Petition for Writ of Certiorari — Gibson v. United States

Supreme Court brief1989

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Text

No.

In The a ieee oe

Supreme Court of the United States

October Term, 1989

,’

IN RE JAY LOUIS GIBSON AND

ALLEN N. BRUNWASSER,

Petitioners,

and

UNITED STATES OF AMERICA

EX REL JAY LOUIS GIBSON

1013 ALQUIN STREET

McKEESPORT, PA

(412) 391-0329

Petitioners,

VS.

DARREN WOLPERT, D.E.A.

EAST BUILDING, NEAR

THE NATIONAL AIRPORT,

WASHINGTON, D.C.

Respondent.

PETITION FOR WRIT OF CERTIORARI

DIRECTED TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

ALLEN N. BRUNWASSER,

Attorney for Petitioner

P.O. Box 22212

Pittsburgh, PA 15222

(412) 391-0329

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

STATEMENT OF QUESTION PRESENTED

FOR REVIEW

Do the Fifth and Sixth Amendments to the United

States Constitution prohibit sua sponte removal of a pre-

viously unconditionally admitted out of state attorney

without pre-decision notice or hearing when his also out

of state criminal client has retained local counsel for

emergency and short-notice proceedings and both lawyer

and client object and, if not, should counsel’s said

removal be reversed by authority of the United States

Supreme Court’s supervisory power?

TABLE OF CONTENTS

Page

Statement of Question Presented for Review....... i

Table of Contents and Cihations. |... ..5<4<s6255552 ii

Petition for Writ of Certiorari Directed to the United

States Court of Appeals of Columbia Circuit..... 1

Reference to Official and Unofficial Reports of the

Opinions Delivered in the Courts Below......... 2

FUPEOGICTION. . oi... sib cne ve 0a eee eee FA

Constitutional Provisions, Statutes and Ordinances

PIWOIVOE onc vce aden 4te eee 3

Concise Statement of the Case Containing the Facts

Material to the Consideration of the Question Pre-

SOVUOR . ics cin vs le baa e 6 Ne ee 6

Reasons for Allowance of Writ .....,.5..ississ000s 14

Summary of Argument .. .. 0.041955; 95 14

ATP . oi one seis eee ee 15

COMCIUBION oo. 65s eck ws che ke ae ne 22

APPENDIX:

Cr. #87-0311 Notice of Appeal of the United States

District Court for the District of Columbia,

Filed Dec. 30; 1967 <6 .cnieke eee emt VA it a HE 19 1-A

No. 88-5002 Petition for Rehearing and Sugges-

tions of Rehearing En Banc, Filed In Re January

x UE» EOE rer eee PE py 4-A

No. 88-5023 Petition for Reargument and Rehear-

ing and Suggestion Request for Rehearing and

Rehearing En Banc, Filed January 30, 1989...... 19-A

iii

TABLE OF AUTHORITIES

CASES

Barnard v. Thornstein, March 6, 1989, #87-1939, #49

ee OG 8 Se 15

Carey v. Piphus, 1978, 98 S. Ct. 1042, 435 US 247....19

Chatman-Bey v. Thornburgh, 864 F.2d 804.......... 18, 19

Coleman v. Burnette, 1973, C.A.D.C., 477 F.2d 118.... 12

Davis v. U.S., 1974, 417 US 333, 345-346, 94 S. Ct.

Ee eee ee ee ee 17

Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1988) ...12, 21

DeShaney v. Winnebago County D.D.S., February 22,

a wo. 109 S. Ct. 996, 1003, N.2........ 21

Fay v. Noia, 1963, 83 S. Ct. 822, 841, N.35, 372 US

earns sa sb sen ys sade ese w awa cee e ees 17

Flanagan v. United States, 465 US 259 (1984).......... 7

Frazier v. Heebe, 1987, __ US __, 107 S. Ct. 2607....15

Fuller v. Diesslin, February 24, 1989, C.A. 3, 868

ee Gah abeas bes ke been ees 22

Gulfstream Aerospace Corp. v. Mayacamas Corp.,

vere . fom o, Ct. 1933, 19435, N.3....... 19

Hilton v. Braunskill, 1987, __ US __, 107 S. Ct.

a a gS 12, 18

In Re American Cable Publications, Inc., 1985,

i ES |. rr 19

In Re Sealed Case, D.C.C.A., 1987, 829 F.2d 50, 53,

ee vue een baaenseeewsevns 21

TABLE OF AUTHORITIES - Continued

Page

International Brotherhood of Electrical Workers v.

I.C.C., November 25, 1988, C.A.D.C., 862 F.2d

FO I Eee RR aRE Ae ROo Re eee PERO COs 20

Johnson v. Mississippi, 1971, 403 US 212, 216, 91 S.

ie Re ee re tein pane res 18

Kaufman v. U.S., 1969, 89 S. Ct. 1068, 1072, 349 US

ee Sere er ee er rrr cr eee rT Pee 17

Koller v. Richardson-Merrill, Inc., 1984, C.A.D.C.,

737 F.2d 1038, 1054, 105 S. Ct. 2757, 472 US 424....19

Law Offices of Chase v. F.C.C., 1988, C.A.D.C., 843

Pe Pa a Ele eke onl cea eaten ta ae 20

Penson v. Ohio, November 28, 1988, 57 U.S.L.W.

eae, ee Ce a Me ae ena cow bowee reusd 20

Perry v. Leeke, January 10, 1989, ___—~US ___, 109 S.

Se Es: ME SWS St oo bance en caw ee oeeL eee Leber bes 18

Richardson-Merrili, Inc. v. Koller, 105 S. Ct. 2757

NE ea So eos CG ek ee ee eee ae 8, 20

Schlagenhauf v. Holder, 1964, 379 US 104, 110, 85 S.

EAS ca Gs Ce eke RR eee eee ae Dan ee at 19

Strum v. Clark, 1987, C.A.3, 835 F.2d 1009, 1015..... 18

Sunal v. Large, 1947, 322 US 174, 179 and N.11...... 16

Teague v. Lane, February 22, 1989, 49 CCH S. Ct.

A a a | eer ree 16, 19

Thermtron Products, Inc. v. Hermansdorfer, Judge,

1976, 423 US 336, 342-353, 98 S. Ct. 584, 589-594 .... 19

TABLE OF AUTHORITIES —- Continued

Page

STATUTES

ey RP, RE es hee ce ck RRR ORES ORE EeOR Ie 10

Oe Ee Be CEN ook ccs ccck hegre eases tele 2

Se RE. DE ea heehee ek REL ee 10

CONSTITUTIONS

Fifth Amendment to the United States Constitu-

oR ar nr ane Fee Mr LR ewe tee gs le Styrene 3, i

Sixth Amendment to the Constitution of the

United States....... ep ee LR cae try + 3, 1a, 84. toy ae

RULES

ee Oe cs os hoes eR Ree a eee ee 11

a eee | 8 reer rrorer rr ey ty ye 3

Rule 104 of the United States District Court of the

ENCE OE TO ck ca eee eee eee 3

October 6, 1987 amendment to District Court Rule

Ws Sc RRA AMER Ree LA a oe ee 5

LOGE Te BN a. oa ke ca we we eee pre En sh 5

Ge TA Oe oo oe occas ORE ee Oe 5

Lee TR Bre co a a we ncaa eee ee eee ee 5

Cees BA We we ec sk Ca ces ee netcee 5 4% 3

Loews tee TOG OS). oo eis cca eee eee &.-F

No.

In The

Supreme Court of the United States

October Term, 1989

IN RE JAY LOUIS GIBSON AND

ALLEN N. BRUNWASSER,

Petitioners,

and

UNITED STATES OF AMERICA

EX REL JAY LOUIS GIBSON

1013 ALQUIN STREET

McKEESPORT, PA (412)

391-0329

Petitioners,

VS.

DARREN WOLPERT, D.E.A.

EAST BUILDING, NEAR

THE NATIONAL AIRPORT,

WASHINGTON, D.C.

Respondent.

PETITION FOR WRIT OF CERTIORARI

DIRECTED, TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Jay Louis Gibson and Allen N. Brunwasser

respectfully present this petition for allowance of cer-

tiorari to the United States Court of Appeals for the

District of Columbia Circuit.

REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS DELIVERED

IN THE COURTS BELOW

Petitioners can find no reported decisions in these

cases.

All District Court opinions were filed in the District

Court at either C.R. #87-311 and/or C.A. #87-1821.

The Court of Appeals filed no opinions but its rele-

vant orders are photographed in the Appendix to this

Petition.

JURISDICTION

The judgments sought to be reviewed are the January

17, 1989 dated and filed panel decisions of the United

States Court of Appeals for the District of Columbia

Circuit entered on January 17, 1989 at #88-5002 (16-A)

and at #88-5023 (36-A).

Timely January 30, 1989 Petitions for rehearing and

suggestions of rehearing en banc were all denied on

March 15, 1989 at #88-5002 (38-A, 39-A) and at #88-5023

(40-A, 41-A).

Jurisdiction to petition for certiorari is founded upon

28 USC 1254(1).

Petitioners’ motion to extend the 60-day, Rule 20.1,

time to file their petition for certiorari in #88-5002 (a

criminal case) so it would be equal to the 90 days allowed

for the civil habeas corpus at #88-5023 was ___

sa.

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

Fifth Amendment to the United States Constitution.

“No person shall be deprived of life, liberty or prop-

erty, without due process of law.”

Sixth Amendment to the Constitution of the United

States:

“In all criminal prosecutions, the accused shall enjoy

the right - and to have the assistance of counsel for his

defense.”

Rule 104 of the United States District Court for the

District of Columbia.

RULE 104 “PRACTICE BY ATTORNEYS

(a) Practice by resident members of the bar of this

court. An attorney who is a member in good standing of

the bar of this court may appear, file papers and practice

in this court if the attorney either (i) maintains an office

for the practice of law within the District of Columbia, or

(ii) maintains an office in Maryland and has complied

with the Local Rules of the United States District Court

for the District of Maryland relating to certification of

trial experience.

(b) Nonresident counsel, an attorney who is a mem-

ber in good standing of the bar of any United States

Court or of the highest court of any state, but who does

not qualify under the requirements of subsection (a), may

file papers in this court only if such attorney joins of

record a member of the bar of this court who meets the

requirements of subsection (a) an attorney who meets the

requirements of subsection (a) above at the time of the

entry of an appearance, but whose office is thereafter

removed to a location outside the District of Columbia

shall at that time join of record ir-all cases in which an

appearance is entered an attorney who meets the require-

ments of subsection (a).

papers submitted by nonresident counsel must be signed

by nonresident counsel and ty an attorney who meets the

requirements of subsection (a).

