Opposition Brief — Krebs v. United States

f* Supreme Court, U.S. -. |

No. 86-1 OCT ¢ wee

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Jn the Supreme Court of the Gui

OCTOBER TERM, 1986

RYAN KREBS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

oe

QUESTION PRESENTED

Whether the court of appeals was correct in finding that

under the circumstances of this case petitioner knowingly

and intelligently waived his Sixth Amendment right to

conflict-free counsel.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

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Barre V, area, 451 TB. SFT... ww eee reese 6

pe. Sr 6

United States v. Curcio, 680 F.2d 881 ................. 8,9

United States v. Dolan, 570 F.2d 1177 ................. 8,9

United States v. White, 706 F.2d 506 ................. 8, 9, 10

Constitution and statutes:

eS 3, 5, 6, 7, 8, 9, 10

8 a: 3

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(ill)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-180

RYAN KREBS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-23a)

is reported at 788 F.2d 1166.

JURISDICTION

The judgment of the court of appeals was entered on

April 18, 1986. A petition for rehearing was denied on

June 6, 1986 (Pet. App. 24a). The petition for a writ of

certiorari was filed on August 5, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Michigan, petitioner was con-

victed of conspiracy to possess with intent to distribute

controlled substances, in violation of 21 U.S.C. 846. He

was sentenced to five years’ imprisonment. !

' In addition to petitioner, the indictment charged 28 other in-

dividuals with various drug offenses, in violation of 21 U.S.C. 841

(1)

2

1. At trial, the government established that petitioner,

a licensed medical doctor, was a member of a large-scale

drug trafficking operation headed by Nellie Bell Kassim

(Pet. App. la-2a). Kassim operated a succession of

medical clinics that purported to specialize in the treat-

ment of obesity, but in fact engaged in illegal activities, in-

cluding the sale of prescriptions and drugs obtained

through false prescriptions (ibid.).

Following his indictment, petitioner retained Kenneth

Robinson to serve as his defense counsel (Pet. App. 3a).

Before trial, the government submitted a memorandum on

actual or potential conflicts of interest in which it main-

tained that Robinson might have conflicts of interest in

connection with the case. The government noted that

because Robinson had represented Kassim during the con-

spiracy and for a brief period after the indictment, he

might have received confidential information from her. In

addition, the government informed the court that Robin-

son had successfully represented Kassim’s sister, Nancy

McInnis, on drug charges involving events that were

alleged as an overt act in the conspiracy charges in this

case. Ibid.

By affidavit, Robinson responded to the government’s

memorandum by stating that there was no real or potential

conflict of interest, because neither petitioner nor Kassim

had ever admitted guilt or implicated the other (Pet. App.

4a). Petitioner also filed an affidavit in which he stated

that he was “ ‘waiv[ing] any conceivable — actual or poten-

tial—conflict’” that could arise from Robinson’s prior

representation of Kassim and McInnis (ibid.).

and 846. Thirteen of the defendants pleaded guilty, and four were

convicted after trial. Charges against six of the defendants were

dismissed, and five were acquitted.

3

At a pretrial hearing on the conflict issue, held on June

24, 1982, Robinson informed the court that he had

discussed the potential conflict of interest question with

Kassim and petitioner, and Robinson restated his view

that there was no conflict (1 Tr. 27; Pet. App. 4a). The

government reiterated its view that a conflict was possible

based on Robinson’s prior representation of Kassim and

McInnis (ibid.). The government noted, in particular, that

Robinson’s loyalties might still lie with Kassim and

McInnis and that, as a result, Robinson’s cross-

examination of either at trial might be adversely affected

(ibid.). In a lengthy exchange with petitioner, the court

then ensured that petitioner had heard everything that had

been said, advised petitioner of his Sixth Amendment right

to be represented by conflict-free counsel, and explained

that it was not possible to predict all possible conflicts that

might arise at trial (1 Tr. 31-33; Pet. App. 4a-6a). Peti-

tioner responded that he understood, but that he wished

nonetheless to retain Robinson, and that he would waive

any ineffective representation claim for purposes of ap-

peal (ibid.).

