Petition for Writ of Certiorari — Cantu v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JOSE G. CANTU AND SHIRLEY A. FONTENOT,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

URQUHART & HASSELL

StLviA T. HASSELL

EDWARD D. URQUHART

WALTER L. PAULISSEN

1800 West Loop South

Suite 1500

Houston, Texas 77027

(713) 961-3505

Attorneys for, Petitioners

eR SARS eM OREN ME

Alpha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED

Did the joint representation of petitioners deprive

them of their Sixth Amendment right to effective

assistance of counsel?

Did the failure of defense counsel or the trial court

to move for relief from prejudicial joinder constitute

error so serious as to deprive petitioners of a fair

trial?

Did the admission into evidence of a co-defendant’s

conviction constitute plain error so serious as to

require reversal?

Was the trial court’s refusal to permit a presentence

investigation report before sentencing violative of

the purpose of Federal Rule of Criminal Procedure

32(c)?

Did the failure of appellate counsel to raise any issue

on appeal for petitioner Fontenot and an insufficient

issue On appeal for petitioner Cantu constitute in-

effective assistance of counsel in violation of peti-

tioners’ Sixth Amendment rights?

The parties to this proceeding are United States of America,

Jose G. Cantu and Shiriey A. Fontenot.

II

TABLE OF CONTENTS

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TABLE OF COUNTENES «2520 ese .ceadeias oaks eS

TABLE OF ARTTISORIERES «ccs see rele idep eoenes

OPINIONS BELOW

STATEMENT OF JURISDICTION

INVOLVED

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT ............

I.

Ii.

IV.

Joint representation of defendants deprived them of

their Sixth Amendment right to effective assistance

OE CON, 55. uv he i ks eee

The failure of defense counsel or the trial judge to

move for relief from prejudicial joinder constituted

error so serious that it deprived petitioners of a fair

trial...

_ The admission into evidence of a co-defendant’s con-

viction constituted plain error so serious that it re-

quires reversal.

The trial court’s refusal to permit a presentence in-

vestigation report before sentencing was violative of

the purpose of Federal Rule of Criminal Procedure

SHE). hb cee cee vada wes be oe ee eee

The failure of appellate counsel to raise any issue

on appeal for petitioner Fontenot and an insufficient

issue on appeal for petitioner Cantu constituted

ineffective assistance of counsel in violation of peti-

tioners’ Sixth Amendment rights. .. .............

COPNCCEATSRN bo oc edn es hes Sige wea Oo ee

“WW

12

14

18

22

24

Ill

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION Page

Amendment VI (Right to Counsel) .. .. ....0.. ...... 2, 5,42

CASES

Abbott v. Wainwright, 616 F.2d 889 (Sth Cir. 1980) .. 13

Andres v. State of California, 87 U.S. 1396 (1967) .. .. 22,23

Babb v. United States, 218 F.2d 538 (Sth Cir. 1955) .. .. 15

Baker v. Wainwright, 422 F.2d 145 (Sth Cir. 1970) cert.

denied, 399 U.S. 927 (1969) ..... 7,8

Campbell v. United States, 352 F.2d 359 (D.C. App. 1965) 10

Cannon v. Berry, 727 F.2d 1020 (llth Cir. 1984) .. .... 23

Cuyler v. Sullivan, oe Bee, ee CEOMO) 24.25. 0.-cene §.12

Foxworth v. Wainwright, 516 F.2d 1072 (Sth Cir. 1975) 7

Glasser v. United States, 315 U.S. 60 (1942) .......... 9,11,12

Holland v. Henderson, 460 F.2d 145 (5th Cir. 1972) . a 7

Holloway v. Arkansas, 435 U.S. 475 (1978) .. .. ...... 4,42

Leroy v. Government of Canal Zone, 81 F.2d 914 oe

Cir. 1936) . fas 14

Passmore v. Estelle, 607 F.2d 662 (5th ‘Cir. 1979) \ 23

Schaffer v. United States, ate Sen CAPO) .........- °&«&z'2g

State v. Davis, 514 P.2d Bos) 11

Tollett v. United States, 444 F.2d 622 (8th Cir. 1971) . 11

United States v. Baete, 414 F.2d 782 (5th Cir. 1969) .... 16

United States v. Butler, 611 F.2d 1066 (5th Cir. 1980) .. 13

United States v. Crawford, 581 F.2d 489 (Sth Cir. 1978) .. 13

United States v. Dinapoli, 519 F.2d 104 (6th Cir. 1975) .. 20

United States v. Harrell, 436 F.2d 606 (Sth Cir. 1970) .. 16

United States v. Long, 656 F.2d 1156 (Sth Cir. 1981) ....19, 20, 21

United States v. Todd, 735 F.2d 146 (Sth Cir. 1984) .. .. 18

Williams v. People of the State of New York, 337 U.S. 241

a 19

White v. United States, 396 F. 2d 822 (5th Cir. 1968) . 7

OTHER

ABA Code of Professional a DRS-105, EC 5-15

(1976) . - 11

NO. .

IN THE

Supreme Court of the TMnited States

OCTOBER TERM, 1985

JOSE G. CANTU AND SHIRLEY A. FONTENOT,

Petitioners

V.

UNITED STATES OF AMERICA,

Respondent

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit entered on October 24,

1985, and its judgment denying rehearing entered April

9, 1986.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit. reported at 774 F.2d 1305. appears in

the appendix. page A-1. The judgment of the Court of

Appeals denying rehearing appears in the appendix, page

A-9. The judgment of the United States District Court

for the Southern District of Texas, not reported, as to

appellant Jose G. Cantu, appears in the appendix, page

A-12. The judgment of the United States District Court

for the Southern District of Texas. not reported. as to

appellant Shirley A. Fontenot, appears in the appendix,

page A-14.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit sought to be reviewed was rendered

and entered on October 24, 1985. The judgment denying

rehearing was rendered and entered on April 9, 1986.

Jurisdiction to review the judgment in question by writ

of certiorari is conferred on this Court by 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment VI (Right to Counsel).

See appendix at A-16.

STATEMENT OF THE CASE

On August 24, 1984, <n indictment was issued in the

Southern District of Texas jointly charging defendants

Cantu. Fontenot and Steven Austin (“Austin”) with

eighteen felony counts. Cantu and Fontenot retained

3

Michael P. Haines as their attorney. On October 12,

1984, a superceding indictment was issued charging

Cantu, Fontenot and Austin with one count of conspiracy

to commit tax fraud in violation of 18 U.S.C. § 286:

seven counts of making faise claims for tax refunds in

violation of 18 U.S.C. § 287; one count of theft of public

money of the United States in violation of 18 U.S.C.

§ 641; and, nine counts of mail fraud in violation of

18 U.S.C. § 1341. On October 22, 1984, U.S. District

Judge Cire granted the motion for severance of defendant

Austin.

