Petition — Lawriw v. United States

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IN THE

Supreme Court of the Gnited States

October Term, 1977

SWF 1065

ANNA ERNA LAWRIW,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

MARC G. KURZMAN

MARC G. KURZMAN LAW OFFICE,

CHARTERED

601 West Butler Square

Minneapolis, Minnesota 55403

(612) 333-4403

Assisted By:

RONALD S. GOLDSER, Law Clerk

MARC G. KURZMAN LAW OFFICE,

CHARTERED

601 West Butler Square

Minneapolis, Minnesota 35403

1978—Northwest Brief Printing Co., 316 Chicogo Avenue, Minneapolis 55415—338-5078

—s

TABLE OF CONTENTS

Page

Petition for Writ of Certiorari ...........c.eeee. 1

Citations to Opinions Below .................05. 2

PE ee ee a 2

The Questions Presented .........ccccccccscece 2

Constitutional Provisions and Rules Involved ...... 3

oe so ee cc edbesecanas 4

Reasons for Granting the Writ:

1. The Eighth Circuit Court of Appeals has de-

cided a federal question regarding waiver of ef-

fective assistance of counsel in conflict with ap-

plicable decisions of the United States Supreme

ER Per he se cue Yar rr pre re 7

2. By its decision, the Eighth Circuit sanctioned

a departure by the District Court from the ac-

cepted and usual course of judicial proceedings

so as to call for an exercise of the Supreme

Court’s power of supervision .............. 13

3. The conflict among Circuits on the issue in this

case is manifest from the opinion of the Eighth

Circuit and the Supreme Court should grant

certiorari to resolve this conflict ........... 16

4. The United States Supreme Court should grant

certiorari to decide an important federal ques-

tion that has not been but should be decided .. 22

es ey ce ea ce dawede eee eriltes 30

APPENDIX INDEX

Appendix A—Opinion of United States Court of Ap-

peels for the Bighth Circuit ......ccccscsccces A-1

Appendix B—Findings of Fact, Conclusions of Law,

and Order, United States District Court, District of

PEE. «s 6 ch actineeeéceds es bed te aeeee cee A-18

TABLE OF AUTHORITIES

Cases:

Adams v. U.S. ex rel. McCann, 317 U.S. 269 (1942) . 11

Barker v. Wingo, 407 U.S. 514 (1973) ............ 11

Boykin v. Alabama, 395 U.S. 238 (1969) ....... ss Se

Brookhart v. Janis, 384 U.S. 1 (1966) ........... 11

Campbell v. U.S., 352 F. 2d 359 (D.C. Cir. 1965) ..

gadké +6 babde ead, Sane aceeewsee a 16, 17, 19

Carnlev v. Cochran, 369 U.S. 506 (1962) ....... 12, 13

Chapman v. California, 386 U.S. 18 (1967) ....... 21

Faretta v. California, 422 U.S. 806 (1975) .8, 11, 28, 29

Fryar v. U.S., 404 F. 2d 1071 (10th Cir. 1968), cert.

GE, Te Ws WD CHD ccc ctecccscnccovesses 28

Glasser v. U.S., 315 U.S. 60 (1942) ............ 8, 10

Green v. U.S., 355 U.S. 184 (1957) .............. 11

Johnson v. Zerbst, 304 U.S. 458 (1937) ........ 8, 11

Larry Buffalo Chief v. South Dakota, 425 F. 2d 271

ne CE «04-26 seek ddebhecuewd dee ah <0 7

Lollar v. U.S., 376 F. 2d 243 (D.C. Cir. 1967) ..... 21

Manson v. Pitchess, 317 F. Supp. 816 (C.D. Calif.

. : 6400 Kee BERK Othe 2hOR eS Chaeewabake 28

Matter of Grand Jury Empaneled January 21, 1975,

Fe Be tk a re 26

McCarthy v. U.S., 394 U.S. 459 (1968) ......... 9, 10

Saltonstall v. Russell, 152 U.S. 628 (1893) ........ 10

Schneckloth v. Bustamonte, 412 U.S. 218 (1974) ... 11

Seale v. Hoffman, 306 F. Supp. 330 (N.D. Ill. 1969) . 28

State v. Olsen, — Minn. —, 258 NW2d 898 (1977)

A eee ee en er ee: 7, 16, 18, 21

U.S. v. Bernstein, 533 F. 2d 775 (2d Cir. 1976) .... 24

U.S. v. Carrigan, 543 F. 2d 1053 (2d Cir. 1976) ...

Bn ey rake ERE pa er oy 17, 18, 19, 24, 25

U.S. v. Davis, 452 F. 2d 577 (10th Cir. 1971) ...... 11

U.S. v. Davis, 260 F. Supp. 1009 (E.D. Tenn. 1966) 28

U.S. v. Donahue, 560 F. 2d 1039 (ist Cir. 1977)

ee ade Ai eee eee eke asad eed 17, 19, 21

U.S. ex rel. Hart v. Davenport, 478 F. 2d 203 (3d

NR ae ee 17, 19, 21, 25

U.S. Foster, 469 F. 2d 1 (1st Cir. 1972) ........... 21

U.S. v. Garafola, 428 Supp. 620 (D.N.J. 1977) 22, 28, 29

U.S. v. Garcia, 517 F. 2d 272 (Sth Cir. 1975) .....

eiegeeseskeneesassceennes 9, 13, 16, 18, 20, 28

U.S. v. Kutas, 542 F. 2d 527 (9th Cir. 1976) 17, 20, 21

U.S. v. Lariche, 549 F. 2d 1088 (6th Cir. 1977) ..17, 19

U.S. v. Mandell, 525 F. 2d 671 (7th Cir. 1975) ..17, 20

U.S. v. Mari, 526 F. 2d 117 (2d Cir. 1975) ....... 23

U.S. v. Smith, 550 F. 2d 277 (Sth Cir. 1977) ...... 17

U.S. v. Swanson, 509 F. 2d 1205 (8th Cir. oo * as 9

U.S. v. Truglio, 493 F. 2d 574 (4th Cir. 1974) ..17, 18

U.S. v. Warledo, 557 F. 2d 721 (10th Cir. 1977) ..17, 20

Von Moltke v. Gillies, 332 U.S. 708 (1948) ........

ie Uae ade rhaeeees vs GaRKheuwe 9, 10, 11, 13, 22

Statutes:

Federal Rules of Criminal Procedure, Rule 11 ..3, 9, 18

Ff SSA er ere 2

RO A eT Te eer eee eee ee 4

ne ee ee 2

Pe ccchceacteeweweweebeeeescas cn 2

United States Constitution, Amendment VI ......... 3

Secondary Authorities:

A. Cole, “Time for a Change: Multiple Representa-

tion Should Be Stopped,” (unpublished) ......... 27

S. Hyman, “Joint Representation of Multiple Defen-

dants in a Criminal Trial,” 5 Hofstra Law Review

FED GEEVUD covesevecevecckeceseneeel 10, 22

IN THE

Supreme Court of the Gnited States

October Term, 1977

No.

