Petition — Dinko v. United States

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In The |

/ SEP 19 1978

Supreme Court of the Hrited—Btartew« cucen

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October Term, 1978

No. ie. s °

78-469

PATRICIA DINKO,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

IRA LEITEL and

DAVID JAROSLAWICZ

Attorneys for Petitioner

2 Lafayette Street

New York, New York 10007

(212) 227-0030

IRA LEITEL

CAROL MELLOR

On the Petition

LUTZ APPELLATE PRINTERS, INC.

1324 : , ES

Law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

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TABLE OF CONTENTS

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TABLE OF CITATIONS

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Cases Cited:

FP Date

Holloway v. Arkansas, __. U.S. —__, 55 L.Ed. 2d 426 (1978). 8

Morgan v. United States, 396 F.2d 110 (2d Cir. 1968) .... 9

Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976) ..4,5,6,7

United States v. Carrigan, 543 F.2d 1053 (2d Cir. 1976) .. 8, 9

United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973) .... 9

United States v. Donahue, 560 F.2d 1039 (2d Cir. 1977) .. 8

United States v. Lawkin, 568 F.2d 98 (8th Cir. 1977) .... 8

United States v. Levy, 577 F.2d 200 (3rd Cir. 1978) ...... 8

ii

Contents

Page

Statutes Cited:

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United States Constitution Cited:

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APPENDIX

Judgment of the United States Court of Appeals for the

PO POT PCO COT CET EST TUTE la

Order on Petition for Rehearing ........cccccccccccceds 3a

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Supreme Court of the United States

—~@ -

October Term, 1978

No.

PATRICIA DINKO,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

To the Honorable, the Chief Justice of the United States

and the Associate Justices of the United States Supreme

Court.

Petitioner, Patricia Dinko, respectfully requests that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit which affirmed a

judgment of the United States District Court for the Eastern

District of New York convicting her of the crimes of distributing

a controlled substance under 21 U.S.C. §841(a)(1) and

conspiracy to do so (21 U.S.C. $846), after trial before

Costantino, J., and a jury.

2

OPINION BELOW

The Court of Appeals affirmed the judgment of the district

court in open court in an oral opinion. A petition for rehearing

with suggestion for rehearing en banc was denied, with United

States Circuit Judge Oakes dissenting from the denial of re-

hearing en banc.

JURISDICTION

The order of the Court of Appeals denying rehearing was

entered on July 11, 1978.

An application for an extension of time within which to file

this petition was made by other counsel, and was denied.

Petitioner was informed of this denial on August 7, 1978; she

retained and informed her present counsel of the denial on

August 9, 1978.

The jurisdiction of the Court is invoked under 21 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. What is the proper, constitutional standard upon which

to measure the performance of an attorney against a claim of

denial of effective assistance of counsel?

2. What is the proper scope and nature of the affirmative

duty of the trial judge to assure that criminal defendants are not

deprived of their right to effective assistance of counsel by joint

representation?

STATEMENT OF THE CASE

Patricia Dinko, and her husband and co-defendant, were

charged on June 7, 1976, in a two-count indictment filed in the

United States District Court, Eastern District of New York, with

ies

3

one count of distributing a controlled substance, under 21

U.S.C. §841(a)(1) and one count of conspiracy to violate that

section under 21 U.S.C. §846.

On the date set for trial, June 13, 1977, one attorney,

Thomas Manning, Esq., with offices in New York, New York,

retained by and appearing on behalf of petitioner stated to the

court that he was representing Patricia Dinko, the petitioner.

Another attorney, Salvatore Quagliata, Esq., with offices in

Queens, New York, retained supposedly to represent her co-

defendant-husband, stated to the court that he was representing

Andrew Dinko, the petitioner’s husband.

Patricia Dinko’s purported attorney, although present in

the courtroom throughout the trial, never stated another word

on the record! He never spoke to the jury, or to the court; never

made an objection to testimony, never questioned a witness; nor

did he participate in any other manner in the trial below.

Instead, the other attorney, who had stated to the court that he

represented the co-defendant, and who filed an appearance for

only Andrew Dinko, conducted the attempted “joint defense” of

both petitioner and her co-defendant. (This was done without

the making of any motions either prior to trial, or following the

jury verdict. Although electronic surveillance was employed in

the case, no motions were made with respect to this issue either.)

