Reply Brief for the United States — United States v. Cronic

a | Supreme Court, U.S,

5 FILED

Sj No. 82-660 DEC 23 1983

ALEXANDER L. STEVas

CLERK

*

*

zu the Supreme Court of the United States

OcTOBER TERM, 1983

UNTYTED STATES OF AMERICA, PETITIONER

v.

HARRISON P. CRONIC

' ON WRIT OF CERTIORARI TO THE UNITEL STATES

., COURT OF APPEALS FOR THE TENTH CIRCUIT

N REPLY BRIEF FOR THE UNITED STATES

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TABLE OF AUTHORITIES

Cases: Page

Brooks v. Tennessee, 406 U.S. 6066 „ 3

Coles v. Peyton, 389 F.2d 224, cert. denied, 393

Zee 6

Cooper v. Fitzharris, 586 F. 2d 1325, cert. denied,

r Sas ee cre ey 17

Deschenes v. United States, 224 F.2d 688 16, 17, 20

Faretta v. California, 422 U.S. 809?9f 8

Federman v. United States, 36 F.2d 441, cert. de-

re . 16

Garland v. Cor, 472 F.2d 875 _.......... „ 6

Geders v. United States, 425 U.S. 0 3

Harlow v. Fitzgerald, 457 U.S. 800 17

Harris v. Housewright, 697 F.2d 202 3

Herring v. New York, 422 U.S. 8588 3

Holloway v. Arkansas, 435 U.S. 475555 3,9

MacKenna v. Ellis, 280 F.2d 592, aff'd per curiar,

289 F.2d 928, cert. denied, 368 U.S. 877ꝝꝓ7 6

Matthews v. United States, 518 F.2d 124 13, 17

McMann v. Richardson, 397 U.S. 75999 17

Moore v. United States, 482 F.2d 730 6

Pereira v. United States, 347 U.S. 1 —.................... 8,19

Powell v. Alabama, 287 U.S. 4 6

Rastrom v. Robbins, 440 F.2d 1251, cert. denied,

„ 6

United States v. Bailey, 444 U.S. 31444444 19

United States v. Bessesen, 445 F.2d 463, cert. de-

. Se 16, 20

United States v. Broxmeyer, 192 F.2d 230 16

United States v. Clark, 456 F.2d 187 16, 17, 20

United States v. Constant, 501 F.2d 1284 19

United States v. Daly, 716 F.2d 1499 —

United States v. Decoster, 624 F.2d 196, cert. de-

RR IID secclitiictetscrnitindertitincnsccricsnntnsiesiii 12, 13

United States v. Foshee, 578 F. 2d 629 16, 19

United States v. Frankel, No. 83-1161 (3d Cir.

Nov. 22, 1983) 16

United States v. Goss, 650 F.2d 13838 19 1

United States v. Grose, 416 F 1206, cert. de- -

nied, 397 U.S. 1013 — 16, 19 ¢

Il

Cases—Continued : Page

United States v. Katz, 425 F.2d 928 — 0... 12

United States v. Knight, 443 F.2d 1744 6

United States v. Scott, 701 F.2d 134ko 16

United States v. Southers, 583 F.2d 13002 16

United States v. Stoddart, 574 F.2d 1050 17

United States v. Street, 529 F.2d 22 8, 16

United States v. Young, 618 F.2d 121112 16

United States ex rel. Williams v. Twomey, 510 F.2d

634, cert. denied, 423 U.S. 875 —.............-.0.....-.... 6

Washington v. Strickland, 693 F.2d 1243, cert.

granted, No. 82-1554 (June 6, 1983) 12

Williams v. United States, 278 F.2d 5358 16, 19, 20

Williams v. United States, 458 U.S. 279 8, 15, 16

Wolfs v. Britton, 509 F.2d 304 0. 6

Constitution and statutes:

,,, Ret Ee 2, 3,5

Svyeedy Trial Act, 18 U.S.C. 3161(c) (22222 8

Judiciary Act of 1789, ch. 20, 1 Stat. 73 et seg 3

rer 3

18 U.S.C. 1014 — See 15, 16

AIEEE Se ene eo 2. 16, 19

r Wea re OLE 4

c 3

„ 1 XLL— . ae ee 20

Miscellaneous:

Burger, Some Further Reflections on the Problem

of Adequacy of Trial Counsel, 49 Fordham L.

r ee anne X 4

Martindale Hubbel Law Di eetory (1983 ed.) 4

Annot., Reasonable Expectation of Payment as

Affecting Offense under “Worthless Check”

Stututes, 9 A.L.R. 3d 719 (1966) — — 2W59„%œ 20

Aa

Ol a eee *

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-660

UNITED STATES OF AMERICA, PETITIONER

v.

