Petition for Writ of Certiorari — Browning v. United States

99. J 562 Suoremea Court Us

EILEC

NO. MAR 16 1993

Q6EIOR OF THE CiiRK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

RODNEY BROWNING PETITIONER

vs.

UNITED STATES OF AMERICA RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

? we Pe, re

a4 ae fi, — .

DEANNA L. DENNISON

Counsel for Petitioner

524 Greenup Street

Covington, Kentucky 41011

(606) 491-3700

a Ean it ad 2) w oti

:

e

re

QUESTION PRESENTED FOR REVIEW

ne

WHETHER THE TRIAL

COURT DENIED THE

DEFENDANT HIS

CONSTITUTIONAL RIGHT

TO COUNSEL IN

VIOLATION OF THE SIXTH

AMENDMENT BY FAILING

TO GRANT THE

PETITIONER’S MOTION TO

SUBSTITUTE COUNSEL.

AS

alii

nite td hu te

Sioa stil. hii limit

PARTIES TO THIS PROCEEDING

The parties to this proceeding are

those contained in the caption of the case

in this Court, namely:

RODNEY BROWNING. ° 2© © © e« « e PETITIONER

UNITED STATES OF AMERICA .. . RESPONDENT

TABLE OF CONTENTS

Questions Presented for Review. .... i

Parties to the Proceeding ....... ii

Table of Contents .... Peete so «ee

Table of Authorities... a oe ee Fe |

Reference to Opinions in the

er ee ee ee ee ee

Statement of Jurisdictional

CPPCC CC eT. . es 5 5 » « 6 «© » « AV

Constitutional Provisions,

I RAO gl kl ltl tl tl tl tl tl tlCUWY

Statement of the Case and Basis

for Federal Jurisdiction ...... 1

Mies 6 6 s & 5 &© © © © © © «© «© 0 «© Lh

EE ee ee ©

To) a a 4 |

Dr owe se 5 6 6 6 + « & «© « «© « 29

li

TABLE OF AUTHORITIES

Cases Page

Evitts v. Lucey, 469 U.S. 387, 83

inngeeee Gan, 205 §.Ct.- 830

i Cicero w eS ey | Ue

: McKinnon v. State, 526 P.2d, 18,

yy Be NE ES a} ee 21

Slappy v. Morris, 649, F.2d 718

; oem aes SOAR a x tk Uw es 88; 90,

4 23

| U.S. v. McClendon, 782 F.2d 785,

‘ 789 (9th Cir. 1986)

: Peet a a tk os se ele oe, 3S

U.S. v. Rogers, 769 F.2d 1418,

Gas Cwem Gals LUGS). «+ + «© « «+ « 26

U.S. v. Walker, 915 F.2d 480,

: 482 (9th Cir. 1990)

4 oe | a a

U.S. v. Williams, 594 F.2d 1258,

1260-61 (9th Cir. 1979) ..... 16

iii

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The opinion delivered in the Court

below, that is, the United States Court of

Appeals for the Ninth Circuit, affirmed

the Petitioner’s conviction on December

16, 1992 by Judgment and Order Number 91-

50317 which was not recommended for

publication. A copy of the Memorandum of

the Court of Appeals for the Ninth Circuit

consisting of five pages is appended

hereto.

JURISDICTIONAL GROUNDS

etP The Opinion of the Ninth

Circuit Court of Appeals was rendered on

December 16, 1992.

eser No request was made for

rehearing and no extension was requested

for additional time to file this Petition.

CZ2a) The Supreme Court has

jurisdiction to grant Certiorari in this

case and the statutory provision believed

to confer jurisdiction on this Court to

iv

‘ —

‘ ; 3?

review the judgment in question by Writ of

Certiorari is 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES

The following Constitutional

Provisions\are involved:

The Sixth Amendment to the United

States Constitution states as

follows:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime

cnt AA i a eee ek AR A eae ae ee

: shall have been committed, which

: district shall have been previously

| ascertained by law, and to _ be

: informed of the nature and

‘ cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and

3 to have the assistance of counsel for

| his defense."

STATEMENT OF THE CASE AND BASIS FOR

FEDERAL JURISDICTION

The Court of Appeals for the Ninth

Circuit has jurisdiction over appeals from

final judgment under 28 U.S.C. Section

1254(1) and from final sentence under 18

U.S.C. Section 3742(a) (2).

