# Petition — Dinko v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1739%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1002

## Text

,

(— Spteme Cour,

PILED

r
In The |

/ SEP 19 1978

Supreme Court of the Hrited—Btartew« cucen

—_o—

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

Leen ee

TABLE OF CONTENTS
Page
aia GA ec 0 ape When 6 on be kee wae dunia 2
: PL SA cea Sarah a dcenae uddscag dedcedetcngecss 2
ED ocd at caabaaakcae makes sac bane vedas 2
E-E- T aidi xo ib hb eekb kids wesc ccnsancnss 2
ommend Gat GS TD: FOE ein kckcccccccccvesecavess 5
SEE: 9 A duivulGeNcbeteehan eenabeeescabhesensioan 10
TABLE OF CITATIONS
s

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:
21 U.S.C. $B4i(al) ...--ceececccccccccsccccvcvscvcees m2
BP A SI Nie Wien ee eed desdie ecbbencnteesouadas 2
| mS oe | erry rer eee reper Tyee ere rT 2
United States Constitution Cited:
Pee PEE 5.55 oa Go cdhhce che sis heen eucsbeeees ahs 2
TT FN. sis k's up Sb exdae ede vedas viene tars 5

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

COGRE. Gar TR TOE hs hh ah kn hee ewes ss dorease Sa

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1739%3A1. Public record. Not legal advice.