Petition — Kutas v. United States

Supierms Court, U. &

Flue nN

OCT 23 wae

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1976

no, @6-5 04

EVA AGNES KUTAS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Responder...

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Norman Sepenuk

1330 Bank of Cali-

fornia Tower

707 S.W. Washington St.

Portland, Oregon 97205

Counsel for Petitioner

October 19, 1976

INDEX

OPINION BELOW eseeerienereeeeeeeeeeeeeeeemeeeenee

JURISDICTION eeeereerseske#seneteee#eseteeieeenees#e#e#eee#ee#ee#ee#e«

QUESTIONS PRESENTED eeeeveeveeeee ee eeeeeeee

STATEMENT OF THE CASE .cccccccccdccecececs

REASONS FOR GRANTING THE WRIT ..........

1. The Conflict of Standards

in the Courts of Appeals .....

2. The Conflict Among the

Circuits on the Question

of Waiver e*enetsesetieeeseesee#ee#e#ee#eestsge#e#e#e#e#

CONCLUSION oenereoenrtreeseteteererte8eeeneteeneseeeest es *# © ee 6

APPENDIX

12

21

25

la

ii

TABLE OF AUTHORITIES

CASES | Page

Anderson v. United States

122 U.S.App.D.C. 277, 352 F.2d

Je: eA bca<cwadee’ 15

Austin v. Erickson

447 F.2d 620 (8th Cir.1973) ...... 19

Butzman v. United States

205 F.2d 343 (6th Cir.1953) ...... 17

Campbell v. United States

122 U.S.App.D.C. 143, 352 F.2d

SoF CASGS) cccvcceses ebevesece 14, 22

Chapman v. California

386 U.S. 18, 87 S.Ct. 824,

Be Dame ae S268 (2067) ccccccscsces 16

Davidson v. Cu

446 F.2d 642 (9th Cir.1971) ...... 19

Ford v. United States

379 F.2d 123 (D.C.Cir.1967) .. 15, 16

Glasser v. United States

315 U.S. 60, 62 S.Ct. 457,

86 L.Ed. 680 (1942) .......... 12, 13

Johnson v. Zerbst

3064 U.S. $58, 36 S.Ct. 1019,

@ = We’ (so ae 21

Lollar v. United States

376 F.2d 243 (D.C.Cir.1967) ...... 15

Sawyer v. Brough

358 F.2d 70 (4th Cir.1966) ....... 17

United States v. DeBerry

487 F.2d 448 (2d Cir.1973) ....... 19

iii

United States v. Foster

469 F.2d 1 (lst Cir.1972) ..... ees’ On

United States v. Garcia

51? F.2a 272 (5th Cir.

ee Sg ys ‘ee ee

United States v. Gougis

, 374 F.2d 758 (7th Cir.1967) ...... 18

United States Ex rel. Hart

v. Davenport

478 F.2d 203 (3d Cir.1973) ....... 17

United States v. Lidd

F.Supp. (D.D.C.1972) ceccce 14

United States v. Lovano

420 F.2a 769 (2d Cir.1970).,

cert. denied, 397 U.S. 1071,

90 S.Ct. 1515, 25 L.Ed. 2d

DE. obs 6606.00 00 60600 CO CESE OC OO OES 19

United States v. Mari

F. 1 me Cie BETS) opeveses 20

United States v. Nystrom

447 F.2d 1356 (9th Cir.1971) ..... 19

United States v. Williams

429 F.2aq 158 (8th Cir.1970),

cert. denied, 400 U.S. 947,

$1 S.ct. 255, 27 L.Ed.2d

St tvoee6 ub bb O0SS Re 66 SOS OeCesecoee BF

Walker v. United States

422 F.2q 374 (3d Cir.1970),

cert. denied, 399 U.S. 915,

90 S.Ct. 2219, 26 L.Ed.2d

BTS 60s 66 nebo £6 66504006 CO 4048 sseaue oe

iv

STATUTES

20 U.8.C..§ 13994 ssscs

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

EVA AGNES KUTAS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Eva Agnes Kutas, prays

that a writ of certiorari issue to review

the opinion and judgment of the United

States Court of Appeals for the Ninth Cir-

cuit, entered on September 27, 1976, which

affirmed the judgment of conviction entered

by the United States District Court for the

District of Oregon.

OPINION BELOW

The opinion of the Court of Appeals

is not officially reported. (See Appendix,

infra.)

