Petition — Partin v. United States

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

+ "al

| ILE D

) QT 19 1979

incu i RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

€9-646

EDWARD GRADY PARTIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERT J. MILLER, JR.

MARTIN D. MINSKER

WILLIAM H. JEFFRESS, JR.

MILLER, CASSIDY,

LARROCA & LEWIN

2555 M Street, N.W.

Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner.

Washington, D.C. + THIEL PRESS « (202) 638-4521

(?)

TABLE OF CONTENTS a

re er 1

RE ILI I I 1

CP EE GG sek se see cece ce cces 2

STATUTES AND CONSTITUTIONAL

Dene MOU WU eke ce bc wee ccc cee. 2

POMP CCRC REGRET Wawa e eee a eases cccccoecs $

I ee eee 3

1. The May, 1974 Hearing On Multiple Represen-

OE re 4

2. The Events Between the May, 1974 Hearing and

I ere 6

3. Petitioner’s Third Trial: The Government

TRGWCGED GypUes OO TOG WHEE 2c ccc cece 7

4. The Decision of the Court of Appeals ........... 13

5. Subsequent Appellate Rulings ...............-. 14

REASONS FOR GRANTING THE WRIT............. 15

1, The Court of Appeals’ Holding of no Actual

Conflict of Interest is Squarely Contradicted

by Controlling Precedents of this Court and

Decisions of at Least Three other Circuits......... 17

2. The Lower Court’s Finding of Waiver Con-

flicts with Controlling Decisions of this Court

OS eS eee eee Tee 23

3. The Lower Court’s Rulings on Specific Prejud-

ice Conflict with Controlling Decisions of This

ROWE CEI Se ect e etc c ccc eee 27

eS ey ee Pe Pee eee eee 29

APPENDIX:

A. Opinion Of The Court of Appeals .............. la

B. Order Denying Petition For Rehearing .......... 22a

C. Order Extending Time To File Petition

oe ee eee ee 23a

(it)

D. Order Denying Government’s Motion For

Clarification Of Opinion ......c.eccccccecves 24a

E. Order Denying Appellant’s Motion For

UUs: 6 Ke 0 0, 08 4 ote we a eb kw HO. O.4,) 09 « Fie eo 25a

F, Order Modifying Deniai Of Appellant’s

Motion For Remand .......--ccciceccsvees 26a

AUTHORITIES CITED

Cases:

Alderman v, United States, 394 U.S. 165 ......2222006- 28

Brewer v. Maryland, 430 U.S. 387 (¥977)..........45. 16

Brewer v. Williams, 430 U.S. 387 (1977)......000 eee 24

Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974) ..17, 18, 28

Craig v. United States, 217 F.2d 355 (6th Cir.

Co at er eer we eee RS pe relate + eee oe 24

District of Columbia v. Scott, 94 U.S. App. D.C.

B27, BEG F.Be SSO CAGE onc cwies ccc vc cscsscces 20

Glasser v. United States, 315 U.S. 60 (1942)......... 15, 23

Holloway v. Arkansas, 435 U.S. 475 (1978)

cease so ois, ty we ay Ry aks Oy OF, Oe

Johnson v. Zerbst, 304 U.S. 458 (1938) ........... 23, 25

McMann v. Richardson, 397 U.S. 759 (1970)........... 24

Partin v. United States, 434 U.S. 903 (1977)............ 7

People v, Stoval, 40 Ill.2d 109, 239 N.E.2d

GEE FES Rd SASSER KO AER TAD HORE SS OTA Ow 8 25

Sawyer v. Brough, 358 F.2d 70 (4th Cir. 1966)......... 28

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

Ter eee eee re 15, 16, 23, 24, 26

Schram v. Cupp, 436 F.2d 692 (9th Cir. 1970) ......... 26

Scott v. District of Columbia, 99 A.2d 641 (D.C.

RN ok See ees COs ee ee eee bw 8 20

Stephens v. United States, 595 F.2d 1066 (5th Cir.

SORTER 6 6S ols 60-9 sin ao ON ee abe be ee 15, 17, 25, 26

(iii)

Cases, continued: Page.

Taylor v. United States, 96 U.S. App. D.C. 379,

226 F.2d 337 (1955)... cee eee cree cree 16, 20, 28

United States v. Gaines, 529 F.2d 1038 (7th Cir.

oy ar ee a ree ee re es ee ee 26

United States v. Garcia, 517 F.2d 272 (5th Cir.

| eres eer err pee eee Yeo ee ee ee 23

Urited States v. Hayman, 342 U.S. 205 (1952) ......... 21

United States v. Jeffers, 520 F.2d 1256 (7th Cir.

1975), cert. denied, 423 U.S. 1066 (1976).......- 16, 19

United States v. LaVallee, 282 F: Supp. 968

(E.D.N.Y. 1972) ...cccccccccssccccceces 16, 20, 28

United States v. .Marionneaux, 514 F.2d 1244 (5th

Se | i a eer ee ee ee ee 7

United States v. Partin, 552 F.2d 621 (5th Cir.

1977), cert. denied, 434 U.S. 903 (1977) ......---0+- 7

Whitaker v. Warden, 362 F.2d 838 (4th Cir. 1966)....... 28

Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979)

revere res Terror e: eye, ee

Zurita v. United States, 410 F.2d 477 (7th Ci.

Poe ers era yee ee ee oe eee a 16, 17, 19

Miscellaneous:

A.B.A. Code of Professional Responsibility, Canon5 .... 17

A.B.A. Code of Professional Responsibility,

Ethical Consideration 5-1 ....... 20 eee eee eee reese 17

A.B.A. Code of Professional Responsibility,

Disciplinary Rule 7-104 ........0 eee ee eeereee 2, 13

Rule 44(c), Federal Rules of Criminal Procedure ..... 26, 27

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

EDWARD GRADY PARTIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. A,

pp. la-2la, infra) is reported at 601 F.2d 1000 (1979).

JURISDICTION

The opinion of the Court of Appeals was filed on

May 7, 1979. A timely Petition for Rehearing was denied

on August 27, 1979. Pet. App. B, p. 22a, infra. On Sep-

tember 17, 1979, Mr. Justice Rehnquist extended the

time within which to file a petition for certiorari to and

including October 19, 1979. Pet. App. C. p. 23a, infra.

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

Whether a defendant’s Sixth Amendment right to

assistance of counsel with undivided loyalties is violated

when the defendant’s trial counsel also represents the

prosecution’s witness.

Whether a defendant can be held to have knowingly

and intelligently waived his Sixth Amendment right to

counsel free of a conflict of loyalties when the govern-

ment has been found to have unethically created the

conflict without the knowledge of either the defendant

or his attorney, and the defendant, upon learning of

the conflict, promptly moved for a mistrial.

Whether, assuming a conflict of loyalties violative of

the Sixth Amendment caused by unethical conduct on

the government’s part, the defendant has a burden of

proving “‘specific prejudice” in the record.

Whether “specific prejudice” is shown when the

prosecution witness, a convicted felon and an alcoholic,

was not significantly cross-examined after having testi-

fied inconsistently with a prior statement.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Sixth Amendment and the Fourteenth Amend-

ment, United States Constitution are involved.

Disciplinary Rule 7-104 of the American Bar

Association Code of Professional Responsibility is also

involved, and provides (footnotes omitted):

DR 7-104 Communicating With One of Adverse

Interest.

(A) During the course of his representation of a

client a lawyer shall not:

(1) Communicate or cause another to communi-

cate on the subject of the representation with a

party he knows to be represented by a lawyer in

that matter unless he has the prior consent of the

lawyer representing such other party or is author-

ized by law to do so.

(2) Give advice to a person who is not repre-

sented by a lawyer, other than the advice to secure

counsel, if the interests of such person are or have a

reasonable possibility of being in conflict with the

interests of his client.

STATEMENT

INTRODUCTION

The petitioner, Edward Grady Partin, was convicted

in the United States District Court, Southern District of

California, San Diego, on October 4, 1977, after a jury

trial, on three counts of conspiracy to obstruct justice

in violation of 18 U.S.C. §§371 and 1503. This was

petitioner’s third trial on an indictment originally re-

turned in the United States District Court for the Middle

District of Louisiana on October 4, 1973. Pet. App. A,

pp. 1-2 n.1, infra.

The government at petitioner’s trial called as a witness

against petitioner an individual (Harold Sykes) who had

originally been indicted along with petitioner and subse-

quently convicted in a separate trial. Sykes, at the time

he testified against petitioner, was represented by the

petitioner’s counsel. The Assistant U.S. Attorney, at

the time Sykes was called as a witness, revealed for the

first time that the government had secretly been in

contact with Sykes prior to the commencement of the

third trial and had secured his cooperation. These con-

tacts were deliberately concealed from petitioner and

the attorney representing both petitioner and Sykes.

Petitioner’s counsel premptiy and unsuccessfully moved

for a mistrial on conflict of interest grounds, so that

petitioner could secure new counsel. Petitioner himself

personally and unsuccessfully objected to continuing the

trial with his attorney.

On appeal, petitioner contended, inter alia, that he

had been deprived of his Sixth Amendment right to

assistance of counsel free of conilicts of interest by

the government’s actions. The Court of Appeals held

that the government’s conduct violated the Code of

Professional Responsibility. See Pet. App. A p. 8a, infra.

Although recognizing that the Sixth Amendment issue

posed a serious question, the lower court affirmed

petitioner’s conviction, holding that: (1) petitioner

had “waived” his Sixth Amendment right; (2) there

was no actual conflict of interest; (3) petitioner had

the burden of showing “prejudice” from the conflict

he claimed existed; and (4) petitioner failed to meet

this burden. See Pet. App. A, pp. 9a-21a, infra.

1. The May, 1974 Hearing on Multiple Represen-

tations.

The original three-count indictment against peti-

tioner named eleven other defendants. Two of the

co-defendants were Harold Sykes and Ben Trantham.

At the time of the original indictment, eight of the

defendants, including petitioner, Sykes and Trantham,

were represented by the same retained counsel, James

McPherson.! The government was represented in all

three trials by the same Assistant United States Attor-

ney, Stephen A. Mayo. Separate trials were scheduled

for several of the defendants.

On March 8, 1974, prior to petitioner’s first trial,

the government filed a “Motion to Recuse or Ascer-

tain Counsel for Defendants” in which the government

called attention to Mr. McPherson’s joint representation,

stated “That there is a unity of interest among these

defendants who are jointly represented” (td.) and asked

for a hearing in which the court might determine that

the individual defendants each have “made an informed

and knowledgeable decision as to the nature of his

representation in view of the potential for a conflict

of interest.”

