Opposition — Bendetti v. United States

“JUN 2 196

ALEXANCE:? L. STEV

CLERK

No. 80-1615

Yu the Supreme Gourt of the Hnited States

OcToBER TERM, 1980

Pau. BENDETTI, ET AL., PETITIONERS

v.

Unitep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEAL’ FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorncy General

GLORIA C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

‘\

QUESTION PRESENTED

Whether petitioners, each of whom is represented

by separate counsel, will be deprived of effective as-

sistance of counsel or of a right to counsel of their

own choosing by the district court’s order, entered for

the purpose of preventing potential conflicts of inter-

est at their pending trial, that limits participation by

another attorney on behalf of all three petitioners.

(I)

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Armstrong v. McAlpin, 625 F. 2d 483, cert.

granted vacated and remanded on other

grounds, No. 80-431 (Jan. 19, 1981)_-____- 14

Benjamin, In re, 582 F. 2d 121____.______-- 14

Chambers v. Maroney, 399 U.S. 42__._------- 13

Community Broadcasting of Boston, Inc. v.

Fae: See ee eee. e+ sc oe--+-- 14

Continental Investment Corp., In re, 637 F.2d1- 14

Coopers & Lybrand v. Livesay, 437 U.S. 463-- 14

Cuyler v. Sullivan, 446 U.S. 335___..______- 10

Faretta v. California, 422 U.S. 806_______- 9, 10, 16

Firestone Tire & Rubber Co. v. Risjord, No.

79-1420 (Jan. 18, 1981)__..._.._._____- 13, 14, 16

Holloway v. Arkansas, 435 U.S. 475____-__-- 7

Leis v. Flynt, 489 U.S. 488_.._.....-.------ 10

Lewin v. United States, cert. denied, No. 80-

Ee Ses AUN SUED cave cg enobanssuceccos 0)

Melamed v. ITT Continental Baking Co., 592

Wee Se ae es a, iu ge 14

Multi-Piece Rim Products Liability Litigation,

Firestone Tire & Rubber Co., In re v.

Risjord, 612 F. 2d 377, vacated and re-

manded on other grounds, No. 79-1420

OR. Aes MR ee ets. se Been Sa oe eae 14

Singer v. United States, 380 U.S. 24. _____--- e)

United States v. Cox, 580 F. 2d 317

(mT)

PRECEDING PAGE WAS BLANK

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IV

Page

Cases—continued

United States v. Dinitz, 424 U.S. 600_______- 10, 16

United States v. Dolan, 570 F. 2d 1177_____- 10

United States v. Payner, 447 U.S. 727_____-- 16

United States ex rel. Hart v. Davenport, 478

Ps. MT ck a os pe 2

United States v. Waldman, 579 F. 2d 649-_ _- 10

Wood v. Georgia, No. 79-6027 (Mar. 4, 1981) - )

Constitution, statutes and rule:

United States Constitution, Sixth Amendment. 9,

10, 11, 13

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Fn the Supreme Gourt of the ited States

OcTOBER TERM, 1980

No. 80-1615

PavuL BENDETTI, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. 2la-

22a) is unreported. The opinion of the district court

(Pet. App. la-20a) is reported at 498 F. Supp. 450.

JURISDICTION

The judgment of the court of appeals was entered

on January 19, 1981. A petition for rehearing was

denied on February 17, 1981. The petition for a writ

of certiorari was filed on March 25, 1981. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. On September 27, 1979, a federal grand jury in

the District of New Jersey filed a 15-count indictment

(1)

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charging petitioners and three others with illegal acts

in connection with the ownership of a Nevada gaming

corporation, in violation of 18 U.S.C. 2, 1952, 1962(c)

and (d), and 2314.

The defendants were arraigned on October 10, 1979.

At that time, Oscar B. Goodman was admitted pro

hac vice to represent the three petitioners. The court

thereupon conducted an inquiry pursuant to United

States ex rel. Hart v. Davenport, 478 F.2d 203 (3d

Cir. 1973), concerning potential conflicts of interest

arising from Goodman’s joint representation (Pet.

