Petition — Briguglio v. United States

Nat. supreme Court, U.S,

80-12 18 ie FILED

JAN 16 9m

In The MEOWNEL RODAR, JR, CLR

Siprene Cot of the United States

OCTOBER TERM, 1980

UNITED STATES OF AMERICA

VS.

GABRIEL BRIGUGLIO,

PETITIONER.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

STEVEN H. GIFIS

ALAN DEXTER BOWMAN

ATTORNEYS FOR PETITIONER

ONE PALMER SQUARE

PRINCETON, NEW JERSEY 08540

(609) 921-0335

THE SUPERIOR APPELLATE PRINTING COMPANY

P.O. BOX 363 AREA CODE 609

CRANBURY, N.J. 08512 443-4202

2.

Questions Presented

Whether an Attorney's Knowing Status As The

Target Of A Federal Grand Jury Investigation

In The Same Federal District As The Criminal

Trial Is An Actual Conflict Which Must Be

Disclosed To The Client And Whether Affirma-

tive Concealment Of The Conflict Is A Per Se

Violation Of Petitioner's Fifth Amendment

Right To Due Process Because Of Counsel's

Status As An Officer Of The Court And Sixth

Amendment Rights To Intelligent Selection Of

Counsel And Effective Assistance Of Counsel.

Whether In Light Of Cuyler v. Sullivan, a

Multiple Representation Case, A Criminal De-

fendant Seeking A New Trial On Appeal Be-

cause Of His Trial Counsel's Previously Un-

objected To, Concealed Personal Conflict Must

Demonstrate That The Conflict Adversely Af-

fected The Representation.

Whether A Prosecutor Has A Duty To Disclose

To The Court That Trial Counse! !s A Target

Of An Investigation By The Prosecutor's Of-

fice And Has Testified Before A Grand Jury

ii

And Concomitantly Whether The Trial Court

Upon Being Informed Has A Duty To Inquire

As To Whether The Conflict And Potential For

Intimidation Have Been Disclosed To The De-

fendant.

Whether The Pervasive Reputation Of Anthony

Provenzano Which Made It Impossible To Se-

lect A Jury In Newark, New Jersey Composed

Of Persons Who Were Not Familiar With Him

Required That Petitioner, Im Order To Ensure

Fair Consideration Of The Slight- Evidence

Against Him, Be Severed Or A Change Of

Venue Ordered.

Whether A Remand Is Required To Ascertain

Whether A Visit By An Unauthorized Party To

A Juror In Violation Of A Sequestration Or-

der, Which Resulted In Distribution Of Mari-

juana, To The Juror, Also Resulted In Other

Conduct By The Unauthorized Visitor Which

Had The Capacity To Influence The Juror's

Deliberation Of The Case.

TABLE OF CONTENTS

PART HOTE PROMEIIIOU ccc cecepebescesdiéues

Fee: OF SBE, eles Fo ctldsscceagndosbeee

Fe OF, PROF I TISS | vce cis oncicegteeseswas

Be lKign: Uéion Pe rey et ees were Kaew

De PI CLIGIE SiS dae tN peewee ef ov ecsceavccoes

Constitutional, Statutory and

Rule Provisions Involved ...cccccccccce

DiBIaMent OF The COGS i weccctecvsvdeeser

i. Pactual Background acsciccrecvccece

A. The Criminal Conspiracy And its

AUG GORE ee satacdeccreewesece

B. The Concealed Conflict Of Trial

Counsel - The Facts Pertaining

Thereto And Resolution By The

Le SLOONES fe uk 6 eee Sa wane ee

Co tie Necessity Of A Severance Or

A Change Of Venue ....... sitdkicla ees

D. Distribution Of Marijuana To A

Juror In Violation Of The Seques-

CPOE ORF is kmewelecheecr sawn en

ii. The Jurisprudential Significance

Of The Arguments To Be Raised

Barere THis: Cael ook claws bihicone

A. The Issue As To Conflicted

COUNSG! os cvvebwsceceesoases ecccccce

B. The Issue As To Severance Or

A Change Of Venue, .cccccccccccces

iv

CONTENTS

C. The Violation Of The Sequestra-

tion Order

Reasons For Granting The Writ

POINT

i. Prior Precedent As to Conflicts ...

Introduction

CERTIORARI SHOULD’ BE

GRANTED TO RESOLVE THE

ISSUES AS TO WHETHER

AN ATTORNEY'S KNOWING

STATUS AS THE TARGET

OF A GRAND JURY INVES-

TIGATION IN THE SAME

DISTRICT AS TRIAL IS AN

ACTUAL CONFLICT WHICH

MUST BE DISCLOSED TO

THE CLIENT AND WHETHER

AFFIRMATIVE CONCEAL-

MENT OF THE ACTUAL

CONFLICT IS A PER SE

VIOLATION OF THE FIFTH

AMENDMENT RIGHT TO

DUE PROCESS AND THE

SIXTH AMENDMENT RIGHT

TO EFFECTIVE ~- ASSIST-

ANCE OF COUNSEL. THIS

COURT SHOULD ALSO DE-

TERMINE WHETHER- THE

PROSECUTOR AND THE

COURT HAVE AFFIRMATIVE

DUTIES OF INQUIRY AS

TO WHETHER THE CON-

FLICT WAS DISCLOSED IN

CIRCUMSTANCES WHERE

THEY ARE AWARE OF THE

TARGET STATUS OF ODE-

FENSE COUNSEL .....-ceeee

eeeeeveveeeveeeveeeveveeeereeeee ee

Vv

CONTENTS

The Uncertainty As To Application

Of The Principles Of Holloway and

Cuyler In Cases Involving Wholly

Personal ConmtlictS ..icacaccecseace

Trial Counsel's Failure To Advise

Petitioner That He (Counsel) Was

Under Investigation By A Federal!

Grand Jury. In The Same District

As Trial Violated Petitioner's

Right To Exercise An Intelligent

Choice In Selecting His Counsel

As An Officer Of The Court Coun-

sel's Failure To Inform Both The

Court And Appellant Of His Per-

sonal Conflict Violated Petitioner's

Fifth Amendment Right To Due

PYOCROS sei ccwcee

As A Matter Of Law An Attorney

Who Fails To Disclose An Actual

Personal Conflict Of The Sort At

Issue In The Instant Case There-

by Preciuding Any Waiver Of The

Right To Conflict-Free Counsel Is

Ineffective Within The Intendment

Of The Sixth And Fifth Amend-

a

The Record Indicates A Lack Of

Zeal On The Part Of Trial Coun-

sel And Certain Tactical Decis-

ions Which May Have Been Attri-

butable To His Inattention And

OP NORUNS a6 cece enn

Page

26

29, 30

37

41

49

’*>

|

POINT I]

POINT

Under The Circumstances Of This

vi

CONTENTS

CERTIORARI SHOULD’ BE

GRANTED TO FASHION

PRECEDENT PERTAINING

TO THE SEVERANCE AND

CHANGE OF VENUE RIGHTS

OF LITTLE KNOWN PER-

SONS WHO ARE SOUGHT TO

BE JOINTLY TRIED WITH

NOTORIOUS INDIVIDUALS

IN A JURISDICTION WHERE

iT IS IMPOSSIBLE TO SE-

LECT A JURY COMPRISED

OF INDIVIDUALS WHO ARE

NOT FAMILIAR WITH THE

NOTORIOUS

Case Petitioner Could Not With-

out Prejudice Be Jointly Tried

With Anthony Provenzano In

The V

Court.

ance Was Required

At A Minimum A Change Of Venue

SQUIFEK .eocreccccccescccvees

Was R

icimage Chosen By The

Accordingly, A Sever-

CERTIORAR| SHOULD BE

GRANTED TO RESOLVE THE

ISSUE AS TO THE SIGNIF-

ICANCE AND VIOLABILITY

OF SEQUESTRATION OR-

DERS. THE CAVALIER

TREATMENT OF THE UN-

AUTHORIZED VISIT IN

VIOLATION OF THE SE-

QUESTRATION ORDER | BY

THE LOWER COURTS DEN-

IGRATES THE PERCEIVED

IMPORTANCE OF SUCH OR-

DERS

INDIVIDUAL..

Page

51

52

56

59

vii

CONTENTS

Conclusion eeeneeee S&S 8.676. 6°90. 69 Oo & s*eeneeee oeereeeeee

APPENDIX:

APPENDIX A - Judgment Order from

the United States Court of Appeals

for the Third Circuit at Nos.

79-1933 and 79-2421 dated Novem-

ber 17. 1980 ...ccccccccvvcccecs coos

APPENDIX B - Constitution - Amend.

5 - Amendment V-Capital Crimes;

Double Jeopardy; Self-Incrimination;

Due Process; Compensation For

Property .wicctes Ovaries de eb OeKSS Hab deoe

APPENDIX B - Constitution - Amend.

6 - Amendment Vi-Jury Trial For

Crimes, And Procedural Rights .....

Page

62

la

4a

5a

'*%

viii

TABLE OF AUTHORITIES

Page

Castillo v. Estelle, 504 F.2d 1243

(5 Cir. 1974) cecccccvcccccccvsevescvees 33,47

Chapman v. California, 386 U.S. 18,43

(1967) . ccccccnces eadseUe Ges paeeee niece 37

Commonwealth v. Duffy, 394 A.2d 965

(Pa. Sup. Ct. 1978) w.ccceececceeeeeees 48

Cuyler v. Sullivan, 100 S.Ct. 1709

EIGOO be vanes ES eS Ne ee eee 10,passim

Foyworth v. Wainright, 516 F.2d 1072,

1976, 1077 (5 Cir. 1975) wscceeeeeeeees 33

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

(1942) cccvcccces Cetathee Vedat eben <ebac 19, passim

Goodson v. Peyton, 351 F.2d 905

(4 Cir. 1965) eeeeveeveeee eevee ereereeeeeeeee 47

Gray v. Estelle, 574 F.2d 209, 213

(5 Cir. 1978) wcccccccccccccvcccccsccece 34

Holloway v. Arkansas, 435 U.S. 475

(9978) wccccperccccevasccces eebeeednee cee 19,passim

In re Terkeltoub, 256 F.Supp. 683

(S.D.N.Y. 1966) wcccccccccccccscvcccoes 46

Lowery v. Cardwell, 575 F.2d 727, 731

(9 Cir. 1978) ..ccccccccceccees devessess ~ 38

MacKenna v. Ellis, 280 F.2d 592 (5 Cir.

