Fifth Circuit Orders Hearing Into Whether Criminal Defendant Was Denied Sixth Amendment Rights When Her Lawyer Also Represented “Government’s Star Witness” Against Her

In United States v. Sheperd, No. 19-20073 (5th Cir. Mar. 8, 2022), the Fifth Circuit remands a case for a hearing about whether the defendant’s Sixth Amendment rights were violated when “her pretrial lawyer—who represented her until days before trial—also represented one of the Government’s star witnesses.”

“Ann Sheperd owned and operated a home-health agency. In June 2016, a grand jury indicted her (and several others) with conspiracy to commit healthcare fraud. Sheperd retained counsel. The district court set trial for August 2016. A month later, Sheperd replaced her counsel . . . . [She] replaced her counsel again in February 2018 with an attorney named Bassey Akpaffiong.”

Akpaffiong also represented a client named Okechukwu Okpara. “Akpaffiong had helped Okpara secure a plea deal related to healthcare fraud in a different district court almost a year before. So why did Okpara need Akpaffiong at the meeting? Because Okpara was Sheperd’s friend and business associate—a relationship the Government wanted to exploit by calling Okpara as a witness against Sheperd.”

“If representing both Sheperd and Okpara at the same time sounds zany to you, then you wouldn’t be alone. The Government thought it sounded zany, too. In fact, it even pointed out to Akpaffiong that he had an obvious conflict. Akpaffiong replied that he hadn’t noticed.” Okpara negotiated a reduced sentence in exchange for providing the Government with “substantial assistance in the investigation or prosecution of another person who has committed an offense.”

Akpaffiong continued to represent Sheperd right up to month of trial without revealing the conflict. Finally, he “approached a former state Assistant Attorney General with experience prosecuting healthcare-fraud cases—Oyesanmi Alonge—about taking over Sheperd’s defense. Akpaffiong had worked with Alonge before, and Alonge ‘got involved,’ in his words, on August 14.”

Only on August 20, 2016 did Akpaffiong disclose the conflict to Sheperd. Under protest, Sheperd retained Alonge. The judge denied a continuance and the trial commenced on September 7. Okpara’s testimony was excluded. Sheperd was convicted and sentenced to 30 years in prison.

The Fifth Circuit remands for a hearing on whether the attorney conflict deprived Sheperd of her Sixth Amendment rights. The conflict was conceded by the Government. “Still, that’s only the first half of Sheperd’s burden. She still must prove that Akpaffiong’s conflict adversely affected his performance. And on that question, on this record, we can’t tell one way or the other.”

“[E]ven if we knew with precision what Akpaffiong did or did not do for Sheperd, this record sheds little light on his motives for doing or not doing it. If Akpaffiong’s motives arose from a mind fettered with concern for Okpara, then Sheperd might be correct that her right to counsel was violated . . . . Though the district court held a midtrial hearing on Akpaffiong’s conflict, its limited scope left the record too underdeveloped for us to meaningfully review troubling questions about Akpaffiong’s representation.”