Petition for Writ of Certiorari — Fowlie v. United States

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» \ Supreme Court, U.S.

\/ FILED

01 588 SEP 24 2001

No. 00- OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2000

DANIEL JAMES FOWLIE,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WILLIAM J. GENEGO*

Nasatir, Hirsch, Podberesky &

Genego

2115 Main Street

Santa Monica, California 90405

(310) 399-3259

Counsel for Petitioner :

DANIEL JAMES FOWLIE

* Counsel of Record

QUESTIONS PRESENTED

1. Did the Court of Appeals err in requiring

petitioner prove his counsel’s actual conflict had an

adverse effect on his performance in order to establish a

Sixth Amendment violation, where the trial judge failed to

inquire into the conflict, and either knew or reasonably

should have known of the conflict?

2. Did the Court of Appeals err in ruling that

because petitioner’s counsel vigorously challenged the

government’s evidence of guilt, his failure to offer

evidence which assumed petitioner’s innocence was not an

adverse effect of his actual conflict?

is.

PARTIES TO THE PROCEEDINGS

Petitioner Daniel James Fowlie was the petitioner

in the district court and appellant in the Court of Appeals

for the Ninth Circuit. Before the district court, the

respondent was the United States of America. The Court

of Appeals for the Ninth Circuit identified the appellee as

being the United States of America, and it is the only

respondent in this Court.

-ili-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. i

PARTIES TO THE PROCEEDINGS ......... ii

i rere ee vil

ORDERS OF THE DISTRICT AND

CIRCUIT COURT ............ Se ere re 1

EE ee 1

CONSTITUTIONAL, STATUTORY, AND

OTHER PROVISIONS INVOLVED ........ H

PRELIMINARY STATEMENT .............. 2

STATEMENT OF THE CASE ............... 4

A. _ Initial Proceedings In The District

ee ere eee 4

B Ee ee 8

C. Collateral Proceedings .......... 8

SUMMARY OF REASONS FOR

GRANTING THE WRIT ................. 10

ive

REASONS FOR GRANTING THE WRIT .... 11

I. The Court of Appeals Erred in Requiring

Petitioner Demonstrate His Counsel’s

Actual Conflict Of Interest Had an

Adverse Effect On His Performance in

Order to Establish a Sixth Amendment

Violation, Given that the Judge Failed

to Inquire Into the Conflict Which She

Knew or Reasonably Should Have

Se iota dk ke ecddate cee 11

A. The Sixth Amendment Right to

Conflict-Free Counsel ........... 11

B. A Trial Judge Has a Duty to

Inquire into a Conflict about

Which She Knows or Reasonably

GE I 5 ks Sev cardccasns 11

G. A Petitioner Is Entitled to Relief

Without the Need to Demonstrate

an Actual Conflict Adversely

Affected His Lawyer’s

Performance, If A Judge Fails

to Inquire into an Actual Conflict

about Which She Knows or

Reasonably Should Know ........ 12

D. Petitioner’s Counsel Was

Burdened by an Actual Conflict ... 16

IT.

-V-

E. The Judge Knew or Reasonably

Should Have Known of the

Actual Conflict and Failed to

Inquire Into the Conflict ......... 18

The Court of Appeals Erred in Ruling

That Counsel’s Vigorous Challenge to the

Government’s Evidence of Guilt,

Demonstrated His Failure to Offer

Evidence to Prove Affirmatively

Petitioner’s Innocence Was Not an

Adverse Effect of the Actual Conflict .... 19

A. An actual conflict adversely

affects a lawyer’s performance,

where a lawyer is confronted

with a strategic decision that

will impact his self-interest and

the interest of his client

differently, and he chooses the

course of action that favors his

I as ic Mi i cans ks, 19

B. Counsel’s failure to offer available

evidence to prove affirmatively

petitioner was not guilty

constituted an adverse effect of

the actual conflict ............... 22

-Vi-

C. Petitioner’s showing that

counsel’s failure to offer evidence ~~

of innocence was an adverse

effect of his actual conflict is

not rebutted by counsel’s

defense of petitioner through

cross-examination and argument .. 27

CONCLUSION oc ccccicccesccsscveseseseas 29

INDEX TO APPENDIX

APPENDIX A

Order of United States Court of Appeals |

for the Ninth Circuit Denying Appellant |

Daniel James Fowlie’s Petition For

Rehearing. Filed June 26, 2001 ........ A-1

APPENDIX B

Memorandum of United States Court

of Appeals for the Ninth Circuit

Affirming District Court’s Denial of

Appellant Daniel James Fowlie’s

Habeas Petition De Novo. Filed

Phen D, SOD si vain sid idadkkassawa ces B-2

APPENDIX C

Order Denying Motion Under 28 U.S.C.

