Petition — Glick v. United States

ats 5 ar Court, U.S,

ee ae }

83 -

49 4 SEP 16 i983

ALEXANDER LL STEVAS,

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

STEVEN S. GLICK,

Petitioner,

Ve

UNiTED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS A. FISCHER

Fischer & Hill

1448 - 15th Street

Suite 104

Santa Monica, CA 90404

(213) 451-4815

Attorney for Petitioner

QUESTIONS PRESENTED

1. Does the Sixth Amendment's guaran-

tee of effective assistance of counsel entitle

the defendant to adequate pretrial investiga-

tion and preparation by his trial attorney?

2. If so, may defense counsel's failure

to conduct adequate pretrial investigation

and preparation be excused on the basis of

trial strategy and tactics despite the lack of

sufficient information to enable counsel to

make an informed and knowledgeable decision

not to present evidence supporting the

principal line of defense?

3. Did the Court of Appeals properly

reject petitioner's claim of inadequate inves-

tigation and preparation by trial counsel in

failing to obtain certain documentary evi-

dence and expert testimony, notwithstanding

the failure of counsel to provide’ such

assistance, on the grounds that counsel's

trial strategy was apparently to convince the

jury that such evidence would have been

favorable to petitioner but was suppressed by

the government, and that trial counsel was a

criminal law specialist, a former prosecutor,

and a member of the California Council of

Criminal Justice who had been hired by the

Justice Department to represent United States

Attorneys charged with perjury?

Table of Contents

Opinion Below

Jurisdiction

Constitutional Provision

Involved

Statement of the Case

Reasons for Granting the Writ

of Certlorari

Conclusion

Appendices

A - Opinion of the Court of Appeals

B - Order Denying Petition

For Rehearing

C - Order Granting Motion

For Stay of Mandate

Table of Authorities

Cases Page

Arsinger v. Hamlin

407 U.S. 25 (1972) 18

Coles v. Peyton

389 F.2d 224 (4th Cir. 1968) 28

Cooper v. Fitzharris

586 F.2d 1325 (9th Cir. 1978) 29

Cuyler v. Sullivan

446 U.S. 335 (1980) 22

Faretta v. California

422 U.S. 806 (1975) 18,20

McMann v. Richardson

397 U.S. 759 (1970) 20

Powell v. Alabama

287 U.S. 45 (1932) 18,20

United States v. DeCoster

487 F.2d 1197 (D.C.Cir. 1973) 28

United States v. Golub

638 F.2d 185 (10th Cir. 1980) 42

United States v. Hearst

466 F.Supp. 1068 (N.D. Cal. 1978)

affd. 638 F.2d 1190 (9th Cir. 1980) 39

United States v. Jewel!

532 F.2d 697 (9th Cir. 1976) 12

Iv

Table of Authorities

(Continued)

Cases

United States v. Porterfield

624 F.2d 122 (10th Cir. 1980)

United States ex rel. Williams

v. Twomey

510 F.2d 634 (7th Cir. 1975)

Constitutions

United States Constitution

Sixth Amendment

Statutes

18 U.S.C.

section 2

section 1341

section 2314

28 U.S.C.

section 1254(1)

Texts and Others

American Bar Assc ciation

Standards of Criminal Justice

passim

Www

22, 28

No. 83-

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

STEVEN S. GLICK,

Petitioner,

Vv.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Steven S. Glick, respect-

fully prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Tenth Circuit

rendered on June 10, 1983. This case presents

important questions of law concerning the

duties of trial counsel to investigate and

prepare the defense under the Sixth Amend-

ment to the United States Constitution.

OPINION BELOW

The opinion of the Court of Appeals is

reported at 710 F.2d 639, and is reproduced

as Appendix A to this petition. The order of

the Court of Appeals denying the Petition For

Rehearing (unreported) Is attached to this

petition as Appendix B. The Court's order of

August 17, 1983 granting petitioner's motion

for stay of mandate until September 19, 1983

is attached to this petition as Appendix C.

JURISDICTION

The judgment of the Court of Appeals

was filed on June 10, 1983. The order of the

Court of Appeals denying the Petition For

Rehearing was made on July 27, 1983. This

petition is timely filed within 60 days of

mer ee

July 27, 1983. The jurisdiction of this Court

is invoked under Title 28, United States Code

section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States

Constitution provides In pertinent part: "In

all criminal prosecutions, the accused shall

enjoy the right .. . to have the assistance

of counsel for his defense."

STATEMENT OF THE CASE

Petitioner Steven S. Glick was charged

by indictment filed in the United States

District Court for the District of Colorado

(D.Colo. No. 81-CR-92) with nine counts of

mail fraud, 18 U.S.C. § 1341, and two counts

of travel In interstate commerce to execute a

scheme to defraud, 18 U.S.C. § 2314. It was

further alleged that he aided and abetted

each of the above crimes. 18 U.S.C. § 2. The

charges against petitioner's two codefendants

x a

were disposed of prior to trial (defendant

Chisholm, by plea; defendant Pearce, by

dismissal). Opinion at A-1 - A-3; Br. of

Appellant at 2.

Petitioner appeared with counsel, attor-

ney Harland W. Braun of Los Angeles,

California, and entered pleas of not guilty.

One count of mali fraud was dismissed on

motion of the government prior to trial. Upon

trial by jury, before the Honorable Zita L.

Weinshienk, District Judge, petitioner was

found guilty of all remaining charges.

Petitioner was sentenced on each count to

concurrent terms of five years imprisonment,

all but six months of which were suspended,

with a probation period of five years

subsequent to release; full restitution was

ordered as a special condition of probation.

Br. of Appellant at 2. Petitioner's incarcera-

tion has been stayed pending appeal upon

Rig eS

posting of a bond.

The underlying facts of the fraudulent

scheme were somewhat complex. Bolled down

to its essentials, the evidence at _ trial

established that during 1975 and 41976

Reginald Chisholm, a man of great charm and

personal magnetism, masterminded a_ loan

financing arrangement by convincing several

Colorado residents that he was ae very

wealthy person who could package and obtain

loans for amounts arranging from $5,000 to

$20,000 upon payment of a nonrefundable

"front" fee. Chisholm showed his’ victims

financial statements describing his personal

wealth and that of three corporations he

owned or controlled. These statements were

prepared by petitioner, a certified public

accountant in California, and were accom-

panied by petitioner's declaration that the

statements fairly presented the _ financial

ie: Bw

positions of Chisholm and the_ respective

corporations in conformity with generally

accepted auditing standards and accounting

principles. Opinion at A-4 - A-5; Br. of

Appellee at 2-3; Br. of Appellant at 3-6.

The principal asset of Chisholm and his

corporations was his claim to mineral rights

in limestone formations located in National

Forest lands. These rights had been transfer-

red between Chisholm and his corporations,

and were reflected by an increased valuation

of the mining claims. The actual value of

Chisholm's mineral rights, and the nature of

his title to them, were major issues at

petitioner's trial. The Government presented

the testimony of two expert witnesses -- one,

a geologist with the Department of Interior,

Indicated that the value of the claims was

far below that shown on the financial

statements; the other, a Denver, Colorado

a a

Certified Public Accountant, asserted that the

financial statements prepared by petitioner

contained blatant violations of basic account-

ing principles. Opinion at A-5 - A-6; Br. of

Appellee at 3-5; Br. of Appellant at 6-10.

