Petition — Jeffers v. United States

5 i

Ss. ome Curt, U. S,

Ll i WE D

| SEP.26 1975

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1975

NO. 75-482

GARLAND JEFFERS, NATHANIEL

JEFFERS, CLINTON BUSH, PAUL

GRIFFIN, CECELIA WILLIS, LEROY

WILLIAMS and WARNER SMITH,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MAX COHEN

504 Broadway, Suite 1012

Gary, Indiana 46402

Ph: (219) 886-3505

Attorney for Petitioners

INCEX 6

AUTHORITIES CITED

page

Cases PAGE

RNG GI oc cccncccccanveusecss 2

Faretta v. California 95 S.Ct 2525

PN os de cass che keneeeess 2 0) 0) See ee 9,14

Questions Presented ............0. 2 Glasser v. U.S. 315 U.S. 60, 62

&- & gg... | aero 10, 11

Constitutional Provisions Involved .. 3

Goodson v. Peyton (4 Cir.) 351 F.

Statement of Facts ....... irene are 3 ee ee b hwetesicenddcees icuaceeu 11

Reasons for Granting the Writ..... a Johnson v, Zerbst 304 U.S. 458,

o (1938) 58 S.Ct 1019, 82 L.Ed 1461, 19

I. The District Cart Committed

Prejudicial Error in Denying “ Olshen v. McMann 378 F. 2d 993

Defense Counsel's Motion for to OM ys PPPererererereeree 10

Leave to WithOrew .ccccccecs 7

Porter v. U.S. 298 F.2d 461

Il. Failure of Petitioners' Trial (5 Cir. 1962) eid ou ib ee ek ee 10

Counsel to Cross-Examine

the Client-Witness Deprived Scott v. District of Columbia

the Petitioners of the Effective G14 F.2d GOO (1953) 0... cccccccce 10

Assistance of Counsel ....... 17

Taylor v. U.S. (D.C. Cir. 1955)

Se 4 od Cues oe oe oe eeekee~enes 23 DED Fo Ge BF ccccveccececencees 10

Appendix A -- Cpinion of the Court U.S. v. Garcia 17 CrL 2446 (9/3/75) 13, 23

of Appeals for the Seventh

EE codceuuecueciecae des App. 1 Zurita v. U.S, (7 Cir. 1969) 410 F.

ok , Sarre re ss 10, 12, 16

Appendix B -- Order Denying Petition e

Bee Gees das ceeeeenece App. 21

Other Authorities

v

Amendment Six, Constitution of the

United States of America...... _ 3

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1975

NO,

GARLAND JEFFERS, NATHANIEL

JEFFERS, CLINTON BUSH, PAUL

GRIFFIN, CECELIA WILLIS, LEROY

WILLIAMS and WARNER SMITH,

Petitioners,

UNITED STATES OF AMERICA,

me mee ee ee ee ee ee ee

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioners respectfully pray that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit entered in this proceeding on July 30,

1975. A timely petition for re-hearing was filed

and denied on August 28, 1975.

OPINION BELCW

The opinion of the Court of Appeals, which

has not yet been reported, appears as Appendix A.

The order denying the petition for re-hearing ap-

pears as Appendix B.

JURISDICTION

The judgment of the United States Court of

Appeals for the Seventh Circuit was entered on

July 30, 1975. A timely petition for re-hearing

was filed and denied by order of Court on August 28,

1975. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

l. DID THE DISTRICT COURT COMMIT

PREJUDICIAL ERROR IN REFUSING TO PERMIT

DEFENSE COUNSEL TO WITHDRAW WHEN THE

COVERNMENT CALLED A CLIENT OF DEFENSE

COUNSEL'S FIRM AS A KEY WITNESS AND DE-

FENSE COUNSEL INFORMED THE COURT THAT

2

HIS CLIENTS ON TRIAL DID NOT WAIVE THE

CONFLICT AND DESIRED HIM TO WITHDRAW?

2. DID THE FAILURE OF PETITIONER'S

TRIAL COUNSEL TO CROSS-EXAMINE THE CLIENT-

WITNESS DEPRIVE THE PETITIONERS OF THE

EFFECTIVE ASSISTANCE OF COUNSEL?

CONSTITU*IONAL PROVISIONS INVOLVED

Amendment Six, Constitution of the United

States of America:

"In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial by an impartial jury of the State and

District wherein the crime shall have been

committed which District shall have been

previously ascertained by law and to be

informed of the nature and cause of the

accusation; to be confronted with the wit-

nesses against him; to have compulsory

process for \btaining witnesses in his

favor, and to have the assistance of counsel

for his defense, "'

STATEMENT OF FACTS

Petitioners were charged in a one count

indictment returned on March 17, 1974, with

3

violation of Sec. 846, Title 21 of the U. S. Code --

conspiracy to distribute narcotics and cocaine. At

the trial, all of the petitioners were represented by

the same law firm. Prior totrial, the petitioners

filed detailed motions for discovery and for a bill

of particulars. A substantial part of the relief re-

quested in those motions was to require the Govern-

ment to disclose the names of the witnesses it pro-

posed to call, This request was denied.

The trial commenced on June 17, 1974.

Metitioners' counsel never knew who the next wit-

ness would be until he was ushered into the court-

room. On the morning of June 24, 1974, the

Government called James Berry as a witness. As

soon as his identity was ascertained, counsel asked

for leave to withdraw and to declare a mistrial in

order to permit the petitioners to obtain other

counsel for the reason that a partner in counsel's

law firm had represented the witness in two

4

recent matters arising out of his membership in

the ''Family" street gang. Counsel also advised

the Court that the petitioners on trial were aware

of the conflict and did not wish for him to continue

in his representation of them.

After a lengthy series of colloquys between

counsel for the petitioners, counsel for the Govern-

ment and the Court, the motion for leave to with-

draw was denied and the trial judge ordered the

trial to continue.

The witness Berry then proceeded to testify

on direct-examination at great length and in great

detail concerning the criminal activities of all the

defendants except one, Smith. His direct-examina-

tion was spread over fifty-five (55) pages of the

trial transcript. He had become a member of the

"Family" in the early part of 1972, almost from

its inception, and was an integral part of the

organization, occupying a leadership position up

to the indictment and almost up to the eve of trial.

After the witness had concluded his direct-

examination, counsel for the petitioners elicited

testimony on cross-examination which reflected

that the witness had been a client of counsel's law

firm on two matters during 1973, and that the

matters in which counsel's partner had represented

him were in connection with his activities as a

member of the ''Family''. Counsel thereupon ad-

vised the Court that he had apprised his clients of

the situation and that his clients did not waive the

conflict and that his clients advised him that they

requested new counsel, Counsel again requested

permission to withdraw and stated that he could

not cross-examine further because of the conflict

situation. The Court ordered counsel to complete

the cross-examination of the witness. Despite

the directive of the Court, counsel failed to cross-

examine the witness Berry.

6

REASONS FOR GRANTING [HE WRIT

PHE PISTRICT COURT COMMITTED

PREJUDICIAL ERROR IN DENYING CEFENSE

COUNSEL'S MOTION FOR LEAVE TO WITHDRAW

Prior to trial, the petitioners, in a detailed

twenty-six (20) page motion for a bill of particulars,

had, amongst other things, requested the Govern-

ment to disclose the identity of all witnesses, in-

cluding informants, it proposed to call upon the

trial of the case, Initially, the trial court ordered

the Government to disclose, by name only, the

identity of all informants who were material witnesses

to anv of the alleged overt acts contained in the indict-

ment.

