Opposition — Partin v. United States

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No. 79-646

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PStCMAEL RODAK, JR., CLERK

In the Suprene Court of the United States

OCTOBER TERM, 1979

EDWARD GRADY PARTIN, PETITIONER

-

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCRrEE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

DEBORAH WATSON

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

I gis 1

NS i i ceci 1

Question presented 2... oon. eeennencnenececeee 2

aE EMR SE RENNES EE NORE Rev AO 2

SINE CE RSA hee ER TS 10

I ce te ee 24

CITATIONS

Cases:

Brewer v. Williams, 480 U.S. 387 ............ 22

Castillo v. Estelle, 504 F.2d 1248 10-11

Faretta v. California, 422 U.S. 806........... 18, 23

Glasser v. United States, 315 U.S. 60 ...... 11,18

Hayman v. United States, 205 F.2d 891.... 20

Hoffa v. United States, 385 U.S. 298 ........ 19

Holloway v. Arkansas, 485 U.S. 475 ........ 10, 11,

15, 18

Johnson v. Zerbst, 304 U.S. 458 18

Larry Buffalo Chief v. South Dakota, 425

Pe SE srethttasinisicegaiateccnen Re oe 19

Lollar v. United States, 376 F.2d 243 ___. 18

Massiah v. United States, 377 U.S. 201... 22

Moore v. Wolf, 495 F.2d 35 ........... 24

Schram v. Cupp, 486 F.2d 692... 19

Solomon v. LaVallee, 575 F.2d 1051 15

Stephens v. United States, 595 F.2d 1066.. 10

Taylor v. United States, 226 F.2d 337... 11

United States v. Carrigan, 543 F.2d 1053.. 15

United States v. Crook, 502 F.2d 1378,

cert. denied, 419 U.S. 1123. 24

II

Cases—Continued Page

United States v. Donahue, 560 F.2d 1039.. 15

United States v. Eaglin, 571 F.2d 1069,

cert. denied, 485 U.S. 906 -.................... 15

United States v. Duklewski, 567 F.2d 255.. 18

United States v. Gaines, 529 F.2d 1038... 19

United States v. Garcia, 517 F.2d 272 ...... 18

United States v. Jeffers, 520 F.2d 1256,

cert. denied, 423 U.S. 1066 -................... 11,13

United States v. Lawriw, 568 F.2d 98,

cert. denied, 435 U.S. 969 della 18

United States v. Marionneaux, 514 F.2d

1244, cert. denied, 484 U.S. 903 -.......... 3

United States v. Masullo, 489 F.2d 217.... 24

United States v. Partin, 552 F.2d 621,

cert. denied, 434 U.S. 903 -................ 2,3, 6, 19

United States v. Vargas-Martinez, 569

I I itn a 12

United States v. Villarreal, 554 F.2d 235,

cert. dismissed, 434 U.S. 802 -............... 20

Zuck v. Alabama, 588 F.2d 436, cert. de-

nied, No. 78-1741 (Oct. 1, 1979) -......... 10

Zurita v. United States, 410 F.2d 477...... 11

Constitution, statutes and rules:

United States Constitution, Sixth Amend-

ENS DEES ARRAS ate eR, 4,10, 11, 22

18 U.S.C. 371 PEER <i TL a 2

18 U.S.C. 1508 ............. . 2

I Te Is TI Socneciereeteernec * 20

Proposed Fed. R. Crim. P. 44(¢) -............ 11,18

Miscellaneous:

8 J. Wigmore, Evidence (1961 ed.) ......... 21

ABA Code of Professional Responsibility,

Disciplinary Rule 7-104 . ...21, 22, 23

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-646

EDWARD GRADY PARTIN, PETITIONER

De

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals is reported at

601 F.2d 1000.

JURISDICTION

The judgment of the court of appeals was entered

on May 7, 1979. A petition for rehearing was denied

on August 27, 1979. Mr. Justice Rehnquist extended

the time for filing a petition for a writ of certiorari

to October 19, 1979, and the petition was filed on

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether petitioner’s representation by an attorney

who also represented a former co-defendant denied

petitioner the effective assistance of counsel when the

former co-defendant testified against petitioner after

waiving his attorney-client privilege.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Southern District of California,

petitioner was convicted on three counts of conspir-

ing to obstruct justice, in violation of 18 U.S.C. 371

and 1503. He was sentenced to concurrent terms

of four years’ imprisonment on Counts I and III

and a consecutive term of four years on Count II.