Petitioner testified that before and

during the time he had prepared _§ the

financial statements, four appraisals had

been made that substantially supported the

values coniained in his statements. However,

he was unable to remember the authors of or

the details of the two earliest appraisals.

The third report was prepared by one Smith,

who was not a geologist and admittedly had

an interest in the Chisholm business enter-

prises. Petitioner testified that, In fact, he

had not accepted the Smith appraisal at face

value because Smith lacked Independence. But

petitioner insisted that Smith's results had

been verified by another Independent real

ee

estate appraiser, Goldring, who had based

his evaluation on facts and figures supplied

by Smith. Although the Smith report was

admitted into evidence at trial, petitioner

was unable to produce the Goldring report.

Chisholm meanwhile had _ previously been

convicted in a federal criminal proceeding in

Portland, Oregon, on charges arising from

other acts involving ae similar fraudulent

plan.

Chisholm had obtained a fifth appraisal

in 1978 in preparation for his Portland trial.

This preliminary evaluation, from a geologist

named Stickel, indicated that one of the

minerai claims contained sufficient limestone

deposits to warrant consideration of commer-

clal mining. This appraisal was admitted

into evidence by stipulation of the parties,

although Stickel himself was not called to

testify.

Petitioner testified without dispute that

he began performing accounting work for

Chisholm many years before when Chisholm

ran a_eschool in Los’ Angeles; petitioner

thought him to be an honest man. Chisholm

had organized Trans-Universal Finance Com-

pany in 1974, for’ the purpose of presenting

loan packages to lending institutions for its

clients, and petitioner did some accounting

work for the company at that time. However,

after Chisholm moved to Las Vegas in 1975 or

1976, petitioner had less contact’ with

Chisholm's business activities but continued

to perform occasional work on essentially a

long-distance basis when requested.

Petitioner testified that he knew

Chisholm was obtaining packaging fees to

organize presentable loan packages through

Trans-Universal, and understood that the

financial statements which he prepared were

helpful to Chisholm in making loan applica-

tions for his clients. In fact, petitioner was

aware of four loans that Trans-Universal

successfully obtained or guaranteed, a fact

also confirmed by F.B.I!. investigation.

Petitioner testified that he believed the

limestone deposits were of considerable value

to Chisholm, and agreed with the valuations

of $53 million or $54 million made in the

Smith and Goldring appraisals. Petitioner

acknowledged his financial statements were

inappropriate for the purpose of obtaining

loans, but as indicated by the four loans

Trans-Uni versal did facilitate, properly

served as guarantee documents. Until

Chisholm was subsequently indicted in

Portland, Oregon, petitioner thought

Chisholm's loan packaging business was

entirely bona fide. Petitioner insisted he did

not prepare the financial! statements or

=—

:

otherwise Knowingly and intentionally parti-

cipate with Chisholm in defrauding anyone or

for a fraudulent purpose. Opinion at A-6 -

A-8; Br. of Appellant at 10-14.

On appeal from his convictions, petition-

er raised two issues: (1) that the district

judge improperly instructed the jury on the

issue of fraudulent intent by giving an

instruction on "deliberate ignorance" which

failed to satisfy the requirements of know-

ledge for aiding and abetting a scheme to

defraud; and (2) that he was. denied

effective assistance of counsel because his

trial attorney failed to conduct pretrial

investigation and preparation to defend

against the charges.

In its opinion filed June 10, 1983, the

United States Court of Appeals for the Tenth

Circuit rejected both contentions and affirmed

the judgment below. The Court concluded that

a @ «

an instruction on deliberate avoidance was

appropriate under the facts, and that

omission of preferable language suggested in

United States v. Jewell, 532 F.2d 697 (9th

Cir. 1976) (en banc), cert. denied, 426 U.S.

951, and subsequent progeny, pertaining to

the accused's awareness of a high probabili-

ty of the existence of the fact in question

unless he actually believes it does not exist,

did not constitute reversible error because

trial counsel failed to respond to the district

court's repeated offers to modify the instruc-

tlon to Include appropriate language. Opinion

A-8 - A-18.

In also rejecting petitioner's second

ground for appeal, the Court of Appeals

relied heavily on a case decided after oral

argument, Washington v. Strickland, 693 F.2d

1243 (5th Cir. Unit B 1982) (en banc), cert.

granted, June 6, 1983 (No. 82-1554), 33

oe

Cr.L.Rptr. 4073. The Court first noted "the

lack of any objective showing that the

missing appraisals were available, credible,

or favorable to Glick," opn. at A-22, as the

record reflected "only Glick's self-serving

statements as to the existence of the contents

of the two early appraisals and the Goldring

report."' Absent evidence to the contrary, the

Court presumed that counsel's decision not to

produce such documents, "even If they were

available, was a matter of trial strategy."

Ibid.

The Court also concluded that defense

counsel's determination not to call Stickel as

a witness was a reasonable tactical decision.

The Court reasoned that since counsel had

read the transcript of Stickel's testimony at

Chisholm's Portland trial, he was thus In a

position to evaluate the benefits and draw-

backs of calling Stickel in the present

- 13 -

matter. The Court also referred to Mr.

Braun's speculation that Stickel's value as a

witness might be affected because Chisholm

still owed Stickel about $40,000. Opinion at

A-22 - A-23.

Finally, aithough unsupported by objec-

tive information presented to the Court, note

was taken of petitioner's trial counsel's

background as "a crimina! law specialist, a

former prosecutor, and a member of the

California Counsel of Criminal Justice" and

that he "had been hired by the Justice

Department to represent United States attor-

neys charged with perjury." Opinion at A-23

- A-24.

Based upon its review of the record, the

Court therefore agreed with the government

"that counsel's trial strategy was

apparently to convince the jury that

the Government had hidden witnesses

and documents helpful to the defense.

Moreover, the absence of the docu-

ments and testimony made it possible

—

for counsel to imply to the jury that

the evidence would have been favor-

able to Glick. We conclude on this

record that Glick received effective

assistance of counsel." Opn. at A-24.

Challenging these latter conclusions In a

Petition For Rehearing, petitioner submitted

his own affidavit as an appendix thereto in

order to present several factual matters

rebutting the Court's previous speculation

concerning defense counsel's justification for

his actions. Petitioner's affidavit specifically

asserted that he asked counsel to contact

both Chisholm and Stickel in order to obtain

the missing documents and produce necessary

affirmative defense evidence. Petitioner stated

his belief that counsel did not read the

transcript of Stickel's Portland testimony,

that he had not conducted any serious

investigation nor prepared to present defense

witnesses or other supporting documentary

evidence, but hoped simply to attack the

» 15 =

government's case through cross-examination

and argument without verifying through

discovery that favorable defense evidence was

not available. Pet. Rhrg. Attachment at 1-3.

However, rehearing was denied on July 27,

1983. Appendix B.

On August 17, 1983, the Court granted

petitioner's motion for stay of its mandate

pending timely application to this Court for

certiorari. The mandate was ordered stayed

until September 19, 1983, upon condition that

if on or before that date a notice was filed

with the Clerk of the Court of Appeals from

the Clerk of the Supreme Court of the United

States that a petition for writ of certiorari

had been timely filed, the stay would

continue until final disposition by § this

Court. Appendix C.

