Petition — Orofino v. United States

83-473 a tee

| SEP 19 49;

No. | ALEXANDER |. ST

PR anmanndaall

IN THE

Supreme Court of the United States

October Term, 1982

FRANCIS X. OROFINO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CHARLES L. WEINTRAUB

Attorney for Petitioner

285 Madison Avenue

New York, N.Y. 10017

(212) 679-2988

Duck Barley Pau ners, 203 Richmond Avenue @ Staten Island, New York 10302

Tel: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

i

QUESTIONS PRESENTED FOR REVIEW

1. When a denial of the Sixth Amendment right to

effective assistance of counsel has been demonstrated

based upon insufficient time to prepare a complex

fraud prosecution for trial, must prejudice be

demonstrated before relief will be granted?

2. When a denial of the Sixth Amendment right to

effective assistance of counsel has been demonstrated

based upon insufficient time to prepare a complex

fraud prosecution for trial, if prejudice must be

demonstrated, what kind or degree of prejudice must

be shown before relief will be granted?

3. What minimum standard of competency must

be displayed by a defense counsel in a criminal case, in

order to satisfy the Sixth Amendment requirement of

effective assistance of counsel?

4. Should this Court resolve a split of authority

among the Courts of Appeal regarding each of the

preceding questions?

ij

TABLE OF CONTENTS

Page

Questions Presented for Review .............:ccccccseeeeseeseeeees i

I i ciaasdbncdantencoegsesovcccscocscccsontoneaces ii

i icrccasecssnnseseseeisoescceccovocsccososees 1

adil tlaivasntcsseseurecosccoedsoxecoocsceceecees 1

Constitutional Provision Involved ..........:cssceeeeseseees 2

i Relist lailehsisantepevensvessccosevosescecccssccevesees 2

Reasons for Granting the Petition .................ccssseseeeees 9

Edd sceipisthenaascbecdecessscsocecooccossovsencce

Appendix A—Order of the U.S. Court of Appeals

for the Second Circuit Dated June 20, 1983............... la

Appendix B—Order of the U.S. Court of Appeals

for the Second Circuit Dated July 21, 1983 .............. 5a

Appendix C—Affidavit of Pamela Rogers

Chepiga In Opposition to Motion .............:cccssseeeeeeees 7a

CASES CITED

Beasley v. United States, 491 F.2d, 687 (6th Cir.

OEE ar 10 n.8

Dyer v. Crisp, 613 F.2d 275 (10th Cir.) (en banc)

cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63

LIE oss npcidelipencavotncesbanainabstineensiaps 23

Gideon v. Wainwright, 372 U.S. 335, 83 Sct. 792,

ir Ne FEIN coccnccnhcosvchascadhenseiiinbstnandasimvcituasiinn 23

Maryland v. Marzullo, 435 U.S. 1011, 98 S.Ct.

RE, GE Tie Wee: BE TOG CIGD eveccvstvsccccccvensecotdvpnocdecnssaul 22

McMann v. Richardson, 397 U.S. 759, 771 n. 14,

90 Sct. 1441, 25 Led 2d 763 (1970) ....... eee eeeeeees 23

Powell v. Alabama, 287 U.S. 45, 53 Sct. 55, 77 Led

RI iii cosine kd sesassubinedinonbinanaaiucisdiumaedeniaaen 23

SEC v. Tellco, et al., 79 Civ. 6649 (CSH)..................000. 4

United States v. Aulet, 618 F.2d 182, 188 (2d Cir.

BED ics ienustinidedesoccsubbiacicbioobeceancosiabivemausesa: an maanaaeae 22

RUTITTED scacisioccinsntstestorebehinieletanintbaltacshste stleinapeiaaiilastadetasah aah sean 22-23

U.S. v. Cronic, 675 F2d 1126 (10th Cir. 1982) Cert.

I, GID vcticeccessdscetcctnscbinnbinccivatiiee ae 9-11

United States v. Hinton, 631 F.2d 769, 782-83

SEES MA NII hccescccocciciocsuidecddenbennaitieniaitidentanaiiaaaen 22

United States v. Morrison, 449 U.S. 361, 101 S.

Ct. 665, 66 L.Ed. 2d 564 (1981) .............c......ccccsssosscees 11

United States v. Rastelli, 551 F.2d 902, 906 (2d

Cir.), cert. denied, 434 U.S. 831 (1977) .......cccccccceeeeerees 22

1

{N THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1983

FRANCIS X. OROFINO,

Petitioner,

“Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Francis X. Orofino petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals (App. A, in-

fra) is not reported.

JURISDICTION

The opinion of the Court of Appeals was entered

on June 20, 1983, and a petition for rehearing was

denied on July 21, 1983 (App. B, infra). The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

2

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Con-

stitution provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy

the right * * * to have the assistance of counsel for his

defense.”’

STATEMENT

On July 14, 1982, the petitioner and four co-

defendants were charged in a 15 count indictment

with mail fraud in violation of title 18 U.S.C. 1341,

wire fraud in violation of 18 U.S.C. 1343, sale of

unregistered securities in violation of 15 U.S.C. Sec-

tions 77e and 77x, inducing investors to travel in in-

terstate commerce in execution of a scheme to defraud

in violation of 18 U.S.C. 2314, securities fraud in viola-

tion of 15 U.S.C. Sections 78j(b), 78ff, and 14 C.F.R.

240.10b-5 and a conspiracy encompassing all of the

above offenses in violation of 18 U.S.C. 371. The

allegations of the indictment principally involve ac-

tivities of a publicly traded corporation, Tellco Infor-

mation Service, Inc. (‘“Tellco’’), its wholly owned sub-

sidiary Vitorio Widemann International (““VWI’’), and

an Italian cotton factory, Cotonificio Vitorio

Widemann & Co. (‘‘Cotonificio’’), during the period of

April through September, 1977.

It is alleged that the defendants sold promissory

notes of VWI convertible into Tellico stock by

misrepresenting to the investors that VWI was the

pierre gadis: Ppt 2 oe

company which by acquiring other companies would

become a mini-conglomerate worth millions of dollars,

3

and by failing to disclose that Cotonificio was in

desperate financial straits and had suffered losses in

the past two years and that Tellco did not intend to

contribute capital to Aegis Print Works, Inc.

(‘‘Aegis’’) as required by the agreement through which |

Tellico had acquired Aegis.

It is further alleged that the proceeds of the sales

of convertible promissory notes were used to purchase

the stock of Tellco on the over-the-counter market, in

order to artificially inflate the price of Tellco stock,

and that the promissory notes were not registerd with

the Securities and Exchange Commission.

Finally, it is alleged that Forsyth and Orofino

fraudulently entered into agreements to purchase raw

cotton for Cotonficio from two cotton dealers, Volkart

and Molsen and through misrepresentations induced

these dealers to deliver cotton which was not fully

paid for or which was paid for in part through checks

drawn on bank accounts with insufficient funds.

The allegations of the indictment were the sub-

jects of investigations by three Federal agencies: The

Securities and Exchange Commission, the United

States Attorney’s Office for the Southern District of

New York, and the Federal Bureau of Investigation,

spanning five years.

