Opposition — Medina-Herrera v. United States

JAN #4 1980

No. 79-795

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AK, IR. CLERK |

Iu the Supreme Court of the United States

_ OCTOBER TERM, 1979

RoDOLFO MEDINA-HERRERA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

Departmeni of Justice

Washington, D.C. 20530

Page

RDN Ces RR ER SAA 1

Jurisdiction 1

Questions presented _____. 2

LEO 2

Pees ee Wd 4

eee 12

CITATIONS

Cases:

Arizona v. Washington, 434 U.S. 497 11

Cuyler v. Sullivan, cert. granted, No. 78-

aon (OK. 1) ieee, 8, 9, 12

Glasser v. United States, 315 U.S. 60 5

Holloway v. Arkansas, 435 U.S. 475 5, 6

Stephens v. United States, 595 F.2d 1066 6

United States v. Alvarez, 580 F.2d 1251 __ 6

United States v. Ball, 163 U.S. 662 11

United States v. Carrigan, 543 F.2d 1053 _ 5

United States v. Dinitz, 424 U.S. 600 11

United States v. Foster, 469 F.2d1_ 6

United States v. Mandell, 525 F.2d 671,

cert. denied, 423 U.S. 1049 ss 6

United States v. Tateo, 377 U.S. 463 11

United States v. Truglio, 493 F.2d 574 __ 6

United States ex rel. Sullivan v. Cuyler,

8 fk SA EME in SO en 8

Wade v. Hunter, 336 U.S. 684 11

Walker v. United States, 422 F.2d 374,

cert. denied, 399 U.S.915.. 8

II

Constitution, statute and rule: Page

United States Constitution :

Fifth Amendment, Double Jeopardy

SS CONSPIRE 2,11, 12

Sixth Amendment _.....__-_- 2, 8,9

ie Lee | Se CPE IN eed 2

Proposed Rule 44(c), Fed. R. Crim. P. ____. 5

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Iu the Supreme Coot of the United States

OCTOBER TERM, 1979

No. 79-795

RODOLFO MEDINA-HERRERA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OP” OSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A12) is reported at 606 F.2d 770.

JURISDICTION

The judgment of the court of appeals was entered

on October 1, 1979. A timely petition for rehearing

was denied on October 26, 1979 (Pet. App. A13-A14).

(1)

2

The petition for a writ of certiorari was filed on

November 21, 1979. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether petitioner’s Sixth Amendment right to

the effective assistance of counsel was violated because

one retained attorney represented petitioner and two

of his co-defendants.

2. Whether the Vouble Jeopardy Clause was vio-

lated by the retrial of petitioner after the court

granted petitioner’s motion for a new trial because of

error in the prosecutor’s closing argument.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Illinois, petitioner

was convicted of conspiring to distribute heroin, in

violation of 21 U.S.C. 846. He was sentenced to eight

years’ imprisonment, to be followed by a five-year

term of special parole (Pet. 7). The court of appeals

affirmed (Pet. App. Al-A12).

The evidence at trial showed that on September 8,

1977, a DEA undercover agent and a government

informant arranged to make a purchase of a large

amount of heroin in a tavern in Chicago. Petitioner’s

co-defendant, Candelario Alcantar, then drove with

the informant and another co-conspirator to the resi-

dence of co-defendant Jose Lopez in Chicago. Alcan-

tar obtained a bag of heroin there, and the three

returned to the tavern where the sale was completed.

3

Alcantar then left the tavern with the $13,000 that

had been used to purchase the heroin and drove to

petitioner’s house, where petitioner was waiting in

the front yard. Alcantar handed petitioner the bag

containing the money, and they then walked into the

house (Pet. App. Al-A2).

Two weeks later, two more drug sales took place in

a similar fashion. On the morning of September 22,

government agents saw petitioner leave Lopez’s house,

put a brown paper bag in the trunk of his car, and

drive away. About two hours later, Alcantar and

Lopez were observed at petitioner’s house. During the

time that Alcantar and Lopez were there, one of peti-

tioner’s co-conspirators, after meeting with the agent

and informant at the same tavern where they had

previously met, made several telephone calls to ar-

range another heroin transaction with his source of

supply. The co-conspirator gave the agent and in-

formant a sample of heroin, and they showed him

$26,000 in a bag they were carrying. The agent and

the informant followed two of petitioner’s co-con-

spirators from the tavern to a location near petition-

er’s house. One of the co-conspirators met Alcantar

and Lopez nearby. After brief negotiations, Alcantar

and Lopez went to Lopez’s house, which was also

nearby, and Alcantar was soon seen emerging from

the house carrying a brown paper bag. Alcantar and

Lopez returned to the place where the agent and

informant were waiting. The agent and the inform-

ant paid the co-conspirators $26,000 for a kilogram

of heroin (Pet. App. A2-A3).