App. 2a-4a; 10/10/79 Tr. 4, et seq.). The court pointed

out that the divided loyalties of counsel representing

multiple defendants could jeopardize the strength of

any one defendant’s position; that the defense of one

could conflict with that of another; that plea bargain-

ing would be hampered, perhaps made impossible,

because an offer to one might be adverse to the in-

terests of another; that one defendant’s decision to

testify might require his own counsel to cross examine

him to mitigate testimony adverse to a co-defendant;

and that vigorous examination of a witness on behalf

of one defendant might have to be curtailed out of

deference to the interests of another (10/10/79 Tr.

24, 32-34). The court also expressed concern that the

jury might be influenced by the fact that the three

defendants, who were charged with conspiracy, were

all represented by one lawyer (td. at 19). In addition,

the court cited the public interest in ordinarily not

having a single lawyer represent more than one de-

fendant in a criminal case (id. at 17).

Goodman acknowledged the potential for conflicts

and stated that petitioners would be represented by

independent counsel at trial (Pet. App. 3a), but he re-

quested that he be permitted to represent all three

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petitioners prior to trial so that his special knowledge

of Las Vegas and its casinos would be available to

petitioners (10/10/79 Tr. 18, 21-22, 28; Pet. App.

3a). At the conclusion of the October 10 proceedings,

the trial court agreed to this arrangement (Pet.

App. 4a).

2. The district court held another hearing on No-

vember 5, 1979, at which the government urged that

Goodman be disqualified. The government asserted

that Goodman’s multiple representation had ham-

pered discussions of immunity and cooperation; that

Goodman also represented an unindicted co-conspira-

tor; that the government had information that peti-

tioners viewed their relative culpability differently ;

that Goodman ought not, at the pretrial stage, ‘‘lock

in” the positions of the independent trial counsel who

Goodman recognized would be necessary at trial; and

that Goodman’s continued representation in a com-

plex proceeding covering a three-year conspiracy with

over 100 overt acts only increased the probability of

later delay, a mistrial, and appellate attack when

petitioners’ independent counsel later assumed re-

sponsibility (Pet. App. 4a-5a).

Although Goodman continued to urge that he be

permitted to remain in the case at the pretrial stages

(Pet. App. 5a), he reiterated his understanding that

petitioners would have to be represented by separate

counsel at trial (11/5/79 Tr. 13, 17; Pet. App. 5a—6a).

Goodman also stated that he had told petitioners they

would need separate counsel at trial and that they

had agreed (11/5/79 Tr. 17; Pet. App. 6a).’

At the conclusion of the November 5 hearing, the

court ordered petitioners to retain separate counsel

‘Goodman stated: “I wouldn’t let them do it any other way”

(11/5/79 Tr. 17; Pet. App. 6a).

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(11/5/79 Tr. 35-36; Pet. App. 6a-7a, 9a). In the

court’s view, separate counsel were required at that

time to ensure that the trial would not be delayed

at a later date when separate counsel concededly

would have to be appointed and would need time to

familiarize themselves with the complex case and ex-

tensive record (Pet. App. 7a). The court did not,

however, order that Goodman be removed from the

case altogether. It concluded that separate counsel

for each petitioner could make an independent assess-

ment of the extent to which Goodman also could par-

ticipate in the representation of his client (11/5/79

Tr. 36; Pet. App. 7a). Goodman informed the court

that he had anticipated the court’s ruling and that

discussions were already underway with other coun-

sel (11/5/79 Tr. 36; Pet. App. 8a).

3. On December 10, 1979, the district court held

another hearing, attended by the counsel retained to

represent each petitioner. Each attorney represented

that he had considerable criminal trial experience

(Pet. App. 14a) but expressed a desire to have Good-

man remain in the case as a general adviser because of

his special experience in ‘‘the intricacies of Nevada

law and casino gambling laws emanating from the

state of Nevada’’ (Pet. App. 10a—lla). Vernon, who

was representing petitioner DeLamos, made clear that

he, not Goodman, would advise his client (Pet. App.

lla), and the attorneys representing the other two

petitioners agreed with Vernon’s understanding of

Goodman’s role (Pet. App. 12a—13a). Petitioners, too,

agreed to this arrangement (12/10/79 Tr. 20-24). The

district court decided that Goodman could serve in

this role until trial, but reserved the question whether

Goodman could participate at trial (Pet. App.

