Petition — Mitchell v. United States

Supreme Court, U.

FILED

SEP 90 1978

78-489

1. dt ee aoe & On

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

WILLIAM PERNAR MITCHELL, a/k/a/ BILL

MITCHELL, and HWA SIM "BOBBI" MITCHELL,

PETITIONERS

Ve

UNITED STATES OF

AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM PERNAR MITCHELL

HWA SIM MITCHELL

>. GO. Bow i2324

Portland, Oregon 97219

JAMES R. MOORE

United States Attorney

1012 U. S. Courthouse

Seattle, Washington 98104

September 18, 1978

OPINION BELOW ..cccccccccccccvccccves

PUMEDUEC ERM ccc ccc asc scotcecececccces

QUESTIONS PRESENTED........ Terre re yy

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED........ eeesesecos

Samamene GF TEE CARR. cc ccc scecveccce

DECISION OF THE COURT OF

APPEALS..... ceceece a ee ee

REASONS FOR GRANTING THE

eee ee a ee ece

I. THE NINTH CIRCUIT's

HOLDING DIVERGES FROM

OTHER CIRCUITS REGARD-

ING APPLICATION OF THE

MARITAL PRIVILEGE TO

STATEMENTS OF AN

ALLEGED CO-CONSPIRATOR

AND IS CONTRARY TO THE

SUPREME COURT'S RULING.....

II. THE SUPREME COURT SHOULD

SET STANDARDS FOR MEA-

SURING EFFECTIVE ASSIS-

TANCE OF COUNSEL WHEN

ONE ATTORNEY REPRESENTS

MORE THAN ONE ALLEGED

CO-CONSPIRATOR AT THE

SAME TRIAL.......---- ecccece

A. WILLIAM MITCHELL was

deprived of effective

assistance of counsel

by his attorney's

failure to move to

sever his trial from

that of his alleged

co-conspirators........

13

13

22

ii

B. Defense counsel's

failure to explore

the potential con-

flicts of multiple

representation and

to recommend separate

attorneys constituted

ineffective assis-

CONCLUSION... ccc ccccccccccccccsescces

APPENDIX... cccccccccccesccccevccccese

Baker v. Wainwright,

Gan Osan 255 (oem Cie. STO) vc ccevi

Case v. North Carolina,

3L5 F.20 743 (48H Cir. 1963) ..ccses

Glasser v. United States,

eae Se

315 U.S. 60, 62 S. Ct. 457,

86 L. Ed. 680 (1942)......--..-.-- 29,

Coles v. Peyton,

Jue Pian a2ae (EGR Cif. LISS). ccces

Hawkins v. United States,

356 U.S. 74, 79 8. Ct. 136,

3 L.Ed. 2d 125 (1958)... cccee 13, 14,

Ivey v. United States,

344 F.2d 770 (9th Cir. 1965).......

Kotteakos v. United States,

328 U.8- 750, 66 S. CS. 1239,

90 L. Ed. 1557 (1946).

ee

1ii

Lollar v. United States,

376 F.2d 243 (D.C. Cir. 1967)......

MacKenna v. Ellis,

oe Oe” a | ere ee ee

McQueen v. Swenson,

498 F.2d 207 (8th Cir. 1974).......

Moore v. Urited States,

ee Ie ee Pe Ee ws a hts eb hve 24,

Peek v. United States,

S2h Fe4G 934 (Stn Cir. 1963),

cert. denied, 376 U.S. 954....... rem

ee

Risher v. State,

S23 £20 Gan (ALOORA, 1976) cc voeses

nited States v. Carrigan,

S42 Tsae bees (ae COS. 1976). cvs. cs

United States v. Christopher,

488 F.2d 849 (9th Cir. 1973).......

United States v. Cougis,

374.F.2¢0 758 (7th Cir. 1967).......

United States v. DeCoster,

487 F.2d 1197 (D.C. Cir. 1973).....

United States v. Doughty,

460 F.2d 1360 (/th Cir. 1972)......

United States v. Elksnis,

Be” Sey Rt 8 oe.) eee

United States v. Fields,

458 F.2d 1194 (3d Cir. 1972),

cere. Gepiec, 412 U.S. S2Tecccsvecser

33

24

23

25

26

26

36

34

33

25

18

iv

United States v. Figueroa-Paz,

466 F.2d 1055 (Sth Cie. 2972)esscns 27

United States v. Foster,

465 F.2d T (ist Cie. 1977)...4555 36

United States v. Hines,

476 £.26 229 (38 Cita Borers 27

United States v. Kahn,

~ 471 F.2d 191 (7th Cir. 1972),

cert. denied, 412i. CG... Feeds aena ee 16

United States vs Della

349 F.2d 720 (2d Cir. 1965),

cert. denied, 384 U.S. 947......... 29

United States v. Mackiewicz,

401 F.2d 219 (2d Cir. 1968)..18, 19, 20

United States v. Mahar,

~ 550 F.2d 1005 (Sth Cir. 1977)....6; 38

United States v. Mari,

526 F.20 ll? (2@ Cie. 1975) <.38s 2s oe

United States v. Mardian,

546 F.2d 973 (D.C. Cir. 1976)28, 29, 30

United § States v. Pugliese,

“153 P.26 497 Cla Cit. S985) cc ueus ale En

United States v. Ragland,

375 ¥.20 471 (26 Cate 2068) 16

United States v. Williams,

447 F.2d 894 (5th Cir. 1971)....... 20

United States ex rel, Hart v. Davenport,

478 F.2d 203 (3d Cie. 197spesesanus 33

United States v. Van Drunen,

501 F.2d 1393 (7th Cir. 1974)...... 17

Wyatt v. United States,

S62 0.5. S25, 80 5. Ct. 901,

4 L.Ed.2d 931 (1960).........2.---.-- ,

CONSTITUTIONAL PROVISIONS

United States Constitution,

er rE |. Coc e eect ee eee eset 3, 4

LAW REVIEWS CITED

Finer, Ineffective Assistance of

Counsel, 58 Cornell L. Rev. 1977

Pt chk eee phe tacbessi ee ececocecvose 25

Gard, Ineffective Assistance of Counsel--

Standards and Remedies, 41 Missouri

L. Rev. 483 (1976)....------eeeeees 24

Geer, Representation of Multiple

Criminal Defendants: Conflicts

of the Professional Responsibilities

of the Defense Attorney, 62 Minn.

i ab th Wet ys ) eee 38, 39

REFERENCE CITED

ABA, Code of Professional Responsipi tity.

Se Sakae GA, (8) and (C).....-6.

ABA Standards: The Defense Function,

eS Se eb el ys) ee 36

vi

RULES CITED

Federal Rules of Criminal

Procedure (18 U.S.C.), Rule 14 wees .

STATUTES

fee ee tis ee eee eee ee ee EEO Te 3,

is U.8.C. ECE ee OES eee ee 4,

18 U.S.C. eS ae eer ee ee ee 4, 6,

Se. Dateless BEEPEs 65 sb Se oe thro e Seas eee

10

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1978

ee

WILLIAM PERNAR MITCHELL, a/k/a BILL

MITCHELL, and HWA SIM “BOBBI" MITCHELL

PETITIONERS

Vv.

UNITED STATES OF

AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Wiiliam P. Mitchell

and Hwa Sim "Bobbi" Mitchell pray that a

writ of certiorari issue to review the

Opinion and judgment of the United States

Court of Appeals for the Ninth Circuit

entered March 9, 1978, which affirmed the

judgment of the United States District

1

Court for the Western District of Wash- of actual knowledge to connect a husband

ington. to a conspiracy before his wife's tape-

OPINION BELOW 3 | recorded statements to FBI informants

The opinion of the Court of are admissable against him? 18 USC § 371.

Appeals has not been officially reported | 2. Petitioner William Mitchell

(see Appendix, infra). The petition for was tried jointly with his wife and two

rehearing and suggestion for rehearing Other defendants. The taped conversa-

in banc filed pro se were denied on tions of his wife constituted the primary

July 12, 1978. The mandate, which evidence against him. Was Petitioner

issued July 20, was recalled upon motion William Mitchell deprived of the effect-

of petitioner, and leave was ie on ive assistance of counsel by his attorney's

August 21, for an extension of time to failure to move to sever his trial from

file this Petition for Writ of Certiorari. that of the other three defendants?

JURISDICTION Sixth Amendment, United States Constitu-

The jurisdiction of this Court tion.

is invoked under 28 U.S.C. §1254. 3. Were Petitioners William

QUESTIONS PRESENTED | and Bobbi Mitchell, charged with con-

l. William and Bobbi Mitchell, spiracy, deprived of effective assistance

husband and wife, were indicted with others of counsel by their attorney's failure

for conspiring to violate the Mann Act. to disclose the possible conflicts arising

Does the marital privilege against adverse from his joint representation of husband

testimony by a spouse require a showing and wife at trial and on appeal? Sixth

Amendment,

United States Constitution.

CONSTITUTIONAL PROVISION

AND STATUTES INVOLVED

The Sixth Amendment to the

United States Constitution provides, in

pertinent part:

"In all criminal prosecutions,

the accused shall enjoy the

right .. . to have the Assist-

ance of Counsel for his defense."

18 U.S.C. §2421 provides in

part:

"Whoever knowingly transports

in interstate or foreign

commerce, . . . any woman or

girl for the purpose of pro-

stitution or debauchery, or

for any other immoral purpose,

or with the intent and purpose

to induce, entice, or compel

such woman or girl to become a

prostitute or to give herself

up to debauchery, or to engage

in any other immoral practice

- » « Shall be guilty of an

offense against the United

States.”

18 U.S.C. §2422 provides in

part:

"Whoever knowingly pursuades,

induces, entices, or coerces

any woman or girl to go from

One place to another in inter-

5

state or foreign commerce, . .

for the purpose of prostitu-

tion or debauchery, or for any

other immoral purpose, or with

the intent and purpose on the

part of such person that such

womon or girl shall engage in

the practice of prostitution

or debauchery, or any other

immoral practice, whether with

or without her consent, and

thereby knowingly causes such

woman or girl to be carried or

transported as a passenger

upon the line or route of any

common carrier or carriers in

interstate or foreign commerce

- « - Shall be guilty of an

offense against the United

States."

