Brief for the United States — Maddox v. United States

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No. 83-1067 Peeters y

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

BILL MADDOX, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITON

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DePue

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the district court’s denial of petitioner’s motion

for a continuance due to the illness of his retained counsel

deprived him of effective assistance of counsel, even though

petitioner was represented at trial by another experienced

lawyer who was representing him on closely related charges

and assisted by a second lawyer who was thoroughly famil-

iar with the charges in the instant case.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Avery v. Alabama, 308 U.S. 444 ............ 7,8

Chambers v. Maroney, 399 U.S. 42 ........045. 8

Harris v. Housewright, 697 F.2d 202 ........... 7

Morris v. Slappy, No. 81-1095

Ce eee re rr errr Terr rer 6

Cheger v. Barats, S76 U.S. STS ccccccciccveves 6

United States v. Badolato, 701 F.2d 915 ........ 7

United States v. Easter, 539 F.2d 663,

cert. denied, 434 U.S. B44 2... ccccccccccccces 7

United States v. Phillips, 640 F.2d 87,

ee ee SD oc dewadaws cecsvunees 6

Constitution and statutes:

U.S. Const.:

Amend. V (Double Jeopardy Clause) ....... 3

PG WEP wnodiededsdsaeensadsacisenese 6

ee Ee IE 5.4:5.04054440400008540000000 2

ED hc-00-440064040440000304 seaneeeta 2

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-1067

BILL MADDOX, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXT#i CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITON

OPINION BELOW

The order of the court of appeals (Pet. App. 1-2) is

reported at 716 F.2d 905 (table).

JURISDICTION

The judgment of the court of appeals was issued on July

13, 1983. A petition for rehearing was denied on September

28, 1983 (Pet. App. 3). On November 25, 1983, Justice

O'Connor extended the time within which to file a petition

for a writ of certiorari to and including December 27, 1983

(Pet. App. 4), and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

12541).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Tennessee, petitioner was con-

victed on 29 counts of possession of marijuana with intent

(1)

2

to distribute, in violation of 21 U.S.C. 841(a)(1), and con-

spiracy to possess marijuana with intent to distribute it, in

violation of 21 U.S.C. 846. He was sentenced to concurrent

terms totaling 10 years’imprisonment, a $90,000 fine, and a

five-year special parole term.' The court of appeals affirmed

(Pet. App. 1-2).

1. Briefly summarized, testimony of former drug dis-

tributors who had operated in the Memphis, Tennessee,

area showed that, beginning in the spring of 1980, they

would travel to Fort Pierce, Florida, for the purpose of

obtaining marijuana for resale. There they would go to the

home of co-defendant Donald Raulerson, where they

would purchase large quantities of marijuana (sometimes

exceeding a ton) from petitioner, Raulerson, and his son,

Donnie Raulerson. On some occasions, the purchasers

would deal directly with petitioner; on other occasions,

petitioner would load and weigh the marijuana, which he

stated had been smuggled into the United States from

Colombia . See, e.g., Tr. 804, 818-820, 824, 826-827, 831,

843, 1384, 1832-1836, 1880. In addition to the testimony of

co-conspirators in the distribution scheme, the government

presented video tapes made by an undercover FBI agent

who conducted an enterprise in Miami that was ostensibly

in the business of laundering the proceeds of illicit drug

sales (Tr. 2178). The tapes showed petitioner and his co-

defendants transferring a large amount of money in

exchange for a cashier's check payable to the executor of a

fictitious estate and recorded conversations concerning the

disposal of the proceeds of marijuana sales (Tr. 2187-2194,

2239-2244).

'Co-defendant Donald Raulerson also was convicted on 29 substan-

tive marijuana trafficking counts and a conspiracy count. He was

sentenced to 13 years’ imprisonment, and fines totaling $200,000. Co-

defendant Donnie Raulerson was convicted on the conspiracy count

and sentenced to three years’ imprisonment.

3

2. Petitioner and his co-defendants were indicted on

February 18, 1981. They were arraigned on March 4and the

case was set for trial on April 27, 1981. However, on the

motion of petitioner and the co-defendants, the trial date

was repeatedly continued: first to June 29, then to August

31, September 28, and finally October 19, 1981. See, e.g.,

6/18/81 Tr. 5; 6/26/81 Tr. 15.

On August 10, 1981, a grand jury sitting in the Southern

District of Florida indicted petitioner and Donald Rauler-

son on charges involving the importatica of marijuana and

money laundering. The charges resulted from the same

course of conduct that gave rise to the charges pending in

the Western District of Tennessee. See 8/ 10/81 Tr. 8-9. The

trial on the Florida indictment was scheduled for December

14, 1981 (10/16/81 Tr. 7).

