Petition — Huntley v. United States

Supreme (

MOV 4

IN THE Miri

Supreme Court of the United States

October Term, 1976

o

as aR 76-629

RoBerT EVERETT HUNTLEY and Gireson F. HEMPHILL,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit.

RICHARD L., ROSENFIELD,

1888 Century Park East, Suite 815,

Los Angeles, Calif. 90067,

Counsel for Petitioners.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Wis

SUBJECT INDEX

Page

ALE DSA A TD 1

ERIS ee AIDE Fe) l

a lciibdpeiidieimestaenanions <

I iain indisndtasigenenntadiiaicnabianneenaennnion 2

ER Te a a cE To 5

The Failure of the Court to Have Petitioners Pres-

ent at the Rendition of the Verdict Vitiates

a i mntelinion 5

The Convictions Should Be Reversed Due to

Failure of the District Court to Advise Peti-

tioners of the Potential Conflict of Interest by

Their Joint Counsel and to Obtain a Waiver .... 18

EIEN LE AP LIL OTL TLD 21

INDEX TO APPENDICES

Appendix A. Opinion of the Court of Appeals ....

SI: -cnsiosnnbisecnpnusaiaaebunhnaslincttetdaiibanpaininiiindetntaiaietioen 17

i.

TABLE OF AUTHORITIES CITED

Cases Page

Austin v. Erickson, 477 F.2d 620 (8th Cir. 1973) .. 19

Barton v. State, 67 Ga. 653 (1881) ......... iieitipssadine 12

Bustamante v. Eyman, 456 F.2d 269 (9th Cir.

SUID csieshienuiehcieccieioelaticenaseiesiemeigeaacniaiiaatasethahiaet ainda ila 12

Campbell v. United States, 352 F.2d 359 (D.C.

I SID iastesh tscecininibcsaitieiceestiaaelaseenastiidinaiaties abbematiiadathaelids 18

Chapman v. California, 386 U.S. 18 (1967) ........ 18

Cross v. United States, 325 F.2d 629 (D.C. Cir.

ER ae tera ee a eke oe eee 10

Cox v. United States, 309 F.2d 614 (8th Cir

SII sissesitietecshninihieitatescilbiabciap teledmanntaitllitas tail sltiicall 16

Diaz v. United States, 223 U.S. 442 (1912) ...... 11, 12

Estes v. United States, 335 F.2d 609 (Sth Cir.

1964), cert. denied 379 U.S. 964 _..000.0 14

_ Evans v. United States, 284 F.2d 393 (6th Cir.

ae a ee ee ee Ce 10

Glasser v. United States, 315 U.S. 60 (1942) _....... 20

Government of Virgin Islands v. John, 447 F.2d

Sr SIE Wiiicrsincenctesuhsnchanipbehenaseaseneanis 19

Hooker v. Commonwealth (13 Grat. 763) 146 U.S.

SUT Uiceiiaiiiapesiabiddaiaadscmaaimmminanmaiendinbewunl i‘ Se

Hopt v. Utah, 110 U.S. 574 (1884) 0000000... 12, 15

Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057

TIED cocchcinniadahaciidasaidslbbiaibenlbiaiiaundettatiteihiieamnienilide B48, 87

Johnson v. Zerbst, 304 U.S. 458 (1938) ................. 10

Jones v. United States, 299 F.2d 661 (10th Cir.

1962), cert. denied 371 U.S. 864 ........................ 17

ii.

Page

Lewis v. United States, 146 U.S. 370 (1892) ...... 11

McKissack v. United States, 379 F.2d 754 (Sth

oo ee siciacishdecenihassbihbliictetiatiibaniipaaiion 10, 14

Peterson v. United States, 411 F.2d 1074 (8th Cir.

1969), cert. denied 396 U.S. 920 ...................... 16

Schor v. United States, 418 F.2d 26 (2nd Cir.

a eaten 10

Schwab v. Berggren, 143 U.S. 442 (1892) ............ 12

Snyder v. Commonwealth of Massachusetts, 291

NT ricci nersciemnancrninienndnesidsenssnenes 17

Stein v. United States, 313, F.2d 518 (9th Cir.

1962), cert. denied 362 U.S. 950 .....00000000002...... 16

United States v. Crutcher, 405 F.2d 239 (2nd

Cir. 1968), cert. denied 394 U.S. 908 ..........0....... 18

United States v. Foster, 469 F.2d 1 (Ist Cir.

STITT, slicelthitedbnaiiicheieebdienaliniiaiineenabainmaieenstieiieneein 18

United States v. Gradsky, 434 F.2d 880 (Sth Cir.

1970), cert. denied 401 U.S. 925 ......0...00000000002.. 14

United States v. Gregorio, 497 F.2d 1253 (4th

Cir. 1974), cert. denied 419 U.S. 1024 (1974) ..

ee ee Oe OT re ap ee 11, 13, 14, 17

United States v. Hammerman, 528 F.2d 326 (4th

I a lite v)

United States v. Herrera, 531 F.2d 788 (Sth Cir.

Na ee O aenebindigitelaincbiaie i)

United States ex rel. Hart v. Davenport, 478 F.2d

I I cll eiiniilaldnhlleieninnnn ae

United States v. Moore, 466 F.2d 547 (3rd Cir.

1972), cert. denied 409 U.S. 1111 ................. 12

iv.

Page

United States v. Reynolds, 489 F.2d 4 (6th Cir.

1973), cert. denied 416 U.S. 988 -...0000022 ee... 15

Wade v. United States, 441 F.2d 1046 (D.C. Cir.

BUG ED. ssidsveccccternnccnhedecsinetiageaeemiiedadaa 10, 12, 15, 16

Rules

Federal Rules of Criminal Procedure, Rule 43 ......

sini ttmai eae a 10, 12, 14, 15

Statutes

United States Code, Title 18, Sec. 371 —.....0........ 2

United States Code, Title 18, Sec. 1014 0.00.00... 2

United States Code, Title 18, Sec. 2314 _............ 2

United States Code, Title 28, Sec. 1254(1) ........ l

United States Code, Title 28, Sec. 2255 .............. 9

United States Constitution, Sixth Amendment ...... 2

Textbook

“Presence of the Defendant at Rendition of the

Verdict in Felony Cases,” 16 Columbia L.Rev.,

Eki ee peveenenneitnicniendaelbiiponiiiseliaiaamannann 15

Supreme Court of the United States

October Term, 1976

|

RoBERT EVERETT HUNTLEY and Gipson F. HEMPHILL,

Petitioners,

a

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit.

Opinion Below.

The opinion of the Court of Appeals is not yet

reported. A copy of the opinion is attached in our

Appendix (App. A). On October 4, 1976, the United

States Court of Appeals for the Fifth Circuit denied

petitioners’ Petition for Rehearing with Suggestion for

Rehearing En Banc. A copy of the order denying

the Petition for Rehearing is attached in Appendix

B.

Jurisdiction.

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

Questions Presented.

1. Whether the failure to secure petitioners’ presence

at the rendition of the verdict in a non-jury trial

vitiates the verdict.

—

2. Whether full implementation of the Sixth Amend-

ment right to- counsel requires federal district

judges to secure a wavier of the right to separate

counsel from two defendants jointly represented

by single counsel.

Statement.