18 U.S.C. §371 provides in

part:

"If two or more persons con-

Spire .. . to commit any

offense against the United

States .. . in any manner or

for any purpose, and one or

more of such persons do any

act to effect the object of

the conspiracy, each shall be

fined not more than $10,000 or

in prison not more than five

years, or both.”

Federal Rules of Criminal

Procedure, (18 U.S.C.) Rule 14

provides in part:

"If it appears that a defen-

dant .. . is prejudiced by a

joinder of offenses or of de-

fendants . . ., the court may

grant a severance of de-

fendants Or provide whatever

Other relief justice requires

STATEMENT OF THE CASE

Petitioners WILLIAM P. MITCHELL

and BOBBI MITCHELL were iubicved, along

with Mitchell's brother, Charles, and

Arnold Price, on October 19, 1976, for

conspiring to violate the Mann Act, 18

U.S.C. §§2421 and 2422. Charles Mitchell

and Arnold Price were indicted in 6 other

counts for actual violations of the

Act. Trial was held before The Honorable

Walter T. McGovern, commencing on Janu-

ary 17, 1977. On January 21, 1977, the

jury returned a verdict of guilty. Both

Petitioners filed timely notices of

appeal to the Ninth Circuit pursuant to

Federal Rules of Criminal Procedure and

were released on their personal recogni-

zance (R. 7, 165).

Wi aa

The evidence against Petitioner

WILLIAM P. MITCHELL consisted primarily

of two taped conversations between BOBBI

MITCHELL and two government informants

which occurred on August 13, 1976, after

the informants arrived in Anchorage,

Alaska (Tr. 325-330, 337-439). Other

taped conversations involving Charles

Mitchell, Arnold Price, and the two

informants, contained references to

WILLIAM P. MITCHELL's ownership and

operation of a massage parlor in

Ancourage, Alaska. Independent evidence

established that WILLIAM and BOBBI

MITCHELL jointly owned the massage

parlor and that WILLIAM MITCHELL signed

the paychecks of the parlor's employees

(Tr. 679, 689-791).

Prior to trial, Petitioner

WILLIAM MITCHELL moved to exclude the

taped conversations asserting the

common law marital privilege against

adverse testimony by his spouse.

(Tr. 14-19, 89-100). The trial judge

expressed his initial Opinion that the

evidence was indeed a violation of this

privilege (Tr. 93-97), but reserved

ruling and admitted the taped conversa-

tions on the second day of trial (Tr. 213).

Petitioner took exception to this ruling

and renewed his objection at the con-

clusion of the evidence in his motion

for acquittal (Tr. 801-802). Both the

court and the government recognized that

the wife's statements constituted the

crucial evidence against the husband

(Tr. 18).

The evidence against BOBBI

MITCHELL consisted of her statements to

the two informants and her admitted

Ownership and operation of the massage

parlor (Tr. 414).

WILLIAM MITCHELL was not a

party to any of the taped conversations.

re nee en

He had no part in inducing or in helping

to transport the informants to Anchorage,

nor was he accused of any such act.

Indeed, he was out of town when the

women arrived in Anchorage (Tr. 412).

The only overt act contained in the

indictment, with which WILLIAM MITCHELL

is impliedly charged, involved a tele-

phone conversation three days after the

women returned from Anchorage (R. 10).

The caller identified himself as "Bill

Ryan," a business associate of BOBBI's.

The evidence at trial was inconclusive,

however. The informant with whom "Bill

Ryan" spoke stated that she thought the

voice was that of Charles Mitchell

(Tr. 497, 547, 563).

Throughout the trial, defense

counsel structured their case on a

modified entrapment theory. According

to that theory, since both informants

had worked as prostitutes and had contacted

10

the authorities after Arnold Price had

suggested that he knew someone who might

be able to arrange their passage to

Alaska, the informants were not “persuaded,

induced, enticed, or coerced,” within

the meaning of 18 U.S.C. §2422 (e.g.,

Tr. 62, 68, 878). Petitioners' counsel

joined in this theory (Tr. 98). Of the

four alleged co-conspirators, only

Arnold Price took the stand in his own

behalf. Though Petitioners' attorney

made two references to calling WILLIAM

MITCHELL (Tr. 69, 667), at the close of

the Government's evidence, no defense

was mounted (Tr. 799).

DECISION OF THE

COURT OF APPEALS

On appeal, Petitioners raised

these contentions: (1) the recorded

conversations of BOBBI MITCHELL were

admitted into evidence against her

husband, WILLIAM MITCHELL, in contra-

11

vention of the marital privilege against

the compelled testimony of the spouse;

(2) the evidence was insufficient to

connect Petitioners to the conspiracy,

and, thus, all statements of alleged co-

conspirators were inadmissible as to them;

and (3) the trial court erred in instruct-

ing the jury concerning Alaskan prostitu-

tion laws.

The Court of Appeals, in an

unreported opinion by District Judge

Russell E. Smith (sitting by designation),

rejected Petitioners' arguments (Op. ll-

13).

The court found the tapes

admissible against WILLIAM MITCHELL on

the theory that BOBBI MITCHELL, in

making the statements, acted as an agent

for WILLIAM MITCHELL. The statements

were found to be made in the course of

employment and were thus admissible as

vicarious admissions of a principal.

12

This rule was held to apply in both civil

and criminal cases. The court cited no

authority.

The court also concluded that

there was sufficient independent evi-

dence to connect WILLIAM MITCHELL to the

conspiracy. This evidence consisted of

MITCHELL's own statements that he was

BOBBI MITCHELL's husband, that he had

purchased the massage parlor and was in

the massage parlor business, records of

the joint bank account and checks signed

by WILLIAM MITCHELL payable to four

female employees of the massage parlor

(Op. 14).

Following entry of the opinion

on March 9, 1978, Petitioners requested,

and were granted, three extensions of

time in which to file, pro se, a petition

—- -_—-

for rehearing anc suggestion for re-

hearing en banc. At this point, Peti-

; Ci) aes

tioners first raisé€d the question of the

13

effectiveness of the assistance provided

by their joint counsel at trial and on

appeal. The court rejected the petition

on July 12, 1978.

REASONS FOR GRANTING

THE WRIT

I. THE NINTH CIRCUIT'S HOLDING DIVERGES

FROM OTHER CIRCUITS REGARDING APPLICA-

TION OF THE MARITAL PRIVILEGE TO

STATEMENTS OF AN ALLEGED CO-

CONSPIRATOR AND IS CONTRARY TO THE

SUPREME COURT'S RULING.

The question presented involves

the interplay of two bodies of law--those

rules pertaining to the admissibility of

the @eciarations of co-conspirators and

the common law principles embodied in the

marital privilege against compelled testi-

mony by the spouse. The marital testi-

monial sedwitege was specifically held

applicable to cases in federal courts in

a Mann Act case strikingly similar to

this one. Hawkins v. United States, 353

U.S. 74, 79 S. Ct. 139, 4 L.Ed.2d 125

(1958).

P.2d 735,

wife, who

14

The Court of Appeals, at 249

737, ruled that defendant's

had transported the prosecuting

witness from Oklahoma to Arkansas, was

competent

appeal to

to testify against him. On

the Supreme Court, the case was

reversed for contravention of the marital

privilege.

nature of

After noting the long-standing

the privilege, the court stated:

"(t)he basic reason the law

has refused to pit wife against

husband or husband against

wife in a trial where life or

liberty is at stake was a

belief that such a policy was

necessary to foster family

peace, not only for the bene-

fit of husband, wife and

children, but for the benefit

of the public as well. Such a

belief has never been un-

reasonable and is not now."

356 0.8. at 77.

The marital privilege rests

on a policy of encouraging loyalty

between spouses and a recognition that

such loyalty often exists, and should

exist, even where one spouse has violated

SOOT ERNIE Te ee teN

15

the law. Because of the difficulty of

ascertaining the dynamics of each re-

lationship, the rule prevents judicial

inquiry into each separate situation by

barring testimony except in exceptional

circumstances. See: Wyatt v. U.S.,

362 U.S. 525, 80 &.Ct. 901, 4 L.Ed.2d 931

(1970). *etitioners contend that this

policy is as strong today as it was when

Hawkins was decided. The decision in

this case flies in the face of Hawkins.

The Court of Appeals relied on

decisions in several circuits holding

that an exception exists to the marital

privilege where the statements of one

spouse are admissible under the co-

conspirator exception to the hearsay

rule. Petitioners do not concede that

such an exception is desirable or consistent

with the decision in Hawkins. Neverthe-

less, assuming arguendo that such an

exception is consistent with Hawkins

16

ye

A

where both spouses are "substantial

participants in patently illegal activity,"

United States v. Kahn, 471 F.2d 191, 192

(7th Cir. 1972), that exception is

inapplicable here. In the cases relied

on, the spouse against whom the other

spouse's statements were introduced was

shown. sy evidence of specific conduct,

to have had actual knowledge of the

illegal acts. No such showing was made

concerning WILLIAM MITCHELL'S conduct.

The only serious implication of his guilt

came in his wife's remarks to F.B.I.

informants. Where an interest as im-

portant as the marital privilege is at

stake, salle ai more than the "likelihood

of an illicit association" should be

required. U. S. v. Ragland, 375 F.2d

471, 477 (2d Cir. 1967).

In United States v. Kahn, 471

— ee ee ee

F.2d 191 (7th Cir. 1972), cert. denied,

-—-— Se oe

411 U.S. 986, the court found the marital

Oo. ee eae ee

17

communication privilege inapplicable

where a wiretap had intercepted conversa-

tions concerning gambling between husband

and wife. The conversation itself

established that both husband and wife

had actual knowledge of the criminal

venture.