13a—14a).

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4. On July 29, 1980, during a pretrial hearing, the

district court considered the question of Goodman’s

role at trial. At petitioners’ request, it described in

general terms the manner in which it would allow

Goodman to participate (7/29/80 Tr. 22, 29, 32-33).

In its subsequent opinion of September 3, 1980, the

court set forth guidelines on this subject. Goodman

would not be permitted to make opening or closing

statements. Examination of witnesses would be de-

cided on a case-by-case basis: if the court were satis-

fied that Goodman’s expertise would assist petitioners,

he would be permitted to examine on their behalf

after appropriate instructions to the jury, but Good-

man would not be permitted to examine witnesses on

narrow questions that pertained only to one of the

petitioners. Legal arguments could be made by Good-

man to the court, again with appropriate instructions

if the argument took place in the presence of the jury.

And, finally, Goodman could sit at counsel table to

render expert advice to the independent counsel (Pet.

App. 19a-20a). Petitioners filed a notice of appeal

following the July 29 hearing.

In its September 3 opinion, the district court

observed (Pet. App. 16a) that the government’s aver-

ments the previous November regarding the conflicts

Goodman would face if he represented all three peti-

tioners had never heen specifically denied by peti-

tioners and that further pretrial developments

supported the court’s conclusion that petitioners had

differing interests in the case and may have engaged

in varying activity with the principal government wit-

ness. The court therefore was “mystified’’ by peti-

tioners’ apparent suggestion, reflected in the notice of

appeal, that Goodman might be permitted to take over

the defense of all three petitioners. The court further

observed that ‘‘[t]he situation is made even more puz-

348-273 0 - 81 = 2

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zling by the fact that not once but several times Good-

man agreed that, at trial, [petitioners] would have

separate counsel, that they understood this, and that

they were agreeable to this” (Pet. App. 17a).’

In a brief order (Pet. App. B 21a-22a), the court of

appeals affirmed the district court’s order limiting

Goodman’s role.

ARGUMENT

The district court’s careful accommodation of peti-

tioners’ interest in having Goodman participate in

their trial and the competing objective of preventing

*No motion was ever filed on petitioners’ behalf for Goodman

to replace counsel for all three petitioners. Attorney Vernon,

who was representing petitioner DelLamos, did state at the

July 29 hearing that his client expected Goodman to represent

him throughout the proceedings and that, “if it comes to it,”

DeLamos would ask Vernon to withdraw to be replaced by

Goodman or to have DeLamos defend himself (7/29/80 Tr. 24;

see also id. at 28). The court later indicated that if Vernon

moved to withdraw and to have Goodman substituted. the court

would deny the motion (7d. at 32).

Later still, Vernon stated: “Since my client is here in court

I want—I would like to make abundantly clear, considering my

request to withdraw and place Mr. Goodman in my place, are

you now ruling formally on that?” The court responded:

“That’s right. I will not permit that. That undercuts everything

that I’ve been trying to accomplish throughout the course of

these pretrial proceedings” (id. at 35). This brief exchange can-

not be treated as a considered motion. for and denial of sub-

stitution of counsel, as opposed to a discussion of the issue in

the hypothetical. At the conclusion of the hearing, for example,

Vernon made clear that petitioners were not “seeking to give

* * * away” the benefits of separate counsel, but were, instead,

“seeking to have [Goodman] in addition to the three of us

question [witnesses]” (7/29/80 Tr. 39). Thus, if the tran-

script is read as a whole, the only issue properly presented to

the district court was the degree to which Goodman might par-

ticipate in the proceedings, not whether Goodman could be

substituted as counsel for any or all of the petitioners.

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conflicts of interest resulting from joint representa-

tion does not warrant review at this interlocutory

stage of the proceedings.