Due to the illness of Judge Cire, U.S. District Judge

Clure Morton, from the Middle District of Tennessee

(sitting by designation), presided over the jury trial of

Austin, and the subsequent joint jury trial of Cantu and

Fontenot. Judge Morton acquitted Fontenot of all counts

of the indictment except counts 4, 12 and 17, prior to

submitting the case to the jury. On February 27, 1985,

the jury returned a verdict of guilty on eighteen counts

as to Cantu, and guilty on counts 4, 12 and 17 as to

Fontenot. On March 1, 1985, without benefit of a pre-

sentencing investigation, Judge Morton sentenced Cantu

to a total of six years imprisonment, to be followed by

a five year term of probation. Cantu was further ordered

to pay $15,000.00 restitution. Fontenot was sentenced

to eighteen months imprisonment, to be followed by a

three year term of probation. Notice of appeal was filed

for Cantu and Fontenot on March 1, 1985.

On October 24, 1986, the Fifth Circuit Court of

Appeals denied petitioners’ appeal. A motion for rehear-

ing, filed on December 20, 1985, was denied on April 9,

1986.

4

It should be noted that both petitioners were repre-

sented by Michael Haines, Esq. through the appeal to

the Fifth Circuit. The undersigned attorneys were retained

after the trial court decision was affirmed by the Fifth

Circuit. A petition for rehearing was then filed alleging

that: the district court improperly permitted the joint

representation of petitioners at trial thus depriving them

of effective assistance of counsel: the failure of defense

counsel or the trial court to move for relief from the

prejudicial joinder deprived the petitioners of a fair trial:

the district court improperly allowed into evidence the

conviction in a separate trial of co-defendant Steven Austin:

the conviction of Austin was emphasized by the govern-

ment on closing argument and was also improperly re-

ferred to by defense counsel: the instruction issued by

the trial court regarding Austin’s conviction was not

cautionary, but instead served to emphasize its considera-

tion by the jury; the district court abused its discretion

in sentencing petitioners without a presentence report

and without adequate information and reflection and

such an abuse reduced the sentencing hearing to a mean-

ingless formality; and, appellate counsel’s failure to raise

any legitimate issues on appeal constituted ineffective

assistance of appellate counsel.

On rehearing the Fifth Circuit found that there was

no ineffective assistance of counsel and thus no denial

of petitioners’ Sixth Amendment rights. The Fifth Circuit's

opinion, however, is based on four fundamentally errone-

ous factual conclusions the majority of which are derived

from the government's brief. The four factual errors are:

the Fifth Circuit erroneously found that petitioners

Cantu and Fontenot shared a joint defense that neither

party filed fraudulent tax returns; the Fifth Circuit er-

5

roneously found that the district court had information

“at hand” sufficient to dispense with a presentence report;

the Fifth Circuit erroneously found that the district court

properly cautioned the jury that Austin’s conviction was

not io be relied upon in determining the petitioners

guilt or innocence: and the Fifth Circuit erroneously

found that evidence obtained from the search made the

issue of petitioner's original appeal related to the evidence

against both Cantu and Fontenot. The third point of

error in the Fifth Circuit opinion is so fundamentally

incorrect that it was not even posited in the government's

brief. The Fifth Circuit's errors are discussed in detail

herein.

REASONS FOR GRANTING THE WRIT

I. Joint representation of petitioners deprived them

of their Sixth Amendment right to effective as-

sistance of counsel.

Petitioners assert that an actual conflict of interest

existed in their joint representation and that such conflict

adversely affected their attorney’s performance. “[A] de-

fendant who shows that a conflict of interest actually

affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief.” Cuyler

v. Sullivan, 446 U.S. 335, 350 (1980); Holloway v.

Arkansas, 435 U.S. 475 (1978). The reasoning for this

is explained in Holloway as follows:

Joint representation of conflicting interests is suspect

because of what it tends to prevent the attorney

from doing . . . The mere physical presence of an

attorney does not fulfill the Sixth Amendment guar-

6

antee when the advocate’s conflicting obligations

have effectively sealed his lips on crucial matters... .

But in a case of joint representation of conflicting

interests the evil . . . is in what the advocate finds

himself compelled to refrain from doing, not only

at trial but also as to possible pretrial plea negotia-

tions and in the sentencing process. (/d. at 489-491).

The defense Mr. Haines raised for Fontenot is that

she did not commit any of the crimes which were charged

in the indictment. Fontenot testified that since 1978

her taxes have always been prepared by Cantu (Vol. 3,

p. 2-25) and that she would always sign the 1040's

before they were filled out by him. (Vol. 3, p. 2-26).

She identified her signature on the 1981 1040 in her

name but testified that she did not fill out the numbers

on the return (Vol. 3. p. 2-26) and that she did not

know who did. (Vol. 3, p. 2-27). She further identified

her signature on the letter requesting an address verifica-

tion (referred to at trial as the Internal Revenue Service

“bait letter”) and testified that she only filled in her

social security number. (Vol. 3, p. 2-27). She testified

that she did not write the other information on the letter

(Vol. 3, p. 2-17) and that such information had already

been completed when she signed it (Vol. 3, p. 2-18).

She testified that she did not know if she was entitled

to a thirty thousand dollar refund as represented on

her 1981 return. (Vol. 3, p. 2-43).

In calling Fontenot to testify. Mr. Haines failed to

consider the damaging effect her testimony would have

on Cantu. Fontenot’s answers on cross examination clear-

ly implicated Cantu with regard to the tax return of

Fontenot and the bait letter addressed to her. It follows

that if she did not commit the crimes of which she was

7

accused, someone else did. Her testimony clearly pointed

to Cantu:

Q. All right. Then your testimony is Jose Cantu

had written whatever he wrote on it before you

wrote your signature?

A. I would think that. (Vol. 3, p. 2-40).

. Well, yes or no?

Well, I don’t know. I didn’t see him do it. He

wasn’t there. It was wrote on there at the time.

I assumed he must have gotten around to doing

my taxes. (Vol. 3, p. 2-41).

Jose does your taxes?

Yes.

And you just sign?

Yes. (Vol. 3, p. 2-44).

>O

POPO

Fontenot’s statements, implicating Cantu and exculpat-

ing herself, reveal the underlying conflict of interest.

A conflict will be found when the testimony of one co-

defendant inculpates another (White v. United States,

396 F.2d 822 (Sth Cir. 1968)) or when procedures or

tactics are pursued that benefit one co-defendant while

harming another. Holland v. Henderson, 460 F.2d 145

(Sth Cir. 1972); Baker v. Wainwright, 422 F.2d 145

(Sth Cir. 1970), cert. denied, 399 U.S. 927 (1969).

The Fifth Circuit has also held that a conflict of interest

exists “whenever one defendant stands to gain significant-

ly by counsel adducing probative evidence or advancing

plausive arguments that are damaging to the cause of a

co-defendant whom counsel is also representing.” Fox-

worth vy. Wainwright, 516 F.2d 1072, 1076 (Sth Cir.

1975).

Fontenot could have benefitted from the testimony of

Cantu explaining, as he did at sentencing, that she did

8

not participate in any of the actions charged. Specifically,

Cantu made the following remarks to Judge Morton at

sentencing:

Shirley here in being associated with me, she trusted

me just like any of the clients have. And she is a

victim. Your Honor. She truly is a victim of my

schemes, not hers. (Sentencing transcript, p. 5).