JURISDICTION ‘

The judgment of the Court of Appeals

was entered on September 27, 1970. The

jurisdiction of this Court is invoked under

28 U.S.C. § 1254. |

QUESTIONS PRESENTED

1. Whether joint representation of

petitioner Kutas with her two co-defendants

by the same attorney constituted a conflict

of interest in contravention of her right to

the effective assistance of counsel.

2. Whether Kutas intelligently and

knowingly waived her right to separate

counsel. -

3. Should this Court resolve the

conflict among the Circuit Courts of Appeal

in determining whether an attorney's repre-

@3o

sentation of multiple defendants constitutes

a conflict of interest and a denial of the

effective assistance of counsel?

STATEMENT OF THE CASE

The petitioner, Eva Agnes Kutas, was

indicted with other defendants for, inter

alia, conspiring to harbor and conceal an

escaped Federal prisoner, Carl Cletus Bowles

(Ct. a After a trial by jury, defendant

was convicted on the conspiracy charge and

also convicted of the substantive offense of

harboring and concealing the escaped Federal

prisoner. * She was sentenced to two years'

imprisonment. The facts pertaining to the

issues raised in this petition are as follows:

At the trial, petitioner Kutas was

1. References to the District Court Clerk's

Transcript of Record will be referred to as

"Ct." References to the trial transcript will

be designated "R". References to the tran-

script of hearing on the motion for new trial

will be designated as "H.Tr."

2. The evidence of guilt was summarized by

the Court of Appeals as follows:

~~

represented by attorney Robert Ackerman,

who also represented defendants Ray Eaglin

and Sara Maltzman. All three defendants were

tried together. Defendant Kutas did not testi-

fy on her own behalf, but presented evidence

that at the time she allegedly harbored Bowles

she was elsewhere.

Defendant Kutas first met with attorney

2.(Cont.) "On May 17, 1974, Carl Bowles, a

federal prisoner serving concurrent state and

federal sentences at the Oregon State Peniten-

tiary, left the penitentiary under a four-

hour pass and failed to return. Coconspira-

tor Joan Coberly hid Bowles for approximately

ten days, after which she and Bowles were

driven to a house in Eugene, Oregon, where co-

conspirator Ray Eaglin was persuaded to help

Bowles to escape. Kutas was present in the

house at the time. Over the next hour or so

Kutas and Eaglin loaded gear and supplies into

a station wagon. Then Eaglin drove Bowles,

Kutas and Coberly to a remote area of the Wil-

lamette National Forest where Bowles and Coberly

set up camp in an underground bunker some dis-

tance into the forest. On the trip from Eugene

to the campsite, Kutas prepared a list of things

which Bowles would need for a long stay at the

campsite. Throughout the trip, Eaglin carried

a handgun visible in a side holster, at some

point gave Bowles a gun, and, according to

Coberly, told Bowles in Kutas' presence: 'I

don't think they are going to be looking for

you, because everybody is looking for

Hearst.'"

len li

=~ =

Ackerman in September, 1974, when she con-

sulted with him as Ray Eaglin's appointed

attorney (H.Tr.98). Ackerman thereafter

agreed to represent Eaglin, Kutas and Maltz-

man, the latter two on a retained basis with

Maltzman's family paying the fee. Kutas

suggested at that time that another attorney

skilled in handling conspiracy cases might be

involved in the case. Mr. Ackerman discouraged

this approach, indicating that he did not need

another attorney because so much o/ the inves-

tigation had been done and also because attor-

neys find difficulty working with each other

if they might differ on defense strategy or

on other parts of the trial (H.Tr.72). When

a request was made to United States Magistrate

Hogan that Ackerman be permitted to represent

all three defendants, the Magistrate admitted

his misgivings concerning that course of action

and waited approximately two months before

approving Ackerman's joint representation

(H.Tr.171).

=@6-

At a hearing on February 24, 1975, an

affidavit was submitted, signed by each of the

three defendants, concerning the issue of

3 At that time, Magis-

conflict of interest.

trate Hogan began questioning each of the

defendants concerning the affidavit, but was

cut off in his examination of Eaglin, the first

defendant, by Ackerman who objected to an

inquiry into matters which might involve the

attorney-client privilege (Ct.249). As a re-

sult, defendant Kutas was simply asked whether

the affidavit was the same affidavit which she

signed and which had been read that morning,

and then whether any pressure or coercion was

placed upon her to sign it. She was given an

opportunity to respond only to each of those

questions (Ct.253). As Magistrate Hogan

stated at the hearing on the motion for new

trial: "I merely asked summary type questions

3. The affidavit stated that each defendant

knew about possible conflicts, had discussed

the matter thoroughly with Ackerman, realized

that each had a right to separate counsel, and

that each saw no factual or legal issues which

would give rise to any conflict.