The court of appeals affirmed (Pet. App. A).

1. On October 4, 1978, a three-count indictment

was filed in the Middle District of Louisiana charg-

ing petitioner, Harold Sykes, Ben Trantham, and

nine others with conspiring to change the testimony

of witnesses and to prevent witnesses from testifying

in connection with two previous cases in which peti-

tioner was a defendant.’ The trial that is the sub-

ject of the instant petition, held in San Diego, Cali-

fornia as a result of a transfer motion, was petition-

er’s third trial under this indictment.

1The history of the earlier cases and the genesis of the

instant prosecution are set forth in United States v. Partin,

552 F.2d 621 (5th Cir.), cert. denied, 484 U.S. 903 (1977).

3

Petitioner, who was tried separately from the other

defendants, retained James McPherson as his at-

torney at his first and third trials. McPherson was

also retained by seven other co-defendants, includ-

ing Harold Sykes and Ben Trantham, both of whom

were named in Count II of the indictment and were

convicted at a separate trial.’

In May 1974, before any of the co-defendants had

come to trial, the government filed a motion request-

ing that the trial judge hold a hearing regarding the

representation of eight of the co-defendants by the

same attorney. The government was concerned that

such multiple representation might create a conflict

of interest for attorney McPherson and deprive de-

fendants of their Sixth Amendment right to effec-

tive assistance of counsel. At a hearing attended

by all of the co-defendants and attorney McPher-

son, United States District Judge Nauman Scott®

questioned McPherson about his representation of

multiple defendants. McPherson informed Judge

Seott that he had discussed the case with his clients

and was satisfied that there was no conflict of inter-

2Sykes and Trantham were first tried and convicted in

August 1974. Their convictions were reversed and remanded

on June 17, 1975. United States v. Marionneauz, 514 F.2d

1244 (5th Cir. 1975), cert. denied, 434 U.S. 903 (1977). In

July 1975, Sykes and Trantham were again tried and con-

victed, and their convictions were affirmed on appeal. United

States v. Partin, supra. Sykes then petitioned for a writ of

certiorari, No. 77-34, which was denied on October 17, 1977,

several weeks after petitioner’s third trial was concluded.

Partin v. United States, 484 U.S. 908 (1977).

3 Judge Scott presided at all three of petitioner’s trials.

4

est. McPherson also stated that he had discussed with

his clients the possibility of unforeseen conflicts that

might arise in the course of the proceedings and that

his clients still wished to be represented by him, even

though they understood that there might be conflict

of interest problems in that representation (Pet.

App. 3a-4a).

After questioning McPherson, Judge Scott ad-

dressed each defendant and advised him of the im-

portance of his Sixth Amendment right to the effec-

tive assistance of counsel and, in particular, of his

right to be represented by counsel who was free of

any conflict of interest. He informed the defendants

of the potential problems of multiple representation

and specifically of the problems that could arise if

one defendant testified against another. 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.

4 The pertinent portion of Judge Scott’s advice to the co-

defendants was as follows (Pet. App. 4a-5a n.5):

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 inter-

est with respect to the charges against each of you and

the defenses that might be asserted with regard to those

5

Petitioner’s first trial (and that of two co-

defendants) commenced on November 13, 1974, but

ended in a mistrial after the first day. The trial of

charges. In addition, each has informed me that he had

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 judgment

of either of them in this regard, I do want, however, to

advise you to think carefully about this matter, about

what is in your own best interest, and about your consti-

tutional 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 some 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 wit-

ness stand and begin to testify against his co-defendant

he might end up being acquitted, but he would undoubt-

edly add to the evidence against the co-defendants... .

I 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 pre.ent counsel and

you are satisfied to run any risks that may hereafter

develop of a possible conflict of interest, you certainly

6

the two-codefendants was then severed from petition-

er’s trial.

2. Petitioner’s second trial, in February and

March of 1975, resulted in a conviction on all three

counts charged in the indictment. Attorney Mc-

Pherson did not represent petitioner at this trial.

One of petitioner’s co-defendants, Ben Trantham,

testified against petitioner. Trantham was appealing

his conviction on Count II of the indictment at the

time of his testimony. Trantham had been repre-

sented by McPherson at his trial and was being

represented by him on appeal. Petitioner’s convic-

tion at his second trial was reversed in May 1977.

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

cert. denied, 484 U.S. 903 (1977).