ANNA ERNA LAWRIW,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, Anna Erna Lawriw, prays the United

States Supreme Court to issue a writ of certiorari to re-

view the opinion and judgment of the United States Court

of Appeals for the Eighth Circuit, rendered in these pro-

ceedings on December 30, 1977, affirming the Order of

the United States District Court for the District of Minne-

sota, entered on May 12, 1977.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit affirming the District Court is not yet

reported and is reprinted herein as Appendix A. The Or-

der of the United States District Court for the District of

Minnesota, denying Petitioner’s motion for a new trial, was

entered from the bench, and is not reported. That portion

of the transcript of Petitioner’s motion for new trial, deal-

ing with the District Court’s findings and conclusions,

is reprinted herein as Appendix B.

JURISDICTION

Jurisdiction of the United States District Court was in-

voked by indictment, pursuant to 18 USC $3231. Juris-

diction on appeal to the Eighth Circuit was obtained via

28 USC §1291. Jurisdiction on writ of certiorari exists

under 28 USC §1254.

The District Court heard and denied Petitioner’s motion

for a new trial on May 12, 1977. The Eighth Circuit af-

firmed on December 30, 1977.

THE QUESTIONS PRESENTED

1. Whether the District Court’s affirmative inquiry in-

to, and personal advice to each of multiple co-defendants

represented by one attorney about, conflict of interest and

effective assistance of counsel is sufficient to ensure a Con-

Stitutionally adequate, voluntary and intelligent waiver

thereof?

2. Whether the burden of proof to show that one of

multiple codefendants represented by one attorney is not

prejudiced by a conflict of interest shifts to the government

when a Constitutionally insufficient record exists as to the

appearance and waiver of conflict of interest?

3. Whether the District Court must automatically re-

quire multiple co-defendants to secure individual counsel

because the Trial Judge and one attorney representing

multiple co-defendants are Constitutionally unable to in-

form those multiple co-defendants about conflict of inter-

est sufficiently to secure a knowing, voluntary and intelli-

gent waiver thereof?

CONSTITUTIONAL PROVISIONS AND RULES INVOLVED

This case involves the Sixth Amendment Provisions con-

cerning the right to counsel:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for

his defense.

The case also involves Rule 11(c) and (d), Federal Rules

of Criminal Procedure, which provide:

of guilty or nolo contendere, the court must address

the defendant personally in open court and inform

him of, and determine that he understands, the follow-

ing:

(1) the nature of the charge to which the plea

is offered, the mandatory minimum penalty pro-

vided by law, if any, and the maximum possible

penalty provided by law; and

(2) if the defendant is not represented by an

attorney, that he has the right to be represented

by an attorney at every stage of the proceeding

against him and, if necessary, one will be ap-

pointed to represent him; and

(3) that he has the right to plead not guilty or

to persist in that plea if it has already been

made, and that he has the right to be tried by

a jury and at that trial has the right to the as-

sistance of counsel, the right to confront and

cross-examine witnesses against him, and the

right not to be compelled to incriminate himself;

and

(4) that if he pleads guilty or nolo contendere

there will not be a further trial of any kind, so

that by pleading guilty or nolo contendere he

waives the right to a trial; and

(5) that if he pleads guilty or nolo contendere,

the court may ask him questions about the of-

fense to which he has pleaded, and if he an-

swers these questions under oath, on the record,

and in the presence of counsel, his answers may

later be used against him in a prosecution for

perjury or false statement.

(d) Insuring That the Plea is Voluntary. The

court shall not accept a plea of guilty or nolo con-

tendere without first, by addressing the defendant

personally in open court, determining that the plea

is voluntary and not the result of force or threats or

of promises apart from a plea agreement. The court

shall also inquire as to whether the defendant’s will-

ingness to plead guilty or nolo contendere results

from prior discussions between the attorney for the

government and the defendant or his attorney.

STATEMENT OF THE CASE

Petitioner Anna Lawriw was convicted in a joint trial

with Terrence Richard Noto of possession of cocaine with

intent to distribute in violation of 21 U.S.C. §$841(a)(1).

The case was tried to the District Court on stipulated facts.

Following conviction, Petitioner filed a motion for new

trial on the grounds of newly discovered evidence, assert-

ing that at her joint trial she received Constitutionally de-

fective assistance of counsel resulting from a conflict of

interest faced by her attorney; one attorney represented

both defendants. Her motion was denied by the District

Court, the Honorable Miles W. Lord, J., which held that

there was no conflict of interest, and that even if there

was, it was waived. (See Appendix B) This decision was

affirmed by the Court of Appeals for the Eighth Circuit,

the Honorable William H. Webster, J. (See Appendix A)

The Eighth Circuit held that the District Court met its

duty of affirmative inquiry into the existence of conflict of

interest and waiver, and set forth the requirements which

the District Court must meet in securing a Constitutionally

sufficient determination of conflict and waiver. Petitioner

contends in this Petition that the Eighth Circuit erred in

the limited requirements set forth in its procedure promul-

gated to elicit a voluntary and intelligent waiver of effec-

tive assistance of counsel, and in failing automatically to

require appointment or retaining of separate counsel for

jointly charged defendants.

Petitioner Lawriw and Co-Defendant Noto were rep-

resented from the time of arrest through their joint trial

on stipulated facts by one attorney. Their arrest took

place under circumstances which easily call forth possi-

bilities of individual defenses on the merits. Federal agents

entered the Minneapolis motel room where the co-defen-

dants were staying and seized approximately one pound

of cocaine found in a flight bag. This flight bag contained

male and female toiletries and a prescription vial in the

name of Petitioner. At the time the agents entered, Peti-

tioner was seated on a bed, adjacent to a suitcase contain-

ing $5,700 in cash. Petitioner asserted at her motion for

new trial that she did not know at the time of her ar-

rest that there was approximately one pound of cocaine

in the room. She asserted that she knew only of the ex-

istence of less than one ounce of cocaine in the room. She

therefore asserted the rudiments of a defense whereby she

denied constructive possession of one pound of cocaine,

an element necessary for a finding of guilty of possession

with intent to distribute.

Petitioner and Co-Defendant Noto were at all times

through to the completion of their joint trial represented

by Joseph Friedberg, Esq., of Minneapolis. It is asserted

that these three individuals thoroughly discussed the pos-

sibilities of a conflict of interest, individual defenses, and

the requirement of another attorney. The assertion, how-

ever, is made by Mr. Friedberg, and not the defendants.

The District Court did listen to a brief discussion on the

record at the joint trial concerning the existence of a con-

flict of interest and its waiver; the discussion was con-

ducted by Mr. Friedberg, and was held primarily with

Co-Defendant Noto. (Transcript of Trial, hereafter Tr.,

20-23) The Court asked of Petitioner Lawriw one ques-

tion: “Well, Miss Lawriw, have you been told that maybe

another lawyer could, on looking at this, make a conten-

tion to a jury or to the Court that you have just been en-

trapped into this by Mr. Noto and that your interests and

his are not the same, that you have maybe some chance

where you could show it was all his fault or neither of

yours fault?” Petitioner Lawriw responded: “I have been

told by people that, yes, this could be done, and I am not

interested in doing that.” (Tr. 22) Based on this brief in-

terchange, the District Court found no conflict of interest,

and that if there was a conflict, it was waived. Evidence

presented at Petitioner’s hearing on motion for new trial,

May 12, 1977, failed to convince the Court otherwise.

