Petition — Ferrante v. United States

IN THE

SUPREME COURT OF THE UNITED STATE

OCTOBER TERM, 1982

no. 8 3-SO3

HERMAN MERS AND LESTER MERS,

Petitioners, Alexander L. Stevas, Clerk

vs.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

IN FORMA PAUPERIS

July 15, 1983 Robert Altman, Esq.

Michael K. McIntyre, Esq.

Federal Defender Program, Inc.

Suite 3612

101 Marietta Tower

P Atlanta, Georgia 30303

404/ 688-7530

Counsel for Petitioner

II.

QUESTIONS PRESENTED

Whether the Speedy Trial Act permits excludable time

pursuant to Section 3161(h)(1)(J) after the magistrate

has promptly disposed of all pretrial motions?

Whether a defendant must demonstrate an actual conflict

of interest when the trial court fails to comply with

Rule 44(c) of the Federal Rules of Criminal Procedure by

not inquiring about counsel's multiple representation?

i r

Le —— oS ee ee -

’

’

ITEM

TABLE OF CONTENTS

PAGE

Question PHROGRSCEE. 6 0c ccebobwe Ub bbs 665465666 6.066 0080606

Table of CONTONEHc coccceseses ses SSS COSSHESEOSESOCSOCEEOCOS

i

ii

Table of RCheri CEODa é cw SE 6 Oho 66 ODS Rb bb Sedo be es ceeeeseones

I.

It.

Opinion Below. cccccccccccccccccsscscceseecsesescccccscesece

JUTISGICCION. cccccccccccsccccesececccsscccscccvesseesece

Applicable Constitutional ProviSiOn ...cecccccccescccces

Applicable Statutory ProviSiONnsS....cccccccccccccesscsees

Statement Of Che CASE. ccccccccccscscccccsccccccccccccccce

Statement OF FPactS.ccccccccccccccccccccscccscceseececece

Reasons for Granting the Writ:

In determining that the excludable time

provisions of Section 3161(h)(1)(J) of the

Speedy Trial Act apply to the magistrate's _

actions after he has promptly disposed of all

pretrial motions, the United States Court of

Appeals for the Eleventh Circuit has rendered

a decision that is in conflict with all other

circuits which have addressed that issue and

has raised an important question of federal

law which has never been addressed by this

Court and which affects the daily operation of

the federal COUTTS. ccccccccccccccccccccccccces

In Cuyler v. Sullivan, 446 U.S. 335 (1980)

this Court left unasnwered whether a defendant

must demonstrate an actual conflict of

interest when the trial court has a statutory

obligation to inquire into the conflict and

fails to do so. The decision by the United

States Court of Appeals for the Eleventh

Circuit in the instant case raises that

precise §$SSUD 0660 6SSSSSSSSSSSSSOSOCOSSCOOOOOOOEE

SERSRUSISRe ¢ 6 OOOO FOSS SSSSOSSSESSSSHSESOOSOOOOSOOOSOOO OOO

Certificate of BBSVESRs oo ooo e606 $$ ooo oho 6oosoooooers

Appendix

-ii-

1

2

2

2-3

4-5

6-10

11-16

17-19

20

21

TABLE OF AUTHORITIES

CASES PAGE

Cuyler v. Sullivan, 446 U.S. 335 (1980). ..ccecececeseseelly, 18

19

Glasser v. United States, 315 U.S. 60 (1942). ..ccceeeeeel?

Holloway v. Arkansas, 435 U.S. 475 (1978). .ccccccessseeeelly, 19

United States v. Bufalino, 683 F.2d 639,

(2nd Cite DPE atrnk Se tsb dune dc de ents evened evec beuxeues 15

United States. DeLongchamps, 679 F.2d 217,

(11th Cir. TO Sado ec ceed bs Eeosconceseseedscesceescéees te

United States v. Raineri, 670 F.2d 702,

(7th Cie. Pas Gi ees Woe ed 068 004 6560 bb 600s eb sbeoure

United States v. Stafford, 697 F.2d 1368,

(11th oh WE Ba bm Cb Ciiin.cc ce CUES 000 2 606060 6 es cepeene te

APPLICABLE CONSTITUTIONAL PROVISIONS

Sixth Amendment to the United

States CORP RAMUCEON 6 Gee occ boosie cccieccesseecedeceoevene 17

APPLICABLE STATUTORY PROVISIONS

Title 18, U.8.Ce, CSTOt CRI Cite deo ccccceaeevbssetecoasssaes 3, 11

13, 14, 15

16

Title 18, U.S.C., SSICTCAOD CVC Pd ccdccvdcscscvccscsce desseovens 13, 14

15, 16.

-$it-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

NO.

HERMAN MERS and LESTER MERS,

Petitioners,

vs.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

Petitioners, Herman Mers and Lester Mers, pray that

a writ of certiorari issue to review the opinion of the

United States Court of Appeals for the Eleventh Circuit

entered on March 21, 1983.

OPINION BELOW

The opinion of the United States Court of Appeals,

was rendered on March 21, 1983, and is attached to the

instant Petition.

[Appendix, hereinafter A, 1)

JURISDICTION

: The opinion of the United States Court of Appeals

was entered on March 21, 1983. Rehearing was requested on

April 25, 1983, and denied on May 16, 1983. The jurisdiction

of this Court is invoked under provision of 28 U.S.C.,

§1257(3).

APPLICABLE CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States

Constitution states:

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the Assistance

of Counsel for his defense.

APPLICABLE STATUTORY PROVISIONS

Speedy Trial Act, Title 18, U.S.C., §3161(h)(1)(F)

and* (J):

(h) The following periods of delay shall be

excluded in computing the time within which

an information or an indictment must be

filed, or in computing the time within which

the trial of any such offense must

commence:

~2o

> ‘S50

£ C

(1) Any period of delay resulting from other

proceedings concerning the defendant, including

but not limited to -

(FPF) delay resulting from any pretrial

motion, from the filing of the motion

through the conclusion of the hearing

on, Or other prompt disposition of,

such motion;

(J) delay reasonably attributable to

any period, not to exceed thirty days,

during which any proceeding concerning

the defendant is actually under

advisement by the court.

Federal Rules of Criminal Procedure, Rule 44(c):

(c) Joint Representation. Whenever two or more

defendants have been jointly charged pursuant to

Rule 8(b) or have been joined for trial pursuant

to Rule 13, and are represented by the same

retained or assigned counsel or by retained or

assigned counsel who are associated in the

practice of law, the court shall promptly

inguire with respect to such joint

representation and shall personally advise each

defendant of his right to the effective

assistance of counsel, including separate

representation. Unless it appears that there is

good cause to believe no conflict of interest is

likely to arise, the court shall take such

measures as may be approrpriate to protect each

defendant's right to counsel.

STATEMENT OF THE CASE

On February 18, 1981, Herman Mers and Lester Mers

were named with two other persons in a two count indictment

in the Northern District of Georgia which alleged conspiracy

to distribute marijuana in violation of Title 21, U.S.C.,

Section 841(a)(1) and 846, and with distribution of marijuana

in violation of Title 18, U.S.C., Section 2 and Title 21,

U.S.C., Section 841(a)(1) (6:15,16). |' ‘The Petitioners

entered their pleas of not guilty to the indictment on March

2, 1981.

On August 5, 1981 a jury was empaneled to try the

Petitioners along with the two other named defendants (1:18).

All of the defendants were represented by Mr. Bruce Pashley,

Esq. On August 10, 1981, the jury returned with a verdict of

guilty as to both counts one and two of the indictment

(1:131).

On September 14, 1981, the Petitioners were sen-

tenced. Herman Mers was sentenced to the custody of the

Attorney General for nine years while Lester Mers reccived an

active sentence of twelve years (1:140). Subsequent to their

1 Citations to the record on appeal will first refer to the

volume number and then to the appropriate page within said

volume.

( a

sentencing hearing the Petitioners entered their notices of

appeal (1:142).

On March 21, 1983, the United States Court of

Appeals for the Eleventh Circuit affirmed the Petitioners’

convictions. On April 25, 1983, the Petitioners petitioned

the Circuit Court for a panel rehearing or for en banc con-

Sideration. On May 16, 1983, the Circuit Court denied said

petitions.

STATEMENT OF FACTS

In December, 1979, Mr. Herman Mers found himself

seeking new employment at the age of 62 (3:184). After being

a tailor by trade, Mr. Mers was considering going into the

sale of over the counter drugs (3:183,184). After some in-

quiry into this line of work Mr. Mers was sent some samples

from Russ Pharmaceutical Products (3:186,189). After learn-

ing of his entry into this line of work, an apartment neigh-

bor of Mr. Mers, Mr. Michael Fiori, became very interested in

Mr. Mers‘ products (3:184). This interest manifested itself

by Mr. Fiori arranging a meeting between Mr. Mers, a Mr.

Perry and a Mr. Costello in January, 1980 (3:189,188). At

the meeting the men discussed Mr. Mers' line of over the

counter drugs (3:191). After daily contact with his neigh-

bor, Mr. Fiori, another meeting was scheduled in March, 1980

(3:193). At that meeting Mr. Mers was given a list of about

fifteen (15) products in which the buyers were interested

(3:195). After making an inquiry to his employer, Mr. Mers

learned that the requested products were prescription drugs

which could only be sold by a licensed dealer (3:196). From

March to November Mr. Fiori continued to request that Mr.

Mers supply him with prescription drugs (3:215). Mr. Mers

steadfastly refused (4:238-241).

é +G

In November, 1980, Mr. Fiori approached Mr. Mers

about being a middleman in a large marijuana transaction with

a purported buyer for several mafia families (3:218, 4:241).

Mr. Fiori would be the supplier of the marijuana (4:247);

Mr. Perry was to be the buyer for the mafia families (4:246);

and Mr. Mers was to be the middleman whose role was to act

under the pretense of being the seller in order to artifi-

cially raise the price of the marijuana (4:241). Mr. FPiori

and Mr. Perry would increase their profit from the artificial

price and give Mr. Mers a percentage (4:241).

As late as early January, 1981, Mr. Mers continued

in his attempt to avoid being involved in any transaction

(4:248). As Mr. Fiori continued to pressure the Defendant

and as the talk increased of it being dangerous for Mr. Mers

to get out of the deal with the alleged mafia families, the

pressure increased on Mr. Mers to carry out his middleman

role (4:249). Mr. Mers continued talking to Mr. Perry at

the direction of Mr. Fiori and eventually Atlanta, Georgia

was chosen by Fiori as the site for the drug transaction

(4:250).

On January 22, 1981, Mr. Mers came to Atlanta with

Mr. Perry (4:254). Prior to his trip to Atlanta, Mr. Mers

called his son, Lester, and told him of the frightening bind

G

in which he was involved (4:250, 307). Mr. Mers told Lester

that he needed someone to pose as the dope supplier (4:290).

& ‘¢

Lester agreed and received a telephone call telling him to

leave his truck at a certain location (4:294). Lester left

the truck, picked it up and met with Mr. Mers, Mr. Perry and

a third individual (4:295, 297, 299). Lester showed the men

the sample of marijuana which had been left in the truck

(4:303). Mr. Mers returned to New York, met with Mr. Perry

again and another trip to Atlanta was planned (4:260, 261).

Once in Atlanta Mr. Mers was taken to the bank and

shown the money which was to exchange hands in the drug

transaction (4:265). Mr. Mers, not having any idea of the

existence of the marijuana in the deal, began to stall (4:

267). Mr. Perry told Mr. Mers the deal was off at which

time Mr. Mers agreed (4:267). Shortly after his conversation

with Mr. Perry, Mr. Mers received another phone call from Mr.

Perry who wanted the deal to be back on but for a lesser

amount of marijuana (4:268). The transfer was planned for

February 6, 1981 (4:274).

On February 6, Lester Mers received a phone cali

from a person who told him to rent a truck and leave it in a

certain location (4:314, 316). Lester left the truck at the :

specified location on the 6th (4:316).

Later on February 6, 1981, Lester, and Mr. Mers met

with the alleged buyer, Mr. Perry, and his courier, Mr.

G

Augustine at the Holiday Inn (4:318). Lester and Mr.

Augustine went to Lester's house where the truck was located

C C

while Mr. Mers and Mr. Perry went to a restaurant and waited

(4:318, 320).

Upon arriving at Lester's house Mr. Augustine and

Lester checked the truck which had been filled with marijuana

(4:321). The truck was driven away while Mr. Augustine and

Lester went to meet Mr. Mers and Mr. Perry, (4:327). The two

of them were followed by a Mr. Myers and Mr. Ferrante to the

restaurant where Mr. Mers was located (4:327). After

arriving at the restaurant Lester, Mr. Mers, Mr. Perry and

Mr. Augustine left for the Holiday Inn where the money was to

be exchanged with Mr. Myers and Mr. Ferrante following

(3:102). At this point Mr. Mers believed that he would get

the money and take it to New York to Mr. Perry and Mr. Fiori

(4:278).