On July 18, 1987 the United States of

America, in a multi-defendant, multi-count

indictment, as superseded by a fourth

Superseding indictment filed on December

3, 1987, as redacted by the United States

of America before trial, charged the

Defendant, RODNEY BROWNING, with one count

of conspiracy in violation of 21 U.S.C.

Section 846, and two counts of

distribution of a Schedule II controlled

substance in violation of 21 U.S.C.

Section 841(a)(1) (counts 15 and 23 of the

fourth superseding indictment).

The Defendant was not arraigned until

September 12, 1989, at which time he pled

not guilty to all the charges against him

and a public defender was appointed to

represent him. An initial trial date was

set for November 7, 1989; however, by

Stipulation of the parties, without

consulting the Defendant, the trial date

was vacated and an order was entered by

the court that a new trial date be set at

such time as the Ninth Circuit Court of

Appeals entered an opinion regarding the

district court’s ruling denying certain

co-defendants’ motions to suppress wiretap

evidence which was used at their trials.

The Defendant was not present at the

motion to suppress nor was the Defendant’s

public defender and therefore, no one was

present on behalf of the Defendant to

cross examine the Government’s witnesses

on the Defendant’s behalf.

After the Ninth Circuit Court of

Appeals entered its opinion in the appeals

which affirmed the denial by the district

court of their motions to suppress the

or a oY “=o

——

wiretap evidence at their trials, the

court reset the Defendant’s trial for

November 27, 1990.

On October 4, 1990, approximately

eight weeks’ before trial, a status

conference was held, with the Defendant

and his public defender being present.

The court had received a letter from the

Defendant in which he vehemently expressed

his dissatisfaction with defense counsel

on the following grounds: that his public

defender did not have the time to prepare

a defense because he was very involved in

another case which hadn’t allowed him to

work on the Defendant’s case, that his

public defender hadn’/t visited him

regarding his case, .hadn’t returned his

phone calls, hadn’t presented any motions

in his case, and hadn’t even advised him

whether he would even be going to trial.

In response, the Defendant’s' public

defender admitted that he hadn’t returned

9

r > ~ *. i -

Fe & at ayer Oe

Ny hs lisse,

cout ssl SF Ph). «eee

the Defendant’s phone calls and had

delegated the visitation time to his

"court-appointed investigator" who has

"run the ball substantially on that

particular issue." He acknowledged that

there had been "time constraints" (for

over a year?) and that "I delegated to the

extent that I did and felt the delegation

was as to tasks which I felt were

appropriate to delegate." The Defendant’s

public defender acknowledged to the court

that he was very involved in another case

and agreed that the Defendant was correct.

Upon further examination by the

court, the Defendant’s public defender

revealed that a dispute existed between

the Defendant and himself regarding a

"Stipulation" as to the authenticity of

certain tapes to be used at trial. He

claimed that if the Defendant did not

stipulate that his "task would be just a

bit harder" and that the Defendant should

PE RR ical RS SON OTE AN NY LIRA OA ERM Dire ON uae MENS Bm Neto

ome aa ae

SE a ae > en

ee eA eT “

(2 keel

a4

a ae

Li Enh

a tt ale at TO el at a a at Gall

not hold that against his performance.

The court disagreed.

Court:

It is the Petitioner’s

absolute right not to

stipulate and that if it

takes a little longer to

present the case, then

sobeit. His right is

paramount. You may explain

to him what the pros and

cons are, but ultimately

that has to be his choice.

The court then asked the Defendant to

comment upon

concerning his

Defendant:

Court:

Defendant:

Court:

Defendant:

the letter he wrote

representation.

I had him for the last 12,

13 months and I just, I

have been sitting over in

the jail over there and I

haven’t seen nobody...I

haven’t seen him even at

the jail over 10 times.

Have you been seeing his

people from his office,

investigators?

No...I have seen Kristine

two times, two to three

times in the last six

months.

Have you been presented

with transcripts, digest

and things like that?

Back in April.

Court: But, those are the same

transcripts that we will

be dealing with in trial.

Defendant: Transcripts or digests.

Since June she came one

time.

Court: Have things been left with

you to look at?

Defendant: Back in April. I haven’t

had nothing else since

that.

The court recognized that the Defendant

had been in custody for 12 or 13 months

and made it known to the Defendant’s

public defender that he was concerned

about his lack of contact with his client.

Court: Now, Mr. Nicolaysen, from

now until November 27, is

almost eight weeks,

seven weeks, its plenty of

time. You have to make

more time to see Mr.

