FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Ting Hong Oceanic Enterprises v Federated States of Micronesia,
7 FSM Intrm. 471 (App. 1996)

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

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

_________________________________________________

APPEAL CASE NO. P2-1995

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

OPINION

Argued: January 15, 1996
Decided: April 15, 1996

APPEARANCES:

For the Appellant:
John Hollinrake, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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

* * * *

HEADNOTES

Criminal Law and Procedure - Venue
All trials of criminal offenses should be held in the state in which the offense was committed. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 474 n.2 (App. 1996).

Constitutional Law - Due Process; Criminal Law and Procedure - Pleas
Default judgments are unknown in criminal law. Guilty pleas by a defendant require compliance with formalities designed to insure that the accused receives due process. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 474 n.3 (App. 1996).

Admiralty; Criminal Law and Procedure
Proceedings concerning the arrest or release of a vessel should take place in the civil action in which it is a defendant, not in a related criminal case. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 474 n.4, 475 n.5 (App. 1996).

Criminal Law and Procedure - Right to Confront Witnesses
Criminal conviction of a defendant who has failed to appear for trial violates the accused's constitutional right to confront witnesses against him, and other rights, such as due process and effective assistance of counsel, may also be implicated. But a defendant who appears at the beginning of trial and voluntarily absents himself before the trial's end waives any further right to be present. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 & n.7 (App. 1996).

Appeal and Certiorari - Standard of Review
Appellate courts may notice plain error where the error affects the substantial rights of the defendant. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 (App. 1996).

Criminal Law and Procedure
The criminal conviction of two defendants who never appeared for trial is plain error, and their trial court convictions must be vacated. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 (App. 1996).

Criminal Law and Procedure - Right to Counsel
The right of effective assistance of counsel applies equally to retained as well as appointed counsel. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 478 (App. 1996).

Criminal Law and Procedure - Right to Counsel
Criminal defendants charged with a serious crime have a constitutional right to effective assistance of counsel even if the defendant is a corporation with retained counsel. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 478 (App. 1996).

Criminal Law and Procedure - Right to Counsel
Defense counsel's performance must be both deficient and prejudicial to the defendant to be ineffective assistance. Under the first prong of the test, the proper standard for attorney performance is that of reasonably effective assistance, and under the second prong, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment, but in certain contexts prejudice is presumed. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 478 (App. 1996).

Criminal Law and Procedure - Right to Counsel
Because prejudice is presumed when counsel is burdened by an actual conflict of interest an attorney representing criminal codefendants with conflicting interests denies a defendant his constitutional right to effective assistance of counsel. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479 (App. 1996).

Criminal Law and Procedure - Right to Counsel
In order to prevail on an ineffective assistance of counsel claim in cases of joint representation, a criminal defendant who raised no objection at trial to the joint representation must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479 (App. 1996).

Criminal Law and Procedure - Right to Counsel
A criminal defendant who cannot show joint representation of conflicting interests can still prevail on an ineffective assistance claim if he can show deficient attorney performance resulting in actual prejudice. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479 (App. 1996).

Criminal Law and Procedure - Right to Counsel
To resolve an ineffective assistance of counsel claim a court must consider the entire record. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479 (App. 1996).

Criminal Law and Procedure - Right to Counsel
It is an uncommon case where joint representation of criminal defendants is proper because the potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to represent more than one codefendant. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479-80 (App. 1996).

Criminal Law and Procedure - Right to Counsel
Conflicting interests in the joint representation of criminal defendants might be discovered and avoided if an early hearing is conducted pursuant to FSM Criminal Rule 44(c). Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 480 n.9 (App. 1996).

