Opposition — BERLAND v. ILLINOIS (No. 78-1744)

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Supeeme Ce

No. 78-1744 SEP 6 1979

MICHAEL RODAK, JR CLERK

IN THI

Supreme Court of the Gnited States

OcTOBER TERM, 1978

ALBERT BERLAND,

Petitioner,

VS.

THE PEOPLE OF THE STATE

OF ILLINOIS,

Respondent.

ON PETITION FOR A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.

Assistant Attorneys General,

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570,

Attorneys for Respondent.

BERNARD CAREY,

State’s Attorney of Cook County, illinois,

500 Richard J. Daley Center,

Chicago, Illinois 60602

(312) 443-5496

Marcia B. Orr,

JOAN S. CHERRY,

Assistant State’s Attorneys,

Of Counsel.

Printed by the Authority of the State of Ilinois— 8-79-40

OPINIONS BELOW 00 ccccececeseeeeeeeees

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QUESTIONS PRESENTED FOR REVIEW

STATEMENT OF THE CASE ......00000000.........

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THE DECISION OF THE ILLINOIS APPEL-

LATE COURT REVERSING THE CON-

VICTION OF PETITIONER FOR ARSON

WITH INTENT TO DEFRAUD AN IN-

SURER DID NOT OPERATE AS AN

ACQUITTAL OF THE PETITIONER;

THEREFORE, THE ILLINOIS SUPREME

COURT’S GRANT OF DISCRETIONARY

REVIEW AND SUBSEQUENT REVER-

SAL OF THE DECISION OF THE APPEL-

LATE COURT WAS PROPER AND DID

NOT OFFEND THE PROSCRIPTIONS

AGAINST DOUBLE JEOPARDY. THIS

ISSUE WAS NOT RAISED UNTIL THE

PETITION FOR REHEARING IN THE IL-

LINOIS SUPREME COURT AND IS

THEREFORE WAIVED FOR PURPOSES

OF REVIEW IN THIS COURT.......................

THE DECISION OF THE SUPREME COURT

OF ILLINOIS, AFFIRMING THE JUDG-

MENT OF THE TRIAL COURT THAT

THE PETITIONER WAS GUILTY OF AR-

SON WITH INTENT TO DEFRAUD AN

INSURER, WAS SUPPORTED BY THE

OVERWHELMING WEIGHT OF THE

EVIDENCE AND THE RECORD DOES

Page

NOT SUPPORT ANY REASONABLE

HYPOTHESIS OF PETITIONER'S _IN-

NOCENCE. PETITIONER HAS FAILED

TO SHOW ANY NEED FOR THIS COURT

TO GRANT HIS PETITION FOR A WRIT

OF CERTIORARL .......-:::scssceserseeseeesetnstesensneess 15

THE PETITIONER RECEIVED THE EFFEC-

TIVE ASSISTANCE OF COUNSEL

WHERE COUNSEL WAS PRIVATELY

RETAINED, THE PETITIONER'S DE-

FENSE AT TRIAL DID NOT CONFLICT

WITH THAT OF THE CO-DEFENDANT

AND THERE IS NO SHOWING THAT A

DIFFERENT RESULT WOULD HAVE

OBTAINED HAD THE PETITIONER AND

THE CO-DEFENDANT PROCURED SEP-

ARATE COUNSEL. PETITIONER HAS

FAILED TO SHOW ANY NEED FOR

THIS COURT TO GRANT HIS PETITION

FOR A WRIT OF CERTIORARI ...........-4-++++ 20

CONCLUSION .......cscssssesesssessnssssenenensnensncnenenenenenenenenenconsnsees 27

AUTHORITIES CITED

CITATIONS

Cases:

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141,

SF Beef COED iiiceshsetbidtibeeteincseceh denies

Fry Roofing v. Wood, 344 U.S. 157, 73 S.Ct. 204,

FT Se RO AOSD hvesdcodieecstntasensenanantbaemnciencse’

Glasser v. United States, 315, U.S. 60, 62 S.Ct.

GST, SB ETO COD CBD ) crccccccccisccesscecicecscncsacsanecosss

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2

Ro RMN Bb A OD iiiclesiktes necieieniacaciiae heii tenses

Holland v. United States, 348 U.S. 121, 75 S.Ct.

BEE FP Bie CO 6 PID: skssstkcccrctanessoeutioserivecetecs

Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173,

So Be SO CURT wickncecneeetnrtcrtcateialectiaiies

Lollar v. United States, 376 F.2d 243 (D.C. Cir.

BE ih nied acrecteselatenit hits tit ace ce eee

CODIFY: sarvncinnnncachisestgmnappnieiiennvitiadgalsielabitankiiaadigniaie

People v. Craig, 47 Ill. App. 3d 242, 361 N.E.2d

pe SG gt NR yg 5 Raab atte eR en

People v. Mallett, 45 Ull.2d 388, 259 N.E.2d 241

CURR as cesriccasnbicie anata aaterendiakisins atin see

People v. Powell, 72 Ul.2d 50, 377 N.E.2d 803

(1978) cert. den. 99 S.Ct. 1214, 59 L.Ed.2d 455

G2 | MORRIE SPN Ps ete. Lee aR Beste MAE

People v. Schwartz, 58 Ill.2d 274, 319 N.E.2d 33

COPE hcisdincucsssccaenccapinsaabadieisiiicahitebadeanedataciaies

CEB vcsansctahionissepmnsnennnigsuiadbininaeteamnginctiica tani

RIE sicinoasinsaginsdesdaagtmenhedtaMe tia inte peek

Smith v. Regan, 583 F.2d 72 (2d Cir. 1978) cert.

Gh SES Ts SOO oie eaten

bd pf A POE Se MSRM AH TS RAR DW MERE DD eae

United States v. Boudreaux, 502 F.2d 557 (Sth

Gy WTR hasscciedeechtetaip eaten aashomataeisccecenetea horn ec

United States v. Cox, 580 F.2d 317 (8th Cir. 1978)

UG, GA Sr MM: SUE retthipecdscchsettieiecee cs.

United States v. Eaglin, 571 F.2d 1069 (9th Cir.

BOF FF ish csi ctneinanisicssessdipsibatbaupsiasmanibomiainbdiaie aceasta

Page

24, 25

16, 17, 21,

13,14

22,24

United States v. Foster, 469 F.2d 1 (Ist Dist.

TA i kinkacidccnsidiepseskan dacssétucaaiiataietaaaiemia acta sink.

United States v. Johnston, 268 U.S. 220, 45 S.Ct.

