Opposition Brief — Poole v. United States

No. 87-1648

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

REGINALD POOLE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED-STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether, in a bank robbery prosecution, defense

counsel may stipulate to the federally insured status of the

victim banks without obtaining the defendant’s express

authorization.

2. Whether petitioner was denied the assistance of

counsel during sentencing.

3. Whether the district court, in a motion for col-

lateral relief under 28 U.S.C. 2255, properly denied peti-

tioner an evidentiary hearing on his claim of ineffective

assistance of counsel.

(1)

TABLE OF CONTENTS

|

Page

BE Oe en ree See eee ee ree l

LE a nila 6 5 he OOS kOe a eed ae l

SS PPR r arte tann Pele Pope eo 1

| Gor 5d oh a os Sc GU pe tion pa Gawd WOME cade ee Ee 7

| SEE or hls cai a cah de ke bee ee eaeea al 1 tareaewes 14

{

| TABLE OF AUTHORITIES

| Cases:

Allen v. Hardy, 478 U.S. 255 (1986) ............2.2005. 6, 12

| Anderegg v. High Standard, Inc., 825 F.2d 77 (Sth Cir.

Ra a Fae i PLE. Sh? 201 eR aE mn at 13

Barton v. United States, 791 F.2d 265 (2d Cir. 1986) ..... 7

Batson v. Kentucky, 476 U.S. 79 (1986) .............. 6, 12, 13

Brookhart v. Janis, 384 U.S. 1 (1966) ................. y

Estelle v. Williams, 425 U.S. 501 (1976) ............... 8

Forrester v. United States, 456 F.2d 905 (Sth Cir.), cert.

eo era 12

Griffith v. Kentucky, No. 85-5221 (Jan. 13, 1987) ....... 13

Henderson v. Morgan, 426 U.S. 637 (1976) ............ 8

Henry v. Mississippi, 379 U.S. 443 (1965) .............. 8

Powell v. Alabama, 287 U.S. 45 (1932) ................ 1]

Sanders v. United States, 373 U.S. 1 (1963) ............. 7

Swain v. Alabama, 380 U.S. 202 (1965) ................ 12

Taylor v. Illinois, No. 86-5963 (Jan. 25, 1988) .......... 7

United States v. Campisi, 583 F.2d 692 (3d Cir. 1978) .... 12

United States v. Fitapelli, 786 F.2d 1461 (1ith Cir. 1986) . 10

United States v. Houston, 547 F.2d 104 (9th Cir. 1976) ... y

United States v. Lagrone, 727 F.2d 1037 (11th Cir. 1984). 11-12

United States v. Rubio, 727 F.2d 786 (9th Cir. 1983) ..... 9

United States v. Sliker, 751 F.2d 477 (2d Cir. 1984), cert

Gomes, Sets. B. Pee Wh ba bbe ven cb sae kownesss 8

United States v. Stephens, 609 F.2d 230 (Sth Cir. 1980)... 8

United States v. Stewart, 700 F.2d 702 (11th Cir. 1983) ... 7

Wiley v. Sowders, 647 F.2d 642 (6th Cir.), cert. denied,

a ee I ss hh O68 8 640 vo eam 8

(111)

Cases — Continued: Page

Winters v. Cook, 489 F.2d 174 (Sth Cir. 1973) .......... 8

Young v. Duckworth, 733 F.2d 482 (7th Cir. 1984) ...... 10

Statutes:

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a on aa a's wah DAES me AO bet 1-2

5's 5 kG oe eek hw awa ee dae 13

le RO Oe ae art te Cen m ee ere USC PEnENeE ayy pt ~ 3. a8

Miscellaneous:

1 E. Devitt & C. Blackmar, Federal Jury Practice and

I a ee a ho wae ahek 9

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 87-1648

REGINALD POOLE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

H

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A

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;

:

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A17)

is reported at 832 F.2d 561.

JURISDICTION

The judgment of the court of appeals (Pet. App. B1-B2)

was entered on November 19, 1987. A petition for rehear-

ing was denied on January 13, 1988 (Pet. App. C1-C2).

