Opposition — United States v. Cronic

RECEIVED

NOV 2 6 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

NO. 82-660

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITION™S

v.

HARRISON . CRONIC

RESPONSE TO PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT CF APPEALS

FOR THE TENTH CIRCUIT

DAVID W. DUNCAN

A for Respondent

1130 Avenue

P. O. Box 179

, Colorado 81301

(303) 3000

IN THE SUPREME COUKT OF THE UNITED STATES

OCTOBER TERM, 1982

NO. 82-660

UNITED STATES OF AMERICA, PETITIONER

v.

HARRISON F. CRONIC

RESPONSE TO PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE TENTH CIRCUIT

David . Duncan, on behalf of the Pespondent, responds to the United

States Petition for Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Tenth Circuit in this care.

REASONS FOR DENYING PETITION

The Tenth Circuit Court of Appeals has edopted the test of “skill,

judgment and diligence of a reasonably competent defense counsel” in deter-

mining claims of ineffective assistance of counsel. Dyer v. Crisp, 613 F. 20

275 (en banc) (CA 10th 1980), cert. denied, 445 U.S. 945 (1980).

That test is consistent with the decisions of this Court and the govern-

went es contention that in order for « conviction to be set aside, the defendant

must show, et « minimum, that en attorney's performance in the case was

below that of reasonable, competent crimina) defense counsel.

In addition, cases in the Tenth Circuit have established that “when

circumstances hamper « given lawyer's preperation of a defendant's case, the

Gefendant need not show specified errors in the conduct of his defense in

eater to chow 22 — of counse. United States v. King, 664

. 24 1171, 1172-73 (10th Cir. 1981); United States v. Golub, 638 f. 2 185,

187 (10th Cir. 1980)

Those ciz:cumstances include experience of counsel, time for preparation,

accessibility of witnesses to counsel, grevity of the charge and complexity of

— os 4

defenses. United States v. Golub, (id). The Tenth Circuit weighed all of

these factors in its decision in this case.

The King - Golub teste are sso consistent with the duty to provide

effective assistance of counsel under the Sixth Amendment.

The Government cites Chambers v. Maroney, 399 U.S. 42, 53-54 (1970)

for the proposition that relief ts not afforded absent some finding of prejudice

or likely prejudice to the defendant or sdverse on the conduct of the

case. (emphasis edded) While such languege is not the holding in

Chambers, Justice Harlan in his dissent, did point out that this Court

recognized long ago thet the duty to provide counsel is not discharged by an

assignment at such tine or under such circumstances as to preclude the

giving of effective sid in the preparation and trial of this case (citing Powell

„ Alabama, 287 U.S. 45, 71, 77 L. Ee 158, 172, $3 8. Ct. 55, 84 ALR 527

(1932); Hawk v. Olson, 326 U.S. 271, 278, 90 L. Ed 61, 66, 66 8. ct 116

(1945).

Consistert with such a duty, the Tenth Circuit under its King - Colubd

tests reviewed (1) the time afforded for investigation and preparation; (2)

the experience of counsel; (3) the gravity of the charge; (4) the complexity

of defenses; and (5) the accessibilit; of witnesses to counsel.

The Tenth Circuit did not hold that “an attorney's deck of relevant

experience invariably gives rise to ineffective assistance of counsel,” rather

they held "that in the facts of this case, applying the criteria set down in

King end Golub, Crete cannot be said to have been adequately represented."

United States v. Morrison, 449 U. 8. 321, 101 8. Ct. 665, 66 L. Ed 24

564 (1981) in factually and legally distinguishable from the present case.

Morrison held that pre-trial interference with the right to counsel did not

warrant dismissing the indictment.

Finally, the Government's contention, that respondent's comments

regarding the performance of his counsel are somehow relevant in determining

effective assistance of counsel, is absurd.

Respondent's contention in this case is that the totality of the circum-

stances in this case amount to « violation of the Sixth Amendment guarantee

of effective assistance of counsel. Those circumstances briefly reviewed sre:

1. Respondent was indicted on thirteen counts of mail freed end unlew-

ful use of a fictitious name, 18 U.S.C. 1% end 1342, resulting from « four

and one half year effort by the Government in front of s grand jury.

2. The Court made it clear to counsel! that he would only have twenty-

five days to prepare this case. |

3. Counsel met with respondent at one lengthy meeting the dey before

trial.

4. The Government's investigation yielded thousands of documents,

including hundreds of checks.