Criminal Law and Procedure - Right to Counsel
In a case of actual conflict between jointly represented criminal codefendants a presumption of prejudice exists so that actual prejudice does not have to be shown and so that a harmless error inquiry is inappropriate. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 480 (App. 1996).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This appeal arises from the criminal conviction on four counts of Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) and its sentence of a $2.2 million fine. The issue we decide here is whether a defendant whose attorney also represents codefendants under the circumstances of this case had a conflict of interest that gave rise to ineffective assistance of counsel for Ting Hong. We conclude that it did. We vacate the convictions and remand the matter to the trial division.

I. Background

A. Arrest and Charges

On August 24, 1994, the fishing vessel Horng Yih Fwu No. 130 was arrested in the FSM Exclusive Economic Zone (EEZ) off Chuuk State at 06 22.1' north latitude, 149 08.4' east longitude. It was escorted to Pohnpei. On August 30, 1994, the government filed a criminal information against Cheng Chia-W, the captain and fishing master of the vessel, Horng Bao Yinn, the vessel's chief engineer, and Ting Hong, a party to the foreign fishing agreement under which the arrested vessel operated. The information charged each defendant with six counts: 1) fishing in the FSM EEZ without a valid and applicable fishing permit displayed in the wheelhouse of the vessel [required by 24 F.S.M.C. 404(2)(h)], 2) transportation and possession of fish taken in violation of law, 3) fishing gear not properly stowed so that it would not be readily available for use except in an area in which the vessel is authorized to fish, 4) failure to maintain and produce a daily catch report in English, 5) no radio on board capable of monitoring frequencies 2.182 KHz and 156.6 MHz [VHF channel 16], and 6) exceeding the authorized number of crew members. [$3 million minimum fine for each defendant.] The information was filed on Pohnpei. All defendants were represented by John Brackett.

B. Release Conditions for Vessel and Individual Defendants

The trial court's order provided for the individual defendants' release with their passports, that a default judgment would be entered against any defendant who failed to appear for trial, and for the vessel's release without posting cash bond, but on certain conditions, including that the defendants and the vessel would not leave the FSM EEZ, and that service upon defense counsel would constitute service directly upon the defendants themselves in both the criminal and related civil cases. The trial court later explained that

In an amended Order for release, dated October 21, 1994, all defendants agreed that, in exchange for the release of the Vessel in this case, Ting Hong would serve as a designated service agent for all defendants. The purpose of this designation was to ensure that the individual defendants were apprised of the status of the case and to guarantee their appearance at trial.
FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 208 n.2 (Pon. 1995). It also ordered that if these provisions were violated then the conditions would be vacated and the vessel's immediate arrest ordered.

C. Pretrial Conference

At a pretrial chambers conference on April 24, 1995, John Brackett's associate Jeanne M. Kent, admitted pro hac vice, informed the court that the two individual defendants (and the vessel) had left the FSM EEZ and could not then appear for trial, asked for a two to three month continuance to secure their presence, and stated that such a continuance would remedy the difficulties caused by John Brackett's departure from the FSM. The trial court was not impressed. It recited the terms of its October 21st order concerning violations of release conditions and service upon counsel constituting service made directly upon the defendants themselves, and then continued trial until May. Order at 2-3 (Apr. 27, 1995). Based upon its October 21st order, the court "advise[d] all of the defendants in this case to cooperate in this matter by insuring that [the] two individual defendants turn themselves and their vessel over to FSM authorities immediately." Id. at 3. On May 2, 1995, arrest warrants were issued for defendants Cheng Chia-W and Horng Bao Yinn and for the fishing vessel. The court was unhappy because it had ordered that

in exchange for the release of the Vessel in this case, Ting Hong would serve as a designated service agent for all defendants. The purpose of this designation was to ensure that the individual defendants were apprised of the status of the case and to guarantee their appearance at trial. Despite their agreement, defendant Ting Hong did not apprise the individual defendants of the progress of the case and they did not appear for trial.

Cheng Chia-W (II), 7 FSM Intrm. at 208 n.2.