The petition for a writ of certiorari was filed on April 4,

1988. 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 Northern District of Georgia, petitioner was con-

victed on four counts of bank robbery and assault during

the commission of a bank robbery, in violation of 18

(1)

2

U.S.C. 2113(a) and (d). He was sentenced to concurrent

20-year terms of imprisonment on the first three counts

and to a consecutive five-year term of probation on the re-

maining count. He was also ordered to make restitution to

the victim banks (Pet. App. A3). After his convictions

were affirmed on direct appeal, petitioner made a motion

to vacate his sentence pursuant to 28 U.S.C. 2255. The

district court denied the motion (Pet. App. D1-D2) and

the court of appeals affirmed (Pet. App. Al-Al17).

1. The evidence at trial is summarized in the govern-

ment’s brief in the court of appeals (Gov’t C.A. Br. 3-7).

Between April 10 and July 6, 1984, four banks in the

Atlanta, Georgia, area were robbed at gunpoint by a lone

male. A flyer containing copies of bank surveillance

photographs of the robber and a description of his modus

operandi were circulated to FBI field offices throughout

the country. An FBI agent in Chicago, Illinois, noticed

that the photograph resembled petitioner, who was

suspected of committing bank robberies in Chicago. A

comparison of bank surveillance photographs of the

Chicago robberies with those of the Atlanta robberies and

with mug shots off petitioner confirmed that the

photographs were all of the same person.

The agents determined that petitioner resided in

Chamblee, Georgia. Several FBI agents visited his home,

and when petitioner answered the door the agents took

him into custody. Petitioner was carrying $1,050 in his

wallet and a phony birth certificate at the time. During a

subsequent search of petitioner’s house, the agents

discovered another $1,200 stuffed in a boot as well as a

loaded revolver. The serial numbers of the bills matched

those of bills that had been delivered to one of the banks

shortly before the robbery. While the FBI agents were

searching the premises, petitioner’s girlfriend arrived. She

3

informed the FBI that she had observed petitioner on two

separate occasions with more than $1,000 in cash. She said

that when she had inquired how he had gotten the money,

petitioner had said that he had robbed banks and had

committed the crimes alone and with a pistol.

In addition, tellers at each of the banks that had been

robbed selected petitioner’s photograph from a photo-

graphic array as that of the robber. Employees from three

of the four victim banks were also able to make in-court

identifications of petitioner.

2. Petitioner was represented at trial by a federal

public defender. During the trial, the prosecutor an-

nounced that the government and the defense had agreed

to a number of stipulations. Without objection from peti-

tioner or his attorney, the prosecutor then read a stipula-

tion concerning the dates of the robberies, the amounts

taken, and the federally insured status of each of the vic-

tim banks. After the stipulation was read, the trial judge

instructed the jury that “where counsel for the parties

enter into a stipulation, as has been done here, you are to

take the facts so stipulated and as read by counsel as being

proved without the necessity for further proof” (3 Tr. 33).

As a result of the stipulation, the only controverted issue

at trial was the identity of the bank robber, and on that

issue the defense presented the testimony of four alibi

witnesses.

At the close of the evidence, the court expiained to the

jury that (Pet. App. E):

many of [the elements of the bank robbery offenses]

are not [at] issue in this trial. First, the locations of

the banks involved are within the Northern District of

Georgia as alleged, and the Court will take judicial

notice of that fact and no evidence is required.

Secondly, it is stipulated that the banks were banks

operating under the laws of the United States, and

4

member banks of the FDIC and SLIC; and, third,

that on the dates, approximately [at the] times

named, money belonging to or in the care, custody,

control, and management or possession of the banks

was actually taken by someone by force or violence or

by intimidation, which leaves for your consideration

two contested issues.

The jury returned a verdict of guilty as to each count on

November 28, 1984. On December 3, 1984, petitioner filed

a motion for substitution of counsel. The stated reason for

the motion was that he wished to seek a new trial on the

ground that he had been inadequately represented.

Although the trial judge issued an order relieving peti-

tioner’s attorney of her duties on December 27, 1984, he

neglected either to notify her that the order had been

issued or to appoint a substitute. Sentencing took place on

January 15, 1985. Believing that she was still petitioner's

attorney, the public defender appeared on his behalf and

the trial judge, who had apparently forgotten that he had

signed the substitution order, treated her as petitioner's

counsel. At the conclusion of the sentencing proceeding,

when the trial judge informed petitioner that his attorney

could assist him in filing an appeal, the public defender

reminded the court that the motion to withdraw was pend-

ing. The following day, the court appointed substitute

counsel (Pet. App. A2-A6).

