Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided June 1, 1989.
D.Nev.
AFFIRMED.
Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding.
Before HUG, SCHROEDER and CANBY, Circuit Judges.
Defendant Zherebchezsky appeals his convictions on two counts of wire fraud in violation of 18 U.S.C. § 1343. Zherebchezsky claims that his sixth amendment right to counsel was violated by a conflict of interest on the part of an attorney upon whom Zherebchezsky allegedly relied. He also claims insufficiency of evidence to convict. We affirm.
Zherebchezsky's sixth amendment claim is based upon his alleged reliance on the advice of attorney Grunewald, who was the lawyer for Zherebchezsky's co-defendant but who had during the arraignment phase represented Zherebchezsky. At the relevant time and all throughout trial, Zherebchezsky was represented by separate counsel. He claims that he nevertheless relied upon Grunewald's advice to reject a plea bargain offer by the Government and that Gruenwald's representation of the co-defendant created a conflict of interest vitiating the conviction. There is no suggestion that Zherebchezsky's independent counsel had any conflict of interest.
The sixth amendment guarantees a criminal defendant the right to assistance of counsel unhindered by conflicting interests. United States v. Crespo de Llano, 830 F.2d 1532, 1538 (9th Cir.), amended, 838 F.2d 1006 (9th Cir.1987). This applies to pretrial plea negotiations as well as to the trial phase. United States v. Allen, 831 F.2d 1487, 1495 (9th Cir.1987), cert. denied, 108 S.Ct. 2907 (1988). Zherebchezsky's independent lawyer actively counseled him to accept the plea bargain agreement; Zherebchezsky simply chose not to heed this advice. The government did not deprive Zherebchezsky of effective counsel. As in Allen, Zherebchezsky "has already received the only meaningful remedy to which he is entitled--effective assistance from an independent counsel...." Id. at 1503. His sixth amendment claim must fail.
Zherebchezsky also challenges the sufficiency of the evidence. He argues that the evidence failed to show the requisite intent to violate the statute, because he always intended to pay the money back. This argument is without merit. In United States v. Thomas, 835 F.2d 219, 221 (9th Cir.1987), cert. denied, 108 S.Ct. 1741 (1988), we rejected the argument that readiness to make restitution on a bad check was a defense to fraudulent transportation of securities, reasoning that "[t]he fraud was fully accomplished when the cashier's check was taken, and the check was then transported, with Thomas' assistance, in interstate commerce." Similarly in this case, the defendant completed the fraud by causing the casinos to receive and rely on false information concerning his financial condition transmitted over the telephone. Zherebchezsky would still have violated the wire fraud statute had he actually won and paid the money back to the casinos. See United States v. Gross, 416 F.2d 1205, 1209 (8th Cir.1969), cert. denied, 397 U.S. 1013 (1970). The evidence was clearly sufficient to allow the jury to convict Zherebchezsky.
AFFIRMED.