Opposition — Atkinson v. United States

Supreme Court, U.

FILED

No. 77-1260 MAY 17 i978

! Ke IREL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

—

| LESLIE ATKINSON, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

: UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

hts JEROME M. FEIT,

. CHRISTIAN F. VISSERS,

Attorneys,

' Department of Justice,

ZH Washington, D.C. 20530.

INDEX

Page

Opinion below 1

Jurisdiction 1

Questions presented 2

Statement 2

Argument 7

Conclusion __ 20

CITATIONS

Cases:

Bowles v. United States, 489 F. 2d 536,

certiorari denied, 401 U.S. 995 _..__ 17

Craig v. United States, 217 F. 2d 355_____. 16

Holloway v. Arkansas, No. 76-5856, de-

cided April 3, 1978 _ 8,19

Hurst v. United States, No. 77-5157, cer-

tiorari denied, April 17, 1978 8, 19

Lakeside v. Oregon, No. 76-6942, decided

March 22, 1978 11

United States v. DeBerry, 487 F. 2d 448_ 11

United States v. Foster, 469 F. 2d 18, 15, 19

United States v. Harris, 542 F. 2d 1283,

certiorari denied sub nom. Clay v.

United States, 430 U.S. 934 17

United States v. Huntley, 535 F. 2d 1400,

certiorari denied, 430 U.S. 929 9

United States v. Johnson, 488 F. 2d 1206_ 17

United States v. Lovano, 420 F. 2d 769,

certiorari denied, 397 U.S. 1071 _____ 8

Cases—continued : Page

United States v. Mandell, 525 F. 2d 671,

certiorari denied, 423 U.S.1049_ ss: 9, 16

United States v. Tuley, 546 F. 2d 1264,

certiorari denied, No. 76-6380, Octo-

ber 3, 1977 17

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

certiorari denied, 400 U.S. 947 _____ ae 9

United States ex rel. Hart v. Davenport,

478 F. 2d 203 9

United States ex rel. Horta v. DeYoung,

523 F. 2d 807 16

Statutes :

21 U.S.C. 841(a) (1) _ 2

21 U.S.C. 963 2

a

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1260

LESLIE ATKINSON, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

-_ *

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 565 F.2d 1283.

JURISDICTION

The judgment of the court of appeals was entered

on December 8, 1977. A petition for rehearing and

rehearing en banc was denied on January 16, 1978.

(1)

2

Mr. Justice Brennan extended the time within which

to file a petition for a writ of certiorari to and in-

cluding March 17, 1978, and the petition was filed on

March 13, 1978. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether petitioners were prejudiced by their

joint representation at trial.

2. Whether petitioners’ convictions must be re-

versed because the trial court did not, sua sponte,

inquire into the possibility of conflict flowing from

the joint representation.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of North Carolina, all

eight petitioners were convicted of conspiring to im-

port heroin into the United States, in violation of 21

U.S.C. 963. In addition, petitioners Leslie Atkinson,

_ Sharon Atkinson Arrington, and Michael Arrington

were convicted of possession of heroin with intent to

distribute it, in violation of 21 U.S.C. 841(a)(1).

Petitioners were sentenced to various terms of im-

prisonment, fines, and terms of special parole.’ The

court of appeals affirmed (Pet. App. la-6a).

1 Petitioner Leslie Atkinson was sentenced to imprisonment

for a total of 25 years, that term to run consecutively to a

19-year sentence he was then serving. He was also fined a

total of $50,000 and given a special parole term of nine years

(XIV Tr. 38-39). Petitioners Michael and Sharon Arrington

ate Sg

The evidence established that between August 1974

and March 1976 petitioners, together with nine other

individuals, conspired to import heroin into the United

States from Thailand. Freddie Lee Thornton, the

chief prosecution witness at trial, testified that in

February 1974, while stationed in Thailand as a

technical sergeant in the United States Air Force, he

discussed with petitioner Atkinson and co-defendant

James Smedley the possibility of participating in a

narcotics smuggling operation (II Tr. 243-249, 262-

265). Thornton’s direct involvement in the operation

began in August 1974, when he transported two pieces

of luggage containing heroin from Thailand to the

United States on Smedley’s instructions. Upon his

arrival in the United States, Thornton met with peti-

tioner Atkinson, who paid him $5,000 for the heroin

(II Tr. 265-284).

