United States of America v. Robert Mason Elliott

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1148
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT M ASON ELLIOTT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00152 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED M AY 16, 2024 — DECIDED A UGUST 5, 2024
____________________
Before EASTERBROOK, R IPPLE, and JACKSON -A KIWUMI , Cir-
cuit Judges.
R IPPLE, Circuit Judge. Faced with more than a dozen federal
charges relating to his possession of firearms, sexual exploita-
tion of a minor, and plot to murder that minor and her
mother, Robert Mason Elliott retained Attorney Brandon
Sample to represent him. More than a year into his represen-
tation of Mr. Elliott, Sample filed a motion to withdraw. He
had discovered a controlled substance concealed in

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2 No. 23-1148
documents that he had been asked to deliver to Mr. Elliott.
Sample informed the court of the discovery, but neither he
nor the court told Mr. Elliott. Unaware of why Sample sought
to withdraw, Mr. Elliott objected to his attorney’s motion. Em-
phasizing Mr. Elliott’s right to counsel of his choice, the dis-
trict court denied Sample’s motion. Ten months later, Mr. El-
liott, still represented by Sample, reached a plea agreement
with the Government and pleaded guilty to five counts.
Mr. Elliott now appeals his conviction. He contends that
Sample had an actual conflict of interest, that the district court
violated his Sixth Amendment right to conflict-free counsel
by failing to inform him of this conflict, and that because his
counsel was conflicted, his guilty plea was not knowing and
voluntary. The Government submits that Mr. Elliott’s appeal
is entirely foreclosed by the appellate waiver within his plea
agreement.
We hold that Mr. Elliott’s Sixth Amendment claim is not
foreclosed by the appellate waiver. We further conclude that
even if Sample were conflicted, Mr. Elliott cannot establish
that he was adversely affected by the alleged conflict of inter-
est. Accordingly, we affirm the judgment of the district court.
I
BACKGROUND
In 2017, Mr. Elliott, then 23 years old, began a sexual rela-
tionship with a 16-year-old girl (“Minor Victim 1”). In August
2017, after Mr. Elliott was charged in Indiana state court with
battering Minor Victim 1, the court entered a no-contact order
barring Mr. Elliott from further communicating with her.
Two months later, Minor Victim 1’s mother (“Witness Victim
1”) reported to law enforcement that Mr. Elliott had violated

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No. 23-1148 3
the order. Mr. Elliott had used Facebook Messenger to send
Minor Victim 1 a video directing her to the location of a com-
pact disc case containing heroin. Local law enforcement ob-
tained a search warrant for Mr. Elliott’s Facebook Messenger
account. In the subsequent search, they found five videos sent
by Mr. Elliott to Minor Victim 1 depicting them engaging in
sexual activity. Mr. Elliott also had shared a video of himself
and Minor Victim 1 engaging in sexual activity on Snapchat;
Witness Victim 1 provided a screenshot of this Snapchat
video to law enforcement. Mr. Elliott was subsequently
charged in Indiana state court with additional offenses in-
cluding dealing a narcotic drug to a minor, invasion of pri-
vacy, child exploitation, and possession of child pornogra-
phy.
In December 2018, the Government filed a criminal com-
plaint against Mr. Elliott in the United States District Court
for the Southern District of Indiana. Mr. Elliott retained pri-
vate counsel. A few months later, a federal grand jury in-
dicted Mr. Elliott. This indictment charged him with eleven
counts relating to the sexual exploitation of Minor Victim 1
and one count of being a felon in possession of a firearm.
While in custody awaiting trial on these charges, Mr. El-
liott attempted to arrange for the murders of Minor Victim 1
and Witness Victim 1. He told a fellow inmate about a cache
of weapons stolen from the military and buried in the back-
yard of the house where he had lived with his mother and
grandfather before his arrest. Mr. Elliott asked if the inmate
knew someone who would kill Minor Victim 1, Witness Vic-
tim 1, and Minor Victim 1’s sister in exchange for the weap-
ons. The inmate contacted his attorney about Mr. Elliott’s re-
quest; the attorney contacted law enforcement. The inmate

