Petition — Medina-Herrera v. United States

fy

SARL ROBAK, JR. CLERR |

In THE

Supreme Court of the Anited States

Octosrer TERM, 1979

No. 79-799

RODOLFO MEDINA-HERRERA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Rodolfo Medina-Herrera.

Mid‘vest Law Printing Co., Chicago 60601, FInancial 6-3988

TABLE OF CONTENTS

PAGE

Opinion Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions and Statutes Involved ............ 3

Statement of the Case 4

Introduction to Argument 8

Reasons for Granting the Writ 10

Conclusion 28

Group Appendix A—Decision Below, U.S. v. Rodolfo

Medina-Herrera, ...... F.2d ..... (C.A. 7, 1979), Octo-

ber 11, 1979 Al

Appendix B—Order Denying Rehearing, October 26,

1979 Al13

LIST OF AUTHORITIES

Cases

Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824

(1978) 24

Cuyler v. Sullivan, 26 Cr.L. 4002 (October, 1979) ........

2, 3, 10, 11, 19, 28

Glasser v. U.S., 315 U.S. 60 (1942) 12

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

SESE ETC ee a 3, 11

Stephens v. U.S., 595 F.2d 1066 (C.A. 5, 1979) ................ 16

Sullivan v. Cuyler, 593 F.2d 512 (C.A. 3, 1979) ................ 15

ii

US. v. Alvarez, 580 F.2d 1251 (C.A. 5, 1978) 16

US. v. Bowline, 593 F.2d 944 (C.A. 10, 1979) 26

US. v. Carrigan, 543 F.2d 1053 (C.A. 2, 1976) ................ 14

US. v. Crouch, 566 F.2d 1311 (C.A. 5, 1978) 25

US. v. Dinitz, 424 U.S. 600 (1976) 23, 24

US. v. Donahue, 560 F.2d 1029 (C.A. 1, 1977) -.oncecoeecon.- 14

US. v. Gaines, 529 F.2d 1038 (C.A. 7, 1976) 13

US. v. Garcia, 517 F.2d 272 (C.A. 5, 1975) 16

US. v. Gougis, 374 F.2d 758 (C.A. 5, 1967) 12

USS. v. Kessler, 530 F.2d 1246 (C.A. 5, 1976) 24

US. v. Lavano, 420 F.2d 769 (C.A. 2, 1970) 16

US. v. Lawriw, 568 F.2d 98 (C.A. 8, 1977) 16

US. v. Leonard, 593 F.2d 951 (C.A. 10, 1979) .............. 25, 28

US. v. Levy, 577 F.2d 200 (C.A. 3, 1977) 15

US. v. Martin, 561 F.2d 135 (C.A. 8, 1977) 23

US. v. Tateo, 377 U.S. 463, 84 S.Ct. 1587 (1964) ............ 22

US. v. Truglio, 493 F.2d 574 (C.A. 4, 1974) 15

Other Authorities

Constitution of the United States:

Amendment V +

Amendment VI 4

21 U.S.C. §846 4,5

28 U.S.C. §1254(1) 2

28 U.S.C. $2106 17

A.B.A. Standards, Function of the Trial Judge, §3.4

(b) 5,8

Fed.R.Crim.Proc., Rule 44(c) 18

In Tue

Supreme Court of the United States

Ocroser Trrm, 1979

No.

RODOLFO MEDINA-HERRERA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Rodolfo Medina-Herrera, petitions for a Writ of

Certiorari to review the Judgment of the United States

Court of Appeals for the Seventh Circuit.

OPINION BELOW

The Opinion of the Court of Appeals (Group Appendix

A, infra, pp. Al-A12) is not yet reported.

oer ve

JURISDICTION

The opinion of the Court of Appeals for the Seventh

Circuit was entered on October 1, 1979. A timely

petition for rehearing was filed; same being denied on

October 26, 1979 (Appendix B, infra). This petition is

filed within thirty (30) days of that date and this Court’s

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner’s Sixth Amendment [right to

counsel] rights were violated where his retained counsel

also represented two (2) co-indictees within the same

federal conspiracy indictment and . . . where the court

made absolutely no inquiry as to the possibility of

prejudice?

1A. Whether the Sixth Amendment right to effective

assistance of counsel was violated by the mere possi-

bility, however remote, that a conflict of interest may

exist? (Cf., Cuyler v. Sullivan, cert. granted, ..... RE, sasads

rae S.C. ....., 26 CrL 4002 (1979)?

1B. Whether the Court of Appeals erred in applying

the wrong standard as relating to Sixth Amendment

conflict of interest [burden on defense counsel to

ascertain conflict as opposed to duty upon the trial

court to make inquiry where same counsel represented

three (3) co-indictees under the same conspiracy indict-

ment]?

oe

1C. Does Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.

1173 (1978), require reversal where prejudice is shown

and the trial court made absolutely no inquiry on the

subject of conflict of interest?

1D. Whether the above questions require particularly

close scrutiny where [as here] neither the petitioner nor

the co-indictees spoke English?

1K. Whether certiorari is appropriate to review the

Sixth Amendment question in this case where the court

below made absolutely no inquiry as to “conflict of

interest”, particularly in light of the lack of uniformity

in the circuits on this question and in light of certiorari

being granted in Cuyler v. Sullivan, 26 CrL 4002 (1979)?

2. Whether the Double Jeopardy Clause:of the Fifth

Amendment precluded petitioner from being convicted

on retrial . . . where a new trial had been granted based

upon the government’s closing argument during peti-

tioner’s first trial where the trial judge stated: “Al-

though I am going to deny the motion, I think you

deliberately tried to prejudice the jury by bringing this

out” (and, post-trial, the trial judge granted a new trial

solely on the ground of prosecutorial misconduct during

closing argument)?

2a. Whether, under such circumstances, was there such

deliberate prosecutorial overreaching so that the Double

Jeopardy Clause barred retrial?

siti ses

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

AMENDMENT [V.]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

AMENDMENT [VI.]

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartiai

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

In part, 21 U.S.C. § 846 reads:

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not

exceed the maximum punishment prescribed for

the offense, the commission of which was the object

of the attempt or conspiracy”.

=—=

A.B.A. Standards:

ABA, Standards Relating to the Administration of

Criminal Justice—The Function of the Trial Judge

§ 3.4(b), at 171 (1974):

“Whenever two or more defendants who have

been jointly charged, or whose cases have been

consolidated, are represented by the same attorney,

the trial judge should inquire into potential con-

flicts which may jeopardize the right of each

defendant to the fidelity of his counsel.”

ee ee ee ee

sdb

STATEMENT OF THE CASE

Petitioner and others were charged in Chicago,

Illinois, under Indictment 77 CR 900 with various drug

offenses including conspiracy, all in violation of 21

U.S.C. § 841(aX(1) and 21 U.S.C. § 846. The acts for

which petitioner and others were charged were alleged

to have occurred in Chicago, Illinois, between Septem-

ber 8, and September 22, 1977.1 Petitioner along with a

guilty pleading co-indictee, Alcantar, were represented

by the same retained counsel (O.R. 6-9). The trial court

found that retained counsel represented a third co-

indictee, Lopez. Lopez had posted bail and fled prior to

trial.?

Petitioner, while enlarged on bond, stood trial in

Chicago, before a jury. At the close of the government’s

case three (3) substantive counts were dismissed by the

Court and on February 17, 1978, the jury returned a

guilty verdict as to the conspiracy count. The co-

indictee, Alcantar, pled guilty on February 14, 1978,

and did not testify as either a defense or government

witness. Some of the crucial trial facts on the conflict of

interest would reveal that Alcantar sold a quantity of

heroin to a D.E.A. agent in Chicago, Illinois, on

1 The indictment is reproduced at O.R. 2 in the original

record.

2 Petitioner, after his second trial, retained new counsel.

Petitioner, post-trial, raised both conflict of interest and

double jeo oy Ay grounds for post-verdict relief. The trial

udge, at O.R. 64, found as a fact that petitioner’s counsel also

ane represented Alcantar and Lopez under Indictment 77 CR

$ On May 31, 1978, Alcantar was sentenced to eight (8) years

in - aed by the same judge that presided over petitioner’s

trial.

ae.