After his return to Thailand in September 1974,

Thornton played an even more active role in the

smuggling operation (II Tr. 288-297). By February

1975, when Thornton again left Thailand, the group

were each sentenced to 15 years’ imprisonment, fines totalling

$50,000, and special parole terms of six years. Petitioner

William Thomas was sentenced to 15 years’ imprisonment, a

fine of $25,000, and a special parole term of three years (XIV

Tr. 61). The other petitioners were each sentenced to 10 years’

imprisonment, three years’ special parole, and fines ranging

from $5,000 to $25,000 (XIV Tr. 47-98).

2 “Tr.” preceded by a Roman numeral designates one of the

14 numbered volumes of the trial transcript.

4

had succeeded in smuggling several more shipments of

heroin into the United States. (II Tr. 297-315).°

Upon his return to the United States, Thornton

retrieved two of the previously shipped pieces of

luggage containing heroin and then traveled to North

Carolina, where he delivered the heroin to Atkinson

in exchange for $12,000 in cash (II Tr. 325-331). The

next month, Thornton returned to California at At-

kinson’s behest. There he and petitioner Thomas

claimed a shipment of furniture from Southeast Asia

that contained drugs concealed in false-bottomed

drawers. Thornton supervised the removal of the

heroin and again delivered it to Atkinson, who paid

him $15,000 for the drugs (II Tr. 333-353; III Tr.

120-125) .*

In May 1975, Atkinson sent Thornton back to

Thailand to oversee a number of continuing drug-

smuggling projects in that country. Among these

projects was a proposed scheme involving petitioner

Martin, who agreed to help ship the drugs from

Thailand in “military cargo” packages in order to

*A companion scheme, arranged by petitioners Atkinson

and Jennings and employing individuals to transport contra-

band to the United States concealed in their luggage, was

thwarted by federal narcotics agents (V Tr. 156-166, 181-187;

VIII Tr. 35-36, 46-47). The evidence also showed that peti-

tioner McArthur was actively involved in yet another phase

of the smuggling scheme, shipping packages of contraband to

the United States with the cooperation of an Air Force postal

service supervisor (VI Tr. 18-36).

* This transaction was the basis of the substantive possession

count against petitioner Atkinson.

avoid customs checks (II Tr. 354-365). Thornton ob-

tained a large amount of heroin in Thailand with the

assistance of petitioner Martin and began arranging

to ship it to the United States. During the summer of

1975, however, Thornton became concerned about

disunity among his associates there (II Tr. 400-405).

Accordingly, he returned to the United States in

July to discuss the matter with Atkinson.

At about that time, Atkinson was convicted, on his

nolo contendere plea, of various drug offenses and was

incarcerated in the Atlanta Federal Penitentiary.

At Atkinson’s home, Thornton met with Atkinson’s

daughter, petitioner Sharon Atkinson Arrington. Ac-

cording to Thornton, Sharon was handling her father’s

affairs while Atkinson was in prison. Thornton told

Sharon that he had misgivings about some of his

associates in the Thailand operation. She suggested

that he express his concern in writing, and she prom-

ised to deliver Thornton’s letter to her father. Thorn-

ton followed her suggestion and wrote the letter. He

returned later, and in the presence of her husband,

petitioner Michael Arrington, Sharon relayed a re-

turn message from Atkinson, in which Atkinson di-

rected Thornton to assume control of the entire smug-

gling operation (II Tr. 431-442).