1960), mod. 289 F.2d 928, cert. den.

368 U.S. 877 (1961) w.cceeeeeeecveeeees 33

Moore v. United States, 432 F.2d 730, 736

(3) Cir. 1970) c.coece Hihewseeeewece weeee 9,passim

Porter v. United States, 298 F.2d 461

(5 Cir. 1962) eeeeee eeeeveeeeveeeeeee eee . : 33

ix

AUTHORITIES

Page

Powell v. Alabama, 287 U.S. 45, 53

(1052) a Keune Lewbeweewdeedseesecooewcecse 29, 30, 31

Sawyer v. Brough, 358 F.2d 70, 73-74

(hi. Cled VT acon eke kiss ee phi sua tin a 0° 32

State v. Bellucci, 81 N.J. 531, 410 A.2d

666 (1980) e*eneeeneeeeeee? e*eeeeneee eeeeweeeeee? 26

Turner v. Louisiana, 379 U.S. 466

(USGS) cn cae csc peu¥ deanad Cover eaKecorcos 21,60

Woytowicz v. United States, 550 F.2d

756 (2 Cir. 1977) oeeeveeeoeeeeeeeeeeeeee 48

Zuck v. Alabama, 588 F.2d 436, 439-440

(S Cie. TOF kevsenkos brabegens pistes’ 31,passim

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

te ae | oe re Pe See 32, passim

United States v. Burton, 584 F.2d 485,

489 (D.C. Cir. 1978) cert. den. 99

S.Ct. @ (1) sisi PURe abo weeeedveces 31

United States v. Calacurio, 499 F.2d 1404

(9 Cir. 1974) *eeeoeeeeeeeeeeeeeeeeeeeeneee 45,46

United States v. Campanale, 518 F.2d 352,

359 (9 Cir. 1975) cert. den. 423

U.S. 1068 {997S) sawscsds pus eddeswewceee 53, 56

United States v. Capo, 595 F.2d 1086,

1080 (5. Cit. TOT R cd cebkewsdeccssvccas 57

United States v. Cepeda Penes, 577 F.2d

The TSF Ch-Ctrs FRR vecccccce eee esene 57,58

United States v. Crawford, 581 F.2d 489,

492 (5 Cir. 1978) wcccvcceee go eeeesebhe 52

x

AUTHORITIES

Page

United States v. DeFalco, F.2d (3 Cir.

WOOO ies 4 viva 0906 bk dpe pie haemo eensherenes 10, passim

United States v. Fannon, 491 F.2d

129, 132 (5 Cir. 1974), cert. den.

RUD Bie TONE AVEO Bika decGe keoce ny 33

United States v. Hearst, F.2d (9

Cts Te) ha bar ce mds ch vk EUR Cb eee wane 42

United States v. Hurt, 543 F.2d 162

(6.0 SAG. IFTOE vse cictae cckevrcvieeeees 48

United States v. Kidding, 560 F.2d

1303, 1310 (7 Cir. 1977), cert.

ts: FS S.Ct AT RBs et cbsesevcices 39

United States v. Knowles, 572 F.2d

BO BP TNO Sie TOTOD ee Kaved ccccaes 53

United States v. Laura, 607 F.2d

BEA BAT sy: ABTED: Cate eh ec kedeewdvceess 34,38

United States v. Mahar, 550 F.2d

1006, 2O08 46 Ges VSTFP ive oc csicvcvecs 34,35

United States v. Mardel, 431 F.Supp.

96, 100+101 (0. Ms TTF}. Sesiccicvoceces 57:

United States v. Mardian, 546 F.2d

973, 979 (D.C. Clr. 19076) ccadesecececs 52

United States ex. rel. McClindon

v. Warden, III. St. Pen., 575

FiSe. 168... 318 CF oC Aes cae > ovccece 38

United States v. Pinkey, 551 F.2d

296d AD Dies ARTE) oe cba desdend ie cticnes 38

United States v. Pomponio, 563 F.2d

659, 665 (4 Cir. 1977), cert. den.

435 u.S. 942 (1977) *eeeeeeeeneeneeneeeneee 58

xi

AUTHORITIES

Page

United States v. Sanders, 563 F.2d 379,

383 (8 Cir. 1977), cert. den. 434 U.S.

MRE RAPT Cea TERN ROKR OEE REs Rep bweaees 53

United States ex. rel. Simon v.

Murphy, 349 F.Supp. 818 (E.D. Pa.

SOE: Chen cctksbinnssaen PWaivhen.o otbibe 6 tiene 42

United States v. Smith, 550 F.2d 227,

283 (5 Cir. 1977), cert. den. 434

ae aad; SRGe eo Wites 36 0 Cede abs 0.00'se bah 53

United States ex. rel. Sullivan v.

Cuyler, 593 F.2d 512 (3 Cir. 1979) ... 13

United States v. Swinehart, 617 F.2d

Sa6— SAS US Clea). TGR cviciccdscccnuccse 12

United States v. Veloz, 421 F.Supp.

1266, 1267 (E.0. Wis. 1976) 25 pccccwepes 53

United States v. Truglio, 493 F.2d

574, 579-560 (4 Cir. 1976) wccscccccces 32

RULES CITED:

Disciplinary Rules -

EE ds Gt eee eta hebben ee 66 bas 27

DEE AUT GEE e's cohoaccdbed kécoes heeds 27

Federal Rules -

Fed. RK. Grim... Procs TA cecececccicsvece 53

OTHER AUTHORITIES CITED:

ABA, Standards Relating To A Fair

Trial And Free Press, Commentary

to: Secs. 3.2 at. 127 UVOGB) cosecvecccess 57

AUTHORITIES

Austin, Prejudice and Change of

Venue, 68 Dick. L. Rev. 401

(1964) eoeeeeneee eeeeeeeeneeve eoeeneeneeeeeeeeee

Bergen Sunday Record - November

19, 1978 issue - Four Part Series

entitled - "A Road Paved With

Corruption” ..cccccccccccccccccsccsccces

Constitution -

Fifth Amendment ...cccccccccccccecececes

Sixth AmenGment .ccccccccccceccceceses

No.

In The

Supreme Court of the United States

OCTOBER TERM, 1980

UNITED STATES OF AMERICA

VS. °

GABRIEL BRIGUGLIO,

PETITIONER.

PETITION FOR A WRif OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Third Circuit entered in

this proceeding on November 17, 1980.

aa

Opinion Below

The Judgment Order of the United States

Court of Appeals for the Third Circuit is append-_

ed to this Petition as Appendix A.

Jurisdiction

The jurisdiction of the Supreme Court to

review the Final Judgment of the United States

Court of Appeals for the Third Circuit is based

on 28 U.S.C. &1254(1).

Constitutional, Statutory and

Rule Provisions Involved

Petitioner seeks review of issues of law

arising under the Fifth and Sixth Amendments to

the United States Constitution. They are append-

ed to this Petition as. Appendix B.

iz.

Statement Of The Case

\!

Factual Background

A. The Criminal Conspiracy And Its Alleged Ob-

ject

Petitioner Gabriel Briguglio was_ indicted

and convicted of alleged involvement in a racke-

teering conspiracy and racketeering. Trial was

conducted in the Federal District Court situated

in Newark, New Jersey. Petitioner was jointly

tried with Anthony Provenzano, Thomas Andretta

and Steven Andretta. Provenzano is an individual

of great notoriety on the Eastern seaboard be-

cause of continuous and protracted media atten-

tion to his alleged strength within the framework

of organized crime. According to Ralph Picardo,

the government's major witness, Provenzano di-

rected the racketeering enterprise through in-

structions provided to Salvatore Briguglio.

Through the use of Salvatore Briguglio as his su-

pervisor, Provenzano allegedly was able to avoid

direct involvement in the activities of the enter-

prise.

ecillbes

The object of the alleged criminal enter-

prise was the sale of labor peace. Provenzano,

claimed Picardo, was capable of exerting control

over the entire network of East Coast Teamster's

Unions. On the basis of Provenzano's power and

influence, Picardo was capable of offering labor

peace to particular business concerns in return

for a price. Picardo received his’ instructions

from Salvatore Briguglio and reported directly to

him within the chain of command of the enter-

prise. Salvatore Briguglio was petitioner's bro-

ther. At the time of trial, Salvatore Brigugiio

was deceased. The particular conduct in question

at trial was the sale of labor peace to Seatrain

Steamship Lines and its subsidiary, Interocean.

Labor peace enables a company to avoid the cost

of strikes and in many cases to use non-union

drivers who will work for lower wages and do not

require payments into union welfare and pension

funds. Such a transaction was allegedly consum-

mated providing the enterprise with illicit pro-

fits.

The alleged participation of petitioner in

the enterprise was capsulized at the conclusion

ihe

of Picardo's testimony. Picardo testified that

petitioner received a smal} amount of money. from

his brother (Salvatore Briguglio) for delivery of

messages. This alleged messenger function was

bolstered by the admission of letters written by -

Salvatore Briguglio to Picardo. The letters indi-

cated that petitioner transmitted messages to his

brother from Picardo. Picardo did not testify as

to the contents of any of the messages nor did

the government produce any evidence indicating

their substance. None of the evidence relating to

that function, therefore, indicated that petitioner

had knowledge of unlawful acts. | Evidence was

also adduced that petitioner was present amongst

the group on various occasions. In short, the

evidence against petitioner was scant and incor-

Ne

Consistent with petitioner's having carried

messages to and from his brother, there was also

testimony indicating that his fingerprints were on

two checks issued in 1970. There was no evidence

that he knew that the checks were issued for or

in connection with an unlawful purpose. In this

context, we emphasize that both checks contained

notations indicating that they were issued for

wholly legal purposes.

°%

alias

porated no clear indication that petitioner’ was

knowledgeable as to the workings or purpose of

the enterprise. The most damaging evidence was

that of association. Petitioner's brother was a

major figure in the enterprise and petitioner was

admittedly an acquaintance of other members of

it. The association with the others stemmed from

petitioner's legitimate employment with organized

labor and not from any involvement in crime. At

the time of trial, petitioner was vice-president of

a Teamster's Local. The Local with which he was

involved gave no assistance to the enterprise.