Failure to call Cantu as a witness for Fontenot deprived

Fontenot of Cantu’s exculpatory testimony. The Fifth

Circuit has found that “[w]hen a defense counsel has it

within his power to void a proceeding against his client

and, because of his representation of another is not

completely free to exercise this power. he most assuredly

has a directly conflicting interest.” Baker v. Wainwright,

42? F.2d 145, 148 (Sth Cir. 1970) cert. denied, 399

U.S. 927 (1969).

It is incorrect to characterize the separate defense of

each petitioner as a joint defense. Clearly, the defense

of one defendant that he did not commit the offenses

charged does not necessarily exclude the possibility that

a co-defendant might have committed those offenses. This

is exactly what happened at trial in that Fontenot’s testi-

mony inculpated Cantu. A joint defense, in contrast,

would require the assertion (explicit or implicit) by each

defendant that neither committed the offenses charged.

Additionally, there existed a great disparity of evi-

dence between petitioners. There was no evidence intro-

duced against Fontenot except her own testimony and

the two documents containing her signature which she

identified at trial. Such disparity is further evidenced by

the trial judge’s inquiry into how a government inform-

9

ant’s testimony would be admissible against Fontenot

and the ensuing exchange at the bench:

Mr. Longoria: Your Honor, we have showed cir-

cumstantially she is a member of this conspiracy.

The Court: She don’t even come close. (Vol. 2.

ae.

The fact that there was no evidence against Fontenot

either on the conspiracy count or on any counts except

her return filed with the Internal Revenue Service (which

she admitted at trial signing in blank at the request of

Cantu), and an I.R.S. bait letter mailed to the I.R.S.

(on which she identified her signature at trial) demon-

strates the disparity of the cases presented against the

co-defendants. The disparity in the evidence introduced

against petitioners was prejudicial to Fontenot. This

prejudice was compounded by Haines’ conflict in repre-

senting both defendants in that his conflicting duty caused

him to fail to present exculpatory evidence for Fontenot.

This Court has recognized in Glasser v. United States,

315 U.S. 60 (1942), that conflict is especially likely to

be prejudicial in a conspiracy case when a disparity of

evidence exists against co-defendants jointly on trial.

This Court noted that the disparity of evidence:

. is significant in relation to Glasser’s contention

that he was deprived of the assistance of counsel

contrary to the Sixth Amendment. In all cases the

constitutional safeguards are to be jealously pre-

served for the benefit of the accused, but especially

is this true where the scales of justice may be deli-

cately poised between guilt and innocence. Then

error, which under some circumstances would not

be ground for reversal, cannot be brushed aside as

10

immaterial since there is a real chance that it might

have provided the slight impetus which swung the

scales toward guilt. Jd. at 67.

A potential for prejudice was recognized in Campbell

v. United States, 352 F.2d 359 (D.C. App. 1965), in-

volving a joint trial wherein the evidence against de-

fendant Campbell was much stronger than against de-

fendant Glenmore. Both defendants were represented by

one retained attorney. The court noted that defense

counsel made no effort to dissociate the two defendants

and the fact that one attorney was representing both

defendants certainly rendered his service to Glenmore

much less effective. /d. at 361.

No objection was made as to joint representation by

Mr. Haines on behalf of either defendant either at trial

or on appeal. In fact, on August 29, 1984, Judge Cire,

who was originally assigned the case, questioned peti-

tioners as to their joint representation, and defendants

signed a form entitled “Joint Representation by Counsel -

Waiver of Conflict of Interest”. Petitioners assert the

waiver was made at the early stages of their representa-

tion, and at the time petitioners did not realize or under-

stand the true implications of a joint trial. Petitioners

relied on advice of counsel in making said waiver.

Petitioners did not have the sophistication or legal ex-

pertise to realize fully the implications of a joint trial

or defense.

In considering whether a valid waiver occurred herein

this Court should examine the actions of defense counsel,

the trial court and petitioners. The Court must indulge

every reasonable presumption against waiver and cannot

presume acquiescence in the loss of fundamental rights.

11

Tollett v. United States, 444 F.2d 622 (8th Cir. 1971).

First, defense attorneys have an ethical obligation to

avoid conflicting representations and to advise the court

promptly when a conflict of interest arises during the

course of a trial. ABA Code of Professional Responsi-

bility DR5-105, EC 5-15 (1976). It is clear that “[a]n

attorney representing two defendants in a criminal matter

is in the best position professionally and ethically to deter-

mine when a conflict of interest exists or will probably

develop in the course of a trial.” Holloway y. Arkansas,

435 U.S. 475, 485 (1978), quoting State v. Davis, 514 P.2d

1025, 1027 (1973). Petitioners should not be punished

because Mr. Haines failed to recognize or admit to such

a conflict.

Second, “the trial judge bears the duty of seeing that

the trial is conducted with solicitude for the essential

rights of the accused, and he should protect the right of

an accused to have the assistance of counsel.” Glasser

v. United States, 315 U.S. 60 (1941). The inquiry as to

waiver was made by Judge Cire and the case was tried

before Judge Morton. Patent and harmful conflicts arose

after the commencement of trial which were not recog-

nized or cured by the trial court. Fed. R. Crim. P. 44(c)

imposes a continuing duty on the trial judge to protect

the rights of defendants. Specifically,

. the mere fact that a rule 44(c) inquiry was

conducted in the early stages of the case does not

relieve the court of all responsibility in this regard

thereafter. The obligation placed upon the court by

rule 44(c) is a continuing one and thus in a par-

ticular case further inquiry may be necessary on a

later occasion because of new developments suggest-

ing a potential conflict of interest.

Notes of Advisory Committee on 1979 Amendments to

Fed. R. Crim. P. 44.

12

Third, defendants usually “will not know what their

rights are or how to raise them. This is surely true of

the defendant who may not be receiving the effective

assistance of counsel as a result of conflicting duties

owed to other defendants.” Cuyier v. Sullivan, 446 U.S.

335, 352 (1980) (Brennan, J., concurring).

The Sixth Amendment right to effective assistance of

counsel encompasses the right to representation by an

attorney who does not owe conflicting duties to other

defendants. Holloway vy. Arkansas, 435 U.S. 475 (1978).

There can be no effective assistance when a conflict is

shown to exist between the interest of a defendant and

other interests served by his attorney. Glasser v. United

States, 315 U.S. 60 (1942).

II. The failure of defense counsel or the trial judge

te move for relief from prejudicial joinder con-

stituted error so serious that it deprived peti-

tioners of a fair trial.

Fed. R. Crim. P. 14 states in pertinent part as follows:

If it appears that a defendant . . . is prejudiced by

a joinder of offenses or of defendants in an indict-

ment or information or by such joinder for trial

together, the court may order an election or separate

trials of counts, grant a severance of defendants or

provide whatever other relief justice requires . .