(d) Participation by nonresident counsel in court

proceedings. An attorney who fails to qualify under sub-

section (a) above may be heard in open court only by

permission of the Judge to whom the case is assigned.

(e) Attorneys employed by the United States. An

attorney who is employed or retained by the United

States or one of its agencies may appear, file papers and

practice in this court in cases in which the United States

or the agency is a party, irrespective of (a) - (d) above.

(f) Attorneys employed by a state. A State Attorney

General or that official’s designee, who is a member in

good standing of the bar of the highest court in any state

or of any United States Court, may appear and represent

the state or any agency thereof, irrespective of (a) - (d)

above.

(g) Attorney representing indigents. Not withstand-

ing (a) - (d) above, an attorney who is a member in good

standing of the District of Columbia Bar or who is a

member in good standing of the bar of any United States

Court or of the highest court of any state may appear, file

papers and practice in any case handled without a fee on

behalf of indigents under Local Rule 4-2 upon filing a

certificate that the attorney is providing representation

without compensation.

(h) Attorneys subject to discipline. An attorney who

appears pursuant to Paragraphs (b), (e), (f) or (g) of this

rule is subject to the disciplinary rules of this court.

(i) Entry or withdrawal of appearance. Attorneys

may enter and withdraw appearances in civil actions as

provided in Rule 201 of these rules, and in criminal

actions as provided in Rule 301 of these rules.”

October 6, 1987 amendment to District Court Rule

104.

“RULE 104” “PRACTICE BY ATTORNEYS”

“(a) Practice by members of the Bar of this Court.

An attorney who is a member in good standing of the bar

of this court may appear, file papers and practice in this

Court.

(j) Striking appearances for nonattendance at court

proceedings. The Court may, upon notice and after

affording an opportunity to be heard, strike the appear-

ance of any attorney in a particular case for failure,

without adequate cause, to attend any hearing, confer-

ence or other proceeding. The fact that an attorney’s

residence or office is located at a place distant from the

District of Columbia does not constitute grounds for

rescheduling or failing to attend court proceedings”.

CONCISE STATEMENT OF THE CASE

CONTAINING THE FACTS MATERIAL TO THE

CONSIDERATION OF THE QUESTION PRESENTED

Jay Louis Gibson (hereinafter sometimes called cli-

ent) was returning to Pittsburgh, Pennsylvania from Flor-

ida. He was arrested by a joint Amtrak-District of

Columbia narcotic squad at Union Station where he was

making a transfer from the Florida to the Pittsburgh train

and subsequently charged with a narcotic offense, bound

over for trial and indicted in the United States District

Court for the District of Columbia on July 16, 1987.

On July 27, 1987, United States District Judge Stanley

S. Harris granted Allen N. Brunwasser’s (hereinafter

sometimes called attorney) request to appear pro hac vice

and on September 15, 1987 waived his Court’s Local Rule

104 so that this attorney could be sole defense counsel.!

1 Brunwasser is admitted to the Court of Common Pleas of

Allegheny County, Pennsylvania to the Superior and Common-

wealth Courts of Pennsylvania, to the Supreme Court of Penn-

sylvania, to the United States Tax Court, the United States

District Court for the Western District of Pennsylvania, the

United States Court of Appeals for the Third Circuit, the

United States Supreme Court and was admitted to practice in

February, 1950, after his graduation from Harvard Law School

in 1948.

(Continued on following page)

On September 22, 1987, Judge Harris required local

counsel which client then retained over his protest he did

not need this additional expense.

On November 24, 1987, sua sponte and without pre-

vious notice of his intent or any type of opportunity to

make argument in resistance or a hearing, Judge Harris

removed Brunwasser. This distinguished and learned

judicial officer said, inter alia,

“The Court accordingly withdraws its permission for

Mr. Brunwasser to participate pro hac vice any further in

this case, see Local Rule 104 (d). The Nation’s capital is

scarcely a frontier town with a shortage of qualified

lawyers. Defendant may proceed pro se (which the Court

discourages), or he may proceed with representation by

Mr. Jacobovitz or other counsel of his choice. In any

event, he must proceed henceforth without Mr. Brun-

wasser’s representation in this court” and

“the withdrawal of permission for Mr. Brunwasser to

appear pro hac vice is an interlocutory ruling which is not

now appealable; Flanagan v. United States, 465 US 259

(Continued from previous page)

He has been in active trial and non-trial practice since

1950, has practiced all over the Commonwealth of Pennsylva-

nia, in the first, second, third, fourth, fifth (now the eleventh),

sixth and seventh United States Courts of Appeals and in

thirteen different states without retaining local counsel.

He has also practiced in the District Court for the Eastern

District of Pennsylvania, the Eastern District of Virginia, the

District of West Virginia, the Flint and Detroit, Michigan

United States District Courts, the United States District Court

in Brooklyn, NY and probably other places he has forgotten.

(1984); see also Richardson-Merrill, Inc. v. Koller, 105 S. Ct.

2757 (1985)”.

Mr. Jacobovitz had previously, without advance

warning to client or his attorney of his intent, asked

Judge Harris in open court to allow his withdrawal

because he was not given sufficient work and to allow

client and his Pittsburgh lawyer to continue alone.

He said “I am local counsel in this matter. What I

would like to make a motion to do at this point is to

withdraw.

The reason I’m doing that is because Mr. Gibson is

satisfied with Mr. Brunwasser. They do not want local

counsel here.

I do not have any authority to do anything; so Mr.

Gibson has not had the benefit of any local counsel’s

experience on the Rules and experience in court”.

Client’s limited opportunity to investigate disclosed

Mr. Jacobovitz, a young lawyer, has a practice almost

entirely supported by criminal justice act appointments.

This request was taken under advisement and later

denied “without prejudice” on December 23, 1987 at

which time Judge Harris also refused a November 30,

1987 motion to reconsider his November 24, 1987 removal

order which he said was effective in both the C.R. #87-311

and? the habeas corpus at C.A. #87-1821. Judge Harris

said, inter alia,

2 Client defended in the District Court by a C.A. #87-1821,

July 8, 1987 pre-indictment habeas corpus after the magistrate

(Continued on following page)

“the court sees no need to deal with the many murky

matters raised by Mr. Brunwasser in the motion for

reconsideration” and noted “on the assumption this issue

will be litigated on appeal” and

“Mr. Brunwasser will not be heard again in open

court in this case” and

“~ it was concluded that it was necessary to with-

draw permission for Mr. Brunwasser to appear on behalf

of the defendant pro hac vice.”

On January 5, 1988, Attorney Jacobovitz was allowed

to withdraw leaving client without any counsel at all.

Client, on January 8, 1988, wrote letters in re a fee to

be paid by him representation to 119 of the 126 lawyers

on the Court’s Criminal Justice Act list plus 27 of the

largest law firms in the District of Columbia; Reed, Smith,

Shaw and McClay and Harvard Professor Philip

(Continued from previous page)

held him for court and by resisting the subsequent July 16, 1987

indictment at Cr. #87-311. These cases were consolidated Sep-

tember 15, 1987 on government’s motion. When Judge Harris,

sua sponte, on November 16, 1987, dismissed the habeas

corpus, and refused reconsideration on December 23, 1987.

Both client and lawyer timely appealed to #88-5023 in the

District of Columbia Circuit Court on December 30, 1987. (this

appeal also protested attorney’s removal at both C.A. #87-1821

and Cr. #87-311 and is reproduced in this petition at 1-A to

3-A).

3 Petitioners’ have not gone into all the details of the

removal because this would raise problems not relevant to this

petition and also be impossible to present within the thirty

page limit allowed for this petition by Rule 21.4.

Heymann and Alan Dershowitz but was unable to obtain

a satisfactory representation.

Judge Harris, after a February 4, 1988 conclusion this

was all a facade, advised that day that he intended to

have a magistrate appoint a lawyer to be compensated at

client’s expense, regardless of any protest, and set an

agenda detailing what client and his appointed lawyer

were to there do and prohibited pro se client pleadings

unless signed by this lawyer.4

On January 5, 1988, both client and attorney filed a

“Petition for writ of mandamus, prohibition, exercise of

supervisory authority and extraordinary 28 USC 1651

relief in re actions of United States District Judge Stanley

S. Harris taken from September 30, 1987 at C.A. #87-1821

and Cr. #87-311 and, in particular, on December 23,

1987”.

This proceeding, docketed in the United States Court

of Appeals for the District of Columbia Circuit at

#88-5002, challenged, inter alia, lawyer’s removal plus

Judge Harris’ refusal of their request he advise them

exactly what they can and cannot do in the pending cases

in re the attorney-client function.

On January 11, 1988, client and attorney Express

Mailed an amended petition bringing the Court of

Appeals up to date on new events which included a

4 This appears contrary to 26 USC 1654 which directs “In

all courts of the United States the parties may plead and

conduct their own cases personally or by counsel as, by the

rules of such courts, respectively, are permitted to manage and

conduct causes therein”.

pean

January 5, 1988 posting of two United States Marshalls

right in front of lawyer (at that time restricted to the court

audience behind the separation barrier) who was then

prevented by them in a hostile manner from an attempt to

signal client and Jacobovitz that he wanted to talk to

them, Judge Harris’ conclusion client’s attempt to obtain

a lawyer from the 27 large firms was futile especially

since they were not trained in this area> and the removal

of Attorney Jacobovitz.

On February 4, 1988, Judge Harris filed an order

directing a United States Magistrate select a F.R.Cr.P. 44

(a) lawyer for client.

On January 18, 1988, client and Jawyer Express

Mailed a second amended petition detailing the so far

unsuccessful efforts to obtain local counsel and request-

ing removed counsel be reinstated.

On February 20, 1988, client and lawyer Federal

Expressed a fourth amended petition which advised the

Court of Appeals that client’s expensive preparation for

an appearance at a Judge Harris scheduled February 16,

1988 suppression hearing together with former large law

firm Attorney, Patricia Douglass, and his removed lawyer

was wasted because without previous to hearing notice,

Judge Harris had continued the hearing by order dated

February 5, 1988 but not filed until February 10, 1988

with his own docket clerk who gave him no previous to

hearing notice and obviously advised eight subpoenaed

> As will be later discussed, this proved to be untrue as

client did obtain a very competent lawyer who was associated

with one of these large law firms.

witnesses plus the United States Attorney not to appear

and Magistrate Attridge appointed a lawyer to represent

him on February 5, 1988 but did not notify client or his

Pittsburgh attorney.