On July 16, 1974, an eighteen count Indictment

was filed in the United States District Court for the

Northern District of Texas, Wichita Falls Division,

charging petitioners Huntley and Hemphill with Con-

spiracy, Interstate Transportation of Stolen Property

Valued in Excess of $5,000, Interstate Transportation

of Forged Securities and Making False Statements to

Obtain Loans from Banks Insured by the F.D.I.C.

in violation of Title 18 U.S.C. §§ 371, 2314 and

1014 [R. 1].

The instant case commenced by jury trial on Novem-

ber 5, 1974. After the conclusion of the direct examina-

tion of the government's first witness, petitioners waived

their right to a jury trial and agreed that to the

extent possible, the matter would be submitted to the

court by stipulated testimony [R. 341]. It was fully

agreed that petitioners had a right to compel the

testimony of any witness for whom a stipulation could

not be reached [R. 347-348]. Thereafter, the matter

was tried by the court on stipulated facts.

On March 4, 1975, the court entered a verdict

judging petitioners guilty on Counts One through Eight-

een. Both petitioners were committed to the custody

of the Attorney General for a period of five years

on Count One, ten years on Counts Two through

“R.” is a reference to the Clerk’s Record.

~ we

Seventeen (to run concurrently with each other as

well as the sentence on Count One) and two years

on Count Eighteen (to run concurrenly with Counts

One through Seventeen) [R. 584-585].

The evidence revealed that petitioners, through the

R. E. Huntley Cotton Company, were in the business

of buying, selling and warehousing cotton [R. 392].

In conducting that business, petitioners presented checks

and drafts drawn on the R. E. Huntley Cotton Company

and related entities’ bank accounts to various banks,

sometimes accompanied by warehouse receipts [R.

373]. These checks and drafts were genuine instru-

ments, signed by R. E. Huntley Cotton Company em-

ployees [R. 467-490]. The’banks regularly honored

the checks and drafts on presentment because they

received an exchange fee from the R. E. Huntley

Cotton Company and because all R. E. Huntley Cotton

Company obligations were regularly paid [R. 373-

375, 376, 378-379, 401-402, 405, 451-453, 454-455,

466].

In July, 1973, a government investigation revealed

that the warehouse receipts which accompanied drafts

were not supported on that date by bales of cotton

in the R. E. Huntley Cotton Company warehouses

[R. 467-490].

The evidence also reflected that petitioners opened

an account on behalf of the Altus Cotton Company

in Altus, Oklahoma at the First National Bank of

Altus, Oklahoma [R. 454-455]. On the signature card,

petitioner Hemphill signed the name “S. B. Marlin”

and petitioner Huntley signed the name “R. E. Huntley”

[R. 396, 454-455]. Both petitioners signed the name

“S. B. Marlin” to various drafts of the Altus Cotton

cnatiiieeis

Company account [R. 396-397]. There was no living

person in the Altus area by the name of S. B. Marlin

[R. 396].

The R. E. Huntley Cotton Company employed a

Shelby Marlin during the period of January, 1970

to July, 1973 [R. 396]. Shelby Marlin never used

the name “S. B. Marlin” and never authorized anyone

to use the name “S. B. Marlin” [R. 396]. Drafts signed

with the name “S. B. Marlin” as Maker, by petitioner

Huntley or petitioner Hemphill were signed with the

knowledge or consent of the other [R. 396-397].

The evidence also reflected that on June 29, 1973,

the R. E. Huntley Cotton Company procured a loan

of $1,288,000.00 from the First State Bank of Vernon,

Texas, and that warehouse receipts accompanied the

note executed on that date [R. 399, 463, 468, 489].

Additionally, less than a month later, on July 16,

1973, the unpaid balance on the June 29 note was

$367,168.84 [R. 490]. The collateral agreement pro-

vided for the release and free substitution of security

pledged on the loan [Government’s Ex. 18B]. On

July 16, 1973, the F.B.I. found eight bales of cotton

corresponding to the 7,095 warehouse receipts which

the bank held at that time [R. 489].

enilbins

ARGUMENT.

I

The Failure of the Court to Have Petitioners Present

at the Rendition of the Verdict Vitiates Their Convic-

tions.

The record in the instant case reveals that petitioners

knowingly and intelligently waived their constitutional

right to a jury trial [R. 341-348]. With equal clarity

the record reveals that petitioners did not waive their

right to a trial. On the morning following the conclusion

of the direct testimony of the first government witness,

petitioners’ counsel advised the court of “our intention

to waive, both orally and in writing, a jury in this

case, seeking a submission to the Court and the Court

alone—with the further suggestion to the Court that

the matter be submitted to the extent possible by

stipulated testimony.” [R. 341].

The court responded | R. 341-342}:

You propose that if the Court or if the parties

agree to waive a jury, that the testimony be

submitted to the Court—the testimony of the wit-

nesses be stipulated to the Court by stipulation

to the effect if the witnesses were present in

the courtroom and placed under oath they would

testify as follows, and then state the testimony

of each witness, and in those instances where

the parties could not agree as to what a witness

would testify to, that that witness may be called

in person, placed under oath and testify before

the Court without a jury?

| DEFENSE COUNSEL |: Yes, Your Honor, that

is my reques’.

ar

THE COURT: And do you further request that

and move that the Court consider any evidence

that the Court has heard up to this point, where

the jury has been present, in determining the

innocence or guilt of the Defendants?

[DEFENSE COUNSEL |: That is correct, Your

Honor.

*x* * *

THE COURT: All right. And you'll work out

some stipulation perhaps on any cross-examination

you may have had of Mr. Gardner, what may

have been developed?

[DEFENSE COUNSEL]: Yes, Your Honor.

The prosecutor pointed out that it was [R. 346]:

the Government’s understanding that what the

defendants propose to do is submit to the Court

for a factual finding . . . general findings as to

guilt or innocence, and that they intend to proceed

on a legal basis, or they intend to proceed on

a matter of law from that point on.

The court thereafter took a waiver of jury trial

[R. 347-348]:

THE COURT: Mr. Huntley, have you heard

the statements made by your attorney as well

as the Court’s statements and the statements

made by the United States Attorney?

MR. HUNTLEY: Yes, sir.

THE COURT: Are you agreeable to the pro-

posal—

MR. HUNTLEY: Yes, sir.

THE COURT: Made and stated to this Court?

MR. HUNTLEY: Yes, sir.

_

THE COURT: That the case will be submitted

to the Court, you’re going to waive a jury trial?

MR. HUNTLEY: Right. Yes, sir.

THE COURT: Now, I’ve explained, I think to

you—you're entitled 10 a jury trial, we have a

jury, we're in the middle of a jury case, but

you agree to waive a jury and submit the case

to the Court?

MR. HUNTLEY: Yes, sir.

THE COURT: Now, the case will be submitted

to the Court on stipulations-—that is, the parties

will agree as to what witness would testify if

brought before the Court and placed under oath;

you understand that? °*

MR. HUNTLEY: Yes, sir.

THE COURT: Now, those witnesses where the

testimony could not be stipulated to may be

brought and testify in person before the Court.

MR. HUNTLEY: Yes, sir, I understand.

THE COURT: Then, the Court would consider

the evidence also of Mr. Gardner who testified

here in person—

MR. HUNTLEY: Yes, sir.

THE COURT: —and based on the evidence .

submitted to the Court and the stipulations, the

Court would make a determination of the inno-

cence or guilt of yourself—do you understand

that?

* * *

THE COURT: Okay. Mr. Hemphill, if you'll

stand.

