Reply Brief — Wuliger v. United States

FILED

NO. 93-946 MAR - 8 1994

IN THE ; FicCg OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1993

WILLIAM T. WULIGER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPELLANT’S REPLY BRIEF

WILLIAM T. WULIGER

Pro Se Petitioner

The Brownell Building

Cleveland, Ohio 44115

(216) 781-7777

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TABLE OF CONTENTS

peo ke Ba ee eee li

nT

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TABLE OF AUTHORITIES

Cases

Page

Air Line Pilots Ass’n. International

v. UAL Corp., 897 F.2d 1394 (7th Cir., 1990) . 5

Beaber v. Beaber, 41 Ohio Misc. 95,

322 N.E.2d 910 (C.P. Stark Cty., 1974) ...... 7

Charles Dowd Box Co. v. Courtney,

566 LES. Bee Ge ec bbe hoek sc eeccs 6

Cooper v. Cooper, unreported, C.A. Cuyahoga

County, Case Nos. 49605 & 50022 (1/23/86) . 7

Federal Power Commission v. Transcontinental

Gas Pipe Line Corp., 423 U.S. 326 (1976) .... 5

Federal Trade Commisison v. Flotill, Inc.

SOD US. Tee Se 8 ois cas canes des 00s 5 |

Fluharty v. Fluharty, unreported, C.A. Summit

County, Case No. C.A. 8951 (11/29/78) .... 7 |

Hawkins v. United States, 358 U.S. 74 (1958) ...... 6 |

Linkletter v. Walker, 381 U.S. 618 (1965) ......... 6

N.L.R.B. v. Metropolitan Life Ins. Co.,

Se Te SE ED we kb cc eh eo ooo ok 0's 0% 6

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ......... 5 |

Page

Plumbers, Steamfitters, Refrigeration, Petroleum

Fi And Apprentices of Local 298, A.F.

of L. v. Door County, 359 U.S. 354 (1959) ... 6

Richards v. United States, 369 U.S. 1 (1962) ....... 6

United ie Zacks, 375 U.S. 59 (1963) ........ 6

Waterman S.S. Corp. v. United States, 381 U.S. 252,

reh denied 382 U.S. 873 (1965) ........... 5

Statutes

CE ee er re 6

Er ee Pere errr 5

co 5

Ohio Supreme Court’s Rules For the Government

os > = — af Bee aaa Rr es 3

Miscellaneous

SE EE BD og we svc essences edaseen 5

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NO. 93-946

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

WILLIAM T. WULIGER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPELLANT’S REPLY BRIEF

On or about February 16, 1994, Respondent filed

its three-page "Memorandum For The United States In

Opposition." In that Memorandum, Respondent does

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not contest Petitioner's Statement Of The Case And The

Facts. Nor does Respondent contest the fact that this

case presents important issues of federal statutory and

constitutional law on which state courts and lower

federal courts are in substantial and continuing conflict.

Rather, Respondent has limited its response to an

argument that the issues presented by Petitioner herein

are not ripe for adjudication by this Court.’

Petitioner respectfully submits that Respondent's

argument lacks cogency in several respects. First,

Respondent ignores the fact that Petitioner's appeal to

"Respondent's argument is essentially that

Petitioner's conviction was reversed by the Sixth Circuit

Court of Appeals which further ordered the case

remanded for new trial. Thus, Respondent argues that

Petitioner's issues would be mooted by a subsequent

acquittal and that, in the event of a subsequent

conviction, those issues could be raised via appeal to

the Sixth Circuit and certiorari to this Court at that time.

However, as discussed below, Petitioner respectfully

submits that the issues presented in his Petition are

indeed ripe for review and that, even assuming,

arguendo, that they were not, ripeness is not the

determining factor in this Court’s decision to exercise

its jurisdiction.

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the Sixth Circuit involved a request for an outright

acquittal as a matter of law. Insofar as the Sixth Circuit

ordered a remand for a new trial, that request for relief

was denied. It is, therefore, difficult to comprehend

how the Sixth Circuit’s judgment as to that issue could

possess any more finality following a retrial than it does

at this moment.

Second, the government overlooks the immediate

and irreparable harm that would inevitably result from

a conviction following a retrial, even if that conviction

were ultimately reversed upon appeal to this Court. In

Ohio, when an attorney is convicted of a felony, he

faces an immediate indefinite suspension of his license

to practice law, regardless of the fact that an appeal

may be pending and regardless of the merits of that

appeal. In the case at bar, in fact, following

Pursuant to Rule V (5) of the Ohio Supreme Court's

Rules For the Government Of The Bar, The Ohio

Supreme Court may indefinitely and summarily

suspend an attorney upon proof of his conviction of a

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Petitioner's January 1992 conviction, his Ohio license to

practice law was summarily and indefinitely suspended

by the Ohio Supreme Court, which was divided on the

issue with three of the seven Justices dissenting. As a

result, Petitioner was deprived of his right to practice

law in Ohio for more than one year until his conviction

was reversed on appeal, at which point the Ohio

Supreme Court reinstated him. Thus, if Petitioner is

retried and convicted based upon what Petitioner

contends to be the erroneous principles of law set forth

in the Sixth Circuit’s opinion, he would be summarily

deprived of his license to practice law in Ohio for

another two years until a second appeal to the Sixth

felony. Although couched in discretionary terms, the

court’s decision to indefinitely suspend an attorney

under such circumstances is, as a practical matter,

automatic. Following the indefinite suspension order,

an attorney will be entitled to reinstatement, under the

court's rules, only after his conviction has been reversed

on appeal or, in the case of an affirmance of the

conviction, only after a formal disciplinary hearing

conducted after the appeal has been completed.