Ss ae

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

|

THIS CASE PRESENTS A COMPELLING

VEHICLE FOR THIS COURT'S RESOLU-

TION OF THE IMPORTANT QUESTIONS

OF WHETHER THE SIXTH AMENDMENT'S

GUARANTEE OF EFFECTIVE ASSISTANCE

OF COUNSEL ENTITLES THE DEFENDANT

TO ADEQUATE PRETRIAL INVES-

TIGATION AND PREPARATION BY HIS

TRIAL ATTORNEY, AND THE NATURE

AND EXTENT OF DEFENSE COUNSEL'S

OBLIGATIONS BEFORE DETERMINING

NOT TO PRESENT EVIDENCE SUPPORT-

ING A PRINCIPAL LINE OF DEFENSE

A. Previous Decisions of This Court and

the Courts of Appeals Imply and

Appear to Recognize a Constitutional

Duty of Trial Counsel to Conduct

a tw

Adequate Pretrial Investigation and

Preparation.

It had long been settled by the deci-

sions of this Court "that the Constitution

requires that mo accused can be convicted

and imprisoned unless he has been accorded

the right to the assistance of counsel."

Faretta v. California, 422 U.S. 806, 832

(1975). Describing "the road" travelled by

the Court's opinions from Powell v. Alabama,

287 U.S. 45 (1932) to Arsinger v. Hamlin, 407

U.S. 25 (1972), Justice Blackmun's dissent in

Faretta recalled that "from start to finish

the development of the right to counsel has

been based on the premise that representation

by counsel is essential to ensure a “fair

trial." 422 U.S. at 851.

The nature and scope of the Sixth

Amendment guarantee has proved more elusive

to define in some contexts. The question

- 18 -

presented by the instant case -— whether

trial counsel has a duty to investigate, and

the parameters of such obligation -- appar-

ently has yet to be addressed directly by

this Court. Its resolution is of great

importance to the administration of criminal

justice in federal and state courts throughout

this country, for as one court has explained,

"Although the fate of « criminal defendant is

determined at trial, the course of that trial

can be decisively affected by actions of

defense counsel! in preparing the’ case."

Washington v. Strickland, 693 F.2d 1243, 1251

(Sth Cir. Unit B 1982) (en banc), cert.

granted June 6, 1983, _ U.S. ___— (No.

82-1554; 33 Cr.L.Rptr. 4073).

This Court has recognized that "if the

right to counsel guaranteed by the Constitu-

tion is to serve its purpose, defendants

cannot left to the mercies of incompetent

it

counsel.'"' McMann v.Richardson, 397 U.S. 759,

771 (1970). That principle is particularly apt

with respect to the adequacy of defense

counsel's investigation of the case in pre-

paration for trial. More than half a century

ago, it was noted that

"Even the intelligent and educated

layman has smal! and sometimes no

skill in the science of the law

» « « « He tacks both the skill and

knowledge adequately to prepare his

defense, even though he have a

perfect one." Powell v. Alabama

supra, 287 U.S. at 69, quote n

hief Justice Burger's’ dissenting

opinion in Faretta v. California,

It should follow as a corollary to the above

propositions that trial counsel's duties under

the Sixth Amendment must extend to adequate

investigation and preparation of the defense;

petitioner urges this Court to expressly so

hold.

B. Counsel's Failure to Conduct Ade-

quate Pretrial Investigation and

acu os

Preparation of the Defendant's Prin-

cipal Line of Defense Cannot Be

Excused On the Basis of _ Trial

Tactics Absent Sufficient Information

to Make an Informed and Know ledge-

able Decision Not to Obtain and

Present Favorable Defense Evidence.

While it seems unremarkable to _ insist

that "effective counsel conduct a reasonable

amount of pretrial investigation," Washington

v. Strickland, supra, 693 F.2d at 1251, it

seems equally evident that "The amount of

pretrial investigation that is reasonable

defies precise measurement." Ibid. In United

States v. Porterfield, 624 F.2d 122 (10th Cir.

1980), for example, the same court which

decided the case at bar concluded that trial

counsel had failed to render effective assis-

tance by neglecting to conduct a pretrial

investigation which might have uncovered

2.0

evidence for an entrapment defense; the Court

of Appeals found it telling that counsel's

neglect had violated one of the American Bar

Association's fundamental principles of a

defense attorney's duties to his client -- to

conduct "prompt investigation of the circum-

stances of the case and explore all avenues

leading to facts relevant to guilt... ."

Id., at 124, quoting section 4.1, ABA

Standards of Criminal justice/

The necessity for review and clarifica-

tion of the nature of counsel's duty to

conduct adequate investigation and prepara-

1/ The standard for measuring the effec-

tiveness of counsel's assistance in this

respect is identical whether the attorney has

been appointed or retained by the defendant.

See, e.g., Cuyler v. Sullivan, 446 U.S. 335

(1980); United States ex rel. Williams v.

Twome 510 F.2d 634 (7th Cir. 1975), cert.

denied, 423 U.S. 876. At no time has the

government contended that petitioner's Sixth

Amendment claim in this case is diminished

because he was represented oy private

counsel.

» 22 =

tion before trial is illustrated by the Tenth

Circuit's application of the principles set

forth in Washington v. Strickland, supra,

decided after oral argument herein and now

before this court in light of the grant of

certiorari. The Court of Appeals' opinion

twice quotes from the discussion appearing

under rubric 4 of Washington ("Counsel Fails

to Conduct a Substantial Investigation Into

One Plausible Line of Defense Because of His

Reasonable Strategic Choice to Rely Upon

Another Plausible Line of Defense at Trial").

693 F.2d at 1256, 1257; see opinion at A-20 -

A-21, A-23. Thus, prior to disposing of

petitioner's contention that defense counsel

should have sought the missing appraisals

and the Goldring report to aid in preparation

for trial, the Court sets out the following

general reasoning:

"An attorney's decision not to inter-

view witnesses and to rely on other

oe

sources of information, if made in

the exercise of professional judgment,

is not ineffective counsel. Plant v.

Wyerick, 636 F.2d 188, 189-90 (8th

Cir. 1980). 'Whether to call a

particular witness z= tactical

decision and, thus, a "matter of

discretion" for trial counsel.' United

States v. Miller G43 F. Ws, Fs

(10th Cir. To8TT. Counsel is_ not

inadequate in failing to call a

witness whose testimony would only

have been cumulative in nature. jd."

Opinion at A-21 - A-22.

With all respect, petitioner suggests that

the instant case is one of undoubtedly many

which more properly fall within rubric 1 of

Washington v. Strickland, in which "effective

counsel would discern only one plausible line

of defense to serve his client's interests."

693 F.2d at 1252; emphasis added. Unlike the

situation analyzed in subheadings 3 through

5 of Washington -- where (to use the

examples suggested by that court) an attor-

ney might challenge both the racial composi-

tion of the jury venire and raise an alibi

defense, or have to choose between an alibi

=

defense and urging that defendant's admitted

conduct was justifiable -- in many cases

there will be but one line of defense (e.g.,

insanity, alibi, or simply putting the

government to its proof). Cf. id. at 1253

with 1252. Petitioner suggests that the case

at bar clearly involves the latter category.

In that respect it is totally consistent

witn Porterfield, supra, 624 F.2d 122, where

trial counsel's failure to procure the atten-

dance of a government informer as a defense

witness in a narcotics prosecution deprived

the defendant of the right to effective assis-

tance of counsel because of the lack of due

diligence in pretrial Investigation. For the

same reason, the analysis underlying the

instant holding that counsel's "determination"

not to call Stickel as a defense witness

constituted "a reasonable tactical decision,"

opinion at A-23, citing Washington at 1255,

- 25 «

is similarly misplaced because the sole

plausible line of defense being advanced

necessarily required counsel to make a

diligent and informed inquiry into whether

Stickel would in fact be a favorable defense

witness.