Jeo

of the defendants * * * defense attorneys

* * *know more about the facts in the case

than the judge does at that point and I felt

that was a matter he could make a better judy-

ment about and I didn't know how I could over-

rule his decision on that." (H.Tr.174-175).

The day of the hearing, February 24, 1975,

Assistant United States Attorney Hammersley

made an offer of immunity to defendant Kutas.

She rejected this offer, based on her feeling

that it involved simply her testiit,ing against

the other defendants (H.Tr.79). She did not

understand that she could be immunized, over

her objections to giving testimony, or that

she could simply make a statement to the

government about her actual knowledge of the

case (H.Tr.80).

Apart from a very brief discussion of

the affidavit concerning conflict of interest,

prior to her signing it, Kutas had only one

conversation with attorney Ackerman, in late

December, 1974, concerning conflict of interest.

~ =

The discussion was quite brief, and Kutas

felt the only meaning of a conflict was that

if one defendant changed his testimony or

testified against the others, Ackerman would

have to withdraw. She also understood it to

mean factual evidence indicating guilt of

any other defendants would also constitute a

conflict requiring that Ackerman withdraw

(H.Tr.73).

After the trial had begun, a meeting

with Ackerman, David Jensen (attorney for co-

defendant Gregg Lui Kwan) and the defendants

occurred. The two attorneys discussed their

decision that none of the four defendants

s*ould testify on their own behalf. Kutas,

however, was worried about the impression on

the jury if she did not testify but was con-

vinced by comments made by Mr. Ackerman that

this strategy should be employed (Ct.241-242).

In his closing argument at trial,

Ackerman linked the fate of Eaglin to the fate

of Kutas, stating that if Joan Coberly was

-9-

“lying as to Miss Kutas, she would also be

lying about Ray Eaglin, something that we have

been able to establish since this case began"

(Tr.1008). The government had claimed that Joan

Coberly, niece and girlfriend of Carl Bowles,

had assisted Bowles in Sona after his release

on a social pass from prison. ae and Cober-

ly, the trial testimony established, drove Bowles

from Eugene to a camp in the Willamette National

Forest. Kutas had allegedly been a passenger

in their vehicle. Coberly had te: ified that

Kutas' involvement had simply been prepara-

tion cf a "grocery list" of items which might

be needed by the others and furnishing some

socks to Coberly (R.238,241-44).

Coberly had testified at trial that

"I didn't think she [Kutas] was that much

involved" (Tr.376).

By contrast, the evidence against

Eaglin showed that he transported Bowles and

Coberly to a campsite in the Willamette

National Forest (R.241-242); that upon arrival

3(a). Joan Coberly was the sole government wit-

ness implicating Kutas in the alleged conspiracy.

-10-

at the campsite, Bowles, Coberly and Eaglin

went to an underground bunker hiding place

provided _ Eaglin (R.245-247); that Eaglin

came back later that day to bring canned goods

and other foodstuffs (R.249); that Eaglin

returned to the campsite several days later

with extra supplies (R.256); that Eaglin,

together with Armsbury, again returned to the

campsite and transported Coberly and Bowles

to a home in Eugene (R.269-270); that Eaglin

provided Coberly and Bowles with false I.D.

(R.293-294); and that, after secreting Bowles

at the home of Mildred Wellborn, Eaglin told

Mrs. Wellborn to “keep [her] mouth shut”

(R.501).

Following her conviction and sentencing,

Kutas (then represented by another attorney)

filed a motion for a new trial based on the

ground that Ackerman's joint representation

prejudiced her defense. She claimed that, in

view of Ackerman's representation of Eaglin

and the much stronger case against Eaglin,

-1ll-

she was prejudiced when Ackerman failed to

advise her properly in determining not to

waive a jury trial, not to testify, not to

accept an offer of immunity; and linked her

fate to Eaglin's in his closing argument to

the jury.

