Supplemental Brief — Havens v. United States

Office-Supreme Court, U.S.

, iL:

FEB 26 1981

ALEXANCER L.. STEVAS,

CLERK

No. 80-1004

In the Supreme Court of the United States

OCTOBER TERM, 1980

J. LEE HAVENS, PETITIONER

vS.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONER

PRESENTING SUPPLEMENTAL AUTHORITY

WILLIAM C, LEE

Attorney for Petitioner

803 South Calhoun Street

900 Inland Building

Fort Wayne, Indiana 46802

(219) 423-1311

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1004

J. LEE HAVENS, PETITIONER

vs.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITE® STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONER

PRESENTING SUPPLEMENTAL AUTHORITY

TABLE OF AUTHORITIES

Page

Constitution and statutes:

Sixth Amendment to United States Constitution. . 1, 2,3

Par iedu ae eras, op 1,2

Cases:

United States v. Conway, 632 F.2d641......_. 22

Geders v. United States,425U.S.80 .......... 1

_ PREVIOUS PAGE WAS BLANK

SUPPLEMENTAL AUTHORITY

Pursuant to Rule 22.6 of this Court, Petitioner, J. Lee

Havens, herewith directs this Court’s attention to United States

vs. Conway, 632 F. 2d 641 (1980), decided by the Court of

Appeals for the Fifth Circuit on December 11, 1980, and thus,

not available at the time of Petitioner's application, herein, for

a Writ of Certiorari, which application is now pending.

ARGUMENT

In United States vs. Conway, supra, a criminal defendant,

convicted of conspiracy to import cocaine in violation of 21

U.S.C. 963, alleged that he was denied the effective assistance

of counsel, in violation of the Sixth Amendment. Specifically,

the defendant cited the trial court’s order to him not to discuss

the case with his attorney during a lunch break, which lunch

break interrupted his cross-examination. Citing Gedders vs.

United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592

(1976), the Fifth Circuit agreed, reversed the conviction, and

held as follows:

“Accordingly, we hold that depriving a criminal defen-

dant of the right to consult with counsel during court

recesses -- regardiess of how brief the recesses may be --

violates the constitutional right to effective assistance of

counsel.” 632 F. 2d at 645.

In essence, Conway stands for the proposition that the

Sixth Amendment right to the effective assistance of counsel

arises during any formal interruption (no matter how brief)

in a criminal defendant's cross-examination. When such an

interruption occurs, the Sixth Amendment bars a trial court --

even under the rubric of prevention of witness ‘‘coaching”’ --

from erecting any barrier to the constitutional right of a

criminal defendant and his lawyer to freely consult. Thus, in

Conway, the trial court’s prohibition of attorney-client consul-

tation during a luncheon interruption in the defendant's cross-

examination was held to be reversible error.

As compared to the case at bar, the Conway case presents

virtually identical facts. Both are decisions of the Court of

Appeals for the Fifth Circuit, albeit by different panels.' Both

involve convictions under 21 U.S.C. 963. Both involve trial

court prohibition of attorney-defendant consultation during a

formal interruption of the defendant's cross-examination,

allegedly to prevent witness ‘‘coaching”’.

True, in Conway that prohibition was directed to the

criminal defendant; whereas, in the case at bar, that prohibi-

tion had defense counsel as its target. This is, however, a dif-

ference of surface, not of substance. The Sixth Amendment

must protect both defendant and defense counsel, if it be not

an illusory promise.

True, in Conway that interruption was a break for lunch;

whereas, in the case at bar, that interruption was a colloquy --

in the jury’s absence and with the defendant, petitioner herein,

excused from the witness stand and banished from the court

"Under Rule 17.1(a) of this Court, conflicting opinions, on the same

matter, by Courts of Appeals are a consideration in granting writs of

certiorari. Such conflict exists, here within a Circuit, between the

Conway decision and the case at bar.

room -- between the prosecutor, the judge, the defense coun-

sel and a prosecution witness. This is, however, again a dif-

ference of surface, not of substance. The Sixth Amendment

guarantee to the effective assistance of counsel must attach to

any formal interruption -- no matter how brief, no matter how

labelled -- in a criminal defendant's cross-examination, if it be

not an illusory promise. All that is required, under the Sixth

Amendment, is a formal interruption. That requirement is met

in Conway by a lunch “‘recess’’. Likewise, that requirement is

met in the case at bar when the trial court excused the jury,

and excused the defendant (petitioner herein) from the wit-

ness stand and banished him from the court room. This se-

quence of events, which the government is now pleased to call

“a bench conference” (Ans. 5), was, in fact, tantamount to a

recess, whatever it be labelled. It was, assuredly, a formal

interruption in petitioner’s cross-examination.

Accordingly, a formal interruption of the petitioner's cross-

examination having occurred in the case at bar, as above noted,

the trial court’s interdiction of any consultation between

petitioner and his defense counsel, before the petitioner re-

sumed the stand and before the jury was recalled, is an imper-

missible violation of petitioner's right, under the Sixth Amend-

ment, to freely consult with counsel.

CONCLUSION

It is, again, respectfully submitted that the Petition for a

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

February 1981