§ 2255 To Vacate, Set Aside, Or Correct

Sentence By A Person In Federal

Custody. Filed October 15, 1997 ....... C-6

TABLE OF AUTHORITIES

Page

Brian v. United States,

GOS F.26 BO C0" Cie, 196D) no. cn cccccceces 15

Ciak v. United States,

ik ee cree 15

Cuyler v. Sullivan,

Ses ENED < oe bincdncaieccesa passim

Géasser v. United States,

Pe 0.0 60.0008 06 vennenesds 20, 21

Holloway v. Arkansas,

GE Ws SIS CIGID 6 cc cccccacsccecses passim

Mickens v. Taylor,

240 F.3d 348 (4 Cir.),

cert. granted, 121 S. Ct. 1651 (2001) .... 10, 15, 16

Nex v. Whiteside,

ea ee EE sos chav eisdeanes ke 16, 17

Strickland v. Washington,

GED Us GE CI oc ccccccnsscscsscccss 22

United States v. Burney,

756 F.2d 787 (10™ Cir. 1985) .............. 15

“Vili-

United States v. Cirrincione,

pop Sig re 15

United States v. Crespo del Llano,

830 F.2d 1532 (9™ Cir. 1987) .............. 15

United States v. Fowke,

24 F.3d 1070 (9™ Cir. 1994),

cert. denied, 513 U.S. 1086 (1995) ............-. 8

United States v. Stites,

56 F.3d 1020 (9 Cir. 1995),

cert. denied, 516 U.S. 1138 (1996) .......... 2, 16

STATUTES AND RULES

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28 United States Code

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ORDERS OF THE DISTRICT AND

CIRCUIT COURT

The June 26, 2001 order of the Court of Appeals

for the Ninth Circuit denying petitioner’s petition for

rehearing is unreported. A copy of the order is Appendix

A. The March 9, 1999 Memorandum of the Court of

Appeals affirming the district court’s denial of petitioner’s

motion pursuant to 28 U.S.C. § 2255 to vacate his

conviction is unreported. A copy of the Memorandum is

Appendix B. The district court’s order denying

petitioner’s § 2255 motion is unreported. A copy of the

order is Appendix C.

JURISDICTION

Petitioner invoked the jurisdiction of the district

court by filing a motion pursuant to 28 U.S.C. § 2255.

Petitioner appealed and invoked the jurisdiction of the

court of appeals pursuant to 28 U.S.C. §§ 1291 & 2253.

The jurisdiction of this Court to review the order

of the Ninth Circuit is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND

OTHER PROVISIONS INVOLVED

Amendment VI, U.S. Constitution

“In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for

his defence.”

wis

PRELIMINARY STATEMENT

Petitioner Daniel James Fowlie was represented at

trial by a lawyer who had previously represented his son in

a related case before the same judge who presided at

petitioner’s trial. | Unbeknownst to petitioner, in

representing petitioner’s son, the lawyer told the judge

petitioner was indisputably guilty, that it would be foolish

to contend otherwise, and that petitioner was also

responsible for his son’s criminal activity.

The position advanced by the attorney in

representing petitioner’s son necessarily circumscribed his

representation of petitioner. Having openly adopted the

position that petitioner was guilty, the attorney “could not

swallow [his] words and present [petitioner] as an innocent

man.” United States v. Stites, 56 F.3d 1020, 1025 (9th Cir.

1995) cert. denied 516 U.S. 1138 (1996). Moreover, the

attorney was ethically restrained from offering evidence

which assumed petitioner’s innocence because, based on

his earlier public statements to the trial judge, the attorney

would know, or have reason to believe, that such evidence

was false. By aiding in its presentation, the attorney would

violate “defense counsel’s obligation to avoid assisting in

the presentation of what counsel ha[s] reason to believe

[is] false testimony.” Holloway v. Arkansas, 435 U.S. 475,

480, n.4 (1978)

The attorney’s defense of petitioner at trial was

limited to challenging the government’s evidence and

arguing it failed to prove petitioner’s guilt. The attorney

refrained from offering available evidence to prove

affirmatively petitioner was not guilty, including evidence

that provided an innocent explanation for otherwise

incriminating conduct. Petitioner was convicted and

sentenced to thirty years. His conviction and sentences

were affirmed on appeal.

