Petition for Writ of Certiorari — Krebs v. United States

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Supreme Court, U.S.

FILED

N >

; AUG ® 1986

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

RYAN KREBS, M.D.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT D. LUSKIN *

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsei for Petitioner

* Counsel of Record

: «

WILSON - EPes PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether, under Johnson v. Zerbst, 304 U.S. 458

(1938), a criminal defendant may prospectively, through

a waiver of any “conceivable” potentiai conflict, know-

ingly and voluntarily waive his right to counsel if he is

wholly unaware of the facts underlying an actual conflict

of interest or of the consequences of the conflict to his

right to counsel.

2. Whether the intentional concealment by the govern-

ment, in violation of an explicit court order, of relevant

facts concerning an actual conflict of interest by defend-

ant’s counsel violates a defendant’s Sixth Amendment

right to counsel.

(i)

TABLE OF CONTENTS

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alti csstndcahbeespesianeidneibanssomrbsecnamenenne

RETESET Toe ee

Facts Underlying the Prosecution ................22...--

2. Facts Underlying the Conflicts ...........00000000200002..-.

Facts Underlying the Watver ............2......2.2--000---

I MN I ne cemeconsennncssosueccsoncssns ~

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

The Sixth Circuit has articulated standards

governing the waiver of fundamental constitu-

tional rights that conflict with those established

by the Supreme Court and other courts of

sk decd pecanaadsoesipsencnn

A. The need to define the elements of a waiver

of the right to conflict-free counsel ................

B. The need for adequate procedures to secure

a csiussiissinenpasionans

Ignoring the intentional concealment by the

government of facts basic to the waiver decision

undermines the ability of the court to fulfill its

Sixth Amendment responsibilities and violates

those of the government ....................eeeeeeeeeeeeeeeeeeeee

CONCLUSION .................... Iniaicciietaaidiee tea inlaiicisendindchdeosasbice

TABLE OF AUTHORITIES

CASES Page

Adams v. United States ex rel. McCann, 317 U.S.

OO: I ai ic eledataaaniskinian doasesent 16

Boykin v. Alabama, 395 U.S. 459 (1969) -.........- 15, 23, 24

Brady v. Maryland, 373 U.S. 83 (1963) ..............-...-. 28

iis ee United States, 397 U.S. 742 (1969) .......... 14, 16,

17, 23

Brewer v. Williams, 430 U.S. 385 (1977) -............... 15

Cuyler v. Sullivan, 446 U.S. 335 (1980) ........ 14, 15, 20, 23,

24, 26

Edwards v. Arizona, 451 U.S. 477 (1981) ........-..... 16

Faretta v. California, 422 U.S. 806 (1975) ......... 15, 16, 27

General Mill Supply Co. v. SCA Services, Ince.,

oo7 F.2d 704 (6th Cir. 1968) ................................ 28

Glasser v. United States, 315 U.S. 60 (1942) -........ 22

Holloway v. Arkansas, 435 U.S. 475 (1978) ........ 15, 20, 22

24, 26

Johnson v. Zerbst, 304 U.S. 458 (1938) -........ 14, 15, 17, 22

Maine v. Moulton, 106 S. Ct. 477 (1985) ....... eh le 27

Massiah v. United States, 377 U.S. 201 (1964) ...... + |

McCarthy v. United States, 394 U.S. 459 (1969) .... 23, 24

Michigan v. Jackson, 106 S. Ct. 1404 (1986) ....... 14, 22, 27

Michigan v. Mosley, 423 U.S. 96 (1975) ................. 19

National Equipment Rental v. Szukhert, 375 U.S.

IIE iia cidalnn ca cea tenataeatiaaennmaieltsse ASAD as 16

State v. Davia, 110 Ariz. 29 (1978)...................-........ 26

Strickland v. Washington, 104 S. Ct. 2052 (1984) .. 15

United States v. Curcio, 694 F.2d 14 (2d Cir.

ITI a,c sihiescesehaiahennsiaseenataeilcaeeiegsnaladiea laine ne es 20

United States v. Curcio, 680 F.2d 881 (2d Cir.

BI ciieshccsecicsnsnostiennntabadeioncitenbeavansnamaiaiian 14, 17, 18, 19, 20, 24

United States v. Dolan, 570 F.2d 1177 (8d Cir.

ID onnstietesincninskopnidntarouponssiguaiplaiaadadeail 14, 17, 18, 20, 24, 25

United States v. Foster, 469 F.2d 1 (1st Cir.

TTIIT sccsic.seash:cntatcedarsidueota ui abba lesa taltee euaate aamcananis 24

United States v. Gaines, 529 F.2d 1038 (7th Cir.

BND» snicivceossidtivnnsinsstcnisetinasasniimmmanepesiacninalamineniamn 19

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

TABLE OF AUTHORITIES—Continued

Page

United States v. Geittmann, 722 F.2d 1419 (10th

NS RRR Tc TNE Ls Pa cd See 24

United States v. Henry, 447 U.S. 264 (1980) _......... re |

United States v. Lawriw, 568 F.2d 98 (8th Cir.

1977), cert. denied, 485 U.S. 969 (1978) ............. 23, 24

United States v. Poston, 727 F.2d 734 (8th Cir.),

cert. denied, 104 S. Ct. 2179 (1984) .....00.o 18

United States v. Romero, 780 F.2d 981 (11th Cir.

REI adertiies sesecsslads dahil nataasnastdaenunamuniaben cities 24

United States v. Turkish, 470 F. Supp. 903 (S.D.

Pin PEE -whiscsincenecciecsdaomamnireaedae es ee 28

United States v. White, 706 F.2d 506 (5th Cir.

RII IP FF OSE at He Be 8h eM Sea 14, 17, 19, 23, 24

Wood v. Georgia, 450 U.S. 261 (1981) _......... 15, 23, 26, 27

Von Moltke v. Gillies, 332 U.S. 708 (1948) ............ 15, 16

RULES

Piss. S Bs Seem ne Menen 23

meme GOCE), We, TC Be ccc cece cee 18

Local Rule 6(b) (4), District Court of the Eastern

BPAMERICE GT BRPCMIOOT <oncn ccc icsececeseecinsccnnoconcoceescusoseees 28

STATUTES

BE UW. BE BEL Gee) C1) BBW once scceiccrccescoceccircessceses 3

BP Ad Nee RNB ivisernniciiins desasnccrsctoneiinnbLnacscasisbisisnainebespsins 1

OTHER AUTHORITIES

ABA Model Code of Professional Responsibility

(1976) :

I so oe has te ee, 28

LILA ee ER ricer EE 28

|" * SS Sen nce eee eS ke, 27

I een eens eet ot shea 28

ABA Model Rules of Professional Conduct 1.7

As CU i ed 28

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No.

RYAN KREBS, M.D.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ryan Krebs, M.D., petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 788

F.2d 1166 and reprinted as Appendix A in the appendix

to this petition. The judgment of the district court is

reprinted as Appendix B in the appendix to this petition.

JURISDICTION

The judgment of the court of appeals was entered

April 18, 1986. An order denying defendant’s petition

for rehearing and suggestion for rehearing en banc was

entered June 6, 1986. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATEMENT

Petitioner was represented at trial by a lawyer who

was himself accused before the jury, by the government’s

principal witness, of participating in the very conspiracy

for which his client was charged. Although the circum-

stances raise grave questions about whether petitioner

was denied his right to a fair trial, the Court of Appeals

for the Sixth Circuit declined to reach these questions,

holding that he knowingly and voluntarily waived his

right to counsel.

The history of this case is set out in some detail in the

opinion of the court of appeals. Pet. App. la-10a. A

brief review is necessary to understand the issues in this

petition. It is divided into four sections: (1) facts under-

lying the prosecution; (2) facts underlying the conflicts;

(3) facts underlying the waiver; and (4) the opinion

below.

1. Facts underlying the prosecution. This case in-

volves a large-scale drug trafficking operation conceived

and led by Nellie Bell Kassim, who eventually became the

government’s principal witness. Jd. at la. In the spring

of 1980, Kassim developed a plan to conceal the illegal

sale of prescription drugs behind the apparently legiti-

mate facade of medical clinics. 29 Tr. 501.1 Although

the clinics served many legitimate patients, their princi-

pal function was to conceal various illegal drug activities,

the most lucrative of which involved the bulk sale of

prescriptions as well as controlled substances obtained

through phony prescriptions. Pet. App. la-2a.

Petitioner Dr. Ryan Krebs did not become associated

with Kassim until the fall of 1980. A 29-year old resident

in internal medicine at the University of Michigan Hos-

pital in Ann Arbor, 50 Tr. 31, Dr. Krebs secured part-

time employment at Kassim’s clinic after answering a

newspaper advertisement for a physician to work in a

downtown Detroit medical clinic. 50 Tr. 42-43.

1 References to the transcript are first to the volume and then

the page on which the testimony appears. Documents are cited

with the prefix “R’” followed by the record entry number as it

appears on the docket.

According to the government’s theory, Dr. Krebs did

not become involved in the conspiracy until the fall of

1981, a year after he began to work part-time for Kas-

sim. 12 Tr. 39-41; 31 Tr. 112. According to Kassim, Dr.

Krebs inadvertently learned about the sale of bulk pre-

scriptions and told Kassim that he “was ready to make

money.” 29 Tr. 116. Thereafter, Dr. Krebs allegedly

began selling, blank prescriptions to Kassim and others.

29 Tr. 117-18.

On April 28, 1982, Dr. Krebs was arrested and charged

with 23 other individuals (including Kassim) and six

corporations with violations of 21 U.S.C. §§ 841(a) (1)

& 846. R.1.

At trial, the government’s case against Dr. Krebs

rested principally on the testimony of Kassim, who en-

tered into a plea agreement before trial. Pet. App. 6a.

Dr. Krebs asserted that he was manipulated by Kassim

and by her confederates and that his name was used with-

out his knowledge or consent to advance her illegal busi-

ness. Pet. App. 8a. On November 22, 1982, following

seven weeks of trial and twelve days of jury delibera-

tions, Dr. Krebs was acquitted of conspiracy to possess

with intent to distribute certain drugs and convicted of

conspiracy with intent to distribute certain others. Pet.

App. 10a. On January 7, 1983, he was sentenced to five

years’ imprisonment. Pet. App. 26a.”

2. Facts underlying the conflicts. Dr. Krebs was rep-

resented at trial by Kenneth M. Robinson, a Washington,

D.C., attorney who had previously represented Kassim

and the clinic in connection with the investigation that

led to the indictment. Dr. Krebs’ trial was dominated by,

charges that Robinson himself was a participant in the

conspiracy and by his efforts to rebut them. These allega-

2 As sentencing, the court found that Dr. Krebs had participated

in the conspiracy only from October, 1981, until January, 1982,

and not the 15-month period alleged in the indictment. Transcript

of Proceedings, January 7, 1983, at 7, 14.

tions were concentrated in the testimony of Kassim, but

they also surfaced repeatedly during the trial, after the

court ruled early in the proceedings that the truth of one

particular accusation against Robinson was a proper

matter for cross-examination before the jury. 14 Tr. 49.

Despite this preoccupation with Robinson’s guilt, the

court never inquired whether Robinson was properly

defending his client.

Robinson was accused of an array of offenses more

serious and of longer duration than the charges against

his client. No summary can capture the full flavor of

the proceedings. A few instances are particularly sig-

nificant, however.

First, Kassim testified that the affidavits that she and

Robinson executed in connection with the court’s pre-

trial inquiry into potential conflicts arising from his prior

representation, see p. 8, infra, were themselves a fraud

upon Dr. Krebs and the court. According to Kassim,

Robinson threatened to discredit her if she refused to

waive any conflict. He promised, however, that if she

agreed to execute a waiver and to lie about Dr. Krebs’

involvement, he would support her in prison. 31 Tr.

21-22.