QDG, GO LTB FES CATES P ctcacdenotetreasecscractissovecs vsks

United States vy. Lawriw, 568 F.2d 98 (8th Cir.

POET Vicicdsicses Mesisin\insrvscetbeinknp nstamlatale dcmcadgcansatongisuiconhios

United States v. Mandell, 525 F.2d 671 (7th Cir.

1975) cert. den. 423 U.S. 1049. oo... eceeeeee

United States v. Medel, 592 F.2d 1305 (Sth Cir.

SOD .casisscichenncestonsenciacdeinbatimmenbinnckailaapecentenliiibainns

United States vy. Steele, 576 F.2d 111 (6th Cir.

edi dk: oe ea = Bp; } Renee

United States vy. Valenzuela, 521 F.2d 414 (8th

Cir. 1975) cert. den. 424 U.S. 916 (1976) ...........

United States v. Wilson, 420 U.S. 332, 95 S.Ct.

BORD. GS LEG, BE Bae CRO SD csceretcbictcecttkeossvosvans

Statues

US. Ciel. i Wi ae ics ccictcnsiedicdeenatbavcscceidnieh

BEE, OE, ED CG pcsvicecpcesttnatabrdenatnabbctincmavicrcende

Ill. Rev. Stat. 1977, ch. LIOA, § 315, 367 oo.

Ill. Rev. Stat. 1969, ch. 38, § 5-2, 20-1(a)(b) .........

23, 25, 26

22, 23

No. 78-1744

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

ALBERT BERLAND,

Petitioner,

vs.

THE PEOPLE OF THE STATE

OF ILLINOIS,

Respondent.

ON PETITION FOR A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the I'linois Appellate Court, First District,

is reported as People v. Albert Berland et al., 52 Ill. App.3d 96,

376 N.E.2d 181 (1st Dist. 1977). The opinion of the Illinois

Supreme Court, reversing the judgment of the Illinois Appellate

Court, is reported as People v. Albert Berland, et al., 74 Ill.2d

286, 385 N.E.2d 649 (1979).

JURISDICTION

The jurisdictional requisites have been set forth in the

Petition for a Writ of Certiorari. However, as treated more

fully within the following argument, the respondent does not

believe that the petitioner has shown any good reason for this

Court to exercise its sound judicial discretion to grant his

petition.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Illinois Supreme Court’s grant of dis-

cretionary review of the State’s Appeal of a decision of the

Illinois Appellate Court reversing without remandment the

petitioner’s conviction, inter alia, due to the sufficiency of the

evidence, comports with the Double Jeopardy Provisions of the

Illinois and United States Constitutions where the Illinois

Supreme Court reinstated the conviction and did not order a

new trial, and whether the petitioner has waived this issue for

purposes of review.

2. Whether the decision of the Illinois Supreme Court

affirming the judgment of the trial court that the petitioner was

guilty of arson with intent to defraud an insurer was proper

where the trial court’s finding was based on the overwhelming

weight of the evidence and the trial court record does not

support any reasonable hypothesis of innocence.

3. Whether the petitioner received the effective assistance

of counsel where counsel was privately retained, the petitioner’s

defense at trial did not conflict with the codefendant and there

is no showing that a different result would have obtained had

the petitioner and the codefendant procured separate counsel.

STATEMENT OF THE CASE

THE PROCUREMENT OF THE FIRE INSURANCE

AND THE PETITIONER’S POSSESSION OF THE PREM-

ISES AS A LOSING FINANCIAL INVESTMENT.

The subject premises in the instant case, a partially occu-

pied, multi-unit, three story, dilapidated apartment building,

located at 715 South Lawndale Street in Chicago, Illinois, was

partially consumed in an arson fire on November 19, 1969.

The building was purchased by the petitioner for $18,000 in

1966. (People’s Exhibit Number 5, at 5)! On June 30, 1969, an

application for fire insurance was received by the Illinois Fair

Plan Association. The application was submitted on behalf of

the Lawndale National Bank, Trust Number 4946, with the

petitioner, Albert Berland, listed as the owner of the subject

building. The petitioner listed the value of the property as

$125,000 and requested $100,000 worth of coverage. The

application contained the question, “give the applicant’s five-

year loss record for fire and extended coverage perils.” (R. 71)

(People’s Exhibit No. 9). The petitioner stated on the appli-

cation that he had no history of fire losses in the five years prior

to the application date of the policy. (People’s Exhibit No. 10)

Since 1967, and prior to the fire, the petitioner sustained fire

losses at eight separate locations. (People’s Exhibit Nos. 5 at

15, 17, 18, 20, 21, 24, 26, 27, 28) Albert Berland’s signature

appeared on the policy. (R. 63-65)

Prior to submitting the application, the petitioner brought

it to the office of Wolf, his codefendant below, to have it

notarized. (People’s Exhibit No. 8, p. 415) The application

1R. designates the transcript of record. R.C designates the

common law record. People’s Exhibit refers to those exhibits

introduced into evidence at evidence at trail by the People, the

respondent here. Pet. Post-Trial Exhibit refers to those exhibits

introduced into evidence during the arguments on petitioner-

defendant’s post-trial motions.

was purportedly notarized by Maurice Blumenthal on June 20,

1969, (People’s Exhibit No. 9) which was slightly over nine

months after Blumenthal’s death in an automobile accident.

(People’s Exhibit No. 13) The statement on the notary license

said that it would expue in November of 1970. However, if

Blumenthal had lived his license would have expired in Febru-

ary, 1971. (People’s Exhibit No. 12)

On August 13, 1969, the American Casualty Company of

Reading, Pennsylvania, a member of the Fair Plan Group, (R.

66) issued a $100,000 insurance policy on 715 South Lawndale

for the period of one year. (People’s Ex. No. 9; R. 67-69)

On August 12, 1968, over 35 building code violations were

found in, on and around the building by a city building

inspector. The City of Chicago filed a suit against the

Lawndale National Bank as trustee for the property at 715

South Lawndale and against Fred Cooper (An alias used by

petitioner Berland) for necessary repairs. (People’s Exhibit

No. 5 at 28-29; People’s Exhibit No. 14, City of Chicago v.

Lawndale National Bank, Trust No. 4846, 68 CH 54452) It was

ordered that the code violations be corrected by July 1, 1969.

(People’s Group Ex. No. 14) This order was continued. A

hearing on the order was scheduled for November 20, 1969,

but on November 19, 1969, the day before the hearing, the

building was set on fire and burned. (People’s Group Ex. No.