The Eighth Circuit agreed, and set forth standards to gov-

ern cases such as this.

REASONS FOR GRANTING THE WRIT

1. The Eighth Circuit Court of Appeals has decided a

federal question regarding waiver of effective assistance

of counsel in conflict with applicable decisions of the

United States Supreme Court.

The Eighth Circuit is in conformity with decisions hold-

ing that waiver of conflict of interest must be knowing

and intelligent. U.S. v. Lawriw, slip op. at 13; United

States v. Swanson, 509 F. 2d 1205, 1210 n. 7 (8th Cir.

1975); Larry Buffalo Chief. v. South Dakota, 425 F. 2d

271, 280 (8th Cir. 1970). In order to ensure that this

knowing and intelligent waiver be sufficiently presented

on the record, the Eighth Circuit cites with approval the

following procedure and suggests that the same be under-

taken by the District Court:

The defendant must voluntarily and with full knowl-

ledge of the consequences decide on dual representa-

tion. The court should address each defendant per-

sonally and advise him of the potential danger of

dual representation. The defendant should have an

opportunity and be at liberty to question the trial

court on the nature and consequences of dual repre-

sentation and the entire procedure should be placed

on the record for review. . . . State v. Olsen, — Minn.

—, 258 NW2d, 898, 907 (1977) (Footnotes omitted).

U.S. v. Lawriw, slip op. at 15.

We contend that this scope of inquiry required by the

Eighth Circuit is not sufficient according to applicable de-

cisions of the Supreme Court. On this basis we contend a

conflict exists between the Eighth Circuit Court and the

Supreme Court and certiorari should be granted to resolve

the conflict.

It is clear that a criminal defendant can waive effective

assistance of counsel. Johnson v. Zerbst, 304 U.S. 458

(1937). To this end, a criminal defendant has the Con-

stitutional right to proceed pro se. Faretta v. California,

422 U.S. 806 (1975). In all circumstances related to waiv-

er of counsel, however, that waiver must be knowingly

and intelligently made. Faretta v. California, supra.

These circumstances expressly include waiving a conflict

of interest which could result in ineffective assistance of

counsel. Glasser v. U.S., 315 U.S. 60 (1942).

It is unquestioned that the defendant’s waiver of coun-

sel must appear on the record and be available for review.

Faretta v. California, supra, 422 U.S. at 835. At issue in

this case is precisely what must appear on the record. The

Supreme Court has said, in the context of a defendant’s

desire to appear pro se and plead guilty:

. to discharge (the duty of determining wheth-

er there is an intelligent and competent waiver of

counsel by the accused), . . . a judge must investigate

as long and as thoroughly as the circumstances of

the case before him demand. The fact that an ac-

cused may tell him that he is informed of his right

to counsel and desires to waive this right does not

automatically end the judge’s responsibility. To be

valid, such waiver must be made with an apprehen-

sion of the nature of the charges, the statutory of-

fenses included within them, the range of allowable

punishments thereunder, possible defenses to the

charges and circumstances in mitigation thereof and

all other facts essential to a broad understanding of

the whole matter. A judge can make certain that an

accused’s professed waiver of counsel is understand-

ingly and wisely made only from a penetrating and

comprehensive examination of all the circumstances

under which such a plea is entered.

Von Moltke v. Gillies, 332 U.S. 708, 723-724 (1948).

Thus, the Court in Von Moltke, 332 U.S. at 723, de-

clared the Constitution’s requirements of a long and prob-

ing inquiry prior to the acceptance of a guilty plea where

defendant is without counsel. Under these circumstances,

only if the district judge is satisfied that all procedural re-

quirements of a guilty plea are met can he accept a waiver

of counsel.

Presently, the procedure a district court must follow in

accepting a guilty plea is outlined in Rule 11, Federal

Rules of Criminal Procedure. While specific Rule 11 pro-

cedures have “not been held to be Constitutionally man-

dated,” McCarthy v. U.S., 394 U.S. 459, 465 (1968),

Von Moltke indicated that the rudiments of a Rule 11 pro-

cedure are Constitutionally required in accepting a guilty

plea. Thus, in order, knowingly and intelligently, to waive

counsel (whether or not in the context of a guilty plea’) the

Constitution requires that a rudimentary Rule 11 proce-

dure be placed on the record At least one Circuit Court

of Appeals has rcognized this principle. In U.S. v. Gar-

‘The cases draw no distinction between waiver of the right to remain

silent during interrogation, the right to confer with counsel, the

right to representation by competent counsel at trial, the right to

contest accusations of criminality through a plea of not guilty, the

right to a jury trial and the right to be present at trial. To do so

would be to discriminate against one right in favor of another when

the Constitution does not so require.” U.S. v. Garcia, 517 F. 2d 272,

276 (1975).

cia, 517 F. 2d 272 (1975), the Fifth Circuit, citing Von

Moltke and McCarthy, expressly adopted “a procedure

akin to that promulgated in Federal Rules of Criminal

Procedure, Rule 11,” 517 F. 2d at 278, before allowing

a District Court to accept a waiver of conflict of interest.

Like the Fifth Circuit, Petitioner contends that decisions

of the Supreme Court compel this procedure. The Eighth

Circuit explicitly rejected this procedure. U.S. v. Lawriw,

slip op. at 14-15.

We contend that Von Moltke alone decides this issue.

Alternatively, Von Moltke is one of numerous decisions

which, by analogy, decide the issue. Von Moltke dealt with

a defendant appearing without counsel and pleading

guilty. The instant case concerns a defendant appearing

with an attorney whose loyalties are divided between her

and her co-defendant. Under these circumstances, defen-

dant received assistance of counsel that was trammeled

and impaired. Glasser v. U.S., supra, 315 U.S. at 70.

“With respect to the Defendant’s right to a fair trial, im-

paired counsel is equivalent to no counsel.” S. Hyman,

“Joint Representation of Multiple Defendants in a Crimi-

nal Trial, 5 Hofstra Law Review, 315, 317 (1977). Thus,

Petitioner Lawriw essentially appeared at her joint trial

on stipulated facts without counsel.

To complete the analogy, Petitioner Lawriw’s “joint

trial on stipulated facts” is enough like a guilty plea to

require the court to inquire into the sufficiency and ac-

curacy of the stipulation. U.S. v. Lawriw, slip op. at 17 n.

13. Given a stipulation of facts, a court need not make

findings of fact, but must only render judgment on the

law. Saltonstall v. Russell, 152 U.S. 628 (1893). Similar-

ly, with a guilty plea, “the effect is the same as if appel-

lant had been tried before a jury and had been found

guilty on evidence covering all material facts.” U.S. v.