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4 No. 23-1148
agreed to assist law enforcement by providing Mr. Elliott
with the phone number of an undercover FBI agent posing as
a drug cartel hitman named “Arturo.”
Mr. Elliott mailed a letter to the inmate’s wife, which he
intended that she pass to Arturo. In this letter, Mr. Elliott
identified Minor Victim 1 and Witness Victim 1 by name and
provided other information about them, including their Face-
book accounts. Using coded language about delivering a mo-
torcycle, he offered to give Arturo a motorcycle and the stolen
military weapons in exchange for their murders. He wrote:
“They are witnesses for the state and the Feds on someone I
know. They are trying to put him away for life. So when you
deliver the motorcycle to them and take care of them be care-
ful.”1 The inmate’s wife provided the letter to law enforce-
ment. Mr. Elliott was transferred to a new facility before the
inmate could give him Arturo’s phone number. Mr. Elliott
asked the inmate to provide Arturo’s phone number to
Mr. Elliott’s grandfather.
A few days later, the inmate called Mr. Elliott’s grandfa-
ther and provided him with Arturo’s phone number. Mr. El-
liott’s grandfather then passed this number to Mr. Elliott. Ini-
tially unsuccessful in his attempt to speak to Arturo, Mr. El-
liott called his grandfather and asked that he send a text to
Arturo so the hitman would know to expect his call. That
same day, Arturo received a text message about Mr. Elliott’s
impending call from a number belonging to Mr. Elliott’s
mother. Mr. Elliott called Arturo again, and this time Arturo
answered. During this call, Mr. Elliott confirmed that Arturo
had received the letter. Mr. Elliott told Arturo that it
1 R.252 ¶ 37.

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No. 23-1148 5
contained everything that he needed to know. Employing the
same coded language used in the letter, Mr. Elliott asked Ar-
turo to kill Minor Victim 1 and Witness Victim 1 in exchange
for the motorcycle and weapons.
After this call, federal agents executed a search warrant of
the Elliott home. There, law enforcement found notes pertain-
ing to Mr. Elliott’s conversations with his grandfather about
Arturo and two firearms belonging to Mr. Elliott. Following
this search, the grand jury returned a superseding indictment
adding charges relating to the murder for hire scheme.
A second superseding indictment, returned in October
2019, charged Mr. Elliott with seventeen counts: two counts
of murder for hire, in violation of 18 U.S.C. § 1958(a); one
count of conspiracy to commit murder for hire, in violation of
18 U.S.C. § 1958(a); two counts of tampering with a witness,
victim, or informant, in violation of 18 U.S.C. §§ 1512(a)(1)
and (2); five counts of sexual exploitation of a child, in viola-
tion of 18 U.S.C. § 2251(a); one count of coercion and entice-
ment of a minor, in violation of 18 U.S.C. § 2422(b); five counts
of distribution of child pornography, in violation of 18 U.S.C.
§ 2522(a)(2); and one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2).
Mr. Elliott underwent a mental health examination after
the district court granted his motion to determine mental
competency. The examining psychologist diagnosed Mr. El-
liott with borderline personality disorder and other psycho-
logical conditions but concluded that none of these disorders
prevented him from understanding the legal proceedings and
properly assisting his counsel. After reviewing the