14)

The petitioner had attempted to sell the property at 715

South Lawndale. During the two years prior to the fire of

November 19, 1969, the petitioner sold the building on contract

three times. For one reason or another every buyer defaulted

on the purchase of the building. (People’s Exhibit No. 5 at 59-

62)

During the two years prior to the fire of November 19,

1969, the petitioner had steadily been losing money on the

property. At the beginning of that period he was receiving

about $650.00 per month. (People’s Exhibit No. 5 at 104)

Then he began having trouble collecting rent and his monthly

proceeds dropped to $300 and then $200. In the month prior to

the fire he collected about $250 in rent payments. Only two of

the four tenants were paying rent. (People’s Exhibit No. 5 at

104) The Building was two-thirds vacant. (Id. at 5)

THE PETITIONER’S RELATIONSHIP TO HIS CO-

DEFENDANT AND THEIR JOINT ACTIVITIES WITH

RESPECT TO THE SUBJECT PROPERTY.

Even prior to petitioner’s purchase of the property located

at 715 South Lawndale, Woif, his codefendant, was heavily

involved with him regarding that building. Wolr conducted the

preliminary negotiations with seller of the property on behalf of

petitioner. (R. 465) Petitioner represented himself to be a real

estate broker and represented Wolf to be the buyer. (People’s

Exhibit No. 3; R. 486-487) The original contract was signed by

Wolf in his name or the name of his nominee. (R. 477-478)

Wolf then gave the contract to petitioner who made an

agreement to have the Lawndale National Bank take title for

him. (R. 480)

At one point the beneficiary of the trust holding 715 South

Lawndale was listed as ‘‘Fred Cooper.” ( People’s Exhibit No. 5

at 68; People’s Exhibit No. 14) Fred Cooper was an alias used

by petitioner in some of his real estate transactions. (People’s

Exhibit No. 5 at 70) The addresses listed for Cooper were 1614

South Kedzie and 2840 North Broadway. (People’s Exhibit

No. 14) In fact, “Fred Cooper” did not reside at either of these

locations. Those locations were the business addresses of Louis

Wolf. (People’s Exhibit No. 4, at 56; People’s Exhibit No. 3 at

72, 75)

> Wolf loaned petitioner some money and petitioner exe-

cuted an assignment of collateral in the property at 715 South

Lawndale to William Berke until petitioner had repaid Wolf.

(R. 503) Berke was Wolfs nephew and Wolf listed William

Berke as a beneficiary for the purpose of insuring that property

would pass to Berke if Wolf died. (People’s Exhibit No. 2 at

16, 39)

Wolf performed duties concerning the upkeep at 715 South

Lawndale. He referred subcontractors to peutioner. (People’s

Exhibit No. 3 at 121) He ordered coal for the building.

(People’s Exhibit No. 5 at 127) Wolf stated that he looked

after the building because it was a problem. (R. 502) In fact,

soon after petitioner purchased the property Wolf offered his

services to petitioner to help him find good tenants to live there.

(People’s Exhibit No. 5 at 65-66) When Wolf collected the

rents it was at petitioner’s request. (R. 498-499) In approxi-

mately the four years in which petitioner owned the building,

Wolf collected rents for him on at least ten occasions. (R. 499)

Wolfs significant involvement with the building also in-

volved filing lawsuits, in his own name, on petitioner’s behalf.

Wolf filed a lawsuit against Thelma Dillon, a tenant in the

building located at 715 South Lawndale, for forcible entry and

detainer. (R. 511; People’s Exhibit No. 28, Wolf v. Dillon, 69

MI 80679, filed October 14, 1969).

THE ARSON FIRE

On November 19, 1969, the premises at 715 South Lawn-

dale, Chicago, Illinois, were set on fire and were permanently

damaged.

Evelyn Mayberry testified that, on the date of the fire, she

lived at 716 South Lawndale in an apartment across the street

from the subject premises. Two men in a dark colored station

wagon pulled up on Lawndale Street going north. They parked

on the east side of the street and sat in the car for a while

looking up and down the block. It appeared as if they were

watching to see if anyone was coming. The man on the driver's

side exited and took a gasoline can out of the back of the station

wagon. He went into the building at 715 South Lawndale.

Then the other individual took a ladder out of the station

wagon and also entered the building at 715 South Lawndale.

Mrs. Mayberry identified Louis Wolf as the man who carried

the gasoline can into the building. (R. 134-139)

Mrs. Mayberry recognized the first individual, the one who

took the gas can out of the automobile, because she had seen

him the previous Sunday, November 16, 1969. That day Wolf

and another man were parked in the alley just east of her

apartment building. She watched him for about five minutes

that day. On the Monday pnior to the fire she saw Wolf taking

the locks off 715 South Lawndale. Again, he was accompanied

by another individual. On Tuesday, Wolf and another man

drove by the building two or three times in a dark colored

station wagon. (R. 140-141)

Albert Kyles testified that on the morning of November 19,

1969, he was sitting on the front steps of the apartment

building, directly across from 715 South Lawndale. He saw

two men in a station wagon pull up in front of the building and

park across the street from where he was sitting. Both men

exited from the car. The driver carried a gas can and the other

man went around to the back of the station wagon and took out

a ladder. Mr. Kyles saw both men enter the building. In court,

Mr. Kyles identified Wolf as the man who was the driver of the

car. (R. 105-107) Albert Kyles had seen Wolf collect the rent

from his aunt who had previously lived in the building at 715

South Lawndale. (R. 111, 128) Kyles had even once paid the

rent to Wolf himself. (R. 130) Wolf stated that he had

possibly collected the rent at 715 South Lawndale as many as

ten times. (R. 499)

Wolf was carrying the gasoline can and was leaning to one

side, as if there was something in the can. The men went into

the building and exited a few minutes later. When Wolf came

out of the building Mr. Kyles noticed that he was swinging the

gas can as if it were empty. The two men got into the car and

drove off. (R. 108-109)

After several minutes elapsed Mr. Kyles noticed that there

was smoke coming from the building at 715 South Lawndale.

The fire department arrived and Mr. Kyles remained at the

scene.

At trial Wolf presented an alibi defense which the Illinois

Supreme Court later characterized as a “recent concoction,”

and being of “recent origin.” The Court held that “The

identification was strong and the alibi was impeached.” People

v. Berland, supra, 74 Ill. 2d at 307.