Second, Kassim alleged that Robinson had played a

pivotal role in a planned drug sale in Washington, D.C.,

3 Robinson was alieged to have committed the following offenses:

(1) subornation of perjury in the McInnis trial (12 Tr. 74.); (2)

subornation of perjury in Dr. Krebs’ trial (31 Tr. 21, 56); (3)

future drug offenses (31 Tr. 22); (4) taping a potential witness

in violation of Michigan law (37 Tr. 187-88); (5) offenses in

connection with this conspiracy: (a) involvement in the sale of

Dilaudid (12 Tr. 18; 31 Tr. 82, 86); (b) drug sales in his office

(831 Tr. 136); (c) forgery (31 Tr. 67); (d) complicity in the

overall conspiracy (31 Tr. 67); (e) sending Daniel Lebby to Dr.

Krebs for a drug sale (31 Tr. 17, 19); (f) offering DEA pro-

tection to Kassim when she came to Washington, D.C., with drugs

(31 Tr. 88-89); and (g) concealment of the proceeds of the con-

spiracy (31 Tr. 26).

OFT ae pe ee

RRS Ee

that resulted in the arrest of her sister, Nancy McInnis,

whom Robinson later successfully defended.* According

to Kassim, Robinson arranged a meeting for Kassim with

a prosecutor in Washington, knowing that it was a pre-

text for Kassim to bring drugs from Detroit. 31 Tr. 74-

75. She testified that when McInnis was arrested, Robin-

son advised her how to conceal 4,000 Dilaudid pills she

was carrying on her person so that she could pick them

up later. 31 Tr. 82. This exchange followed:

ROBINSON: All right. Now, was this 4,000

Dilaudid for me?

KASSIM: Keep on Robinson. Come on.

ROBINSON: Were they for me?

KASSIM: Come on.

ROBINSON: Are they for me?

KASSIM: They was for a sale at your office. I

don’t know who was going to buy them.

ROBINSON: Who was going to buy them?

KASSIM: You told me to bring them.

ROBINSON: Why didn’t you try to come at me

undercover?

KASSIM: Well, at that time we was in cahoots

together, almost. Pet. App. 9a-10a.

Third, she described in detail the central, personal role

played by Robinson in the alleged bulk sale of prescrip-

tions by Dr. Krebs to Daniel Lebby, a former client of

Robinson. 31 Tr. 94-95. According to Kassim, when

Lebby sought to purchase bulk prescriptions from her

and Dr. Krebs, she became concerned that Lebby was an

undercover agent and telephoned Robinson in Dr. Krebs’

presence to ask about him. She testified on cross exami-

nation that “you said he was okay because you repre-

sented him in a case, and Dr. Krebs was afraid because

he sat there and told Dr. Krebs that he was on parole.

* This transaction was also incorporated as Overt Act 33 in the

conspiracy charge against Dr. Krebs. R.1; Pet. App. 3a.

And Dr. Krebs gave him some scripts and money.” 31 Tr.

20.°

Summing up her relations with Robinson over the life

of the conspiracy, see note 8, supra, Kassim observed:

“T made a little money. You did, too.” 31 Tr. 109.

From the outset of the trial, Robinson defined the case

against Dr. Krebs as turning in large part on the truth

of the charges against himself. He devoted a substantial

portion of his opening statement to the charges that he

expected to be made against him, 7 Tr. 47-49, and,

throughout the trial, remained preoccupied with his own

potential liability.

In one instance, stung by the suggestion that he had

tried to persuade a defense witness to testify falsely in

this case, Robinson demanded that he, the witness, and

the FBI agent who had interviewed her all submit to

polygraph examinations, complaining that “I feel, out

of an obligation to myself, being a coward, that I should

put this on the record. I haven’t done anything wrong,

and I want te offer that invitation in a Federal Court to

a Federal Judge.” 14 Tr. 48-49.°

In closing, Robinson returned to the theme that his and

Dr. Krebs’ guilt or innocence were inextricably linked.

His remarks invited the jury to consider the evidence

against him in deciding whether Dr. Krebs was innocent

or guilty: “If you believe that about me,” he explained,

alluding to Kassim’s allegations, “then it is too bad for

5In its closing argument, the government relied on this alleged

incident as evidence that Dr. Krebs engaged in the sale of bulk

prescriptions. 56 Tr. 88. Robinson, of course, was not available

to testify on Dr. Krebs behalf; and although Lebby reportedly

denied this allegation, 15 Tr. 37, 43. Robinson did not call him

as a witness.

6 The court responded: “We would rather not be involved,” to

which Robinson replied “I’d rather not be, too.” 14 Tr. 48-49.

me and too bad for Dr. Krebs.” 56 Tr. 115.7 Robinson

likewise suggested that his success as an advocate for

Dr. Krebs depended upon whether the jury believed he

was guilty of criminal offenses. Referring to the perjury

charge levelled against him, Robinson concluded: “And

its relevant, because you do have to give weight if I do

that. If you believe that about me, then I have failed.”

56 Tr. 117.

3. Facts underlying the waiver. In its opinon below,

the court of appeais pointed to two instances that it

characterized as “waivers” by Dr. Krebs of his right to

counsel, the first in the context of a pre-trial conflicts

hearing and the second based on remarks by Robinson

on the day trial was to begin. Pet. App. 12a-14a.

a. The conflicts hearing. Because a number of de-

fendants were jointly represented or had counsel who had

previously represented other defendants or witnesses, on

May 26, 1982, the court ordered the government to pre-

pare a memorandum “concerning all known possible

conflicts of interest between and among attorneys and

clients herein.” R. 201.

In its response, filed June 10, 1982, the government

pointed out that Robinson might have conflicting interests

preventing him from adequately representing Dr. Krebs

because of his prior representation of Kassim and Mc-

Innis.. The government concluded that Kassim and Dr.

Krebs might have unspecified conflicting interests and

that Robinson might have acquired confidential informa-

tion from them both or from McInnis. Thus, the govern-

ment noted, Robinson’s loyalties might be divided among

Kassim, McInnis, and Dr. Krebs. Pet. App. 3a-4a; R.

200.

7Robinson also stressed in his closing that the question of

Kassim’s credibility had crucial consequences not only for Dr.

Krebs, but for him as well. “[I]f you do take her word not only

does Dr. Krebs have trouble, but some day I might too.” Pet. App.

10a.

On June 22nd, Robinson responded with three affi-

davits: his own, Dr. Krebs’, and Kassim’s. In his own

affidavit, Robinse® effirmed that his present and former

clients had waived any conflicts and concluded that there

was “no real or potential conflict” because “[n]either

person has ever admitted their guilt in this case or has

implicated the other by statement or inference to counsel.”

Pet. App. 4a.

Kassim, in her affidavit, which she later claimed to

have been fraudulently procured by Robinson, see p.

4, supra, said that Robinson was first retained in

approximately December, 1980, to represent the clinic in

a grand jury investigation in Washington, D.C. She

asserted that “[a]t no time have I ever suggested any-

thing to Robinson other than that I, the clinic and Dr.

Krebs are totally innocent.” R. 215.

Dr. Krebs’ affidavit was expressly predicated on the

allegedly false representations in the affidavits of Robin-

son and Kassim. Dr. Krebs’ affidavit begins: “I... have

read the above [affidavits], know that Robinson previ-

ously knew Ms. [Kassim] and others prior to knowing me

and that any representation he previously had is waived

as a conflict for any trial or appeal.” Pet. App. 4a;

R. 215. The waiver was limited by its terms to conflicts

arising from Robinson’s prior representation of Kassim,

and concluded that if the court determines that Robinson

“has in fact previously represented [Kassim] ... I

waive any conceivable—actual or potential—conflict.”’

Ibid.

On June 24th, the district court held a hearing on the

issues raised by the government concerning Robinson

and other counsel in the case. 1 Tr. 4-56; Pet. App. 4a.

The government reiterated its concerns about Robinson’s

representation of Dr. Krebs. Robinson assured the court

that he had secured waivers from Kassim and Dr. Krebs.

On this basis, the court addressed Dr. Krebs directly.

The court ascertained that he was aware of his right “‘to

be represented by fully effective and fully loyal and con-

flict free Counsel,” and that he had heard the govern-

ment’s concerns. After warning Dr. Krebs that “we can’t

know now what possible conflicts could develop,” and

reminding him that he could not raise the conflict issue

again, the court permitted Dr. Krebs to retain Robinson.

Pet. App. 4a-6a.

Shortly after the June 24 hearing, Kassim agreed to

plead guilty in return for her cooperation against the

other defendants, including Dr. Krebs.* During the

twelve weeks between the conflicts hearing and the trial,

the government learned that the information concerning

Robinson and Kassim that was the subject of the conflicts

hearing falsely portroyed the relationship between them.

The trial testimony of Kassim and the FBI and DEA

agents responsible for the case establishes that well before

trial, Kassim made at least three significant allegations

that had an obvious bearing on Robinson’s ability to de-

vote himself exclusively to the defense of Dr. Krebs.

First, Kassim alleged that Robinson had vouched per-

sonally for Daniel Lebby, one of Robinson’s former clients,

when Lebby sought to purchase bulk prescriptions from

Kassim and Dr. Krebs. Pet. App. 6a.° Second, Kassim

implicated Robinson directly in the events that led to the

® Because the government planned to use, and in fact did use

Kassim to obtain evidence in an undercover capacity, the govern-

ment kept this arrangement secret. Pet. App. 6a.

® So seriously did the government regard this allegation that the

lead agents on the case visited Lebby on two separate occasions,

the second time on the weekend after opening statements in the

trial; the responsible FBI agent testified that the purpose of the

visit was to “confirm what Mrs. [Kassim] was telling” the gov-

ernment about whether Robinson “had sent [Lebby] to [Kassim’s]

clinic.” 15 Tr. 37. Although there has never been any evidentiary

inquiry into the nature and scope of the government’s interest

in Robinson, the court of appeals nevertheless concluded that he

was not a “target” of the prosecution. Pet. App. 10a n.2.

arrest of McInnis. Pet. App. 6a.° Finally, Kassim had

told the government before trial that she had committed

perjury at the McInnis trial and that Robinson “had put

her up to it.” 12 Tr. 74; 31 Tr. 141; Pet. App. 6a.

Despite the court order to the government to supple-

ment its conflicts memorandum “on a continuing basis,

with all such information which may become known to

the government so long as this matter is before this

court,” the prosecutors took no steps to inform the de-

fendant, his counsel, or the court of these developments.

Pet. App. lla, 18a-19a.

b. Robinson’s remarks. Although ignorant of the fact

that Kassim was prepared to implicate Robinson in the

conspiracy, counsel for another defendant, relying on

Jencks material provided by the government shortly be-

fore trial, concluded that evidence of Robinson’s involve-

ment with Kassim demonstrated an actual conflict of

interest. Pet. App. 7a. Accordingly, he moved on Septem-

ber 16 to sever the trial of his client from that of Dr.

Krebs. On the day trial was to begin, he argued that

there was evidence that Robinson was aware of, and

perhaps had encouraged perjury by Kassim at the Mc-

Innis trial.1! Without soliciting any response either from

10 Although she was to articulate a more damning version of

events at trial, Kassim testified that she told the government as

early as July 1st that Robinson had been aware that Kassim was

bringing drugs to Washington for her meeting with him and had

suggested ways for Kassim to avoid apprehension. 30 Tr. 78-80.

11 Specifically, he alleged that (i) the government had failed to

make a timely disclosure that Kassim had become a government

witness; (ii) that the McInnis trial was part of the conspiracy

in this case; (iii) that Robinson had proffered testimony of

Kassim at the McInnis trial that mentioned Robinson as “virtually

having been a witness in the case”; and, (iv) that the government

failed to disclose that Kassim had committed perjury at the Mc-

Innis trial and that Robinson was aware of, and perhaps encouraged

her false testimony. Pet. App. 7a.

the government or from Robinson, the court denied the

severance motion as untimely. Pet. App. 7a.

While counsel was presenting his severance motion and

another motion, Robinson interrupted with what he char-

acterized as a question. Robinson stated:

There’s a possibility that Ms. [Kassim] may give

testimony about me whether or not I let her commit

perjury. And I want to make it clear that anything

that Ms. [Kassim] wants to say about me on the

stand, is fine and Dr. Krebs will waive that as an

issue. If Ms. [Kassim] wants to say I’m a drug

runner, or I murdered my father, she can say any-

thing she wants. I explained to Dr. Krebs and he’s

willing to waive that. Pet. App. 12a. \

Neither the government nor the court acknowledged

this remark in any fashion or responded to Robinson’s

denial on behalf of “the accused”—referring in this

instance to himself—that he had suborned Kassim’s

perjury. 4 Tr. 57.