Mindful that this Court has granted

certiorari in Washington, petitioner submits

that principles not applied by the Court in

the present case should be held applicable

when only one plausible line of defense rea-

sonably appears. Although defense counsel

herein urged the jury generally that the

government had not proved its case, the crux

of the defense mounted by Mr. Braun clearly

was focused upon and limited to the sole

question in dispute -- whether petitioner had

the intent to defraud requisite to the charged

crimes, or merely was guilty of acute

negligence and poor judgment for which no

— ee

criminal sanctions were authorized. In such

instance, Washington concluded that

"Effective counsel is obliged to

conduct a reasonably substantial

investigation into that line [of de-

fense] before proceeding to trial. The

failure to perform such an _ inves-

tigation is a clear example of a

breach of duty to investigate." Id.

at 1252.

Moreover, it seems clear that If there is

but one plausible line of defense to be as-

serted, "an attorney can no more make a

strategic decision that renders unnecessary

an investigation of [that] defense than he

can make a strategic decision to plead guilty

against his client's wishes." Ibid. As such,

"permissible trial strategy can never include

the failure to conduct a reasonably substan-

tial investigation into a defendant's one

plausible line of defense." id.; emphasis

added.

The foregoing views are shared by other

courts which have addressed the subject. In

Pe pet

the frequently cited decision of United States

v. DeCoster, 487 F.2d 1197 (0.C.Cir. 1973),

subsequent opinion en banc after remand, 624

F.2d 196 (1979), the Court followed the

approach adopted earlier in Coles Vv. Peyton,

389 F.2d 224, 226 (4th Cir. 1968), cert.

denied, 393 U.S. 849, where it was recog-

nized that counse! should be guided by "the

legal profession's own articulation of guide-

lines for the defense of criminal cases" set

forth in the American Bar Association Project

on Standards for Criminal Justice, Standards

Relating to the Defense Function (App. Draft

1971). 487 F.2d at 1203. Specifically, coun-

sel's duties to his client in investigating

and preparing for trial were summarized as

follows:

"(3) Counsel must conduct appropriate

investigations, both factual and

legal, to determine what matters of

defense can be developed. The

Supreme Court has noted that the

adversary system requires the‘ ‘all

~

available defenses are raised' so

that the government is put to its

proof. This means that in most cases

a defense attorney, or his agent,

should interview not only his own

witnesses but also those that the

government intends to call, when

they are accessible. The investigation

should always include’ efforts. to

secure information in the possession

of the prosecution and law enforce-

ment authorities. And, of course, the

duty to investigate also requires

adequate legal research." Id. at

1204; footnotes omitted.

In light of the above authorities, it

cannot be gainsaid that the Sixth Amend-

ment's guarantee of effective assistance of

counsel focuses its inquiry upon counsel's

performance, thereby avoiding "the mislead-

ing implication that what occurred at the

trial and appears on the face of the record

is all that is relevant." Cooper v.

Fitzharris, 586 F.2d 1325, 1329 (9th Cir.

1978) (en banc) cert. denied, 440 U.S. 974

(1979). An assertion that trial counsel failed

to conduct adequate pretrial! investigation in

- 29 -

preparation for defending the accused may be

shown to be justified on the basis of trial

strategy and tactics, but not where counsel

has failed to perform reasonably substantia!

investigation into the single plausible line of

defense to be assertec at trial. The essence

of an informed and knowledgeable decision

not to present evidence supporting the

principal line of defense is the possession of

sufficient information, following such factual

and legal investigation as is appropriate,

both as to prosecution and defense witnesses.

It includes, as in this case, the seeking and

securing of documents and possible testimony

connected with a codefendant or otherwise

accessible to the defense through independent

means.

As will now be explained in section II,

such duty clearly arose in the present

matter, and this Court therefore should

=

decide whether the Court of Appeals correctly

found counsel's deficient performance excus-

able because of trial tactics and counsel's

prior experience in other cases.

VI

THE COURT OF APPEALS ERRONEOUSLY

REJECTED PETITIONER'S CLAIM OF

INADEQUATE INVESTIGATION AND PRE-

PARATION BY TRIAL COUNSEL ON THE

GROUNDS THAT HIS FAILURE TO OB-

TAIN POTENTIALLY FAVORABLE DOCU-

MENTS AND EXPERT TESTIMONY WERE

THE RESULT OF TRIAL STRATEGY TO

CONVINCE THE JURY THAT SUCH NON-

PRODUCED EVIDENCE WOULD HAVE BEEN

FAVORABLE TO PETITIONER BUT WERE

SUPPRESSED BY THE GOVERNMENT, AND

THAT COUNSEL WAS EXPERIENCED AS A

CRIMINAL LAW SPECIALIST AND FOR-

MER PROSECUTOR WHO HAD BEEN HIRED

Pe

TO REPRESENT UNITED STATES ATTOR-

NEYS CHARGED WITH PERJURY

An equally important question for review

by this Court is_ the’ propriety of the

standards and factors applied by the Court

of Appeals in evaluating petitioner's claim of

ineffective assistance of counsel based upon

inadequate trial preparation. The opinion

below rejects petitioner's contentions as to

the existence and contents of the two early

appraisals and the Goldring report as

"self-serving," yet in the very next page

accepts trial counsel's self-serving statements

made for the purpose of securing admission

to practice before the District Court, reciting

his experience as a criminal law specialist,

a former prosecutor, and a member of the

California Council of Criminal! Justice who

has been hired by the Justice Department to

represent United States attorneys charged

=

with perjury. Opinion at A-23 - A-24. The

Court further defers to counsel's unsupported

conjecture that Stickel would have question-

able value as ae witness for petitioner

because Chisholm still owed him money, and

relies upon speculation by the government

that counsel's trial strategy was to make the

government look bad by implying that helpful

witnesses and documents had been suppres-

sed. Id. at A-23.

Petitioner respectfully submits that the

foregoing are improper criteria for measuring

the adequacy for constitutional purposes of

counsel's preparation for trial. When the

record reflects, as it does here, that trial

counsel has failed to conduct a substantial

investigation into the sole major line of

defense, the Sixth Amendment guarantee of

effective assistance of counsel is not satis-

fied simply because a properly prepared

re oe

attorney might have made similar tactical

decisions based upon informed and know-

ledgeable assumptions.

The question of the correct standard for

reviewing claims of inadequacy of counsel

due to lack of preparation of the defense has

divided the courts, and is apparently among

the issues presented for resolution by this

Cour.'s granting of certiorari in Washington

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

granted sub nom. Strickland v. Washington,

No. 82-1554. Petitioner's position herein

echoes the observation of Judge Frank M.

Johnson, Jr., in Washington, that absent

explicit evidence of a tactical reason for

non-investigation, there is nothing inconsis-

tent in expecting defense counsel to conduct

necessary investigation while pursuing a

trial strategy that seeks to take best

advantage of such potential evidence even if

<_<

it turns out to be unavailable or unfavor-

able. 693 F.2d at 1283-84. In concluding that

"the absence of the documents and testimony

made it possible for counsel to imply to the

jury that the evidence would have been

favorable to Glick," opinion at A-24, surely

the Court of Appeals did not mean to exalt

lazy or indifferent preparation at the ex-

pense of an _ informed decision made with

knowledge that such evidence is or is not

favorable to the defense. Had counsel con-

ducted meaningfu! investigation and deter-

mined that its fruits (or lack thereof) would

be harmful to petitioner's defense, he stil!

could have argued "that the Government had

hidden witnesses and documents helpful to

the defense," ibid.; but then at least that

position would have been the result of a

knowledgeable tactical decision.