(Defendant Hemphill stands )

THE COURT: Did you hear my statements to

Mr. Huntley?

MR. HEMPHILL: Yes, sir. I did.

THE COURT: And have you heard all these

proceedings this morning, the statements made

by Mr. Colvin and Mr. Jackson and the Court,

and also the United States Attorney?

MR. HEMPHILL: Yes, sir.

THE COURT: Do you agree in all respects to

what has been said?

MR.HEMPHILL: Yes, sir, I do.

THE COURT: If I propounded the same ques-

tions to you that I propounded to Mr. Huntley,

would your answers be the same as Mr. Huntley’s?

MR.HEMPHILL: Yes, they would.

THE COURT: All right. And are you agree-

able to executing the waiver of a jury?

MR. HEMPHILL: Yes, sir.

The court then recalled the jury and advised them

that their services would not be needed. He told them

that, it would be his duty to decide guilt or innocence,

and that he would [R. 356]:

hear the evidence of the witnesses and make a

determination. I'll make the same determination

that you would have to make in the case.

Petitioners also urged on appeal that the record

revealed that petitioners’ joint trial counsel provided

ineffective assistance and that such ineffective assistance

was characterized by stipulations to totally inadmissible

evidence, and to conclusory assertions which were con-

tradictable. Petitioners argued that the record revealed

_—

counsel had failed the required role of advocacy and

had not given petitioners the trial to which they were

constitutionally entitled. The government responded

by contending that petitioners did not offer material

either within or dehors the record which would suggest

that petitioners had not signed the stipulations voluntar-

ily. Because of the government’s suggestion that the

appellate court could conclude that no evidence extrane-

ous to the record existed to support this position,

petitioners responded by affidavits that would not have

been tendered at the appellate stage but for the govern-

ment’s suggestion. These affidavits were never contra-

dicted. See United States v. Hammerman, 528 F.2d

326, 328, n. 3, (4th Cir., 1975). See also United

States v. Herrera, 531 F.2d 788 (Sth Cir. 1976).

These affidavits were provided by appellate counsel,

Richard L. Rosenfield and Ney Sheridan, Esq. of Ver-

non, Texas (who had at one time represented petitioners

in related state proceedings). The affidavits revealed

that on separate and unrelated occasions each of these

lawyers had been advised by petitioners’ trial counsel

that petitioners had advised him that the proposed

stipulations were replete with factual inaccuracies. He

informed petitioners that it made no difference because

the trial judge would not read them but would rely

instead on a factual summary by his law clerk.

The Court of Appeals declined to consider the affi-

davits and rejected the argument of ineffective assistance

of counsel. This, of course, left petitioners to the pro-

spective remedy via 28 U.S.C. § 2255.

The record does affirmatively reveal that petitioners

did not waive a trial. Yet, the combination of acts

by their trial counsel and the court deprived them

of a trial in any meaningful sense. The record clearly

—

reveals that the court deluded petitioners into believing

that they would receive a trial, albeit a compacted

one. The final blow to the deprivation of a trial was

the court’s rendition of the verdict of guilty without

seeking to secure petitioners’ presence for that solemn

moment. It is a matter of sufficient importance to

require the attention of this Court.

Rule 43, Federal Rules of Criminal Procedure,

provides in pertinent part:

PRESENCE OF THE DEFENDANT.

The defendant shall be present at every stage

of the trial including the impaneling of the jury

and the return of the verdict, and at the imposi-

tion of sentence, except as otherwise provided

by these rules. In prosecutions for offenses not

punishable by death, the defendant’s voluntary

absence after the trial has been commenced in

his presence shall not prevent continuing the trial

to and including the return of the verdict.

* * * [Emphasis supplied].

In our view, the failure of the court to comply

with the strict mandate of Rule 43 is inexcusable.

In no manner did petitioners consent io the proceedings

going forward without them (See McKissack v.

United States, 379 F.2d 754, 762 (Sth Cir. 1967)),

nor was there a knowing waiver of presence. Wade

v. United States, 411 F.2d 1046 (D.C. Cir. 1971);

Johnson v. Zerbst, 304 U.S. 458 (1938): Cross v.

United States, 325 F.2d 629 (D.C. Cir. 1963); Evans

v. United States, 284 F.2d 393 (6th Cir. 1960); Schor

v. United States, 418 F.2d 26 (2nd Cir. 1969).

The right embodied in Rule 43 is not a matter

of form—it is a matter of substance that goes to

onthe

the very core of our system for the administration

of criminal justice. As the late Mr. Justice Black stated

‘for the Court in Illinois v. Allen, 397 U.S. 337, 338,

(1970):

One of the most basic of the rights guaranteed

by the Confrontation Clause is the accused’s right

to be present in the courtroom at every stage

of his trial.

Indeed, the Court has reflected upon the right to

be present as “a leading principle that pervades the

entire law of criminal procedure”, Lewis v. United

States, 146 U.S. 370, 372 (1892), and has commented

upon the “peculiar sacredness of this high constitutional

right.” Lewis v. United States, 146 U.S. at 375.’

In Diaz v. United States, 223 U.S. 442 (1912),

the Court defined the right to be present “. . . in

broad, often quoted language” (United States v. Gre-

gorio, 497 F.2d 1253 (4th Cir. 1974), cert. denied

419 U.S. 1024 (1974)):

In cases of felony our courts, with substantial

accord, have regarded [the defendant’s right to

be present] as extending to every stage of the

trial, inclusive of the impaneling of the jury and

the reception of the verdict, and as being scarcely

less important to the accused than the right of

trial itself. [223 U.S. at 455.]

2Lewis quoted with approval from a Virginia case, Hooker

v. Commonwealth, (13 Grat. 763) (146 U.S. at 373):

It is the right of anyone when prosecuted on a capital

or criminal charge, to be confronted with the accusers

and witnesses; and it is within the scope of this right

that he be present, not only when the jury is hearing

his case, but at any subsequent stage when anything may

be done in the prosecution by which he is to be affected.

=

Diaz quotes with approval (at p. 456) Barton v.

State, 67 Ga. 653 (1881) (failure to secure presence

of accused felon “at all stages of the trial, especially

at the rendition of the verdict” is reversible error).’

Rule 43 is “designed primarily to insure the defend-

ant’s presence, not to permit the trial to proceed in

his absence.” Wade, supra, (441 F.2d at 1048); United

States v. Moore, 466 F.2d 547 (3rd Cir. 1972), cert.

denied 409 U.S. 1111.

The underpinning of the Rule is manifest. It reflects

more than the privilege of confrontation of witnesses

for the right to be present specifically includes not

only historically, but by virtue of Rule 43’s specific

language, the right to be present at the impaneling

of the jury and the return of the verdict. The raison

d'etre rests in part on the notion that procedural due

process requires not only actual justice but also the

appearance of justice. Society has a stake in the out-

come. As put in Hopt v. Utah, 110 U.S. 574, 579

(1884), “[t]he public has an interest in [the defend-

ant’s| life and liberty. Neither can be lawfully taken

except in the mode prescribed by law.” The right to be

present “. . . also rests upon society’s interests in due

process.” Bustamante v. Eyman, 456 F.2d 269, 274

(9th Cir. 1972). As the Cout put it in Hopt, supra at

579:

[T]he legislature has deemed it essential to

the protection of one whose life or liberty is

involved in a prosecution for felony, that he shall

%See also Schwab v. Berggren, 143 U.S. 442, 448 (1892):

The personal presence of the accused from the beginning

to the end of a trial for felony involving life or liberty,

as well as at the time final judgment is rendered against

him may be, and must be assumed to be, vital to the

proper conduct of his defense and cannot be dispensed

with. [Emphasis added].

enti:

be personally present at the trial, that is at every

stage of the trial when his substantial rights may

be affected by the proceedings against him. If

he be deprived of life or liberty without being

so present, such deprivation would be without

that due process of law required by the Constitu-

tion.

