Petition for Writ of Certiorari — Long v. United States

re

o

No.

ne

—

Supreme Court of the United States

October Term, 1985

—

THOMAS PAUL LONG,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

a

—

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

—— —

——a

Rosert J. Roratort, Counsel of Record

Susan L. GRAGEL

RosBert A. RANALLO

Gotp, Rotarorr, Schwartz & GIBBONS

Co., L.P.A.

1100 Ohio Savings Plaza

Cleveland, Ohio 44114

(216) 696-6122

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

mes

QUESTIONS PRESENTED

1. In a criminal tax prosecution, where the defendant

asserted good faith reliance on the advice of an accountant

and bookkeeper, did the multiple, conflicting representa-

tion of the defendant, bookkeeper and accountant by de-

fense counsel] prejudicially deprive the defendant of his

right to effective assistance of counsel under the Sixth

Amendment to the United States Constitution?

2. Does the Sixth Amendment to the United States

Constitution prohibit the multiple, conflicting representa-

tion of the defendant, and his accountant and bookkeeper

in a criminal tax prosecution where the defendant as-

serted good faith reliance un the advice of his bookkeeper

and accountant as a defense?

3. Did the district court’s failure to conduct an ade-

quate inquiry into the conflict of interest arising from

defense counsel’s joint representation of the defendant

and his accountant and bookkeeper, and failure to in-

dependently advise defendant of the ramifications of the

conflict of interest before trial, deprive defendant of his

right to effective assistance of counsel under the Sixth

Amendment to the United States Constitution?

Questions Presented

Opinions Below -

Statement of Jurisdiction ......

II

TABLE OF CONTENTS

Constitutional Provision Involved .2..............eeccccceeeeeee

Statement of the Case

52 Wp

Reasons for Allowing the Writ

Events Leading to Indictment ..........................

Conflicting Representation by Counsel ............

Proceedings Before the District Court ............

Prejudicial Effects of Defense Counsel’s

Joint Representation .

A. The Decision of the Sixth Circuit Is in Direct

C.

Come ....1nstiine

Conflict With the Sixth Amendment and With

Prior Decisions of This Court .......

This Case Presents Ideal Facts and Circum-

stances Under Which This Court Can Consider

and Define the Situations and Manner in

Which Defense Counsel May or May Not Un-

dertake Representation of Persons With Po-

tentially Conflicting 'nterests 2.0...

This Case Presents an Excellent Basis for

Clarification by This Court of the District

Court’s Obligation to Insure That a Defendant

Has Full and Complete Understanding About

the Ramifications of His Attorney’s Repre-

sentation of Clients With Conflicting Interests

BeB ere TGR csncccccsrsesessecsnsemesinevescsnsenecesssnentinnnennian

12

Appendix:

Order of the United States Court of Appeals for

the Sixth Circuit (September 24, 1985) ................ Al

Judgment Entry of the United States District Court

IT MN IIIT eh ical ceeineehinicpetineiebichaenbabtcoehecetinenseonentioce A2

Judgment of Conviction and Sentencing Order of

the United States District Court (July 27,

UTI.” siabieteiidsssiseapeensntehebieibiahasininnepnnanndhbessnsensuinenanssnndsinen A4

Judgment and Commitment Order of the United

States District Court (July 27, 1984) ................. AT

Excerpts of Transcript ............................... .. Al0

TABLE OF AUTHORITIES

Cases

Argensinget v. Hamlin, 407 U.S. 25, 29-33 (1972) ........ 9

Chapman v. California, 386 U.S. 18, 23 (1967) ............ 9

Cuyler v. Sullivan, 446 U.S. 335, 355 (1980) —.......... 9, 10, 12

Glasser v. United States, 315 U.S. 60, 75 (1942) ........... 10, 16

Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978)

Mack v. United States, 635 F.2d 20 (1st Cir. 1980) ... 16

Thacker v. Bordenkircher, 590 F.2d 640 (6th Cir.

SE sissies ah daceneahidetietiereenenppessandaniarnningienanetnaivelamibattenainn 10

United States v. Agosto, 675 F.2d 965 (8th Cir. 1982)

sinpistpeneieledasiaabiddaniicieinaned .-e10, 11, 12

United States v. Duklewski, 567 F.2d 255 (4th Cir.

I Sai ia aiaeiniteinpathearplltineiapeiattahenetinianniaaaniminnone 16

United States v. Jeffers, 520 F.2d 1256, 1265-65 (7th

Cir. 1975), cert. denied, 423 U.S. 1066 (1976) ........ 11

‘Wv

United States v. Martinez, 630 F.2d 361 (5th Cir. 1980),

cert. denied, 450 U.S. 922 (1981) encccc-----sscoooee--sensee 11

United States v. Warledo, 557 F.2d 721 (10th Cir. 1977) 16

Constitution

United States Constitution, Sixth Amendment ........2, 9, 11,

12,17

No.

Supreme Court of the United States

October Term, 1985

THOMAS PAUL LONG,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Ap-

peals for the Sixth Circuit affirming petitioner’s conviction

for criminal tax violations under 26 U.S.C. Sections 7201

and 7206(1) on grounds that he was absolutely deprived

of the effective assistance of counsel where his attorney

jointly represented petitioner and his accountant and

bookkeeper (in a case in which the petitioner asserted as

a defense good faith reliance on the actions of the ac-

countant and bookkeeper) and where the district court con-

ducted virtually no independent inquiry into the extent

of the conflict of interest and iwok no action to indepen-

dently insure that petitioner understood the ramifications

of the conflict of interest.