B. The Concealed Conflict Of Trial Counsel - The

Facts Pertaining Thereto and Resolution By

The Lower Courts.

In February of 1979, petitioner retained

counsel, Thomas DiBiasi, to defend him in the

trial of the instant offenses. Subsequent to his

acceptance of the retainer and several months

prior to trial, DiBiasi became aware that he was

the target of an ongoing grand jury investigation

in the same federal district as that in which pe-

tioner's trial was to occur. DiBiasi was issued

a subpoena duces tecum commanding that he ap-

=

= »

pear to testify on March 20, 1979. He obeyed the

subpoena and testified before the grand jury. The

tenor of the proceeding made it clear to him that

he would be indicted. On May 7, 1979 petitioner's

trial commenced. DiBiasi, while acting as peti-

tioner's counsel at no ‘time disclosed to petitioner

that he was the target of a grand jury investiga-

tion being conducted by the same United States

Attorney's office that was prosecuting petitioner's

matter. Moreover, petitioner did not learn of the

conflict from any other source.

During trial, however, it was nonetheless

clear to petitioner and his wife, who was present

throughout the trial, that counsel was not exhi-

biting zeal for petitioner's cause and appeared

to be distracted and unable to concentrate. In a

conversation with petitioner's wife, counsel made

veiled comments pertinent to his personal problems

but immediately retracted his statements as being

jocular. He thus made affirmative efforts to con-

ceal his conflict when questioned concerning his

inattentiveness. Trial concluded on May 30, 1979.

On August 14, 1!979 defense counsel was formally

indicted by the grand jury before which he pre-

-8-

viously testified. Petitioner learned of counsel's

indictment through newspaper accounts of it. The

reasons for counsel's inattentiveness and lack of

zeal at trial were now apparent. Subsequently,

petitioner also learned that defense counsel was

severed from his codefendants for trial purposes.

Trial proceeded and the codefendants were con-

victed. Significantly, petitioner's mame was men-

tioned at the trial. Thereafter, defense counsel

entered pleas of guilty and was scheduled to be

sentenced in December of 1980. It can fairly be

assumed from that defense counsel during peti-

tioner's trial was aware that petitioner was to

be mentioned at the trial of the offenses for

which counsel was indicted and that his associa-

tion as counsel to petitioner was potentially pre-

judicial to him. He nonetheless continued repre-

sentation of the cause and made no disclosures

to petitioner who was wholly unaware of the in-

vestigation and counsel's status of it.

Petitioner moved for a new trial asserting

as ground counsel's undisclosed conflict of in-

terest. The trial court refused to grant petitioner

an evidentiary hearing stating that counsel's

_

performance at trial, as observed by the court,

comported with the standard set forth in Moore v.

United States, 432 F.2d 730, 736 (3 Cir. 1970).

The trial court misperceived the nature of peti-

tioner's claim in utilizing Moore as the standard

of review. The Moore standard has no applica-

bility to conitlict cases. Moore merely embodies the

standard established by the Third Circuit for re-

view of ineffective assistance of counsel claims

in the context of the quality of conflict free

representation. As will be discussed, infra, it is

well-established that the analytical bases of con-

flict cases transcend ordinary notions of the com-

petency of counsel's actual performance at trial.

It bears observation that as part of his motion,

petitioner presented to the trial court an affida-

vit of defense counsel indicating that counsel was

unable to give his undivided loyalty and atten-

tion to petitioner's trial because of his personal

problems.

Petitioner appealed denial! of his motion for

a new trial and his convictions to the Third Cir-

cuit. Petitioner argued that he was entitled to a

new trial because of the adverse affect of coun-

~16~

sel's actual conflict of interest on the represen-

tation which he received and because counsel's

failure to disclose an actual conflict of the sort

which a criminal defendant cannot independently

perceive is a per se violation of the Sixth

Amendment right to intelligently select counsel.

The Third Circuit, in a judgment order, affirmed

denial of petitioner's motion for a new trial and

his convictions. The order of the Court, however,

specifically stated that the Court's failure to re-

solve petitioner's claim pertaining to violation of

his right to conflict-free counsel on direct appeal

was without prejudice to any claim which peti-

tioner might raise collaterally.

In regard to the disposition fashioned by

the Third Circuit, it bears note at this juncture

that in the interim between denia! of petitioner's

motion for a new trial and the filing of his

appeal, decisions of this Court and the Third

fcircuit were issued impacting upon the question

of conflicted counsel. As will be discussed, infra,

both of those opinions, Cuyler v. Sullivan, 100

S.Ct. 1709 (1980) and United States v. DeFalco,

F.2d (3 Cir. 1979), (Decided Dec. 28, 1979), sup-

al te

port petitioner's claim for relief and were ana-

lyzed in petitioner's brief to the Third Circuit.

Unlike Moore, upon which the trial court relied,

Cuyler and DeFalco are conflict cases and analyze

the Sixth Amendment right to effective counsel in

this context. Sullivan analyzes unobjected to con-

flicts in the context of multiple representation

cases. DeFalco specifically reviews the impact of

counsel's undisclosed personal conflict upon the

representation received by in a criminal defen-

dant. The conflict in DeFalco, like that in the

instant case, was one which provided the prose-

cutor leverage upon counsel.

In refusing to reach the merits of peti-

tioner's conflict claim despite its clear merit in

light of Cuyler and the court's own opinion in

DeFalico, the Third Circuit at argument expressed

a concern that there had been no evidentiary

hearing conducted pertaining to the conflict of

counsel. It was, therefore, of the view that a

factual record developed in the context of a hear-

ing was a predicate to informed resolution of pe-

titioner's claim. Counsel for petitioner indicated

to the court that a petition for collateral relief

-*%

=} =

(Sec. 2255) would be required to be presented to

the same judge who denied petitioner's motion for

a new trial without a hearing. Further, in a

post-argument brief, petitioner argued that there

was a sufficient factual record upon which a de-

cision on the merits could be made.2 The sworn

affidavits of petitioner and defense counsel estab-

lished that petitioner was not informed of coun-

sel's conflict as the target of an ongoing grand

jury investigation and that the actual conflict

adversely affected the quality of the representa-

tion which. petitioner received. Further, the

government did not in its Briefs refute that the

prosecutor at trial was indeed aware of counsel's

dilemma and, therefore, had the capacity to exert

subtle forms of influence and intimidation upon

him. The government also failed to volunteer any

insight as to whether counsel was approached for

his cooperation during the pendency of the inves-

2

Petitioner also relief upon an opinion of the

Third Circuit which states that where a defendant

has filed a motion for a new trial, which was

denied without a hearing, he should not be re-

quired to return to the same court to raise the

identical issue. See United States v. Swinehart,

617 F.2d 336, 340 (3 Cir. 1980).

of} 3a

tigation. It bears emphasis that the trial prose-

cutor was aware that defense counsel was the

target of an ongoing grand jury investigation

being conducted by his office. Counsel's conflict

was clearly the sort which must be disclosed to

the client and clearly adversely affects. the

representation. Petitioner submitted to the Third

Circuit that since the facts as represented before

the Court would not be altered, a collateral pro-

ceeding would in effect merely require that the

District Court render a non-binding opinion as to

the impact of this Court's opinion in Cuyler v.

Sullivan, supra on the Third Circuit's opinion in

United States v. DeFaico, supra. > The Third Circuit

nevertheless relegated petitioner to a collateral

proceeding.

C. The Necessity Of A Severance Or A Change Of

Venue

¥

As will be discussed, infra, DeFalco embraced

the opinion of the lower court in Sullivan which

stated that the mere potential for conflicting loy-

alties was sufficient to render the representation

ineffective. See United States ex rel. Sullivan v.

Cuyler, 593 F.2d 512 (3 Cir. 1979). This Court's

opinion in Cuyler reversed that opinion in the

context of unobjected to conflicts’ in multiple

representation cases. Cuyler requires a showing

of an adverse affect on the representation. That

adverse affect need not result in prejudice.

-14-

Codefendant Anthony Provenzano, as pre-

viously noted, is reputed to be the most powerful

organized crime figure on the Eastern seaboard

in the context of the ability to exert influence on

organized labor. The trial was focused upon his

notoriety and alleged capacity to contro! each of

the East Coast Teamster's Unions. The govern-

ment's major witness, Raiph Picardo, even

claimed at trial that Provenzano could influence

the Longshoremans' Unions. By the court's own

admission, it was impossible to select a jury in

the Newark area composed of individuals who were

not aware of Provenzano's alleged domination of

the unions and who would not focus their atten-

tion on Provenzano's exploits thereby failing to

give fair consideration to the evidence against

petitioner. Petitioner unsuccessfully urged his

concern both prior to trial and on appeal to the

Third Circuit that he could not receive a fair

trial in Newark, New Jersey if jointly tried with

Provenzano. The basis for the concern was that

his conceded familiarity with Provenzano, and his

brother's close ties to Provenzano, would obscure

the paucity of evidence against him. Indeed, evi-

at8.

dence as to association, coupled with a jury

saturated with individuals knowledgeable as to

Provenzano's background, resulted in an un-

founded conviction.

D. Distribution Of Marijuana To A Juror In Vio-

lation Of The Sequestration Order.

Marijuana was distributed to a juror by

an individual who was not authorized by the se-

questration order to visit the juror. Petitioner

joined in a new trial motion challenging the use

of marijuana by the juror in concert with another

juror and its affect on them. The motion also

questioned the actions of the trial court and the

government in assuring the jurors that they and

the distributor of the illicit drug would not be

prosecuted. Petitioner argued to the trial court

that the jurors developed a sense of obligation

to the government as a result of the grant of

transactional immunity. An unfavorable verdict,

in the minds of the jurors, might well have re-

sulted in retraction of the immunity. At the argu-

ment of the motion, the trial court ruled that the

distribution and use of the marijuana and the

corresponding grant of immunity were harmiess.

=t6-

The court improperly based its decision on an

erroneous finding by it that the distributor of the

marijuana was an authorized visitor within the

terms of the sequestration order. Petitioner raised

the arguments as to the perceived obligation to

the government of the jurors because of the grant

of immunity and the unauthorized nature of the

visit in his appeal to the Third Circuit. With re-

spect to the latter, petitioner argued that, be-

cause the visit was unauthorized, the visitor was

not informed that he should not discuss the case

or otherwise engage in conduct which might influ-

ence the juror's consideration of the cause. The

visitor might therefore have erigaged in such con-

duct rendering the trial unfair. The Third Circuit

found no merit in this argument.

