Petition for Writ of Certiorari — Lynn v. United States

No.

in the

Supreme Court

of the

United States

October Term, 1990

-@RICHARD JOSEPH LYNN,

7 Petitioner,

US.

.2 “UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BLACK & FURCI, PA.

ROY E. BLACK, ESQ.

MARISA TINKLER MENDEZ, ESQ.

201 South Biscayne Boulevard

Suite 1300

Miami, Florida 33131

(305) 371-6421

Attorneys for Petitioner

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Question Presented ..................0.-ceeees i

Table OF SoU acs. 6 6 684 6. cv yearn ysiecnene + ii

Table of Authorities ..................0. 0.0045 iii

Opinion of the Court Below .................... i

hameeee EE Or Sse Te ABS 2

Statement of the Case .................. tect 2

Reason for Granti.g the Petition.......,........ 3

I. THE DECISION OF THE COURT BELOW

GRANTING THE GOVERNMENT’S MOTION

TO DISMISS THE PETITIONER’S APPEAL

BECAUSE HE WAS A FUGITIVE AT ONE

POINT DURING THE EARLY STAGES OF HIS

APPEAL, DESPITE THE FACT THAT HIS AB-

SENCE CAUSED NO DELAY OR DISRUPTION

IN THE PROCEEDINGS, IS IN DIRECT CON.

FLICT WITH DECISIONS OF OTHER CIRCUIT

COURTS AND HAS SO FAR DEPARTED FROM

THE USUAL COURSE OF JUDICIAL PRO.

CEEDINGS, iT REQUIRES THIS COURT TO

EXERCISE ITS SUPERVISORY POWER ... 3

CONES Bae osc a ce OER AOS UB aS coke Sees ke 8

Appendix:

A. United States Court of Appeals

for the Eleventh Circuit’s

Order dated 8/17/90, granting

Appellee’s Motion to Dismiss

Appeal of Richard J. Lynn ............... App.1

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TABLE OF AUTHORITIES

CASES | Page

brinlee v. United States,

483 F.2d 925 (8th Cir. 1973) ...............00. 4

Charles Woods Television Corporation

v. Capital Cities/ABC, Incorporated

869 F.2d 1155 at 1161 (8th Cir. 1989) ......... 7

In re Murphy,

560 F.2d 326 at 337-9 (8th Cir. 1989) .......... 7

Kraus ». Chartier,

406 F.2d 898 (1st Cir. 1968) .................. 7

Molinaro v. New Jersey,

SU ek eae e ccs e ees 3,4

United States v. Kennedy,

548 F.2d 608 at 612 (5th Cir. 1977) ........... | 7

United States v. Nobles,

Me I CUO). ee eee 7

United States v. Oberski,

734 F.2d 1030 at 1032 (5th Cir. 1984) ......... 7

United States v. Shelton, —

508 F.2d 797 (Sth Cir. 1975),

cert. denied, 423 U.S. 828 (1975) .............. 4

United States v. Silverman,

745 F.2d 1386 ai 1397 (llth Cir. 1984) ........ 7

United States v. Snow,

748 F.2d 928 (4th Cir. 1984) .................. 4,5,6

United States v. Sperling

506 F.2d 1323 (2d Cir. 1974),

cert. denied, 420 U.S. 962 (1975) .............. 4

United Staies v. Swigart, .

490 F.2d 914 (10th Cir. 1973) ................. 4

iii

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No. |

fame

4 e Court

Hnited ‘States

October Term, 1990

RICHARD JOSEPH LYNN,

Petitioner,

vs

- UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner, RICHARD JOSEPH LYNN, by his

undersigned counsel, respectfully prays that a Writ of

Certiorari issue to review the order of the United States

Court of Appeals for the Eleventh Circuit, entered in

the proceedings on August 17, 1990. ‘Sm.

OPINION OF THE COURT BELOW

The opinion of the Court of Appeals for the Eleventh

Circuit is by order filed August 17, 1990.

i os li Soa

pursue le 2 left sea pubeunad se (

provisions of Tike 28, United Skates Coe Betton 1254(1).

Richard Joseph Lynn timely filed his notice of appeal,

appealing his conviction and sentence of life imprisonment

without parole. Mr. Lynn, who had been in pretrial custody,

was transferred to his designated facility. Lynn escaped, but

was back in custody by August 29, 1990. On June 13, 1990,

the government filed a motion to dismiss the Petitioner’s

appeal. On June 25, 1990, the Petitioner filed a response to

the government’s motion to dismiss the appeal, requesting

that the Court hold the Government's motion in abeyance

for 30 days or enter a prospective order of dismissal after 30

days.

By order dated August 17, 1990, the Court of Appeals for

the Eleventh Circuit granted the government’s motion to

dismiss the Petitioner’s appeal. On August 23, 1990, the

Petitioner filed a motion for reconsideration of the order of

dismissal. The Petitioner filed a supplement to his motion

for reconsideration on August 30, 1990, advising the court

that the Petitioner had been in custody since August 29, 1990.