On September 22, 1977, the Securities and Ex-

change Commission suspended the trading in Tellco

stock. In fact, the SEC had commenced an investiga-

tion of Tellco prior to that date and the investigation

continued until December 6, 1979, when a civil action

was commenced in the United States District Court

for the Scuthern District of New York, SEC v. Tellico,

4

et al., 79 Civ. 6649 (CSH), (App. C, infra at 8a).

The SEC conducted an in depth investigation

which included taking testimony from more than fifty

people and requiring the production of numerous

books and records.

Also in 1977, the Federal Bureau of Investigation

began to receive information about Norman Forsyth

and Francis X. Orofino in the course of an investiga-

tion of ‘‘sophisticated white collar criminal activity.”

(Id. at 8a). On December 6, 1977 the Federal Bureau

of Investigation and the United States Attorney’s Of-

fice for the Southern District of New York requested

access to the SEC’s Tellco file. On February 21, 1978,

the SEC permitted the FBI and the United States At-

torney to have access to the Tellco file. Over the

course of the next twenty-two months, the FBI con-

ducted an extensive investigation which culminated

in submission of a one hundred forty page prosecutive

memorendum to the United States Attorney’s Office

on December 27, 1979. With the FBI's one hundred

forty page report in hand and with the availability of

thousands of pages of transcripts generated by the

SEC investigation, the United States Attorney’s Of-

fice opened a formal file on the Tellico case on March

13, 1980. (Jd. at 9a).

For the next twenty-eight months the investiga-

tion was continued by the United States Attorney’s

Office assisted by the FBI and at least one compliance

examiner of the SEC. Dozens of witnesses were inter-

viewed and considerable evidence was presented to

grand juries, but no indictment was returned until Ju-

ly 14, 1982, because the assistant united states at-

torney assigned to the case was too busy to devote the

5

time necessary to complete the grand jury presenta-

tion ‘‘because (of) its complexities.’’ (Jd. and Tr. at

346).'

By August 9, 1982, the petitioner had been

represented by two lawyers appointed by the United

States Magistrate pursuant to the Criminal Justice

Act 18 U.S.C. 3006A (C.TA). The first lawyer asked to

be relieved because ‘‘the papers were so extensive that

he would not have the opportunity to properly repre-

sent (the petitioner) within the time limits available to

him for that purpose.’’ At that time the trial was

scheduled to commence on September 30, 1982, at

least seven and one-half weeks from the date upon

which the first lawyer was relieved. The second at-

torney appointed by the Magistrte pursuant to the

CJA was disqualified by the trial judge on August 9,

1982, because Mr. Orofino had gross income of

$48,000.00 per year (8/9/82 tr. at 1).2 Mr. Orofino

was told that he should retain counsel within ten days

and that the trial had been adjourned on motion of the

counsel for Co Defendant Forsyth to October 18, 1982

(Id. at 2).

During the subsequent court appearances Mr.

Orofino informed the Court that he had spoken with

several attorneys but could not retain counsel because

he was unable to raise sufficient funds for a retainer

and that the generation of monies by his business was

slow. No attempt was made by the prosecution or the

Trial Court to determine what assets Mr. Orofino

possessed to retain counsel or to establish his ad-

1. All parenthetical references with the prefix ‘‘Tr."’ refer to the

trial transcript.

2. ‘‘8/9/82 tr."’ refers to the transcript of the pre-trial conference

held on that date.

6

justed gross income. Instead, the Court repeatedly

warned Mr. Orofino that he would be forced to pro-

ceed pro se if he did not retain counsel, to which Mr.

Orofino replied that he was not prepared to defend

himself in a complex litigation and that he would do

his best to retain counsel. (9/8/82 tr. at 3-6, and 9/21/82

tr. at 3-5).°

Mr. Orofino was finally able to raise the hare

minimum necessary to retain private counsel on

September 28, 1982, 21 days before trial commenced.

Trial counsel had to prepare to meet a complex, multi-

pronged indictment involving at least three corpora-

tions operating on two continents. The United States

Attorney’s office made available five cardboard boxes

of exhibits including books, records, contracts, bank

statements, checks, telexes, financial statements, etc.,

totalling in the thousands of pages of documents. In

addition, counsel had access to approximately 5,000

pages of SEC transcripts relevant to the instant case.

Defense counsel's ability to adequately prepare

for trial was further complicated by the following

facts. During trial preparation counsel spent two days

in Italy where depositions of two government

witnesses were conducted. He was required to review

affidavits, applications and a court order authorizing

electronic surveillance pursuant to Title 18 U.S.C.

Section 2518 in order to prepare a motion to suppress

conversations of the petitioner which the government

offered into evidence at trial. Further, defense counsel

had to review concensual tape recorded conversations

betweci: the petitioner and an undercover FBI agent

which the government proposed to use in cross-

examination should petitioner testify. Finally, counsel

3. ‘9/18/82 tr.’’ and ‘‘9/21/82 tr.”’ refer to the transcripts of pre

trial appearances on the date indicated.

7

spent many days in preparation for two proposed

government witnesses who were not called to trial.

James Sherlock, an unindicted co-conspirator, whose

testimony before the Security and Exchange Commis-

sion, the Attorney General of the State of New York

and the Grand Jury was the most extensive of any

proposed government witness was never called to

trial. And while the government indicated initially

that it would call Fred Pro, the subject of the

aforementioned electronic surveillance, as a witness to

trial the government ultimately indicated that Mr.

Pro would not be a witness.

A motion for a 30 day continuance of the trial date

based upon counsel’s inability to adequately prepare a

defense was heard by the Court on October 15, 1982

and denied (10/15/82 tr. infra).* Also, during the after-

noon of Friday, October 15, 1982, the government

delivered approximately 5,000 pages of 3500 material

to defense counsel.°

The trial commenced on October'18, 1982. During

the course of the trial the prosecution offered the

testimony of 20 witnesses and moved into evidencé

115 exhibits.

The government offered proof that from April

through September 1977 investors purchased VWI

notes convertible to Tellco stock without having been

informed that the Italian cotton mill Cotonificio was

experiencing financial difficulties and had been shut

4. 10/15/82 tr."’ refers to the transcript for the motion for conti-

nuance.

5. Some cf the 3500 material duplicated SEC transcription

previously in the possession of defens2 counsel.

8

down for a period of time. (tr. 55-84, 99-108, 171-73,

185-88, 298-22, 238-42, 246-58, 263-70 and 313-29).

Testimony was also presented that cotton brokers

had sustained losses either through the shipment of

cotton to Italy which remained undelivered at a time

when world cotton prices were declining or because

some checks issued by VWI and signed by Norman

Forsythe had been returned for insufficient funds (tr.

8-11, 13-14, 23-29, and 31-49).