After the blaze at 715 South Lawndale was extinguished,

Lieutenant Francis Raymond Burns, a fire investigator, em-

ployed by the Chicago Fire Department, entered the premises

at 715 South Lawndale. He determined that the fire began in a

vacant bathroom of an apartment located on the third floor.

The bathroom contained no materials that would sustain

combustion. Lieutenant Burns testified that the fire burned

downward and said that “heat or fire never burns downward

unless there is an outside force of some sort, and in this

particular instance it would be an accelerant.” (R. 168-169)

His conclusion was that the fire was not of natural origin.

THE TRIAL AND THE APPEAL

The petitioner and Wolf were charged with the crime of

arson, committed with intent to defraud an insurer, in violation

of Illinois Revised Statutes (1969), ch. 38, sec. 20-1(b) of the

Criminal Code. They were also charged with conspiracy to

commit arson in violation of Illinois Revised Statutes (1969),

ch. 38, sec. 8-2. Wolf, alone, was charged with arson ( burning

a building without the owner’s consent) in violation of Illinois

Revised Statutes (1969), ch. 38 sec. 20-1(a). On May II,

1973, the grand jury returned the instant indictment (No. 73-

1441). (R. C4-7) The petitioner and Wolf hired one private

counsel to conduct their defense. During the presentation of the

State’s case in chief, Wolf procured additional counsel to

represent him during the trial. (R. 202) Count one of the

indictment charging Wolf with arson, in that he burned a

building without the owner’s consent, was nolle prossed at the

close of the State’s case in chief.

Both petitioner and Wolf pleaded not guilty. Petitioner

did not testify and Wolf denied his presence at the scene of the

fire. Neither petitioner, nor his codefendant Wolf, tried to

establish his defense by implicating the other.

After a bench trial, both the petitioner and Wolf were

found guilty of arson, with intent to defraud an insurer, and

conspiracy to commit arson. A motion in arrest of judgment on

the conspiracy count was granted on the basis that the appli-

cable statute of limitations had expired. The petitioner was

sentenced to serve a term of 14 to 4% years in the Illinois State

Penitentiary and was ordered to pay a fine of $10,000.

Following the petitioner’s conviction he filed a timely

appeal to the Illinois Appellate Court, First District. That court

reversed the petitioner’s conviction for arson with the intent to

defraud an insurer on the basis that petitioner had been denied

the effective assistance of counsel due to counsel’s alleged

conflict of interest and on the basis that the State failed to prove

petitioner guilty beyond a reasonable doubt. People v. Berland,

52 Ill. App. 3d 96, 376 N.E. 2d 181 (Ist Dist. 1977).

Pursuant to the provisions of Illinois Revised Statutes

(1977) ch. LIOA, sec. 615, the People of the State of Illinois

petitioned the Illinois Supreme Court for leave to appeal the

judgment of the Illinois Appellate Court, First District. The

Illinois Supreme Court granted leave to appeal and reversed

the judgment of the Illinois Appellate Court, First District,

People v. Berland, 74 Ill. 2d 286, 385 N.E. 2d 649 (1979). in

its opinion the Illinois Supreme Court held inter alia, that there

was no actual conflict of interest in privately retained defense

counsel’s joint representation of Petitioner and his codefendant,

that counsel’s representation was competent and that the

petitioner was proved guilty of arson with intent to defraud an

insurer beyond a reasonable doubt on the theory of account-

ability.

The petitioner filed a petition for rehearing in the Illinois

Supreme Court in which he challenged, for the first time, the

State’s right to petition the Illinois Supreme Court for leave to

appeal a judgment of the Appellate Court wherein the Appel-

late Court reverses a defendant’s conviction for, among other

things, the sufficiency of the evidence. The petitioner’s petition

for rehearing was summarily denied, without comment. It is

from the decision of the Illinois Supreme Court that the

petitioner brings the petition for certiorari.

REASONS FOR DENYING THE PETITION FOR

A WRIT OF CERTIORARI

THE DECISION OF THE ILLINOIS APPELLATE

COURT REVERSING THE CONVICTION OF PETITION-

ER FOR ARSON WITH INTENT TO DEFRAUD AN IN-

SURER DID NOT OPERATE AS AN ACQUITTAL OF THE

PETITIONER; THEREFORE, THE ILLINOIS SUPREME

COURT’S GRANT OF DISCRETIONARY REVIEW AND

SUBSEQUENT REVERSAL OF THE DECISION OF THE

APPELLATE COURT WAS PROPER AND DID NOT OF-

FEND THE PROSCRIPTIONS AGAINST DOUBLE JEOP-

ARDY. THIS ISSUE WAS NOT RAISED UNTIL THE

PETITION FOR REHEARING IN THE ILLINOIS SU-

PREME COURT AND IS THEREFORE WAIVED FOR

PURPOSES OF REVIEW IN THIS COURT.

The petitioner first requests that a Writ of Certiorari be

granted by this Court on the basis that the Illinois Supreme

Court’s grant of discretionary review pursuant to the petition

for leave to appeal filed by the People of the State of Illinois

from the decision of the Illinois Appellate Court, First District,

offends the proscriptions against double jeopardy contained in

Article VI, Section 6, of the Illinois Constitution and the Fifth

A.mendment of the United States Constitution. The respondent

maintains that the petition for certiorari is improperly brought

upon this basis, for the petitioner waived the issue by raising it

for the first time in a petition for rehearing in the Illinois

Supreme Court, has failed to show that the Illinois Supreme

Court has decided a federal question not theretofore deter-

mined by this Court, or that the Illinois Supreme Court has

resolved this question in a way probably not in accord with the

applicable decisions of this Court. See Rule 19(1)(a) of the

Supreme Court of the United States. The respondent maintains

that the judgment of the Illinois Appellate Court which re-

versed the petitioner’s conviction for arson with intent to

defraud an insurer did not operate as an acquittal of the

petitioner. The respondent further maintains that the Illinois

Supreme Court’s grant of discretionary review of the decision of

the Illinois Appellate Court, First District, and the Illinois

Supreme Court’s subsequent reversal of the Appellate Court’s

decision without remandment was completely in accord with

Illinois Supreme Court rules and did not violate the double

jeopardy proscriptions of the Illinois and United States Con-

stitutions.

The respondent observes, at the outset that this particular

issue was not raised in the Illinois Supreme Court at the time

petitioner filed his brief in the Illinois Supreme Court. In fact,

the first time this issue was raised by the petitioner was in a

petition for rehearing in the Illinois Supreme Court following

that Court’s reversal of the decision of the Illinois Appellate

Court, First District, and the reinstating of the trial court’s

judgment of conviction. The respondent notes that in Illinois a

response to a petition for rehearing is not permitted unless

ordered by the court.. Ill. Rev. Stat. 1977, ch. 110A, sec. 367.

