoting United States v. Crismon, 905
F.2d 966, 969 (6th Cir.1990)). When Rex requested time to
secure the missing witnesses, the court allowed him until the
next day. The next day, Rex never mentioned the witnesses
and failed to request further time to secure their presence.
Because Rex did not raise his Sixth Amendment claim at any
time during the district court proceedings, he has waived his
right to object and thus we cannot entertain this claim on
appeal.
Nos. 98-5936/5937 United States v. Hall, et al. 9
drug conspiracy, a poorly phrased question to which Van
Horn did not object. Neither side elaborated as to whether
Stanley Hall’s admission included the cocaine, just the
marijuana or something else relating to the charge. During
deliberations, the jury submitted a question to the court
regarding Stanley Hall’s role in the conspiracy:
HELP. Both the prosecuting and defense attorneys
stressed that Rex and Stanley were admitting guilt to
both the marijuana and cocaine. We cannot remember
direct evidence linking Stanley to the cocaine. Can the
attorneys admitting full knowledge of both clients’
knowledge serve as direct evidence or the lack of
innocence not expressed by Stanley or Stanley’s attorney
serve as evidence? If there is any testimony under oath
by Stanley or anyone else that provides a link, we would
appreciate it.
The obvious confusion on the part of the jury and the lack
of evidence should have indicated to the court not only that an
actual conflict of interest existed, but also that the conflict had
prejudiced Stanley Hall’s defense. As stated in Wheat v.
United States, 486 U.S. 153, 160 (1988):
Federal courts have an independent interest in ensuring
that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings
appear fair to all who observe them . . . . Not only the
interest of a criminal defendant but the institutional
interest in the rendition of just verdicts in criminal cases
may be jeopardized by unregulated multiple
representation.
Because counsel was unable to vigorously represent both
Stanley and Rex Hall, Stanley Hall has shown that an actual
conflict of interest existed at trial such that the trial judge
should have intervened and at that stage severed the case
against Stanley Hall.

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8 United States v. Hall, et al. Nos. 98-5936/5937
435 U.S. 475, 490 (1978) (finding that dual representation
may prevent an attorney “from exploring possible plea
negotiations and the possibility of an agreement to testify for
the prosecution”). Van Horn failed to fully represent each
defendant’s interests, resulting in an actual conflict. While it
was in Rex Hall’s best interest to go to trial, it clearly was in
Stanley Hall’s interest to plead. Stanley Hall had no previous
record and the plea agreement was a good one.
We have held that a conflict of interest alone is not
sufficient to justify reversal of a conviction. See Foltz, 818
F.2d at 480. Counsel’s performance must have been
adversely affected by the conflict. See id. Inherent in the
Sixth Amendment right to counsel is the right to reasonably
competent counsel and the right to counsel’s undivided
loyalty. See Strickland, 466 U.S. at 692. In Holloway v.
Arkansas, 435 U.S. 475, 489-90 (1978), the Court stated:
Joint representation of conflicting interests is suspect
because of what it tends to prevent the attorney from
doing.... [A] conflict may . . . prevent an attorney from
challenging the admission of evidence prejudicial to one
client but perhaps favorable to another, or from arguing
at the sentencing hearing the relative involvement and
culpability of his clients in order to minimize the
culpability of one by emphasizing that of another.
When they finally went to trial, Van Horn’s loyalty was
obviously divided as to trial strategy. He concentrated only
on Rex Hall and his public authority defense. Van Horn
never questioned Stanley Hall about his connection to the
cocaine found inside of Rex Hall’s home; rather he addressed
only whether Stanley Hall believed his brother was acting as
an informant. Furthermore, he never questioned Rex Hall
about Stanley’s connection to any of the drugs. No evidence
was presented in the United States’s direct case demonstrating
that Stanley Hall had any connection to the cocaine. The only
evidence linking Stanley Hall to the cocaine was his
affirmative answer to the United States’s question on cross-
examination whether he was admitting to involvement in the
Nos. 98-5936/5937 United States v. Hall, et al. 5
Even if Rex Hall had properly made a motion to the district
court for a continuance, he has failed to show why a
continuance should have been granted. The standard of
review for a district court’s denial of a motion for continuance
is abuse of discretion. See United States v. King, 127 F.3d
483, 486 (6th Cir. 1997). A constitutional violation occurs
only if the denial was an unreasonable and arbitrary
“insistence upon expeditiousness in the face of a justifiable
request for delay.…[T]he defendant must show that the denial
resulted in actual prejudice in his defense.” Id. at 487
(citations omitted). Actual prejudice requires proof that the
continuance would have provided relevant witnesses or
contributed to the defense. See id. Rex failed to show actual
prejudice. In contrast, Rex Hall’s attorney stated at trial that
two of the desired witnesses had nothing to do with the case
and that the third witness’s testimony would only be
cumulative. Absent proof that any of the witnesses would
have been of some benefit, Rex’s claim must fail and with it
his defense.
II.
Stanley Hall asserts his Sixth Amendment rights were
violated because Van Horn’s dual representation resulted in
a conflict of interest. While Stanley made a motion of
acquittal to the district court, he failed to address the
ineffective assistance of counsel claim in the district court
through a habeas corpus motion. Claims of ineffective
assistance of counsel usually must be addressed first by the
district court pursuant to a motion under 28 U.S.C. § 2255.
See United States v. Fortson, 194 F.3d 730, 736 (6th Cir.
1999). As a general rule, this Court will not review claims of
ineffective assistance of counsel for the first time on direct
appeal. See United States v. Thomas, 74 F.3d 701, 715 (6th
Cir. 1996). An exception exists, however, when the record is
adequately developed to allow this Court to assess the merits
of the issue. See id. In this case, the district court addressed
the issue of dual representation several times, including at a
hearing requested by the prosecutor. Because we are
addressing Stanley’s Sixth Amendment claim based on