The Government then filed a motion to re-

consider that part of the order, objecting to the

required disclosure of the identity of all informants.

Che trial .ourt thereupon entered an amended

order Wich relieved the Government from the

responsibility of disclosing the identity of informers

the Government proposed to call as witnesses,

No claim was made by the Government that

it was not aware of the fact that counsel's firm had

represented the witness, By the very nature of

Berry's testimony, the Government had to be aware

of the prior representation vy counsel's law firm.

The basis for counsel's motion for leave to

withdraw was twofold: (1) that because Berry was a

client of his law firm, ethical considerations pre-

cluded him trom conducting an effective cross-

examination of the witness and (2) the client -

defendants were aware of the dual representation

and did not wish for him to continue in his repre-

sentation of them.

The District Court and the Court of Appeals

in its opinion only deal with the first contention.

Although the opinion of the Court of Appeals devotes

some fiiteen (15) pages to this issue, it nowhere

8

addresses the argument that because the petitioners

objected to counsel's continued representation the

District Court was obliged to grant the motion to

withdraw.

In a very recent case, under somewhat dif-

ferent circumstances, this Court has stated...

"To force a lawyer on a defendant can

only lead him to believe that the law

contrives against him." Faretta v.

California 95 S.Ct 2525 (1975) at page

2540.

In Faretta, the question before this Court

was whether or not a defendant had the right to de-

fend himself. This Court held that it was error to

force a defendant against his will to accept a State

appointed public defender, that such conduct de-

prived him of his constitutional right to conduct

his own defense. While the factual situation in

the case at bar is admittedly distinguishable, the

principle upon which Faretta was decided is

basically the same -- foisting unwanted counsel

———

upon a criminal defendant deprives him of due

process of law.

A long line of cases have held that a criminal

defendant is unconstitutionally deprived of the ef-

fective assistance of counsel when such counsel is

placed ina conflict situation either by representa-

tion of a Government witness or by representation

of a co-defendant whose interest is adverse or may

be adverse to that of the objecting defendant. Glasser

v. U.S, 315 U.S. 00, 62 S, Ct 457 (1942); Scott v.

District of Columbia 214 F, 2d 860 (1953); Taylor v.

U.S. D.C. Cir. 226 F.2d 337, (1955); Porter v.

U.S. 298 F.2d 461, (5 Cir. 1962); Olshen v. McMann

378 F.2d 993, (2d Cir. 1967); Zurita v. U.S. 410 F.

2d 477, (7 Cir. 1969),

In Zurita, counsel who was court-appointed

defended the accused ona bank robbery charge. A

conviction resulted and upon appeal the conviction

was affirmed. Subsequently, the defendant filed a

een =

9 | BEST COPY_ AVAILABLE F 10

, habeas corpus petition in which he alleged that he

had been denied the effective assistance of counsel,

alleging that his attorney had represented the bank

that he robbed. The District Judge dismissed the

petition without an evidentiary hearing. Upon appeal,

the Court of Appeals remanded to the District Court

for an evidentiary hearing, holding that since peti-

tioner's allegations might, if true, demonstrate a

denial of the effective assistance of counsel the

District Court should have held a hearing to de-

termine the truth of those allegations, stating. .

"There is no showing that the attorney did

not conduct the defense of the accused with

diligence and resoluteness but... It is

untair ‘or the accused for who can deter-

mine whether his representation was af-

fected at least subliminally by the conflict.

Too, it places an additional burden on

counsel, however conscientious, and ex-

poses him unnecessarily to later charges

that his representation was not completely

faithful. Ina case involving such a con-

flict there is no necessity for the defendant

to show actual prejudice. Glasser v.U.S.

315 U.S, 60, 02S, Ct 457; Goodson v.

Peyton (4 Cir.) 351 F.2d 905.

1]

We agree with the above authorities that

the right to effective assistance of counsel

would be nullified if a criminal defendant's

attorney were permitted to labor, albeit

conscientiously, under a conflict of interest

which was unknown to the defendant. Such

a conflict would occur if the attorney repre-

sented 'two masters' with opposing interests

which might require less than an undivided

fidelity toward either client. See Canon 6

ABA Canons of Professional Ethics..."

Zurita v. U.S. 410 F.2d 477, 478-480.

(Our emphasis)

Counsel who was under attack for the dual

representation in Zurita is the same counsel in this

matter, When the conflict situation first presented

itself in the case at bar, present counsel was acutely

aware of the dilemma in which he found himself and

pursued a course of conduct which he deemed to be

required of him as outlined by the opinion of the Court

of Appeals for the Seventh Circuit in Zurita.

Counsel immediately made known the conflict

Situation to the Court, to the Government and to

petitioners on trial. Counsel advised the Court on

two occasions that ‘he petitioners on trial, because

12

ee a

of the conflict situation, did not wish for him to

continue in his representation of them. The Court

nonetheless refused to permit counsel to withdraw

and ordered him to continue.

The District Court should have followed the

procedure dictated by the Court of Appeals for the

Fifth Circuit in U.S. v. Garcia, 17 Crl 2446 (9-3-75),

In Garcia, the defendants, all members of the Houston

Police Department, Narcotics Division, were charged

with a variety of Federal crimes. AJ] nine defendants

were represented by three different lawyers. The

Government moved the District Court to disqualify

all three attorneys because of apparent conflicts of

interest. These conflicts arose in part from the

fact that two ot the attorneys represented approxi-

mately fifteen other police officers, including sev-

eral who testified before the Federal grand jury

Which indicted the defendants. The other lawyer

represented other policemen who had been subpoenaed

13

as witnesses against two of the defendants and he

had previously represented a convicted felon who

was also a Government witness.

One of the contentions of the defendants on

appeal was that, even if there were conflicts as

determined by the District Court, the defendants

may waive the right to conflict free representation.

The Court of Appeals, in reversing the District

Court's order of disqualification, held that the

defendants could knowingly and intelligently waive

the Sixth Amendment right to effective assistance

of counsel stating.

"If defendants may dispense with the right

to be represented by counsel altogether,

Faretta v. California 95S. Ct 2525...

it would seem that they may waive the

right to have their retained counsel free

from conflicts of interest..."

(at page 2447)

The Court of Appeals then directed the Dis-

trict Judge to follow the procedure promulgated in

Federal Rule of Criminal Procedure 1l, whereby

the defendants voluntariness and knowledge of the

14

consequences of a guilty plea will be manifest on

the face of the record, stating that the District

Court should address each defendant personally

and forthrightly advise him of the potential dan-

gers of representation by counsel with a conflict

of interest and that the defendant must be at liberty

to question the District Court as to the nature and

consequences of his legal representation.

Most significantly, the Court should seek

to elicit a narrative response from each defendant

that he has been advised of his right to effective

representation, that he understands the details of

his attorney's possible conflict of interest, and the

potential perils of sucha conflict, that he had dis-

cussed the matter with his attorney or, if he wishes,

with outside counsel, and that he voluntarily waives

his Sixth Amendment protection. (at page 2447)

The siabiieiie must be established by clear,

unequivocal and unambiguous language.

