Petition — Havens v. United States

80-1004

ee

Supreme Court, U.S.

FILED

DEC 19 1980

ODAK, JR.., CLERK

In The Supreme Court of the Hnited States

OCTOBER TERM, 1980

J]. LEE HAVENS, PETITIONER

VS.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM C. LEE

Attorney for Petitioner

803 South Calhoun Street

900 Inland Building

Fort Wayne, Indiana 46802

No.

In The Supreme Court of the United States

OCTOBER TERM, 1980

No. .

J. LEE HAVENS, PETITIONER

VS.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM C. LEE

Attorney for Petitioner

a 803 South Calhoun Street

‘ 900 Inland Building

| Fort Wayne, Indiana 46802

issue to review the judgment of the United States Court of Ap-

peals for the Fifth Circuit rendered in these procceedings on

The petitioner, J. LEE HAVENS, prays that a writ of certiorari

September 17, 1980

2

QUESTION PRESENTED FOR REVIEW

Whether a federal trial judge, in a criminal jury trial,

committed reversible error in violation of defendant’s

right to counsel under the Sixth Amendment to the

United States Constitution by the following acts:

During cross-examination of defendant, the judge

excused the jury in order to confer with counsel and

a prosecution witness. At that time the judge also

ordered the defendant to leave the courtroom. At

the conclusion of the conference, the judge refused

defense counsel’s request to go to his client, who

was still absent from the courtroom, and the judge

further ordered defense counsel not to speak with

defendant prior to his resuming the stand.

3

TABLE OF CONTENTS

Question presented forreview ............

UNION, oko eck a ee ee

a re ee ree erie i ae

EE PEO aE ree ree ae

Constitutional provision involved..........

Statement of theCase .................

A, Peer erocentings |... 2... ce ee.

eM ee a win aa Wao ae ks

oS ew aise ee ee eR

TRE A Le Toner er eee eee ee ee

A. Decision of the United States Court of

Appeals for the Fifth Circuit.........

B. Order of Court of Appeals denying

WI hor ts cate b ase oan kee

C. Excerpt from brief before

ee fe

Page

10

13

13

13

14

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TABLE OF AUTHORITIES

Sixth Amendment to United States Constitution

28 U.S.C. 1254 (1)

21 U.S.C. 841 (a1)

21 U.S.C. 952 (a)

21 U.S.C. 960 (aX1)

21 U.S.C. 963

Geders v. United States

425 U.5. 80, 96 S.Ct. 1330 (1976)

Glasser v. United States

315 U.S. 60, 62 S.Ct. 457 (1942)

United States v. Allen

542 F.2d 630 (1976)

United States v. Bryant

545 F.2d 1035 (1976)

5

OPINION BELOW

The judgment of the Court of Appeals for the Fifth Cir-

cuit, without opinion, is not yet reported, and it is shown

at Appendix A.

JURISDICTION

The judgment of the Court of Appeals (Appendix A)

was entered on September 17, 1980. A timely petition for

rehearing was denied on October 24, 1980 (Appendix B).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution of the

United States provides as follows:

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial 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 ac-

cusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the assistance

of counsel for his defense.

STATEMENT OF THE CASE

A. Prior Proceedings. On February 10, 1978 petitioner

was convicted, in the United States District Court for the

Southern District of Florida, of possessing cocaine with

intent to distribute it, and of importing and conspiring to

import cocaine, in violation of 21 U.S.C. 841 (aX1), 952

(a), 960 (aX(1) and 963.

6

On April 5, 1979 the Court of Appeals for the Fifth Cir-

cuit reversed the conviction of petitioner and ordered a

new trial. The opinion of the Court is reported at 592 F. 2d

848. The decision was based solely upon an evidentiary

question involving the Fourth Amendment to the United

States Constitution. Other issues, properly raised by peti-

tioner on appeal, were deemed moot by the Court of Ap-

peals in view of its reversal of conviction on the Fourth

Amendment issue. The Court said, “we do not treat his

other contentions because they involve rulings on matters

that are not likely to recur upon retrial of his case.” 592 F.

2d at page 849. Among the “other contentions” found to

be moot is the issue herein presented to this Court: the

denial of assistance of counsel in violation of the Sixth

Amendment to the United States Constitution. It should be

noted that the issue presented herein was fully briefed at

pages 37-40 in petitioner’s original brief in the Court of Ap-

peals. A summary of that argument, shown at page 37 of

petitioner's original brief, is shown at Appendix C.

Thereafter, the government appealed the reversal of peti-

tioner’s conviction, and the Supreme Court ruled against

petitioner on May 27, 1980, reinstating the original convic-

tion. United States v. Havens, — U.S. —, 64 L.Ed. 2d 559,

100 S.Ct. —.

The decision of the Supreme Court was based solely

upon the Fourth Amendment issue, and, as petitioner had

requested in the event of an adverse ruling upon that

point, the case was remanded to the Court of Appeals for

“further proceedings consistent with this opinion.”