After learning post-appeal of the above facts

regarding his lawyer’s representation of his son, petitioner

filed a motion to vacate his conviction, on grounds that he

had been denied his Sixth Amendment right to conflict-

free counsel. The district court ruled petitioner had failed

to establish an actual conflict and alternatively failed to

demonstrate an adverse effect, and denied relief without an

evidentiary hearing.

On appeal, the Ninth Circuit acknowledged the

lawyer’s self-interest created an actual conflict, and that

petitioner had not been advised of or waived the conflict.

The court, however, ruled petitioner was not entitled to

relief because the lawyer’s vigorous defense of petitioner

demonstrated the actual conflict did not adversely affect

counsel’s performance.

This ruling conflicts with this Court’s precedent

and the principles it has established to govern conflict

claims. Under this Court’s precedent, petitioner was

entitled to relief without the need to demonstrate the

actual conflict had an adverse effect, because the trial judge

failed to inquire into the conflict, about which she knew or

reasonably should have known.

sis

The court of appeals also erred in ruling that

counsel’s vigorous defense of petitioner through cross-

examination and argument demonstrated his actual

conflict did not adversely affect his performance. This

Court has recognized that the adverse effect of a conflict

often is what counsel refrains from doing. The adverse

effect of the conflict was that counsel refrained from

defense efforts that conflicted with his self-interest, i.e.,

offering available evidence which required him to assume

petitioner’s innocence. That showing of adverse effect

cannot be rebutted by counsel’s defense efforts at cross-

examination and argument, because those efforts were

consistent with his self-interest.

STATEMENT OF THE CASE

A. Initial Proceedings In The District Court

On November 30, 1988, a Central District of

California grand jury returned a superseding indictment

charging petitioner Daniel James Fowlie with marijuana

related offenses, including engaging in a continuing

criminal enterprise (“CCE”) (21 U.S.C. § 848).

" The indictment also charged petitioner with conspiracy

to possess marijuana with intent to distribute (21 U.S.C.

§ 846); seventeen counts of possession and distribution of

marijuana (21 U.S.C. § 841(a)(1)); conspiracy to defraud

the United States by impeding the IRS (18 U.S.C. § 371);

and five counts of failing to report currency transportation

In June, 1989, the grand jury returned a related

twenty-five count indictment charging petitioner’s two

sons, Gus Fowlie and Dan Fowlie, Jr., and other

defendants, with conspiracy to possess with intent to

distribute marijuana and related charges. Petitioner was

named as an unindicted coconspirator. According to the

government, "although father and son were charged in

separate indictments, the acts underlying the conspiracies

alleged in the two cases are substantially identical." App C

-16-18.

Attorney James D. Riddet represented petitioner’s

son Gus Fowlie. Riddet negotiated an agreement for Gus

Fowlie to plead guilty to one count of conspiracy to

Possess marijuana with intent to distribute. App C -17.

As a condition of the plea Gus Fowlie made a written

Statement incriminating petitioner, stating he had

"assist[ed] in the transportation, storage, packing and

distribution of marijuana at the direction of Daniel James

Fowlie and others." App C -17.

At sentencing, Riddet minimized Gus Fowlie's

offense by assigning responsibility for his involvement in

the marijuana conspiracy to petitioner. Riddet told the

judge, "It would be foolish, to dispute the fact that Mr.

Fowlie senior [petitioner] was running an extremely large

marijuana Organization. And what concerns me is (sic)

counsel for Gus Fowlie is that that might rub over onto

Gus Fowlie who was indeed a minimal participant, nothing

(31 U.S.C. §§ 5316, 5322(a),(b)).

more than unfortunately the son of Dan Fowlie senior."

App C -17. Riddet made further statements to the judge

that assumed and asserted petitioner’s guilt. Id.

The judge expressed her agreement, stating

petitioner had "snar[ed] both" Gus Fowlie and his brother

into the marijuana operation and sentencing Gus Fowlie

to 24 months imprisonment. App C -17-18.

In June, 1990, nine months after Gus Fowlie’s

sentencing on September 25, 1989, petitioner appeared

before the court, having been extradited from Mexico.