Browning. You have to make

more time to see Mr.

Browning...But, from here

on in you have got to at

the end of the day march

over there at 5:00 o’clock

and speak to Mr.

Browning and find a way to

communicate with him.

After reviewing the Defendant’s

“ae

complaints in open court and the response

of the Defendant’s public defender, the

district court denied the Defendant’s

request for appointment of new counsel.

On November 13, 1990, seven days

before trial, the Defendant, in a panic,

sent another letter to the court

expressing his desire to substitute

counsel because of the public defender’s

continuing lack of communication with him

and their relationship as attorney and

client.

The Defendant’s public defender

responded by submitting to the lower court

a declaration under seal which the

Defendant and the United States had no

right to see or respond to. The Court on

its own reviewed the response of the

Defendant’s public defender and refused to

openly address the Petitioner’s fears and

concerns about his representation.

Court: I invited his response

and what I will do is

Court:

Nicolaysen:

Court:

Gordon:

Court:

Gordon:

Court:

study his response and

your letter. I don’t have

a chance right now. If

necessary, I will hold

another hearing or make

some appropriate order

as a result. In other

words, I have your

letter and I have his

response.

You filed your declaration

under seal.

I don’t want to serve the

Government with it or have

it be a part of public

record.

I will keep it under seal.

This has to doe with his

response to Mr. Browning’s

motion regarding some of

Mr. Browning’s concerns

about his representation.

I don’t see why that should

be filed under seal. I

assume the defendant is

trying to get Mr.

Nicolaysen excused or

substituted out.

Yes.

There is no basis for the

government not being able

to see the argument.

Shouldn’t that be only if I

find it to be meritorious?

In other words, if I am

able to rule on the papers

without further inquiry,

Gordon:

Gordon:

Court:

shouldn’t I protect the

confidence?

In other words, if I read

the papers and I find that

based upon my reading of

the papers that the motion

is without merit, then I

think I ought to keep the

declaration under seal.

If I believe that it

warrants further inquiry,

then I think that I ought

to consider unsealing it.

Shouldn’t it wait an

initial examination.

Here is the only reason I

think it may not. What if

the government has’ some

explanation for certain

things that may, in

fact, show the defendant’s

claim lacks merit? Your

Honor may not know it.

Defense counsel may not

have known st. The

government may say, No,

your Honor, Rodney

Browning’s argument on this

is insufficient because of

a oe 2

Assume your Honor goes

ahead and denies the

motion. Rodney Browning

would have an appeal down

the line for improperly

denying to substitute

counsel when we may be

able to circumvent that

argument.

Let’s just wait a reading

of the response. I haven’t

done that yet.

I just received it.

The court issued an Order stating

that the Defendant’s letter to the court

dated October 31, 1990 be considered a

motion to relieve court appointed counsel,

and that the court, having reviewed the

defendant’s motion and the declaration of

counsel Gregory Nicolaysen, filed under

seal, denied the Defendant’s motion

without a hearing and no further

discussion was permitted.

The Government began to try its case

on November 27, 1990. Upon closing their

case, the Defendant’s public defender

Simply stood up and declared that the

defense rested without presenting any

evidence or calling a single witness. As

the district court began to instruct the

jury, the Defendant, obviously ina fit of

frustration and anger over his’ public

defender’s refusal to present any defense

on his behalf, when he was facing life

10

without parole, literally attacked his

attorney in front of the jury.

The jury was excused after having

witnessed the altercation between the

Defendant and his attorney, only to return

twenty-five minutes later observing the

Defendant hand-cuffed and sitting with the

marshalls, while his attorney sat alone at

defense table.

The court allowed defense counsel an

hour and a half to compose himself and

present his closing argument while in

tattered clothes.

When proceedings resumed the

afternoon of November 29, 1990, counsel

announced that they had reached a plea

bargain agreement whereby the Defendant

would plead guilty to count 23 of the

redacted indictment, in return for which

the Government would drop the conspiracy

charge (count 1 of the indictment) as well

as count 15 of the redacted indictment.

11

7

2

The court refused to accept the plea

bargain agreement on the basis that the

trial had concluded and the government’s

case was strong (which is obvious when no

defense was presented).

Consequently, the jury returned a

verdict of guilty on all counts. The

Defendant was ultimately sentenced to life

on Count I and received thirty (30) years

each on Counts 15 and 23.