On May 30, 1974, the requested hearing was held

before United States District Judge Nauman S. Scott,

who subsequently presided at all of the trials resulting

from the indictment. At the hearing, Judge Scott

noted that the defendants had “the right of assistance

at trial of a capable and competent counsel” which

“carries with it the right to have a lawyer whose con-

cern is only with the interest of the individual defend-

ant” and who did not have ‘“‘any conflict of interest

between two or more clients in the same case that may

require him to make a difficult decision between them.”

M. Tr. 4-5. The court also noted that counsel “have

advised me that they have discussed the question of

conflict of interest with you and that each of them is

satisfied in his own professional judgment that there

ITwo of the eight jointly represented defendants (Thomas

and Brasseaux) also had another lawyer representing them.

2We shall cite the transcript of this hearing as “M. Tr. __”.

is no conflict of interest with respect to the charges

against each of you and the defenses that might be

asserted with regard to those charges.” M. Tr. 5. The

court then warned the defendants of “the possibility,

although there appear to be no conflicts of interest

now, it might develop at a later date that one or more

of you may have different interests from the other.”

The court then illustrated this possibility with a hypo-

thetical fact situation involving two co-defendants

accused of robbery, one of whom decides to take the

stand and blame the other. M. Tr. 5-6. The court re-

emphasized that “I am not indicating any opinion that

. . . Mr. McPherson has, in any way, 2 conflict of interest,

actual or potential.”’ M. Tr. 7.

At the conclusion, the court entered into a colloquy

with one of the defendants, (Mr. Brasseaux) who was

scheduled to go to trial first on the indictment, and who

affirmed his satisfaction with the joint representation.

The other defendants were directed to think about the

matter and contact the court within ten days of the

hearing date if they wished to change counsel. M. Tr. 8.

Mr. McPherson subsequently made his own statement

for the record in which he assured the court “that if any

of these individuals in any way indicate to me any possi-

ble conflict or concern that they have I would like to feel

free to bring it to the Court.” M. Tr. 10. The court

agreed he could do so, noting “I don’t want that to

happen in the middle of a trial.”’ M. Tr. 11.

2. The Events Between the May, 1974 Hearing and

Petitioner’s Third Trial.

After the May, 1974 hearing, several trials went for-

ward for the other named defendants. Defendants Sykes

and Trantham were tried together with three others and

convicted in August 1974. Their convictions were re-

versed and remanded on June 19, 1975. See United

States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975).

In July, 1975, Sykes and Trantham were again tried and

co.. cted. Their convictions were affirmed on appeal.

Trantham died while his appeal from this conviction

was pending. Syke’s conviction was affirmed and he

filed a petition for certiorari in this Court, which was

denied on October 17, 1977. See Partin v. United States,

434 U.S. 903 (1977). Sykes’ petition was denied after

petitioner’s own conviction in his third trial. McPherson

represented both Sykes and Trantham in their trials

and appeals, and continued representing Sykes through-

out petitioner’s third trial. After Sykes’ first trial, he was

unable to afford counsel, so the court appointed

McPherson to represent him.

Petitioner’s first trial terminated in a mistrial on

November 14, 1974. His second trial resulted in a con-

viction on March 4, 1975, which was reversed on May

19, 1977. See United States v. Partin, 552 F.2d 621

(5th Cir. 1977), cert. denied, 4°4 U.S. 903 (1977).

McPherson represented petitioner at his first trial.

At his second trial Trantham appeared as a govern-

ment witness against petitioner. McPherson did not

represent petitioner at this second trial.

3. Petitioner’s Third Trial: The Government Reveals

Sykes as its Witness.

Petitioner’s third trial commenced on Septemberx

26, 1977. He was represented by McPherson in this

trial; in addition, the day before the trial commenced,

another attorney (John Mitchell) was retained to act

as local counsel. Tr. 72.3

On September 28, 1974, the second day of trial,

the government called Sykes as its second witness in

the case. Tr. 295. Counsel than approached the bench

and, in the ensuing colloquy, the Assistant U.S. Attor-

ney revealed for the first time that prior to the com-

mencement of the trial he had telephone conversations

with Sykes, and that the government had secured a

signed statement from Sykes “which very clearly impli-

cates Mr. Partin in a very clear obstruction of justice

in hiding Claude Roberson through payments of money.”

Tr. 296.4 Mayo informed the court that he had not

informed McPherson of Sykes’ statement because of his

concern for “the safety of Mr. Sykes”. Tr. 296.5

3 We shall cite the transcript of the third trial as “Tr.___”

*This particular statement was signed by Sykes on September

8, 1977, eight days prior to the commencement of trial. See Court

Exhibit 3. Subsequently, Mayo revealed in the colloquy with the

court that the government had actually secured another statement

from Sykes. Tr. 311. This statement was secured on July 20, 1977,

some seven weeks before the trial began. See Court Exh. 2.

5In later colloquy Mayo indicated that Sykes had requested

that no one be told because of concern for his safety. Tr. 307,

312. Sykes at the time was actually in federal custody. The trial

court was never told why the government — which had used witness

security programs and other methods to protect other witnesses

(Tr. 296) -- could not have protected Mr. Sykes adequately. Noth-

ing in the record - other than Mr. Mayo’s statements in colloquy -

supported any claim of concern on Sykes’ part; moreover, nothing

in the record supported any contention that petitioner had made

any threats against any witness in connection with this indictment.

The Court of Appeals eventually found the government’s dealings

with Sykes violated the applicable Disciplinary Rule (Pet. App. A,

p. 8a, infra) and denied the government’s subsequent ‘“‘Motion for

Clarification” on this point as “‘moot.” Pet. App. D, p. 24a, infra.

The U.S. Attorney further informed the court that

he had concluded -- based on the signed statement the

government had secretly secured from Sykes -- that

Sykes and petitioner “have clearly conflicting interests

coe Che aaeDs

And I am somewhat concerned about now whether

you represent Mr. Sykes or whether you represent

Mr. Partin, because the information I have right now

is that they have clearly conflicting interests, Your

Honor, which I have a signed statement on.

See also Tr. 297 (“[B]ased on the information that I

have there is a clear conflict in the interest of Mr. Sykes

and Mr. Edward Grady Partin in this trial’’). The U.S.

Attorney further elaborated that -- based on Sykes’ state-

ment -- Mr. McPherson was now in the posture of “repre-

senting parties on both sides of the fence.” (Tr. 297-98):

But there is clearly a conflict in interest. And we

have a lawyer, Mr. McPherson, representing parties

on both sides of the fence, and I would be glad to

show you for an in camera inspection that state-

ment, Your Honor.

McPherson called to the court’s attention the fact that

he was still representing Mr. Sykes in his pending petition

for certiorari. Tr. 298. He asked the court to call Sykes

into chambers and tell him that McPherson wanted to

confer with him. Tr. 299. The court decided to inter-

view Sykes alone, but on the record. In the ensuing

meeting alone with Sykes, the court informed Sykes that

McPherson wanted to confer with him on an attorney-

client basis before he took the stand (Tr. 302-03), that

Mayo had told the court that Sykes “no longer wanted

to be represented or were not represented, one way or

the other, by Mr. McPherson” (Tr. 302), that Mayo

objected to Sykes talking with McPherson on this basis

(:d.), and that the court now wished to know if Sykes

wanted to consult with McPherson before taking the

stand. Jd:-6 Sykes told the court he would take the

stand without speaking to McPherson. Tr. 304.

Upon the judge’s return to the courtroom, after counsel

were informed of the court’s colloquy with Sykes,

McPherson stated to the court that the new story the

government had secretly secured from Sykes had, for

the first time, created “a conflict of interest in repre-

senting Mr. Sykes and in representing Mr. Partin,” that

he could not proceed in the trial representing both of

them, and that he could not “cross examine my client,

Mr. Sykes.” Tr. 306-07. He moved for a mistrial so that

petitioner would have “ai opportunity to obtain counsel

where there will not be a conflict.” Tr. 308.7

The court denied the mistrial motion, relying on the

hearing held over three years earlier, in which the ““pos-

Sin fact, as Mayo later pointed out to the court, he had never

said that Sykes wished to discharge McPherson as his attorney.

Tr. 305-06. Nor had he ever objected to McPherson and Sykes

consulting privately before Sykes took the stand.

"Local counsel Mitchell also advised the court that he had

first been retained on the case the day before the trial began

(Tr. 308), that his function was strictly one of local counsel (Tr.

308-09), and that he was unable himself to conduct the cross

examination of Sykes. Jd. He 2lso urged a mistrial, pointing out

that neither “the defendant nor his counsel had absolutely any-

thing to do with [causing the problem], because this morning is

the first time that counsel quite candidly for the government

made counsel for the defendant aware of [Sykes’] statement.”

Tr. 310.

Assistant U.S. Attorney Mayo maintained that he had tele-

phoned the court prior to the trial and told the court that Sykes

had given the government a statement and would be a witness.

Tr. 310. The court responded, “I don’t recall, but I am sure you

did.”’ Id.

sibility of a conflict of interest” was discussed (Tr.

313-14):

I feel that this comes at poor grace after the con-

versation that the Court had with all of these

defendants and the trouble the Court went through

to get them all before me -- before the Court and

telling them specifically of the possibility. The basis

of the Court’s statement was not, we know now a

conflict and the Court didn’t tell them, if you don’t

know now of a conflict, go ahead and have the same

representation. The Court told them that in any

conspiracy trial that there is not only -- I don’t

know whether I am saying the exact words, but not

only a possibility but a probability of a conflict

of interest cropping up. The way I see it is that

that just happened. All of these people persisted,

including Mr. McPherson and Mr. Partin, in this

multiple representation. And I am surprised that it

hasn’t happened before, to be perfectly frank with

you. And I don’t feel that Mr. McPherson can

certainly represent Mr. Sykes any longer. He can

represent Mr. Partin. So to make it appear the other

way around I don’t think is realistic. Mr. McPherson

was prepared to cross-examine this man one hour

ago and then ceases representing him. I don’t see

that anything has changed, and so I will deny the

motion for a mistrial.

In light of the court’s ruling, Mr. McPherson then

expressed concern about his own professional liabilities

if he proceeded to cross examine Sykes (Tr. 314), par-

ticularly if “I have to go after Sykes’ credibility.”

Tr. 316. After further colloquy, Sykes was brought

back in and the court and McPherson secured a waiver of

the attorney-client privilege from him. Tr. 319-25.

During the course of this colloquy, McPherson told

Sykes that he continued to represent him. Tr. 322-23;

325.