3. Before petitioner’s third trial commenced and

several months after Harold Sykes’ conviction was

affirmed on appeal (ibid.), Sykes called the Assistant

United States Attorney in charge of the trials of

petitioner and his co-defendants and told him that

he wished to cooperate with the government (Tr.

296). At the time, McPherson was representing

Sykes in connection with a pending petition for

a writ of certiorari to review the Fifth Circuit deci-

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.

7

sion affirming his conviction. Sykes told the prose-

cutor that he believed that attorney McPherson con-

sidered petitioner’s interests to be paramount to his

and that McPherson had thrown him and other co-

defendants “to the dogs” in order to save petitioner

(Tr. 296, 305-306). Sykes requested that his co-

operation be kept a secret because he feared for his

safety if his cooperation became known (Tr. 296,

312-313). Sykes subsequently gave two statements

to the FBI prior to petitioner’s trial (Tr. 296, 311-

312).

Pursuant to Sykes’ request, the prosecutor did not

inform McPherson of Sykes’ cooperation, but he did

inform the trial court that Sykes had given a state-

ment and would be a government witness at trial

(Tr. 296, 310-311).° In addition, the government

advised McPherson prior to trial that writs of habeas

corpus ad testificandum had been issued to Harold

Sykes and two other of petitioner’s convictea co-

defendants (also represented by McPherson) to se-

cure their presence at trial (G. Br. 29 & n.9; see

also R. 42 [docket entry] ).’

5 Sykes originally retained McPherson to represent him.

After his first trial and appeal, he was no longer able to

afford: counsel, and McPherson was appointed to represent

him. .

* At trial, Judge Scott did not remember the prosecutor’s

advising him that Sykes would be a government witness, but

stated that he was sure the prosecutor had done so (Tr. 310).

7On motion of the government, copies of these writs were

included in the record on appeal. “G. Br.” refers to the

government’s brief on appeal.

8

Petitioner’s third trial was held between Septem-

ber 26 and October 4, 1977, several weeks before this

Court denied Sykes’ petition for a writ of certiorari.

He was represented at the trial by McPherson and

by John Mitchell, who served as local counsel (Tr.

72).

When the government called Sykes as a witness at

trial, Judge Scott recessed the proceedings and held a

hearing in chambers concerning the matter (Tr. 297).

McPherson informed Judge Scott that he had a con-

flict of interest because he was representing Sykes

in a petition for a writ of certiorari; he stated that

due to his attorney-client relationship with Sykes, he

would be unable to cross-examine Sykes effectively

(Tr. 298, 300). Judge Scott then interviewed Sykes

outside the presence of the prosecutor and defense

counsel in order to determine whether Sykes wished

to confer with McPherson before testifying (Tr. 302).

Sykes informed the court that he did not wish to do

so (Tr. 304).

Following Judge Scott’s interview with Sykes, Mc-

Pherson moved for a mistrial in order to afford

petitioner an opportunity to retain new counsel who

would be free to cross-examine Sykes (Tr. 308).

Judge Scott denied the motion, noting that McPher-

son’s motion came with “poor grace’””’ in light of

petitioner’s insistence on retaining McPherson despite

Judge Scott’s earlier conversation with all the de-

fendants concerning the possible disadvantages of

multiple representation, and, in particular, the pos-

sibility that some of the defendants might later de-

9

cide to testify as government witnesses (Tr. 313-

314). Judge Scott further stated that while McPher-

son could still represent petitioner at the trial, he

felt that McPherson could no longer represent Sykes

(Tr. 314); he suggested that Sykes formally dis-

charge McPherson as his attorney (Tr. 316).

McPherson, although still urging a mistrial, stated

that he did not believe it would be necessary for Sykes

to discharge him as his attorney (Tr. 318). McPher-

son suggested that if Sykes waived the attorney-client

privilege, he would be able to cross-examine Sykes

effectively, and that such a procedure would resolve

any ethical considerations (Tr. 314-318). Judge

Seott called Sykes into chambers and in the pres-

ence of the prosecutor and defense counsel explained

to him the attorney-client privilege and asked whether

Sykes would be willing to waive the privilege (Tr.

320). McPherson also explained the privilege to

Sykes, informing him that in order to represent

petitioner, he (McPherson) would have to attack

Sykes’ credibility on cross-examination, and in doing

so would have to use information Sykes had divulged

to him during the attorney-client relationship (Tr.

321-323). Sykes stated that he understood and that

he was willing to waive the privilege (Tr. 325). He

further stated that McPherson could cross-examine

him on any matter and could use on cross-examination

any information obtained during the course of the

attorney-client relationship (Tr. 324-325).