HARRISON P. CRONIC

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Respondent concedes that this case ordinarily would not

require more than 25 days to prepare for trial and that

the Constitution did not require the district court to ap-

point counsel who had more experience in criminal] cases

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the court of appeals could have found a Sixth Amend-

ment violation based on what respondent asserts were

deficiencies in counsel’s actual performance. But the court

of appeals did not decide the case on that ground, and

the district court likewise did not address these issues.

Accordingly, this Court would not normally pass on re-

spondent’s complaints about his attorney in the first in-

stance. Nor is there any reason to remand the case for

5

purpose.

Respondent has combed the record in search of ways in

which to second-guess counsel’s trial strategy, to imply

that counsel was negligent and failed to investigate, and

to create the impression that counsel did not understand

governing legal principles. These contentions are entirely

unsubstantiated on the present record, and the particu-

lar defenses respondent now suggests that counsel should

have pursued are without basis in fact or law. The evi-

dence at trial established that respondent was caught red-

handed in a classic check-kiting scheme of the kind that

long has been held to violate 18 U.S.C. 1341. Respond-

ent’s attempt to attack his conviction by attacking his

attorney in these circumstances underscores the need for

the Court to articulate a test for ineffective assistance of

tomatic reversal is required, because the trial court made

adequate preparation “impossible” by granting Colston,

who did not have prior experience in criminal trials,

“only” 25 days to prepare (Resp. Br. 28). This reason-

ing is seriously flawed.

a. As an initial matter, respondent’s contention is sub-

stantially undermined by his repeated concession (Resp.

Br. 31, 33, 44-45, 47) that he had no constitutional right

to have the court appoint a lawyer who had more ex-

perience in criminal cases than did Colston. This conces-

sion is sound. As we have explained in our opening brief

(Gov’t Br. 39-41), “in determining whether there has

been effective assistance, the primary focus must be on

how well counsel performed in the particular case, not

on how much experience counsel has had. Counsel

may sometimes compensate for their lack of experience

by unusual zeal and industry.” Harris v. Housewright,

697 F.2d 202, 205 (8th Cir. 1982) (footnote omitted).

There is, moreover, no reason to believe that the

Framers of the Sixth Amendment intended the term

“Counsel” to mean something more than a member of the

bar admitted to practice before the court. The Judiciary

Act of 1789, ch. 20, 1 Stat. 73 et seg., which was signed

one day before the Sixth Amendment was proposed (Fa-

retta v. California, 422 U.S. 806, 831 (1975)), reflects

this understanding. Section 35 of that Act provided that

“in all the courts of the United States, the parties may

plead and manage their own causes personally or by the

assistance of such counsel or attorneys at law as by the

rules of the said courts respectively shall be permitted to

manage anti conduct causes therein.” 1 Stat. 92; 28

U.S.C. 1654. These standards were met in this case. It

is undisputed that Colston was a member of the Bar of

1 See Resp. Br. 30-32, citing Holloway v. Arkansas, 485 U.S. 475

(1978) ; Geders v. United States, 425 U.S. 80 (1976); Herring v.

New York, 422 U.S. 853 (1975) and Brooks v. Tennessee, 406 U.S.

605 (1972).

4

Oklahoma * admitted to practice before the district court

and that he was selected to represent respondent in ac-

cordance with the district court’s plan under the Criminal

Justice Act (CJA) (J. A. 38). 18 U.S.C. 3006A(a).

Unlike respondent, amici do contend that “[{s]omething

more than a license to practice [law] is necessary * * *

where the client will probably be imprisoned” (NACDL

Br. 22). But NACDL nowhere attempts to find support

for this view in the text, history, or purposes of the Sixth

Amendment. Nor does NACDL define what the “[s]ome-

thing more” it urges should consist of, and it states that

this Court likewise need not fashion a “bright line” test

(‘NACDL Br. 22). NACDL instead proposes that the

trial court inquire on a case-by-case basis into the “skill,

qualification, ability, training and experience” of counsel

NACDL Br. 23). This approach would impose a sub-

stantial burden on trial courts, which now may rely on

readily ascertainable eligibility criteria that reflect the

expert judgment of the responsible licensing authority or

other body regarding the minimum qualifications neces-

sary to appear in che case, including any special certifica-

tion of competence in trial advocacy or criminal defense.

