THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ting Hong Oceanic Enterprises v. FSM ,
7 FSM Intrm. 481 (App. 1996)

[7 FSM Intrm. 481]

TING HONG OCEANIC
ENTERPRISES CO., LTD.,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P2-1995

ORDER

Petition Submitted:  April 29, 1996
Decided:  May 13, 1996

BEFORE:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
     Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*

     *Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCE:
For the Petitioner:     Teresa K. Zintgraff, Esq.
                                    Assistant Attorney General
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Rehearing
     Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 482 (App. 1996).

Criminal Law and Procedure ) Right to Counsel
     There must first be a finding of a valid waiver to any conflict of interest from the jointly represented codefendants before the question of whether counsel's trial tactics were reasoned becomes

[7 FSM Intrm. 482]

proper.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 483 (App. 1996).

Criminal Law and Procedure ) Right to Counsel
     A court must indulge in every reasonable presumption against the waiver of the conflict of an attorney jointly representing codefendants.  Such a waiver is not to be lightly inferred)it must be shown to have been knowingly, voluntarily and intelligently made.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 483 (App. 1996).

Criminal Law and Procedure ) Right to Counsel
     Reversal of a conviction is warranted where there has been no inquiry into waiver of any conflict of counsel jointly representing codefendants, no hint of a waiver appears on the record, and an actual conflict existed.  A new trial is then proper.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 483 (App. 1996).

Criminal Law and Procedure ) Right to Counsel
     The right to waive an attorney's conflict of interest is not absolute.  There are times when a court should not allow an otherwise valid waiver by a jointly represented codefendant.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 484 (App. 1996).

Criminal Law and Procedure ) Right to Counsel
     While an evidentiary hearing on remands may be necessary in many, or even most, ineffective assistance of counsel cases, it may not be needed when counsel's performance was deficient, and an actual conflict of interest existed which adversely affected that performance.  In some such cases the conviction may be reversed, and the government may proceed with a new trial.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 484 (App. 1996).

Appeal and Certiorari ) Rehearing; Judgments
     Because dicta does not create a precedent and is not binding, no rehearing can be granted on dicta in an opinion.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 484 (App. 1996).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The government has filed a petition for rehearing.  An appellate court may grant a petition for rehearing if it has overlooked or misapprehended points of law or fact.  Nena v. Kosrae (II), 6 FSM Intrm. 437, 438 (App. 1994).  Ordinarily, such petitions are summarily denied.  Id.  The government's petition seeks a "clarification" from us that would direct the trial court to hold an evidentiary hearing on whether Ting Hong may have knowingly waived its counsel's "alleged" or "potential conflict of interest," and it seeks the deletion of footnote two from our opinion.  The petition is denied, but because some clarification may be helpful, our reasons follow.

I.  Evidentiary Hearing
     The government contends that an evidentiary hearing must be held "to determine whether there was a waiver of the conflict, and/or whether trial counsel's conduct was the result of reasoned trial tactics."  Petition at 3 (Apr. 29, 1996).  The government cites several cases that hold that ineffective assistance of counsel claims can be rejected without an evidentiary hearing when the record shows the claim to be meritless.  They are inapplicable because we concluded that the record revealed that Ting

[7 FSM Intrm. 483]

Hong's claim had merit.

     Citing additional authority, the government further contends that a trial court evidentiary hearing is necessary in cases of potential conflict.  We, however, concluded that Ting Hong's counsel had an actual, not a "potential" or "alleged," conflict of interest.  Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 480 (App. 1996).  There was ample evidence of an actual conflict in the record.  See id. The government contends, and cites a number of cases in support, that a conflict claim cannot be determined on appeal unless there was first an opportunity before a trial court to develop evidence, including an inquiry into counsel's conversations with the defendant, on whether there was a waiver or whether counsel's conduct was the result of reasoned trial tactics.  However, we conclude that there must first be a finding of a valid waiver from the jointly represented codefendants before the question of whether counsel's trial tactics were reasoned becomes proper.