The defense attempted to establish a good faith

defense (tr. 288-89 25-96, and 302-303). The defense

case consisted of an eapert witness to testify that cer-

tain notes issued by the Lombard Capital Corporation

to an investor were not signed by the petitioner

although they bore his name (tr. at 357-61). The peti-

tioner was convicted of ten counts and sentenced to

current terms of five years imprisonment, 5 years pro-

bation and a fine of $73,000.00.°

The Court of Appeals in an unreported opinion

held that the trial Court did not abuse its discretion in

denying the application for a continuance ‘given the

brief duration of the trial, the straight forward nature

of the government's proof, and the relative in-

significance of the incidents of prejudice alleged by

appellant... .'’ And that the trial court’s conclusion

that appellant was capable of financing his defense

was not cleerly erroneous based upon petitioner's

(Footnote continued from preceeding page)

6 The securities fraud count was dismissed upon motion of the

government before trial and four counts were dismissed at the

close of the government's case when the government conceeded

that it had not called the specific investors involved in those

charges

9

“failure to show why his cash flow situation rendered

him financially unable to retain counsel... ."’ (App. A,

infra, at la-2a).

REASONS FOR GRANTING THE PETITION

This case presents questions of fundamental im-

portance to the administration of criminal justice in

the federal courts: First, whether prejudice must be

demonstrated when a denial of the Sixth Amendment

right to the effective assistance of counsel is

predicated upon insufficient time to prepare for trial;

second, if prejudice must be demonstrated, what kind

or degree of prejudice must be shown before relief will

be granted; and finally, what minimum standard of

competency must be displayed by a defense counsel in

a criminal case in order to satisfy the Sixth Amend-

ment requirement of effective assistance of counsel.

Despite the fundamental nature of these issues,

there exists no clear consensus among the Federal

courts of Appeal.

The first issue presented is currently before this

court. In United States v. Cronic, 675 F2d 1126 (10th

Cir. 1982), cert. granted, 82-660, the United States

Court of Appeals for the Tenth Circuit addressed this

issue in a case which is factually indistinguishable

from the instant case.’ The Tenth Circuit concluded

7. Im fact, in the instant case the defendant had less time to

prepare for trial than in Cronic (21 days as opposed to 25) and fac-

10

that Cronic’s conviction must be reversed because he

was deprived of effective assistance of counsel when

the trial court allowed twenty-five days for prepara-

tion of a multi-count mail fraud prosecution.

It is thus clear that if the instant case had been

decided in the Tenth or Sixth Circuits,’ the

petitioner's conviction would have been reversed and

the case would have been remanded for a new trial.°®

The Tenth Circuit’s analysis of the prejudice issue

should be adopted by this court because it is both

logical and the only realistic way to ensure meaningful

and effective representation in criminal cases where

the issue of ineffective assistance of counsel is

predicated upon insufficient preparation. As stated by

the Court in Cronic:

“When circumstances impair a given lawyer's

preparation of a defendant's case, the defendant need

not show specific errors in the conduct of his defense

in order to show ineffective assistance of counsel. See

United States v. King, 664 F.2d 1171, 1173-73 (10th

Cir. 1981); United States v. Golub, 638 F.2d 185, 187

(10th Cir.), reversed on other grounds, 699 F.2d 207

(10th Cir. 1982). This is an imminently reasonable rule,

for there is no way an Appellate Court can say precise

(Footnote continued from previous page)

surveillance; and the need to understand business practices and

accounting procedures in both Italy and the United States, in-

volving the cotton brokerage and cotton manufacturing in-

dustries.)

8. Bensley v. United States, 491 F.2d, 687 (6th Cir. 1974).

9. In vi-w of the almost identical factual contents of the instant

case, and in United States v. Cronic, Supra, it may be appropriate

for this Court to either join these cases {yr argument or to hold

this petition pending the decision in Cronic.

11

ly how a given case would have been handled by a

reasonably diligent and properly prepared lawyer. Pre-

judice for lack of preparation and experience cannot

be nicely weighted.’’ United States v. Cronic, supra, at

1128.

Finally, the Cronic Court recognized that this rule

does not conflict with the holding of this court in

United States v. Morrison, 449 U.S. 361, 101 S. Ct.

665, 66 L.Ed. 2d 564 (1981). Morrison involved the in-

vocation of the most drastic remedy when the Court of

Appeals had dismissed the indictment, based upon

pre-trial interviews of the defendant outside the

presence of counsel which yielded no inculpatory

statements. Based upon the fact that the constitu-

tional violation could not even theoretically have ef-

fected the trial processes, this Court concluded that

dismissal of the indictment was inappropriate. United

States v. Morrison, supra, 449 U.S. at 365.

In contrast, a denial of effective assistance of

counsel based upon inadequate time to prepare for

complex litigation is fraught with danger which can-

not be retrospectively evaluated without speculation.

Nevertheless, the circumstances are such as to permit

the reasonable inference that a substantial threat of

prejudice may be inferred.

Even if this Court should conclude that prejudice

must be demonstrated before relief will be granted, it

will still be necessary to resolve a conflict among the

Circuits concerning the kind and degree of prejudice

which must be shown.'® tag

10. The cases are collected and discussed by the Fifth Circuit in

Washington v. Strickland, 673 F.2d 879, 896-900 n. 11-n.20 (5th

(Footnote continued on next page).

12

(Footnote continued from preceeding page)

Cir. 1982).

11. In United States ex rel. Green v. Rundle, 434 F.2d 1112 (3d

Cir. 1970), the Third Circuit noted that the ineffective assistance

inquiry cannot stop with a determination as to whether counsel

departed from the standard of normal competence:

In many instances ineffective assistance of counsel may

have had so pervasive an effect on the process of guilt deter-

mination that it is impossible to determine accurately the

presence or absence of prejudice. In other cases changes in

circumstances since the original proceedings beyond peti-

tioners’ control, such as the death of a witness who was not

called, may make it impossible at the time of the habeas cor-

pus petition to determine prejudice. In such instances a fin-

ding of departure from the standard of normal competence

requires without more, a new trial. In other cases the failure

of counsel may be with respect to a narrow issue or area, and

it may well be possible, in the habeas corpus proceeding, to

determine whether or not the departure from normal com-

petence was prejudicial.... When a habeas petitioner

alleges as a ground for relief the failure of counsel to exercise

normal competence in presenting specific trial evidence it is

reasonable, we think, to put on petitioner the burden of

showing that the missing evidence would have been helpful.

Id. at 1115.

In subsequent cases, the Third Circuit has denied habeas relief

when it was clear that no prejudice had been shown. E.g., United

States v. Swinehart, 617 F.2d 336, 341 (3d Cir. 1980) (no prejudice

from failure to file suppression motion because motion would

have properly been denied; no prejudice from failure to object to

prosecutorial suggestion of defendant's guilt because defendant

was not prejudiced by comments). The court has also applied the

harmless error doctrine to certain ineffective assistance claims.

