# Petition — Orofino v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 1020

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0469%3A1. Public record. Not legal advice.