From the inception of the instant proceedings, petitioner

was represented by James Manire and his associate, James

Reed. The two had planned that Manire, an experienced

trial attorney, would be the lead counsel at trial and that

Reed, who had not previously conducted the defense at a

jury trial, would prepare and argue motions and conduct

legal and factual analysis. See 10/16/81 Tr. 4-5; 10/19/81

Tr. 10-11. Accordingly, during numerous hearings on pret-

rial motions, petitioner was represented almost exclusively

by Reed. During these hearings, Reed argued, inter alia,

that the defense should be permitted the opportunity to

interview informants; that several of the charges were mul-

tiplicitous; and that, because the Florida and Tennessee

indictments involved the “same transaction,” trial on both

would violate the Double Jeopardy Clause. Additionally,

he succeeded in obtaining the exclusion of portions of the

video tapes that the government intended to introduce into

evidence at trial. See 4/30/81 Tr. 24-25; 8/10/81 Tr. 2,

29-30; 9/18/81 Tr. 7, 24-25, 42-44; 9/30/81 Tr. 248-348.

4

On Thursday, October 15 — three days before the trial

was scheduled to begin — Reed informed the court that

Manire had suffered a heart attack, would have to undergo

a coronary by-pass operation, and would not be available to

participate in a trial for several months (10/ 16/81 Tr. 6-7).

Reed asserted that Manire’s illness would preclude his serv-

ing as lead counsel; that petitioner objected to proceeding in

Manire’s absence; and that he (Reed) lacked trial expe-

rience. Reed accordingly moved for a continuance or sever-

ance of the case from that of the co-defendants (id. at 4-6).

The district court denied the motion after a hearing on the

next day, observing that the case already had been con-

tinued repeatedly at the request of petitioner and the co-

defendants, that the co-defendants objected to further con-

tinuances, and that, because of the pending Florida trial, a

continuance of the length necessary to permit Manire’s

recovery would delay the trial until the following February

(id. at 12, 20). After suggesting that petitioner make arran-

gements to obtain another attorney to assist Reed at trial,

the court made the following finding (id. at 20):

The records would reflect that Mr. Reed has partici-

pated fully, that he has performed certainly more than

adequately in respect of the legal motions and the legal

positions that have been presented before the court on

behalf of [petitioner]. That Mr. Reed is fully and

entirely cognizant of the details and the circumstances

and the only basis that the court has any real problem

about it is Mr. Reed's proper and appropriate assertion

to the court that he has not had the experience before in

jury trials.

The court also invited petitioner to renew the motions

during trial in the event that he found a concrete need for a

continuance or severance and stated that, in the event of

petitioner's conviction, it would grant a new trial if it

appeared that he was prejudiced by denial of the motions

(id. at 18-19).

5

On October 19, 1981, Edward O'Donnell, an experienced

Florida trial attorney who specialized in defending drug

cases, appeared on petitioner's behalf (10/19/81 Tr. 7, 22).

After introducing himself as the attorney representing peti-

tioner in the “related case in Florida,” O’Donnell requested

a two-week continuance for the purpose of preparing to

defend petitioner (id. at 12, 14). The court denied the

request, observing that O’Donnell would be familiar with

the evidence in the case, and particularly the video tapes, as

the result of his representation of petitioner in Florida (id.

at 31-33). However, to assure O'Donnell adequate prepara-

tion time, the court stated that it would permit him to

cross-examine the government's witnesses last of the three

defense attorneys or to recall them after they had completed

their testimony, and also that he could delay making an

opening statement until the beginning of petitioner’s case

(id. at 34-35). Preliminary matters and the government's

opening argument thereafter consumed the entire first week

of trial, and there was no cross-examination of any

government witness until Wednesday of the second week of

trial (Tr. 38-689, 800, 1190). Reed served as co-counsel

throughout the trial proceedings.

Following petitioner's conviction, neither O'Donnell nor

Reed moved for a new trial on the ground that they were

impeded in their ability to afford petitioner adequate

representation due to the denial of the continuance

motions. Instead, on direct appeal, O'Donnell argued that,

even absent a showing of prejudice, refusal to grant the

continuance resulted in the denial of effective assistance of

counsel and required reversal of the conviction (Br. 5-13).

The court below summarily rejected this claim, noting in

addition that “the evidence in this case * * * constituted

overwhelming support for the jury's guilty verdict” (Pet.

App. 1).

6

ARGUMENT

Petitioner contends (Pet. 4-10) that denial of his motion

fora fifth continuance, sought because of the illness of lead

trial counsel, constituted a denial of his Sixth Amendment

right to effective assistance of counsel and requires reversal

of his conviction even without a showing of prejudice. This

claim is clearly without merit.