On September 8, 1982, the government, pursuant to

court order, released Jencks Act (18 U.S.C. 3500) material

to the defendants. The Jencks Act material revealed, inter

alia, that Kassim had agreed in late July 1982 to plead

guilty and to testify for the government at the trial (Pet.

App. 6a-7a, 12a). The material further revealed that

Kassim might implicate Robinson in certain illegal ac-

tivities related to the charges in this case (ibid.). On

September 16, 1982, the day before trial began, one of

petitioner’s co-defendants moved to sever his trial from

petitioner’s on the grounds that the government had not

timely disclosed that Kassim would testify and that the

Jencks Act material established that Robinson had an ac-

tual conflict of interest due to Kassim’s allegations against

him (id. at 7a). At the hearing on the severance motion,

4

Robinson advised the court, in petitioner’s presence, that

he had explained to petitioner that Kassim might accuse

Robinson at trial of suborning perjury and drug dealing,

and that petitioner was willing to waive any claims based

on that possibility (id. at 7a, 12a-13a). Petitioner remained

silent during Robinson’s statement of petitioner’s position

on the matter (id. at 7a). The court denied the severance

motion (ibid.).

2. Petitioner’s defense at trial was that he was unaware

that Kassim’s clinics were not legitimate businesses (Pet.

App. 8a). During his opening statement, Robinson

described Kassim as a “con” and a “flim flam artist,” and

focused on her ability to manipulate people, including

petitioner (6 Tr. 20-21, 26-37, 41; Pet. App. 8a). Robinson

described his representation of McInnis during the earlier

trial, and his prior representation of Kassim, and he con-

tended that he had been misled by her (6 Tr. 36-37; Pet.

App. 8a). He stressed in particular his intention to rebut

Kassim’s expected accusation that he had suborned per-

jury at the McInnis trial (ibid.).

Although the government never alluded to Robinson’s

alleged unlawful activities during either its opening state-

ment or its direct examination of Kassim, Robinson cross-

examined Kassim concerning the McInnis trial and Robin-

son’s prior representation of Kassim (Pet. App. 8a-10a).

In the course of Robinson’s cross-examination, Kassim ac-

cused Robinson of vouching for a purchase of false

prescriptions (31 Tr. 17-20, 23), of suborning perjury (31

Tr. 21, 49, 54-56, 68-69, 79-80; Pet. App. 9a), and of par-

ticipating in an illegal drug sale related to the conspiracy

charges in this case (31 Tr. 67, 77-78, 82-88; Pet. App.

9a-10a).

Robinson referred in closing argument to Kassim’s ac-

cusations against him (Pet. App. 10a). Robinson used

Kassim’s accusations in his effort to discredit her, by argu-

ing that her accusations against petitioner were as baseless

as her accusations against him.? Robinson concluded by

arguing that if anyone “would ever take Nellie Bell’s word

to find a person guilty in a criminal case, then our popula-

tion is naive indeed” (56 Tr. 117).

3. The jury convicted petitioner of conspiring to

possess with intent to distribute four of the eight drugs

alleged in the indictment. The court of appeals affirmed

(Pet. App. la-23a). Declining to reach the issue whether

Robinson’s representation of petitioner was adversely af-

fected by an actual conflict of interest, the court upheld

his conviction on the ground that petitioner had made a

voluntary, knowing, and intelligent waiver of his Sixth

Amendment right to conflict-free counsel.