On January 17, 1989, at #88-5002, the Court of

Appeals granted allowance to amend as the above peti-

tions had requested. (16-A).

On February 12, 1988, at #88-5023, a Panel of the

Court of Appeals issued a rule directing “Appellant show

cause within twenty-one days of the date of this order

why the order of the District Court dismissing this case

should not be affirmed on the ground that the habeas

corpus petition constitutes an impermissible preemptive

attack on pending criminal charges; Deaver v. Seymour,

822 F.2d 66 (D.C. Cir. 1988). (35-A).

Client answered by saying the constitutional remedy

of habeas corpus can (and here was used to) grant relief

far beyond that provided by Deaver’s request for injunc-

tive and declaratory relief, was filed before indictment

(contrary to Deaver who proceeded after indictment, that

Deaver was not the basis of the District Court’s dismissal,

raised questions about District Court remedies if the

habeas corpus proceeding was removed and whether the

District Court’s order had retroactive effect and cited

Hilton v. Braunskill, 1987, _ US __, 107 S. Ct. 2113, 2118

and Coleman v. Burnette, 1973, C.A.D.C., 477 F.2d 118.

On February 9, 1988, at #88-5002, a Panel of the Court

of Appeals directed “that Respondents answer the peti-

tion on the limited issue of the propriety of the order of

the District Court withdrawing permission for Attorney

Brunwasser to appear pro hac vice without providing

notice and opportunity to be heard, and the resulting

potential impact on Gibson’s sixth amendment right to

counsel” and “— the petition for writ of mandamus be

denied in all other respects”. (15-A).

The United States Attorney plus four Assistants filed

a response to which client and attorney filed a motion to

strike because, inter alia, the said answer went beyond

the February 9, 1988 order, but this motion was denied on

January 17, 1989.

On February 5, 1988, client Express Mailed a petition

asking the District Court to investigate the impact of

large volume criminal justice appointments on his ability

to obtain a District of Columbia lawyer at a reasonable

fee and a motion in re the February 16, 1988 suppression

hearing plus a request attorney be allowed “to function

as an investigator at the February 16, 1988 hearing, sit at

the counsel table and be allowed to confer during that or

any subsequent hearing or proceeding” but the clerk

returned both these motions on February 10, 1988, the

same date they were received.

On January 17, 1989, the Court of Appeals Panel

entered two orders at #88-5002. The first (16-A) was

procedural and the second (18-A) denied mandamus

because its required factors had not been shown.

On January 17, 1989, the Court of Appeals Panel

discharged its February 12, 1988 rule (36-A), affirmed the

District Court’s November 24, 1987 and December 23,

1987 orders because they were interlocutory and habeas

corpus before conviction was not called for in this partic-

ular case.

On January 30, 1989, client and lawyer filed a petition

for rehearing and suggestion of rehearing en banc at both

#88-5002 (4-A to 14-A) and #88-5023 (19-A to 34-A).

On March 15, 1989, both petitions were denied (38-A

to 40-A).

The United States Attorney founded jurisdiction of

the District Court on the sixth amendment because client

was arrested and committed the alleged crime at Union

Station in the District of Columbia.

-—

REASONS FOR ALLOWANCE OF THE WRIT

SUMMARY OF ARGUMENT

Brunwasser had already been admitted under Local

Rule 104.

Judge Harris subsequently removed Brunwasser sua

sponte and ended his ability to function as a lawyer in

the District of Columbia. This restriction also covered

preparation of papers outside the District since Gibson

was not permitted to file pro se pleadings unless his

Magistrate Attridge February 5, 1988 forced upon him

lawyer also signed.

The removal was ordered without advance warning

of Judge Harris’ intent and without any previous to deci-

sion argument. No pre or post decision hearing of nay

type so an evidentiary record could be made was

provided.

Petitioners respectfully suggest the action taken here

strikes at basic and fundamental fifth amendment due

process and sixth amendment right to counsel of choice

and is a prohibited trade restriction to favor local counsel

and generate fees for them at the expense of out of

District unfortunates who do not know where to begin in

choosing a skilled and loyal only to them representative.

In addition, the District Court’s power to remove a

specifically admitted lawyer at whim will obviously chill

his assertion of a vigorous defense when he knows dis-

pleasing the Judge can result in his sua sponte removal.

ARGUMENT

On the issue of Local Rule 104 application, Peti-

tioners rely upon Barnard v. Thornstein, March 6, 1989,

#87-1939, #49 CCH S. Ct. Bull, Page 1496 and Frazier v.

Heebe, 1987, __ US __, 107 S. Ct. 2607.

Local Rule 104 allows all types of exceptions where

no fee is involved because the client is an indigent or a

federal or state party or agency represented by its regu-

larly employed or hired for that case alone counsel. Why

should a non-government client who is not an indigent be

given special and expensive treatment including the extra

step of having local counsel sign all proceedings before

they can be filed?

If the issue is one of needed local control, Petitioners

suggest a federal or state civil service protected lawyer is

no less in need of this supervision than an on his or her

Own private practitioner. In fact, a government

entrenched lawyer, backed by state or federal resources,

would be more difficult to control.

The decision of the Court of Appeals has restricted

the cherished civil right of habeas corpus which has no

remedy limit and is basic to monitor the conduct of lower

courts even if it is never used and keep them on the right

track.

The recent case of Teague v. Lane, February 22, 1989,

49 CCH S. Ct. Bull. 1175, 109 S. Ct. 1060 cogently advised

“the threat of habeas corpus serves as a necessary incen-

tive for trial and appellate Judges throughout the land to

conduct their procedures in a manner consistent with

established constitutional principles” (Page 1194, four

Justices) and provides Supreme Court oversight for

“every possible case of privation of liberty contrary to the

national constitution — or laws” (Page 1196, two Justices).

Petitioners respectfully suggest the learned and dis-

tinguished Panel of the Court of Appeals has misread

Sunal v. Large, 1947, 322 US 174, 179 and N.11 on which its

January 17, 1989 (37-A) order relies and further that Sunal

is actually authority for them.

Sunal does not confine habeas corpus to “rare and

unusual circumstances” as that Panel’s January 17, 1989

order concludes. The Sunal Petitioners lost because he did

not appeal his draft case when he could have and, after

time limit had run, tries to use habeas corpus as an

alternative to appeal.

Even then the opinion advised that if defendant had

appealed and lost, there might be a different decision (332

US at 181). The Supreme Court was concerned that

17 ¥

allowance of this procedure would mean a case was never

over and observed that only a procedural — not a consti-

tutional right, which might be sufficient for habeas

corpus was involved (id. at 182). .

The Supreme Court concluded (id. at 184) “When an

opportunity to be heard is denied altogether, the ensuing

mandate of the court is void, and the prisoner confined

thereunder may have recourse to habeas corpus to put an

end to the restraint”.

Petitioners were given no hearing by Judge Harris

and respectfully argue that Sunal is authority for rather

than against them.

Fay v. Noia, 1963, 83 S. Ct. 822, 841, N.35, 372 US 391,

394, N.35 limits Sunal to “federal prisoners who did not

appeal their convictions” especially when the issues are

“not even of constitutional dimensions”.

Fay also instructed that “the Writ of Habeas Corpus is

a new suit” (id. 841/423, N.34) and “the judicial proceed-

ing under it is not to inquire into the criminal act which is

complained of, but into the right to liberty notwithstand-

ing the act. It is not a proceeding in the original action”

(id., N.34).

Petitioners thus argue this new proceeding should not

be considered a part of the underlying criminal case and

should have been decided on the merits by the Court of

Appeals and should so be decided here. See also Davis v.

U.S., 1974, 417 US 333, 345-346, 94 S. Ct. 2298, 2304-2305;

Kaufman v. U.S., 1969, 89 S. Ct. 1068, 1072, 349 US 217, 223

which confines Sunal to not taking an appeal and the

facts of that case and expanding habeas corpus to a

plenary remedy and Hilton v. Braunskill, 1987, 107 S. Ct.

2113, 2118 and N.5, __ US __, advising civil habeas

corpus allows fashioning an appropriate remedy.

In sum, Gibson has been deprived of a lawyer of his

choice and required to proceed with a court selected

District of Columbia lawyer whose interests and strategy

may differ from Gibson’s.

If the District Court is determined to get rid of Brun-

wasser, it may fall within the reasoning of Strum v. Clark,

1987, C.A.3, 835 F.2d 1009, 1015. If it just doesn’t want to

deal with out of town counsel, it may have brought its

antagonism within the teaching of Johnson v. Mississippi,

1971, 403 US 212, 216, 91 S. Ct. 1778, 1780 (prejudice

against civil rights lawyers).

Petitioners respectfully suggest that removal of a

selected lawyer and substitution of a court selected law-

yer against Gibson’s wishes and a bar against Gibson’s

filing his own pleadings and/or legal talking to Brun-

wasser in the District also provide the rare and unusual

circumstances required by the Court of Appeals’ January

17, 1989 order; see Perry v. Leeke, January 10, 1989, __ US

__, 109 S. Ct. 594, 600 (no right to confer with counsel

during cross-examination, but general bar un-

constitutional).

On December 23, 1988, en banc, twelve Judges, the

District of Columbia Court of Appeals expanded habeas

corpus to strike down a criminal change of venue without

prior entry of a rule to show cause so defendant there

could resist before the transfer order was entered;

Chatman-Bey v. Thornburgh, 864 F.2d 804.

Petitioners respectfully suggest removal of counsel

and what has been detailed above comes within Chatman

and should enjoy at least similar procedures; see also

Koller v. Richardson-Merrill, Inc., 1984, C.A.D.C., 737 F.2d

1038, 1054 (once omitted, out of town lawyer can’t be

removed without previous hearing citing Third Circuit

cases); vacated, 105 S. Ct. 2757, 472 US 424 but with

removal hearing issue untouched; Carey v. Piphus, 1978,

98 S. Ct. 1042, 435 US 247; In Re American Cable Publica-

tions, Inc., 1985, C.A.10, 768 F.2d 1194, 1195 (client obtains

mandamus when his attorney is removed; appeal treated

as mandamus).

Petitioners also respectfully urge the United States

Supreme Court to grant certiorari because the counsel

procedure here is an “issue of first impression”; Schla-

genhauf v. Holder, 1964, 379 US 104, 110, 85 S. Ct. 234; In Re

United States, 1979, D.C.C.A., 598 F.2d 233, 237 or founded

upon improper reasons; Thermtron Products, Inc. v. Her-

mansdorfer, Judge, 1976, 423 US 336, 342-353, 98 S. Ct. 584,

589-594 or an unequal application of the law; Teague v.