The People of the State of Illinois were not requested to file a

response to the petitioner’s petition for rehearing, so none was

filed. Moreover, the law in Illinois is clear that a new

contention “cannot, for the first time be urged in a petition for

rehearing.” People v. Mallett, 45 Ill. 2d 388, 259 N.E. 2d 241

(1970).

On February 20, 1979, the Illinois Supreme Court sum-

marily denied the petitioner’s petition for rehearing without

addressing the issue. The respondent therefore maintains that

the petitioner has waived this contention for purposes of review

by this Court. The respondent submits that the judgment of the

Illinois Supreme Court is not reviewable by this Court where it

is raised for the first time in a petition for rehearing in the

Illinois Supreme Court, especially where the higher State court’s

denial, as in the instant case, was summary in nature. Hanson

v. Denckla, 357 U.S. 235, 243, 244, 78 S. Ct. 1228, 2 L. Ed. 2d

1283 (1958).

Although the petitioner has failed to show the need for this

Court, in its sound discretion, to grant his petition, the respond-

ent, confident that the Illinois Supreme Court has properly

disposed of this issue in its summary denial of petitioner’s

petition for rehearing, will briefly address the merits. The

respondents maintain that the Illinois Supreme Court has on

several previous occasions reviewed the exact issue raised by

the petitioner in his petition for a writ of certiorari, and has

resolved the issue in favor of the respondent. People v.

Schwartz, 58 Ill. 2d 274, 319 N.E. 2d 33 (1974); People v.

Powell, 72 Ill. 2d 50, 377 N.E. 2d 803 (1978) cert. den. ____

US. . 59 L. Ed. 2d 455, 99 S. Ct. 1214 (1979). In both

Schwartz and Powell, the defendants attacked the jurisdiction

of the Illinois Supreme Court to review decisions of the Illinois

Appellate Court which reversed defendant’s convictions due to

an alleged evidentiary insufficiency. The Illinois Supreme

Court in both Schwartz and Powell, held that the proscriptions

against double jeopardy are not affected, where in a two-tier

system of Appellate Review such as exists in Illinois, the State

pursuant to Illinois Supreme Court Rule is given a right to

petition for leave to appeal to the Supreme Court from the

Appellate Court. Ill. Rev. Stat. 1977, ch. 110A, sec. 315. The

Illinois Supreme Court stated both in Schwartz and Powell, that

the defendants were convicted in the trial court, not acquitted,

and that it was the Appellate Court which found the evidence to

be insufficient. The Illinois Supreme Court held that the

question is the finality of the Appellate Court’s judgment, and,

so long as discretionary review is available to the State, the

process of review has not been completed. Schwartz, supra, at

276; Powell, supra, at 60. In Schwartz, the Illinois Supreme

Court reversed the cause with remandment to the Appellate

Court with directions to consider the remaining issues. In both

Poweli and the instant case the Illinois Supreme Court reversed

the judgment of the Appellate Court and affirmed the decision

of the Circuit Court of Cook County. Neither in Schwartz, nor

in Powell, nor in the instant case, did the Illinois Supreme Court

order the defendant to be tried anew. cf. Burks v. United States,

437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978).

In United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232,

95S. Ct. 1013 (1975), this Court held that when a trial judge,

on a post-verdict motion, rules in favor of a defendant after he

has been found guilty by the trier of fact, the government may

appeal the trial court’s ruling without contravening the Double

Jeopardy Clause of the United States Constitution. This Court

stated, “The constitutional protection against government ap-

peals attaches only where there is a danger of subjecting the

defendant to a second trial for the same offense.” Wilson, at

336. The Court went on to say that where reversal on appeal

would merely cause the jury’s verdict to be reinstated the

proscription against double jeopardy is not violated. This Court

further stated that even where an indictment is dismissed and a

defendant is discharged, “it 1s well settled that an Appellate

Court’s order reversing a conviction is subject to further re-

view.” Wilson, at 345. The respondent maintains that this

Court’s opinion in Wilson is controlling and clearly shows that

the discretionary review allowed in this case does not offend the

double jeopardy clauses of either the Illinois or United States

Constitutions.

In seeking to have certiorari granted on this issue, the

respondent relies on this Court’s opinion in Burks v. United

States, supra, 437 U.S. 1,57 L. Ed. 2d 1, 98S. Ct. 2141 (1978).

The respondent submits that Burks is totally inapplicable to the

instant case. In Burks, this Court specifically limited its holding

providing that the double jeopardy clause prohibits the retrial

of a defendant after the reviewing court has determined the

evidence to be insufficient. This Court in Burks did not hold

that the government was to be precluded from applying for

discretionary review following an Appellate Court’s determina-

tion that the evidence presented at trial was insufficient to

sustain a conviction. A new trial was not ordered in the instant

case and therefore the peutioner will not be placed again in

jeopardy.

For all of the reasons noted above, the respondent urges

that this issue was properly decided by the Illinois Supreme

Court, and because the petiuoner has failed to show any need

for this Court to grant his petition for certiorari, his petition

should be denied.

THE DECISION OF THE SUPREME COURT OF

ILLINOIS AFFIRMING THE JUDGMENT OF THE TRIAL

COURT THAT THE PETITIONER WAS GUILTY OF AR-

SON WITH INTENT TO DEFRAUD AN INSURER WAS

SUPPORTED BY THE OVERWHELMING WEIGHT OF

THE EVIDENCE AND THE RECORD DOES NOT SUP-

PORT ANY REASONABLE HYPOTHESIS OF PETITION-

ER’S INNOCENCE. PETITIONER HAS FAILED TO

SHOW ANY NEED FOR THIS COURT TO GRANT HIS

PETITION FOR A WRIT OF CERIORARI.

The petitioner next requests that a Writ of Certiorari be

granted by this Court on the ground that the evidence adduced

against him in the trial court is insufficient to support his

conviction for arson with intent to defraud an insurer. In

answer, the respondent maintains that a Writ of Certiorari is

improperly sought upon this basis.

In essence, the petitioner is asking this Court to review the

lengthly trial record and accompanying exhibits (over 3,000

pages) to see if this Court can find what the Illinois Supreme

Court could not find, a reasonable hypothesis of the petitioner's

innocence. This Court has repeatedly held, ‘We do not grant a

certiorari to review evidence and discuss specific facts.” United

States v. Johnston, 268 U.S. 220, 227, 45 S. Ct. 496, 69 L. Ed.