The present case thus presents a compel-

=- 35 -

ling record for resolution of the’ thorny

question of how appellate courts should

review claims of ineffective assistance of

counsel when the only basis for concluding

that the failure to perform the duty of

investigation and preparation arises’ from

conjecture and speculation as to counsel's

trial strategy —’

2/ In adverting to the self-serving nature

of petitioner's statements as to the existence

and contents of the missing appraisals,

opinion at A-22, the Court of Appeals seems

to have overlooked evidence highlighted in

the government's brief that appellant stated

on cross-examination that he had been a

witness at Chisholm's 1978 trial in Portland,

where he testified that he had possessed

three appraisals (naming the authors as

Smith, Reynolds, and Goldring) among his

working papers which he had given to the

defense attorney representing Chisholm. Brief

of Appellee at 22-24, citing Rec., vol. Ill,

at 478-81.

The Court's opinion also ignores defense

counsel's seemingly sincere protestations «nat

he fully expected the government to cai!

Stickel as Its witness because he was on the

prosecution's witness list. While counsel

claimed to have read the transcript of

(Footnote continued on next page.)

However, an additional consideration

clouds the Court of Appeals' analysis of that

issue. The absence of specific, objective data

pertaining to the reasons for the omissions

and neglect of counsel in this case is

exacerbated by the Court's observation that

counsel "is a criminal law specialist, a

former prosecutor, and a member of _ the

California Council of Criminal Justice ...

[and] had been hired by the Justice Depart-

ment to represent United States Attorneys

charged with perjury." Opinion at A-23 -

A-24. Petitioner respectfully submits’ that

reliance on these factors -- extraneous and

Footnote 2 Continued:

Stickel's testimony at the Chisholm trial, his

failure to contact Stickel and ascertain for

himself whether Stickel would be a coopera-

tive ands helpful witness seems utterly

inexcusable. Indeed, the lame suggestion that

Stickel might somehow prove to be a iess

than friendly witness for petitioner because

Chisholm still owed him money hardly quali-

es as a sound tactical decision if unsup-

ported by a shred of confirmation.

~~

irrelevant to counsel's performance in this

case -- is ordinarily inappropriate, and was

unwarranted as a basis for finding no Sixth

Amendment violation by counsel! here.

The Court's curious resort to information

concerning defense counsel's legal back-

ground and experience apparently had its

genesis in Mr. Braun's statements to the

district judge, made for purpose of securing

admission to practice before the trial court.

Rec., Motions Hrg. Nov. 23, 1981, at 11-13.

Quite aside from the informal and manifestly

self-serving nature of counsel's statements at

that proceeding, and the lack of any other

indication in the record concerning counsel's

background, no question has been raised at

anytime on this appeal about Mr. Braun's

individual qualifications or experience as a

criminal defense attorney in general. Nor is

that properly an issue when a Sixth Amend-

=

ment contention is advanced. The correct

focus should be upon the adequacy and

effectiveness of counsel's representation of

petitioner in this particular case.

An example of the proper approach may

be found in the somewhat notorious case of

United States v. Hearst, 466 F.Supp. 1068

(N.D. Cal. 1978), affd. 638 F.2d 1190 (9th

Cir. 1980), in which the’ district and

appellate courts reviewed questions concern-

ing the effectiveness of the assistance

rendered by perhaps the nation's most

well-known criminal trial lawyer. See 466

F.Supp. at 1081. As recognized in Hearst, the

issue before the court when the adequacy of

trial counsel's conduct has been questioned

is mot the general competence of _ that

attorney. See also Washington v. Strickland,

supra, 693 F.2d at 1284, in 16, Frank M.

Johnson, Jr., J., conc. and diss. Indeed, to

— we

conclude otherwise would forever immunize

attorneys who have passed a certain thresh-

old of trial experience from challenges to

deficient performance in individual cases.

Neither case authority nor human experience

support that result. Hence the Court of

Appeals erred in placing partial reliance

upon the extraneous and irrelevant considera-

tion of trial counsel's backeround 2!

Because the Court of Appeals rejected

3/ Moreover, grave problems would arise if

ra trial counsel's experience in prior

unrelated cases routinely became an element

in assessing the adequacy of trial counsel's

performance in the action before the Court.

Challenges to less experienced, often younger

lawyers might well be encouraged; on the

other hand, attorneys with substantial ex-

perience would have less incentive to exer-

cise diligence because less vulnerable to

attack. Both sides might be _ tempted to

produce "experts" or introduce’ collateral

evidence on the subject of an attorney's

experience and skill. Such challenges to an

attorney's competency would place him in an

adversary position vis-a-vis his former client

because of the need to protect his reputation

in the legal community.

a -«

petitioner's inadequacy-of-counsel contention,

it did not further address the showing of

prejudice required for reversal -- an issue

now before the Court in Strickland v.

Washington, supra. However, even if the

Washington court erred in holding that the

defendant need not demonstrate actual pre-

judice resulting from inadequate assistance,

in order to establish the right to a new trial

in a habeas corpus proceeding reviewing a

State conviction, petitioner suggests that the

appropriate disposition of his appeal would

be to remand the cause for further proceed-

ings in the district court. In fact, having

recognized the split of authority on the Issue

of prejudice noted in the various opinions

cited in Washington itself, petitioner urged

the Court of Appeals to return the matter to

the trial court for the purpose of obtaining

trial counsel's direct explanation and permit-

Pt pee

ting the trial judge to assess the existence

of prejudice in the event she found petition-

er's Sixth Amendment claim well founded.

Petition for Rehearing at 7-9. In view of the

Court of Appeal's skepticism concerning the

unproduced appraisals, and its speculation

that counsel determined not to call Stickel as

a defense witness for undisclosed tactical

reasons, petitioner sought to dispel the

impression of clever trial advocacy by

submitting, as an appendix to the Petition

for Rehearing, petitioner's Affidavit under

oath, to refute the perception of informed

rejection by counsel of less favorable alter-

natives. See United States v. Golub, 638 F.2d

185, 190-91 (10th Cir. 1980). The allegations

therein, 2! if found true, might well persuade

4/ In his Affidavit attached to the Petition

for Rehearing, petitioner asserts that

notwithstanding his payment of a substantial

(Footnote continued on next page.)

7

a trial judge with second thoughts about the

adequacy of defense counsel's representation

that a new trial is necessary.

Unlike other instances in which preju-

dicial error is assessed on appeal, where the

Footnote 4 Continued:

retainer to trial counsel, Mr. Braun failed to

conduct discovery or undertake private inves-

tigation concerning the whereabouts and

contents of the missing appraisals and other

information not otherwise readily accessible

from the files of the United States Attorney

or from co-counsel in Denver, Colorado.

Petitioner's declaration further indicates his

understanding that the two earliest apprai-

sals and the Goldring report were not

produced at trial because counsel did nothing

to obtain them. In addition, petitioner states

his belief that counsel never spoke to

Stickel, and perhaps did not even read the

transcript of his testimony at Chisholm's

Portland, Oregon trial. Counsel led petitioner

to believe that the matter would be dismissed

by the United States Attorney, or disposed of

without trial, probably following a plea of

guilty by Chisholm; but neither’ result

materialized. Thus when the matter proceeded

to trial, petitioner alleges counsel was

ill-prepared to go forward and proceeded to

try the case by the "seat of his pants."