Upon a review of the other issues (formerly held to be

moot) raised by petitioner in his original appeal, which

issues include the Sixth Amendment issue presented

herein, the Court of Appeals entered judgment against

petitioner, affirming his original conviction, on

September 17, 1980 (Appendix A). The judgment is not

yet reported. .

7

B. Facts. In the midst of cross examination of peti-

tioner at trial, the district court judge excused the jury

and ordered the petitioner from the courtroom (Tr.

384-385). Thereafter an extended discussion ensued in-

volving the prosecutor, judge, defense counsel, and a

DEA agent who was a witness for the government. (Tr.

385-398). At issue was the availability to the government

of certain evidence (T-shirts) which had been illegally

seized from petitioner. In the prior proceedings discuss-

ed above, the Supreme Court held that the evidence in

question could be used for impeachment purposes if the

cross examination could have been reasonably sug-

gested by questions posed on direct examination. United

States v. Havens, supra.

The trial court, however, erroneously believed that

the issue of admissibility turned on whether or not peti-

tioner denied possessing the suppressed evidence. (Tr.

397-398). The following exchange illustrates the

misconception of the court:

THE COURT: Now, he has not been asked on the

stand whether or not he was carrying a tee shirt

which had been cut up, or portions cut out of it,

which could have been used in the other tee shirt.

He has not been asked that, but | presume you in-

tend to ask that question.

MR. CULVERHOUSE: That was the question | was

getting into.

THE COURT: And if he denied that, then you

would intend to offer this, not for the proof of his

guilt, but for proof of his —

MR. McCAIN: What?

MR. CULVERHOUSE: It would be for impeach-

ment purposes through Agent Martinez. (Tr. 398)

At pages 399-400 of the trial transcript appears:

MR. McCAIN: Well, he wouldn’t — if he were ask-

ed the question, Judge,

8

‘Was there a tee shirt found, Size 38-40 in your

Suitcase?”

he is not going to lie under oath. He is going to say:

“Yes, there was.”

THE COURT: Fine. Then, that takes care of it.

MR. McCAIN: He is not going to lie under oath. |

can guarantee that. Not with me representing him,

he won't.

THE COURT: Well, we will soon find out, because

| guess he will be asked.

MR. McCAIN: | will guarantee that he will say, he

will, if he is asked that question, and he is under

oath, and he is required to answer that question

because of a ruling by the Court, then he will

answer:

“Yes, there was a Size 38-40 tee shirt found in the

luggage,”

in his luggage.

THE COURT: Portions of which had been cut out.

Patches or portions, the tail of it had been cut up

and out.

MR. McCAIN: Then, as | understand it, from your

ruling, then at that point they can put the tee shirt in

evidence against us.

THE COURT: Not if he answers truthfully.

MR. CULVERHOUSE: If he says, “‘yes’’—that’s

what | was getting at earlier—if he says:

“Yes, the tee shirt was found,”’ my next question, |

would proffer, would be:

“Did you tell Agent Martinez on the 3rd of Oc-

tober that that tee shirt belonged to Mr. McLeroth?”

If he says, “Yes” —

MR. McCAIN: He will say, “Yes.”

MR. CULVERHOUSE: | cannot go any further.

THE COURT: Yes. That’s all we are talking about.

Petitioner Havens ultimately testified that he had not

9

known that the suppressed evidence had been in his lug-

gage until the day following his arrest (Tr. 405-407).

At the conclusion of the conference, the trial record

shows the following exchange between defense counsel

and the trial judge:

“MR. McCAIN: May | now have an opportunity to

advise my client?

THE COURT: No, sir. You may not. You may not

at all. The whole purpose of this is not for you to go

out and coach your client as to what to say.

MR. McCAIN: | am not going to tell him what to

say.

THE COURT: Well, that’s what you just asked me

permission to do. That’s why | asked him to step

out, so he would not hear this discussion.

The whole purpose is searching for the truth. |

assume he is going to tell the truth when he comes

back in. If he does that, that’s the end of it.

lf he does not, why — all right, bring the jury in.

Get the jury and then we will ask the witness to

come in.

Give him the tee shirt back. It is marked for Iden-

tification. You may leave that in here. Keep it right

in here in your briefcase.

MR. McCAIN: May | get my client?

THE COURT: Would you wait just a minute? The

Marshall will get him in just a second.

Pat, would you go out and ask Mr. Havens to step

in, please, and take a seat in the witness box.

There will be no conversation with the witness.”

(Tr.R. 401-403)

The above reflects the apparent fear of the judge that

defense counsel might urge his client to te// the truth,

thus possibly spoiling the proposed use of supposed ‘’im-

peachment evidence”.

10

ARGUMENT

This Court has spoken clearly on the subject of forbid-

ding communication between a defendant and his

lawyer during trial.

In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330

(1976), the trial court had forbidden communication bet-

ween the defendant and his lawyer during an overnight

recess. The Court of Appeals for the Fifth Circuit had

then held that the defendant’s failure to claim any pre-

judice resulting from his inability to consult with

counsel during the recess was fatal to his appeal.