As they arrived at the Holiday Inn Mr. Mers,

Lester, Mr. Myers and Mr. Ferrante were arrested by agents

from the Drug Enforcement Administration (3:103). For the

first time, Mr. Mers realized that for the past year he had

been dealing with law enfocement officials who had posed as

drug purchasers for the mafia families (3:213). :

On February 18, Mr. Mers, along with Lester, Mr.

Myers and Mr. Ferrante were indicted for conspiracy to dis-

tribute marijuana (1:15, 16), Mr. Mers, Lester and the two

other co-defendants were represented by the same attorney,

Mr. Bruce Pashley (3:151). Mr. Mers and Lester asserted

+ C

the defense of entrapment at trial while Mr. Myers and Mr.

Ferrante asserted that they did not know that there was mari-

juana in the truck.

Prior to trial counsel for the Defendants moved to

dismiss the indictment based upon a violation of the Speedy

Trial Act (1:85). Said motion was denied (1:109).

=10—

. ¢

REASONS FOR GRANTING THE WRIT

I. IN DETERMINING THAT THE EXCLUDABLE TIME

PROVISIONS OF SECTION 3161(h)(1)(J) OF THE

SPEEDY TRIAL ACT APPLY TO THE MAGISTRATE'S

ACTIONS AFTER HE HAS PROMPTLY DISPOSED OF

ALL PRETRIAL MOTIONS, THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

HAS RENDERED A DECISION THAT IS IN

CONFLICT WITH ALL OTHER CIRCUITS WHICH

HAVE ADDRESSED THAT ISSUE AND HAS RAISED

AN IMPORTANT QUESTION OF FEDERAL LAW WHICH

HAS NEVER BEEN ADDRESSED BY THIS COURT AND

WHICH AFFECTS THE DAILY OPERATION OF THE

FEDERAL COURTS.

In order to provide for the prompt and orderly dis-

position of criminal cases in the federal courts, the United

States Congress passed the Speedy Trial Act, Title 18, United

States Code Sections 3161-3174, in 1974. That Act requires

that a defendant be tried within 70 days from the filing date

of the information or indictment, or from the date the

defendant first appears before a judicial officer of the

court, whichever occurs later. Title 18, United States

Code, Section 3161(c)(1). The Act excludes from this 70 day

period certain periods of delay which are enumerated within

Section 3161(h) of the Act.

In order to provide for the delay due to the filing’

of pretrial motions as well as the delay from the court's

consideration of such motions, the original Act and the 1979

Amendments to said Act permitted the following exclusions of

time: ;

(1) Any period of delay resulting from other

proceedings concerning the defendant, including but not

limited to -

-11-

e ‘4

(F) delay resulting from any pretrial motion, from

the filing of the motion tough the conclusion of the hear-

ing on, or other prompt disposition of, such motion;

(J) delay reasonably attributable to any period,

not to exceed 30 days, during which any proceeding concerning

the defendant is actually under advisement by the court.

Lad

Since the passage of the Act, serious questions of

interpretation have arisen concerning the interplay between

subsection (F) and (J). In the case sub judice, numerous

motions were filed on behalf of the defendants before the

magistrate on March 13, 1981 (1:10). Due to the fact that

one of the motions required an evidentiary hearing, said

hearing was scheduled. After several postponements of said

hearing, the Government informed the magistrate that it would

not seek to introduce the evidence which the Defendant hoped

to suppress at said hearing and therefore the hearing was not

necessary. On this date, April 22, 1981, after being

informed that the previously scheduled hearing was unneces-

sary the magistrate orally ruled on all of the defendant's

motions (1:11).2

On May 18, 1981, the magistrate filed his Report

and Recommendation which stated in writing his previous

rulings of April 22, 1981 (1:12). No objections were filed

The only motion not decided on April 22, by the

Magistrate was one which concerned a statement made by the~

Defendant with said motion being deferred to the trial court

for a Jackson v. Denno hearing.

-$2=

to said Report and Recommendation and the district court

adopted said Report on August 3, 1981 (1:12).

In evaluating the various proceedings in the in-

stant case and the excludable time under the Speedy Trial Act

for said proceedings the United States Court of Appeals for

the Eleventh Circuit determined that the forty-one (41) days

from March 13 to April 22, were excludable for motions prac-

tice before the magistrate pursuant to §3161(h)(1)(F), at =

2145. The trial court further determined that the twenty-six

(26) cays from April 22 to May 18, were excludable pursuant

to §3161(h)(1)(J) as motions which were under advisement by

the magistrate, at 2145. Finally, the panel concluded that

the district court had thirty (30) days, from June 2 to July

1, of excludable time during which the magistrate's Report

and Recommendation was under advisement by the district court

under §3161(h)(1)(J), at 2145.

The Eleventh Circuit's decision to exclude a total

of fifty-six (56) days pursuant to the “under advisement”

section of 3161(h)(1)(J) after the magistrate had ruled on

all motions is absolutely irreconcilable with the language of

the statute, the Judical Guidelines to the statute, and the

decisions rendered by other circuit courts.

Section 3161(h)(1)(J) permits the exclusion of time

under the Speedy Trial Act for any delay reasonably attribu-

table to any period, not to exceed thirty (30) days, during

which any proceeding concerning the defendant is actually

=§3-

under advisement by the court. (emphasis added. ) In speaking

to this section the Judicial Guidelines issued by the

Administrative Office of the United States Courts state:

(J) Proceedings Under Advisement

Starting date. The starting date is the

day following the date on which the court

has received everything it expects from

the parties, examining physicians, etc.,

before reaching a decision. It is

normally the date following the

expiration of an exclusion under

subparagraph (A), (B), (F), or (G).

Ending Date.

The ending date is the earliest of (1) the

date the judge's decision is filed, (2) the

date the judge renders his decision orally

in open court, or (3) the expiration of the

thirty (30) day maximum period. Guidelines

to the Administration of the Speedy Trial

Act of 1979, as amended 42-43 (1981). As

cited in United States v. Bufalino, 683

F.2d 639 (2nd Cir. 1982).

In the case at bar the Magistrate received the

defendant's motions on March 13, 1981. On April 22, 1981,

after learning that an evidentiary hearing would not be need-

ed on any of the motions, the Magistrate orally ruled on all

motions. Consequently, the time from March 13 to April 22,

was excludable pursuant to §3161(h)(1)(F). After April 22,

there was notning "under advisement" by the Magistrate and.

consequently any exclusion under §3161(h)(1)(J) was improper.

The case at bar represents exactly that situation which the

Judicial Guidelines referred to when the starting date of the

"under advisement" section begins following the expiration of

étGu

an exclusion under another subparagraph (in this case sub-

paragraph F). The ending date for said “under advisement"

section is "the date the judge renders his decision orally in

open court." In this case that occurred on April 22, and

consequently there was nothing "under advisement" by the

magistrate. |

Decisions by the Second Circuit, Seventh Circuit,

and by other panels of the Eleventh Circuit have interpreted

§3161(h){1)(J) in a manner that is consistent with both the

language of the statute as well as with the aforementioned

Judicial Guidelines. United States v. Bufalino, 683 F.2d 639

(2nd Cir. 1982); United States v. Raineri, 670 F.2d 702 (7th

Cir. 1982), cert. denied, -- U.S. --, 103 S.Ct. 446, 74 L.Ed.

2d. -- (1982); United States v. Stafford, 697 F.2d 1368 (11th

Cir. 1983); United States v. DeLongchamps, 679 F.2d 217 (11th

Cir. 1982). Consequently, in each of the above-cited cases

delay was found to be excludable pursuant to §3161(h)(1)(J)

if the magistrate or trial court had a motion actually under

advisement. In no case, other than the case at bar has a

court excluded time pursuant to §3161(h)(1)(J) after the

magistrate or trial court had orally ruled upon all

outstanding motions before it.

In passing the Speedy Trial Act Congress attempted

to set strict guidelines under which all federal courts

should operate. Although the legislation answered many ques-

tions concerning the time requirements during a federal

~15=

. O

criminal prosecution, the Act remains unclear in certain

respects. Since most of the delay during a criminal proceed-

ing revolves around the filing of and disposition of pretrial

motions, there is no section of the Act which is more impor-

tant than subsections (F) and (J) which deal with the time

requirements of disposing of pretrial motions. It is

respectfully submitted that the time has come for this Court

to interpret with finality the meaning of subsection (J) and

its relationship with subsection (F). It is apparent from

the decisions of the lower courts that there remains a great

deal of confusion concerning the Act and the appropriate

exclusions under said Act. Such confusion over a question

that comes into play every day in each of the federal trial

courts should not be tolerated. Consequently, it is respect-

fully requested that this Court grant the Writ in order to

resolve this extremely important question of federal law and

to resolve the split that exists among the Circuit Courts.

=%6—

II. IN CUYLER V. SULLIVAN, 446 U.S. 335 (1980)

THIS COURT LEFT UNANSWERED WHETHER A

DEPENDANT MUST DEMONSTRATE AN ACTUAL

CONFLICT OF INTEREST WHEN THE TRIAL COURT

HAS A STATUTORY OBLIGATION TO INQUIRE INTO

THE CONFLICT AND FAILS TO DO SO. THE

DECISION BY THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT IN THE

INSTANT CASE RAISES THAT PRECISE

ISSUE.

In reviewing a conviction where two defendants were

represented by the same attorney this Court in speaking to

whether the defendant was prejudiced by such dual representa-

tion stated in Glasser v. United States, 315 U.S. 60 (1942)

that:

The right to have assistance of counsel

is too fundamental and absolute to allow

courts to indulge in nice calculations as

to the amount of prejudice arising from

its denial. 315 U.S., at 75-76.

In addressing an issue similar to that determined in Glasser

this Court held in Holloway v. Arkansas, 435 U.S. 475 (1978)

that prejudice is presumed when a trial court requires joint

representation over timely objection by defense counsel.

The most recent decision by this Court concerning a

violation of the Sixth Amendment due to an attorney's con-

flict of interest was in Cuyler v. Sullivan, 446 U.S. 335

(1980). Cuyler held that the Sixth Amendment placed no

requirement on state courts to initiate inquiries into the

propriety* of multible representation and that if a defendant

raised no objection at trial to such multiple representation

«17=

"a C)

‘ '

then a demonstration of an actual conflict of interest which

adversely affected the lawyers’ performance was necessary in

order to establish a Sixth Amendment violation.

The obvious question which is left unanswered by

Cuyler is whether a defendant who alleges that his lawyer was

operating under a conflict of interest based upon multiple

representation must demonstrate prejudice when the trial

court is under a statutory obligation to inquire into the

potential conflict. In the case sub judice one lawyer repre-

sented four defendants. Two of the defendants asserted a

defense of entrapment while the other two claimed to have no

knowledge of the alleged drug transaction. Under these cir-

cumstances it was clear that the trial court had an affirma-

tive duty under Rule 44(c) of the Federal Rules of Criminal

Procedure to inquire with respect to each joint representa-

tion and advise each defendant of his right to effective

assistance of counsel, including separate representation.

Rule 44(c) of the Federal Rules of Criminal Procedure.

The United States Court of Appeals for the Eleventh

Circuit held that although the trial court failed to satisfy

the inquiry requirements mandated by Rule 44(c), such failure

constituted harmless error in that the defendants failed to

demonstrate that their lawyer was operating under an actual

conflict of interest.

-18-

It is clear from this Court's decision in Holloway

that under certain circumstances prejudice will be presumed

when dealing with an attorney's potential conflict of inte-

rest. Cuyler, on the other hand, mandates that an actual

conflict of interest must be demonstrated if there is no ob-

jection to the representation during the state prosecution.

The case at bar raises the important yet still unanswered

question as to whether the Holloway standard of prejudice or

the Cuyler standard of prejudice applies in a federal prose-

cution when the trial court has failed to meet its obliga-

tions under Rule 44(c).

Given the fact that many federal prosecutions

involve multiple defendants it is of particular import for

this Court to resolve the questions left unanswered by

Cuyler. Consequently, it is respectfully requested that this

Court grant the Writ.

-19-

CONCLUSION

Based upon the foregoing it is respectfully

requested that the Writ of Certiorari be granted, the Motion

to Proceed In Forma Pauperis be granted and that the Judgment

below be vacated and the case

Federal Defender Program, Inc.

