# Petition — Kutas v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0795%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1073 ## Text 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 bcar 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 4a 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 5a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0795%3A1. Public record. Not legal advice.