1. At a number of places in their petition, peti-

tioners discuss (Pet. 12, 14-16, 18) the question

whether a trial court may order separate counsel for

defendants who purport to waive their right to the

effective assistance of counsel insofar as that right

might be impaired as a result of the representation of

their conflicting interests by a single attorney. Con-

trary to petitioners’ apparent suggestion, however,

this case simply does not present that issue.

In the district court, Goodman acknowledged in

October and November 1979, that petitioners would

need separate counsel at trial, and petitioners agreed

to that arrangement. In view of this acknowledg-

ment, the district court was required to ensure sepa-

rate representation by the time of trial. Cf. Holloway

v. Arkansas, 435 U.S. 475 (1978). Given that separate

counsel would be required at trial, it was manifestly

reasonable for the district court to require, in Novem-

ber 1979, that petitioners have separate counsel at the

pretrial stages as well in order to ensure their famil-

iarity with the case and to prevent any postponement

of trial that might otherwise have been occasioned by

a last-minute appearance of separate counsel. Indeed,

petitioners do not argue in their petition that the trial

court acted unreasonably in requiring the early ap-

pointment of the separate counsel who they and Good-

man had conceded would be necessary at trial in any

event.

The July 29, 1980, hearing that gave rise to the ap-

peal to the Third Circuit and to the instant certiorari

petition concerned only the role Goodman would be

‘ permitted to have at trial—which was scheduled to

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commence six weeks later—in the context of the sep-

arate representation that had been arranged more

than eight months earlier. Although the possibility of

Vernon’s withdrawal from representation of peti-

tioner DeLamos was advanced and rejected in pass-

ing at the July 29 hearing, Vernon’s suggestion does

not appear to have been a considered motion for sub-

stitution of counsel (see note 2, supra). Moreover,

there was no comparable reference whatever by coun-

sel for petitioners Bendetti and Mastro to the possibil-

ity of their withdrawal in favor of Goodman. Nor was

there any discussion of, a waiver by Bendetti and

Mastro of any conflicts of interest that might have

resulted from Goodman’s representation of DeLamos

at trial, in view of Goodman’s personal representa-

tion of Bendetti and Mastro in earlier stages of the

case. Thus, the district court was not in a position

to rule on a motion for substitution of Goodman

as counsel for all three petitioners or for DeLamos

alone.

Similarly, the notice vf appeal identified the order

appealed from as that limiting Goodman’s participa-

tion; petitioners’ brief in the court of appeals pre-

sented the single issue whether they were denied their

Sixth Amendment rights by the court’s order limit-

ing Goodman’s participation (Brief for Appellants at

1); and the court of appeals decided only that single

question (Pet. App. 21a-22a). The issue of separate

counsel was neither presented nor decided. And, even

now, petitioners do not take issue with the fact that

they will have separate counsel at trial.’

* Indeed, they rely (Pet. 18-19), somewhat ironically, on the

presence of separate counsel in support of their argument that

Goodman should be permitted to have an unlimited role at

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Accordingly, this ca 2 does not raise the question

whether a court can require defendants to be repre-

sented by separate counsel where a conflict of interest

appears.*

trial. They suggest that separate counsel will prevent conflicts

of interest from arising as a result of Goodman’s participation

on behalf of all three and will undercut the impression the

jury might otherwise have that all three must have been in-

volved in a conspiracy if they are jointly represented by the

same attorney.

‘In any event, as we explain more fully in our brief in oppo-

sition in Lewin v. United States, cert. denied, No. 80-343

(Jan. 12, 1981), at pages 6-10, petitioners err in suggesting

(Pet. 14-18) that the Sixth Amendment guarantees a defendant

the right to be represented by counsel of his choice even though

the attorney may have a conflict of interest. (We are furnishing

counsel for petitioners with a copy of our brief in opposition

in Lewin.) Contrary to petitioners’ contention, Faretta v. Cali-

fornia, 422 U.S. 806 (1975), does not support that proposition.