ARGUMENT FOR GRANTING WRIT

THE COURT OF APPEALS FOR THE

NINTH CIRCUIT HAS SO FAR

DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL

PROCEEDINGS, OR sO FAR

SANCTIONED SUCH A DEPARTURE BY A

LOWER COURT, AS TO CALL FOR AN

EXERCISE OF THE SUPREME COURT’S

POWER OF SUPERVISION.

The Defendant was clearly denied his

right to counsel granted to him under the

Sixth Amendment of the United States

Constitution. The Defendant was an

indigent black person who was facing a

sentence of life in prison. Counsel had

12

been appointed to represent him due to his

indigency and the Defendant’ clearly

extremely concerned about his

representation due to the fact that his

attorney had not come to see him for over

twelve to thirteen months and he sent a

letter to the court requesting the court

to substitute counsel. The court

chastised his public defender and

requested that the public defender do a

better job of communicating with the

Defendant. Defendant’s counsel admitted

not having enough time to handle this case

because he was handling another case.

Upon the court’s direction regarding any

other concerns that he may have the

Defendant again wrote a letter to the

court again prior to trial continuing to

address the same concerns he had addressed

approximately eight weeks ago regarding

his representation. The court refused to

openly address the issues that were

13

troubling the Defendant and permitted the

public defender to respond to the

Defendant’s letter under seal. Both the

United States and the Defendant were not

permitted to witness the response of the

Defendant. He made a decision, the

substance of which could not be reviewed

by anyone and denied the Defendant’s

ultimate Motion. The Defendant’s fears

were obviously confirmed when at trial his

attorney, after the Government closed his

case, his attorney failed to present a

defense and rested without putting on any

witnesses. The Defendant was frustrated

and popped his attorney.

Under the Sixth Amendment to the

Constitution of the United States, a

person accused of a crime has the right to

have assistance of counsel for his or her

defense. The right to counsel means more

however, than the right merely to have

some attorney physically present with the

accused during a criminal proceeding. The

right to counsel is regarded as implying a

right to effective assistance by competent

defense counsel and if counsel’s

performance at a given proceeding does not

meet reasonable professional standards or

if the judge, prosecutor, or others so

interfere with the defense that counsel is

unable to properly defend the accused’s

interests, then the accused may have

grounds for relief of his conviction,

sentence | or other adverse decision

resulting from the proceeding, Evitts v.

Lucey, 469 U.S.387, 821, 105 S.Ct. 830

(1985).

The following factors are considered

when reviewing a denial of a motion to

substitute counsel by an indigent

Defendant: (1) the timeliness of the

defendant’s motion; (2) the adequacy of

the court’s inquiry into the defendant’s

15

CO PRE ae

complaint; and (3) whether the conflict

between the defendant and his attorney was

so great that it resulted in a total lack

of communication preventing an adequate

defense. U.S. v. Rogers, 769 F.2d 1418

1423 (9th Cir. 1985). U.S. v. Walker, 915

F.2d 480, 482 (9th Cir. 1990).

First, in nearly all cases which

address the issue of substitution of

counsel by an indigent Defendant made the

motion literally on the eve of trial.

U.S. v. McClendon, 782 F.2d 785, 789 (9th

Cir. 1986). U.S. v. Williams, 594 F.2d

1258, 1260-61 (9th Cir. 1979).

Secondly, the Court must focus its

inquiry into the nature and extent of the

conflict etveen defendant and counsel and

not just to the competency of counsel.

U.S. v. Walker, 915 F.2d 480 (9th Cir.

1990). In the instant case, at the

hearing on October 4, 1990, the court

merely identified that the Defendant was

OE NG OSL ONE EE Re a ae ly ee ae

OE EGS EH RE aT eG NPL ABA I

we ta a ila a lt ls Ci in i I eT hcg, itl cenit

counsel more than eight weeks _ before

trial, and was directed by the court to

relate any further concerns he had to his

attention. The Defendant attempted to

inform the court again in a second letter

of his concerns regarding his

representation which was addressed by the

Court seven (7) days prior to trial.

Secondly, the Court must focus its

inquiry into the nature and extent of the

conflict between defendant and counsel and

not just to the competency of counsel.

U.S. v. Walker, 915 F.2d 480 (9th Cir.