Accompanying this supplemental motion for reconsideration

was the Petitioner’s motion for permission to file his appellate

brief. At the same timo, the Petitioner filed his initial brief,

with the requisite copies. His brief was received by the Court

of Appeals on August 27, 1990.

By order dated September 25, 1990, the Court of Appeals

denied the Petitioner's 1. >tion for reconsideration and motion

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to file his appellate brief. The Petitioner seeks review of the

Coan teeoeteceinaetnaaniie tis aqgank

THE DECISION OF THE COURT BELOW GRANTING

At aEh si GEEET be PT ne

PROCEEDINGS, IS IN DIRECT CONFLICT WITH

aaa Ged Tae Cea Dee oe

TO EXERCISE ITS SUPERVISORY POWER.

The decision of the court below dismissing the Petitioner's

appeal was erroneous, since: (1) the court below did not give

the Petitioner an opportunity to return himself to the court’s

jurisdiction within a proscribed period of time, nor did the

court ever advise the Petitioner that a feilure to do so would

subject him to the most extreme remedy of dismissal of his

appeal; (2) the Petitioner was in custody two days after the

Court of Appeals received his appellate brief; and (3) his

absence caused no delay in the proceedings below, and did

not prejudice the government.

In Molinaro v. New Jersey, 396 U.S. 365 (1970), this Court

held that where a defendant is a fugitive, this would prevent

him from calling upon the resources of the court for deter-

mination of his claims. Jd. at 365-6. However, in Molinaro,

this Court only addressed a case where the litigant was a

fugitive, and not the situation presented in this case where

the Petitioner, although at one time a fugitive, was back in

custody. Clearly the court’s schedule was not delayed.

The appellate courts interpreting Molinaro have exercised

discretion before dismissing an appeal by either allowing a

reasonable time for surrender, or by putting the escepee on

notice that his appeal would be dismisced unless he sur-

aed ee MEU Ss tai ead ae

uv Tremont, 438 F.2d 1202 (6th Cir. 1971).

In all of these cases, the courts fashioned fair remedies in

which the fugitives would be on notice by court order that

their appeals would be dismissed prospectively unless they

surrendered themselves within a proscribed period of time.

For example, in United Siates v. Swigart, the Tenth Circuit

Court of Appeals entered a “tentative” order of dismissal,

allowing the appellant 30 days within which to surrender

himself to the custody of the United States Marshal. 490 F.2d

at 915. The court’s intent was to advise the fugitive that his

appeal would be dismissed at some future date if he did not

comply with the court's order. Jd.

In Brinlee uv. United States, the Eighth Circuit Court of

Appeals similarly entered a prospective order of dismissal

of the appellant’s appeal, putting the appellant on notice that,

unless he submitted himself to the jurisdiction of the court

or was taken into custody by State or federal officers within

30 days of the court’s order, his appeal would be dismissed.

483 F.2d at 927. The Eighth Circuit specifically relied upon

this Court's decision in Molinaro vu. New Jersey, 396 U.S 365

(1970). See also, United States v. Sperling, 506 F.2d at 1345

n.33 (court similarly entered prospective order of dismissa!

allowing fugitive to return himself to custody or be returned

to custody within 30 days of the order).

appeal was pending, and was

since he was back in custody within less than 30 days from

his escape and before his appeal was to be heard, and further,

because he did not have an opportunity to comply with a court

order him to surrender and reinst<te his claim. /d

at 930. The Fourth Circuit recognized that it would be in-

equitable to punish Snow for his escape after he had been

recaptured by dismissing his appeal, since he would be subject

to a separate punishment for the escape, and further, because

his escape and subsequent recapture did not inconvenience

the court’s schedule, and oral argument was able to proceed

as planned. Jd. at 929-30.

The Fourth Circuit followed what is the common practice

amongst the Circuit Courts of Appeals by putting the fugitive

on notice that the extreme remedy of dismissal of his appeal

will be invoked only if he fails to return or is not recaptured

within a proscribed period of time. Further, the Pourth Circuit

that its case was different from those cases w!.ere

an individual is still in escapee status at the time when their

cases are scheduled for oral argument, or there has been some

inconvenience te the court's schedule, since Snow was back

in custody, and the court had not been inco~venienced. Ai-

though the court would not condone the escapee’s flight from

justice, since his actions constituted an independent crime,

the court recognized that it would be unreasonable to punish

him twice by dismissing his appeal. 748 F.2d at 930 n.3.

_ The situation existing in Snow is the same as in the present

case. The remedy fashioned by the court in Snow should have

been the type of remedy fashioned in this case.

Here, Richard Lynn was back in custody wel! before the

Court of Appeals would have reviewed the merits of his

appeal. Lynn has been indicted for the crime of escape, and

by dismissing Lynn’s appeal, the court below has punished

him twice — a practice which is not adopted by other Circuit

Courts addressing a similar situation. See United Siates v.