The Sixth Amendment right of self-representation recognized

in Faretta was not premised on a right to waive the assistance

of counsel, from which petitioners would infer the right to waive

the effective assistance of counsel. To the contrary, the Court

made clear in Faretta that the right of self-representation could

not be inferred mechanically from the defendant’s ability to

waive the right to assistance of counsel, because “‘[t]he ability

to waive a constitutional right does not ordinarily carry with it

the right to insist upon the opposite of that right’” (422 U.S.

at 819 n.15, quoting Singer v. United States, 380 U.S. 24,

34-35 (1965)). Accordingly, the Court’s decision in Wood .v.

Georgia, No. 79-6027 (Mar. 4, 1981), slip op. 12, that a defend-

ant may be held, after the proceeding, to have waived his right

to counsel unimpeded by a conflict of interest does not mean

that a defendant has a right, in advance of trial, to insist on

counsel burdened with a conflict of interest.

The right to proceed personally, recognized in Faretta, is an

independent right secured by the Sixth Amendment, which con-

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Moreover, even assuming that petitioners were pro-

perly challenging their representation by separate

counsel, the record in this case does not contain any

waiver by petitioners of their right to effective, con-

flict-free counsel at trial, which petitioners concede

(Pet. 14-15, 17-18) would be an essential predicate to

allowing joint representation by counsel who has a

fers on the accused, not his attorney, the right to make a de-

fense, 422 U.S. at 819; see United States v. Dolan, 570 F.2d

1177, 1183 (3d Cir. 1978). When an accused invokes the assist-

ance of counsel in making his defense, he necessarily does so, as

petitioners acknowledge (Pet. 11), subject to reasonable stand-

ards governing the conduct of attorneys (United States v.

Dinitz, 424 U.S. 600 (1976); cf. Leis v. Flynt, 489 U.S. 438

(1979) ), including appropriate ethical standards governing con-

flicts of interest. Thus, contrary to petitioners’ contention, de-

fendants do not have a Sixth Amendment right to be jointly

represented by the same attorney where the trial court finds a

conflict of interest. See Fed. R. Crim. P. 44(c) and the Advi-

sory Committee Note to that Rule.

Petitioners suggest (Pet. 15-16) a conflict among the circuits

on the question whether a defendant who waives his right to

effective assistance of counsel has a Sixth Amendment right to

be represented by conflict-laden counsel. But because this case

does not properly present the issue and because the district:

court found no adequate waiver in any event, it is not the ap-

propriate vehicle for resolving the asserted conflict. Moreover,

the decisions relied upon by petitioner—several of which do not

even concern the question of a right to choose conflict-laden

counsel (see United States v. Cox, 580 F.2d 317 (8th Cir.

1978); United States v. Waldman, 579 F.2d 649 (1st Cir.

1978) )—all predated this Court’s observations in Cuyler v. Sul-

livan, 446 U.S. 335, 346 & n.11 (1980), regarding the ethical

problems inherent in multiple representation, and the Decem-

ber 1, 1980, effective date of Fed. R. Crim. P. 44(c). which

authorizes disqualification of counsel even where the defendants

purport to waive their right to conflict-free counsel. :

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conflict of interest. See also Fed. R. Crim. P. 44(c).°

And the district court, noting that it had ‘‘meticu-

lously probed into the matter on more than one occa-

sion’’ (Pet. App. 16a), could not conclude that any

purported ‘‘waivers” by petitioners were knowing and

intelligent (¢bid.; see also id. at 18a). Under these cir-

cumstances, there is no occasion for this Court to con-

sider petitioners’ assertion of a Sixth Amendment

right to choose counsel who is burdened with a conflict

of interest.

2. Because the district court’s requirement of sepa-

rate counsel at trial is not before the Court, this case

concerns only the limitations the district court placed

on Goodman’s participation at trial to supplement the

assistance of separate counsel. Petitioners contend

thet Goodman should be entirely unrestrained at trial

and, if they so desire, should be permitted to take over

the entire defense. But because the order requiring

separate counsel is not before the Court, petitioners

cannot challenge that order indirectly by urging that

Goodman be allowed to supplant separate counsel en-

tirely av crial despite the conflicts of interest that led

*The only discussion in the district court regarding peti-

tioners’ consent to joint representation despite the possibility of

a conflict of interest occurred at the October hearing (10/10/79

Tr. 32-39), at which Goodman had already conceded that sepa-

rate representation would be necessary at trial (id. at 20, 28).