The trial court's denial of the motion

for new trial was affirmed by the Court of

Appeals as follows:

"The long established rule

in this circuit is that to prevail

on this ground, the defenda .t has

the burden of establishing that the

joint representation in fact created

an actual conflict of interest

and prejudiced her defense. See,

e.g., United States v. eeprors

Cir., 9 F. » 23513

Davidson v. Cupp, 9 Cir., 1971,

446 F.2d 642, 643. Kutas argues

that we should reject this approach

in favor of the District of Colum-

bia's more ‘liberal’ rule. This

suggestion was specifically re-

jected in Carlson v. Nelson,

9 Cir., 1971, 443 F.2d 21, 22,

and we reject it again. * * *

Given Kutas' burden of proof,

we conclude that she has failed

to show that she was actually pre-

judiced by any conflict."

o})2-

REASONS FOR GRANTING THE WRIT

Be The Conflict of Standards

in the Courts of Appeals

The right to the effective assistance

of counsel for the defendant in a criminal

trial is guaranteed by the Sixth Amendment to

the United States Constitution. In Glasser v.

United States, 315 U.S. 60, 62 S.Ct. 457,

86 L.Ed. 680 (1942), this Court first enun-

ciated the standards for evaluating joint

representation and for determining the exis-

tence of a conflict of interest which amounted

to a denial of Sixth Amendment rights. Al-

though widely regarded as the leading case

in the area, Glasser simply provided a philo-

sophical framework within which various courts

have developed their own practical tests to

determine the existence of a conflict of

interest and/or specific prejudice stemming

from joint representation. Clearly avoiding

its chance to require a defendant to show

both joint representation and actual prejudice

“

-13-

resulting therefrom, the Court in Glasser

noted, "(t]he right to have assistance of

counsel is too fundamental and absolute to

allow courts to indulge in nice calculations

as to the amount of prejudice arising from its

denial." 315 U.S. at 75-76.

Since ]942, Glasser has been cited

extensively and its philosophy expanded in many

decisions. The particular test to be used by

a trial court in evaluating possible prejudice

from joint representation was not claborated

by this Court in Glasser. As a result, each

Circuit has articulated its own standards,

and each case generally turns on its own facts.

Whether a defendant requests retained counsel

jointly with another defendant, or whether

joint counsel is appointed, judicial concern

about conflicts is the same. In one of the

"Watergate" cases, four defendants sought to

be represented by the same attorney, over

objections by the government. In allowing

the joint representation, Judge Sirica, none-

-14-

theless, noted his doubts:

"Courts cannot simply

assume that such arrangement

is in accord with the desire of

each defendant. Because one may

accept dual or multiple repre-

sentation without comprehending

that his interests conflict with

those of his co-defendants or

without being aware of his right

to demand individual representa-

tion, it is the Court's duty to

satisfy itself that the choice

is intelligently made and that

conflicts are not likely."

United States v. Liddy, 348 F.Supp.

198, 200 (D.D.C.1972).

The District of Columbia Circuit, by statute,

automatically requires, at the outset, that

separate counsel be appointed for co-defen-

dants who are indigent. Criminal Justice Act,

18 U.S.C. § 3006A. Parallel to this statute

is the requirement outlined by that Circuit's

Court of Appeals in Campbell v. United States,

122 U.S. App. D.C. 143, 352 F.2d 359 (1965):

Even when counsel is retained, the trial

court has a responsibility to insure that a

co-defendant's decision to proceed with the

same attorney is an informed decision. 122

-15-

U.S. App. D.C. at 145.

In 1967 the District of Columbia

Circuit adopted the "informed speculation"

test. In companion cases, Lollar v. United

States, 376 F.2d 243 (1967), and Ford v.

United States, 379 F.2d 123 (1967), two con-

victions were reversed after a ruling that

court-appointed counsel for the two defendants

had involved error. The court in Lollar

viewed the trial court record concerning

possible prejudice in joint representation

as only “the tip of the iceberg". The test,

the court stated, is that a conviction may

stand, ina joint representation case, only

when there is no basis in the record for “an

informed speculation" that the rights of the

Ssbesisent are prejudicially affected. 376

F.2d at 247; Anderson v. United States, 122

U.S. App. D.C. 277, 279, 352 F.2d 945, 947

(1965). In Lollar, the quantum of proof

required was that the government must show

“beyond a yeasonable doubt" that there was

-16-

no prejudice--the standard whenever the

government contends that infringement of a

constitutional right is harmless error.

376 F.2d 247, citing Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 18 L.Ed.2d 241

(1967); accord, Ford v. United States, 379

F.2d 123, 125 (1967).

In the First Circuit, as early as

possible in a case, the trial judge is required

to comment on the risks inherent in dual

representation, if two defendants seek joint

counsel. The judge must make the defendants

aware of these risks and inquire diligently

whether they have discussed the matter with

counsel and whether they understand that they

may have separate counsel, either retained or

appointed. If the record does not indicate

a satisfactory inquiry in these terms, the

burden of persuasion shifts to the government,

which must demonstrate that prejudice to the

defendant, as a result of the joint represen-

tation, was “improbable”. United States v.