Initially petitioner was represented by appointed counsel

and subsequently retained private counsel, San Diego

attorney Michael Pancer, and Pancer selected Riddet as

local counsel. App C 18-19.

Riddet sought to file a substitution of attorney

authorizing he and Pancer to replace petitioner’s appointed

counsel. The judge refused the substitution, stating “[ijt

seems to me I should rightly be concerned also about the

possibility of a conflict here,” explaining that “I can only

say that I’m left with the impression that the Fowlie

juniors had strongly suggested, if not through counsel,

through some of the filings with the court, that it was Dan

Fowlie who is responsible for everyone’s misconduct in

this case.” Reporter’s Transcript (“RT”) 11/19/90 p. 142-

43.

On November 21, 1990, petitioner’s appointed

attorneys filed a motion requesting Pancer and Riddet be

allowed to replace them. App C -18-19. App,C-19. The

x -

government's opposition said Riddet had a conflict, and

expressed "serious reservations as to whether it is possible

for [petitioner] to fully and effectively waive the conflicts."

App C-19.

On November 26, 1990, the judge denied the

proposed substitution of Pancer because he had

represented a prospective government witness. App C-19.

The judge also stated she was "not satisfied that there is

not a problem here [with attorney Riddet]," and declined

to permit his substitution. RT 11/26/90, p. 39.

On December 4, 1990, Riddet filed a motion with

petitioner’s appointed counsel to continue the trial date

and to allow him to substitute into the case. App C-20.

At a hearing on December 10, the judge again expressed

reservations about Riddet’s representation of petitioner,

stating she would allow Riddet to argue the pretrial

motions set for hearing that day “{sJolely under these

circumstances perhaps as lacking any other status amicus

at this time.” RT 12/10/90, p. 10. Near the conclusion of

the hearing, after it became apparent the trial would be

continued, the judge granted the motion to substitute,

even though it had not been argued or even discussed.

App C-19.

The court issued a minute order stating that no

conflict of interest existed in Riddet’s representation of

petitioner. App C-19-20 ("Court hears further from all

counsel re defendant's motion to continue and substitute

counsel, finds no conflict exists re Attorney Riddet . . . .").

Trial began on March 5, 1991. Twenty counts of

the indictment went to the jury, and guilty verdicts

returned as to fifteen, including the CCE charge.

Petitioner was sentenced in June, 1991 to 30 years on the

CCE count and concurrent sentences on the remaining

counts totaling 25 years, and a $1 million fine.

B. Direct Appeal

Petitioner’s conspiracy conviction was vacated on

direct appeal, and all other convictions were affirmed in

two separate opinions. United States v. Fowke, 24 F.3d 1059

and 24 F.3d 1070 (9th Cir. 1994), cert. denied, 513 U.S. 1086

(1995).

C. Collateral Proceedings

On October 2, 1995, petitioner filed a motion

pursuant to 28 U.S.C. section 2255 to vacate his conviction

and sentence. CR 312, 313. The motion contained a

double jeopardy claim and a conflict of interest claim.’

The conflict claim was supported by declarations from

petitioner and two experts, Professor Geoffrey Hazard and

2 The motion also alleged attorney Riddet had an actual

conflict based on his representation of Gus Fowlie, and a

third actual conflict based on his representation of Wade

Westmoreland, the manager of petitioner’s ranch, in a

related state prosecution and in proceedings before the

grand jury that indicted petitioner. Review is sought only

as to the self-interest conflict.

Professor Dennis Curtis. CR 314.

Tke government filed its opposition on July 8,

1996. No declaration or statement from Riddet disputing

petitioner’s allegations was submitted in support of the

opposition. CR 332.

The district court filed denied the motion in a

written order. App C. The district court said that

petitioner’s arguments that his lawyer had an actual

conflict were “pure speculation,” and ruled alternatively

that petitioner had failed to demonstrate an adverse effect

of the claimed actual conflict. App C-10-11. Petitioner

timely appealed on October 30, 1997. CR 347.

On appeal, the Ninth Circuit acknowledged the

lawyer’s self-interest created an actual conflict, and that the

record did not reflect petitioner had been advised of the

conflict. App B-4-5. The court, however, said petitioner

was required to further demonstrate that the conflict

adversely affected counsel’s performance, and ruled that

defense counsel’s vigorous defense of petitioner

throughout cross-examination and argument demonstrated

the actual conflict did not adversely affect his

performance. App B-5.