The Jurisprudential Significance Of The Argu-

ments To Be Raised Before This Court

Petitioner has selected three issues to be

raised before this Court. Those issues relate to:

(1) the failure of counsel and/or prosecutor to

disclose to petitioner that defense counsel was a

.

target of a Federal Grand Jury investigation in

wtFe

the same Federal district as the trial; (2) the

failure to grant a severance or a change of

venue under the circumstances of this case and

(3) the violation of the sequestration order which

resulted in distribution of marijuana by an un-

authorized visitor to a juror and perhaps in

other improper influence upon the juror affecting

her impartiality in the deliberations. We believe

that each of these issues has national signifi-

cance in the context of the development of fair

and uniform trial procedures designed to ensure

the constitutional integrity of verdicts in criminal

cases. These claims are outlined below and de-

tailed at length in the reasons for granting the

writ.

A. The Issue As To Conflicted Counsel

As is demonstrated by the facts of the in-

stant matter, there exists a precedential void re-

specting the disclosure obligations of the criminal

bar where a member thereof becomes aware that

he is a target of a grand jury investigation and,

therefore, under an investigation by a law en-

forcement agency with which he may be required

to deal on behalf of a client. The majority of

’*%

-. *

-18-

cases analyzing conflicts of interest have arisen

in the context of multiple representation cases or

in circumstances where the personal conflict of

the attorney stems from a pecuniary interest in

the ultimate disposition of the matter. Guidance

to the bar as to the level of constitutionally re-

quired disclosure, where an attorney is called

upon to try a criminal cause in a federal! district

in which he is the Knowing target of a grand

jury investigation, is an issue of national

significance. This question should not be resolved

by experimentation. A criminal defendant has no

means to perceive such a conflict absent volun-

tary disclosure by counsel. Since "target status"

has potentially grave consequences, it clearly has

the capacity to render an advocate ineffective

because of his concern for his personal interest.

It also raises the spectre of improper influence

and intimidation by the prosecutor. Absent disclo-

sure to the client and a knowing decision to pro-

ceed, which would effect a waiver of the right to

conflict-free counsel, the air of uncertainty as to

the loyalty of counsel renders the trial suspect

and casts a poll over the integrity of the pro-

wIGn

ceeding. Because a criminal defendant will not

discover the ccnflict until his cause has been

tried, trials may be nullified because no clear

rule of disclosure has been fashioned.

As importantly, this Court should fashion

a rule of conduct pertaining to: the obligations “

any prosecutorial agency where it is actively in-

vestigating an attorney who is involved in the

trial of a criminal matter which falls within the

jurisdiction of the agency. In this regard, a

cogent interpretation by this Court of the general

principles articulated in Holloway v. Arkansas,

435 U.S. 475 (1978) and Glasser v. United

States, 315 U.S. 60 (1942) and applied in Cuyler

v. Sullivan, supra, as those principles pertain

to the instant circumstances will provide clarity

to an unsettled area of the law relating to con-

flicted counsel. In Sullivan, supra, the inquiry

obligations of the trial court and its general

supervisory responsibilities in the context of mul-

tiple representation cases was settied. Suilivan

also answered the issue as to the level of preju-

dice eine to underpin the granting of a new

trial on appeal where the criminal defendant fails

a.

to object to a conflict stemming from multiple

representation at trial. The principles of analysis

in Holloway and Glasser as evolved in Sullivan

are ripe for application to conflicts of the type

in the instant case.

B. The tssue As To Severance Or A Change Of

Venue

Persons in petitioner's position, who con-

front joint trial with an individual of great

negative reknown in a particular jurisdiction, are

provided no protection within prevailing jurispru-

dence relating to severance and change of venue.

With particular regard to petitioner, the court,

like the jurors who were all preoccupied with the

presence at trial of Provenzano, did not perceive

the danger to petitioner of improper conviction on

the basis of association. The evidence against

petitioner was wholly inconclusive and the link

between trial and conviction was provided exclu-

sively by his admitted familiarity with Proven-

zano. This Court must issue a statement which

will mandate recognition of the fair trial rights

of the little man who is sought to be tried with

an individual whose shadow at trial will obscure

wittas

adequate consideration of the evidence against

him. Such an individual's rights may not be dis-

regarded in the zealous effort to bring to justice

the celebrity object of the prosecution. Al! tao

often individuals are wrongfully injured because

of associations.

C. The Violation Of The Sequestration Order

Our system of justice clearly cannot con-

done the cavalier treatment of the violation of the

sequestration order by the lower courts. The un-

authorized visitor distributed an illicit substance

to a juror and might well have discussed the

case. At a minimum, an evidentiary hearing was

required to determine whether any such discus-

sions occurred. The lower courts ignored this

critical element of petitioner's right to a fair

trial. See Turner v. Louisiana, 379 U.S. 466

(1965).

~22-

Reasons For Granting The Writ

Point |

CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE ISSUES AS TO

WHETHER AN ATTORNEY'S KNOWING

STATUS AS THE TARGET OF A

GRAND JURY INVESTIGATION IN THE

SAME DISTRICT AS TRIAL IS AN

ACTUAL CONFLICT WHICH MUST BE

DISCLOSED TO THE CLIENT ANN

WHETHER AFFIRMATIVE CONCEAL.-

MENT OF THE ACTUAL CONFLICT

1S A PER SE VIOLATION OF THE

FIFTH AMENDMENT RIGHT TO DUE

PROCESS AND THE SIXTH AMEND-

MENT RIGHT TO EFFECTIVE ASSIS-

TANCE OF COUNSEL. THIS COURT

SHOULD ALSO DETERMINE WHETHER

THE PROSECUTOR AND THE COURT

HAVE AFFIRMATIVE DUTIES OF IN-

QUIRY AS TO WHETHER THE CON-

FLICT WAS DISCLOSED IN CIRCUM-

STANCES WHERE THEY ARE AWARE

OF THE TARGET STATUS OF DE-

FENSE COUNSEL.

A.

Introduction

i. Prior Precedent As To Conflicts

In Holloway v. Arkansas, 435 U.S. 475

(1978), this Court considered a case in which

appointed counsel was required over objection to

represent three criminal defendants in a joint

trial. Relying on earlier precedent established

in Glasser v. United States, 315 U.S. 60 (1942),

mS

the Holloway Court began its analysis by stating

that multiple representation is not per se viola-

tive of the constitutional guarantees of effective

assistance of counsel. That predicate statement

was based on an awareness that multiple repre-

sentation is not always a conflict. 435 U.S.

Supra at 482. However, again specificaliy rely-

ing on Glasser, the Holloway Court ruled that it

was error in the case before it to fail to appoint

separate counsel. The Holloway Court iterated

the principle of Glasser that it is a court's duty

to refrain from insisting that an attorney under-

take to concurrently represent interests which

diverge from those of his client, when the poss-

ibility of that divergence is brought home to the

court. 435 U.S. at 485. (emphasis added). In

answering the question as to whether the error

was sufficiently prejudicial to mandate reversal

of the convictions, the Holloway Court ruled that

"whenever a trial court improperly requires joint

representation over timely objection, reversal is

automatic." 435 U.S. at 488. (emphasis added).

See Glasser v. United States, 315 U.S. at 75-76.

The Holloway Court rejected any notion that the

-24-

defendant be required to demonstrate specific

prejudice. Any such rule, stated the Holloway

Court, "would not be susceptible of intelligent,

even-handed application." 435 U.S. at 490.

In Cuyler v. Sullivan, —_U.S.__, 100 S.Ct.

1709 (1980), this Court granted certiorari to con-

sider recurring issues left unresolved in Holloway

v. Arkansas, supra. Those unresolved issues

were: (1) whether a state trial judge must in-

quire into the propriety of multiple representation

even though no party lodges an objection and (2)

whether the mere possibility of a conflict of in-

terest warrants the conclusion that the defendant

was deprived of his right to counsel. With re-

spect to the first question, the Cuyler Court ruled

that a trial court's duty of inquiry is limited to

investigation "of timely objections to multiple rep-

resentation." 100 S.Ct. at 1717. The Cuyler

Court placed the ethical obligation upon defense

counsel "to avoid conflicting representation and

to advise the court promptly when a conflict of

interest arises during the course of trial." 100

S.Ct. at 1717. In this context, a trial court is,

"lTa]bsent special circumstances...[permitted] to

woo

-25-

assume that multiple representation entails no

conflict or that the lawyer and his clients know-

ingly accept such risk of conflict as may exist."

100 S.Ct. at 1717 . (emphasis added). Stated

somewhat differently, "[u]nless the trial court

Knows or reasonably should know that a particu-

lar conflict exists, the court need not initiate

an inquiry." 100 S.Ct. at 1717,

With respect to the second issue, the Cuy-

ler Court ruled that "a defendant who raised no

objection at trial must demonstrate that an actual

conflict of interest adversely affected his law-

yer's performance." 100 S.Ct. at1718. In inter-

pretating this requirement the Cuyler Court em-

phasized, consistent with its decisions in Hollo-

way and Glasser, that "a defendant who shows

that a conflict of interest actually affected the

adequacy of his representation need not demon-

Strate prejudice in order to obtain relief." 100

S.Ct. at 1719. The Cuyler Court cited as an ex-

ample of adverse affects on a defendant's repre-

sentation the failure of counsel in Glasser to

cross-examine a witness because of the conflict.

Under the rule set forth: Cuyler, there need be

-26-

no prejudice stemming from the failure.

ii

The Uncertainty As To Application Of The

Principles Of Holloway and Cuyler In

Cases Involving Wholly Personal Conflicts.

The law in the aren of conflicts, particu-

larly the decisions of this Court, have centered

upon an analysis of multiple representation cases.