Indeed, whether counsel in criminal prosecutions should

possess qualifications in addition to admission to the bar

and the details and manner of implementation of any

such requirement are matters uniquely appropriate for

resolution through legislation, the promulgation of court

rules, revision of CJA plans and parallel state programs,

and initiatives by the bar and law schools. See Burger,

Some Further Reflections on the Problem of Adequacy of

Trial Counsel, 49 Fordham L. Rev. 1 (1980).* The bare

2 According to the 1983 edition of the Martindale Hubbel Law

Directory (at 617B), Colston was admitted to the Oklahoma Bar

in 1975, five years before the trial in this case.

* Contrary to respondent’s assertion, we do not suggest in our ;

opening brief (Gov't Br. 19-20) that “constitutional concepts should 4

terms of the Sixth Amendment furnish no guidance on

these issues. The adoption by this Court of rigid require-

ments directly under the Sixth Amendment also would

intrude upon the traditional prerogative of the states to

regulate the practice of law and would stifle the very

type of experimentation in improving the quality of rep-

resentation that NACDL and others urge. NACDL Br.

22-24; NLADA Br. 52-53; Resp. Br. 47.

b. Respondent also expressly concedes that the trial

court “was under no necessary obligation, under the Con-

stitution, to allow more than twenty-five days te prepare“

for trial in this case (Resp. Br. 33; see also id. at 28).

But he nevertheless contends (Resp. Br. 28-30) that the

trial court made adequate preparation “impossible” within

that time because it appointed an attorney who did not

have prior criminal trial experience. This contention

is without merit. There is no basis in the present record

or in common sense for concluding that Colston was

effectively precluded from prepari::g for trial in the

time that respondent concedes would ordinarily be con-

stitutionally adequate. To the contrary, the indications

are that Colston performed conscientiously and thoroughly

in the face of a compelling case against his client. The

play no part in remedying incompetence” (see Resp. Br. 39). We

agree that the Sixth Amendment may furnish a basis for relief in an

appropriate case if the attorney’s performance depar ed significantly

from the range of competence reasonably expected of defense

counsel, to the substantial detriment of the accused. The point in

our opening brief is simply that Sixth Amendment analysis should

focus on the effect of counsel’s actions on the rights of the accused

cient way to attempt to solve the systemic and elusive problem of

attorney competence generally.

6

timing of Colston’s appointment therefore was simply not

the sort of external impediment from whieh~it_must be

conclusively presumed that the aceused feceived ineffec-

tive assistance, without regard to counsel’s actual per-

formance. Compare Powell v. Alabama, 287 U.S. 45, 71

(1932 (effective assistance “preclude[d]” by designa-

tion of responsible counsel on day of trial).

*This case does not remotely resemble the decisions of other

courts of appeals that respondent contends (Resp. Br. 29 & n.15)

are “plainly in line“ with the decision below. See Rastrom v.

Robbins, 440 F.2d 1251, 1255 (ist Cir.), cert. denied, 404 U.S.

863 (1971) (inexperienced counsel was given four hours to prepare

for trial; counsel declared he was not prepared; defendant was

mentally unstable); United States v. Knight, 443 F.2d 174, 177

(6th Cir. 1971) (counsel allowed 30 minutes between appearance

and trial and “was denied any opportunity whatsoever to interview

witnesses or otherwise to investigate the case”); United States ex

rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.), cert. denied, 423

U.S. 876 (1975) (inexperienced counsel appointed on day of trial;

no opportunity to interview or call co-defendant who would have

given exculpatory testimony); Wolfs v. Britton, 509 F.2d 304 (8th

Cir. 1975) (request for continuance denied even though counsel

had only 1'2 days to prepare, there were “inexplicable” circum-

stances in the offense and a possible psychiatric defense, and counsel

was unable to contact out-of-state witnesses) ; MacKenna v. Ellis, 280

F.2d 592 (5th Cir. 1960), aff'd per curiam, 289 F.2d 928 (en banc),

cert. denied, 368 U.S. 877 (1961) (inexperienced counsel who had

a conflict of interest because of pending applications for employ-

ferred with defendant for 15 or 20 minutes prior to trial).

In Moore v. United States, 482 F.2d 730, 735, 738-740 (3d Cir.