On appeal, petitioner argued that the stipulation con-

cerning the federally insured status of the banks was in-

adequate because neither petitioner nor counsel acknowl-

edged it in open court; that the court erred in failing to

instruct the jury concerning the elements of the bank rob-

bery offenses to which stipulations had been entered; and

that petitioner was entitled to a new trial due to ineffective

assistance of counsel.' The court of appeals affirmed by

judgment order (773 F.2d 1237 (Table)), and this Court

denied review (474 U.S. 1067).

3. Petitioner subsequently filed a motion for collateral

relief pursuant to 28 U.S.C. 2255. He alleged, inter alia,

that his trial counsel had improperly stipulated to an ele-

ment of the bank robbery offenses without first obtaining

his approval; that he was not represented by counsel dur-

ing his sentencing; and that he received ineffective

assistance of counsel as the result of his attorney’s failure

to object both to the government’s use of peremptory

challenges to strike blacks from the petit jury and to the

restitution order entered by the court, which petitioner

claimed required excessive restitution. To support his

allegations, petitioner filed an affidavit stating that his

trial attorney had not obtained his approval prior to agree-

ing to the stipulation and had disregarded his request to

object to the-elimination of blacks from the jury. The

district court denied the motion without an evidentiary

hearing (Pet. App. D1I-D2).

The court of appeals affirmed. The court first noted

(Pet. App. A3-A7) that, “[w]hile the unusual sequence of

the proceedings below makes it appear as though [peti-

tioner] was unrepresented at sentencing,” the public

defender was present and actively representing him during

the proceeding. Indeed, no one—not petitioner nor the

trial court nor the public defender —was aware that the

public defender had been officially relieved. Under these

circumstances, the court concluded (id. at A7), “[peti-

tioner] was represented by counsel at sentencing.”

' Petitioner also alleged that the evidence was insufficient as a mat-

ter of law; that the prosecutor had made certain improper arguments;

and that the trial judge’s instructions concerning the offense of assault

were inadequate.

6

Next, the court noted (Pet. App. A9-A13) that,

although “there are certain rights that cannot be waived

absent a constitutionally voluntary waiver,” a defense at-

torney may make a number of “tactical decision[s)”

without the defendant’s consent. “[T]he decision to

stipulate to the insured status of the banks,” the court

stated (id. at Al3 (citation and quotation marks omitted)),

“is more a tactical decision than an infringement on an in-

herently personal right of fundamental importance.” The

court accordingly concluded (id. at A14) that it was proper

for petitioner’s counsel to stipulate to the insured status of

the banks without a formal waiver by petitioner.

Finally, the court rejected (Pet. App. Al6-A17) peti-

tioner’s claims of ineffective assistance of counsel at trial.

Addressing petitioner’s contention that counsel should

have objected to the use of peremptory challenges to

eliminate blacks from the jury as a violation of Batson v.

Kentucky, 476 U.S. 79 (1986), the court observed (Pet.

App. A16) that, at the time of trial, Batson had not been

decided yet. Furthermore, this Court has concluded that

“Batson v. Kentucky is-an explicit and substantial break

with prior precedent” and accordingly held that “the rule

in Batson should not be available to [a defendant] on

federal habeas corpus review of his convictions.” Allen v.

Hardy, 478 U.S. 255, 258, 261 (1986). Under these cir-

cumstances, the court of appeals held (Pet. App. Al7),

petitioner “cannot raise this claim in his collateral attack,

and, in any event, the public defender’s performance was

in no way ineffective by failing to raise a Batson

objection.” The court rejected (ibid.) petitioner’s other

claims of ineffective assistance as “groundless” and “not

merit{ing] discussion.”

ARGUMENT

1. a. Petitioner contends (Pet. 16-21) that, because he

did not personally agree to stipulate that the victim banks

were federally insured, the stipulation was without effect.

That issue, however, was raised and rejected on

petitioner’s direct appeal (see Appellant’s C.A. Br. 13-17).

Absent an intervening change in the law, Section 2255 can-

not be employed to relitigate a question raised and decided

on direct review. Sanders v. United States, 373 U.S. i, 15

(1963); Barton v. United States, 791 F.2d 265, 267 (2d Cir.

1986) (collecting cases). For that reason, the district court

properly denied collateral relief. Even apart from that pro-

cedural bar, however, petitioner’s claim is without merit.