4

Later that afternoon, another sale was arranged.

Petitioner and Alcantar traveled once again to Lopez’ S

house. Petitioner returned to his house after about

15 minutes. After negotiating with the agent and the

informant, who were parked nearby, one of the co-

conspirators went to Lopez’s house and emerged

carrying a bag. Four kilograms of heroin were then

passed to the agent and informant through the win-

dow of their car parked a short distance away. All

the co-conspirators were arrested, including peti-

tioner (Pet. App. A3-A4).

Petitioner and the other co-conspirators were

charged in the same indictment. Petitioner was tried

alone, however, and was convicted of conspiracy to

distribute heroin. After trial, petitioner filed a mo-

tion for a new trial, based on a claim of prosecutorial

error during closing argument. The district court

granted the motion and set the case for retrial. At

the second trial, petitioner was again convicted of

conspiring to distribute heroin (Pet. App. A4).

ARGUMENT

1. Petitioner first contends (Pet. 10-19) that he

was denied the effective assistance of counsel because

his trial counsel had represented his co-defendants

Aleantar and Lopez. Alcantar had pleaded guilty

on the first day of petitioner’s first trial and was

sentenced prior to petitioner’s second trial] (Pet. App.

A11); Lopez fled prior to trial and is still a fugitive

(ibid. ).

5

Petitioner argues that the trial court should have

inquired about the joint representation and should

have obtained a waiver from him before permitting

him to go to trial represented by an attorney who

had represented two of his co-defendants at previous

stages in the case. While we agree that such inquiries

are highly desirable,’ the failure to conduct them does

not result in automatic reversal. Rather, we submit

that reversal is required only if the defendant can

show that the joint representation produced a conflict

of interest of a kind that may well have resulted in

some prejudice to his defense.

This Court stated in Holloway v. Arkansas, 435

U.S. 475, 482 (1978), that joint representation does

not result in a per se violation of the Sixth Amend-

ment. Indeed, the Court noted that in some circum-

stances joint representation may work to the defend-

ant’s advantage. Id. at 482-483; Glasser v. United

States, 315 U.S. 60, 92 (1942) (Frankfurter, J., con-

curring). Accordingly, the Court declined to prohibit

joint representation generally, and instead indicated

that joint representation would lead to reversal of a

conviction only if, absent waiver (see 435 U.S. at 483

n.5), there is some showing that the joint representa-

tion resulted in a conflict of interest for the attorney.

435 U.S. at 481-483, 487. See United States v. Carri-

gan, 543 F.2d 1058, 1055 (2d Cir. 1976) ; United States

v. Mandell, 525 F.2d 671, 677 (7th Cir. 1975), cert.

1 Indeed, they would be required as a matter of course under

proposed Rule 44(c), Fed. R. Crim. P.

6

denied, 423 U.S. 1049 (1976); United States v.

Truglio, 493 F.2d 574, 580 (4th Cir. 1974) ; United

States v. Foster, 469 F.2d 1, 4 (Ist Cir. 1972).?

On the particular facts presented, however, the Court

in Holloway did not require a showing of prejudice

to the defendants as a result of the joint representa-

tion of what the Court found (435 U.S. at 489-491 )

to be their conflicting interests. Counsel in Holloway,

on behalf of all co-defendants, had filed a timely

objection to the joint representation, and the Court

held that prejudice should be presumed to have re-

sulted under such circumstances (ibid.), at least absent

a determination by the trial court after careful con-

sideration of the objection that no conflict of interest

existed.

In Holloway, the Court observed that there is some

disagreement among the circuits over how strong a

showing of conflict of interest must be made, or how

certain a reviewing court must be that the asserted

conflict existed, before it will conclude that a defend-

ant was deprived of his right to the effective assist-

ance of counsel. 435 U.S. at 483. But whatever the

proper standard, it is elear that some showing of a

conflict of interest is necessary. :

In this case, the court of appeals correctly held that

petitioner had failed to show there was any conflict

? Stephens Vv. United States, 595 F.2d 1066 (5th Cir. 1979),

and United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978),

on which petitioner relies (Pet. 16), likewise involved situa-

tions in which the court found that the lawyer was laboring

under a conflict of interest—in those cases, because the lawyer

was representing prosecution witnesses and the defendant.