Prior to the resumption of the trial, petitioner ad-

dressed the judge, informing him that he wanted a

10

new attorney in light of the conflict of interest (Tr.

326-327). Judge Scott denied the request, stating that

the situation about which petitioner was now com-

plaining had occurred because petitioner had chosen

to ignore his earlier warning about the potential

problems of multiple representation (Tr. 327-328).

Sykes then testified on direct examination, admit-

ting his guilt on Count II of the indictment and im-

plicating petitioner (Tr. 328-363). Prior to cross-

examination, McPherson interviewed Sykes. McPher-

son had been given copies of the two statements Sykes

had made to the FBI (Tr. 366-367). 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 (Tr. 367). Mc-

Pherson did not impeach Sykes’ credibility during

cross-examination (Tr. 368-370).

ARGUMENT

Petitioner claims that his Sixth Amendment right

to the effective assistance of counsel was violated be-

cause his principal trial counsel was representing

prosecution witness Harold Sykes in connection with

a petition for a writ of certiorari and had repre-

sented Sykes at his separate trial and on appeal of

his conviction on Count II of the instant indictment.

1. Citing Holloway v. Arkansas, 4385 U.S. 475

(1978), and decisions by the Fifth Circuit, Stephens

v. United States, 595 F.2d 1066 (5th Cir. 1979);

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

' denied, No. 78-1741 (Oct. 1, 1979) ; Castillo v. Estelle,

11

004 F.2d 1243 (5th Cir. 1974), the Seventh Circuit,

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

1975), cert. denied, 423 U.S. 1066 (1976) ; Zurita v.

United States, 410 F.2d 477 (7th Cir. 1969), and

the District of Columbia Circuit, Taylor v. United

States, 226 F.2d 387 (D.C. Cir. 1955), petitioner

correctiy states the general rule that when an attorney

simultaneously represents a defendant and a prose-

cution witness testifying against his client, a conflict

of interest is established that renders the trial funda-

mentally unfair (see Pet. 17-23). This rule is based

on the premise that when one attorney is compelled

to represent conflicting interests simultaneously,

counsel may be restrained in the zeal of his repre-

sentation of one or both of those interests and may

therefore not render the effective assistance of counsel

contemplated by the Sixth Amendment. See Holloway

v. Arkansas, supra, 435 U.S. at 482; Glasser v. United

States, 315 U.S. 60, 70 (1972). However, nothing in

those cases suggests that a trial judge is powerless

to adopt measures—or to endorse measures approved

by one of the clients—that will eliminate such re-

straints during a trial.®

In the instant case, the solution adopted by the

court eliminated the only conflict that concerned de-

fense counsel McPherson or posed any realistic threat

to petitioner’s interest in loyal representation by his

attorney. Upon learning of the conflict of interest,

8 Indeed, proposed Rule 44(c) of the Federal Rules of

Criminal Procedure states that “the court shall take such

measures as may be appropriate to protect each defendant’s

right to counsel” in cases of joint representation.

12

the trial court held a hearing on the matter and de-

termined that the basis for McPherson’s motion for a

mistrial was his belief that he would be unable to

cross-examine Sykes effectively due to confidential dis-

closures that Sykes had made to him during the

attorney-client relationship. The court then inquired

of Sykes whether he would be willing to waive the

attorney-client privilege, and Sykes agreed to do so.°

This waiver eliminated the conflict of interest and

made it possible for McPherson to cross-examine

Sykes effectively. See United States v. Vargas-Mar-

tinez, 569 F.2d 1102, 1104 (9th Cir. 1978), in which

a co-defendant testifying against one of the appellants

was represented by the appellant’s attorney. Al-

though the testifying co-defendant there refused to

waive the privilege, the court made clear that had

he done so, the waiver would have eliminated the

conflict of interest.

Petitioner nonetheless claims (Pet. 21-22) that

Sykes’ waiver of the privilege, which permitted Mc-

Pherson to question Sykes without fear of divulging

otherwise confidential communications, did not ade-

quately free McPherson to cross-examine Sykes. Peti-

tioner argues that McPherson continued to have a

professional duty of individual loyalty to Sykes and

had to consider, among other things, “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 gov-

® Sykes’ decision was, of course, consistent with his decision

to cooperate with the government without notifying Mc-

Pherson.