Thereafter, petitioner personally addressed the court,

stating “I found out a few minutes ago that I have an

attorney here representing me and a Government wit-

ness,” that “I certainly don’t want to go to proceed in a

trial” and that “I don’t want him representing me in this

trial.” Tr. 326. The court responded by referring to the

hearing held over three years earlier, and telling peti-

tioner that “it is very, very late in the game to do this

and that really it was at your own insistence and the

insistence of the other defendants that this thing has

come to pass, and for that reason I feel that I cannot

relieve Mr. McPherson from representing you in this

case.” Tr. 327-28. Petitioner then respectfully inquired

of the court “how I caused Harold Sykes to be a Govern-

ment witness because I had Mr. McPherson as attorney?”

The court responded, “‘I have no idea.” Jd.

Mr. Sykes then took the stand and testified against

petitioner. His examination by the government exceeds

forty pages of transcript. Tr. 328-68 (direct examina-

tion); Tr. 370-71 (re-direct examination). His cross

examination by McPherson consists of less than three

pages. Tr. 368-70. On direct examination he repeatedly

testified to inculpatory communications with petitioner

which were not included in his first statement given

secretly to the government. See Tr. 328-68 and com-

pare Court Exhibit 2.2 Despite the fact that he was

a convicted felon serving a sentence who also suffered

from a long history of alcoholism, and that the events

he was testifying to occurred many years earlier, no

8The two Sykes statements were marked as Court Exhibits 2

and 3, but not shown to the jury. Tr. 371-72. The Assistant U.S.

Attorney himself described these two statements as ‘“‘contra-

dictory.” Tr. 311.

attempt whatsoever was made to challenge his credi-

bility or his memory on cross-examination. In fact, he

was not subject to any significant cross-examination at

all. See Tr. 368-70.

4. The Decision of the Court of Appeals.

The Court of Appeals agreed with petitioner’s con-

tention that the government had violated ABA Dis-

ciplinary Rule 7-104 by not notifying McPherson of

its contacts with Sykes. Pet. App. A, p. 8a, infra. The

court also recognized as a serious question whether

petitioner’s Sixth Amendment right to effective assist-

ance of counsel had been violated, a right which the

court acknowledged ‘“‘includes the right to be repre-

sented by counsel whose loyalties are undivided.” Pet.

App. A, p. 9a, infra. The court decided that petitioner’s

Sixth Amendment rights were not violated for the

following reasons.

First, the court held that petitioner “knowingly and

intelligently” waived his right to counsel whose loyalties

were undivided because: (a) he had been warned over

three years earlier that a possible conflict might arise

at some time in the future; and (b) in his second trial

the government had called another original co-defendant

(Trantham) who was then represented by McPherson

in a pending appeal. Pet. App. A, pp. 11la-15a, infra.°

Second, the court reasoned that Sykes’ waiver of the

attorney-client privilege “avoided the occurrence of any

actual conflict of interest.”” Pet. App. A, pp. lla, 15a-

16a, infra.

Third, the court reasoned that since petitioner had

been warned earlier of the possibility of a conflict of

9Vet the court acknowledged that petitioner had secured

different counsel to represent him at his second trial. Pet. App.

A, p. 14a, infra.

interest arising, he had the burden of demonstrating

specific prejudice arising from the conflict. Pet. App.

A, p. 17a, infra. The court inferred from the record

that counsel’s failure to cross-examine Sykes was at-

tributable to a tactical judgment not to let the govern-

ment bring out Sykes’ prior conviction on the same

conspiracy charge alleged against petitioner. The court

therefore concluded that petitioner failed to meet his

burden. Pet. App. A, pp. 16a-17a, infra.

5. Subsequent Appellate Rulings.

Petitioner filed for rehearing on May 17, 1979. On

May 30, 1979, the government filed its own “Motion

for Clarification of the Opinion” which challenged the

court’s findings of governmental violation of Disciplin-

ary Rule 7-104. On June 17, 1979, petitioner filed a

Motion for Remand requesting an evidentiary hearing

respecting the Sykes-Government communications

(which has never been held). On August 10, 1979, the

court denied the government’s motion “as moot,” and

denied petitioner’s motion for remand. Pet. App. D,

E, pp. 24a-25a, infra. On August 27, 1979, seven months

after its initial decision, the court denied the petition

for rehearing. App. B, p. 22a, infra. The next day,

the court amended its order denying petitioner’s re-

quest for a remand to state that it was “denied without

prejudice to resubmission of said motion for new trial

based upon after-discovered evidence to the district court

in the event the district court is inclined to grant a new

trial...” Pet. App. F, p. 26a, infra.

REASONS FOR GRANTING THE WRIT

Petitioner now stands convicted after a Federal crim-

inal trial in which his own attorney was, in the words of

the government, “representing parties on both sides of

the fence.” See p. 9, supra. This circumstance consti-

tutes the clearest possible example of a conflict of inter-

est, going directly to the heart of petitioner’s funda-

mental Sixth Amendment right. Most importantly, this

circumstance was directly and consciously brought about

by the government’s actions, which actions have been

found by the lower court to constitute a violation of the

established rules governing conduct of government prose-

cutors in federal criminal trials. It is difficult to imagine

a more stark example of governmental intrusion on a con-

stitutional right that this Court has repeatedly empha-

sized goes directly to the heart of a defendant’s most

basic and essential due process rights. See Holloway v.

Arkansas, 435 U.S. 475, 489 (1978); Schneckloth v.

Bustamonte, 412 U.S. 218, 241-42 (1973).

So fundamental is this Sixth Amendment right to

assistance of counsel with undivided loyalties that this

Court has stated that it is the duty of Federal courts to

“indulge every reasonable presumption against . . . waiver

..” Glasser v. United States, 315 U.S. 60, 70 (1942).

Yet a fair reading of the lower court’s opinion here dem-

onstrates that in petitioner’s case the court indulged

every conceivable presumption in favor of waiver. Even

so, the rulings of the court below are flatly contradicted

by the record, and squarely in conflict with the decisions

of several other circuits as well as controlling decisions of

this Court.

Specifically: (1) The lower court’s findings of no actual

conflict of interest are contradicted at least by decisions

in the Fifth Circuit, e.g., Stephens v. United States, 595

F.2d 1066 (1979); Zuck v. Alabama, 588 F.2d 436, cert.

dented, 48 U.S.L.W. 3187 (1979); the Seventh Circuit, .

e.g., Zurita v. United States, 410 F.2d 477 (1969); Unit-

ed States v. Jeffers, 520 F.2d 1256, cert. denied, 423

U.S. 1066 (1973); and the District of Columbia Circuit,

e.g., Taylor v. United States, 96 U.S. App. D.C. 379, 226

F.2d 337 (1955). See also United States v. LaVallee, 282

_F. Supp. 968 (E.D.N.Y. 1972). That ruling also conflicts

with controlling principles in this Court’s decision in Hol-

loway v. Arkansas, 435 U.S. 475 (1978). See generally

pp. 17-23, infra. (2) The lower court’s rulings on waiver

of constitutional rights conflict with Schneckloth v. Bus-

tanionte, 412 U.S. 218 (1973); Brewer v. Maryland, 430

U.S. 387 (1977) and decisicns of other circuits. See gen-

erally pp. 23-27, infra. (3) The lower court’s rulings on

“specific prejudice” are squarely contradicted by this

Court’s decision in Holloway v. Arkansas, supra, and

numerous holdings of other circuits. See generally pp.

27-29, infra. These conflicts should now be resolved by

this Court.

Moreover, the fundamental underlying issue in this

case goes to the very heart of the administration of jus-

tice in an adversary system. The Sixth Amendment guar-

antees a criminal defendant that in his confrontation with

the Federal government he will have the support of a law-

yer with undivided loyalty and fidelity to his cause.

That constitutional guarantee supports the entire edifice

of constitutional rights designed to assure the defendant a

fair trial. Schneckloth v. Bustamonte, supra, 412 U.S. at

241-42. Yet, that guarantee will become hollow indeed if

the government may secretly manipulate the trial process

so that the defendant is suddently confronted in mid-trial

with the reality that his lawyer is actually ‘‘on both sides

of the fence.” This Court should grant the writ and set

forth the ethical and constitutional limits intended to

govern participants in Federal criminal trials, so that trial

judges, defense lawyers, and prosecutors will be able to

discharge their duties properly in the adversary system.

1. The Court of Appeals’ Holding of no Actual Con-

flict of Interest is Squarely Contradicted by Con-

trolling Precedents of this Court and Decisions of

at Least Three other Circuits.

The lower court acknowledged that the Sixth Amend-

ment right to counsel “includes the right to be represent-

ed by counsel whose loyalties are undivided”? (Pet. App.

A, p. 9a, infra) but decided that Sykes’ waiver of his

own attorney-client privilege ‘‘avoided the occurrence of

any actual conflict of interest.”’ Id. p. 11a, infra.

But an actual conflict of interests of constitutional

dimensions is automatically established when an attorney

is “on both sides of the fence”’ by virtue of his simultan-

eous representation of a defendant and a prosecution wit-

ness testifying against his client. Thus, the principle of

“undivided loyalties” is a central component of Canon

Five of the A.B.A. Canons of Ethics, which governs con-

flicts of interests. See A.B.A. Code of Professional Res-

ponsibility, Canon Five, and Ethical Consideration 5-1.

That principle is also central to the Sixth Amendment’s

command. Zuck v. Alabama, 588 F.2d 436, 438-40

(5th Cir.) cert. denied, 48 U.S.L.W. 3187 (1979); Castillo

v. Estelle, 504 F.2d 1243, 1245 (5th Cir. 1974); Zurita v.

United States, 410 F.2d 477, 479-80 (7th Cir. 1969).

Other circuits have repeatedly held that, under the

Sixth Amendment, an actual conflict of interest is shown

when the record demonstrates the defense attorney is

simultaneously representing a witness for the opposite

side. In Stephens v. United States, 595 F.2d 1066 (5th

Cir. 1979), the defendant’s attorney also represented a

co-defendant who had pleaded guilty and testified as a

prosecution witness at the trial. The attorney conducted

*‘a detailed cross-examination”’ of the witness covering,

inter alia, the details of his plea bargain. 595 F.2d at 1067.

The attorney ‘“‘was apparently unaware that [the witness]

had agreed to testify against Stephens, although he sus-

pected as much.” Jd. The District Court, after a hearing

under 28 U.S.C. §2255, denied a new trial because

of failure to show prejudice from the conflict. The Court

of Appeals reversed, holding that Stephens could not be

required to show prejudice because he was represented by

an attorney “with an actual, flagrant conflict of interest

based on his concurrent representation of a witness for

the prosecution to whom he owed the unfettered duty of

complete, legitimate support, not the task of undermin-

ing and tearing down his acceptability.” 595 F.2d at

1069.

In Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974),

the defense attorney was simultaneously representing, in

an unrelated civil litigation, a principal witness for the

prosecution who was the victim of the offense charged.