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6 No. 23-1148
psychologist’s report and conducting a competency hearing,
the district court found Mr. Elliott competent to stand trial.
In May 2020, Mr. Elliott’s first retained counsel withdrew,
and Brandon Sample entered his appearance as Mr. Elliott’s
retained counsel. In August 2021, more than a year into Sam-
ple’s representation of Mr. Elliott and two months before the
date then set for trial, Sample filed a motion to withdraw, cit-
ing “professional considerations.”2 After the district court set
the motion for a hearing, Sample filed a memorandum asking
that any further discussion of the motion occur in camera. In
a footnote, Sample added, without further elaboration, that he
was concerned for his safety and the safety of others.
The district court promptly held two hearings on Sample’s
motion. It conducted the first hearing with only Sample in at-
tendance. At this hearing, Sample told the court that Mr. El-
liott had made use of Sample’s representation to commit a fel-
ony. Sample proceeded to explain to the court the specific cir-
cumstances:
MR. SAMPLE: Just, very generally, I was asked
to bring some legal documents to him at the jail.
I met a person to do that. I became suspicious
about the nature of what was in those docu-
ments. I arrived to the jail. I did not take them
into the facility. I locked them up. I went up to
go and see my client, and there was an emer-
gency in the jail, and so I ended up not seeing
him at all. I left the jail. I inspected the legal pad
with more particularity, and I discovered what
2 R.129.

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No. 23-1148 7
appeared to be 21 strips of Suboxone.3 I, subse-
quent to that, spoke with my fiancee, who
works with me as an assistant, as well. She had
been reviewing discovery with him. She indi-
cated to me that in one of the last meetings, that
he had asked her to smuggle drugs into the jail.
He explained how he was doing it. He -- and she
indicated to me that she didn’t tell me about that
at the time because she was concerned that I
would feel that I had to withdraw. And I be-
lieve, with him having done something like this,
that there’s no way that I could continue to rep-
resent him. I am acutely aware of my profes-
sional responsibilities, and I can take a lot of
nonsense, but something like this, it goes be-
yond the pale.
THE COURT: So you did -- but you have not
done anything unethical or illegal; am I correct?
MR. SAMPLE: Not to my knowledge, Your
Honor.
THE COURT: Because you caught it in time?
MR. SAMPLE: Yes, although, arguably, this is
some kind of attempt. But, I mean, I just don’t -
- needless to say, I was quite flustered. I spoke
with my bar counsel about this, and I -- who en-
couraged me to even retain my own counsel to
discuss the matter. I spoke with two lawyers in
3 The primary drug component in Suboxone is Buprenorphine, a Schedule
III controlled substance. Dollard v. Whisenand, 946 F.3d 342, 348 (7th Cir.
2019); 21 C.F.R. § 1308.13(e)(2)(i).

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8 No. 23-1148
Indianapolis about this situation, both of whom
advised me that I needed to make a motion to
withdraw from the case, that there was no way,
professionally, that I could continue to repre-
sent him under these types of circumstances.4
The district court then ordered that Mr. Elliott be brought
into the courtroom for an ex parte hearing. Neither the court
nor Sample informed Mr. Elliott about Sample’s discovery of
the Suboxone strips. Sample told the court that he had not dis-
cussed the discovery with Mr. Elliott. In informing Mr. Elliott
of his intent to withdraw, Sample had written only that there
was an “irreconcilable conflict” without elaborating on the
nature of that conflict.5
At the hearing, Mr. Elliott objected to Sample’s motion to
withdraw. He explained that he wanted Sample to continue
as his attorney because Sample understood his case and his
mental health condition and because they were making “good
headway.”6 Mr. Elliott also told the court that his family had
mortgaged their house to pay Sample’s $250,000 fee and had
already paid Sample most of that amount. Mr. Elliott believed
he and his family could not afford to retain another attorney.
Mr. Elliott confirmed to the court that he understood that his
lawyer could not do anything unethical or illegal on his behalf
and agreed to not request that Sample engage in such activity.
After Mr. Elliott expressed his desire to continue with
Sample as his attorney, Sample reiterated his belief that he
4 R.291 at 7–8.
5 R.289 at 3.
6 Id.