4, The decision below. Plainly troubled by Robinson’s

behavior, the court of appeals chose nevertheless not to

confront the fundamental question of whether Dr. Krebs

was denied his right to a fair trial. It elected, instead, to

attribute his lawyer’s bizzare conduct to “unusual trial

strategy,” and found that the defendant “made a know-

ing and intelligent waiver of his right to representation

by conflict-free counsel.” Pet. App. 12a-14a.”

In finding a waiver, the opinion relied principally on

the affidavit executed jointly by Dr. Krebs and Kassim.

Ignoring whether Dr. Krebs had any knowledge of the

true dimensions of his lawyer’s conflict or the risks it

entailed at the time he signed the waiver, the court

focused instead on the fact that Dr. Krebs’ affidavit used

12 The court of appeals speculated that Robinson’s preoccupation

with the charges against him was “an apparent attempt to estab-

lish Kassim’s lack of credibility.” Pet. App. 10a.

words that seemed to encompass any conflict, whether or

not he was then aware of it. Pet. App. 12a. The panel

concluded: “Even if the affidavit signed by Krebs was

based on Robinson’s representation that Kassim had never

admitted guilt in the instant case, Krebs expressly waived

‘any conceivable—actual or potential—conflict.’” Ibid.

The relevant question, according to the court, was not

whether Krebs understood the significance of risks he was

undertaking by employing Robinson, but whether he un-

derstood what it meant to waive any “conceivable” con-

flict. Pet. App. 13a. Because the trial court had warned

Dr. Krebs that “unforeseen conflicts of interest may

arise,” it had no trouble answering this question: “Clearly,

he possessed sufficient intelligence to comprehend the im-

port of a waiver of ‘any conceivable conflict.’” Pet. App.

13a.%

The opinion suggests that any shortcomings in the

affidavits and the hearing were cured by Robinson’s state-

ment on the day before trial that “[t]here’s a possibility

Ms. [Kassim] may” accuse him of wrongdoing and that

“Dr. Krebs will waive that as an issue.” Pet. App. 12a-

13a. Although the severance motion and Robinson’s re-

mark raised only the charge that Robinson had suborned

perjury at the McInnis trial, and not the more serious

accusation that he had participated directly with Kassim

and Dr. Krebs in the conspiracy, the court concluded that

it was sufficient to put Dr. Krebs on notice “that Kassim

might make accusations against [Robinson].” Pet. App.

12a-13a. According to the court, Dr. Krebs’ failure to

“repudiate his prior waiver” in light of this new informa-

tion demonstrates that he “chose Robinson to represent

him knowing that potential conflicts of interest existed.”

Pet. App. 14a.

13 The court points to the June 24th hearing, which was also

conducted before any of the facts about Robinson’s conflicts were

known, to the same effect. According to the court, Dr. Krebs’

responses to the court at the hearing evidenced a desire “to retain

Robinson as his counsel, regardless of any possible conflicts that

might develop in the course of the trial.” Pet. App. 12a.

The court did find “inexcusable” prosecutorial miscon-

duct in the concealment from the court of the facts of

Robinson’s conflict. Pet. App. 18a-19a, 22a. The court of

appeals also appeared to agree that the district court

breached its duty to pursue conflicts of interest of which

it becomes aware, even if counsel does not. Pet. App. 12a.

However, because the court of appeals held that Dr.

Krebs could waive his right to counsel without any

familiarity with the underlying facts or their conse-

quences, it apparently attached no significance to the

actions of the government or the court.

REASONS FOR GRANTING THE WRIT

This case presents a textbook illustration of the im-

portance of the protections designed to safeguard a

defendant’s Sixth Amendment right to counsel. Although

the government and the district court were well awaic

before trial that the defendant’s lawyer was a material

witness to and an alleged participant in the conspiracy

for which his client was charged, the defendant never

received even the barest warning about the consequences

of such conflicts to his right to a fair trial. As a result,

he was ambushed at trial by counsel suffering from grave

and disabling conflicts of interest.

Sidestepping the lapses of those on whom this Court

has placed primary responsibility for protecting a de-

fendant’s Sixth Amendment rights, the court of appeals

imposed on Dr. Krebs alone the burden of comprehend-

ing the threat to his right to counsel. It held that he

waived it. This result, repugnant in equal measure to

settled constitutional principles and basic fairness, merits

review for several reasons.

To begin with, the court of appeals has fundamentally

reshaped the standard governing waivers of Sixth Amend-

ment rights by holding that the Sixth Amendment is

satisfied so long as the defendant comprehends what it

means to waive prospectively any “conceivable conflict,”

even if he is unaware of “the relevant circumstances and

likely consequences.” Brady v. United States, 397 U.S.

742, 748 (1969). This result is at odds with the manner

in which this Court has applied the waiver standard in

other Sixth Amendment contexts; and it is squarely in

conflict with the decisions of at least three other circuits,

which have required as a predicate to a valid waiver that

a defendant be “aware of the forseeable prejudices his

attorney’s continued representation could entail for his

trial and possible detrimental consequences of those prej-

udices.” United States v. Dolan, 570 F.2d 1177, 1181 (3d

Cir. 1978); United States v. White, 706 F.2d 506, 508

(5th Cir. 1983); United States v. Curcio, 680 F.2d 881,

888 (2d Cir. 1982). See pp. 14-22, infra.

The court’s decision also excuses conduct inimical to

the government’s affirmative obligation to respect a de-

fendant’s right to counsel. The government’s deliberate

concealment of information central to the existence of a

conflict not only violated its own obligations to a defend-

ant, but effectively prevented the trial court from ful-

filling its constitutional obligation to explore a conflict

that it “knows or reasonably should know exists.” Cuyler

v. Sullivan, 446 U.S. 335, 347 (1980). See pp. 22-25,

infra.

1, The Sixth Circuit has articulated standards governing

the waiver of fundamental constitutional rights that

conflict with those established by the Supreme Court

and other courts of appeals.

A. The need to define the elements of a waiver of the

right to conflict-free counsel.

Although the right to counsel free from conflicts of in-

terest may be waived, any waiver must meet the exact-

ing standard set out by this Court nearly a half century

ago in Johnson v. Zerbst, 304 U.S. 458 (1938), governing

the waiver of fundamental constitutional rights.** Al-

14 As articulated there, and reaffirmed last Term in Michigan v.

Jackson, 106 S. Ct. 1404 (1986) ‘“[a] waiver is ordinarily an in-

tentional relinquishment or abandonment of a known right or

privilege.” Johnson v. Zerbst, 204 U.S. at 464.

PANETT E

though this Court has turned often to the elements of a

sufficient waiver in other Sixth Amendment contexts, see,

é.g., Faretta v. California, 422 U.S. 806 (1975) (self-

representation) ; Boykin v. Alabama, 395 U.S. 238 (1969)

(guilty plea) ; Von Moltke v. Gillies, 332 U.S. 708 (1948)

(guilty plea) ; Brewer v. Williams, 430 U.S. 385 (1977)

(interrogation), it has never paused to give meaning to

the standard in connection with conflicts of interest.’

Taking advantage of this gap, the Sixth Circuit has in

this case set out a flanking march around Johnson v.

Zerbst. Focusing on an affidavit executed before the de-

fendant could have had any inkling of his lawyer’s

conflicts or the risks they entailed, the court of appeals

found a valid waiver on the grounds that the defendant

appeared to waive prospectively any conflict, whether or

not he then understood it. The panel concluded: “Even if

the affidavit signed by Krebs was based on Robinson’s

representation that Kassim had never admitted guilt in

the instant case, Krebs expressly waived ‘any conceivable

—actual or potential—conflict.’” Pet. App. 12a. To

satisfy the requirement that a waiver be “knowing and

intelligent,” it was sufficient that the trial court “alerted

Krebs at the conflicts hearing that unforseen conflicts of

interest may arise during trial.” Pet. App. 13a.

By holding that a prospective waiver of any “conceiy-

able” conflict is constitutionally sufficient, even if the de-

fendant is wholly unaware of the underlying facts or

attendant risks, the court has fashioned a new category

of “general waiver.” This species of waiver can be

15 This oversight hardly reflects a lack of concern by the Court

for the problem of conflicts of interest. Four times in the last eight

Terms, this Court has spoken at length about conflicts of interest,

and in each instance has adverted to the need for hearings to deter-

mine the existence of a conflict, see Strickland v. Washington, 104

S. Ct. 2052, 2067 (1984) ; Cuyler v. Sullivan, 446 U.S. 335 (1980);

Holloway v. Arkansas, 435 U.S. 475 (1978), or the waiver of the

right to conflict-free counsel, Wood v. Georgia, 450 U.S. 261, 272

(1981) ; Holloway v. Arkansas, 485 U.S. at 483 n.5,

accomplished without any comprehension of the under-

lying facts or possible consequences so long as it can be

established that the defendant “possessed sufficient intel-

ligence to comprehend the import of a waiver of ‘any con-

ceivable conflict.’ ” Pet. App. 13a.

The reasoning of the court of appeals turns principles

set forth by this Court upside down. While a defendant

must, of course, express a waiver by “clear, unequivocal,

and unambiguous language,” National Equipment Rental

v. Szukhert, 375 U.S. 311, 332-33 (1964), this Court has

“emphasized that the voluntariness of a consent or an

admission on the one hand, and a knowing and intelligent

waiver on the other, are discrete inquiries,” Edwards v.

Arizona, 451 U.S. 477, 484 (1981). Satisfying this latter

element demands “an awareness of the relevant circum-

stances and likely consequences” of a waiver. Brady v.

United States, 397 U.S. at 748. No amount of “voluntari-

ness” by a defendant can offset a complete lack of

familiarity with the specific consequences of a waiver to

his right to a fair trial.

The court of appeals’ meager formulation of “knowing

and intelligent” is wholly at odds with the manner in

which this Court has defined the concept in other Sixth

Amendment contexts. For example, in Faretta v. Cali-

fornia, 422 U.S. 806 (1975), the Court emphasized that

a defendant who proposes to represent himself must

understand more than the mere fact that he enjoys the

right to counsel. “[H]e should be made aware of the

dangers and disadvantages of self-preservation, so that

the record will establish that ‘he knows what he is doing

and his choice is made with eyes open.’” Id. at 835,

quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 279 (1942). Similarly, in the context of

guilty pleas, the Court has stressed that the “fact that

an accused may tell [the court] that he is informed of

his right to counsel and desires to waive this right does

not automatically end the judge’s responsibility.” Von

Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality

opinion of Black, J.) Rather, “[t]o be valid such a

waiver must be made with” a specific understanding of

the charges, the included statutory offenses, the possible

defenses and circumstances in mitigation, and “all other

facts essential to a broad understanding of the whole

matter.” Ibid.

Consistent with these decisions, the Courts of Appeals

for the Second, Third and Fifth Circuits, on facts strik-

ingly similar to those here, have reached results consistent

with the principles underlying Johnson v. Zerbst and di-

rectly contrary to the decision below. They have held that

a professed desire to waive any possible conflicts is consti-

tutionally insufficient absent a full understanding of the

facts underlying a conflict and the attendant risks.

United States v. White, 706 F.2d at 508; United States v.

Curcio, 680 F.2d at 888; United States v. Dolan, 570

F.2d at 1181.

As in the case at hand, counsel for the defendant in

United States v. White was under investigation for ac-

tivity related to the crimes for which his client was

charged. Like Dr. Krebs, the defendant there was “fully

informed of his right” to conflict free counsel and un-

equivocally waived that right despite being warned by

the court that unforseen conflicts might arise. 706 F.2d

at 508 & n.2. Moreover, unlike Dr. Krebs, the defendant

in White was unquestionably aware before trial that his

lawyer might be implicated in the same conduct for which

he was charged and “was quest.oned extensively by the

court regarding his awareness of the existence of a con-

flict.” Ibid. Nevertheless, because the court failed to

“inform[] the defendant of the precise manner in which

he might be prejudiced by [his lawyer’s] representation,”

the Fifth Circuit found, relying on Brady v. United

States, that the waiver “was thus deprived of the know-

ing, intelligent and voluntary nature required for the

waiver of a constitutional right.” [bid.