1990). In the instant case, at a hearing

held on October 4, 1990, the court simply

let the attorney Know that the Defendant

was concerned about his lack of personal

contact with him throughout the previous

thirteen (13) months and that the

Defendant feared that he was not devoting

enough time to his case to be adequately

prepared for trial. The court’s inquiry

did not attempt to determine; however, how

the Defendant’s concerns and his

attorney’s lack of contact might have

already affected the attorney’s ability to

prepare the case. In other words, given

the lack of contact, had any meaningful

attorney/client relationship really been

established? Furthermore, it becane

apparent to the court that the Defendant

and his attorney were fighting about his

attorney stipulating, without his

approval, to the authenticity of certain

tapes to be used at trial. The Court

instructed the attorney to make more time

to see his client in order tc prepare for

trial and to respect his client’s thoughts

about the stipulation.

Apparently, the Defendant ina panic,

sent another letter to the court which

reemphasized his concern about his

representation. The court acknowledged

its receipt and treated the letter as a

motion to substitute counsel. Instead of

inquiring into the matter further in open

court, the court permitted the Defendant’s

public defender to submit a response to be

reviewed by the court under seal, over the

Government’s objection.

No further inquiry was made, no

hearing was held and no discussion took

place ragandine this issue. The court

Simply denied the Defendant’s motion based

upon information that was not put in the

record.

In Slappy v. Morris, 649 F.2d 718

(9th Cir. 1981) the Ninth Circuit Court of

Appeals held because of the importance of

the attorney/client relationship to the

substance of the defendant’s Sixth

Amendment right to counsel, the Sixth

Amendment encompasses the right to have

the trial court accord weight to that

relationship in determining whether to

grant a continuance founded on the

19

® .

en eat nee

temporary unavailability of the

defendant’s attorney. In Slappy the

defendant’s public defender prepared his

case for trial but became ill with

appendicitis and could not appear on his

behalf. Without consulting the defendant,

another public defender took his place one

week before trial. On the day of trial

the defendant complained to the court

about the new attorney’s lack of time to

prepare and insisted the case be continued

until his original attorney could return

to try it. The court overruled his motion

for a iphininos and forced the defendant

to proceed with the attorney who was not

prepared. Throughout the trial the

defendant complained that the case should

be continued because the new attorney was

not adequately prepared and that his right

to counsel was being infringed.

Eventually his new counsel asked to be

removed because he felt he could not

20

< aie iw . Bie ane Wy

na Rage oye es SE wn TG ee ainsi Eee ry e

e

Pubtel, .chatlaga

render effective assistance in the face of

such conflict. After a conference in

chambers, however, he withdrew his motion.

The defendant was eventually convicted.

On appeal, the court held the refusal

under the circumstances, to grant a

continuance, constituted a violation of

the defendant’s Sixth Amendment right to

counsel. On appeal the Ninth Circuit held

the right to counsel includes more than

just the right to representation by

competent counsel at trial. It concluded

that the right would be without substance

if it did not also include a right to a

meaningful attorney/client relationship.

The special nature of the relationship was

explained by the Alaska Supreme Court in

McKinnon v. State, 526 P.2d 18, 22 (Alaska

1974) (footnotes omitted) in pertinent

part as follows:

The attorney/client relationship

involves an intimate process of

consultation and planning which

culminates in a state of trust

21

and confidence between the

client and his attorneys.

Often, the outcome of a criminal

trial may hinge upon the extent

to which the defendant is able

to communicate to his attorney

the most intimate and

embarrassing details of his

personal Jife. Complete candor

in attorney/client consultations

may disclose defenses or

mitigating circumstances’ that

defense counsel would not

otherwise have uncovered. At

the very least, an open exchange

between attorney and client will

often foreclose the possibilit:

of surprise at trial.

"Representation at trial is without

Substance if the defendant does not have

confidence in his attorney’s ability to

represent the defendant’s best interest.

It is unlikely that a criminal defendant

will have a legal education. He

therefore, will have to rely on _ the

attorney’s advice for the most basic

decisions in a criminal trial -- whether

to plead guilty, whether to testify,

whether to present a defense, and which

witnesses to call. If the defendant does

not trust his attorney, he may be

22

unwilling to follow his attorney’s advice

in these most important areas." Slappy,

649 F.2d 718, 720, 721 (1981).

The court in the Defendant’s case did

not inquire inke the extent of damage to

the attorney/client relationship caused by

the attorney’s lack of communication with

his client. The court seemed to assume

that more communication between them would

solve any concerns the defendant might

have. The events that followed clearly

indicate that irreconcilable differences

had developed between the Defendant and

his attorney which resulted in a total

lack of communication between them. The

Defendant, one week before trial and upon

the court’s specific direction, attempted

once again to inform the court regarding

his ongoing concerns about his

representation and relationship with his

attorney. Instead of investigating

further, the court accepted ae sealed

23

ae

statement from defense counsel and without

a hearing overruled the Defendant’s motion

to have new counsel appointed.