Lane, supra, 49 CCH S. Ct. Bull. at Page 1184, 1192, 1207.

Also, if mandamus can be used to vacate a stay

which deprives a party of a requested Jury Trial;

Gulfstream Aerospace Corp. v. Mayacamas Corp., 1988, ___

US ___, 108 S. Ct. 1133, 1143, N.3, Petitioners suggest it is

also available when chosen counsel is removed.

Petitioners also respectfully suggest the #88-5002

decision has overruled, sub silento, the numerous Court

of Appeals cases cited in their reargument petition (19-A

to 34-A).

In sum, the Court of Appeals discharged its February

9, 1988 rule (36-A) without answering it when the issue

was one of pure law, had been briefed and was ripe for

decision; International Brotherhood of Electrical Workers v.

I.C.C., November 25, 1988, C.A.D.C., 862 F.2d 330, 334-335

(issue “purely a legal one”, appeal allowed especially if

issue will be presented in future cases and hardship

involved).

If Brunwasser attempts to practice in any future case

in the District Court, all other Judges, including Judge

Harris, will be required to respect his removal and not

allow him to practice so the decision has impact far

beyond this single case.

The #88-5023 Panel’s January 17, 1989 order relied on

three cases in holding Petitioners’ appeal barred by the

interlocutory rule (36-A).

Petitioners respectfully suggest that Flanagan v. U.S.,

1984, 465 US 259, 269 does not control because, there,

only the client appealed whereas here, both Gibson and

Brunwasser have appealed (1-A); see Law Offices of Chase

v. F.C.C., 1988, C.A.D.C., 843 F.2d 517, 521 (both attorney

and client must appeal); Richardson-Merrill, Inc. v. Koller,

1985, 105 S. Ct. 2787, N.3, 472 US 479, N.3 (attorney can

appeal his removal; client mzy be able to bring man-

damus or take interlocutory appeal).

Petitioners respectfully fail to understand and how

Penson v. Ohio, November 28, 1988, 57 U.S.L.W. 4020,

4023, 109 S. Ct. 346, 352 (counsel files Anders Brief and is

allowed to withdraw; failure to replace him during

appeal held error) applies to the issues in this case. In

fact, its holding that lack of counsel is presumed prejudi-

cial and non-harmless appears to support them.

Deaver v. Seymour, 1987, D.C.C.A., 822 F.2d 66, 70-1,

involved that Defendant’s attempt to remove the prosecu-

tor’s counsel whereas, here, defendants own selected

counsel has been removed.

Also, there, no habeas corpus was involved as here

and Deaver proceeded by rule of procedure declaratory

judgment, and injunction whereas, here, a constitutional

Article 1, Section 9, Clause 2 constitutional guarantee is

involved.

The Deaver Court also qualified its decision by a

requirement of good faith and lack of chill factors not

present there but which may be present here.

In Re Sealed Case, D.C.C.A., 1987, 829 F.2d 50, 53

qualified Deaver by advising the appointment of special

counsel could be raised if Colonel North was indicted,

but even there, Judge Williams would allow an appeal

before indictment (829 F.2d at 63).

Petitioners respectfully suggest attempting to remove

a prosecutor when he can be replaced by other already

employed and expert United States Attorneys is not the

same thing as removal of sixth amendment chosen coun-

sel and replacing him by a qualifications unknown to

Gibson attorney court appointed representative.

What if this lawyer omits to do something Brun-

wasser would do or recommend or does not follow pro-

cedures to preserve Gibson’s defenses and these defenses

are then held to have been waived; DeShaney v. Winnebago

County D.D.S., February 22, 1989, ___ US __, 109 S. Ct.

998, 1003, N.2.

Also, Brunwasser is barred from any post-conviction

proceedings and any requests for post-conviction relief in

the event appointed counsel functions ineffectively.

CONCLUSION

The recent case of Fuller v. Diesslin, February 24, 1989,

C.A. 3, 868 F.2d 604 is almost a twin of this case except

that out of town counsel was not admitted.

In granting habeas corpus directed to the State Court,

the Court of Appeals observed that lawyers are not fung-

ible, that the type of defense received and advice given

depends on the selected lawyer, availability of local coun-

sel is irrelevant, that hearing plus findings are required,

discussed the issues and factors to be considered, con-

cluded there is no presumption out of state counsel will

cause schedule problems or delay and observed the First

Circuit Court of Appeals is in agreement (868 F.2d at 608)

but the Eighth Circuit Court of Appeals disagrees and

created a presumption local counsel will provide a more

orderly case (868 F.2d at 612).

We thus already have a circuit disagreement on this

issue which is another good reason why certiorari should

be granted.

On balance, Petitioners respectfully urge the United

States Supreme Court to rule that whatever purpose was

to be served by removal of his chosen counsel without

due process and substitution of a lawyer he does not

want, but must pay, is far outweighed by the actual and

potential damage he and Brunwasser will face so that an

appeal should be allowed and/or relief provided by man-

damus or/and habeas corpus and certiorari allowed so

that the decisions of the Court of Appeals can be vacated

with directions to decide the issues on the merits.

Respectfully Submitted,

Jay Louis Gipson

Petitioner

1013 Alquin Street

McKeesport, PA

412-391-0329

ALLEN N. BRUNWASSER

Petitioner

P.O. Box 22212

Pittsburgh, PA 15222

412-391-0329

1-A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

vs. CR. #87-0311

(SSH)

JAY LOUIS GIBSON,

Defendant

XXXXX

UNITED STATES OF AMERICA

EX REL JAY LOUIS GIBSON, C.A. 87-1821

1013 ALQUIN STREET,

McKEESPORT, PA

(412) 391-0329,

Plaintiff,

vs.

DARREN WOLPERT, D.E.A.,

EAST BUILDING, NEAR THE NATIONAL

AIRPORT, WASHINGTON, D.C.,

Defendant

NOTICE OF APPEAL

(Filed Dec. 30, 1987)

1. The above cases were consolidated on Motion of

the United States Attorney by Judge Stanley S. Harris on

September 15, 1987.

2. On December 23, 1987, Judge Stanley S. Harris

entered Orders at both C.A. #87-1821 which he dismissed

and at Cr. #87-0311 in which he, inter alia, removed Allen

N. Brunwasser, Esquire, from the case and, in effect,

suspended him from functioning as a lawyer in Court

Room 14.

2-A

3. Allen N. Brunwasser, Esquire, and Jay Louis Gib-

son appeal from both the said Orders entered by district

Judge Stanley S. Harris at both C.A. #87-1821 and Cr.

#87-0311 on December 23, 1987 in the United States Dis-

trict Court for the District of Columbia.

4. Although, at first blush, Jay Louis Gibson’s

appeal in re removal of his counsel might appear inter-

locutory, he takes the position that this action of Judge

Harris has, on the facts and circumstances of this case,

deprived him of his sixth amendment right to counsel

who will defend him according to sixth amendment stan-

dards and also to fifth amendment due process so that he

has the absolute right not to be proceeded against at all

and has an immediate right of appeal similar to that in

double jeopardy and qualified and absolute immunity

cases.

A. For example, the lawyer Judge Harris appears

to want Jay Louis Gibson to retain has received 112 C.J.A.

appointments for 1986 and 1987 and been paid already

$73,753.64 on this work and Jay Louis Gibson will have

an almost impossible task of obtaining new counsel in the

District over the Christmas-New Year holidays.

B. Evitts v. Lucey, 1985, 469 US 387, 394, 105 S. Ct.

830, 835 (“as we have made clear, the guarantees of

counsel “cannot be satisfied by mere formal

appointment”).

C. Polk County v. Dodson, 1981, 454 US 312, 323,

102 S. Ct. 445, 452 (professional codes, not government

which pays salary, defines obligation of public defender

to client).

3-A

D. In Re Sealed Case, August 20, 1987, D.C.C.A.,

829 F.2d 50 (“here and now” conduct to please those

superiors who can hurt you discussed).

5. Jay Louis Gibson and Allen N. Brunwasser also

take the position that Jude Harris’ Orders are in the

nature of declaratory judgments which are appealable as

final orders; Thermice Corp. v. Vistron Corp., October 29,

1987, C.A.3, 832 F.2d 248, 251.

6. In addition, the Appeal Court can consider the

issue if it so desires as was done in Frazier v. Heebe, June

19, 1987, 107 S. Ct. 2607; see also Richardson-Merrill, Inc. v.

Koiler, 1985, 105 S. Ct. 2787, N.3 472 US 479, N.3 (attorney

can appeal his removal; client might be able to bring

mandamus or take interlocutory appeal).

7. The appeal is to the United States Court of

Appeals for the District of Columbia Circuit.

Respectfully Submitted,

/s/ Allen N. Brunwasser

Allen N. Brunwasser

P.O. Box 22212

Pittsburgh, PA 15222

412-391-0329

/s/ Jay Louis Gibson

Jay Louis Gibson

1013 Alquin Street

McKeesport, PA

412-664-4194

4-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 88-5002 SEPTEMBER TERM 1988

Cr. No. 87-0311

C.A. No. 87-1821

IN RE JAY LOUIS GIBSON and

ALLEN N. BRUNWASSER,

petitioners

PETITION FOR REHEARING AND SUGGESTIONS

OF REHEARING EN BANC FILED IN RE JANUARY

17, 1989 ORDER OF A PANEL COMPOSED OF ROB-

INSON, SILBERMAN AND WILLIAMS, CIRCUIT

JUDGES, WHO DENIED PETITION FOR WRIT OF

MANDAMUS FOR RELIEF OF ACTIONS OF UNITED

STATES DISTRICT JUDGE STANLEY S. HARRIS

TAKEN FROM SEPTEMBER 30, 1987 AT C.A.

#87-1821 AND Cr. #87-0311 AND, IN PARTICULAR,

ON DECEMBER 23, 1987

(Received January 30, 1989)

FILED ON BEHALF OF

PETITIONERS

JAY LOUIS GIBSON

1013 ALQUIN STREET

McKEESPORT, PA

412-391-0329

ALLEN N. BRUNWASSER

P. O. BOX 22212

PITTSBURGH, PA

412-391-0329

5-A

CERTIFICATION OF SERVICE

On the 31st day of January, 1989, copy hand deliv-

ered to Judge Stanley J. Harris and United States

Attorney.