     The question of John Brackett's multiple representation of criminal defendants was raised at the trial level by Ting Hong's current counsel in its brief submitted prior to sentencing.  Ting Hong's Sentencing Memorandum at 1-2 (June 5, 1995). This was the first point at which Ting Hong's new counsel could have raised the issue.  It was raised again at the sentencing hearing.  Transcript at 10 (June 5, 1995).  The trial court, however, did not address it.

     Moreover, no hint of a waiver appears in the record.  A court must "indulge [in] every reasonable presumption against the waiver [of the conflict]."  Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 465, 86 L. Ed. 680, 699 (1942). "[S]uch a waiver is not to be lightly inferred)it must be shown to have been knowingly, voluntarily and intelligently made."  Baker v. Wainwright, 422 F.2d 145, 149 (5th Cir.), cert. denied, 399 U.S. 927 (1970).  No inquiry into the possibility of conflict was ever made.  No Criminal Rule 44(c) hearing, at which a waiver of the conflict might have been put on the record, was ever conducted.  "[A] trial court's failure to advise personally jointly represented defendants in accordance with Rule 44(c), without more, does not mandate reversal of those defendants' convictions. Reversal is warranted only if a defendant is able to demonstrate the denial of a . . . right [to effective assistance of counsel] that the Rule was designed to protect." United States v. Crespo de Llano, 838 F.2d 1006, 1013 (9th Cir. 1988).  In this case Ting Hong did demonstrate a denial of the right that Rule 44(c) was designed to protect.  Reversal was thus warranted.  Moreover, "[t]he obligation placed upon the court by rule 44(c) is a continuing one, and thus in a particular case further inquiry may be necessary on a later occasion because of new developments suggesting a potential conflict of interest."  Notes of Advisory Committee on 1979 amendments to Rules, U.S. Fed. R. Crim. P.   No initial or further inquiry was ever held in this case.

     Based on defense counsel's conflict in representing codefendants, some appellate courts have reversed criminal convictions and remanded for a new trial without the need for an evidentiary hearing.  See, e.g., United States v. Alvarez, 580 F.2d 1251, 1260 (5th Cir. 1978) (actual conflict required reversal of conviction); United States v. Donahue, 560 F.2d 1039, 1044-45 (1st Cir. 1977) (representation of codefendants by law partners presenting unified defense where alternative strategy possible required new trial); United States v. Carrigan, 543 F.2d 1053, 1056-57 (2d Cir. 1976) (conflict and prejudice required reversal and new trial); Gravitt v. United States, 523 F.2d 1211, 1217-20 (5th Cir. 1975) (counsel representing codefendants with conflicting interests required reversal, new trial ordered if trial court did not dismiss for lack of speedy trial); United States v. Truglie, 493 F.2d 574, 579-81 (4th Cir. 1974) (lack of inquiry into joint representation, reversed and remanded for new plea); United States v. DeBerry, 487 F.2d 448, 452-54 (2d Cir. 1973) (same counsel jointly represented codefendants, reversed, remanded for new trial); Virgin Islands v. John, 447 F.2d 69, 74-75 (3d Cir. 1971) (counsel's joint representation denied codefendants' right to untrammeled and unimpaired assistance of counsel; conviction reversed, remanded for new trial); United States v. Gougis, 374 F.2d 758, 761-62 (7th Cir. 1967) (ineffective assistance because counsel represented codefendants,

[7 FSM Intrm. 484]

reversal, new trial); Campbell v. United States, 352 F.2d 359, 361 (D.C. Cir. 1965) (new trial ordered for codefendant prejudiced when no trial court inquiry into informed consent to joint representation).

     The right to waive a conflict is not absolute.  There are times when a court should not allow an otherwise valid waiver.  Wheat v. United States, 486 U.S. 153, 162-64, 108 S. Ct. 1692, 1698-1700, 100 L. Ed. 2d 140, 150-52 (1988) (where actual conflict exists a court may require separate representation despite waivers from all affected codefendants and defendant's right to counsel of his choice); Abraham v. United States, 549 F.2d 236, 239 (2d Cir.) ("defendants are not entitled to joint representation as a matter of right"), cert. denied, 429 U.S. 498 (1977).  This may be such a case.