-l17-

Foster, 469 F.2d 1 (lst Cir.1972). Carrying

the principle of “informed speculation"

slightly further, the Third Circuit has estab-

lished that, “upon a showing of a possible

conflict of interest or prejudice, however

remote, we will regard joint representation

as constitutionally defective." United States

Ex rel. Hart v. Davenport, 478 F.2d 203, 210

(1973) (emphasis added); Walker v. United States,

422 F.2d 374 (1970), cert.denied, 399 U.S.

915, 90 S.Ct. 2219, 26 L.Ed.2d 573.

Similarly, in the Fourth Circuit, a”

defendant is not required to show the precise

way he was harmed in order to establish an

impairment of his right to an unfettered

assistance of counsel. Merely the possibility

of harm is enough, when the salient fact in

the case was that the co-defendants had

divergent interests. Sawyer v. Brough, 358

F.2d 70 (4th Cir.1966).

In Butzman v. United States, 205 F.2d

343 (6th Cir.1953), the rule in the Sixth

-18-

Circuit became one of a presumption against

waiver of the right to separate counsel and

a concern with the fact that the right to

effective representation is too fundamental to

engage in discussions concerning degrees of

prejudice,

The Seventh Circuit, as well, has

affirmed that a defendant need not show actual

prejudice but need only show that his/her

representation with joint counsel "was not as

effective as it might have been" with a

separate lawyer. United States v. Gougis,

374 F.2d 758 (7th Cir.1967).

Despite the careful scrutiny given by

these courts, not every Circuit regards joint

representation with such skepticism. A

clearly different standard has been set forth

in the Second and Ninth Circuits. There, as

shown by the opinion of the court below, some

specific instance of prejudice, a real con-

flict of interest as a result of a joint re-

presentation, must be demonstrated before an

-19-

appellant can be successful in arguing that

he has been denied the effective assistance

of counsel. United States v. Lovano, 420 F.2d

769, 733 (2d Cir.1970), cert. denied, 397 U.S.

1071, 90 S.Ct. 1515, 25 L.Ed.2d 694; United

States v. DeBerry, 487 F.2d 448 (2d Cir.1973);

United States v. Nystrom, 447 F.2d 1350, 1351

(9th Cir.1971); Davidson v. Cupp, 446 F.2d 642,

643 (9th Cir.1971}). Use of this standard,

however, is by no means uniform or unquestioned,

even by courts which have followed it for

several years. The Eighth Circuit, for example,

although accepting the requirement that an

actual conflict of interest should be shown,

also would allow evidence pointing to a "sub-

stantial possibility of a conflict" of interest

between co-defendants, in order to show that

joint representation constitutes a denial of

the effective assistance of counsel. Austin

v. Erickson, 477 F.2d 620, 623 (8th Cir.1973);

United States v. Williams, 429 F.2d 158, 161

(8th Cir.1970), cert. denied, 400 U.S. 947,

-20-

91 S.Ct. 255, 27 L.Ed.2d 253.

The Second Circuit has also begun to

acknowledge that the possibilities for preju-

dice inherent in dual representation cases must

be more closely examined. In a concurring

Opinion in United States v. Mari, 526 F.2d 117,

120 (2d Cir.1975), Judge Oakes observed that:

"The potential for conflict

of interest in representing mul-

tiple defendants is so grave that

ordinarily a lawyer should decline

to act for more than one of several

co-defendants except in unusual

Situations, when, after careful

investigation, it is clear that

no conflict is likely to develop

and when the several defendants

give an informed consent to such

multiple representation. [Citing

ABA Standards Relating to the

Prosecution Function and the

Defense Function § 3.5 (Approved

Draft 1971) at 211, 213.)]"

The court below refused to depart from

its "long established rule" that the defendant

"has the burden of establishing that the joint

representation in fact created an actual con-

flict of interest and protutions her defense."

The court recognized that this rule was in

a

@2i@

conflict with the more "iiberal” rule in

the District of Columbia. As previously

shown, the court's decision also conflicts

with every other Circuit (except the Second)

which has considered the matter. Certiorari

should be granted to resolve the conflict

among the Circuits and to define the appro-

priate standard to be applied in multiple

defendant cases.

2. The Conflict Among the Circuits

on the Question of Waiver

There is also a conflict among the

Circuits on the equally important question of

whether a multiple defendant has knowingly

waived his right to separate counsel.