In spite of the fact that Mr. Manning appeared for and

stated on the record that he represented the petitioner. it is

apparent from as early as counsel’s opening remarks to the jury,

that Mr. Quagliata was conducting the defense for both

defendants. The trial court, however, at no time made inquiry

into the circumstances surrounding this “joint representation or

defense,” but rather, permitted the attorney for one defendant to

represent coth defendants. At no place in the record does it

appear that petitioner ever consented to relegate her defense to

her husband’s attorney; that she was ever informed by the trial

4

court of her right to or the advisability of having her counsel

conduct her defense; or that she was ever questioned as to

whether it was her intent to participate in a joint defense

conducted by her co-defendant’s attorney.

Point I of Petitioner’s Brief to the United States Court of

Appeals argued:

“THE DEFENDANTS WERE DEPRIVED OF

THEIR RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL BY VIRTUE OF

THEIR JOINT REPRESENTATION BY ONE

ATTORNEY.”

It was argued by petitioner that “it was error not to inquire into

and hold a hearing on the conflict issue” and that “the

Government cannot show that the defendants were not

prejudiced by the joint representation of them by one attorney.”

(Appellant’s Brief in the United States Court of Appeals at 19,

23).

The Government argued, in Point I of its brief that:

“The Dinkos were represented by separate

counsel.”

It was sulymitted that “under the circumstances, it is reasonable

to assume that Mr. Quagliata and Mr. Manning, after

consultation with the Dinkos, decided that each of their

respective client’s interests would best be served by presenting a

united front to the jury and thus elected to have only one lawyer

actively conduct the defense case.” (Brief for Appellee in the

United States Court of Appeals at 18-19).

Although there was no opinion in the circuit court, Judge

Oakes dissented from the denial of the petition for re-hearing en

banc, citing his dissent in Rickenbacker v. Warden, 550 F.2d 62

5

(2d Cir. 1976) in which he criticized the continued adherence by

the Second Judicial Circuit to the “mockery of justice” standard

by which to measure a claim of denial of the right to the

effective assistance of counsel.

REASONS FOR GRANTING THE WRIT

The fundamental and important right to effective assistance

of counsel, as guaranteed by the Fifth and Sixth Amendments to

the United States Constitution, has been denied to petitioner.

This denial of effective assistance of counsel is found in three

separate aspects of the record.

First, although there was an attorney who entered an

appearance on behalf of Mrs. Dinko, he did not participate in

any manner in the trial. For all intents and purposes, petitioner

was not represented by him but was instead represented by her

co-defendant’s attorney. The co-defendant’s attorney was the

one who, purporting to speak for both defendants, opened to the ,

jury, conducted the cross-examination, examined all witnesses

and summed up to the jury.

Second, there was, therefore, joint representation of

petitioner and her co-defendant by one attorney without any

inquiry by the trial court to ascertain the intelligence of the

choice to proceed with one attorney.

Third, that attorney failed to measure up to the minimum

standards of competency against which a claim of denial of

effective representation by counsel should be measured.

If this Court were to find, after a full review of the facts

herein, that petitioner was represented by independent counsel

from that who represented her co-defendant, then the

performance of her attorney, Mr. Manning, must be weighed

against the standards demanded by the United States

Constitution for effective assistance of counsel.

6

There is a clear conflict among the circuits as to the

definition of the proper standard for effective assistance of

counsel. The Second Circuit adheres to the so-called “mockery

of justice” standard, Rickenbacker v. Warden, 550 F.2d 62 (2d

Cir. 1976). The views of the individual circuits, and this Court

have been stated by Circuit Judge Smith to be as follows:

“The District of Columbia Circuit... has now

said that the test is whether the defendant had

‘reasonably competent assistance of an attorney

acting as his diligent conscientious advocate.’

United States v. DeCoster, 159 U.S. App. D.C.

326, 487 F.2d 1197, 1202 (1973). The Third

Circuit says ‘the standard of adequacy of legal

services as in other professions is the exercise of

the customary skill and knowledge which

normally prevails at the time and place.’ Moore

v. United States, 432 F.2d 730, 736 (3d Cir. 1970)

(en banc). The Fifth Circuit has said the test is

having ‘counsel reasonably likely to render and

rendering reasonably effective assistance.’ United

States v. Fessel, 531 F.2d 1275, 1278 (Sth Cir.

