# Petition for Writ of Certiorari — Cantu v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 847

## Text

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, 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

A-15

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. :

A-16
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.

A-17
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.

* * *

A-18

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.

* * *

A-19

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.

* * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2150%3A1. Public record. Not legal advice.