William R. Riggs v. United States of America

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0129P (6th Cir.)
File Name: 00a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
W ILLIAM R. R IGGS,
Petitioner-Appellant,
v.
UNITED S TATES OF AMERICA ,
Respondent-Appellee.
;>

1
No. 98-6051
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 97-00702; 94-00099—Edward H. Johnstone,
Senior District Judge.
Argued: March 16, 2000
Decided and Filed: April 11, 2000
Before: NORRIS, MOORE, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Douglas A. Trant, Knoxville, Tennessee, for
Appellant. Mark L. Miller, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Douglas A. Trant, Knoxville, Tennessee, for
Appellant. Mark L. Miller, Terry M. Cushing, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.

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2 Riggs v. United States No. 98-6051
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner-
appellant William R. Riggs was convicted after a jury trial of
conspiracy to manufacture marijuana, manufacturing
marijuana, and possessing marijuana with intent to distribute.
He brought a motion under 28 U.S.C. § 2255 challenging his
conviction, which was denied by the district court. Riggs
claims that his conviction was invalid for two reasons. First,
Riggs argues that he received ineffective assistance of
counsel, because his attorney, a former Assistant United
States Attorney, had a conflict of interest. Second, Riggs
claims that the government violated 18 U.S.C. § 201(c)(2),
because his conviction was based, in part, on testimony that
the government obtained from witnesses in exchange for
leniency in their own criminal prosecutions. Both of these
claims are without merit, and we therefore AFFIRM the
district court’s denial of Riggs’s motion.
I. BACKGROUND
On June 16, 1995, William Riggs was convicted in the
district court for the Western District of Kentucky of
conspiring to manufacture, manufacturing, and possessing
with intent to distribute over 1,000 plants of marijuana, in
violation of 21 U.S.C. §§ 846 and 841(a)(1). He was initially
sentenced to 188 months of imprisonment and five years of
supervised release. Riggs appealed his conviction and
sentence to this court, arguing that the district court
incorrectly determined the number of marijuana plants
attributable to him. See United States v. Riggs, No. 95-5908,
1996 WL 603666, at **1 (6th Cir. Oct. 21, 1996). A Sixth
Circuit panel affirmed. See id. at **1-2. Subsequently,
Riggs’s sentence was reduced to ten years due to an
amendment in the United States Sentencing Guidelines that
occurred while Riggs’s direct appeal was pending.

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10 Riggs v. United States No. 98-6051
no hearing is necessary here. Riggs had the opportunity to
submit evidentiary materials to the district court.
Furthermore, Riggs has not described any additional evidence
that he could present at an evidentiary hearing to support his
claim. Therefore, we conclude that the record in this case
clearly demonstrates that Riggs is not entitled to relief under
§ 2255.
C. 18 U.S.C. § 201(c)(2)
Riggs argues that the government has acted illegally in this
case by offering reduced sentences to prosecution witnesses
in exchange for their testimony against him, thereby violating
18 U.S.C. § 201(c)(2). Section 201(c)(2) prohibits giving,
offering, or promising “anything of value” to a person for
testifying under oath. Only one circuit court of appeals has
ever held that the government’s practice of plea bargaining
with prosecution witnesses violates 18 U.S.C. § 201(c)(2), see
United States v. Singleton, 144 F.3d 1343,1357-58 (10th Cir.
1998), and that decision was vacated and reversed by an en
banc court, see United States v. Singleton, 165 F.3d 1297,
1298 (10th Cir.), cert. denied, --U.S.--, 119 S. Ct. 2371
(1999). Moreover, this circuit has explicitly rejected this
argument, holding in United States v. Ware, 161 F.3d 414
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), that 18
U.S.C. § 201(c)(2) does not apply to United States
prosecutors who promise leniency in exchange for truthful
testimony. Since this panel has no authority to overrule the
decision of a prior panel, see Timmer v. Michigan Dep’t of
Commerce, 104 F.3d 833, 839 (6th Cir. 1997), we are
compelled to hold that Riggs’s claim is without merit.
III. CONCLUSION
For the foregoing reasons, the district court’s order denying
Riggs’s § 2255 motion is AFFIRMED.
No. 98-6051 Riggs v. United States 3
On October 31, 1997, Riggs filed the motion in the instant
case. Principally, Riggs argues that he received ineffective
assistance of counsel at trial because his attorney, a former
Assistant United States Attorney, had an actual conflict of
interest that prevented him from zealously representing Riggs.
Riggs also argues that the government violated 18 U.S.C.
§ 201(c)(2), which prohibits giving “anything of value” to a
person for testifying under oath, when it exchanged sentence
reductions for the truthful testimony of prosecution witnesses.
The district court denied Riggs’s motion in an order entered
on July 27, 1998. Riggs filed a timely notice of appeal, the
district court having granted a certificate of appealability as to
both issues.
II. ANALYSIS
A. Standard of Review
A petitioner is entitled to relief under § 2255 only upon a
showing of a “‘fundamental defect’ in the proceedings which
necessarily results in a complete miscarriage of justice or an
egregious error violative of due process.” Gall v. United
States, 21 F.3d 107, 109 (6th Cir. 1994) (quoting United
States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). This
court reviews de novo the district court’s denial of a § 2255
motion, but the district court’s findings of fact are reviewed
only for clear error. See id. If the district court has not held
an evidentiary hearing, however, this court will affirm only if
“the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255; see Baker v. United States, 781 F.2d 85, 92 (6th Cir.),
cert. denied, 479 U.S. 1017 (1986).
B. Ineffective Assistance of Counsel
In order to show a violation of the Sixth Amendment right
to counsel, a defendant generally must make two showings.
First, the defendant must demonstrate that the attorney’s
performance was deficient, meaning that “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”