/s/ Allen N. Brunwasser

Allen N. Brunwasser

TO THE HONORABLE, THE CHIEF JUDGE AND THE

ASSOCIATE JUDGES OF THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT:

Jay Louis Gibson and Allen N. Brunwasser

respectfully represent:

1. That on January 5, 1989, they filed a joint petition

for writ of mandamus, prohibition, exercise of super-

visory authority and extraordinary 28 USC 1651 relief

together with two volumes of an appendix with the Clerk

of this Honorable Court of Appeals.

2. That Jay Louis Gibson is a Defendant in a crimi-

nal case pending in the United States District Court for

the District of Columbia before District Judge Stanley J.

Harris and Allen N. Brunwasser is his attorney.

3. That the basic problem presented is the continued

determination of Judge Harris to eliminate Allen N. Brun-

wasser as Counsel because both he and Jay Louis Gibson

reside in the Pittsburgh, Pennsylvania area and Brun-

wasser is not admitted to practice in the District of

Columbia.

4. That on December 30, 1987, both Jay Louis Gibson

and Allen N. Brunwasser filed a notice of appeal from the

removal of Allen N. Brunwasser as counsel, without

6-A

advance notice or a hearing, all of which deprived Jay

Louis Gibson from selecting counsel of his choice (see

January 5, 1988 hearing, T12-13, Appendix #3) at C.A.

#87-1821 and Cr. #87-0311. This matter received #88-5002

(see Appendix #1, OA35-37).

5. That both proceedings were assigned to Circuit

Judges Robinson, Silberman and Williams who, on Febru-

ary 12, 1988, entered a rule on Jay Louis Gibson to show

cause why his appeal at #88-5023 should not be dis-

missed and February 9, 1988 ordered Judge Harris and

the United States Attorney respond “on the limited issue

of the propriety of the order of the District court with-

drawing permission for Attorney Brunwasser to appear

pro hac vice without providing notice and opportunity to

be heard and the resulting potential impact on Gibson’s

sixth amendment right to counsel” and denied the

remainder of the mandamus petition.

6. That Jay Louis Gibson filed a timely answer to

this rule (see Appendix #6, 57-a to 83-a).

7. That everything filed by Jay Louis Gibson and

Allen N. Brunwasser is again presented for this Court’s

convenience in an appendix filed with this present

petition.

8. That on January 17, 1989, the Panel denied the

petition for mandamus, discharged the appeal order to

show cause and affirmed the November 24, 1987 and

December 23, 1987 habeas corpus orders of Judge Harris.

9. That the February 9, 1988 rule and the January 17,

1989 orders are attached to this present petition.

7-A

A. Judge Harris did not answer, but the Assistant

United States Attorney did (see Appendix #6, 1-a to 54-a).

B. Mandamus Petitioners then filed a February

19, 1988 motion to strike (see Mandamus pleadings,

Appendix #5, 1-a to 68-a).

CONCISE STATEMENT OF ISSUE

AND ITS IMPORTANCE

A. Petitioners respectfully suggest the January 17,

1988 Panel decision conflicts with Koller v. Richardson-

Merrill, Inc., 1984, C.A.D.C., 737 F.2d 1038, 1054.

B. Petitioners believe and urge the Court to rule

that the issue of removing Gibson’s chosen Counsel sua

sponte and without a hearing is of sufficient exceptional

importance to allow en banc review especially when the

impact of exclusion Local Rule 104 is presently in adjudi-

cation doubt and failure to resolve it now can generate

numerous problems when out of District of Columbia

Counsel are prevented from representing their clients in

the District of Columbia.

C. The United States Supreme Court granted cer-

tiorari in Virgin Island Bar Assn. v. Thorstein at #87-2008 on

June 30, 1988 and Petitioners believe that decision may

control this case and thus respectfully urge this Honor-

able Court to reinstate this case plus await the learning

which may be presented by the United States Supreme

Court.

D. In addition, Petitioners respectfully suggest

that it would be a waste of judicial resources to dismiss

this case and then, if the Virgin Island case disclosed an

8-A

error was made, have the residency issue presented

again.

LAW OVERLOOKED OR MISAPPREHENDED

AND ARGUMENT

10. The Sixth Amendment gives Jay Louis Gibson a

clear right to counsel of his choice; Pennsylvania v. Finley,

1987, _US___, 107 S. Ct. 1990, 1993; U.S.A. v. Lee, 1956,

D.C.C.A., 235 F.2d 219, 221 and the clear right to consult

with counsel of his choice; Mudd v. U.S.A., 1986,

C.A.D.C., 798 F.2d 1509, 1510-1514; Martin v. Lauer, 1982,

C.A.D.C., (Stanley S. Harris, United States Attorney), 686

F.2d 24, 32-36 and N.36.

11. Judge Harris destroyed that clear right when he

removed Allen N. Brunwasser from all participation in

his case.

A. At the January 5, 1988 proceeding (see Appen-

dix #3, T12-13) Judge Harris advised Jay Louis Gibson

“Certainly you are free to talk with Mr. Brunwasser in

Pennsylvania or anywhere else. Mr. Brunwasser may not

represent you in this case.”

B. At the same January 5, 1988 proceeding, Judge

Harris authorized and/or approved the actions of two

United States Marshalls who prevented in the audience

Brunwasser from even visual contact with Jay Louis Gib-

son or Attorney Jeffrey Jacobovitz, both of whom were at

counsel table (see Motion to Amend, Appendix #5, Pages

2 to 3, 23-a to 24-a).

C. Judge Harris has refused to advise Jay

Louis Gibson or Allen N. Brunwasser exactly what his

9-A

Brunwasser removal order covers (see original Petition

for Mandamus, Appendix #5, Page 4, 5-a) and thus places

them at risk if either does what Judge Harris, after the

fact, says was forbidden.

12. Both Jay Louis Gibson and Allen N. Brunwasser

have a clear Fifth Amendment right not to suffer eco-

nomic discrimination which excludes Gibson’s Counsel

from participation at this trial and/or favors local practi-

tioners; Frazier v. Heebe, 1987, __US__, 107 S. Ct. 2607;

Esposito v. Barnard, 1987, C.A.3, 829 F.2d 1436.

13. Jay Louis Gibson and Allen N. Brunwasser

respectfully suggest a fair evaluation of the record here

clearly discloses Judge Harris took away that right.

14. Both Jay Louis Gibson and Allen N. Brunwasser

have a clear right that Brunwasser, once admitted, not be

removed without a previous to removal hearing.

A. Koller v. Richardson-Merrill, Inc., 1984,

C.A.D.C., 737 F.2d 1038, 1054 (vacated 105 S. Ct. 2757, 472

US 424 but with Court of Appeals removal decision

untouched) directs that, once admitted, an out of town

lawyer can’t be removed without a previous hearing and

cites with approval Cooper v. Hutchinson, 1950, C.A.3, 184

F.2d 119, 123 and Johnson v. Trueblood, 1980, C.A.3, 629

F.2d 302. See also Carey v. Piphus, 1978, 98 S. Ct. 1042, 435

US 247.

B. Local Rule 104 was amended on October 6,

1987 to provide for a pre-removal hearing if counsel is

removed “for nonattendance” and foreclosing said

removal to “without adequate cause”.

10-A

(1) Local Rules are to be obeyed unless there

are “uncontrollable circumstances”; Kass v. Baskin, 1947,

C.A.D.C., 164 F.2d 513, 516.

(2) A rule of court has the force of law; Weil v.

Neary, 1928, 278 US 160, 169, 49 S. Ct. 144, __, citing two

District of Columbia Court of Appeals cases.

(3) The best way to interpret a rule is to read

what it says; Nichols v. Board of Trustees of the Asbestos

Workers Local 24 Pension Plans, 1987, C.A.D.C., 835 F.2d

881, 892, N.86.

15. Jay Louis Gibson and Allen N. Brunwasser

respectfully suggest that a fair evaluation of this record

clearly discloses Judge Harris has taken away this clear

right.

16. The Panel’s January 17, 1989 order took judicial

notice of #88-5023 where Jay Louis Gibson’s and Allen N.

Brunwasser’s appeals were dismissed (Jay Louis Gibson

and Allen N. Brunwasser are filing a motion for rehearing

and suggestion for rehearing en banc on this January 17,

1989 order and respectfully request it be examined as part

of deciding this petition).

17. Jay Louis Gibson and Allen N. Brunwasser thus

respectfully suggest they have no other adequate remedy.

18. Petitioners also respectfully suggest the duty of

Judge Harris to have a pre-removal hearing was not

discretionary but was absolute.

A. The Court is respectfully requested to apply

the cases cited above and

B. Also consider

11-A

(1) Ramirez v. Rivera-Dueno, November 17, 1988,

C.A.1, 861 F.2d 328, 334-5 (District Court denies trial and

orders parties to mediate liability, collateral review on

appeal not available, mandamus proper).

(2) Schlagenhauf v. Holder, 1964, 379 US 104, 110,

85 S. Ct. 234 (mandamus proper to determine “issue of

first impression in re interpretation of F.R.C.P. 35).

(3) In Re United States, 1979, D.C.C.A., 598 F.2d

233, 237 (affirming Schlagenhauf on the “issue of first

impression” and, in refusing relief, advising relief proper

when court acts sua sponte without motion and declining

to advise if “supervisory” and “advisory” mandamus are

still available).

(4) Colonial Times, Inc. v. Gasch, U.S.D.J., 1975,

D.C.C.A., 509 F.2d 517, 525, 526, N.25 (Schlagenhauf

affirmed on “issue of first impression”, writ granted

when District Court refused to allow depositions be taken

without stenographer; “supervisory mandamus” instruct

to District Courts on undecided issues in order to elimi-

nate presently non-appealable uncertainty and set stan-

dards discussed; mandamus like injunctive relief and

proper when lower court applies wrong factors or

neglects to apply correct ones).

(5) National Right to Work Legal Defense and Edu-

cation Foundation, Inc. v. Richey, U.S.D.J., 1975, 510 F.2d

1239, 1243 (mandamus refused in disclosure order but

indication deliberate violation of rules sufficient to grant

it or to clarify a legal question that might aid lower court

Judges who are in conflict or doubt; Schlagenhauf and

Gasch, supra, approved.

12-A

(6) Five v. McGuire, 1970, C.A.D.C., 433 F.2d 499,

501 (mandamus used to vacate sua sponte venue transfer

order).

(7) Appeal of Ligett Group, Inc., 1986, C.A.3, 785

F.2d 1109, 1117 (unappealable order clearly erroneous

because of application of wrong standards sufficient for

mandamus).