E.g., United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177

(3d Cir.), cert. denied, 425 U.S. 997, 96 S. Ct. 2214, 48 L.Ed.2d

823 (1976) (petitioner has the burden of proving that he was pre-

judiced by the variance between counsel's opening statement and

his conduct at trial when counsel suggested in opening statement

that he would present an alibi defense; however, ‘‘while the com-

ment was unfortunate, it was harmless beyond a reasonable

13

(Footnote continued from preceeding page)

doubt’’ when viewed in the context of the entire trial); United

States v. Crowley, 529 F.2d 1066, 1070-71 (3d Cir.), cert. denied,

425 U.S. 995, 96 S. Ct. 2209, 48 L.Ed.2d 820 (1976) (harmless er-

ror doctrine applies to denial of counsel at hearing on motion to

withdraw guilty plea when the defendant alleges neither that he

is innocent or that his original plea was involuntary and when it

is clear that the defendant is not entitled to withdraw his guilty

plea). But see, Boyer v. Patton, 579 F.2d 284, 288-89 (3d Cir.

1978) (involving prosecutorial comments on the defendant's

silence at the time he was arrested—in which the court has held

that the facts ‘‘demand the finding that [the defendant] was pre-

judiced as a matter of law’’).

12. The Eighth Circuit’s position on this issue was clearly

marked in McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974):

Evaluation of a habeas corpus petition alleging ineffective

assistance of counsel is a two-step process: first, determin-

ing, as we have already done, whether there has been a

failure to perform some duty, as essential as the duty of in-

vestigation, owed by a defense attorney to his client; and se-

cond, determining, as will be done on remand, whether that

failure prejudiced his defense. This second step is necessary,

we believe, because the failure to investigate—though a con-

stitutional error—might in certain circumstances be a

“‘harmless’’ one and hence would not justify habeas corpus

relief. We are guided in this regard by Chapman v. Califor.

nia, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), where

the Court fashioned its harmless-constitutional-error rule.

Id. at 218. The court elaborated on this concept:

We ought not to intervene in the criminal process unless and

until it can be shown that the alleged error itself prejudiced

the petitioner in obtaining a fair trial. But this is not to say

that, on remand, petitioner must prove his innocence by

even so much as a preponderance of the evidence; nor should

we be understood to suggest that the Court may trespass

upon what properly would have been the jury’s province of

weighing the truth or falsity of this evidence at the original

trial. What we are saying is that, here, the petitioner must

shoulder the burden of showing the existence of admissible

evidence which could have been uncovered by reasonable in-

14

(Footnote continued from preceeding page)

vestigation and which would have proved helpful to the

defendant either on cross-examination or in his case-in-chief

at the original trial. Once this showing is made, a new trial is

warranted unless the court is able to declare a belief that the

omission of such evidence was harmless beyond a

reasonable doubt....

In lieu of such a showing, we hasten to add, the defendant

must be allowed to demonstrate that changed cir-

cumstances beyond petitioner’s control have made it im-

possible to produce any helpful evidence at this time. The

latter circumstances, if proved. would serve to shift to the

state the burden of showing the absence of any prejudice in

the trial because of the inadequacy of the defendant's

counsel.

Id. at 220 (emphasis in original).

The Eighth Circuit has consistently adhered to the McQueen

Standard. See, e.g., Ford v. Parratt, 638 F.2d 1115, 1118 (8th Cir.

1981) (when defendant enters a guilty plea, prejudice inquiry

necessarily centers upon whether counsel's failure to investigate

prejudiced defendant's ability to make an intelligent and volun-

tary guilty plea); Morrow v. Parratt, 675 F.2d 411, 413-14 (8th

Cir. 1978) (petitioner prejudiced by counsel’s failure to interview

eyewitnesses because the evidence counsel would have

discovered thereby ‘‘may have completely changed the defense

strategy”’); Harshaw v. United States, 542 F.2d 455, 456-57 (8th

Cir. 1976) (petitioner failed to establish he was prejudiced by

counsel's failure to conduct a pretrial investigation when record

reflected ‘‘no allegation of anything such investigation might

have been expected to produce and no indication of how its omis-

sion, if it occurred, was derelict and prejudicial’; neither was

there prejudice from counsel's failure to make frivolous objec-

tions).

13. Sitting en banc, the Ninth Circuit in Cooper v. Fitzharris,

586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974,

99 S. Ct. 1542, 59 L.Ed.2d 793 (1979), explained its approach to

the prejudice requirements as follows:

When the claim of ineffective assistance rests upon specific

acts and omissions of counsel at trial, as it does in this case,

relief will be granted only if it appears that the defendant

15

(Footnote continued from preceeding page)

was prejudiced by counsel's conduct.

Id. at 1331 (emphasis added). The court followed this holding

with two cautionary comments:

If counsel is charged with multiple crrors at trial, absence of

prejudice is not established by demonstrating that no single

error considered alone significantly impaired the

defense—prejudice may result from the cumulative impact

of multiple deficiencies.

Finally, the requirement that prejudice appear does not

mean that relief is available only if the defendant would

have been acquitted but for counsel's blunders.

Id. at 1333. :

In Ewing v. Williams, 596 F.2d 391, 395-97 (9th Cir.

1979), the Ninth Circuit extended in full the holding of

Cooper v. Fitzharris to ineffective assistance claims

predicated on a lack of pretrial preparation, and in United

States v. Altamirano, 633 F.2d 147, 152-53 (9th Cir. 1980),

the court made clear that this standard applies both to

direct appeals and collateral attacks. Apparently, however,

the court has not clearly articulated the degree of prejudice

that must be shown. Compare Altamirano, 633 F.2d at 153

(counsel's ‘‘many unprofessional acts when reviewed in the

context of the entire trial did not deprive appellant of a fair

trial,’’ because the defendant's case ‘‘depended almost en-

tirely upon his credibility,’’ which was not impugned by

counsel's failings), with Cooper v. Fitzharris, 586 F.2d at

1341 (Hufstedler, J., dissenting) (‘While I do not agree that

prejudice must be shown, if the majority nonetheless adopts

a harmless error approach, Chapman v. California . . . would

govern the burden of proving prejudice”; burden would

therefore be on prosecution to prove that the constitutional

error was ‘‘harmless beyond a reasonable doubt.’’)

14. While the Court of Appeals for the District of Columbia has

written extensively on the topic of prejudice, no clear rule

emerges from DeCoster v. United States, 624 F.2d 196 (D.C. Cir.)

(en banc), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d

311 (1979), and its progeny. A plurality of the court held that

“the accused must bear the initial burden of demonstrating a

likelihood that counsel's inadequacy affected the outcome of the

16

(Footnote continued from preceeding page)

trial’’; thereafter, ‘‘the conviction cannot survive unless the

government demonstrates that it is not tainted by the deficiency,

and that in fact no prejudice resulted’’; if the showing by the ac-

cused causes the court serious misgivings notwithstanding the

absence of a constitutional violation, government may prevail

upon showing short of the Chapman standard. 624 F.2d at 208 &

n. 74 (opinion of Leventhal, J., joined by three judges) (emphasis

added). A concurring opinion held that ‘‘a defendant must show

substantial unfair prejudice to his defense resulting from a

substantial violation of duty owed him by his counsel,” at which

point the burden shifts to the government to rebut this showing .

Id. at 232 (MacKinnon, J., joined by two judges) (emphasis add-

ed). The dissent argued that once a petitioner has established his

trial counsel's ineffectiveness, the burden is on the government

to establish that any error was harmless beyond a reasonable

doubt. Jd. at 290-95 (Bazelon, J., dissenting, joined by one judge).