This Court has held that the waiver of

a constitutional right (here, the effective

assistance of counsel) requires that there be

an “intentional relinquishment or abandonment

of a known right." Johnson v. Zerbst, 304

U.S. 458 (1938) (emphasis added). In the

District Court and in the court below, the

~22e

affidavit signed by Kutas (see Statement,

supra) was construed to be a knowing, inten-

tional waiver of Kutas' right to separate

counsel. The court below considered it import-

ant, on the question of waiver, that Kutas

was "an intelligent and well educated woman

holding a master's degree from the University

of Oregon." Contrary to the holding of the

court below, the District of Columbia Circuit

has noted:

"An individual defendant is

rarely sophisticated enough

to evaluate the potential con-

flict that can arise from joint

representation, and when two

defendants appear with a single

attorney it cannot be determined,

absent inquiry by the trial

judge, whether the attorney has

made such an appraisal or has

advised his clients of the risks."

Campbell v. United States, 122 U.S.

143, 352 F.2d 359, 360 (1965).

The District of Columbia Circuit requires

“inguiry by the trial judge" as does the Fifth

Circuit. In United States v. Garcia, 517 F.2d

272, 278 (5th Cir.1975), the Fifth Circuit

has held that the voluntariness or knowledge

-23-

of the consequences of a waiver of the right

to separate counsel should be judged by the

same standard used to determine whether a

defendant who pleads guilty does so voluntarily

and with full knowledge of the consequences.

As stated by the Fifth Circuit:

"x * * [T]he district court

should address each defendant

personally and forthrightly advise

him of the potential dangers of

representation by counsel with a

conflict of interest. The defen-

dant must be at liberty to ques-

tion the district court as to

the nature and consequences of his

legal representation. Most sig-

nificantly, 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 such a conflict, that he has

discussed the matter with his

attorney or if he wishes with out-

side counsel, and that he volun-

tarily waives his Sixth Amendment

protections. Cf. United States v.

Foster, 469 F.2d 1 (lst Cir.1972).

It is, of course, vital that the

waiver be established by ‘clear,

unequivocal, and unambiguous

language." National Equipment

Rental v. Szukhert, 375 U.S. 3ll,

84 S.ct. 411, 11 L.Ed.2d 354, 367-8

-24-

(1964). Mere assent in re-

sponse to a series of questions

from the bench may in some cir-

cumstances constitute an adequate

waiver, but the court should none-

theless endeavor to have each

defendant personally articulate

in detail his intent to forego

this significant constitutional

protection. Recordation of the

waiver colloquy between defendant

and judge will also serve the

government's interest by assisting

in shielding any potential con-

viction from collateral attack,

either on Sixth Amendment grounds

or on a Fifth or Fourteenth Amend-

ment ‘fundamental fairness' basis."

Both the District Court (Ct.309) and the

Court of Appeals rejected the necessity of a

detailed inquiry concerning waiver similar to

that set forth in the Garcia case.

There is a square conflict among the

Circuits whether a detailed inquiry, similar

to that used for determining whether a guilty

plea is entered voluntarily, is necessary in

the case of joint representation of multiple

4. As shown in the above Statement (p. 6),

United States Magistrate Hogan simply asked

Kutas, without more, whether she had signed

the affidavit and if any pressure or coercion

was placed upon her to sign it.

-25-

defendants. The conflict should be resolved

by this Court.

CONCLUSION

For the reasons stated, this writ

should be granted and the judgment of the

Court of Appeals for the Ninth Circuit should

be reversed.

Respectfully submitted,

“yy

te

PV for a —_ we ’

Norman Sepenuk

1330 Bank of California

Tower

707 S.W. Washington Street

Portland, Oregon 97205

APPENDIX

la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Un rTep STaTEs OF AMERICA, 7

Plaintiff-Appellee,

ve. No. 75-2756

Eva AGnes Kutas,

Defendant-Appellant.

| OPINION

UnNrTTED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

Nc 75-3806

Eva AGNEs KutTAs,

Defendant-Appellant. ;

| September 27, 1976]

Appeal from the United States District Court

for the District of Oregon

Before: KOELSCH, DUNIWAY and CHOY,

Cireuit J .dges

DUNIWAY, Circuit Judge:

Kutas appeals from a judgment of conviction of harboring and

concealing, and of conspiracy to harbor and conceal, an escaped

federal prisoner in violation of 18 U.S.C. §§ 1072 and 371. She

also appeals from an order denying her motion for a new trial.

We affirm in both appeals.

