                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 16 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50126

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00486-R-2

  v.
                                                 MEMORANDUM*
HUNG VAN TIEU,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                        Argued and Submitted July 9, 2013
                              Pasadena, California

Before: BENAVIDES,** BYBEE, and NGUYEN, Circuit Judges.

       A jury found Hung Van Tieu guilty of one count of conspiracy to commit

access-device fraud, in violation of 18 U.S.C. § 1029(b)(2); two counts of access-

device fraud, in violation of 18 U.S.C. §§ 1029(a)(2) and 2(a); and one count of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2(a). We

have jurisdiction over Tieu’s appeal pursuant to 28 U.S.C. § 1291. We vacate

Tieu’s convictions and remand for a new trial.

      During the trial, on direct examination, Tieu’s attorney questioned him

regarding some of his actions that were not charged in the indictment. The district

judge twice admonished the attorney “not to lead the witness” and once not to

repeat Tieu’s testimony. Despite these admonishments, Tieu’s attorney continued

to ask leading questions and repeat Tieu’s testimony. Immediately thereafter, the

district judge interrupted the attorney to hold a sidebar, during which the judge told

the attorney: “I am just advising you on your questions and your statements to the

witness before the questions. You are now abetting in perjury.”1 Tieu’s attorney

ceased his direct examination of Tieu and unsuccessfully moved for a mistrial.

The attorney subsequently suggested that the judge had created a conflict of

interest between the attorney’s personal interest and his interest in representing his

client, and twice more unsuccessfully moved for a mistrial. The judge instructed




      1
        Unbeknownst to counsel, the judge’s admonishment apparently stemmed
from a misrecollection or misunderstanding of Tieu’s testimony, during which the
judge erroneously concluded that Tieu had admitted to certain facts pertaining to
the charges.

                                           2
the attorney that he had an obligation to continue his representation of Tieu, and

the attorney did so, including conducting a redirect examination of Tieu.

      Tieu argues on appeal that the judge’s “perjury” comment created a conflict

of interest for his attorney that adversely affected the attorney’s performance,

violating Tieu’s Sixth Amendment rights. We agree.

      “In order to prevail on an ineffective assistance of counsel claim based on

conflict of interest, a defendant must show that ‘an actual conflict of interest

adversely affected his lawyer’s performance.’” United States v. Miskinis, 966 F.2d

1263, 1268 (9th Cir. 1992) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980));

see also Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988) (“Although Cuyler

involved a conflict of interest between clients, the presumption of prejudice

extends to a conflict between a client and his lawyer’s personal interest.”). “To

establish that a conflict of interest adversely affected counsel’s performance, the

defendant need only show that some effect on counsel’s handling of particular

aspects of the trial was likely.” Miskinis, 966 F.2d at 1268 (internal quotation

marks omitted). “Although a defendant who raises an ineffective assistance of

counsel claim is ordinarily required to show prejudice, prejudice is presumed if the

alleged violation is based on an actual conflict of interest.” Id. (internal citations

omitted).


                                            3
       Here, the judge told Tieu’s attorney–in no uncertain terms–that he was about

to violate the law by questioning his client regarding certain conduct. Once the

judge made this comment, Tieu’s attorney was conflicted between his interest in

avoiding his own possible exposure to criminal liability on the one hand, and his

interest in continuing to deploy his planned trial strategy on Tieu’s behalf, on the

other. Therefore, there was an actual conflict of interest.

       Further, the conflict likely had an adverse effect on the attorney’s

representation of Tieu. Tieu need only show that “some effect on counsel’s

handling of particular aspects of the trial was likely.” Id. (internal quotation marks

omitted). Here, Tieu’s attorney completely halted direct examination of Tieu when

the judge made the unwarranted “perjury” comment. That Tieu’s attorney

continued to represent Tieu for the remainder of the trial, even conducting a

redirect examination of Tieu, does not undermine the conclusion that the direct

examination, at the very least, was adversely affected by the conflict.

       Tieu’s convictions are thus VACATED, and this matter is REMANDED for

a new trial.2



       2
         Because we vacate Tieu’s convictions and remand for a new trial on the
basis of his claim regarding the “perjury” comment, we need not consider his claim
that the district court abused its discretion by denying Tieu’s pre-trial request for
substitution of counsel.

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