Such cases are distinct from cases involving con-

flicts of a wholly personal nature. Moreover, al-

though multiple representation cases do not al-

ways pose an actual conflict of interest, the mere

fact of multiple representation alerts the court

that there is a potential for a conflict and also

in most jurisdictions requires that the attorney

disclose the potential pitfalls to the client. Mul-

tiple representation also operates as a signal to

the defendant where he perceives his interests to

be at odds with those of his codefendant. See

Cuyler v. Sullivan, supra at 1718; State v. Bell-

ucci, 81 N.J. 531, 410 A.2d 666 (1980). Contrar-

ily, where an attorney is laden with a wholly

personal conflict, there is no factor on the sur-

face to alert either the court or the defendant

that there is a potential for a division of loyal-

aifPa

ties. The responsibility for a decision as to dis-

closure, therefore, in the absence of some other

factor imparting knowledge to the court or prose-

cutor, rests entirely with the integrity of coun-

sel. In the instant case, counsel was the know-

ing target of a Federal Grand Jury investigation

in the same Federal district as trial. With the

exception of canons of ethics which are drafted

in general terms, there was no available guid-

; : ‘ . 4

ance to counsel as to his disclosure obligations.

As importantly, the prior multiple repre-

sentation decisions of this Court analyze the issue

as to the adverse affect on the representation in

terms of noticeable lapses attributable to the con-

flict. Demonstration of a noticeable adverse af-

fect obviates any need for prejudice under the

4. For example, DR2-10(B)(3) requires manda-

tory withdrawal by an attorney where "h iggy

mental or physical condition renders it unrea

sonably difficult for him to carry out the em-

ployment effectively." DR-105(A) requires that

an attorney disclose any fact to a prospective

client "if the exercise of his professional!

judgment on behalf of his client will be or

reasonably may be affected by his own...per-

sonal interests." Counsel subsequently admit-

ted that his conflict rendered him mentally un-

fit to carry out the employment effectively. He

expressed regret that he had not withdrawn

from the case.

’*»

>.

-28-

analysis set forth in Cuyler. In multiple repre-

sentation cases ordinarily it is possible to ascer-

tain from the record a sufficient distinctness be-

tween the interests of the separate defendants up-

on which findings as to adverse affects may be

based. Where the attorney's conflict and the

effects thereof are wholly internalized within him-

self and multiple defendants are not involved,

there is no basis for comparative analysis of

probable tactical bases for his actions. The

attorney's acts or omissions can only be judged

in terms of the probable effect of the conflict up-

on his ability to provide unfettered and untram-

meled representation. See Glasser v. United

States, supra at 76.

it is our considered opinion that in addit-

ion to the Sixth Amendment right to effective as-

sistance of counsel, the Fifth Amendment right to

due process is also violated when an attorney

conceals an actual conflict of interest. In his

capacity as an officer of the court, an attorney

has an obligation to inform the court of any con-

flict which has the clear potential to affect the

integrity of the proceeding. In the instant case,

at}.

both the prosecutor and defense counsel were

alerted to this clear and unmistakable possibil-

ity. Each of these parties was required to seek

the guidance of the trial court. To ensure that

this responsibility is adhered to in future cases,

this Court must fashion clear rules as to the duty

of disclosure by officers of the court and the

duty of inquiry by the court where it is informed

of a personal conflict such as that in the in-

Stant case. This Court must also issue a state-

ment as to the criminal defendant's burden of

proof on appeal in arguing that a conflict such

as that below violated his Sixth Amendment right

to effective assistance of counsel. Petitioner also

believes that this Court has recognized a Sixth

Amendment right to intelligent selection which was

violated in this case by the failure to disclose

the actual conflict. Some statement is required

as to applicability of that right, as set forth in

Powell v. Alabama, 287 U.S. 45, 53 (1932), in

circumstances where an actual persona! conflict

was concealed.

A. Trial Counsel's Failure To Advise Petitioner

That He (Counsel) Was Under Investigation

-30-

By A Federal Grand Jury In The Same Dis-

trict As Trial Violated Petitioner's Righ

Exercise An Intelligent Choice In oe Te

His Counsel.

it is critical to the right to counsel that

a criminal defendant be provided the counsel of

his choice. That choice must be predicated on

sufficient information concerning conflicts affect-

ing counsel to ensure that it is freely exercised.

Where a counsel conceals an actual conflict, and

the government's inaction facilitates the conceal-

ment, the petitioner's right to intelligent select-

ion of counsel is clearly violated. in this case,

trial counsel's status as a target of an ongoing

grand jury investigation in the same district in

which the trial was pending was an actual con-

flict which. requires a knowing and intelligent

waiver.

In Powell v. Alabama, supra, the seminal

opinion in regard to intelligent selection of coun-

sel, the United States Supreme Court stated "[i]t

is hardly necessary to say that, the right to

counsel being conceded, a defendant should be

afforded a fair opportunity to secure counsel of

his choice." Cf. United States v. Burton, 584

mt

F.2d 485, 489 (D.C. Cir. 1978), cert. den. 99

S.Ct. 89 (1978). In Powell, the facts revealed

a denial of "a reasonable time and opportunity

to secure counsel."' 287 U.S. at 71. The Powell

Court's opinion formed the foundation for the

principle of modern law that the right to effec-

tive assistance of counsel is so vital to a fair

trial that courts are compelled to examine every

potential infringement of the right with the most

exacting scrutiny. See, e.g., Zuck v. Alabama,

588 F.2d 436, 439-440 (5 Cir. 1979).

The mandate of Powell that a defendant be

provided sufficient opportunity to intelligently

select counsel stemmed from acts by the trial

judge which deprived the defendants in that case

of choice with respect to counsel. See, Powell v.

Alabama, supra. That holding was subsequently

expanded, consistent with the high-standing of

the right, to encompass acts or omissions on the

part of the attorney whom a defendant has cho-

sen. See, Glasser v. United States, 315 U.S. 60,

70 (1942). Since Powell, our courts have consis-

tently recognized that the right to intelligently

select counsel may be violated by an attorney

232.

who agrees to represent a defendant absent a full

disclosure of potential deficiencies in his abil-

ity to provide undivided attention to the defen-

dant's case. See e.g., Holloway v. Arkansas,

supra; United States v. Truglio, 493 F.2d 574,

579-580 (4 Cir. 1974); Sawyer v. Brough, 358 F.2d

70, 73-74 (4 Cir. 1966).

Our research indicates that in present

jurisprudence respecting conflicts of interest a

rule is emerging that the failure to advise a de-

fendant of an actual conflict is a per se viola-

tion of the Sixth Amendment and is’ inherently

prejudicial. United States v. Alvarez, 580 F.2d

1251 (5 Cir. 1978), is instructive in this regard.

In Alvarez, the Court distinguished actual con-

flicts from merely hypothetical or speculative con-

flicts. For example, joint representation, as no-

ted previously, is not @ per se violation of the

Sixth Amendment right to intelligent selection of

counsel because it does not necessarily entail a

conflict. 580 F.2d at 1255. And, this Court has

fashioned a presumption of disclosure in the con-

text of multiple representation cases which is

-33-

predicated on the broad awareness that the po-

tential for detriment is always present. Cuyler

v. Sullivan, supra at 1718 . See, Foxworth v.

Wainright, 516 F.2d 1072, 1076-1077 (5 Cir. 1975);

United States v. Famnon, 491 F.2d 129, 132

(5 Cir. 1974), cert. den. 419 U.S. 1012 (1974).

The Alvarez Court stated that a violation occurs

"if counsel, unknown to the accused and without

his knowledgeable assent, is in a duplicitous posit-

ion where his full talents - as a vigorous advo-

cate having the single aim of acquittal by all

fair and honorable means - are hobbled or fet-

5 This

tered or restrained." 580 F.2d at 1254.

rule is one of necessity in the context of conflicts

of the sort which are wholly personal and undis-

coverable by the client absent disclosure.

5. Cf. Castillo v. Estelle, 504 F.2d 1243 (5 Cir.

1974) (Conflict created by defense counsel's

simultaneous representation of prosecution wit-

ness); Porter v. United States, 298 F.2d 461

(5 Cir. 1962) (Conflict in defense counsel's

simultaneous representation of a potential wit-

ness who could establish the defense of en-

trapment, but who could not be called to tes-

tify without implicating himself); Mackenna v.

Ellis, 280 F.2d 592 (5 Cir. 1960), mod. 289

F.2d 928, cert. den. 368 U.S. 877 (1961)

(Conflict in defense counsel's relationship with

the district attorney). ’

pa 7 es

A paramount concern of the law in the

area of conflicts is protection of the right to in-

telligent exercise of choice. However, it should

be emphasized that in exercising the right of

choice, an accused may waive his right to con-

flict-free counsel, United States v. Alvarez, sup-

ra at 1259. Cf. Gray v. Estelle, 574 F.2d 209,

213 (5 Cir. 1978). Any such waiver must be

knowingly and intelligently made. United States

v. Mahar, 550 F.2d 1005, 1009 (5 Cir. 1977). In-

deed, it has been stated that the defendant must

affirmatively assert his or her decision to forego

conflict-free representation. Id. In Mahar, sup-

ra, the Court stated that the judge must elicit

from the defendant in narrative form a statement

indicating his awareness of an actual conflict

and comprehension of the situation and its ‘im-

plications and expressing the defendant's de-

cision whether to proceed with the conflicted

counsel or with new counsel. 550 F.2d at 1009°

6. The right to choice is of such magnitude that

a reversal may be required in the event that

the court disqualifies a conflicted counsel over

the objection of defendant. In United States

(Cont'd)

<=

Of course the analysis in Mahar assumed disclo-

sure of the conflict.

In the instant case, petitioner was wholly

unaware of trial counsel's actual conflict. Trial

counsel knew two months in advance of trial that

he was under investigation by a federal grand

jury. He at no time informed petitioner or the

court that he was in a duplicitous position as

petitioner's trial counsel and a target of an on-

going grand jury investigation. Had counsel in-

formed him, petitioner would have been able to

give his "knowledgeable assent" to counsel's con-

tinuation or retained substitute counsel. A kKnow-

ing and intelligent waiver of the right to con-

flict-free counsel would have precluded relief on

appeal. However, under the circumstances now

existing it is clear that petitioner was deprived

of the freedom to choose "an unhobbled, unfet-

tered and unrestrained" counsel. See, United

States v. Alvarez, supra.

Cont'd

v. Laura, 607 F.2d 52 (3 Cir. 1979), the trial

court had a conflict with counsel and disqualified

him. The appellate court ruled that the court

should have disqualified itself.

7S

-36-

A recent opinion of the Third Circuit sup-

ports the conclusion that trial counsel confronted

a conflict of the sort which a defendant must be

informed. in order to exercise intelligent choice.