Suite 3612

101 Marietta Tower

Atlanta, Georgia 30303

404/ 688-7530

remanded.

Respectfully submitted,

Robert Ss

©

ichael K. McIntyre

Attorneys for Petiti®ner

-20-

UNITED STATES v. MERS 2133

18 USCA, USCA. Const.Amend. 6;

UNITED STATES of America, Comprehensive Drug Abuse Prevention and

Plaintiff-Appellee, Control Act of 1970, §§ 401(a), (aX1), 406,

@ 21 U.S.C.A. §§ 841(a), (aX1), 846; 18 US.

' CA. § 2 :

Herman MERS, Leste: Mers, Randy

James Myers, Paul J. Ferrante, 2. Criminal Law 641.5

s » * Defendants-Appellants. Where joint representation of defend-

| No. 81-7777. ants is proposed, court should address each

<5 ies defendant individually and advise him of

United States Court of Appeals, potential dangers of joint representation,

Eleventh Circuit. and defendants must have opportunity to

question court about nature and conse-

March 21, 1983. quences of their legal representation. Fed.

Rules Cr.Proc. Rul. 44(c), 18 U.S.C.A.; U.S.

C.A. Const.Amend. 6.

Four defendants were convicted in the

United States District Court for the North-

ern District of Georgia at Atlanta, Orinda

D. Evans, J., of conspiracy to possess with

i intent to dis:;ibute marijuana and aiding

and abetting distribution of marijuana.

Defendants appealed. The Court of Ap-

peals, Vance, Circuit Judge, held that: (1)

single defense attorney’s representation of

all four defendants at trial did not violate

right to effective assistance of counsel, as

claimed by three of the defendants, and (2)

two defendants were not, as they claimed,

brought to trial in violation of the Speedy

Trial Act.

Affirmed.

1. Criminal Law 641.5, 1166.11

District court erred in failing to con-

duct adequate hearing on issue whether

joint representation of multiple defendants

in prosecution for conspiracy to possess

with intent to distribute marijuana and aid-

ing and abetting distribution of marijuana

created actual conflict of interest, but error

was harmless, there being no actual conflict

_ of interest. Fed.Rules Cr.Proc..Rule 44(c),

3. Criminal Law 641.5

Mere fact of joint representation does

not show actual conflict, which will not be

found uniess defendants can point to specif-

ic instances in the record to suggest actual

conflict or impairment of their interest.

Fed.Rules Cr.Proc. Rule 44(c), 18 U.S.C.A.;

U.S.C.A. Const.Amend. 6.

4. Criminal Law 641.5

There is no violation where asserted

conflict arising from joint representation of

multiple defendants is irrelevant or merely

hypothetical; rather, there must be actual,

significant conflict. Fed.Rules Cr.Proc.

Rules 44(c), 44 note, 18 U.S.C.A.; U.S.C.A.

Const.Amend. 6.

5. Criminal Law 641.5

No actual conflict of interest was

shown to have arisen from joint representa-

tion of multiple defendants, some of whom

claimed entrapment and some of whom

claimed nonparticipation, the defenses be-

ing not antagonistic, and not mutually ex-

clusive. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 401(a),

Synopsis, Syllabi and Key Number Classification

COPYRIGHT © 1983 by WEST PUBLISHING CO.

The Synopsis, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court

——— =

Sead

ae og. “Sabet gatleto

sty + patel

ares Tee ees

5g: "Seago "°° Bes

os os 3

P ;

8 "he * -

eres-stlogls sherase3.

Sin ere |

2164 UNITED STATES v. MERS

(aX1), 406, 21 U.S.C.A. §§ 841(a), (aX1),

846; 18 U.S.C.A. § 2; US.C.A. Const

Amend. 6; Fed.Rules Cr.Proc. Rules 44(c),

44 note, 18 U.S.C.A.

6. Criminal Law 641.5

Failing to adopt strategy of shifting

blame may well give rise to actual conflict

of interest, but to do so the strategy must

have been option realistically available to

trial counsel. Fed.Rules Cr.Proc. Rules

44(c), 18 U.S.C.A.; U.S.C.A. Const.Amend.

6.

7. Criminal Law <=577.8

Assuming that 70-day period under

Speedy Trial Act began to run on March 2,

1981, date on which defendants were ar-

raigned, 41-day period between March 13

and April 22 for motions practice before

magistrate, 26-day period from April 22 to

May 18 during which magistrate had mo-

tions under advisement and 30-day period,

June 2 to July 1, during which magistrate’s

report and recommendation were under ad-

visement by district court were all properly

excludable. 18 U.S.C.A. §§ 3161-3168,

3161(cX1, 2), (h), (hX1), (hX1XF, J),

(hX3)A).

8. Criminal Law ¢=577.5, 5778

Speedy Trial Act provision that trial

must commence “not less than 30 days from

the date on which the defendant first ap-

pears through counsel” was intended to pre-

vent trial from being held so quickly that a

defendant would not have time to prepare,

and such minimum time period is measured

as 30 calendar days from event triggering

speedy trial clock, and, under the Speedy

Trial Act, excludable delay is permitted

during first 30-day interval. 18 U.S.C.A.

§§ 3161-3168, 3161(cX1, 2), (h), (hX1),

(hX1XF, J), (hXsA).

9. Criminal Law 5778

Under Speedy Trial Act, 30-day “under

advisement” exclusion is not total for both

magistrate and district court, but, rather,

Act permits two 30-day periods for consid-

eration of the same matter. 18 U.S.C.A.

§§ 3161(hX1XF, G, J); 2 USCA.

§ 636(h\1).

10. Criminal Law ©5778

Magistrate’s report on pretrial motions

cannot automatically become order of court

merely because no party objects, and, under

Speedy Trial Act, district court was entitled

to 30-day “under advisement” period de-

spite want of objections to magistrate’s re-

port and recommendation. 18 U.S.C.A.

§§ 3161(hX1XF, G, J); 2 USCA.

§ 636(h\1).

11. Criminal Law 577.8

Phrase “actually under advisement” in

reference to motions practice under speedy

tria] statute requires that under-advisement

period be reasonable, but leaves determina-

tion of reasonableness issue to sound discre-

tion of trial judge, who is not required to

demonstrate that he or she was actually

considering matter on every excludable day.

18 U.S.C.A. § 3161(hX1XJ); 28 US.CA.

§ 636(bX1), (hX1); U.S.C.A. Const. Art 3,

§ 1 et seq.

12. Criminal Law <=5778 ,

For Speedy Trial Act to work, parties

must know, as each day passes, whether or

not that day is excludable, courts being

under duty to insure ability of courts to

administer the Act. 18 U.S.C.A. §§ 3161,

3161(hX1).

—oo

ee ee

——<— oer

———7".

——_——-——

St

UNITED STATES vy. MERS 2135

13. Conspiracy ¢47(12)

Drugs and Narcotics ¢=123

Government's having met requirement

that statements of coconspirator are admis-

sible only if there is substantial independent

evidence of conspiracy, evidence of making

of such statements was admissible, and such

evidence, with other testimony by drug en-

forcement agents, was sufficient to support

convictions of two defendants for conspir-

acy and aiding and abetting. Comprehen-

sive Drug Abuse Prevention and Control

Act of 1970, §§ 401(a), (aX1), 406, 21 U.S.

C.A. §§ 841(a), (a1), 846; 18 U.S.C.A. § 2;

U.S.C.A. Const.Amend. 6; Fed.Rules Evid.

Rule 801(dX2\E), 28 U.S.C.A.

14. Criminal Law @37(3)

Defendant cannot avail himself of en-

trapment defense unless initiator of his

criminal activity is acting as agent of the

Government, and any inducements to code-

fendant to traffic in drugs could not sup-

port finding of entrapment, such vicarious

entrapment theory being not the law.

Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401(a), (a1), 406,

21 U.S.C.A. §§ 841(a), (aX 1), 846.

15. Constitutional Law @ 257.5

Facts of case did not suggest “full cir-

cle” transaction violating defendant's due

process rights, defendants having stipulated

at trial that no DEA agents supplied mari-

juana to government informant or to de-

fendant husband or to his defendant wife,

and there being also no evidence that un-

dercover agent supplied the marijuana.

Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401(a), (aX1), 406,

21 U.S.C.A. §§ 841(a), (aX1), 846; 18 US.

C.A. §§ 2, 3161 et seq; US.C.A. Const

Amends. 5, 6, 14.

16. Constitutional Law <=268(5)

Defendants failed to show that their due

process rights under Brady were violated by

government's refusal to disclose undercover

agent's arrest record and withholding of

material relating to existence of any remu-

nerative agreement between undercover

agent and government, absent any theory

offered by defendants as to how such mate-

rial could have been relevant, admissible

evidence, and where such undercover agent

was not called as witness. Comprchensive

Drug Abuse Prevention and Control Act of

1970, §§ 401(a), (aX1), 406, 21 USCA.

§§ 841(a), (2X1), 846; 18 USCA. §§ 2,

3161 et seq.; U.S.C.A. Const.Amends. 5, 6,

14; Fed.Rules Evid. Rules 404(b), 608, 609,

28 U.S.C.A.

Appeals from the United States District

Court for the Northern District of Georgia.

Before HILL and VANCE, Circuit

Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge.

The four appellants, Herman Mers, Les-

ter Mers, Paul Ferrante and Randy Myers,

appeal convictions for conspiracy to possess

with intent to distribute marijuana, 21

U.S.C. §§ 841(a), 846, and aiding and abet-

ting the distribution of marijuana, 21

U.S.C. § 841(aX1) and 18 US.C.§ 2 Ap

pellunts raise divergent issues before this

court but only two require serious treat-

ment: whether a single defense attorney's

representation of al] four appellants at trial

violated the right to effective assistance of

counsel of Ferrante, Myers and Herman

Mers, and whether Herman and Lester

Mers were brought to trial within the time

required by the Speedy Trial Act.

— i

2136

Their arrest on February 6, 1981 resulted

from Herman Mers and his son Lester Mers

having undertaken to sell a large quantity

of marijuana to undercover DEA agents.

Myers and Ferrante acted as armed guards

during the planned exchange of the first

2,000 pounds. The Mers plead entrapment,

contending that their involvement in the

transaction resulted from pressure on Her-

man Mers by his neighbor, Michael Fiori,

who was acting as a government informant.

Myers and Ferrante claimed that they knew

nothing of the marijuana, they were told

that the marijuana-laden truck contained

antiques which they were helping to protect

merely as a favor to Lester Mers.

In January, 1981, Herman Mers and two

undercover DEA agents flew to Atlanta to

arrange the purchase. Over the succeeding

week the plans were finalized. Between

February 2nd and 6th, there were numerous

meetings and conversations between the

Mers and the DEA agents. Surreptitious

tape recording of these conversations were

introduced into evidence at trial. The con-

spirators agreed that Lester Mers would

deliver the marijuana to one agent, while

his father and another agent would remain

at a restaurant. After the transfer of the

drugs was completed the key to the safe

deposit box containing the money would be

delivered to the Mers.

On February 6, Lester Mers accompanied

a DEA agent to obtain the 2,000 pounds of

marijuana from Lester’s home. After ex-

amining the marijuana, which was stored in

a truck, the agent told a second agent to

drive the truck to New York. Paul Fer-

rante and Randy Myers were in a car a

block away from the Mers’ home while the

marijuana was being inspected. One of the

DEA agents testified that Ferrante and

Myers began to follow the marijuana-laden

truck. As they drove by and stopped, how-

A aereere ——— nen

. . Oe «

ee ee ee ee ‘

UNITED STATES v. MERS

ever, Lester Mers said “don't worry about

the marijuana. Follow me. These guys are

good for the money.” Ferrante and Myers

then followed Lester Mers and the agent to

the restaurant where Herman Mers was

waiting. As the party left the restaurant

for the place where the money was actually

to be exchanged, all four appellants were

arrested. Ferrante was armed with a Lu-

ger pistol and a 38 caliber handgun, Fer-

rante was carrying @ 357 magnum and

agents found a .30 caliber rifle in the back

seat of the car.