Upon his return to Thailand, Thornton was ar-

rested by federal narcotics agents and deported to the

United States (II Tr. 442-448). To obtain his release,

Thornton feigned cooperation with the government by

providing a federal grand jury with minimal and par-

6

tially false information concerning his participation

in the drug smuggling operation (II Tr. 448-450).

Thornton then returned to North Carolina, where he

again met with petitioners Sharon and Michael Ar-

rington. Sharon told him that petitioner Brown had

notified her that another shipment of heroin-laden

furniture had arrived from Thailand, but she added

that her father had warned that the furniture should

not be picked up until things “cooled off” (II Tr. 450-

454, 475-477). Despite the warning, Thornton de-

cided to pick up the heroin. Accordingly, he made

the necessary arrangements with Brown, and the

two of them removed the heroin from the furniture.

Thornton delivered it to Sharon and Michael Arring-

ton, and Sharon paid him $40,000 for the delivery

(II Tr. 481-507).°

After that delivery, Thornton was again arrested

by DEA agents. An indictment was subsequently re-

turned charging a total of 17 persons, including the

eight petitioners, with conspiring to import heroin.

Three of the 17 were named as unindicted co-

conspirators, two remained in custody in Thailand,

and two, including Thornton, pleaded guilty and

testified for the government.

The same retained attorney, Stephen H. Nimocks,

represented all eight petitioners at arraignment. In

subsequent proceedings, Nimocks continued to appear

5’ This transaction formed the basis of the substantive pos-

session count against petitioners Sharon and Michael Ar-

rington.

7

on behalf of petitioners Atkinson and McArthur, while

other retained attorneys provided representation for

the remaining petitioners as follows: James C. Mac-

Rae served as counsel for Sharon and Michael Ar-

rington; Bobby G. Deaver represented Monroe Mar-

tin and defendant Charles Gillis; and Anthony E.

Rand represented William Thomas, Rudolph Jen-

nings, and William Brown (Pet. App. 3a-4a). All

eight petitioners and defendant Charles Gillis were

convicted by the jury. Defendant William King

Wright was acquitted.

Prior to trial, the district court was not requested

to conduct, and did not conduct, a hearing to deter-

mine whether the dual representation might lead to a

conflict of interest on the part of any of the attorneys

representing more than one defendant. In affirming

petitioners’ convictions, the court of appeals held (Pet.

App. 5a) that it could discern “no conflict of interest

or resultant prejudice to any of the [petitioners].”

Accordingly, the court rejected petitioners’ contention

that the various joint representations denied them

the effective assistance of counsel.

ARGUMENT

Petitioners contend that they were prejudiced by

conflicts of interest that resulted from the various

joint representations at trial and that in any event

their convictions should be reversed because the trial

* Defendant Gillis did not appeal his conviction.

court failed, sua sponte, to inquire into the possibility

that conflicts of interest might develop at trial. On

the facts of this case, neither claim warrants review.

1. As this Court has recently stated, joint repre-

sentation “is not per se violative of constitutional

guarantees of effective assistance of counsel. * * *

[I]ndeed, in some cases, certain advantages might

accrue from joint representation.” Holloway v. Arkan-

sas, No. 76-5856, decided April 3, 1978, slip op. 7.

Although the courts ordinarily infer prejudice from

the existence of a conflict, a conflict is not auto-

matically inferred from the fact of joint representa-

tion. United States v. Foster, 469 F.2d 1, 4 (C.A. 1).

As petitioners correctly note, the courts of appeals

differ in the verbal formulation of the standard to be

used to determine whether jointly represented de-

fendants have suffered prejudice because of an appar-

ent conflict of interest on the part of their attorney,

when the claim is raised for the first time on appeal.’