Counsel for co-defendant Austin recognized the potential

for such prejudice and moved for severance. Said motion

was granted by Judge Cire on October 22, 1984. It

was error on the part of counsel for Cantu and Fontenot

13

not to move for severance because Cantu’s testimony

would have exculpated Fontenot and the testimony of

Fontenot inculpated Cantu. (These points were addressed

in the foregoing argument concerning conflict of interest. )

The Fifth Circuit recognizes that prejudice can result

from a defendant being unable to call a co-defendant to

testify on his behalf at a joint trial. Abbott v. Wainwright,

616 F.2d 889 (Sth Cir. 1980). Fontenot could have

shown the essential elements necessary to be entitled to

a severance as set out in United States v. Butler, 611

F.2d 1066 (5th Cir. 1980): (1) a bona fide need for

the testimony; (2) the substance of the testimony; (3)

its exculpatory nature and effect; and, (4) that Cantu

would have testified if the case had been severed.

In conspiracy cases, where joinder was originally proper

under Fed. R. Crim. P. 8(b), and the charge which original-

ly justified joinder fails for lack of evidence, the “trial judge

should be particularly sensitive to the possibility of such

prejudice”. Schaffer v. United States, 362 U.S. 511

(1960).

Courts must balance possible prejudice in joint trials

against judicial economy. United States v. Crawford, 58!

F.2d 489 (Sth Cir. 1978). “It should grant a severance

if jurors in a joint trial may not be able to determine

the culpability of a defendant fairly, impartially and

solely on the basis of evidence relevant to the individual

defendant.” Jd. at 491. In Crawford, the Fifth Circuit

found that “[bJecause the evidence was uncomplicated

and only two defendants were involved, the inconvenience

and expense of separate trials would not have been great.”

Id. at 492.

14

III. The admission into evidence of a co-defendant’s

conviction constituted plain error so serious that

it requires reversal.

The trial record is replete with statements that Austin

was a co-defendant of Cantu and Fontenot and that he

was convicted prior to their trial. Such statements were

made by both government and defense counsel. Govern-

ment informant Jim Brady testified, on cross-examination,

that he had heard Austin was convicted. (Vol. 3, p. 2-17).

During final arguments, the conviction of Austin was

raised by the government more than once:

We know that Mr. Brady was approached by Mr.

Austin, a co-conspirator, who we now know from

the evidence was convicted and is now in prison.

(Vol. 3, p. 2-85).

And if you want to go that far, and I submit you

should and you can, who is Mr. Cantu picking for

his friends? If he is picking Mr. Austin, a person

who we know is not above stealing $27,000.00 of

the government’s money out of this little scheme

that was cooked up. (Vol. 3, p. 2-104).

The conviction of co-defendant and alleged co-conspira-

tor Steve Austin should not have been admitted into

evidence during the trial of Cantu and Fontenot. The

Fifth Circuit stated, in the case of Leroy v. Government

of Canal Zone, 81 F.2d 914 (5th Cir. 1936), that the

previous conviction of a co-defendant is not admissible

in evidence against subsequently tried co-defendants. That

holding is proper because of the obvious harm that such

evidence inflicts upon a defendant at trial. In the case

at hand the conviction of co-defendant and alleged co-

conspirator Austin was improperly admitted into evi-

15

dence and argued to the jury. In Babb v. United States,

218 F.2d 538, 541 (Sth Cir. 1955), the Fifth Circuit

determined that it was error to allow a co-defendant and

alleged co-conspirator to testify, over objection, that he

had pled guilty to all counts of the indictment. The Fifth

Circuit stated that if the guilt of a co-defendant comes

before the jury a cautionary charge must be given. Id.

at 541.

The references to the guilt and conviction of co-de-

fendant and alleged co-conspirator Austin were prejudicial.

Such references required at least a strong cautionary in-

struction to disregard Austin’s conviction in determining

the guilt or innocence of petitioners. However, instead

of a cautionary charge with regard to Cantu, the district

court’s instruction was as follows:

In the course of the trial, you have heard Steven

Austin’s name mentioned. You will note that he is

named as a defendant in the indictment. The charges

against him have been disposed of. You must not

consider those charges or Austin’s actions in de-

ciding the guilt or innocence of Fontenot. You

should consider Austin’s actions with regard to the

charges against Cantu only insofar as they bear on

the question of whether Cantu and Austin conspired

with or aided and abetted each other in the com-

mitting of the offenses charged in the indictment.

Everybody understand that? (Vol. 3, p. 2-110, 111).

The foregoing instruction was clearly prejudicial and

harmful in that it emphasized the consideration of Austin’s

conviction rather than urge its total disregard. It did not

eliminate the clear implication of Cantu and Fontenot,

but necessarily implicated them. Even if the trial judge’s

charge could be held to be cautionary, the Fifth Circuit

16

in United States v. Baete, 414 F.2d 782 (Sth Cir. 1969),

has ruled that even the strongest corrective instruction

may be insufficient when the admitted guilt of one co-

defendant necessarily implicates the others. 7d. at 783-

84. As shown by Jury Note number 2 discussed infra

such was clearly the case herein.

The Fifth Circuit expounded on the prejudicial effect

of admission into evidence of a co-conspirator’s guilt in

United States v. Harrell, 436 F.2d 606 (5th Cir. 1970).

Jurors in conspiracy cases, equally with others, are aware

“it takes two to tango”. 7d. at 614. In Harrell, as in the

case at hand, defense counsel did not object to the

admission of the guilt of a co-defendant and alleged co-

conspirator. The Fifth Circuit found that such evidence,

in light of aggravating circumstances, was so prejudicial

that lack of objection was not fatal. The “aggravating

circumstances” which would render even the strongest

corrective instruction insufficient exist where the guilt of

one co-defendant necessarily implicates the other as in

a conspiracy case. Jd. at 614.

In Harrell, the Fifth Circuit ruled that the admission

into evidence of the co-conspirator’s guilt without a

sufficient cautionary instruction constituted plain error,

requiring reversal. Harrell and this case are similar in

that both cases involved conspiracy charges, both ad-

mitted evidence of a co-conspirator’s guilt, and in both

cases a cautionary charge could not “dispel the predictably

certain reasoning a juror could be expected to indulge in

as to the guilt of the alleged co-conspirators on trial’.

Id. at 614. (That the evidence of Austin’s conviction

was erroneously elicited and referred to by defense coun-

sel does not mitigate its prejudicial effect. Such an error

17

by defense counsel was so prejudicial as to deprive de-

fendants of a fair trial and certainly should have been

raised on appeal.)

There is clear evidence in the record of the prejudicial

effect of the admission into evidence of Austin’s convic-

tion. Jury Note number 2 reflects that the jury saw

no evidence to prove that Jose Cantu received any money.

Jury Note number 2 states:

In regard to aiding and abetting, we see no evidence

that Jose Cantu recieved [sic] any money. Since we

agree that Steve Austin did recieve [sic] or “convert

to his use” the money, will the aiding in [sic] abet-

ting also apply to Jose Cantu even though we have

no proof that he ever recieved [sic] any money.

The jury clearly considered co-defendant Austin’s con-

viction on Count Nine of the Superceding Indictment

in order to return its verdict of guilty against petitioner

Cantu on that count. It is plain that the evidence or

Austin’s conviction was so strongly considered by the

jury that the corrective instruction used by the trial court

was insufficient to erase the prejudicial harm to peti-

tioners.

