United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 8, 2022 No. 19-20073 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Ann Nwoko Sheperd,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CR-258-2

Before Smith, Willett, and Duncan, Circuit Judges. Don R. Willett, Circuit Judge: “The Sixth Amendment is the heartland of constitutional criminal procedure.” 1 One of four amendments in the Bill of Rights that guarantees basic protections to the criminally accused, 2 the Sixth Amendment enshrines a cluster of rights to ensure the fairness, accuracy, and legitimacy of “all

1 Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 641 (1996). 2 See U.S. Const. amends. IV, V, VI, VIII. Case: 19-20073 Document: 00516229518 Page: 2 Date Filed: 03/08/2022

No. 19-20073

criminal prosecutions.” 3 This case concerns the Amendment’s final clause: “Assistance of Counsel.” But “[t]his last right is a big one,” as the right to counsel, perhaps the central feature of our adversarial system, helps make real the Constitution’s other criminal procedure promises. 4 Ann Sheperd, the owner of a home-health agency, lawyered up after being indicted for Medicare fraud. But there was a tiny problem: Unbeknownst to Sheperd, her pretrial lawyer—who represented her until days before trial—also represented one of the Government’s star witnesses. Oops. Sheperd retained new counsel, was convicted (and sentenced to 30 years), and now appeals on various grounds related to her attorney’s conflict of interest. We agree with Sheperd that “Assistance of Counsel” necessarily means effective assistance, and effective assistance demands conflict-free representation. This is certainly no less true during the pretrial phase, 5 particularly today, when roughly 97.8 percent of federal criminal convictions are obtained not through a constitutionally prescribed jury trial but through plea bargaining. 6 For the reasons below, we REMAND for an evidentiary hearing on whether Sheperd’s lawyer’s conflict of interest adversely affected his representation, but reject Sheperd’s other grounds for reversal.

3 Id. amend. VI. 4 Amar, supra note 1, at 705. 5 See Anaya v. Lumpkin, 976 F.3d 545, 550 (5th Cir. 2020) (“The Sixth Amendment right to counsel extends to the plea-bargaining process, where defendants are ‘entitled to the effective assistance of competent counsel.’” (quoting Lafler v. Cooper, 566 U.S. 156, 162 (2012))). 6 U.S. Sentencing Comm’n, 2020 Sourcebook of Federal Sentencing Statistics 56 (2020), https://www.ussc.gov/sites/default/files/pdf/ research-and-publications/annual-reports-and-sourcebooks/2020/2020-Annual-Report- and-Sourcebook.pdf.