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4 Riggs v. United States No. 98-6051
1Although the Cuyler standard was laid out in the context of conflicts
of interest arising from multiple representation, this circuit applies the
Cuyler analysis to all Sixth Amendment conflict-of-interest claims. See
United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996). One exception,
not applicable here, is in those cases where the trial court was informed
by counsel or the defendant of a potential conflict of interest but failed to
inquire into that conflict: in such cases, prejudice is presumed and
reversal is automatic. See Holloway v. Arkansas, 435 U.S. 475, 484-91
(1978). Riggs has made no showing in this case that the trial judge knew
of any potential conflict of interest.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Second,
the defendant must prove that the attorney’s deficient
performance was so prejudicial that it “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.” Id.
The Supreme Court has slightly modified this rule in the
context of alleged conflicts of interest, however. In Cuyler v.
Sullivan, 446 U.S. 335 (1980), the Court held that, if a
defendant can show “an actual conflict of interest [that]
adversely affected his lawyer’s performance,” prejudice may
be presumed. Id. at 348-50.1 An “actual conflict” may be
demonstrated by pointing to “specific instances in the record”
that indicate 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.” Thomas v. Foltz, 818 F.2d 476, 481
(6th Cir.) (quotation omitted), cert. denied, 484 U.S. 870
(1987).
Riggs argues that his counsel had an actual conflict of
interest while representing Riggs. Riggs points to the fact that
Cox, a former Assistant United States Attorney (AUSA), was
still working as an AUSA at the time of Riggs’s investigation
and indictment, and that Cox is listed, on the transcript cover,
as making an appearance on behalf of the United States
during Riggs’s grand jury testimony. Riggs further complains
that Cox represented the ex-wife of a prosecution witness.
Finally, Riggs points out that Cox shared office space with
two other attorneys, who represented other co-defendants-
turned-prosecution-witnesses: Keith Kamenish, who
No. 98-6051 Riggs v. United States 9
3It appears that a word was omitted from this phrase in the transcript
of Treadway’s testimony: from the context, it is clear that Treadway made
a statement to the effect that he had some difficulty in obtaining Riggs’s
cooperation.
4To the extent that Riggs intends to suggest that Cox had conflicting
loyalties due to the mere fact of his former employment by the
government, we reject this suggestion. Indeed, we believe that a former
AUSA who is just beginning his career as a defense attorney would likely
have an incentive to represent his early clients particularly zealously, so
as to win more clients in the future. In addition, Cox’s familiarity with
the functioning of the United States Attorney’s Office would probably
inure to the benefit, not the detriment, of his clients in criminal cases.
operation; therefore, cross-examination on this subject would
have been improper. Cox’s cross-examination was otherwise
sufficient. As regards Barbara Herron, Riggs points to no
specific problems with Cox’s cross-examination of her, and
a review of the transcript reveals none.
Finally, Riggs claims that Cox “opened the door” for
admission of Riggs’s grand jury testimony by questioning
Detective Treadway about Riggs’s grand jury appearance.
This claim, too, must fail. Although Treadway did state, on
re-cross-examination, that he “had a little bit of getting
cooperation from Mr. Riggs”3 with respect to the
investigation and the grand jury hearing, J.A. at 324
(Treadway Test.), Cox successfully obtained a cautionary
instruction from the district judge with respect to Treadway’s
statement. Furthermore, Riggs does not claim that any other
evidence concerning Riggs’s grand jury testimony was
admitted at trial; indeed, Cox successfully moved to prevent
the government from using that testimony against Riggs at
trial. Thus, it is again difficult to see how Cox’s performance
was adversely affected by the purported conflict of interest.
Riggs has thus come forward with insufficient evidence to
meet his burden of showing that Cox had an actual conflict of
interest that affected his performance in Riggs’s trial.4
Although in some cases it might be appropriate to remand for
an evidentiary hearing in the face of such minimal evidence,