As the Court recently observed in Taylor v. Illinois, No.

86-5963 (Jan. 25, 1988), slip op. 17 (footnote omitted),

“{a]lthough there are basic rights that the attorney cannot

waive without the fully informed and publicly acknowil-

edged consent of the client, the lawyer has—and must

have —full authority to manage the conduct of the trial.

The adversary process could not function effectively if

every tactical decision required client approval.” Although

the Court’s decision in Taylor did not contain a definitive

catalogue of basic rights that the attorney cannot waive

without the client’s consent, it provided examples of those

rights (slip op. 17 n.24), such as the right to plead not

guilty, the right to a jury trial, and the right to be present

during trial.

By contrast, the courts have held that it is perfectly per-

missible for an attorney, without the express consent of his

client, to make tactical decisions during the course of the

trial, even where those decisions have “constitutional im-

plications.” United States v. Stewart, 700 F.2d 702, 704

(llth Cir. 1983). Such decisions include: waiver of the

right to trial by a 12-person jury (/bid.); waiver of the right

not to be tried while wearing prison garb (Estelle v.

Williams, 425 U.S. 501 (1976)); waiver of the right to ob-

ject to tainted evidence (Henry v. Mississippi, 379 U.S.

443 (1965)); and waiver of the right to object to the racial

composition of the jury (Winters v. Cook, 489 F.2d 174

(Sth Cir. 1973)).

The court of appeals was plainly correct in concluding

that a stipulation to the fact that the victim banks were

federally insured—a formal element of the offense of

bank robbery that is seldom contested — was merely a “tac-

tical decision” that was in no way comparable to a stipula-

tion of guilt.? See United States v. Stephens, 609 F.2d 230,

232-233 (Sth Cir. 1980) (footnote omitted) (“counsel in a

criminal case may waive his client’s Sixth Amendment

right of confrontation by stipulating to the admission of

evidence, so long as the defendant does not dissent from

his attorney’s decision, and so long as it can be said that

the attorney’s decision was a legitimate trial tactic or part

of a prudent trial strategy”); Wiley v. Sowders, 647 F.2d

642, 649 (6th Cir.) (distinguishing between “tactically

wise” stipulations “to a particular element of a charge” and

a stipulation to facts that amount to the “functional

equivalent” of a guilty plea), cert. denied, 454 U.S. 1091

(1981).

2 As the Second Circuit observed in United States v. Sliker, 751

F.2d 477, 484 n.3 (1984), cert. denied, 470 U.S. 1058 (1985), in bank

robbery prosecutions the parties routinely stipulate that the bank was

insured by the FDIC.

} Petitioner mistakenly relies (Pet. 19-20) on Justice White's s*ate-

ment in Henderson v. Morgan, 426 U.S. 637, 650 (1976) (White, J.

concurring), that “[i}t cannot be ‘harmless error’ wholly to deny a

defendant a jury trial on one or all elements of the offense with which

he is charged * * * [or to] permit a guilty plea to be entered * * * sole-

ly on the consent of the defendant's agent — his lawyer.” As the court

of appeals correctly noted (Pet. App. A8 n.6), Henderson v. Morgan

involved the voluntariness of a plea of guilty when the defendant was

9

b. Petitioner also argues (Pet. 21-26) that the trial

judge erred in instructing the jury that, because of the

stipulation, the jury need not consider whether the banks

were federally insured and whether, on the dates in ques-

tion, money in the care, custody, control and management

of the banks was taken by someone through force and

violence. Again, however, since this issue was raised and

rejected on direct appeal (Appellant’s C.A. Br. 26), peti-

tioner cannot raise it now. In any event, apart from that

procedural defect, the claim is meritless.

It is axiomatic that when the government and the

defense enter a stipulation of fact, the stipulated facts

“will be deemed to have been conclusively established.”

United States v. Houston, 547 F.2d 104, 107 (9th Cir.

1976). See also United States v. Rubio, 727 F.2d 786, 797

(9th Cir. 1983). The stipulation is to be regarded by the

jury as a matter conclusively proved, and the jury may be

so instructed. Houston, 547 F.2d at 107. See 1 E. Devitt &

C. Blackmar, Federal Jury Practice and Instructions

§ 11.11, at 304 (1977) (approving instruction that “[w]hen

not informed that intent to cause death was an element of the offense

charged. This case does not involve a plea of guilty, and petitioner

does not claim that he was unaware that the bank’s federally insured

Status was an element of the offense.