The Court observed (504 F.2d at 1245, emphasis added):

Here Bardin was not only the victim but also a prin-

cipal witness for the prosecution. In these circum-

stances, counsel is placed in the equivocal position

of having to cross-examine his own client as an ad-

verse witness. His zeal in defense of his client the

accused is thus counter-poised against solicitude for

his client the witness. The risk of such ambivalence

is something that no attorney should accept and

that no court should countenance, much less create.

We hold that the sttuation created by the facts of

this case is so inherently conducive to divided loyal-

ties as to amount to a dental of the right to effective

representation essential to a fair trial.

The Court specifically noted that “we need not inquire

into [allegations of specific prejudice].”” 504 F.2d at

1245.

In Zuck v. Alabama, 588 F.2d 436, 438 (5th Cir.), cert.

denied, 48 U.S.L.W. 3187 (1979), the Fifth Circuit again

surveyed its precedents in this area -- including the Cas-

tillo case -- and observed that “‘[t] hese decisions establish

that when the dual representation of the defendant and

another participant in a criminal trial creates a conflict of

interest, the trial is fundamentally unfair as a matter of

law.”’ In Zuck, the only conflict was that the law firm of

the defense attorney was representing the prosecutor in

an unrelated civil matter. 588 F.2d at 438. Yet the

court, relying squarely on Castillo, rejected the State’s

contention that no actual conflict existed, observing that

“the basis of these decisions is our belief that the sixth

amendment requires that a defendant may not be rep-

resented by counsel who might be tempted to dampen

the ardor of his defense in order to placate his other cli-

ent.” 588 F.2d at 440.

In Zurita v. United States, 410 F.2d 477 (7th Cir.

1969), the defendant, in a motion to vacate sentence

under 28 U.S.C. §2255, asserted that his attorney had

business dealings with the bank he was convicted of rob-

bing and had also “handled certain legal matters” for the

bank. Jd. at 478. The district court had deemed unnec-

essary an evidentiary hearing, reasoning that the facts

alleged did not amount to a sufficient conflict of interest

in view of the “zealous defense”’ of the defendant. Jd.

The Seventh Circuit, taking note of allegations of preju-

dice, reversed and stated that if the attorney “were shown

to have actually represented the bank at a time when the

bank’s interest in petitioner’s trial conflicted with that of

petitioner, we would be presented with a situation so

‘fraught with the dangers of prejudice,’ that a new trial

would be required.” Id. at 480 (quoting People v. Sto-

val, 40 Ill.2d 109, 113, 239 N.E.2d 441, 443 (1968)).

Subsequently the Seventh Circuit, in United States v.

Jeffers, 520 F.2d 1256, 1264 n.13 (1975), cert. den-

ted, 423 U.S. 1066 (1976), cited both Zurita and Castillo

for the proposition that when there is an on-going rela-

tionship between the attorney for the defendant and an

adverse witness, the “inherent attendant hesitancy of

counsel to completely cross-examine a current client,

creates a very real conflict of interest and requires a mis-

trial if the conflict is disclosed, or anew trial, if the con-

flict is only discovered later.”

To like effect are several cases in the District of Colum-

bia Circuit. See Taylor v. United States, 96 U.S. App.

D.C. 379, 226 F.2d 337 (1955) (per curiam) (defendant

entitled to new trial on motion under 28 U.S.C. § 2255

where represented by counsel who was also representing

government witness) ;!° District of Columbia v. Scott, 94

U.S. App. D.C. 227, 214 F.2d 860 (1954) (per curiam),

aff'g Scott v. District of Columbia, 99 A.2d 641 (D.C.

1953).

The lower court here relied on this Court’s decision in

Holloway v. Arkansas, 435 U.S. 475 (1978), to support

its conclusion that Sykes’ testimony “‘did not result in a

conflict of interest for McPherson.” Pet. App. A, p. 15a,

infra. Yet, Holloway compels the opposite conclusion. |

The Court in Holloway addressed the far more typical

problem of “the actuality or possibility of a conflict” of

interest where an attorney representing multiple defend-

10-The facts in Taylor v. United States, supra, are described

in detail in United States v. LaVallee, 282 F. Supp. 968, 972 (E.D.

N.Y. 1972). ;

ants advises the court of a conflict problem. 435 U.S. at

483. In that context, the Court observed, there is no

per se rule of a conflict “violative of constitutional guar-

antees”” because of the possible tactical advantages of

joint representation. Jd. at 482. Not a word in Holloway

supports the contention that this Court would ever hold

that a joint representation of a criminal defendant and a

prosecution witness testifying against that same defend-

ant was anything other than a classic example of inherent

actual conflict of interest violative of the Sixth Amend-

ment, particularly in circumstances where the govern-

ment has concealed its dealings with the witness from the

attorney and the defendant. Compare United States v.

Hayman, 342 U.S. 205, 219 (1952) with Holloway v.

Arkansas, supra.

Moreover, the Holloway Court’s extensive discussion

of the nature of a disabling conflict of interest under the

Sixth Amendment demonstrates that the lower court’s

holding of no “actual conflict” is clearly wrong. The

lower court based its conclusion on the theory that Sykes’

waiver of the attorney-client privilege freed McPherson to

cross-examine his client Sykes on the basis of otherwise

confidential information in order to aid his client Partin.

But McPherson continued to have a professional duty of

“undivided loyalty’ to Sykes even had he chosen -—

which he did not -- to significantly cross-examine him.

In Holloway this Court warned that “‘[jj oint representa-

tion of conflicting interests is suspect because of what it

tends to prevent the attorney from doing.” 435 U.S. at

489-90. The Court illustrated this point by noting that

‘in this case it may well have precluded defense counsel

... from exploring possible plea negotiations and the pos-

sibility of an agreement to testify for the prosecution.

...” Id. at 490 (emphasis added). See also id. (“But in a

case of joint representation of conflicting interests the

evil -- it bears repeating -- is in what the advocate finds

himself compelled to refrain from doing, not only at trial

but also as to possible pretrial plea negotiations and in

the sentencing process”.) None of these concerns are

answered by a waiver of the attorney-client privilege.

Simply put, a waiver of the right to confidentiality in a

client’s communications with a lawyer is not a waiver of

the fundamental constitutional right to a lawyer’s un-

divided loyalty and fidelity to a client’s cause.

Here attorney McPherson confronted a client on the

witness stand testifying before the very judge who tried

him once, sentenced him once, and would re-try him and

re-sentence him again if this Court had granted his then-

pending petition for certiorari and reversed his convic-

tion. How could a responsible attorney in these circum-

_ Stances feel ethically free to tear apart his own vulnerable

client-witness in order to save his client-defendant? Also,

just as in Holloway, (435 U.S. at 90), McPherson had to

consider the impact of effective cross-examination on his

client-witness’ hopes for benefits from the government in

the future if cross-examination broke down the story the

government relied on at trial.

Moreover, as the lower court acknowledged, even in

the more typical joint representation context addressed

in Holloway, a timely motion for appointment of sep-

arate counsel should ordinarily be granted. See Pet. App. |

A, p. 15a, infra; Holloway v. Arkansas, supra, 435 U.S. at

485. Here petitioner’s mistrial motion was timely, having

been made as soon as the government disclosed the cir-

cumstances creating the actual conflict of interest. See

p. 10, supra. The lower court characterized petitioner’s

motion as “untimely” on the sole ground that petitioner

and McPherson knew of Trantham’s appearance as a wit-

ness at his second trial. See Pet. App. A, p. 15a n.9, infra.

But petitioner secured different counsel to represent him

at the second trial. Therefore, there was no basis at that

trial for a mistrial motion on grounds of actual conflict of

interest. In the instance of Sykes’ appearance, the gov-

ernment prevented petitioner and McPherson from avoid-

ing the conflict before trial by concealing until the mid-

dle of trial its contacts with Sykes. As soon as the gov-

ernment revealed the actual conflict of interest, McPher-

son exercised his duty “to advise the court at once of the

problem.” Holloway v. Arkansas, supra, 435 U.S. at 485-

86.

2. The Lower Court’s Finding of Waiver Conflicts

with Controlling Decisions of this Court and

Other Circuits.

In Schneckloth v. Bustamonte, 412 U.S. 218, 241

(1973), this Court extensively re-examined the law of

waiver of constitutional rights and emphatically reiter-

ated the long-standing rule that the strictest possible stan-

dard of “waiver” is applicable to those constitutional

rights “guaranteed to a criminal defendant to insure that

he will be accorded the greatest possible opportunity to

utilize every facet of the constitutional model of a fair

criminal trial... . [a] prime example [of which] is the

right to counsel.” Specifically, waiver of petitioner’s

rights here requires an “‘ntentional relinquishment or

abandonment of a known right or privilege.” 412 U.S. at

243, quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938). “[E]very reasonable presumption ought to be

indulged” against waiver of the right to counsel with un-

divided loyalties in criminal trials. See 412 U.S. at 243;

Glasser v. United States, 315 U.S. 60, 70 (1942). That,

of course, is the law of the other circuits. E.g., United

States v. Garcia, 517 F.2d 272, 276-78 (5th Cir. 1975);

Craig v. United States, 217 F.2d 355, 359 (6th Cir.

1954). The short of the matter is that the Government

has the burden of proving a waiver under the strictest

possible constitutional standard. See Brewer v. Williams,

430 U.S. 387, 404 (1977); Zuck v. Alabama, supra, 588

F.2d at 440.

In petitioner’s case, the lower court’s finding of

‘“‘waiver” is not only squarely in conflict with these

principles, but also hopelessly contradictory as a matter

of its own reasoning. Thus, the lower court initially relies

on the trial court’s warning to petitioner -- over three

years earlier -- of a possibility of a conflict of interest

arising in the future by virtue of his counsel’s joint repre-

sentation. Pet. App. A., pp. lla-13a, infra. Yet at this

time the operative event generating the xctual conflict --

the government’s unethical and surreptitious contacts with

Sykes during which he turned into a prosecution wit-

ness -- had not yet occurred. And this Court’s decisions

make clear that “waiver” requires “sufficient awareness

of the relevant circumstances and likely consequences.”

Schneckloth v. Bustamonte, supra, 412 U.S. at 238 n.25,

quoting McMann v. Richardson, 397 U.S. 759, 766

(1970). Here, as the trial court, the defense counsel, and

the U.S. attorney acknowledged at the time of the 1974

hearing, (see pp. 5-6, supra) the “‘relevant circumstance”

-- 1.€., an actual conflict of interest -- did not yet exist.