OPINIONS BELOW

The Opinion of the Court of Appeals is not reported

but is printed in the Appendix hereto; p. Al. The

judgment of the district court is not reported, but is printed

in the Appendix hereto at pp. A2-A7.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on September 24, 1985. Jurisdiction of this Court is in-

voked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial 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 in-

formed 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.

STATEMENT OF THE CASE

A. Events Leading to Indictment

Petitioner is the former president and sole shareholder

of Long Cuemical Company. That business was formed

as a sole proprietorship in 1968 and incorporated in the mid-

1970's.

Petitioner also owned other sole proprietorships. Two

of these proprietorships leased motor vehicles and real

estate to Long Chemical Company. Petitioner received

rent from Long Chemical Company for use of the vehicles

and properties.

Long Chemical Company employed a bookkeeper, Ma-

tilda Montoni, for 11 years until late 1981. Bookkeeper

Montoni's duties included exclusive responsibility for the

recording of purchase orders, sales and invoices on Long

Chemical Company’s financial records. Bookkeeper Mon-

toni also bore sole responsibility for maintaining Long

Chemical Company’s accounts receivable ledger, sales

journals, bank records, invoices, purchase orders and other

records.

Petitioner placed singular reliance on Bookkeeper Mon-

toni. She was petitioner’s “right hand gal”. Because peti-

tioner travelled frequently and worked, at most, one day

per week in the Long Chemical Company office, he re-

lied primarily on Bookkeeper Montoni for maintenance of

accurate financial records.

Long Chemical Company and petitioner also employed

a certified public accountant, Harold Martin. Accountant

Martin prepared Long Chemical Company’s corporate in-

come tax returns. He also prepared petitioner’s personal

income tax returns. Accountant Martin entered Long

Chemical Company’s offices at the end of each month,

reviewed the corporation’s financial records and prepared

monthly financial statements from the information pro-

vided to him by Bookkeeper Montoni. Petitioner expressly

instructed Bookkeeper Montoni to provide Accountant Mar-

tin with everything needed to prepare accurate financial

reports.

4

Petitioner relied solely on Bookkeeper Montoni and

Accountant Martin to (.) compute his annual salary from

Long Chemical Company and (b) calculate the rental

income due from Long Chemical Company to petitioner’s

sole proprietorships for use of the leased vehicles and real

estate. Petitioner never received regular salary payments

from Long Chemical Company. Instead, he periodically

used corporate funds to pay his expenditures, reported

this use to Bookkeeper Montoni and Accountant Martin,

and relied on Bookkeeper Montoni and Accountant Martin

to record these uses of funds in 4 “draw account” that had

been established on the corporave records by Accountant

Martin.

At some point, Bookkeeper Montoni and Accountant

Martin breached their obligations to petitioner and Long

Chemical Company. Without petitioner’s knowledge, Book-

keeper Montoni began withholding some invoices from the

corporation's financial records and recorded them, instead,

on her personal steno pad. Although Bookkeeper Montoni

mentioned the unrecorded invoices to Accountant Martin,

the accountant inexplicably failed to include them when

preparing the income tax returns for Long Chemical Com-

pany and petitioner.

B. Conflicting Representation by Counsel

In February, 1980, the Internal Revenue Service an-

nounced an audit of Long Chemical Company for fiscal

years 1977-79. Accountant Martin submitted a power of

attorney to the LRS., authorizing his actions on Long

Chemical Company’s behalf.

Accountant Martin and Bookkeeper Montoni met with

LR.S. agents but failed to disclose that selected invoices

had been withheld by them from the corporation's finan-

cial records and tax returns. After independently de-

termining that invoices had been unrecorded and unre-

ported, the L.R.S. transferred the case to the L.R.S. Crim-

inal Investigation Division. Petitioner retained defense

counsel John Kennedy Lynch to represent him and Long

Chemical Company in the investigation.

Although petitioner consistently asserted that he knew

nothing about the unreported invoices and that the un-

reporting had been done, without authorization, by Book-

keeper Montoni and Accountant Martin, Defense Counsel

deliberately undertook simultaneous representation of the

three individuals in the investigation. For example, De-

fense Counsel represented Bookkeeper Montoni when she

provided the I.R.S. with a sworn statement. In this state-

ment, Bookkeeper Montoni testified that petitioner knew

nothing about the unreported invoices.

Defense Counsel also represented Accountant Martin

during all pretrial proceedings, despite the fact that the

Government had notified Accountant Martin that he was

a potential target of the investigation. Defense Counsel

represented Accountant Martin when he provided sworn

statements to the LR.S. and in pretrial conferences with

the prosecutor.

C. Proceedings Before the District Court

Immediately before trial, the prosecutor raised De-

fense Counsel’s obvious conflict of interests with the dis-

trict court. The prosecutor explained that Accountant

Martin would be called as a primary Government witness

and asked questions which would elicit testimony damag-

ing to petitioner. The prosecutor asserted that Defense

Counsel would be unable to conduct a vigorous cross-

examination of Accountant Martin because of the dual

6

representation. According to the prosecutor, Defense

Counsel would be required to choose between his two

clients in propounding questions that would assist peti-

tioner’s defense, impeach Accountant Martin (a potential

target in a future prosecution), or vice versa (Tr. 3-5; Ap-

pendix at pp. Al0-A12).

After the district court heard the prosecutor’s ex-

planation of Defense Counsel’s conflicting representation

of petitioner, Accountant Martin and Bookkeeper Montoni,

the court asked petitioner if he understood the conflict

(Tr. 7; Appendix at p. Al3). Before petitioner could

respond or question the district court, the court resumed

its statement and simply explained that it wanted to call

the matter to petitioner’s attention. The district court

engaged in no dialogue with petitioner to explore his

understanding and knowledge of the issues raised by

Defense Counsel’s overlapping representation.’ Indeed, the

district court heard only one response to the question of

petitioner’s understanding of the conflict problem. Peti-

tioner responded: “I think so, but I will do whatever

[Defense Counsel] Lynch tells me to do.” (Tr. 6-8; Ap-

pendix at pp. Al2-A14).