September 8, 1977. On the same afternoon the govern-

ment offered testimony that Alcantar went to peti-

tioner’s home where, according to D.E.A. surveillance,

Alcantar gave petitioner a paper bag which bag was

supposed to have contained some monies from the

earlier drug sale.‘ Additional trial testimony that could

be elevated to the “conflict-concept” would include the

frequent “source references” during trial. During the

government presentation evidence was received as to the

alleged “source” of the heroin which was sold on

September 8, and September 22, 1977. The “source

references” furthered the conflict of interest in that the

source under the government’s theory of the case was

the present petitioner albeit the proof tended to indicate

that the source was really Lopez, trial counsel’s third

client in this same case (transcript references include

Tr. 93-94, 104, 111, 167-169, 171, 218, 220-225). On May

31, 1978, the trial judge granted the petitioner a new

trial (O.R. 46). The transcript references both above, and

in the later parts of this petition reflect the trial

testimony during the second trial, same commencing

before a jury on July 10, 1978.

The second guilty verdict against petitioner was

returned on July 14, 1978. On September 22, 1978,

petitioner was sentenced to eight (8) years in custody

with a special parole term of five (5) years to follow.

(O.R., 65).

4 D.E.A. Agent Schueler saw the bag go from Alcantar to

pooner as they were bie Bag the gangway of Medina’s

ome (Tr. 141-144; 154-155). e bag was never recovered

albeit in addition to Agent Schueler, Agent Peckos was also

watching (Tr. 96-100; 105-106). Agent yg oe some hours

earlier, saw Alcantar take the bag with at least some money

in it out of the tavern where the heroin sale took place (Tr. 58-

60; 64; 67-68; 80-84). Neither the paper bag nor the monies

that 140. 14aP peed to have been in the bag were recovered.

r. -146).

~8—

INTRODUCTION TO ARGUMENT

The petitioner was first tried commencing February

14, 1978. Lopez, one co-indictee represented by peti-

tioner’s attorney had fled after posting bail (O.R. 64).

Another of petitioner’s co-indictees, Alcantar, pled guilty

on February 14 but had not been sentenced during the

course of petitioner’s first trial. During petitioner’s

February trial the government offered evidence that on

September 8, 1977, Alcantar passed a bag to the

petitioner; said bag supposedly containing a monetary

proceeds of the heroin sale. Alcantar did not testify. The

petitioner elected not to testify. THE TRIAL COURT,

AS THE GOVERNMENT HAS CONSISTENTLY

CONCEDED, MADE ABSOLUTELY NO CONFLICT

OF INTEREST INQUIRY AT ANY STAGE OF THE

PROCEEDINGS NOW BEFORE THIS COURTS As

we shall point out in the body of our argument, the duty

to inquire is a responsibility of the trial court and not of

trial counsel (compare A.B.A. Standard, The Function of

the Trial Judge, § 3.4(b) (1974) ). At the close of the first

trial, during the rebuttal portion of the government’s

closing argument, government trial counsel referred to

petitioner by name . . . something the trial court had

repeatedly kept out of the trial.6 After government

counsel’s remarks defense counsel sought a side bar

conference and the following colloquy is of record:

5 Rather, both the trial court and the peuvent paitateny

takes solace in U.S. v. Mandel, 525 F.2d 671 (C.A. 7, 1975

(cert. denied, 423 U.S. 1049 (1976) ); cf., O.R. 64. The record

reflects that Alcantar was a potential witness at petitioner’s

trial (O.R. 25).

8’ The Court of Appeals, even while affirming the conviction,

considers the “Herrera” name 2s one consistent with et A

dealing in the Chicago area. (Slp. Op. pg. 7, n.4) (App. A

infra).

a

_MR. GUINAN: Your Honor, may we have a brief

side bar?

(The following proceedings were had at the

side bar, out of the hearing of the jury:)

Mr. GUINAN: Judge, I object and move for a

mistrial. That was the most prejudicial argument I

have ever heard. The name Herrera was never

brought up from an evidentiary standpoint, and any

argument by counsel with regard to reference to

the name in the indictment and trying to repeatedly

go over the name Herrera in the closing argument

was to impress the jury that that man’s name was

Herrera.

MR. Cook: No, absolutely not.

THE CourT: I think, Mr. Cook, that you came

close to committing reversible error.

Although I am going to deny the motion, I think

you deliberately tried to prejudice the jury by

bringing this out. Counsel didn’t argue it.

But, I am going to deny the motion at this point,

and we can reconsider it at a later time during

post-trial motions.

If you can present some cases on it—I don’t

know—but I am going to deny it at this point.’

* * *&* *& *&

On May 31, 1978, petitioner was granted a new trial

only on the grounds of the government’s prejudicial

closing argument (O.R. 46).

Petitioner did not seek indictment dismissal, prior to

retrial. Neither the trial court nor the Court of Appeals

’ Tr. 10-11; February 21, 1978. Mr. Guinan is defense

counsel and Mr. Cook is the Assistant U.S. Attorney. On

mimes 17, 1978, the trial court had entered judgments of

acquittal on three (3) substantive counts (R. 33). us, the

closing argument and jury deliberation went only to the

conspiracy count in the indictment, Count I. Both Alcantar

and Lopez were named as co-conspirators in Count I (O.R. 2).

a

considered “waiver”. The trial court denied the post-

verdict relief on both double jeopardy and conflict of

interest grounds . . . on the merits (O.R. 64). Similarly,

the Court of Appeals treated each constitutional question

on the merits. The petitioner considers the trial court to

have been in error in refusing to vacate his conviction on

either of the two (2) constitutional arguments offered.

Similarly your petitioner urges that this Court find that

the Court of Appeals erred in declining relief.

REASONS FOR GRANTING THE WRIT

1. WHETHER PETITIONER’S SIXTH AMENDMENT

[RIGHT TO COUNSEL] RIGHTS WERE VIOLATED

WHERE HIS RETAINED COUNSEL ALSO REPRE-

SENTED TWO (2) CO-INDICTEES WITHIN THE SAME

FEDERAL CONSPIRACY INDICTMENT AND ...

WHERE THE COURT MADE ABSOLUTELY NO IN-

QUIRY AS TO THE POSSIBILITY OF PREJUDICE?

1A. WHETHER THE SIXTH AMENDMENT RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL WAS

VIOLATED BY THE MERE POSSIBILITY, HOWEVER

REMOTE, THAT A CONFLICT OF INTEREST MAY

EXIST? (CF., CUYLER V. SULLIVAN, CERT. GRANTED,

onsen US. ....., .... S.C. ....., 26 CrL 4002 (1979)?

1B. WHETHER THE COURT OF APPEALS ERRED

IN APPLYING THE WRONG STANDARD AS RE-

LATING TO SIXTH AMENDMENT CONFLICT OF

INTEREST [BURDEN ON DEFENSE COUNSEL TO

ASCERTAIN CONFLICT AS OPPOSED TO DUTY

UPON THE TRIAL COURT TO MAKE INQUIRY

WHERE SAME COUNSEL REPRESENTED THREE (3)

CO-INDICTEES UNDER THE SAME CONSPIRACY

INDICTMENT]?

|

1C. DOES HOLLOWAY V. ARKANSAS, 435 U.S. 475, 98

S.CT. 1173 (1978), REQUIRE REVERSAL WHERE

PREJUDICE IS SHOWN AND THE TRIAL COURT

MADE ABSOLUTELY NO INQUIRY ON THE SUB-

JECT OF CONFLICT OF INTEREST?

1D. WHETHER THE ABOVE QUESTIONS REQUIRE

PARTICULARLY CLOSE SCRUTINY WHERE [AS

HERE] NEITHER THE PETITIONER NOR THE CO-

INDICTEES SPOKE ENGLISH?