As this Court recently observed in Morris v. Slappy, No.

81-1095 (Apr. 20, 1983), slip op. 9-10 (citations omitted):

Notevery restriction on counsel's time or opportun-

ity to investigate or to consult with his client or other-

wise to prepare for trial violates a defendant's Sixth

Amendment right to counsel. Trial judges necessarily

require a great deal of latitude in scheduling trials. Not

the least of their problems is that of assembling the

witnesses, lawyers and jurors at the same place at the

same time, and this burden counsels against continu-

ances except for compelling reasons. Consequently,

broad discretion must be granted trial courts on mat-

ters of continuances; only an unreasoning and arbi-

trary “insistence upon expeditiousness in the face of a

justifiable request for delay” violates the right to assist-

ance of counsel.

See also Ungar v. Sarafite, 376 U.S. 575, 589 (1964); United

States v. Phillips, 640 F.2d 87, 92-93 (7th Cir.), cert.

denied, 451 U.S. 991 (1981).

In this case, the district court's denial of a continuance

did not constitute “an unreasoning and arbitrary ‘insistence

upon expeditiousness’ ” (Morris v. Slappy, slip op. 9-10

(quoting Ungar v. Sarafite, 376 U.S. at 589)). Reed, who

acted as co-counsel throughout the trial, had been closely

involved with the case since the return of the indictment and

was fully conversant with the facts and pertinent law. Any

7

lack of trial experience on his part? was offset by the

appearance of O'Donnell, a seasoned trial attorney who

also was conversant with the petitioner's circumstances due

to his representation of petitioner on the related Florida

charges. Additionally, the trial court made special provi-

sions to assure that O'Donnell had adequate preparation

time by permitting him to defer cross-examination of

government witnesses and presentation of his opening

argument.’ Indeed, due to the length of the preliminary

stages of the trial, the government's presentation of its case

did not begin until 10 days after the court denied O’Don-

nell’s request for a continance (Tr. 800).

Moreover, the court previously had granted continu-

ances at the request of petitioner and his co-defendants that

resulted in the delay of the trial from April until October

1981. The additional continuance of two weeks requested

by O'Donnell might well have had the practical effect of

further delaying the trial for approximately three months,

due to the proceeding’s anticipated length and the sche-

duled commencement of petitioner's trial in Florida on

December 14 (10/19/81 Tr. 32-33). In view of these factors

and protections, denial of the continuance motion was a

proper exercise of the court's broad discretion.

Moreover, as the Court held in Avery v. Alabama, 308

U.S. 444, 446 (1940), “[sJince the Constitution nowhere

specifies any period which must intervene between the

2Of course, lack of trial experience, standing alone, does not -onsti-

tute a basis for a claim of ineffective assistance of counsel. U.S. Br. at

39-41, U.S. Reply Br. at 3-5, United Staies v. Cronic, No. 82-660

(argued Jan. 10, 1984). See, e.g., United States v. Badolato, 70\ F.2d

915, 926(1 1th Cir. 1983); Harris v. Housewright, 697 F.2d 202, 205 (8th

Cir. 1982); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976),

cert. denied, 434 U.S. 844 (1977).

3O"Donnell nevertheless chose to make his opening statement at the

outset (Tr. 755).

8

required appointment of counsel and trial, the fact, stand-

ing alone, that a continuance has been denied does not

constitute a denial of the constitutional right to assistance

of counsel.” The Court therefore has refused to fashion the

per se rule suggested by petitioner “requiring reversal of

every conviction following tardy appointment of counsel”

(Chambers v. Maroney, 399 U.S. 42, 53-54 (1970)), and it

has made clear that a defendant presenting such a claim is

not entitled to relief absent a showing of prejudice as the

result of the timing of the substitution of counsel and trial.

Ibid. See also Avery v. Alabama, 308 U.S. at 450. In this

case, petitioner’s counsel were specifically invited by the

district court to present in a post-trial motion any claims

they might have relating to inadequate representation due

_ to insufficient preparation time, but they did not do so.

Instead, petitioner merely claimed on appeal that denial of

the motion was prejudicial per se and that reversal of his

conviction was required. Absent any showing whatsoever

of specific prejudice, however, petitioner is not entitled to

relief. See Chambers v. Maroney, 399 U.S. at 53-54. See

also U.S. Br. at 33-34 & App. 7a-10a, United States v.

Cronic, No. 82-660 (argued Jan. 10, 1984).4

“We have furnished petitioner with copies of our briefs in Cronic.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DEPuE

Attorney

FEBRUARY 1984

DO)-1964-02