Davis, 452 F. 2d 577, 578 (10th Cir. 1971). Both situa-

tions require the advice of counsel before entering the

stipulation or the plea. A court cannot permit a plea with-

out inquiry, Von Moltke v. Gillies, supra; nor can it

allow entry of a stipulation by a pro se defendant, without

inquiring as to the defendant’s waiver of counsel. See

Faretta v. California, supra. Petitioner concludes, there-

fore, that Von Moltke alone controls the instant case.

Even if Von Moltke alone does not directly control the

instant case, it is one of numerous cases which establish

the proposition that the District Court must searchingly

inquire into waiver of Constitutional rights before that

waiver is accepted. The cases are collected in Schneckloth

v. Bustamonte, 412 U.S. 218, 237-238. Each case cited

in Schneckloth relies, as does Von Moltke, on Johnson v.

Zerbst, supra. Since Von Moltke declares Johnson’s re-

quirement of a searching inquiry into waiver of counsel,

it follows that knowing and intelligent waiver of other

rights cannot be effective without a searching inquiry by

the district court. Thus in Adams v. U.S. ex rel. McCann,

317 U.S. 269 (1942), the defendant waived his right to

jury trial “with the considered approval of the court.” 317

U.S. at 275. Johnson was also applied to the right to con-

frontation, Brookhart v. Janis, 384 U.S. 1, to a speedy

trial, Barker v. Wingo, 407 U.S. 514, and to freedom

from double jeopardy, Green v. U.S., 355 U.S. 184. In

the guilty plea context alone, waivers of jury trial, con-

frontation, and self-incrimination must appear on the rec-

ord. Boykin v. Alabama, 395 U.S. 238 (1968). Finally,

Boykin relies on Carnley v. Cochran, 369 U.S. 506, where-

in the Court held:

Presuming waiver from a silent record is impermis-

sible. The record must show, or there must be an al-

legation and evidence which show, that an accused

was offered counsel but intelligently and under-

standingly rejected the offer. Anything less is not

waiver.

Carnley v. Cochran, 369 U.S. at 516.

The Supreme Court, therefore, requires the following

procedure in waiving a conflict of interest:

1. The District Court shall address each defen-

dant personally in open court;

2. The District Court shall advise each defendant

of the right to a separate attorney and that, if nec-

essary, one will be appointed;

3. The District Court shall also advise each de-

fendant:

a. Of the nature of the charges and the range

of allowable punishments for those charges and

for all lesser included offenses;

b. Of the possible defenses to each charge and

that an individual attorney could raise these de-

fenses;

c. Of all other facts essential to a broad un-

derstanding of the whole matter;

4. “Most significantly, the court should seek to

elicit a narrative response from defendant that he has

been advised of his right to effective representation,

that he understands the details of his attorney’s pos-

sible conflict of interest and the potentials of such a

conflict, that he has discussed the matter with his

attorney or if he wishes with outside counsel and that

he voluntarily waives his 6th Amendment protec-

tions.” U.S. v. Garcia, supra, 517 F. 2d at 278.

Von Moltke v. Gillies, supra, Carnley v. Cochran, supra.

The Eighth Circuit requires only items (1) and (3)(b)

above, and places the burden of seeking information con-

cerning her rights on the defendant by requiring only that

the defendant “be at liberty to question the trial court on

the nature and consequences of dual representation.” U.S.

v. Lawriw, slip op. at 15. By failing to set forth the require-

ments described in various Supreme Court decisions, the

Eighth Circuit has promulgated a procedure in conflict

with applicable Supreme Court decisions. Certiorari should

be granted to resolve this conflict.

2. By its decision, the Eighth Circuit sanctioned a de-

parture by the District Court from the accepted and usual

course of judicial proceedings so as to call for an exercise

of the Supreme Court's power of supervision.

Assuming that the law regarding the procedure in ac-

cepting a waiver of conflict of interest is as described above

in argument 1, the Supreme Court must find that the

Eighth Circuit sanctioned by its decision a drastic depar-

ture from required procedure. As noted above, the Dis-

trict Court is required to address each Defendant person-

ally, inform each defendant of the nature of the charges

and range of sentences resulting from those charges, de-

scribe to each defendant his right to separate retained or

appointed counsel, delve into the possibility of the preju-

dice resulting from a conflict of interest and elicit a nar-

rative response from each defendant as to the defendant's

understanding of his rights and his voluntary waiver there-

of. In the instant case, the entire trial transcript covers 42

pages. Of these 42 pages, only 4 pages concerned the con-

flict of interest situation. Of these 4 pages, a mere 8 lines

contained the exchange between the Court and Defendant

Lawriw. This brief exchange, quoted in full in the state-

ment of the case section of this petition, concerned in very

summary fashion, the existence of a separate defense for

Defendant Lawriw, the existence of a conflict, and the

possibility that another lawyer could do something with

the evidence available. It is certain that by this brief ex-

change, less than all the Supreme Court’s procedural re-

quirements for waiver of conflict of interest were met.

Even if the requirements were formally met by this brief

encounter, no judge could find that Defendant Lawriw

understood the ramifications of a conflict of interest, her

right to independent counsel—retained or appointed—

and, therefore, that she intelligently waived these rights.

Instead, the Court relied on the defense attorney’s repre-

sentations that he discussed the possibility of a conflict

with the defendants and that there was no real conflict.

(Tr. 22-23) When the Court itself is required to inquire

into these facts it cannot be sufficient to rely on a defense

attorney’s representations. Indeed, if counsel renders in-

effective assistance to his clients, how can he render ef-

fective assistance to the Court with respect to that client?

Clearly, the Court must make the inquiry, not defense

counsel. Since the Court did not make an inquiry sufficient

under decisions of the Supreme Court, the Eighth Circuit

sanctioned a departure from the usual and accepted course

of judicial proceedings. The Supreme Court should, there-

fore, exercise its supervisory powers and grant certiorari

to correct this departure.

Assuming, alternatively, that the law as declared by the

Eighth Circuit is correct, the Court of Appeals still sanc-

tioned a departure from accepted judicial proceedings. By

its decision, the Eighth Circuit requires a district court

to “address each defendant personally and advise him of

the potential danger of dual representation.” U.S. v. Law-

riw, slip op. at 15. These dangers were pointed out by the

Eighth Circuit:

The possibility of inconsistent pleas, factually incon-

sistent alibis, conflicts in testimony, differences in de-

gree of involvement in the crime, tactical admission

of evidence, the calling and cross-examination and

impeachment of witnesses, (and) strategy in final

summation.

U.S. v. Lawriw, slip op. at 8. It is possible to argue, though

it is not conceded, that the District Court pointed out the

danger regarding differences in degree of involvement in

the crime. (Tr. 22) None of the other dangers, however,

were explained to the Defendant. Nor was there any ex-

planation about how the testimony developed at trial could

bear on the ultimate sentence defendant receives, even

if found guilty. It is, therefore. impossible to believe that

the District Court followed the rules laid down by the

Eighth Circuit in the instant case. The Supreme Court

should exercise its supervisory powers and correct this de-

parture from the usual and accepted course of judicial

proceedings.