In United States v. Van Drunen,

501 F.2d 1393 (7th Cir. 1974), defendant

was charged with transportation of illegal

aliens. The illegal aliens were his wife

(whom he married one month after indict-

ment) and her two children. Husband and

wife were indicted jointly in a second

count of illegal transportation of aliens.

Although the case limits the marital

privilege in language the court admitted

was dictum, 501 F.2d at 1397, the case is

not controlling, since the spouses were

not indicted as co-conspirators. C.f.,

United States v. Pugliese, 153 F.2d 497

———

(2d Cir. 1945).

18

In United States v. Doughty,

460 F.2d 1360 (7th Cir. 1972), the

husband was charged with aiding and

abetting his wife in wilfully and

Knowingly attempting to evade payment of

federal estate taxes. The facts of the

case make clear that both husband and

wife were involved in the actual conceil-

ment of nearly $22,000 taken'from the

home of a decedent.

"There is ample evidence in

defendants' admissions and the

false return to prove that

both Doughty and his wife in-

—- 2 -eee e —— —_——<—=—

tended to evade the tax due

-———

upon the unreported cash."

460 F.2d at 1362.

In United States v. Mackiewicz,

401 F.2d 219 (2d Cir. 1968), husband

and wife owned and managed jointly a

small grocery store and were charged

with tax evasion by understating their

receipts. Both defendants took care of

the books, though the husband prepared

OE Oe ee) et ere re < ome ore

a ae

.

- ee ee

19

all the joint returns. The court held

that the joint return and the admissions

of the husband to IRS agents were admis-

Sible against the wife. The court

relied on an agency relationship between

the spouses where the husband always acted

for both on tax matters. More importantly,

the husband did not actually testify to

the statements at trial. 401 F.2d at

225.

"This is not a case where the

prosecution called the husband

to the stand. If he had

testified under those circum-

stances, the common law rule

would have been violated.

Here, however, we are one step

removed from the actual testi-

mony. Therefore, there is no

chance that we might be re-

pulsed by a spouse actually

testifying against his mate

. . e for there is the conve-

nient buffer of the third

person actually making the

remarks." 401 F.2d at 225.

Mackiewicz, is distinguishable

—_---

from this case since the testimony here

20

is in fact that of the wife (tape record-

ings). It would circumvent the entire

privilege if the out-of-court statements

of a spouse could be recorded and sub-

stituted for actual testimony at trial.

U. S. v. Williams, 447 F.2d 894 (5th

Cir. 1971); Ivey v. United States, 344

F.2d 770 (Sth Cir. 1965).

A further distinction, crucial

here, is that in Mackiewicz, the indepen-

dent information (i.e., accounting

records) showed the wife had actual

knowledge of the fraudulent accounting.

In the case of the MITCHELLS, the

independent evidence showed only that

they jointly owned a massage parlor, a

legal business. The business records did

no more than establish an agency relation-

ship to the extent of operating the legal

establishment. *

eye

eR eS ee

Oe ee

ew ee

21

In United States v. Pugliese,

153 F. 497 (2d Cir. 1945), independent

witness testimony showed defendant hus-

band’s participation in the illegal sale

of alcohol. The court admitted his

wife's statements to revenue agents.

Insufficient independent evi-

dence was adduced by the Government to

support the introduction of BOBBI

MITCHELL's statements against her husband.

The business was lawfully licensed and

no acts of prostitution were shown to be

taking place on the premises. For this

reason, petition for certiorari should

be granted.

—— —_——

* At trial, WILLIAM MITCHELL's attorney

failed to put on any evidence to show his

actual involvement in the operation of

the massage parlor. In fact, though the

establishment is jointly owned, only

BOBBI MITCHELL is named on the operating

license. WILLIAM MITCHELL spent little

time there, mainly doing maintenance; he

spent most of his time with his real

estate holdings. He paid the bills because his

wife, of Korean extraction, reads, and writes English

poorly.

22

II. THE SUPREME COURT SHOULD SET STAN-

DARDS FOR MEASURING EFFECTIVE ASSIS-

REPRESONTS MORE THAN ONE ALLEGED

CO-CONSPIRATOR AT THE SAME TRIAL.

A. WILLIAM MITCHELL was deprived

,

attorney's failure to move to sever his

trial from that of his alleged co-

conspirators.

The Sixth Amendment to the

United States Constitution guarantees

every defendant in a criminal case the

effective assistance of counsel. The

Supreme Court, however, has not enunci-

ated any clear standard by which to guage

counsel's performance in the course of

his representation. Historically, coun-

sel's efforts must have been so perfunc-

tory as to render a trial a farce or

mockery of justice. A majority of the

circuit courts still adhere to this

standard. Peek v. U.S., 321 F.2d 934

ee oer lr or

EES AR ERNE BOE fen

sO

AR Be

23

(9th Cir. 1963), cert. denied, 376 U.S.

954. The Ninth Circuit has recently

changed to the "reasonably effective

assistance" standard, discussed infra.

United States v. Elksnis, 528 F.2d 236

(eh Cir. 1975).

"Stringent as the ‘mockery of

justice’ standard may seem, we

have never intended it to be

used as a shibboleth to avoid

a searching evaluation of pos-

sible constitutional violations;

nor has it been so used in this

circuit. It was not intended

that the ‘mockery of justice’

standard be taken literally,

but rather that it be employed

as an embodyment of the princi-

ple that a petitioner must

shoulder a heavy burden in

proving unfairness." McQueen

v. Swenson, 498 F.2d 207, 214

(8th Cir. 1974).

In recent years, the standard

has some under heavy criticism. Among

others, both Chief Justice Warren Burger

and D.C. Circuit Judge David Bazelon

have criticized the qualifications of a

24

substantial portion of the bar to prac-

tice criminal law. See Gard, "Ineffec-

tive Assistance of Counsel--Standards

and Remedies," 41 Missouri L. Rev. 483,

485 at n. 17-19 (1976). Attuned to these

criticisms, several circuits have re-

jected entirely the mockery of justice

standard. The Fifth Circuit stated in

MacKenna v. Ellis, 280 F.2d 592 (1960):

-_-—~— -— eee

"We interpret counsel to.mean

not errorless counsel, and not

counsel judged ineffective by

hindsight, but counsel reason-

ably likely to render and

rendering reasonably effective

assistance." 280 F.2d at 599

(emphasis in original).

The Third Circuit adopted a similar

standard in Moore v. United States, 432

F.2d 730 (1970):

"(T)he standard of adequacy of

legal services as in other

professions is the exercise of

the customary skill and know-

ledge which normally prevails

at the time and place." 432

F.2d at 736.

<p eo on

re eee rr Sues

SN ERT Or NR ne NNR I eee On

ee

a

25

4

That court went on to state that an

inquiry into the effectiveness of coun-

sel's assistance requires consideration

of what counsel fails to do as well as

what he does. 432 F.2d at 739. Both

the Fourth Circuit and the D.C. Circuit

have prescribed minimum guidelines for

effective assistance. Coles v. Peyton,

389 F.2d 224 (4th Cir. 1968); United

States v. DeCoster, 487 F.2d 1197 (D.C.

-———_ — =-

Cir. 1973).

At least one commentator has

argued that the standard should be even

sterner:

"The test of effective assis-

tance of counsel should be

whether counsel exhibited the

normal and customary degree of

skill possessed by attorneys

who are fairly skilled in the

criminal law and who have a

fair amount of experience at

the criminal bar. (Emphasis

in original.) Finer,

Ineffective Assistance of

Counsel, 58 Cornell L. Rev.

1977, 1080 (1973)."

26

At least one state court seems to have

adopted this standard. Risher v. State,

523 P.2d 421, 424-25 (Alaska, 1974).

Whatever the standard may be,

it is clear that in order to establish

ineffective assistance of counsel, a

petitioner must point to some specific

conduct which resulted in prejudice to

him. The degree to which prejudice must

be shown should depend on the facts of

each case. Peek v. United States, supra,

321 F.2d 934. Petitioners' counsel made

no motions before trial, other than an

Oral motion to suppress the taped conver-

Sations. Even in making this motion it

appears that counsel was unprepared to

argue it effectively (Tr. 14-18; 99).

Counsel did not seek to change venue nor

to interview witnesses. (Tr. 704.)

"Effective assistance does not

demand that every possible

motion be filed, but only

those having a solid founda-

PRED PRET ne eae

27

aaa.” 2. 8. ¥. Hines, 470

Fisae 2209, 204 (30 Cif. 1972).

Petitioner WILLIAM MITCHELL contends

that, given the vastly disproportionate

weight of the evidence, counsel should

have attempted to have his trial severed

from that of the other alleged co-

conspirators.

In United States v. Figueroa-

Paz, 468 F.2a 1055 (9th Cir. 1972), the

court stated:

"The mere joint trial of hus-

band and wife does not require

severence where, as here, the

government did not introduce

the statements of one to

incriminate the other." 468

F.2d 1057.

In this case, the Government

clearly indicated before trial that it

intended to introduce the tape recorded

conversations of BOBBI MITCHELL (Tr. 89-

99). Nevertheless, counsel made no

attempt to sever the trials.

28

In United States v. Fields,

458 F.2d 1194 (3d Cir. 1972), cert.

denied, 412 U.S. 927, one defendant

attempted to call the other defendant's

wife to testify about matters relevant

to charges against both detintants. The

husband moved for a severence. The

court permitted the testimony and in-

structed counsel that examination should

be limited to matters which did not

incriminate the husband. Since the

marital privilege applied, the Third

Circuit held that failure to sever was

plain error. 458 F. at 1199.

In United States v. Mardian,

546 F.2d 973 (D.C. Cir. 1976), the court

decided that defendant Mardian was

entitled to have his trial severed from

that of the co-conspirators. The court

noted the particular problems involved

in conspiracy cases including "the

29

liberal rules of evidence and the wide

latitude of accorded to the prosecu-

tion," Glasser v. United States, 315

U.S. 60, 76, 62 S. Ct. 457, 468, 86 L.