925 (1925). “There are no exceptional circumstances of any

kind that would justify” this Court in rejecting the findings of

the Illinois Supreme Court, for those findings are clearly

supported by the overwhelming weight of the evidence. Fry

Roofing v. Wood, 344 U.S. 157, 160, 73 S. Ct. 204, 97 L. Ed. 2d

168 (1952). Although the petitioner has failed to show the

need for this Court, in its sound discretion, to grant his petition,

the respondent, confident that the Illinois Supreme Court has

properly determined this issue, will briefly address the merits.

The petitioner's argument on this point, rather than,

reviewing the overwhelming circumstantial evidence adduced

against the petitioner, merely states that the evidence was

“woefully inadequate” and then provides the citation to two

totally inapplicable cases. Yet, Judge Aspen, the trial court

judge, who carefully weighed the evidence, found that there

was no reasonable hypothesis of innocence. Holland v. United

States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954);

People v. Taylor, 32 Ill. 2d 165, 204 N.E. 2d 734 (1965).

The Illinois Supreme Court, in reversing the decision of the

Illinois Appellate Court, noted the superior position of the tral

court to observe the witnesses and reiterated the maxim that the

reviewing court should not substitute its judgment for that of

the trier of fact. People v. Berland, 74 Ill. 2d 286, 306, 385

N.E.2d 649 (1979). The evidence clearly shows that petitioner

was “accountable for the offense even though he did not

physically set fire to the building.” Berland, supra, at 309; Ill.

Rev. Stat. 1969, ch. 38, sec. 5-2.

The evidence at trial clearly showed that petitioner’s

codefendant, Louis Wolf, set the arson fire which resulted in the

destruction of the premises located at 715 South Lawndale. He

was observed by two eyewitnesses who had seen him on

previous occasions, enter the premises, with a full gasoline can

and was then observed leaving, carrying an empty gasoline can.

Although Wolf provided an alibi defense the Illinois Supreme

Court termed that alibi a “recent concoction,” being of “recent

origin’, and stated that the “alibi was impeached.” Berland,

supra, 74 Ill. 2d at 307.

The evidence presented to the trial court showed tnat

petitioner and co-defendant Wolf were inextricably interwined

in the purchase and management of the subject premises. Wolf

was intimately involved in the purchase of the property and in

fact he purchased the property alternatively in his name or the

name of his nominee. (R. 477-478)

Both the petitioner and Wolf were involved in the chain of

utle to 715 South Lawndale. At one point the beneficiary of the

trust was listed as “Fred Cooper.” (People’s Ex. No. 5, at 68;

see also People’s Ex. No. 14) “Fred Cooper” was an alias used

by Albert Berland. (People’s Ex. No. 5, at 70) Significantly,

Cooper’s address was given as 1614 South Kedzie and 2840

North Boadway. (People’s Ex. No. 14) Both of these locations

were in fact business addresses of Louis Wolf. (People Ex. No.

4, at 56; People’s Ex. No. 3, at 72, 75)

Wolf loaned petitioner some money and petitioner exe-

cuted an assignment of collateral in the property at 715 South

Lawndale to William Berke until petitioner had repaid Wolf.

( People’s Ex. No. 5, at 143; People’s Ex. No. 2 at 43; R. 503-5)

Berke was Wolf's nephew and Wolf listed William Berke as a

beneficiary for the purpose of insuring that property would pass

to Berke if Wolf died. (People’s Exhibit No. 2 at 16, 39)

During the two years prior to the fire, petitioner’s proceeds

from the rental property had steadily diminished. In the month

prior to the fire, only 2 of the 4 tenants were paying rent and the

building was two-thirds vacant. (People’s Exhibit No. 5 at 5,

104)

The facts also show that petitioner’s application for fire

insurance on the subject property contained false information

and the notary seal on that policy application had been forged

as the notary had been dead for 9 months at the time his seal

was affixed. (People’s Pet. at 37) The application for the fire

insurance policy on the subject premises required that the

applicant list his history of fire losses in the five years prior to

the date of the application. The petitioner entered the word

“none” in response to the question. In ‘fact, the evidence

showed that since 1967 and prior to the date of the fire,

November 19, 1969, the petitioner had sustained fire losses on

eight occasions. (People’s Exhibit No. 5 at !5, 17, 18, 20, 21,

24, 26, 27, 28) The petitioner’s signature appeared on the

application.

Although, the petition for a writ of certiorari states, “We

view this fact as incidental since Berland never denied signing

the application” (Pet. for Cert. at 9, n. 7), the respondent

submits that far from being “incidental,” the false statement on

the policy application clearly evinced the petitioner’s intent to

defraud the insurance company.

The respondent would further note that in addition to the

fraudulent application it appeared that the amount of the

insurance procured, $100,000, was greatly in excess of the value

of the property and certainly far in excess of the purchase price

of $18,000. The petitioner, in the trial court attempted to show

that the building was not over insured. However, the trial court

recognized that the amount of insurance was irrelevant because,

“the gist of the fraud upon the insuror was the burning of the

building by the insured regardless of what the replacement cost

was.” (R. 897)

The petitioner had been cited by the City of Chicago for

over 35 building code violations concerning the subject prem-

ises. The City of Chicago had asked for a fine of $6,800 or the

correction of the code violations. The cause was continued unul

November 206, 1969, but on November 19, 1969, the day before

the scheduled hearing the building was set on fire and burned.

The cases cited by the petitioner in support of his position

are distinguishable both on their facts and on the law. In the

instant case there was a wealth of evidence tying the petitioner

to the arson fire. In the instant case not only did the evidence

show the petitioner’s motive and procurement of an excessive

amount of insurance but the evidence in the instant case

showed the fraudulent procurement of the insurance and the

eyewitnesses testimony that the codefendant, the man from

whose office the false notary seal was obtained and the man

who was intertwined with petitioner in the purchase and

management of the building, carried a full gasoline can into the

premises and left with an empty one. A short time later the

blaze erupted.

There is absolutely no reason that can be inferred from any

testimony as to why Wolf wou!? burn the building without

Berland’s consent. It is clear from the evidence that Wolf knew

of Berland’s problems with 715 South Lawndale and had tried

to help him gain some financial reward from his investment. It

is clear that Wolf burned the building at 715 South Lawndale.