Thus, petitioners’ “waiver” at the October hearing, if the ex-

change with the district court can be so characterized, obvi-

ously did not extend to joint representation at trial. Subse-

quently, of course, the court required separate counsel, and peti-

tioners did not thereafter execute a waiver of any conflicts that

might arise if Goodman were to take over the defense com-

pletely. Although petitioners assert (Pet. 18) that they have

waived any prejudice resulting from joint representation at

trial, they cite nothing in the record to support this assertion.

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the district court to require the retention of independ-

ent counsel in the first place. In any event, the manner

in which the district court sought, in the unique cir-

cumstances of this case, to accommodate the roles of

petitioners’ individual counsel with that of Goodman

does not warrant review by this Court, especially at

the present interlocutory stage of the case.

a. Despite the government’s request in November

1979, the district court did not disqualify Goodman

from the case altogether. He was allowed to partici-

pate in pretrial proceedings and in preparation for

trial to the extent desired by counsel for each of the

petitioners. The district court’s order regarding Good-

man’s participation at trial necessarily was cast in

general terms, with the particulars pertaining to his

examination of witnesses and presentation of legal

argument to be determined on a case-by-case basis at

trial. Therefore, it is not possible in advance of trial

to determine whether Goodman will play a major or

minor role in these matters.* Thus, the factual basis

for petitioners’ claim necessarily is speculative at this

stage.

b. Moreover, insofar as petitioners’ claim is that the

district court’s accommodation of the respective roles

of Goodman and petitioners’ separate counsel de-

prives them of effective assistance of counsel, the

claim plainly is premature. Only after trial will it

be possible to determine whether separate counsel,

assisted by Goodman, represented petitioners in a

reasonably competent manner and whether any errors

that occur will have prejudiced the defense. See, e..,

*For this reason, petitioners err in stating (Pet. 19) that,

under the district court’s order, Goodman’s role at trial neces-

sarily has been reduced to that of a “silent adviser.”

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Chambers v. Maroney, 399 U.S. 42, 53-54 (1970).' In

any event, there is nothing in the record developed

thus far to suggest that petitioners will not be effec-

tively represented at trial. They do not challenge

the competence of their separate counsel, and the

district court expressed its satisfaction with separate

counsel’s assurances that they have substantial ex-

perience in trying criminal cases (12/10/79 Tr. 31;

Pet. App. 14a).

ce. Similarly, there is no merit to petitioners’ sug-

gestion that the district court’s order deprives them

of an asserted Sixth Amendment right to counsel of

their choice.” For the reasons stated above (see pages

7-11, supra), it must be assumed here that Goodman

‘For this reason, the district court’s order regarding Good-

man’s participation at trial was not immediately appealable

under 28 U.S.C. 1291 pursuant to the “collateral order” doc-

trine insofar as that order implicitly rejected a claim of in-

effective assistance of counsel. The district court has not con-

clusively determined that claim, which may be renewed after

trial; it is not completely separate from the merits because,

e.g., the attorneys’ competence and any resulting prejudice must

be considered in light of the prosecution’s case and the defense

actually presented; and the claim will not be effectively un-

reviewable on appeal from a final judgment of conviction. See,

e.g., Firestone Tire & Rubber Co. v. Risjord, No. 79-1420

(Jan. 13, 1981), slip op. 6.

®* There is a substantial question whether the order was im-

mediately appealable on this ground either. This Court re-

cently held in a civil case that orders denying motions to

disqualify the opposing party’s counsel] are not appealable final

decisions under 28 U.S.C. 1291. Firestone Tire & Rubber Co. v.