Ed. 680 (1942), and the "dangers of

transference of guilt" which require

that a court should use "every safeguard

to individualize each defendant in his

relation to the mass." Kotteakos v.

United States, 328 U.S. 750, 774, 773,

66 S. Ct. 1239, 1252, 90 L. Ed. 1557

(1946).

"Particularly where there is a

great disperaty in the weight

of the evidence, strongly

establishing the guilt of some

defendants, the danger persists

that the guilt will inproperly

"rub off' on the others.

United States v. Kelly, 349

F.2d 720, 756-759 (2d Cir.

1965), cert. denied, 384 U.S.

S47." 346 F.2a at $77.

In this case, as in Mardian,

WILLIAM MITCHELL was charged in the

. > . .

conspiracy count. Mardian was named in

30

Only five of 45 overt acts charged against

the conspiracy. MITCHELL was directly |

charged with only one of twelve overt

acts of conspiracy (ownership of the mas-

sage parlor--a questionable "act" at

best), and implicated in making a tele-

phone call to one of the informants after

the conspiracy had been frustrated. As

in Mardian, the evidence against the

other alleged co-conspirators was over-

whelming by comparison. The Government

so much as conceded this before trial

(Tr. 18). Much of the testimony and

proof related to events in which WILLIAM

MITCHELL took no active part. Clearly,

there was a danger here that the over-

whelming nature of the evidence against

the other alleged co-conspirators would

"rub off" on WILLIAM MITCHELL. Yet,

counsel made no attempt to safeguard

MITCHELL's rights at trial by moving to

31

sever.

Petitioner does not contend

that this evidence required severence as

a matter of law, but it does raise a

substantial likelihood that prejudice re-

sulted from the joinder. Yet, counsel

made no attempt to prevent this prejudice.

Petitioner asserts that this failure on

the part of his counsel constitutes

ineffective assistance.

B. Defense counsel's failure to

explore the potential conflicts of

multiple representation and to recommend

separate attorneys constituted ineffective

assistance.

Up until a week before trial,

Petitioner's attorney represented not

only WILLIAM and BOBBI MITCHELL, but

CHARLES MITCHELL as well. At that time,

the trial court brought potential con-

flicts of interest to the attention of

32

Petitioners' attorney and suggested that

CHARLES MITCHELL at least retain separate

counsel (Tr. 3-4). At no time, either

before, during or after trial, did

counsel discuss with Petitioners the

potential ramifications of their joint

defense. This conduct constituted

ineffective assistance of counsel.

See Glasser v. United States, 315 U.S.

ee ae ee ee

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

a conspiracy case:

"To determine the precise

degree of prejudice sustained

by Glasser as a result of the

clerk appointment of Stewart

as counsel for Kreske [co-

defendant] is at once difficult

and unnecessary. The right to

have the assistance of counsel

is too fundamental and abso-

lute to allow courts to in-

dulge in nice calculations as

to the amount of prejudice

arising from its denial.

(Citations omitted.)" 315

U.S. 75-76.

The question of whether prej-

udice is required to establish a Sixth

33

Amendment violation has not been dealt

with consistently by the circuits. The

Third, Seventh and Eighth Circuits

require only that a conflict be shown to

have existed. U. S. ex rel, Hart v.

Davenport, 478 F.2d 203 (3d Cir. 1973);

United States v. Cougis, 374 F.2d 758

(7th Cir. 1967); Austin v, Erickson, 477

F.2d 620 (8th Cir. 1973). The D.C.

Circuit in Lollar v. United States, 376

F.2d 243 (1967), while requiring that

some prejudice be shown, arrived at that

determination on the basis of "informed

speculation," without regard to the

actual quantum of prejudice involved.

Such a rule accounts for the difficulty

of a reviewing court determining with

any precision those prejudicial elements

which are not clear from the record. In

this case, for example, it is not clear

from the record why defense counsel did

34

not put WILLIAM MITCHELL on the stand to

explain his role in the operation of the

parlor or failed to put on a defense.

The other circuits seem to

require an affirmative showing of pre-

judice. For example, in United States

ae ee ee Se

v. Christopher, 488 F.2d 849 (9th Cir.

1973), the court refused to find ineffec-

tive representation despite a failure to

notify defendants that they had a right

to separate counsel and to investigate

possible conflicts in the representation

because there was no showing of prejudice

in_the record.

—_—— ---———

In United States v. Mari, 526

F.2d 117 (2d Cir. 1975), the court found

no prejudice resulting from joint repre-

sentation where both defendants had pled

guilty. In a concurring opinion, Judge

Oakes set forth the law in that circuit:

"It is true that the cases in

our circuit have to date

>

35

required a specific showing of

prejudice or a real conflict

of interest resulting from

joint representation of co-

defendants by one attorney

before Sixth Amendment rights

may be said to have been

invaded. (Citations omitted.)

"The time is rapidly

aporoaching, 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." 526 F.2d

at 119.

Judge Oakes points out that the District

of Columbia has a rule of automatic

appointment of separate counsel, at

least initially.

The First Circuit requires

that the trial court inquire into the

defendant's discussion with counsel of

the risks of joint representation and

ascertain that the defendant has an

understanding that he has a right to

separate counsel, even at government

36

expense. "If the trial court neglects

this inquiry, the government must prove

that prejudice to the defendant was

"improbable." United States v. Foster,

469 F.2d 1, 4-5 (lst Cir. 1972)." 526

F.2d at 120.

The court also refers to

recent ABA standards:

"The potential for conflict of

interest in representing

multiple defendants is so

grave that ordinarily a lawyer

should decline to act for more

than one of several co-defendants

except in unusual situations

when, after careful investiga-

tion, it is clear that no

conflict is likely to develop

and when the several defen-

dants give an informed consent

to such multiple representa-

tion." ABA Standards: The

Defense Function, §3.5(b) at

Sah} Se CEPA s

It is noteworthy that the

Second Circuit, one year later, in

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

held that the law was clear that a trial

ee

37

judge must inquire into the potential

conflict as to joint representation.

The burden of proof is shifted to the

government if no inquiry takes place.

See also ABA, Code of Professional

-—_—— SS

Responsibility, D.R. 5-105 (A), (B) and

(C).

The failure of counsel to in-

form them of the hazards of joint

representation in a case such as this,

constitutes inadequate representation in

and of itself. In Baker v. Wainwright,

422 F.2d 145 (5th Cir. 1970), the court

held that where a co-defendant confessed

and implicated the defendant, representa-

tion of both was self-evident prejudice.

There is no basis for distinquishing the

holding in Baker, where the evidence

against one spouse consists almost

exclusively of potentially excludable

out-of-court statements of the other

38

spouse. The remedy for a constitutional

violation should not depend on specula-

tion as to the possible motives of coun-

sel in not mounting a defense, in failing

to elicit testimony as to WILLIAM

MITCHELL's actual partiespation in the

management of the massage parlor, or in

failing to move for severence of WILLIAM

MITCHELL's case.

The joint representation was

also prejudicial as to BOBBI MITCHELL

and independent counsel may well have

advised her to plea bargain. Representa-

tion of a defendant whose statements are

used as evidence against another client-

defendant involves a clear conflict of

interest. See, United States v. Mahar,

550 F.2d 1005 (5th Cir. 1977); and Geer,

"Representation of Multiple Criminal

— Le A A A a te i ae A le es i ee le el «a tt ——— te ee

Defendants: Conflicts of Interest and

———— ee ee os -_——— mo

the Professional Responsibilities of the

eee ee ee eee -—— + -

39

Defense Attorney," 62 Minn. L. Rev. 119,

125-27 (1978). Such a plea bargain may

also have brought a lesser sentence.

Where defendant is deprived of these

options, she is prejudiced in the

constitutional sense. See, Case v.

North Carolina, 315 F.2d 743 (4th Cir.

1963).

CONCLUSION

For the reasons stated, this

writ should be granted and the judgment

of the Court of Appeals for the Ninth

Circuit should be reversed.

Respectfully subm i

te a. A

hes P, sia eerste

ya lati Mere U, M LR \!

a Sim ite Ba at ell

Petitioners Pro se

oN

40

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee,)

)

Vv. )Nos. 77-1929

) 77-1676

ARNOLD J. PRICE, CHARLES ) 77-1609

R. MITCHELL, WILLIAM ) 77-1608

PERNAR MITCHELL, a/k/a )

BILL MITCHELL, and BOBBI )OPINION

MITCHELL, )

)

Defendants-Appellants.)

Appeal from the United States District

Court for the Western District

of Washington

Before: CARTER and HUFSTEDLER, Circuit

Judges, and SMITH,* District

Judge

SMITH, District Judge:

Defendants Arnold Price,

Charles R. Mitchell, William P. Mitchell,

and Bobbi Mitchell were convicted of a

conspiracy to transport two women, Shelly

*The Honorable Russell E. Smith, Chief

Judge of the United States District

Court for the District of Montana,

sitting by designation.

41

and Debbie, +/ in interstate commerce

for purposes of prostitution, and

Charles R. Mitchell was convicted

of transporting Debbie from Washington

to Oregon for purposes of prostitution.

Because of the confrontation

problem arising as to Charles Mitchell,

we set out the evidence supporting the

conviction in more detail than ordinar-

ily would be necessary. The detail is

necessary to disclose, as to Charles

Mitchell, the overwhelming nature of the

evidence.

William P. Mitchell and his

wife, Bobbi Mitchell, owned and operated

Daisy Mae's Massage Parlor in Anchorage,

Alaska. William Mitchell told a police

officer of his ownership. It was stip-

ulated that checks drawn on the account

of Bobbi Mitchell and William Mitchell,

signed by Wiiliam Mitchell, were issued

in payment of the earnings of female

Sie

42

employees of the massage parlor. Bobbi

Mitchell, in a taped conversation with

Shelly and Debbie, implicated William

Mitchell in the operation of the busi-

ness. In the same taped conversation

she revealed that the parlor was operated

for purposes of prostitution. The

conversation was lengthy and explicit in

sexual detail. William Mitchell and

Charles Mitchell were brothers, and

telephone records show that there was

communication over the telephone listed

to Daisy Mae's Massage Parlor and Bobbi

Mitchell in Anchorage and the telephone

___-listed to Charles Mitchell in Vancouver,

Washington.