1. During the conflict “hearing” the district court (a)

never inquired about the theory of petitioner’s defense, (b)

never discussed how petitioner’s defense, based upon reliance

on the accountant, would be hampered by defense counsel’s

multiple representation, (c) failed to inquire about other con-

flicts of interest, such as defense counsel’s simultaneous repre-

sentation of Bookkeeper Montoni; (d) failed to discuss the

fact that Accountant Martin, the key prosecution witness, would

be also used as an “expert” witness for petitioner; (e) failed

to insure that petitioner understood the problem concerning pay-

ment of fees by Accountant Martin to defense counsel; (f)

never informed petitioner that his “reliance on the accountant”

defense would be seriously, if not fatally, damaged by defense

counsel’s conflicting role; (g) declined to inform petitioner that

his attorney would be hampered in his effective cross-examina-

tion of key prosecution witnesses and, (h) neglected to determine

if defense counsel represented Accountant Martin in other mat-

ters.

7

Rather than engaging in a thorough colloquy with

petitioner about his right to effective assistance of counsel,

the district court simply called a recess and instructed

Defense Counsel to explain the “difficulties” to petitioner.

The district court impermissibly delegated its supervisory

role to the attorney at the very center of the conflict,

depriving petitioner of his fundamental rights.

After the recess, Defense Counsel informed the district

court that he would no longer represent Accountant

Martin. Although Accountant Martin did not retain suc-

cessor counsel for the immediately ensuing trial, Defense

Counsel briefl:; announced that the “current possible con-

flict” had been eliminated.

D. Prejudicial Effects of Defense Counsel’s Joint

Representation

At trial, Bookkeeper Montoni completely reversed her

earlier statement under oath to the I.R.S. While Book-

keeper I ‘ontoni initially testified that petitioner knew

nothing about the unreported invoices before the I.R.S.,

she testified at trial that petitioner knew about the un-

reporting.

Because Defense Counsel simultaneously represented

petitioner and Bookkeeper Montoni, he conducted no mean-

ingful cross-examination or impeachment of the book-

keeper during petitioner’s trial. Obviously blocked by his

duty to represent Bookkeeper Montoni and to refrain from

divulging attorney-client confidences, Defense Counsel

failed to examine Bookkeeper Montoni in detail at trial

about potential reasons for the recanting of her prior

sworn statements.

Moreover, Defense Counsel conducted no examination

of Bookkeeper Montoni that could have conceivably elic-

ited testimony to support petitioner’s defense—that he

was unfamiliar with accounting procedures, and relied

solely on Bookkeeper Montoni and Accountant Martin to

handle his personal and corporate financial affairs. De-

fense Counsel did not question Bookkeeper Monton, at all

about the paramount role that Accountant Martin played

in the financial operations.

The conflicts of interest of Defense Counsel became

equally apparent in his cross-examination of Accountant

Martin at trial. In an effort to protect his client, Accoun-

tant Martin, who had been notified that he was a potential

target of a criminal prosecution, Defense Counsel:

1. Failed to ask Accountant Martin about the reasons

that he had never journalized the unreported in-

voices after being informed of their existence by

Bookkeeper Montoni.

2. Did not ask Accountant Martin why he refrained

from reporting the invoices on the corporate and

personal tax returns after being informed of their

existence;

3. Declined to develop the reasons for the filing of

the amended tax returns;

4. Failed to ask Accountant Martin about reasons

for his failure to disclose the unreported invoices

to the IRS during the preliminary phases of the

audit; and

5. Declined to question Accountant Martin about the

extent of petitioner’s reliance on his advice and

services.

The reasons for Defense Counsel’s superficial and

hesitant cross-examination of Accountant Martin and

Bookkeeper Montoni can only be attributed to Defense

9

Counsel’s belief that he needed to protect each of his three

clients, despite their conflicting interests. Had Defense

Counsel vigorously examined his clients, Accountant Mar-

tin and Bookkeeper Montoni (who served as the key pros-

ecution witnesses), the verdict would in all likelihood have

been different. The jury would have had sufficient evi-

dence to believe that petitioner relied in good faith on

his financial advisors and had not knowingly violated the

tax statutes. Because Defense Counsel failed to elicit the

testimony that petitioner’s defense required, petitioner’s

rights to a fair trial were completely circumvented.

REASONS FOR ALLOWING THE WRIT

A. THE DECISION OF THE SIXTH CIRCUIT IS IN

DIRECT CONFLICT WITH THE SIXTH AMEND-

MENT AND WITH PRIOR DECISIONS OF THIS

COURT.

This Court has consistently required sweeping adher-

ence to a criminal defendant’s Sixth Amendment right

to effective assistance of counsel, unhampered by conflicts

of interest. E.g., Argensinger v. Hamlin, 407 U.S. 25, 29-33

(1972); Chapman v. California, 386 US. 18, 23 (1967).

As interpreted by the Court, the Sixth Amendment not

only guarantees an accused counsel for his defense, but

also requires “the assistance of an attorney unhindered

by any conflict of interest.” Cuyler v. Sullivan, 446 U.S.

335, 355 (1980). Accord, Holloway v. Arkansas, 435 U.S.

475, 483 n.5 (1978).