1970) (en banc), the court affirmati

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Furthermore, if, as respondent concedes, the court’s

designation of Colston satisfied the constitutional require-

ment that “Counsel” be appointed, the time that ordi-

narily would be sufficient for “Counsel” to prepare a

ease of this sort for trial cannot be conclusively presumed

to be inadequate. At least that is so in this case, where

the trial was not held only a day or two after counsel was

appointed. Colston had ample time in 25 days to com-

pensate for his lack of prior experience by, for example,

seeking the advice of more experienced counsel if neces-

sary. And the affidavit filed by the government in the

court of appeals indicates that Colston in fact did re-

ceive the assistance of an experienced criminal lawyer,

R land Rivas, in preparation of the case and at trial

(Gov't Br. App. la).“

e. The other factors respondent cites (Resp. Br. 29)

to support his claim that Colston had insufficient prepa-

ration time are insubstantial. First, the fact that re-

spondent faced a maximum of 65 years’ imprisonment

on a 13-count indictment reveals nothing about the prep-

aration time required. The 13 counts in the indictment

were based on 13 similar transactions in one overall

course of conduct. Second, the fact that the indictment

was returned 4% years after the crimes were committed

is not a measure of the time defense counsel needed, es-

pecially since the government made the fruits of its in-

vestigation available to Colston (J.A. 35). Third, there

is no indication that the fact that witnesses resided in four

states had any adverse effect on counsel’s preparation.

Finally, contrary to respondent’s assertion (Resp. Br.

29), a mail fraud case is not inherently “complex and

arcane.” There are but two elements of the offense:

5 Respondent attempts to dismiss Rivas’s role by asserting that

“(t)he record establishes that if [Rivas] was present, it was as

little more than a spectator” (Resp. Br. 17). The record establishes

no such thing. It is true that Rivas did not actually conduct the

defense at trial. But this does not undermine Rivas's averment that

he assisted Colston prior to and during trial.

8

“(1) a scheme to defraud, and (2) the mailing of a letter,

ete., for the purpose of executing the scheme.” Pereira

v. United States, 347 U.S. 1, 8 (1954). Here, the use

of the mails was established by testimonial and docu-

mentary evidence (Gov’t Br. 4), and indeed the delay in

clearing checks occasioned by the use of the mails was

responsible for the “float” that respondent concedes was

created (see Resp. Br. 55, 60 n.50). See, e.g., United

States v. Street, 529 F.2d 226, 229-230 (6th Cir. 1976).

Respondent does not suggest that Colston should have

been able successfully to challenge the government’s

proof of this element of the offense, aithough he at-

tempted to do so (Gov’t Br. 5). The complexity of the

second element—the existence of a scheme to defraud—

depends on the nature of the particular scheme involved.

Here, respondent was charged with check-kiting. This

Court described that practice in simple terms in Williams

v. United States, 458 U.S. 279, 281 & n.1 (1982). and the

mechanics of such a scheme would not be difficult to grasp

for anyone who maintains a checking account. There is,

in short, no reason to believe that preparation of this

mail fraud case was impossible“ within 25 days.“

* Respondent asserts for the first time (Resp. Br. 64) that the

scheduling of the trial violated his rights under the Speedy Trial

Act, 18 U.S.C. 3161 (e) (2), which provides that “the trial shall not

commence less than thirty days from the date on which the de-

fendant first appears through counsel or expressly waives counsel

and elects to proceed pro se.” See also NACDL Br. 37-48. Respond-

ent did not raise this objection in either court below or present it in

his Brief in Opposition as an alternative ground for affirmance of

the judgment below. There accordingly is no reason for this Court

to consider it.

In any event, this contention is without merit, as we explain

in our opening brief. See Gov't Br. 87 n.26. Respondent’s reliance

(Resp. Br. 64) on United States v. Daly, 716 F.2d 1499 (9th Cir.

1983), is misplaced. The court in Daly explicitly held that “the

30-day period begins to run when an attorney appears

ant’s behalf after the indictment or information

f

d. Respondent also contends that “automatic reversal

is appropriate” (Resp. Br. 31) because, in his view;

when the district court was apprised of Colston’s need

for more time, it failed to inquire adequately into the

matter or to take appropriate action. See Resp. Br.

31-33, 35. Contrary to respondent’s assertion (Resp. Br.

: 4), however, the district court did not “preemptorily set

the trial date” when Colston requested a continuance in

order to prepare for trial. The court fully considered the

argument by respondent, Colston, and Levine that addi-

tional preparation time was needed (J.A. 33-35), and it

then granted the request for a continuance, “despite the

fact the case hald] been delayed a great deal” (J. A.