Thus, the lower court acknowledges that (Pet. App. A,

p. 13a, wnfra):

If the conflict of interest problem which Partin

raises on appeal had been a completely unknown

contingency prior to his trial, we might be reluc-

tant to find a waiver of his right to counsel free

from conflict of interest solely on the basis of

Judge Scott’s 1974 warning. To do so might

force a defendant to waive his right to object to

unknown problems at his trial.

To escape the horns of this seemingly insolvable dil-

emina, the court is forced to rely on the theory that “Par-

tin was aware of the possibility that a co-defendant, rep-

resented by McPherson, would testify as a government

witness at his trial’’ because, at his second trial, the gov-

ernment called as a witness another co-defendant (Trant-

ham) represented by McPherson. Pet. App. A, pp. 14a-

15a,infra. Yet, the lower court also acknowledged at the

same time that petitioner secured different counsel to

represent him at his second trial. Somehow, the fact that

petitioner in the second trial avoided the conflict that the

government surreptitiously generated in the third trial is

turned by the lower court into the dispositive factor

proving that petitioner “‘waived’’ the conflict at the third

trial. The lower court offers one Delphic sentence to

explain this logic (Pet. App. A., p. 14a, infra):

The fact that Sykes, not Trantham, testified at the

third trial does not change the fact that the type of

conflict which occurred was known prior to trial by

both Partin and McPherson, who had reviewed the

record of the earlier trial in preparation for trial.

The government clearly cannot show waiver under the

applicable constitutional standard. See Zuck v. Alabama,

supra, 588 F.2d at 440 (rejecting state claim of waiver of

the conflict even though witness testified she told defend-

ant prior to trial that his attorneys were also representing

the prosecutor); People v. Stoval, 40 Ill.2d 109, 113-114,

239 N.E.2d 441, 444 (1968) (under Johnson v. Zerbst,

no waiver of conflict shown even where defendant told

before trial his lawyer represented victim of the crime in

civil matters). And see Stephens v. United States, supra,

595 F.2d at 1067. |

Finally, it is clear that the March, 1974 hearing alone

could not provide a basis for a valid holding of ‘‘waiver.”

First, more than three years intervened between the

hearing itself and the occurrence of the operative event at

petitioner’s third trial giving rise to the conflict of inter-

est. Thus, in petitioner’s case, ‘‘the advice [was not] reas-

onably contemporaneous with the asserted waiver of the

right.” See Schram v. Cupp, 436 F.2d 692, 695 (9th Cir.

1970), and cases cited therein. Second, upon the disclos-

ure by the government to the trial court of the operative

events creating the conflict of interest, it became the

duty of the trial court to again advise petitioner of his

rights and provide him with an opportunity to secure sep-

arate counsel. See Stephens v. United States, supra, 595

F.2d 1068; United States v. Gaines, 529 F.2d 1038,

1043-44 (7th Cir. 1976).!! The lower court here stated

“that Judge Scott’s inquiry and warning [at the May

1974 hearing] is the type suggested by proposed Federal

Rules of Criminal Procedure, Rule 44(c).”” Pet. App. A,

p. 12a, infra. Yet the Advisory Committee Note to that

11 Assistant U.S. Attorney Mayo maintained that he had tele-

phoned the court prior to the trial and informed the court that

Sykes had given a statement and that he was going to be a witness

in the trial. Tr. 310. The Court responded to this assertion, “I

don’t recall, but I am sure you did.” Jd. Assuming Mayo did in

fact telephone the court, then the court was on notice of the

actual conflict of interest and clearly breached its affirmative

duty to petitioner and his counsel to inform them of the circum-

stances. See Schneckloth v. Bustamonte, supra, 412 U.S. 218,

244 n.32 (1973); Stephens v. United States, supra, 595 F.2d at

1068-69. Assuming Mayo did not in fact inform the court prior

to trial, then the court’s affirmative duty to advise petitioner _

appropriately of his rights and afford him an opportunity to exer-

cise those rights arose at the point during the third trial when the

government disclosed the relevant circumstances on the record.

ne ace

rule (which has since been adopted) states (25 Crim. a

Rptr. 2259, June 13, 1979):

“The obligation placed upon the court by rule 44(c)

is a continuing one, and thus in a particular case fur-

ther inquiry may be necessary on a later occasion

because of new developments suggesting a potential

conflict of interest.”

Certainly the lower court was correct in its judgment

that the May 1974 hearing alone was insufficient to effec-

tuate a waiver of petitioner’s constitutional rights in the

circumstances of this case. See p. 13a, supra.

3. The Lower Court’s Rulings on Specific Prejudice

Conflict with Controlling Decisions of This Court

and other Circuits.

The lower court held that petitioner “bears the burden

of demonstrating that specific prejudice has resulted to

him from the alleged conflict of interest,” and that peti-

tioner “has not met that burden.” Pet. App. A., p. 17a,

infra.

In Holloway v. Arkansas, supra, 435 U.S. 487-91, this

Court assayed the law on the issue of “specific prejudice”

and held that -- even in the more typical ‘joint represen-

tation” context -- ‘‘whenever a trial court improperly

requires joint representation over timely objection revers-

al is automatic.” 435 U.S. at 488. A fortiori, in petition-

er’s case, given the existence of an actual conflict of inter-

est concealed by the government that had not been waived

and had been timely objected to, his conviction must be

reversed, without regard to “specific prejudice.” The

other circuits, following this Court’s lead in Glasser v.

United States, supra, (discussed in Holloway, 435 U.S. at

481-83), have required no showing of “specific preju-

dice” in the face of this type of actual conflict, even

before this Court decided Holloway. E.g., Casiillo v.

Estelle, 504 F.2d 1243, 1245 (5th Cir. 1974); Whitaker v.

Warden, 362 F.2d 838, 841 (4th Cir. 1966); Sawyer v.

Brough, 358 F.2d 70, 73 (4th Cir. 1966); Taylor v.

United States, 226 F.2d 337 (D.C. Cir. 1955).!*

Moreover, there is no basis for placing the burden on

the defendant to prove “specific prejudice’? when the

government has been found to have created the actual

conflict threatening the constitutional right. In these

circumstances, any burden on the prejudice issue must be

on the government, which must show no “taint” in the

record created by its impermissible intrusion into peti-

tioner’s Sixth Amendment right. Cf. Alderman v. United

States, 394 U.S. 165, 181 (1969).1%

Finally, “specific prejudice” is overwhelmingly demon-

strated on the record in this case. The short of the mat-

ter is that Sykes -- who repeatedly and directly inculpat-

ed petitioner in over forty pages of testimony -- was not

significantly cross-examined at all. See pp. 12-13, supra.

That Sykes was vulnerable on cross-examination cannot

seriously be gainsayed: he was an alcoholic, a convicted

felon, and he had given at least one prior inconsistent

statement. Also, he testified about events which occur-

red many years prior to the third trial. None of these

circumstances were brought out in cross-examination.

12See also United States v. LaVallee, 282 F. Supp. 968, 973-

74 (E.D.N.Y., 1978), discussing the cases before Holloway ex-

tensively.

131¢ this petition is granted, petitioner will also contend

that the time has come to adopt, as a prophylactic rule for federal

criminal cases under this Court’s supervisory powers, a require-

ment of automatic reversal where the prosecution has been found

to have intruded on the Sixth Amendment right by conduct

violative of applicable disciplinary rules.

ee ee ee eee eee

ate ete boat A he EC 2 ten

The lower court inferred from the record (without

benefit of any direct testimony) that “specific prejudice”

was not shown, because the court attributed McPherson’s

handling of Sykes cross-examination to a tactical decision

not to let the Government bring out Sykes’ prior convic-

tion. Pet. App. A, pp. 16a-17a, infra.

But petitioner was constitutionally entitled to have

tactical judgments of this type made by a lawyer with

undivided loyalties to him, rather than by a lawyer placed

in an inherent conflict of interest by the government’s

conduct. This constitutional right was lost to petitioner,

over his specific and timely objection; the prejudice

apparent in the record may not now be ignored by post

hoc “unguided speculation” on appellate review of what

tactical decision a lawyer with undivided loyalties to peti-

tioner might have made. Cf. Holloway v. Arkansas,

supra, 435 U.S. at 491.

CONCLUSION

For the reasons stated, the petition for writ of certior-

ari should be granted.

Respectfully submitted,

HERBERT J. MILLER, JR.

MARTIN D. MINSKER

WILLIAM H. JEFFRESS, JR.

MILLER, CASSIDY,

LARROCA & LEWIN

2555 M Street, N.W.

Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner.

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

v. ) No. 77-3853

)

EDWARD GRADY PARTIN, _ ) OPINION

Defendant-Appellant. _)

Appeal from the United States

District Court for the

Southern District of California

BEFORE: TRASK and WALLACE, Circuit Judges, and

HOFFMAN, District Judge.*

HOFFMAN, District Judge:

Edward Grady Partin appealed his conviction of

October 4, 1977 on three counts of conspiracy to

obstruct justice in violation of 18 U.S.C. §§371 and

1503. We have jurisdiction of the appeal, 28 U.S.C.

§§1291 and 1294.

Partin was indicted on October 4, 1973 in the Middle

District of Louisiana on three counts of conspiracy to

obstruct justice. The trial which is the subject of this

appeal was Partin’s third trial under this indictment and

it was held in San Diego, California, pursuant to Rule

21(a), F. R. Cr. P.! The indictment under which Partin

Walter E. Hoffman, Senior United States District Judge,

Eastern District of Virginia, sitting by designation.

| Partin’s first two trials under this indictment were held in

Louisiana. His first trial was in November 1974. It ended in a

was charged also charged eleven other persons, each of

whom was named in only one count of the indictment.

Two of Partin’s codefendants were Harold Sykes and

Ben Trantham, both of whom were named in Count II

of the indictment.” The persons named in the indict-

ment were not tried as one group; Partin was tried

alone. Partin retained James McPherson as his attorney

at his first and third trials. He was also represented in

his San Diego trial by attorney Mitcheli, who served as

local counsel with McPherson and participated briefly

throughout the trial. McPherson was likewise retained

by Sykes,° Trantham and five other codefendants,

representing them at their trials and in their appeals.

The indictment charged Partin and other codefen-

dants with conspiracies to change the testimony of

witnesses and to prevent witnesses from testifying in

mistrial after one day. His second trial was in February and early

March 1975 and resulted in a conviction on all three counts. On

May 19, 1977, that conviction was reversed and the case

remanded. United States v. Partin, 552 F.2d 621 (5th Cir. 1977).

Partin was also thrice tried on a prior indictment which was later

dismissed. These trials, resulting in a mistrial in Montana, a new

trial granted in Georgia, and a conviction and reversal in Georgia,

United States v. Partin, 493 F.2d 750 (5th Cir. 1974), brought

about the dismissal.