Similarly, in United States v. Curcio, the Second Cir-

cuit rejected a purported waiver based solely on the

limited concept of “knowing and intelligent” that the

Sixth Circuit held to be sufficient here. In Curcio, the

trial court held a hearing promptly in response to the

government’s motion under Rule 44(c), Fed. R. Crim. P.,

to disqualify counsel jointly representing two defendants.

The court carefully advised both defendants that they had

the right to conflict-free counsel, and, like the trial court

here, warned the defendants “that it was impossible to

predict with certainty what conflicts might arise.” 680

F.2d at 888. Like Dr. Krebs, the defendants professed a

willingness to waive any potential—but then unknown—

conflicts. Ibid.

The court of appeals held this degree of understanding

insufficient to satisfy the “knowing and intelligent” com-

ponent of a waiver, which it characterized as “the most

fundamental and difficult problem for the court.” Jd. at

888. According to the court, the Constitution demands

that defendants be alerted to “the substance of the dan-

gers of representation by an attorney having divided

loyalties in as much detail as the court’s experience and

its knowledge of the case will permit.” Jbid. Only then

“{i]f the defendant reveals that he is aware of and un-

derstands the various risks and pitfalls,” and “that he

nevertheless chooses to hazard those dangers,’ may a

court “regard his waiver as knowing and intelligent.”

[bid.**

16 To the same effect is the decision of the Court of Appeals for

the Third Circuit in United States v. Dolan, 570 F.2d 1177 (3d

Cir. 1978). There, the court held that “[flor a trial judge to

find that a waiver is knowing and intelligent, he must be satisfied

that the defendant is aware of the foreseeable prejudices his

attorney’s continued representation could entail for his trial, and

possible detrimental consequences of those prejudices.” Jd. at 1181;

accord United States v. Poston, 727 F.2d 784, 7388 (8th Cir.),

cert. denied, 104 S. Ct. 2179 (1984) (waiver must be “with

full knowledge of the consequences” and “potential danger” of a

en eee ee

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Neither the courts of appeals in White and Curcio

nor the petitioner proposes that a defendant must un-

derstand “every possible detriment that might befall

[him] as the result of a conflict in a particular case.”

United States v. White, 706 F.2d at 509; United States

v. Curcio, 680 F.2d at 888. Such a requirement might

in many instances be impossible to satisfy, even though

the defendant understands “the substance of the dangers

of representation by an attorney having divided loyalties.”

Ibid. If applied mechanically, it might sacrifice the de-

fendant’s right to make “intelligent and voluntary deci-

sions about his own criminal case,” Michigan v. Mosley,

423 U.S. 96, 109 (1975) (White, J., concurring), to the

singleminded pursuit of the constitutional requirement

that a waiver be “knowing and intelligent.”

Rather, as we discuss infra at pp. 22-25, what is re-

quired is “at least some affirmative effort by the trial

court to inform the defendant of the ways the conflict

might operate to impact deleteriously upon the reasoned

and competent presentation of his or her defense.” United

States v. White, 706 F.2d at 509.17 If the defendant ‘“‘nev-

conflict) ; United States v. Gaines, 529 F.2d 1038, 1043 (7th Cir.

1976) (waiver must be “made with an understanding of the con-

flicting interests and the dangers resulting from them’’).

17 As the Court of Appeals for the Second Circuit explained in

Curcio, the duty of the trial court is to explain the substance of

the dangers “in as much detail as the court’s experience and its

knowledge of the case will permit.” 680 F.2d at 888. “Defendants

need not be prescient.” Ibid. They must simply be “aware of and

understand[] the various risks and pitfalls.” Ibid.

According to the court in White, in the context of a lawyer

who is himself accused of complicitly in the alleged criminal con-

duct of his client, such an explanation might include an explica-

tion of the risks that: the lawyer might not present certain evi-

dence or call certain witnesses for fear of incriminating himself;

he would be ineligible to testify as a witness in his client’s be-

half; and he might resist a plea bargain for fear that his client

might agree to testify against him. 706 F.2d at 509; see also

United States v. Curcio, 694 F.2d 14, 15-19 (2d Cir. 1982) (sum-

marizing district court inquiry after remand).

ertheless chooses to hazard those dangers, we would re-

gard his waiver as knowing and intelligent.” United

States v. Curcio, 680 F.2d at 888. Conversely, as the

Court of Appeals for the Third Circuit found in applying

a similar standard in United States v. Dolan, 570 F.2d

at 1181, “the judge may find that the waiver cannot be

intelligently made simply because he is not in a position

to inform the defendant of the foreseeable prejudices

multiple representation might entail for him.” In such

a circumstance, no constitutionally valid waiver can be

found. See Cuyler v. Sullivan, 446 U.S. at 354 nl

(Marshall, J., concurring in part and dissenting in

part).'® Such_a flexible blend of substance with procedure

guarantees a standard that not only can be met, but one

that, in practice, will be respected. It fairly accommo-

dates both the government’s interest in securing waivers

immune to later challenge and the defendant’s right to

counsel.

Embracing instead the waiver doctrine articulated here

by the Sixth Circuit places defendants in a nearly impos-

sible predicament. Because the waiver of “unforeseen

conflicts of interest [that] may arise,” Pet. App. 13a, is

at once prospective and abstract, it compels a defendant

faced with the mere possibility of a conflict to choose

between the roil of the dice occasioned by a waiver of

“any conceivable” conflict or discharging his counsel of

choice, without the benefit of the facts or the assessment

of likely consequences needed to make such a choice well.

In theory, it demands that basic decisions about funda-

mental rights be made on the basis of incomplete informa-

18 Because the court of appeals expressly found that Dr. Krebs

did not—and need not have—understood the dangers arising from

his lawyer’s conflicts, this Court need not reach the difficult ques-

tion of whether, even though a defendant waives his right to

conflict-free counsel, a court nevertheless may exercise its super-

visory authority to disqualify counsel subject to a conflict of inter-

est. See Holloway v. Arkansas, 435 U.S. at 483 n.5.

tion. In practice, it leads inevitably to the sort of dis-

turbing result witnessed in this case.

Perhaps recognizing these problems, the court of ap-

peals suggests that any shortcomings in the affidavits

and the June 24th hearing were tured by a remark

by Mr. Robinson on the day before trial that “[t]here’s

a possibility Ms. [Kassim] may” accuse him of wrong-

doing and that “Dr. Krebs will waive that as an issue.”

Pet. App. 12a-13a. According to the panel opinion, Dr.

Krebs’ failure to “repudiate his prior waiver” in light

of this new information demonstrates that he “chose

Robinson to represent him knowing that potential con-

flicts of interest existed.” Pet. App. 13a-14a.

There is much that is flawed with this reasoning,

whether Dr. Krebs’ acquiescence is viewed as an inde-

pendent and sufficient waiver of his right to counsel, or

as a coda to the first, flawed waiver. In the first place,

even if it could be inferred from Robinson’s curious re-

mark that “{i]f Ms. [Kassim] wants to say I’m a drug

runner, or I murdered my father, she can say anything

she wants,” Pet. App. 12a-138a, that Dr. Krebs under-

stood the facts underlying the conflict, there is no evi-

dence that he understood their consequences to his right

to a fair trial.” As we have already discussed, at least

a basic understanding of the consequences of a conflict

to a defendant’s right to counsel is an essential element

of a “knowing and intelligent” waiver.

19 Moreover, as we discuss in section two, infra, this assumption

is unwarranted in light of the court’s finding that the government

deliberately concealed basic information regarding the conflict,

in direct violation of the trial court’s conflicts order. As the court

of appeals opinion makes clear, Dr. Krebs knew, at most, that his

counsel may have suborned perjury at the McInnis trial, Pet. App.

12a, but not that Kassim would also accuse Robinson of active

participation in the conspiracy in a way that would make him an

important witness to his own client’s alleged criminal conduct.

These facts only the government knew, and it concealed them.

Just as important, “courts indulge every reasonable

presumption against waiver of constitutional rights,” and

“do not presume acquiescence in the loss of fundamental

rights.” Johnson v. Zerbst, 304 U.S. at 464 (internal

quotations omitted). This is a particularly poor instance

to depart from these settled rules in order to infer a

waiver from a defendant’s failure to “repudiate” his

lawyer in open court.?° As the court of appeals noted,

Pet. App. 4a-6a, both Robinson and the trial court ex-

pressly warned Krebs at the conflicts hearing on June

24th no less than four separate times that once having

waived his right to counsel, he could not raise the issue

again. Under these circumstances, anything but silence

from Dr. Krebs would have been astounding. To infer

from his silence that he “stood by his waiver,” Pet. App.

13a, swims against the flood tide of common sense and

constitutional precept.

B. The need for adequate procedures to secure a

waiver.

As important as the redefinition of the standard gov-

erning waivers is the fact that the court of appeals

decision has the necessary effect of narrowly circumscrib-

ing the duties of the trial court to a defendant. By limit-

ing the court’s responsibility to a simple recital of what

is meant by the waiver of the right to counsel, the rule

imposes a nearly impossible burden on defendants. As

this Court has noted, the problems arising from con-

flicts of interest are complex, subtle, and elusive. Hollo-

way v. Arkansas, 435 U.S. at 490; Glasser v. United

States, 315 U.S. 60, 75-76 (1942). To leave a defend-

20 Indeed, in discussing the waiver of Sixth Amendment rights

in the context of police interrogation, this Court last Term re-

emphasized that a constitutionally adequate waiver may not be

found even from a defendant’s active and uncoerced cooperation

with police after having been advised of his right to counsel.

Michigan v. Jackson, 106 S. Ct. at 1410-11.

ant whose counsel may be subject to a conflict to his

own resources in assessing these risks—or what is

worse, to the advice of the very lawyer who is subject

to the conflict—would in practice virtually ensure that

fundamental decisions about the right to counsel are

made on the basis of inadequate information or mis-

guided advice.”

In the guilty plea context, this Court has made clear

that the constitution does not countenance the imposi-

tion of such a burden. There, where the analytical prob-

lems are less difficult and the defendants are presumed

to have the assistance of competent, independent, and ob-

jective counsel, see Brady v. United States, 397 USS.

at 748 n.6, this Court has nevertheless required the ac-

tive, affirmative involvement of the trial court in ex-

plaining to a defendant the risks attending a waiver of

constitutional rights. See Boykin v. Alabama, 395 U.S.

238 (1969); McCarthy v. United States, 394 U.S. 459

(1969). No less is appropriate here.

In both Wood v. Georgia, 450 U.S. at 272 & n.18, and

Cuyler v. Sullivan, 446 U.S. at 347, the Court concluded

—without outlining specific procedures—that the con-

stitution requires trial courts to inquire into potential

conflicts of interest of which they are or should be

aware. In recognition of these principles, the Courts

of Appeals for the First, Second, Third, Fifth, Eighth,

Tenth, and Eleventh Circuits have all adopted procedures

for addressing potential conflicts of interest similar to

those for accepting a guilty plea pursuant to Rule 11,

21JIn recognition of this obvoius fact, the Courts of Appeals for

the Fifth and Eighth Circuits, in circumstances far less troubling

than those here, have concluded that reliance on counsel who is

subject to a conflict to advise his client about the dangers of con-

tinued representation is “especially misplaced.” United States v.

White, 706 F.2d at 509; United States v. Lawriw, 568 F.2d 98, 104

(8th Cir. 1977), cert. denied, 485 U.S. 969 (1978).