Risjord, supra. The courts of appeals that previously held

orders denying disqualification not to be appealable have not

yet taken issue with the appealability of orders granting dis-

qualification, See, ¢.g., Armstrong v. McAlpin, 625 F.2d 433,

440-441 (2d Cir. 1980) (en banc), vacated and remanded on

7X

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could not properly be counsel of record for all three

petitioners. Petitioners do not suggest that, if Good-

man is unavailable, each of the three attorneys re-

tained to represent them is not counsel of choice for

the particular petitioner whom he represents. Thus,

for present purposes, these three aitorneys must be

regarded as petitioners’ attorneys of choice. These at-

torneys will be permitted to consult freely with their

~ respective clients and to participate fully in the pro-

ceedings on their behalf. Thus, petitioners have not

other grounds, No. 80-431 (Jan. 19, 1981); Zn re Multi-Piece

Rim Products Liability Litigation, Firestone Tire & Rubber

Co. v. Risjord, 612 F.2d 377, 378 (8th Cir. 1980) (en banc),

vacated and remanded on other grounds. No. 79-1420 (Jan 13,

1981); cf. In re Continental Investment Corp., 637 F.2d 1, 7

(ist Cir. 1980); Melamed v. ITT Continental Baking Co., 592

F.2d 290, 295 (6th Cir. 1979); Community Broadcasting of

Boston, Inc. v. FCC, 546 F.2d 1022, 1028 n.41 (D.C. Cir. 1976) ;

but see Jn re Benjamin, 582 F.2d 121 (1st Cir. 1978) (order

disqualifying counsel representing grand jury witness not im-

mediately appealable; witness must refuse to testify because he

was deprived of counsel and seek review of contempt citation).

Nonetheless, it could be argued that a defendant’s claim that

the district court erred in disqualifying his attorney could ade-

quately be reviewed on an appeal from a final judgment of con-

viction and therefore would not satisfy the third criterion of

the collateral order doctrine.

Similarly here, where Goodman was not even disqualified

from the case, it is not apparent why petitioners’ claim that

Goodman’s role was improperly limited could not adequately

be reviewed on appeal from a final judgment of conviction. In-

deed, it would better be reviewed at that stage, when the scope

of his participation would be more than a matter of speculation.

Thus, the district court’s order limiting Goodman’s role (see

Firestone Tire & Rubber Co. v. Risjord, supra, slip op. 10 n.13)

is akin to an order on a question of trial procedure, which is

not appealable. Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978).

*%

15

been denied the assistance of counsel of their choice,

insofar’ as that choice was reasonably circumscribed

by the application of ethical rules regulating the con-

duct of attorneys in order to prevent conflicts of inter-

est and thereby to preserve the integrity of the bar

and the criminal justice system.

d. Petitioners themselves concede that their asserted

right to counsel of their choice ‘‘is not absolute and

must be balanced against the interests of the court in

the effective administration of justice’ (Pet. 11). The

reasonableness of the manner in which the district

court struck that balance on the particular facts of

this case is a case-specific issue that does not warrant

review by this Court. In any event, the district court’s

accommodation of the competing interests was reason-

able. Although, in our view, the district court might

properly have disqualified Goodman from any partic-

ipation in the trial, it acceded to petitioners’ wishes to

a considerable extent by allowing him to participate

insofar as appeared feasible without excessive risk of

generating a conflict of interest and thereby defeating

the very purpose of ordering separate counsel in the

first place. In the situations where the potential for a

conflict of interest is particularly strong—as in the

opening statement, closing argument, or examination

of witnesses on matters that relate to only one or two

of the petitioners—it was reasonable for the court to

require that the counsel of record for each petitioner,

rather than Goodman, represent his client. Such lim-

itations on Goodman’s role to prevent a conflict of

interest (see Firestone Tire &: Rubber Co. v. Risjord,

supra, slip op. 10 n. 13) constitute a reasonable exer-

cise by the court of its authority to regulate the con-

duct of attorneys appearing before it (United States

v. Dinitz, 424 U.S. 600 (1976); id. at 612 (Burger,

ee

%

16

C. J., coneurring) ; United States v. Payner, 447 U.S.

727, 735 n.7 (1980), and of the proceedings over which

it presides (cf. Faretta v. California, supra, 422 U.S.

at 834-835 n.46).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

WanveE H. McCres, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Gioria C. PHARES

Attorney

May 1981

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