1E. WHETHER CERTIORARI IS APPROPRIATE TO

REVIEW THE SIXTH AMENDMENT QUESTION IN

THIS CASE WHERE THE COURT BELOW MADE

ABSOLUTELY NO INQUIRY AS TO “CONFLICT OF

INTEREST”, PARTICULARLY IN LIGHT OF THE

LACK OF UNIFORMITY IN THE CIRCUITS ON THIS

QUESTION AND IN LIGHT OF CERTIORARI BEING

ie IN CUYLER V. SULLIVAN, 26 CRL 4002

79)?

Petitioner consolidates each question into a single, but

divided, argument.

(A)

HOLLOWAY v. ARKANSAS, 435 U.S. 475

In Holloway this Court offered two (2) issues . . . but

left them without resolution. In Holloway the Court

stated:

“First, appellate courts have differed on how

strong a showing of conflict must be made or how

certain the reviewing court must be that the asserted

conflict existed, before it will conclude that the

defendants were deprived of their right to the

effective assistance of counsel. . . . Second, courts

have differed with respect to the scope and nature

of the affirmative duty of the trial judge to assure

that criminal defendants are not deprived of their

right to the effective assistance of counsel by joint

representation of conflicting interests. .. .

a

_ =

We need not resolve these two issues in this case,

however.” (Cits. omitted) (98 S.Ct. at 1178).

Under the facts of this case we urge certiorari be

granted to resolve both unanswered questions [issues] in

Holloway. Our showing of conflict is substantial. The

Glasser doctrine does not require the court to indulge in

prejudice-calculations. In Glasser v. U.S., 315 U.S. 60

(1942), the Court, stated:

“The right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge

in nice calculations as to the amount of prejudice

arising from its denial”, 315 U.S. at 75-76.

In Holloway the Court repeated part of the Glasser

concept as follows:

“Upon the trial judge rests the duty of seeing that

the trial is conducted with solicitude for the essen-

tial rights of the accused.... The trial court

should protect the right of an accused to have the

assistance of counsel. (98 S.Ct. at 1179)

Inexplicably the court below shifted the responsibility

of conflict vel non from the trial judge to the litigant

(Slp. Op. pg. 11; App. A11, infra). The court below, while

affirming the conviction, found that under Seventh Cir-

cult precedent no inquiry by the trial judge, v18s-a-v18,

conflict of interest, either is or was, mandated. Of

course, the court was wrong. In U.S. v. Gougis, 374 F.2d

758 (C.A. 7, 1967), the Court reversed, in part, a federal

drug conviction solely on Sixth Amendment grounds

where the trial court made no inquiry on conflict of in-

terest ... even though a single appointed counsel

represented two (2) defendants in that case. In Gougis

the Court of Appeals not only reversed but, citing

Glasser, stated the following:

Moreover, there is no need on the part of a defen-

dant to show that he has been prejudiced by the

multiple representation. Glasser v. United States,

rt at pages 75-76, 62 S.Ct. 457. (374 F.2d at

=

In U.S. v. Gaines, 529 F.2d 1088 (C.A. 7, 1976), the

Court granted Gaines a new trial, and reviewed the con-

cept of conflict of interest as follows:

“There are, however, occasions when an injustice of

constitutional magnitude occurs despite what

appear at the time to be the best efforts of ex-

perienced and competent judicial and prosecutorial

personnel. We conclude that Gaines cannot be said

to have made a knowing waiver of his sixth amend-

ment right to the effective assistance of counsel, in

the absence of a specific warning of the serious

danger to his defense posed by his attorney’s conflict

of interest” (529 F.2d at 1045).

The Seventh Circuit Rule [according to the instant

decision] is:

According to Medina, the trial court had an affir-

mative duty to inquire on the record about the

hazards of joint representation. This argument is

without merit. This Circuit has consistently declin-

ed to fashion a per se rule under the Constitution or

its supervisory powers creating an affirmative duty

in the trial court to inquire into every incident of

joint representation to determine whether it in-

volves a conflict of interest. United States v.

Mavrick, No. 78-2226 (7th Cir. 1979); United States

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

dented, 423 U.S. 1049 (1976).7 We have delineated

the trial court’s duty in this way:

[The court must] be alert for indicia of conflict

at all stages of the proceeding, including dur-

ing trial. . . . When the possibility of a conflict

appears during trial, the court must investigate

the relevant facts, advise the defendant, and

determine whether continued representation,

absent waiver would violate the sixth

amendment.®

8 Slp. Op. 10-11; App. A, infra, pp. A10-11. Petitioner, in the

Court below, was Medina.

=

Thus, the Court of Appeals declined to either under-

stand their own circuit rule . . . but in any event, the

Court of Appeals in this case declined to follow

Holloway.

(B)

THE CIRCUIT POSITIONS

In U.S. v. Donahue, 560 F.2d 1039 (C.A. 1, 1977), that

Court reversed a federal drug conviction where both

trial defendants were represented by separate members

of the same law firm. The Court, while reversing,

pointed out that absent an inquiry by the trial court

reversal is the order based upon nothing more than a

conflict of interest; same being in violation of the Sixth

Amendment (id. at 1042-44).

In U.S. v. Carrigan, 543 F.2d 1053 (C.A. 2, 1976) the

Court held that a new trial is required where co-

defendants represented by the same retained attorney

were never advised by the trial court as to a potential

conflict of interest and prejudice appeared in that one

defendant gave testimony which conflicted with the

prior statement of the other defendant. In Carrigan both

defendants were tried to a jury. One defendant made a

pretrial statement to a FBI agent that was contradicted

by the testimony of the other co-defendant at trial. The

first co-defendant never testified at trial, 543 F.2d at

1055.

The Carrigan Court found that the conflict between

the pretrial statement of one defendant and the

testimony of the other defendant, was sufficient to

trigger an inquiry by the trial court as to the dangers of

this multiple representation. The Carrigan Court held:

“The defendant should be fully advised by the trial

court of the facts underlying the potential conflict

a

and be given the opportunity to express his views”,

543 F.2d at 1055.

In Sullivan v. Cuyler, 593 F.2d 512 (C.A. 8, 1979), the

Court granted habeas relief to a state inmate following a

murder conviction. The Court of Appeals found that the

conflict of interest as between retained trial counsel and

two (2) separate defendants was sufficient to require a

new trial. The Sullivan Court quoted this Court’s

Holloway decision with approval (598 F.2d at 520).

While reversing the Court stated:

Our examination of the record convinces us that

there is in this case at least a possibility of pre-

judice or conflict of interest and that independent

counsel might well have chosen a different trial

strategy. Therefore, prior decisions of this court

compel reversal. (593 F.2d at 521).9

It is abundantly clear that “dual-representation”

carries with it a need for trial judge inquiry in the

First, Second and Third Circuits. The Fourth Circuit is

none the different. In U.S. v. Truglio, 493 F.2d 574 (C.A.

4, 1974), the Court announced the “inquiry” directive in

that Circuit. In Truglio while reversing a federal drug

conviction the Court stated:

Here the court knew that the plea bargain had

been negotiated by one attorney who represented all

five of the defendants, and while representation of

codefendants by the same attorney is not in itself

tantamount to the denial of effective assistance of

counsel, “(t]he very fact that two or more co-

defendants are represented by the same counsel

should alert a trial judge and cause him to inquire

whether the defenses to be presented in any way con-

* Sullivan v. Cuyler is now before this Court; Cuyler v.

Sullivan, ..... USS. ....., 266 CrL 4002 (1979). The Third Circuit

inquiry views are considered in U.S. v. Levy, 577 F.2d 200

(C.A. 3, 1977).

Se

flict.” United States v. Lovano, 420 F.2d 769, 772 (2

Cir. 1970). (493 F.2d at 579).1°

The Court of Appeals for the Fifth Circuit has con-

tinually announced their disapproval of “dual-

representation” both with and without inquiry from the

Court. In Stephens v. U.S., 595 F.2d 1066 (C.A. 5, 1979),

the Court found that dual representation was itself such

a conflict of interest that no prejudice need be demon-

strated to gain reversal . . . even on § 2255. In Stephens a

single attorney represented a guilty pleading co-indictee

and Stephens. The guilty pleading co-indictee eventually

testified as a government witness. This, the Court, could

not condone and reversal was the result. In U.S. »v.