3. The conflict among Circuits on the issue in this case

is manifest from the opinion of the Eighth Circuit and the

Supreme Court should grant certiorari to resolve this con-

flict.

It has already been noted in argument 1 above that the

Fifth Circuit requires the district court to elicit a narrative

from the defendant regarding a waiver of conflict of in-

terest before accepting that conflict of interest. U.S. v.

Garcia, 517 F. 2d 272 (1975). The Eighth Circuit, by

adopting the standards of State v. Olsen, — Minn. —, 258

NW2d 898 (1977), expressly rejects this Fifth Circuit re-

quirement. This conflict alone should be sufficient to call

for the grant of certiorari; however, the conflict among

circuits goes much deeper, as the Eighth Circuit points

out. U.S. v. Lawriw, slip op. at 8-12.

When considering a conflict of interest and its waiver,

all resulting from dual representation by one attorney, the

various Circuit Courts of Appeals are at variance on

three questions:

a. Does the district court have a duty to inquire

into the existence and waiver of a conflict of interest;

and if so, what triggers this inquiry?

b. What is the scope of the district court’s in-

quiry?

c. If the inquiry is not sufficient, does the burden

of proof shift to the government to show harmless

error?

a. Of the eleven Circuit Courts of Appeals, ten require

some sort of inquiry by the district court into the existence

and waiver of conflict of interest. Campbell v. U.S., 352

F. 2d 359 (D.C. Cir. 1965); U.S. v. Donahue, 560 F. 2d

1039 (ist Cir. 1977); U.S. v. Carrigan, 543 F. 2d 1053

(2d Cir. 1976); U.S. ex rel. Hart v. Davenport, 478 F. 2d

203 (3d Cir. 1973); U.S. v. Truglio, 493 F. 2d 574 (4th

Cir. 1974); U.S. v. Smith, 550 F. 2d 277 (Sth Cir. 1977);

U.S. v. Lariche, 549 F. 2d 1088 (6th Cir. 1977); US. v.

Lawriw, — F. 2d — (8th Cir. 1977); U.S. v. Kutas, 542

F. 2d 527 (9th Cir. 1976); U.S. v. Warledo, 557 F. 2d

721 (10th Cir. 1977). Only the Seventh Circuit requires

no inquiry at all, preferring to place “the primary re-

sponsibility for the ascertainment and avoidance of con-

flict situations . . . with the members of the bar.” U.S. v.

Mandell, 525 F. 2d 671, 677 (7th Cir. 1975). When an

inquiry is required by the district court, the required tim-

ing of that inquiry varies radically from Circuit to Circuit.

In some Circuits, an inquiry is required when two co-de-

fendaits appear with one attorney. Campbell v. U.S., su-

pra, (D.C. Cir.); U.S. v. Donahue, supra, (1st Cir.); U.S.

v. Truglio, supra, (4th Cir.). Some Circuits require an in-

quiry when the possibility of conflict is alleged. U.S. v.

Carrigan, supra, (2d Cir.); U.S. ex rel. Hart v. Daven-

port, supra, (3d Cir.); U.S. v. Smith, supra, (Sth Cir.);

U.S. v. Larich, supra, (6th Cir.); U.S. v. Lawriw, supra,

(8th Cir.). The Ninth Circuit requires a showing of actual

conflict. U.S v. Kutas, supra. The Tenth Circuit has not

addressed the question. The Third and Eighth Circuits

specifically require the inquiry to be held as early in the

proceedings as possible.

It is Petitioner’s contention that an automatic hearing,

as provided by the First, Fourth, and D.C. Circuits, is

required. As such, the District Court in the instant case

erred in not holding such an inquiry at arraignment, or

certainly at the suppression hearing. Expansion of this

contention is reserved for Petitioner’s brief on the merits.

b. At whatever stage an inquiry is required, the var

ious Circuit Courts have established guidelines for the

hearing; these guidelines cover a broad spectrum of in-

vestigation. The deepest inquiry is required by the Fourth

and Fifth Circuits, U.S. v. Truglio, supra; and U.S. v.

Garcia, 517 F. 2d 272 (Sth Cir. 1975). Under these de-

cisions, an examination similar to Rule 11, Federal Rules

of Criminal Procedure, is required. Both Circuits note,

however, that mere assent in response to a series of ques-

tions may not be adequate in some.cases to assure a know-

ing and intelligent waiver. It is for this crucial reason that

the court should seek to elicit a narrative from the defen-

dant of his or her understanding of the right to effective

assistance of counsel. See also U.S. Carrigan, supra, 543

F. 2d at 1055.

The Eighth Circuit explicitly declines to include this re-

quirement in the procedure that Court established in U.S.

v. Lawriw. In his opinion, Circuit Judge Webster quotes

at length from the procedural requirements in U.S. v. Gar-

cia, supra. The Court then adopts the procedure of the

Minnesota Supreme Court in State v. Olsen, supra. By so

doing, the Eighth Circuit, like the Minnesota Supreme

Court, excludes mention of the requirement that the Dis-

trict Court elicit a narrative from the defendant regarding

her understanding of the waiver. U.S. v. Lawriw, slip op.

at 15; State v. Olsen, — Minn., at —, 258 NW2d at 907.

The other circuits require varying scopes of inquiry. The

First, Second, Third, Sixth and Eighth Circuits require the

District Court affirmatively to advise each defendant per-

sonally as to the dangers of conflict of interest. In the

First Circuit, this means the District Court must com-

ment on the risk of foregoing an attorney whose loyalty is

undivided, as well as on the attorney’s strategic problems

with calling witnesses, including the defendant and his co-

defendant(s), and with cross-examination of the govern-

ment’s witnesses. U.S. v. Donahue, supra, 560 F. 2d at

1043-1044. The Second Circuit requires merely that “the

defendant should be fully advised by the trial court of the

facts underlying the potential conflict.” U.S. v. Carrigan,

supra, 543 F. 2d at 1055. The Third Circuit declares that

it is “highly desirable that (defendants) be appraised of

(the dangers inherent in joint representation)” so that “dif-

ficult questions of whether a conflict of interest arose be-

cause of joint representation can be avoided.” U.S. ex rel.

Hart v. Davenport, supra, 478 F. 2d at 211. The standard

in the Sixth Circuit requires the district court merely to

warn the defendant of the possibility of conflict. U.S. v.

Lariche, supra, 549 F. 2d at 1094. The Eighth Circuit

requires that “the court should . . . advise (each defen-

dant) of the potential danger of dual representation.”

U.S. v. Lawriw, slip op. at 15.