The Fifth Circuit held that it was not plain error to

admit Austin’s conviction into evidence because (1) de-

fense counsel mentioned this evidence during trial and

closing arguments; (2) no objection was made to the

introduction of this evidence; and (3) the district court

properly cautioned the jury that Austin’s conviction was

not to be relied upon in determining petitioners’ guilt

or innocence. The Fifth Circuit is factually incorrect in

that no cautionary charge was made as to Cantu. In

18

addition, however, petitioners should not be punished

because of error by their trial counsel.

That the admission of Austin’s conviction prejudiced

the jury concerning appellant Cantu is evidenced by Jury

Note number 2. The result is clearly that appellant

Cantu’s guilt or innocence was inextricably linked in

the jury’s analysis to the conviction of Steve Austin.

The only possible conclusion is that the trial court’s

charge to the jury served to stress consideration of

Austin’s conviction rather than to eliminate its considera-

tion, constituting plain error. The Fifth Circuit’s holding

on this issue must therefore be reversed.

Fed. R. Crim. P. 52(b) provides: “Plain errors or defects

affecting substantial rights may be noticed although they

were not brought to the attention of the court.” The

standard for plain error has been defined as that which

will “result in the likelihood of a grave miscarriage of

justice or circumstances that seriously affect the fairness,

integrity, or public reputation of judicial proceedings.”

United States v. Todd, 735 F.2d 146, 150 (Sth Cir.

1984). The case at hand involves circumstances similar

to Harrell which require that the convictions of Cantu

and Fontenot be reversed in order to preserve their right

to a fair trial.

IV. The trial court’s refusal to permit a presentence

investigation report before sentencing was viola-

tive of the purpose of Federal Rule of Criminal

Procedure 32(c).

The sentencing process below certainly requires ap-

pellate review. The district court did not comply with

Fed. R. Crim. P. 32(c)(1) which requires that:

19

The probation service of the court shall make a pre-

sentence investigation and report to the court before

the imposition of sentence or the granting of pro-

bation unless, with the permission of the court, the

defendant waives a presentence investigation and

report, or the court finds that there is in the record

information sufficient to enable the meaningful ex-

ercise of sentencing discretion, and the court explains

this finding on the record.

This Court, in the case of Williams v. People of the

State of New York, 337 U.S. 241 (1949), recognized

the importance in the trial court’s sentencing process of

obtaining broad information concerning the defendant

and the desirability of individualizing the punishment:

“Highly relevant—if not essential—to [the sentencing

judge’s] selection of an appropriate sentence is the pos-

session of the fullest information possible concerning the

defendant’s life and characteristics.” /d. at 247.

With regard to Rule 32, the Fifth Circuit has stated

that the information provided by the report of a trained

probation officer, together with the evidence presented

at the trial itself, give the sentencing judge the only

reliable basis for exercise of his sentencing discretion.

United States v. Long, 656 F.2d 1156, 1164 (Sth Cir.

1981). The sentencing deficiency in Long centered upon

the failure of the trial court to evaluate a presentencing

report and the court’s two statements on the record that

no presentence report could change his mind. /d. at 1165

The failure of the trial court to obtain and evaluate

a presentence report and the readiness of that court to

sentence Cantu and Fontenot immediately after convic-

tion, and without adequate information and reflection,

20

constitutes a critical abuse of requisite judicial discretion

in sentencing. The trial court stated “I don’t need a

presentence investigation in this kind of case. I am

perfectly competent to render sentence and I have all

the information at hand that I need at hand.” (Vol.

4, p. 3-7). Such representation must be closely scruti-

nized in light of the court's earlier statements that

he had gone to sleep during the trial (Vol. 3. p. 2-82)

and that “I will admit my mind wandered when he was

up there because I was not paying too much attention.”

(Vol. 3, p. 2-81).

The Fifth Circuit, in Long, stated that “Rule 32 denies

any judge the discretion to reduce the hearing on sentence

to a meaningless formality.” Jd. at 1165 (quoting United

States v. Dinapoli, 519 F.2d 104, 108 (6th Cir. 1975) ). Pe-

tioners urge that such was the case herein. The following

statements demonstrate the trial court’s predisposition at

sentencing: “He [Cantu] is a crook. He has been con-

victed of being a crook.” (Vol. 4. p. 3-9): “I am going

to tell you right now I think she lied like a rug .. . She

is not going to get probation. I wili tell you that right

now.” (Vol. 4, p. 3-13): “If you want to have them

{family members] all stand up back there and impress

me with them. go ahead.” (Sentencing transcript, p. 3):

“All I am concerned about is his violation of law here

and the jury has found him guilty, and I am going to

punish him. That is just what I am going to do.” (Sen-

tencing transcript. p. 10): “I can’t turn her loose after

she committed blatant perjury on this stand in any way,

shape or form. I would have been lenient with her other-

wise. But I will not do it... And as a result. I am going

to incarcerate her. I wil! tell you I am.” (Sentencing

21

transcript, p. 15). (There is no conclusive evidence that

Fontenot committed perjury. )

The Fifth Circuit in Long further stated that “{t]hose

who have studied the sentencing problem in depth are

unanimous in recommending that presentence reports be

secured in all felony cases, particularly those involving

first offenders.” Long at 1165. Cantu and Fontenot are

first offenders. The trial court in the instant case reduced

the hearing on sentence to a meaningless formality which

was a clear abuse of judicial discretion. Trial counsel’s

failure to object to the lack of a presentencing investiga-

tion constitutes error and is further evidence of his in-

effective representation.

The Fifth Circuit, in its opinion on the petition for

rehearing in this case, stated that the district court could

dispense with the presentence report because it had found

that it had sufficient information “at hand” and because

appellants were permitted their right of allocution at the

sentencing hearing. Contrary to the trial court’s statement,

there was a paucity of information concerning petitioners

before the trial court. No real attempt was made to

supply the judge with relevant information; much

less was he provided with comprehensive informa-

tion sufficient to allow a meaningful exercise of sentencing

discretion. The Fifth Circuit’s decision in this case con-

flicts directly with its expressions of the importance of

presentence reports for first offenders. Such a holding is

also contrary to this Court’s recognition of the need for

broad information in making sentencing determinations

and should therefore be reversed.

22

V. The failure of appellate counsel to raise any issue

on appeal for petitioner Fontenot and an insuf-

ficient issue for petitioner Cantu constituted in-

effective assistance of counsel in violation of

petitioners’ Sixth Amendment rights.

Defense counsel at trial filed the brief in petitioners’

original appeal. That appeal asserted only one point of

error related to the admission of evidence obtained from

an asserted illegal search. The point of error raised by

petitioners’ Brief on Appeal, if successful, would have

led to the exclusion only of evidence against Cantu.

None of the evidence which would have been excluded

was incriminating against Fontenot. Therefore petitioner

Fontenot had no appeal.

No documents secured through the search warrant

attacked by original appellate counsel were used as

evidence against Fontenot. Fontenot was convicted of

filing a false tax return and of mail fraud. The evidence

related to these convictions was mailed to the govern-

ment and not obtained in the search. Because evidence

obtained in the search was not used against Fontenot,

had the Fifth Circuit found the original appeal to have

merit. it could not have reversed Fontenot’s conviction

on that basis. It follows that petitioner Fontenot was

denied effective assistance of appellate counsel and the

determination of the Fifth Circuit to the contrary should

be reversed.