That opinion, United States v. DeFalco, F.2d (3

Cir. 1979), (decided December 28, 1979), states

that it is essential that "the advocate owe no

fealty that conflicts, or even appears to con-

flict." (Slip Op. at 11). In DeFalco, appellate

counsel was indicted and entered into plea nego-

tiations during the pendency of the appeal. The

DeFalco Court noted that the conflict is clearly

drawn where trial emanates from the same dis-

trict in which the attorney is under investigation

by the grand jury and where the lawyer and

client are being processed by the same United

States Attorney's Office. (Slip Op. at 11). The

DeFalco Court ruled that in the context of the

conflict before it, the "potential for conflicting

loyalties" was ree to undermine the repre-

sentation.

*s We emphasize that a conflict of this nature

is heightened where it arises regarding trial

counsel. An appellate attorney has a finite

record upon which to predicate an appeal.

(cont'd)

i ee,ESEEe,,,

_=37-

: We submit that the trial counsel's fail-

ure to advise petitioner of his actual conflict

violated petitioner's right to an intelligent choice

of counsel. Under no analysis can this violation

be treated as harmless. Chapman v. California,

386 U.S. 18, 43 (1967).

B. As An Officer Of The Court Counsel's Failure

To Inform Both The Court And Appellant Of

His Personal Conflict Violated Petitioner's

Fifth Amendment Right To Due Process.

As an officer of the court, counsel had an

obligation to come forward and to inform it of

any circumstances which had the capacity to im-

Cont'd

Scrutiny of his efforts is therefore possible in a

real sense. Trial is the formation of a record

upon which the entire action will be based. The

attorney's demeanor, personality, zeal and subtle

gestures are impressions that contribute to a

finding of guilt or innocence. Contrarily, on

appeal, the law may be noted and applied by the

government (which has a duty to note prejudicial

error) or the clerks of the appellate court. In

any event, it is plain that the potential for in-

timidation of the attorney by the prosecutor and

the disabling mental affect on counsel of the

actual conflict deprived petitioner of effective

representation. See Part C, infra. It is that

potential, coupled with the severe mental and

psychological disability, which distinguish con-

flicts of this sort from multiple representation

cases. The analysis in Cuyler, thus, does not

incorporate these considerations.

2 eeEeEeorereer

-%

-38-

pair the integrity of the trial, particularly with

respect to his client. Counsel, during trial, was

the target of a grand jury investigation into

crimes of fraud, deceit and misrepresentation.

Cckinnert*d failure to apprise the court violated

petitioner's Fifth Amendment right to due process.

Counsel's failure also precluded the trial court

from performing its "duty to maintain proper

standards of performances by attorneys who are

representing defendants in criminal cases."

United States v. Pinkney, 551 F.2d 1241 (1977 ).

It is not an easy task to ‘fulfill the re-

sponsibilities which an attorney accepts when he

becomes a member of the bar and concomitantly

an officer of the court. See, e.g., Lowery v.

Cardwell, 575 F.2d 727, 731 (9 Cir. 1978) (In the

representation of a defendant the integrity of the:

judicial process requires that an attorney not

lend aid to what is believed to be a perjurious

defense); United States ex rel. McClindon v. War-

den, lil. St. Pen., 575 F.2d 108, 114 (7 Cir.

1978) (The primary responsibility for avoidance

of a professional conflict of interest rests with

the bar); United States v. Kidding, 560 F.2d

-39-

1303, 1310 (7 Cir. 1977), cert. den. 98 S.Ct. 217

(1977) (The duty of informing defendants of con-

flicts is imposed on attorneys, as officers of the

court). Nonetheless, it is essential to the entire

process that attorneys shoulder this responsibil-

ity. Where an attorney fails to come forward and

apprise the court and the detendant of the con-

flicting personal interests, the trial is fundamen-

tally unfair and violates due process. Zuck v.

Alabama, supra at 438.

Zuck v. Alabama, supra, is particularly

apposite. In Zuck, the law firm which had been

retained to represent the defendant also repre-

sented the prosecuting attorney in an unrelated

civil matter. The Zuck Court deemed this to be

an actual conflict. More importantly, the Zuck

Court found that, as an officer of the court, the

attorney's action in concealing this fact from de-

fendant was sufficient in giself to violate due

process. 588 F.2d at 439. ‘the Zuck Court also

stated that where an actual conflict exists, it

need not be shown that the divided loyalties act-

ually prejudiced the defendant in the conduct of

his trial. 588 F.2d at 439. See Part C, infra.

-40-

United States v. Alvarez, supra, is simi-

larly apposite. The Alvarez Court stated:

Where a conflict of interest has

been allowed to occur, either

through a calloused conscience of

the attorney, or ignorance of the

true facts by the Judge, the trial

is not the fair one demanded by

the Constitution. And this is

without regard to the presence or

absence of any action of a strict-

ly governmental nature which can

be ascribed to the prosecution as

the transgressing agency or impu-

ted to the trial court on tradit-

ional notions of error on_ the

judge's part. [580 F.2d at 1256]

(emphasis added).

Thus, in his capacity as an officer of the court,

it is firmly established that a private attorney

individually violates a defendant's due process

rights by failing to disclose an actual conflict.

The prosecutor contributed to the failure in this

case by failing to apprise the court.

In the instant case, trial counsel failed

to fulfill his responsibility as an officer of the

court. This failure to advise the court and

petitioner of an actual conflict of the sort which

indicates a division of loyalties rendered the

trial fundamentally unfair and violated petition-

er's due process rights requiring a4 reversal of

the convictions.

-41-

C. As A Matter Of Law An Attorney Who Fails To

Disclose An Actual Personal Conflict Of The

Sort At Issue In The Instant Case Thereby

Precluding Any Waiver Of The Right To Con-

flict-Free Counsel Is Ineffective Within The

Intendment Of The Sixth And Fifth Amend-

ments.

A criminal defendant's rights to effective

assistance of counsel as guaranteed by the Sixth

(right to counsel and a fair trial) and Fifth(due

process) Amendments are violated by an attor-

ney's failure to disclose an actual conflict of

the sort at issue in the instant case. There is

no means to assess from the record specific ad-

verse affects on the representation because those

affects stem from the internalized motivations of

counsel. Counsel, however, has conceded that he

was so emotionally disturbed that he was unable

to give his undivided attention to petitioner's

case.

Trial counsel and the prosecutor concealed

this status from petitioner and presumably from

the court for in excess of two months prior to

trial and for an additional period of months

thereafter. As a matter of law his failure to

disclose this actual conflict, to facilitate an in-

telligent scrutiny of his ability to perform both

-42-

by the court and petitioner, rendered him in-

effective as a matter of law. Petitioner had an

unequivocal right to counsel's withdrawal. In

our view, an attorney exercising "the customary

skill and knowledge which normally prevails at

the time and place" would have disclosed the

actual conflict to the court and petitioner. See,

Moore v. United States, 432 F.2d 730, 736 (3 Cir.

1970). Cf. Part B, supra. At this point it can-

not be ascertained whether the mental and psy-

chological pressures attendant to the status as

a target of a grand jury investigation in the

same district .as trial caused trial counsel to do

or omit to do some act which would have turned

the tide in petitioner's fiver. it is also im-

possible to gauge whether the prosecutor exerted

significant levels of intimidation toward counsel.

8. This case is distinct even from cases such as

United States v. Hearst, F.2d (9 Cir.

1980), where the court found entry into a book

publishing contract to be an actual conflict.

Certain tactical decisions at trial tended to

bolster the production of materials for the

book, e.g. the defendant's testimony. No

such concrete adverse affect is readily dis-

cernible in the instant case.

a

Counsel's failure to apprise petitioner precluded

assumption by him of the risk that trial counsel

could resist a division of loyalties, namely his

duty to petitioner and his concern for his own

welfare. The representation accorded to petition-

er,. thus, must be presumed as a matter of law

to have been ineffective.

As noted in United States v. DeFalco,

supra, the Third Circuit analyzed an analogous

problem in detail. The defendant in DeFalco was

aware that his appellate counsel had been indic-

ted. Counsel conveyed the impression to the de-

fendant that the indictments were without justifi-

cation and he would be vindicated. Thereafter,

counse! in DeFaico entered a plea of guilty (Slip

Op. at 3-4). As previously noted, petitioner in

the instant case had no knowledge whatsoever of

trial counsel's status. The DeFalco Court stated

that reversal is required in this setting upon a

showing of "a _ possible conflict of interest or

prejudice, however remote." (Slip Op. at 8).

The standard set forth in Moore, supra, for re-

view of the ordinary case, namely "customary

skill," was ruled to be inapplicable. We per-

ohn

ceive, nonetheless, that the instant circumstances

even transgresses the Moore standard since there

is inherent incompetency curable only by a wai-

ver of the right to conflict-free counsel.

The stricter standard applied by the De-

Faico Court was "based upon a recognition that,

in cases involving a conflict of interest, it is

often difficult or impossible to determine whether

the defendant has actually been prejudiced by

improper representation." United States v. De-

Falco, supra, slip op. at 8. The DeFalico Court

drew this standard from Holloway v. Arkansas,

435 U.S. 475, 490-491 (1978). In Holloway, prior

to Cuyler, this Court stated:

[T]he evil--it bears repeating--

is in what the advocate finds

himself compelled to refrain from

doing...It may be possible in

some cases tc identify from the

record the prejudice resulting

from an attorney's failure’ to

undertake certain trial tasks, but

even with a record of the (trial)

available it would be difficult to

judge intelligently the impact of

a conflict on the attorney's rep-

resentation of a client. [435 U.S.

at 490-491].

In applying the teaching of Holloway to

the facts in DeFalco, the DeFaico Court discussed

-45-

at length the necessity to the adversary system

that counsel be untrammeled and unimpaired.

See, Glasser v. United States, supra at 70. The

DeFalco Court stated:

if there is any constraint on

counsel's complete and exuberant

presentation, our system will fail

because the basic ingredient of

the adversary system will be

missing. The essence of the sys-

tem is that there be professional

antagonists in the legal forum,

dynamic disputants prepared to

do combat for the purpose of aid-

ing the court in its quest to do

justice, Therefore, if any cir-

cumstance impedes the unqualified

participation from any attorney,

the adjudicatory function is_ in-

hibited, ultimately threatening the

object of that function, justice in

the case at hand. (Ship Op. at

10). (emphasis added).