For these reasons, we are of opinion that it

was error which vitiated the verdict and judgment,

to permit the trial of the challenges to take place

in the absence of the accused.

United States v. Gregorio, 497 F.2d 1253 (4th Cir.

1974), cert. den. 419 U.S. 1024, is particularly instruc-

tive. The Gregorio court points out that the right

to be present is based in part on the premise that

a defendant charged with a felony has a right to

be present “. . . in order to prevent the loss of con-

fidence in courts as instruments of justice which secret

trials would engender.” (497 F.2d at 1258). The Gre-

gorio court notes also (at n. 10):

One of the best expressions of this rationale be-

hind the right of presence is found in Rex v.

Badmin Justices [1947] 1 All Eng. 109, a criminal

case in which a witness was interrogated by the

court in the absence of the defendant. In that

case, Lord Goddard said:

That is a matter which cannot possibly be

justified. I am not suggesting for one moment

that the justices had any sinister or improper

motive in acting as they did. It may be that

they sent for this officer in the interests of

the accused; it may be that the information

which the officer gave was in the interests of

=

the accused. That does not matter. Time and

again this court has said that justice must not

only be done but must manifestly be seen to

be done. | Emphasis added].

Similarly, in the instant case, we do not suggest

improper motive by the court below. Nevertheless, to

the layman, there is necessarily the appearance of im-

propriety. The appearance of justice is not best served

when a defendant first learns of a court’s verdict pro-

nouncing his guilt from a radio broadcast or news-

paper account rather than in open court as Rule 43

specifically requires.

We do not ignore the fact that certain types of

violations of Rule 43 have been held to be harmless

error. United States v. Gradsky, 434 F.2d 880 (Sth

Cir. 1970), cert. denied 401 U.S. 925; Estes v. United

States, 335 F.2d 609, 618 (Sth Cir. 1964), cert.

denied 379 U.S. 964; Cf. McKissack v. United States,

379 F.2d 754 (Sth Cir. 1967). Despite the result

with certain of Rule 43 violations, it is not consonant

with the interests of justice to apply the harmless

error doctrine where, as here, a verdict is rendered

against defendants who have not voluntarily absented

themselves. We believe our reasoning to be compelling

—Rule 43 explicitly provides a defendant the abso-

lute right to be present at “the return of the verdict”.

If the provision of the Rule has any efficacy, it neces-

sarily follows that there must be a manner of enforcing

it and thus, a sanction for its violation. If the harmless

error doctrine is applicable, there can never be a case

where a violation of the provision for presence at

the verdict will be vindicated. The general test for

whether reversal is required for those types of violations

— =

of Rule 43 to which the harmless error doctrine is

applicable is “whether there is any reasonable possi-

' bility of prejudice.” Wade v. United States, supra;

United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973),

cert. denied, 416 U.S. 988. That test is totally inappo-

site under these circumstances. The defendant’s right

to be present at the rendition of the verdict reflects

certain constitutional values that cannot qualitatively

be measured on scales of prejudice

The right to be present at verdict surely rests in

part on the values underlying the Confrontation Clause

—the right to have the trier of fact face the accused

eye to eye as guilt is pronounced. It is at this point

that the weight of the accusatory process reaches cul-

mination. The right to poll the jurors individually is,

of course, directly related to precisely this aspect. There

have been instances at this juncture when jurors have

changed their minds and not had the strength of purpose

to render a guilty verdict as they face the accused.

See “Presence of the Defendant at Rendition of the

Verdict in Felony Cases,” 16 Columbia L.Rev. 18

(1916). Moreover, we see no sound distinction in

this respect between jury trials and court trials—where

a single person sits as trier of fact. In Hopt, supra,

at 578, the Court observed that “[t]he requirement

is not that [the defendant] must personally be present

at the trial by the jury, but ‘at the trial’ ”.

We believe there can be little quarrel with the proposi-

tion that no person can callously and totally dispas-

sionately pass such serious judgments on his fellow

human beings as inheres in verdicts in criminal cases.

All judges must in some measure feel the weight of

such judgments as they render their fact finding de-

cision. In Wade v. United States, 441 F.2d 1046,

anltiine

1050 (D.C. Cir. 1971), the Court made an important

observation:

|W]je must keep in mind the importance of

a defendant's presence at all stages of his trial.

Indeed, this aspect of a trial has constitutional

prestige in the Sixth Amendment guarantee of the

right to confront adverse witnesses—in good part

a constitutional recognition of a psychological in-

fluence. Though perhaps to a less degree the same

influence pertains to the right of confrontation

of defendant and jury.

Wade expressly recognizes—as logic commands—

that there is a psychological underpinning to the con-

frontation between the arbiter of guilt and the accused.

This psychological influence has constitutional basis

and cannot be ignored. More importantly, it should

not be ignored; it is difficult to dispute the proposition

that it could subtly affect the outcome of the verdicts

in non-jury trials if the courts were armed with the

knowledge that they could find guilt, then simply inform

the defendant of the outcome via correspondence.

Similarly inapposite is the generally correct statement

in Stein v. United States, 313 F.2d 518, 522 (9th

Cir. 1962), cert. denied 362 U.S. 950, that “[t]he

Constitution does not assure the privilege of presence

when presence would be useless or the benefit but

a shadow such as inconsequential bench conferences

or in chambers legal discussions.” Cf. Peterson v. United

States, 411 F.2d 1074 (8th Cir. 1969), cert. denied,

396 U.S. 920; Cox v. United States, 309 F.2d 614

(8th Cir. 1962). Here, there is no debate as to whether

presence is required; here, presence is specifically guar-

anteed.

——

The rendition of the verdict in a criminal case reflects

other, albeit subtle, values implicit in our criminal

‘ justice system. It becomes perhaps the most solemn

moment in any trial. It is the moment that our accusa-

tory process brings its final weight to bear on the

individual. As discussed previously, due process is not

afforded when the court renders its verdict without

even attempting to secure the defendant’s presence for

this ultimate event.

Jf due process guarantees a defendant the right

to be present “. . . in order to prevent the loss of

confidence in courts as instruments of justice which

secret trials would engender” (Gregorio, supra, (479

F.2d at 1258)), then the demand of due process has

not been met here.

We stress that if the harmless error doctrine is ap-

plicable, then the explicit right to be present at the

rendition of the verdict is a right without meaning.

If harmless error is applicable, then we cannot envision

any case where the failure to have a defendant present

at verdict could be anything but harmless. If one at-

tempts in any case to weigh whether defendant’s pres-

ence could have changed a guilty verdict rendered

in his absence, one would always conclude that the

lack of presence could not have had any effect. In

this instance, any meaningful evaluation of prejudice

would necessarily be evasive.

The right to be present is constitutionally based.