15

In the case at bar, the Government and the

District Court completely ignored the stated ob-

jections of the petitioners on trial to their con-

tinued representation by counsel. As previously

indicated, the opinion of the Court of Appeals for

the Seventh Circuit also ignores the objections of

the petitioners on trial to the continued representa-

tion by counsel, The rationale of the opinion of

the Court of Appeals focuses on the absence of any

objection by the client-witness, Berry. The ab-

sence of objection by the client-witness is simply

not germane or relevant,

What is relevant and decisive is the objection

of the petitioners on trial and the ethical restraints

which counsel labored under because of the same

Court's criticism of his conduct in Zurita. It

should be mentioned, parenthetically, that when

Zurita was remanded to the District Court for an

evidentiary hearing the only evidence of counsel's

16

conflict was that he had periodically made fully

collateralized loans from the bank and had used

the reference in Martindale Hubbell; there was no

evidence that counsel had ever represented the bank.

Il.

FAILURE OF PETITIONERS' TRIAL

COUNSEL TO CROSS-EXAMINE THE

CLIENT-WITNESS DEPRIVED THE

PETITIONERS OF THE EFFECTIVE

ASSISTANCE OF COUNSEL

The opinion of the Court of Appeals, after

holding that counsel's motion to withdraw was ap-

propriately denied, then states...

"Even though the District Court correctly

found no conflict of interest and ordered

Cohen to conduct a full cross-examination,

he did not do so. Cohen misjudged his

ethical responsibilities but the fact re-

mains that an important witness was not

thoroughly cross-examined. Arguably,

therefore, his clients' constitutional

right to the effective assistance of counsel

was violated when he declined to heed the

Court's directive to conduct a full cross-

examination notwithstanding his partner's

former relationship with Berry..."

(Appendix A, page 13)

17

The opinion of the Court of Appeals in an

astounding display of attribution then answers that

argument by stating that the petitioners on trial

waived their right of cross-examination by the

failure of their counsel to make an offer of proof

about the substance of his possible cross-examina-

tion of Berry and by making no effort to have Berry

cross-examined by other counsel,

First of all, it would have constituted a vio-

lation of the Canons of Ethics for counsel to disclose

the confidential information to anyone, even to the

Court, in camera. Secondly, a motion for a con-

tinuance to obtain other counsel would have been

futile; the District Judge had already ordered

counsel to continue with the cross-examination of

the witness Berry.

But by far, the most significant fallacy in

the opinion of the Court of Appeals' reasoning

is simply this -- the petitioners on trial are now

18

deemed to have waived their right to the effective

assistance of counsel and cross-examination of the

witness Berry by the actions or inactions of coun-

sel whom they no longer wished to represent them

precisely because of the conflict of interest. This

holding is not only squarely in conflict with the

opinion of the Court of Appeals for the Fifth

Circuit but violates this Court's long standing

caveat that in order for there to be an effective

waiver of a Federal constitutional right sucha

waiver must be knowingly and intelligently made.

Johnson v. Zerbst 304 U.S. 458, (1938) 58S. Ct

1019, 82 L. Ed 1461.

These petitioners objected in the only

manner that was available to them, counsel made

known the objections to the Court and offered to

have the Court interrogate them individually.

The trial court completely disregarded the

objections of the petitioners as did the Court of

19

Appeals. The "Alice in Wonderland" logic by

which the Court of Appeals concludes that these

petitioners waived their right to cross-examina-

len of the witness Berry by the actions of counsel

whom they did not want is manifestly unjust.

The posture in which this issue is being

presented is unique. It is invariably raised ina

post conviction habeas corpus petition where the

petitioner, either pro se or through different

counsel, raises the conflict issue. The usual

manner in which the issue is raised has been a

claim by the defendant that the duality of repre-

sentation was not disclosed to him and/or, if the

duality was disclosed, the duality of representation

deprived the defendant of the effective assistance

of counsel.

If this issue were being presented in the

setting of a post conviction habeas corpus petition

and trial counsel testified as a witness in that

20

proceeding that because of the duality of representa-

tion and the objections of his clients on trial he

could not effectively cross-examine the witness

and did not cross-examine the witness, it is clear

that under the existing case law a holding that the

petitioners had been deprived of the effective

assistance of counsel would be mandatory.

It was counsel's judgment then as it is now

that his decision not to cross-examine the witness

Berry in the face of objections by his clients on

trial was ethically and legally correct.

In hindsight, this Court may conclude that

counsel was incorrect as to the proper course to

pursue. Inthe trial of a lawsuit, one does not

have the luxury of reflection and extended research

in order to ascertain the correctness of his posi-

tion; one must make decisions and judgments

immediately.

if counsel was incorrect in refusing to conduct

a full and complete cross-examination of the wit-

ness Berry in the face of the objections of his clients

on trial, then the onus of that bad judgment should

not prejudice these petitioners.

Finally, the onus for this situation rests

squarely upon the Government. Prior to trial, the

petitioners had requested the Government to disclose

the identity of all witnesses, including informants,

that it proposed to call upon the trial of the case.

The trial court initially ordered the Government to

so disclose. The Government immediately filed a

motion with the trial court to reconsider that part

of its order which required the Government to dis-

close, by name only, the identity of all informant

witnesses and the trial court in response to that

motion entered an order which relieved the Govern-

ment from that responsibility.

If the Government had disclosed that Berry

was to be a witness, that fact would have been

22

disclosed to the petitioners on trial well in advance

of trial and they would then have been able to re-

tain other counsel.

The Government not only should have dis-

closed that Berry was going to be a witness but

should have followed the procedure the Government

followed in U.S. v. Garcia, 17 CrL 2446, so that

there could be no possible claim of conflict which

would serve as a basis for a post conviction habeas

corpus petition.

The opinion of the Court of Appeals consti-

tutes an open invitation to the petitioners, in the

event this petition is denied, to initiate post con-

viction proceedings.

CONCLUSION

The failure of the trial court to permit counsel

to withdraw and the subsequent failure of trial

counsel to cross-examine a key and pivotal witness

23

necessarily deprived the petitioners of their

Sixth Amendment constitutional right to the

effective assistance of counsel.

Respectfully submitted,

MAX COHEN

504 Broadway, Suite 1012

Gary, indiana 46402

Ph: (219) 886-3505

Attorney for Petitioners

24

3n the

Anited States Court of Appeals

For the Seventh Circuit

Nos. 74-1650. 74-1680

Unirep States Or AMERICA, oe

Plaintiff-A ppellec,

v.

CARLAND JErFERS, NATHANIEL JEFFERS, CLINTON Busi, Pact,

Grirrix, Crecenra Wins, Leroy WituiaMs and WARNER

SMITH,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern Distriet of Indiana, Lafayette Division —

No. H CR 74 56

ALLEN SHarp, Judge

ae eee

fieanp Juxe 4. 1975 — Decipen Jury 30, 1975

Before Moorr.* Senior Circuit: Judge, Stevexs and

Sprecuen, Corent Judges.

Srevens, Cirenit: Judge. The principal question pre-

seuted by this appeal is whether the failure of defense

counsel to conduct a thorough cross-examination of a

former client who testified as a prosecution witness re-

quires reversal of a conviction for a conspiracy to distri-

—_——_- -—> —-— >

*Senior Circuit Judge Leonard P. Moore of the Second Circuit is

sitting by designation.

APPENDIX A

74-1650, 74-1680 2

bute heroin and cocaine.’ Additionally, defendants contend

that the court erred by failing to suppress certain physical

evidence and statements, and defendant Warner S. Smith

argues that the evidence of his participation in the con-

spiracy was insufficient to support his guilty verdict.

I.

The government proved that defendants were members

of a highly-structured and on-going narcoties distribution

network in the Gary, Indiana, area known as “the lamily.”