ARGUMENT

1. The court of appeals properly upheld the trial

court’s decision to accept petitioner’s waiver of any right

to conflict-free counsel. Contrary to petitioner’s claims,

the court of appeals did not hold that a defendant may

voluntarily, knowingly, and intelligently waive his Sixth

Amendment right to effective assistance of counsel “even

if the defendant is wholly unaware of the underlying facts

or attendant risks” of his counsel’s actual or potential con-

flict of interest (Pet. 15; see also id: at i, 13-14). Consistent

with this Court’s decisions, the court of appeals concluded

that petitioner’s waiver was effective only after the court

determined that in light of “ ‘the particular facts and cir-

cumstances surrounding thfe] case including the

background, experience, and conduct of the accused,’ ”

the waiver was made “ ‘knowing[ly] and intelligent[ly]’ ”

? See Pet. App. 10a (“ ‘And if you do take her word not only does

[petitioner] have trouble but some day I might too.’ ”); 56 Tr. 115 (“If

you believe that about me, then that is too bad for me and too bad for

[petitioner].”).

|

6

(Pet. App. 13a, quoting Edwards v. Arizona, 451 U.S.

477, 482 (1981), quoting Johnson v. Zerbst, 304 U.S. 458,

468 (1938)). The court upheld the waiver because it was

made with “ ‘sufficient awareness of the relevant cir-

cumstances and likely consequences’” (Pet. App. lla

(quoting Brady v. United States, 397 U.S. 742, 748

(1969)); see Pet. App. 12a-14a).

The circumstances of this case fully support the court of

appeals’ conclusion that petitioner’s waiver was made

knowingly and intelligently. First, petitioner was plainly

aware of the facts underlying and risks associated with the

possibility that his attorney might have divided loyalties.

Petitioner filed an affidavit with the district court in which

he expressly waived “any conceivable—actual or poten-

tial—conflict” stemming from Robinson’s prior represen-

tation of Kassim and his prior defense of Mclnnis

on related drug charges (Pet. App. 4a, 12a). Petitioner

subsequently attended a pretrial hearing on the conflict of

interest issue (id. at 4a-6a). There, the government ex-

plained the risks associated with retaining defense counsel

with divided loyalties (in the analogous context of multiple

representation), particularly the possibility of less than

vigorous cross-examination (id. at 4a). The court in turn

inquired whether petitioner had heard all that had been

said and explained to petitioner the scope of his Sixth

Amendment right to conflict-free counsel, the potential

consequences of conviction, and the legal significance of

petitioner’s waiver (id. at 4a-6a).

Furthermore, as the court of appeals found (Pet. App.

13a-14a), petitioner was specifically made aware that

Robinson might also have divided loyalties due to accusa-

tions Kassim might make against him at trial. Prior to the

trial, the government produced Jencks Act material that

notified the parties that Kassim had agreed to be a govern-

ment witness and had made allegations against Robinson

(id. at 6a-8a). At a subsequent pretrial hearing on a

7

severance motion filed by a co-defendant, Robinson in-

formed the court in petitioner’s presence that petitioner

was aware that Kassim might make serious criminal ac-

cusations against Robinson and that petitioner was

nonetheless willing to waive his Sixth Amendment rights

and retain Robinson as counsel (id. at 7a, 12a-13a). Peti-

tioner remained silent and did not in any way alter,

qualify, or repudiate his waiver (id. at 13a). As the court

of appeals found, petitioner, who graduated from both

Stanford University and the University of Texas Medical

School, and who was completing his residency in internal

medicine at the University of Michigan when he was in-

dicted, “possessed sufficient intelligence * * * to under-

stand the significance of Robinson’s representation to the

court that, even though Kassim [might] make accusations

against [Robinson, petitioner] stood by his waiver” (ibid.