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8 Riggs v. United States No. 98-6051
$25,000 when the police raided a warehouse where the
marijuana was grown. Because the parties have not informed
the court of the nature of Cox’s representation of Driskell’s
ex-wife, it is difficult to determine whether there would be an
actual problem of divided loyalty, as in McConico v.
Alabama, 919 F.2d 1543 (11th Cir. 1990), in which an
attorney represented both a criminal defendant at his murder
trial and the murder victim’s sister in her claim for the
victim’s life insurance benefits. In that case, the Court of
Appeals for the Eleventh Circuit held that an actual conflict
of interest existed, because the two legal matters were related;
furthermore, the attorney had an incentive not to cross-
examine the victim’s sister — his client — on the issue of
whether the victim had been the aggressor and the defendant
had killed in self-defense, because the sister would not be
entitled to the insurance proceeds if the victim had been the
aggressor. See id. at 1547-48. Additionally, the court noted
that actual conflicts are less likely in cases of successive,
rather than simultaneous, representation. See id.; see also
Takacs v. Engle, 768 F.2d 122, 125 (6th Cir. 1985) (holding
that defense counsel’s prior representation of a prosecution
witness did not create a conflict where the witness waived
attorney-client privilege as to confidential information, and
defense counsel therefore had no incentive not to cross-
examine the witness vigorously). Since Riggs has not come
forward with any specific reasons why Cox would have an
incentive to perform lax cross-examination of Driskell, his
argument must fail. Furthermore, the transcript indicates that
Cox quite effectively crossed and re-crossed Driskell. Cox’s
failure to cross-examine Driskell on one statement allegedly
made to him by Riggs does not demonstrate an actual conflict
that adversely affected Cox’s performance, particularly since
Riggs does not point to any extrinsic evidence with which
Driskell’s testimony could be impeached.
With respect to Napier, Riggs contends that Cox should
have cross-examined him about the number of marijuana
plants involved. However, a review of the transcript indicates
that Napier was not questioned on direct examination
regarding the quantity of marijuana involved in Riggs’s
No. 98-6051 Riggs v. United States 5
2Our disposition of this case makes it unnecessary for us to decide
the waiver issue; therefore, we do not address it in this opinion.
represented Rosco Driskell, and Mark Chandler, who
represented Gary Napier.
The government responds by pointing out that, although
Cox’s name appears on the cover of the grand jury transcript,
a review of the transcript itself does not reveal any
participation by Cox in the hearing. Cox testified in an
affidavit that he was not assigned to the Riggs case in any
capacity while working in the United States Attorney’s
Office; rather, Cox claims that he merely wandered into the
grand jury room during Riggs’s hearing, and for that reason
the court reporter listed his name on the transcript cover.
Furthermore, the government points out, Riggs is required to
show that this potential conflict adversely affected Cox’s
representation of Riggs in some way; otherwise, the conflict
would remain merely hypothetical and thus insufficient to
require reversal of Riggs’s conviction. See, e.g., United
States v. Hopkins, 43 F.3d 1116, 1118-19 (6th Cir.), cert.
denied, 514 U.S. 1135 (1995); United States v. Horton, 845
F.2d 1414, 1418-20 (7th Cir. 1988) (declining to adopt a per
se rule that a conflict of interest exists when defense counsel
is being considered for a position as a United States Attorney
and ruling that the defendant was still required to point to
specific evidence showing a conflict). Finally, the
government claims that Riggs waived any possible conflict of
interest that may have existed, because he was aware that
Cox’s name appeared on the grand jury transcript and yet
agreed to Cox’s representation.2
Riggs points to several specific acts and omissions by his
attorney that purportedly evidence an actual conflict of
interest. First, Riggs asserts that Cox never requested a
buyer-seller instruction, nor did he discuss the possibility of
a buyer-seller defense with Riggs. The government responds
by stating that, according to Cox’s affidavit, Cox did argue for
a buyer-seller instruction; furthermore, the government