The Fourth Circuit in the instant case adopted the

standard enunciated by the Second Circuit in United

States v. Lovano, 420 F.2d 769, 773, certiorari denied,

397 U.S. 1071, that “some specific instance of preju-

* The standards adopted by other circuits that have analyzed

the problem are set forth in our Brief in Opposition in Hurst

v. United States, No. 77-5157, certiorari denied, April 17,

1978, pp. 5-€, a copy of which we are providing petitioners’

counsel.

This case is of course wholly unlike Holloway, where ap-

pointed counsel raised a colorable claim of conflict of interest

prior to the trial.

oo

9

dice, some real conflict of interest, resulting from a

joint representation must be shown to exist” (Pet.

App. 5a). Although the different formulations may

reflect differences in language rather than differences

in result in similar cases, the standard adopted by the

court of appeals in this case appears to be at least as

exacting as that applied by any other court except

perhaps the Third Circuit. Compare United States v.

Huntley, 535 F.2d 1400, 1406 (C.A. 5), certiorari de-

nied, 430 U.S. 929 (requiring demonstration of an

“actual, significant” conflict); United States v. Wil-

liams, 429 F.2d 158, 161 (C.A. 8), certiorari denied,

400 U.S. 947 (requiring “evidence of an actual con-

flict of interest or evidence pointing to a substantial

possibility of a conflict of interest between the code-

fendants”); and United States v. Mandell, 525 F.2d

671, 677 (C.A. 7), certiorari denied, 423 U.S. 1049

(requiring a showing “with a reasonable degree of

specificity, that a conflict of interests actually existed

at trial”), with United States ex rel. Hart v. Daven-

port, 478 F.2d 203, 210 (C.A. 3) (referring to some

“showing of a possible conflict of interest or preju-

dice, however remote”). There is no reason, however,

to decide upon the proper verbal formula in this case,

since petitioners have failed to show prejudice here

under any test.

Close scrutiny of the various petitioners’ claims of

prejudice demonstrates that the claims are insub-

stantial:

10

a. Petitioner Michael Arrington contends (Pet.

33-34) that he was prejudiced by the fact that his

wife, petitioner Sharon Arringtoa, with whom he was

jointly represented, testified at trial while he did not.

But Sharon Arrington’s testimony was entirely con-

sistent with the defense of both that they were in no

way involved in the conspiracy. To the extent that

her testimony corroborated the accounts of govern-

ment witnesses, it did so only as to those matters that

had been established by independent documentary

proof, and as to which any denial on her part would

have been incredible. In any event, her admissions

on these points were helpful rather than prejudicial

to her husband.

Sharon Arrington admitted, for example, that she

and her husband had traveled to Atlanta to see her

imprisoned father, but she maintained that the pur-

pose of the visit was innocent and that neither she

nor her husband knew what was in the letter she

took to her father at Thornton’s request (IX Tr. 14-

18). The prosecution introduced the prison visitors

log, which contained entries for both Arringtons

(V Tr. 86), so her effort to give an innocent explana-

tion for the visit bolstered her husband’s defense

rather than further incriminating him.

Similarly, on cross-examination Sharon admitted

that her husband received a call from petitioner Mc-

Arthur (IX Tr. 36-38), but she denied that in the

course of that conversation McArthur told her hus-

band that the Brown furniture shipment had arrived

11

from Thailand (IX Tr. 37). The government proved

that such a telephone call had been made by intro-

ducing telephone company records listing calls be-

tween McArthur’s furniture company and the Arring-

tons’ residence (V Tr. 49-56). In addition, McArthur

testified that the call was made and that he spoke

with Michael Arrington (XI Tr. 39-40). Accordingly,

Sharon’s testimony was as helpful to her husband as

it could possibly have been under the circumstances.