In June, 1976 Charles R.

Mitchell told his friend Arnold Price of

Daisy Mae's Massage Parlor and stated

that anyone working there could make

good money. He asked Price to let him

know if he found anyone who would be

43

interested in working in the massage

parlor. This is proven not only by the

statements of co-conspirator Price, but

by Price's testimony, given when he took

the stand in his own behalf, and that

testimony is corroborated by all of the

subsequent happenings. Price, while em-

ployed by CETA, learned from Shelly, a

fellow worker at CETA, that she had at

one time been a prostitute. On July

26, 1976, while Shelly was visiting

the CETA offices, Price advised her of

the Alaskan massage parlor and told

her that she could make $1,000 to

$2,000 a month working there. Shelly

said that she was interested and asked

Price if he would arrange a meeting with

his friend. Shelly advised her friend

Debbie of the proposal, and then Debbie

called Price and asked if she also could

meet his friend. Price said "yes."

These facts were proved by the testimony

44

of Shelly, Debbie, and Price. Price's

testimony as to his conversation with

Shelly was as follows:

A. I don't remember exactly what

was said but then I suggested to

her that if she was interested in

working in a sauna in Alaska, that

she might want to check with a

friend of mine.

Q. And what was her response?

A. She sort of raised her eyebrows

and said, "That sounds interesting,"

and that was about all.

Q. Now at that time did you say

anything regarding the amount one

could earn or whether prostitution

was part of it?

A. I believe I said she could make,

maybe, $1,000 or $2,000 a month, or

something like that. I don’t

remember exact figures.

Q. Did you say anything about

prostitution?

A. I said, when I mentioned work-

ing in the sauna, she said, "Doing

what?" and I said, "Whatever," or

"Tricks," you know, "Turning tricks."

Q. What did you mean when you said

"turning tricks"?

A. I meant prostitution.

ee

45

Unbeknownst to Price, Shelly,

who had been in marijuana trouble, was

cooperating with the county drug enforce-

ment officers. She advised the sheriff's

office of Price's proposal. The sher-

iff's office in turn advised the FBI,

and ultimately Shelly was asked to

pursue the matter. Shelly called Price

to arrange a meeting to discuss his

offer. Price took Shelly and Debbie

Mitchell's house on August 5, 1976.

to

The

fact of this meeting at Charles Mitchell's

house was proved by the testimony of

Shelly, Debbie, and Price, and surveil-

ling officer Smith. Smith took pictures

of the women, Price, Price's car, and

the Charles Mitchell house. That the

meeting took place and that the conversa-

tion (not taped) related to Alaska is

corroborated by a note shown to be in

Charles Mitchell's handwriting and given

46

by him to Shelly. The note bears Charles

Mitchell's name, address, phone number,

and the word "Alaska." After the meet-

ing, Shelly delivered the note to the

officers, who initialed it and dated it

August 5th, 1976.

On August 9th, in a taped

telephone call to Price, Shelly made

arrangements with Price to have him take

her back to Charles Mitchell's house. A

meeting at Charles Mitchell's house,

attended by Debbie, Shelly, and Mitchell,

occurred on August llth. The conversa-

tion at that meeting, which revolved

about the trip to Alaska, was taped. */

On August 12th, Debbie, in a taped

telephone conversation with Charles

Mitchell, discussed the trip to Alaska

and arranged a meeting at Charles

Mitchell's house on that evening.2/ The

meeting was held, and the entire conversa-

47

tion was taped. 4/ The trip to Alaska

was discussed in detail, and arrange-

ments were made for the women to meet at

Charles' house the next morning. That

same evening, and after the meeting,

there was another taped telephone

conversation2’ between Debbie and Charles

Mitchell in which the final arrangements

for the transportation to Portland were

made. Charles Mitchell took both women

from Vancouver, Washington, to the

Portland airport on August 13th. The

fact of the trip is proved by Shelly

and Debbie and corroborated by the

testimony of a surveilling officer.

Debbie testified that Charles Mitchell

gave Shelly three hundreddollar bills.

By airlines personnel, it was proved

that two girls and a man approached the

airlines counter, that one of the girls

bought two tickets to Anchorage, Alaska,

48

with three hundred-dollar bills. At

the request of an officer,’ the airlines

personnel segregated the ‘ticket coupon

and the bills. They were admitted in

evidence.

Shelly and Debbie boarded the

aircraft and met an FBI agent in Seattle

who made reservations for them in

Anchorage. In Anchorage, on August

13th, they called Bobbi Mitchell, who

came to their hotel room. The business

of the massage parlor was thoroughly

discussed, and the taped conversation

shows unequivocally that Bobbi Mitchell

expected Shelly and Debbie to report

for work as prostitutes on the morning

of the 14th. They did not report, but

rather returned to Vancouver the next

morning.

It is against this background

that we discuss the assigned errors.

49

CROSS-EXAMINATION AND CONFRONTATION:

Charles Mitchell argues that

the judgment should be reversed as to

him because his cross-examination of

Shelly was improperly limited and his

constitutional right to confront her

was thereby denied.

After Shelly's first conversa-

tion with Price, she called Vic

Calzaretta, the chief criminal deputy *

in the sheriff's office. Later she met

with Calzaretta and John Dush, an

officer in the narcotics unit. The

cross-examination of Shelly was limited

as follows:

Q. Had you ever worked in any

capacity providing information such

as that to Mr. Dush or to the

individuals in the narcotics unit?

MR. MOORE: Objection, Your Honor.

THE COURT: Read the question.

(Preceding question read by the

reporter.)

50

THE COURT: What is the purpose?

MR. KANEV: Your Honor, for some

reason, as the witness pointed out,

she was met not by Mr. Calzaretta

whom she telephoned, but by individ-

uals of the narcotic unit.

THE COURT: So?

MR. KANEV: This line of ques-

tioning would go to her interest in

the matter.

THE COURT: Sustained.

The defendant Charles Mitchell had the

right to explore the relationship

between the witness and the law enforce-

ment officers (Davis v. Alaska, 415

U.S. 308 (1974); United States v.

Callahan, 551 F.2d 733 (6th Cir. 1977);

United States v. Garrett, 542 F.2d 23

(6th Cir. 1976); United States v.

Croucher, 532 F.2d 1042 (5th Cir.

1976); United States v. Harris, 501

F.2d 1 (9th Cir. 1974); United States v.

DeLeon, 498 F.2d 1327 (7th Cir. 1974)),

and the cross-examination was limited

improperly.

51

Charles Mitchell's cross-

examination of Shelly was limited, but

the fact is that Shelly's relationship

with the police was explored fully. On

cross-examination by counsel for William

and Bobbi Mitchell, Shelly testified

that she had been arrested for posses-

sion of marijuana on May 20, 1976; that

following a hearing the charge was

dropped; that she was friendly with

John Dush, the narcotics officer, had

worked for him, and had received expense

reimbursement in the amount of $34.00.

It also appeared that, at the time of

the events in this case, she was under

a subpoena to testify before a court

but that she had never had to appear.

Officer Dush testified that Shelly had

been a confidential informant for the

narcotics division of the sheriff's

office for about three months prior to

52

events in this case and had worked on

seven to nine heroin cases. Dush was

fully cross-examined as to the relation-

ship between Shelly and the narcotics

division. We also note that Debbie,

whose background was similar to Shelly's,

was fully cross-examined as to her

relationship with the officers.

The evidence against Charles

Mitchell, consisting of documentary

evidence, several taped ese lit hlants

and the testimony of many witnesses who

corroborated each other on most of the

facts in the case, was overwhelming.

Considering this and the ultimate

disclosure of Shelly's relationship to

the police, we believe the limitation

of her cross-examination was harmless

error beyond any reasonable doubt.

The harmless error rule may

apply even when the error stems from a

53

violation of the Constitution. For

many years the harmless error rule has

been stated by statute®/

and by court

rule._// In 1967, in the case of Chapman

v. California, 386 U.S. 18, the Supreme

Court, after noting the statute and the

court rule, consciously and deliberately

examined the harmless error rule in its

relationship to violations of constitu-

tional rights and established the

applicable law. The rule was stated as

follows:

[B]efore a federal constitu-

tional error can be held

harmless, the court must be

able to declare a belief that

it was harmless beyond a

reasonable doubt.

In 1968, in Bruton v. United

States, 391 U.S. 123, the Supreme Court

ruled that admission of extrajudicial

confessions of co-defendants violated

the right of cross-examination secured

by the confrontation clause of the

54

sixth amendment, and then in 1969, in

Harrington v. California, 395 U.S. 250,

the Court reaffirmed Chapman and held

that the harmless error rule was ap-

plicable in sixth amendment cases of

the Bruton type. In affirming the

conviction, the Court said at 254:

We do not depart from

Chapman; nor do we dilute it

by inference. We reaffirm

it. We do not suggest that,

if evidence bearing on all the

ingredients of the crime is

tendered, the use of cumulative

evidence, though tainted,

is harmless error. Our

decision is based on the

evidence in this record. The

case against Harrington was

not woven from circumstantial

evidence. It is so overwhelm-

ing that unless we say that

no violation of Bruton can

constitute harmless error, we

must leave this state convic-

tion undisturbed.

Now the problem arises -- is

the harmless error rule announced in

Chapman inapplicable where the sixth

amendment comes into play by reason of

55

a limitation of cross-examination

rather than by the reception in evidence

of an extrajudicial confession of co-

defendant?

In 1976, in Davis v. Alaska,

415 U.S. 308, 318, the Supreme Court

said:

On these facts it seems clear

to us that to make any such

inquiry effective, defense

counsel should have been

permitted to expose to the

jury the facts from which

jurors, as the sole triers of

fact and credibility, could

appropriately draw inferences

relating to the reliability

of the witness. Petititoner

was thus denied the right of

effective cross-examination

which "'would be constitutional

error of the first magnitude

and no amount of showing of

want of prejudice would cure

it.' Brookhart v. Janis, 384

U.S. 1, 3." Smith v. Illinois,

390 U.S. 129, 131 (1968).

(Emphasis supplied.)