85). The court simply decided to cut the continuance a

“few days short” of the 30 days requested in order to fit

the case into its schedule (J.A. 35). Neither respondent

nor Colston objected to this accommodation, and neither

thereafter requested a further continuance on the ground

that the 25 days the court originally granted had proven

to be insufficient. Nor has respondent even now shown

There, the trial court

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10

2. Perhaps recognizing the flaws in the court of ap-

peals’ automatic reversal of his conviction without find-

ing specific deficiencies in counsel’s performance, respond-

ent argues (Resp. Br. 35, 54-61) that the court of appeals

could have found such deficiencies and granted relief on

that ground. But of course it did not do so, and, as re-

spondent apparently concedes (Resp. Br. 42), most of the

alleged errors by counsel upon which respondent now

relies were not even raised in the court of appeals. More-

over, because the claim of ineffective assistance of coun-

sel was raised for the first time on appeal, the district

court likewise has not made findings or developed a record

on that claim.* This Court therefore cannot reasonably be

expected to consider the scattershot attack respondent now

makes on Colston’s performance.

We nevertheless will address several of respondent’s

contentions so that this Court wil! not be left with the

erroneous impression that there is substance to respond-

ent's extravagant assertions that “[a)ctual, specific prej-

by depriving the defendants of counsel who had undivided loyalty.

Id. at 485-486, 489-490. Here, by contrast, the trial court did not

ignore respondent’s concerns, and there is every reason to believe

that the continuance the court granted was sufficient to remedy the

asserted inadequacy of preparation time.

*On March 11, 1981, more than six months after the judgment

of conviction was entered, respondent filed a motion for a new

trial on the basis of newly discovered evidence. Respondent in-

cluded in

and performance. See New Trial Motion at 21-28. These allega-

tions would not appear to be cognizable in a motion for a new trial

11

udice appeared on almost every page of the record”

(Resp. Br. 35) and that “gross” failures by counsel “leap

from the record” (Resp. Br. 54). On the present record,

respondent’s speculation, nitpicking, and second-guessing

of his attorney’s performance serve only to illustrate the

mischief that will result if this Court does not require a

substantial threshold showing of a fundamental defect in

the proceedings in order to obtain relief on a claim of

ineffective assistance of counsel.

a. The first of the errors by counsel that respondent

says “leap from the record” are that “[c]ounsel neither

interviewed nor attempted to interview the prosecution’s

eighteen witnesses” and “failed to seek and obtain any

prior statements of such witnesses made to the govern-

ment” (Resp. Br. 54). Yet respondent does not cite any

evidence—from the record or elsewhere—for these bald

assertions. What is more, Colston’s CJA reimbursement

form, included as an appendix to NACDL’s Brief, states

that Colston devoted 45 hours to “interviews and confer-

ences.” The CJA form does not identify who Colston in-

terviewed or conferred with, but the amount of time de-

voted to these functions hardly suggests the neglect of the

case respondent now seeks to portray. Colston’s CJA

form further indicates that he devoted 29.6 hours to “ob-

taining [and] reviewing records.” The documents in-

volved are not identified on the CJA form, but the record

does establish that Colston was granted access to the

Postal Service’s extensive investigative file (J.A. 35).°

We obviously do not ask this Court to resolve any factual

issues regarding what Colston actually did to prepare for

trial. But a court may not grant relief on the basis of

We have been informed by the Assistant United States Attorney

responsible for the case that these materials contained statements

made to investigators by government witnesses; that Colston

amined those materials (see also Tr. 423); and that, during

discovery conference, Colston was informed of the details of

anticipated testimony of government witnesses.

12

an assumption or unsubstantiated assertion that counsel

failed to perform certain functions, as respondent urges.

In addition, even if respondent were correct that Colston

did not interview certain government witnesses or obtain

their prior statements, this alone would not entitle him

to relief. Respondent has not shown what information

would have been obtained or how it would have been

useful at trial. There also were alternative ways by which

Colston could learn of the witnesses’ anticipated testimony

or other evidence. Respondent himself acknowledges that

a [failure to make a thorough extrinsic investigation

may be mitigated by the fact that substantial evidence

has been obtained from the prosecutors and from the

defendant” (Resp. Br. 49; see also United States v.