The Court has explained:

[T]he assistance of counsel guaranteed by the Sixth

Amendment contemplates that such assistance be un-

10

tramelled and unimpaired by . . . one lawyer . . . simul-

taneously represent[ing] conflicting interests. Hollo-

way v. Arkansas, 435 U.S. 474, 483 (1980), quoting,

Glasser v. United States, '315 U.S. 60, 75 (1942).

Recognizing the importance of effective assistance of

counsel without conflicting interests, the Court has ruled

that prejudice must be presumed and convictions auto-

matically reversed if an actual conflict of interest existed

at trial. Holloway v. Arkansas, supra. Cuyler v. Sullivan,

supra. Accord, Thacker v. Bordenkircher, 590 F.2d 640

(6th Cir. 1979).

Canon 4 of the Code of Professional Responsibility

compels an attorney to preserve the confidences and com-

munications of each of his clients. Canon 5 of the Code

of Professional Responsibility requires an attorney to exer-

cise independent professional judgment on behalf of each

of his separate clients. These ethical obligations become

insurmountable obstacles to effective representation when

an attorney wrongly engages in an effort to jointly repre-

sent clients with competing interests.

As the Eighth Circuit recognized in United States v.

Agosto, 675 F.2d 965 (8th Cir. 1982), an absolute conflict

of interest arises when an attorney attempts to represent

clients with adverse interests. An attorney who has ob-

tained privileged information from one client may (a)

be tempted to use that privileged information to impeach

one client in the defense of another client or (b) fail to

conduct rigorous cross-examination of one client to the

prejudice of another out of fear of misusing confidential

information. United States v. Agosto, 675 F.2d at 971.

No matter which option the attorney attempts to take,

rights are compromised and ethical standards are violated.

The attorney becomes trapped by conflicting obligations

11

and, as a matter of law, fails to adequately represent his

client who is on trial. United States v. Agosto, supra.

See also, United States v. Jeffers, 520 F.2d 1256, 1264-65

(7th Cir. 1975), cert. denied, 423 U.S. 1066 (1976).

In this case, the Sixth Circuit faced an actual conflict

of interest by Defense Counsel in his multiple, joint repre-

sentation of petitioner, Accountant Martin, and Book-

keeper Montoni. The fact that this simultaneous repre-

sentation occurred was not disputed.

The prejudice ensuing from Defense Counsel’s over-

whelming conflict of interest was also beyond question.?

After all, the record disclosed that Defense Counsel en-

gaged in no effort to attack the credibility of his former

clients, Bookkeeper Montoni and Accountant Martin, when

they, for the first time, gave damaging testimony against

Petitioner. Defense Counsel made no attempt to support

petitioner’s defense that he had relied in good faith on

Bookkeeper Montoni and Accountant Martin during de-

fense counsel’s examination of his two former clients.

Notwithstanding the egregious conflict of interest and

the scant efforts of the district court to insure Petitioner’s

understanding of the conflict, the Sixth Circuit affirmed

Petitioner’s conviction. The Sixth Circuit’s decision ig-

nored the important rights of Petitioner to effective as-

sistance of coursel and this Court’s consistent pronounce-

ment that conflicts of interest must be scrupulously avoided

and prevented in criminal prosecutions.

Instead of adhering to the established rule that the

Sixth Amendment compels conflict-free, adequate repre-

2. See United States v. Martinez, 630 F.2d 361 (5th Cir.

1980), cert. denied, 450 U.S. 922 (1981) (defense counsel’s failure

to vigorously cross-examine a former client during defendant’s

trial compelled reversal of conviction).

12

sentation of an accused by counsel, the Sixth Circuit chose

to ignore both the blatant conflicts of interest demon-

strated before and during trial and the principles estab-

lished by this Court. The Sixth Circuit has effectively

encouraged representation of conflicting interests by de-

fense counsel and applauded minimal, cursory review of

conflict situations by the district courts. The decision by

the Sixth Circuit, unless reviewed and reversed by this

Court upon certiorari, will have disastrous consequences

for criminal defendants in all types of prosecutions, within

the Circuit.

B. THIS CASE PRESENTS IDEAL FACTS AND

CIRCUMSTANCES UNDER WHICH THIS COURT

CAN CONSIDER AND DEFINE THE SITUA-

TIONS AND MANNER IN WHICH DEFENSE

COUNSEL MAY OR MAY NOT UNDERTAKE

REPRESENTATION OF PERSONS WITH PO-

TENTIALLY CONFLICTING INTERESTS.

As discussed above, Canons Four and Five of the Code

of Professional Responsibility prohibit attorneys from dis-

closing their clients’ confidences and from exercising any-

thing except independent professional judgment on behalf

of each individual client. See United States v. Agosto,

supra. The Sixth Amendment absolutely guarantees crim-

inal defendants the right to the effective assistance by an

attorney who is unimpeded by the conflicting representa-

tion of other individuals, Holloway v. Arkansas, supra; Cuy-

ler v. Sullivan, supra,

In the face of these ethical obligations and constitu-

tional mandates, defense attorneys are frequently called

upon to represent high-ranking corporate officials and

lower echelon corporate employees in criminal investi-

gations. Defense attorneys are retained during the early

13

stages of criminal investigations to represent the corpora-

tion and its officers, agents and employees before gov-

ernment agents, administrative agencies and grand juries.

On some occasions, defense counsel is unable to

ascertain whether a conflict of interest arises from the

dual representation of a corporate officer and lower-ranking

subordinates. The focus of the Government’s investigation

may be so unclear in the early phases of a prosecution

tuat defense counsel is unable to conduct a thorough in-

vestigation and examination of the existence of conflicting

interests. During the early stages of a criminal tax or

other prosecution, the Government may be unable or un-

willing to name the targets of the investigation, thus ham-

pering a defense attorney’s efforts to ascertain whether

or not he is prohibited from engaging in representation of

multiple employees because of conflicting interests.