13

ernment relied on at trial” (Pet. 22). This claim is

not persuasive. Before Sykes waived his privilege,

both the court and McPherson carefully explained to

him the consequences of such waiver, including the

fact that it would allow McPherson to attack Sykes’

credibility (Tr. 321-323). Sykes stated that he un-

derstood, and that McPherson could cross-examine

him on anything he desired.

Thus, in waiving the privilege, Sykes not only

agreed to the disclosure of otherwise privileged in-

formation, but he also agreed to relinquish his right

to the loyalty of McPherson and to accept the conse-

quences of a thorough attack on his credibility by a

defense attorney, whether it be McPherson or another

attorney, with all its attendant benefits and burdens.

Petitioner cannot now claim that despite such waiver,

McPherson still owed a duty to Sykes that he could

not breach. The right to ciaim the protection of the

attorney-client privilege and to demand attorney

loyalty belonged to Sykes, not to McPherson. See,

e.g., United States v. Jeffers, 520 F.2d 1256, 1265

(7th Cir. 1975), cert. denied, 423 U.S. 1066

(1976). There is no indication that McPherson

felt constrained in his cross-examination of Sykes

by his prior attorney-client relationship with him.

He had cited the possible use of privileged informa-

tion as the reason he could not cross-examine Sykes

(Tr. 314-315), and he was relieved of any obsta-

cles the privilege might pose by Sykes’ decision to

waive it. The use of privileged information to im-

peach a client would, absent a waiver, constitute a

rather obvious act of disloyalty to that client, and

14

McPherson must therefore have understood Sykes’

waiver to free him from his obligations to Sykes in

this regard as well.

Moreover, when the trial court was apprised of

the conflict of interest, it suggested that McPherson

would no longer be able to represent Sykes. Mc-

Pherson, however, assured the court that that would

not be necessary, stating (Tr. 318): “I don’t think

we have to go so far as to require Mr. Sykes to fire

me. I think what he has to do before I can proceed

on cross-examining him is to waive the attorney-client

privilege. And if he does that then I think I am

covered.”

Absent McPherson’s assurances that Sykes’ waiver

of the privilege would resolve McPherson’s ethical

dilemma and enable him to cross-examine Sykes ef-

fectively, the court might well have suggested that

Sykes formally discharge McPherson. In light of

Sykes’ earlier statements that he felt McPherson had

thrown him “to the dogs,” it is inconceivable that

Sykes would have objected to doing so, particularly

because his conviction had already been affirmed by

the Fifth Circuit, and McPherson’s representation of

him before this Court was dormant pending a deci-

sion on the petition for a writ of certiorari. Thus,

under these circumstances, Sykes’ decision to waive

the attorney-client privilege and to permit McPher-

son to cross-examine him in any manner he chose

was the practical equivalent of discharging McPher-

son as his attorney, and his failure to do so formally

is of no moment—especially given McPherson’s own

15

representation that waiver of the attorney-client

privilege eliminated any obstacle to thorough and

effective representation of petitioner.

2. Further, where, as here, the trial court had made

an inquiry into the multiple representation of co-

defendants by the same attorney and warned the co-

defendants of the dangers of such representation, and

where the defense counsel and petitioner were aware

of the possibility of a conflict of interest arising but

nevertheless insisted on proceeding with the joint

representation, petitioner bears the burden of demon-

strating that specific prejudice has resulted to him

from the alleged conflict of interest. See Solomon

v. LaVallee, 575 F.2d 1051, 1055 (2d Cir. 1979);

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

Cir. 1977), cert. denied, 435 U.S. 906 (1978) ; United

States v. Donahue, 560 F.2d 1039, 1042 (1st Cir.

1977); United States v. Carrigan, 543 F.2d 1053,

1055-1056 (2d Cir. 1976). The requirement that

prejudice be shown is especially appropriate here,

where the trial court took reasonable measures to

1° Petitioner claims (Pet. 27-29) that under Holloway v.

Arkansas, supra, 435 U.S. at 487-491, “wherever a trial court

improperly requires joint representation over timely objec-

tion reversal is automatic” absent any showing of specific

prejudice. As demonstrated above, however, not only was

petitioner’s objection untimely, but the trial court acted

properly in requiring McPherson’s continued representation

of petitioner once Sykes had waived his attorney-client privi-

lege and agreed to permit McPherson to cross-examine him.

Nothing in Holloway disturbs the settled principle that when

the trial court makes a proper inquiry into the multiple rep-

resentation of co-defendants, advises them of the risks in-

volved, and offers to provide independent counsel, the defend-

ant has the burden of demonstrating specific prejudice.