(footnote omitted)).3

Petitioner is wrong, therefore, in claiming that the court

of appeals’ decision rested on the broad proposition that

“a prospective waiver of any ‘conceivable’ conflict is con-

Stitutionally sufficient, even if the defendant is wholly

unaware of the underlying facts or attendant risks * * * so

long as it can be established that the defendant ‘possessed

sufficient intelligence to comprehend the import of a

waiver Of “any conceivable conflict”’” (Pet. 15-16

(quoting Pet. App. 13a)). The court of appeals carefully

considered a number of factors, especially that petitioner

affirmed his unconditional written waiver after being in-

formed about the risks of representation by a counsel with

> Petitioner’s current suggestion (Pet. 22) that he remained silent

because he mistakenly believed that his earlier waiver precluded him

from raising the issue is wholly unpersuasive. The plain import of

Robinson’s remarks to the court in petitioner’s presence was that the

issue could be, and had been, reopened.

8

divided loyalties and that petitioner did not repudiate that

waiver at a subsequent hearing after learning that Kassim

might accuse Robinson of wrongdoing.‘

2. For the same reason, contrary to petitioner’s claim

(Pet. 14, 17-20), the court of appeals’ decision does not

conflict with the decisions of other courts of appeals in

United States v. White, 706 F.2d 506 (Sth Cir. 1983);

United States v. Curcio, 680 F.2d 881 (2d Cir. 1982); and

United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978). Con-

sistent with the discussion of Sixth Amendment waivers in

those cases, the court below carefully considered the cir-

cumstances of this case and concluded that petitioner’s

awareness was sufficient to support his waiver. Decisions

regarding the validity of a waiver are inherently fact-

specific, and the fact that other courts have reached dif-

ferent conclusions as to the validity of a waiver on the

facts before them does not create a conflict with a case

upholding a waiver on different facts.

The three cases upon which petitioner relies in asserting

a conflict among the circuits addressed distinct legal mat-

ters or involved materially different factual circumstances.

4 Petitioner makes much of the bitter exchanges between Kassim

and Robinson at trial and of Robinson’s repeated references to

Kassim’s accusations against him in Robinson’s opening and closing

arguments. Those statements at irial do not, however, bear on the

validity of petitioner’s pretrial waiver, which depends on the defend-

ant’s awareness of the relevant circumstances and risks at the time of

the waiver and not the precise manner in which those risks are later

realized (or not realized) at trial. As petitioner acknowledges (Pet. 25),

once a valid waiver is made, a defendant “cannot thereafter be heard

to complain.” In any event, it is plain that those exchanges and

statements were the products of Robinson’s deliberate attempt at trial

to discredit Kassim’s testimony against petitioner by attacking the

credibility of the similar accusations against Robinson. See Pet. App.

10a, 14a. Petitioner may now be dissatisfied with the result of that

trial strategy, but having knowingly agreed to it, he cannot now

repudiate it.

9

In Dolan and Curcio, both of which involved conflicts of

interest stemming from joint representation, the courts of

appeals were addressing the distinct question—not raised

in this case — whether a district court erred in not accepting

a defendant’s proffered waiver of his Sixth Amendment

right to conflict-free counsel. In Dolan, the Third Circuit

held that a trial judge was not required to accept a defend-

ant’s waiver when there was an actual conflict of interest

(570 F.2d at 1184). The court never answered the question

whether the waiver in that case had been made “knowingly

and intelligently” (ibid.). In Curcio, the Second Circuit

ruled only that the trial court erred in refusing to accept

the defendant’s waiver without providing the defendant

the opportunity to cure its defects (680 F.2d at 889-890).

The court of appeals suggested, in particular, that pro-

viding the defendant with more time to consider the poten-

tial conflicts would have cured the problem (id. at 889).

The Second Circuit did not, as petitioner requested the

court of appeals to do in this case, overturn a trial court’s

finding that a defendant’s Sixth Amendment waiver was

valid (id. at 886; see Pet. 20 n.18).

The court of appeals’ decision in the case also does not

conflict with the Fifth Circuit’s ruling in White. To be

sure, the Fifth Circuit’s decision in White, like this case,

concerned the validity of a waiver by a defendant whose

attorney was accused of criminal activities, and the Fifth

Circuit, unlike the court in this case, overturned the trial

court’s approval of the waiver (706 F.2d at 508-510). The

circumstances of the White case, however, differ material-

ly from those of this case and account for the different

outcome.