Another group of Circuits requires no affirmative com-

ment by the district court on the dangers of dual repre-

sentation. The D.C. Circuit mandates that the record show

inquiry by the trial court into the job performance of the

attorney as to explanation to the defendants of the poten-

tial conflict. Campbell v. U.S., supra. The Ninth Circuit

requires that each defendant know of possible conflicts

and his right to a separate attorney, that the record shows

each defendant discussed these matters with his attorney,

and his right to a separate attorney, that the record show

ing rise to conflict. U.S. v. Kutas, supra, 542 F. 2d at

529. Finally, the Tenth Circuit asks that defendants un-

derstand the possible conflicts and the meaningfulness of

their waiver. U.S. v. Warledo, supra, 557 F. 2d at 727.

The significant characteristic about this group of deci-

sions is their reliance on members of the bar to inform co-

defendants about their rights in conflict of interest situa-

tions. This group of decisions completes the continuum

from complete reliance on counsel, without any required

inquiry by the court (U.S. v. Mandell, supra, (7th Cir.))

to complete reliance on the trial court, without any inquiry

into the attorney’s activities (U.S. v. Garcia, supra, (Sth

Cir.)). In its entirety that continuum appears as:

Subjective Inference Subjective Inference

Pure Objective from Objective from Objective Advise Pure Subjective

Test Activities Given on the Record Test

| it | j

| 7. | 1

Complete Inquiry by Court Inquiry by Court into Complete Inquiry

Reliance on into Attorney's Attorney's Activities by Court into

Attorney Activities (0.C., and Advise to Defendant's

(7th Circuit) 9th, 10th Circuits) Defendants (Ist, 2nd, Understanding

3rd, 6th, 8th Circuits) without rd to

Merits of Discussion

Between Defendant

and Attorney (4th,

5th Circuits)

Such a wide range of requirements can only result in a

defendant’s being adequately represented in a conflict situ-

ation by the fortuitous happenstance of the crime’s loca-

tion. This should not be the state of the law with regard to

so fundamental a right as effective assistance of counsel.

c. If the previously described conflict among the Cir-

cuits is not enough to warrant the grant of certiorari, then

it should suffice to describe yet another conflict among

the Circuits on this issue. The First Circuit has held, “When

a satisfactory inquiry does not appear on the record, the

burden of persuasion will shift to the government.” U.S.

v. Foster, 469 F. 2d 1, 5 (1972); U.S. v. Donahue, supra,

560 F. 2d at 1042. The Minnesota Supreme Court adopted

this requirement almost verbatim. State v. Olsen, supra,

258 NW2d at 907. On the other hand, in announcing its

own rules, the Eighth Circuit said, “. . . a presumption

of prejudice does not arise if the inquiry is not made, nor -

can we at this time adopt a burden-shifting procedure

such as that announced in State v. Olsen.” U.S. v. Law-

riw, slip op. at 15. The D.C.,? Second, and perhaps

Tenth Circuits agree with the First Circuit; the Third and

Ninth Circuits expressly agree with the Eighth Circuit.

The remaining Circuits have not addressed the issue.

The significance of this issue rests on the concept of

harmless error. Chapman v. California, 386 U.S. 18;

Lollar v. U.S., 376 F. 2d 243, 246 (D.C. Cir. 1967). Cf.

U.S. v. Lawriw, slip op. at 8 n. 5. The threshold issue is

whether some sort of affirmative inquiry on the record is

required in the District Court. If such an inquiry is re-

quired, and no sufficient inquiry appears, then the burden

is on the government to show harmless error in the District

Court’s failure to make sufficient inquiry. By this reason-

ing, it is error to hold that the burden of proof does not

shift to the government upon an insufficient record of in-

quiry. See U.S. ex rel. Hart v. Davenport, supra, 478 F. 2d

at 211; U.S. v. Kutas, supra, 542 F.2d at 529; U.S. vy.

Lawriw, slip op. at 15. Because harmless error must be

shown beyond a reasonable doubt, Chapman v. Califor-

nia, supra, it is crucial to know by what standards to

2Lollar v. U.S., 376 F. 2d 243 (D.C. Cir. 1967).

measure the district court’s inquiry. With well defined

standards applied consistently, it becomes possible to know

with immensely greater precision at what point this bur-

den shifts. With well-defined standards applied consistent-

ly, the ever-increasing and troublesome claims of ineffec-

tive assistance of counsel will be far less often brought be-

fore the courts. It is time to grant certiorari and resolve

this pressing Constitutional problem. See S. Hyman,

“Joint Representation of Multiple Defendants in a Crimi-

nal Trial,” 5 Hofstra Law Review, 315 (1977).

4. The United States Supreme Court should grant cer-

tiorari to decide an important federal question that has

not been but should be decided.

Petitioner contended in argument 1 above that Von

Moltke v. Gillies, 332 U.S. 708 (1948), alone, by anal-

ogy, Or in combination with other cases on waiver, con-

trols the instant case. If this is not true, then no Supreme

Court cases have decided the issues presented by the case

at bar. If there are no controlling Supreme Court cases,

then the Court should grant certiorari in this case in order

to fill a void so obviously felt by the Circuit Courts of

Appeals in their struggles to cope with these issues.

In its starkest terms, the importance of this question

appears in light of consideration by the Supreme Court

Advisory Committee on Criminal Rules of an amendment

to the criminal rules dealing with conflict of interest. See

U.S. v. Garafola, 428 F. Supp. 620, 626. n. 11 (1977).

By the time this case is argued and decided the Com-

mittee’s Rule will be published in draft, if not final, form.

This case, therefore, presents an opportunity for the Court

to examine the proposed rule in light of the hard realities

of a pending decision.

There is another important reason for the Court to con-

sider at this time the issues presented by this case: a small,

but growing number of judges have found that knowing

and intelligent waiver of counsel is all but impossible.

These judges would automatically require that two jointly

charged co-defendants be separately represented. The

principle was first discussed by Circuit Judge Oakes,

concurring, in U.S. v. Mari, 526 F. 2d 117, 119, 121 (2d

Cir. 1975):

The time is rapidly approaching, however, when, in

the light of more exacting standards of the Bar and

the decisions of other leading courts, we may have to

re-examine our rule.

as aK *

Trial court insistence that, except in extraordinary

circumstances, co-defendants retain separate coun-

sel will in the long run in my opinion prove salutary

not only to the administration of justice and the ap-

pearance of justice but the cost of justice; habeas

corpus petitions, petitions for new trials, appeals and

occasionally retrials can be avoided. (citation

omitted) Issues as to whether there is an actual con-

flict of interest, whether the conflict has resulted in

prejudice, whether there has been a waiver, whether

the waiver is intelligent and knowledgeable, for ex-

ample, can all be avoided. Where a conflict that first

did not appear subsequently arises in or before trial

(citations omitted), continuances or mistrials can be

saved. Essentially by the time a case such as the

present one gets to the appellate level the harm to

the appearance of justice has already been done,

whether or not reversal occurs; at the trial level it is

a matter which is so easy to avoid... .”

