U.S. v. ROSS, 442 Fed. Appx. 290 (9th Cir. 2011)
Defendants appealed a decision of the United States District Court for the District of Hawaii, which convicted them of conspiracy to defraud the United States, 18 U.S.C. 371, and separate counts of income tax evasion, 26 U.S.C. 7201.
Defendants argued that the district court erred in denying their motion for a new trial without holding an evidentiary hearing on the question of whether one defendant's trial counsel, whom defendants had retained to represent them before the IRS on civil tax matters, had an actual conflict that adversely affected his performance at trial.
The court held that the record before the district court was not sufficient to establish the precise nature and timing of any tax advice the attorney gave defendants, and the district court was not obliged to conduct an evidentiary hearing to develop the record on that point. Such evidence would have been material as to whether the attorney rendered ineffective assistance of counsel and not as to whether defendants were guilty of willfully conspiring to defraud the government.
A collateral attack pursuant to 28 U.S.C. § 2255 represented an appropriate procedural device to challenge the effectiveness of the attorney's representation and also provided an adequate remedy for defendants' conflict of interest claim.
The court affirmed the convictions.
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