Brookhari v. Janis, 384 U.S. 1 (1966), upon which petitioner also

relies (Pet. 24), is equally inapposite. In Brookhart, trial counsel

agreed, without the defendant’s consent, that the defendant would be

tried “in a proceeding which was the equivalent of a guilty plea and in

which he would not have the right to be confronted with and cross-

examine the witnesses against him” (384 U.S. at 7). In this case, by ~

contrast, petitioner’s counsel vigorously contested the bank robbery

charges by challenging identification testimony and presenting alibi

witnesses. She merely stipulated to facts that were beyond dispute:

that the victim banks were robbed and that they were federally in-

sured.

10

the attorneys on both sides stipulate or agree to the ex-

istence of a fact” “you must, unless otherwise instructed,

accept the stipulation as evidence, and regard that fact as

proved”).4

2. Petitioner also claims (Pet. 26-31) that, because of

the district court’s December 27, 1984, order releasing his

defense counsel from further responsibility in his case, he

was denied the assistance of counsel during his January

16, 1985, sentencing proceeding. This issue too was raised

and rejected on direct appeal (see Appellant’s C.A. Br.

30-31). And, again, the claim is without merit.

Although a trial judge should not release one defense

counsel until a new one is appointed, “it does not follow

that every lapse in representation, however brief and in-

consequential, deprives a criminal defendant of his rights

under the Sixth Amendment.” Young v. Duckworth, 733

F.2d 482, 483 (7th Cir. 1984). The court below was plainly

correct in concluding that there was no such deprivation in

this case. Although the trial judge signed an order reliev-

ing petitioner’s appointed counsel on December 27, 1984,

the court did not advise petitioner or counsel of the ter-

mination order and did not even recall issuing it. Thus, all

participants in the sentencing proceedings believed that the

public defender was still petitioner’s attorney. As a result,

4 Petitioner’s reliance (Pet. 22-25) upon cases that address the im-

propriety of changing or deleting elements of the offense in a jury in-

struction (e.g., United States v. Fitapelli, 786 F.2d 1461, 1463-1464

(11th Cir. 1986)) is misplaced. In this case, the trial judge expressly in-

structed the jury that the elements to which stipulations were entered

were “essential elements” of the offense of bank robbery. He merely

informed the jury, consistently with governing legal principles, that

the stipulation of fact concerning those elements obviated the necessi-

ty of considering those issues and that the jury need only consider the

contested issues during its deliberations (Pet. App. E).

1]

she continued her attorney-client relationship with peti-

tioner throughout the sentencing proceeding,° acted as his

counsel during the proceeding, and was treated as such by

the trial court. The district court’s act of signing the ter-

mination order had absolutely no effect on petitioner’s

right to the effective representation of counsel during that

proceeding.®

3. Finally, petitioner maintains (Pet. 31-38) that the

district court improperly failed to conduct evidentiary .

hearings as to the competence of his counsel and as to

whether defense counsel actually agreed to the stipulation

of fact. A motion to vacate a sentence, however, does not

automatically require an evidentiary hearing. Section 2255

expressly provides that a hearing is not necessary if “the

motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief.” Thus, a

legal issue may be decided without an evidentiary hearing

when the record of the case provides a sufficient factual

basis to resolve the issue. See, e.g., United States v.

5 Petitioner speculates (Pet. 34) that defense counsel may not have

prepared for the sentencing hearing because she knew that she no

longer represented him. That supposition, however, is contrary to

counsel’s statements during the sentencing proceeding (see Pet. App.

A6), which clearly reflected her belief that she was still his attorney.

® This case is readily distinguishable from Powell v. Alabama, 287

U.S. 45 (1932), upon which petitioner relies (Pet. 27-28). In Powell,

the trial judge designated “all the members of the bar” to represent the

defendants during pretrial proceedings and neglected to appoint any

particular attorney to represent them until the morning of the trial.

The Court found that the trial judge’s action with respect to the ap-

pointment of counsel “was little more than an expansive gesture, im-

posing no substantial or definite obligation upon any one” and that,

therefore, during the most critical period of the proceedings, “the

defendants did not have the aid of counsel in any real sense.” /d. at

56-57. In this case, by contrast, petitioner’s appointed counsel actively

represented him from the inception of the proceedings through sen-

tencing.