The next year, a majority of the Second Circuit seemed

to agree with Judge Oakes. In U.S. v. Bernstein, 533 F. 2d

775 (2d Cir. 1976), the defendant’s attorney was being

paid by the defendant’s employer. The employer’s interests

in freedom from corporate and individual liability con-

flicted with the defendant’s interests. The District Court

closely questioned defendant’s waiver of the conflict; de-

fendant’s attorney ultimately withdrew. In commenting on

these occurrences, the Court said, “The District Court

handled the matter, we think, quite correctly, and Mr.

Boitel (defendant’s attorney) withdrew quite correctly.”

U.S. v. Bernstein, supra, 533 F. 2d at 778.

Later that same year, Circuit Judge Lumbard, of the

Second Circuit, concurred specially by opinion in U.S. v.

Carrigan, 543 F. 2d 1053, 1057 (1976). He said:

It has become increasingly clear that the only way to

ensure adequate representation for each defendant in

a multi-defendant case is the initiative of the court

to require separate counsel as soon as the court is

aware of such a situation. The adoption of a rule

by each district court, or by action of the court of

appeals for the circuit, would solve the problem.

However, until such a solution is agreed upon, we

must examine the circumstances of each situation,

with the result that additional judicial resources may

be expended on a retrial of the defendants affected.

(Citation omitted)

* ok *

It would be a rare defendant who could intelligently

decide whether his interests will be properly served

by counsel who also represents another defendant.

However parallel his interests may seem to be with

those of a co-defendant the course of events in the

prosecution of the case, the taking of a guilty plea,

or the conduct of the trial may radically change the

situation so as to impair the ability of counsel to

represent the defendant most effectively. Even de-

fense counsel, who all too frequently are not ade-

quately informed regarding the evidence available

against their clients, may not be in a position to judge

whether a conflict of interest between their clients

may develop.

It is a rare defendant in a criminal case who fully

advises his own counsel of all he knows about the

charges against him. Accordingly, most counsel must

operate somewhat in the dark and feel their way un-

certainly to an understanding of what their clients

may be called upon to meet upon a trial. Conse-

quently, counsel are frequently unable to foresee de-

velopments which may require changes in strategy.

It follows that there will be cases where the court

should require separate counsel to represent certain

defendants despite the expressed wishes of such de-

fendants.

U.S. v. Carrigan, supra, 543 F. 2d at 1058.

Most recently, the United States District Court for the

District of New Jersey, Lacey, J ., felt compelled to com-

ment on the issue in a similar manner. Recall that in the

Third Circuit, affirmative inquiry is required of the District

Court under U.S. ex rel. Hart v. Davenport, 478 F. 2d 203

(1973). Judge Lacey said:

The Davenport inquiry, by and large, is an ineffective

charade. The judge and counsel know the purpose

of the inquiry; to forestall a convicted defendant

from later successfully urging on appeal that he did

not at trial have effective assistance of counsel. Put

in other words, it is done to construct a predicate for

claiming later that there has been a waiver of a con-

stitutional right. For reasons I shall explicate, it fails

utterly as a means of assuring an informed consent

from jointly represented—and unsophisticated—de-

fendants.

In the recently decided Matter of Grand Jury Em-

paneled January 21, 1975, 536 F. 2d 1009 (3d Cir.

1976), the court of appeals stated that, as is the case

with other constitutional rights, “the Davenport right

may be waived.” /d. at 1012. The court went on to

find that “a waiver is exactly what the district court

elicited from each of the appellants at the hearings

conducted in this case.” (footnote omitted) With all

deference, I question whether there can be a waiver

in the Johnson v. Zerbst sense. (footnote omitted)

Many trial judges are concerned about the ability and

capacity of any defendant knowingly and intelligent-

ly to waive his sixth amendment right to the effective

assistance of counsel within the context of a Daven-

port inquiry into joint representation. The average

defendant cannot possibly understand fully and com-

pletely the extent to which his counsel’s trial strategy

may be affected by his representation of other defen-

dants. Moreover, what of the situation, not uncom-

mon where a “strong defendant” thrusts his own at-

torney upon a “weak” co-defendant? The latter does

not dare indicate his displeasure with the joint rep-

resentation. In simple terms, the Davenport inquiry,

to the extent it is directed at the defendants, is a futile

exercise. There can be no real waiver.”

"In a paper adapted from a speech given at the National College

of Criminal Defense Lawyers and Public Defenders in Hous-

ton, Texas, on June 24, 1976, Alan Y. Cole, Esq., Chairman

of the Section of Criminal Justice, American Bar Association,

has stated, after discussing the Third Circuit (536 F. 2d 1009

(1976)) and District of Columbia Circuit (531 F. 2d 660

(1976)) cases,

This is a dismal scene. The attorney conduct involved in

these cases is hardly of a nature that enchances the image

of the profession. It does not reflect respect for the princi-

ples underlying the canon of ethics. It suggests that self-

regulation by the profession is essentially non-existent. The

judicial response is likewise unsatisfactory to a society which

is already disenchanted with its lawyers and its courts.

Cole, Time for a Change: Multiple Representation Should be

Stopped 9-10 (unpublished) (footnote omitted).

I do not join in Mr. Cole’s pungent criticism of the bar and

bench; however, it is deserving of reflection that a leading

member of the bar, active in the defense of criminal cases,

finds the situation warrants such candid comments.

Respectfully it is submitted that the trial judge cannot

conduct a meaningful inquiry. He does not know

the case. He cannot know the facts or the inferences

which may be fairly drawn from them. He is unaware

of the quality of the witnesses and the trial strategy

the government and the defendants will pursue. Nor

can he inquire into the defense without violating de-

fendant’s fifth and sixth amendments rights; and this

is so whether the interrogation is held in open court

or in camera. He is restricted to imparting vaguely

contoured, abstract advice on a doctrine as to which

the lawyer then and there present has undoubtedly

already advised his clients. Indeed, the attorney’s

words will have more meaning to the defendants be-

cause they are not empty abstractions but related to

the facts of the case. He has already told his clients

that there is no conflict in thei interests. Thus, when

the defendants answer the court’s inquiry, they actu-

ally are relying upon the advice received from their

lawyer. If he tells them there is no conflict and that

he can effectively represent them, how can their re-

sponses to the court be deemed to amount to a John-

son v. Zerbst waiver of their sixth amendment right

to effective aid of counsel?

* * * * * a

The next question to be put is whether joint repre-

sentation should be allowed, no matter how remote

the possibility of a potential conflict of interest. Un-

fortunately, no matter how thorough an attorney’s

investigation, he may not be aware of those facts

which suggest the possibility of a conflict.

* * * * * *

That there is much wisdom in the suggestion made

by Judge Lumbard that there be “separate counsel

for each defendant in a multi-defendant case” (543

F. 2d at 1058) is further underscored by the fact that

it is not possible to “anticipate with complete ac-

curacy the course that a criminal trial may take.”

Fryar v. United States, 404 F. 2d 1071, 1073 (10th

Cir. 1968), cert. denied, 395 U.S. 964 (1959).