I. The Sufficiency of the Evidence.

We state the evidence in the light most favorable to the govern-

ment, Glasser v. United States, 1942, 315 U.S. 60, 80. On May

17, 1974, Carl Bowles, a federal prisoner serving concurrent state

and federal sentences at the Oregon State Penitentiary, left the

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2 United States of America vs.

penitentiary under a four-hour pass and failed to return. Cocon-

spirator Joan Coberly hid Bowles for approximately ten days,

after which she and Bowles were driven to a house in Eugene,

Oregon, where coconspirator Ray Eaglin was persuaded to help

Bowles to escape. Kutas was present in the house at the time.

Over the next hour or so Kutas and Eaglin loaded gear and

supplies into a station wagon. Then Eaglin drove Bowles, Kutas

and Coberly to a remote area of the Willamette National Forest

where Bowles and Coberly set up camp in an undérground

bunker some distance into the forest. On the trip from Eugene

to the campsite, Kutas prepared a list of things which Bowles

would need for a Jong stay at the campsite. Throughout the trip,

Eaglin carried a handgun visible in a side holster, at some point

gave Bowles a gun, and, according to Coberly, told Bowles in

Kutas’ presenc® “I don’t think they are going to be looking for

you, because everybody is looking for Hearst.”

The evidence was sufficiel to support a jury finding that

Kutas knowingly harbored and concealed an eseaped prisoner.

Whether Kutas knew that Bowles was an escaped prisoner was

for the jurv; the knowledge could be inferred. Her claim that

the evidence did not show that she harbored and concealed

Bowles is also without merit. The evidence shows that she par-

ticipated intimately in “transporting [Bowles and] furnishing

him food, clothing, and a gun.” United States v. Hobson, 9 Cir.,

1975, 519 F.2d 765, 774.

Il. The Alleged Hearsay Statement.

Kutas argues that Coberly’s testimony that Eaglin told Bowles,

in Kutas’ presence, that the police weren’t looking for him be-

cause they were looking for Hearst, was inadmissible and preju-

dicial hearsay. The government replies that the statement is

admissible as a coconspirator’s declaration. Neither argument is

applicable here Coberly’s testimony was not hearsay. Federal

Rules of Evidence, Rule 801(c), defines hearsay as “a statement

.. Offered in evidence to prove the truth of the matter asserted.”

Coberly’s testimony” was not offered to prove the truth of Eaglin’s

statement. Whether the police were in faet looking for Bowles

or Hearst was never an issue. The statement was admitted as

evidence from which it could be inferred that Kutas knew that

Bowles was an escapee. It was the fact that Eaglin made the

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Eva Aqnes Kutas 3

statement, not the truth of the statement, that was significant.

See United States v. Calaway, 9 Cir, 1975, 524 F.2d 609, 613,

Ill. The Jury Instruction,

The court instructed the jury as follows:

The words “harbor” and “conecal” refer to any physical act

of providing assistance, including food, shelter, and other

assistance to aid the prisoner in avoiding detection and

apprehension.

In light of the interpretation given to “harbor and conceal” in

United States v. Hobson, supra, 519 F.2d at 773-74, the instrue-

tion was correct.

IV. Effective Assistance of Counsel.

In support of her motion for a new trial, Kutas argues that

she was denied effective assistance of counsel because Ackerman,

her attorney, also represented Eaglin at the joint trial, and his

duty to Eaglin conflicted with his duty to Kutas, to her preju-

dice.

Bvidence received at the hearing of the motion for a new trial

disclosed the following: Kutas was originally represented by a

court-appointed attorney, but she quickly beeame dissatisfied with

him. She therefore dismissed him and approached Ackerman,

Eaglin’s appointed counsel, asking him to represent her also, He

was representing, on retainer, a codefendant, Maltzman, and

agreed to act for Kutas. Ackerman explained to her that conflict

of interest problems often arise in joint representation cases, and

he gave her a number of specific examples, This conversation was

later confirmed in a letter from Ackerman to Kutas, Ackerman

also discussed the mat’>r with the magistrate assigned to Kutas’

case,

The magistrate, although he had been assured by Ackerman

that ‘»vestigation for the defense was almost completed without

revealing any trace of a conflict, did not allow Ackerman to

represent the defendants jointly until each defendant had signed

an affidavit agreeing to joint representation. The affidavit stated

that each defendant knew about possible conflicts, had diseussed

the matter thoroughly with Ackerman, realized that each had a

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4 United States of America vs.

right to separate counsel, and that each saw no factual or legal

issues which would give rise to any conflict. The affidavit also

stated that each defendant recognized a continuing duty to dis-

close any conflict the minute it arose, and that each knew that

Ackerman could only represent one of them if that happened.