Decoster, 624 F.2d 196, 209-210 (D.C. Cir.) (en bane)

(plurality opinion), cert. denied, 444 U.S. 944 (1979)),

and the scope of counsel’s investigation also properly may

be affected by the “strength of the government's case.”

Washington v. Strickland, 693 F.2d 1243, 1253 n.16 (5th

Cir. 1982) (en banc), cert. granted, No. 82-1554 (June

6, 1983). See also United States v. Katz, 425 F.2d 928,

930 (2d Cir. 1970) (Friendly, J.). In these circum-

stances, the observations of Justice (then Judge) Stevens

in response to similar claims are equally apt here:

Appellants have alleged that their attorney inter-

viewed them for less than an hour, * * * and that he

favorable to the defendants. But they have not al-

leged tha any such evidence or witness existed, or

was made known to their attorney, or could have

been discovered by an investigation. Petitioners have

not told us what was said in their conference with

counsel. Perhaps, for all we know, they merely ex-

plained that they had indeed forged the 35 ballot

applications which were placed in evidence by the

7 oe ke to ek ee

13

Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir.

1975).

Furthermore, even if respondent were able to show

that Colston failed to investigate certain matters and

that this failure caused his performance to fall below the

range of competence expected of defense counsel, it still

would be necessary for him to satisfy the second prong

of the test for obtaining relief on the basis of ineffective

assistance of counsel by showing that prejudice resulted

from Colston’s omissions. See Gov’t Br. App. 7a-10a;

U.S. Amicus Br. at 12-18, Strickland v. Washington, No.

82-1554. As we have explained in our amicus brief (at

18-26) in Strickland, this showing of prejudice must be

at least equivalent to that required to obtain relief on the

basis of the substantive defect in the trial that counsel is

alleged to have caused. Where, as here, the asserted de-

fect is that the judgment of conviction was based on less

than all the relevant evidence, the defendant who alleges

that his attorney caused this defect by failing adequately

to investigate and present evidence at trial should be re-

quired to make the showing that is universally required

in order to obtain a new trial on the basis of newly dis-

covered evidence. Under that test, the defendant must

show that the evidence, if available on retrial, probably

would result in an acquittal. See also United States v.

Decoster, 624 F.2d at 208 (plurality opinion) (“a likeli-

hood that counsel’s inadequacy affected the outcome of the

trial“).

The soundness of that approach is especially evident

in this case. In district court, respondent filed a motion

for a new trial based on newly discovered evidence, rely-

ing principally on evidence of the Norman bank’s fore-

closure of the mortgage on the bottling plant (see pages

18-19, infra) and that overdrafts represent a legitimate

extension of credit. New Trial Motion at 2, 4-21. See

note 8, supra. In his memorandum in support of that

motion (at 3-4), respondent acknowledged that he had to

14

the newly discovered evidence test should be relaxed be-

cause Colston was incompetent in failing to develop this

evidence, he did not argue that he should be excused

from showing that the evidence probably would result in

an acquittal on retrial. ‘Now respondent has recast es-

sentially the same argument as a claim of ineffective as-

sistance of counsel and argues that a failure to develop

a defense based on this evidence is a “substantial” defect

that requires reversal without regard to the probable ef-

fect on the outcome of the trial or indeed without any

showing of prejudice at all, except perhaps under a harm-

less error standard. See Resp. Br. 49. This vividly il-

lustrates how, under the approach urged by respondent

herein and the respondent in Strickland v. Washington,

a substantive defect in the proceedings that would not

warrant relief in its own right can readily be trans-

formed into a ground for relief simply by claiming that

counsel was ineffective in causing the defect.

b. Respondent also plainly errs in contending that there

was “manifest incompetence” (Resp. Br. 56) because

elounsel should have proved that writing checks to ob-

tain the benefit of the ‘float’ and to impress bankers with

balances and activity is both common and legitimate”

(Resp. Br. 55). Respondent’s activities do not at all

10 The respondent in Strickland v. Washington argues (Resp. Br.

62-67) that a test that focuses on the probable effect on the out-

15

resemble the accepted banking and business practices to

which he seeks to compare them.” Moreover, although

this Court held in Williams v. United States, 458 US.