During the morning of the sixth day of trial, the govern-

ment called as a witness James Berry, a former member

of the Family. As Berry took the stand, counsel for de-

fendants, Max Cohen,’ approached the bench and informed

the court and the government that Berry had heen repre-

sented’ by a partner of his in a prior state court homicide

cause. Cohen explained that he had had no knowledge that

Berry would he ealled as a witness. Ie continued:

This places us in an irreconcilable confliet where a

witness for the Government is a former client of our

firin, and if — we would, if the Government proposes

to insist upon calling him, it is ethieally incumbent

pon us to request the Court for leave to withdraw

as counsel for these defendants.

Tr. 996.

Prosecutor Van Bokkelen admitted that the government

had thought about the possible conflict, but that he did not

consider that any conflict of interest resulted from the fact

that a partner of Cohen’s had obtained an acquittal for

1Seven defendants were indicted and found ilty by a jury of

conspiracy to distribute heroin and cocaine, prohibited by 21 U.S.C.

§ 841(a) (1), in violation of 21 U.S.C. § 846. Each defendant received a

15-year jail sentence and a substantial fine.

Garland Jeffers, fifteen (15) years — $25,000.00 fine;

Warner Smith, fifteen (15) years, under the provisions of 18

US.C. § 4208(A)(2) — $5,000.00 ;

Leroy Williams, fifteen (15) years — $2500.00 fine;

Nathaniel Jeffers, fifteen (15) years, under the provisions of 18

U.S.C. § 4208(A)(2) — $7500.00 fine;

Cecelia Willis, fifteen (15) years, under the provisions of 18 U.S.C.

$ 4208(A)(2) — $10,000.00 fine;

Clinton Bush, fifteen (15) years — $2500.00 fine;

Paul Griffin, fifteen (15) years — $2500.00 fine.

*Cohen was assisted by a Mr. Levinson, a partner in his law firm.

| seST COPE ALA

3 74-1650, 74-1680

Berry in late 1972. Tr. 996-997. On the basis of this infor-

mation. the court ruled:

| find nothing in the record right here that indicates

any confliet of interest right at this time other than

the the only fact I find that is possible to establish

any contliet of interest is the fact that this was a former

client that the defense law firm represented SUCCESS

rails and got acquitted, and | don't think that estab

lishes it, gentlemen, .

i appreciate your bringing it to my attention and l

heme Pam as sensitive about thix as anyone. | know

vou gentlemen all are.

Tro Tee,

The government then suggested that i, during CLOSS-CN-

amination, defense counsel found themselves ma quandry

over the ase of information possibly received in conlidence

from Berry. they cortt approach the heneh fora rulimg on

its nse. Tr. 101, See also Tr. 1005,

Cohen repeated that le had never seen Berry before,’

and that he personally possessed no contidential morn:

tion, Tr. 1001-1002, He agreed with the court that, there

fore, be cut not breach the attormey-chent privilege. Pr.

hog, Peat he repeated: his metion

for deave te withdraw as counsel and permit: these peo

nile te obtain other counsel. Po have to make that Te

tor i oan ethically obliged to make that motion.

Id. Tie judge onee agar stated that, he found no a

amd dented the motions, and the direct eNTUNIUTION 0

Berrys was condnueted. Tr. 1OQ4. Durttgr tis aa page ter:

* Cohen’ iti i is t i » dable. In an eariie:

*Cohen’s sensitivity in this respect 1s understan

cease he had becn appointed to represent a bank robber. oe eo

the client sought post-conviction relief, claiming that rt a, sagee

denied effective assistance of counsel because Cohen was subject. a

conflict of interests because of his a, —— ——— =~

rior dealings with the bank. We revers the distric s dism

Of the cients petition and remanded for a hearing to vo eateengee bd

extent of Cohen's involvement with the bank and the ones ‘-

contlict of terest. Zurita v. United —, = i gf : ah gh oh

vmand, however, the district court found a = '

oe Bw aa this judgment was affirmed by us in an unreported orde:

No. 71-1070 (7th Cir., Jan. 20, 1972). ee

‘Similarly. Levinson, Cohen's associate counsel, stated that he hic

uo knowledge of the witness. Tr. 1003.

BEST COPL_AVAILABLE

\

74-1650, 74-1680 +

timony, Berry effectively implicated all of the defendants,

with the exception of Warner Smith, in the conspiracy.

The direct examination of Berry also brought ont certain

facts bearing on his credibility. He acknowledged personal

participation in extensive criminal activities: lhe tesiitied

that in February, 1974, he had been disciplined by the

“amily, more particularly, that he had been sliot by several

parties, including the defendant Garland Jeilers. Pio iuod-

1060. His status as an informer was, of course, apreaient

and his demeanor when testifying against former business

associates was subject to observation by the jury.

At the close of direct examination a short recess was

held. When the jury returned, Cohen questioned Borry

about his prior representation by the firm of Cohen &

Thiros. In addition to the homicide acquitts! in tate i972

or early 1975, it was learned that the firm had rermresented

him after his arrest on a later charge of visitiig a com-

mon musance, Cross-examination further develoy od the

fact that Berry had agreed to become a witiess for tie

government after he “found out that the Family was bool.

ing for ine to do something to me because | left.” Pi. lus.

When Cohen suggested that that would have been ohout

June o. 1974, Berry disclaimed knowledge of the exact

date. Cohen further brought out the fact that Beery tied

not informed any member of Cohen's law urn that he was

going to testify as a witness for the zovermmnent. At this

point, Cohen once again requested leave to withdraw on

the conflict of interests ground and sought lease to moke

the motion before the jury “so that the jury will kiew

why [ cannot cross examine this witness.” Tr. L0650 The

court repeated that it did not find any conflict “olf any

kind,” and denied both motions. Tr. 1O0G7-1068.

_At this point Cohen disclosed that, during the recess,

his associate had contacted the partner who had repre-

sented Berry in the past.

We have hecome privy to information, to matters

and specifies, concerning this witness whieh we could

only have obtained as a resnit of Mr. Thiros’ repre-

sentation; that, perhaps, another lawyer might have

_ *We find no merit in the government's argument that this statement

indicated that Cohen had never intended to cross-examine Berry.

/

-

5 74-1650, 74-1680

obtained the same information, but we obtained our

information only as a resuit of our representation.

Now I feel that on this state of the reeord, it is

incumbent upon this firm to withdraw... .

Tr. 1069. The government responded by repeating its sux-

gestion that, if any problems regarding confidential com-

munications came up, Cohen could approach the benel and

seek a ruling on their use. Tr. 1070. At this point the

court recessed for lunch.

Upon resuming, the distriet court reported on its. re-

search and deliberations.

IT see nothing in the record at this time that even re-

motely points in any direction that the defense coun-

sel cannot properly and completely cross examine this

witness.

*** The record indicates that the employment

hetween, professional relationship between this witness

and defense eounsel and their firm has now been ter-

ininated, apparently successfully, in both instances as

to the witness.

we

"Phat is my ruling. You are instructed to con-

tinue with the trial. The motion is denied.

Tr. 1077-1078." Cohen then informed the court that during

the noon recess he had informed his clients of the situa-

tion.

My chents do not waive the conflict. My clients have.

advised me that they request new counsel. f

J /0

lr. 1079. The court denied the request. /d. pr

Berry was returned to the stand for cross-examination.

He testified that his prior representation by Thiros had

involved activities allegedly connnitted while he was a

member of the Family. Cohen then asked bin four ques-

tions that established that even though Berry had heen

connected with the Family “almost from the beginning

of iO he did not know defendant Warner Smith to be a

—_—- —_ -- — —S

“The judge announced that he had reviewed the Canons of Profession-

al Responsibility and had sought the advice of two of his three col-

leagues with respect to this matter.