First, in concluding in White that the defendant lacked

the requisite awareness of the underlying facts and the

possible consequences of the conflict, the Fifth Circuit

stressed (706 F.2d at 509 & n.5) that the defense attorney

suffered from an actual, not merely potential, conflict at

10

the time because he was subject to a formal criminal in-

vestigation by the government. Indeed, the attorney was

subsequently indicted, convicted, and imprisoned (see id.

at 507-508 n.1). In this case, Robinson’s conflict, if any,

was only a potential conflict. The accusations of wrong-

doing originated not from the government, but from a

witness, whose credibility the government also questioned

(see Pet. App. 10a n.2, 18a). Petitioner’s characterization

of Robinson as a target of prosecution is, as the court of

appeals found (id. at 10a n.2), an exaggeration.

Furthermore, in this case, unlike in White (706 F.2d at

508, 509), the court did not have to rely solely on defense

counsel’s assurances that he had explained both the facts

underlying the conflict and the possible consequences of

divided loyalty to the defendant. In this case, the govern-

ment described the risks associated with divided loyalties,

albeit in the context of multiple representation, at the

pretrial hearing on conflicts of interest. In addition,

Robinson did not merely advise the court that he had ex-

plained to petitioner the possibility of a conflict stemming

from the allegations against Robinson. Instead, Robinson

described in open court and in petitioner’s presence, the

possibility that Kassim would accuse him of criminal

wrongdoing at trial.°

3. Finally, petitioner argues (Pet. 25-28) that his Sixth

Amendment rights were violated because the government

“conceal[ed]” information about Robinson’s conflicts and,

5 We also note that petitioner was present when the government

brought to the court’s attention during the June 24th hearing the con-

flict of interest under which another attorney in the case was laboring

due fo his status as a target of the criminal investigation. The govern-

ment explained .at in such circumstances the attorney had a personal

interest in the outcome of the proceedings and a personal interest in

what his clients might say about the investigation or their knowledge

of the facts. The trial court disqualified the attorney. See Pet. App.

6a; 1 Tr. 33-49.

11

as a result, deprived the trial court of a full opportunity to

explore the possibility of a conflict. That claim is un-

availing.

Petitioner disputes (Pet. 9-10; Pet. App. 17a, 18a) the

government’s contention that Kassim did not make her ac-

cusations until August, rather than in July, and that, even

then, the government did not take the accusations serious-

ly. Regardless of these points of disagreement, there is no

question that on September 8, 1986 (a few weeks after

Kassim agreed to plead guilty), the government released

Jencks Act material to the parties that revealed the

possibility that Kassim might accuse Robinson of wrong-

doing in connection with the criminal offenses charged in

the indictment. Moreover, the Jencks Act material

prompted a co-defendant to file a severance motion and

Robinson to make his remarks concerning the possibility

that Kassim would make accusations against him. Conse-

quently, although the trial court may not have been aware

of the additional grounds for possible conflict at the

earliest moment, the court was made aware of the problem

in advance of trial, and in time for the court to address it.

Indeed, petitioner made this very point in his opening brief

in the court of appeals.°®

® See Appellant’s Br. 58 (“It is equally apparent that the ‘real

possibility of conflict’ was explicitly brought home to the court before

trial and re-emphasized throughout the proceedings. Based upon the

severance motion of [co-defendant’s] counsel and Mr. Robinson’s own

statements, the court was aware before the jury was sworn that Mr.

Robinson might well be implicated in the events for which his client

was charged, and that he was, in any case, a potential witness.”); see

also Pet. App. 12a.

12

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Altorney

OCTOBER 1986

U.S GOVERNMENT PRINTING OFFICE. 1986—491-507/40028