Illinois v. Allen, supra; Snyder v. Commonwealth of

Massachusetts, 291 U.S. 97 (1934); Jones v. United

States, 299 F.2d 661 (10th Cir. 1962), cert. denied

371 U.S. 864. There exist “some constitutional rights

so basic to a fair trial that their infraction can never

oni

be harmless error.” Chapman v. California, 386 U.S.

18, 23 (1967). Just as the accused’s right to be

present during the impanelment of the jury is such

a right, United States v. Crutcher, 405 F.2d 239 (2nd

Cir. 1968), cert. denied 394 U.S. 908, so too is the

right to be present at the moment of verdict.

Il.

The Convictions Should Be Reversed Due to Failure

of the District Court to Advise Petitioners of the Po-

tential Conflict of Interest by Their Joint Counsel and

to Obtain a Waiver.

In the trial court, petitioners were jointly represented

by one attorney. Petitioners strongly urged on appeal

that the attorney operated under a potential conflict

of interest in his joint representation and that the

joint representation prohibited him from pursuing alter-

native defenses that would have been available if he

had not been fettered. Petitioners urged on appeal

and on petition for rehearing that the court should

impose a requirement that the district court warn jointly

represented co-defendants of the danger which poten-

tially inheres in joint representation. The Fifth Circuit

declined to impose such a requirement, thus continuing

the conflict in circuits that now exists throughout

the county. Several circuits impose the proper rule—that

a trial judge has a duty to advise joint defendants

of their right to separate representation and of the

pitfalls of securing joint representation. Campbell v.

United States, 352 F.2d 359 (D.C. Cir. 1965); United

States v. Foster, 469 F.2d 1, 4-5 (ist Cir. 1972);

enliven

United States ex rel. Hart v. Davenport, 478 F.2d

203, 211 (3rd Cir. 1973); Government of Virgin

Islands v. John, 447 F.2d 69, 74-75 (3rd Cir. 1971).

See also Austin v. Erickson, 477 F.2d 620, 626 (8th

Cir. 1973).

This court should grant certiorari in order to effectu-

ate a rule of national uniformity. The right to conflict-

free counsel is an important constitutional right. If

courts are prone in the first instance to rely upon

the conscience of the advocate to bring potential conflict

to the court’s attention, then a significant constitutional

right will be diluted, for in every previous case where

a conflict has been found to exist via post-conviction

attack, it necessarily follows that relying on the con-

science of the advocate was constitutionally insufficient.

The proper time to preserve constitutional protection

is prior to a violation of constitutional rights, not

afterward. It is quite simple and fully consonant with

the proper administration of justice to require a trial

judge to advise joint defendants of their right to separate

representation and of the pitfalls of securing joint repre-

sentation.

The rule we seek to establish is not only more

fully protective of constitutional rights, but will also

serve to diminish the number of post-conviction col-

lateral attacks seeking to invalidate previously ob-

tained convictions.

We suggest, morcover, that contrary to the statement

of the Fifth Circuit, there was sufficient notice to

—= =

the court in the instant case to properly have required

further inquiry. The novel procedure adopted by counsel.

to submit the factual case on affidavits should have

prompted further inquiry. This Court made a _ par-

ticularly instructive observation in Glasser v. United

States, 315 U.S. 60, 71 (1942):

Upon the trial judge rests the duty of seeing

that the trial is conducted with solicitude for the

essential rights of the accused. Speaking of the

obligation of the trial court to preserve the right

to jury trial for an accused, Mr. Justice Sutherland

said that such duty ‘is not to be discharged as

a matter of rote, but with sound and advised

discretion, with an eye to avoid unreasonable or

undue departure from that mode of trial or from

any of the essential elements thereof, and with

caution increasing in degree as the offense dealt

with increase in gravity.’ Patton v. United States,

281 U.S. 274, 312-313, 50 S.Ct. 253, 263, 74

L.Ed. 854, 70 A.L.R. 263. The trial court should

protect the right of an accused to have the as-

sistance of counsel. [Emphasis added]. [315 U.S.

at 71}.

This case vividly points to the need for the trial

court to insure that jointly represented co-defendants

are aware of potential conflict of interest by their

attorney. It seems uncontrovertible that the procedure

adopted by the attorney below is highly unusual. This

procedure should have alarmed the court to insure

that the defendants recognized that a singular attorney

might not best be able to advise them as to their

individual best interests on such an important and

—

sensitive decision. At least, in this unusual circumstance,

the court should have made proper inquiry on the

record as to their joint representation.

The matter thus raised is an important and recurring

one which requires the attention of this Court. The

protections of the sacred constitutional right to counsel

should not depend on the federal circuit within which

a defendant finds himself. From all standpoints of

due process, a uniform rule is required.

Conclusion.

For the foregoing reasons, petitioners respectfully

request that the Petition for Writ of Certiorari be

granted.

Respectfully submitted,

RICHARD L, ROSENFIELD,

Counsel for Petitioners.

| oe

APPENDIX A.

United States of America, Plaintiff-Appellee, v. Rob-

ert Everett Huntley and Gipson F. Hemphill, Defend-

ants-Appellants. No. 75-1871.

United States Court of Appeals, Fifth Circuit. July

29, 1976.

Defendants were convicted in the United States Dist-

rict Court for the Northern District of Texas at Wichita

Falls, Robert M. Hill, J., of interstate transportation

of forged or falsely made securities and other similar

crimes, and they appealed. The Court of Appeals,

Gee, Circuit Judge, held, inter alia, that defendants’

convictions were supported by sufficient evidence, that

the district court committed harmless error in rendering

judgment in defendants’ absence, and that any error

involved in the trial judge’s exposing himself to code-

fendants’ presentence report was harmless.

Affirmed.

Appeal from the United States District Court for

the Northern District of Texas.

Before TUTTLE, GODBOLD and GEE, Circuit

Judges.

GEE, Circuit Judge:

Appellants were convicted on seven counts of inter-

state transportation of forged or falsely made securities,

nine counts of interstate transportation of securities

of the value of $5,000 or more knowing the same

to have been stolen, converted or taken by fraud,

one count of making false material statements to a

uniiies

federally insured bank for the purpose of influencing

the bank to approve a loan, and one count of conspiracy

to commit these substantive offenses. The unusual fea-

ture of their trial was that individuals who allegedly

excelled in the clever but illegal use of documents

were convicted in a proceeding conducted almost entire-

ly by document. Finding no reversible error in this

combination of poetic and legal justice, we affirm.

I. The Facts: A Brief Documentary

Robert Huntley and Gipson Hemphill were partners

in the R. E. Huntley Cotton Company (the Huntley

company), which both bought and sold cotton for

its own account as a broker and operated warehouses.

In the summer of 1970, they opened an account in

the name of the Altus Cotton Company at the First

National Bank, Altus, Oklahoma. The authorized signa-

tures for this account were R. E. Huntley and S.

B. Marlin. Also in the summer of 1970, appellants

stopped cancelling their warehouse receipts when the

cotton represented by the receipts was shipped out

of the warehouses. Rather than being destroyed, the

receipts were collected in the Huntley company office

in Vernon, Texas. Soon a torrent of documents circu-

lated between the Huntley company account in the

First State Bank, Vernon, Texas (the Vernon bank),

the Altus Company account in Altus, and three other

accounts in Quanah, Texas, Frederick, Oklahoma, and

Greenwood, Mississippi. Between January 1971, and

the discovery of the scheme in July 1973, over $500,-

000,000 of deposits were made in these accounts, and

over 80% of these deposits were solely attributable

to transactions between the five participating accounts.