Petitioner Michael Arrington’s claim of prejudice

is not in any way buttressed by the fact that his wife

took the stand while he did not. Any inference that

the jury may draw from the fact that one defendant

declines to take the stand in a multi-defendant trial is

subject to correction by the court’s instruction. See

Lakeside v. Oregon, No. 76-6942, decided March 22,

1978. The danger that such an inference will be

drawn in spite of a proper instruction is in no way

enhanced by the fact that two defendants are repre-

sented by the same attorney.*

Nor is there any substance to the related assertion

(Pet. 34) that petitioner Michael Arrington was fore-

closed by the dual representation from presenting a

* The case of United States v. DeBerry, 487 F.2d 448 (C.A.

2), upon which petitioners rely, is entirely inapposite, since

in that case the testifying defendant directly inculpated the

non-testifying defendant. The court concluded that the joint

representation of two defendants in that situation was im-

proper, since a single attorney was in the position of oversee-

ing the direct incrimination of one client by the other.

12

defense of non-participation. His wife presented that

very defense in her testimony. Indeed, she was care-

ful to extend her denials to cover her husband as well

as herself (IX Tr. 37, 42, 50), so that he derived the

benefit of her presentation of their joint defense with-

out having to undergo cross-examination.

Finally, the summation given by the Arringtons’

attorney cannot fairly be interpreted, as petitioner

Michael Arrington maintains, as an effort to “[give]

up Michael in an attempt to save Sharon” (Pet. 34).

The transcript (XIII Tr. 45-57) shows that counsel

argued that his clients were equally uninvolved in the

conspiracy; his attack upon the credibility of the gov-

ernment’s witnesses clearly encompassed both Arring-

tons; and his brief discussion of the evidence (XIII

Tr. 51-52) did not in any way reflect a sacrifice of

one of his clients in favor of the other.

b. Petitioner Sharon Arrington claims prejudice as

a result of the joint representation with her husband

(Pet. 36-37). As we have just discussed, that joint

representation led to no conflict. Although the peti-

tion states, without elaboration, that the two Arring-

tons had “divergent interests” at trial (Pet. 36),

their interests, in fact, were virtually identical. Both

petitioners sought to discredit Thornton, and both

relied on. the consistent defense of non-participation.

Neither Michael Arrington nor their joint counsel at

any time attempted either to contradict Sharon’s

testimony or to shift any blame onto her.

13

Sharon Arrington further complains (Pet. 37) that

her attorney cross-examined witnesses who failed to

inculpate either her or her husband. From this she

concludes that her attorney was “apparently acting

in the interest of her father [petitioner Atkinson]”

(ibid.). In fact, however, protecting Atkinson—whom

he did not represent—was not the only motive for the

Arrington’s attorney to attack those government wit-

nesses who did not directly inculpate the Arringtons.

Several of those witnesses significantly corroborated

Thornton’s account of the conspiracy. Breaking down

the corroborating witnesses would have tended to cast

doubt on- Thornton’s testimony. Since Thornton di-

rectly incriminated both Arringtons, it was obviously

in their interest for counsel to do everything that

could be done to undermine Thornton. Indeed, coun-

sel’s questions were often designed to disclose that

the government witnesses had received something in

return for their testimony, thereby discrediting the

government’s case generally and Thornton in par-

ticular.’ The attempts to discredit Thornton through

cross-examination of other witnesses was plainly a

proper defense strategy; beyond making a general

assertion of prejudice, the petition fails to show how

® The cross-examination of Drug Enforcement Administra-

tion Agent Lionel Stewart (VII Tr. 14-15), for example, re-

lated to earlier cross-examination of Thornton (II Tr. 645-

652), which focused on the agreement made with Thornton in

exchange for his testimony.

14

this strategy was in any way contrary to Sharon

Arrington’s interest. In any event, it has nothing to

do with the fact that the Arringtons were represented

by a single attorney.

c. Petitioner Leslie Atkinson complains (Pet. 34-

36) that he was prejudiced by his joint representa-

tion with petitioner McArthur. The basis of this claim

is simply that Atkinson neither testified nor presented

a defense at trial, while McArthur chose to testify in

his own behalf. The petition suggests that Atkinson

could have pursued the defense that he had divorced

himself from illegal narcotics operations following his

drug conviction in 1975, but that his attorney declined

to pursue that defense. The attorney did so, it is

claimed, in order to avoid the possibility of implicat-

ing McArthur in Thornton’s later smuggling ven-

tures. This claim is purely speculative and finds no

support in the record.