\

16

eliminate any conflict of interest when that possibility

later surfaced. Petitioner has not met that burden.

Petitioner claims (Pet. 28-29) that specific preju-

dice is sufficiently demonstrated by the fact that

although Sykes was extremely vulnerable to cross-

examination, being an alcoholic and a convicted felon,

McPherson failed to attack his credibility... The

record clearly shows, however, that McPherson lim-

ited his cross-examination of Sykes because he did

not wish Sykes’ conviction on Count II of the same

indictment under which petitioner was being tried

to come to the attention of the jury.

At the beginning of the trial, McPherson asked the

prosecutor whether he planned to bring out the prior

convictions of any of petitioner’s co-defendants who

would testify at trial (Tr. 36). The prosecutor in-

formed him that, in accordance with the court’s rul-

ing at petitioner’s first trial, he would bring out the

witnesses’ convictions if their credibility was attacked

(Tr. 36). Thus, by not attacking Sykes’ credibility,

McPherson avoided bringing to the attention of the

jury the fact that one of petitioner’s co-conspirators

had been found guilty of the same conspiracy with

which petitioner was charged in Count II of the

11 We note that McPherson alerted the jury to Sykes’

character during his opening statement, when he remarked

(Tr. 112): “Harold Sykes drinks constantly. He is not as

bad as Roberson, but when Harold gets a few drinks he gets

kind of wild and he goes on two or three week drunks him-

self. And there was a big drunk that took place during the

time of the Houston trial * * *.”

17

indictment. McPherson’s cross-examination of co-

defendant Jack Gremillion, Jr., who had pled guilty

to Count II, was limited in the same manner as his

eross-examination of Sykes. Indeed, following Mc-

Pherson’s cross-examination of Gremillion, the prose-

cutor informed the court (Tr. 284-286) that he be-

lieved McPherson’s questioning of Gremillion had

laid a sufficient foundation for the government to

bring out on redirect examination the fact of Gremil-

lion’s conviction on Count II. McPherson and co-

counsel Mitchell strenuously objected to the admission

of such evidence on the ground that its prejudicial

effect would outweigh its probative value (Tr. 284-

285, 289). The court sustained defense counsel’s

objections (Tr. 291).

Again, shortly before the close of the government’s

ease, the prosecutor informed the court that he ex-

pected petitioner to testify and requested the court

to issue a restrictive order to prevent petitioner from

impugning the character of several government wit-

nesses, including Gremillion and Harold Sykes (Tr.

1178-1181, 1184). The prosecutor stated that if peti-

tioner attacked the character of the government wit-

nesses, the government would return the witnesses

to the stand and bring out their convictions (Tr.

1186). McPherson agreed to warn petitioner that

he could not attack the character of the government’s

witnesses (Tr. 1193). In these circumstances, it is

patently obvious that McPherson refrained from at-

tacking Sykes’ credibility on cross-examination in

18

order to prevent the jury from learning of Sykes’

conviction on Count II.

38. In any event, we believe that petitioner waived

his right to the assistance of an attorney whose loy-

alty is not divided between clients with conflicting

interests. It is well established that the right to

separate counsel, or to any counsel at all, may be

waived. Holloway v. Arkansas, supra, 435 U.S. at

483, n.5; Glasser v. United States, 315 U.S. 60, 70

(1942) ; United States v. Lawriw, 568 F.2d 98, 104-

105 (8th Cir. 1977), cert. denied, 485 U.S. 969

(1978) ; United States v. Duklewski, 567 F.2d 255,

257 (4th Cir. 1977); United States v. Garcia, 517

F.2d 272, 275-276 (5th Cir. 1975); Lollar v. United

States, 376 F.2d 248, 244 (D.C. Cir. 1967); cf.

Faretta v. California, 422' U.S. 806, 807 (1975).

Whether there has been such a waiver depends upon

“the particular facts and circumstances surrounding

[the] case, including the background, experience, and

conduct of the accused.” Johnson v. Zerbst, 304 U.S.

458, 464 (19388).

Judge Scott’s warnings in May 1974, before any

of the defendants had come to trial,” clearly alerted

petitioner to the risks inherent in multiple represen-

tation, and, in particular, of the conflict of interest

12 Judge Scott’s inquiry and warning is the type suggested by

Rule 44(c) of the proposed amendment to the Federal Rules

of Criminal Procedure. That proposed rule states in pertinent

part that in cases of joint or multiple representation, “the

court shall promptly inquire with respect to such joint repre-

sentation and shall personally advise each defendant of his

right to the effective assistance of counsel, including separate

representation.”