2Sykes and Trantham were first tried and convicted in August

1974. Their convictions were reversed and remanded on June 17,

1975. United States v. Marionneaux, 514 F.2d 1244 (5th Cir.

1975). In July 1975, Sykes and Trantham were again tried and

convicted. Their convictions were affirmed on appeal on May 19,

1977. United States v. Partin, 552 F.2d 621 (5th Cir. 1977).

Sykes then petitioned for a writ of certiorari, which was denied

on October 17, 1977, a few days after the present trial was

concluded. Partin v. United States, 434 U.S. 903 (1977).

3Sykes originally retained McPherson. After his first trial and

appeal he ran out of money and McPherson was appointed to

represent him. Trantham did not apply for certiorari.

ee es

Ee ee

(G0 cid meh. ta Re oink BARE Sih ale ald Aca tat A Ot ar

<5 Dm shia Seis thy thier dle ees

SLA WM phd DOM Pin. a

connection with two previous criminal cases in which

Partin was a defendant. Partin was not convicted in

either of those cases. The history of the earlier cases

and the genesis of the indictment under which Partin

now stands convicted are set forth in United States v.

Partin, 552 F.2d 621 (5th Cir. 1977), cert. denied, 434

U.S. 903 (reversing Partin’s first conviction under the

indictment because of an erroneous jury instruction

which required only “slight evidence” to connect Partin

with the conspiracy).

In May 1974, before any of the codefendants had

come to trial, the government filed a motion requesting

that the trial judge hold a hearing regarding the

representation of eight of the codefendants by one

attorney, James McPherson. McPherson had been re-

tained by Partin and the codefendants; he was not

appointed. The government was concerned with the

possibility that this multiple representation could create

a conflict of interest for McPherson and deprive

defendants of their Sixth Amendment right to the

assistance of counsel unimpaired by any conflict of

interest. See: Glasser v. United States, 315 U.S. 60

(1942); Holloway v. Arkansas, 435 U.S. 475 (1978).

Judge Nauman §S. Scott, United States District Judge

for the Western District of Louisiana,* held a hearing at

which all of the codefendants and attorney McPherson,

as well as Partin, were present. At the hearing Judge

Scott questioned McPherson about his representation of

multiple defendants. McPherson informed Judge Scott

that he-had discussed the case with his clients and was

satisfied that there was no conflict of interest. McPher-

son also stated that he had discussed with his clients

*Tudge Scott presided at all three of Partin’s trials.

the possibility of unforeseen conflicts arising and that

his clients still wished to be represented by him even

though they understood there might be conflict of

interest problems in that representation.

After questioning McPherson, Judge Scott addressed

the codefendants and advised them of the importance

of their Sixth Amendment right to the effective

assistance of counsel and specifically of their right to be

represented by counsel who were free from any conflict

of interest. He informed them of the potential problems

of multiple representation and specifically of the prob-

lems created by one codefendant testifying against

another codefendant. He advised them that if they

could not afford separate counsel, the court would

appoint counsel for them. He asked them if there were

any questions; there were none. Judge Scott then told |

all defendants to contact the clerk of the court in

Baton Rouge, Louisiana, if they wished to have counsel

appointed for them.> No defendant responded to the

invitation.

‘The pertinent portion of Judge Scott’s advice to the

codefendants stated in part:

Counsel whom you have retained in this matter; that is,

Mr. McPherson and Mr. Atkins, have advised me that they

have discussed the question of conflict of interest with you

and that each of them is satisfied in his own professional

judgment that there is no conflict of interest with respect

to the charges against each of you and the defenses that

might be asserted with regard to those charges. Lp addition,

each has informed me that he has discussed with you the

questions which may arise in the future and the possibility,

although there appear to be no conflicts of interest now, it

might develop at a later date that one or more of you may

have different interests from the other. I do not mean to

question the judgmeni of either of them in this regard, I

[footnote continued]

5 AR rene” Se Oe Sa

<n ts OE

Partin’s first trial was held on November 13, 1974.

He was to be tried along with two other codefendants.

However, a mistrial was declared after the first day of

do want, however, to advise you to think carefully about

this matter, about what is in your own best interest, and

about your constitutional rights. Let us assume a different

kind of charge. Let us assume that two people are charged

with robbing a bank and are being tried jointly. Let’s

assume they are both being represented by the same

lawyer. It might happen during the course of that trial that

one of the persons charged with the crime might want to

change his defenses in the middle of the trial. He might

want to take the witness stand and testify that the other

person in seme way forced him to participate in the bank

robbery. If that happened in the case of the two bank

robbers, and if they were both represented by the same

lawyer, obviously one would have a different interest from

the other and the lawyer would have a conflict of interest.

If one defendant could take the witness stand and begin to

testify against his co-defendant he might end up being

acquitted, but he would undoubtedly add to the evidence

against the co-defendants....1 simply want to advise that

if you think that you have a lawyer who has or may have a

conflict of interest, and if you wish to change counsel, the

Court will appoint another counsel to represent you. Any

person who is not able; that is, financially not able to

afford a lawyer, can have a lawyer appointed for him

without charge. . . . If however, you are satisfied with your

present counsel and you are satisfied to run any risks that

may hereafter develop of a possible conflict of interest,

you certainly have the right’to do this. ... Now, if anyone

has any questions they would like to ask me about this?

All right. ...

I would, however, say that if you wish other counsel I

would like -- well, I will give you a chance to think about

it and if you wish other counsel, you may contact the Clerk

of the Court here in Baton Rouge and make such a request

on or before ten days from this date.

At the time Judge Scott set a ten-day time limit, it was

anticipated that the various trials would be completed in a short

period of time. As will be seen, infra, this time limit has no

bearing on this appeal.

trial and the two codefendants wre severed from

Partin’s trial.

Partin’s second trial was held from February 17 to

March 4, 1975 and resulted in a conviction on all three

counts of the indictment. At this trial Partin did not

retain attorney McPherson to represent him. One of

Partin’s codefendants, Ben Trantham, testified as a

government witness against Partin at the trial. Trant-

ham’s testimony concerned Count II of the indictment.

At the time Trantham testified he was appealing his

conviction on Count II of the indictment.® He had

been represented at his trial and, at the time he

testified, he was being represented on appeal by

McPherson. Partin’s conviction was reversed by the

Fifth Circuit on May 19, 1977. United States v. Partin,

supra.

As mentioned above, Partin’s third trial (presently

before us) was held in San Diego as a result of a

transfer motion. This trial was held from September 26

to October 4, 1977, and resulted in Partin’s conviction

on all three counts of the indictment. At this trial

Partin retained attorney McPherson to represent him.

Although McPherson’s client Trantham did not testify

at this trial, McPherson’s client and Partin’s former

codefendant Harold Sykes appeared as a government

witness. At the time of his testimony at Partin’s trial,

Sykes had been convicted on Count II of the indict-

ment and was being represented by McPherson on a

petition for writ of certiorari to the United States

Supreme Court.’

S See note 2, supra.

"Kd., note 2, supra.

Partin raises a number of issues in his appeal, the

first two of which are related to the appearance of his

original codefendant, Harold Sykes, as a government

witness at trial. In connection with Sykes’ appearance

Partin raises the following issues: (1) whether the

government’s contact with Sykes, which was done

without the knowledge of Sykes’ attorney, McPherson,

was unethical and grounds for reversing Partin’s convic-

tion; (2) whether Partin’s representation at trial by

attorney McPherson, who also represented former co-

defendant/government witness Sykes, denied Partin his

Sixth Amendment right to the effective assistance of

counsel. The two other issues raised by Partin are (3)

whether. the jury instruction concerning the witness

security program which was given during the course of

trial, was prejudicial to Partin and, therefore, grounds

for reversing his conviction; and (4) whether Judge

Scott’s refusal to recuse himself was error.

Government Contact with Sykes

Shortly after Sykes’ conviction was affirmed by the

Fifth Circuit, Sykes called Assistant United States

Attorney Mayo, the prosecutor in charge of the trials of

Partin and his codefendants. Sykes told Mayo that he

wished to cooperate with the government because he

believed that attorney McPherson considered Partin’s

interests to be paramount to his. Sykes requested that

his cooperation be kept a secret because he feared for

his safety if his cooperation became known. Subse-

quently, Sykes gave two statements to the FBI prior to

Partin’s trial. He signed a waiver of his right to counsel

at the time he gave these statements. McPherson

represented Sykes during this period of time. However,

Mayo did not inform McPherson of his contact with

Sykes or of the FBI interviews with Sykes. No attorney

represented Sykes in his contacts with the government.

Appellant Partin argues that Assistant United States

Attorney Mayo violated ABA Disciplinary Rule 7-1048

in not notifying McPherson of his contacts with Sykes

and that such an ethical violation is reversible error. We

agree with appellant that Mayo’s action violated Discipli-

nary Rule 7-104; however, the violation is not, on the

facts of this case, reversible error.

Appellant correctly cites cases in this circuit in which

we have condemned practices similar to that followed

by Mayo. See, e.g., United States v. Four Star, 428

F.2d 1406, 1407 (9th Cir. 1970), cert. denied, 400 U.S.

947; Reinke v. United States, 405 F.2d 228 (9th Cir.

1968); Coughlan v. United States, 391 F.2d 371 (9th

Cir.), cert. denied, 393 U.S. 870 (1968). We have not,

however, reversed convictions where ethical violations

on the prosecutor’s part have appeared and an effective

waiver of the accused’s right to counsel has occurred.

See, United States v. Four Star, Reinke v. United

States, Coughlan v. United States, supra. The instant

SABA Disciplinary Rule 7-104 states:

A. During the course of his representation of a client a

lawyer shall not:

1. Communicate or cause another to communicate on

the subject of the representation with a party he

knows to be represented by a lawyer in that matter

unless he has the prior consent of the lawyer

representing such other party or is authorized by law

to do so.

2. Give advice to a person who is not represented by a

lawyer, other than the advice to secure counsel, if the

interests of such person are or have a reasonable

possibility of being in conflict with the interests of

his client.

ee ee <

case is distinguishable from the above cases because

Sykes was not an accused at the time of the govern-

ment’s contact with him. His conviction had already

been affirmed on appeal and was pending on certiorari.

We need not, however, consider Sykes’ status or

whether he knowingly and intentionally waived his

Sixth Amendment right to counsel in his contacts with

Mayo and the FBI. For even if we assume that Sykes’

Sixth Amendment right to counsel was violated, that

right is a personal right, Faretta v. California, 422 U.S.