74-1650, 74-1686 6

member of the Family. Tr. 1081. The entire cross-exaini-

nation, excluding the colloquy with the court, covered only

about three pages of the transcript. Tr. 1061, 1063-1064,

1080-1081. At this point Cohen stated, “That’s all,” and

once again approached the bench. He told the court:

1 have no further cross-examination for the reasons

I have thus far stated, that | am in a conflict sitaa-

tion.

Tr. 1082.

The trial judge responded:

Mr. Cohen, the Court now instructs you toe coniplete

the eross examination of this witness on the basis

of the law and the evidence and on the basis of the

direct examination of this witness.

Id, Cohen once again asserted the problem of the confiden-

tial information and the fact that his clients no longer

wished him to represent them. The court repeated its con-

clusion that the record did not disclose a confliet of in-

terests, and if “problems arise, we will deal with them.”

Tr. 1086. Cohen announced that he had no further cross-

examination and sat down. Berry was excused. /d.

Cohen made no request for a continuance to enable his

client to obtain additional counsel for the purpose of

cross-examining Berry, or to complete the trial; he made

no effort to disclose the privileged information to the

court mm camera to enable the court to evaluate its rele-

vance to possible cross-examination; he made no repre-

sentation that the privileged information was inconsistent

with any of Berry’s direct testimony or, indeed, that it

was directly relevant to that testimony, nor did he indi-

cate whether the information pertained to the period

when Berry was a member of the Family; Cohen made

no offer of proof with respect to matter that might be

disclosed by further cross-examination. Finally, he made

no formal motion to withdraw or to substitute other eoun-

sel. He continued to represent the defendants for the

balance of the trial and, indeed, in the presentation of the

appeal in this eourt.

The defendants themselves never addressed the court

personally, The record indieates that they had both the

7 74-1650, 74-1680

intelligence and the means with which to retain additional

counsel, and, since Berry was a former member of the

Family, it is fair to infer that they were in possession of

significant information about him that could have been

imparted to counsel without violating any professional

—- Berry himself never asserted any claim of privi-

ege.

The closing arguinent for the defendants was presented

in two parts, first by Mr. Levinson and then by Mr. Cohen.

Mr. Levinson stressed the unreliability of informer testi-

mony, quoting, in part, the relevant instruction later given

by the court, lr. 1660-1661, and also reminded the jury

that Berry had specifically testified that defendant Warner

Smith was net a member of the Family. Tr. 1683. In

Cohen's portion of the closing argument he pointed out

that Berry had been a client of his firm and stated:

Ethieal considerations preclude me from commenting

upon the testimony of Mr. Berry.’

We first consider whether the district court was correct

in ruling that Cohen was not disqualified from cross-

examining Bercy by a conflict of interests, and then, even

if that ruling was correct, whether Cohen’s refusal to con-

duct a more thorouch ceross-examination than he did never-

theless requires reversal. Thereafter we discuss the defen-

dants’ other contentions.

1.

The Sixth Amendment’s* guarantee of Assistance of

Counsel necersarily reqnires that a criminal defendant be

represented not only by counsel satisfying at least a mini-

mum standard of professional competency,’ but also by

* We find no merit whatsoever in this argument. Moreover, we note

that Mr. Levinson did not hesitate to comment on the portion of Berry’s

testimo:., that tended to exonerate defendant Smith.

* “In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defence.”

*See United States v. ex rel. Williams v. Twomey, 510 F.2d 634 (7th

Cir. 1975); Matthews v. United States, No. 74-1988 (7th Cir, July 3,

1975).

74-1650, 74-1680 8

counsel Whose undivided loyalties lie with his client.” The

record before us unambiguously demonstrates that Cohen

satisfied these requirements. [lis competence is unchal-

lenged and is demonstrated by the record. Apart from the

possible conflict of interests question which he promptly

brought to the attention of the court, there is nothing

whatever in the record to raise any question about the

fidelity of his performance of his professional obligations

to his clients. Ile continued to represent their interests

effectively in the trial court, both before and after Berry

testified, and has lovally prosecuted this appeal even

though it involves a eonfession that he may have made

an erroneous professional judgment during the course of

trial. We therefore start from the premise that defendants

were well represented in all respects with the possible

exception of Cohen's handling of the witness Berry.

On that subject we agree with the distriet court's con-

clusion that a disabling conflict did not exist. As a matter

of procedure we first note that both defense counsel and

the trial judge properly addressed the issue as soon as it

arose.'' We also emphasize at the outset that this is not

1° As the Supreme Court explained in Glasser v. United States, 315

US. 60, 70, ere counsel was appointed to represent two different

defendants at the same trial:

“(We are) clear that the ‘assistance of counsel’ guaranteed by the

Sixth Amendment contemplates that such assistance be untrammeled

and unimpaired by a court order requiring that one lawyer shall

simultaneously represent conflicti interests. If the right to the

assistance of ene fee less t this, a valued constitutional

safeguard is substantially ss ‘y

As the Fifth Circuit has explained:

“Such representation is lacking, however, if counsel, unknown to

the accused and without his knowledgeable assent, is in a duplicitous

position where his full talents — as a vigorous advocate having the

single aim of uittal by all means fair and honorable — are

hobbled or or restrained by commitments to others.” Porter

v. United States, 298 F.2d 461, 463 (5th Cir. 1962).

See also Conon 6, A.B.A. Canons of Professional Ethics.

'! Defens counsel is obligated to bring to the attention of his client

and the court any possible conflict of interest that develops at trial as

soon as he becomes aware of such a situation.

American Bar Association Standards For Criminal Justice, The

Defense Function § 3.5(a) (1971):

“At the earliest feasible opportunity defense counsel should dis-

close to the defendant any interest in or connected with the case

or other matter that might be relevant to the defendant's selection

of a lawyer to t »

Cohen clearly satisfied this obligation in this case. He approached the

bench and informed the court of the prior representation problem as

soon as he learned that Berry would testify.

9 74-1650, 74-1680

a ease involving an existing personal relationship between

Cohen and the witness Berry.’? Consequently, the numer-

ous casey involving an on-going relationship between an

adverse witness and a lawyer are inapposite.”

11 (Continued)

At this point, it became the duty of the district judge to seek out

the facts surrounding the alleged conflict and to rmine whether

counsel’s continued representation of his clients would be consonant

with the strictures of the Sixth Amendment.

should conduct a hearing

to determine whether there exists a conflict of interest with regard

to defendant’s counsel such that the defendant will be prevented

from receiving advice and assistance sufficient to afford him the

quality of representation guaranteed by the sixth amendment. In

addition, the trial judge should see that the defendant is fully

advised of the facts underlying the conflict and is given

an opportunity to express his or her views.” United States v. Alberti,

470 F.2d 878, 881-882 (2d Cir. 1972), cert. denied, 411 US. 919.

A similar situation involving a rise witness occurred in United

States v. Donatelli, 484 F.2d 505 (lst

defendants on appeal, Cohen now informs us that a member of the firm

Cohen, the trial judge, and apparently Berry himself believed that

only a question of = representation existed. The inhibitions Cohen

felt and expressed about cross-examining the witness stemmed solely

from this prior relationship.

In Commonwealth v. Geraway, 301 N.E. 2d 814 (Mass. 1973), defense

counsel's firm, unbeknownst to him, represented certain of the witnesses

against the defendant. The Massachusetts Supreme Court agreed with

i edge of such dual representation could

tion of these witnesses and concluded there was “slight, if any, possi-

and a new trial was ordered, over a strong dissent,

under the ‘court’s supervisory authority, and not because of any Sixth

Amendment violation.