T

of interest created by his attorney’s representation of

Alcantar, Lopez, and petitioner. Petitioner was tried

alone, and the co-defendants represented by his coun-

sel were not tried. By the time of his second trial—

the one under review here—Lopez had long since dis-

appeared. Although petitioner suggests (Pet. 19) that

some conflict of interest or prejudice resulted from

Lopez’s failure to testify, under the circumstances of

Lopez’s flight this can hardly be a ground for re-

versal, at least without some showing, absent here,

that counsel knew of Lopez’s whereabouts.

Petitioner contends (Pet. 17, 19) that a conflict of

interest is demonstrated by his attorney’s failure to

call Alcantar to testify, because petitioner might have

been able to shift the blame to Alcantar (see Pet.

6-7). But petitioner offers nothing more than specu-

lation on this point. Moreover, Alcantar had already

pleaded guilty and been sentenced by the time of the

second trial. This surely suggests that counsel’s fail-

ure to call Alcantar was not attributable to a fear

of implicating him in the conspiracy. As the court

of appeals stated (Pet. App. All), “[t]he mere fact

that Alcantar might have testified in [petitioner’s]

trial does not indicate an ectual conflict. * * * [Peti-

tioner’s] allegations show no connection between the

attorney’s continuing duty to Alcantar after sen-

tencing and Alcantar’s failure to testify in [petition-

er’s] trial. [Petitioner] has shown us nothing in the

record before the district court to indicate that Alcan-

tar’s testimony would have been helpful in any way.”

8

Thus, to find a conflict of interest here would be, in

effect, to announce a per se rule that, absent waiver,

reversal is required whenever a lawyer who jointly

represents co-defendants does not call one of them to

testify.

Earlier this Term, the Court granted certiorari in

Cuyler v. Sullivan, No. 78-1832 (Oct. 1, 1979), a case

that raises the question of the nature of a showing of a

conflict of interest that must be made for a conviction

to be set aside under the Sixth Amendment. In Cuyler

the court of appeals held that a defendant who has not

previously waived his right to separate representation

is entitled to relief if he can show that the joint repre-

sentation in his case resulted in “‘ ‘a possible conflict of

interest or prejudice, however remote.’ ” United States

ex rel. Sullivan v. Cuyler, 593 F.2d 512, 519 (3d Cir.

1979), quoting Walker v. United States, 422 F.2d 374,

375 (3d Cir.), cert. denied, 399 U.S. 915 (1970).’

The possibility of a conflict in this case is remote

(see pages 6-7, supra); the court of appeals upheld

petitioner’s conviction because he had shown no “actual

3 The Third Circuit’s decision in United States ex rel. Sulli-

van V. Cuyler does not adequately distinguish between a possi-

bility of a conflict of interest and the possibility of prejudice

resulting from a conflict of interest. A possibility of a conflict,

“however remote,” could be articulated in almost every case of

joint representation. In our view, some more concrete indicia

of an actual conflict of interest should be present in order for a

Sixth Amendment violation to be found. Once such a conflict

of interest is found, the nature of the showing of prejudice, if

any, that must be made raises a quite separate issue.

9

conflict” resulting from the joint representation.‘

Thus, although we believe there was no Sixth Amend-

ment violation here, the Court may wish to hold this

case pending the decision in Cuyler v. Sullivan and to

dispose of it in light of the decision in that case.

2. Petitioner also argues (Pet. 20-27) that the

court of appeals should have dismissed the indictment

against him on double jeopardy grounds. The error

*Use of the terms “potential,” “possible,” and “actual”

conflict of interest may generate unnecessary confusion. In

general, we would think that the term “potential” or “possible”

conflict of interest would ordinarily be applicable at the out-

set of the representation, when the likelihood of an actual

conflict arising cannot be accurately predicted. After trial,

however, it would be feasible, given complete information, to

determine whether an actual conflict of interest was present.

The more difficult question would be whether that conflict had

affected counsel’s conduct, and thereby prejudiced the defense.

But if a possible or potential conflict identified at the outset

failed to ripen into an actual conflict, there would clearly have

been no Sixth Amendment violation.

Thus, when used on appeal of a conviction, the term “possi-

ble” conflict of interest would not appear to be an independent

standard, but rather a description of the strength of the show-

ing the defendant must make that his lawyer labored under

an actual conflict of interest. For example, while a defendant

or a court might speculate in any case that the mere failure

to call a co-defendant could “possibly” have been due to a con-

flict of interest, a greater showing should be required before

a court can infer the existence of an actual conflict giving

rise to a Sixth Amendment violation. As pointed out above, if

the mere failure to call a co-defendant to testify—the only

showing made by petitioner here—demonstrates a “possible”

conflict requiring reversal without any specific allegations of

the reasons for not calling the witness, to what he could have

testified, or any other factors that might be probative of an

actual conflict, an automatic reversal rule would result.