Snow, 748 F.2d 928 at 930 n.3. Second, Lynn’s escape and

subsequent recapture did not inconvenience the court’s

schedule. The Petitioner was back in custody two days after

his appellate brief was received by the court. One co-

appellant’s brief was docketed in the ccurt on August 27, 1990

— the same day the Petitioner’s brief was received. His other

co-appellant has yet to file his appellate brief, which is due

to be filed on or before November 16, 1990. Clearly, there was

no delay in the court’s schedule because of the Petitioner’s

escape. The appellate process continued in an orderly manner,

as indicated by the court’s various rulings.

The opinion of the court below dismissing the Petitioner’s

appeal clearly conflicts with the decisions of other Circuit

Courts addressing the situation where an individual is a

fugitive. Here, there has heen no showing that the Petitioner

flagrantly refused to obey any order of the Court of Appeals

to return to the court’s jurisdiction with the knowledge that

his disobedience would cost him his right to appeal, since the

court below never put the Petitioner on notice of its intention

to dismiss his appeal. The drastic and serious measures taken

by the court below has created an obvious conflict between

this Court and other Circuit Courts of Appeals.

Although Richard Lynn was a fugitive at one point during

the pendency of his appeal, he was in tustody prior to his case

being submitted to the court for decision and had no notice

that his absenting himself from the court’s jurisdiction would

cost him his appeal.

The Petitioner raised five issues of error in the trial court

supporting his request for reversal of conviction and a new

trial. The jury selection process used at the trial was not

random and, therefore, in clear violation of the Jury Selection

and Service Act of 1968, 28 U.SC. § 1861. The trial court only

allowed selection of jurors from lists with surnames beginning

with the letters “A” to “H,’ and the alternate jurors were

selected from potential jurors having surnames beginning

with the letters “H” to “J.” This procedure clearly introduced

a “significant element of non-randomization” into the jury

selection process. See, eg., United States v. Kennedy, 548 F.2d

608 at 612 (5th Cir. 1977). See also, Kraus v. Chartier, 406

F.2d 898 (ist Cir. 1968).

The trial court erroneously quashed a defense subpoena

issued to a government witness. The evidence sought by the

subpoena was admissible pursuant to Rule 401, Federal Ruies

of Criminal Procedure, and under the Sixth Amendment’s

Compulsory Process Clause, the Petitioner had a right to

subpoena it. See, United States v. Silverman, 745 F.2d 1386

at 1397 (11th Cir. 1984).

The trial court allowed the government to introduce into

evidence reports made by private investigators working on

behalf of the Petitioner — reports which were protected by

the attorney/client privilege as confidential work product. The

memoranda were prepared and analyzed by the Petitioner’s

agent in connection with his defense. Production of these

documents and submission to the jury was extremely pre-

judicial. See United States v. Nobles, 422 U.S. 225 at 238

(1975); Von Bulow by Anersperg v. Von Bulow, 811 F.2d 136

(2d Cir. 1987), Charles Woods Television Corporation v. Capital

Cities/ABC, Incorporated, 869 F.2d 1155 at 1161 (8th Cir.

1989); In re Murphy, 560 F.2d 326 at 337-9 (8th Cir. 1977).

Perhaps the most serious error committed by the trial court

was during sentencing when it enhanced the Petitioner’s

sentence to life imprisonment without parole, despite the fact

that the Petitioner was acquitted by the jury of the continuing

criminal enterprise charge in which he was charged as the

principal manager, supervisor and leader of the enterprise.

This sentence was imposed in violation of law and through

an incorrect application of the sentencing guidelines. The

Petitioner’s status as manager of the continuing criminal

enterprise was a question of fact for the jury to decide, which

they did decide, by acquitting the Petitioner of this count. See

United States v. Oberski, 734 F.2d 1030 at 1032 (5th Cir. 1984).

The Petitioner was erroneousiy sentenced to a term of life

imprisonment without the possibility of parole. )

To summarily dismiss Richard Lynn's appeal, considering

the severity of his sentence, is unconscionable. Particularly

in this case, where the Petitioner was back in custody two

days after the court below received his brief, which never

disrupted the court’s schedule or caused any prejudice to the

government, he should have his appeal reinstated and ad-

judicated on its merits.

CONCLUSION

For the reasons stated, the Petitioner prays this Court issue

a writ of contionasi.

Miami, Florida, 33131

(305) 371-6421

ROY E. BLACK, ESQ.

Attorney for Petitioner

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-7925

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD JOSEPH LYNN,

ROBERT IRVING EYSTER, a/k/a DICKIE,

JACK LEROY MARSHALL,

Defendants-Appellants.

Appeal from the United States District

Court for the Southern District of Alabama

BEFORE: ANDERSON, COX and BIRCH,

Circuit Judges.

BY THE COURT:

Appellee’s motion to dismiss the appeal of RICHARD

J. LYNN is granted.

“Call a te