279 (1982), that check-kiting does not violate the par-

ticular federal statute there at issue (18 U.S.C. 1014),

the Court plainly did not regard the practice as “legiti-

mate.” See 458 U.S. at 287. And, as Justice Marshall

observed in dissent in Williams, “(t]he Courts of Appeals

have been virtually unanimous in holding that check

kiting is subject to federal prosecution under the mail

an? wire fraud statutes, and the majority [in Williams]

apparently [did] not question these decisions.” 458 U.S.

at 305 (citations omitted). See, e. g., United States v.

that he would want the help of an accountant but then did not

file a motion for that assistance. There is no indication, however,

why an accountant’s services were not sought. Perhaps Colston

and Rivas determined that the assistance of an accountant was not

required after all because the case did not prove to be as complex

as it initially appeared or because the defense they decided to

present—that the check-kiting scheme was the work of Cummings

rather than respondent—might have made a detailed examination

of that scheme unnecessary or even counterproductive at trial. In

any event, respondent has not shown what evidence would have

been developed by an accountant.

12 Although it may be acceptable to obtain a loan from one bank

and then borrow from another bank to repay the first loan (see

Resp. Br. 55 & n.45), the banks concerned would have made an

informed and deliberate decision to extend credit; check-kiting, by

contrast, involves exploitation by the borrower of the check collec-

16

Gross, 416 F.2d 1205, 1212 (8th Cir. 1969) (Blackmun,

J.), cert. denied, 397 U.S. 1013 (1970) (“[i]t is estab-

lished that check kiting is within the reach of the fraud

statutes”) .”

Respondent appears to suggest (Resp. Br. 56-57, 59-

60 & nn. 49, 50) that this long-settled construction of 18

U.S.C. 1341 has been called into question by the decision

in Williams v. United States. But «ven if respondent

were correct—and there is no indication in Williams that

he is ‘—this would hardly establish ineffective assist-

ance of counsel at respondent’s trial in 1980. Colston

could not be found incompetent for not anticipating the

holding in Williams or for believing an indictment for a

check-kiting scheme under 18 U.S.C. 1014 (much less

under 18 U.S.C. 1341) “to be as valid as the [four]

18 See also United States v. Brormeper, 192 F.2d 230, 232 (2d

Cir. 1951) ; United States v. Foshee, 578 F.2d 629 (5th Cir. 1978) ;

United States v. Street, 529 F.2d 226 (6th Cir. 1976) ; United States

v. Bessesen, 445 F.2d 463, 469 (7th Cir.), cert. denied, 404 U.S.

984 (1971) ; Federman v. United States, 36 F.2d 441, 442 (7th Cir.),

cert. denied, 281 U.S. 729 (1929) ; United States v. Young, 618 F.2d

1281, 1285 (8th Cir. 1980); Williams v. United States, 278 F.2d

585 (9th Cir. 1960); United States v. Clark, 456 F.2d 1375, 1877-

1878 (10th Cir. 1972); Deschenes v. United States, 224 F.2d 688,

690 (10th Cir. 1955); United States v. Scott, 701 F.2d 1340, 1348

(11th Cir. 1983), quoting United States v. Southers, 583 F.2d 1302,

1808 n.8 (5th Cir. 1978).

the government charged a violation of 18 U.S.C. 1841 that was

premised on the theory that the accused obtained money by a false

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f

was not holding that check-kiting was altogether beyond

reach of 18 U.S.C. 13841—e.g., if the indictment charged a

“scheme or artifice to defraud” that did not depend on the theory

that an insufficient funds check is itself a false representation. Slip

op. 6-10. The indictment in this case incorporated both theories

JA. 10, 12-28). Accordingly, even assuming that the decision in

is correct, it would not follow that respondent was wrongly

17

dissenters in that case thought [it] to be.” Cooper v.

Fitzharris, 586 F.2d 1325, 1334 (9th Cir. 1978) (en

-banc), cert. denied, 440 U.S. 974 (1979), quoting Me-

Mann v. Richardson, 397. U.S. 759, 773 (1970) (first

brackets in Cooper opinion).

Consistent with this view, we have argued in our

amicus brief (at 26-30) in Strickland v. Washington that

whether an attorney’s performance fell materially below

the range of competence demanded of defense counsel

should be determined, as a threshold matter, by an ob-

jective standard. Under that standard, before a court

would inquire into counsel’s litigating strategy, the de-

fendant would be required to show that the legal right or

position he contends counsel should have asserted was

clearly established under controlling statutory or case law

at the time of counsel’s actions. See Harlow v. Fitzgerald,

457 U.S. 800, 815-819 (1982). Such a rule woul vro-

vide a remedy for any fundamental unfairness i: the

proceedings, and yet obviate the need in many cases for

a broad-ranging and sensitive inquiry into counsel’s

handling of the defense, assure some consistency among

decisions, respect the constitutionally required independ-

ence of defense counsel, and give effect to the presumption

on which the adversary system is premised: “that [coun-

sel] was conscious of his duties to his clients and that he

sought conscientiously to discharge those duties.” Mat-

thews v. United States, 518 F.2d at 1246 (Stevens, J.).