D. Trial and Judgment of Conviction and Sentencing

Trial started May 17, 1995. The prosecution put on four witnesses. Two were marine surveillance officers. One testified about his stop and search of the vessel. The other testified as to its condition after it made port. The third was a Micronesian Maritime Authority tuna biologist. The fourth, Lola Wang, was Ting Hong's corporate representative, put on as an adverse witness to testify, in part, that in her opinion Ting Hong was legally responsible for the boats fishing under its permit. Transcript at 129-34. After the prosecution rested, Jeanne Kent moved for dismissal on double jeopardy grounds. This was denied from the bench. The defense then rested. The court made its findings orally at a hearing on May 19, 1995.

John Hollinrake then replaced Jeanne Kent as counsel for Ting Hong only. There was no substitution of counsel for the other defendants. Jeanne Kent, apparently abandoning them, left the country. The government submitted a sentencing brief. Ting Hong's reply brief argued that a conflict of interest existed between Ting Hong and the other defendants, that the fines were disproportionate to the offenses, and that mitigation and probation were appropriate. The court found that the defendants had engaged in fishing activities within the FSM EEZ that violated Title 24 of the FSM Code. Judgment of Conviction and Sentencing Order at 1 (June 19, 1995). The defendants were acquitted of Count Three (improper stowage of fishing gear), and convicted of the remaining four charges. Id. at 2. (The government had earlier amended the information to strike Count One.) The court then sentenced the defendants to a fine of $.6 million on Count Two, $.6 million on Count Four, $.5 million on Count Five, and $.5 million on Count Six. Id. at 3. Ting Hong appealed on June 27, 1995.

The court's Memorandum of Decision (July 27, 1995) levied the fines only against Ting Hong. The court expressed its concern with Ting Hong's "defiant attitude at sentencing," and Ting Hong's "unwillingness to accept responsibility for its unlawful conduct." Cheng Chia-W (II), 7 FSM Intrm. at 220. Then "[b]ased on . . . the evidence and testimony presented at trial, as well as Ting Hong's refusal to accept responsibility for its actions, the Court imposed a total fine of $2,200,000.00 on defendant Ting Hong." Id. This was determined to be "reflective of Ting Hong's criminal culpability with respect to those violations." Id.

II. Issues Raised on Appeal

Ting Hong claims that it received ineffective assistance of counsel in violation of the FSM Constitution because its counsel's representation of all the defendants was a conflict of interest, and that this conflict was not identified because the court failed to make the inquiry regarding joint representation required by FSM Criminal Rule 44(c). It also asserted that this ineffective assistance resulted in the admission of prejudicial and otherwise inadmissible opinion testimony by Lola Wang, Ting Hong's corporate representative. It raised other issues on appeal: that 24 F.S.M.C. 501(1)(a) and (c) are unconstitutionally vague, that the court improperly found that Ting Hong had a legal duty to insure the other defendants' compliance with Title 24, that the fines should have been apportioned or suspended and Ting Hong placed on probation, and that the fines levied were so excessive as to be unconstitutional. These issues were fully briefed and argued. We have studied them all, but because of our decision about ineffective assistance we do not reach any other issue.

III. Codefendants' Trial in Absentia

Before considering Ting Hong's contentions, we must address the status of its codefendants at the trial. Early in the trial the judge, when commenting on one of the prosecutor's questions, asked "Ting Hong or the other defendants?" Transcript at 34. Although the judge then stated "You have to make it more specific than what you have been doing up to now, to indicate a relationship or connection between that and the defendant who is on trial - defendant who is on trial today," id. at 34-35, the rest of the trial had a different tone. Defense counsel Kent, although she referred to Ting Hong in her opening statement, id. at 10, consistently referred to defendants, id. at 57-59, or clients, id. at 182, throughout the rest of the trial. In her closing she asked for fairness "to the parties, the parties that are here, and the parties that are not." Id. at 201. The prosecutor referred to "defendants" in his closing argument, id. at 186, and asked for a separate sentencing hearing because the defendants had raised the excessive fines issue, id. at 211.

