Opposition — Jeffers v. United States

Supreme Court, U.S,

FILED

No. 80-599 DEC 1980

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1980

a"

GARLAND P. JEFFERS, PETITIONER

v.

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

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-599

GARLAND P. JEFFERS, PETITIONER

v.

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

QUESTION PRESENTED

Whether the joint representation of petitioner and

his co-defendants by the same attorney denied peti-

tioner the effective assistance of counsel.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Cuyler v. Sullivan, No. 78-1832 (May 12, 1980)... 5,

Holloway v. Arkansas, 435 U.S. 476 ..........---...----+-

lannelli v. United States, 420 U.S. 770 ....................

Johnson Vv. Zerbst, 304 U.S. 468 .............2.....-.ceeeeeeee

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

United States v. Martorano, 610 F.2d 86 ................

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Constitution, statutes and rule:

United States Constitution :

Fifth Amendment (Double Jeopardy Clause) ..

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Fed. R. Crim. P. 44(c), Pub. L. No. 95-42, 93

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.

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OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on June 3, 1980. A petition for rehearing was denied

on August 12, 1980. The petition for a writ of cer-

tiorari was filed on October 14, 1980. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Indiana, petitioner

was convicted of engaging in a continuing criminal

narcotics enterprise, in violation of 21 U.S.C. 848.

He was sentenced to life imprisonment and fined

$100,000. The court of appeals affirmed, 5382 F.2d

1101 (1976). This Court granted certiorari, affirmed

the judgment in part, and vacated it in part. 432

U.S. 187 (1977). Petitioner thereafter filed the in-

stant motion to vacate his sentence pursuant to 28

U.S.C. 2255. The district court denied the motion

(Pet. App. B), and the court of appeals affirmed

(Pet. App. A).

1. On March 18, 1974, petitioner and nine other

individuals were charged in a one count indictment

with conspiring to distribute heroin and cocaine, in

violation of 21 U.S.C. 846. A second indictment

charged petitioner alone with conducting a continu-

ing criminal narcotics en‘erprise, in violation of 21 -—

U.S.C. 848. The government thereafter filed a motion

:

(1)

2

to consolidate the indictments for trial. Petitioner

and his nine co-defendants in the conspiracy case,

through their common counsel, filed a joint objection

to the government’s motion. The district court denied

the government’s motion and ordered that the charges

be tried separately. In the ensuing trial of the Sec-

tion 846 charge, petitioner and six of his co-defend-

ants were convicted of conspiracy. The court of ap-

peals affirmed petitioner’s conviction, 520 F.2d 1256

(7th Cir. 1975), and this Court denied certiorari,

423 U.S. 1066 (1976).'

2. Prior to his separate trial on the continuing

criminal enterprise charge, petitioner, through newly

appointed counsel, filed a motion to dismiss the in-

dictment, claiming that trial on that charge was

barred by his conviction of the lesser-included offense

of conspiracy to distribute narcotics. The district

court denied this motion. Petitioner was thereafter

tried and convicted of engaging in a continuing crimi-

nal enterprise. He was sentenced to life imprison-

ment and fined $100,000, both to run consecutively to

the 15-year sentence and $25,000 fine previously im-

posed in the conspiracy case. The court of appeals

affirmed the conviction, 532 F.2d 1101 (7th Cir.

1976), holding that although a narcotics conspiracy is

a lesser-included offense of conducting a continuing

1In that appeal, petitioner claimed that his trial counsel

had been ineffective because of his failure to cross-examine

a former client who testified as a government witness. Fol-

lowing the affirmance of their conspiracy convictions, peti-

tioner and his co-defendants filed a motion under 28 U.S.C.

2255 for post-conviction relief, again claiming that they had

been denied the effective assistance of counsel. The district

court denied the motion, the court of appeals affirmed, 544

F.2d 523 (1976), and this Court again denied certiorari, 430

U.S. 935 (1977).

3

criminal enterprise, this Court’s decision in Jannelli

v. United States, 420 U.S. 770 (1975), created an

exception to the double jeopardy rule in the case of

complex statutory crimes, allowing for separate pun-

ishment on both the greater and lesser offenses if

Congress so intended.

This Court granted certiorari. 429 U.S. 815

(1976). In a plurality opinion, four Members of the

Court, while assuming that conspiracy under 21

U.S.C. 846 is a lesser-included offense of conducting

a continuing criminal enterprise under 21 U.S.C. 848,

concluded that the Double Jeopardy Clause neverthe-

less did not bar petitioner’s trial for the latter offense

because petitioner “was solely responsible for the suc-

cessive prosecutions for the conspiracy offense and the

continuing criminal-enterprise offense.” 432 U.S. 137,

154 (1977). The plurality opinion also concluded,

however, that because Congress did not intend to im-

pose cumulative punishments under Sections 846 and

848, the district court had no power to impose on

petitioner a fine greater than the maximum permitted

by Section 848. 432 U.S. at 158; see also id. at 160

(opinion of Stevens, J.). Mr. Justice White concurred

in the judgment to the extent it affirmed petitioner’s

conviction on the continuing criminal enterprise

charge but dissented from the Court’s conclusion that

multiple punishments were not authorized.