(8) American Catacean Society v. Baldridge, 1985,

C.A.D.C., 768 F.2d 1425 (ministerial duty to act can be

enforced by mandamus which is also good to decide

interpretation doubt).

(9) In Re American Cable Publications, Inc., 1985,

C.A.10, 768 F.2d 1194, 1195 (client obtains mandamus

when his attorney is removed; client’s appeal treated as

mandamus).

(10) Gulfstream Aerospace Corp. v. Mayacamas

Corp., March 22, 1988, __ US__, 108 S. Ct. 1133, 1143, N.3

(stay order which deprives party of requested Jury Trial

can be reversed on mandamus citing Beacon Theatres, Inc.

v. Westover, 1959, 359 US 500, 510-511, 79 S. Ct. 948, 957.

(11) In Re Zweibon, 1977, D.C.C.A., 565 F.2d 742

(mandamus proper when party deprived of requested

jury Trial, Beacon, supra, cited with approval).

(12) Hewlett v. Davis, April 6, 1988, C.A.3, 844

F.2d 109, 115 (28 USC 1447 (d) prohibitions of appeal or

mandamus from removal remand to state court is no bar

to mandamus when improper remand reason used by

district Court citing Thermtron Products, Inc. v. Her-

mansdorfer, Judge, 1976, 423 US 336, 342-353, 96 S. Ct. 584,

589-594).

13-A

(13) U.S. Industries, Inc. v. Blake Construction Co.,

1982, C.A.D.C., 671 F.2d 539, 551 approving Thermtron

and issuing 1982, C.A.D.C., 671 F.2d 539, 551 approving

Thermtron and issuing mandamus to correct remand for

improper reason.

19. Petitioners respectfully urge the Court en Banc

to rule that they have clearly brought themselves within

the provisions of its only cited case of Ganem v. Heckler,

1984, C.A.D.C., 746 F.2d 844, 852 where, incidentally,

mandamus was allowed to direct the Secretary of Health

to make an available investigation of the law so she could

render a decision and to reject her argument she had no

means to make this investigation.

20. Petitioners have a clear right to a pre-removal of

Brunwasser hearing once he is admitted even if he could

have been properly excluded; Koller v. Richardson-Merrill,

Inc., 1984, C.A.D.C., 737 F.2d 1038, 1054.

A. The District Court had an absolute duty to

grant this pre-removal hearing and did not.

B. There is no other adequate remedy available

especially since Petitioners’ appeal was dismissed at

#88-5023 on January 17, 1989.

C. If denial of the right to a Jury Trial is sufficient

grounds for mandamus, Petitioners respectfully suggest

denial of an entire trial comes within the protection of

that rule.

D. Petitioners have reproduced in six appendix

volumes the records to this point and incorporate this

material into this petition with the respectful request it be

read in deciding this present petition.

14-A

WHEREFORE, Jay Louis Gibson and Allen N. Brun-

wasser respectfully request rehearing and make a sugges-

tion and request for rehearing en banc.

Respectfully Submitted,

Jay Louis Gibson

/s/ Allen N. Brunwasser

Allen N. Brunwasser

15-A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5002 September Term, 1987

CA 87-01821

CR 87-00311

In re:

Jay Louis Gibson and

Allen N. Brunwasser,

Petitioners

BEFORE: Robinson, Silberman, and Williams

Circuit Judges

ORDER

(Filed February 9, 1988)

Upon consideration of the petition for writ of man-

damus filed in this action and the record in the court

below, it is

ORDERED by the court that respondents answer the

petition on the limited issue of the propriety of the order

of the district court withdrawing permission for Attorney

Brunwasser to appear pro hac vice without providing

notice and opportunity to be heard, and the resulting

potential impact on Gibson’s Sixth Amendment right to

counsel. Respondents will file answers by February 19,

1988. It is

FURTHER ORDERED that the petition for writ of

mandamus be denied in all other respects.

Per Curiam

16-A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5002 September Term 1988

Cr. No. 87-0311

C.A. No. 87-1821

In Re:

Jay Louis Gibson and

Allen N. Brunwasser,

Petitioners

BEFORE: Robinson, Silberman and Williams, Cir-

cuit Judges

GOROER

(Filed January 17, 1989)

Upon consideration of petitioners’ Motion to Amend

Petition, etc., filed January 12, 1988; Second Motion to

amend Petition, etc., filed January 19, 1988; second Sec-

ond Motion to amend Petition, etc., filed February 16,

1988; Fourth Motion to Amend Petition, etc., filed Febru-

ary 22, 1988; motion to strike the respondent United

States’ answer to the petition for writ of mandamus; and

respondent United States’ motion for leave to file cor-

rected copy of its opposition, it is

ORDERED that petitioner’ motions to amend and

respondent United States’ motion for leave to file cor-

rected copy of its opposition be granted. It is

17-A

FURTHER ORDERED that petitioners’ motion to

strike the United States’ answer to the petition for writ of

mandamus be denied.

Per Curiam

18-A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5002 September Term, 1988

Cr. No. 87-0311

C.A. No. 87-1821

In Re:

Jay Louis Gibson and

Allen N. Brunwasser,

Petitioners

BEFORE: Robinson, Silberman and Williams, Cir-

cuit Judges

ORDER

(Filed January 17, 1989)

Upon consideration of the petition for writ of man-

damus filed in this action and the record in the court

below, and taking judicial notice of the proceedings in

Gibson v. Wolpert, No. 88-5023 (D.C. Cir. docketed January

25, 1988), it is

ORDERED that the petition for writ of mandamus be

denied. Mandamus is an extraordinary remedy that is not

available unless the petitioner has a clear right to the

relief sought, the respondent has a nondiscretionary duty

to honor that right, and no other adequate remedy is

available. See Ganem v. Heckler, 746 F.2d 844, 852 (D.C. Cir.

1984). None of these factors is present in this case.

Per Curiam

19-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.88-5023 SEPTEMBER TERM 1988

C.A. No. 87-01821

Cr. No. 87-0311

UNITED STATES OF AMERICA

EX REL JAY LOUIS GIBSON

1013 ALQUIN STREET

McKEESPORT, PA

(412) 391-0329

Appellants

VS.

DARREN WOLPERT, D.E.A.

EAST BUILDING, NEAR THE

NATIONAL AIRPORT, WASHINGTON, D.C.

PETITION FOR REARGUMENT AND REHEARING

AND SUGGESTION REQUEST FOR REHEARING

AND REHEARING EN BANC FILED BY APPEL-

LANTS JAY LOUIS GIBSON AND ALLEN N. BRUN-

WASSER FROM THE JANUARY 17, 1989 PANEL

DECISION OF ROBINSON, SILBERMAN AND WIL-

LIAMS, CIRCUIT JUDGES, AFFIRMING HABEAS

CORPUS DISMISSAL BY UNITED STATES DISTRICT

JUDGE STANLEY J. HARRIS OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA AT C.A. #87-01821 ON NOVEMBER 24,

1987 AND AFFIRMING HIS DENIAL OF RECON-

SIDERATION ON DECEMBER 23, 1987

(Received January 30, 1989)

CERTIFICATION OF SERVICE

On the 31st day of January, 1989, copy hand deliv-

ered to United States District Judge Stanley J. Harris at

20-A

his chambers in the United States Court House in Wash-

ington, D.C. and to the United States Attorney by leaving

same at his office, 555 4th Street, N.W., Washington, D.C.

/s/ Allen N. Brunwasser

Ailen N. Brunwasser

TO THE HONORABLE, THE CHIEF JUDGE AND THE

ASSOCIATE JUDGES OF THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT:

Jay Louis Gibson and Allen N. Brunwasser, Appel-

lants, respectfully request reargument and rehearing and

suggest rehearing and rehearing en banc, and in support

of this request, aver as follows:

FACTS NECESSARY TO UNDERSTAND THIS PETITION

1. The Court of Appeals is respectfully requested to

observe that this appeal is a companion case to #88-5002

and that Appellants have filed a petition for reaargument

and rehearing and a suggestion of rehearing and rehear-

ing en banc on January 31, 1989 together with six appen-

dix volumes containing all material on record in this

Court to date.

2. The Court is also respectfully asked to observe

that both Jay Louis Gibson and Allen N. Brunwasser are

Appellants in this case and the notice of appeal clearly

disclosing that both Jay Louis Gibson and Allen N. Brun-

wasser appealed is attached to the “Answer to show

cause order issued February 12, 1988-” (see photo at end

of that pleading which appears in Appendix #6, 81-a to

83-a, and appears in Appendix #1, OA-35 to 37).

21-A

A. The original petition, filed July 8, 1987 at C.A.

#87-01821 in the District Court, was first assigned to

United States District Judge Harold H. Greene and has

been photographed as part of Appellants’ answer to this

Court’s February 12, 1988 rule (see Appendix #6, 63-a to

80-a).

B. The said petition requested numerous avenues

of relief which included “Petition for writ of habeas

corpus, suppression of evidence, permission to have

Allen N. Brunwasser, Esquire, admitted specially for this

case, transfer of case to the United States District Court

for the Western District of Pennsylvania at Pittsburgh,

Pennsylvania under authority of F.R.Cr.P. 21(b) and 22,

order that case not be presented to Grand Jury on sched-

uled July 14, 1987 presentation date, remand to Magis-

trate A. L. Burnette with directions to issue subpoenas

and have full preliminary hearing and other relief includ-

ing obtaining June 24, 1987 and June 29, 1987 Magistrate

transcripts plus attendance of Paul Cutler at Magistrate

hearing”.

3. On November 16, 1987, Judge Harris held that a

July 16, 1987 Grand Jury indictment mooted the July 8,

1987 civil petition “in major part” and, since it had been

joined with the criminal case, dismissed it, “sua sponte”

for the sole reason that it “is both extraordinary and

troublesome from the standpoint of orderly filings”

(Appendix #2, 12-a to 13-a).

A. Gibson then filed a timely “Motion for recon-

sideration, reargument, to amend the order and/or judg-

ment and for F.R.Cr.P. 60(b) relief” (Appendix #2, 14-a to

19-a).

22-A

B. On November 24, 1987, Judge Harris denied

that Motion (Appendix #2, 24-a to 29-a) and, for a good

measure, sua sponte concluded “it must revoke the pro

hac vice appearance of Allen N. Brunwasser” (Appendix

#2, 24-a) and did so without even a previous warning ora

hearing (Appendix #2, 29-a, 40-a).