The far more reasonable explanation of Atkinson’s

failure to testify stems from the fact that Atkin-

son would have been an extraordinarily vulnerable

witness in light of his nolo contendere plea and con-

viction for drug smuggling activities. The fact of

the matter is that the evidence against petitioner

Atkinson was so overwhelming that his only hope for

acquittal lay in a frontal assault on the credibility of

each of the government’s witnesses, a tack that his

lawyer adopted, along with the other defense counsel

in this case. The fact that this approach proved fruit-

16

less has less to do with any possibility of conflict than

with the strength of the government’s case against

him. To the extent that petitioner Atkinson’s com-

plaint is that his counsel did not adopt the most prom-

ising trial strategy, the First Circuit has provided an

apt answer in a similar joint representation context:

“The possibility here that another approach might

have been used, with better results for the defendant,

exists in every case and is very far indeed from

making out a deprivation of constitutional right.”

United States v. Foster, 469 F.2d 1, 4 (C.A. 1).

d. Petitioner James McArthur argues (Pet. 37-

88) that his defense was prejudiced by virtue of his

joint representation with petitioner Atkinson. He

asserts, first, that his attorney was primarily con-

cerned with representing Atkinson and that his de-

fense “and other possidle courses of action were lim-

ited” (Pet. 37). Second, he claims that “through

association by common counsel, McArthur was in-

extricably bound to the evidence, fortunes and fate

of Atkinson” (Pet. 37-38) even though the evidence

against him was less imposing than that against

Atkinson. In fact, however, McArthur and Atkinson

were linked to the same facet of the importation

operation through the testimony of Herbert Houseton

(VI Tr. 15-85). When Houseton related that Atkin-

son had urged him to replace McArthur as a key

member of the venture—thus directly implicating

16

both—the only plausible defense available to both

petitioners was precisely the same: to establish that

Houseton’s account was fabricated or inaccurate.

McArthur’s reliance on United States ex rel. Horta

v. DeYoung, 523 F.2d 807 (C.A. 3), is misplaced.

In that case, the court noted that joint counsel for all

three defendants had failed to pursue a plausible de-

fense strategy for one defendant that would have

involved the risk of further incriminating the other

two. The court therefore found that there was possi-

ble prejudice resulting from the joint representation.

McArthur’s posture is closer to that of the defendants

in United States v. Mandell, 525 F.2d 671, 677-678

(C.A. 7), certiorari denied, 423 U.S. 1049, where

although there may have existed differing shades of

culpability, there was no suggestion that the differ-

ence resulted in inconsistency in the defenses that

were or could have been put forth. McArthur fails

to indicate how separate representation might have

made a difference in his choice of defense strategy or

how his position could otherwise have been separated

to his advantage from that of Atkinson.” Absent

such a showing, he is entitled to no relief.

7 McArthur contends (Pet. 38) this his attorney’s cross-

examination of certain witnesses was improper. Significantly,

he does not contend that because of the joint representation his

attorney failed to cross-examine witnesses who incriminated

him, as was the case in Craig v. United States, 217 F.2d 355,

359 (C.A. 6). Instead, he argues that his attorney cross-

examined witnesses who incriminated only Atkinson, and

whom separate counsel would not have found it necessary to

17

e. Petitioners William Thomas, Rudolph Jennings,

and William Brown were represented at trial by the

same attorney. Thomas failed to take the witness

stand in his own behalf, and the other two now urge .

(Pet. 38-39) that adequate presentation of their de-

fense was “severely constrained” by Thomas’s failure

to testify.