3. On October 21, 1977, petitioner filed a motion

under 28 U.S.C. 2255, claiming that he had not

“waived” his protection against double jeopardy, that

he had been denied effective assistance of counsel,

and that the district court and the prosecutor erred

in failing to advise him of the consequences of his

opposition to the government’s motion to try the con-

4

spiracy and continuing criminal enterprise charges to-

gether. The district court rejected these claims (Pet.

App. B), and the court of appeals affirmed (Pet.

App. A).

ARGUMENT

Petitioner contends (Pet. 5-7) that he was denied

his Sixth Amendment right to the effective assistance

of counsel because his attorney at the conspiracy trial

was representing several clients with conflicting in-

terests and because the trial court failed to advise

him of the dangers of multiple representation and

his right to separate counsel. In particular, peti-

tioner claims that his attorney’s decision to oppose

the government’s motion to consolidate the conspiracy

and continuing criminal enterprise trials was made

for the benefit of his co-defendants, and to peti-

tioner’s detriment. This contention is without merit.

Petitioner’s reliance on Holloway v. Arkansas, 435

U.S. 475 (1978), for his claim of ineffective assist-

ance of counsel, is misplaced. The Court in Holloway,

while recognizing that joint representation “is not

per se violative of constitutional guarantees of ef-

fective assistance of counsel” (485 U.S. at 482), held

that the trial judge should have given greater

weight to claims by defense counsel that his repre-

sentation of several co-defendants created a conflict

of interest. The Court pointed out that. the possibility

of a conflict had been raised by formal objections,

motions, and defense counsel’s representation (id. at

487). Defense counsel in the instant case made no

such representations. This is not a case, therefore,

where the trial court disregarded representations by

defense counsel that he could not properly present his

case because of a conflict of interest between his

5

clients. Nor, contrary to petitioner’s apparent asser-

tion (Pet. 5-6), was the district court constitutionally

required to inquire, sua sponte, into the possibility

of a conflict of interest in the joint representation of

petitioner and his co-defendants at the conspiracy

trial. Cuyler v. Sullivan, No. 78-1882 (May 12,

1980).’ Therefore, because separate counsel was not

requested at trial, petitioner must demonstrate that

an actual conflict of interest adversely affected his

lawyer’s performance. Slip op. 13.

In the present case, petitioner has failed even to

establish that his attorney was laboring under a con-

flict of interest, much less that such a conflict ad-

* Petitioner argues that there is a conflict between the First

and Seventh Circuits regarding the duty of a court sua sponte

to make an inquiry of jointly represented defendants con-

cerning conflicts of interest. However, the panel decision in

United States v. Martorano, 610 F.2d 36 (Ist Cir. 1979),

which petitioner asserts is in conflict with the Seventh Cir-

cuit’s decision in the instant case, was based on an exercise of

the court’s supervisory powers (id. at 41), not the Constitu-

tion. That decision, moreover, has been vacated by the First

Circuit, sitting en banc. 620 F.2d 912 (1980). Under the

en banc decision, reversal of a conviction is appropriate only

where the defendant has been prejudiced by the multiple rep-

resentation. As we show below (pages 5-7, infra), petitioner

has failed to demonstrate that he was prejudiced by the multi-

ple representation.

We further note that any disagreement among the circuits

regarding the exercise of their supervisory powers to require

a trial court to inquire about a possible conflict of interest

will be resolved by Fed. R. Crim. P. 44(c), which became

effective on Dec. 1, 1980. See Pub. L. No. 95-42, 93 Stat. 326.

That proposed rule states that in cases of joint representation,

“the court shall promptly inquire with respect to such joint

representation and shall personally advise each defendant

of his right to the effective assistance of counsel, including

separate representation.” Review of the supervisory power

question therefore is not warranted at the present time.

6

versely affected his lawyer’s performance. The sole

basis for petitioner’s claim of conflict centers on his

attorney’s decision to oppose the government’s motion

to consolidate the conspiracy and continuing criminal

enterprise trials. The record shows, however, that

defense counsel’s decision to oppose the consolidation

motion sprang as much from concerns over peti-

tioner’s interests as from concerns over the interests

of his co-defendants. As this Court stated (432 U.S.

at 142 n.5 (citations omitted) ):

[T]he memorandum supporting the defendants’

motion took pains to point out which objections

to trial together were relevant to Jeffers alone.

* * * Indeed, the last argument before the con-

clusion stated:

“Tt is likely that much of the evidence which

will be presented in the conspiracy trial does

not ‘directly’ inculpate the defendant, GAR-

LAND JEFFERS, and would, therefore, be in-

admissible against him in the ‘continuing crimi-

nal enterprise’ indictment unless a direct link

could be established. All of the said overt acts

would, however, be admissible, or at least argu-

ably so, in the conspiracy trial. The prejudice

to the defendant, JEFFERS, is therefore, im-

minent and clear.”