The en banc court’s subsequent interpretation of DeCoster

adds little:

[A] majority of the court is of the view that defendant does

bear the burden of showing that counsel’s substantial

breach was likely to have resulted in prejudice to appellant's

case. That is the formulation in Judge Leventhal’'s

opinion... . It is necessarily included in the burden assign-

ed to defendant in Judge MacKinnon’s opinion: that defen-

dant show that he actually suffered ‘‘unfair prejudice” as a

result of counsel's breach.

United States v. Wood, 628 F.2d 554, 559 (D.C. Cir. 1980) (en

banc) (per curiam). Wood can be read to suggest that the peti-

tioner need not show that he would have been acquitted, but for

counsel's incompetence, in order to satisfy DeCoster’s require

ment that he show an effect on ‘‘the outcome of the trial’: ‘In

order to secure a reversal, appellant must establish some basis

for believing that a different kind of preparation would have

resulted in the presentation of a contrary line of testimony for the

jury's consideration.’ Jd. at 559. Subsequent panel opinions are

inconclusive on this point. See, e.g., United States v. Hinton, 631

F.2d 769, 782-83 (D.C. Cir. 1980) (noting only that under

DeCoster and Wood a defendant must establish that he has suf-

fered “‘likely prejudice,’ at which point the government must

17

—— --=- Se SS

(Footnote continued from preceediny, page)

prove beyond a reasonable doubt that the deficiencies were

harmless). But see United States v. Patterson, 625 F.2d 1046,

1048 (D.C. Cir. 1981) (‘No ccunsel however skillful could have ‘af-

fected the outcome’ of this case where appellant's identity was

fixed by three eyewitnesses to the commission of the offense and

no greater number of unidentified alibi witnesses, more than the

three presented, would have prevented the inescapable jury fin-

ding of guilt."’).

15. The Second Circuit requires that ‘‘claims of ineffective

assistance must be premised on actual, not possible, prejudice to

the client."’ United States v Aulet, 618 F.2d 182, 188 (2d Cir.

1980) (following LiPuma v. Commissioner, Department of Correc-

tions, 560 F.2d 84, 92 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct.

189, 54 L.Ed.2d 135 (1977) ). Cf. United States v. Carrigan, 543

F.2d 1053, 1055 (2d Cir. 1976) (when defendants claim that poten-

tial conflict of interest on the part of their joint attorney prejudic-

ed their cause, some specific instance of prejudice must be shown

before it can be said that they received ineffective assistance).

On some occasions, the Second Circuit has cited this rule in re-

jecting ineffective assistance claims because there has been no

showing of prejudice. E.g., Aulet, 618 F.2d at 188 (‘‘[H]ad a mo-

tion to suppress been made it would have been unsuccessful.’’);

LiPuma, 560 F.2d at 92-93 (same). On other occasions, however,

the Second Circuit’s emphasis on the strength of the

prosecution’s case approaches an “‘outcome-determinative”’

analysis. See, e.g., United States v. Williams, 575 F.2d 388, 393

(2d Cir.), cert. denied, 439 U.S. 842, 99 SCt. 134, 58 L.Ed.2d 141

(1978) (‘Other actions by [counsel], such as his tardy and unsuc-

cessful application for production of a defense witness to

discredit [the key prosecution witness], are not, to be sure, ac-

tions dictated by the demands of trial strategy. But given the

strength of the government’s case against [the defendant], it is

extraordinarily unlikely that [the defendant] was at all prejudiced

by his attorney's judgment.”’); United States ex rel. Bradley v.

McMann, 423 F.2d 545, 657-58 (2d Cir. 1970), cert. denied, 400

U.S. 994, 91 S.Ct. 464, 27 L.Ed.2d 442 (1971) (rejecting ineffec-

tive assistance claim premised on counsel's failure to consult ade-

quately with defendant, which resulted in counsel's failure to

verify and holster an alibi defense, because ‘‘[alppellant’s alleged

18

(Footnote continued from preceeding page)

alibi was apparently not disclosed to counsel at a conference

several hours before the trial began, but was mentioned for the

first time when appellant testified’’; moreover, the prosecution's

rebuttal testimony ‘‘destroyed’’ the alibi, ‘‘thus bel[ying] the

claim of prejudice resulting from the belated preparation of his

trial counsel’’).

16. In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert.

denied, 393 U.S. 849, 89 SCt. 80, 21 L.Ed.2d 120 (1968), the

Fourth Circuit held that

{aJn omission or failure to abide by these requirements [of

prompt appointment of counsel, adequate opportunity to

prepare a defense, adequate consultation, and appropriate

investigation] constitutes a denial of effective representa-

tion of counsel unless the state, on which is cast the burden

of proof once a violation of these precepts is shown, can

establish a lack of prejudice thereby.

Id. at 226. In subsequent cases, the Fourth Circuit appears to

have alluded to the prejudice requirement only briefly and obli-

quely. See, e.g., Via v. Superintendent, Powhatan Correctional

Center, 643 F.2d 167, 175 (4th Cir. 1981) (finding ‘‘obvious’’ the

prejudice the petitioner suffered when counsel pressured him into

pleading guilty in part because counsel was unprepared to try the

case: ‘‘Via had a right to plead not guilty and go to trial... . He

was prejudiced when this right was frustrated because his

counsel was unprepared to represent him effectively.’’); Marzullo

v. Maryland. 561 F.2d 540, 546 (4th Cir. 1977), cert. denied, 435

U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (noting simply

that attorney's fuilure to exclude jury during interrogation of the

prosecuting witness about the crime charged in another rape in-

dictment ‘‘failed to protect [the defendant] from the prejudicial

effects of the jury's exposure to the first rape charge’’).

17. On at least one occasion, the First Circuit has declined to

grant habeas relivf at least in part on grounds that there had been

no showing of prejudice. United States v. Ritch, 583 F.2d 1179,

1181 (lst Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58

L.Ed.2d 430 (1978) (petitioner had demonstrated no prejudice

from counsel's failure to file suppression motion because motion

would have been denied; neither was he prejudiced by counsel's

failure to interview potential defense witnesses because the

i9

(Footnote continued from preceeding page)

substance of their testimony was in fact presented to the jury).

One week later, the First Circuit noted that ‘‘[tJhe circuits are

split on the question of whether an infraction of the sixth amend-

ment right to effective assistance can ever be treated as harmless

error, and if so, which party has the burden of proof.”’ United

States v. Bosch, 584 F.2d 1113, 1122 (1st Cir. 1978). But the

court concluded that because ‘‘the error was clearly not harmless

in the present case, we leave for another day the issue of whether

deprivation of effective assistance can ever constitute harmless

error.’’ Jd. at 1123.

18. In United States ex rel. Healey v. Cannon, 553 F.2d 1052,

1057 n. 7 (7th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 221, 54

L.Ed.2d 153 (1977), the court rejected the conclusion of an Il-

linois appellate court that any mistaken advice afforded the peti-

tioner constituted harmless error due to the overwhelming

evidence of guilt; the court noted that ‘‘the harmless error doc-

trine is patently inapplicable to the claimed deprivation of a due

process right so fundamental as the effective assistance of

counsel.’’ Yet in denying habeas relief in United States v.