Fed. R. Crim. P.” While these procedures differ in de-

tails, they all require that, where the potential conflict

of interest has been explicitly raised, the trial court “ac-

tively participate in the waiver decision,” United States

v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975), and “alert

the defendants to the substance of the dangers of repre-

sentation by an attorney having divided loyalties in as

much detail as the court’s experience and its knowledge

of the case will permit.” United States v. Curcio, 680

F.2d at 888. These procedures have all the benefits of

clarity and certainty without imposing any significant

burden on the court or counsel.** Moreover, as this Court

emphasized in imposing similar requirements in the con-

text of guilty pleas, such on the record inquiries facilitate

review and discourage frivolous post-conviction attacks

on the constitutional validity of waivers. Boykin v. Ala-

bama, 395 U.S. at 244; McCarthy v. United States, 394

U.S. at 466, 472.

While this Court need not spell out such procedures in

order to address the issues raised by this petition, this

case surely presents an appropriate occasion to do so.

Here, the inaction of the trial court leaves entirely to

speculation the question cf what the defendant in fact

understood. Just as important, it left entirely in Robin-

son’s hand the job of explaining the “complex, subtle, and

22 See United States v. Romero, 780 F.2d 981, 984 (11th Cir.

1986) ; United States v. Geittmann, 733 F.2d 1419, 1423 (10th Cir.

1984) ; United States v. White, 706 F.2d at 509; United States v.

Curcio, 680 F.2d at 890; United States v. Dolan, 570 F.2d at

1181; United States v. Lawriw, 568 F.2d at 104-05; United States

v. Foster, 469 F.2d 1, 4-5 (1st Cir. 1972).

*3 Because the duty of the trial court is triggered only when it

knows or should know about a potential conflict, see Cuyler v.

Sullivan, 446 U.S. at 347, these procedures are entirely consistent

with this Court’s holding in Holloway v. Arkansas, 485 U.S. at

484-86, that trial courts have no duty to initiate inquiries into

multiple representation in every case.

sometimes unforseeable dangers inherent in” conflicts of

interest. United States v. Dolan, 570 F.2d at 1181. Even

if Dr. Krebs acquiesced in his counsel’s actions, it is im-

possible to conclude, in the absence of intervention by

any disinterested third party, that he did so knowingly

and intelligently, with a full understanding of the haz-

ards of that choice.

We are sensitive to the concern underlying the court of

appeals’ opinion that defendants not be permitted to pur-

sue an “unusual trial strategy,” Pet. App. 14a, without

accepting the consequences of that choice. The solution to

that problem, however, is not to presume from a barren

record the defendant’s knowing, intelligent and volun-

tary choice. It is rather to ensure at the time the issue

is brought to the attention of the court that the defendant

fully understands the risks and pitfalls attending any

conflict and his right to new, conflict-free counsel, even

on the eve of trial. If the defendant still chooses to pro-

ceed with his original counsel, he cannot thereafter be

heard to complain.

2. Ignoring the intentional concealment by the govern-

ment of facts basic to the waiver decision undermines

the ability of the court to fulfill its Sixth Amendment

responsibilities and violates those of the government.

It is hardly surprising, in view of the process by which

it emerged, that the finding of a valid waiver by the court

of appeals is flawed in more ways than one. Even if the

court of appeals articulated an acceptable standard for

finding a waiver, the unseemly role played by the govern-

ment in procuring it warrants review.

The court of appeals found “inexcusable”? misconduct,

Pet. App. 22a, in the government’s concealment of infor-

mation about Robinson’s conflicts, in direct violation of

the conflicts order. Pet. App. 18a-19a. However, it ig-

nored the implications of this misconduct for the pur-

poses of Dr. Krebs’ appeal, apparently concluding that

it was harmless in view of the standard it set for find-

ing a waiver.

This determination, however, misapprehends the effect

of the government misconduct. In three recent decisions

addressing conflicts of interest, this Court has made clear

that although trial courts have no duty to initiate in-

quiries into multiple representation in every case, Hollo-

way v. Arkansas, 485 U.S. at 484-86; Cuyler v. Sullivan,

446 U.S. at 346-47, the trial court does have a duty to

explore the possibility of a conflict where “the trial court

knows or reasonably should know that a particular con-

flict exists.” Id. at 347; see Holloway v. Arkansas, 435

U.S. at 484-86. “Moreover, Sullivan mandates a reversal

when the trial court has failed to make an inquiry even

though it ‘knows or reasonably should know that a par-

ticular conflict exists.’” Wood v. Georgia, 450 U.S. at

272 n.18 (emphasis in original) .**

This limited allocation of responsibility to the trial

court rests on the assumption that in the typical case of

multiple representation, defense attorneys are “in the

best position professionally and ethically to determine

when a conflict of interest exists or will probably de-

velop in the course of a trial.” Holloway v. Arkansas,

435 U.S. at 485, quoting State v. Davis, 110 Ariz. 29, 31

(1973) ; Cuyler v. Sullivan, 446 U.S. at 347. The court

of appeals’ decision, however, converts this observation

into a license for the governmeiit to frustrate the efforts

of defense counsel and the court to fulfill their responsi-

bilities. Here, the court expressly relied on the govern-

ment’s cooperation in identifying potential conflicts of

interest. Pet. App. lla. It can scarcely be gainsaid that

24 Assuming that the waiver here is invalid, the trial court’s

inexplicable failure to conduct such an inquiry after the conflict

became manifest merits reversal wholly apart from the effect of

Robinson’s conflicts on his representation of Dr. Krebs.

had the government honored the court’s conflicts order in

good faith, the trial court would have been far better

situated, as well as far more likely, to have fulfilled its

responsibilities to the defendant. We think it equally

clear that if the failure of the court to conduct an in-

quiry warrants reversal where it knows or should have

known of a conflict, Wood v. Georgia, 450 U.S. at 272

n.18, a fortiori the deliberate concealment by the govern-

ment of the very information that would trigger such an

inquiry—in direct violation of an explicit order—requires

the same result.

Such a rule would hardly burden the government un-

fairly. Indeed, it is altogether consistent with the gov-

ernment’s own constitutional obligations to a defendant,

as well as with its ethical responsibilities. This Court has

frequently noted that “[t]he Sixth Amendment also im-

poses on the State an affirmative obligation to respect and

preserve the accused’s” right to counsel. Maine v. Moul-

ton, 106 8. Ct. 477, 485 (1985); Faretta v. California,

422 U.S. at 839 (Burger, C.J., dissenting). In circum-

stances different than, but no less troubling than, those

here, this Court has condemned government conduct that

has the effect of interfering with a defendant’s right to

counsel, and, where necessary, it has erected per se

barriers against certain types of government conduct.

See Michigan v. Jackson, 106 S. Ct. at 1411 (interroga-

tion) ; Maine v. Moulton, 106 S. Ct. at 479 (undisclosed

electronic surveillance) ; United States v. Henry, 447 U.S.

264 (1980) (use of undisclosed police informant) ; Mas-

siah v. United States, 377 U.S. 201 (1964) (undisclosed

electronic surveiliance) .

The prosecutors’ ethical duties are likewise clearcut.

It is plain, of course, that by pursuing the representation

of Dr. Krebs, Robinson violated accepted professional

standards.” These rules, in turn, require any lawyer,

2° The ABA Model Code of Professional Responsibility DR 5-105

(1976) requires an attorney to decline employment in circum-

including a prosecutor, “who possesses unprivileged knowl-

edge of a violation of [a disciplinary rule to] report such

knowledge to a tribunal or other authority empowered to

investigate or act upon such violations.” ABA Code of

Professional Responsibility DR 1-103(A) (1976); see

United States v. Turkish, 470 F. Supp. 908, 909 (S.D.

N.Y. 1978) .*°

It is important to stress that the fulfillment of these

obligations does not require this Court to impose on

prosecutors an affirmative obligation, akin to those im-

posed by Brady v. Maryland, 373 U.S. 83 (1963), to

raise any potential conflicts, however remote. By the

same token, however, the government’s ethical and con-

structional obligations should prevent it from concealing

relevant information where, as here, the issue has been

clearly and explicitly raised and the court has relied on

the government to identify potential conflicts. Requiring

the government to pay the price for its silence in these

circumstances is both fair and essential if the trial court

is to fulfill its duties in an informed fashion.

stances in which “his independent professional judgment on be-

half of a client will be ‘adversely affected.’” See also ABA Model

Rules of Professional Conduct 1.7 (App. Draft 1983). The Code also

bars representation by a lawyer who is, or should be, a witness

in a case. See DR 5-101(B) and DR 5-102(A) ; General Mill Supply

Co. v. SCA Services, Inc., 697 F.2d 704, 712 (6th Cir. 1982).

26 These requirements have been expressly incorporated into the

rules for the District Court of the Eastern District of Michigan,

see Local Rule 6(b) (4).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROBERT D. LUSKIN *

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsel for Petitioner

* Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 83-1098, 83-1099

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

RYAN KREBS (83-1098), BERNARD LEVINE (83-1099),

Defendants-A ppellants.

On Appeal from the United States District Court

for the Eastern District of Michigan

Decided and Filed April 18, 1986

Before: LIVELY, Chief Judge; WELLFORD, Circuit

Judge; and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge, delivered the opinion of

the court, in which LIVELY, Chief Judge, joined. WELL-

FORD, Circuit Judge, (p. 23) delivered a separate con-

curring opinion.

PECK, Senior Circuit Judge. This case involves a

large-scale drug trafficking operation conceived and led

by Nellie Bell Kassim. In the spring of 1980, Kassim

developed a plan to conceal the illegal sale of prescription

drugs behind a facade of apparent legitimacy. Kassim

operated a succession of medical clinics specializing in

the treatment of obesity, but the principal function of

these clinics was to conceal several illegal drug activities.

Included were the sale of individual prescriptions to clinic

“patients” for their own use or for resale, the bulk sale

of prescriptions for controlled substances to Detroit-area

drug dealers, and the sale in Washington, D.C. and

Detroit of large quantities of the controlled substances

themselves, obtained through phony prescriptions.

On April 28, 1982, Ryan Krebs, a licensed medical

doctor, and Bernard Levine, a licensed and registered

pharmacist, and twenty-seven others were indicted by a

federal grand jury in the Eastern District of Michigan

and charged with distribution and intent to distribute

numerous controlled substances in violation of 21 U.S.C.

§§ 841 ard 846. Nellie Bell Kassim was also charged in

a second count with conducting a continuing criminal

enterprise in violation of 21 U.S.C. § 848. Twelve de-

fendants, including Kassim, entered a guilty plea prior

to trial. Other defendants were dismissed. Ten defend-

ants went to trial. The jury convicted four of the de-

fendants, including Krebs and Levine, of the conspiracy.

A mistrial was granted to one defendant. Five defend-

ants were acquitted, three by the court and two by the

jury. As to each convicted defendant, the jury entered a

special verdict listing the specific drugs which that de-

fendant had conspired to distribute and to possess with

intent to distribute. Only Krebs and Levine appeal their

convictions.

The primary issue raised by Krebs on appeal is whether

his Sixth Amendment rights were violated because his

counsel, Kenneth Robinson, had an actual conflict of in-

terest which deprived Krebs of his right to effective as-

sistance of counsel. Levine argues that he was prejudiced

by the denial of his motion to sever and that severe prose-

cutorial misconduct deprived him of a fair trial. Prior

to the indictment of the defendants in this case, Robinson

had represented Kassim and had successfully represented

Kassim’s sister, Nancy McInnis, on drug distribution

charges in Washington, D.C. in April 1981. McInnis had

been arrested at National Airport with 9,000 Preludin

tablets in her possession. According to the Washington,

D.C. Metropolitan Police report, McInnis testified at her

bond review hearing that she was “taking 10,000

Preludin tablets to the law offices of Kenny Robinson.

She said that she was going to meet her sister, Nellie

Bell [Kassim], at that location, and that she was going

to turn the drugs over to Bell.” Kassim testified as a

defense witness at the McInnis trial.

Robinson represented Kassim during the conspiracy

and for a brief time after her indictment in this action.

After Robinson withdrew from representation of Kassim,

he was retained by Krebs. Prior to trial of this case, the

court ordered the government to file a memorandum list-

ing all the conflicts of interest of which it was aware.