In addition to the arguments relating specifically

to Jeffers, the memorandum contained a number

of points designed to apply equally to all defend-

ants. We see no reason to read it as implicitly

excluding Jeffers.

Thus, to a significant degree, the interests of peti-

tioner and his co-defendants were in concert, not in

conflict. In any event, to the extent that petitioner’s

interests may have been in conflict with those of his

7

co-defendants because of the possible double jeopardy

issue affecting petitioner’s interests alone, petitioner

has not shown that his lawyer’s performance was

adversely affected—i.e., that the lawyer would have

handled things differently but for the asserted con-

flict. Cuyler v. Sullivan, supra, slip op. 14-15.° As

the court of appeals correctly stated (Pet. App. 4),

“Tw]here * * * an allegedly detrimental decision

was made upon considerations which would have in-

fluenced even wholly independent counsel, the defend-

ant has not been denied effective assistance of coun-

sel simply because his attorney represented multiple

defendants.” *

3’ Indeed, petitioner’s lawyer appears to have been unaware

of the double jeopardy issue affecting petitioner (432 U.S. at

159-160 (opinion of Stevens, J.) ), and, therefore, of the pos-

sible divergence of interests. If the lawyer was unaware of

the supposed conflict of interest, his performance could not

have been adversely affected by it.

* Citing Johnson Vv. Zerbst, 304 U.S. 458 (1938), petitioner

claims (Pet. 7) that by opposing the government’s consolida-

tion motion, his attorney “could not thereby effect a waiver of

[petitioner’s] fundamental constitutional right against double

jeopardy, without a record of his voluntary, knowing and

intelligent acquiescence.” This claim is similar to the claim

made by respondent in United States v. Dinitz, 424 U.S. 600

(1976), that his mistrial motion constituted a waiver of his

right not to be placed twice in jeopardy and that to be valid

the waiver had to meet the standards set forth in Johnson v.

Zerbst, supra. The Court disposed of this claim, stating (424

U:S. at 609 n.11):

This approach erroneously treats the defendant’s interest

in going forward before the first jury as a constitutional

right comparable to the right to counsel. It fails to

recognize that the protection against the burden of

multipl prosecutions underlying the constitutional pro-

8

Moreover, despite his contrary assertions (Pet. 6-

7), petitioner can show no continuing prejudice

caused by his attorney’s decision to oppose the con-

solidation motion. Had his attorney acquiesced in the

motion, petitioner would have been tried at a joint

trial on charges of conspiracy and engaging in a con-

tinuing criminal enterprise. Because, as petitioner’s

subsequent trial and conviction made clear, the evi-

dence was sufficient to support a conviction under 21

U.S.C. 848, it makes little difference, apart from pe-

titioner’s desire to escape punishment for that serious

offense, whether that conviction resulted from a joint

trial or from a subsequent trial on the continuing

criminal enterprise charge alone. And, ‘“[s]ince the

Government had the right to try petitioner on the

[continuing criminal enterprise indictment], the court

had the power to sentence him to whatever penalty

was authorized by that statute.” 432 U.S. at 157.

Further, petitioner does not suffer from multiple

punishment resulting from the successive trials; he is

serving only the sentence based on the continuing

criminal enterprise conviction. Jd. at 154-158; id. at

160 (opinion of Stevens, J.).

hibition against double jeopardy may be served by a mis-

trial declaration and the concomitant relinquishment

of the opportunity to obtain a verdict from the first

jury. This Court has implicitly rejected the contention

that the permissibility of a retrial following a mistrial

or a reversal of a conviction on appeal depends on a

knowing, voluntary, and intelligent waiver of a consti-

tutional right.

We see no reason why the same principle would not apply in

the present case.

9

It also is not clear what relief properly could be

ordered if a conflict of interest were shown to have

adversely affected the lawyer’s performance. A re-

trial on the continuing criminal enterprise indict-

ment would certainly not remedy the only injury pe-

titioner can claim to have resulted from the supposed

conflict—his being forced to go to trial a second time.

Conversely, to dismiss the continuing criminal enter-

prise indictment because of the alleged conflict would,

in effect, be to allow petitioner successfully to re-

litigate the double jeopardy claim this Court rejected

in its prior review of petitioner’s conviction, merely

because petitioner has recast that claim in terms of

ineffective assistance of counsel. Dismissal of the in-

dictment would also unfairly allow petitioner perma-

nently to avoid the substantial punishment imposed

on the basis of an otherwise valid conviction on the

continuing criminal enterprise charge even though

neither the court nor the prosecution was responsible

for the asserted constitutional violation.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

DEBORAH WATSON

Attorney

DECEMBER 1980

VW U.S. GOVERNMENT PRINTING orrice; 1980 333941 178