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6 United States v. Hall, et al. Nos. 98-5936/5937
ineffective assistance resulting from dual representation, the
record is complete and allows us to review this issue de novo.
See id.
Stanley Hall alleges that Van Horn’s dual representation
violated his Sixth Amendment rights. Dual representation,
however, does not automatically constitute a Sixth
Amendment violation. See Thomas v. Foltz, 818 F.2d 476,
482 (6th Cir. 1987). A defendant may waive any potential
conflicts of interest and elect to continue with dual
representation. See United States v. Reese, 699 F.2d 803, 804
(6th Cir. 1983). This waiver, however, does not bind the
courts. The purpose of the Sixth Amendment “is to guarantee
an effective advocate for each criminal defendant rather than
to ensure that a defendant will inexorably be represented by
the lawyer whom he prefers.” Wheat v. United States, 486
U.S. 153, 159 (1988). While “[t]he District Court must
recognize a presumption in favor of petitioner's counsel of
choice, . . . that presumption may be overcome not only by a
demonstration of actual conflict but by a showing of a serious
potential for conflict.” Id. at 164.
To analyze ineffective assistance of counsel claims, this
Court applies the two-pronged standard in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant must show that (1) his counsel’s performance was
deficient, and (2) this performance prejudiced the defense
thereby depriving the defendant of a fair trial. See Foltz, 818
F.2d at 480.
Conflict of interest cases involve a slightly different
standard than that used in traditional ineffectiveness claims.
See id. Where there is a conflict of interest, “counsel
breaches the duty of loyalty, perhaps the most basic of
counsel’s duties.” Strickland, 466 U.S. at 692. Thus, when
an actual conflict of interest exists, prejudice is presumed.
See id. Prejudice is presumed, however, “only if the
defendant demonstrates that counsel ‘actively represented
conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’” Id. (quoting
Nos. 98-5936/5937 United States v. Hall, et al. 7
Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1985)). Thus,
while the rule is rigid, it is not a per se rule. See id.
In Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987), this
Court adopted the standard set forth in United States v. Mers,
701 F.2d 1321, 1328 (11th Cir. 1983), to determine whether
an actual conflict of interest exists:
We will not find an actual conflict unless appellants can
point to “specific instances in the record to suggest an
actual conflict or impairment of their interests.” . . .
Appellants must make a factual showing of inconsistent
interests and must demonstrate that the attorney “made a
choice between possible alternative courses of action,
such as eliciting (or failing to elicit) evidence helpful to
one client but harmful to the other. If he did not make
such a choice, the conflict remained hypothetical.” . . .
There is no violation where the conflict is “irrelevant or
merely hypothetical”; there must be an “actual significant
conflict.”
A conflict of interest was evident in Stanley Hall’s case by
Van Horn’s failure to successfully negotiate a plea agreement.
Prior to trial, the Halls each entered into plea agreements
which were signed but withdrawn at the last moment. Under
the plea agreement, Rex Hall would have received a life
sentence with the option of earning a motion pursuant to
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), and Stanley Hall
would have pled to between three years and ten months and
four years and nine months rather than receiving the
mandatory minimum sentence of ten years. Because this was
Stanley Hall’s first conviction and Rex Hall’s third, the
sentences were exorbitantly unequal. This Court recognized
in Foltz, 818 F.2d at 481, the potential problems created by
dual representation in connection with plea negotiations. In
Foltz, the attorney was prevented from effectively engaging
in any separate plea negotiations on one party’s behalf
without detrimentally affecting the co-defendants. See id. at
481-82. Foregoing plea negotiations is proof of an actual
conflict of interest. See id.; see also Holloway v. Arkansas,

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