Alvarez, 580 F.2d 1251 (C.A. 5, 1978), the Court again

reversed a federal drug conviction finding that, in com-

bination, insufficient inquiry and “dual representation”

combined to thwart the Sixth Amendment. A new trial

resulted. In both Stephens and Alvarez, this Court’s deci-

sion in Holloway was cited with approval, e.g., Alvarez,

580 F.2d at 1257; Stephens, 595 F.2d at 1067. In com-

bination the Fifth Circuit precedents compel both an in-

quiry and a finding by the trial judge of no conflict of

interest (cf., U.S. v. Garcia, 517 F.2d 272 (C.A. 5, 1975)

(waiver of conflict approved where trial court inquires

in a fashion akin to Rule 11)).

In the Eighth Circuit a meaningful inquiry is a

necessity in “dual representation” cases, U.S. v. Lawriw,

568 F.2d 98 (C.A. 8, 1977) (affirming conviction in a

'0 In Truglio the Court. of Appeals for the Fourth Circuit

relied on a Second Circuit decision, U.S. v. Lavano, 420 F.2d

769 (C.A. ‘2, 1970). The need for inquiry in Lavano was

overlooked by the court below in this case albeit THE

GOVERNMENT RELIED ON LAVANO IN THEIR SEV-

ENTH CIRCUIT BRIEF (Gov. Brf., 7th Cir., page 12-13).

‘| In the case at bar the a had _ compelled

Herrera’s guilty a co-indictee to be available as a

witness (O.R. 25). Even this did not gain petitioner an inquiry

from either the Court or the government!

federal drug case where inquiry was made by trial

judge in dual representation case). In Lawriw the Court,

while approving of a mandatory “inquiry” standard sur-

veyed the several Circuits. The sole Circuit with no

necessary conflict seemed to be the Seventh Circuit (568

F.2d at 102).

As may be abundantly clear ... the fact that

petitioner was being tried within the jurisdiction of the

Court of Appeals for the Seventh Circuit ... in-

escapably led to the affirmation of conviction where:

(a) A single defense counsel represented three

(3) separate co-indictees within the same indictment

and before the same trial court; and

(b) No inquiry of any kind was made by the trial

judge to ascertain the status of any conflict of in-

terest; and

(c) One of the three co-indictees . . . might have

testified as either a defense or government witness

. . In which case a pure Sixth Amendment rever-

_sal would have resulted; and

(d) Where neither Alcantar nor the petitioner at

bar spoke the English language [the government

will concede before this Court that in each and

every proceeding in this case a Court-appointed in-

terpreter was necessary so that the proceedings

could be understood by the defendants].

If Glasser means that prejudice is not to be nicely

calculated . . . then the petitioner at bar merits both the

granting of certiorari and a resultant new trial. The un-

resolved questions in Holloway as to both how strong a

showing of conflict and the need for “affirmative in-

quiry” are both present in the case at bar. Under this

Court’s supervisory power [28 U.S.C. § 2106] the un-

resolved Holloway issues can be answered.

—:

(C)

CERTIORARI CONSIDERATIONS

Petitioner has attempted to display, with accuracy and

fairness, a situation that may be shocking to this Court.

This is one of the few cases where a single attorney has

represented three (3) co-indictees within the parameters

of the same indictment before the same court. No in-

quiry was made whatsoever by the trial court and this

lack of inquiry is fostered by the mistaken view in the

Seventh Circuit that the responsibility falls to the at-

torney, not the court. We view Holloway to expressly

stand to the contrary. In addition the Court of Appeals

attempted to calculate the prejudice to petitioner.

Glasser precludes that sort of reasoning.

The Seventh Circuit commends the responsibility of

“conflict” to the attorney [Slp. Op., p. 11, App. All, in-

fra]. The several Circuits hold expressly to the contrary

[the First, Second, Third, Fourth, Fifth and Eighth Cir-

cuits properly put the responsibility on the trial court as

does the approved A.B.A. Standard]. The instant deci-

sion looms as a realistic danger to the administration of

criminal justice in criminal courts. The fact that in 1979

Rule 44(c)!2 came into being does not at all reduce the

posture of this case. The new rule making uniform the

2 As of August 1, 1979, Rule 44(c), Fed.R.Crim.Proc., is

effective. That Rule, in part, reads:

(c) Joint representation. Whenever two or more defend-

ants have been tg charged pursuant to Rule &b) or

have been joined for trial pursuant to Rule 13, and are

represented by the same retained or assigned counsel or

by retained or assigned counsel who are associated in the

practice of law, the court shall promptly inquire with

respect to such sont representation and shall personally

advise each defendant of his right to the effective

assistance of counsel, including separate representation.

—— = are that there is good cause to believe no

conflict of ...

a

trial court’s responsibility only furthers the need for

relief in this case.

The granting of certiorari in Cuyler v. Sullivan, 26

CrL 4002 (October, 1979), brings with it a question

which is clear in this petition. One of the questions on

certiorari is:

(1) Is Sixth Amendment right to effective

assistance of counsel violated by mere possibility,

however remote, that conflict of interest may exist?

A similar question is found within the parameters of

the petition at bar. Did the mere fact that neither

Alcantar nor Lopez [both of the co-indictees represented

by the same attorney] testify in petitioner’s trial change

the “potential” for prejudice? We believe not. Under all

the circumstances of this case we respectfully urge that

this petition be joined with the pending petition in

Cuyler v. Sullivan. We urge the grant of certiorari and a

reversal of the conviction below.

QUESTION 2

(B)

2. WHETHER THE DOUBLE JEOPARDY CLAUSE

OF THE FIFTH AMENDMENT PRECLUDED

PETITIONER FROM BEING CONVICTED ON

RETRIAL ... WHERE A NEW TRIAL HAD BEEN

GRANTED BASED UPON THE GOVERNMENT’S

CLOSING ARGUMENT DURING PETITIONER’S

FIRST TRIAL WHERE THE TRIAL JUDGE STATED:

“ALTHOUGH I AM GOING TO DENY THE MOTION, I

THINK YOU DELIBERATELY TRIED TO PRE-

JUDICE THE JURY BY BRINGING THIS OUT” (AND,

POST-TRIAL, THE TRIAL JUDGE GRANTED A NEW

TRIAL SOLELY ON THE GROUND OF

PROSECUTORIAL MISCONDUCT DURING CLOSING

ARGUMENT)?

2a. WHETHER, UNDER SUCH CIRCUMSTANCES,

WAS THERE SUCH DELIBERATE PROSECUTORIAL

OVERREACHING SO THAT THE DOUBLE JEOPAR-

DY CLAUSE BARRED RETRIAL?

During the rebuttal of the government’s closing argu-

ment reference was made to the “Herrera” name. Well

known to the trial judge was the simple fact that the

name “Herrera” was [and is] synonymous with “major

heroin trafficking” in the Chicago area. The portion of

the rebuttal closing argument has earlier been

reproduced (Tr. 295, first trial; Supp. Tr. 10-11). An im-

mediate side bar, requested by defense counsel, provok-

ed the following comments:

MR. GUINAN: Your Honor, may we have a brief

side bar?

(The following proceedings were had at the

side bar, out of the hearing of the jury:)

MR. GUINAN: Judge, I object and move for a

mistrial. That was the most prejudicial argument I

have ever heard. The name Herrera was never

brought up from an evidentiary standpoint, and any

argument by counsel with regard to reference to

the name in the indictment and trying to repeatedly

—

go over the name Herrera in the closing argument

was to impress the jury that that man’s name was

Herrera.

Mr. Cook: No, absolutely not.

THE Court: I think, Mr. Cook, that you came

close to committing reversible error.

Although I am going to deny the motion, I think

you deliberately tried to prejudice the jury by bring-

ing this out. Counsel didn’t argue it.

But, I am going to deny the motion at this point,

and we can reconsider it at a later time during

post-trial motions.

If you can present some cases on it—I don’t

know—but I am going to deny it at this point.