In some prosecutions, a defense counsel may be able

to ethically and adequately represent multiple employees,

i.e. where none of the employees had culpable knowledge

or participation in the alleged criminal acts or where

all of the represented employees hold consistent defenses

and interests. In other cases, such as the one at hand,

defense counsel cannot engage in multiple representation

of corporate employees, officers and agents because each

of his “clients” assert conflicting defenses, knowledge,

participation, and the like.

What steps should defense counsel follow to insure

that he is not representing clients with potentially con-

flicting interests in the early phases of corporate criminal

investigations? How should a defense attorney advise

high-ranking corporate officers and lower-level employees

about potential conflicts of interest? Should separate at-

torneys be engaged for each and every corporate officer,

14

agent and employee in all criminal investigations and prose-

cutions or can multiple representation by a single attorney

be undertaken under some circumstances?

The Court has never directly addressed these types

of questions about conflicts of interests arising in the

corporate and business environment during criminal in-

vestigations. This case, which involves the clearly pro-

hibited representation of individuals with competing in-

terests by a single attorney, provides an ideal framework

for answering many of the questions that arise about mul-

tiple representation.

The Government has placed increasing emphasis on

the prosecution of white-collar, economic and corporate

crimes, i.e. money-laundering, antitrust, securities and

banking fraud, income tax violations, corporate racke-

teering. With the increasing number of prosecutions

against corporations and individual corporate officers,

more and more attorneys will find themselves in the

situation faced by Defense Counsel in this case.

The defense bar, district courts, prosecutors, and the

business community require clear guidance from this Court

about the circumstances under which representation of

multiple corporate employees can and cannot be undertaken

by a single attorney. The Court should issue a writ of

certiorari in this case to provide this guidance. Reasoned

analysis by the Court of the multiple representation under-

taken by Defense Counsel (and its effects on petitioner’s

ultimate trial and conviction) will establish limitations

and parameters for multiple representation in all future

proceedings.

15

C. THIS CASE PRESENTS AN EXCELLENT BASIS

FOR CLARIFICATION BY THIS COURT OF THE

DISTRICT COURT’S OBLIGATION TO INSURE

THAT A DEFENDANT HAS FULL AND COM-

PLETE UNDERSTANDING ABOUT THE RAMI-

FICATIONS OF HIS ATTORNEY’S REPRESEN.

TATION OF CLIENTS WITH CONFLICTING IN-

TERESTS BEFORE TRIAL.

Before trial in this case, counsel for the Government

informed the district court that Defense Counsel had repre-

sented the petitioner’s bookkeeper and accountant during

the pretrial proceedings and that this multiple representa-

tion would undoubtedly impede defense counsel’s adequate

representation of petitioner at trial. Despite this plain

delineation of the conflict problems, the district court

made no significant effort to explain the problems to peti-

tioner or to ascertain petitioner’s understanding of his

rights and obligations. The district court took virtually

no action to guard petitioner against the effects of his

attorney’s egregious conflict of interests.

Before trial in this case, the district court: (1) made

general statements about Defense Counsel’s multiple repre-

sentation of three clients with competing interests; » (2)

failed to engage in any dialogue with petitioner to insure

petitioner’s understanding of the issue; (3) heard peti-

tioner say that he would “do whatever [Defense Counsel]

told him to do” about the conflict, and (4) relied on De-

fense Counsel, the person at the hub of the conflict, to

explain the significant legal questions to petitioner during

a court recess.

The district court is ultimately responsible for in-

suring that trial procedures are conducted fairly and

16

without prejudice to the rights of the accused or Govern-

ment. Glasser v. United States, supra. When accepting

waivers from a Defendant of any significant constitutional

right, the district court must independently ascertain,

through colloquy with the accused directly, that the accused

understands his rights and is willing to waive them vol-

untarily. See, e.g., United States v. Duklewski, 567 F.2d

255 (4th Cir. 1977) (district court must provide defendant

with sufficient — about counsel’s conflict of

interest to allow defendant to make an independent

waiver); Mack v. United States, 635 F.2d 20 (1st Cir. 1980)

(district court must engage in extensive interchange with

defendant before accepting a change of plea); United States

v. Warledo, 557 F.2d 721 (10th Cir. 1977) (district court

must sufficiently explore defendant’s right to proceed

to trial pro se before accepting waiver of right to counsel).

This Court has never defined the precise manrer in

which district courts must explore conflicts of interest,

explain the ramification of conflicts and the right to ef-

fective assistance of counsel to accused or insure that a

Defendant’s waiver of the right to effective counsel, in

the face of his attorney’s representation of conflicting in-

terests, is knowing and voluntarily waived. The Court

has never determined whether a district court is per-

mitted to delegate some, or all, of its obligation to inform

a defendant of the effects of a potential conflict of interest

to defense counsel. This case, presents an excellent op-

portunity to define the district court’s obligation in conflict

situations. Guidance from the Court is sorely needed

by the lower courts, defense attorneys and prosecutors in

all federal jurisdictions.

&

¥

— << 4

17

CONCLUSION

The Sixth Circuit’s decision in this case completely

evaded this Court’s prior interpretaticns of the Sixth

Amendment mandate that criminal defendants be afforded

the effective representation by counsel, free from hinder-

ing conflicts of imterest. The decision below sets an en-

tirely new and unconstitutional standard, permitting, with-

out any significant review by district court, multiple, con-

flicting representation by defense attorneys.