At trial, the inadequacy of the

court’s inquiry appeared immediately when,

after thirteen (13) months of alleged

trial preparation, the Defendant’s

attorney presented no defense on his

behalf. Although some may argue such a

tactic to be legitimate trial strategy,

such an explanation is weak in the face of

the attorney’s insistence that he had at

all times been doing his best to prepare

the Defendant’s case and is consistent

with the Defendant’s continuous claim that

his attorney had not been working on his

case.

When the Petitioner attacked his

attorney in front of the jury, it should

have been clear that the mistrust and

animosity the Petitioner felt toward his

attorney was too great to have allowed any

24

meaningful attorney/client relationship to

have ever developed between them. Instead

of attempting to discern whether the

Defendant’s actions were truly a

manifestation of legitimate frustration or

simply a desperate attempt to

intentionally prevent a mistrial, the

court continued on. The court made a snap

judgment, without any further inquiry,

that the Defendant’s actions were merely

an intentional ploy to derail the trial.

In addition, he further prejudiced the

Defendant by demanding that the trial

continue, forcing the Defendant’s attorney

to give a closing argument in torn

clothing, and by making the defendant sit

in handcuffs with the bailiffs in clear

view of the jury while his attorney sat

alone at counsel table.

The Defendant felt more than mere

frustration because obviously no

attorney/client relationship ever existed.

BR sestnilaeia ce |.

LT RE SATE vier ea ee

LAS ere tee

NE WORE Ue genet)

i li

s

Ta aco Sasa aa css atic ae ca sa8

we

at

pth a LA e

i Le |

™ as ¥

is a * ee ce

in Sa beast

|

i

+4

:

He was facing a life sentence. He had

extremely serious concerns’ about his

representation which were swept under the

rug as if they were of little consequence.

And then, his attorney put on no proof on

his behalf. He simply stood up and

rested.

Clearly, the court’s inquiry into the

extent of conflict between the Defendant

and his attorney had been deficient. The

defense attorney’s lack of pretrial

communication with his client, his failure

to present a defense on behalf of his

client as well as the Defendant’s behavior

at trial clearly indicated that

irreconcilable differences had developed

between them resulting in a total lack of

communication, and that no meaningful

attorney/client relationship had ever been

established.

This Court should grant Certiorari

because the Court of Appeals for the Ninth

26

on Votes <2 path a> aos pala

ro ere. aS ahs)

ie We Pe ee es | Be me

SC ea “8

4 ee RM aaa

Circuit has so far sanctioned the lower

court’s departure from the accepted and

usual course of judicial proceedings as it

relates to the trial court’s sealing and

withholding of evidence critical to the

determination of the Defendant’s right to

counsel guaranteed to him under the United

States Constitution, as to call for an

exercise of the Supreme Court’s power of

supervision.

CONCLUSION

For the foregoing reasons, Counsel

for the Petitioner respectfully urges that

this Petition be granted.

Respectfully submitted,

DENNISON & ASSOCIATES

4

DEANNA L. DENNISON

Attorney for Petitioner

524 Greenup Street

Covington, Kentucky 41011

(606) 491-3700

ri

WM nts RO Fe TN MIE We SUP HES tee

Re oe Sees De Pep ek = aor eT ae

CERTIFICATE OF SERVICE

I hereby certify that I have this

Lo day of March, 1993 mailed a copy of

the foregoing Petition for Writ of

Certiorari by first class postage prepaid

to the Solicitor General of the United

States, Department of Justice, Washington,

D.C. 20530; Cathy A. Catterson, Clerk of

the United States Court of Appeals for the

Ninth Circuit, Two Rincon Center, 121

Spear Street, San Francisco, California

94105, and three copies to the Assistant

United States Attorney, John S. Gordon and

Assistant United States Attorney, Lisa B.

Lench, 1400 United States Courthouse, 312

North Spring Street, Los Angeles,

California 90012. .

7

( oe?

/ / ‘oe

( Na,

- DEANNA L. DENNISON