In its memorandum of law regarding actual or potential

conflicts of interest, the government noted that Robinson

had previously represented Kassim. The government

stated:

Since Nellie Bell Kassim and Ryan Krebs, M.D.

may have conflicting interests, and Kenneth Robin-

son may have confidential information from Nellie

Bell Kassim and from Ryan Krebs, M.D., there is a

potential conflict of interest with respect to both

Nellie Bell Kassim and Ryan Krebs, M.D.

Additionally, Kenneth Robinson represented Nellie

Bell Kassim’s sister, Nancy McInnis, in a trial con-

ducted during April, 1981, in Virginia. In that case,

Ms. McInnis was charged with possession with intent

to distribute 9,000 Preludin (75 mg.). That allega-

tion is now alleged as Overt Act # 33 of this con-

spiracy. Ms. McInnis is clearly a potential trial

witness. Kenneth Robinson may have been given

confidential information by Ms. McInnis as well as

by Ryan Krebs, M.D. and Nellie Bell Kassim. His

loyalties may be divided among Nellie Bell Kassim,

Nancy McInnis, and Ryan Krebs, M.D.

Robinson filed an affidavit in which he stated that “based

on the facts presented thus far by Ms. Kassim and Dr.

Krebs there is no real or potential conflict. Neither per-

son has ever admitted their guilt in this case or has

implicated the other by statement or inference to counsel.”

Kassim and Krebs filed a joint affidavit. Krebs stated:

I, RYAN KREBS, M.D., have read the above, know

that Mr. Robinson previously knew Ms. Bell and

others prior to knowing me and that any rep~esenta-

tion he previously had is waived as a conflict for

any trial or appeal. I agree in the event that a court

determines that Mr. Robinson has in fact previously

represented Ms. Bell, then I still prefer and desire

his representation in the instant case, I waive any

conceivable—actual or potential—conflict.

On June 24, 1982, a hearing was held on the conflict

issue. Robinson represented that he had discussed the po-

tential conflict of interests issue with Kassim, Krebs and

Krebs’ wife, “not just whether there is a potential con-

flict but if in fact if one would crop up later on they

can’t raise on appeal or at trial... .” The government

adopted the position that because Robinson had previ-

cusly represented Kassim and McInnis, he might not

vigorously cross-examine them because of prior loyalties.

The court addressed Krebs:

THE.COURT: Dr. Krebs, have you heard all that

has been said?

DR. KREBS: Yes, I have.

THE COURT: Are you aware that the 6th amend-

ment of the United States Constitution guarantees

you and every defendant in a criminal case the right

to be represented by fully effective and fully loyal

and conflict free Counsel?

DR. KREBS: Iam aware of that.

THE COURT: Are you aware that if you cannot

afford Counsel this Court will appoint Counsel for

you?

DR. KREBS: Yes, I am.

THE COURT: And that you have a right to such

appointment or a right to represent yourself if you

see fit?

DR. KREBS: Yes, I have.

THE COURT: Are you aware of the maximum

possible penalties that I have just described for the

crime which you are accused, that is 15 years incar-

ceration and 25 thousand dollars fine, as well as a

three year special parole term and double penalty

if there’s is [sic] a prior drug conviction in your

past?

DR. KREBS: I’m aware of that.

THE COURT: You have heard all of the allega-

tions of the Government and your Counsel’s re-

sponses thereto?

DR. KREBS: Yes.

THE COURT: And if there is potential conflict of

interest in your Counsel, do you at this time waive

the effective representation which he would have

given you as a subject of appeal?

DR. KREBS: Yes, I do. I wish to retain Mr.

Robinson.

THE COURT: And you realize that we can’t know

now what possible conflicts could develop in the

course of the trial, particularly involving large num-

bers of people?

DR. KREBS: Yes, I do.

THE COURT: But you cannot raise this as an

appeal—ineffective representation of Counsel on ap-

peal.

DR. KREBS: I’m aware of it.

THE COURT: Ali right then.

The court also investigated the possibility of a conflict

of interest arising from the representation by attorney

Robert Cohn of five of the defendants. Cohn was him-

self a target of the investigation in this case. The court

disqualified Cohn on the basis of an actual conflict of in-

terest between and among the defendants represented

by Cohn as well as between Cohn and the defendants.

The court allowed Krebs to retain Robinson as his at-

torney.

Shortly after the June 24 conflicts of interest hearing,

Kassim agreed to plead guilty and to testify for the

government against the other defendants. The govern-

ment did not inform defendants’ counsel of this arrange-

ment. The FBI conducted several “debriefing sessions”

with Kassim; for some of the sessions FBI reports were

prepared, but for other sessions they were not. Before

trial Kassim made three significant allegations to the

FBI involving Robinson. First, she alleged that Robin-

son had assured her that Daniel Lebby was not an un-

dercover agent when Lebby had sought to become a bulk

prescription buyer. FBI agents then interviewed Lebby.

Secondly, in relation to the McInnis trial, Kassim stated

at trial that she had told the FBI that Robinson had been

aware that Kassim was bringing drugs to Washington

and he had suggested ways to avoid being caught. Fi-

naily, Kassim alleged that Robinson had encouraged her

to commit perjury at the McInnis trial.

On July 7, 1982, the court ordered the government to

provide Jencks Act’ materials to defense counsel no later

118 U.S.C. § 3500.

than five days prior to trial. The court set August 9,

1982 as the motion cut-off date. On July 8, the court

ordered the government to disclose all Brady material

within fifteen days. The government released the Jencks

Act material on September 8, 1982. On September 16,

1982, the day before trial began, Levine moved to sever

under Fed. R. Crim. P. 14 based on the following al-

legations:

1) That the government failed to make timely dis-

closure of the fact that Kassim had become a

government witness;

2) That the trial of McInnis was for possession of

Preludin, and such possession was part of the

conspiracy alleged in this case;

3) That Robinson had proffered testimony of Kas-

sim at the McInnis trial which mentioned Rob-

inson as “virtually having been a witness in the

case sd

4) That the government failed to disclose the grand

jury testimony of Thelma McCullough, an un-

indicted co-conspirator and government witness,

that McInnis had been guilty and that Kassim

had committed perjury at the McInnis trial with

Robinson’s knowledge.

Levine alleged that the new evidence from the Jencks

Act materials clearly established a personal conflict of

interest by Robinson, and that the government had vio-

lated the trial court’s order to update the conflict of in-

terest memorandum. The court denied the motion as un-

timely. Significantly, Robinson made a statement at the

hearing on the motion to sever specifically indicating

the possibility that Kassim might make incriminating

remarks about him (Robinson) on the stand, adding that

Krebs was “willing to waive that.”

Krebs was present in the courtroom when Robinson made

the statement; Krebs remained silent.

At trial, the government contended that Krebs, as a

member of the conspiracy, wrote prescriptions for con-

trolled substances without a legitimate medical purpose.

Krebs, a physician who was completing his residency at

the University of Michigan, worked part-time at Kas-

sim’s clinics from the fall of 1980 until January 1982.

Krebs’ defense was that he was unaware that Kassim’s

clinics were not legitimate businesses. Similarly, the gov-

ernment alleged that Levine, as pharmacist and part

owner cf Scotch Castle Pharmacy, filled prescriptions

either for individual patients who were referred to

Scotch Castle by the staff at Kassim’s clinics, or in bulk

quantities for Kassim. The government maintained that

Levine knowingly filled prescriptions written for con-

trolled substances without a legitimate medical purpose.

Levine’s defense theory was that he did not know that any

of the prescriptions he filled were invalid.

In opening statement, Robinson, Kreb’s attorney, fo-

cused upon Nellie Bell Kassim and her ability to manipu-

late people; Robinson stated that “everything she does

is a con.” Robinson went into detail regarding his prior

representation of Kassim, his representation of McInnis,

and how he had been duped by Kassim. He stated:

She [Kassim] says I knew about the perjury and

put her up to it. But we’ll show you right in front

of the federal judge in Alexandria, Virginia when I

felt Nellie Bell was committing perjury I told the

judge she’s been warned about the consequences of

perjury. I say this to you—I’m not on trial, I hope

—but I tel] it to you because if Nellie Bell will lie

for over a year and manipulate the lawyer that she’s

trying to get to help her get out of trouble, what will

she do to a naive doctor who is twenty-nine, works

part-time two days a week, who thinks he’s helping

people.

During cross-examination of Kassim, Robinson con-

tinually questioned Kassim about the circumstances sur-

rounding the McInnis trial and about his prior repre-

sentation of her. Kassim accused Robinson of vouching

for Danny Lebby, who wanted to buy bulk prescriptions.

Robinson and Kassim engaged in a lengthy exchange re-

garding the fee he had been paid by Kassim for rep-

resenting McInnis. An example of some of the extraordi-

nary questions and responses elicited by Robinson on

cross-examination regarding the McInnis trial include:

Q. You’re saying I rehearsed you on perjury and

I got up in front of the judge and warned you about

perjury?

A. You told me what to say. After you rehearsed

me for five hours, I should have had it pat.

Robinson confronted Kassim with the affidavit she had

signed jointly with Krebs, in which she had stated that

she had never told Robinson she was anything other

than “totally innocent.” Kassim repeatedly responded

to Robinson’s line of questioning: “You knew I was

guilty.” Kassim also stated that Robinson had told her

to have Nancy McInnis pick the bags up at National

Airport because law enforcement officers were not fa-

miliar with McInnis. McInnis, of course, was arrested

and 9,000 Preludin tablets were found in the bags. Kas-

sim claimed that she had 4,000 Dilaudid tablets in her

possession at the time of MclInnis’s arrest, and the

Dilaudid was for a sale that was to occur in Robinson’s

office :

Q. [Robinson] Were they [the Dilaudid tablets]

for me?

A. [Kassim] Come on.

Q. Are [sic] they for me?

A. They was for a sale at your office. I don’t know

who was going to buy them.

10a

Q. Who was going to buy them?

A. You told me to bring them.

Q. Why didn’t you try to come to me undercover?

A. Well, at that time we was in cahoots together,

almost.

The cross-examination testimony of Kassim is replete

with accusations against Robinson. Throughout the trial,

Robinson emphasized Kassim’s accusations against him

in an apparent attempt to establish Kassim’s lack of

credibility. Robinson challenged an FBI agent to expose

any charges against him, and repeatedly referred to Kas-

sim’s allegations. In closing argument Robinson, in at-

tacking Kassim’s credibility, stated: “And if you do

take her word not only does Dr. Krebs have trouble but

some day I might too.” Krebs was acquitted of con-

Spiracy to possess with intent to distribute four of the

eight charged controlled substances; he was convicted of

conspiracy to possess with intent to distribute the other

four charged controlled substances.

I. CONFLICT OF INTEREST

Krebs’ argument is that he was “burdened at trial

with counsel laboring under grave and unmistakable con-

flicts of interest that seriously undermined his perform-

ance.” Krebs contends that Robinson was both a po-

tential target of prosecution as well as a material wit-

ness to events charged in the indictment.? Krebs asserts

2 Krebs’ allegation that Robinson was a target of prosecution

arises from the fact that a Drug Enforcement Agency agent and

an FBI agent had twice questioned Daniel Lebby, whom Kassim

alleged Robinson had vouched for when Lebby allegedly sought to

purchase bulk prescriptions from Kassim and Krebs. Krebs’

characterization of Robinson as a target of prosecution is an ex-

aggeration; the record does not support the allegation that Robin-

son was actively being investigated as the trial proceeded. Simi-

larly, Krebs contends that Robinson was a material witness because

lla

that Robinson’s performance deprived him of his Sixth

Amendment right to effective assistance of counsel.