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No. 23-1148 9
could not continue to represent Mr. Elliott. Sample also told
the court that he had already received half of his $250,000 fee
to represent Mr. Elliott and that this $125,000 would not be
refunded if he withdrew.7
Concluding the ex parte hearing by taking Sample’s mo-
tion under advisement, the court then convened a full hearing
to discuss the state of plea negotiations. The Government had
offered Mr. Elliott an agreement under which he would plead
guilty to eight counts (two counts of murder for hire, two
counts of witness tampering, two counts of sexual exploita-
tion of a child, one count of coercion and enticement of a mi-
nor, and one count of being a felon in possession of a firearm)
and receive a sentence of between 15 and 55 years’ imprison-
ment. Mr. Elliott rejected this offer. He told the court that
Sample had advised him that he would “be crazy to take”
such a deal.8
The district court then denied Sample’s motion to with-
draw. The order first discussed the Indiana Rules of Profes-
sional Conduct. Rules 1.16(b)(2) and (3), the court explained,
state that an attorney may withdraw if the client persists in the
criminal course of action involving the lawyer’s services or
has used the attorney’s service to perpetuate a crime. The
court determined that these provisions were not implicated
because “Sample agreed that a crime had not been
7 In addition to Mr. Elliott’s and Sample’s statements, the court also con-
sidered a letter from Mr. Elliott’s mother asking that the motion be denied.
She stated that she had contacted many other lawyers who were unwilling
to take on Mr. Elliott’s case; that Sample was the only attorney who un-
derstood Mr. Elliott’s mental health problems; and that she was now at-
tempting to sell her home to pay the remaining portion of Sample’s fee.
8 R.156 at 5.

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10 No. 23-1148
perpetuated” and “Elliott understood and agreed that he
could not use Sample's services to carry out unethical or ille-
gal conduct.”9 Next, the court noted that Mr. Elliott’s behav-
ior was consistent with the personality disorders from which
he suffers, and that Sample was an experienced attorney who
had been aware of Mr. Elliott’s mental illness when he agreed
to represent him. Finally, “[a]nd most importantly,” the court
emphasized Mr. Elliott’s desire to be represented by Sam-
ple.10 Considering the presumption in favor of a defendant’s
choice of counsel, the court concluded that there was no irrec-
oncilable conflict between Mr. Elliott and Sample precluding
an adequate defense.
Sample continued to represent Mr. Elliott through his plea
negotiations and sentencing. Two days after the denial of the
motion to withdraw, Mr. Elliott filed a second motion to de-
termine his mental competency. The court granted this mo-
tion and Mr. Elliott underwent another psychological evalua-
tion. In May 2022, after a second competency hearing, the
court again found Mr. Elliott competent to stand trial.
In June 2022, Mr. Elliott reached a plea agreement with the
Government. He agreed to plead guilty to two counts of mur-
der for hire; two counts of witness tampering; and one count
of being a felon in possession of a firearm and ammunition.11
This agreement provided that the remaining counts would be
dismissed, and Mr. Elliott would be sentenced to a term of
9 R.134 at 5.
10 Id. at 6.
11 Before the second competency hearing, the court, on the Government’s
motion, dismissed two counts: conspiracy to commit murder for hire, and
coercion and enticement of a minor.

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No. 23-1148 11
between 10 and 55 years’ imprisonment. The agreement also
included a broad appeal waiver. Under its terms, Mr. Elliott
could not appeal his convictions on any ground and could not
appeal his sentence unless it exceeded 55 years (660 months)
of imprisonment. The court did not inform Mr. Elliott of the
nature of the conflict alleged by Sample or specifically refer-
ence the right to conflict-free counsel at his change of plea
hearings. In his plea colloquy, Mr. Elliott told the district
court he was satisfied with Sample’s representation.
The district court accepted Mr. Elliott’s guilty plea and ul-
timately imposed a sentence of 520 months of imprisonment.
Mr. Elliott filed this appeal.
II
DISCUSSION
Mr. Elliott now contends that the district court violated his
Sixth Amendment right to conflict-free counsel when it failed
to inform him of Sample’s conflict of interest. He argues that
his guilty plea was not knowing and voluntary because he
was represented by conflicted counsel.
A.
Before turning to the merits of Mr. Elliott’s Sixth Amend-
ment challenge, we address the Government’s submission
that the appellate waiver within Mr. Elliott’s plea agreement
forecloses his appeal. An appellate waiver, like the one con-
tained in Mr. Elliott’s plea agreement, only forecloses appel-
late review “if (1) the appeal falls within the scope of the ap-
pellate waiver and (2) the waiver is valid.” United States v.
Mboule, 23 F.4th 753, 757 (7th Cir. 2022). To be valid, the
waiver must be knowing and voluntary. United States v.