(1)

Joint Representation of Multiple

Defendants

{1} Bruce Pashley, an Atlanta criminal

defense attorney, represented a!) fuur de-

fendants from their arrest until the end of

their trial. Appellants contend that Pash-

ley’s multiple representation created an ac-

tual conflict of interest which was not suffi-

ciently exposed due to the district court's

failure to conduct an adequate hearing un-

der the criteria of Fed.RCrim.P. 44(c) and

United States v. Garcia, 517 F.2d 272 (5th

Cir.1975). We hold that although the dis-

trict court erred in failing to conduct an

adequate hearing on the conflict of interest

issue, that error was harmless because no

actual conflict of interest existed in this

case,

We agree with appellants that the dis-

trict court's failure to make full inquiry

concerning the conflict issue violated ryle

44(c) and Garcia. Rule 44(c) provides that

whenever two or more criminal defendants

who have been jointly charged are repre-

sented by the same counsel, the court “shall

personally advise each defendant of his

rights to the effective assistance of counsel,

including separate representation.” Garcia

-

states -. meet is

'

UNITED STATES v. MERS 2137

articulated the standard for determining Pashley answered that he had not discussed

whether a defendant has voluntarily waived it in the context of a conflict problem, since

his right to conflict-free counsel. In Garcia, he saw no conflict. The court then describ- —_—

defendants in a federal criminal proceeding ed to the defendants the nature of the Ht git

selected counsel to represent them. The entrapment defense, after which she re phe

trial court refused to allow the retained cessed the proceedings so that Ferrante and ,

attorneys to serve as counsel because of a Myers, who were not asserting the defense

conflict of interest. In holding that defend- of entrapment, could confer with Pashley.

ants have the privilege of waiving their 7 ; er

constitutional right to ecallleb deen counsel, Following the a Pashley advised the

dhe fk leak vemendiall ths ene Ser 5 Cotte Out be bed eeemet Co mete |

hearing to ascertain whether the defend- ne ctents and invited the court to proceed |

ants had knowingly and voluntarily waived with its inquiry. The judge then personally ae

their sixth amendment protections. addressed Myers and Ferrante and orn vite

mined that each felt that he had received .

[2] The court detailed the procedures to an adequate explanation of his position rel- 1°

be followed in making this determination, ae ye yore ee gerne or

stating that district courts should adhere to br a ES — ae eee ceee

a procedure similar to that promulgated in re that he pm —gaceaat iy dag a

Fed.RCrim.P. 11. 517 F.2d at 278. The ‘fense only with regard to the Mers and

court should address each defendant indi- that his defense with regard 8 ravens |

videoliy ond ovine Wen of the potenti! %™2 Mywe wes Ghat thay wore Eaply Cog —-

dangers of joint representation. The de- friend ® favor, that they had —— ired ge

fendants must have the opportunity to with no one and that they were guilty of

question the court about the nature and nothing. The court then asked Myers:

consequences of their legal representation. THE COURT: — To the extent

“Most importantly, the district court should there is any conflict between your posi-

obtain a response from each defendant indi- _—‘ tion and that of Mr. Lester Mers and Mr.

cating that he has been advised of his right Herman Mers, do you waive your rights

to effective representation, that he under- in connection with any such conflict?

stands the details of the attorney's possible MR. MYERS: I don't see any conflict, i

conflict of interest and the potential perils no, I don't. Etter,

of such a conflict and that he voluntarily

waives his Sixth Amendment protections.”

Id. at 278.

The district court was aware of atiorney

Pashley’s potential conflict of interest.

During the second day of trial, when the

government's counsel learned that Pashley

intended to raise the deferse of entrapment

on behalf of Herman and Lester Mers, he

requested that the court conduct a Garcia

hearing. The court asked Pashley whether

he had discussed the matter with his clients.

THE COURT: If there is a conflict, do

you consent to Mr. Pashley representing

you as well as Lester and Herman Mers?

MR. MYERS: At this time, | do.

THE COURT: All right, and do you

have any objection to Mr. Pashley raising

the entrapment defense as he indicated

he would?

MR. MYERS: No, Your Honor.

An almost identical line of inquiry was

made of Ferrante. In a post trial order

-

t ee

1

2138 UNITED STATES v. MERS

disposing of defendants’ request for judg-

ment NOV or a new trial, the court ob-

served that “[dJefendants are correct that

the inquiry undertaken by the Court at the

request of the Government and despite de-

fense counsel's position to the contrary,

with regard to trial counsel's potential con-

flict of interest, did not meet the require-

ments of United States v. Garcia ....” In

a later evidentiary hearing the judge admit-

ted that “the admonition the Court gave to

the defendants was not specific enough be-

cause it did not detail to the defendants

exactly the nature of the conflict.”

Thus, neither the probing inquiry man-

dated by rule 44(c) nor that required by

Garcia was satisfied in this case. The dis-

trict court did not specifically advise de-

fendants of their right to separate repre-

sentation, as required by Rule 44(c). The

district court judge candidly admitted fail-

ing to comply with Garcia. But although

her inquiry constituted crror under Garcia

and rule 44(c), that error will not require

reversal unless Pashley’s representation of

these multiple defendants did in fact consti-

tule an actual conflict of interest.

(3,4] Although joint representation of

multiple criminal defendants creates a dan-

ger of counsel conflict of interest, the

“mere fact of joint representation will cer-

tainly not show an actual conflict.” United

States v. Medel, 592 F.2d 1305, 1310 (5th

Cir.1979). Accord Holloway v. Arkansas,

435 U.S. 475, 482, 98 S.Ct. 1173, 1177-78, 55

L.Ed.2d 426 (1978); United States v. Bur-

roughs, 650 F.2d 595, 598 (5th Cir.), cert.

denied, 454 U.S. 1087, 102 S.Ct. 580, 70

L.Ed.2d 483 (1981); Foxworth v. Wain-

wright, 516 F.2d 1072, 1076 (5th Cir.1975).

Further, failure to comply with Garcia will

not mandate reversal absent an actual con-

flict of interest. In United States v. Bena-

videz, 664 F.2d 1255 (5th Cir.), cert. denied,

— US. —, 102 S.Ct. 2963, 73 L.Ed2d

1352 (1982), a defendant argued that non-

compliance with rule 44(c) required reversal

notwithstanding his failure to demonstrate

actual conflict. The present fifth circuit

rejected this argument, noting that the pur-

pose behind rule 44(c) was to “establish{] a

procedure for avoiding the occurrence of

events which might otherwise give rise to a

plausible post-conviction claim” concerning

conflict of interest. Jd. (quoting Advisory

Committee on Criminal Rules, Note to Rule

44(c), in Committee on Rules of Practice

and Procedure of the Judicial Conference of

the United States, Preliminary Draft of

Proposed Amendments to the Federal Rules

of Criminal Procedure (February 1978) re-

printed in 77 F.R.D. 507, 594 (1978) (Adviso-

ry Committee Note)) at 1258. The court

held that “neither the inquiry nor the ad-

vice is itself the goal of the rule; the goal is

preventing conflicts. If there is no actual

conflict, then the rule’s purpose will not be

served by reversal of a conviction.” 664

F.2d at 1258.

In United States v. Alvarez, 696 F.2d

1307 (11th Cir.1983), we found the above

rensoning from Benavidez persuasive. It

would be the height of formalism to reverse

a conviction because of literal noncompli-

ance with a procedural rule when the evil

that the rule has been designed to prevent

has never occurred. The Advisory Commit-

tee Note to rule 44(c) supports this con-

struction: “The failure in a particular case

to conduct a rule 44(c) inquiry would not,

standing alone, necessitate the reversal of a

conviction of a jointly represented defend- ’

ant.” Advisory Committee Note, 77 F.R.D.

507, 603 (1978). Thus, appellants must

demonstrate that Pashley’s joint represen-

tation constituted an actual conflict of in-

terest.

é “Sf ttey, a

~——

bee re .

baori gest 525-29. 08

Roger: 198 33

tg eee ..

ee ti

o.§-°

3. Steeeee

$25. 3825°

a

————

UNITED STATES y. MERS 2139

Three Supreme Court cases, Glasser v.

United States, 315 US. 60, 62 S.Ct. 457, 86

L.Ed. 680 (1942), Hollowa y v. Arkansas, 435

U.S. 475, 98 Sct 1173, 55 L.Ed2d 426

(1978) and Cuyler vy. Sullivan, 446 U.S. 335,

100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), define

the standard for analyzing claims that

counsel “suffered under a disability [such as

conflict of interest] that subtly pervaded his

entire conduct of the defense.” Stanley vy.

Zant.’ The Court in Glasser established the

Principle that counsel’s conflicting loyalties

in multiple representation cases could Jead

to an unconstitutional impairment of a de-

fendant’s sixth amendment right to effec.

tive representation. Glasser and Kretske

were codefendants in a conspiracy case,

Despite Glasser’s objection, the district

court appointed Glasser’s attorney to rep-

resent Kretske as well. The Supreme

Court reversed, holding that the assistance

of counsel] “guaranteed by the Sixth

Amendment contemplates that such assist.

ance be untrammeled and unimpaired by a

court order requiring that one lawyer shall

simultaneously represent conflicting inter-

ests.” 315 US. at 70, 62 S.Ct. at 465.

Although ambiguous language in Glasser

led courts to confusion regarding the test

for demonstrating conflict of interest and

for the need to show prejudice in multiple

representation cases, see Lowenthal, Joint

Representation in Criminal Cases: A Cen-

1. Our conflict of interest cases may be con-

trasted with the approach we take in analyzing

cases such as Washingto }

F.2d 1243 (5th Cir.1982) and Stanley v. Zant,

DP «+e e+ tne “BP e4*

tral Appraisal, 64 Va.L. Rev. 939, 973-74

(1978); Comment, Conflict of Interests in

Multiple Representation of Criminal Co-De-

fendants, 68 J.Crim.L. & Criminology 226

(1977), under the facts of Glasser itself the

conflict of interest was actual and as-

certainable on appellate review. The con-

flict was underscored by defense counsel's

cross-examination and in his attempts to

counter evidence introduced by the govern-

ment. Counsel's cross-examination of pros-

€cution witnesses was circumscribed and

hesitant, and in at least one instance the

defense attorney conducted no Cross-exami-

nation at all. The Supreme Court found

that such conduct raised an inference that

counsel's trial Strategy was infected by con-

flicting obligations and divided loyalties.

See Comment, 68 J.Crim.L. & Criminology,

Supra, at 230-3].

The Supreme Court reexamined the mul-

tiple representation issue in Holloway vy.

Arkunsas. In Holloway, the district court

appointed one public defender to represent

three defendants charged with rape and

robbery. The court denied defense coyn-

sel’s repeated requests for appointment of

Separate counsel. As jn Glasser, the Su-

preme Court inferred the conflict from

counsel's actions and inactions at tria]. The

attorney for the defendants informed the

court, in the presence of the jury, that

ing with counsel's representation (such as con-

flicts of interest) and “intrinsic” ineffectiveness

102 S.Ct. 2307, 73 LEd2d 1308 (1982) (not

requiring prejudice in cases of extrinsic ineffec-

tiveness).

a

~ 4

iss 2

“EOD D7 Co es tee ees Meee

/

2140 UNITED STATES v. MERS

despite his recommendation to the contrary

all defendants wished to testify. Counsel

argued that a conflict of interest was inevi-

table: he could not effectively examine any

given defendant who was on the witness

stand, because he had received information

from each individually. The trial court re-

jected counsel’s argument that he was

bound to protect the interests of the non-

testifying defendants while a codefendant

was testifying. The attorney refused to

question any of the defendants and they

testified in a narrative form. Before each

defendant took the stand, counsel] stated

that “I cannot ask you any questions that

might tend to incriminate any one of the

three of you ....” 435 U.S. at 480, 98

S.Ct. at 1176. The Supreme Court reversed

the convictions, concluding that the trial

judge erred in failing “either to appoint

separate counsel or to take adequate steps

to ascertain whether the risk [of a conflict

of interest] was too remote to warrant sep-

arate counsel.” Id. at 484, 98 S.Ct. at 1178.

The Court strongly implied that reversal

would be automatic “whenever a trial court

improperly requires joint representation

over timely objection.” Id. Because the

trial record may mask so much, and because

a “conflict of interest hobbles the defense in

a manner distinct from other forms of inef-

fectiveness,” Tague, Multiple Representa-

tion and Conflicts of Interest in Criminal

Cases, 67 Geo.L.J. 1075, 1077 (1979), an ap-

pellant asserting conflict of interest need

not make a further showing of prejudice.

See Holloway, 435 U.S. at 489-91, 98 S.Ct.

at 1181-82; Baty v. Balkcom, 661 F.2d 391,

395 (5th Cir.1981), cert. denied, —— USS.

—, 102 S.Ct. 2307, 73 L.Ed.2d 1308

(1982).