3. The Government's witnesses came from four states.

6. The respondent lived in Plorida and Georgia while his counsel lived

in Oklahoma.

7. Counsel announced to the jury that this was his first trial. He was

not an exper.enced criminal defense attorney.

8. The Court granted counsel only $300.00 to hire an eccountant. No

eccountant was hired.

9. The transcript denotes virtually no objections by either Colston or

Rivas during the trial. The transcript denotes almost no ectivity on the part

of Mr. Rivas, in spite of his affidavit submitted after the decision in this

case wes rendered by the Tenth Cireu’:.

10. Defense counsel did not object to any of the instructions or tender

any defense instructions.

11. The respondent was convicted of eleven counts and sentenced to

twenty-five years and fined $11,000.00.

As the government points out on Page 10 of their Petition for Writ of

Certiorari, the decisions of this Court mske clear thet in order for d n-

vietion to be set aside under the Sixth Amendment on the basis of ineffective

assistance of counsel, the defendant must show at e minimum that his sttor-

ney's performance in the case was below the range of competence that

-3-

reasonably may be expected of counsel in criminal cases.” Respondent

asserts that st a minimum such « showing has been made and that, under

King, Golub and Powell, the circumstances of his apprintment were such that

he was precluded from giving effective aid in this case. The Tenth Circuit

has employed 6 test in this case consistent with the Sixth Amendment and the

decisions of this Court. To require this Court to make e fectual determina-

tion of each cane is beyond the purpose of the writ of certiorari and the

practical limitatioys of this Court.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

November 1982

J teste |

fice OF THE CLERK

Leet covet, S|

IN THE SUPREME COURT OF THE UNITED STAT

OCTOBER TERM, 1982

NO. 82-660

UNITED STATES OF AMERICA, PETITIONER

v.

HARRISON . CRONIC

MOTION POR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondent, Harrison F. Cronic, moves the Court for lerve to proceed

in forma pauperis and to file a response to the United States’ Petition for Writ

of Certiorari without payment of fees and costs and in support thereof shows

the Court as follows:

1. On April 19, 1982, the United States Court of Appes = for the Tenth

Circuit vacated the judgment of conviction entered in the United States Dis-

trict Court for the Western District of Oklahoma.

2. On October 14, 1982, the United States filed a Petition for Writ of

Certiorari in this case.

3. Fetitioner is unable to pay the fees and costs of this proceeding or

give security therefor and had counsel appointed both at trial in District

Court and upon appeal.

4. The United States Court of Appeals for the Tenth Circuit appointed

counsel for the respondent pursuant to the Criminal Justice Act of 1964.

Leave to proceed in forma pauperis was sought and grented in the Tenth

Circuit Court of Appeals.

WHEREFORE, respondent prays that he be allowed to proceed for forma

pauperis and to file a response to the Petition for Writ of Certiorari without

=” =

: es

payment of fees or costs and for such other and further relief es to the

Court shall seem ust

Respectfully submitted,

* . 5

avid W. Duncan, Jr

Attorney for Respondent

1130 Main Avenue

Durango, Colorado 81301

(303) 259-3000

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* 2 Jeu? Conf RECEivep |

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SUPREME Count Ug.

*

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-660

|| UNITED STATES OF AMERICA,

Petitioner

Vs

HARRISON P. CRONIC,

Respondent

AFFIDAVIT OF TIMELY FILING :

I, John N. Crudup, first being duly sworn according to

law, depose and state the following:

ele

I am a member in good standing with the Georgia Bar

Association.

x '

I was admitted to practice before the Supreme Court of

| the United States on October 22, 1962. |

x

| To my personal knowledge and in my presence, Harrison P. |

Cronic mailed, on November 29, 1982, to the Supreme Court of

the United States, 1 First Street, N.E., Washington, D.C. 20543, |

| with first class postage prepaid, his Responsive Brief To The |

Petition For Writ Of Certiorari, by depositing a copy of the cane |

| into the United States Mail at Gainesville, Georgia 30501.

8

This satisfies the requirements for timely filing under

Rule 28(.2) of the Rules of the Supreme Court of the United States.

* —

— ’ la j ft 442.

8 ener-

/ Attorney at Las

v 207 Jackson Building

Gainesville, Georgia 30501

Sworn to and subscribed

before me this oY aay

of 9 1882

„ 11 State ot Leepe

My Common Experes Agre 28 1985