Krebs acknowledges that he signed an affidavit waiv-

ing his right to conflict-free counsel and that he reaf-

firmed this waiver at the June 24, 1982 hearing on the

issue. He submits that his waiver was constitutionally

deficient because it was not made with “sufficient aware-

ness of the relevant circumstances and likely conse-

quences.” Brady v. United States, 397 U.S. 742, 748

(1969) (“Waivers of constitutional rights not only must

be voluntary but must be knowing, intelligent acts done

with sufficient awareness of the relevant circumstances

and likely consequences.”) Krebs states that he found

himself compromised by his attorney’s conflicting inter-

ests only because the court and the government breached

duties to address potential conflicts of interest of which

they became aware. Krebs notes that the court’s order

of May 26, 1982 directing the government to prepare a

memorandum concerning all known possible conflicts of

interest explicitly imposed upon the government an ob-

ligation to “supplement [the report] on a continuing

basis, with all such information which may become

known to the government so long as this matter is be-

fore the court.” Krebs submits that the government vio-

lated the May 26, 1982 order by failing to disclose that

Robinson was allegedly an active participant in the il-

licit drug transaction that resulted in the arrest of Mc-

Innis in Washington, D.C., that he may have suborned

perjury in her trial, that his fees for defending McInnis

had been paid by Kassim, that Kassim had advised the

government that Robinson had vouched for Lebby, and

that Kassim had implicated Robinson in the transporta-

tion of drugs to Washington, D.C.

his testimony was relevant on numerous issues, including whether

Krebs sold prescriptions to Lebby and on the question of Kassim’s

credibility and her ability to manipulate people.

12a

In support of his allegation that the court also breached

its duty, Krebs correctly states that when a trial court

becomes aware of a potential conflict of interest, it is

obligated to pursue the matter even if counsel does not.

See United States v. Taylor, 657 F.2d 92, 94 (6th Cir.),

cert. denied, 454 U.S. 1086 (1981); United States v.

LaRiche, 549 F.2d 1088, 1095 n.5 (6th Cir.), cert. de-

nied, 430 U.S. 987 (1977). Krebs contends that the

court was aware before trial began that Robinson might

be implicated in the conspiracy, and this knowledge gave

rise to a duty of the court to explain to Krebs the im-

plications of Robinson’s conflicting interests.

For the purpose of deciding Krebs’ appeal, we need

not reach the issue of whether Robinson’s representation

of Krebs was adversely affected by an actual conflict

of interest because we hold that Krebs made a knowing,

voluntary and intelligent waiver of his Sixth Amend-

ment right to conflict-free counsel. Even if the affidavit

signed by Krebs was based on Robinson’s representation

that Kassim had never admitted guilt in the instant case,

Krebs expressly waived “any conceivable—actual or po-

tential—conflict.” At the June 24, 1982 hearing, he ex-

pressed a desire to retain Robinson as his counsel, re-

gardless of any possible conflicts that might develop in

the course of the trial. Before the trial commenced, the

government made available Jencks Act material which

revealed that Kassim had become a government witness

and also that allegations had been made that Robinson

suborned perjury in the McInnis trial. The fact that

Krebs was aware before trial began that Kassim might

make accusations against Robinson is evidenced by Rob-

inson’s statement at the hearing on the motion to sever

on the day before trial began:

There’s a possibility Ms. [Kassim] may give testi-

mony about me whether or not I let her commit per-

jury. And I want to make it clear that anything

that Ms. [Kassim] wants to say about me on the

13a

stand, is fine and Dr. Krebs will waive that as an

issue. If Ms. [Kassim] wants to say I’m a drug

runner, or I murdered my father, she can say any-

thing she wants. I explained to Dr. Krebs and he’s

willing to waive that.

Krebs was present when Robinson made the above state-

ment, yet he made no attempt to repudiate his prior

waiver of “any conceivable—actual or potential—con-

flict.” Krebs is a graduate of Stanford University and

the University of Texas Medical School, and was com-

pleting his residency in internal medicine at the Uni-

versity of Michigan at the time of the indictment.

Clearly, he possessed sufficient intelligence to compre-

hend the import of a waiver of “any conceivable con-

flict,’ and to understand the significance of Robinson’s

representation to the court that, even though Kassim

may make accusations against counsel, Krebs stood by

his waiver.2 In Edwards v. Arizona, 451 U.S. 477, 482

(1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 468

(1928) ), the Supreme Court stated that

waivers of counsel must not only be voluntary, but

must also constitute a knowing and intelligent relin-

quishment or abandonment of a known right .or

privilege, a matter which depends in each case

“upon the particular facts and circumstances sur-

rounding that case including the background, ex-

perience, and conduct of the accused.”

Here, the trial court alerted Krebs at the conflicts

hearing that unforeseen conflicts of interest may arise

during trial, and Krebs insisted that he wished Robinson

to represent him. Later, at the hearing on Levine’s mo-

tion to sever, Robinson represented to the court that he

3 Krebs suggests Robinson’s statement that “I explained to Dr.

Krebs and he’s willing to waive it” is ambiguous and could have

referred to waiver of evidentiary objections. We find this conten-

tion to be without merit.

l4a

had discussed with Krebs the possibility that Kassim

may make accusations against him (Robinson), yet

Krebs was willing to “waive that as an issue.” Krebs

chose Robinson to represent him knowing that potential

conflicts of interest existed. The court “has long recog-

nized the accused’s right to retain counsel of his choice.”

Wilson v. Mintzes, 761 F.2d 275, 279 (6th Cir. 1985) ;

Linton v. Perini, 656 F.2d 207, 208-09 (6th Cir. 1981),

cert. denied, 454 U.S. 1162 (1982) (the right to counsel

of one’s choice is guaranteed by due process as well as

the Sixth Amendment). Krebs exercised his Sixth

Amendment right to counsel of choice and in so doing

expressly made a knowing and intelligent waiver of his

right to representation by conflict-free counsel. That

Robinson’s unusual trial strategy did not achieve the

desired result of acquittal does not allow Krebs to now

invoke the constitutional right which he chose to waive.

Il. SEVERANCE

Appellant Levine contends that he was prejudiced by

the denial of his Fed. R. Crim. P. 14 motion to sever

his trial from that of Krebs. He argues that the un-

timeliness of the motion was attributable to government

misconduct and the prejudice resulting from the denial

was so extensive that his due process right to a fair trial

was violated.

This was a proper case for joinder of offenses and

defendants in a single indictment because the same con-

spiracy is involved in the charges against Krebs and

Levine. Fed. R. Crim. P. 8. Even when joinder is per-

missible under Rule 8, the trial court must still deter-

mine whether the danger of prejudice warrants severance

pursuant to Rule 14, which provides in part:

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

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15a

or separate trials of counts, grant a severance of

defendants or provide whatever relief justice

requires.

In United States v. Dempsey, 733 F.2d 392, 398 (6th

Cir.), cert. denied, 105 S.Ct. 389 (1984), Chief Judge

Lively wrote:

This court may reverse a district court’s denial of

a motion for severance only for an abuse of discre-

tion. United States v. Frazier, 584 F.2d 790, 795

(6th Cir. 1978) ; United States v. Behrens, 689 F.2d

154, 159 (10th Cir.), cert. denied, 459 U.S. 1088,

103 S. Ct. 573, 74 L.Ed.2d 934 (1982). As a general

rule, especially in conspiracy cases, parties who are

jointly indicted should be tried together. As the

court stated in United States v. Howell, 664 F.2d 101,

106 (5th Cir. 1981), cert. denied, 455 U.S. 1005, 102

S. Ct. 1641, 71 L.Ed.2d 873 (1982), while a district

court may order separate trials in its discretion if

necessary to avoid prejudice, “the defendant has the

heavy burden of showing specific and compelling

prejudice resulting from a joint trial which can be

rectified only by separate triais.”

First, Levine acknowledges that his motion to sever on

the eve of trial was made long after the August 9, 1982

motion cut-off date. He submits that his motion was

timely, however, because the government failed to com-

ply with the continuing court order to report any addi-

tional information concerning conflicts of interest.* Levine

explains that through Kassim’s debriefing statements, the

government was aware of her accusations against Robin-

son, yet the government made no effort to inform either

the court or the defendants of this potential conflict.

4 We do not consider the timeliness of the motion crucial to the

resolution of this issue. The government’s failure to update the

conflicts of interest memorandum is addressed infra in the discus-

sion of prosecutorial misconduct.

16a

Moving to the merits of his argument, Levine states

that the repeated allegations of Robinson’s participation in

the conspiracy, subornation of perjury and witness tam-

pering distracted the jury from the relevant issues, bol-

stered the credibility of Kassim, the government’s princi-

pal witness, and impugned the integrity of the judicial

proceedings, thus violating his right to a fair trial.

Levine notes that the trial took six weeks to complete and

involved a massive amount of evidence. Levine urges that

in light of the complexity of the trial and the nature and

repetition of the accusations against Robinson, the jury

inevitably was confused by Robinson’s cross-examination

of Kassim and distracted from the real issues. Further,

Levine claims the fact that Kassim’s credibility was

bolstered by the exchanges between her and Robinson is

evidenced by the acquittal of Maggie Curry and John

Zellner, both of whom were “exonerated” by Kassim in

her testimony, even though other witnesses implicated

both Curry and Zellner. Levine submits that Kassim’s

bolstered credibility was prejudicial to him because she

was the only witness who stated that he acted knowingly

in filling the fraudulent prescriptions, and she was the

only witness who explained tape recordings of Levine’s

phone conversations in a damaging manner.® Levine sub-

mits that severance would have been a judicially efficient

and effective means of avoiding the prejudice resulting to

him from Robinson’s unorthodox trial tactics.

Levine has not made a sufficient showing of prejudice to

establish that the district court abused its discretion. His

allegations that Robinson’s trial antics enhanced Kassim’s

credibility are undermined, as the government points out,

5The wire intercept revealed that Levine frequently called

Kassim’s clinic. On one occasion he told L.C. Thurman, a clinic

employee, that “he didn’t have any” and “come back and I’ll give it

back to you.” Another time he told an employee to tell Kassim

that he was “expecting some” and Kassim could bring thirty pre-

scriptions a day but he was going to have to “pt labels on every

bottle.”

17a

by the fact that the jury convicted Shirley Danner, who

was also “exonerated” by Kassim. Further, the testimony

of Thelma McCullough and Sidney Brickner implicated

Levine personally, and Johnnie Mae Hicks implicated

Scotch Castle Pharmacy in the conspiracy. The govern-

ment introduced into evidence the wire intercepts and

Levine’s prescription records and records of his whole-

sale controlled substance orders.° The jury convicted

Levine of conspiracy with regard to only three of the

eight charged controlled substances. Apparently, the jury

was able to “compartmentalize the evidence as it related

to separate defendants in light of its volume and the

limited admissibility.” United States v. Thomas, 728 F.2d

313, 319 (6th Cir. 1984) (quoting United States v.

Gaines, 563 F.2d 1852, 1855 (9th Cir. 1977)). Accord-

ingly, we find that the trial court did not abuse its dis-

cretion in refusing to order separate trials.

III. PROSECUTORIAL MISCONDUCT

Levine argues that certain acts of misconduct by the

prosecution, taken in their totality, deprived him of a

fair trial. Specifically, Levine points to the following:

1. The failure of the government to update the con-

flicts of interest disclosure order when it became

aware of Kassim’s allegations against Robinson.

2: The government deliberately failed to preserve

evidence in that the United States Attorney’s

office directed the FBI not to prepare standard

302 investigation reports, used in connection with

the debriefing of witnesses, on some of the inter-

views with Kassim.

6 The government produced a witness who testified that Scotch

Castle Pharmacy had placed so many orders for an excessive

amount of Pre! .din that the wholesaler, Generic Drug Company of

Hollywood, Florida, finally refused to fill any more of Scotch

Castle’s orders.

18a

3. The failure of the government to make a timely

disclosure of Brady material. Brady v. Maryland,

373 U.S. 83 (1963). On the final day of Levine’s

case-in-chief, the government disclosed for the

first time that an undercover agent had worked

for a short time at Scotch Castile Pharmacy and

had not seen any illegal activity.

4, The prosecution deliberately elicited inadmissible

testimony in violation of a court order. Arthur

Hayes, a witness, was inadvertently allowed to

listen to trial testimony in violation of a seques-

tration order. The court ruled that Hayes could

still testify, but that his testimony would be lim-

ited to the facts contained in a prior statement he

had made. That statement did not refer to Scotch

Castle Pharmacy; nevertheless, the prosecution

elicited testimony from Hayes that Scotch Castle

Pharmacy had filled his illegal prescriptions.