806 (1975), and its violation as to Sykes does not give

Partin standing to challenge his conviction. Cf. United

States v. LePera, 443 F.2d 810, 812 (9th Cir. 1971),

cert. denied, 404 U.S. 958 (defendant lacked standing

to assert coconspirator’s constitutional privilege against

self-incrimination). Furthermore, if Partin does not have

standing to raise any possible violation of Sykes’ Sixth

Amendment right as grounds for reversal, it follows a

fortion that he does not have standing to raise a

violation of an ethical duty of the prosecutor to Sykes

as grounds for reversal of his conviction.

Partin’s Right to Counsel

Sykes’ testimony at Partin’s trial as a government

witness does raise the more serious question of whether

Partin’s Sixth Amendment right to the effective assis-

tance of counsel was abridged That right includes the

right to be represented by counsel whose loyalties are

undivided. Glasser v. United States, 315 U.S. 60 (1942);

Holloway v. Arkansas, 435 U.S. 475 (1978); United

States v. Villarreal, 554 F.2d 235, 236 (5th Cir. 1977),

cert. dented, 434 U.S. 802.

When Sykes was called to the witness stand by the

government, defense counsel McPherson expressed sur-

10a

prise at Sykes’ appearance as a government witness.

McPherson told Judge Scott that he had a conflict since

he was then representing Sykes in a petition for

certiorari before the Supreme Court of the United

States. McPherson moved for a mistrial in order to

allow Partin to retain new counsel. Judge Scott recessed

the trial at this point and held a hearing in chambers

concerning this matter.

McPherson informed Judge Scott that he did not

believe he would be able to effectively cross-examine

Sykes on behalf of Partin because of Sykes’ attorney-

client privilege with him. Judge Scott then interviewed

Sykes out of the presence of the Assistant United

States Attorney and defense counsel. He determined

that Sykes’ desire to testify for the government was

voluntary. He then explained the attorney-client privi-

lege to Sykes. In response to this explanation and after

discussing the nature of the privilege, Sykes said that

McPherson could question him on anything. He waived

his attorney-client privilege. McPherson and the Assis-

tant United States Attorney returned and McPherson

explained the attorney-client privilege to Sykes. Sykes

again stated that McPherson could cross-examine him

on anything and use anything he wanted to in his

questioning “regardless of how he had learned it.”

After Judge Scott returned to the bench, but in the

absence of the jury prior to the resumption of the trial,

Partin addressed the judge. He told the judge that he

wanted a new attorney because he felt McPherson had a

conflict of interest. Judge Scott denied the request. In

denying the request, Judge Scott told Partin that he felt

that the situation about which Partin was now com-

plaining had occurred because Partin had chosen to

ignore his earlier warning about the potential problems

of multiple representation.

lla

At the time of Sykes’ direct testimony, McPherson

was given copies of the two statements Sykes had made

to the FBI. Prior to his cross-examination of Sykes and

subsequent to the direct examination, McPherson inter-

viewed Sykes. After the interview McPherson informed

Judge Scott that he had had ample time to prepare his

cross-examination and that he was ready to proceed.

During McPherson’s cross-examination of Sykes, he did

not impeach the credibility of Sykes as a witness.

We have carefully reviewed the record in this case,

including pertinent portions of earlier hearings and trials

held in connection with the obstruction of justice

indictment, and have concluded that Partin was not

denied his Sixth Amendment right to the effective

assistance of counsel. In view of Judge Scott’s 1974

warning to Partin and the appeas2nce of codefendant

Trantham as a government witness at Partin’s second

trial, we find that Partin knowingly and intelligently

waived his right to counsel whose loyalties were

undivided. Furthermore, we find that Judge Scott’s

inquiry at trial and the resulting relinquishment by

Sykes of his attorney-client privilege, avoiced the

occurrence of any actual conflict of interest.

It is clear that a defendant may waive his right to

assistance of counsel who is free from any conflict of

interest. Glasser v. United States, 315 U.S. 60, 70

(1942); Holloway v. Arkansas, 435 U.S. 475, 483, n. 5

(1978). The Court in Holloway noted that the inquiry

in Glasser into whether there had been a waiver

confirmed that a defendant may waive this right. 435

U.S. at 483 n.5. Indeed, the Court stated, 435 U.S. at

482, that:

Requiring or permitting a single attorney to repre-

sent codefendants, often referred to as joint

12a

representation, is not per se violative of constitu-

tional guarantees of effective assistance of counsel.

This principle recognizes that in some cases mul-

tiple defendants can appropriately be represented

by one attorney; indeed, in some cases, certain

advantages might accrue from joint representation.

In considering whether Partin waived his right to the

assistance of counsel free from any conflict of interest,

it is necessary to consider the “facts and circumstances

surrounding... [this] case, including the background,

experience and conduct of” Partin. Johnson v. Zerbst,

304 U.S. 458, 464 (1938).

Partin was familiar with his constitutional right to

the assistance of counsel unimpaired by any conflict of

interest. As discussed above, Judge Scott had quite

properly held a hearing in May 1974 in which he

informed Partin and the other codefendants of the risks

of multiple representation and the importance of their

Sixth Amendment right. Judge Scott advised them of

their right to have counsel appointed if they could not

afford to retain separate counsel. He determined that

the codefendants had discussed the risks of multiple

representation with their counsel. Prophetically, he also

advised them of the conflict of interest which could be

caused by one codefendant testifying against another.

We note that Judge Scott’s inquiry and warning is

the type suggested by proposed Federal Rules of

Criminal Procedure, Rule 44(c). That rule states in

pertinent part that in cases of joint or multiple

representation “the court shall promptly inquire with

respect to each joint representation and shall personally

advise each defendant of his right to the effective

assistance of counsel, including separate representation.”

Preliminary Draft of Proposed Amendments to the

ee ee ee

13a

Federal Rules of Criminal Procedure, Committee on

Rules of Practice and Procedure of the Judicial Confer-

ence of the United States (February 1978). See, also,

Kaplan v. United States, 375 F.2d 895 (9th Cir. 1967),

cert. denied, 389 U.S. 839 (requiring such a hearing

where there is some indication of a possibility of

conflict of interest occurring).

Partin was also familiar with the importance of

counsel in our criminal justice system on a firsthand

basis. The indictment under which Partin was tried grew

out of two earlier criminal cases in which Partin was a

defendant. In the course of those two cases he stood

trial three times. See United States v. Partin, supra.

Prior to those two criminal cases Partin was a defendant

in a number of prosecutions in the early 1960’s. See:

Hoffa v. United States, 385 U.S. 293, 297-98 (1966).

We have taken notice of Partin’s prior involvement in

criminal cases as a defendant solely in connection with

his ability to appreciate Judge Scott’s 1974 admonition

concerning the risks of multiple representation and the

importance of the effective assistance of counsel. We

note that Partin was never convicted in those previous

criminal cases, other than the convictions which were

reversed.

If the conflict of interest problem which Partin raises

on appeal had been a completely unknown contingency

prior to his trial, we might be reluctant to find a waiver

of his right to counsel free from conflict of interest

solely on the basis of Judge Scott’s 1974 warning. To

do so might force a defendant to waive his right to

object to unknown problems at his trial. In this case,

however, Partin was aware of the possibility that a

codefendant, represented by McPherson, would testify

as a government witness at his trial.

l4a

At Partin’s second trial, when he was not represented

by McPherson, one of the government witnesses was

Ben Trantham, a codefendant who was represented by

McPherson. The problem of a codefendant testifying

against him, which Judge Scott had cautioned him

about, had occurred, Despite this knowledge, Partin

retained McPherson to represent him at his third trial.

The fact that Sykes, not Trantham, testified at the

third trial does not change the fact that the type of

conflict which occurred was known prior to trial bv

both Partin and McPherson, who had reviewed the

record of the earlier trial in preparation for trial.

In Larry Buffalo Chief v. South Dakota, 425 F.2d

271 (8th Cir. 1970), the defendant dismissed court-

appointed counsel and retained the attorney who was

representing his codefendants. The Eighth Circuit said

that action alone was not sufficient to constitute a

waiver of the defendant’s right to the assistance of

effective counsel. To constitute waiver the defendant

would have to know of the conflict at the time he

retained the attorney, the court said. 425 F.2d at

279-280. Here Partin knew of the conflict when he

retained McPherson. In United States v. Frame, 454

F.2d 1136 (9th Cir. 1972), cert. denied, 406 U.S. 925,

we stated that once a defendant exercises “‘his right to

retain counsel after being informed of the possible

conflict ard its consequences” he has waived “any

subsequent claim based upon the alleged conflict.” 454

F.2d at 1138.

Partin’s decision to retain McPherson for his third

trial after he had been warned of the risks inherent in

multiple representation and after he had seen one of his

codefendants represented by McPherson testify at his

second trial, demonstrates a knowing and intelligent

ey oll Atel

ARP AA eet ob Ti A RR No «

eee

15a

waiver of his right to representation free from conflict

of interest.

Even if Partin had not waived this Sixth Amendment

right, the testimony of Sykes did not result in a

conflict of interest for McPherson. In Holloway v.

Arkansas, supra, the Court held that, although joint

representation of codefendants is not per se violative of

constitutional guarantees of effective assistance of coun-

sel, when a trial court is informed in a timely manner

of the possibility of a conflict of interest, the court

must appoint separate counsel unless it ascertains that

the possibility is too remote to warrant such a step.

435 U.S. at 485-486. The Court also addressed the

problem of a defense counsel’s untimely motion for

separate counsel.

The State has an obvious interest in avoiding such

abuses [defense counsel seeking to delay trials by

untimely motions].... When an untimely motion

for separate counsel is made for dilatory purposes,

our holding does not impair the trial court’s ability

to deal with counsel who resort to such tactics

(citations omitted). Nor does our holding preclude

a trial court from exploring the adequacy of the

basis of defense counsel’s representations regarding

a conflict of interests... . (emphasis supplied)

435 U.S. at 486-87.

The hearing which Judge Scott conducted at Partin’s

trial, in order to determine the nature of McPherson’s

motion for a mistrial, was an appropriate response to

McPherson’s untimely motion.’ Judge Scott determined

9tn view of McPherson’s and Partin’s knowledge of Trant-

ham’s appearance at Partin’s second trial, this motion can only

be characterized as untimely.

16a

that the basis of the motion was McPherson’s belief

that he would be unable to cross-examine Sykes

because of the attorney-client privilege Sykes possessed.

Once Sykes waived his attorney-client privilege the

conflict which concerned McPherson was eliminated.

The privilege was not McPherson’s but Sykes’. See, e. g,

United States v. Jeffers; 520 F.2d 1256, 1265 (7th Cir.

1975), cert. denied, 423 U.S. 1066 (1976) (the Court

‘ noted that where an attorney-client privilege existed, it

was the witness, not the attorney who must object to

the cross-examination).

