# Petition — Medina-Herrera v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 964

## Text

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.

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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

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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. '

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1272%3A1. Public record. Not legal advice.