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12 No. 23-1148
Onamuti, 983 F.3d 892, 894 (7th Cir. 2020). Mr. Elliott contends
that his appellate waiver was not knowing and voluntary be-
cause he was represented by conflicted counsel in negotiating
the plea agreement and the district court did not obtain an
informed waiver of that counsel’s alleged conflict of interest.
Mr. Elliott’s appellate waiver is not an impediment to our
reaching the merits of his Sixth Amendment challenge. The
Government’s position that the appellate waiver forecloses
our review of his conflict-of-interest claim is irreconcilable
with our requirements for valid conflict waivers and our ap-
proach to ineffective assistance of counsel claims.
The principles that guide our decision are well estab-
lished. A defendant may waive his right to conflict-free coun-
sel. However, such a waiver must be “made knowingly and
intelligently … with sufficient awareness of the relevant cir-
cumstances and likely consequences.” United States v. Flores,
5 F.3d 1070, 1078 (7th Cir. 1993). “[T]he defendant must have
enough information about the conflict and its potential effects
from which to make a rational choice ‘with eyes open.’”
Gomez v. Ahitow, 29 F.3d 1128, 1133–34 (7th Cir. 1994) (quoting
United States v. Beniach, 825 F.2d 1207, 1210 (7th Cir. 1987)). If
Mr. Elliott had made such an informed waiver of Sample’s al-
leged conflict, the appellate waiver provision would foreclose
this appeal. See United States v. Buissereth, 638 F.3d 114, 117 (2d
Cir. 2011) (attorney’s conflict of interest did not render appel-
late waiver provision unenforceable because defendant made
an informed waiver of the conflict). But to enforce a conflict
waiver, we must be satisfied that the defendant made an in-
formed decision. Flores, 5 F.3d at 1078.
Here, the Government does not contend that Mr. Elliott
knowingly waived Sample’s potential conflict. (Such an

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No. 23-1148 13
argument would clearly be futile because Mr. Elliott was not
aware of the relevant circumstances: Sample’s discovery of
the Suboxone strips.) Instead, the Government submits that
the appellate waiver in Mr. Elliott’s plea agreement bars him
from challenging the district court’s failure to provide him
with the very information we would require he possess for an
informed conflict waiver. Although Mr. Elliott could not
waive knowingly and intelligently Sample’s alleged conflict,
the Government maintains that he nevertheless waived his
right to challenge this conflict, unknown to him, by broadly
waiving all challenges to his conviction on the advice of Sam-
ple, his allegedly conflicted counsel. This argument, if suc-
cessful, would circumvent our requirement that a defendant
waiving his conflict of interest have sufficient awareness of
the circumstances to make a rational choice. See Gomez,
29 F.3d at 1133.
The Government’s attempt to enforce the appellate waiver
also is in conflict with our well-established approach to inef-
fective assistance of counsel claims. We have “repeatedly rec-
ognized that appellate … waivers cannot be invoked against
claims that counsel was ineffective in the negotiation of the
plea agreement.” Hurlow v. United States, 726 F.3d 958, 964
(7th Cir. 2013). “Justice dictates that a claim of ineffective as-
sistance of counsel in connection with the negotiation of a co-
operation agreement cannot be barred by the agreement it-
self—the very product of the alleged ineffectiveness.” Jones v.
United States, 167 F.3d 1142, 1145 (7th Cir. 1999). Therefore, a
waiver accepted in reliance on delinquent representation is
not valid. Id.
Although Mr. Elliott does not raise an ineffective assis-
tance of counsel claim, Mr. Elliott’s appeal necessarily