We ask the Court to consider the “totality of the cir-

cumstances”. During trial the three (3) substantive

counts charging the petitioner with distributing heroin

on September 8 and 22, 1977, were dismissed (O.R. 33).

Thus the only surviving count before the jury was the

conspiracy count (Count I of the indictment, reproduced

at O.R. 2). The jury returned a guilty verdict but on

May 31, 1978, the Court granted petitioner a new trial.

The Court’s comments [over three (3) months later] in-

cluded the following:

With respect to the other question as concerning

the prejudicial effect of the argument of counsel, I

take a different position. It seems to me that after

reading the cases and also the transcript in this

case—which I did very carefully—it would be futile

to take this case to the appellate court because I

just think it would result in a reversal, and

therefore I am going to grant a new trial to be held

immediately—as quickly as possible—concerning

this defendant.'*

13 The above is directly reproduced from the transcript of

May 31, 1978. The record below contains the supplemental

transcript re _ the occurrences of May 31, 1978. The

government DID OT APPEAL THE TRIAL COURT’S

(Footnote continued on following page)

-_

Petitioner was re-convicted of the conspiracy count on

July 14, 1978. Through new counsel petitioner

presented, inter alia, written constitutional arguments

seeking post-verdict relief on both double jeopardy and

conflict of interest grounds. The trial court declined

post-verdict relief on September 14, 1978 (O.R. 64). The

trial court ruled that the double jeopardy clause did not

preclude retrial. The trial court found that government

trial counsel’s conduct was not either grossly negligent

or intentional [bad faith] .. . O.R. 64 at 3-4. The sub-

stance of our claim is that both the trial court and the

court of appeals were in error. We articulate the proper

standards.

In U.S. v. Tateo, 377 U.S. 468, 84 S.Ct. 1587 (1964) the

Court reversed an order dismissing an indictment on

double jeopardy grounds. After reviewing certain of the

trial facts the majority opinion offered the following

Guidance:

“,.. If there were any intimation in a case that

prosecutorial [or judicial] impropriety justifying a

mistrial resulted from a fear that the jury was like-

ly to acquit the accused, different considerations

would, of course, obtain” (84 S.Ct. at 1590, n.3).

We add, that it is significant that the Court of Appeals

while declining to grant relief found no difference as

between a “mistrial” and the grant of a new trial, post-

verdict, where prosecutorial misconduct and double

13 continued

GRANT OF A NEW TRIAL. The first three (3) paragraphs

of the Court’s oral comments on May 31, 1978, included the

denial of the post-verdict motion for judgment of acquittal

based upon the alleged insufficiency of evidence regarding the

conspiracy evidence against the petitioner.

It is interesting to note that on the same date the same

attorney still representing co-indictee, Alcantar, appeared

with Alcantar for sentencing. Alcantar, on May 31, 1978,

received an eight (8) year prison sentence based on his earlier

guilty plea to the same indictment, 77 CR 900.

=~ &

jeopardy were the subject of review (Slp. Op. pg. 9, n.5;

App. A9, infra). An appropriate analysis of

prosecutorial misconduct which bars retrial is found in

U.S. v. Martin, 561 F.2d 135 (C.A. 8, 1977). In Martin

the trial court originally granted a mistrial (on Martin’s

request) where, during trial, the prosecutor clearly

offered offensive and inadmissible testimony. On retrial

Martin was convicted. The Court reversed finding that

the Double Jeopardy Clause barred retrial. In pertinent

part, the Martin opinion offers guidance to our position

as follows:

“The Supreme Court has recognized, however,

limited circumstances where a defendant’s mistrial

request does not remove the Double Jeopardy bar.

For example, the Double Jeopardy Clause protects

a defendant against governmental actions intended

to provoke mistrial requests. United States v.

Diniz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars

retrials where the underlying error is “motivated

by bad faith or undertaken to harass or prejudice”

the defendant. United States v. Dinitz, supra, 424

U.S. at 611, 96 S.Ct. at 1082. Thus, where

“prosecutorial overreaching” is present, United

States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547,

the interests protected by the Double Jeopardy

Clause outweigh society’s interest in conducting a

second trial ending in acquittal or conviction. [Cits.

Omtd.]

Our inquiry, therefore, must center upon the

prosecutor’s conduct prior to the mistrial in order to

determine if there was prosecutorial overreaching.

Although mere negligence by the prosecutor is not

the type of overreaching contemplated by Dinitz, if

the prosecutorial error is motivated by bad faith or

undertaken to harass or prejudice the defendant,

then prosecutorial overreaching will be found. [Cits.

Omtd.]” (561 F.2d at 139).

a ae

This Court, in a later decision, analyzed the double

jeopardy clause and government misconduct. In Arizona

v. Washington, 434 U.S. 497, 98 S.Ct. 824 (1978), the

Court held that the double jeopardy clause did not bar

retrial after a mistrial was declared based upon miscon-

duct by defense counsel. The decision includes:

“As this Court noted in United States v. Dinitz, 424

U.S. 600, 611, 96 S.Ct. 1975, 1081, 47 L.Ed. 2d 267:

“The Double Jeopardy Clause does protect a

defendant against governmental actions intend-

ed to provoke mistrial requests and thereby to

subject defendants to the substantial burdens

imposed by multiple prosecutions. Jt bars

retrials where “bad-faith conduct by judge or

prosecutor ... threatens the {h]arassment of

an accused by successive prosecutions or

declaration of a mistrial so as to afford the

prosecution a more favorable opportunity to

convict’ the defendant.”

Thus, the strictest scrutiny is appropriate when the

basis for the mistrial is the unavailability of critical

prosecution evidence, or when there is reason to

believe that the prosecutor is using the superior

resources of the State to harass or to achieve a tac-

tical advantage over the accused.” (98 S.Ct. at 831-

32; ft.nts. omitted; emphasis ours)

In U.S. v. Kessler, 580 F.2d 1246 (C.A. 5, 1976), the

Court dismissed the government’s appeal after a finding

by the trial judge that prosecutorial misconduct barred

retrial. The Kessler analysis was adopted by the Court of

Appeals for the Fifth Circuit in a later case, as follows:

“Thus, a stringent analysis of the prosecutor’s con-

duct, considering the totality of the circumstances

prior to the mistrial, to determine if there was

“prosecutorial overreaching” is our inquiry. Jf

“prosecutorial overreaching” is found, a second trial

wilt os

is barred by the Double Jeopardy Clause

noturthstanding the fact that the defendants requested

the mistrial. }

To find “prosecutorial overreaching”, the govern-

ment must have, through “gross negligence or inten-

tional misconduct”, caused aggravated cir-

cumstances to develop which “seriously prejudice[d]

a defendant” causing him to “reasonably conclude

that a continuation of the tainted proceeding would

result in a conviction” [cits. omtd.]’ (566 F.2d at

1317).4

Additional insight into the lack of security in this

phase of double jeopardy law is found in U.S. v.

Leonard, 593 F.2d 951 (C.A. 10, 1979). In Leonard the

Court reviewed a case where a pretrial motion to dis-

miss on double jeopardy grounds was denied in the trial

court. The question raised was the bad faith vel non of

government counsel. In Leonard, the Court analyzed the

proposition of law as follows:

“The Supreme Court does not appear to have con-

sidered the question which is before us, but from

what has been handed down it is to be gleaned that

the conduct of the United States Attorney, which. is

necessary to bar a retrial, must have been pur-

poseful or intentional or must have been reckless

conduct which rises to the level of purposefulness

and must have sought to provoke a mistrial motion

from defendants.