The trial court convicted all three defendants. It found that "the defendants had engaged in fishing activities within the FSM Exclusive Economic Zone that were in violation of Title 24 of the FSM Code." Judgment of Conviction and Sentencing Order at 1 (June 19, 1995). The court found that the "defendants did 'knowingly'" possess illegally taken fish, and that the "[d]efendants did not maintain an English language catch report, did not maintain a proper working radio, and had 11 crew members on board the vessel." Id. at 1-2. The court therefore adjudged the defendants guilty. Id. at 2. The defendants were acquitted on Count Three. Id.

Additionally, the court's Memorandum of Decision stated that "[a]lthough the two individual defendants did not appear for trial, all of the defendants were represented by the same counsel, and each of the defendants entered a plea of not guilty." Cheng Chia-W (II), 7 FSM Intrm. at 208 (footnote omitted). It also stated that "[a]t trial, the Court found defendants guilty of three separate violations of 24 F.S.M.C. 501(1)(a) & (c) . . . [and] also found defendants guilty of violating section 501(1)(l) of Title 24 . . . [and] acquitted defendants on the count involving the improper stowage of fishing gear." Id. at 211. And the trial court stated that "throughout the liability phase of the trial, each of the defendants in this case were represented by the Law Office of John Brackett. . . . [But] the individual defendants have yet to be sentenced." Id. at 217 n.10. Because Ting Hong replaced its own counsel and "the individual defendants no longer had the benefit of counsel, sentencing proceeded only against defendant Ting Hong." Id. at 218.

From the above we can only conclude that the two individual defendants were actually tried and convicted in absentia. Criminal conviction of a defendant who has failed to appear for trial violates the FSM Constitution. It certainly violates the accused's right to confront witnesses against him. FSM Const. art. IV, § 6. See generally 3 Joseph G. Cook, Constitutional Rights of the Accused § 18:7 (1986) (discussing U.S. cases interpreting similar provision in U.S. Constitution). Other rights, such as due process and effective assistance of counsel, may also be implicated.

Although tried and convicted along with Ting Hong while being jointly represented by the same counsel, neither Cheng Chia-W nor Horng Bao Yinn were sentenced. Their convictions are thus not on appeal. The convictions of Cheng Chia-W and Horng Bao Yinn are, however, part of the record before us. Appellate courts may notice plain error where the error affects the substantial rights of the defendant. Jonah v. FSM, 5 FSM Intrm. 308, 314 (App. 1992); Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991) (error of constitutional dimension noted); see also FSM Crim. R. 52(b). We think that the criminal conviction of two defendants who never appeared for trial, and who may not have even known they were on trial, is plain error. We therefore notice the plain error of the two individuals' criminal convictions, and instruct the trial court to vacate the judgments of conviction as to those two defendants.

IV. Ineffective Assistance of Counsel

A. Ting Hong's Right to Effective Counsel

The appellant contends that Ting Hong's convictions should be reversed due to ineffective assistance of counsel. The government contends that since Ting Hong is a corporation, it is not entitled to effective assistance of counsel. The Constitution states that "[t]he defendant in a criminal case has a right . . . to have counsel for his defense." FSM Const. art. IV, § 6. The plain language of the Constitution grants this right to defendants in criminal cases. It does not suggest that the right is limited only to certain defendants.

The government, however, contends that since a corporation cannot be deprived of its liberty - imprisoned - it is not entitled to effective representation of counsel. For this proposition it relies on a committee report which states that:

The intent of this provision is to require that in all crimes of a serious nature, the accused shall be afforded the opportunity of effective representation by counsel. . . .

"Serious crimes" include those crimes fixing a penalty involving the deprivation of liberty. "Effective representation" means not only the assistance of competent and loyal counsel, but the presence of legal counsel both in the preparation for, and conduct of, the trial.