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6 Riggs v. United States No. 98-6051
argues, the facts of this case did not support a such an
instruction. The district court, in reviewing Riggs’s § 2255
motion, agreed with the government that a buyer-seller
instruction would not have been warranted in this case. See,
e.g., Bucyrus-Erie Co. v. General Prods. Corp., 643 F.2d 413,
420 (6th Cir. 1981) (holding that it is not error for the district
court to refuse to give an instruction if there is insufficient
evidence in the record to support that instruction). The
government also argues that the general conspiracy instruction
given by the district judge sufficiently ensured that no
conspiracy would be found if the government had proven only
a buyer-seller relationship involving Riggs.
The government is correct that Riggs was not entitled to a
buyer-seller instruction in this case. There appears to be some
support for a buyer-seller instruction in Riggs’s own trial
testimony; therefore, such an instruction would not have been
inappropriate. However, this court held in United States v.
Stephens, 492 F.2d 1367 (6th Cir.), cert. denied, 419 U.S. 874
(1974), and 419 U.S. 852 (1974), that a buyer-seller
instruction is unnecessary if the district judge has given a
complete instruction reciting all the elements of conspiracy
and requirements for membership in a conspiracy. See id. at
1377. The district judge gave such an instruction in this case.
Thus, Riggs was not entitled to a specific buyer-seller
instruction. Moreover, even if Cox should have requested a
buyer-seller instruction in this case and failed to do so, it is
difficult to see how the failure to do so would be a
manifestation of Cox’s alleged conflict of interest. Riggs has
not explained any causal connection between Cox’s failure to
request the instruction and his prior AUSA position, his
representation of Driskell’s ex-wife, or his sharing office
space with Kamenish and Chandler. Thus, he has not shown
“that an actual conflict of interest adversely affected his
lawyer’s performance.” Cuyler, 446 U.S. at 348.
Second, Riggs argues that Cox never informed him that
Gary Napier, Riggs’s step-son and co-conspirator, would
testify against Riggs if Napier pleaded guilty; Riggs appears
to suggest that he would not have encouraged Napier to plead
No. 98-6051 Riggs v. United States 7
guilty had he been aware of this possible consequence. As the
government points out, however, Riggs took the position at
sentencing that he was entitled to a sentence reduction for
acceptance of responsibility, in part because “he repeatedly
urged Mr. Napier to plead guilty and testify against him. . . .
which Mr. Napier did on the last day of trial.” J.A. at 380
(Sentencing Tr.). Moreover, Riggs has again failed to show
any logical connection between Cox’s alleged conflict and his
attorney’s purported omission. Therefore, we hold that Riggs
has failed to make the showing required by Cuyler with
respect to this issue.
Third, Riggs points to one instance in which Cox “argued
on behalf of Mr. Napier at the trial.” Appellant’s Br. at 16.
Arguing against granting the government additional time to
prepare for trial, Cox stated, “Mr. Napier, and I am speaking
on behalf of Mr. Chandler now, has been incarcerated
basically since the day or day after the indictment was
returned last November.” J.A. at 290 (Tr.). This statement
does not demonstrate that Cox was simultaneously
representing conflicting interests. Indeed, at the time the
statement was made, Napier had not yet pleaded guilty;
therefore, the two defendants’ interests were aligned, as both
would have desired to prevent the government from obtaining
more time to prepare for trial. Cf. United States v. Gantt, 140
F.3d 249, 254 (D.C. Cir.) (holding that the Cuyler
requirements were not met where the attorney did not learn of
a potential conflict between two clients’ interests until after
the attorney had ceased representing the first client), cert.
denied, --U.S.--, 119 S. Ct. 361 (1998). Therefore, this
argument is without merit.
Fourth, Riggs claims that due to Cox’s representation of
Driskell’s ex-wife and his sharing office space with Driskell’s
and Napier’s lawyers, Cox performed insufficient cross-
examination of Driskell, Napier, and Barbara Herron
(Driskell’s girlfriend, to whom Riggs had sold marijuana). In
particular, Riggs states that Cox failed to cross-examine
Driskell on his testimony regarding a statement, allegedly
made by Riggs to Driskell, to the effect that Riggs lost

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