     We note in passing the impracticality of any such inquiry into Ting Hong's conversations with counsel.  John Brackett, the defendants' original counsel, passed away before trial.  Two of the three codefendants are no longer present in the jurisdiction.  Mr. Brackett's associate, Jeanne Kent, arrived in the country after the case had begun.  She later took over the case, in the state in which she found it, from an ailing John Brackett, and handled the trial.  She has also since left the country.  An inquiry under such circumstances would not be productive.

     Had we concluded that an evidentiary hearing was necessary on remand we would not have reversed Ting Hong's conviction and sentence because an informed, knowing, and intelligent waiver might have been found.  We did not contemplate such a hearing on remand.

     While an evidentiary hearing such as the one the government requests may be necessary in many, or even most, ineffective assistance of counsel cases, it is not needed in this particular case, in which counsel's performance was deficient, and an actual conflict existed which adversely affected that performance.  Ting Hong's conviction was reversed.  The government may proceed with a new trial.

II.  Footnote Two
     The government's petition also seeks the omission of footnote two.  The government correctly identifies the footnote as obiter dicta although it has some bearing on a determination of defense counsel's performance.  As such it does not violate the principle of Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986) that a question not raised at the trial level should not be considered on appeal.  No issue is decided by this dicta.  No precedent is created.  Obiter dictum is

     [a] remark made, or opinion expressed, by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument.  Such are not binding as precedent.

Black's Law Dictionary 967 (5th ed. 1979).  A "court may reject, explain, limit, or follow statements in prior opinions that" are dicta.  B.E. Witkin, Manual on Appellate Court Opinions 75, at 126 (1977).  Dicta is often merely offered as future guidance and food for thought and to point out what may have been overlooked.  Thus, dicta, judiciously presented, has a proper place in judicial opinions.

     [O]pinions often do escape from the strict confines of the controlling issues, and, indeed, it is hard to find a really important opinion that does not.  The disdain for dicta is a myth:  The most respected judges indulge in it, for one purpose or another; and the line between necessary background statements of principle and unnecessary dicta is not easy to draw.

Id. 86, at 156.  No point of law is overlooked or misapprehended.  Therefore no rehearing can be granted.

[7 FSM Intrm. 485]

III.  Mandate and Letter of Credit
     On April 24th Ting Hong filed its Motion for Immediate Issuance of Mandate, based on the high daily expense of the security supporting its letter of credit.  The motion asks that we direct the Trial Division to release the letter of credit, since Ting Hong has prevailed on this appeal.  In its filed response, the government did not oppose the prompt issuance of the mandate after our ruling on its petition for rehearing, but opposed Ting Hong's request for directions to the Trial Division. We accordingly grant Ting Hong's request for the immediate issuance of the mandate. We conclude that the disposition of the letter of credit is a matter properly decided by the trial division, and thus make no direction as to it.

IV.  Conclusion
     The petition for rehearing is denied.  The mandate shall issue immediately.  An evidentiary hearing of the type sought by the government in this case is not a proceeding consistent with our opinion.

*    *    *    *
                                                                                                                                                                                                                                                                                                           
ZqRiB{>;;HIŵ]]]]]]]]]]]]yyAA^^}hgBBGGCCNPŵ^88^88^88^88^88^88]]ggrb[`::Aaaaaooŵ^88^88^88^88^88^88|zpnyvT))99Cvvkkŵ^88^88^88^88^88^88yy]]]]]]]]yyŵ^88^88^88^88^88^88yy^88^88^88^88yyŵ^88^88^88^88^88^88yy^88^88^88^88yyʹʹʹʹΥΥΥyy^88^88^88^88yyŵ^88^88^88^88^88^88yy