Petitioners Jennings and Brown claim (Pet. 39)

that they were prejudiced by their attorney’s failure

to call petitioner Thomas as a witness to support their

theories of defense. Even if Thomas had been sepa-

rately represented, however, the other two defendants

could not have called him to the stand. A defendant

cannot be compelled to testify by a co-defendant any

more than he can by the government. See United

States v. Tuley, 546 F.2d 1264, 1268-1269 n.7 (C.A.

5), certiorari denied, No. 76-6380, October 3, 1977;

United States v. Harris, 542 F.2d 1283, 1298 (C.A.

7, certiorari denied sub nom. Clay v. United States,

430 U.S. 934; United States v. Johnson, 488 F.2d

1206, 1211 (C.A. 1); Bowles v. United States, 439

F.2d 536 (C.A.D.C.), certiorari denied, 401 U.S. 995.

Thomas’s unavailability as a witness was thus not

attributable to the joint representation at all.”

cross-examine at all. Yet he does not in any way suggest how

this cross-examination prejudiced his defense, entitling him

to a new trial.

1 Petitioners appear to concede (Pet. 39) that it would

have been damaging to Thomas’s defense for him to take the

stand. In any event, there is no contention that he might have

aided his cause by testifying, and that a separate attorney

might have advised him to take the stand.

18

f. Finally, petitioner Monroe Martin, who was

jointly represented with defendant Charles Gillis,

contends (Pet. 39-40) that he was prejudiced because

Gillis was not cross-examined to corroborate Martin’s

denial that he agreed with Patterson and Atkinson to

mail narcotics labeled as military cargo to the United

States. Gillis was not cross-examined on that issue

simply because he was not involved in that operation.

The scheme, which was never effectuated, centered

around the activities of petitioner Martin and co-

defendant Patterson at military mail facilities in

Thailand and the United States.

In sum, petitioners have failed to show that the

joint representations in this case led to any prejudi-

cial conflicts of interest on the part of any of their

attorneys. There was no divergence in defense strate-

gies by any of the defendants, nor have petitioners

suggested any way in which a conflicting theory of

defense might have helped any of them.”

2. Petitioners’ alternate contention is that failure

of the trial court to inquire sua sponte into the possi-

bility of prejudice constituted reversible error (Pet.

27-32). There is, as petitioners assert, a divergence

among the courts of appeals regarding the duty of the

trial court to ascertain whether a conflict of interest

12 Because the court of appeals found no indication of preju-

dice in the joint representations, it did not have to address

the question of which side bears the burden of proof on the

issue of prejudice (Pet. 40-42). For the same reason, that

issue is not appropriate for resolution here.

exists in cases of multiple representation, to advise

the defendants of the risks associated with such a

defense arrangement, and, if necessary, to obtain a

knowing and intelligent waiver of the defendants’

right to separate counsel. See Holloway v. Arkansas,

No. 76-5856, decided April 3, 1978, slip op. 8. As we

have stated in our brief in opposition in Hurst v.

United States, supra (pp. 6-9), we believe such judi-

cial inquiry has substantial value as a prophylactic

measure. Yet the absence of such an inquiry does not

automatically entitle the defendants to a reversal of

their convictions. Reversal is justified only where ac-

tual prejudice is shown. As we have discussed above,

no such prejudice resulted in this case. Accordingly,

the decision of the court of appeals was correct, and

further review is unwarranted.” |

18 Even if a requirement of pre-trial inquiry in every case

should be imposed in the exercise of the supervisory powers of

the federal courts, it should be done prospectively. See United

States v. Foster, supra, 469 F.2d at 5. Thus, in the absence of

a showing of prejudice, petitioners here should not be granted

a new trial in any event.

20

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

CHRISTIAN F’.. VISSERS,

Attorneys.

MAY 1978.

W ov. 8. covennmant paimtine orrice; 1976 264929 12