13 The courts have frequently held that the existence of such a rela-

tionship, with the inherent attendant hesitancy of counsel to completely

cross-examine a current client, creates a very real conflict of interest

and requires a mi if the conflict is disclosed, or a new trial, if

the conflict is discovered only later. See Castillo v. Estelle, 504 F.2d

74-1650, 74-1680 10

In cases in which the alleged conflict of interest is based

on the prior representation of a prosecution witness by

defense counsel, the courts have examined the particular

cirewnstances to determine whether counsel's undivided

loyalties reside with his current client."' In such cases

there are two factors that arguably may interfere with

effective cross-examination and, therefore, the effective as-

sistance of counsel. First ix concern that the lawyer’s

pecumlary interest in possible future business may cause

him to avoid vigorous cross-examination which might be

embarrassing or offensive to the witness.” The second

13 (Continued)

tion so ‘fraught with the dangers

required.” 410 F.2d at 480, quoting People

counsel

coalition tin et

14 See United ‘States v ames, 505 F.2d 898 : Uni

States v. Cochran, 499 F.2d 380 (5th Cir. 17), con dene Os.

Harrison v. United States, 387 F.2d 614

McMann, 378 F.2d 993 (2d Cir. 1967), cert. denied, 389 US. 874; Common-

'* This type of concern may have motivated the Ni ircui

inth Circuit to order

4 -- 7p A on charges of conflict of interests in Tucker

v. i States, 235 F.2d 238 (1956). Tucker had sought to collaterally

gh Dy a EN Tae -p se — - 4.

the manager of the robbed bank, i =o ca

had only

examined

11 74-1650, 74-1680

is the possibility that privileged information obtained from

the witness might be relevant to the cross-examination.

The first of these factors is clearly not significant here.

Looking stiictly at the lawyer’s pecuniary interests, it 1S

manifest that the relationship with the leaders of the

Family who were then on trial had much greater value to

Cohen's firm than any work they had done, or might do

in the future, for the witness Berry. Of greater unpor-

tance, however, is the presumption that the lawyer will

subordinate his pecuniary interests and honor his pri-

mary professional responsibility to his clients in the matter

at hand. The entire record in this case is consistent with

that presumption; there is no basis for speculating that

the mere possibility of some additional work for Berry

would have impaired in the slightest Cohen’s undivided

loyalty to the defendants on trial.

The second factor is more difficult to assess. Cohen did

advise the court that, as a result of the conversation with

his partner, he was in possession of confidential informa-

tion relevant to a possible cross-examination. Such infor-

ution could create difficulties for the eross-examiner in

two different ways. Most obviously, there might be a

temptation to use the information to impeach the former

client. We do net regard this risk as serious, however,

for we think the courts can generally rely on the sound

discretion of members of the bar to treat privileged im-

formation with appropriate respect. Moreover, in cases

in which this concern does seem significant, it is the wit-

ness, rather than the defendant, who should object to the

cross-vXamination by his former attorney. Here Berry

asserted no claim ef privilege and voiced no concern about

Cohen's possible violation of his ethical responsibilities.

The more dificult problem which may arise is the danger

that counscl may overcompensate and fail to cross-ex-

amine fully Ser fear of misusing his confidential informa-

tion; bo might thereby fail to inquire into legitimate areas

of concern TY counsel should not reeall the exaet source

Of infererition, there ts a possibility that fear that it may

have been ootained ina privileged manner may lead him to

exclude the entire subject) from = cross-examination. We

recognize that such difficulties may exist. but they would

only aliect counsel's ability to ask questions relevant te

the privileged information. The risk that an item of confi

74-1650, 74-1680 12

dentia! information might be misused does not create a

conflict of interest which disqualifies an attorney from

conducting any cross-examination at all.

‘The suggestion repeatedly made by the government and

adopted by the court would have provided adequate pro-

tection to the interests at stake. Thus, if defense counsel

was concerned that he might be using confidential informa-

tion improperly, he could have outlined the nature of the

information to the judge and, Uf, necessary, made an im

camera disclosure to him. On * basis of such a dis-

closure it might have become apparent that the privilege

was cither inapplicable or had been waived by the witness.

Or, it might have been clear that the information was not

usable for other evidentiary reasons. ‘he witness himself

could have been consulted to determine whether he would

insist on the maintenance of the privilege.

lf it were determined that such information was privi-

leged, the witness could not, of course, have been ques-

tioned about it. The fact that an attorney is unable to

pursue one line of inquiry does not mean, however, that the

defendant is receiving inadequate representation. For, as

the Second Circuit explained in United States v. Alberti,

470 F.2d 878, S81 (1972), cert. denied, 441 US. 919:

| Wje cannot understand how other counsel could be

expected to ask the question that Alberti suggests;

for, unless either [counsel] breached the attorney-

client privilege or [the witness] waived it, any other

counsel would have been totally without knowledge of

what [the witness] had told [counsel]. As a result,

not only would other counsel not have asked the

suggested question, but he would also not have been

in a position to cross-examine [the witness] as thor-

vughly and vigorously as [counsel] did.

Ilere, Cohen did not indicate to the district judge the

nature of the confidential information he claimed to pos- >

sess. We do not know whether questions based thereon

would have even been admissible. And, Cohen himself

admitted that the information might not even be confiden-

tial at all; he stated, “{PJerhaps, another lawyer might.

have obtained the same information.” Tr. 1069. Thus, we

conclude that the mere fact that counsel was in possession

vf some confidential information about Berry did not

13 74-1650, 74-1680

necessarily preelude the possibility of an effective cross-

examination.

On the basis of the record before the district court,

Cohen did not demonstrate the existence of a contliet of Mn

terests, and his motions to withdraw and for a mistrial

were appropriately denied. Thus, the court correctly in

structed Cohen to conduct a complete cross-examination

of the witness.

even though the district court correctly found no con

flict of interests and ordered Cohen to conduct a tull cross-

examination, he did not do so. Cohen misjudged his ethical

responsibilities, but the fact remains that an important

Witness was not thoroughly cross-examined, Arguably,

therefore, lis client's constitutional right to the effective

assistance of counsel was violated when he declined to

heed the court's directive to conduct a full cross-exaniina

tien notwithstanding his partner’s former relationship

with Berry,

We are persiiaded, however, that the defendants waived

their right to have Berry subjected to further cross-exami

nation. A'theugh Coben stated that ethical considerations

inhibited his ability to interrogate the witness thoroughly,

or his willingness to permit another member of his firm

to do so, there is nothing in the reeord suggesting any

reason why he could net have made an offer to have

some other liawver retained for this “iited purpose, or

Why he could not make an appropriate record demon-

strating that further cross-examination would have been

beneficial to his clients. Tle made no motion for a con-

tintanes to obtain additional counsel; ner did he ask

the court to order the witness to remain available for a

delayed cross-examination after new counsel had been

Obtained. dle rade no offer of proof to indicate — the

nature of any faverable tatter that might have been

obtained by way of cross-examination. Tle did not even

represent to the court that he had information, confi

dentin! or otherwise, which was inconsistent with any

pertion of Berry's direet testimony.