Berkwitt, 619 F.2d 649, 659 (7th Cir. 1980), the court relied in

part on the petitioner’s failure ‘‘to support his contention [of inef-

fective assistance] with any specific instance of prejudice.’’ And

in United States v. Cooper, 580 F.2d 259, 263 n.8 (7th Cir. 1978),

the court noted that ‘‘[t]here has been no showing by appellant

whatsoever that a defense of insanity would have been

meritorious and that waiver of such a defense [by counsel] was

prejudicial.’’ Finally, in United States v. Ingram, 477 F.2d 236,

240 (7th Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d

76 (1973), the court explicitly rejected an ineffective assistance

claim on grounds that none of counsel's five purported failings

had been prejudicial.

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

1980), the Tenth Circuit rejected the suggestion that

“prejudice” is a second tier in the test of incompetency.

Reasonable diligence and skill is the test! 4t would be a

mockery in this case to say that .he defendant was clearly

guilty and that the incompetence of counsel made no dif-

ference. Where, as here, the incompetence of counsel is per-

suasive, the defendant ought not to be required to prove pre-

20

(Footnote continued from preceeding page)

judice on top of the inadequacy. The burden should be on

the government to establish the lack of prejudice... . Noris

this a case in which discrete trial errors had been commit-

ted. Cf. Cooper v. Fitzharris....

Id. at 125. In United States v. Golub, 638 F.2d 185 (10th Cir.

1980), the court stopped short of holding that prejudice is never

relevant, but declined to require such a showing in the case before

it: “[P]roof of specific prejudice is not always required in order to

render assistance of counsel ineffective, particularly when, as

here, the record establishes that trial counsel simply did not have

adequate time to prepare for trial.’’ Jd. at 190. In that case, ‘‘[t]he

surrounding circumstances, in and of themselves, evidence[{d] the

prejudice without further proof.’’ Jd. Most recently, however, the

Tenth Circuit has indicated that both of these holdings may be

“questionable” in the light of United States v. Morrison, 449

U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981), and deci-

sions from other circuits. See United States v. King, 664 F.2d

1171, 1173 (10th Cir. 1981); and United States v. Payne, 641 F.2d

866, 867-68 (10th Cir. 1981).

20. The Sixth Circuit appears to be alone in failing to require

any showing of prejudice from counsel's ineffective representa-

tion. In Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974), the Sixth Circuit held that ‘‘[hjarmless error tests do not

apply in regard to the deprivation of a procedural right so fun-

damental as the effective assistance of counsel.’’ Accord, United

States v. Yelardy, 567 F.2d 863, 865 n. 1 (6th Cir.), cert. denied,

439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978). Cf. United

States v. Sumlin, 567 F.2d 684, 688-89 (6th Cir. 1977), cert.

denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L.Ed.2d 529 (1978) (fin-

ding harmless beyond a reasonable doubt the admission of

evidence that petitioner claimed should have been suppressed

because it was obtained from defendant by FBI agents while

defendant was represented by allegedly ineffective counsel).

Although the court reaffirmed Beasley's holding in McKeldin v.

Rosz, 631 F.2d 458, 460-61 (6th Cir. 1980), cert. denied, 450 U.S.

969, 101 S.Ct. 1488, 67 L.£d.2d 619 (1981), the court qualified it

by holding that “‘[w]here +h. errer occurs at a preliminary hearing

in state proceedings and the state invokes harmless error as a

21

The instant case presents an appropriate vehicle

for resolution of this conflict among the circuits,

because the petitioner demonstrated prejudice,'' but

(Footnote continued from preceeding page)

reason for denying relief, a harmless error analysis is required.”’

Of course, the general rule recognized in the Sixth Circuit may be

subject to modification after United States v. Morrison, 449 U.S.

361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981), discussed in-

fra in text. Cf. Turner v. Engel, 673 F.2d 1331 (6th Cir. 1981)

(citing in dicta Walker v. Solem, 648 F.2d 1188, 1189 (8th Cir.

1981), for the proposition that the petitioner ‘‘:nuet show both in-

competence and material prejudice resulting from the in-

competence in order to prevail on his claim.’’)

11. While it is difficult if not impossible, to determine the full

range and course of trial preparation, had petitioner been permit-

ted sufficient time to prepare, as noted in the petition for rehear-

ing, the following exculpatory evidence which remained unknown

to defense counsel until after the trial, would have been

presented.

1. Tellco was run by Norman Forsyth not Orofino;

2. Orofino had no authority in the company. All power in-

cluding signatory power for the bank account was in Forsyth who

was the President;

3. When the company moved its offices to 39 Broadway, For-

syth refused to give Orofino an office and instructed this co-

defendant not to allow Orofino to use his office;

4. Forsyth told the others involved not to associate with

Orofino;

5. Forsyth was secretive about investments collected and com-

missions paid. Forsyth would take Sherlock outside of the

presence of the others including Orofino whenever investments

were to be discussed.

6. Forsyth had told everyone involved that money raised from

the sale of notes would be used to purchase raw cotton;

7. Orofino continually begged Forsyth for money to buy raw

cotton. Orofino told Forsyth that if they just had 100 bales per

month the cotton company would be in great financial condition;

8. Orofino strongly objected to a trip for potential investors to

view the Italian cotton mill over the July 4, 1977 weekend.

Orofino told Forsyth the money should be used to buy cotton;

22

the Second Circuit rejected that claim based upon its

rule that the defendant must demonstrate actual par-

ticularized instances of prejudice and not merely the

possibility of prejudice. See United States v. Aulet,

618 F.2d 182, 188 (2d Cir. 1980); United States v.

Rastelli, 551 F.2d, 902, 906 (2d Cir.), cert. denied, 434

U.S. 831 (1977).

By way of contrast, the decision of this case in the

District of Columbia would undoubtedly have

resulted in a reversal of petitioner’s conviction. The

District of Columbia Circuit requires only that a

defendant demonstrate ‘‘likely prejudice’ flowing

from ineffective assistance of counsel. United States

v. Hinton, 631 F.2d 769, 782-83 (D.C. Cir. 1980).

——

There also exists a split among the circuits concer-

ning the minimum standard of competency which

must be displayed by a defense counsel in a criminal

case, in order to satisfy the Sixth Amendment require-

ment of effective assistance of counsel. The disarray

among the circuits was noted by Justice White with

whom Justice Rehnquist joined dissenting from this

Court’s denial of certiorari in Maryland v. Marzullo,

435 U.S. 1011, 98 S. Ct. 1885, 56 L.Ed. 2d 394 (1978).

Justice White in listing the cases noted at least three

different standards which were employed by various

Court of Appeals. Since that time the 1st and 10th Cir-

cuit Courts of Appeals have abandoned the ‘‘mockery,

sham or farce’’ standard. See United States v. Bosch,

(Footnote continued from preceeding page)

9. if Forsyth had listened to Orofino the cotton company would

have been in a strong financial position; and

10. The Comptroller of the Italian cotton company had stated

that for every dollar invested in raw cotton, three dollars in in-

come is generated.