12

Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984); United

States v. Campisi, 583 F.2d 692, 695 (3d Cir. 1978); For-

rester v. United States, 456 F.2d 905, 907 (Sth Cir.), cert.

denied, 409 U.S. 856 (1972).

On the basis of the trial record, the courts below could

properly conclude that petitioner’s claims of ineffective

_ assistance of counsel did not warrant a hearing. Although

- petitioner complains (Pet. 34-35) that his trial counsel

failed to object to the use of peremptory challenges to

eliminate blacks from the jury venire, at the time of his

trial a defendant could not prevail on such a claim absent

evidence of “purposeful discrimination” through the

systematic exclusion of blacks “ ‘in case after case.’ ” See

Batson v. Kentucky, 476 U.S. 79, 91-92 (1986) (quoting

Swain v. Alabama, 380 U.S. 202, 223 (1965)). Although

this Court’s decision in Batson repudiated the stringent

evidentiary standard articulated in Swain (see Batson, 476

U.S. at 95), Batson was decided, as the court below

observed (Pet. App. Al6-A17), more than a year and a

half after the trial in this case. Moreover, in Allen v.

Hardy, 478 U.S. 255, 258 (1986), this Court observed that

Batson significantly changed the evidentiary standard of

Swain. The Allen Court explained (478 U.S. at 260 (foot-

note omitted)) that “[t]here [was] no question that pros-

ecutors, trial judges, and appellate courts throughout our

state and federal systems justifiably have relied on the

standard of Swain.” Consequently, it cannot be said that

petitioner’s trial attorney was derelict in refusing, without

a further evidentiary basis, to object to the prosecutor’s

use of his peremptory challenges.’

? In Allen v. Hardy, supra, the Court concluded that its holding in

Batson was not retroactively applicable to cases that had become final

at the time of that decision. Since petitioner’s conviction became final

more that three months prior to the Court’s decision in Batson, the

decision in Batson would not have provided him with a basis for ap-

13

As the court of appeals observed (Pet. App. A5-A6

n.3), the prosecutor’s decision not to challenge the restitu-

tion order was also a “reasonable tactical decision[ ], and

fell far short of the Strickland standard for ineffective

assistance of counsel.” Although petitioner claims that the

order was unlawfully excessive because the victim banks

“presumably have been repaid” (Pet. 9), a restitution order

is proper even where the victim has been indemnified by a

third party; in that case the court may order that the

defendant compensate the indemnifier. See 18 U.S.C.

3579(e)(1). It is therefore unlikely that an objection to the

restitution order on this ground would have reduced the

amount of restitution ordered.

Nor was a factual hearing warranted to determine

whether petitioner’s attorney had actually assented to the

stipulation of fact. The trial transcript reflects that the

prosecutor expressly represented that the stipulation was

entered by the government and the defendant, and im-

mediately thereafter the trial judge announced that “where

counsel for the parfies enter into a stipulation, * * * you

are to take the facts so stipulated * * * as being proved

without the necessity for further proof” (3 Tr. 32-33 (em-

phasis added)). Since neither petitioner nor his trial

counsel objected to those representations, it was

reasonable for the court to conclude that petitioner’s at-

torney had agreed to stipulate to the uncontested matters.®

pellate relief even if his attorney had objected to the striking of blacks

from the jury venire. Petitioner’s reliance (Pet. 35) upon Griffith v.

Kentucky, No. 85-5221 (Jan. 13, 1987), is misplaced. Griffith merely

held that, although not available on collateral attack, the Batson rule

applies to cases that were pending on direct review when Batson was

decided. Griffith, slip op. 11-13. Petitioner’s case does not fall within

that category.

§ Petitioner’s reliance (Pet. 37) on Anderegg v. High Standard, Inc.,

825 F.2d 77 (Sth Cir. 1987), to support his argument that a stipulation

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

JOHN F. DE PUE

Attorney

JULY 1988

is of no effect unless reduced to writing is plainly misplaced. That case

involved a Texas procedural rule requiring stipulations to be in

writing, signed, and filed by the parties as part of the record. The

court held that the rule was applicable to Texas cases tried in federal

courts on the basis of diversity jurisdiction.

yr U.S. GOVERNMENT PRINTING OFFICE: 1988—202-037/60532

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