4 As reproduced in U.S. v. Crouch, 566 F.2d 1311 at 1317

(C.A. 5, 1978). In Crouch the Court affirmed the denial of pre-

trial double jeopardy relief where the sole issue related to a

mistrial prompted by government misconduct. In Crouch

Circuit Judge Goldberg offered a stron ee See

— this Court’s decision in U.S. v. Dinitz, 424 U.S. 600

(1976), as the touchstone for his analysis. Judge Goldber

would have found that the government conduct whic

prompted the mistrial declaration was of sufficient gp

o hg a double jeopardy clause barred retrial (566 F.2d at

iil

The Supreme Court has ruied that retrial is barred

where the conduct was undertaken to harass or pre-

judice the defendant (and cause a mistrial at defen-

dants’ behest). Lee v. United States, 432 U.S. 23, 97

S.Ct. 2141, 53 L.Ed.2d 80 (1977), and United States

v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d

267 (1976). It is to be inferred from the authorities,

in addition, that retrial is likely to be barred where

the prosecutor’s conduct has resulted in a belief by

him that acquittal is likely in any event. United

States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27

L.Ed.2d 543 (1971). See also United States v,. Tateo,

im ae 463, 84 S.Ct. 1587, 12 L.Ed2d 448

1964)”.15

Our inquiry is thus reduced to a realistically simple

proposition. Is THE DOUBLE JEOPARDY CLAUSE

so frail that it may not be invoked to preclude retrial

where . . . deliberate government conduct invaded the

original trial [and jury]? In this case we have the trial

judge, immediately following the prosecutor’s comments,

reflecting on deliberate prejudice. Then, some three (3)

months later, the same trial judge grants a new trial

based only on government counsel’s comments during

ther rebuttal-closing argument. Under these cir-

cumstances does not the double jeopardy clause bar

retrial? We urge that this Court consider the analysis in

Arizona v. Washington:

“As this Court noted in United States v. Dinitz, 424

U.S. 600, 611, 96 S.Ct. 1975, 1081, 47 L.Ed.2d 267:

“The Double Jeopardy Clause does protect a

defendant against governmental actions intend-

ed to provoke mistrial requests and thereby to

In Leonard at 954, the Court reviews whether or not “bad

faith” was involved insofar as government counsel was

concerned. Compare the companion case U.S. v. Bowline, 593

F.2d 944 (C.A. 10, 1979) (Holloway, Cir. J., dissenting from

the denial of double jeopardy relief.)

subject defendants to the substantial burdens

imposed by multiple prosecutions. Jt bars

retrials where “bad-faith conduct by judge or

prosecutor ‘. . . threatens the ‘hJarassment of

an accused by successive prosecutions or

declaration of a mistrial so as to afford the

prosecution a more favorable opportunity to

convict’ the defendant.”

Thus, the strictest scrutiny is appropriate when the

basis for the mistrial is the unavailability of critical

prosecution evidence, or when there is reason to

believe that the prosecutor is using the superior

resources of the State to harass or to achieve a tac-

tical advantage over the accused.” (98 S.Ct. at 831-

32; ft.nts. omitted; emphasis ours)

ee

CONCLUSION

In light of the exceptional importance of the questions

presented it is respectfully urged that this petition for

certiorari be granted. Consolidated Question 1 falls, in

part, within the earlier granting of certiorari by the

Court in Cuyler v. Sullivan, ..... if Someone: se

CrL 4002 (October, 1979). As to the double jeopardy

question herein presented the Court of Appeals for the

10th Circuit in U.S. v. Leonard, 593 F.2d 951 (C.A. 10,

1979), found that this Court has not directly passed on

the particular question of what degree of government

misconduct precludes retrial under the DOUBLE

JEOPARDY CLAUSE. It is urged that the instant peti-

tion provides an appropriate vehicle for the resolution of

the double jeopardy clause versus prosecutorial miscon-

duct.

Respectfully submitted,

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Rodolfo Medina-Herrera.

APPENDICES

GROUP APPENDIX A—Decision below, U.S. v. Rodolfo

Medina-Herrera, ..... ~ Fee (C.A.

7, 1979), October 11, 1979.

APPENDIX B—Order denying rehearing, October 26, 1979.

Al

In the

United States Court of Appeals

For the Seventh Circuit

No. 78-2245

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

RODOLFO MEDINA-HERRERA,

| Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77 CR 900-1—Stanley J. Roszkowski, Judge.

ARGUED JUNE 12, 1979—DECIDED OCTOBER 1, 1979

Before PELL, SPRECHER, and WOOD, Circuit Judges.

PELL, Circuit Judge. The defendant, Rodolfo Medina-

Herrera, appeals from his conviction for conspiring to

distribute heroin in violation of 21 U.S.C. § 846. On

appeal the defendant raises issues on evidentiary

rulings. He also argues that his retrial after a finding of

ae i hag error violated the double jeopardy clause.

e finally argues that his attorney had a conflict of

interest, depriving him of due process and his right to

effective assistance of counsel.

The evidence at trial showed that the defendant

conspired with Candelario Aleantar, Jose and Jorge

Vasquez, and Jose Lopez te distribute over twelve

pounds of heroin to Richard Sanchez, an agent of the

A2

Drug Enforcement Administration (DEA), and Angelo

Rodriguez, a Government informant. On September 8,

1977, Rodriguez and Sanchez, —s $13,000 in a

yellow Montgomery Ward bag, met Jose and Jorge

Vasquez at a tavern where a sale of heroin was

arranged. Alcantar, Vasquez and the informant Rod-

riguez drove to 2832 S. Trumbull in Chicago, the

residence of the conspirator Lopez, where Alcantar

removed a brown bag of heroin from the trunk of a

white Ford. They returned to the tavern, and the sale

was completed. Alcantar left the bar with the Mont-

gomery Ward bag after giving some of the money to

Jose Vasquez. Alcantar drove to 2831 S. Homan, the

defendant’s residence, where the defendant was waiting

in the front yard. Alcantar handed the et ae. ron

bong bag to the defendant, and they both walked inside

the house.

On aay Sere aang 22, 1977, two drug sales took place in a

similar fashion. At 10:15 a.m. on that date, Government

agents observed the defendant leaving the Lopez resi-

dence on Trumbull. He Eg a small brown paper bag in

the trunk of his car and drove away. About 12:20 p.m.,

Lopez went to the defendant’s residence on Homan.

Aleantar was seen there a few minutes later. At 1:40

p.m., the defendant and Lopez came out of the

defendant’s house. Alcantar and Lopez returned to the

Lopez house on Trumbull.

In the meantime agent Sanchez and the informant

Rodriguez negotiated another purchase. At 11:45 a.m.,

Sanchez and Rodriguez went to the same tavern to

which they had gone for the September 8 sale.

Rodriguez met with Jose Vasquez. At 12:30 p.m.,

Rodriguez and Sanchez went to a parking lot across

from the tavern. Jose and Jorge Vasquez soon arrived.

Jose made a call from a pay phone, and then explained

that his source of supply required the money in advance.

Sanchez rejected these terms, and Jose promised to

return later. They met again in the same parking lot at

about 1:15 =. Jose made another call from the pay

phone. He then handed Sanchez and Rodriguez a small

sample of heroin. Sanchez then showed Jose the $26,000

they were carrying in a red, white, and black bag.

A3

The agent and the informant followed Jose and Jorge

in their car to the corner of 30th and Homan. After they

arrived, Jorge Vasquez headed up 30th Street and then

north on Trumbull where he met and talked with

Alcantar and Lopez. Aleantar and Vasquez then walked

back to 30th and Trumbull, where Rodriguez and

Sanchez were waiting. Alcantar negotiated briefly with

Sanchez, then walked back to see Lopez on Trumbull.

The two returned to Lopez’ house. Alcantar then

emerged from Lopez’ house, carrying a brown paper

bag. Alcantar and Lopez got into a white Ford and

drove toward 30th and Trumbull where the agent and

informant were still waiting. Sanchez and Rodriguez

were instructed to follow Alcantar in their car to the

corner of 28th and Homan. They stopped about 100 feet

south of the intersection. There, Alcantar delivered

about a kilogram of heroin, and Jose Vasquez received

the $26,000 in the red, white, and black bag. Sanchez

and Rodriguez then left. It was approximately 2:00 p.m.