Most recently, in Cuyler v. Sullivan, 446

U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333

(1980), the Supreme Court stated that “tire

possibility of conflict is insufficient to im-

pugn a criminal conviction. In order to

demonstrate ‘a violation of his Sixth

Amendment rights, a defendant must es-

tablish that an actual conflict of interest

adversely affected his lawyer’s perform-

ance.” Id. at 350, 100 S.Ct. at 1719; see

also United States v. Freeman, 619 F.2d

1112, 1122 (5th Cir.1980), cert. denied, 450

U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334

(1981); United States v. Fox, 613 F.2d 99,

102 (5th Cir.1980). We have held that “the

standard imposed by the Supreme Court in

Cuyler is met by proof of an actual conflici

of interest. As a component of that proof,

of course, petitioner also must show that

counsel with the conflict was representing

the petitioner actively.” Baty v. Balkcom,

661 F.2d at 397.

We will not find an actual conflict unless

appellants can point to “specific instances in

the record to suggest an actual conflict or

impairment of their interests.” United

States v. Fox, 613 F.2d at 102. Appellants

must make a factual showing of inconsist-

ent interests and must demonstrate that the

attorney “made a choice between possible

alternative courses of action, such as elicit-

ing (or failing to elicit) evidence helpful to

one client but harmful to the other. If he

did not make such a choice, the conflict

remained hypothetical.” Comment, 68

J.Crim.L. & Criminology, supra, at 232 (par-

entheses in original). There is no violation

where the ~ flict is “irrelevant or merely

hypothetical”; there must be an “actual,

significant conflict.” Foxworth, 516 F.2d

at 1077 n.7. An actual conflict exists when

the respective defenses of multiple defend-

ants are inconsistent, i.e., if “introduction of

probative evidence or plausible arguments

that would significantly benefit one defend-

ant would damage the defense of another

defendant whom the same counsel is repre-

-

. ee

Presse '

tte ee ee ——

~————— ————

--

I eed

s+ a eee ee + ee ne

§ nc ee. cent J LER a ce a ih

UNITED STATES v. MERS

senting.” Baty, 661 F.2d at 395. The Be-

navidez court noted that the former fifth

circuit cases reversing convictions on the

ground of actual conflict of interest could

be classified as falling into at least one of

three rubrics:

(1) the conflict was brought to the trial

court's attention at the outset of the trial

or at the time when the conflict first

became apparent; (2) one defendant had

evidence that would have exculpated

himself but inculpated a codefendant; (3)

the prosecution’s evidence offered de-

fendant a theory under which he could

prove his own innocence by proving his

codefendant’s guilt.

664 F.2d at 1259 (footnotes omitted).

Appellants Ferrante, Myers and Lester

Mers argue that their various defenses were

incompatible with the entrapment defense

asserted by Herman Mers and that Pash-

ley’s representation of all appellants gave

rise to an actua! conflict of interest. Her-

man Mers admitted at trial that he was

guilty of the acts charged, but argued that

he had been entrapped by the government's

informant. Lester Mers asserted a variant

of the entrapment defense. Because he had

no direct contact with the government's

informant, he did not have the classical

entrapment defense available to him.

Nevertheless, he endeavored to claim en-

trapment under the theory that, since his

father Herman was entrapped and as a son

he had no choice but to help his father, he

also was entrapped. Ferrante and Myers

argued, by contrast, that they played no

part whatever in the conspiracy, that they

thought they were guarding a truck full of

valuable antiques.

Ferrante and Myers contend on appeal

that the presence of Herman Mers’ entrap-

ment defense and Lester Mers’ hybrid agen-

“oe « oom

2% * 98", we

: 7

a. ee ee oe eer

2141

cy theory/entrapment defense damaged the

effectiveness of their own defenses. From

an evidentiary and a psychological perspec-

tive, they argue, it was impossible for a

single counsel credibly to argue all four

cases, especially when all four defendants

took the stand to tell their divergent sto-

ries. Ferrante and Myers further argue

that counsel's divided loyalties resulted in a

significantly greater emphasis on the de

fenses of the Mers. Finally, they urge that

the desperate nature of the entrapment de-

fense assured that-all four defendants

would be jointly shot down as “birds of a

feather.” Similarly, Herman Mers argues

that his entrapment defense was diluted

and was prejudiced by the courts finding

that Lester Mers could not avail himself of

the entrapment defense.

Judge Evans found that, despite the dis-

parity in defenses, counse] was not laboring

under an actual conflict of interest:

It is true as an abstract proposition that

inherent in establishing entrapment is the

acknowledgement, albeit under pressure,

of participation in an illegal objective.

Raising entrapment as a defense for one

coconspiratur is thus a strategy which

potentially conflicts with the assertion by

others of lack of knowledge of the illegal

activity. Defendants, however, have not

given any indication that such conflict

developed in the instant case.... They

have given no indication of what other

defense posture would have better served

them in the context of a joint trial for

conspiracy and of the Government’s evi-

dence that a truck which they, while arm-

ed, had been following was filled with

2,000 pounds of marijuana.

[5] We agree that Pashley’s representa-

tion of all four defendants did not create an

actual conflict of interest. The defenses in

| —_ ee eee

t+

eee Nas

-~*

Ad °

*

-

hele ar?

6 ee EE EE ee ED +

ee oe

on ntet. Nenh moment beetle ani teens ae eer ebe. mn.

2142 UNITED STATES v. MERS

this case were not antagonistic, much less

mutually exclusive. Ferrante and Myers

did not base their defense on the proposi-

tion that no conspiracy existed; rather they

argued that they had no knowledge of any

conspiracy. We have found “where code-

fendants’ statements are largely corrobora-

tive, repetitive or serve the same purpose,

there is no conflict.” United States v. Me-

del, 592 F.2d at 1310. Accord United States

v. Fannon, 491 F.2d 129, 132 (5th Cir.), cert.

denied, 419 U.S. 1012, 95 S.Ct. 332, 42

L.Ed.2d 286 (1974). Neither Ferrante nor

Myers have shown that they stood “to gain

significantly” by abandoning the common

defense. Foxworth, 516 F.2d at 1076. On

the contrary, Lester Mers bolstered Fer-

rante and Myers’ defense by corroborating

their testimony that the latter thought they

were guarding a truck full of antiques.’

Further, the record suggests that the vari-

ous defenses, while different, were coordi-

nated. The testimony of the Mers could

have givatly harmed Ferrante and Myers.

Consistent with their own entrapment de-

fenses, for example, the Mers could have

devastated Ferrante's and Myers’ defense

by testifying that they had informed Fer-

rante and Myers that they were guarding

marijuana and that the latter were fully

aware of details of the transaction. By

contrast, nothing in the record suggests

that Ferrante and Myers could have offered

2. Lester Mers testified as follows:

Q All right, and what did you ask him

(Ferrante) to do?

A Well, | told him that | was in the middle

of a transaction of an estate, of a house that

had been sold in the neighborhood, and that

there was some antiques and some furniture

that I was responsible for to move, and |

would appreciate it if he could help me out

by following me with this truck to the bank

where there would be a transaction of money

for this deal and to give me a ride home afier

that.

damaging testimony against the Mers.

DEA agents had taped several of the Mers’

negotiations over the proposed marijuana

transaction. Nothing to which Ferrante

and Myers could have testified would have

inculpated the Mers more than those taped

admissions. Also, to have damaged the

Mers, Ferrante and Myers would have had

to inculpate themselves in the conspiracy.

We find that these appellants’ interests “are

closely aligned such that their united front

strategy might well have been the best

strategy available.” United States v. Me-

del, 592 F.2d at 1312.

No appellant has pointed to any different

defense theory or new evidence or testimo-

ny that independent counsel could have elic-

ited. Rather, appellants contend that an

actual conflict resulted because the respon-

sibility of representing all defendants dilut-

ed Pashley'’s credibility before the jury.

We decline to hold that these appellants

have shown an actual conflict merely be-

cause separate counsel might have been

more impressive to a jury. All appellants’

defenses were fully and forcefully present-

ed through their own testimony. Their en-

tire defense depended upon whether the

jury believed or disbelieved this testimony.

Further, cross¢xamination of government

witnesses was probing and thorough and

closing argument highlighted the strengths

of the various defenses. To argue that

Q Did you ever mention the word mari-

juana to him?

A No, | never did.

Q What did he say generally in response

to your request?

A Well, he said it was sort of an incon-

venience because he was going out of town,

but if I couldn't get any help from anybody,

then | should call him back, and I said I had

already made as many calls as 1 could, and |

couldn't find anybody.

|

—-—--—-

{jain

seyeths

te He

UNITED STATES v. MERS 2143

because, stylistically or psychologically, an-

other attorney might have been more per-

suasive underestimates the jury's ability to

evaluate the credibility of evidence.

Ferrante and Myers’ final conflict of in-

terest argument is that Pashley’s common

defense denied them the opportunity to

shift blame for the offense onto the Mers.

They contend that independent counsel

would have focused the jury's attention on

the Mers by hammering home the point

that the evidence against the Mers was far

greater than against them. While a strate-

gy of shifting blame to one’s codefendants

is a legitimate and often effective defense

strategy, we conclude that in this case the

independence of the defenses asserted pre-

cluded the possibility of shifting blame

from one codefvndant to another?

In Foxworth the former fifth circuit held

that a defendant's sixth amendment rights

have been violated if the reviewing court

perceives from the record a plausible alter-

native defense theory more favorable to the

defendant than that actually pursued by

counsel, but which would have prejudiced at

least one codefendant by shifting to him

more responsibility for the acts at issue.

516 F.2d at 1079. Although the record in

3. The conflict claim asserted by appellants and

its “shifting the blame” corollary are particu-

larly troubling in conspiracy cases, where “the

very nature of the charge suggests the desira-

bility of disassociation.” Fryar v. United

States, 404 F.2d 1071, 1073 (10th Cir.1968),

cert. denied, 395 U.S. 964, 89 S.Ct. 2109, 23

L.Ed.2d 175 (1969). In Glasser the Supreme

Court noted the spec ‘al risks of multiple repre-

sentation when the charge is conspiracy: “In

conspiracy cases, where the liberal rules of

evidence and the wide latitude accorded the

prosecution may, and sometimes do, operate

unfairly against an individual defendant, it is

especially important that he be given the bene-

fit of the undivided assistance of his counsel

vee” 315 U.S, at 76, 62 S.Ct. at 467-68. See

also Geer, Representation of Multiple Criminal

eee 2 ee ee . e-*

Foxworth indicated that conflicting testi-

mony at trial presented opportunities of

shifting blame;* the former fifth circuit

pointed out that a conflict existed in select-

ing the initial strategy, which precluded

counsel from adopting a tactic of shifting

blame to one of the codefendants. 516 F.2d

at 1079-80. The court held that “if the

record shows that a plausible defense (one

that might have influenced twelve reasona-

ble jurors) was foreclosed because it might

have prejudiced the other defendants repre-

sented by the same appointed counsel, the

conviction must be overturned.... An al-

leged conflict of interest that obstructs the

use of a particular strategy or defense is

not significant unless the defense is plausi-

ble.” Jd. at 1079, 1080. The court stressed

that “the conflict occurred not in presenting

the defense chosen by appointed counsel,

but in selecting defenses and strategies in

the first place.” Jd. at 1079. The record in

that case “amply established such a plausi-

ble defense.” Jd.

The government contends that the fifth

circuit in Benavidez effectively overruled

the Foxworth holding that counsel's failure

to “shift the blame” among codefendants

Defendants: Conflicts of Interest and the Pro-

fessional Responsibilities of the Defense Attor-

ney, 62 Minn.L.Rev. 119, 136 (1978); Dawson,

Joint Trials of Defendants in Criminal Cases:

An Analysis of Efficiencies and Prejudices, 77

Mich.L.Rev, 1379, 1397-1448 (1979).

4. In Foxworth four prisoners were convicted of

murdering a fifth. The four other prisoners in

the cell testified for the prosecution; the de-

fense's theory was that these four government

witnesses had committed the murder, The

government contended that the four defendants

had an interest in presenting a united defense:

they had a common interest in discrediting the

prosecution's witnesses. Further, their own

positions were compatible with ahe joint strate-

gy.

a

2144

could constitute an actual conflict of inter-

est. We cannot agree. Like Foxworth,

each defendant in Benavidez contended

that because the evidence against his code-

fendant was stronger than the evidence

against him, his counsel should have adopt-

ed a strategy of shifting the blame to the

codefendant and emphasizing the relative

weakness of the case against himself; be-

cause trial counsel represented both defend-

ants, he was not free to adopt such a strate-

gy. Unlike Foxworth, however, the court

in Benavidez stated that the appellant could

“not point to any specific argument that

counsel was precluded from making or to

any specific evidence that counsel was pre-

cluded from adducing on his behalf, and in

reviewing the record we have discerned

none.” 664 F.2d at 1262 (emphasis added).

Because appellants could offer no evidence

or argument in support of a “plausible al-

ternative strategy,” id. at 1260, the court

could not find an actual conflict of interest.