The Court in DeFalco recognized that per-

sonal conflicts entail more direct affects on coun-

sel. That court concluded that "inherent emotion-

al and psychological barriers created an imper-

9. In DeFaico, this Court further stated "that

the competent advocate must stand tall...and

assert his client's contentions without fear or

favor." (Slip Op. at 11). In this context, we

emphasize that one of the major dangers in

this type of case is attorney intimidation by

the prosecution. it cannot be overstated that

this was a concrete possibility in the instant

case. See United States v. Calacurio, 499

(cont'd)

e%

-46-

missible potential of preventing counsel from com-

peting vigorously with the government." (Slip

Op. at 11). The general principle in Holloway

supported this analysis and in the context of this

case survive the statements in Cuyler pertaining

to adverse affects of the representation. In the

instant circumstances, adverse affects are vir-

tually impossible to discern from the record.

United States v. Alvarez, supra, further

illuminates the philosophical! underpinning of the

ruling in DeFalco that it would be inappropriate

to require a demonstration of an adverse affect

above and beyond the existence of the unwaived

conflict. The Alvarez Court noted the incalcul-

able detriment. The Court stated:

Unlike competency of representa-

tiom, where an attorney's conduct

may fall anywhere along a con-

tinuum ranging from the incompe-

tent to the superlative, conflict-

laden representation is not SUus-_

ceptible of such fine gradations.

Such representation is invidious,

often escaping detection on re-

view, and is tantamount to a de-

nial of counsel itself. 508 F.2d

at 1256-1257 (emphasis ‘added).

Cont'd

F.2d 1404 (9 Cir. 1974); In re Terkeltoub, 256 F.

Supp. 683 (S.D.N.Y. 1966).

=, Be

Similarly, in Zuck v. Alabama, supra, it

was stated:

If such an actual conflict exists,

it need not be shown that the di-

vided loyalties actually preju-

diced the defendant in the con-

duct of his trial...When there is

a conflict of interest such as ex-

ists in this case, the prejudice

may be subtle, even unconscious.

It may elude detection on review.

A reviewing court deals with a

cold record, capable, perhaps, of

exposing gross instances of _ in-

competence but often giving no

clue to the erosion of zeal which

may ensue from divided loyalty.

Accordingly, where the conflict

is real, as it is here, a denial

of the right to effective represen-

tation exists, without a showing

of specific prejudice. [588 F.2d

at 439] (emphasis added).

See Castillo v. Estelle, supra at 1245; Goodson v.

Peyton, 351 F.2d 905 (4 Cir. 1965). Cf. Glasser

v. United States, supra.

Implicit in the foregoing is that the con-

stitutional violation in this case, and the necess-

ity of a reversal, is established without refer-

ence to discernable adverse affects such as those

which are often apparent in multiple representa-

tion cases. The rule in Cuyler therefore as to

unobjected to conflicts in multiple representation

~48-

cases is not controlling in this context. Wholly

personal, internalized conflicts are different and

require a separate analysis. The instant con-

flict is per se prejudicial. In this regard, the

clear and unmistakable potential for a division

of loyalties, absent. full disclosure to petitioner,

rendered trial counsel ineffective as a matter of

law. Adverse affects, in terms of factual expli-

cation discernible from the record, del not the

hallmark of such conflicts. There is no means

through which a reviewing court may ascertain

whether trial counsel was hampered by his con-

flicting personal interests therefore adversely

affecting the representation. See, Woytowicz v.

United States, 550 F.2d 756 (2 Cir. 1977); United

States v. Hurt, 543 F.2d 162 (D.C. Cir. 1976);

United States ex rel. Simon v. Murphy, 349 F.

Supp. 818 (E.D. Pa. 1972); Commonwealth v. Duf-

fy, 394 A.2d 965 (Pa. Sup. Ct. 1978). Similarly,

there is no basis for a finding that he was not.

Accordingly, any doubt must be resolved in favor

of petitioner. United States v. DeFalco, slip op.

at 9.

-49-

D. The Record Indicates A Lack Of Zeal On The

Part Of Trial Counsel And Certain Tactical

Decisions Which May Have Been Attributable

To His Inattention And Distraction.

Although a showing of specific adverse af-

fect is not in petitioner's view required in cases

of this type, it is instructive to set forth cer-

tain obvious omissions by trial counsel. These

omissions indicate that he lacked zeal in repre-

senting petitioner. Trial counsel failed to em-

phasize in his cross-examinetion of Ralph Picar-

do that petitioner was not associated with the

union which was allegedly controlled by the crim-

inal enterprise. Petitioner was, in fact, an of-

ficer of another union. Trial counsel elicited a

repetition of the damaging portion of the testi-

mony without any development of the ultimate ex-

culpatory fact. Moreover, counsel desisted in his

efforts to highlight that Picardo did not include

petitioner as a member of the enterprise in prev-

‘ious testimony before various grand juries, osten-

sibly in deference to off the record pressure from

the attorneys for codefendants to the effect that

this line of questioning would leave them "wide

open on redirect." Further, although the evi-

-50-

dence against petitioner was scant and ambigu-

ous, counsel did not carefully sift through the:

testimony of Picardo during his summation to the

jury. Particularly, trial counsel at no time stat-

ed that there was no evidence. that appellant had

any knowledge of activities of the criminal enter-

prise. In this context, it is highly probative

that although petitioner had no prior record

counsel advised him not to testify. Petitioner's

testimony was essential to explain the ambiguities

as to his association with codefendants and his

relationship with his brother for whom he trans-

mitted messages. Petitioner's testimony might

well have turned the tide in his favor. These

omissions are sufficient to indicate that counsel

was at a minimum impaired in his representation

of petitioner. |

-51-

Point I1

CERTIORAR! SHOULD BE GRANTED

TO FASHION PRECEDENT PERTAIN-

ING TO THE SEVERANCE AND

CHANGE OF VENUE RIGHTS OF LIT-

TLE KNOWN PERSONS WHO - ARE

SOUGHT TO BE JOINTLY TRIED

WITH NOTORIOUS INDIVIDUALS IN

A JURISDICTION WHERE IT 1S IM-

POSSIBLE TO SELECT A JURY COM-

PRISED OF INDIVIDUALS WHO ARE

NOT FAMILIAR WITH THE NOTORI-

OUS INDIVIDUAL.

The evidence against petitioner was both

slight and ambiguous. Indeed, there was no evi-

dence that he knowingly participated in the con-

spiracy. Due to this paucity of evidence there

was an extreme danger that he would be unduly

prejudiced by a joint trial with Anthony Proven-

zano. Simply put, Provenzano loomed so large in

the trial the jury was likely to be unable to give

the evidence against petitioner sufficient indivi-

dual consideration. Mere association with Proven-

zano had the capacity and did, in fact, steer the

jury toward a finding of guilt. The jury was

drawn in a vicinage where the court itself ac-

knowledged it would be impossible to select 12

jurors who were not familiar with Provenzano and

his notorious exploits. The court violated peti-

52.

tioner's right to a fair trial in denying his mo-

tion severance or a change of venue. Severance

or a change of venue was the only means to en-

sure that petitioner would not be prejudiced by

the highly publicized, anti-hero status of Proven-

zano. In denying these motions, the court pre-

cluded the possibility of selection of a jury which

would fairly consider the evidence against peti-

tioner.

A. Under The Circumstances Of This Case Peti-

tioner r Could Not Without Prejudice Be Jointly

Tried With Anthony Provenzano In The Vici-

nage ~ Chosen ‘By The Court. Accordingly, A

Severance Was Required.

A trial court's duty to sever when preju-

dice appears continues throughout trial. United

States v. Crawford, 58! F.2d 489, 492 (5 Cir.

1978). Stated somewhat differently, where a defen-

dant makes a substantial showing of possible pre-

judice in support of his pretrial motion for sever-

ance, such a showing remains a factor to be kept

in mind by the trial court as trial progresses.

United States v. Mardian, 546 F.2d 973, 979 (D.C.

Cir. 1976). The interests in expeditious adjudica-

tion of criminal cases and in judicial economy,

upon which joinder is based, at no time outweigh

-53-

the defendant's interest in a fair trial. United

States v. Veloz, 421 F.Supp. 1266, 1267 (E.D. Wis.

1976). Cf. Fed. R. Crim. Proc. 14; United States

v.- Smith, 550 F.2d 227, 283 (5 Cir. 1977), cert.

den. 434 U.S. 841 (1977) (Severance mid-trial is

appropriate measure to protect rights of defendant

in joint trial); United States v. Knowles, 572 F.2d

267, 270 (10 Cir. 1978) (Unsavory and highly-pub-

licized reputation of codefendant may be ground

for severance); United States v. Sanders, 563

F.2d 379, 383 (8 Cir. 1977), cert. den. 434 U.S.

1020 (1977) (Where evidence as to each defendant

in a conspiracy trial is mostly separate severance

mid-trial is appropriate).

The ultimate question as to severance is

whether under all the circumstances, as a prac-

tical matter, it is within the capacity of the

jurors to follow admonitory instructions and ac-

cordingly collate and appraise independent evi-

dence against each defendant solely upon that de-

fendant's own acts, statements and conduct.

United States v. Campanale, 518 F.2d 352, 359 (9

Cir. 1975), cert. den. 423 U.S. 1050 (1975). In the

instant case, it is clear in view of the circum-

-54-

stances that the jury as constituted was ill-dis-

posed to give petitioner sufficient independent

consideration. !° The jurors were literally primed

10

The trial and pretrial proceedings were extensi-

vely covered by the local press. Numerous pros-

pective jurors, including at least three who ulti-

mately decided the case acknowledged on voir

dire having listened to a radio announcement that

very morning that jury selection in the Anthony

Provenzano case would commence in Newark that

day. Other prospective jurors also admitted hav-

ing heard radio newscasts relating to Anthony

Provenzano, including Mr. Clark, who was to sit

in judgment.

Other prospective jurors, including Mr. Weingart-

ner who also was to be a trial juror, read in the

morning's papers that the Anthony Provenzano

jury would be selected. Others who were selected

had previously been exposed to stories about

Anthony Provenzano in the print media (e.g.,

Ms. Shipner read something "that had to do with

labor and that he was involved in some criminal

proceedings.") Mr. Sadvary knew that "Tony Pro

has been in the paper on and off and on pretty

regular. You know, the past yeer...something to

do with rackeetering."