10

in the prosecutor’s summation at the first trial that

resulted in the district court’s granting a new trial

was so serious, petitioner contends, that the prose-

cution should not have been allowed to try him a

second time.

In closing argument in the first trial, the prosecu-

tor noted that petitioner had placed his initials,

“R.H.M.,” on his garbage can. The prosecutor argued

that these initials stood for “Rodolfo Herrera-

Medina.” As the court of appeals noted, this argu-

ment was justified by the evidence, because one of

petitioner’s co-conspirators had identified his source

of heroin as “Herrera” (Pet. App. A7). Because

the name “Herrera” had previously appeared in the

local media in connection with narcotics trafficking,

petitioner’s counsel moved for a mistrial based on the

prosecutor’s reference to his name. The trial court

criticized the prosecutor’s argument but denied the

motion for a mistrial at that time. After the jury

returned a guilty verdict, the court granted petition-

er’s motion for a new trial, based on the prosecutor’s

reference to the name “Herrera” in his rebuttal argu-

ment. The court stated that while the argument was

sufficiently prejudicial to warrant a mistrial, “we do

not find government counsel’s conduct to be either

grossly negligent or intentional” (Pet. App. AQ).

Accordingly, the court denied petitioner’s motion to

dismiss the indictment on double jeopardy grounds

(Pet. App. A7-A10).

The court of appeals noted that the prosecutor’s

statement was “an isolated incident and was at least

11

arguably based on evidence at trial” (Pet. App. A10).

Accordingly, the court declined to overturn the trial

court’s determination that the prosecutor’s statement

was not so overreaching or so grossly abusive as to

preclude a second trial (ibid.).

When the court denies the defense’s motion for a

mistrial and later grants the defendant’s motion for

a new trial following the return of a verdict of guilty

by the jury, the Double Jeopardy Clause does not bar

retrial. United States v. Dinitz, 424 U.S. 600, 610

(1976) ; United States v. Ball, 163 U.S. 662 (1896).

In such a case, the defendant’s “ ‘valued right to have

his trial completed by a particular tribunal’” (see

Arizona v. Washington, 434 U.S. 497, 503 (1978),

quoting Wade v. Hunter, 336 U.S. 684, 689 (1949) )

has been protected.°*

Moreover, the prosecutor’s comment, if error at all,

was hardly the kind of grossly improper argument

that can only have been intended to provoke a mis-

trial. This Court has stated on several occasions that

if a prosecutor intentionally provokes a mistrial in

the hope of obtaining a more favorable jury on re-

trial, the Double Jeopardy Clause might require dis-

missal of the indictment. See United States v. Tateo,

377 U.S. 463, 468 n.3 (1964); United States v.

Dinitz, supra, 424 U.S. at 611; Arizona v. Wash-

ington, supra, 434 U.S. at 507-508. But the error in

this case does not even remotely approach this mag-

5 Thus, the court of appeals erred (Pet. App. A9 n.5) in

equating, for Double Jeopardy purposes, petitioner’s motion

for a new trial and the mistrial involved in Dinitz.

12

nitude. Both the district court and the court of ap-

peals found the prosecutor’s comment not to have

been either grossly negligent or intentional (Pet. App.

A9-A10), and nothing in the nature or circumstances

of the comment suggests that this determination is

incorrect. Accordingly, there is no basis for holding

that the Double Jeopardy Clause was violated by

petitioner’s retrial. |

CONCLUSION

The petition for a writ of certiorari should be de-

nied or, in the alternative, held pending the disposi-

tion of Cuyler v. Sullivan, No. 78-1832.

Respectfully submitted.

WADE H. McCRreEzE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JANUARY 1980

® Petitioner relies (Pet. 21) on the district court’s statement

during trial that the prosecutor “deliberately tried to prejudice

the jury” by referring to petitioner’s name. As the court of

appeals pointed out, however, that comment was made “spon-

taneously and without giving the Government an opportunity

to reply to the defendant’s mistrial motion” (Pet. App. AQ).

The court’s remark was effectively amended by the court’s

subsequent finding that the prosecutor’s conduct was neither

“grossly negligent [nor] intentional” (ibid.).

* U. S. GOVERNMENT PRINTING OFFICE; 1980 309124 202