5. The government improperly vouched for the credi-

bility of Kassim, based upon remarks by the

Assistant United States Attorney in closing argu-

ment to the effect that Kassim had told the truth

in her testimony because she had no motive

to lie.”

The government, in response to Levine’s first allegation,

states that Kassim did not make accusations against

Robinson in her initial debriefing sessions, but made the

accusations at later sessions. The government suggests

that it did not update the conflicts of interest memoran-

dum because it did not take the allegations seriously.

Nonetheless, the court order placed a continuing obliga-

7 Levine also claims that the prosecution intentionally elicite¢ an

inadmissible hearsay identification of “Bernie” as the person who

filled illegal prescriptions. The transcript shows that the witness’s

mention of “Bernie” was not in response to any question by the

prosecution, but was blurted out by the witness after a hearsay

objection by the defense counsel.

19a

tion upon the government to update the memorandum; it

was the function of the court, not the prosecution, to

determine whether Kassim’s accusations evidenced a con-

flict of interest. The government urges that any failure

to disclose on its part would not require reversal of

Levine’s conviction.

The government next addresses Levine’s allegation that

it subverted the Jencks Act by not requiring FBI 302 re-

ports for every witness interview. The reason given at

trial for the failure of the FBI to comply with its stand-

ard procedure was that the reports were not prepared in

an effort to save time. The Jencks Act requires the

government to disclose to the defense prior statements

of a witness. The government submits that the Jencks

Act does not require the taking of notes or the prepara-

tion of FBI 302 reports, but requires only that if such

notes or reports do exist, the government must disclose

these prior statements to the defense. In this case, not

only did the FBI not prepare 302 reports on some witness

interviews, but the government failed to provide defense

counsel with all of the handwritten notes from Kassim’s

interviews until the existence of such notes was revealed

by an FBI agent’s testimony at trial.

Next the government turns to Levine’s assertion that it

failed to make timely disclosure of Brady material. The

government acknowledges that it failed to inform Levine’s

counsel until near the conclusion of the presentation of

his defense that an undercover agent worked at Scotch

Castle Pharmacy for two days and never saw Levine

engage in illegal activity. At trial, the government stipu-

lated that an undercover officer worked at the pharmacy

on August 19 and 20, 1980, and never observed Levine

filling multiple prescriptions. The parties further stipu-

lated that Levine’s counsel was not provided with this

information until that morning. The stipulation was read

to the jury. The government offered to make the under-

cover agent available as a defense witness, but Levine

declined. In closing argument, Levine’s counsel referred

20a

to the failure of the undercover agent to observe any

illegal activity. When asked at oral argument why the

government failed to make timely disclosure of this infor-

mation, the Assistant United States Attorney replied:

“We forgot.” The government submits that the disclosure

did not come too late to deprive Levine of a fair trial, and

the untimely disclosure was rendered harmless by the stip-

ulation read to the jury and by Levine’s closing argu-

ment.®

Levine’s next complaint is that the government improp-

erly elicited from Arthur Hayes the statement that he had

taken prescriptions to Scotch Castle Pharmacy. The trial

court considered this an intentional violation of its order

limiting Hayes’ testimony to his prior statement, which

contained no mention of Scotch Castle Pharmacy, and

struck Hayes’ entire testimony. We are inclined to agree

with the trial court that Hayes’ response was intention-

ally elicited by the prosecution’s open-ended question:

“Do you remember any other places she [Kassim] told

you where to go?” We also find merit in Levine’s con-

tention that the failure to timely disclose this Brady

material obstructed his ability to prepare for trial and

undermined his ability to present his theory of defense.

Finally, we turn toe Levine’s allegation that the govern-

ment improperly vouched for the credibility of Kassim

by suggesting to the jury in closing argument that Kassim

had told the truth. The government urges that such

statements were permissible because Kassim’s credibility

had repeatedly been attacked by the defense. A United

Stats Attorney, as representative of a sovereignty, not

only has the responsibility of prosecuting with vigor, but

8 The government suggests that the Brady material in question

was not admissible evidence, citing United States v. Qaoud, 777

F.2d 1105 (6th Cir. 1985) (certain negative exculpatory evidence

found to be inadmissible). Whether or not the evidence was

properly admissible is relevant to the question of whether the out-

come of the trial was materially affected, but inadmissibility does

not excuse prosecutorial misconduct.

2la

“fijt is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as

it is to use every legitimate means to bring about a just

one.” Berger v. United States, 295 U.S. 78, 88 (1935).

United States Attorneys are “held to a higher standard

of behavior” than other attorneys. United States v.

Young, 105 S.Ct. 1038, 1052 (1985) (Brennan, J., con-

curring in part, dissenting in part). This court has often

stated that “it is improper for a prosecuting attorney in

a criminal case to state his personal opinion concerning

the credibility of witnesses or the guilt of a defendant.”

United States v. Daniels, 528 F.2d 705, 709 (6th Cir.

1976).

The Assistant United States Attorney made the follow-

ing statements in her closing argument: “But I want to

suggest to you that in this trial testimony she [Kassim]

was telling the truth .... Basically, she had no reason

to lie,” and “she is basically telling the truth in this case

because she has no reason to lie... .” Although the

prosecutor’s statements “I want to suggest... .” argu-

ably may not express a personal opinion, see United

States v. Stulga, 584 F.2d 142 (6th Cir. 1978) (Prose-

cutor’s use of the words “I submit” is not equivalent to

“T believe”), the effect of the two statements when con-

sidered together can be “reasonably construed to be based

on personal belief... .” United States v. Bess, 593 F.2d

749, 756 (6th Cir. 1979). In the instant case, defense

counsel objected to the prosecuting attorney’s statements,

and the trial judge responded that it would cause addi-

tional harm if she told the jury the prosecutor had “no

business saying she told the truth.”

We are convinced that several instances of prosecutorial

misconduct occurred in the trial of this action. “To war-

rant a new trial, however, prosecutorial misconduct ‘must

be so pronounced and persistent that it permeates the

entire atmosphere of the trial.’ United States v. Lichen-

stein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied sub

nom., Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991,

22a

64 L.Ed.2d 856 (1980), quoting United States v. Blevins,

555 F.2d 1236, 1240 (5th Cir. 1977), cert. denied, 434

U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978).” United

States v. Thomas, 728 F.2d at 320. We must determine

whether, in the exercise of our supervisory powers,

Levine’s conviction should be reversed because of the im-

proper conduct of the prosecutor. “In making this deter-

mination we consider whether on this record the mis-

conduct can be said to be harmless,” United States v.

Leon, 534 F.2d 667 (6th Cir. 1976), and we so conclude.

Although the wire intercepts were susceptible of multi-

ple interpretations, other evidence demonstrates that Le-

vine knowingly participated in the conspiracy. The evi-

dence established that he ordered excessive amounts of

Preludin and Talwin, and that he filled controlled sub-

stance prescriptions presented in bulk. Testimony estab-

lished that Levine charged amounts substantially over the

regular retail price to fill prescriptions prescribed by

doctors from Kassim’s clinics. Kassim testified that Le-

vine filled multiple prescriptions for Preludin and other

controlled substances for her on numerous occasions.

Sidney Brickner testified that while he was a Scotch

Castle employee he observed Levine accept 20-30 Preludin

prescriptions at one time. Thelma McCullough testified

that she filled multiple controlled substance prescriptions

obtained from Kassim’s clinic at Scotch Castle Pharmacy

on numerous occasions.

Although we think that the conduct of the prosecutor

in this case was inexcusable, we do not find the facts —

present a clear and compelling case for reversal given

the substantial evidence of guilt and the efforts of the

trial court to take corrective measures to eliminate the

resulting prejudice.

Accordingly, the convictions of Krebs and Levine are

affirmed.

23a

WELLFORD, Circuit Judge, concurring. I agree en-

tirely with Judge Peck’s analysis and conclusion in this

case as to defendant Krebs. I write separately with re

gard to part III of the decision pertaining to prosecu-

torial misconduct and defendant Levine. The failure of

the United States Attorney to furnish Levine’s counsel

with all the handwritten F.B.I. notes from interviews

with key witness Kassim is, in and of itself, at least a

disturbing oversight. When one couples that with the

failure without any adequate explanation to make a

timely and appropriate Brady disclosure that an under-

cover agent worked at Levine’s pharmacy and observed

no illegal activity on his part, this conduct becomes more

disturbing. In addition, moreover, there was the ques-

tioning of witness Hayes in a fashion that brought forth

testimony exceeding the bounds of a prior limiting order.

The trial court struck this testimony and therefore cured

to a considerable extent any resulting prejudice to Le-

vine. Finally, as noted by Judge Peck, there was the

questionable “vouching” for the credibility of witness

Kassim in closing argument by the prosecutor.

These actions, in combination, cause one serious con-

cern with respect to the contention of defendant Levine

that he did not receive a fair trial. Although the ques-

tion is a close one, I concur with the conclusion that the

actions of the trial court were sufficient, but barely

sufficient, to overcome these shortcomings and the negli-

gent conduct of the prosecution. Despite these preblems

I believe Levine had a reasonable opportunity to present

his case to the court and jury, and that there was sub-

stantial evidence of guilt to warrant the verdict finding

Levine guilty as charged.

I would therefore also affirm as to defendant Levine

but with some considerable trepidation.

24a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 83-1098/9

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

RYAN Kress, M.D. (838-1098),

BERNARD LEVINE (83-1099),

Defendants-Appellants

Filed June 6, [1986]

Before: LIVELY, Chief Judge, WELLFORD, Circuit

Judge and PECK, Senior Circuit Judge

ORDER

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en

banc, the petition for rehearing has been referred to the

original hearing panel.

The panel has further reviewed the petition for re-

hearing and concludes that the issues raised in the pe-

tition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition

is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

JOHN P. HEHMAN

Clerk

25a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Criminal No.: 82-80242 (3)

(Taylor, J.)

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

NELLIE BELL KASSIM, et al.,

Defendant.

JUDGMENT AND PROBATION /COMMITMENT

ORDER

COUNSEL

In the presence of the attorney for the government

the defendant appeared in person on this date

01 07 83

[] WITHOUT COUNSEL However the court advised

defendant of right to counsel and asked whether

defendant desired to have counsel appointed by

the court and the defendant thereupon waived

assistance of counsel.

] WITH COUNSEL Kenneth Robinson

PLEA

[] GUILTY, and the court being satisfied that there

is a factua! basis for the plea,

{[] NOLO CONTENDERE, [_] NOT GUILTY

26a

FINDING & JUDGMENT

There being a finding/verdict of

(J NOT GUILTY, Defendant is discharged

GUILTY.

Defendant has been convicted as charged of the of-

fense(s) of Conspiracy to Possess with Intent to

Distribute Controlled Substances in violation of

21:USC :846

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything

to say why judgment should not be pronounced. Be-

cause no sufficient cause to the contrary was shown,

or appeared to the court, the court adjudged the de-

fendant guilty as charged and convicted and ordered

that: The defendant is hereby committed to the cus-

tody of the Attorney General or his authorized rep-

resentative for imprisonment for a period of 5 years.

SPECIAL CONDITIONS OF PROBATION

IT IS FURTHER ADJUDGED AND ORDERED

that a stay of execution be granted pending designa-

tion of institution at which time the defendant shall

report directly to said designated institution. Bond

is continued.

ADDITIONAL CONDITIONS OF PROBATION

In addition to the special conditions of probation im-

posed above, it is hereby ordered that the general

conditions of probation set out on the reverse side of

this judgment be imposed. The Court may change

the conditions of probation, reduce or extend the

period of probation, and at any time during the pro-

bation period or within a maximum probation period

of five years permitted by law, may issue a warrant

27a

and revoke probation for violation occurring during

the probation period.

COMMITMENT RECOMMENDATION

The court orders commitment to the custody of the

Attorney General and recommends:

It is ordered that the Clerk deliver a certified

copy of this judgment and commitment to the

U.S. Marshal or other qualified officer.

Signed by

& US. District Judge

O US. Magistrate

/s/ Anna Diggs Taylor

ANNA DiGGs TAYLOR

Date 01 07 83

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