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14 No. 23-1148
implicates his Sixth Amendment right to effective assistance
of counsel. “[T]he right to representation ‘free from conflicts
of interest’” is included within the Sixth Amendment’s guar-
antee of effective assistance of counsel. United States v. Coscia,
4 F.4th 454, 475 (7th Cir. 2021) (quoting Wood v. Georgia,
450 U.S. 261, 271 (1981)). In unpublished opinions, the Courts
of Appeals for the Sixth and Eleventh Circuits have both de-
termined that appeals challenging the denial of a request for
new counsel, without asserting ineffective assistance of coun-
sel claims, still “necessarily implicate” the right to effective
assistance of counsel and therefore fall within an ineffective
assistance exemption from the appellate waiver. United States
v. Hudson, No. 21-4126, 2023 WL 1463701, at *3 (6th Cir. Feb.
2, 2023) (unpublished); United States v. Rogers, 839 F. App’x
436, 438 (11th Cir. 2021) (unpublished).12 Mr. Elliott’s claim
that the district court violated his right to conflict-free counsel
by not informing him of Sample’s conflict also falls within the
ineffective assistance exemption.13
12 Because these opinions were not published by the originating circuits,
we do not regard them as authoritative. We can, and do, consider them,
however, as considered analysis of the legal issues by a respected source.
13 Relying on United States v. Onamuti, 983 F.3d 892 (7th Cir. 2020), the
Government contends that the waiver should be enforced because Mr. El-
liott’s claim is based on an alleged error by the court. In Onamuti, the de-
fendant appealed the district court’s decision to deny him an evidentiary
hearing on his request to withdraw his guilty plea because his attorney
was ineffective. Id. at 894. Noting that the appeal was limited to the denial
of the evidentiary hearing because the defendant was not raising an inef-
fective assistance of counsel claim, we held that the appeal was foreclosed
by the appellate waiver in his plea agreement. Id. at 894–95. Critically, the
defendant in Onamuti did not argue that the district court’s error made his
appellate waiver unknowing or involuntary. The district court’s denial of
( … continued)

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No. 23-1148 15
B.
To establish a violation of his Sixth Amendment right to
conflict-free counsel under the standard articulated by the Su-
preme Court in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), a
defendant “must demonstrate that an actual conflict of inter-
est adversely affected his lawyer’s performance.”
“‘An actual conflict exists if an attorney is torn between
two different interests,’ or ‘required to make a choice advanc-
ing his own interests to the detriment of his client's interests.’”
United States v. Wright, 85 F.4th 851, 859 (7th Cir. 2023) (inter-
nal citations omitted). Mr. Elliott offers two theories for how
Sample’s own interests conflicted with Mr. Elliott’s. First,
Mr. Elliott contends that Sample feared exposure of, or an in-
vestigation into, his or his fiancée’s involvement in criminal
activity and was thus motivated to hasten Mr. Elliott’s case to
a plea agreement. Second, Mr. Elliott suggests that Sample
had an interest in avoiding the need to cross-examine Mr. El-
liott’s grandfather and mother at trial because they were pay-
ing Sample’s fee and one may have been the person who gave
Sample the documents concealing the controlled substances.
We need not resolve these issues because even if Sample
was actually conflicted, Mr. Elliott suffered no adverse effect.
To establish an adverse effect, Mr. Elliott must demonstrate
“that ‘but for the attorney’s actual conflict of interest, there is
a reasonable likelihood that counsel’s performance somehow
would have been different.’” Coscia, 4 F.4th at 475 (quoting
the evidentiary hearing came after he had agreed to the waiver. Here, by
contrast, Mr. Elliott contends that the district court’s failure to inform him
of Sample’s conflict itself rendered the plea agreement (and the waiver
contained therein) invalid.