It is equally clear that Wolf would not have burned the building

without Berland’s assent. For Wolf to have taken such an

action was out of the question. He testified that he had been

friends with Berland for over thirty years. There is no evidence

that they had any type of disagreement, or that Berland owed

Wolf any money. In short, everything that Wolf did regarding

the subject building was done with the advice, consent, acquies-

cence and aid of petitioner. They were in the scheme together.

There is no reasonable hypothesis consistent with the

petitioner’s innocence. The respondent maintains that because

this issue was properly decided by the Illinois Supreme Court

on the basis of the trial record, the petitioner has failed to show

any need for this Court to grant his petition for a writ of

certiorari and entertain a de novo review of the facts in this case.

Therefore, the petition for certiorari should be denied.

THE PETITIONER RECEIVED THE EFFECTIVE AS-

SISTANCE OF COUNSEL WHERE COUNSEL WAS

PRIVATELY RETAINED, THE PETITIONER’S DEFENSE

AT TRIAL DID NOT CONFLICT WITH THAT OF THE

CODEFENDANT AND THERE IS NO SHOWING THAT A

DIFFERENT RESULT WOULD HAVE OBTAINED HAD

THE PETITIONER AND THE CODEFENDANT PRO-

CURED SEPARATE COUNSEL. PETITIONER HAS

FAILED TO SHOW ANY NEED FOR THIS COURT TO

GRANT HIS PETITION FOR A WRIT OF CERTIORARI.

The petitioner further seeks the granting of a writ of

certiorari by this Court, and claims that the facts in the instant

case would allow resolution of the questions of how strong a

showing of conflict of interest must be and the scope of the duty

of the trial court in cases where jointly represented defendants

have allegedly conflicting interests. (Pet. for Cert. at 21) The

respondent maintains, however, that the facts in the instant case

neither permit the formulation, nor the resolution of either

question posed by the petitioner. Moreover, the respondent

notes at the outset that a petition for a writ of certiorari is

improperly brought upon this basis, for the petitioner has failed

to show that the Illinois Supreme Court has decided such a

question in a way probably not in accord with applicable

decisions of this Court. See, Rule 19(1)(a) of the Supreme

Court of the United States. Although the petitioner has

completely failed to show the need for this Court, in its sound

discretion, to grant his petition, the respondent, believing that

the Illinois Supreme Court has properly determined this issue

upon the merits will briefly address those merits.

The Illinois Supreme Court in its opinion below in the

instant case, held that “a defendant must show actual conflict of

interest manifested at trial in order to prevail in a constituuonal

claim of ineffective assistance of counsel due to joint representa-

tion of co-defendants by a single attorney.” People v. Berland,

74 Ill.2d 286, 300, 385 N.E.2d 649 (1978). The petitioner has

not shown, and cannot show, that an actual conflict of interest

existed under the instant facts.

The indictment returned against the petitioner and his

codefendant consisted of three counts. Only counts one and

two are relevant here. Count one charged Louis Wolf with

arson, in that he burned the apartment building located at 715

South Lawndale, Chicago, without the consent of the owner, in

violation of Illinois Revised Statutes (1969), Ch. 38, § 20-1I(a).

(R. C4) Count two charged both Louis Wolf and petitioner

Albert Berland, with the crime of arson, committed with the

intent to defraud an insurer (R. CS), in violation of Illinois

Revised Statutes, 1969, Ch. 38 § 20-1(b). Count one of the

indictment, which charged Wolf with burning a building owned

by Albert Berland, without his consent, was nolle prossed on the

People’s motion at the close of the People’s case when the court

stated that it would preclude proof on both counts one and two.

(R. 321) The petitioner and his codefendant were convicted on

count two of the indictment which charged them with arson

with intent to defraud an insurer. Petitioner and his codefen-

dant were represented at trial by one, privately retained

counsel. New privately retained counsel represented the peti-

toner during the post-trial motions and on appeal.

The Illinois Supreme Court held that the record in the

instant case was “devoid of any evidence of an actual conflict of

interest.” Berland, supra, 74 Ill. 2d at 300. The respondent

submits that the Illinois Supreme Court was clearly correct.

Wolf's defense was that he was not present at 715 South

Lawndale at the time the crime occurred. He stated that he did

not know about the fire until several days to a week after the

loss. (R. 489) Wolf presented an alibi defense to show that he

was at the law office of Mr. Samuel Siegel on the morning of

the fire. Petitioner did not present an alibi defense and the trial

court acknowledged that there was no evidence showing peti-

tioner’s presence at the scene of the fire. Petitioner’s defense

was basically one of denial and he presented testimony in an

attempt to show that the building was not over insured in an

effort to negate the prosecution’s evidence of motive. Clearly,

there was no conflict in these defenses and neither defendant

sought to implicate the other in any manner. People v.

Somerville, 42 Wl.2d 1, 9, 245 N.E.2d 461 (1969); People v.

Craig, 47 Ill. App.3d 242, 361 N.E.2d 736 (ist Dist. 1977).

The petitioner speculates that defense counsel’s representa-

tion of him was hampered because of privately retained

counsel’s representation of the codefendant.* The Illinois Su-

preme Court has specifically rejected creating a “conflict of

interest out of mere conjecture as to what might have been

shown.” People v. Somerville, 42 Ill. 2d 1, 245 N.E.2d 461

(1969).

In the instant case, neither Wolf nor petitioner was

attempting to establish his defense by implicating the other. In

fact, petitioner was benefitted by Wolfs testimony wherein he

disclaimed presence at the premises in question on the morning

of the fire, as that testimony would if anything tend to negate

petitioner’s involvement in the crime. Moreover, there was no

reason to assume that petitioner would ever try to show that

Wolf burned the building without his consent, had he been

represented by different counsel or even if he had been tried

separately.

There is absolutely no reason that can be inferred from any

testimony as to why Wolf would burn the building without

petitioner’s consent. For Wolf to have taken such an action is

2In United States v. Steele, 576 R.2d 111 (6th Cir. 1978), the

sixth circuit court of appeals declined to adopt a per se rule under the

‘xth amendment requiring jointly represented defendants to be

advised of their right to separate counsel in cases where, as here, joint

counsel was privately retained.

out of the question. He testified that he had been fr:ends with

petitioner for over thirty years. There is no evidence that they

had any type of disagreement, or that petitioner owed Wolf any

money. Clearly, any allegation of conflict of interest is pure

speculation. Their defenses did not conflict with one another.

The Illinois Supreme Court’s position of refusing to reverse

a conviction because of speculation as to what might have been

has been followed by a number of Federal Circuit Courts of

Appeals. United States v. Medel, 592, F.2d 1305 (Sth Cir.