In United States v. Vargas-Martinez, 569 F.2d 1102,

1104 (9th Cir. 1978), a codefendant testifying against

one of the appellants, Arroyo-Ayala, was represented by

Arroyo-Ayala’s attorney. The testifying codefendant

refused to waive any conflict of interest claim and the

attorney was unable to cross-examine him. We upheld

the trial court’s decision that required Arroyo-Ayala to

be represented by separate counsel. Contrary to the

codefendant in Vargas-Martinez, Sykes waived the attor-

ney-client privilege and there was no need to declare a

mistrial in order for Partin to retain new counsel.

Partin, however, points to McPherson’s failure to

impeach Sykes’ credibility during cross-examination as

demonstrating a conflict of interest. This is the only

specific aspect of McPherson’s representation which

Partin points to on appeal. An examination of the

record indicates that the reason the scope of Sykes’

crogss-examination was limited was because McPherson

did not wish Sykes’ conviction on Count II of the same

indictment under which Partin was being tried to come

to the attention of the jury. Moreover, McPherson’s

associate counsel could have conducted this examina-

tion.

a eo ee ee Bens dl made tt se notre

lath ssa eee tenill 0s 8h bate tat ae atte nae

17a .

At the beginning of the trial McPherson asked

Assistant United States Attorney Mayo if he planned to

bring out the prior convictions of any of Partin’s

codefendants who would testify at trial (two codefen-

dants not represented by McPherson also testified at the

trial). Mayo responded that in accordance with the

court’s ruling at Partin’s first trial, he would bring out

the witnesses’ convictions if their credibility was at-

tacked.

By not attacking Sykes’ credibility, McPherson avoid-

ed bringing to the attention of the jury the fact that

one of Partin’s coconspirators had been found guilty of

the same conspiracy he was charged with on Count II.

McPherson’s cross-examination of codefendant Jack

Gremillion, Jr., who had pled guilty to Count II, was

limited in the same manner as his cross-examination of

Sykes. The other codefendant, Jerry Millican, had not

been convicted; his testimony is the subject of the

witness security program jury instruction, infra.

In a case such as this when the trial judge made an

inquiry into the multiple representation of codefendants

by defense counsel and warned the codefendants of the

dangers of such representation, and where the defense

counsel and the defendant were aware of the possibility

of a conflict of interest occurring, the defendant bears

the burden of demonstrating that specific prejudice has

resulted to him from the alleged conflict of interest.

United States v. Eaglin, 571 F.2d 1069, 1086 (9th Cir.

1977). Appellant Partin has not met that burden.

Witness Security Program Jury Instruction

The government’s last witness was Jerry Millican, a

former codefendant of Partin’s who had not been

convicted. Millican was participating in the witness

18a

security program. In the course of his direct testimony

the judge gave an instruction to the jury concerning the

witness security program. This instruction was given at

the request of the government in order to disclose to

the jury, on direct examination, information that could

damage the witness’ credibility. The defense has a right

to show that a witness, while in the program, has

received substantial benefits. United States v. Partin,

552 F.2d at 645.

After the instruction was given, defense counsel

moved for a mistrial and stated in appellant’s brief,

“the defense had believed the judge was only going to

charge that this was a legitimate program authorized by

Congress and, instead, the jury was told that the

Attorney General had made a determination that

Millican’s life had been threatened.” If. such an instruc-

tion had been given, it could perhaps be prejudicial to

Partin. The instruction, however, does not state that the

Attorney General must believe that the witness is

threatened.

The particular sentence of the instruction which is

objected to states: “[The witness]. must satisfy the

Attorney General that he is a necessary witness in a

case and that he has reason to believe that his wellbeing

is in danger, his life or wellbeing, that he is threatened

in some way.” The instruction informs the jury that

l0The entire instruction states:

Ladies and Gentlemen, you have just heard something

mentioned called the witness. security program, and the

Court wants to give you this instruction in connection with

that and tell you what a witness security program is. A

witness must qualify before he is able to enroll in the

[footnote continued]

19a

the witness must satisfy the Attorney General that the

witness believes he is threatened Nonetheless, as the

Fifth Circuit noted in United States v. Partin, supra, an

instruction regarding the witness security program must

“be handled delicately,” 552 F.2d at 645, but the Fifth

Circuit also recognized the fact that the risk involved

may be to some extent unavoidable.

Although the sentence quoted above was not con-

tained in the instruction approved by the Fifth Circuit

in United States v. Partin, supra, it is a correct

program. And when he is enrolled he is given a certain

amount of money, It is not salary—excuse me, I will start

again. This is an attempt of the Court to instruct you what

the witness security program is. It is a program under

which this witness has lived in the past. The witness must

qualify before he is able to be enrolled in that program.

And when he is enrolled he is given a certain amount of

money. It is not salary, it is just a gratuity in lieu of salary

to allow him to live in the place where he is assigned to

live. And he is assigned to the place and he is under the

custody of the United States Marshal Service. Only a

few—only one or two persons, that is, in that service,

actually know where the witness is, the man who is

actually in charge of him on the spot and one person

higher up in the department. He is assigned a place to live.

His identity is totally concealed. He has to assume a name.

He is not at liberty, but is allowed to work. I think for a

practical matter it is very hard for him to work because he

cannot identify himself or his background. And to qualify

to get on this program he must certify, I mean he must

satisfy the Attorney General that he is a necessary witness

in a case and that he has reason to believe that his

well-being, is in danger, his life or wellbeing, that he is

threatened in some way. And if he fulfills those two

qualifications he may or may not be put on the witness

security program. And the main thing is, the main effect is

that no one, not just the public, but even his closest

associates, former associates, have no idea where he is or

where his whereabouts are. They cannot get in touch with

him.

20a

statement of the law. It refers to the possibility of a

threat but does not tell the jury that the Attorney

General has concluded that there was a threat or who

may have made the threat if there was one. The

instruction is fair to the government in that it explains

why the witness is receiving government money. Indeed,

the cross-examination of Millican emphasized the gov-

ernment payments he received as a means of attacking

his credibility. The defense again emphasized the gov-

ernment payments to the witness during closing argu-

ment. Judge Scott did not give a witness security

program instruction at the close of the trial, nor was he

requested to do so by the defendant, although the

government urged, unsuccessfully, that the witness

security instruction should be repeated.

In view of the emphasis by the defense on the

government payments received by Millican, the instruc-

tion properly explained information to the jury which

concerned the witness’ credibility. Furthermore, in view

of all of the evidence presented by the prosecutor, this

instruction cannot be said to have tilted the jury

toward a verdict of guilty.

Appeliant also argues that the trial court erred in

giving the instruction without a copy of it having been

furnished to defense counsel. Appellant relies on Fed-

eral Rules of Criminal Procedure, Rule 30. Appellant’s

argument is incorrect; Rule 30 applies to final instruc-

tions given to a jury, not to instructions given during

trial unless a written request for such instruction was

tendered which, in this case, it was not. The very

wording of Rule 30 adequately demonstrates that this

was not intended to apply to cautionary instructions

given during trial proceedings.

2 an nlraeS

2la

Judge Sco:t’s Refusal to Recuse Himself

Appellant argues that Judge Scott should have re-

cused himself because he had presided at the trials of

all of the codefendants in this case. This exact same

" question has been decided in a case involving Partin’s

codefendants and Judge Scott. United States v. Partin,

supra at 636-39. We agree with the Fifth Circuit that

Judge Scott did not err in failing to recuse himself.

Appellant has alleged no bias on the part of Judge

Scott, nor did he comply with the requirements of 28

U.S.C. § §144 or 455. The recusal motion was properly

denied. United States v. Anderson, 561 F.2d 1301,

1303 (9th Cir. 1977), cert. denied, 434 U.S. 943.

We conclude that an overall view of the entire trial

convincingly demonstrates that Partin had a fair trial.

AFFIRMED.

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERCIA

Plaintiff-Appellee,

’

)

v. ) No. 77-3853

)

EDWARD GRADY PARTIN, )

Defendant-Appellant. _)

Before TRASK and WALLACE, Circuit Judges, and

HOFFMAN,* District Judge

ORDER

The panel as constituted in the above case has voted

to deny the motion for reconsideration. Judges Trask

and Wallace have voted to reject the suggestion for

rehearing en banc. Judge Hoffman does not vote on the

suggestion for rehearing en banc.

The full court has been advised of the suggestion for

an en banc hearing, and no judge of the court has

requested a vote on the suggestion for rehearing en

banc. Fed.R.App.P. 35(b).

The motion for reconsideration is denied and the

suggestion for a rehearing en banc is rejected.

*Honorable Walter E. Hoffman, Senior United States District

Judge, for the Eastern District of Virginia, sitting by designation.

Lae inland

}

;

nn Malt halle at - s

23a

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-229

EDWARD GRADY PARTIN,

Petitioner,

UNITED STATES

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner,

It is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including October 19,

1979.

/s/ William H. Rehnquist

Associate Justice of the Supreme

Court of the United States

Dated this 17th day of September, 1979.

24a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

) No. 77-3853

VS. )

) ORDER

EDWARD GRADY PARTIN, )

Defendant-Appellant. _)}

Before: TRASK and WALLACE, Circuit Judges, and

HOFFMAN’, District Judge

Upon the votes of Judges Trask and Hoffman to

deny the motion, the motion for clarification of the

opinion filed by the United States is denied as moot.

/s/ Ozell M. Trask

United States Circuit Judge

*Honorable “alter E. Hoffman, Senior United States District

Judge, for the Eastern District of Virginia, sitting by designation.

25a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

) No. 77-3853

vs. )

) ORDER

EDWARD GRADY PARTIN, )

Defendant-Appellant. _)

Before: TRASK and WALLACE, Circuit Judges, and

HOFFMAN *%, District Judge

The motion for remand filed by defendant-appellant

is denied.

/s/ Ozell M. Trask

United States Circuit Judge

*Honorable Walter E. Hoffman, Senior United States District

Judge, for the Eastern District of Virginia, sitting by designation.

26a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 77-3853

)

Vs. )

) ORDER

EDWARD GRADY PARTIN, )

Defendant-Appellant. _)

Before: TRASK and WALLACE, Circuit Judges, and

HOFFMAN, District Judge

Because views of judges crossed in the mails, and

thus did not clearly reflect their judgment, the panel

herewith sua sponte amends the Order filed August 10,

1979, to read as follows:

“The motion for remand filed by defendant-

appellant is denied without prejudice to resubmis-

sion of said motion for new trial based upon

after-discovered evidence to the district court in

the event the district court is inclined to grant a

new trial and issues a certificate to that effect.

United States v. Phillips, 558 F.2d 363 (6th Cir.

1977). See also, Rule 33, Fed. R. Crim. P.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.