Accord United States v. Huntley, 585 F.2d

1400, 1406 (5th Cir.1976), cert. denied, 430

U.S. 929, 97 S.Ct. 1548, 51 L.Ed.2d 773

(1977); United States ex rel. Small v. Run-

dle, 442 F.2d 235, 238 (3d Cir.1971).

(6) Far from overruling Foxworth, Be-

navidez does no more than reaffirm the

requirement, strongly articulated in Fox-

worth itself, that an “alleged conflict of

interest that obstructs the use of a particu-

lar strategy or defense is not significant

unless the defense is plausible.” Foxworth,

516 F.2d at 1080 (emphasis added). The

synthesis of Foxworth anc Benavidez is a

specific application of the general principle

that to warrant reversal, a conflict of inter-

est must be actual rather than hypothetical.

Failing to adopt a strategy of shifting

blame may well give rise to an actual con-

flict of interest, but to do so the strategy

must have been an option realistically avail-

able to trial counsel.

tie ~~ ~«.

UNITED STATES v. MERS

Like the defendants in Benavidez, these

appellants are unable to show that a strate-

gy of shifting the blame was really a plausi-

ble alternative for Pashley. In pronounced

contrast to the situation in Foxworth, the

various defenses presented by appellants at

trial were the only defenses realistically

available to them. Given the highly incrim-

inating conversations tape recorded by the

DEA, the Mers had little choice but to

admit their indisputable actions and to fo

cus their attack on the conduct of govern-

ment agents. Likewise, Ferrante and

Myers’ only defense was to admit their in-

controvertable actions, but to claim that

they had no knowledge that the substance

in the truck was marijuana. The differ-

ences in the nature of the defenses and the

compatibility of the various positions assert-

ed preclude the possibility of counsel's

adupting a strategy of shifting blame

among codefendants. To decide that this

cause presents an actual conflict would be to

impose “a per se rule requiring separate

representation; every time a lawyer repre-

sents more than one defendant, he is pre-

cluded from ‘shifting the blame’ to the

client against whom the government

presents the stronger case.” Benavidez, 664

F.2d at 1260,

(2)

Speedy Trial Act

[7,8] Herman and Lester Mers contend

that their tria) did not commence within the

period required by the Speedy Tria] Act, 18

U.S.C. §§ 3161-68. The Act mandates that

defendants be brought to trial within seven-

ty days “from the filing date (and making

public) of the information or indictment, or

from the date the defendant has appeared

before a judicial officer of the court in

ee eee oe, ee

a os

a

- ~eb ae «= he ow —— oo -

———

——————

UNITED STATES v. MERS | 2145

which such charge is pending, whichever

date last occurs.” 18 U.S.C. § 3161(c1).

The accounting of time under the Act is

subject to excludable delay attributable to

the defendant as well as other particular-

ized delays set out in section 3161(hX1). In

the present case, we assume that the seven-

ty day period began to run on March 2,

1981, the date on which appellants were

arraigned. See note 6, infra. Trial com-

menced on August 5, 156 days after ar-

raignment. The government argues the ex-

clusion of a total of ninety-seven days cov-

ering three discrete periods: forty-one days

(March 13 to April 22) for motions practice

before the magistrate, § 3161(h\1XF);

twenty-six days (April 22 to May 18) during

which the magistrate had the motions un-

der advisement, § 3161(hX1XJ); and thirty

days (June 2 to July 1) during which the

magistrate’s report and recommendation

under advisement by the district court,

5. The government also sought to exclude three

days (August 2 to August 5) during which de-

fense motions to dismiss the indictment based

on Speedy Trial Act violations were pending

before the district court. See 18 U.S.C.

§ 316)(h\1XF), and Herman Mers was una-

vailable for trial. See id. at section

3161(hX 3A). Appellants do not dispute this

exclusion.

6. Appellants contend that the seventy day time

period should begin not on March 2, 1981 (date

of arraignment) but rather on February 18

(date of indictment). They base this contention

on the fact that they appeared for a bond hear-

ing before a judicial officer (a magistrate) on

February 6, the day of their arrest. If a defend-

ant has appeared before a judicial officer in

connection with the charge prior to the filing of

the indictment, then the speedy trial clock com-

mences on the date the indictment was filed.

See 18 U.S.C. § 3161(cX1); Judicial Guidelines

at 7-8. Although it is true that “[wJhen the

defendant is arrested prior to indictment and

makes an initial appearance before a magis-

trate who orders him held to answer the

charges in the district court, the seventy-day

period runs from the date of his indictment,”

United States v. Haiges, 688 F.2d 1273, 1274

§ 3161(hX1XJ).5 We agree that the time

was properly excludable.

Appellants dispute two categories of ex-

clusion. First, they argue that section

3161(cX2), which provides that trial must

commence “not less than thirty days from

the date on which the defendant first ap-

pears through counsel,” prohibits exclusion

of any time occurring within that first thir-

ty days following a defendant’s first ap

pearance in court. Appellants contend that

otherwise excludable delay resulting from

pretrial motions filed by defendants and

pending within that thirty day period

should not be deemed excludable. Of the

total of forty-one days excluded time attrib-

uted to defense motions, eight days (March

13 to March 20) fell within the initial thirty

day period covered by section 3161(c)2).

Appellants do not dispute the exclusion of

other time within this forty-one day period.’

(9th Cir.1982); see also United States v. Car-

rasquillo, 667 F.2d 382, 384 (3d Cir.1981), we

need not reach this issue. Even accepting ap-

pellants’ contention that the clock should have

begun on the date of indictment (February 18),

that starting date adds only eleven days (Febru-

ary 18 to March 1) to the time that must be

counted; March 2, the arraignment date, would

be excluded under section 3161(h)(1) as a pro

ceeding relating to defendant. Eleven days,

added to the fifty-six net non-excludable time

as we calculate it, equals sixty-seven days.

Even with this earlier starting date, trial began

within the requisite seventy days.

7. On March 13, defendants filed numerous pre-

trial motions. Three days later, a pretrial con-

ference disposed of some but not all of the

motions. On March 26, the date for which a

suppression hearing was originally scheduled,.

the hearing was continued, at the request of

appellants, until April 8. On April 8, appellants

again requested and were granted a continu-

ance; the same thing happened on April 15.

On April 22, the magistrate concluded that no

suppression hearing would be needed, based on

the government's representation that it would

not call its informant to testify at trial. Appel-

eile

————~iti . %

Seas —

i hal

SPEEA ae

ec cose oe

ae: 3

2146

Appellants’ position finds support in nei-

ther the language, legislative history nor

policy of the provision. Section 3161(c2),

added to the Act by Congress in 1979, by its

terms speaks to the time during which trial

may not commence absent waiver by a de-

fendant of his speedy trial right. See Com-

mittee on the Administration of the Crimi-

nal Law of the Judicial Conference of the

United States, Guidelines to the Adminis-

tration of the Speedy Trial Act of 1974, As

Amended (1979) (hereinafter cited as Judi-

cial Guidelines) at 12-18. The section is not

addressed to the computation of the overall

time period during which trial must com-

mence. Even if this language is arguably

ambiguous, the legislative history is not

The legislative history leaves no doubt but

that the purpose behind subsection (c)(2)

was to prevent a trial from being held so

quickly that a defendant would not have

time to prepare. Section 3161(c\2) was

added to the statute at the behest of the

Justice Department, the Judicial Confer-

ence and the American Bar Association.

See Misner, The 1979 Amendments to the

Speedy Trial Act: Death of the Planning

Process, 32 Hastings L.J. 635, 642-43 (1981).

Assistant Attorney General Phillip Hey-

lants challenge the excludability of only eight

days of this time: March 13 to March 20.

8. Heymann specified:

Special emphasis should be made of the

fact that the problems created by these strict

time limits [in the 1974 act] apply at least

equally to defense counsel as they do to pros-

ecutors. In fact more often in these more

complex cases, defense counsel needs are

greater than ours because we have at a mini-

mum prepared the case for presentation to

the grand jury. In many of the more com-

plex cases, especially in the white-collar

crime area, we have spent considerably more

time investigating the case. Sometimes the

pre-indictment investigation can take years

during which time the prosecutor has accu-

mulated masses of documents on which he

UNITED STATES v. MERS

mann testified before the Senate Commit-

tee on the Judiciary that “[i}t is in recogni-

tion of the special problems often faced by

defense counsel that the Department has

included a provision in its bill requiring a

minimum of 30 days for defense prepara-

tion. This insures the defendant some min-

imum preparation time even in the simplest

case.”* The Speedy Trial Act Amendments

of 1979: Hearings Before the Senate Com-

mittee on the Judiciary on S. 961 and S.

1028, 96th Cong. Ist Sess. 47, 53 (1979),

(hereinafter cited as 1979 Hearings), ex-

cerpted in Federal Judicia] Center, Legisla-

tive History of Title I of the Speedy Trial

Act of 1974, at 70, 71 (1980) (hereinafter

cited as Legislative History). See also

S.Rep. No. 212, 96th Cong. Ist Sess. 31-32

(1979) (hereinafter cited as 1979 Senate Re-

port), excerpted in Legislative History at 73

(explaining the purpose of the subsection as

“guaranteeing the defendant a reasonable

period in which to obtain counsel and pre-

pare for trial”); 1979 Senate Hearings 87,

91 (statement of Danie) Freed); id. at 115-

17 (statement of Salvatore Martoche); Ju-

dicial Guidelines at 10 (the section “was

added to the Act in 1979 to guarantee a

minimum period of thirty days for the prep-

has spent a great deal of time and energy in

review.

Equally serious problems arise for defense

counsel in trying to rapidly become familiar

with very esoteric federal laws or specific

standard business practices and operating

procedures. Often there is a need to become

expert in the details of the particular regula-

tions of a federal agency.

Defense counsel also has the particular

problems, raised most often in multi-defend-

ant cases, of potential conflicts in representa-

tion and difficulties in coordinating among

the lawyers on the defense team Each of

these special problems is supported by the

OIAJ study.

1979 Senate Hearings, reprinted in Legislative

History at 7).

le li

UNITED STATES v. MERS 2147

aration of the defendant’s case”); Misner,

supra at 642-43 (observing that section

3161(cX2) was an “apparent attempt to

guarantee that the Act did not become the

‘Speedy Convictions Act’” and that the

“avowed reason for this amendment was to

ensure that a defendant has adequate time

for pretrial preparation”). See also United

States v. Horton, 676 F.2d 1165, 1173 (7th

Cir.1982), petition for cert. filed, —— US.

, 108 S.Ct. ——, 74 L.Ed.2d —-, 51

U.S.L.W. 3341 (U.S. Oct. 19, 1982) (No. 82-

681) (Swygert, J., dissenting) (section

$161(c\2) “recognizes that an accused gen-

erally needs thirty days to prepare his de-

fense based on the charges detailed in his

indictment”); United States v. Wooten, 688

F.2d 941, 951 (4th Cir.1982) (“what section

3161(c(2) does is simply to guarantee to the

criminal defendant the right to a delay of

at least thirty days between arraignment

and trial in any circumstances”). The Sen-

ate Report explicitly stated that purpose

would be in no way furthered by holding

that time that is otherwise excludable un-

der the Act should not be excluded if it

occurs within the first thirty days elapsing

from the defendant’s initial appearance:

Prohibiting trial less than 30 days after

the date the defendant appears in a posi-

tion to begin preparing his defense more

fully protects basic due process rights. It

is the Committee’s intent that the exclu-

sions provided in section 3161(h) apply to

the 30-day minimum to-trial provision.

Therefore, if an event occurs which would

automatically exclude time under subsec-

tion (h), such as a pretrial mental exami-

nation, that time is not only excluded

from computing the time within which

trial must occur prior to imposition of the

dismissal sanctions, but time would also

automatically be excluded in computing

the 30-day minimum period of time, dur-

ing which the judge could not schedule

trial without the defendant’s consent.

1979 Senate Report at 32, excerpted in Leg-

islative History at 73-74 (emphasis added).

Appellants can cite only two authorities

for their contention that no excludable de-

lay is permitted during the first thirty day

interval. The Judicial Guidelines at 12-14

provide that:

In spite of language to the contrary

..., it is the view of this Committee that

the thirty-day minimum period for com-

mencement of trial is not extended by the

exclusions of Section 3161(h).... More-

over, if the thirty-day minimum were in-

terpreted as subject to the exclusions, the

provision would become a powerful weap-

on for defendants who wanted to delay

their prosecutions, a result that is wholly

at odds with the major purpose of the

statute. Under such an interpretation,

the court could be compelled to defer a

trial simply because the defendant filed a

motion or because the court took a pre-

trial matter under advisement—both

events that trigger periods of excludable

time under Section 3161(h\1).