Many of the deposits were made by sight drafts drawn

sindibieis

on one of the participating depositors with the worthless

warehouse receipts from the Huntley company office

' in Vernon attached. These drafts were frequently paid

by the deposit of other drafts, drawn on another of

the depositors and accompanied by more Huntley com-

pany cotton warehouse receipts. Part of the flow of

documents consisted of checks drawn on the Altus

Cotton Company and signed with the name “S. B.

Marlin.” Both appellants helped prepare drafts with

the worthless warehouse receipts attached and signed

“S. B. Marlin” on checks.

After this scheme was exposed and appellants in-

dicted on the 18 counts on which they were convicted,

a jury trial commenced. One witness, a bank examiner

for the State of Texas, testified to the manner in

which he conducted the investigation of the Vernon

bank which led to its closing. At this juncture, the

appellants waived their right to a jury trial. The district

court examined each of them on the record to verify

their understanding of this waiver and their agreement

to their counsel’s proposal to submit the case on stip-

ulated testimony. The trial was briefly reconvened twice

thereafter, with appellants present, to monitor progress

on the stipulations. At the conclusion of the second

of these sessions, both sides rested, having submitted

all the remaining evidence through stipulations signed

by both appellants, their counsel, and the prosecutor.

The court reached its decision in chambers, and appel-

lants did not reappear in open court until their sentenc-

ing. On appeal, appellants challenge the sufficiency

of the evidence, the procedure of the district court.

and the adequacy of their trial counsel’s representation.

antine

{I. The Sufficiency of the Evidence:

Forged Documents

Appellants challenge the sufficiency of the evidence

supporting each of the 18 counts on which they were

convicted. We have reviewed the evidence supporting

the convictions on Counts 7, 11, 14, and 16, and

finding it sufficient, we affirm those convictions. Since

the ten-year sentences on those four counts were concur-

rent with each other and with the sentences received

on the remaining fourteen counts, and envisioning no

additional collateral consequences from the convictions

on the other counts, we decline to review the remaining

counts."

Counts 7, 11, 14, and 16 involve the offense of

causing the interstate transportation of forged or falsely

made securities in violation of 18 U.S.C. § 2314

(1970). In each of these counts, the forged or falsely

made security in question is a check drawn on the

Altus Cotton Company account and signed on behalf

of the company by “S. B. Marlin.” Each of these

checks was deposited in the Huntley company account

in the Vernon bank. The Huntley company received

immediate credit, and this credit was promptly used

to pay Huntley company checks which were being

held by the Vernon bank.

The convictions on these four counts are proper

if the government proved either that these checks were

“forged” or that they were “falsely made.” E.g., United

States v. Anderson, 527 F.2d 442 (Sth Cir. 1976).

Although this circuit has previously remarked that the

'We thus pretermit consideration of appellants’ claim of

a fatal variance between the indictment and the proof on

Count 18, and the sufficiency attack on all the other counts.

a

two statutory terms have different meanings, it has

never indicated the outer limits of the term “falsely

made.” Stinson v. United States, 316 F.2d 554 (Sth

Cir. 1963), the seminal case recognizing that “forged”

and “falsely made” have different meanings, merely

shows that it is not necessary to prove the technical

elements of a forgery to sustain a conviction on an

indictment which alleges transportation of a falsely

made security. We approach the question of whether

the “S. B. Marlin” checks were within the scope of

the third paragraph of 18 U.S.C. § 2314 without

clear guidelines from binding precedent.

We think it apparent that the purpose of the term

“falsely made” was to broaden the statute beyond

rigorous concepts of forgery and to prohibit the fraudu-

lent introduction into commerce of falsely made docu-

ments regardless of the precise method by which the

introducer or his confederates effected their lack of

authenticity. See United States v. Tucker, 473 F.2d

1290, 1294 (6th Cir.), cert. denied, 412 U.S. 942,

93 S.Ct. 2785, 37 L.Ed.2d 402 (1973). Although

this circuit has never faced a case precisely like this

one—involving use of a check in a spurious name

which was the duly authorized signature for an actually

existing bank account—-the issue has arisen in three

other circuits. Each has held that § 2314 condemns

such checks. See United States v. Seay, 386 F.Supp.

550 (E.D. Ill. 1974), aff'd, 518 F.2d 646 (7th Cir.)

(per curiam), cert. denied, ———- U.S. ——, 96 S.Ct.

421, 46 L.Ed.2d 368, 44 U.S.L.W. 3330 (1975)

(check written by fictitious drawer on company ac-

count); United States v. Scott, 457 F.2d 848 (10th

Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 160, 34

L.Ed.2d 114 (1972) (check on company account

os

drawn in fictitious name); United States v. Metcalf,

388 F.2d 440 (4th Cir. 1968) (check on individual

account opened in fictitious name). These three circuits

apparently employ a broad definition of forgery, so

their conclusions that such checks are forged may

be untenable in this circuit.* We nonetheless find

them persuasive on the issue of whether the “S. B.

Marlin” checks fall within the broader class of “falsely

made” securities whose interstate transportation is for-

bidden by § 2314. The well-known decreased avail-

ability and use of blank check forms has made the

establishment of a dummy bank account in a fictitious

name an almost essential element of any substantial

false document circulation scheme. We therefore con-

clude that § 2314 is violated by the kind of use

of a spurious name with fraudulent intent which this

record demonstrates.

There is no dispute that the name “S. B. Marlin”

on the checks, whether or not totally fictitious, does

not correspond to any actual person involved in these

transactions. Moreover, there is no indication that either

appellant made regular use of the “S. B. Marlin”

name as an alias. The factual background previously

discussed furnishes ample evidence, particularly when

viewed in ise light most favorable to the government

as required by Glasser v. United States, 315 US.

60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), that the

appellants’ intent was fraudulent when they opened

*Hubsch v. United States, 256 F.2d 820 (Sth Cir. 1958),

apparently adopts a somewhat narrow definition of forgery.

But it discusses only the concept of forgery, and since we

do not consider whether the “S. B. Marlin” checks were forged,

Hubsch is irrelevant here. While the Hubsch court could have

considered the issue of whether the convictions in the case

were proper on the “falsely made” theory, it did not.

afb

the Altus Cotton Company account, when they signed

the spurious name on the checks, and when they

‘ caused the checks to be transported in interstate com-

merce.* While particular proof of reliance on the signa-

ture is not necessary to sustain a conviction on “falsely

made” securities,, we note that the use of the “S.

B. Marlin” signature was obviously material to the

success of the fraudulent scheme because it contributed

to the appearance that the checks were based on

arms-length transactions with an independent business

entity.

Finally, appellants argue that the evidence is insuffi-

cient because there is no showing that they were not

authorized to use the name “S. B. Marlin.” They

rely on Parker v. United States, 297 F.2d 135 (Sth

Cir. 1961). That case, which dealt with signing the

name of another, real person to checks, is completely

inapposite. The absence of any “S. B. Marlin” from

the scene of appellants’ operations eliminates the need

to prove lack of authorization as a separate element

of the offense.

III. Rendition of Judgment from the Documentary

Evidence: Defendants’ Absence

The district judge did ne* reconvene court to render

his decision in the presence of the appellants, and

the government concedes that they may have first

‘We therefore pretermit consideration of precisely which com-

bination of these times is critical to sustain a conviction. Com-

pare United States v. Metcalf, 388 F.2d 440, 443 (4th Cir.

