Opposition Brief — Long v. United States

Supreme Court, U.S.

FILED

JAN 21 1986

No. 85-843

JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court of the Hnited States

OCTOBER TERM 1985

THOMAS PAUL LONG, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Cuyler v. Sullivan, 446 U.S. 335 ............... 2

Theodore v. New Hampshire,

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United States v. Cunningham,

672 F.2d 1064, cert. denied,

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United States v. Jeffers, 520

F.2d 1256, cert. denied, 423 U.S.

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In the Supreme Court of the Rnited States

OCTOBER TERM {985

No. 85-843

THOMAS PAUL LONG, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that he was denied effective assist-

ance of counsel because his trial attorney labored under a

conflict of interest.

1. Following a jury trial in the United States District

Court for the Northern District of Ohio, petitioner was

convicted on two counts of attempted tax evasion, in viola-

tion of 26 U.S.C. 7201, and on four counts of making and

subscribing false tax returns, in violation of 26 U.S.C.

7206(1). He was sentenced to concurrent terms of three

years’ imprisonment on each count. The court of appeals

affirmed by judgment order (Pet. App. Al).

Petitioner was the president and sole shareholder of T. P.

Long Chemical, Inc. In 1977, petitioner developed a scheme

by which he attempted to conceal over $213,000 in corpo-

rate income during the years 1977 to 1979. As part of that

(1)

2

scheme, he instructed his bookkeeper, Matilda Montoni,

not to record certain sales and receipts in the corporate sales

journal and to deliver the checks for those receipts directly

to him (Tr. 100-101, 158-167).!

Montoni’s testimony was corroborated by the company’s

general manager, Bruce Bowers. Petitioner admitted to

Bowers that he had taken out of the corporation about

$200,000 more than his reported salary by personally cash-

ing checks on unrecorded sales (Tr. 81-82).? Petitioner also

revealed his scheme to two individuals who were interested

in purchasing the company (Tr. 400-410, 440). To support

his asking price, petitioner told the prospective buyers that

the books substantially understated the corporation’s true

income, in part due to a large number of unrecorded sales

(Tr. 406-408, 440-443).

2. Petitioner contends (Pet. 9-17) that he was denied

effective assistance of counsel because his trial attorney

labored under an actual conflict of interest. The court of

appeals correctly rejected this fact-bound claim in a judg-

ment order that is of virtually no precedential value and

presents no conflict with the decisions of other courts of

appeals. Review by this Court therefore is not warranted.

This Court held in Cuyler v. Sullivan, 446 U.S. 335, 348,

(1980), that “{iJn order to establish a violation of the Sixth

Amendment, a defendant who raised no objection at trial

'Trial transcript references are taken from the government's brief in

the court of appeals.

?Petitioner also informed Bowers that he would receive his bonus in

the same fashion as had the previous manager; upon handing him a

bonus check in October 1978, petitioner stated, “[h}ere is one of my

famous checks * * *. Now, you are part of the conspiracy” (Tr. 118-

120). In addition, petitioner rejected Bowers’ attempt to hire an

accounting firm to improve the bookkeeping system, on the ground that

the present system was ideal for hiding income (Tr. 104-106).

3

must demonstrate that an actual conf}-ct of interest ad-

versely affected his lawyer’s performance.” No such con-

flict existed here. Martin, petitioner’s accountant and the

preparer of his tax return, had been represented during the

IRS investigation and at a pre-trial conference by peti-

tioner’s trial attorney, John Lynch (Tr. 3-4). At trial, the

Government called Martin to explain his procedures in

preparing petitioner’s tax returns (Tr. 451-478). Martin was

no longer represented by Lynch, and he made no attempt to

invoke his attorney-client privilege on cross-examination

(Tr. 5-10, 450-455). Compare United States v. Cunningham,

672 F.2d 1064, 1072 (2d Cir. 1982), cert. denied, No. 83-

1543 (Apr. 23, 1984); Theodore v. New Hampshire, 614

F.2d 817 (Ist Cir. 1980), United States v. Jeffers, 520 F.2d

1256, 1264-1266; (7th Cir. 1975). cert. denied, 423 U.S. 1066

(1976). Moreover, Martin was called by the defense to give

detailed fact and expert testimony (Tr. 976-1098). In that

capacity, Martin supported petitioner’s defense that the

diverted corporate receipts were actually “loans” that peti-

tioner later repaid to the corporation (Tr. 916-919, 980-989;

DX 000). Martin also challenged the Government’s conten-

tion that petitioner had additional taxable income, and he

confessed his own “error” in reporting additional! taxable

income on petitioner’s amended tax returns (Tr. 1003-

1004). Similarly, Martin catalogued numerous deductions

that he claimed were omitted from petitioner’s personal tax

returns due to sloppy bookkeeping and that would offset

any unreported income (Tr. 991-1001, 1009-1010). Finally,

he personally took the blame for not reporting income on a

number of petitioner’s transactions (DX JJJ to PPP; Tr.

991-1004, 1008). In short, no conflict existed because Mar-

tin’s testimony fully supported petitioner’s theory of the

defense.

The record also establishes that petitioner was fully

aware of any possible conflict of interest arising out of his

attorney’s prior representation of Martin (Pet. App.

4

A10-A16). At the outset of trial, both the district court and

the Assistant United States Attorney advised petitioner of

the possible conflict of interest and how it might affect

counsel's performance (id. at A10-A15). Petitioner acknow-

ledged that he understood the situation, and he expressed

his desire to continue with his counsel of choice (id. at

A13-A16). In addition, Lynch stated that he had discussed

the issue with petitioner and that neither of them believed a

conflict existed (id. at AIS). Accordingly, the record makes

clear that petitioner knowingly and voluntarily waived any

conflict that might have existed, and it refutes petitioner's

contention (Pet. 15-16) that the district court did not ade-

quately explore the possibility of a conflict of interest.

With respect to bookkeeper Montoni, the record dis-

closes that Lynch had neither a significant attorney-client

relationship with her nor any conflict of interest stemming

from his representation of her at an Internal Revenue Ser-

vice interview (Tr. 181-18). In fact, petitioner arranged for

Lynch’s appearance with Montoni at that interview and

offered to pay the fee (Tr. 892-895). Furthermore, counsel's

cross-examination of Montoni was guided by considera-

tions of trial strategy and was as vigorous as the evidence

would permit. Counsel attempted to elicit testimony min-

imizing petitioner's involvement with invoices and checks

while he was out of the office (Tr. 183-190), and counsel

highlighted the details of Montoni’s prior false statements

to the Internal Revenue Service and explored the possibility

that her testimony was motivated by her own fear of prose-

cution (Tr. 190-192).

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

JANUARY 1986

DO}-1 986.01

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