The Bergen Sunday Record, whose circulation pre-

dominates north of Newark, had commenced in its

issue of November 19, 1978, a four-part series en-

titled "A’ Road Paved With Corruption." The first.

installment subtitled "How the Mob runs the Team-

sters, and how the public gets hurt" was an

"expose" of the alleged manner in which unions

and trucking firms are infiltrated by the Mob,

the Teamsters, and Anthony Provenzano. In the

Record those terms are virtually interchangeable.

The article in question which was given featured

status in the "Opinion" section, included on page

D-1 an organizational chart of allegedly mob-in-

filtrated unions. The inset was a large picture

of Anthony Provenzano, together with lesser pic-

tures of two of the co-defendants at trial. At

-55-

by the media to sit in judgment of Anthony Pro-

venzano, who they were aware allegedly exercised

iron-clad control over .tthe New Jersey labor unions

through manipulation of his many minions. Had

there been concrete and unequivocal evidence of

petitioner's complicity, the prejudice would not

have been so great. However, as it were, the

jury was required to closely scrutinize the indi-

vidual participation of petitioner to find guilt

even on the basis of tenuous’ inference. The

jury's perception was that it was sitting at Tony

; AR V1

Provenzano's trial, not petitioner's. lf Proven-

10 (Footnote continued from previous page)

least one prospective juror, James Davidson, re-

called seeing "Something to do with the union and

the tie-ins and things like that. People's pic-

tures and organizational charge." Mr. Davidson

thought he had seen this in the New York Times

but prosecutor Speiser assured the Court that no

such chart had appeared within memory in the

Times. Mr. Davidson acknowledged that he some-

times reads portions of the Newark Star Ledger

and the Bergen Record. Undoubtedly, his recoll-

ection was of the November 19, 1978 Record, which

was published less than six months before the

voir dire.

Consistent with the media status of the trial be-

low, the government called 45 witnesses in its

case-in-chief. These included Ralph Picardo,

executives of Seatrain and Interocean, truck driv-

(footnote continued)

'*%

-56-

zano was guilty, so was to be petitioner. This

fact was evident at the incipiency of the trial

and became glaring as trial progressed. The

court should have granted severance at the end

of the State's case to cure its earlier error.

We submit that justice required that peti-

tioner be severed. He could not, and did not, un-

der the prevailing circumstances receive adequate

"collation and appraisal of the independent evi-

dence against him." United States v. Campanale,

supra.

B. At A Minimum A Change Of Venue Was Re-

quired.

Where it is impossible in a particular

vicinage to draw a jury which has the capacity

to adequately compartmentalize the evidence as to

each of the defendants in a joint trial, a change

of venue is the sole remedy short of severance of

the affected defendant. See, United States v.

|| (Footnote continued from previous page)

ers, a labor contract expert, Paulette Compton,

accountants, employees of Ralph Picardo, and

F.B.1. agents. There were only two witnesses,

Ralph Picardo and Thomas B. Thompson, the

Government's fingerprint expert, who gave any

substantive evidence relating to petitioner Brigu-

glio.

al Pn

Mandel, 43! F.Supp. 90, 100-101 (D. Md. 1977).

ff. United States v. Capo, 595 F.2d 1086, 1090 (5

Cir. 1979) (Where outside influences affecting the

community's climate of opinion as to a defendant

are inherently suspect, the resulting probability

of unfairness requires suitable procedural safe-

guards, as a change of venue).

As noted, in the instant case, as to peti-

tioner, an impartial and attentive jury could not

be drawn because of the aura of joint trial with

|

Anthony Provenzano. “i See, United States v.

12

The District Court's apprviuch was to defer a

ruling until after attempting to select a jury.

The court was aware prior to attempting to select

@ jury that there existed a probability of unfair-

ness. The purpose of a change of venue is to se-

lect a jury from a region where pretrial publicity

has been less extensive or less prejudicial. "If

change of venue and continuance are to be of

value, they should not turn on the results of the

voir dire; rather they should constitute indepen-

dent remedies designed to assure fair trial when

mews coverage has raised substantial doubts

about the effectiveness of the voir dire standing

along." ABA, Standards Relating To A Fair Trial

And Free Press, Commentary to Sec. 3.2 at 127

(1968). The voir dire, thowever, reinforced the

pervasiveness of the publicity. The Court below,

however, fell prey to the unfortunate but not in-

frequent reluctance of judges "to admit that jus-

tice is absent in their jurisdiction." Austin, Pre-

judice and Change of Venue, 68 Dick. L. Rev. 40!

(continued)

y%

-58-

Cepeda Penes, 577 F.2d 754, 757 (I Cir. 1978);

United States v. Pomponio, 563 F.2d 659, 665 (4

Cir. 1977), cert. den. 435 U.S. 942 (1977). At a

minimum a change of venue was required in the

absence of severance. Petitioner was unduly and

fatally prejudiced by the jury's unmistakable

focus on Provenzano.

12 (footnote continued from previous page)

(1964). This in spite of its repeated acknowledge-

ment that any jury would be primed to try F-o-

venzano.

-59-

Point It

CERTIORARI! SHOULD BE GRANTED

TO RESOLVE THE ISSUE AS TO THE

SIGNIFICANCE AND VIOLABILITY OF

SEQUESTRATION ORDERS. THE

CAVALIER TREATMENT OF THE UN-

AUTHORIZED VISIT IN VIOLATION

OF THE SEQUESTRATION ORDER BY

THE LOWER COURTS DENIGRATES

THE PERCEIVED IMPORTANCE OF

SUCH ORDERS

Petitioner was denied his Sixth Amendment

right to a fair trial and to an impartial jury by

virtue of criminal conduct engaged in by certain

sequestered jurors, namely illegal possession and

use of marijuana and by violation of the seques-

tration order. The court released the jurors

from liability and biased those jurors in favor

of the government. The most salient aspect of

the Sixth Amendment violation is the fact that the

marijuana was distributed to the juror by an in-

dividual who visited her in violation of the se-

questration order. The order restricted visits to

close family members and persons with whom the

juror shared a spousal relationship. At the new

trial motion it was erroneously assumed that the

source of the drugs illegally passed to the juror

was a permitted person. However, there was no

-~60-

evidence that this was the mother or father of

this single female juror me lived at home. Ac-

cordingly, it must be concluded that the drugs

were passed by a non-permitted person in viola-

tion of the sequestration order. Thus, beyond

the misconduct itself and the favor the jurors

may have felt toward the government for excusing

their obvious criminality there was a grave dan-

ger of other improper influence which the seques-

tration order was intended to guard against.

Had the trial court properly appraised this fac-

tor, it might not have so lightly dismissed the

juror misconduct claim at the new trial motion.

In any event, violation of the sequestration or-

der, which resulted in an authorized visit, sub-

jected petitioner to the rendering of a verdict

which was the product of influences other than

the evidence presented in Court. The unauthor-

ized visitor might well have discussed the case

and prejudiced the juror. See Turner v. Louisi-

ana, supra. Accordingly, petitioner's Sixth

Amendment right to a fair trial and to an im-

partial jury was placed in severe jeopardy and

a remand is necessary to ascertain whether the

wee Viyg

Paes. F - 4

earn 1 » vig

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St ea)

ras {

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~62-

Conclusion

For all the foregoing reasons, the writ of

certiorari should be granted to review the final

judgment

of the United States Court of Appeals

for the Third Circuit. That judgment should be

vacated and a new trial ordered.

Dated:

Respectfully submitted,

By Sggigic

STEVEN H. Grhs \)

rae at J

bee f Ndr.

ALAN DEXTER BOWMAN

Attorneys for Petitioner

January 15, 1981

Appendix

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-1933 and 79-2421

UNITED STATES OF AMERICA,

Appellee,

V.

BRIGUGLIO, GABRIEL,

Appellant.

Appeal from the United States District Court

for the District of New Jersey

(Criminal No. 79-00072-04)

Argued October 16, 1980

Before: HUNTER and WEIS, Circuit Judges,

and CAHN, *

District Judge

JUDGMENT ORDER

*Honorable Edward N. Cahn, United States District

Judge for the Eastern District of Pennsylvania,

sitting by designation

2a

APPENDIX A

After considering the contentions raised by

appellant, to wit, that:

1(a) his trial counsel's failure to inform

appellant and the court that he

(trial counsel) was being’ investi-

gated by a federal grand jury dur-

ing trial violated appellant's rights

to intelligently select an advocate in

his behalf and to due process;

1(b) his trial counsel, as a matter of law,

was rendered ineffective due to a

pending grand jury investigation;

2) there was’ insufficient evidence to

underpin admission of co-conspirator

statements against appellant and in-

sufficient evidence to support. the

convictions even assuming the admis-

sibility of the statements;

3) the trial court abused its discretion

in denying appellant's motion for a

severance or in the alternative a

change of venue;

4) pursuant to Fed. R. App. P. 28(i)

appellant should prevail because of

the arguments raised in behalf of

appellants in Nos. 79-1913, 79-2387

(Thomas Andretta), 79-1912, 79-2381

(Anthony Provenzano) and “79-1956

(Stephen Andretta) insofar as_ those

arguments are applicable to him and

not inconsistent with the arguments

raised herein.

it is ADJUDGED and ORDERED that the judg-

3a

APPENDIX A

ment of the district court be ,and is hereby af-

firmed, without prejudice to appellant to pursue

contentions 1(a) and 1(b) in collateral proceed-

ings under 28 U.S.C. $2255 (1976).

BY THE COURT,

s/J.H. I11

JAMES HUNTER, II!1,

Circuit Judge

Attest:

s/M.E.F..

M. ELIZABETH FERGUSON

Chief Deputy Clerk

Dated: November 17, 1980

i

4a

APPENDIX B

CONSTITUTION

Amend. 5

AMENDMENT V-CAPITAL CRIMES: DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE PROCESS;

COMPENSATION FOR PROPERTY

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury, ex-

cept in cases arising in the land or naval for-

ces, or in the Militia, when in actual service in

time of War or public danger; nor shall any per-

son be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

5a

APPENDIX B

CONSTITUTION

Amend. 6

AMENDMENT VI-JURY TRIAL FOR CRIMES,

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and dis-

trict wherein the crime shall have been committ-

ed, which district shall have been previously as-

certained by law, and te be informed of the na-

ture and cause of the accusation; to be confront-

ed with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his cefense.