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Circuit and certiorari to the Court could be completed.

Thus, Petitioner may well face irreparable harm if the

appeal of this case is deferred until after a retrial.

Third, finality or ripeness is not an essential

prerequisite to the exercise of this Court's jurisdiction

upon a petition for a writ of certiorari. E.g, Nixon v.

Fitzgerald, 457 U.S. 731 (1982); Federal Power

Commission v. Transcontinental Gas Pipe Line Corp.,

423 U.S. 326 (1976); Air Line Pilots Ass’n. International

v. UAL Corp., 897 F.2d 1394 (7th Cir., 1990); 28 U.S.C.

§§ 1254, 2101(e); Supreme Court Rule 18.

Rather, the more pertinent concerns governing

this Court’s discretionary appellate jurisdiction have

traditionally been acknowledged to involve: (1) The

need to resolve continuing conflict among lower federal

courts in order to facilitate the uniform application of

federal law;’ (2) The need to resolve existing conflicts

*E.g., Federal Trade Commission v. Flotill, Inc., 389

U.S. 179 (1967); Waterman SS. Corp. v. United States,

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between federal and state courts on matters of federal

law subject to the concurrent jurisdiction of the two

court systems;‘ and (3) The need to resolve troublesome

questions regarding the administration of justice.°

The case at bar involves each of these concerns.

The federal circuit and district courts are in continual

conflict as to the meaning and scope of 18 U.S.C. §§

2510, et seq., particularly with respect to the legality of

interfamilial wiretaps. Moreover, the Sixth Circuit's

opinion in this case has created additional conflict in

holding that the presentation of admissible evidence

during judicial proceedings can be deemed to constitute

381 U.S. 252, reh denied 382 U.S. 873 (1965); N.L.R.B. v.

Metropolitan Life Ins. Co., 380 U.S. 438 (1965); United

States v. Zacks, 375 U.S. 59 (1963); Richards v. United

States, 369 U.S. 1 (1962).

‘E.g, Charles Dowd Box Co. v. Courtney, 368 U.S.

502 (1962); Plumbers, Steamfitters, Refrigeration,

Petroleum Fitters And Apprentices of Local 298, A.F. of

L. v. Door County, 359 U.S. 354 (1959).

°E.g., Linkletter_v. Walker, 381 U.S. 618 (1965);

Hawkins v. United States, 358 U.S. 74 (1958).

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criminal activity. In these respects, the decision of the

Sixth Circuit herein is in conflict with the positions

adhered to by the First, Second, Fourth, Fifth, Seventh,

Eighth, Ninth, Eleventh and District of Columbia

Circuits.*

Similarly, the Sixth Circuit’s opinion regarding

the issues relating to izapeachment and interfamilial

interceptions is in conflict at least with three opinions

emanating from Ohio State courts in ruling on the

admissibility of intercepted evidence.’

Finally, as discussed more fully in the pending

Petition, this case presents issues which are vital to the

ongoing administration of justice in both the federal and

State court systems, in terms of the propriety of various

“See generally, Petitioner's Petition For A Writ Of

Certiorari, pages 31-46.

’E.g., Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E.2d

910 (CP. Stark Cty., 1974); Cooper _v. Cooper,

unreported, C.A. Cuyahoga County, Case Nos. 49605 &

50022 (1/23/86); Fluharty v. Fluharty, unreported, C.A.

Summit County, Case No. C.A. 8951 (11/29/78).

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evidentiary rulings and in terms of the ongoing chilling

effect which the Sixth Circuit’s decision will have upon

zealous advocacy and the right to adequate legal

representation.

Respondent, in its Memorandum, does not

contest any of those compelling reasons for granting

certiorari in the case sub judice. Rather, the government

contends that these issues will become moot if Petitioner

is retried and acquitted and that these issues may be

presented two or three years from now in the event that

Petitioner is retried and convicted.

What Respondent conveniently ignores is the fact

that this case presents this Court with such a wide

spectrum of significant issues as to the scope of the

federal wiretap statutes that a decision on merits at this

time may eliminate years of uncertainty, conflict and

lack of uniformity among the state and lower federai

courts.

This case involves substantial and well-defined

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issues, developed in the context of a comprehensive

evidentiary record and substantial briefing by both

sides. Respondent's suggestion that this court refrain

from hearing this matter until a second trial and appeal

have been completed would do absolutely nothing to

present a more developed record to assist this Court in

its examination and resolution of these issues. Thus, the

factual and legal background of this case provides

sufficient concreteness to permit this Court’s analysis

and resolution of the issues without resort to mere

speculation or hypothesis. A second trial will add

nothing to the factual and legal basis of this case which

would assist this Court in determining the issues

presented herein.

Accordingly, for the foregoing reasons, Petitioner

respectfully requests that this Court exercise its

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discretionary jurisdiction and determine this case on its

merits.

Respectfully submitted,

WILLIAM T. WULIGER, ESO.

Pro se Petitioner

1340 Sumner Court

Brownell Building

Cleveland, Ohio 44115

(216) 781-7777