3

issue pertains to the inadequacy of trial

counsel's representation and the trial judge

has had the benefit only of a one-sided

presentation because the issue was not fully

explored at that level, petitioner believes

that upon a showing of deprivation of the

constitutional right to effective assistance of

counsel interests of justice ordinarily will be

best served by remanding the cause to the

trial court for its initial determination of

whether the defendant suffered prejudice

under the circumstances of that particular

case. Accordingly, petitioner does not seek

direct reversal of his conviction by this

court for purpose of a new trial, but rather

repeats his suggestion that a limited remand

be ordered for further proceedings in light of

the foregoing considerations.

CONCLUS!ON

The faliure of defense counsel to proper-

ly investigate and prepare for trial deprived

petitioner of the effective assistance of

counsel under the Sixth Amendment. The

Petiton for Writ of Certiorari should be

granted to review the important questions

raised herein, and upon decision the matter

should be remanded to the district court for

further proceedings.

Respectfully submitted,

I ee

DENNIS A. sg

=“

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appel lee,

Ve

STEVEN S. GLICK,

Defendant-Appellant.

No. 82-1375

Appeal from the United States District

Court for the District of Colorado (D.C. No.

81-CR-92).

Before SETH, Chief Judge, BREITENSTEIN,

and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Steven Glick was convicted after a jury

trial of eight counts of mail fraud, 18 U.S.C.

§ 1341 (1976) ,2/ and two counts of travel in

1/ 118 U.S.C. § 1341 (1976) provides:

"Whoever, having devised or

intending to devise any scheme or

(Footnote continued on next page.)

A-1

interstate commerce to execute a scheme

defraud, 18 U.S.C. § 2314 (1976).2/

to

On

Footnote 1 continued:

2/

artifice to defraud, or for obtaining

money or property by means of false

or fraudulent pretenses, representa-

tions, or promises, or to sell,

dispose of, loan, exchange, alter,

give away, distribute, supply, or

furnish or procure for unlawful use

any counterfeit or spurious’ coin,

obligation, security, or other article,

or anything represented to be or

intimated or held out to be such

counterfeit or spurious article, for

the purpose of executing such scheme

or artifice or attempting so to do,

places in any port office or autho-

rized depository for mail matter, any

matter or thing whatever to be sent

or delivered by the Postal Service,

or takes or receives therefrom, any

such matter or thing, or knowingly

causes to be delivered by~ mail

according to the direction thereon, or

at the place at which it is directed

to be delivered by the person to

whom it is addressed, any such

matter or thing, shall be fined not

more than $1,000 or imprisoned not

more than five years, or both."

18 U.S.C. § 2314 (1976) provides

pertinent part.

(Footnote continued on next page.)

A-2

in

appeal, Glick argues that the court nioadaes

ly instructed the jury on the issue of

fraudulent intent, and that he was denied

effective assistance of counsel because his

attorney failed to conduct adequate pretrial

investigation. We affirm.

Footnote 2 continued:

"Whoever, having devised or

intending to devise any scheme or

artifice to defraud, or for obtaining

money or property by means of false

or fraudulent pretenses, representa-

tions, or promises, transports or

causes to be transported, or induces

any person to travel in, or to be

transported in interstate commerce in

the execution or concealment of a

scheme or artifice to defraud that

person of money or property having a

value of $5,000 or more; ...

"

. . .

"Shall be fined not more than

$10,000 or imprisoned not more than

ten years, or both."

Glick was also charged under 18 U.S.C. §

2(a) (1976) with aiding and abetting the

above crimes.

A-3

l.

THE FACTS

Viewed in the light most favorable to the

Government, see United States v. Petersen,

611 F.2d 1315, 1317 (10th Cir. 1979), cert.

denied, 447 U.S. 905 (1980), the facts are

briefly as follows. Reginald Chisholm, the

mastermind of the fraudulent scheme, was

described as a man of great charm and

personal magnetism. He held himself out

during 1975 and 1976 as a very wealthy

person who could package and obtain loans

for people seeking financing. He charged a

nonrefundable front fee for this’ service.

Chisholm told his victims that as part of his

service he would guarantee the loans, and

that his guarantee would carry weight with

lending institutions because of his wealth. To

support these representations, Chisholm show-

ed his victims financial statements describing

A-4

Chisholm's personal wealth and that of three

corporations he owned or controlled. These

statements were prepared by Glick, a certi-

fied public accountant, and included letters

by Glick declaring that the statements fairly

presented the subject's financial position in

conformity with generally accepted auditing

standards and accounting principles.

The principal asset of Chisholm and his .

corporations was his claim to mineral rights

in limestone formations in National Forest

lands. These rights had been transferred by

Chisholm to one of his corporations, and then

from corporation to corporation, each transfer

resulting in an increased valuation of the

mining claims.

Chisholm and Glick were indicted, and

Chisholm pled guilty prior to trial. Chisholm

had previously been convicted in a federal

criminal proceeding in Portland, Oregon, on

A-5 y

charges apparently arising from other acts

involving the same fraudulent plan.

The actual value of Chisholm's mineral

rights, and the nature of his title to them,

were major issues at Glick's trial. The testi-

mony of the Government's expert, a geologist

with the Department of Interior, indicated

that the value of the claims was far below

that shown on the financial statements. He

stated that Chisholm faced insurmountable

obstacles in any effort to mine the limestone

or to obtain the fee simple title necessary

for a proposed real estate development.

Glick testified that before and during

the time he had prepared the financial state-

ments, four appraisals had been made that

substantially supported the values contained

in the statements. Glick was unable to re-

member the authors or the details of the two

earliest appraisals. The third report was

A-6

prepared by a real estate appraiser, Smith,

who was not a geologist and had an interest

in the Chisholm business enterprises. Glick

testified that he had not accepted the Smith

appraisal at face value because Smith was

not independent. Glick stated that Smith's

results had been verified by another inde-

pendent real estate appraiser, Goldring, who

had based his evaluation on facts and

figures supplied by Smith. Although the Smith

report was admitted into evidence, Glick was

unable to produce the Goldring report.

Chisholm had obtained a fifth appraisal

in 1978 in preparation for his Portland trial.

This preliminary evaluation, from a geologist

named Stickel, stated that one of the mineral

claims contained sufficient limestone deposits

to warrant consideration of commercial min-

ing. This appraisal was admitted into evi-

dence by stipulation of the parties, although

A-7

Stickel himself did not testify.

The Government presented expert testi-

mony that the financial statements prepared

by Glick contained blatant violations of basic

accounting _ principles. Glick himself had

conceded that no lending institution would

furnish a loan based on the Chisholm finan-

cial statements. Glick testified that he knew

Chisholm was obtaining fees by presenting

the financial statements to people, claiming

that the documents could be used to back up

loan applications. However, Glick testified

that he believed the limestone deposits were

of considerable value to Chisholm, and that

he thought Chisholm's loan packaging busi-

ness was bona fide when he prepared the

financial statements.

a

THE INTENT INSTRUCTIONS

"Mail fraud is a specific intent crime.

A-8

The government is required to prove beyond

a reasonable doubt that the defendant

intended to defraud." United States v.