The failure of original appellate counsel to raise suf-

ficient issues on appeal constituted ineffective assistance

of appellate counsel for petitioner Cantu. This Court has

held that appellate counsel must “support his client’s

appeal to the best of his ability”. Andres v. State of

23

California, 386 U.S. 738, 744 (1967). The Eleventh

Circuit has interpreted this burden in Cannon v. Berry,

727 F.2d 1020 (1984) as follows:

. . . [A]ppellate counsel must function as an advo-

cate and actively promote the client’s position by

scrutinizing the record for errors and by presenting

legal arguments in the client’s favor. (Jd. at 1020.)

Appellate counsel asserted, on behalf of petitioner Cantu,

only the improper search of Cantu’s office. The Fifth

Circuit, in its opinion on the petition for rehearing

in this case, held that this constituted effective assistance

of appellate counsel and that counsel was not obligated

to raise other meritless issues on appeal. Petitioners assert

that additional issues of merit were clearly omitted froni

the original appeal.

The Fifth Circuit has recognized that submission by

appellate counsel of a one sentence appellate brief con-

stituted ineffective assistance of counsel. Passmore v.

Estelle, 607 F.2d 662 (1979). Asserting only one error

as to Cantu certainly does not rise to the level of actively

supporting Cantu’s appeal after careful scrutiny of the

record. Therefore, Cantu and Fontenot were denied ef-

fective assistance of appellate counsel, and the contrary

determination by the Fifth Circuit should be reversed.

24

CONCLUSION

This Court should g

rant certiorari to review the Fifth

Circuit’s opinion in the above case.

DATED: June 7th.

Of Counsel:

URQUHART & HASSELL

1986.

Respectfully submitted,

URQUHART & HASSELL

Akh Un Y Hridell

SILVIA T. HASSELL

EDWARD D. Uraqu

Dike L Bubrene

WALTER L. PAULISSEN

1800 West Loop South

Suite 1500

Houston, Texas 77027

(713) 961-3505

Attorneys for Petitioners

Jose G. Cantu and

Shirley A. Fontenot

APPENDIX

Fifth Circuit Opinion

Fifth Circuit’s Order Denying Rehearing

District Court Judgment—Jose G. Cantu

District Court Judgment—Shirley A. Fontenot

U.S. Constitution, Amendment VI

Federal Rule of Criminal Procedure 8(b)

Federal Rule of Criminal Procedure 14

Federal Rule of Criminal Procedure 32(c)(1)

Federal Rule of Criminal Procedure 44(c)

Federal Rule of Criminal Procedure 52(b)

A-1

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Jose G. CANTU and Shirley A. Fontenot,

Defendants-Appellants.

No. 85-2185

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 24, 1985.

Defendants were convicted in the United States Dis-

trict Court for the Southern District of Texas of charges

arising out of conspiracy to file false income tax returns,

and they appealed. The Court of Appeals held that:

(1) search warrant for office of defendant was not too

general, and (2) warrant adequately described area sub-

ject to government search.

Affirmed.

Michael P. Haines, J. L. Sadick, Houston, Tex., for

defendants-appellants.

Henry K. Oncken, U.S. Atty., James R. Gough, Asst.

U.S. Atty., Houston, Tex., Vincent L. Gambale, Wash-

ington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the

Southern District of Texas.

A-2

Before POLITZ. GARWOOD and JOLLY, Circuit

Judges.

PER CURIAM:

On appeal in this case we are asked to determine

whether the district court properly allowed into evidence

materials and documents seized during a warrant-autho-

rized search. Because we find that the search was legally

authorized and conducted, we affirm.

I

The evidence in this case showed that from about

January 1, 1982 to March 30, 1983, the appellant Jose

Cantu conspired with Steven Austin to file false income

tax returns for the years 1980 and 1981 in the names

of the appellant Shirley Fontenot, Austin, and four other

individuals. The returns claimed unjustified tax refunds

for 1981 totalling $239,166. Additionally, an unjustified

claim for $18,955 was filed in 1980 by Cantu and Austin

on behalf of Austin. These claims were supported by false

W-2 Forms fabricated by Cantu.

The Internal Revenue Service’s Criminal Investigations

Division received information about this tax fraud con-

spiracy from a friend of Austin, James Brady, who had

refused to participate in the fraudulent tax scheme. The

government verified Brady’s information and other in-

dications of tax fraud by Cantu. Based upon this and

other information,’ the IRS procured a search warrant

on March 22, 1983 to search the “office of CARLOS

CANTU TAX AND BUSINESS CONSULTANT located

behind the only door on the left after entering the front

|. Probable cause supporting the search warrant is not contested

in this appeal.

LL —————

A-3

door of Suite 375 at 5959 West Loop South, Houston

(Bellaire), Texas.” During the search, the government

seized numerous tax returns and other documents that

revealed the extent of the appellants’ involvement in the

tax scheme.

Jose Cantu, Shirley Fontenot and codefendant Steven

Austin? were charged in an cighteen-count indictment

consisting of one count of conspiracy to commit tax fraud

in violation of 18 U.S.C. § 286, seven counts of filing

false tax returns in violation of 18 U.S.C. § 287, one

count of theft of government money by converting a tax

refund check in violation of 18 U.S.C. § 641, and nine

counts of mail fraud in violation of 18 U.S.C. § 1341.

Cantu was convicted on all counts. Fontenot was con-

victed on one count of filing a false tax return and on

two counts of mail fraud.*

Cantu was sentenced to a total of six years imprison-

ment to be followed by a five-year term of probation,

and was ordered to pay $15,000 restitution. Fontenot

was sentenced to eighteen months imprisonment, to be

followed by a three-year term of probation. The appel-

lants filed a timely notice of appeal.

Il

The sole contention of Cantu and Fontenot on appeal

is that the district court erred in denying their motion

to suppress the materials seized during the search of

Jose Cantu’s office on March 22, 1983. These materials

2. Austin was convicted in a separate trial. His appeal to this

court, No. 85-2138, has been briefed and argued.

3. Fontenot was acquitted by the district court of fifteen of the

eighteen counts before the case was submitted to the jury.

A-4

consist primarily of copies of the false tax refund claims

and bogus W-2 forms. Appellants contend that the war-

rant insufficiently described the items to be seized and

as such permitted a “general” search in contravention

of the fourth amendment. They further contend that the

search warrant and affidavit, in naming the office of

Carlos Cantu Tax & Business Consultant as the place

to be searched, did not authorize a search of the office

of Jose Cantu.

A.

The appellants argue that the March 22 warrant was

too general because the warrant did not limit the au-

thorized search to materials relating to the claims of tax

fraud that the government had knowledge of at the time

of the search. Because the warrant left the agents with

too much discretion as to the things subject to seizure,

the appellants contend it was unconstitutional. To sup-

port this contention, the appellants cite Stanford v. Texas,

379 US. 476, 85 S. Ct. 506, 13 L.Ed.2d 431 (1965).

In Stanford, the warrant broadly authorized the seizure

of “books, records, pamphlets, cards, receipts, lists, memo-

randa, pictures, recordings and other written instruments

concerning the Communist Party of Texas.” 379 U.S.

at 478-79, 85 S. Ct. at 508. After a four-hour search,

the agents seized more than 2,000 items, including ma-

terials from Stanford’s business, books written by such

authors as Karl Marx, Jean Paul Sartre, Earl Browder,

and Pope John XXIII, and personal papers including

Stanford’s marriage certificate, insurance polices, and

household bills. No “records of the Communist Party”

or any “party lists [or] dues payments” were found. /d.

at 479-80, 85 S. Ct. at 509. Most of “the vast quantity

A-5

of materials seized in Stanford were [not] even remotely

related to any legitimate government interest.” Nixon

v. Administrator of General Services, 433 U.S. 425, 462.