1968) (stressing the intent at the time the bank account was

cpense) with United States v. Seay, 386 F.Supp. 550, 554

(E.D.Ill. 1974), aff'd, 518 F.2d 646 (7th Cir.) (per curiam),

cert. denied, _... US. ...., 96 S.Ct. 421, 46 L.Ed.2d 368,

44 U.S.L.W. 3330 (1975) (emphasizing the latter times).

*See Stinson v. United States, 316 F.2d 554 (Sth Cir. 1963).

—_ =

gained actual knowledge of the decision through the

media. The appellants contend that this situation rep-

resents a violation of Fed.R.Crim.P. 43(a)° and con-

stitutes reversible error. We agree that error occurred,

but we hold that it was harmless.

At the outset, we reject the extreme positions assumed

by each side. The government’s suggestion that the

rendition of the decision in a bench trial is not a

“stage of the trial” within the meaning of Rule 43(a)

is untenable. The appellants were therefore entitled

to be present in person, and their absence violated

the rule.

Appellants, on the other hand, recognize that Rule

43 must be considered together with Fed.R.Crim.P.

52(a), which provides that harmless error is to be

disregarded. E. g., United States v. Gradsky, 434 F.2d

880 (Sth Cir. 1970), cert. denied, 401 U.S. 925,

91 S.Ct. 884, 27 L.Ed.2d 828 (1971). However,

they suggest that the right to be present at the rendition

of the decision is one of those constitutional rights

so basic to a fair trial that its denial can never be

treated as harmless error. See Chapman v. California,

386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d

705, 710 (1967). We assume without deciding that

this violation of Rule 43 also represents a violation

of appellants’ constitutional rights.” But we decline

‘This rule provides:

The defendant shall be present at the arraignment, at

the time of the plea, at every stage of the trial including

the empaneling of the jury and the return of the verdict,

and at the imposition of sentence, except as otherwise

by this rule. (emphasis added )

*The scope of a defendant’s constitutional right to be present

trial is determined, not by Rule 43, but by whether his

presence bears a reasonably substantial relationship to the

portunity to defend. See United States v. Gradsky, 434 F.

aim

to expand the list of rights denial of which may

not be treated as harmless error.

Consonant with our assumption that the appellants’

absence represents a denial of constitutional rights,

we apply the definition of constitutional harmless error

from Chapman. We find beyond a reasonable doubt

that their absence from the rendition of the decision

did not contribute to the court’s decision or otherwise

affect their substantial rights.‘ Our finding depends

on the facts that this was a bench rather than a

jury trial and that all the evidence, with the exception

of the testimony of one introductory witness, was docu-

mentary. We are sensitive to appellants’ argument that

the presence of defendant at the rendition of the decision

enhances the solemnity of the ultimate confrontation

between the accused and the finder of fact. This occa-

sion vindicates the judicial system’s symbolic interest

in maintaining the appearance of justice and its prag-

matic interest in giving the finder of fact a final

opportunity to change its decision. We find appellants’

absence to be harmless beyond a reasonable doubt,

but we stress that district courts should take all reason-

880, 883-84 (Sth Cir. 1970), cert. denied, 401 U.S. 925,

91 S.Ct. 884, 27 L.Ed.2d 828 (1971), and cases cited therein.

*The constitutional harmless error standard was _ to

a Rule 43 violation in United States v. Gradsky, id. We recog-

nize that Estes v. United States, 335 F.2d 609, 618 (Sth

Cir. 1964), employed the slightly different verbalization that

a conviction cannot stand when there is “any reasonable pos-

sibility of prejudice from the defendant’s absence.” To the

doubtful extent that these verbalizations may represent sub-

stantive differences, our use of the standard in Gradsky is

explicitly dependent on our assumption of a constitutional viola-

tion. There is no indication that a constitutional argument

was raised in Estes, and we do not believe that anything

in Gradsky or in our opinion here conflicts in any way with

oo ae Guees Oe ey 6 ee ee ay &

ule 43,

aufifinen

able steps to obtain the presence of every defendant

at the time a decision is rendered.

IV. Judicial Exposure to Improper Documents: Co-

defendants’ Presentence Reports

Appellants were indicted along with three co-defend-

ants who pled guilty. Following the submission of

appellants’ case to the district judge, but a month

before he reached a decision as to their guilt, he

sentenced the co-defendants. During that sentencing

hearing, he was exposed to testimony which indicated

that these co-defendants became involved in the scheme

because they had unusual trust and respect for Huntley

and that the one co-defendant who was not an employee

of the Huntley company was less involved in the

company’s business than Hemphill. This testimony was

obviously not prejudicial to the appellants. There were

also several remarks about the “money tree” operated

by Huntley which, while unfortunate, are obviously

merely colorful restatements of the allegations in the

indictment. The judge was also exposed to factual

reports prepared for sentencing the co-defendants and

to a letter written on behalf of one of the co-defendants

by a state law enforcement official. The reports con-

tained the “official version” of the offense, including ~

references to the appellants, and the letter referred

to the fact that unspecified state charges arising from

the same transactions were pending against them.

In keeping with the procedure followed in United

States v. Ramirez, 513 F.2d 72 (Sth Cir.), cert. denied,

423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975),

we have reviewed the transcript of the co-defendants’

sentencing hearing, their presentence reports, and the

letter. We strongly adhere to our observation in Ramirez

~onee

anit

that a judge should not read material containing refer-

ences to a given co-defendant prior to the adjudication

‘of that defendant’s guilt. Jd. at 77-78. Ramirez places

a duty on both the judge and those preparing presen-

tence reports on co-defendants to avoid such contact.

However, we find as we did in Ramirez, that any

error was harmless. We base our conclusion on the

minimal prejudice in the improper references to these

appellants. None of the material which the judge consid-

ered in sentencing the defendants amplified the appel-

lants’ roles in the alleged scheme beyond that abun-

dantly demonstrated by the evidence against them. The

sentencing material referred neither to prior crimes

committed by the appellants nor to their personal his-

tories. As with the appellants’ absence from the rendi-

tion of the decision, we disapprove of the district

court’s procedure but find on the peculiar facts of

this case that any error was harmless beyond a reason-

able doubt.

V. Effective Assistance of Counsel:

Looking Behind the Documents

Appellants claim that their joint representation by

a single, privately retained trial counsel deprived them

of their constitutional right to effective assistance of

counsel. Having employed new and separate counsel

on appeal, they urge that their trial counsel’s perform-

ance was inadequate and that he labored under a

conflict of interest in that the joint representation pre-

vented him from fully pursuing the possible defenses

available to each of them only at the expense of

the other.

In challenging their trial counsel’s actual performance,

both appellants attack his decision to rely entirely

—_y a

on stipulated testimony and his execution of the stipula-

tions. They object to the inclusion of allegedly inadmis-

sible or inaccurate material in the stipulations and

to the occasional use of prejudicial colloquialisms to

describe their operations. We agree with appellants

that the prosecutor’s participation in developing the

stipulations demonstrates prosecutorial awareness of the

alleged incompetency so that, notwithstanding the re-

tained status of counsel, this aspect of their trial repre-

sentation should be evaluated under this circuit’s formu-

lation of the standard of the sixth amendment. Cf.

