Opposition — In re Intersimone

FILED

No. 79-2016 OC 14 1060

ii ‘ AK, JR., CLERK

Supreme Court, U.S, |

In the Supreme Court of the United States

OCTOBER IERM, 1Y8U

IN Re SEBASTIAN INTERSIMONE, PETITIONER

ON MOTION FOR LEAVE JO FILE AND

PETITION FOR A WRIT OF MANDAMUS

AND/OR PROHIBILION

MEMORANDUM FOR THE UNITED STATES

IN OPPOSIILION

WADE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUIHORIIIES

Cases:

Day v. United States, 428 #. 2d 1193 ...

Dirring v. United States, 353 t. 2d 519

Leis V. Fiynt, 439 U.S. 438 ....cccccoccccreeee

Maynard v. Meachum, 545 Fk. 2d 273 ...

Stanley v. Wainwright, 406 F. 2d 8 ......

United States v. Dardi, 330 tk. 2d 316,

cert. denied, 379 U.S. 845. ............0c000.

United States v. Lee, 513 k. 2d 423,

cert. denied, 423 U.S. 916 ...........000000.

United States ex rel. Carey v. Rundle,

409 F. 2d 1210, cert. denied, 397 U.S.

SOP. aii civ dha lacntg ciphdbentiuaxigubiimtmedidamuiacaias

United States ex rel. Curtis v. Illinois,

521 F. 2d 717, cert. denied, 423 U.S.

BOE tnsntndcivsadcsicansiapderinrtevoiccngnnmtatsadicans

SUT cceundtiieinereicipeianisseiasaonibahgacteuiessuinies

Constitution and rule:

United States Constitution, Sixth

PI Sie eta

IRN Wis lie TE - SoicekikieidankeAscacsbomseaancs

ea Wc Wile MEMMIN “aucapsssvavessconseansesacuctonsnees

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 79-2016

IN RE SEBASTIAN INTERSIMONE, PETITIONER

ON MOTION FOR LEAVE TO FILE AND

PETITION FOR A WRIT OF MANDAMUS

AND/OR PROHIBITION

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner requests that this Court issue a writ of

mandamus to require that his counsel be permitted to

represent him pro hac vice in connection with his filing of

a motion for a new trial in the United States District

Court for the Southern District of New York.

1. In November 1976, petitioner was convicted on a

number of counts of a narcotics conspiracy indictment.

He was sentenced to concurrent terms of I5 years’

imprisonment, a $25,000 fine, and a three-year term of

special parole on each count. This conviction was

summarily affirmed by the court of appeals. 573 F. 2d

1298 (2d Cir. 1978).

On June 22, 1979, petitioner was convicted of contempt

of court for contacting various jurors from his trial in

2

contravention of an order of the district court. [he court

sentenced him to an additional four months’

imprisonment on that conviction. Again, the court of

appeals summarily affirmed. 622 F. 2d 576 (2d Cir. 1980).

Petitioner then filed a motion for a new trial, in which

he was for the first time represented by his present

attorney, James G. Kolb, of Rockville, Maryland. After

filing the new trial motion on petitioner’s behalf, attorney

Kolb filed a paper he styled a “Motion and Affidavit,” in

which he requested that he be permitted to appear pro hac

vice as petitioner’s counsel (Pet. App. 1-2). The district

court, in a memorandum endorsement, denied the motion

(Pet. App. 2). Kolb then wrote a letter to the court again

requesting that he be permitted to represent petitioner

(Pet. App. 3-4). The district court, treating the letter “as

an application for reargument,” denied the request (Pet.

App. 4).

2. Kolb then filed a petition “for writs of mandamus

and prohibition” in the court of appeals, seeking to force

the district court to permit him to represent petitioner in

connection with his new trial motion (Pet. App. 5-7). The

court of appeals denied the petition without opinion (Pet.

App. 8).

3. Petitioner, asserts, without supporting argument or

citation of authority (Pet. 6), that the district court’s

action was arbitrary and capricious and an abuse of

discretion. Petitioner further contends, again without

citation of authority, that the district court’s action is

contrary to its “mandatory duty under the Sixth

Amendment to the Constitution of the United States to

permit petitioner to be represented by counsel of his

choice” (Pet. 6-7).

3

Petitioner is incorrect in suggesting that he has an

absolute right under the Sixth Amendment to be

represented by attorney Kolb. The Sixth Amendment

guarantees a defendant the effective assistance of counsel

in criminal cases, but it does not require that a court

ensure that the defendant be given the particular lawyer

he chooses, even at trial. See United States ex rel. Carey

v. Rundle, 409 F. 2d 1210, 1215 (3d Cir. 1969), cert.

denied, 397 U.S. 946 (1970); see also United States v.

Dardi, 330 F. 2d 316, 335 (2d Cir.), cert. denied, 379 U.S.

845 (1964); Maynard v. Meachum, 545 F. 2d 273, 278 (lst

Cir. 1976). Moreover, the Sixth Amendment has no role

to play whatever in the present case, since the Sixth

Amendment does not apply to post-conviction

proceedings such as a motion tor a new trial. See United

States v. Lee, 513 F. 2d 423, 424(D.C. Cir.), cert. denied,

423 U.S. 916 (1975); Dirring v. United States, 353 F. 2d

519, 520 (Ist Cir. 1965); see also Vandenades v. United

States, 523 F. 2d 1220 (Sth Cir. 1975); United States ex

rel, Curtis v. Illinois, 521 F. 2d 717, 719 (7th Cir.), cert.

denied, 423 U.S. 1023 (1975); Day v. United States, 428 F.

2d 1193, 1195 (8th Cir. 1970); Stanley v. Wainwright, 406

F. 2d 8, 10 (Sth Cir. 1969). Nor does a lawyer have an

absolute right to appear pro hac vice in representing a

client. Leis v. Flynt, 439 U.S. 438 (1979).

Moreover, petitioner’s attorney has not satisfied the

requirements of Local Rules 3(c) and 4a) of the United

States District Court for the Southern District of New

York regarding pro hac vice applications. Rule 3(c)

provides that an attorney from another state may be

permitted “to argue or try a particular cause.” However, it

further provides that only an attorney who is a member of

the bar of the district court “may enter appearances for

parties, sign stipulations or receive payments upon

4

judgments, decrees or orders.” Rule 4(a) requires that an

attorney who appears as attorney of record in the district

court must either have an office in the Southern or

Eastern District of New York or retain as local counsel an

attorney who has an office in one of those districts.

Because petitioner’s counsel is not a member of the bar of

the district court and has not designated a member of the

bar as local counsel, the district court’s action cannot be

characterized as arbitrary, capricious, or unreasonable.

Finally, at least at the present juncture, the district

court’s ruling is not prejudicial to petitioner. The motion

for a new trial has already been filed and is pending

before the district court. Unless the district court

determines that a hearing should be held on that motion,

attorney Kolb will not need to make any further

appearances in district court on petitioner's behalf.

Accordingly, there is no basis for granting relief at this

time, particularly by means of a writ of mandamus, the

relief that petitioner has requested from this Court.

It is therefore respectfully submitted that the petition

for a writ of mandamus should be denied.

WADE H. McCREE, JR.

Solicitor General

OCTOBER 1980

DOJ-1980-10