(1) Appellants respectfully ask the Court of

Appeals to read the discussion of Judge Harris in his

“Memorandum Opinion” (Appendix #2, 24-a to 29-a) and

(2) Then find that Local Rule 104 (j) as amended

October 6, 1987 forbids removal without “notice and after

affording an opportunity to be heard” where an issue

would be “adequate cause” (Appendix #2, 1-a).

C. Judge Harris’ November 24, 1987 “Memoran-

dum Opinion” did not even mention the pending motion

for reconsideration which Jay Louis Gibson considers

denied sub silento

(1) On December 23, 1987 Judge Harris did

advise that the entire motion had been denied (Appendix

#1, OA-2, N.2 and OA-3, Paragraph #4).

(2) The Opinion Foot Note #7 also advised Jay

Louis Gibson and Allen N. Brunwasser that a lawyer’s

removal cannot be challenged by an interlocutory appeal

(Appendix #2, 29-a, N.7).

D. Both Jay Loui Gibson and Allen N. Brun-

wasser filed a November 30, 1987 challenge (Appendix

#2, 41-a to 56-a) to Judge Harris’ November 24, 1987

Order and also requested Judge Harris be more specific

as to exactly what Allen N. Brunwasser and Jay Louis

23-A

Gibson were allowed to do in the attorney-client area

(Appendix #2, 55-a to 56-a).

(1) The Prosecutor formally opposed this

November 30, 1987 Motion (Appendix #2, 93-a) for the

reasons given in the November 24, 1987 Opinion.

(2) Attorney Jacobovitz, who had been ordered

to continue (Appendix #2, 40-a) then moved to withdraw

(Appendix #2, 95-a to 101-a).

(3) Jay Louis Gibson then requested “an eviden-

tiary hearing” (Appendix #2, 102-a to 106-a).

E. On December 23, 1987, Judge Harris refused

the November 30, 1987 Motion of both Jay Louis Gibson

and Allen N. Brunwasser (Appendix #1, OQA-1 to OA-6),

advised that Local Rule 104 (j) was not a basis for what

was done (Appendix #1, OA2, N.4), reaffirmed what he

had done and concluded (Appendix #1, OA-6) “the civil

action remains dismissed”.

F. On December 30, 1987, Jay Louis Gibson filed a

motion to recuse Judge Harris (Appendix #1, OA-7 to

OA-20) and on the same day, both Jay Louis Gibson and

Allen N. Brunwasser filed a notice of appeal (Appendix

#1, OA-35 to OA-38; see also Prosecutor’s answer to

February 12, 1988 rule, Appendix #6, 82-a, N.4.

4. On February 12, 1988, mentioning only Jay Louis

Gibson as “Appellant” the assigned Panel issued a rule

on him to show cause why his appeal should not be

dismissed because of Deaver v. Seymour, __, 822 F.2d 166

(D.C. Cir. 1987).

A. A photo of this Order is attached to this

petition.

24-A

‘B. On February 29, 1988, Jay Louis Gibson express

mailed an answer which is photographed in Appendix

#6, 57-a to 83-a and, inter alia, says in its Paragraph 5C

“Gibson also respectfully asks the Panel to evaluate Para-

graph 6 of the notice of appeal insofar as it impacts upon

the right of himself and Allen N. Brunwasser to appeal

both here and at #88-3005” (Paragraph 3 of the said

appeal notice (Appendix #6, 81-a) specifically declares

“Allen N. Brunwasser, Esquire, and Jay Louis Gibson

appeal-”.

5. On January 17, 1989, the assigned Panel affirmed

the orders on appeal. A photo of this order is attached to

this present petition.

CONCISE STATEMENT OF ISSUE AND ITS IMPOR-

TANCE AND CITING UNITED STATES SUPREME

COURT, THIS COURT AND OTHER FEDERAL

COURTS IN CONFLICT WITH THE JANUARY 17,

1989 PANEL DECISION

A. Petitioners respectfully argue that the Sixth

Amendment right to chosen counsel who, once admitted,

cannot be removed without a previous hearing and just

cause, the impositioning of local economic oriented trade

barriers to favor local counsel and exclude out of town

counsel, the right to a stenographer and subpoenas and

non-hearsay evidence at a preliminary hearing, the con-

stitutional right to challenge violation of these other

rights by a civil habeas corpus which is an original — not

part of the criminal case — remedy and the right to appeal

from an adverse decision on the above are of sufficient

exceptional importance to justify an immediate appeal

especially when client and his removed attorney join.

25-A

B. Petitioners urge this distinguished Court of

Appeals to evaluate whether affirming what Judge Harris

has done and how he did it, especially when his very

opinion (see Appendix #2, 29-a, N.7) opined his decision

could not be immediately appealed, will result in future

contra-criminal case Defendants arbitrary lower court

rulings.

C. Petitioners respectfully suggest that the Janu-

ary 17, 1989 decision of the Adjudication Panel has

directly overruled Washington v. Clemmer, 1964,

D.C.C.A., 339 F.2d 315 which holds the exact opposite in

re habeas corpus before conviction and the right to an

immediate before conviction appeal.

D. Petitioners also urge the Court en banc to rule

that the Adjudication Panel has not only misread and

erroneously applied Flanagan v. U.S., 1984, 465 US 259;

Deaver v. Seymour, C.A.D.C., 1987, 822 F.2d 66; Penson v.

Ohio, 1988, 57 U.S.L.W. 4020, 109 S. Ct. 346 and Sunal v.

Large, 1947, 332 US 174, 67 S. Ct. 1588, but that those cases

actually support Petitioners.

E. Petitioners also argue that the said January 17,

1989 decision has overruled the learning of Fay v. Noia,

1963, 83 S. Ct. 822, 372 US. 391; Vavis v. U.S., 1974, 417 US

333, 94 S. Ct. 2298 and Kaufmann v. U.S., 1969, 89 S. Ct.

1068, 394 US 217 for the reasons discussed, infra, in this

petition.

F. Petitioners respectfully suggest resolution of

the above issues by allowance of immediate appeal will

aid the efficient administration of justice in this Circuit

and should be decided now so as not to, by a procedural

blockade, remove habeas corpus, advance notice and a

26-A

pre-decision hearing, the right to chosen counsel and

habeas corpus from the federal constitution and relegate

them from efficient protections to back shelf ineffective

remedies.

G. Petitioners also respectfully suggest that if the

United States Attorney agrees with the above, his duty is

to so advise the court; Leahy v. District of Columbia, 1987,

C.A.D.C., 833 F.2d 1046, 1049, N.5.

APPELLANTS’ ARGUMENT IN SUPPORT OF THEIR

PETITION FOR REARGUMENT, REHEARING AND

SUGGESTION OF REHEARING AND REHEARING

EN BANC

6. The January 17, 1989, Panel Order affirming

Judge Harris’ dismissal of Gibson’s July 8, 1987 original

petition, attached to this petition, relies on four cited

cases so Appellants will here attempt to show why none

of these four cases apply or were erroneously applied or

misapprehended as to what each held.

SUNAL V. LARGE, 1947, 332 US 174, 179 AND N.11

7. Washington v. Clemmer, 1964, D.C.C.A., 339 F.2d

715 is a factual twin of Jay Louis Gibson, refused to apply

Sunal and granted habeas corpus relief.

A. There, as here, a criminal defendant was

refused at his preliminary hearing the right to a stenogra-

pher, the right to subpoenas and the right to be presented

with eye-witnesses first hand evidence instead of hearsay.

27-A

B. After being bound over for trial but before trial

Or conviction, he brought habeas corpus which was

denied by the District Court but reversed on appeal.

(1) The Appeal Court’s supervisory power was

used as authority and

(2) The case was remanded for a complete evi-

dentiary hearing with a stenographer plus requested sub-

poenas and

(3) Jurisdiction was retained to monitor what

was done in the District Court.

8. Sunal does not confine habeas corpus to “rare

and unusual circumstances” as the Panel’s January 17,

1989 order concludes:

A. The Sunal habeas corpus petitioner lost

because he did not appeal his draft case when he could

have and, after the time limit had run, tried to use habeas

corpus as an alternative to appeal.

B. Even then, the opinion advised that if defen-

dant had appealed and lost, there might be a different

decision (332 US at 181, 676 S. Ct. at 1592).

C. The Supreme Court was concerned that

allowance of this procedure would mean a case was never

over and observed that only a procedural — not a consti-

tutional right, which might be sufficient for habeas

corpus was involved (id. at 182, 1593).

D. The Supreme Court concluded “When an

opportunity to be heard is denied altogether, the ensuing

mandate of the court is void, and the prisoner confined

28-A

thereunder may have recourse to habeas corpus to put an

end to the restraint” (id. 184, 1593).

E. Petitioners were given no hearing by Judge

Harris and respectfully argue that Sunal is authority for

them rather than against them.

9. Fay v. Noia, 1963, 83 S. Ct. 822, 841, N.35, 372 US

391, 424, N.35 limits Sunal to “federal prisoners who did

not appeal their convictions, could not be released on

habeas corpus” especially when the issues are “not even

of constitutional dimensions”. |

A. Fay also instructed that “the writ of habeas

corpus is a new suit—” (id. 841/423, N.34) and

B. “The judicial proceeding under it is not to

inquire into the criminal act which is complained of, but

into the right to liberty not withstanding the act. It is not

a proceeding in the original action” (id. N.34).

C. Jay Louis Gibson and Alien N. Brunwasser

thus respectfully argue that this new proceeding should

not be considered a part of the underlying criminal case

and should have been decided on the merits below and

also should be so decided here.

10. Davis v. U.S., 1974, 417 US 333, 345, 94 S. Ct.

2298, 2304 advised that Sunal is limited to a case where

habeas corpus is used to overcome a previous deliberate

failure to take an available appeal and where no constitu-

tional issues are involved and (94 S. Ct. at 2305, 417 US at

345-6) appears to confine it “to the particular consider-

ations dispositive in that case” but says “where the need

for the remedy afforded by the writ of habeas corpus is

29-A

apparent” such as a “fundamental defect which results in

a complete miscarriage of justice”, it will be granted.

11. Kaufmann v. U.S., 1969, 89 S. Ct. 1068, 1072, 349

US 217, 223 not only confine Sunal to non-constitutional

issues but also advises it is not like an appeal because-

A. “The function of habeas corpus is different. It

is to test by way of an original civil proceeding, indepen-

dent of the normal channels of review of criminal judg-

ments, the very gravest of allegations” and “-the power

of inquiry on federal habeas corpus is plenary” and also

advised

B. If the facts alleged were proved “would entitle

him to relief, the federal court to which the application is

made has the power to receive evidence and try the facts

anew”.