At 3:30 p.m. Rodriguez placed a call to the same

tavern and started the second sale of September 22. The

agent and the informant left the DEA office with

$117,000. At 3:45 p.m., the defendant left his house by

car, and arrived shortly after at the Lopez house. At the

same time, Alcantar arrived on foot. Both Alcantar and

the defendant entered the Lopez residence. At 4:00 the

defendant left and returned home. About the same time,

Sanchez and Rodriguez arrived near the corner of 28th

and Homan and parked their car. A few minutes later,

both Jose and Jorge Vasquez were seen at the Lopez

residence. Alcantar met Jose and the two went inside.

Jorge drove to where the agent and the informant were

parked, spoke to them, and returned to Lopez’ house. He

spoke briefly to Jose and then drove back to tell the

agent and informant to get their money ready. At 4:25

Jorge returned to the Lopez residence and Jose emerged

carrying a white plastic bag. He gave the bag to Jorge.

Jorge then returned to 28th and Homan and passed

about four kilograms of heroin through the car window

to Sanchez and Rodriguez. Jorge was immediately

arrested. A Government agent simultaneously entered

the Lopez residence and arrested Jose Vasquez, Lopez,

A4

and Alcantar. ‘The defendant was arrested at his

residence. The second floor windows there had a view of

the street and were open.

Medina, Lopez, Alcantar, and the Vasquez brothers

were charg in the same indictment. One count

charged all of them with conspiracy to deliver heroin in

September 1977. The defendant was also charged in

three separate counts with the substantive offense of

delivering heroin. The defendant was tried alone on

these four charges in February 1978. At this trial, the

judge granted the defendant’s motion to acquit on the

three substantive counts, but sent the conspiracy charge

to the jury. The defendant was found guilty on this

charge. The trial court, however, granted a new trial on

the defendant’s motion because of prosecutorial error

during final arguments.

_ The defendant was retried in July before the same

judge on the conspiracy charge only. The jury returned

a guilty verdict.

We turn first to the defendant’s arguments relating to

the proof of his involvement in the conspiracy. The

defendant urges first that the trial judge erred in not

making an express finding, preliminary to admitting co-

conspirator hearsay, that the conspiracy and the defend-

ant’s membership in the conspiracy was proved by a

preponderance of the evidence. This requirement was

established by our decision in United States v. Santiago,

582 F.2d 1128 (7th Cir. 1978). It is well-settled, however,

that in a trial that occurred, like this one, prior to our

Santiago decision, failure to adhere to Santiago pro-

cedures is not reversible error. E.g., United States v.

Dalzotto, Nos. 78-2210, 78-2211, Slip Op. at 3 n.1 (7th

Cir. 1979); United States v. Allen, 596 F.2d 227, 230 (7th

Cir. 1979); United States v. McPartlin, 595 F.2d 1321,

1357 (7th Cir. 1979). It is sufficient here that the trial

judge, who was already familiar with the Government’s

evidence, having presided over the defendant’s previous

trial, expressed his awareness of the n for a

hgerewer showing of the defendant’s involvement and

is intention to exclude the evidence if the Government

A5

failed to satisfy its burden.? See United States v. Allen,

supra, 596 F.2d at 230; United States v. McPartlin,

supra, 595 F.2d at 1358.

The defendant’s next objection concerns the survival of

the so-called “slight evidence” rule after the Santiago

decision. At trial, the Government sought admission into

evidence of videotapes of the defendant’s actions on

September 22, 1977, by investigating agents. The trial

court admitted the videotapes. The defendant apparently

argues on appeal that the Santiago preponderance

standard precludes admission of the videotapes when the

other pt sain is only “slight.”

1 The court told the jury when admitting the testimony:

Before you answer that question I would like to instruct

the ladies and gentlemen of the jury that I am going to

allow this testimony at this point—I am making certain—

an objection has been made to this testimony. I overruled

the chintine subject to the government tying up these

conversations with the defendant. At this time there is no

evidence of that, and unless the government does tie it up

we will strike the evidence and I would so instruct you.

But I am going to allow the evidence for that purpose at

this time, with the understanding that the government

will tie it up later. If they do not I will then strike the

evidence in that event.

2 We have had some difficulty understanding the defendant’s

argument as to the tapes from his brief before this court. We

have therefore turned to the trial transcript where trial

counsel objected to admission of the tapes, apparently on the

same grounds:

[Defense]: Well, Judge, if you are going to deny my

motion then I would request, since—as I say, I can’t say

any more positively—I don’t think there is any evidence

whatsoever showing a conspiracy.

But would you then instruct the jury once again that

until they firmly believe that the Government shows by

good evidence his involvement in the conspiracy, that they

can’t take this stuff into their consideration?

x * *

[Prosecution]: That only goes to—it doesn’t go to his

. actions. .. . I have no _ lem with you instructing the

jury about that when they go out but at this point right

now we are not rena Sheng any conversations, so I don’t

— an instruction about this conversation at this time is

relevant.

A6

Although we have difficulty seeing any inconsistency

between Santiago and the “slight evidence” ruie,? we do

not follow at all the defendant’s argument that Santiago

is applicable to the admission of the videotapes. Quite

simply, the videotapes do not involve co-conspirator

hearsay. To the contrary, they are a record of the

defendant’s own conduct tying him to the conspiracy.

The proper foundation for the admission of these tapes

was made through the testimony of the agents who

witnessed the defendant’s actions and made the tapes.

We add that the defendant has alluded to no specific

co-conspirator hearsay admitted at trial as having been

prejudicial. In fact, the most harmful evidence against

the defendant in this case has been the close coordina-

tion between his own actions and those of his co-

conspirators, and not anything his co-conspirators said

about him.

We also find no merit in Medina’s argument that his

second trial was held in violation of the double jeopardy

clause of the Fifth Amendment. Prior to the com-

mencement of the first trial, the defendant moved to

strike the Herrera name from the indictment and the

pleadings. This motion was unsuccessful. After one

venireman testified at voir dire that he thought he had

’ The slight evidence rule is no more a substitute for the

Spe cen ig standard used for admission of co-conspirator

earsay than it is for the reasonable doubt standard used for

the ultimate determination of guilt. It merely describes the

type of evidence that may suffice to prove involvement in a

conspiracy under these standards:

Once there is satisfactory proof that a conspiracy has been

formed, the question of a mgpaganre defendant’s con-

nection with it may _be merely a matter of whether the

stick fits so naturally into position in the fagot as to

convince that it is a part of it. It is therefore possible for

the circumstances of an individual defendant's participa-

tion in an established conspiracy to become substantial

from their weight in position and context, though in

abstraction they may be only slight.

Phelps v. United States, 160 F.2d 858, 867-68 (8th Cir. 1947),

cert. denied, 334 U.S. 860 (1948) oe : in United States v.

Harris, 542 F.2d 1283, 1305 (7th Cir. 1976), cert. denied, 430

U.S. 934 (1977) ).

A7

seen the defendant’s name in the paper, however, the

court, with the consent of counsel, told the jury panel

that the defendant’s name had not appeared in the

papers and that his name should not influence their

determination of the case, because it is a common name

in Spanish-speaking countries.‘

During the trial, Angelo Rodriguez, the government

informant, testified that the Vasquezes had replied in

the affirmative to his question whether they were

“dealing with some of the Herreras’ dope.” Furthermore,

a Government agent testified that the initials R.H.M.

appeared on the girbage cans behind 2831 S. Homan.

Medina’s theory of defense at trial was to attack any

showing of a connection between Medina and the other

conspirators. In rebuttal, the Government portrayed

Medina as the head of the heroin trafficking operation.

During the rebuttal portion of its final argument, the

Government argued:

Here he is touted as being Mr. Rodolfo Medina.

Remember that trash can. You mark the trash

cans . . . so that your neighbors can get it back to

ou... if the garbage collectors misplace them.

What do the initials on the trash can say? R.H.M.

Rodolfo Herrera-Medina. In his neighborhood it had

significance for him. So, he could use it when he

wants to.

It would appear that this statement could be justified by

the evidence; it connected the defendant to the name

Herrera, identified by the Vasquezes as their source.