It is clear that respondent is not entitled to relief under

this standard. At the time of his trial, controlling prece-

dent in thé Tenth Circuit established that check-kiting

was unlawful under the mail fraud statute (see United

States v. Clark and Deschenes v. United States, supra)

as well as under the “false statement” statute involved in

Williams (see United States v. Stoddart, 574 F.2d 1050,

1053 (10th Cir. 1978) ).

e. Respondent also contends that Colston was incompe-

tent because he did not present what respondent now

terms a “very substantial defense” (Resp. Br. 58); that

“there was no fraud and no intent to defraud” (Resp.

18

Br. 56) because the Norman bank ultimately was not

damaged by the check-kiting scheme. He even goes so far

as to claim that “[i)f there was a swindler, it was not

respondent—it was the Norman Bank” (Resp. Br. 57).

See Resp. Br. 56-58, 60. This assertion is frivolous.”

Upon discovery by officials of the Norman bank that re-

spondent’s activities had resulted in an imbalance of al-

most $1 million, they persuaded the Tampa bank to freeze

the approximately $500,000 it had in Skyproof’s account

(Tr. 169-170). Respondent promised to reimburse the

Norman bank for the remaining $484,000 when con-

fronted by bank officials in October 1975, but he never

attempted to make good on that promise (Tr. 172, 180-

181). As a result, there was a substantial question for

several weeks whether regulatory authorities would close

the bank (Tr. 174-175, 192).

In November 1975, without respondent’s knowledge,

Cummings executed a note to the Norman bank for the

amount of the $484,000 overdraft. This note was secured

by Skyproof’s assets, including the Paris Processing bot-

tling plant. Cummings testified that when respondent

prospect the remainder would be recovered (Tr. 179-180,

191-192, 437). When respondent then began to siphon off

the bottling plant’s income, the bank took control of the

19

plant in December 1975. Ultimately, the bank foreclosed

on the mortgage, the bottling plant was sold at a sheriff’s

sale to the bank (the only bidder) for $504,000, and the

plant immediately was purchased by two of the bank’s

directors for a $504,000 promissory note (Tr. 177-179,

207-208, 211-213, 217-218, 440-441). The bank’s attorney

testified at trial that the bank had not received any pay-

ments on this note and that the “prospects of it seeing

any cash in the full amount of what it’s been out are very

slim” (Tr. 218).

Thus, there is no basis in the record for the contention

that the Norman bank ultimately recovered the amount

of the overdraft, except in the form of the promissory

note from its directors. But even if everyone (including

the directors who sought to bail out the bank) ultimately

had been reimbursed by respondent, this would not negate

the existence of a violation of 18 U.S.C. 1341. The mail

fraud statute requires only the existence of a scheme to

defraud (Pereira v. United States, 347 U.S. at 8); it does

not require that the scheme be successful. See, e. g., United

States v. Goss, 650 F.2d 1336, 1342 (5th Cir. 1981);

United States v. Gross, 416 F.2d at 1209; Williams v.

United States, 278 F.2d 535 (9th Cir. 1960). In some

circumstances, reimbursement may constitute evidence of

an absence of fraudulent intent at the time of the over-

drafts. United States v. Foshee, 578 F.2d at 633-634. But

there was no evidence here that the bank received full

501 F.2d 1284, 1289 (5th Cir. 1974); ef. United States v.

Bailey, 444 U.S. 394, 411-417 (1980). Accordingly, Colston

20

cannot be thought to have been incompetent for attempt-

ing to place the entire responsibility for Skyproof and

its checking accounts on Cummings, rather than conceding

that respondent was responsible for both but maintaining

that he lacked fraudulent intent, as respondent now ar-

gues. Compare New Trial Motion at 11-21. In this re-

For the foregoing reasons and the additional reasons

stated in our opening brief, it is respectfully submitted

that the judgment of the court of appeals should be

reversed.

Solicitor General

DECEMBER 1983

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court and was raised for the firsi time on

should not, contrary to respondent’s sujrgestion

be remanded to the court of appeals for consid-

erated

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® os. 6. covennwent revere orrice; 1963 429291