97 S. Ct. 2777, 2799, 53 L.Ed.2d 867 (1977). The

Supreme Court held the Stanford search unconstitutional.

Unlike Stanford, however, in the instant case the war-

want limited its authorization to the seizure of:

Federal income tax returns and related forms and

documents; copies of Federal income tax returns and

related forms and documents; workpapers used in

the preparation of Federal income tax returns; logs,

rosters, writings, records, notes, or other lists re-

garding Federal income tax returns claiming refunds

having been prepared and/or filed; U.S. Government

checks resulting from false Federal income tax re-

fund claims; typewriters used in the preparation of

false refund Federal income tax claims; and all other

property that constitutes evidence of the preparation

and filing of false Federal income tax refund claims;

any computer hardware or computer software.

[1] The case agent’s affidavit and supporting exhibits

attached to the warrant detailed the nature of the tax

fraud investigation and identified specific documents.

In his affidavit, the agent noted that, from his experience

in investigating such matters, people engaged in multiple

tax-refund schemes usually maintain lists or copies of

the false W-2 forms or refund claims, as well as records

of bank accounts used for depositing or cashing any

U.S. Treasury checks they receive as refunds based upon

the false claims.

The materials specified in the warrant were all directly

related to the unlawful activity of the appellants. The

A-6

warrant clearly identified the documents subject to seizure,

all of which were financial records related to tax fraud.

The items actually seized, such as the false refund claims

and bogus W-2 Forms. fell scuarely within the scope of

the warrant. Unlike Stanford, the warrant in the instant

case was not too general.

[2] Moreover, the government made no error in not

limiting the warrant to only those fraud claims about

which they had specific information. There is no require:

ment that the government agents know in advance the

specific items of evidence to be seized or that the items

seized do in fact evince a Crime, so long as they are

within the scope of a properly authorized warrant. See

Andresen v. Maryland, 427 U.S. 463, 479-82, 96 S. Ct.

2737, 2748-49, 49 L.Ed.2d 627 (1976).

[3] Finally, even if the government seized documents

that were outside the specifications of the warrant, we

could not reverse. Although the general rule is that only

items described in a search warrant may be seized, we

have recognized an exception that allows a government

official reasonably to seize additiona! incriminating ma-

terial discovered during an authorized search for other

specified objects. Garland v. Maggio, 717 F.2d 199, 206

(5th Cir. 1983). In Garland, we stated that “property

which has a sufficient nexus to the crime being investi-

gated may be seized at the time officers are properly

excuting a warrant authorizing a search for other items.”

Id.

Thus, we reject the appellants’ contention that the

warrant was too broad and hold that all items seized

were properly within the authority of the warrant.

———————————

A-7

B.

The appellants also challenge the validity of the search

on the ground that the warrant authorized a search only

of the office of Jose Cantu’s brother, Carlos. The chal-

lenged search warrant authorized a search of the: “office

of CARLOS CANTU TAX AND BUSINESS CON-

SULTANT located behind the only door on the left after

entering the front door of Suite 375 at 5959 West Loop

South, Houston (Bellaire), Texas.”

At the suppression hearing, Jose Cantu testified about

the physical layout of the premises at Suite 375, 5959

West Loop South in Houston. Suite 375 opens to a

reception area around which are several doors to indi-

vidual offices. Carlos Cantu had the name “Carlos Cantu

Tax and Business Consultant” on the front door of the

suite, the sole entrance to the suite, but did not have his

name on the door of his individual office. Several separate

businesses, including a fence company, a tax computer

firm, an engineering firm, and the appellant’s brother’s

consultancy, had offices in the suite at the time of the

search. Jose Cantu’s office did not face or open to the

reception area. To reach his office, the agents had to

walk through the fence company office, which was lo-

cated behind the only door on the left after entering

the front door of Suite 375. This was the exact location

specified in the warrant. Thus, there was no discrepancy

between the location specified in the warrant and the

office actually searched.

[4] We find that the warrant adequately described the

area subject to the government search. This court has

stated that

A-8

a warrant’s description of the place to be searched

need not meet technical requirements nor have the

specificity sought by conveyancers. It need only

describe the place to be searched with sufficient

particularity to direct the searcher. to confine his

examination to the place described, and to advise

those being searched of his authority.

United States v. Haydel, 649 F.2d 1152, 1157 (Sth Cir.),

corrected, 664 F.2d 84 (1981), cert. denied, 455 US.

1022, 102 S. Ct. 1721, 72 L.Ed.2d 140 (1982). The

warrant in this case satisfied these requirements and

cannot be said to have limited the authorized search to

only the individual office of Carlos Cantu.

il

For the reasons stated herein, the judgment of the

district court is

AFFIRMED.

A-9

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-2185

OPINION

UNITED STATES OF AMERICA.

Plaintiff-Appellee,

v.

JOSE G. CANTU and SHIRLEY A. FONTENOT.

Defendants-Appellants.

Filed April 9, 1986

Before: Henry A. Politz, Will Garwood and

E. Grady Jolly, Circuit Judges.

Per Curiam

Appeals from the United States District Court

for the Southern District of Texas

L. Clure Morton, District Judge, Presiding

ON PETITION FOR REHEARING

(Opinion October 24, 1985, 5th Cir. 1985,

774 F.2d 1305)

SUMMARY

Criminal Procedure

On petition for rehearing. Denied.

{1} Appellants’ argument that they were denied ef-

fective assistance of counsel because they were repre-

sented by the same counsel is without merit.

A-10

OPINION

PER CURIAM:

[1] Of the several issues raised in this petition for

rehearing’ we find that the only issue we need consider

is whether the appellants, Jose G. Cantu and Shirley A.

Fontenot, were denied effective assistance of counsel

because they were represented by the same counsel.”

After requesting briefing by the parties and fully con-

sidering this issue, we conclude that this contention is

without merit..Our conclusion is based on the following:

(1) There was no conflict of interests between

Cantu and Fontenot because their joint defense

rested on the theory that neither party filed fraudu-

lent tax returns.

1. The petitioners contend that it was plain error for the district

court to allow evidence of their codefendant Steven Austin’s convic-

tion to be introduced into evidence. We reject this argument because

(1) defense counsel mentioned this evidence during the trial and

four times during closing arguments, (2) neither party objected to

the introduction of this information, and (3) the district court

properly cautioned the jury that Austin’s conviction was not to be

relied upon in determining the petitioners’ guilt or innocence. The

petitioners also contend that the sentencing hearing was reduced to

a “meaningless formality” because the district court did not order

the preparation of a presentencing report under Federal Rule of

Criminal Procedure 32(c)(1). We reject this argument because

under Fed. R. Crim. P. 32(c)(1), a district court may dispense with

a presentence report if it finds that such a report is unnecessary. In

the instant case, the district court so held when it found that it had

all the necessary information “at hand.” In addition, the district

court granted the petitioners the opportunity to address the court

regarding sentencing. We find no error in the sentencing hearing.