The precise question is whether the

emphasized language was intended to

make the rule of Chapman inapplicable

56

in all cases where there had been an

erroneous limitation of cross-examination,

or whether the Court was referring to

the specific limitation in Davis v.

Alaska, 415 U.S. 308 (1974), and holding

that that limitation could not be

harmless.

It is noted that the emphasized

language in the quotation was taken

from Brookhart v.- Janis, 384 U.S. 1, 3

(1966). The issue in Brookhart was

one of waiver. The emphasized language

was not a holding by the Court in

Brookhart that any limitation of the

right of cross-examination was reversi-

ble error. It was nothing more than a

guotation from an admission by the

respondent in Brookhart that, absent a

valid waiver, the error, i.e., a denial

of all right of cross-examination, was

one of great magnitude. Obviously, the

57

denial of all right of cross-examination

cannot be harmless.

There was no need for the

Court in Davis v. Alaska, 415 U.S. 308

(1974), to modify the rule of Chapman

and establish a per se rule to achieve

the result obtained. The case against

the defendants in Davis depended almost

entirely on the testimony of a juvenile

delinquent named Green. He was, as the

Court said, a "crucial witness," and it

is evident from the opinion that with-

out his testimony there could not have

been a conviction. The cross-examination

would have explored his relationship to

the law officers and may have revealed

some bias resulting from that relation-

ship. In addition, it may have resulted

in his impeachment. When the Court

found that the right of "effective

cross-examination" had been denied and

58

that this error was clearly prejudicial,

the harmless error rule of Chapman

could not be applied. We think the

same may be said of the language used

in United States v. Harris, 501 F.2d 1,

9 (9th Cir. 1974), and United “States v.

Alvarez-Lopez, 559 F.2d 1155, 1160 (9th

Cir. 1977).

The result we reach could not

be reached by holding that there was

not here, as in Davis and Harris, a

denial of "effective" cross-examination.

The fact that Shelly's police relation-

ships were explored by a co-defendant

does not really relate to the effective-

ness of the right afforded Charles

Mitchell to cross-examine. Nor does

the fact that the evidence against

Charles Mitchell was overwhelming bear

upon the effectiveness of the right to

cross-examine afforded to Charles

59 -

Mitchell. These facts do, however,

bear upon whether any damage was done

to him and may be considered if the

harmless error rule is applied.

In most cases where there is

a denial of effective cross-examination,

it would be impossible to find the

denial harmless, but in this case we

think it is, and in the absence of any

case expressly renouncing the harmless

error rule or any case mentioning it

where a renunciation of it was necessary

to the result ,2/ we reach our result on

the basis of Chapman. We agree with

the reasoning of the Fifth Circuit in

United States v. Mayer, 556 F.2d 245,

252 n. 10 (1977).

MARITAL PRIVILEGE:

The taped conversations of

Bobbi Mitchell were received in evidence

60

over the objection of her husband,

William Mitchell, that his marital

9/

privilege’ was being violated. The

taped conversations of Bobbi Mitchell

were extremely damaging, and if the

privilege applies, the judgment must be

reversed.

In the federal courts, the

husband has a privilege to prevent his

wife from testifying against him.

Hawkin v. United States, 358 U.S. 74

(1958); Bisno v. United States, 299

F.2d 711 (9th Cir. 1961).

In the Ninth Circuit, as

distinguished from others ,29/ extra-

judicial statements made by the wife

are considered within the rule. 22/

Notwithstanding, it is our view that

the Bobbie Mitchell tapes were admissible

against William Mitchell. Statements

made by an agent in the course of his

61

employment are the vicarious admissions

of the principal. A conspirator is an

agent in a criminal venture, and his

admissions are likewise received against

his co-conspirators. Where one spouse

is shown to be an agent of the other,

the vicarious admissions rule has been

applied in both civil and criminal

cases. 8 Wigmore on Evidence, McNaughton

Revision § 2232, n. 3. The rule was

specifically applied to a husband and

wife venture in United States v. Pugliese,

153 F.2d 497 (2d Cir. 1945) .22/

Even if we conceive of the

privilege as one based on the "persistent

u13/

rather than a "sentimental relic, "24/

instincts of several centuries

we doubt that much instinctive support

could be found for the proposition that

a man may engage in a civil or criminal

venture with his spouse, and then,

62

after she had said things which had to

be said in the operation of the ven-

15/

ture,--“ avoid responsibility for them

on the basis of privilege which was

initially rooted in the "legal fiction

that a husband and wife were one per-

16/

son." The language of the Supreme

Court in Hawkins clearly indicates that

the privilege was respected because of

the belief that it does foster "family

peace.” In this sort of a case, where

the wife is not the witness and the

wife's words which are introduced are

those which the husband authorized her

to speak, it is difficult to see how

the reception of the evidence could

impair the relationship between the

husband and the wife. We conclude that

the rule should be that, where a husband

and wife are engaged in a criminal con-

spiracy, the extrajudicial statements

63

of either made in furtherance of the

conspiracy may be admitted against the

other.

SUFFICIENCY OF EVIDENCE ~-

WILLIAM MITCHELL:

William Mitchell urges that

the statements of Charles Mitchell,

Arnold Price, and Bobbi Mitchell should

not have been admitted against him

because there was not sufficient indepen-

dent evidence to connect him with the

conspiracy. As previously indicated, it

was proved that William Mitchell had

said that he was Bobbi Mitchell's hus-

band, that he had purchased Daisy Mae's

Massage Parlor and was in the massage

parlor business. Bank records showing

the account of William and Bobbi Mitchell

were admitted as exhibits, as were

checks signed by William Mitchell pay-

able to four of the female employess of

64

Daisy Mae's Massage Parlor. This was

sufficient to connect William Mitchell

to the conspirecy. See United States

v- Perry, 550 F.2d 524, 528 (9th Cir.

1977); United States v. Turner, 528 F.2d

143, 161-62 (9th Cir.), cert. ‘denied, 96

S.Ct. 426 (1975).

SUFFICIENCY OF EVIDENCE --

PRICE:

Price urges that the evidence

was insufficient to prove Count 1 be-

cause there is no evidence that he

intention-ally entered into an agreement

to cause women to be transported for

purposes of prostitution. On the record

here, the contention borders on the

frivolous. The common purpose was to

recruit girls for purposes of prostitu-

tion. He furthered that purpose. A

common purpose and plan could be inferred

17/

from the circumstances. —

65

VOIR DIRE OF JURY:

Charles Mitchell requested the

court on voir dire to instruct the jury

on the presumption of innocence and

burden of proof and to ask them whether

they thought of such laws as being

unfair. The trial court refused, and

this refusal is assigned as error. The

trial court did ask the jurors if they

would follow his instructions as to the

law. The jurors nodded in affirmation.

At the close of the evidence, the jury

was fully instructed as to the burden of

proof, the presumption of innocence, and

the defendants' right to remain silent.

The jurors were sworn to follow the law.

The scope of the voir dire is directed

to the sound discretion of the trial

waar and it is assumed that a jury

will, in accordance with the oath they

take, follow the judge's instructions.

66

Vitello v. United States, 425 F.2d 416

(9th Cir. 1970). On the specific ques-

tions here raised, the Sixth Circuit, in

a divided opinion, held it error to

refuse a request to voir dire the jury

as to the presumption of innocence and

the burden of proof. United States v.

Blount, 479 F.2d 650 (6th Cir. 1973).

The decision in Blount, a minority view,

was specifically rejected by the Third

Circuit in United States v. Wooton, 518

F.2d 943 (3d Cir.), cert. denied, 423

U.S. 895 (1974) .29/

We adopt the ruie

stated in Wooton as the rule in this

circuit.

PROSECUTORIAL UNFAIRNESS

CONSTITUTING A DENIAL OF DUE

PROCESS:

-_——

Defendants Price and Mitchell

were charged in Count 1 of the indictment

with conspiracy and in Counts 2 and 3

67

with inducing Shelly and Debbie respec-

tively to be transported in interstate

commerce for the purposes of prostitution.

At the close of the Government's case,

and at the close of the evidence, Price

and Mitchell moved for a directed ver-

dict as to ail counts. The motion was

denied, and the court did instruct on

Counts 2 and 3. The United States

Attorney did not request the jury to

convict on Counts 2 and 3, but did make

perfunctory argument in support of

Count 2 and 3. At the conclusion of all

the arguments, the United States moved

to dismiss those counts. The motion was

granted, and only Counts 1 and 429/

were submitted. Price and Mitchell now

urge that the United States deliberately

confused and distracted the defencants

by mentioning Counts 2 and 3 in the

argument, but not asking for a convic~

68

tion as to them; that the Government,

for all practical purposes, sought a

compromise verdict; that the Government

improperly supported its own integrity

by being candid as to Counts 2 and 3,

and made its conspiracy case Stronger by

arguing Counts 2 and 3. Ona review of

the record, we do not find the unfair-

ness of which Price complains. As

indicated, Counts 2 and 3 charged that

defendants persuaded, induced, and

enticed Shelly and Debbie to travel in

interstate commerce for purposes of

prostitution. The weakness, if any, in

Counts 2 and 3 was not ina failure to

prove defendants)’ conduct. That was

proved beyond any reasonable doubt, but

the women testified that they had no

intention of prostituting themselves in

Alaska and that they were not persuaded

by defendants to go there, but rather

69

went because the law enforcement officers

asked them to. Without passing on the

question of whether the evidence was

sufficient to warrant a conviction on

Counts 2 and 3, we note that had Counts

2 and 3 been erroneously submitted to

the jury that error would not, under the

circumstances here, have warranted a

reversal as to Count 1. All facts

tending to support Counts 2 and 3 were

admissible to prove Count 1,2)/ Had

Counts 2 and 3 been submitted, defendants

would have been required to argue then,

and the jury would have had the opportu-

nity to compromise, which they did not

have when Counts 2 and 3 were dismissed.