During the trial, no defendant expressed any concern about the

joint representation, nor did Ackerman, and Ackerman frequently

reassured the court that no conflicts existed.

After her conviction and sentencing, Kutas’ family retained vet

another attorney for her, and shortly thereafter this attorney

filed a motion for a new trial based on the ground that Acker-

man's joint representation prejudiced Kutas’ defense. She elaims

now that, beeause Ackerman also represented Eaglin, he failed

to seck a severance of the trials, failed to inform her of her right

to separate counsel and influenced her improperly in advising her

not to waive a jury trial, not to testify, and not to aecept an

offer of immunity.

The long established rule in this eeult is that to prevail on

this ground, the defendant has the burden of establishing that

the joint representation in faet ereated an actual confliet of

interest and prejudiced her defense, See, ¢.¢., United States v,

Nystrom, 9 Cir, 1971, 447 F.2d 1350, 1351; Davidson v. Cupp, °

9 Cir, 1971, 446 F.2d 642, 643. Kutas argues that we should

reject this approach in favor of the Distriet of Columbia Cir — ‘i

cuit'’s more “liberal” rule. This suggestion was specifically rejected

in Carlson v. Nelson, 9 Cir, 1971, 443 F.2d 21, 22, and we

reject it again. We think that, especially in a case like this, .

where, despite the hesitation of counsel and the court, the defend-

ant insists on joint representation, makes no objection through-

out the trial, and after conviction seeks a new trial, the burden

should be on the defendant to show that a conflict actually

existed and that it actually prejudiced her rights. Any other

rule would allow defendants to plant almost certain error in the

record.

Given Kutas’ burden of proof, we econelude that she has failed

to show that she was actually prejudiced by. any conflict, Kutas

was aware of her right to separate counsel, and she had no

desire to seck a severance. The testimony of both Ackerman and

th attorney representing another eo-defendant is that Kutas

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Eva Aqnues Kutas 5

agreed with, and was very pleased with, the decision not to have

any defendant testify. We do not aceept the after-the-fact elaim,

which the trial court rejected, that the strategy designed to

avoid eross-examination was motivated by a confliet of interest.

See United States v. Wisniewski, 2 Cir., 1973, 478 F.2d 274, 284.

Likewise, we will not reverse the denial of a motion for a new

trial based on the fact that the defendants initially disagreed

on whether to waive a jury trial when they later agreed without

any claim of conflict of interest. See Aaplan v. United States,

9 Cir., 1967, 375 F.2d 895, 898. Finally, the record shows that

Kutas’ refusal to secept immunity arose out of her feelings of

comradeship and solidarity with the other defendants, and not

beeause of any conflict of interest that her counsel may have had.

In fact, Ackerman advised her to weigh the offer carefully. In

sum, Kutas has been unable to demonstrate that her defense

was in any way prejudiced by Ackerman’s joint representation.

Additionally, even were Kutas able to point to some prejudice,

nevertheless her affidavit satisfies the burden of demonstrating

that she knowingly and voluntarily waived her right to separate

counsel, Kutas is an intelligent and well educated woman hold-

ing a master’s degree from the University of Oregon. It is incon-

ceivable that, after Ackerman’s many discussions with her on the

subject, she was not aware of her rights or of the potential

problems involved in having joint counsel. She validly waived her

right to separate counsel, as the trial judge found. See United

States v. Frame, 9 Cir, 1972, 454 F.2d 1136, 1138,

The judgment and the order appealed from are affirmed.

PERNAU-WALSH-PRINTING CO. SAN FRANCISCO = 10-5-76-—400

CERTIFICATE OF SERVICE

I hereby certify that I served the

foregoing Petition for a Writ of Certiorari

on the following attorneys for the United

States on October )' , 1976, by mailing to

said attorneys correct copies thereof, certi-

fied by me as such, contained in sealed enve-

lopes addressed to said attorneys at their

regular office addresses, to-wit:

Hon. Robert H. Bork

Solicitor General of the

United States

Department of Justice

Washington, D. C. 20530

Kristine O. Rogers

Asst. U. S. Attorney

P. O. Box 71

Portland, Oregon 97207

and deposited in the post office at Portland,

Oregon, on said date.

DATED: October 1976.

— a

[) o— Bayh

Norman Sepenuk —

Attorney for Petitioner