1979); United States v. Steele, 576 F.2d 111 (6th Cir. 1978)

cert. den. 99. S.Ct. 313; United States v. Mandell, 525 F.2d 671

(7th Cir. 1975); Smith v. Regan, 583 F.2d 72 (2d Cir. 1978);

cert. den. 435 U.S. 406. United States v. Eaglin, 571 F.2d 1069

(9th Cir. 1977) cert. den. 435 U.S. 406. United States v..

Valenzuela, 52! F.2d 414 (8th Cir. 1975) cert. den. 424 U'S.

916 (1976).

Moreover, the petitioner’s cause was advanced by counsel

without sacrificing his interests in favor of the codefendant

before trial, during the prosecution’s case in chief, and during

the defense case in chief. Counsel conducted a pre-trial

investigation, filed and argued pre-trial motions, made objec-

tions to various exhibits, argued points of law, cross-examined

the State’s witnesses and presented a defense. Additionally,

during the presentation on the State’s case in chief defendant

Wolf was represented by a second privately retained attorney.

(R. 259) At the conclusion of those arguments the State nolle

prossed count one of the indictment. (R. 321) Therefore, at the

time the defense presented its case the only count on which the

defendant and the petitioner were being tried was count two.

The respondent submits that the instant case is precisely

the type of case where a joint representation is more effective

for the defendants. As the Court of Appeals said in United

States v. Medel, 592 F.2d 1305, 1312 (Sth Cir. 1979),” when

the parties’ interests were so closely related, if either had

suggested that the other party was guilty, then this allegation

might have worked to the detriment of the accusing party.” As

Mr. Justice Fragktfurter said in his dissent in Glasser v. United

States, 315 U.S) 60, 92, 62 S.Ct. 457 86 L.Ed. 680 (1942),

quoted approvingly in Holloway v. Arkansas, 435 U.S. 475, 98

S.Ct. 1173, 55 L.Ed2d 426 (1978), “Joint representation is a

means of ensuring against reciprocal recrimination. A common

defense often gives strength against a common attack.” This

Court in Holloway clearly enunicated that, “Requiring or per-

mitting a single attorney to represent co-defendants, ... 1s not

per se violative of constitutional guarantees of effective assis-

tance of counsel.”” Holloway supra, 435 U.S. at 482.

The Illinois Supreme Court extensively discussed both the

holdings in Glasser v. United States, supra, and Holloway,

supra, in their opinion in Berland, supra.

The court has refused an invitation to require tnal judges

to ascertain that co-defendants’ decisions to proceed with

one attorney are informed ( People v. Somerville (1969),

42 Ill. 2d 1, 10). The crucial determination is whether

there is a conflict, since absent such conflict there is no

threat to a defendant's right to the assistance of separate

counsel. . Neither Glasser v. United States, (1942), 315

U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, nor Holloway v.

Arkansas, (1978), 435 U.S. 475, 55 L.Ed. 2d 426, 98 S.Ct.

1173, indicate that a pretrial inquiry and waiver of sepa-

rate counsel is mandated tn all cases of joint representa-

tion. Because joint representation is not per se uncon-

stitutional there is no need to require judicial inquiry unul

the conflict appears. The language in Glasser and Hol-

loway that it is the duty of the trial judge to see that the

trial is conducted with solicitude for the essential nghts of

the accused is directed specifically to trial court insistence

upon joint representation where counsel or the defendant

has requested separate representation. Since there was no

conflict here, judicial inquiry was not required. Berland, at

3085,

There was no objection to joint representation voiced by

privately retained counsel, nor by the petitioner or his co-

defendant in the instant case and there was no actual conflict.

The facts of the instant case, therefore, do not fall within the

ambit of Holloway v. Arkansas, supra, and render Holloway

inapplicable to the case at bar. See Thacker v. Bordenkircher,

590 F.2d 640 (6th Cir. 1979).

The petitioner urges that this Court set guidelines for all

Federal and State Courts to follow in situations where co-

defendants are jointly represented. He asks that an “affirma-

tive duty” be placed on the trial judge “to assure that criminal

defendants represented by single counsel are advised of the

possibility of conflicting interests.” (Pet. at 21) The petitioner

urges as a guideline to implement the standards that this Court

adopt the reasoning of the Court of Appeals in the United

States v. Gaines, 529 F.2d 1038 (7th Cir. 1976). Yet, the

Gaines Court stated that not until an “actual conflict appears”

. must “the Court ... bring the fact of its existence,” to the

attention of the parties. Gaines, supra, at 1044. There being no

actual conflict in the instant case ( People v. Berland, supra, 74

Il.2d at 300), the Gaines rationale cannot possibly apply in the

instant case. Moreover, as the Court of Appeals said in United

States v. Mandell, supra, 525 F.2d 671 (7th Cir. 1975) cert.

den. 423 U.S. 1049 (1976), “the primary responsibility for the

ascertainment and avoidance of conflict situations must lie with

the members of the bar. Accord, United States v. Paz-Sierra,

367 F.2d 930, 932-933 (2d Cir. 1966); United States v.

Boudreaux, 502 F.2d 557 (Sth Cir. 1974). This Court in

Holloway v. Arkansas, supra, held that “an attorney represent-

ing two defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of

interest exists or will probably develop in the course of a trial.”

98 S.Ct. 1173 at 1179.

It is clear that those Courts which have placed a heavy

burden on the trial judges rather than on trial counsel to

identify conflicts and advise the parties have done so pursuant

to their “supervisory powers”, rather than on consututional

grounds. United States v. Foster, 469 F.2d 1, 4 (Ast Cir. 1972);

United States v. Cox, 580 F.2d 317 (8th Cir. 1978) explaining

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

Lollar vy. United States, 376 F.2d 243 (D.C. Cir. 1967) A

number of the Circuit Courts of Appeal have declined to

exercise their supervisory powers and implement an affirmative

inquiry requirement on the trial court. See United States v.

Mandell, supra, 525 F.2d 671 (7th Cir. 1975) and the cases

cited therein at 676.

For all of the above stated reasons, the respondent urges

that because the Illinois Supreme Court properly decided this

issue on the merits, because the decision of the Illinois Supreme

Court is in accord with the decisions of this Court, and because

the petitioner has failed to show any need for this Court to

grant his petition for a Writ of Certiorarn, such petution should

be denied.

CONCLUSION

The People of the State of Illinois respectfully request that

the petition for a writ of certiorari be denied.

Respectfully submitted,