It may be that the United States

Attorneys did improve their image of

integrity by their candor in indicating

the difficulties with Counts 2 and 3 and

ultimately moving to dismiss them, but

70

we are of the opinion that the United

States Attorney owes a duty of candor,

and the prosecution cannot be Jackies

here for fulfilling that duty. In

short, there simply was not unfairness

of the type condemned in Berger v.

United States, 295 U.S. 78 (1935).

DUE PROCESS:

Defendants Price and Mitchell

assert error in the court's refusal to

instruct the jury on the "due process"

defense, 22/ This contention also bor-

ders on the frivolous. They are not in

a position to assert entrapment, or the

so-called "due process" defense, because

the crime of conspiracy was complete

when the first overt act in furtherance

of it was committed. An overt act was

committed when Price first discussed the

Alaskan venture with Shelly, and at that

71

time no police officer of any kind even

knew of the conspiracy.

We have examined other assigned

errors and find them to be without

merit.

The judgments are affirmed.

FOOTNOTES

l1/ The first names of these witnesses

are used to preserve, to the extent

possible, their anonymity.

2/ The following are excerpts from the

tape of the conversation at Mitchell's

home on August 11th:

Deborah: I thought we might like

to go.

Arnie : You would. When would

you like to go?

Deborah: Friday, maybe.

Charles: The end of the week?

O.K. Maybe I'll call

tonight and make arrange-

ments.

Shelly : Arnie, is there going to

be somebody up there to

meet us?

Charles: Yea, you see, the whole

thing to me is exciting.

I mean it. The idea of a

Deborah:

Charles:

Arnie

Charles:

Charles:

Arnie :

Deborah:

Charles:

Deborah:

Arnie

Charles:

Deborah:

72

vicarious thrill I was

in on, somebody flying

away in something they

don't know. You know,

all they got is a free

ticket and promise of big

money. (Tr. 131-32.)

and

What if it's -> O.K., if

it's this type of job,

how come they guarantee

us a thousand to fifteen

hundred dollars?

Well, that's what the

girls are making. They're

making a thousand to

fifteen hundred dollars.

That's what they ask

for. You just go up to

your room.

I don't know how they

work it, to tell you the

truth. I don't know the

details. I mean if I was

a female, I would know

every detail.

Well, how much does a

trick go for up there?

I don't know, but see --

You see, you have to get

with somebody to find

out what they are getting.

That's it.

Right. Well, it's --

But you can't do that

when you're working out

of a parlor or something,

Arnie.

Oh.

Yea, there's a set --

They have a set price.

Charles:

Deborah:

Charles:

Arnie :

Charles:

Deborah:

Charles:

73

Yea, I imagine it's a

hundred. (Tr. 140-41.)

and

I was going to say, if

there's that much women

going up there, how is he

going to know which tw

to pick up?

Yeah, well, I don't even

know.

There's a lot of them

going up there.

Why don't you tell him.

I'll just tell him I'll

work something out. I

don't know, I'll call him

and tell him you're

coming, or something.

I'll just tell him. I

don't know, I'll call him

and tell him you're

coming Friday or Saturday.

Then do you want us to

pick our tickets up at

the airport, or --

Well, we have to do that

this, this way. This

might sound suspicious,

but we do it this way

because there is a legal

hassle. What I will do,

I will buy you the tickets

I'll go to the airport

with you, buy you the

tickets, or give you the

money and you go buy the

tickets. Then I don't

know how that works one

way or the other.

Debbie

Arnie

Charles:

Shelly

Deborah:

Arnie :

Deborah:

Charles:

Charles:

Shelly :

Charles:

Deborah:

74

Legal hassle?

More like you give them

the money to buy their

own tickets?

Right.

O.K.

Oh, so, if --

So, if it ever comes down

to it --

You didn't transport us.

You just bought-a ticket

to Alaska at the airport.

Fine, that's what it

amounts to. (Tr. 145-

46.)

and

Now, I call this guy and

I say, "I'm sending a

couple of girls up," you

know. "Do you need a

couple more girls"? and

he says, "Yea," he's

going to immediately

think that, you know,

he's not going to give

you the benefit of the

doubt. He's going to

say, "Well, there's a

couple more prostitutes

coming up here."

Uh, huh.

When he's dealing with

these people who are, you

know, he's been dealing

with these people.

Well, mention to him that

we work together now,

we're team work. You

know, so that's a new

thing for his place, too.

(Tr. 162-63.)

Debbie:

Charles:

Debbie

Charles:

Debbie

Charles:

Debbie :

Charles:

Debbie

Charles:

Debbie :

Charles:

Debbie

Charles:

Debbie

75

3/ The following is an excerpt from the

tape of the first telephone conversation

of August 12th:

Did you talk to them,

right?

Yes, it's sort of up in

the air. Can you go,

could you leave tomorrow?

Yes.

O.K.

I'd like to leave early.

O.K., well, here's how we

have to do it. We have

to do it this way. There's

a flight leaving at 2:25

and there's one ieaving at

5:25. Now I know it sounds

strange but this is the

way that I was instructed

to do it. This is the way

we're gonna do it. One of

you can go at 2:25 and the

other one of you can go at

5:25. O.K.?

All right.

It sounds strange, doesn't

it?

Yes.

O.K. Well, if you're

afraid of that, I don't

blame you, but that's the

way it's going to happen.

Hum.

You see.

Well, --

I know it sounds flaky,

and I'll explain to you

exactly why it's done this

way, you see. I can ex-

plain it to you.

O.K. Go ahead.

76

Charles: Well, I really don't want ;

to go into detail over the Debbie

phone.

Debbie Yes, true.

Charles: O.K.

Debbie : Could we come over maybe

talk to you?

Charles: I'm leaving, I have to go

show a house at 7:00

o'clock. You want to

come by about 8:00?

Debbie About 8:00 o'clock.

Charles: O.K., you come by about Charles:

> ro -

$300. O.6.2 (Tr. 462-63.) Debbie

4/ The following are excerpts from the

tape of the conversation at Mitchell's

home on August 12th:

Charles: how Old are you?

Debbie Twenty-two.

Charles: And you're? Twenty years

Old? You guys are just

babies.

Shelly Twenty.

Charles: I mean you're just, you

know, you look older than Charles:

yov are, really no offense.

Debbie Well, I've been out on my

own Since I was fifteen.

Charles: Well, then. You know, I'm Debbie

just trying to avoid, you

know, the fucking feds

coming and saying we got

a warrant here for your

arrest, you know, blah,

blah, blah, got to call anes tans

the bondsman, you know.

Go through a bunch of

77

oe e O.K., now, Charles,

be up. I'11 call you at

-- I°1l call you at 5:30

and wake you up, all right?

O.K.? Put the phone by

your bed or wherever you

Sleep. O.K., and that

will be on Alaska Airlines

87, and we'll arrive there

at 5:35. So, don't men-

tion it here, like I said.

O.K., well, if that's the

Way you want to do it.

I just would, you know,

when we first meet them,

I'd like to be cleaned up

and presentable, you know.

I don't want to walk in

like a slob and have them

say, "Wow, send those

girls back." You know,

we got to make it look

good for you, too, Charles.

We don't want you sending

no creeps up there.

I don't do that. Yes, you

know, "I'm sending a girl

up," and she gets off the

plane -- (laughter)

I'm glad we got this

straightened out. So,

5:30 in the morning to

wake you up, ‘cause we

have to be on our way,

you know, to make that

7:20.

GO.8. « »« + U?e. 469-90.)

bullshit. (Tr. 470.)

and

5/ The following are excerpts from the

tape of the second telephone conversation

between Debbie and Mitchell on August

12th:

Charles:

Debbie

Charles:

Debbie :

Charles:

Debbie

Charles:

Debbie

Charles:

Debbie

Charles:

Debbie

Charles:

Debbie

Charles:

Debbie :

Charles:

Debbie

78

Hello.

Charles?

Yes.

This is Debbie.

Hi.

Hi, we made it easier on

you.

How?

We called and I decided

that, we can just take

that 9:45 one? - It'll be

the same thing, but we

won't have to spend so

much time in Seattle that

way.

O.K., then what time?

Yeah, that'll work.

Ce. (ee, 454.)

and

O.K. So what time should

I look for you tomorrow?

Let's see, if it leaves

at 9:45, we'll be there

probably --

8:30.

Does that sound good?

About 2:30?

Fine, that's work.

Alrighty.

O.K., I'll talk to you

then.

Alrighty. (Tr. 495.)

6/ "On the hearing of any appeal or writ

of certiorari in any case, the court will

give judgment after an examination of

the record without regard to errors or

defects which do not affect the substan-

tial rights of

§ 2111 (1959).

the parties." 28 U.S.C.

79

7/ “Any error, defect, irregularity or

variance which does not affect substan-

tial rights shall be disregarded." Fed.

R. Crim. FP. S2tal,

8/ United States v. Brady, 561 P.2d 1319

(9th Cir. 1977), wherein it is said at

1820:

As the Government acknowledges,

the restriction of a defendant's

right to cross-examine a government

witness can be a denial of the

defendant's constitutional right of

confrontation. (Davis v. Alaska,

415 0.8. 308, 94 S&S. Ct... 1105, 39 bs

Ed.2d 347 (1974); Alford v. United

States, 282 U.S. 687, 51 S. Ct. 218,

75 L. Ed. 624 (1931); United States

v. Alvarez-Lopez, 559 F.2d 1155

(9th Cir. 1977).) We need not de-

cide whether the error in this case

was of constitutional dimension,

however, because we are convinced

that the error was prejudicial even

if the confrontation threshold were

not crossed.

and United States v. Ortega, 561 F.2d

803 (9th Cir. 1977), wherein it is said

at 806:

Error in the restriction of a

defendant's cross-examination of a

government witness has constitu-

tionai implications and, therefore,

we must be extremely hesitant in

brushing aside such error as harm-

less. (Citing cases.)