There is ne reason to assume that in a matter of a

few days a now lawyer could mot have orepared an ade

quate aod thosouch cross-examination of Berry. Even if

74-1650, 74-1680 14

Cohen and his partner felt some inhibition about describ-

ing Berry’s history to a new lawyer, certainly their clients,

the leading members of the Family, were under no such

restraint. Nor can we assume, without support in the

record, that the confidential information was actually

admissible, or even if admissible, was not merely cumula-

tive of adverse matter already brought out on direct

examination. If, for example, Cohen knew of additional

criminal activity by Berry, such activity would hardly

have affected his credibility any more than his admitted

trafficking in heroin and participation in armed robberies;

similarly, evidence of additional friction between Berry

and members of the Family would have added little to

the vindictive motivation naturally following from the

fact, brought ont on both direct and cross-examination,

that defendant Jeffers had shot Berry.

Since we can only speculate as to the character or

the importance of the underlying confidential information,

we must decide where the burden of demonstrating its

materiality oewmevetebiity lies. Quite clearly, that burden

rests with the defendants. And even if Cohen’s ethical

converns led him to disregard the court order to cross-

examine Berry, those concerns provided no excuse for a

subsequent coutinuing failure to demonstrate that his

information was material or for his failure to take steps

to cause Berry to be effectively cross-examined by another

lawyer if he felt that his clients’ interests would have

been served by such a cross-examination. Since each of

the relevant rulings the trial judge was called upon to

make was correct, we find no error resulting from win

decision to abort the cross-exaimination of Berry pre-

maturely. If the substantial rights of the defendants were

affected by that decision, we are confident that a lawyer of

Cohen’s competence and dedication would have caused the

record to so demonstrate unambiguously. By not asking

any further questions, by making no offer of proof or

other representation about the substance of his possible

cross-cxamination of Berry, and by making no effort to

have Berry cross-examined by other counsel, Cohen, on

behalf of his clients, waived any additional cross-examina-

tion of this witness. On this record his statement at the

conclusion of the colloquy with the court: “1 have no fur-

ther cross-cxuimination, Your Honor,” is conclusive even

15 74-1650, 74-1680

though he may have made that statement for an incorrect

reason.

IV.

istri t erred in

Defendants next argue that the district court erré a

denying motions to suppress with respect to certain ae

of physical evidence and the written and oral statements

of Garland .Jeffers.

A.

cs inl os etings of the

Three notebooks. containing minutes of mee og

Family, a list of members, the Family oath, and gee

sive notations as to dissemination and oe. :

illegal drugs were taken from the purse of defendan

Willis on March &, 1972.

The distriet court found that on March 8, at yee

mately 3:00 ain. gunfire erupted outside of the wit!

Police Station. The officers who rushed outside arrested

three men and brought them inside. Sometime later, Wi -

entered the staiion seeking her purse, which a

she had dropped when the shooting started. 5 —

Hjerpe then searched the purse for weapons and — 0

that Willis remove her calf-length boots. He peerec in-

side each boot and probed it with his hand. Inside on

of the hoots the sergeant found a ot --- ennang Pp”

tainine a naveotie drug. At this point Willis was —

under arrest and the sergeant conducted a thorough seareh

of the purse for other nareotics. In so doing, a

again noticed und more closely examined the notehoo ;

in question. On the basis of these facts, the district aon

found that the search of the purse and the subsequen

seizure of the notebooks were lawful.

The district court concluded, and we agree, that the

initial search of Willis’ purse and boots for weapons was

justified, under the test set forth in Terry vy. Ohio, 392

U.S. 1. and Sibron v. New York, 392 U.S. 40. An m-

explained shootout had just occurred: near the a

house, Willis spparently had information concerning thc

incident. Consequently, it was most appropriate for -

sergeant to question her about her involvement. While

questioning her, the officer clearly had reason, based on

the events of that night, to look ont for his personal

safety. Thus. he was permitted to take reasonable steps

74-1650, 74-1680 16

to determine whether Willis was armed. As the Court

said in Terry, 392 U.S. at 24:

|Wje cannot blind ourselves to the need for law

enforcement officers to protect themselves and other

prospective victims of violence in situations where

they may lack probable cause for an arrest. When

an Officer is justified in believing that the individual

whose suspicious behavior he is investigating at close

range is armed and presently dangerous to the offi-

cer or to others, it would appear to be clearly un-

reasonable to deny the officer the power to take

necessary meusures to determine whether the person

is in fact carrying a weapon and to neutralize the

threat of physical harm.

Thus, Sergeant Hjerpe was justified in conducting a

search of the purse, which was, the district court found,

in close proximity to Willis, and of her person, “limited

to that which [was] necessary for the discovery of weap-

ons.” 392 U.S. at 26. There is no evidence that the seareh

of Willis’ boot exceeded this limitation.”

Onee it is established that the initial search of Willis’

boot was constitutionally permissible, it is clear that the

discovery of a quantity of suspected narcoties gave the

police probable cause to place her under arrest. And,

the resulting second search of her purse and the seizure

of her notebooks was properly incident to that arrest.

Vnited States vy. Robinson, 414 U.S. 218: Gustafson v.

Florida, 414 U.S. 260; Chimel v. California, 395 U.S. 752.

Accordingly, the distriet court did not err in denying

the motion te suppress."”

B.

Defendant Garland Jeffers gave two agents of the

Bureau of Narcotics and Dangerous Drugs a written state-

ment on Mareh 14, 1972. while he was in custody in the

Lake County Jail for parole violation. Among other

‘*The record does not demonstrate that he could have adequately

determined that the boot did not contain a knife, for example, by any

means other than by inserting his hand therein.

‘In any event, it is clear that only Willis would have standing to

complain of this _ ~ Fourth Amendment violation. Thus, only her

conviction could be affected by a conclusion that the search and seizure

were impermissible. Mabra v. Gray, No. 74-1690 (7th Cir., July 3, 1975).

| est corr are

5 LE

a mt 48 220 tae eS

17 74-1650, 74-1680

things, the statement identified the books and records

taken from Willis as “belonging to the family.”

Jeffers objected to the admission of the statement

on the grounds that the agents failed to give him the

necessary Warnings with respect to his constitutional

rights, as required by Miranda v. Arizona, 384 U.S. 436.

The district court found, however, that such warnings

had heen given, and we do not find this factual conclu-

sion “clearly erroneous.” Similarly. Jeffers has not con-

vineced us that the judge’s finding that the statement was

given voluntarily nmnst be overturned.” Thus, the motion

was properly denied.

C.

Jeffers also moved to suppress an oral statement made

by him on October 12, 1973, to a special agent of the

Drug Enforeement Administration in the Hammond, In-

diana, Federal Building. The district court found that

Jeffers had voluntarily approached the agent with the

information. Consequently, Jeffers was not in “eustody”

and there was no requirement that he be given Miranda

warnings, We have previonsly indicated that our decision

in United States vy. Dickerson, 413 F.2d 1111 (7th Cir.

1969), with resneect to the necessity of Miranda warnings in

certain income tax investigations, is not to be read as

adopting generally the approach that such warnings are

necessary whenever an investigation focuses on a suspect.

United Stotes ©. Sicilia, 475 2d 308, 310 (7th Cir. 1973),

cert, devied, 414 US. 865. See United States v. Oliver,

4 Id SOT, 805-206 (7th Cir. 1974). Nor do we think

the distriet court erred when it conelnded that, under

the circumstances presented here, there was no risk of

Jeffers being misled as to the nature of his conversa-

tion with the agent.”

‘*It is also apparent from the district court's decision on the motion

to suppress that it did not credit Jeffers’ testimony that he informed

Sn see at the inception of the interview that he wanted to speak

is lawyer.