SCREP No. 23, II J. of Micro. Con. Con. 793, 803. The language of the report, however, does not limit the definition of "serious crimes" to only those crimes involving a deprivation of liberty. We do not see how a crime with a minimum sentence of $.5 million could be considered anything other than a serious crime. Nor do we understand why a defendant who, since it is a corporation which can only appear through counsel, would not be entitled to be effectively represented by that counsel when charged with a serious crime.

The government also cites various U.S. cases for support, but they are not on point. The only one involving a corporation, Coleman Am. Moving Serv., Inc. v. Weinberger, 716 F. Supp. 1405 (M.D. Ala. 1989), did not involve a criminal prosecution. It only involved the corporation's temporary suspension from the list of those allowed to do business with the government. The other U.S. cases involve right of indigents to appointed counsel. Ting Hong is not seeking a right to appointed counsel. It had its own retained counsel. The right of effective assistance of counsel applies equally to retained as well as appointed counsel. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333, 344 (1980); United States ex rel. Hart v. Davenport, 478 F.2d 203, 211 (3d Cir. 1973).

We therefore hold that a defendant charged with a serious crime is constitutionally entitled to effective assistance of counsel even if that defendant is a corporation. So that there may be no misunderstanding, we do not hold that in such situations a corporation is entitled to appointed counsel. That question was not raised, and we do not reach it. We only hold that the corporation is entitled to effective assistance of its retained counsel.

B. Standard for an Ineffective Assistance of Counsel Claim

The parties agree on the standard for review of a claim of ineffective assistance of counsel. They both rely on the two-part test found in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) that the defendant must show both that counsel's performance was deficient and that this deficiency was so serious that the defendant was prejudiced to the extent that he was deprived "of a fair trial, a trial whose result is reliable." We agree that the Strickland test expresses the appropriate standard - defense counsel's performance must be both deficient and prejudicial to the defendant to be ineffective assistance. Under the first prong of that test, "the proper standard for attorney performance is that of reasonably effective assistance." Id.

Under the second prong, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Thus "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. In certain . . . contexts, prejudice is presumed." Id. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696 (government denial of, or interference with, counsel's assistance presumed prejudicial).

One type of actual ineffectiveness claim warrants a . . . limited[] presumption of prejudice. . . . [P]rejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.

Id. (citations omitted). Thus an attorney representing codefendants with conflicting interests denies a defendant his constitutional right to effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 75-76, 62 S. Ct. 457, 467-68, 86 L. Ed. 680, 702 (1942) ("The right . . . is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.") (defendant objected at trial to the joint representation). In order to prevail on an ineffective assistance of counsel claim in cases of joint representation, "a defendant who raised no objection at trial [to the joint representation] must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718, 64 L. Ed. 2d at 346-47 quoted in Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696.

A defendant who cannot show joint representation of conflicting interests can still prevail on an ineffective assistance claim if he can show deficient attorney performance resulting in actual prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 ("Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice."). This test is in harmony with our previous decision in Hartman v. FSM, 5 FSM Intrm. 224, 233-34 (App. 1991) (short preparation time for attorney not ineffective assistance of counsel where, looking at the whole record, attorney's performance competent and no prejudice shown), which did not involve joint representation.

Thus, if Ting Hong can show both that its counsel's performance was deficient and that there was an actual conflict of interest that adversely affected its lawyer's performance it will prevail on its ineffective assistance claim because prejudice is presumed in actual conflict cases. If it cannot show an actual conflict of interest, Ting Hong can still prevail on its ineffective assistance claim if it can show that both that its lawyers' performance was deficient and that it was actually prejudiced.

C. Ting Hong Received Ineffective Assistance of Counsel

To resolve this claim we must consider the entire record. We conclude that defense counsel's representation was deficient in some respects. We base this conclusion upon the overall performance, including, in part, failure to move for exclusion of witnesses at trial, failure to object to arguably inadmissible opinion testimony of Ting Hong's trial representative, failure to argue the effect of 24 F.S.M.C. 116, and failure to argue that the presence on board the vessel of an earlier expired FSM fishing permit and incomplete and blank catch log forms indicated that the captain had been made aware of what was expected of him under Ting Hong's foreign fishing agreement. This satisfies the first prong of the test.