23

584 F.2d 1113 (1st Cir. 1978) and Dyer v. Crisp, 613

F.2d 275 (10th Cir.) (en banc), cert. denied, 445 U.S.

945, 100 S. Ct. 13842, 63 L.Ed.2d 779 (1980).

Today, the Second Circuit stands alone in adher-

ing to the archaic and unrealistic doctrine that the

defendants’ Sixth Amendment right to effective

assistance of counsel is not violated unless counsel’s

representation reduces the trial to a mockery, sham or

farce.

This Court has repeatedly held that the right to

counsel is fundamental to a fair trial. Gideon v. Wain-

wright, 372 U.S. 335, 83 SCt. 792, 9 L.Ed. 2d 799

(1963); Powell v. Alabama, 287 U.S. 45, 53 SCt. 55, 77

L.Ed 158 (1932), and that the right to counsel means

the right to the effective assistance of counsel.

McMann v. Richardson, 397 U.S. 759, 771 n.14, 90

SCt. 1441, 25 L.Ed. 2d 763 (1970). This court should

establish a uniform standard for determining whether

this fundamental right has been deprived.

In this case the Circuit Court of Appeals affirmed

on the basis that petitioner had not adequately

demonstrated prejudice. Therefore, it did not reach

the issue of the appropriate standard to be employed

in accessing competency of counsel. However, upon

reconsideration, after this Court has articulated the

appropriate tests in accessing prejudice, the issue of

the standard to be employed in determining whether

petitioner was deprived of the effective assistance of

Counsel, must be addressed.

Because this case presents several fundamental

constitution issues which have divided the Circuit

Courts of Appeals and because one of those issues is

24

currently before this Court, certiorari should be

granted.

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

CHARLES L. WEINTRAUB

Attorney for Petitioner

285 Madison Avenue

New York, N.Y. 10017

(212) 679-2988

September, 1983

la

APPENDIX “A”

ORDER DATED JUNE 20th, 1983

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on

the 20th day of June, One Thousand Nine Hun-

dred and Eighty-three.

PRESENT:

HON. ELLSWORTH A. VAN GRAAFEILAND,

HON. LAWRENCE W. PIERCE,

HON. JOHN MINOR WISDOM,*

Circuit Judges

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCIS X. OROFINO,

Defendant-Appellant.

Francis X. Orofino appeals from a judgment of

the United States District Court for the Southern

* Senior Circuit Judge of the Fifth Circuit, sitting by designa-

tion.

2a

District of New York (Pollack, J.), entered December

2, 1982, convicting him, after a jury trial, of mau, wire,

and securities fraud, and conspiracy to commit the

same. We affirm.

The trial judge did not deny appellant the effec-

tive assistance of counsel or due process of law when

he revoked appellant’s assigned counsel status and

denied the request for a continuance submitted by ap-

pellant’s subsequently retained counsel. In view of

Orofino’s failure to show why his cash flow situation

rendered him financially unable to retain counsel, the

district court’s finding that appellant was able to

finance his defense was not clearly erroneous. See 18

U.S.C. §3006A(c); United States v. Ellsworth, 547

F.2d 1096, 1098 (2d Cir. 1976), cert. denied, 431 U.S.

931 (1977); United States v. Rubinson, 543 F.2d 951,

964 (2d Cir.), cert. denied sub nom. Chester v. United

States, 429 U.S. 850 (1976). Also, given the brief dura-

tion of the trial, the straight-forward nature of the

Government’s proof, and the relative insignificance of

the incidents of prejudice alleged by appellant, the

trial court did not abuse its discretion in denying

defense counsel’s application for a continuance. See

United States v. Bagaric, __F.2d__, No. 82-1247, slip

op. at 3195 n. 21 (2d Cir. April 14, 1983); United States

v. Cicale, 691 F.2d 95, 106-07 (2d Cir. 1982), cert.

denied, 51 U.S.L.W. 3749 (April 18, 1983); United

States v. Rastelli, 551 F.2d 982, 906 (2d Cir.), cert.

denied, 434 U.S. 831 (1977); United States v. Bent-

vena, 319 F.2d 916, 935 (2d Cir. 1963).

Appellant has failed to establish a violation of the

Government’s obligation under Brady. Inasmuch as

Orofino should have known of his confederates’ posi-

tions with respect to the financial viability of the

3a

Italian company, it cannot be said that the Govern-

ment suppressed information favorable to him. See

United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.

1982), cert. denied, 51 U.S.L.W. 3552 (January 24,

1983).

Counts 7 and 8 of the indictment were not factual-

ly defective by the omission of the ‘‘sale’’ element of

an offense under 15 U.S.C. §773(a). Orofino asserts no

prejudice as a result of the omission. See United

States v. Bagaric, supra, at 3178; United States v. Car

rier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 50

U.S.L.W. 3998.02 (June 21, 1982). Moreover, Count 1

of the indictment details the sales of securities, and

the trial judge properly charged the jury on this ele-

ment of the offense.

Any eiror by the trial judge in allowing the

testimony of Peter Davey and Martin Dillon would be

harmless in view of the substantial evidence of

Orofino’s guilt. Moreover, given the minimal pre-

judicial effect, if any, of the judge’s questioning of

Michael Zucker, and the substantial evidence of guilt,

any error again would be harmless. See United States

v. Robinson, 635 F.2d 981, 984-85, 986 (2d Cir. 1980),

cert. denied, 451 U.S, 992 (1981). The exclusion of the

opinion testimony of Zucker does not constitute rever-

sible error, inasmuch as any such testimony would go

to the appellant’s expectation of the future viability of

the company, a legally irrelevant issue.

Judgment affirmed.

s/Hon. Ellsworth A. Van Graafeiland

Hon. Ellsworth A. Van Graafeiland

4a

s/Hon. Lawrence W. Pierce |

Hon. Lawrence W. Pierce

s/Hon. John Minor Wisdom

Hon. John Minor Wisdom

(N.B. Since this statement does not constitute a for-

mal opinion of this court and is not uniformly

available to all parties, it shall not be reported, cited

or otherwise used in unrelated cases before this or any

other court.)

5a

APPENDIX ‘“‘B”

ORDER DATED JULY 21st, 1983

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse, in the City of New

York, on the twenty-first day of July, one thou-

sand nine hundred and eighty-three.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCIS X. OROFINO, NORMAN T. FORSYTH,

Defendants-Appellants.

A petition for a rehearing having been filed herein

by counsel for the defendant-appellant, Francis X.

Orofino, |

Upon consideration thereof, it is

6a

Ordered that said petition be and it hereby is

DENIED.

A. Daniel Fusaro, Clerk

s/Victoria C. Dalton

by Deputy Clerk

Ta

APPENDIX “C”’

AFFIDAVIT OF PAMELA ROGERS CHEPIGA

IN OPPOSITION

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

-y,-

NORMAN FORSYTH, et ai,

Defendants.

STATE OF NEW YORK )

COUNTY OF NEW YORK - on:

SOUTHERN DISTRICT OF N.Y.)