Martin-Trigona, 684 F.2d 485, 492 (7th Cir.

1982). The district court gave the following

instruction on deliberate ignorance as part of

its charge on the type of knowledge which

satisfies the requisite fraudulent intent:

"However, the element of KkKnow-

ledge may be established by proof

that a defendant deliberately closed

his eyes to what otherwise would

have been obvious to him. In other

words, the requirement that the

defendant has acted knowingly does

not mean that the defendant needed

to have positive knowledge. If the

defendant failed to have _ positive

knowledge only because he _ consci-

entiously avoided acquiring it, the

requirement of knowledge is satis-

fied."

Rec., vol. Vill, at 673. On appeal, Glick

contends that this instruction Is an erroneous

formulation of the law because It permitted

the jury to convict upon proof of a lesser

degree of knowledge than that required by

A-S

the statute.

In recommending the use of a deliberate

ignorance instruction, this court has pointed

out that "[w]hile negligence is not sufficient

to charge a person with knowledge, one may

not wilfully and intentionally remain § ignor-

ant of a fact, important and material to his

conduct, and thereby escape punishment. The

test is whether there was a conscious purpose

to avoid enlightenment." Griego v. United

States, 298 F.2d 845, 849 (10th Cir. 1962)

(footnotes omitted). Thus, the type of in-

struction at issue here may be given when

the evidence points to deliberate ignorance

and conscious avoidance of actual knowledge.

See United States v. Garzon, 688 F.2d 607,

609 (9th Cir. 1982); United States v.

Ciampaglia, 628 F.2d 632, 642-43 (ist Cir.),

cert. denied, 449 U.S. 956, 449 U.S. 1038

(1980); United States v. Brien, 617 F.2d 299,

A-10

312 (Ist Cir.), cert. denied, 446 U.S. 919

(1980); United States v. Batencort, 592 F.2d

916, 918 (5th Cir. 1979).

Glick argues that giving a _ deliberate

ignorance instruction was inappropriate in

light of the evidence presented at trial. This

argument is apparently based on Glick's

assertion that the record does not contain

sufficient evidence of his willful ignorance in

the face of facts known to him that would

have made obvious the existence of the

fraudulent scheme.

In denying Glick's motion for directed

verdict, the trial judge determined that the

Instruction was proper because a reasonable

juror could find that Glick had intentionally

remained ignorant despite his subjective

awareness of facts plainly indicating the

fraudulent nature of Chisholm's business. The

court specifically noted evidence of Glick's

A-11

numerous blatant violations of accounting

principles and auditing standerds, his belief

in 1975 that the mineral claim evaluations

were unrealistic, his acknowledgment that no

one would give a loan on the basis of the

financial statements, his knowledge that fees

were obtained for packaging loans’ which

would likely not go through, and his

knowledge of the nature of the corporate

financial activities. This evidence is suffi-

cient to enable a jury to find beyond a

reasonable doubt that Chisholm's loan pack-

aging business was a fraudulent scheme from

its Inception, and that Glick either knew it

or deliberately avoided acquiring positive

knowledge. Accordingly, we conclude that an

instruction on deliberate avoidance was

appropriate. See Griego, 289 F.2d at 849.

Glick also argues that even if a deliber-

ate ignorance instruction was warranted, the

A-12

form of the instruction given in this case

was inadequate because it failed to require

the jury to find that "the defendant was

subjectively aware of a high probability of

the existence of the fact whose knowledge is

imputed, and that knowledge of that fact may

not be imputed if the defendant actually

believed that such fact did not exist." Brief

of Appellant at 17. To insure that a defen-

dant is only convicted if his ignorance is

willful, rather than negligent, the preferable

form of the Instruction Informs the jury, in

addition to the charge given in this case,

"(1) that the required knowledge is estab-

lished if the accused Is aware of a high

probability of the existence of the fact in

question, (2) unless he actually believes it

does not exist."' United States v. Jewell, 532

F.2d 697, 704 n.21 (9th Cir.) (en banc),

cert. denied, 426 U.S. 951 (1976); see also

A-13

United States v. Aulet, 618 F.2d 182, 190-91

(2d Cir. 1980). Glick urges that the court's

failure to add this language to its charge is

grounds for reversal. We disagree.

In response to counsel's general objec-

tion to the instruction, the district court

repeatedly offered to modify the instruction if

counsel wishes to propose a language

3/

change. Defense counsel reponded that his

3/ Specifically, the court said:

"THE COURT: | am _ ~=—happy to

change the language. |! think the

plaintiff is entitled to this theory. If

you want to switch it around a little

better, take some other language from

one of these cases, | am happy to do

it.

"MR. BRAUN: | don't think they

are entitled. | think | will go

further than that. | don't think they

are entitled to that theory. | don't

think the Jewell case is good authori-

ty for that. | think the case is —

you know -— maybe we should say

the fundamental problem with citing

cases for jury instructions is that a

court writes a decision with one

(Footnote continued on next page.)

A-14

objection was not to the language of the

instruction, but to the propriety of such an

instruction in any form. Because Glick failed

to suggest to the trial court the language he

now claims was erroneously omitted, we may

reverse only if the omission constitutes plain

error. Fed. R. Crim. P. 52(b).

The jury was Instructed that Glick could

not deliberately close his eyes to what would

otherwise be obvious to him, that he could

Footnote 3 continued:

purpose in mind and one state of the

law and we prepare a jury instruc-

tion for the purpose of instructing

laymen as to what their duties as

jurors are.

"THE COURT: | have no problem

in modifying it, if you will give me

the suggested language. | think the

theory is proper for this case; but |

am happy to change the language."

Rec. vol. VIII, at 559-60.

"THE COURT: | would be happy

to take the quote right out of

[Jewell], if you would like to take

the quote out of that case."

id. at 582.

A-15

not be convicted for an act done because of

mistake, accident, or innocent reason, and

that he was innocent even if he prepared

fraudulent financial statements if he did not

intentionally and knowingly participate in

the scheme or artifice to dtm sD Although

4/ The court instructed as follows on the

definition of "knowingly":

"An act is done knowingly if

done voluntarily and _ intentionally

and not because of mistake or acci-

dent or other Innocent reason.

"The purpose of adding the word

‘knowingly’ is to ensure that no one

would be convicted for an act done

because of mistake or accident or

innocent reason."

Rec., vol. VIII, at 670. It then Instructed

on fraudulent intent and deliberate ignor-

ance:

". . . « In order to convict the

defendant in this case, you must find

that he acted knowingly.

"It is mot necessary, however,

for the Government to prove that the

defendant was aware of every detail

of the alleged scheme to defraud, so

long as you find beyond a reasonable

doubt that he was a knowing partici-

pant in the scheme.

(Footnote continued on next page.)

A-16

)

Footnote 4 continued:

"It is not sufficient for you to

find beyond a reasonable doubt that

Mr. Glick knew the financial state-

ments were used to guarantee loans,

since such transactions are legal. For

you to convict Mr. Glick, you must

find beyond a reasonable doubt that

he was aware of the _ fraudulent

aspects of the transactions.

"However, the element of know-

ledge may be established by proof

that a defendant deliberately closed

his eyes to what otherwise would have

been obviois to him. In other words,

the requirement that the defendant has

acted knowingly does not mean that

the defendant needed to have positive

Knowledge. If the defendant failed to

have positive knowledge only because

he conscientiously avoided acquiring

it, the requirement of knowledge is

satisfied.