1976). The Sixth Circuit has also adopted this

standard. United States v. Toney, 527 F.2d 716,

720 (6th Cir. 1975). The Seventh Circuit has said

that the attorney's performance must meet ‘a

minimum professional standard.’ United States

ex. rel. Williams v. Twomey, 510 F.2d 634, 640

(7th Cir.), cert. denied sub nom, Sielaff,

Corrections Director v. Williams, 423 U.S. 876,

96 S. Ct. 148, 46, LEd. 2d 109 (1975). The Eighth

Circuit has said ‘the standard would be to test for

the degree of competence prevailing among those

licensed to practice before the bar.’ Johnson v.

United States, 506 F.2d 640, 646 (8th Cir.), cert.

denied, 420 U.S. 978, 95 S. Ct. 1404, 43 L.Ed. 2d

659 (1974).

7

In the context of cases where a defendant

claims he pleaded guilty because he had

incompetent counsel, the Supreme Court has

held that the defendant must show that his

attorney’s advice was ‘outside the range of

competence demanded of attorneys in criminal

cases.” Tollett v. Henderson, 411 U.S. 258, 268,

93 S. Ct. 1602, 1609, 36 L.Ed. 2d 235 (1973),

quoting McMann v. Richardson, 397 U.S. 759,

771, 90 S. Ct. 1441, 25 L.Ed. 2d 763 (1970).”

Rickenbacker v. Warden, supra, at 65-66 (2d Cir.

1976).

This case then presents an opportunity for this Court to

resolve these conflicts and set forth a uniform and proper

standard against which claims of ineffective assistance of counsel

should be measured.

A purported defense by a sphinx-like, mute attorney, who

failed to conduct any defense, or even speak for his client is a

“mockery of justice”, and additionally, fails to meet the standard

of “reasonable competency.”

The Government below adopted the position that Patricia

Dinko was indeed represented by Mr. Manning, and that she

was not represented by Andrew Dinko’s attorney, Mr.

Quagliata. It was argued that the reason for Mr. Manning

standing mute during the entire trial “was apparently a strategic

and tactical defense decision.” (Brief for Appellee at 18).

If this be the case, even though there is not a word in the

record evidencing this assumption, there can be no doubt that

Patricia Dinko was denied her constitutional right to effective

assistance of counsel.

An attorney cannot simply abdicate his responsibility and

satisfy his duty to his client by subsuming, unreservedly, his

client’s interests to those of another attorney's client. Although

two attorneys were seated at the defense table, this does not, in

and of itself, require a finding of separate counsel. The inquiry

must be made as to whether the representation was, in actuality,

separate. Cf., United States v. Donahue, 560 F.2d 1039 (Ist Cir.

1977).

Dual representation “is fraught with risk of conflict and

should be approached with caution by the parties and by

counsel”. United States v. Lawkin, 568 F.2d 98, 101 (8th Cir.

1977).

. Last term, this Court noted the existence of a conflict

among the circuits as to how strong a showing of conflict must

be made, or how certain the reviewing court must be that the

asserted conflict existed, before it will conclude that the

defendants were deprived of their right to effective assistance of

counsel. Holloway v. Arkansas, ___ U.S. ~~, 55 L.Ed. 2d

426, 434 (1978).

Although determining that reversal is automatic “whenever

a trial court improperly requires joint representation over timely

objection,” /d. at 437, this court left unresolved by Holloway the

additional clear conflict among the circuits:

“with respect to the scope and nature of the

affirmative duty of the trial judge to assure that

defendants are not deprived of their right to the

effective assistance of counsel by joint

representation of conflicting interests.” Holloway

v. Arkansas, supra, 55 L.Ed. 2d at 434.

The trial court below made no attempt whatever to

ascertain whether the petitioner chose her counsel

“intelligently ... with knowledge of any possible conflict,”

United States v. Carrigan, 543 F.2d 1053, 1057 (2d Cir. 1976);

nor was inquiry made as to whether petitioner intended a joint

defense by her co-defendant’s attorney with knowledge of the

dangers and consequences inherent therein. United States v.

Levy, 577 F.2d 200, 210-211 (3rd Cir. 1978).