PAMELA ROGERS CHEPIGA, being duly

sworn, deposes and says:

1. I am an Assistant United States Attorney in

the Southern District of New York and, together with

Assistant United States Attorney Car! T. Solberg, I

am presently in charge of the prosecution of the

above-captioned case. I submit this affidavit in op

position to the motion of defendant Norman Forsyth

to dismiss the charges pending against him on the

basis of pre-indictment delay. This affidavit is based

upon a review of the relevant files of both the United

States Attorney’s Office and the Federal Bureau of

Investigation, as well as on conversations with Assis-

8a

tant United Stats Attorneys Eugene N. Kaplan and

Jane Parver.

2. In 1977 during the course of an investigation in-

to sophisticated white collar criminal activity—the

principal target of which was the multi-convicted Sy

Yoakum Guthrie III—Assistant United States At-

torney Eugene N. Kaplan and Federal Bureau of In-

vestigation Special Agent Erick Vail began to receive

information concerning the activities of Francis X.

Orofino and Norman Forsyth who were then working

together under the name Lombard Capital out of an

office at 12 East 86th Street in Manhattan. The pur-

chase of an Italian cotton factory was but one of a

number of Orofino’s and Forsyth’s questionable ac-

tivities which were brought to the attention of the

FBI.

3. At approximately the same time, April 1977,

the stock of Tellco, a corporation of which Forsyth

was President and of which the Italian cotton factory

was made a subsidiary, was being traded over-the-

counter at 25 certs per share. Within five months the

stock skyrocketed to 8 dollars per share and on

September 22, 1977 the Securities and Exchange

Commission (““SEC’’) suspended public trading in

Tellco stock. Both prior to and following the suspen-

sion of trading of Tellco stock the SEC conducted its

own independent investigation which culminated in

the filing of a civil action, SEC v. Tellico, 79 Civ. 6649

(CSH), on December 6, 1979.

4. On December 6, 1977 Assistant United States

Attorney Kaplan, in conjunction with the FBI in-

vestigation described in Par. 2, supra, requested ac-

cess to the Securities and Exchange Commission’s

9a

files on Tellico. Access was granted by the SEC on

February 21, 1978.

5. The FBI began to treat the Tellco matter as an

independent offshoot of the Guthrie case and con-

ducted its own lengthy and detailed investigation, the

focus of which was substantially different from that of

the SEC. Upon the completion of its investigation, the

FBI on December 27, 1979 submitted a 140 page pro-

secutive report to the United States Attorney’s Office

for the Southern District of New York.

6. On March 13, 1980, after reviewing the FBI’s

prosecutive report, the United States Attorney’s Of-

fice formally opened a file on the Tellco matter, United

States Attorney File No. 80-0892. At approximately

the same time Assistant United States Attorney

Kaplan was promoted to the administrative position

of Deputy Chief of the Criminal Division, and the

Tellco investigation was reassigned to Assistant

United States Attorney Jane Parver. Aiihough

devoting sufficient time to the Telico investigation to

interview dozen of witnesses and to present con-

siderable evidence to the Grand Jury, Assistant

United States Attortfey Parver was unable to com-

plete the Grand Jury presentation because its com-

plexity demanded a time commitment she was unable

to give to it due to the press of other trial and in-

vestigative assignments. Consequently, in approx-

imately March 1982, Special Assistant Unitd States

Attorney Seth Taube was given primary responsibili-

ty for the finalization of the Tellco investigation and

was in charge of the matter through July 1982, when

the indictment was filed. In July 1982 the case was

once again re-assigned when Mr. Taube left the

United States Attorney’s Office.

10a

7. The investigation was at all times conducted in

good faith and at no time was it purposely delayed. All

reassignments of the case, with any delays necessarily

attendant thereto, were made for valid law enforce-

ment purposes. Indeed, the passage of time and poten-

tial fading of recollections makes the prosecution

more difficult for the Government, which bears the

heavy burden of proving its case beyond any

reasonable doubt, than for the defense. While the

defense argues that the Government delayed to gain

some ‘‘tactical advantage” (Traub Aff’d Par. 13), it

does not specify or even hypothesize what conceivable

advantage the Government could have gained from

any delay.

8. In the affidavit and brief submitted on behalf of

Forsyth, there are repeated references to his being

unrepresented in the SEC proceeding. In fact, the firm

of Gusrae, Greene & Kaplan did represent Forsyth at

various times during the SEC investigation and when

Forsyth appeared at the SEC on August 30, 1978, he

refused to answer any questions and invoked his fifth

amendment privilege ‘“‘upon advice of counsel.” (SEC

Tr., Ex. F. to Traub Aff’d, p. 7). Again, when his

deposition in the civil proceeding was taken on May

20, 1981, Forsyth refused to answer any questions

and invoked his privilege against self-incrimination.

Contrary to the assertion in Par. 3 of the Traub af-

fidavit, Forsyth made no statements in the context of

the civil case which could be used against him in this

criminal proceeding.

9. Forsyth has long been aware of the possibility

of a criminal prosecution; he was never misled by the

Government into believing that his liability was ex-

clusively civil. As early as August 30, 1978 Forsyth

lla

was advised by the SEC of a potential criminal pro-

secution based on the same acts which were the basis

of their civil investigation. (See SEC Tr., Ex. F to

Traub Aff’d, p. 4). Moreover, on April 12, 1979 For-

syth was interviewed by two FBI agents, whose

jurisdiction is exclusively criminal. Finally, on

January 7, 1981 Forsyth was subpoenaed by the

Grand Jury to produce all corporate books and

records for Tellco and several other corporate entities.

He appeared in the Grand Jury and did produce the

subpoenaed records. At the time he made the Grand

Jury production Forsyth—repeatedly characterized in

the Traub affidavit as ‘‘uncounseled’’—was

represented by the firm of Grand & Ostrow.

10. The Grand Jury also subpoenaed and obtained

all Tellco related records of two brokerage firms,

Willis E. Burnside & Co. and Heineman, Franklin, In.

These records are in the possession of the United

States Attorney’s Office and have been made

available to Forsyth’s counsel. Moreover the person-

nel of those firms with whom Forsyth dealt, who ac-

cording to the Government’s information did not

primarily include Willis Burnside himself, are still in

New York and available to testify.

11. In Par. 9 of the moving affidavit, Mr. Traub

sttes that ‘‘as a result of the long standing investiga-

tion and Civil Action relating to Tellco’’ Mr. Forsyth

“thas lost his home, family and had a heart attack.”

This statement is most disingenuous. Since this in-

vestigation began, Mr. Forsyth was indicted by the

State of New York for bribery of a state official, pro-

ceeded to trial, and was sentenced to and then served

one year in prison, from which he was released only

recently. Blithely omitting any reference to these

12a

facts, the defense attributes all of Forsyth’s health

and family problems solely to the lengthy pendency of

the Tellico investigations. The need to stoop to such a

distortion of fact is a reflection of the complete lack of

substance in the present motion.

s/Pamela Rogers Chepiga

PAMELA ROGERS CHEPIGA

Assistant United States Attorney

Sworn to

August 19th, 1982

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