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16 No. 23-1148
Gonzales v. Mize, 565 F.3d 373, 381 (7th Cir. 2009)). There must
be “specific instances where [his] attorney could have, and
would have, done something different.” Burkhart v. United
States, 27 F.4th 1289, 1295 (7th Cir. 2022) (quoting United States
v. Grayson Enters., Inc., 950 F.3d 386, 398 (7th Cir. 2020)). And
these alternative actions must be plausible: “the law does not
require defense counsel to pursue hypothetical strategies
with no on-the-ground plausibility in the realities of the pros-
ecution facing a defendant.” Id. at 1296. If there was no plau-
sible alternative to the path taken based on Sample’s advice,
then there is no reasonable likelihood that Sample’s perfor-
mance would have been different and Mr. Elliott cannot es-
tablish that he was adversely affected by Sample’s alleged
conflicts.
In determining whether the alleged conflicts affected Sam-
ple’s advice, we consider the strength of the Government’s
case against Mr. Elliott. In Burkhart, for instance, we con-
cluded that conflicted counsel’s advice to plead guilty to his
role in a fraudulent scheme to inflate invoices from vendors
contracted to run nursing facilities was a “reasonable re-
sponse” to the “overwhelming” evidence of the defendant’s
guilt. 27 F.4th at 1296. This overwhelming evidence included:
secret recordings of the defendant discussing the scheme with
vendors; emails between the defendant and his co-conspira-
tors about the scheme; vendors’ testimony about being asked
to inflate invoices; financial records showing the flow of
money from vendors to the defendant; and the agreements of
three co-conspirators to testify as Government witnesses at
the defendant’s trial. Id. at 1296–97.
Here, the evidence against Mr. Elliott also was over-
whelming. We note only the most salient aspects. The

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No. 23-1148 17
Government had the recording of Mr. Elliott’s call to “Ar-
turo”; the handwritten letter identifying Minor Victim 1 and
Witness Victim 1 as the recipients of the “motorcycle deliv-
ery”; the pornographic videos of Minor Victim 1 sent from
Mr. Elliott’s Facebook account; and the firearms seized from
Mr. Elliott’s home. Minor Victim 1, Witness Victim 1, Mr. El-
liott’s grandfather, Mr. Elliott’s mother, the undercover FBI
agent, and others had agreed to testify as Government wit-
nesses. Mr. Elliott contends that we should place no stock in
the weight of the Government’s evidence because it was
“never tested by a rigorous defense.”14 But he speaks only in
generalities without identifying a plausible strategy that may
have been employed to address any of this overwhelming ev-
idence.
The plea negotiations conducted after the inception of
Sample’s alleged conflict clearly “yielded tangible benefits”
for Mr. Elliott. Burkhart, 27 F.4th at 1297. These benefits are
especially evident when we compare the August 2021 offer
rejected by Mr. Elliott to the plea agreement he accepted in
June 2022. The final plea agreement was, without doubt, more
favorable to his interests. Under the 2021 offer, Mr. Elliott
would have pleaded guilty to three additional counts and his
minimum potential sentence would have been 15 years, in-
stead of 10. Critically, these three additional counts were two
counts of sexual exploitation of a minor and one count of en-
ticement of a minor. By rejecting the 2021 offer and accepting
the 2022 plea agreement, Mr. Elliott avoided being convicted
of a sex offense.
14 Appellant’s Reply Br. 14.

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18 No. 23-1148
Seeking to avoid Sullivan’s burden of establishing an ad-
verse effect, Mr. Elliott contends that he is entitled to an auto-
matic reversal of his convictions upon demonstrating an ac-
tual conflict of interest. But this is hardly one of those few
cases where the Supreme Court has permitted us to conclude
that impairment of the effective assistance of counsel violated
such core principles of representation that reversal without a
showing of prejudice is justified. In brief, we are not con-
fronted with the joint representation of defendants over
timely objection, see Holloway v. Arkansas, 435 U.S. 475 (1978),
or with a situation where an attorney is required to represent
a defendant on the morning of trial with no preparation or
knowledge of the court’s procedures, see United States v.
Cronic, 466 U.S. 648, 660–61 (1984) (noting Powell v. Alabama,
287 U.S. 45 (1932)).
Without a showing of adverse effect, Mr. Elliott presents
no ground for reversal.
Conclusion
For the reasons stated, the district court’s judgment is af-
firmed.
AFFIRMED

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