* * * * * *

The trial judges are in need of guidance in this deli-

cate and sensitive area. (footnote omitted)

The reasoning supporting the “waiver” doctrine in

this context of joint representation seemingly is

founded upon an analysis of the sixth amendment

from which there emerges the concept that, because

there is a right to waive counsel altogether, Faretta v.

California, 422 U.S. 806 (1975), there is also a right

to waive effective assistance of counsel. Like so

many seemingly simple truths, this one has its

frailties. The absolute, that is, counsel or none, as is

so often the case, is easier to define and deal with

than the relative, that is, is one counsel or another

better able to represent the defendant. A trial judge

can quite readily advise a defendant on the wisdom

of proceeding with counsel, the bases for his advice

and the pitfalls which a defendant will encounter ab-

sent counsel. On the other hand, in view of the limita-

tions already alluded to in this opinion, the joint

representation inquiry falls far short of assuring a

knowing and intelligent waiver.

U.S. v. Garafola, supra, 428 F. Supp. at 623-626. U.S. v. Garafola, supra, 428 F. Supp. at 624-625. Faretta,

The only concern remaining with adopting the position therefore, does not stand in the way of an automatic re-

of Judge Lacy is the collection of statements that: quirement of separate counsel in a conflict of interest sit-

If defendants may dispense with the right to be rep- uation. Once separate counsel is retained or appointed,

resented by counsel altogether, Faretta v. California, the right to counsel may then be waived under Faretta.

422 U.S. 806 (1975),* it would seem that they may

‘In reaching this conclusion, we are cognizant of a line of cases

indicating that the right to dispense with counsel at trial is not

absolute but may be denied in appropriate circumstances. E.g.,

Manson v. Pitchess, 317 F. Supp. 816 (C.D. Calif., 1970); Seale

v. Hoffman, 306 F. Supp. 330 (N.D. Ill., 1969); U.S. v. Davis,

260 F. Supp. 1009 (E.D. Tenn., 1966).

waive the right to have their retained counsel free

from conflicts of interests.

U.S. v. Garcia, 517 F. 2d 272, 277 (Sth Cir. 1975). Judge

Lacey dealt with this problem in Garafola:

CONCLUSION

For the many, varied and critical reasons discussed

above, Petitioner respectfully requests the United States

Supreme Court grant a writ of certiorari in this case to

review the decision of the United States Court of Appeals

for the Eighth Circuit.

Respectfully submitted,

MARC G. KURZMAN

MARC G. KURZMAN LAW OFFICE

CHARTERED

601 West Butler Square

Minneapolis, Minnesota 55403

Telephone: 612-333-4403

Counsel for Petitioner

Assisted By:

RONALD S. GOLDSER, Law Clerk

MARC G. KURZMAN LAW OFFICE,

CHARTERED

601 West Butler Square

Minneapolis, Minnesota 55403

A-l

APPENDIX A

United States Court of Appeals

For The Eighth Circuit

No. 77-1409

United States of America,

Appellee,

vs.

Anna Erna Lawriw,

Appellant.

Appeal from the United States District Court for the Dis-

trict of Minnesota.

Submitted: August 31, 1977

Filed: December 30, 1977

Before GIBSON, Chief Judge, HEANEY and WEBSTER,

Circuit Judges.

WEBSTER, Circuit Judge.

Once again we are called upon to review a post-con-

viction claim that a defendant in a criminal trial, jointly

represented with a codefendant by a single attorney, was

denied effective assistance of counsel. Consistent with our

earlier decisions in which we have identified the pitfalls

A-2

of this practice, we announce today an affirmative duty

of inquiry by the district court. Such an inquiry was con-

ducted by the District Court’ in the case now before us on

appeal, and we are satisfied that it accomplished the pur-

poses to be served by such inquiry and that appellant

did, as the District Court found, knowingly and intelli-

gently waive her right to separate counsel. Since this is the

only issue before us, we affirm the District Court’s denial

of post-conviction relief.

Appellant Anna Lawriw was convicted in a joint trial

with Terrance Richard Noto of unlawful possession of co-

caine with intent to distribute in violation of 21 U.S.C.

$841(a)(1).? The case was tried to the District Court with-

out a jury on stipulated facts. The purpose of this proce-

dure was to preserve for appellate review the denial of a

pretrial motion to suppress evidence seized following a

warrantless search of the motel where Lawriw and Noto

were staying at the time of their arrest. On appeal we

rejected the search and seizure contention and affirmed

the conviction in an unreported opinion. United States v.

Noto, Nos. 76-2076, 76-2077 (8th Cir. April 1, 1977).

Thereafter, Lawriw filed a motion for a new trial on the

ground of newly discovered evidence, see Fed. R. Crim.

P. 33, contending that she had an independent defense

that she was precluded from raising by reason of the dual

1The Honorable Miles W. Lord, United States District Court for the

District of Minnesota.

2Appellant was sentenced to five years imprisonment and an additional

three years of special parole.

A-3

representation, and hence was denied her Sixth Amend-

ment right to effective assistance of counsel. Following a

hearing, the District Court held that there was no conflict

of interest making the assistance of counsel ineffective,

and if there was, that Lawriw had waived this right. Her

motion was denied, and this appeal followed.

Appellant’s arrest occurred on April 8, 1976, when fed-

eral drug agents entered the motel room occupied by Law-

riw and Noto in Hennepin County, Minnesota, and seized

approximately one pound of cocaine in a flight bag also

containing both male and female toiletries and a pre-

scription vial in the name of Lawriw. As revealed by the

stipulation of facts, Lawriw was seated on a bed, adjacent

to which was a suitcase containing $5,700 in cash. $3100

of that amount was money paid the previous evening by

federal agents to obtain two ounces of cocaine from asso-

ciates of Lawriw. Documentation and correspondence, all

addressed to Lawriw, were also found in the suitcase.

In this appeal appellant contends that dual representa-

tion at her joint trial deprived her of the opportunity to

assert that she lacked knowledge of the presence of the

cocaine in the room, and hence she could not have been

guilty of possession with intent to distribute.

At the commencement of the trial the District Court

and defense counsel questioned both defendants regarding

their awareness of the possibility of conflict, and the record

reveals that both defendants had discussed this possibility

with their retained counsel and still desired him to repre-

sent them jointly. In their presence, and without challenge,

their attorney, Joseph S. Friedberg, represented to the

A-4

Court that he had discussed the possibility that one defen-

dant might seek to place the blame on the other and that

neither party wanted to do this.

The point presented on this appeal first surfaced when

the District Court asked appellant to read the stipulation

of facts into the record. When appellant appeared to be

taking issue with some of the stipulated facts during the

reading, the District Court ordered her placed under oath

and examined her as to the facts stipulated.

The following colloquy is illustrative. Appellant had

questioned the stipulation that there was a pound of co-

caine in the room. The court examined her on this point.

[COURT:] Was there a pound of cocaine in that

room before the agents came in there?

A. I didn’t know that there was a pound of co-

caine in the room before the agents came in.

THE COURT: All right. Then that ends this. We

will now get ready for the trial of the case.

MR. FRIEDBERG: Your Honor, may I ask one