19

which could be caused by one co-defendant testifying

against another.** There is no doubt of petitioner’s

ability to appreciate these warnings concerning the

importance of the effective assistance of counsel. The

indictment under which petitioner was tried grew

out of two earlier cases in which petitioner was a

defendant. In the course of those two cases he stood

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

Moreover, prior to those two criminal cases petitioner

was a defendant in a number of prosecutions in the

early 1960’s. See Hoffa v. United States, 385 U.S.

293, 297-298 (1966).™

18 Citing Schram v. Cupp, 486 F.2d 692, 695 (9th Cir.

1970), petitioner claims (Pet. 26) that the March 1974 hear-

ing alone could not provide a basis for a valid holding of

“waiver,” since the warnings given at that time were not

“reasonably contemporaneous” with the asserted waiver. The

instant situation differs dramatically from that in Schram.

There, the court held that the fact that an indigent defendant

had been advised of his right to counsel in a prior case in

which he was a defendant did not constitute a waiver of the

right to counsel in an entirely different criminal proceeding

arising four years later. Here, by contrast, the warnings

given petitioner pertained to his right to independent counsel

at an earlier trial in the same case. Moreover, unlike the

indigent defendant in Schram, the record here clearly shows

that despite the time lapse between the warnings and peti-

tioner’s third trial, petitioner was capable of fully appreciat-

ing such warnings.

14'That counsel was retained rather than appointed sup-

ports the conclusion that petitioner’s decision to continue

with the representation was a knowing and voluntary one.

United States v. Gaines, 529 F.2d 1088, 1043 n.3 (7th Cir.

1976) ; Larry Buffalo Chief v. South Dakota, 425 F.2d 271,

279 n.6 (8th Cir. 1970).

20

Nor was the conflict of interest problem that peti-

tioner raises an unknown contingency at this trial.

At petitioner’s second trial, when he was not repre-

sented by McPherson, one of the government witnesses

was Ben Trantham, a co-defendant who was repre-

sented by McPherson. Despite this knowledge, peti-

tioner retained McPherson to represent him at his

third trial." What is more, McPherson was advised

15 Petitioner argues (Pet. 24-25), in effect, that his decision

to retain McPherson despite the court’s earlier warnings of

the possibility of a co-defendant testifying against him did

not constitute a waiver because he did not know that Sykes,

in fact, would so testify. We do not believe that petitioner’s

waiver was any less effective simply because he did not know

which co-defendant, if any, might testify for the government.

In electing to retain McPherson, he accepted the precise risk

of which the court had apprised him—namely, that a co-

defendant represented by McPherson might testify against

him. Clearly, a defendant can waive not only existing con-

flicts, but also possible conflicts to which he has been

alerted. See, e.g., United States v. Villarreal, 554 F.2d

235, 236 (5th Cir.), cert. dismissed, 434 U.S. 802 (1977);

Hayman v. United States, 205 F.2d 891, 895 (9th Cir.),

cert. denied, 346 U.S. 860 (1953). The possibility of such

an occurrence was amply brought home to petitioner when

Ben Trantham testified against petitioner at his second trial.

Indeed, on the first day of petitioner’s third trial, the prose-

cutor informed petitioner and McPherson that because Tran-

tham, now dead, was no longer available as a witness, he

might introduce into evidence Trantham’s testimony from

the preceding trial (Tr. 31-34). Neither petitioner nor Mc-

Pherson voiced any objections to such procedure on the ground

that McPherson’s ability to attack the credibility of Tran-

tham’s testimony (pursuant to Rule 806 of the Federal Rules

of Evidence) would be impaired by any conflict of interest

arising from McPherson’s continuing duty to protect informa-

21

by the prosecutor prior to trial that the government

had issued writs of habeas corpus ad testificandum

to Harold Sykes and two other convicted co-

defendants, yet McPherson neither advised the court

nor took any other steps to resolve a potential con-

flict of interest problem that would result if Sykes

in fact testified. This reinforces the conclusion that

petitioner knowingly waived his right to the assist-

ance of counsel free from any conflict of interest.