Additionally, this case raises significant issues of first

impression for this Court. With the increasing number of

“white collar” corporate criminal investigations, the Court

should define the circumstances and manner in which

a single defense attorney may or may not undertake mul-

tiple representation of corporate officers and lower-level

corporate officers, agents and employees. The Court should

also establish standards for the pretrial review of potential

and actual conflict situations by district courts. This case,

and the facts underlying it, provides an excellent vehicle

for this Court’s definition of much-needed standards for

the defense bar, prosecution and trial courts.

Accordingly, Petitioner prays that this Court grant

his Petition for Writ of Certiorari.

Respectfully submitted,

Rosert J. Rorarorr, Counsel of Record

Susan L. GRAGEL

Rosert A. RANALLO

Gotp, Rotator, Schwartz & Grssons

Co., L.P.A.

1100 Ohio Savings Plaza

Cleveland, Ohio 44114

(216) 696-6122

Counsel for Petitioner

Al

APPENDIX

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(Filed September 24, 1985)

No. 84-3713

UNITED STATES COURT OF APPEALS

For THe Srxtx Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

THOMAS PAUL LONG,

Defendant-Appellant.

ORDER

BEFORE: ENGEL and MILsurRN, Circuit Judges; WISEMAN,

District Judge.*

This cause having come on to be heard upon the record,

the briefs and the oral argument of the parties, and upon

due consideration therof,

The Court finds that no prejudicial error intervened

in the judgment and proceedings in the district court, and

it is therefore ORDERED that said judgment be, and it

hereby is, affirmed.

ENTERED BY ORDER OF THE

COURT

John P. Hehman, Clerk

/s/ Joun P. HEHMAN

*The Honorable Thomas A. Wisem Jr., United States

District Judge from the Middle District of sitting by

designation.

A2

JUDGMENT ENTRY OF THE UNITED STATES

DISTRICT COURT

(Filed May 16, 1984)

Case No. CR84-23

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

THOMAS PAUL LONG,

Defendant.

JUDGMENT ENTRY

The defendant, Thomas Paul Long, was indicted on

February 14, 1984, in two counts for violating 26 U.S.C.

§ 7201 (attempt to evade and defeat tax) and in four

counts for violating 26 U.S.C. § 7206(1) (making and

subscribing an income tax return, under oath, which the

person does not believe to be true and correct as to every

material matter).

This matter came on for trial to a jury on April 30,

1984. On May 15, 1984, the jury unanimously returned

verdicts of guilty on Counts i and III (violations of 26

U.S.C. § 7201) and Counts II, IV, V, and VI (violations

of 26 U.S.C. § 7206(1)).

The jury was polled and each juror stated that the

guilty verdicts were, in fact, his/her verdicts.

A3

Accordingly, the Court hereby enters a judgment of

guilty against the defendant as to Counts I and III (viola-

tions of 26 U.S.C. § 7201) and Counts II, IV, V, and VI

(violations of 26 U.S.C. § 7206(1)).

The Court then continued this matter for sentencing

pending 2 presentence report from the Federal Probation

Department.

Bond was continued at $5,000 personal.

IT IS SO ORDERED.

/s/ Atvin I. KRENZLER |

United States District Judge

A4

JUDGMENT OF CONVICTION AND SENTENCING

ORDER OF THE UNITED STATES DISTRICT

COURT

(Filed July 27, 1984)

Case No. CR84-23

UNITED STATES DISTRICT COURT

NORTHERN DIsTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

THOMAS PAUL LONG,

Defendant.

JUDGMENT OF CONVICTION AND

SENTENCING ORDER

The defendant, Thomas Paul Long, was indicted on

February 14, 1984, in two counts for violating 26 U.S.C.

§ 7201 (attempt *> evade and defeat tax) and in four

counts for violating 26 U.S.C. § 7206(1) (making and

subscribing an income tax return, under oath, which the

person does not believe to be true and correct as to every

material matter’.

This matter came on for trial to a jury on April 30,

1984. On May 15, 1984, the jury unanimously returned

verdicts of guilty on Counts I and III (violations of 26

U.S.C. § 7201) and Counts II, IV, V, and VI (violations

of 26 U.S.C. § 7206(1)).

A5

The Court entered a judgment of guilty against the

defendant as to all six counts in the indictment and re-

ferred the matter for sentencing pending a presentence

report.

This matter came on for sentencing on Wednesday,

July 25, 1984, at 4:00 p.m. Present at the sentencing was

the defendant represented by his privately-retained coun-

sel, John Kennedy Lynch, Esq. Representing the govern-

ment was John Siegel, Assistant United States Attorney.

Counsel for the defendant informed the Court that he

lad reviewed the presentence report with the defendant.

The Court then asked counsel for the defendant and the

defendant himself whether either wished to make a state-

ment in the defendant’s behalf and to present any informa-

tion in mitigation of punishment. Counsel for the gov-

ernment was given an equivalent opportunity to address

the Court.

The Court then sentenced defendant as follows. On

Count I of the indictment, defendant is sentenced to three

(3) years in the custody of the Attorney General; on

Count II of the indictment, defendant is sentenced to

three (3) years in the custody of the Attorney General;

on Count III of the indictment, defendant is sentenced to

three (3) years in the custody of the Attorney General;

on Count IV of the indictment, defendant is sentenced to

three (3) years in the custody of the Attorney General;

on Count V of the indictment, the defendant is sentenced to

three (3) years in the custody of the Attorney General;

and on Count VI of the indictment, defendant is sentenced

to three (3) years in the custody of the Attorney Gen-

eral. The sentences on all six counts are to run concur-

rently.