On certiorari, the Supreme Court reversed and

remanded. In an opinion by Justice Burger, C.J., express-

ing the unanimous view of the eight participating

members of the Court, it was held that any conflict bet-

ween the defendant’s right to consult with his attorney

during the overnight recess, and the prosecutor's desire

to cross examine the defendant without the intervention

of defendant’s counsel, and the risk of improper

“coaching” must, under the Sixth Amendment, be

resolved in favor of the right to the assistance and

guidance of counsel.

In a separate opinion by Justice Marshall, concurred

in by Justice Brennan, the following was stated:

“The Court holds that the fear of unethical con-

duct is not a sufficient ground for an order barring

overnight communication between a defendant and

his attorney, and the same would hold true, | take it,

for an order barring consultation between a defen-

dant and his attorney at any time before or during

the trial. If our adversary system is to function ac-

cording to design, we must assume that an attorney

will observe his responsibility to the legal system, as

well as to his client. | find it difficult to conceive of

any circumstances that would justify a court's

11

limiting the attorney’s opportunity to serve his

client because of fear that he may disserve the

system by violating accepted ethical standards.”

Citing the Geders case, the Court of Appeals for the

Sixth Circuit dealt with a prohibition of communication

between defendant and his lawyer during a one hour

recess as follows:

“In the absence of extraordinary circumstances

which do not appear in the record, it is an abuse of

discretion and a violation of the right of a defen-

dant to assistance of counsel for a trial court to

direct that a defendant have no communication

with his counsel during a criminal trial.”

United States v. Bryant, 545 F.2d 1035 (1976)

See also United States v. Allen, 542 F.2d 630 (1976)

where the Court, referring to recesses of 20 minutes and

of ‘but a minute” said:

“We agree and hold that a restriction on defen-

dant’s right to counsel with his attorney during a

brief routine recess is constitutionally impermissi-

ble.”’

In Glasser v. United States, 315 U.S. at 76, the Court

said,

“The right to have the assistance of counsel is too

fundamental and absolute to allow courts to in-

dulge in nice calculations as to the amount of pre-

judice arising from its denial.”

The Government, by its brief in the Court of Appeals,

at page 22, apparently contends that the trial court can

prohibit any communication between counsel and

defendant, provided that a recess has not been taken. It

should be borne in mind that the petitioner, at the time

of the prohibition complained of, was not on the witness

stand. He was not even in the courtroom!

Curiously, the Government also cited the Geders case

to support the trial court’s ruling, stating that the Court

in Geders suggested that the trial court may direct that

12

the examination of the witness continue uninterrupted

until completed. In the instant case, as noted above, the

interruption had occurred, and the defendant was not

even present in the room.

The suggestion may be made that the powerful man-

date of the Sixth Amendment to the United States Con-

stitution, as well as the unanimous decision of this Court

in Geders, may somehow be disregarded if the truth

seeking process is advanced by the trial court’s action.

This suggestion is clearly not in the spirit of Geders,

which held the constitutional right so essential and basic

that no prejudice need be shown when the denial, as in

the present case, had been clearly established.

Moreover, in this case, the truth seeking process suf-

fers a bizarre distortion, when most certainly the trial

court’s only fear was that the petitioner might be urged

to tell what the judge perceived to be the truth.

The petitioner was not physically on the stand (or

even in the courtroom) and he could not have been inter-

rogated until the jury reconvened and he resumed the

stand. Under these circumstances it is submitted that a

violation of his rights under the Sixth Amendment to the

United States Constitution is impermissible.

CONCLUSION

It is respectfully submitted that the petition for writ of

certiorari should be granted.

WILLIAM C. LEE

Attorney for petitioner

803 South Calhoun Street

900 Inland Building

Fort Wayne, Indiana 46802

Telephone 219-423-1311

December, 1980

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APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

v.

J. Lee HAVENS, Defendant-Appellant.

No. 78-5411

United States Court of Appeals,

Fifth Circuit.

Sept. 17, 1980.

Appeal from the United States District Court for the

Southern District of Florida; James Lawrence King, Judge.

ON REMAND FROM THE SUPREME COURT OF THE

UNITED STATES

Before WISDOM, GOLDBERG, and VANCE, Circuit

Judges.

PER CURIAM:

Pursuant to the judgment of the Supreme Court, —

U.S. —, 100 S.Ct. 1912, 64 L.Ed.2d 599, of the United

States reversing the decision of this court, 592 F.2d 848,

and remanding this case for further proceedings, the

judgment of conviction as entered by the l'nited States

District Court for the Southern District of Florida is

AFFIRMED.

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 78-5411

14

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

J). LEE HAVENS,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(October 24, 1980)

Before WISDOM, GOLDBERG and VANCE, Circuit Judges.

PER CURIAM:

IT 1S ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

/s/Robert A. Vance

United States Circuit Judge

APPENDIX C

(Excerpt from page 37 of petitioner's criginal brief and

argument filed with the United States Court of Appeals

for the Fifth Circuit, on appeal from a judgment entered

in the United States District Court for the Southern

District of Florida.)

3. The court violated appellant’s right to counsel

under the Sixth Amendment to the United States

Constitution when it banished appellant from the

courtroom during trial and refused to permit

defense counsel to speak with or go to him.