The fourth circuit, in United States v. Woo-

ten, embraced the Guideline’s passage quot-

ed above and held that section 3161(c\(2)

“does not provide for an extension of the

30-day minimum time period between the

defendant’s appearance with counsel and

trial either expressly or by incorporation by

reference of Section 3161(h).” 688 F.2d at

949-50. The Wooten court found that the

exclusions of section 3161(h) do not “apply”

to the time limits of section 3161(¢X2):

“There is no language in section 3161(h),

which suggests even remotely that its ex-

clusion provisions have any reference to or

connection with the time limits fixed by

section 3161(c\2).” Id. at 950.

" ENTE. OT

aeneeemeamnmnel eee: see

seer

2148 UNITED STATES v. MERS

While appellants’ reading of the Judicial

Guidelines and of Wooten appears superfi-

cially attractive, we believe that they have

misperceived the import of those sources.

The thirty days of section 3161(cX2) were

intended to be measured as calendar days.

The concern articulated by the Judicial

Guidelines was that a defendant should not

be able to lengthen his thirty day minimum

period by the filing of motions that would

constitute excludable time. The message of

the quoted passage is that a clever defend-

ant who wished to postpone indefinitely his

trial should not be allowed to argue that

certain pretrial motions filed within the

first thirty day period tolled the running of

the thirty day minimum period. Similarly,

the Wooten court stated that “what the

statute does not give the criminal defend-

ant is the right, by filing dilatory motions,

to extend on his own the date of his trial.”

688 F.2d at 951. Thus, “what section

3161(c\2) does is simply to guarantee to the

criminal defendant the right to a delay of

at least 30 days between arraignment and

trial in any circumstances.” Id. We con-

9. An information against Stuart was filed on

June 22, 1981. 689 F.2d at 761. The court

found that in “counting days elapsed before

trial, we exclude the 16-day period from July

14, 1981, to July 30, 1981. The record on

appeal shows that the continuance granted dur-

ing this time was to allow defendant to obtain

counsel.” Id. at 762 n. 2 (citation omitted).

10. Jodoin was arraigned on August 25, 1980.

672 F.2d at 236. The first circuit excluded two

periods falling within the first thirty days after

arraignment. The court excluded ten days (Au-

gust 25 to September 5) between the time when

defense counsel made an oral motion for time

to file a suppression motion and the time when

the motion was actually filed. The court also

excluded twenty-six days (from September 5 to

September 30) when the motion to suppress

was pending before the district court prior to

hearing. Id. at 237.

11. Raineri was arraigned on June 23, 1980.

670 F.2d at 707. The court found that “the

period from June 23 to August | does not count

clude that section 3161(c\2) merely defines

the time during which trial may not com-

mence and that that time is measured as

thirty calendar days fre the event trigger-

ing the speedy trial clock. We join other

circuits that exclude time during the initial

thirty day period. See United States v.

Stuart, 689 F.2d 759, 762 & n. 2 (8th Cir.

1982);* United States v. Jodoin, 672 F.2d

232 at 236-38 (lst Cir.1982);" United

States.v. Raineri, 670 F.2d 702, 707-08 (7th

Cir.), cert. denied, —— U.S. ——, 108 S.Ct.

446, 74 L.Ed.2d —— (1982);" United States

v. Regilio, 669 F.2d 1169, 1171-72 (7th Cir.

1981), cert. denied, —— U.S. ——, 102 S.Ct.

2959, 73 L.Ed.2d 1350 (1982) (same);

United States v. Brim, 630 F.2d 1307, 1311-

12 (8th Cir.1980), cert. denied, 452 U.S. 966,

101 S.Ct. 3121, 69 L.Ed.2d 980 (1981)."

Appellants’ second series of Speedy Trial

Act arguments challenges the exclusion of

certain time attributed to the magistrate’s

and the district court’s disposition of pre

trial motions. Appellants filed motions to

suppress evidence on March 13, 1981, and

toward the seventy days because it was occu-

pied with the prompt disposition of the motions

the defendant filed on three different dates.”

Id. at 708.

12. Defendant was arraigned on August 15,

1980. 669 F.2d at 1171. On August 27, the

defense initiated the motions practice exclusion

by filing five pretrial discovery requests. Id.

The court of appeals affirmed the district

court’s exclusion of eighty-one days between

August 27, when the motions were filed, and

November 17, when the order denying the mo-

tions was issued. Jd. at 1172.

13. Brim was arraigned on October 16, 1979.

630 F.2d at 1311. The court held that from

“October 23 until December 19 various pretrial

motions were continuously pending. During

that period the running of the seventy day

limitation was tolled. Jd. at 1313.

aS

Ter

om Oe

er.

——

-_—— << +

be

a en

UNITED STATES v. MERS 2149

the magistrate promptly set a hearing date.

The date was postponed until April 22, be-

cause appellants obtained three continuanc-

es. See note 7 supra. The hearing did not

occur on April 22, however, because the

government informed the magistrate that it

would not seek to introduce certain evi-

dence. Because this decision by the govern-

ment obviated the need for a suppression

hearing, the magistrate orally informed the

parties that he deemed all of the motions

except one moot. On May 18, the magis-

trate issued his report and recommendation,

in which he recommended that the district

court dismiss as moot all motions save one.

The magistrate deferred one of Herman

Mers’ motions to the district court judge for

her consideration and gave the parties ten

days to object before submitting his report

to the court, as required by the Federal

Magistrate’s Act, 28 U.S.C. § 636(h\1). No

party objected and the report was sub-

mitted on June 2. The court adopted the

magistrate’s report on August 8. The for-

ty-one days for motions practice (March 13

to April 22) were properly excluded under

section 3161(hX1XF); this is not challenged.

Although appellants raise creative argu-

ments to the contrary, we hold that the

twenty-six days during which the magis-

trate had the motions under advisement

(April 22 to May 18) and the thirty days

during which the district court had the mo-

tions under advisement (June 2 to July 1)

were excludable under section 3161(hX1XJ).

Section 3161(hX1XJ) provides for the ex-

clusion of “delay reasonably attributable to

any period, not to exceed thirty days, dur-

ing which any proceeding concerning the

defendant is actually under advisement by

14. The section has as its predecessor section

3161(hX 1G) of the original 1974 Speedy Trial

Act. The provision was “added by the Senate

Judiciary Committee so that such exclusions

the court.”"* Appellants dispute the exclu-

sions on two grounds. First, they argue

that section 3161(hX1XJ) permits only a to

tal of thirty days under advisement period

for both the magistrate and the district

court. This is an issue of first impression.

Although in United States v. Delong-

champs, 679 F.2d 217, 219-20 (11th Cir.1982)

we observed that section 3161(hX1XJ) per-

mits the magistrate a maximum of thirty

days during which to take motions under

advisement, see also United States v. Rain-

eri, 670 F.2d at 707 (holding that section

3161(hX1XJ) allows thirty day exclusion for

magistrate having motions under advise-

ment), this does not resolve the issue of

whether the district court then may take an

additional excludable thirty day under ad-

visement period of its own for consideration

of the same motion.

[9] The magistrate spent a total of six-

ty-seven days dealing with the motions.

Forty-one of those days (March 13 through

April 22) were excludable as motions prac-

tice under section 3161(hX1XF). Appellants

correctly argue that the excludable time

under section 3161(hX1XF) ended on April

22, when the magistrate learned that a sup-

pression hearing would not be necessary

and when he orally advised the parties of

the recommendations that he intended to

make in his report and recommendation.

The Judicial Guidelines at 33 recommend

that the “exclusion for delay resulting from

pretrial motions be treated as ending at

such time as the court has received every-

thing it expects from the parties before

reaching a decision—that is, such date as all

anticipated briefs have been filed and any

necessary hearing has been completed.

would not have to be made under the ‘ends of

justice’ continuance provision; the 30-day limi-

tation was later added by the House.” Frase,

at 693 (1976).

— em gene

eee 6 Oe ee + + eet E+ ©

r |

_

ban a

en :

Ot eet ee sna

2150

Thereafter, the matter should be treated as

‘under advisement’ and subject to the rules

of subparagraph (J).” Section 3161(hX1\F)

and section 3161(hX1XJ) dovetail; the for-

mer ends when the latter begins. Thus the

Judicial Guidelines at 42 recommend that

the “under advisement period” of section

3161(hX1XJ) begins on “the day following

the date on which the court has received

everything it expects from the parties, ex-

amining physicians, etc., before reaching a

decision. It is normally the date following

the expiration of an exclusion under sub-

paragraph (A), (B), (F), or (G).” Once all

parties’ materials are in and any needed

hearings are held (or it is determined that

none are needed), the matter should be

treated as “under advisement” and subject

to section 3161(hX1\J) rather than section

3161(hX 1 F).

The under advisement period was trig-

gered on April 22, when the magistrate

first learned from the parties that no sup-

pression hearing would be required. As of

that date, the magistrate had before him all

of the materials he expected to receive

from the parties. With April 22 as the

starting date, the issue becomes whether

the magistrate issued his report and recom-

mendation within the thirty days permitted

and whether the district court then is enti-

tled to an additional thirty days during

which to have the motions under advise-

ment.

The magistrate submitted his report and

recommendation on May 18. Appellants

contend that he thus expended twenty-six

days (from April 22 to May 18) of the thirty

day total under advisement exclusion, thus

leaving the district court a total of four

days in which to dispose of the motions.

We reject their argument that the thirty

day under advisement exclusion is a total

for both the magistrate and the district

UNITED STATES v. MERS

court. The Judicial Guidelines flatly state

that “when a pretria] matter is considered

by both a magistrate and a judge pursuant

to [the Magistrates Act], the Committee

believes that the [Speedy Trial Act] permits

two thirty day periods for consideration of

the same matter” (emphasis added). We

agree with the Guidelines.

The third circuit adopted a similar ap-

proach in United States v. Molt, 631 F.2d

258 (3d Cir.1980). In Molt, the defendant

was tried before several judges on different

indictments, two judges made decisions on

pretrial motions, decisions which the

government and the defense agreed were

binding as to all of the indictments. One

judge handled a suppression motion, while

the second judge handled Molt’s challenge

to the constitutionality of the statute under

which he was-charged. On appeal, Molt

argued that t peedy Trial Act allowed

only a total ef thirty days “under advise-

ment” for both judges and both motions.

In rejecting this contention, the third cir-

cuit stated:

Such a narrow construction is not re

quired by the language of the Act, nor is

it consistent with the Act’s intent. It is

unlikely that a complex case like this,

with motions affecting the disposition of

multiple indictments being heard sepa-

rately by different judges, was envisioned

by the drafters. Although the Act is

meant to speed prosecutions, it is not

intended to ensnare trial judges. To al-

low only one exclusion would have that

effect, for if only [one judge's] advise-

ment period is excluded, then no time is

allowed [the other judge]. First, this

forces judges to race to decisions.

Second, because one judge may not be

aware of the action of the other, neither

may even know that the time for consid-

ee

oe +e oeewennes

|

UNITED STATES v. MERS_ . 2151

eration of the motion has been preempted

by the other judge. A single judge hear-

ing two motions is aware of the limits

and can plan accordingly. Where two or

more judges are hearing separate motions

affecting a single case, each should have

the same opportunity to bring his sched-

ule into conformity with the Speedy Trial

Act.

Id. at 261-62 (emphasis in original).

As a practical matter, allowing only a

thirty day period within which both magis-

trate and judge can consider a motion

might well unfairly limit full consideration

of important and complex pretrial motions.

The magistrate must review all transcripts

of evidentiary hearings as well as counsel's

briefs before determining the outcome of a

motion. He must then articulate, in writ-

ing, findings of fact and conclusions of law.

After the magistrate files his report, the

parties have ten days within which to file

objections. 28 U.S.C. § 686(hX1)5 The

district court then must conduct an inde-

pendent review and dispose of the motion.

We decline to adopt # mechanical rule that

all of this must be accomplished within thir-

15. We need not decide whether this ten days

may properly be excluded under other sections

of the Speedy Trial Act.