A6

Accordingly, a judgment of conviction is entered

against the defendant in two counts for violation of 26

U.S.C. § 7201 (attempt to evade and defeat tax) and in

four counts for violation of 26 U.S.C. § 7206(1) (making

and subscribing an income tax return, under oath, which

the person does not believe to be true and correct as to

every material matter).

The defendant is to report to the institution desig-

nated by the Bureau of Prisons to have custody of the

defendant on August 27, 1984, before 10:00 a.m. to begin

serving his sentence.

Bond is continued at $5,000 personal.

IT IS SO ORDERED. ~

/s/ Atvtn I. KRENZLER

United States District Judge

AT

JUDGMENT AND COMMITMENT ORDER OF THE

UNITED STATES DISTRICT COURT

(Dated July 27, 1984)

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

vs. THOMAS PAUL LONG

DOCKET NO. CR84-23

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date 7-25-84

[ ] WITHOUT COUNSEL However the court advised

defendant of right to coun-

sel and asked whether de-

fendant desired to have

counsel appointed by the

court and the defendant

thereupon waived assis-

tance of counsel

[X] WITH COUNSEL John Kennedy Lynch

{[ ] GUILTY, and the court being satisfied

that there is a factual basis for the plea,

[ ]} NOLO CONTENDERE,

[X] NOT GUILTY

{ ] NOT GUILTY. Defendant

There being a verdict of is

discharged

[X] GUILTY

A8

Defendant has been convicted as charged of the offense (s)

of

two counts for violating 26 U.S.C. § 7201 (attempt

to evade and defeat tax) and four counts for violating

26 U.S.C. § 7206(1) (making and subscribing an in-

come tax return, under oath, which the person does

not believe to be true and correct as to every material

matter.)

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no

sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty as

charged and convicted and ordered that: The defendant

is hereby committed to the custody of the Attorney Gen-

eral or his authorized representative for imprisonment for

a period of

three (3) years as to Count I; three (3) years as to

Count II; three (3) years as to Count III; three (3)

years as to Count IV; three (3) years as to Count V;

three (3) years as to Count VI. The sentences on all

six counts are to run concurrently.

The defendant is to report to the institution desig-

nated by the Bureau of Prisons to have custody of

the defendant on August 27, 1984, before 10:00 a.m.

to begin serving his sentence.

In addition to the special conditions of probation imposed

above, it is hereby ordered that the general conditions of

probation set out on the reverse side of this judgment be

imposed. The Court may change the conditions of proba-

tion, reduce or extend the period of probation, and at any

time during the probation period or within a maximum

probation period of five years permitted by law, may

AS

issue a warrant and revoke probation for a violation oc-

curring during the probation period.

The court orders commitment to the custody of the At-

torney General and recommends,

/s/ A. I. Krenzler

Date: 7/27/84

Al0

EXCERPTS OF TRANSCEIPT

[3] MONDAY MORNING, APRIL 30, 1984

The Court: Fellows, do you want to talk to me?

Mr. Siegel: Yes, your Honor.

The Court: Okay, let the record show that we are

here on the Lorg case, and do you have some pre-trial

motions or something?

Mr. Siegel: Your Honor, excuse me. At this point

I believe it is important before we bring the jury in to

raise the matter of at least the potential conflict of interest

and make sure that on the record the matter is addressed,

inquiry is made of the defendant so that it is clear he un-

derstands the potential conflict and that he can waive that

if he so chooses.

What that relates to is I just learned sometime last

week that Mr. Lynch at one point at various times has

represented Harold Martin who is the tax return preparer

for Mr. Long.

I understand he is going to be at counsel table or

requested to be at counse] table to serve as an expert wit-

ness, but he is also a government witness. There are some

facts he could testify to if he testifies consistently with

what he told us in the past, which is what the government

considers to some degree in the government’s favor and

harmful to the defendant.

[4] I think the law is pretty clear there is a great

danger for conflict in a situation where a defendant has

an adversary witness testify against him who was a client

of his attorney at the trial. The problem that the cases

point out is there can be a situation where there is a

All

concern that the defense attorney for Mr. Long might not

be able to effectively or he has a conflict in cross examining

that witness at least on points of harmful testimony because

since it is his client, he might not want to bring out things

that are not in the client’s or witness’ interest to bring

out, the witness-client interest, but it might be in the

interest of the defendant.

Secondly, when I learned of this when I asked Mr.

Martin to come in for a pre-trial conference, Mr. Lynch

advised me he would be coming along also because he in

fact, represented him. He was going to be representing

him as an attorney at the pre trial conference and pos-

sibly the trial, and I raised the conflict to Mr. Lynch

at that time.

In addition, it is a problem because I am concerned,

and I told Mr. Lynch this also, maybe some things that

Mr. Martin could testify to which would be potentially

harmful to him, matters of incrimination to him, and, again,

it might cause a problem when with Mr. [5] Lynch's

prosecutor putting him on as a witness on cross exarnina-

tion. I don’t think it is a problem if he wants to call

someone. Well, I don’t say it is a problem if he calls a

witness, putting on a witness where that witness might

have some incrimination problems and Mr. Lynch dealing

with how to handle that in a way in the interest of both

clients.

So, if Mr. Martin is going to be a witness in the trial

and Mr. Lynch is going to cross examine, I think this

should be made clear to Mr. Long, and I think it should

be made clear to Mr. Lynch. I discussed it with Mr.

Long, and he understands the risk in waiving them and

waiving any claim of ineffective assistance of counsel as

a result of the potential conflict.

Al2

The Court: Mr. Lynch?

Mr. Lynch: One other thing. I think the case law

in that type of situation is clear that the Court should

actually inquire of the defendant.

The Court: Sure. Mr. Lynch?