"

"THE COURT: It is not sufficient

to merely prove that Steven Glick

prepared fraudulent financial state-

ments. The prosecution must also prove

beyond a reasonable doubt that Mr.

Glick knowingly participated in the

scheme or artifice Involved in this

case. Thus, if you find that Mr. Glick

prepared fraudulent financial state-

ments but did not intentionally and

Knowingly participate in the scheme or

artifice involved in this case, you

must find him not guilty."

at 672-73.

A-17

inclusion of the omitted language would have

been preferable, the omission in this case

did not constitute plain error. See United

States v. Cincotta, 689 F.2d 238, 243-44 (Ist

Cir.), cert. denied, 103 S. Ct. 347 (1982);

United States _v. Eaglin, 571 F.2d 1069,

1074-75 (9th Cir. 1977), cert. denied, 435

U.S. 906 (1978); Jewell, 532 F.2d at 704 n.

21.

Hit.

ADEQUACY OF COUNSEL

Glick claims he was denied effective

assistance of counsel because his trial attor-

ney! allegediy failed to conduct adequate

pretrial preparation and was therefore unable

to present an effective defense at trial. Glick

points specifically to counsel's fallure both

to Investigate the existence and nature of the

5/ Glick Is represented by different counsel

on appeal.

A-18

two earliest mineral appraisals and _ the

Goldring appraisal, and to determine the

possibility of obtaining favorable independent

expert testimony from Stickel concerning the

value of the limestone.

"The Sixth Amendment demands that de-

fense counsel exercise the skill, judgment

and diligence of a reasonably competent de-

fense attorney." Dyer v. Crisp, 613 F.2d 275,

278 (10th Cir.) (en banc), cert. denied, 445

U.S. 945 (1980). In considering an allegation

of incompetent counsel, the court must first

determine whether the attorney's performance

fell below this standard. The court must then

determine whether the iInadequacy "has had

or threatens some adverse effect upon the

effectiveness of counsel's representation or

has produced some other prejudice to the

defense."" United States v. Morrison, 449 U.S.

A-19

361, 365 (1981) .2/

The proper standards for evaluating a

claim of ineffective assistance of counsel

based upon allegations of inadequate trial

preparation were recently addressed in

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

Cir. 1982) (en banc), petition for cert. filed,

51 U.S.L.W. 3704 (U.S. Mar. 21, 1983) (No.

82-1554). Effective counsel must "conduct a

reasonable amount of pretrial investigation,"

id. at 1251, which "will necessarily depend

upon aie variety of factors Including the

number of issues in the case, the relative

complexity of those issues, the strength of

¢/ Because of our conclusion that Glick has

alled to establish trial counsel ineffec-

tiveness, we need not decide what degree of

prejudice must be shown. See eneral|l

e.g., Washington v. Strickland, 553 roa

Tee 1 opinion of the court), 1270-74

(Tjoflat, J., concurring), 1287-88 (Roney, J.,

dissenting) (5th Cir. 1982) (en banc).

A-20

the government's case, and the overall

strategy of trial counsel." Id.

"[A]n attorney who makes a_ strategic

choice to channel his investigation Into fewer

than all plausible lines of defense is effec-

tive so long as the assumptions upon which

he bases his strategy are reasonable and his

choices on the basis of those assumptions are

reasonable." Id. at 1256. "Courts presume, in

accordance with the general presumption of

attorney competence, that counsel's actions

are strategic." ‘id. at 1257; see Dupree v.

United States, 606 F.2d 829, 830 (8th Cir.

1979) (per curiam), cert. denied, 445 U.S.

919 (1980). An attorney's decision not to

interview istineniann and to rely on other

sources of information, if made _ in_ the

exercise of professional judgment, is not

ineffective counsel. Plant v. Wyrick, 636

F.2d 188, 189-90 (8th Cir. 1980). "Whether to

A-21

call a particular witness is a tactical

decision and, thus, a ‘matter of discretion’

for trial counsel." United States v. Miller,

643 F.2d 713, 714 (10th Cir. 1981). Counsel

is not inadequate in failing to call a witness

whose testimony would only have been

cumulative in nature. !d.

In applying the above standards to the

allegations before us, we note the lack of

any objective showing that the _ missing

appraisals were available, credible, or

favorable to Glick. We have only Glick's

self-serving statements as to the existence

and contents of the two early appraisals and

the Goldring report. Moreover, we will

presume in the absence of any evidence to

the contrary that counsel's decision not to

produce the documents, even if they were

available, was a matter of trial strategy.

We also conclude that defense counsel's

A-22

decision not to call Stickel as a witness was

a question of trial tactics. The Stickel

report, which tended to support Glick's as-

sertion that the limestone was valuable, was

admitted into evidence. Counsel stated to the

et Gat he was unsure of Stickel's value

as a witness for Glick because Chisholm still

owed Stickel about $40,000. Counsel had read

the trarecript of Stickel's testimony on

behalf of Chisholm in the Portland trial, and

was thus in a position to evaluate the

benefits and drawbacks of calling Stickel to

testify for Glick. Under these circumstances,

the determination not to call Stickel for the

defense was a reasonable tactical decision.

See Washington v. Strickland, 693 F.2d at

1255. We have considered Glick's other

allegations of inadequacy and find them

unpersuasive.

Finally, we hote that Glick's trial coun-

A-23

sel is a criminal law specialist, a former

prosecutor, and a member of the California

Council of Criminal Justice. He had been

hired by the Justice Department to represent

United States Attorneys charged with perjury.

After reviewing the record, we agree

with the Government that counsel's trial

strategy was apparently to convince the jury

that the Government had hidden witnesses

and documents helpful to the defense. More-

over, the absence of the documents and testi-

mony made it possible for counsel to imply to

the jury that the evidence would have been

favorable to Glick. We conclude on this

record that Glick received effective assistance

of counsel.

AFFIRMED.

A-24

APPENDIX B

MAY TERM - July 27, 1983

Before Honorable Oliver Seth, Honorable Jean

S. Breitenstein and Honorable Stephanie K.

Seymour, Circuit Court Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appel lee,

No. 82-1375

)

)

)

)

vs. )

)

STEVEN S. GLICK, )

)

)

Defendant-—Appel lant.

This matter comes on for consideration

of appellant's petition for rehearing in the

captioned cause.

Upon consideration whereof, appellant's

petition for rehearing is denied.

S/ Howard K. Phillips

HOWARD K PHILLIPS. Clerk erk

APPENDIX C

JULY TERM - August 17, 1983

Before Honorable Oliver Seth, Honorable Jean

S. Breitenstein and Honorable Stephanie K.

Seymour, Circuit Court Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appel lee,

No. 82-1375

)

)

)

)

vs. )

)

STEVEN S. GLICK, )

)

)

Defendant-Appel lant.

This matter comes on for consideration of

appellant's motion for stay of mandate in the

captioned cause pending timely application to

the Supreme Court for certiorari.

Upon consideration whereof, the motion

for stay of mandate is granted. The motion

shall be stayed until September 19, 1983,

pending certiorari, and that if on or before

that date there is filed with the Clerk of the

Court of Appeals a notice from the Clerk of

the Supreme Court of the United States that

C-1

appellant has timely filed a petition for writ

of certiorari in the Supreme Court, the stay

shall continue until final disposition by the

Supreme Court.

HOWARD K. PHILLIPS, Clerk

By /S/ Robert L. Hoecker

Robert L. Hoecker

Chief Deputy Clerk

C-2