16. We do not wish to Suggest that magistrates

and district courts should, as a matter of

course, routinely take motions under advise.

ment for the maximum permissible period:

the designation of magistrates to hear pre

trial matters should not become a justifica-

tion for prolonging the pretrial stage. Magis-

trates should normally be expected to render

their determinations, Proposed findings, and

recommendations sufficiently Promptly so

that the judge has adequate time to consider

the matter without Causing the total time a

matter is “under advisement” to exceed thir-

ty days. A district judge referring a matter

to @ magistrate should continue to maintain

control over the case during the period of

“Sai eee tum eag Sn

ty days. Such a rule is not required by the

Speedy Trial Act. Rather, we agree with

the Judicial Guidelines that the magistrate

and the district court have thirty days each

during which to take pretrial motions under

advisement. Here, the magistrate conduct-

ed the suppression hearing on April 22 and

issued his report and recommendation on

May 18. That span of twenty-six days dur-

ing which he had the motions under advise

ment was less than the thirty to which he

was entitled.'*

(10) Appellants’ second ground for ar-

guing that the district court was not enti-

tled to a thirty day under advisement peri-

od is that, because they had not objected to

the magistrate’s report and recommenda-

tion, there was nothing for the district

court to take under advisement. They base

this argument in part on a local rule of

court which provides that absent objection,

a magistrate’s report and recommendation

becomes the order of the court. The magis-

trate’s report, however, cannot automatical-

ly become the order of the court merely

because none of the parties object.” The

appellants’ argument misunderstands the

consideration by the magistrate, so that the

Purposes of the act will be accomplished.

Judicial Guidelines at 42.

17. The record Suggests, how ever, that the oper-

ation of the local rule is far from automatic:

MR. PASHLEY: | would point out that that

Particular report which was an order and a

report became the order of the Court because

there were no objections filed thereto. In

other words, if a [report and recommenda-

tion) from the magistrate is, in fact, sent on

to the Court and there are no objections

thereto, the local rule is it becomes the order

of the Court within 10 days.

THE COURT: Not necessarily. I suppose

more often than not I do adopt the magis-

trate’s report, but I have on occasion not

adopted one even when there has been no

objection to it.

TP Vv,

+*. .

tow ee

~ ie”

" Sa

— +2 a

2152 UNITED STATES v. MERS

role of the magistrate under the Federal

Magistrates Act. Magistrates are not Arti-

cle III judges; their jurisdiction is derived

from the Magistrate’s Act. That Act pro-

vides that a federal judge may reject, in

whole or in part, the findings of the magis-

trate. 28 U.S.C. § 636(bX1). The statute

does not limit the court’s power to reject

only those reports to which objections are

made, and no local rule may alter a district

court’s scope of jurisdiction.

Regardless of the likelihood that a court

will accept or reject a particular magis-

trate’s report, the court’s power to do so

cannot be questioned: In the present case,

the district judge had to rule on the mo-

tions. For example, the court might well

have remanded to the magistrate with in-

structions to determine whether a fourth

amendment violation (alleged by appel-

lants) may have indirectly resulted in taint-

ed evidence that ought not be admitted into

evidence. Further, one pretrial motion was

not moot; the magistrate deferred this mo-

tion to the district judge for consideration.

The court could have required a hearing on

that motion.

The district judge, in her order denying

appellants’ motion to dismiss for failure to

comply with the Speedy Trial Act, stated

unmistakably that “during this period of

time [between submission of the magis-

trate’s report and recommendation and the

court’s adoption of the report] the Magis-

trate’s Report was under advisement. Thir-

ty days of this period is excluded in comput-

ing the time within which the trial must

commence. See 18 U.S.C. § 3161(hX1XJ).”

The legitimacy of the thirty day exclusion is

in no way negated by the fact that the

court did eventually adopt the recommenda-

tions of the magistrate. The district judge

had several motions to review and resolve,

and we decline to inquire whether that

process should have taken her the full thir-

ty days. See Frase, supra, at 694 (“Of

course, the’ judge himself will determine

whether the period of delay meets this defi-

nition and there is nothing to prevent

judges from routinely taking all motions

‘under advisement’ for the maximum of 30

days”).

(11,12) Appellants stress the statutory

language of section 3161(hX1)J) that the

court must have the pretrial motions “actu-

ally under advisement” before the time is

deemed excludable. From this language

they argue that unless the district judge

can demonstrate that she was actually re-

viewing a particular matter and can show

the precise amount of time she spent on this

review, then the time is not excludable; to

be excludable under section 3161(h)(1XJ),

the time must be reasonably attributable to

the decisionmaking process. Such an ap-

proach would require appellate courts to

evaluate the relative merit of pretrial mo-

tions to determine how much “advisement”

was appropriate by the district court. Ap-

pellants apparently would require the dis-

trict court to keep a daily log to keep

account of the amount of time spent on

each pretrial motion. We cannot read this

much into the words “actually under advise-

ment.” While the section does require that

the under advisement period be reasonable,

we leave determination of the reasonable-

ness issue to the sound discretion of the

trial judge.

The section cannot mean that the district

judge must demonstrate that she was actu-

ally considering the matter on every exclud-

able day. Rather, the provision envisions

excludable time as being that time, prior to

disposition, during which the court has the

matter under advisement or thirty days,

whichever is less. Thus, if a court renders

— (Nn a

—_-—-—ae

UNITED STATES v. MERS . 2153

its decision on the tenth day after its sub-

mission, then the matter is deemed under

“actual advisement” for ten days and that

the court can only exclude ten days, not

thirty days. The thirty day under advise-

ment exclusion, like the other exclusions in

section 3161, is automatic. United States v.

Stafford, 697 F.2d 1368, at pp. 1371-72

(11th Cir.1983). The Senate Judiciary Com-

mittee’s Report recommended that the 1979

amendments “leave intact” the “automatic

application of exclusions as provided in ex-

isting law.” Specifically, the Report noted

that section 3161(hX1) “currently provides

that periods of delay consumed by the fol-

lowing are to be automatically excluded:

... Periods when [hearings on pretrial mo-

tions] are under advisement by the court.”

1979 Senate Report at 33, excerpted in Leg-

islative History at 113-114. Accord Staf-

ford, at 1371-72 (Concluding that the lan-

guage of Section 3161(h) “clearly indicates”

that each excludable period listed in the

section “automatically is a period of delay”

and “holding that Section 3161(h) creates

automatic exclusion ..."); United States v.

Fogarty, 692 F.2d 542, 545 (8th Cir.1982)

(“{sJection 3161(hX1XF) clearly requires au-

tomatic exclusion of the sixty-one days dur-

ing which such pretrial motions were con-

18. It was not the intent of the Committee in

adopting this amendment to give a blanket

exception to matters under advisement for

the time excluded must be “reasonably at-

tributable” and the matter must be “actually

under advisement.” Therefore the judge

must be actually considering the question, for

example, conducting the research on a novel

- legal question.

S.Rep. No. 1021, 93d Cong., 2d Sess. 36 (1974)

excerpted in Legislative History at 104. Simi-

larly, in 1979, the Senate Judiciary Committee

preparation through their disposition, should

be excluded, the Committee finds that ap

tinuously pending”); United States v. Brim,

630 F.2d at 1312-1313 (adopting the district

court's conclusion that “the Act intended

automatic exclusion”). But see S.Rep. No.

1021, 93d Cong., 2d Sess. 36 (1974) excerpted

in Legislative History at 104." For the Act

to work, the parties must know, as each day

passes, whether or not that day is excluda-

ble. We must “insure the ability of the

courts to administer the Act.” United

States v. Bufalino, 683 F.2d 6389, 646 (2d

Cir.1982), petition for cert. filed, —- U.S.

——, 103 S.Ct. 727, 74 L.Ed.2d —— (1982).

To hold that an appellate court must exam-

ine retroactively the amount of “advise-

ment” needed for a given pretrial motion

would inject a dangerous element of uncer-

tainty into the statutory scheme. Accord

Stafford, at 1371.

According to our calculations, appellants

were brought to trial within the seventy

days net time allowed by the Speedy Trial

Act. Trial began 156 days after arraign-

ment. Ninety-seven days were properly ex-

cluded: forty-one days for pretrial motions

practice (including eight days falling within

the initial thirty day period following ar-

raignment), twenty-six days during which

the magistrate had the motions under ad-

visement and thirty days during which the

proach unreasonable. This is primarily be-

cause, in routine cases, preparation time

should not be excluded where the questions

of law are not novel and the issues of fact

simple. However, the Committee would per-

mit through its amendments to subsection

(hX8)(B) reasonable preparation time for pre-

trial motions in cases presenting novel ques-

tions of law or complex facts. We suggest

caution by courts in granting “ends of jus-

tice” continuances pursuant to this section,

primarily because it will be quite difficult to

determine a point at which preparation actu-

ally begins.

1979 Senate Report at 33-34, excerpted in Leg-

islative History, at 114.

oe

egy goth

+ 9's.

he, r

|

P

. +

ss

eas]

- 4 “ms -- si

heme ee ae te elt Thee on =

district court had the motions under advise-

ment.

(3)

Other Arguments on Appeal

[13] Appellants raise several issues

which need not detain us long. First, we

find that the district court did not violate

either Federal Rule of Evidence

801(dX2XE) or United States v. James, 590

F.2d 575 (5th Cir.), cert. denied, 442 U.S.

917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), in

admitting into evidence certain statements

made by coconspirator Lester Mers. The

government met the James requirement

that such statements are admissible only if

there is “substantial independent evidence”

of a conspiracy. Id. at 581 (emphasis omit-

ted). Our earlier recitation of the facts

shows that Ferrante and Myers were acting

in concert with Lester Mers. Ferrante and

Myers, who were both armed at the time,

monitored the transfer of the marijuana-

laden trucks from Lester Mers to the under-

cover DEA agents; they began following

the truck until Lester Mers ordered them to

follow him instead; they then complied

with Mers’ directive and followed him to

the restaurant where Herman Mers was

waiting. Similarly, this evidence, combined

with other testimony by DEA agents, was

sufficient to support Ferrante’s and Myers’

convictions for conspiracy and aiding and

abetting.

[14] Secondly, the trial court did not

abuse its discretion in denying Lester Mers

a jury instruction on the entrapment de-

ense. A defendant cannot avail himself of

an entrapment defense unless the initiator

of his criminal activity is acting as an agent

UNITED STATES v. MERS

(. the government. United States v. Noll,

600 F.2d 1123, 1129 (5th Cir.1979); United

States v. Garcia, 546 F.2d 613, 615 (5th Cir.),

cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51

L.Ed.2d 810 (1977). Lester Mers never

dealt with or even met Fiori, the govern-

ment’s informant. Any inducements to

Lester Mers to traffic in drugs came from

Herman Mers, a private citizen. While Les-

ter Mers’ vicarious entrapment theory is

ingenious, it is not the law.

[15] Thirdly, Lester Mers argues that

when the government arranges to provide

the drugs to a subject and also arranges for

another government agent to purchase the

drugs, then the government has achieved a

“full circle” transaction that violates a de-

fendant's due process rights. The facts of

this case, however, do not suggest a full~ir-

cle transaction. The defendants stipulated

ut trial that no DEA agent supplied mari-

juana to Fiori or to the Mers. There also

was no evidence that Fiori supplied the

marijuana.

{16} Fourthly, Herman and Lester Mers

argue that their due process rights under

Brady v. Maryland, 373 U.S. 88, 88 S.Ct.

1194, 10 L.Ed.2d 215 (1963) were violated by

the government's refusal to disclose Fiori's

arrest record and withholding of material

relating to the existence of any remunera-

live agreement between Fiori and the

government. Defendants offered no theory

of how such material could have been rele-

vant, admissible evidence. Because Fiori

was not called as a witness, appellants’ ar-

guments based on Federal Rules of Evi-

dence 608, 609 and 404(b) are inapposite.:

AFFIRMED.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

fia. 3m. - ate

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

HERMAN MERS AND LESTER MERS,

Petitioners

versus

UNITED STATES OF AMERICA

Respondent

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioners, Herman Mers and Lester Mers,

respectfully pray for leave to file the attached Petition for

Writ of Certiorari without prepayment of costs and to proceed

in forma pauperis pursuant to Rule 46 of the Supreme Court of,

the United States. This motion is made pursuant to 28

U.S.C., §1915 and 18 U.S.C., §3006A(d) (6).

In support of this motion, Petitioner shows the

following:

‘2 | a

(1) Petitioners were appointed counsel in this

case by a United States Magistrate for the Northern District

of Georgia pursuant to 18 U.S.C., §3006A;

(2) Petitioners were permitted to proceed in forma

pauperis in this cause by both the United States District

Court for the Northern District of Georgia and the United

States Court of Appeals for the Eleventh Circuit.

(3) Petitioners remain indigent and have indicated

their desire that a Petition for Writ of Certiorari be

filed.

Respectfully submitted,

Fae ge fs

Robert Altman by Mian

W/, Vc tpt te TAAL ZAD

Michael K. McIntyre/ /

Attorneys for Petitioner

Federal Defender Program, Inc.

Suite 3612

101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530