Fitzgerald v. Estelle, 505 F.2d 1334, 1336-37 (Sth

Cir. 1974) (en banc). This standard requires “not

errorless counsel, and not counsel judged ineffective

by hindsight, but counsel reasonably likely to render

and rendering reasonably effective assistance.” Mac-

Kenna v. Ellis, 280 F.2d 592, 599 (Sth Cir.), cert.

denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78

(1960) (emphasis in original). Based on the record

before us, appellants’ representation at trial complied

with these standards. We decline appellants’ invitation

to invoke the exceptional remedy of a remand from

this direct appeal for an evidentiary hearing; the isolated

examples of careless or inappropriate language to which

they point do not raise a serious question on this

issue. The effort to expand the record to go behind

the face of the documents to explore trial counsel’s

representation is appropriate, if at all, only through

a proceeding under 28 U.S.C. § 2255 (1970).°

8In considering this aspect of appellants’ ineffective assistance

claim, we have not considered the affidavits from their appellate

counsel and their counsel in other proceedings. Nor have we

taken judicial notice of or otherwise considered the Receiver’s

Report in the bankruptcy proceeding involving the Huntley

company. We mention these three items only to clarify the

2 ee

conan

At the threshold of the joint representation prong

of their ineffective assistance argument, appellants ask

‘us to hold that the trial court has a duty to warn

co-defendants with joint representation of the possibility

of a conflict of interest and of their right to separate

counsel. The rule in this circuit is that such advice

is unnecessary where there is neither objection, claim,

nor notice to the court of any alleged conflict. E.g.,

United States v. Boudreaux, 502 F.2d 557 (Sth Cir.

1974).° Contrary to appellants’ claim, this rule has

been consistently applied in this circuit, and we must

follow it.

Appellants acknowledge that joint representation does

not inherently deprive a defendant of the effective

assistance of counsel. E. g., Foxworth v. Wainwright,

516 F.2d 1072, 1076 (Sth Cir. 1975). By the same

token, the government recognizes that the sixth amend-

ment is violated when an attorney is appointed to

represent conflicting interests simultaneously. Glasser

v. United States, 315 U.S. 60, 70, 62 S.Ct. 457,

86 L.Ed. 680 (1942). An “actual, significant” conflict,

as opposed to one which is “irrelevant or merely hypo-

thetical,” is required to establish a violation with joint

appointed counsel. Foxworth v. Wainwright, 516 F.2d

at 1077, n. 7. We assume for purposes of discussion,

without deciding, that the same test applies where

scope of our review in the event that any of the material

contained in these documents is made a proper part of the

record in a subsequent § 2255 proceeding.

*Although this rule is phrased in terms of notice to the

court of an alleged conflict of interest, we note that no govern-

ment agency, including the prosecutor, had notice of any con-

flict of interest in this case. The prosecutor’s familiarity with

thc ontents of the stipulations, see page tO supra, is completely

unrelated to the asserted conflict of interest between the two

defendants.

enti

defendants voluntarily elect joint representation by re-

tained counsel.’

When the alleged conflict is that joint representation

of co-defendants restricted counsel in selecting trial

defenses and strategies, the requisite “actual, significant”

conflict of interest is present “whenever one defendant

stands to gain significantly by counsel adducing proba-

tive evidence or advancing plausible arguments that

are damaging to the cause of a codefendant whom

counsel is also representing.” /d. at 1076.

Appellants allege that a conflict of interest requiring

reversal existed because joint representation deprived

their trial counsel of the opportunity to exploit possible

differences in the degree of their criminal intent. How-

ever, they point to no specific evidence which was

or might have been introduced to show lack of criminal

intent on the part of either of them. Although they

correctly note that the record indicates that Huntley

was more widely known in the cotton business, there

is no record evidence supporting Hemphill’s assertion

that separate trial counsel could have made a plausible

defense that he was relying in good faith on Huntley’s

10We thus pretermit any consideration of whether some

additional showing is required to establish a constitutional viola-

tion when an actual conflict exists in joint representation by

retained counsel. Compare Foxworth v. Wainwright, 516 F.2d

1072, 1076 n. 5 (Sth Cir. 1975), with Alvarez v. Wainwright,

522 F.2d 100, 105 n. 14 (Sth Cir. 1975). Regardless of

the current status of its teachings on this particular issue,

Porter v. United States, 298 F.2d 461 (Sth Cir. 1962), is

inapposite to our case because it involves the undeniable con-

flict created when defense counsel has a unrelated but simul-

taneous attorney-client relationship with a principal prosecution

witness.

ee ee een

_— =

instructions. And contrary to Hemphill’s claim, the

record at several points demonstrates his active par-

ticipation in the general scheme and particularly in

the use of the “S. B. Marlin” name. The fact that

one co-defendant is in a policy-making position and

the other in a ministerial position does not necessarily

constitute any conflict in their joint representation.

See United States v. Wayman, 510 F.2d 1020, 1026

(5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84,

46 L.Ed.2d 67 (1975). Since the foreclosure of an

alternate strategy or defense does not constitute the

requisite “actual, significant” conflict of interest unless

the defense is at least plausible, Foxworth v. Wain-

wright, 516 F.2d at 1080, we reject appellants’ claim

of ineffective assistance of counsel. The record does

not show such a conflict.

In the absence of any concrete facts suggesting that

there was an “actual, significant” conflict of interest,

we also reject appellants’ alternative request for a re-

mand for an evidentiary hearing to develop the facts

further.'' As with the first prong of their ineffective

assistance argument, such factual development, when

We recognize that appellants’ suggestion of a remand to

develop whether their counsel fulfilled his duty to disclose

the consequences of differing defense postures may involve a

somewhat distinct issue from the issue of whether there was

actual, impermissible representation of conflicting interests. See

Horowitz v. Henderson, 514 F.2d 740 (Sth Cir. 1975). But

the absence of a demonstrable “actual, significant” conflict ren-

ders it unnecessary to explore the record’s silence about coun-

sel’s disclosure. We note that our disposition makes it unneces-

sary to consider what represents a waiver of the right to

effective assistance of counsel in the context of joint representa-

tion by retained counsel.

—l6—

necessary, can best be done in post-conviction proceed-

ings.

VI. Conclusion

In summary, the record does not support appellants’

claims that they were deprived of the effective assistance

of counsel, and we decline to remand for an eviden-

tiary hearing to amplify the relevant facts. The district

court erred in rendering a decision in the absence

of the appellants and in sentencing co-defendants in

such a way that it was exposed to material referring

to the appellants prior to the adjudication of their

guilt, but these errors were harmless beyond a reason-

able doubt. The evidence being sufficient to support

the convictions on four counts of interstate transporta-

tion of falsely made securities, these convictions are

AFFIRMED.

=, =

APPENDIX B.

United States Court of Appeals, Fifth Circuit, Office

of the Clerk.

Edward W. Wadsworth, Clerk.

October 4, 1976.

TO ALL COUNSEL OF RECORD

No. 75-1871—USA v. Robert Everett Huntley and

Gipson F. Hemphill

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition(....) for rehearing, and

no member of the panel nor Judge in regular active

service on the Court having requested that the Court

be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule

12) the petition (....) for rehearing en banc has also

been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By /s/ Susan M. Gravors

Deputy Clerk

/smg

cc: Mr. Richard L. Rosenfield

Mr. Alan J. Weil

Mr. Michael P. Carnes

Ms. Judith A. Shepherd