The government contends that Ting Hong and the other defendants do not have conflicting interests and that joint representation and presentation of a unified defense was thus a reasonable trial tactic. The government argues, relying on United States v. Carter, 721 F.2d 1514, 1537 (11th Cir. 1984), that any alleged conflict is not significant unless a plausible alternative defense exists. The government contends that none of Ting Hong's alternatives are plausible.

It is an uncommon case where joint representation of criminal defendants is proper. See, e.g., MRPC 1.7 cmt. ("The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant."). This is not such a case. We conclude that an actual conflict of interest existed in defense counsel's joint representation of Ting Hong and its codefendants. We base this conclusion in part on defense counsel's success in obtaining the release of both the vessel and the two individual defendants without any cash bond or other security. While this was a very favorable result for the individual defendants, it conflicted with Ting Hong's interests. We also base this conclusion on defense counsel's failure to pursue defenses that could place the criminal culpability on others. We make no holding on the ultimate success of such a course. We only note that it was not taken, and that it was a plausible course.

Because we conclude that an actual conflict existed there is a presumption of prejudice. When this presumption is present a defendant need only show that the conflict adversely affected his lawyer's performance. Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696 (citing Cuyler, 446 U.S. at 348, 350, 100 S. Ct. at 1718-19, 64 L. Ed. 2d at 346-48). We conclude that defense counsel's performance was adversely affected. We base this conclusion in part upon failure to object to arguably inadmissible opinion testimony of Ting Hong's trial representative. In Glasser, one of the two examples of the conflict adversely affecting the defense lawyer's performance was counsel's failure to resist the presentation of arguably inadmissible testimony. Glasser, 315 U.S. at 72-75, 62 S. Ct. at 466-67, 86 L. Ed. at 700-02. We also base this conclusion upon counsel's failure to argue that the presence on board the vessel of an expired FSM fishing permit and incomplete catch log forms indicated that the captain had previously been made aware of what was expected of him, and upon counsel's failure to argue the effect of 24 F.S.M.C. 116 might be to shift liability for Count Four to the vessel's captain or lessen Ting Hong's degree of criminal culpability. We do not hold that that would necessarily be the result. We only note that counsel refrained from making any such argument, and that it was a plausible argument. These lapses are sufficient to show an adverse affect on the attorney's performance. "[I]n a case of joint representation of conflicting interests the evil-it bears repeating-is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1182, 55 L. Ed. 2d 426, 438 (1978) (emphasis in original). In light of the presumption of prejudice in situations of actual conflict that is enough to satisfy the second prong of the test. Actual prejudice does not have to be shown, Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719, 64 L. Ed. 2d at 347, and a harmless error inquiry is inappropriate, Holloway, 435 U.S. at 490-91, 98 S. Ct. at 1182, 55 L. Ed. 2d at 438.

Nevertheless Ting Hong asserts that it can show actual prejudice. It points to the court's enhancement of its sentence by $100,000.00 (20% of the minimum fine) on two different counts as actual prejudice that resulted from the conflict. It contends that the enhanced fines stemmed, at least in part, from Ting Hong's "guarantee" that the other codefendants would appear for trial. Be that as it may, a showing of actual prejudice is not necessary when there is joint representation of actual conflicting interests.

We therefore must order that the Ting Hong's conviction be reversed on the ground of ineffective assistance of counsel and that its sentence be vacated.

V. Conclusion

Criminal defendant Ting Hong had a right to effective assistance of counsel. It did not receive such assistance. Ting Hong's conviction and sentence is therefore vacated. The convictions of Cheng Chia-W and Horng Bao Yinn are also vacated as a matter of plain error. This matter is hereby remanded to the trial division for further proceedings consistent with this opinion