12. Cameron v. Mullen, 1967, C.A.D.C., 387 F.2d 193

affirmed District Court release by habeas corpus of a

formerly acquitted by reason of insanity defendant who

was then committed and held a pending appeal by defen-

dant of her commitment to be no bar.

13. Hilton v. Braunskill, 1987, 107 S. Ct. 2113, 2118

and N.5, __ US __ and Note 5 advises that habeas

corpus is a civil proceeding in which the court may

fashion an appropriate remedy.

14. Petitioners thus respectfully urge the Court to

reconsider and now rule that Sunal is no bar to habeas

corpus relief and this relief is available to Jay Louis

Gibson both before Judge Harris and here.

30-A

FLANAGAN V. UNITED STATES, 1984, 465 US 259,

269

15. Petitioners respectfully suggest that Flanagan is

no bar because the decision applies only to an appeal by

the client (as there) but not to the situation where the

removed lawyer also appeals (as here) especially since

the removed attorney’s appeal will not disrupt the trial

which problem was the main concern of the Flanagan

court.

A. Petitioners respectfully suggest the Appeals

Panel thought only Jay Louis Gibson had appealed and

B. Did not consider the impact of Brunwasser’s

appeal as explained: in Richardson-Merrill, Inc. v. Koiler,

1985, 105 S. Ct. 2787, N.3, 472 US 479, N.3 (attorney can

appeal his removal; client may be able to bring man-

damus or take interlocutory appeal).

C. In fact, removal of counsel on non-residence

grounds was considered on appeal in Frazier v. Heebe,

1987, .. US, 17 S. GA. Bat.

D. Apparently both client and his attorney must

appeal or counsel will lose; Law offices of Chase v. Federal

Communications Commission, March 25, 1988, D.C.C.A.,

843 F.2d 517, 521.

(1) Judge Williams’ discussion in his concurring

opinion observes a permanent order of removal is appeal-

able by counsel (853 F.2d at 524).

(2) Allen N. Brunwasser has been removed not

only in this case but for good in the District of Columbia

federal district court.

31-A

(3) If he would attempt representation in any

other case, Judge Harris and all other District of Colum-

bia Judges would obviously follow the removal decision

on appeal here.

(4) Dissenting Judge Wald’s opinion would

probably allow the appeal due to reputation and loss of

future fees problems (843 F.2d at 527).

PENSON V. OHIO, NOVEMBER 28, 1988, 57 U.S.L.W.

4020, 4023, 109 S. CT. 346, 352 (COUNSEL FILES

ANDERS BRIEF AND IS ALLOWED TO WITHDRAW;

FAILURE TO REPLACE HIM DURING APPEAL

HELD ERROR)

16. Petitioners respectfully suggest Penson’s ruling

that lack of counsel is presumed prejudicial and cannot

be considered harmless either at trial or on appeal is

actually a finding in their favor.

DEAVER V. SEYMOUR, 1987, D.C. CIR., 822 F.2d 66,

70-71

17. Deaver did not involve habeas corpus or appeal

but an attempt to use declaratory judgment and injunc-

tive proceedings to appeal an interlocutory order.

A. Jay Louis Gibson has distinguished this case in

his answer to this Court’s February 12, 1988 rule (Appen-

dix #6, 57-a to 83-a).

B. Jay Louis Gibson observes there that his

request went far beyond what Deaver attempted and spe-

cifies why.

32-A

C. Petitioners respectfully urge the Court to eval-

uate this response to the February 12, 1988 rule and

decree Deaver is no bar to this appeal especially when

brought in tandem with the mandamus and considering

that this is a joint appeal by both Allen N. Brunwasser and

Jay Louis Gibson.

D. Deaver was told his failure to remove the gov-

ernment’s choice of its lawyer would have to await an

appeal if he were convicted.

(1) This is sort of what has happened to Jay

Louis Gibson who has lost his lawyer of choice.

(2) However, Petitioners respectfully suggest

the free choice of counsel by a defendant subject to 20

years imprisonment is many times more vital than whom

the government, with its vast resources and wide area of

selection can choose, especially when the local United

States Attorney’s Office and the United States Depart-

ment of Justice are well staffed with experienced prosecu-

tors (i.e., the prosecution case will be properly presented

regardless of who does it whereas the function of defense

counsel is different and talent varies).

(3) Although the prosecutor filed no formal

motions to remove Allen N. Brunwasser, it did not object

to this rule entered at the #88-5002 mandamus (Appendix

#6,-1-a to 54-a).

(4) The Deaver’s Court also qualified its deci-

sion by a requirement of good faith and lack of “chill”

factors which may be present for Jay Louis Gibson which

are not factors evaluated by the Adjudication Panel.

33-A

(5) Since declaratory judgment requests a deci-

sion on complete merits and injunctive relief requires

balancing of prejudice plus likelihood of victory, Peti-

tioners respectfully suggest these remedies are not simi-

lar to the functions of habeas corpus which is a

constitutional right as opposed to the Deaver remedies

which are civil rules of procedure creations.

(6) In Re Sealed Case, D.C.C.A., 1987, 829 F.2d 50,

53 qualified Deaver by advising the appointment of Spe-

cial Counsel could be raised if Colonel North was

indicted, but even there, Judge Williams would allow the

appeal before indictment (829 F.2d at 63).

(7) Allen N. Brunwasser has been barred from

practice in the lower court.

a. If he would obtain a new client, the bar

would probably be given collateral respect by the entire

bench.

b. The issue of removal is one of pure law

and ripe for immediate decision; International Brotherhood

of Electrical Workers v. I.C.C., November 25, 1988,

C.A.D.C., 862 F.2d 230, 234.

34-A

CONCLUSION

Petitioner-Appellants respectfully urge reargument,

rehearing and rehearing en banc be granted.

Respectfully Submitted,

Jay Louis Gibson

/s/ Allen N. Brunwasser

Allen N. Brunwasser

35-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5023 September Term, 1987

CA 87-01821

Jay L. Gibson, United States

of America, ex rel,

Appellant

Darren Wolpert

BEFORE: Robinson, Silberman, and Williams

Circuit Judges

ORDER

(Filed February 12, 1988)

Upon taking judicial notice of the petition for writ of

mandamus filed in In re Gibson. and Brunwasser, No.

88-5002, the record in United States v. Gibson, Crim. No.

87-00311, and the records in United States v. Gibson, No.

87-3083 and In re Gibson and Brunwasser, No. 87-5309, it is

ORDERED by the court that Appellant show cause

within twenty-one days of the date of this order why the

order of the district court dismissing this case should not

be affirmed on the ground that the habeas corpus petition

constitutes an impermissible preemptive attack on pend-

ing criminal charges. Deaver v. Seymour, 822 F.2d 66 (D.C.

Cir. 1987).

Per Curiam

36-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5023 September Term, 1988

C.A. No. 87-01821

Jay L. Gibson,

United States of America, ex rel.,

Appellant

Vv.

Darren Wolpert

BEFORE: Robinson, Silberman, and Williams

Circuit Judges

ORDER

(Filed January 17, 1989)

Upon consideration of appellant’s response to the

order to show cause and the record herein, and taking

judicial notice of the record in In re Gibson and Brunwasser,

No. 88-5002 (D.C. Cir. docketed January 5, 1988), it is

ORDERED that the order to show cause be dis-

charged. It is

FURTHER ORDERED that the order dismissing the

case, filed by the district court on November 24, 1987,

and the order denying reconsideration, filed by the dis-

trict court on December 23, 1987, be affirmed. Orders

disqualifying defendani s counsel in a criminal proceed-

ing cannot be the subject of an interlocutory appeal. See

Flanagan v. United States, 465 U.S. 259, 269 (1984). Accor-

dingly, this court will review the errors claimed in this

criminal case on appeal after conviction. See Deaver v.

Seymour, 822 F.2d 66, 70-71 (D.C. Cir. 1987); cf. Penson v.

37-A

Ohio, 57 U.S.L.W. 4020, 4023 (Nov. 29, 1988). Habeas

corpus relief prior to conviction may be granted only in

rare and unusual circumstances. See Sunal v. Large, 332

U.S. 174, 179 & n.11 (1947).

The Clerk is directed to issue forthwith a certified

cepy of this order to the district court in lieu of formal

mandate.

Per Curiam

38-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5002 September Term, 1988

CR-87-322 & CA-87-1821

IN RE:

Jay Louis Gibson and

Allen N. Brunwasser

Petitioners

BEFORE: Robinson, Silberman, and Williams,

Circuit Judges

ORDER

(Filed March 15, 1989)

Upon consideration of petitioners’ petition for

rehearing, filed January 30, 1989, it is

ORDERED, by the Court, that the petition is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

39-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5002 September Term, 1988

CR-87-322 & CA-87-1821

IN RE:

Jay Louis Gibson and

Allen N. Brunwasser

Petitioners

BEFORE: Wald, Chief Judge, Robinson, Mikva,

Edwards, Ruth B. Ginsburg, Starr, Silber-

man, Buckley, Williams, D. H. Ginsburg

and Sentelle, Circuit Judges

ORDER

(Filed March 15, 1989)

Petitioners’ Suggestion For Rehearing En Banc has

been circulated to the full court. No member of the Court

requested the taking of a vote thereon. Upon consider-

ation of the foregoing it is

ORDERED, by the Court en banc, that the suggestion

is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

40-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5023 September Term, 1988

CA 87-01821

Jay L. Gibson, United States

of America, ex rel,

Appellant

Darren Wolpert

BEFORE: Robinson, Silberman and Williams, Circuit

Judges

ORDER

(Filed March 15, 1989)

Upon consideration of appellant’s petition for rehear-

ing, filed January 30, 1989, it is

ORDERED, by the Court, that the petition is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

41-A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5023 September Term, 1988

CA 87-01821

Jay L. Gibson, United States

of America, ex rel,

Appellant

Darren Wolpert

BEFORE: Wald, Chief Judge, Robinson, Mikva,

Edwards, Ruth B. Ginsburg, Starr, Silberman,

Buckley, Williams, D. H. Ginsburg and Sen-

telle, Circuit Judges

ORDER

(Filed March 15, 1989)

Appellant’s Suggestion For Rehearing En Banc has

been circulated to the full court. No member of the Court

requested the taking of a vote thereon. Upon consider-

ation of the foregoing it is

ORDERED, by the Court en banc, that the suggestion

is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

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