Medina moved for a mistrial, however, and although the

trial court denied the motion at that time, it did say that

4 In connection with this issue, the defendant’s brief suggests

that this court judicially note “that in the last string Sart (24)

or more months the news media in Chicago have frequently

referred to the ‘Herrera Family’ within the context of narcotic

rere trafficking.” The suggestion fails to give us any Orca

ata as to the frequency or volume of media reference. Without

acceding, therefore, to the defendant’s suggestion, we will

nevertheless assume for the purposes of this appeal thet the

name Herrera may have been the subject of some miedia

attention in connection with drug trafficking.

A8

it would reconsider the issue at post-trial motions. The

court reprimanded Government counsel:

I think, Mr. Cook, that you came close to com-

mitting reversible error.

Although I am going to deny the motion, I think

you deliberately tried to prejudice the jury by

bringing this out. Counsel didn’t argue it.

But, I am going to deny the motion at this point,

and we can reconsider it at a later time during

post-trial motions.

The court later granted the defendant’s motion for a

new trial based on these statements.

Medina argues that the conviction in the second trial

must be reversed because the trial took place in

violation of his right against double jeopardy. In

granting the defendant’s motion for a new trial, the trial

court found that the prejudicial effect of the prosecutor’s

statement would make it “futile to take this case to the

appellate court because I just think it would result in a

reversal, and therefore I am going to grant a new trial

to be held immediately.” Assuming that the tria! court

correctly determined that the error was prejudicial, the

test to be applied in determining the propriety of

another trial was enunciated by this court in United

States v. Marrero, 516, F.2d 12 (7th Cir. 1975), cert.

denied, 423 U.S. 862:

Our impression then, is that the test to be applied

in cases wherein prosecutorial misconduct is alleged

is simply whether the accused was assured and

accorded the genuine fairness to which he was

entitled during the MB 0 9-9 of trial. Such an

evaluation, as we stated in [Christman v. Hanrahan,

500 F.2d 65 (7th Cir. 1974)] at 68, “requires an

appraisal of the fairness of the complete trial.” In

the context of the instant appeal, we interpret this

to mean that we must scrutinize the entire trial

process—that is, the fairness or lack thereof in not

one, but the two trials in which appellant was

involved. If appellant was accorded a trial which

was eminently fair and free from the taint of

Te ous:

conan a ipa teat eS NIP A at 8

A9

prosecutorial misconduct, then, as we interpret the

applicable law, the test of fairness has been

satisfied. ...

516 F.2d at 14-15. Thus, it is the general rule that a new

trial untainted by the error is sufficient remedy for the

error. See United States v. Tateo, 377 U.S. 463, 465

(1964).

The defendant has not argued that his second trial

was in any way tainted by the improper argument

during the first. Rather, he argues that the prosecutor’s

conduct was “overreaching” and that a new trial was

therefore banned under United States v. Dinitz, 424 US.

600 (1976).5 In arguing that the prosecutor engaged in

intentional misconduct, the defendant relies chiefly on

the comments of the trial court at the time of the

rosecutor’s error. Significantly, however, the trial court

ound after the second trial:

While this court found gerade closing

argument in defendant’s [first] trial sufficiently

prejudicial to warrant a mistrial, we do not find

government counsel’s conduct to be either grossly

negligent or intentional. We therefore hold the

det2ndant’s subsequent re-trial was not barred by

the Fifth Amendment’s Double Jeopardy Clause.

The trial court’s original remarks were made spon-.

taneously and without giving the Government an

6 iy a to reply to the defendant’s mistrial motion.

Other than this statement by the trial court Medina has

5 Although the case before us involves a defense motion for a

new trial rather than a defense motion for a mistrial which

was the subject of Dinitz, we see no reason for differentiation

between these situations. The Government admits that the

ruling in this case was essentially a reserved ruling on the

mistrial motion. Furthermore,

a defendant is no less wronged by a jury finding of guilt

after an unfair trial, than by a failure to get a jury verdict

at all; the distinction between the two kinds of wrongs

— no sensible basis for differentiation with regard to

retrial.

Tateo, supra, 377 U.S. at 467.

EN re eee

A10

only the statement of the prosecutor itself to support his

claim of overreaching. This statement was an isolated

incident and was at least arguably based on evidence at

trial. We therefore decline to reverse the trial court’s

ruling on the issue of aggravating circumstances. We

cannot in fairness say that the prosecutor lost sight of

his fundamental duty to see that justice is done,* nor

could we even say that this statement alone shows an

intentional effort to provoke a mistrial request. The

defendant’s double jeopardy claim must therefore fail.

Finally, Medina has argued that his rights to due

process and effective assistance of counsel were violated

by his attorney’s representation of two of Medina’s co-

indictees. According to Medina, the trial court had an

affirmative duty to inquire on the record about the

hazards of joint representation. This argument is

without merit. This Circuit has consistently declined to

fashion a per se rule under the Constitution or its

supervisory powers creating an affirmative duty in the

trial court to inquire into every incident of joint

representation to determine whether it involves a

conflict of interest. United States v. Mavrick, No. 78-

2226 (7th Cir. 1979); United States v. Mandell, 525 F.2d

671 (7th Cir. 1975), cert. denied, 423 U.S. 1049 (1976).’

We have delineated the trial court’s duty in this way:

[The court must] be alert for indicia of conflict at

all stages of the proceeding, including during trial.

sth en the possibility of a conflict appears

during trial, the court must investigate the relevant

facts, advise the defendant, and determine whether

6 Medina has argued that a showing of “gross negligence”

constitutes overreaching sufficient to invoke the bar of double

jeopardy, citing United States v. Crouch, 566 F.2d 1311 (5th

Cir. 1978). Neither the Supreme Court nor this Circuit has so

held, and we expressly decline to decide this issue until it is

squarely presented by the facts.

7 This duty of inquiry has changed as of August 1, 1979, for

federal em under the recently approved amendment

to Fed. R. Crim. P. 44. See United States v. Mavrick, supra,

slip op. at 13 n.9.

nan a Bi caste cer Oa Bmw ind Se

ATR AREAIROE ene = oo

A ARN TI a

All

continued representation, absent waiver would vio-

late the sixth amendment.

United States v. Gaines, 529 F.2d 1038, 1043 (7th Cir.

1976) (citations omitted).

The defendant’s argument fails because it does not

distinguish between mere joint representation and the

possibility or indicia of an actual conflict. One of the co-

indictees, Lopez, posted bond, disappeared, and has

remained a fugitive from justice. The defendant has

alleged no actual conflict as to the representation of

Lopez. The other co-indictee, Alcantar, entered a plea of

guilty on the day that Medina’s first trial began and was

sentenced prior to Medina’s second trial. As to the

representation of Alcantar, the defendant argues:

T]he allegation of passing a bag from Alcantar to

edina on September 8, 1977, could only have

been disputed by Alcantar and/or Medina. Medina

ie not to testify and Alcantar was the only other

witness.

The mere fact that Alcantar might have testified in the

defendant’s trial does not indicate an actual conflict. By

the time of the second trial, which is under review here,

Alcantar not only had pleaded guilty, but also had been

sentenced. Medina’s allegations show no connection

between the attorney’s continuing duty to Alcantar after

sentencing and Alcantar’s failure to testify in Medina’s

trial. Medina has shown us nothing in the record before

the district court to indicate that Alcantar’s testimony

would have been helpful in any way. Most important,

however, is that the defense counsel, to whom we have

entrusted the primary responsibility in this area, see

Mandell, supra, 525 F.2d at 677, never alerted the

district court in any way to possible problems with joint

representation. Accordingly, we hold that the district

court had no affirmative duty of inquiry.

A12

Po the above reasons, the judgment of conviction is

firmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

a

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Sree Nara ct Hee 2

A13

APPENDIX B

In the

United States Court of Appeals

Sor the Seventh Cirrnit

October 26, 1979.

Before

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

No. 78-2245

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

RODOLFO MEDINA-HERRERA,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77 CR 900-1—Stanley J. Roszkowski, Judge.

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-

Al4

entitled cause by Rodolfo Medina-Herrera, defendant-

appellant, no judge in active service has requested a vote |

thereon, and all of the judges on the original panel have ‘

voted to deny a rehearing. Accordingly,

IT Is ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED. '