172 F. 3d 237 - United States v. Jiang a

On March 19, 1998, we remanded this case to the district court for supplementation of the record regarding defense counsel's possible conflict of interest at the trial of defendant-appellant, Peter A. Mahiques. See United States v. Jiang, 140 F.3d 124, 129 (2d Cir.1998). We also held that, upon notice by either party that the district court had supplemented the record, the appeal could be reinstated without need for a new notice of appeal. On December 7, 1998, the district court issued a written opinion finding that trial counsel suffered from no potential or actual conflict of interest. See United States v. Mahiques, 29 F.Supp.2d 171, 174 (W.D.N.Y.1998). By letter dated December 28, 1998, Mahiques reinstated his appeal. We now affirm.

Before KEARSE, WALKER, Circuit Judges, WEINSTEIN, District Judge.*

In our initial decision in this case, we noted that

even were the trial court to find that Jiang's attorney might have had an interest in keeping him from testifying at [Mahiques's] trial, this would arguably present a conflict of interest only if appellant, represented by a conflict-free attorney, might have found it useful for Jiang to testify.

Jiang, 140 F.3d at 127-28. On remand, the district court held that "[A] thorough review of the record reveals that Jiang could not serve as a 'useful' witness to any defense attorney, regardless of whether the attorney was or was not laboring under a conflict of interest." Mahiques, 29 F.Supp.2d at 173.

Given the district court's supplementation of the record, we now affirm the district court's finding that no conflict of interest existed.

Accordingly, the judgment of the district court is AFFIRMED.