We need not decide whether error

in this case was of constitutional

magnitude reguiring reversal, how-

80

ever, because we are convinced that

the combined errors in permitting

Gilbert to be impeached by his shop-

lifting conviction and in refusing

to permit impeachment of a govern-

ment witness by proof of a prior

felony conviction were prejudicial.

9/ "In the federal jurisdiction the

"incompetency' is stated in terms of

privilege, and the privilege is limited

to that of a spouse charged in a criminal

action to prevent his spouse from testi-

fying against him." 3 Jones on Evidence

700 (6th ed. 1972).

10/ United States v. Mackiewicz, 401 F.2d

219, 225-26 (2d Cir.) cert. denied, 393

U.S. 923 (1968).

11/ Peek v. United States, 321 F.2d 934,

943 (9th Cir. 1963), cert. denied., 376

U.S. 954 (1964); Olender v. United States,

210 F.2d 795, 800 (9th Cir. 1954), cert.

denied, 352 U.S. 982 (1957).

12/ Judge Learned Hand, speaking for the

court, said at 500:

The last point is the judge's re-

fusal to direct the jury not to use

against Pugliese the declarations

of his wife to the policeman. The

fact that the couple was not indicted

for conspiracy, was irrelevant in

determining the competency against

him of any thing she might Say.

American Fur Company v. United

Cir.. 291 F. 958, 970; Gooch v.

United States, 10 Cir., 82 F.2d

81

534, 536, 537. That depended upon

whether what she said was a step in

a venture to which both were parties.

If it was, it was admissible in any

prosecution or in any civil action;

if it was not, it was as incompe-

tent in a prosecution for conspir-

acy as anywhere else, although it

appears impossible to disabuse

prosecutors of the contrary belief.

As we said in Van Riper v. United

States, 13 F.2d 961, 967: “When

men enter into an agreement for an

unlawful end, they become ad hoc

agents for one another, and have

made 'a partnership in crime.'

What one does pursuant to their com-

mon purpose, all do, and, as

declarations may be such acts, they

are competent against all." See

also United States v. Goodman, 2

Cir., 129 F.2d 1009, 1013.

Cf. United States v. Van Drunen,

501 F.2d 1393 (7th Cir.), cert. denied,

419 U.S. 1091 (1974); United States v.

Mackiewitz, 401 F.2d 219 (2d Cir.),

cert. denied, 393 U.S. 923 (1968); United

States v. Doughty, 460 F.2d 1360 (7th

Cir. 1972); United States v. Kahn, 471

F.2d 191 (7th Cir. 1972) (involving the

confidential communication privilege).

13/ Hawkins v. United States, 358 U.S.

74, 79 (1958).

14/ Hawkins v. United States, 358 U.S.

74, 81 (1958).

15/ A substantial part of the conversa-

tion between Bobbi Mitchell and Shelly

and Debbie was a necessary indoctrina-

tion.

82

16/ Hawkins v. United States, 358 U.S.

44, 73 (29398).

17/ Glasser v. United States, 315 U.S.

60, 80 (1942). See also United States

v. Perry, 550 F.2d 524 (9th Cir. 1977).

18/ United States v. Silla, 555 F.2d 703

(9th Cir. 1977); United States v. Heck,

499 F.2d 778 (9th Cir. 1974).

19/ Accord, United States v. Ledee, 549

F.2d 990 (5th Cir. 1977); United States

v. Cosby, 529 F.2d 143, 147-49 (8th Cir.),

cert. denied, 426 U.S. 935 (1976); United

States v. Crawford, 444 F.2d 1404 (10th ©

Cir.), cert. denied, 404 U.S. 855 (1971);

United States v. Gillette, 383 F.2d 843

(2d Cir. 1967).

20/ Count 4 charged only Mitchell.

21/ Had there been a conviction on Counts

2 and 3 and sentences imposed no greater

than and running concurrently with those

given in Count 1, the Court of Appeals,

under the concurrent sentence rule, would

not have been required to review the judg-

ment. Barnes v. United States, 412 U.S.

837 (1973); Benton v. Maryland, 395 U.S.

784 (1969); Hirabayashi v. United States,

320 U.S. 81 (1943); United States v.

Fishbein, 446 F.2d 1201 (9th Cir. 1971);

United States v. Washabaugh, 442 F.2d

1127 (9th Cir. 1971); Lambert, Inc. v.

Starbrand Sales Corp., 422 F.2d 621 (7th

Cir. 1970).

22/ Mitchell's requested instruction was

as follows:

83

It is a defense to a crime that the

Government engaged in overreaching

participation in the commission of

the crimes charged in counts II,

III and VI.

As you will recall, the evidence

regarding the Government's participa-

tion in this case, focused to a

great extent on the activities of

Shelly and Debbie (surnames omitted)

who testified in this case. In

consideration of this defense, you,

as the sole judges of the facts,

must determine what role these

women played in the case based upon

a careful and thorough review of all

the evidence. You must determine

whether the facts as you find them,

amount to an intolerable degree of

overreaching governmental participa-

tion.

If you find that the overreaching

participation by the government

agents or informers in the activities

as you have heard them testified to

here were so fundamentally unfair to

be offensive to the basic standards

of decency, and shocking to the

universal sense of justice, then you

may acquit each defendant to whom

this defense applies. -- Record on

Appeal 129.

Price's requested instruction was similar.

84 / 85

;

JAMES M. CARTER, Circuit Judge, con- Harris, 501 F.2d 1 (9 Cir. 1974); and

curring:

\

United States v. \Alvarez-Lopez, 559 F.2d

I concur in the result reached bre ie:

1155 (9 Cir. 1977), which contain lan-

by the majority in this case and in most :

guage hinting at a per se rule, to be

of the reasoning in support thereof. My F :

cases which in fact did apply the test

Only disagreement concerns the treatment

: described above.

of Charles Mitchell's claim that his 7 lis

My difference of opinion con-

constitutional right to cross-examine : ;

cerns the proper application of the test

was abridged. I understand the majority ‘ aa

to the facts of this case. The majority

to hold that restricted cross- pate : ;

concludes it was error to limit Mitchell's

examination claims are tested by the ; ;

cross-examination but that the error was

followin rocedure: (1) the reviewin

oa - harmless beyond a reasonable doubt. I

court determines whether the constitu-

would hold, as shown below, that although

tional right to effective crdss- le

initially it may have been wrong to limit

examination has been abridged. If so, ; : ;

Mitchell's cross-examination, this mis-

then (2) the court reviews the entire :

take was corrected before trial ended,

record to determine whether the error in ,

resulting in no error on appeal and no

restricting the cross-examination was

occasion to resort to the harmless error

harmless beyond a reasonable doubt. I

standard. In any event, I am in com-

also understand the majority to explain ;

plete agreement that there is no rule

recent cases such as Davis v. Alaska,

that erroneous limitation of cross-

415 U.S. 308 (1974); United States v.

86 87

examination constitutes per se a viola- was effective, tome. whether the

i of a f : ituti : :

seen defendant's constitutional trial court has abused its discre-

right to confro ion. r , :

g . ne ae SESE OOP tion, is whether the jury is other-

exist, it is tested, as the majority wise in possession of sufficient

states he ha standard. , , ,

tes, by t harmless error standa information upon which to make a

Limitation of cross~

discriminating appraisal of the

examination cannot be shown to be error subject matter at issue." (Emphasis

if the material sought to be introduced supplied.) Skinner v. Cardwell,

by cross-examination is otherwise ade~- supra, at 2973.

quately presented to the trier of fact Under thie test effective

eee Se Selah: SOE AT See eee viii meetin ti, i was not denied to

, :

FEROS BLOM LS FELDOOE VY SOreeeree: 729 Charles Mitchell. Judge Smith's opinion

F.2d 1381 (9 Cir. 1978), when a defen- explains in detail how the material

Gant was denied the opportunity to have about which Charles Mitchell sought to

his attorney cross-examine a prosecution j : :

Y ” P cross-examine--Shelly's relationship

witness about information which was rele- with the police--was fully explored be-

vant and material to potential impeach- fore the jury.

ment of another prosecution witness. In ie Shek shat bebe Sedoemntion

Skinner we upheld the district judge and

was brought in by co-defendants’ counsel

held: subsequent to Mitchell's attempt to

" ee ° .

The test, for whether cross introduce it is not determinative.

&

examination about a relevant topic

88

Neither the order of proof at trial nor

the identity of the party presenting it

is so critical that a mistake of

potential constitutional magnitude can-

not be corrected if the trial judge notes

it and takes corrective action. Of

course, in each case we must be sure

that the corrective action taken satis-

fies the standards of the Constitution,

but the central problem is not the

technical concern of who brought the

information before the court or how it

was presented. It is whether the rele-

vant subject matter was fully explored

before the factfinder.

Substantively there is not a

great deal of difference in the position

taken by Judge Smith and the one I would

take. Not mentioned in Judge Smith's

Opinion, but I think inherently enconm-

passed in his holding concerning the

39

harmless error, is the concept that if

the disputed material is permitted to go

before the jury in one way or another

either before or after denial of cross-

examination to a defendant who seeks to

produce that material, the defendant

should not be permitted to complain

about it. A holding to the effect that

there was per se error and that it was

immaterial that the evidence got into

the record at some other time would

wreak havoc in the trial of multi-

defendants in major criminal cases.

CERTIFICATE OF SERVICE

I hereby certify that I served

the foregoing Petition for Writ of

Certiorari to the Court of Appeals for

the Ninth Circuit on the counsel for

Respondent by enclosing a copy thereof

in an envelope, postage prepaid,

addressed to:

James R. Moore

United States Attorney

1021 U. S. Courthouse

Seattle, Washington 98104

and depositing the same in the United

States mails at Portland, Oregon, on

September 18, 1978, and further certify

that all parties required to be served

have been served. <

hr \ \

Dah : )

0) A \ew Sass )

~~" William P. Mitchell

Petitioner Pro Se