4, Finally, petitioner contends (Pet. 15, 24, 28

n.13) that reversal is required because the conflict

of interest arose as a result of the government attor-

ney’s misconduct in not notifying McPherson of his

contacts with Sykes, and that such contact violated

Disciplinary Rule 7-104 of the American Bar Associa-

tion Code of Professional Responsibility. That rule

provides that a lawyer representing a client shall not

communicate on the subject of the representation with

a party he knows to be represented by a lawyer with-

out the lawyer’s consent, unless he is “authorized by

law to do so.” The court of appeals found (Pet.

App. 8a-9a) that the prosecutor’s conduct constituted

an ethical violation. The court indicated, however,

that Sykes’ status under the Disciplinary Rule may

have been different because he was no longer an ac-

cused, his conviction having been affirmed on appeal.

But beyond this, the court held that petitioner did not

tion learned from Trantham during the attorney-client rela-

tionship. See 8 J. Wigmore, Evidence § 23824 (1961 ed.)

(attorney client privilege continues even after the death of

the client).

22

have standing to assert a violation of an ethical

standard—or even a Sixth Amendment violation—’

affecting Sykes’ relationship with his lawyer.

We think it plain that petitioner does not have

standing to raise a constitutional or ethical challenge

to the prosecutor’s conversing with Sykes without the

knowledge of Sykes’ counsel. We also agree with the

court of appeals that DR 7-104 is of marginal rele-

vance where the defendant’s conviction has been af-

firmed on appeal and the only remaining stage of

the case is a pending petition for a writ of certiorari.

These considerations suffice to dispose of this aspect

of petitioner’s arguments. But in any event, it is

our view that the prosecutor’s conduct was not un-

ethical under the circumstances of this case.*®

Sykes contacted the Assistant United States Attor-

ney and offered his cooperation. The initiative did not

come from the government. It is clear that a defend-

ant may waive his Sixth Amendment right to the as-

sistance of counsel without notice to his counsel.

Brewer v. Williams, 430 U.S. 387, 405-406 (1977). It

is equally clear that Sykes had a constitutional right

to act on his own behalf in communicating with the

government under the circumstances here presented.

16 DR 7-104 appears to have been formulated with civil

cases in mind, and it is by no means clear that it should be

deemed to have general application to criminal cases, in which

contacts between the government and the defendant in the

absence of counsel are already to a considerable extent regu-

lated by the rule of Massiah v. United States, 377 U.S. 201

(1964). In any event, we are satisfied ttiat it should not

apply in circumstances such as those of the ins ‘ant case.

a a SS A a oe

23

Faretta v. California, 422 U.S. 806 (1975). A law-

yer for the government cannot be thought to com-

mit an ethical violation when he respects the wishes

of an individual to exercise his constitutional right

to represent himself in dealings with the gov-

ernment.” The constitutional right of a defendant to

communicate directly with the government official

responsible for his fate would be of little value if that

official were ethically bound to decline to listen. Thus,

the communications between Sykes and the prosecu-

tor, at Sykes’ initiative, were “authorized by law”

within the meaning of the exception to DR 7-104

of the ABA Code.

Moreover, Sykes insisted that the prosecutor in-

form no one of his cooperation because he feared for

his safety. The prosecutor respected this request.

He did, however, inform the court of what Sykes had

told him (Tr. 310). Further, McPherson did not

object to the fact that the prosecutor had not told

»him of his conversations with Sykes. McPherson

said: “* * * I can understand why [the prosecutor]

honored that request, as he should have, and as he

obviously did” (Tr. 307) (emphasis added). Indeed,

the trial court found (Tr. 313) that for the prosecu-

tor to have disclosed the fact of his conversations

with Sykes would have constituted a breach of his

agreement with Sykes. And, finally, the prosecutor

advised McPherson prior to trial that he had issued

17 Sykes signed a waiver of his right to the assistance of

counsel when he gave his two statements to the FBI prior

to petitioner’s trial (Pet. App. 7a).

24

writs of habeas corpus ad testificandum to Sykes as

well as two other co-defendants. McPherson was

therefore on notice that his client might be called.

Under these circumstances, there was clearly no

ethical violation. Cf. United States v. Crook, 502

F.2d 1378, 1380-13881 (3d Cir. 1974), cert. denied,

419 U.S. 1123 (1975); Moore v. Wolf, 495 F.2d 35,

37 (8th Cir. 1974); United States v. Masullo, 489

F.2d 217, 222-224 (2d Cir. 1973).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

DEBORAH WATSON

Attorneys

DECEMBER 1979

W ov. 8. covennmaxt printine orrice; 1979 307820 173