2. The petitioners claim that they were denied effective assistance

of counsel because (1) their joint representation presented their coun-

sel with a conflict of interest; (2) their counsel failed to move for

relief from prejudicial joinder; and (3) an insufficient number of

issues was raised on appeal. Since these arguments are obviously

related, we combine them in considering the merits of the petitioners’

claim to ineffective assistance of counsel.

A-11

(2) Shortly after an indictment was issued against

the petitioners, the court questioned the petitioners

concerning their joint representation and was satisfied

that the petitioners did not perceive a conflict. In

fact, both Cantu and Fontenot signed a form entitled

“Joint Representation by Counsel—Waiver of Con-

flict of Interest.”

(3) The petitioners’ counsel did not err in failing

to move for severance because the petitioners’ de-

fense theories were the same; that is, that neither party

filed fraudulent tax returns. Separate trials on the

same theory would have wasted judicial resources.

(4) Both petitioners had to be aware of the

possibility of pursuing a different theory in separate

trials because Steven Austin, a codefendant, success-

fully moved for severance to pursue a different de-

tense theory. Yet each petitioner signed the waiver

referred to above.

(5) Appellate counsel was not ineffective. The

appellate contention that evidence from the search

was improperly introduced related to the evidence

against both Cantu and Fontenot. Counsel was under

no obligation to raise other meritless issues on appeal.

Finally, to accept the petitioners’ arguments relating

to the effectiveness of counsel would allow unsuccessful

defendants the right to change their defense theory after

conviction. We certainly find no reason in this case to

allow this result.

The petition for rehearing is DENIED.

A-12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

DOCKET NO. H-84-176-S

UNITED STATES OF AMERICA

v.

JOSE G. CANTU

(Filed March 1, 1985)

JUDGMENT AND COMMITMENT ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date, March 1,

1985, with counsel, Michael Haines, pleading not guilty.

There being a verdict of guilty.

Defendant has been convicted as charged of the offense

of: Conspiracy to defraud the government with respect

to claims. 18 U.S.C. 286 (Count 1); Submission of false

claims to a government agency, aiding and abetting,

18 U.S.C. 2 & 18 U.S.C. 287 (Counts 2-8); Theft of

government money, aiding and abetting, 18 U.S.C. 2 &

18 U.S.C. 641 (Count 9); Mail fraud, aiding and abet-

ting, 18 U.S.C. 2 and 18 U.S.C. 1341 (Counts 10-18).

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no suf-

ficient 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

A-13

for a period of five (5) years as to Count 1. As to

Count 2, the defendant is sentenced to the custody of

the Attorney General for a period of One (1) Year. to

run consecutive to the sentence imposed in Count 1.

As to Count 3, the defendant is s ntenced to the custody

of the Attorney General for a period of Five (5) Years.

execution of sentence suspended and the defendant is

placed on probation with supervision for Five (5) Years.

to commence upon his release from incarceration. As to

each Count 4-18, imposition of sentence is suspended

and the defendant is placed on probation with supervision

for a period of Five (5) Years, to run concurrent to

each other and concurrent to the sentence imposed in

Count 3.

As a special condition of probation, the defendant is

to make restitution in the amount of $15.000.00 to the

U.S. Government.

It is ordered that the Clerk deliver a certified copy of

this judgment and commitment to the U. S. Marshal or

other qualified officer.

/s/ L. CLURE MORTON

L. Clure Morton

U. S. District Judge

APPROVED: /s/ J. D.

Date: March |, 1985.

A-14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

DOCKET NO. H-84-176-S

UNITED STATES OF AMERICA

v.

SHIRLEY A. FONTENOT

(Filed March 1, 1985)

JUDGMENT AND COMMITMENT ORDER

in the presence of the attorney for the government the

defendant appeared in person on this date, March 1,

1985, with counsel, Michael Haines, pleading not guilty.

There being a verdict of guilty.

Defendant has been convicted as charged of the offense

of: Submission of false claims to government agency,

aiding & abetting; 18 U.S.C. 287 & 2 (Count 4). Mail

fraud, aiding & abetting: 18 U.S.C. 1341 & 2 (Counts

12 & 17).

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no suf-

ficient 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 One (1) Year as to Count 4. As to

Count 12, the defendant is sentenced to the custody of

the Attorney General for a period of Five (5) Months

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and twenty-nine (29) days, to run consecutive to the

sentence imposed in Count 4. As to Count 17, imposition

of sentence is suspended and the defendant is placed on

probation with supervision for a period of Three (3)

years, to commence upon completion of her incarceration

sentences.

It is ordered that the Cierk deliver a certified copy of

this judgment and commitment to the U. S. Marshal or

other qualified officer.

/s/ L. CLURE MORTON

L. Clure Morton

U. S. District Judge

APPROVED: /s/ J.D.

Date: March 1, 1985. :

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U.S. CONSTITUTION

AMENDMENT VI

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 defence.

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RULES OF CRIMINAL PROCEDURE

Rule 8. Joinder of Offenses and of Defendants

* * *

(b) Joinder of Defendants. Two or more defendants

may be charged in the same indictment or information

if they are alleged to have participated in the same act

or transaction or in the same series of acts or transactions

constituting an offense or offenses. Such defendants may

be charged in one or more counts together or separately

and all of the defendants need not be charged in each

count.

Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the government is

prejudiced by a joinder of offenses or of defendants in

an indictment or information or by such joinder for trial

together, the court may order an election or separate

trials of counts, grant a severance of defendants or pro-

vide whatever other relief justice requires. In ruling on

a motion by a defendant for severance the court may

order the attorney for the government to deliver to the

court for inspection in camera any statements or con-

fessions made by the defendants which the government

intends to introduce in evidence at the trial.

* * *

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Rule 32. Sentence and Judgment

* * *

(c) Presentence Investigation.

(1) When Made. The probation service of the

court shall make a presentence investigation and

report to the court before the imposition of sentence

or the granting of probation unless, with the per-

mission of the court, the defendant waives a pre-

sentence investigation and report, or the court finds

that there is in the record information sufficient to

enable the meaningful exercise of sentencing dis-

cretion, and the court explains this finding on the

record.

The report shall not be submitted to the court

or its contents disclosed to anyone unless the de-

fendant has pleaded guilty or nolo contendere or

has been found guilty, except that a judge may, with

the written consent of the defendant, inspect a pre-

sentence report at any time.

* * *

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Rule 44. Right to and Assignment of Counsel

(c) Joint Representation. Whenever two or more de-

fendants 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

inquire with respect to such joint representation and shall

personally advise each defendant of his right to the effec-

tive assistance of counsel, including separate representa-

tion. 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 appropriate to protect

each defendant’s right to counsel.

* * *

Rule 52. Harmless Error and Plain Error

* * *

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed although they were

not brought to the attention of the court.

* * *