9

The conflict between the interests of the defendants herein

should liave been thrust home to the trial court at the moment

the one active defense counsel announced that each defendant

would take the stand and testify on his and her own behalf. Even

if that announcement escaped the attention of the trial court, the

fact that only one defendant actually took the stand clearly

required the district court to make inquiry even under the most

lax test of the trial court’s obligations. As Chief Judge Lumbard

stated:

“And if, where two defendants are represented by

the same attorney, one defendant elects to take

the stand and the other chooses not to, the

possible prejudice in the eyes of the jury to the

defendant who does not take the stand is almost

inescapable.” Morgan v. United States, 396 F.2d

110, 114 (2d Cir. 1968).

Although the prejudice to the testifying defendant,

petitioner herein, “is not as readily apparant, (it) is nonetheless

real and requires, in our view, a reversal! of his conviction as

well... .” United States v. Carrigan, 543 F.2d 1053, 1057 (2d

Cir. 1976); United States v. DeBerry, 487 F.2d 448, 453 (2d Cir.

> 1973).

Finally, the performance of the attorney who conducted the

defense at the trial must be measured to ascertain whether the

petitioner received effective assistance of counsel. Once again, it

is clear that the attorney's performance does not measure up to

any “competency” standard. The attorney made no pre-trial

motions — discovery, suppression or otherwise. He failed to

move for judgment of acquittal at the end of the Government's

case, nor did he poll the jury at the rendition of the verdicts. He

failed to inform ihe trial court of the potential conflict when he

realized that only one defendant would testify and he failed,

without explanation, to keep his promise to the jury that both

defendants would testify. These failures to avail himself of some

10

of the most elemental procedures of criminal advocacy should be

-aeasured against a uniform standard applicable to all

defendants in every federal district court.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to place in harmony the conflicting rules of the various circuits

as to the standard to be applied with respect to the adequacy of

counsel in criminal cases, and the duty of the trial court to

assure that criminal defendants are not deprived of their right to

the effective assistance of counsel by joint representation.

Respectfully submitted,

IRA LEITEL

DAVID JAROSLAWICZ

Attorneys for Petitioner

IRA LEITEL

CAROL MELLOR

On the Petition

la

APPENDIX

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the

United States Courthouse in the City of New

York, on the seventeenth day of January, One

thousand nine hundred and seventy-eight.

PRESENT: HON. LEONARD P. MOORE

HON. J. JOSEPH SMITH

HON. WALTER R. MANSFIELD,

Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

V.

ANDREW DINKO, a/k/a Kelley, PATRICIA DINKO, a/k/a

Patricia Mushington, JOSEPH BOYD, RAYMOND FILES,

a/k/a Leroy Files, a/k/a Coco,

Defendants,

ANDREW DINKO, a/k/a Kelley, PATRICIA DINKO, a/k/a

Patricia Mushington,

Defendants-A ppellants.

2a

Judgment

77-1399

77-1400.

Appeal from the United States District Court for the

District of Eastern New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District of

New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgments of said

District Court be and they hereby are affirmed.

A. DANIEL FUSARO,

Clerk

By ARTHUR HELLER,

Deputy Clerk

3a

ORDER ON PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT.

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at

the United States Court House, in the City of

New York, on the eleventh day of July, one

thousand nine hundred and seventy-eight.

PRESENT: HONORABLE WALTER R. MANSFIELD

HONORABLE J. JOSEPH SMITH

HONORABLE LEONARD P. MOORE

Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ANDREW DINKO, PATRICIA DINKO,

Defendants-A ppellants.

77-1399

77-1400.

A petition for a rehearing having been filed herein by

counsel for the appellants

4a

Order on Petition for Rehearing

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

A. DANIEL FUSARO,

Clerk

Sa

ORDER ON REHEARING EN BANC

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT.

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at

the United States Court House, in the City of

New York, on the eleventh day of July, one

thousand nine hundred and seventy-eight.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

ANDREW DINKO, PATRICIA DINKO,

Defendants-A ppellants.

77-1399

77-1400.

A petition for rehearing containing a suggestion that the

action be reheard en banc having been filed herein by counsel for

the appellants Andrew Dinko and Patricia Dinko, and a poll of

the judges in regular active service having been taken and there

being no majority in favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

Judge Oakes dissents from the denial of rehearing en banc

on the basis of his dissenting opinion in Rickenbacker v.

Warden, 550 F. 2d 62, 67 (1977).

IRVING R. KAUFMAN,

Chief Judge