Mr. Lynch: Your Honor, I don’t see any problem

here. Mr. Martin who was the C.P.A. prepared all the

tax returns that are involved in this case. He also pre-

pared amended tax returns. Now, Mr. Martin has assisted

Mr. Long and myself during the I.R.S. investigation. He

is going to sit at counsel table, your [6] Honor, and assist

in presentation of the case. I need his advice and assistance

because he has done the accounting work and has knowl-

edge of many transactions only he knows of, and I have

to use him as a witness, and I don’t object to the govern-

ment calling him as a witness; and if I did, it would not

matter, but I didn’t represent Mr. Martin, but during the

investigation Mr. Martin wanted me to represent him

during various I.R.S. investigations and by Mr. Siegel,

and Mr. Long is fully aware of this fact and has no ob-

jection, whatsoever, and I think he will be perfectly

willing to inform the Court of that fact.

The Court: Who is Mr. Long?

Mr. Lynch: Mr. Long, stand, please.

The Court: Mr. Long, I want to explain what is going

on here so we can proceed. The government has raised a

question, and properly so, because anytime they believe

there is a potential conflict, they call it to the Court's at-

tention, and what happens is somewhere we try the case

and ultimately it turns out unfavorably to you. Later

on you may have the opportunity to raise an ineffective

assistance of counsel argument which we get in ali kinds

TN ee cE

Al3

of cases which means in any collateral proceeding, so if

we know about these up front, we can resolve them. That

does not mean if you charge there is a conflict you get you

another lawyer or if there is a [7] potential, you can raise

that right. So you are entitled to the defense you can

have, and you should be free of any potential or actual

conflict of interest. In other words, the lawyer should

do what is best for you and not render any decision he

makes in preparation of the trial that may compromise

your position in any way because he is worrying about

another client.

In other words, if something is going on between you

and someone else and your lawyer represents both and

they put you in a compromising position, we want the

lawyer representing you to give you the best he has, and

the best defense possible, and Mr. Siegel from the U. S.

Attorney’s office has raised some of these issues.

Were you aware of all these potential issues or are

you now? Are you aware that Mr. Lynch represented

or had done some work for Mr. Martin during these pro-

ceedings?

The Defendant: Yes.

The Court: And are you aware, as Mr. Siegel said—

and I would have no knowledge of all this until it hap-

pened—that it is possible you and Mr. Martin may be

on a collision sourse somewhere along the line. Are you

aware of that possibility?

The Defendant: Only if I were to—

The Court: What I am getting at with you, assuming

you know all that, and it is now brought out [8] by Mr.

Siegel—I don't know—a lot of this is hindsight, and I want

to make sure they are called to your attention and you

Al4

have the privilege of waiving them just so your waiver

is knowingly and intelligently. In other words, I have

got to call it to your attention. You have got to think

about it decide whether you are willing to have Mr. Lynch

prepare your defense, which means you cannot raise that

argument effectively, assuming the case turns out not

to your best interest. Do you understand what I am

saying?

The Defendant: I think so, but I will do whatever

Mr. Ly.ach tells me to do.

The Court: I am going to take a short recess. I

want Mr. Lynch to explain to you what this is all about,

and I will come back and ask you some more questions,

and I will give you an opportunity either to waive any

potential conflict—not saying there is one, but if you want

to get another lawyer, fine, but I want to make sure you

understand all the issues.

Mr. Siegel: One issue that I think should be dis-

cussed is whether Mr. Lynch anticipates representing Mr.

Martin not only just in this matter, but in other matters,

whether he has in his client other matters he expects

to or expects money from him, so we won't have the

idea Mr. Lynch, because Mr. Martin is a client in other

[9] matters, might want to make sure the relationship

stays good. That is another issue I think about—

The Court: Well, I think Mr. Lynch understands

the law in all these areas. I just want him to make sure

he makes the full disclosure to Mr. Long and then we

will come back in open Court and Mr. Long will make

the waiver, and we will proceed. We are not trying to

take your lawyer away; we are trying to make sure we

don’t have a headache in the future, and I have to try

the case twice. After that, we will bring the jury in.

Al5

Thereupon a lunch recess was had.

The Court: Be seated. Mr. Lynch, did you advise

your client and communicate with him?

Mr. Lynch: Yes, your Honor, I have.

The Court: Do you want to tell us what you told

him?

Mr. Lynch: Possibility of conflict of interest.

Now, I have already advised Mr. Martin sometime

ago, a few days ago I am no longer representing him,

so there really isn’t any current possible conflict as I see

it, and I explained that to Mr. Long. In fact, I told the

whole thing to Mr. Long several days ago. It isn’t any-

thing new.

He was aware of this, and he has advised me he has

[10] no objection to me continuing to represent him.

Mr. Martin has, of course, during the investigation

and part of that time been very close to Mr. Long. They

worked together and Mr. Martin is going to be one of

our key witnesses, but I can’t see—Mr. Long, 1 can’t

speak for him. He will be glad to speak for himself—but

I see no possible problem in proceeding with the trial

and—

The Court: Mr. Long, has Mr. Lynch explained all

these things to you in addition to what Mr. Siegel said?

The Defendant: Yes, your Honor, he has.

The Court: You are satisfied then that Mr. Lynch

can give you adequate and able representation, and you

are not concerned about any potential conflict of interest?

The Defendant: No, sir. I am very happy with him.

A16

The Court: Are you ready to proceed?

The Defendant: Yes.

The Court: Anything else? We will proceed that

way. Mr. Lynch can continue representing Mr. Long.

I’m sorry I took so iong this afternoon. I gave you a little

extra time. I thought you might resolve your differences.