1%Contrary to Jeffers’ contentions, neither Massiah v. United States,

377 US. 201, nor Spano v. New York, 360 US. 315, requires that a

government agent consult first with counsel for an individual who

comes forward voluntarily with information that could possibly be

incriminating. Jeffers did not at any time request that he be able to

consult with his lawyer, as did Spano; nor was he, while under indict-

ment, the victim of a covert interrogation by way of a bugged informant,

as was Massiah.

74-1650, 74-1680 18

D.

Kinally, Jeffers complains of the introduction of a

second oral statement he made to the same special agent

on or about December 14, 1973, in the basement of the

Hammond Federal Building. Jeffers had been summoned

to the building by the agent to discuss corrupt Gary

police officers. The district court found that JMZ/iranda

warnings were given at the inception of the conversation,

and that the statements were voluntary. The record

does not support Jeffers’ contention that the government

used deception or fraud to obtain admissions from him.

Ile was fully informed, the trial judge found, that any-

thing he said could be used against him. Consequently,

the statements were appropriately adinitted into evidence.

_f

Finally, defendant Warner Smith, also known as “Tojo,”

argues that the evidence of his involvement in the con-

spiracy was insufficient to permit his conviction. Viewing

the evidence and the reasonable inferences therefrom in the

light most favorable to the government, as we must,

Glasser vy. United States, 315 U.S. 60, 80, we affirm the

conviction.

The most damming evidence against Smith was provided

hy government witness Kathleen Perry, She testified

that in February, 1973, she traveled with her husband,

Arthur Odell Buehanan, from Los Angeles to Hanunond,

Indiana. She stated that the purpose of the trip was to see

Tojo. They brought with them two kilos of heroin and

a half kilo of coeaine. Upon arriving in Indiana, they went

to a motel where a man named Glass picked them up.

Glass took erry and her husband to a corner drug store

where they ate and waited for a man named Dee to arrive.

Dee then drove them all to his house, located near Tojo’s.

They had stopped at Tojo’s house, but did not find

him at home.

Present in Dee’s apartment were Perry, her husband

Arthur, Glass, Dee, and Dee's wife. Dee began making

phone calls, attempting to locate Peterman, the alias

for Garland Jeffers. While Dee was on the phone, Tojo

arrived, apparently in response to the message that Dee

19 74-1650, 74-1680

had left at Tojo’s residence. Dee informed Tojo that

he was unable to contact Peterman, and Tojo gave Dee a

phone number where Peterman could be found. In the

presence of Perry and Tojo, Dee described the quality of

the drugs to Peterman.

After the phone call, everyone returned to Perry's

motel room. At the motel, Arthur gave Mrs. Dee and

Tojo some cocaine which each “snorted.” Dee and Arthur

went into the bathroom and shot some heroin. Sub-

sequently, Dee called Peterman in Tojo’s presence and re-

ported to him that the heroin was good quality. Dee and

Tojo then left together.

About 35 to 40 minutes later, Dee and Tojo returned;

Dee and Arthur went back into the bathroom, and when

they emerged, Perry testified that Dee had given Arthur

$14,000 in exchange for one-half kilo of heroin.

Smith argues that Perrvy’s testimony establishes only

the fact that he provided Dee with Garland Jeffers’ phone

number and, at most, that he had knowledge of the sale

of the heroin. Mere knowledge, presence, or association

with conspirators, he notes, does not establish the active

participation necessary to prove membership in a con-

spiracy.*°

While we agree with Smith's statement of the applicable

legal principles, we disagree with their application to

the facts of this case. Perry’s testimony indicated that

defendant Smith, alias Tojo, was the contact point in the

sale of heroin brought by Perry and her hushand from

California for sale to the Family. It was Tojo they had

come to see. Tojo provided Dee with the phone number

to contact Garland Jeffers. Tojo was present in Dee’s

apartment when Dee described the quality of the nar-

cotics to Jeffers. He personally sampled some of the

cocaine. Tle was present when Dee phoned Jeffers from

the motel about the quality of the heroin. He and Dee

then left, returned, and the sale was consummated be-

tween Dee and Arthur. It is surely a reasonable inference

that the two of them left at the direction of Garland

Jeffers to obtain the $14,000 with which the heroin was

20 United States v. Baker, 499 F.2d 845 (7th Cir. 1974); Bailey v. United

States, 416 F.2d 1110 (D.C. Cir. 1969); United States v. Stromberg, 268

F.2d 256, 267 (2d Cir. 1959), cert. denied, 361 U.S. 863.

ty

74-1650, 74-1680 20

purchased. Thus, we do not agree that the evidence dis-

closes that Smith was merely innocently present during

all of these occurrences. [n facilitating the contacting of

Jeffers and in going with Dee to obtain the money he

took an active part in furthering the purposes of the

conspiraey.*'

In addition, while possibly not sufficient in and of it-

self, there is additional cumulative evidence of ‘T'ojo’s

involvement in the conspiracy. When Garland Jeffers

was arrested by federal agents, for example, he asked who

clse was going to be arrested that day. The federal

agent responded, “Everybody in The Family.” Jeffers

then said, “You mean, Ike, Doug, 7'ojo and everybody?”

Tr. 1119-1120 (emphasis added).

When all of this evidence is considered in the light most

favorable to the government, Warner Smith’s conviction

must be affirmed.

Accordingly the judginent entered by the district court

is, in all respects,

AFFIRMED,

A true Copy:

Teste:

POPES EERE EE EEE EEE EEE EEE EEE EE HERE EEE HEHEHE HEHEHE HEE H EEE HEHEHE HEH

Clerk of the United States Court of

Appeals for the Seventh Circuit.

71 The evidence against Smith in this case is significantly stronger than

the evidence against Vela in United States v. Baker, 499 F.2d (7th

Cir. 1974). Vela was present in his own apartment while a discussion

concerning the purchase of drugs was taking place. There was no evi-

dence that Vela participated in this discussion. Nor was there any evi-

dence that Vela participated in a similar conversation the next evening.

Finally, while the evidence showed that Vela drove defendant Felts and

another individual to a motel where the sale of some “reds” was con-

summated, there was no evidence that Vela cipated in either the

conversation or the transaction. A panel of this court (one judge dis-

senting) held that there was insufficient evidence to establish that Vela

had knowl of the criminal conspiracy or intended to participate in it.

Tojo, on other hand, was actively involved in the conversations

surrounding the sale of these drugs. He sampled the cocaine. He pro-

vided Dee with Garland Jeffers’ p number. He was present when

the a of the goods was described to Jeffers. And, he went with Dee

to obtain the $14,000. Significantly, he was described Perry as the

one whom they had come from ifornia to see. The that a stop

was made at Tojo’s house on the way to Dee’s supports this conclusion.

USCA 4159—The Scheffer Press, Inc., Chicago, Illinois—7-30-75—250

TI

UNITED STATES COURT CF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Before

Hon. LEONARD P, MOORE, Sr. Circuit Judge

Hon. JOHN PAUL STEVENS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

UNITED STATES OF AMERICA, From the United

States District

Court for the

Northe m District

of Indiana, Terre

)

)

Plaintiff-Appellee, )

)

)

) Haute Division,

)

)

)

)

WARNER S. SMITH, GARLAND

JEFFERS, et al., (HCR 74 56)

Defendants-Appellants.

On consideration of the petition for rehearing

and suggestion that it be reheard en banc filed in the

above-entitled cause, no judge in active service hav-

ing requested a vote thereon, nor any judge having

voted to grant the suggestion, and all of miembers of

the panel having voted to deny a rehearing,

IT IS ORDERED that the petition for rehearing

in the above-entitled cause be, and the same is hereby

CENIED.

APPENDIX B