_ o

SUMMARY OF REASONS

FOR GRANTING TH 2 WRIT

Review should be granted because the ruling of the

Court of Appeals for the Ninth Circuit presents the same

question as to which the Court has granted certiorari in

Mickens v. Taylor, 240 F.3d 348, 358-59 (4 Cir.)(en banc),

certiorari granted, 121 S. Ct. 1651 (2001) - “Did the Court of

Appeals err in holding that a defendant must show an

actual conflict of interest and an adverse effect in order to

establish a Sixth Amendment violation where a trial court

fails to inquire into a potential conflict of interest about

which it reasonably should have known?”.

«94.

REASONS FOR GRANTING THE WRIT

The Court of Appeals Erred in Requiring Petitioner

Demonstrate His Counsel’s Actual Conflict Of

Interest Had an Adverse Effect On His

Performance in Order to Establish a Sixth

Amendment Violation, Given that the Judge

Failed to Inquire Into the Conflict Which She

Knew or Reasonably Should Have Known Existed

A. The Sixth Amendment Right to Conflict-Free

Counsel

The right to counsel guaranteed by the Sixth

Amendment encompasses the right to be represented by

counsel whose duty of loyalty is free of conflicting

interests. Wood v. Georgia, 450 U.S. 261, 271 (1981), ating,

Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980); Holloway v.

Arkansas, 435 U.S. 475, 483, 0.5 (1978) (constitutional

right to “the assistance of an attorney unhindered by a

conflict of interests.”)

B. ATrial Judge Has a Duty to Inquire into a

Conflict about Which She Knows or

Reasonably Should Know.

This Court has established limited circumstances in

which a trial court has a duty to inquire about a potential

conflict. Where a defendant or counsel raises an objection

to representation on conflict of interest grounds, a court

has a duty of inquiry. Holloway, 435 U.S. at 483-484

(defendants’ convictions reversed due to the trial court’s

failure, after repeated objections by defense counsel, to

inquire into the risk of joint representation or appoint

separate counsel). Even in the absence of an objection, a

trial judge has an affirmative duty to inquire into a conflict

if the judge “knows or reasonably should know that a

particular conflict exists.” Sudkvan, 446 US. at 347; Wood,

450 U.S. at 273, n.18.

C. A Petitioner Is Entitled to Relief Without the ©

Need to Demonstrate an Actual Conflict

Adversely Affected His Lawyer’s

Performance, If a Judge Fails to Inquire into

a Conflict about Which She Knows or

Reasonably Should Know.

As a general rule, to establish a denial of the right

to conflict-free counsel, a petitioner who did not object at

trial must “demonstrate that an actual conflict of interest

adversely affected his lawyer’s seagrass ” Sullivan, 446

US. at 348.

A different rule applies where a trial court fails to

fulfill its duty of inquiry. Where a trial court knows or

reasonably should know that a conflict exists, and fails to

inquire into the conflict, a petitioner need only

demonstrate that an actual conflict existed to be entitled to

relief. A petitioner is not required to additionally establish

the conflict “adversely affected” the lawyer’s performance.

Wood, 450 U.S. at 273, n.18 (“Moreover, Su/kvan mandates

a reversal when the trial court has failed to make an inquiry

even though it ‘knows or reasonably should know that a

particular conflict exists.””), quoting, Sullivan, 446 U.S. at 347

(emphasis in original).

The rule established by Su/Avan, and recognized by

the Court in Wood, which dispenses with the need for a

petitioner to demonstrate “adverse effect,” finds its origin

in the Court’s earlier decision in Holloway, supra. Defense

counsel in Ho/loway repeatedly objected to being required

to represent three codefendants at the same trial. The trial

court did not take any action in response to the objections,

other than to deny them. Id. 435 U.S. at 478-481.

The Court ordered the defendants’ convictions

reversed. Id., 435 U.S. at 484. The Court did not examine

whether the lawyer’s performance was adversely affected

by an actual conflict, nor did it even determine whether an

actual conflict existed. Instead, the Court ruled relief was

warranted due to the trial court’s failure to inquire into the

risks that multiple representation presented, or to appoint

separate counsel. Ibid. Thus, Ho/loway established that

where a trial court is made aware of a possible conflict of

interest by a defense objection, and fails to inquire into the

conflict, a defendant is entitled to relief based on the

court’s failure to fulfill its duty to inquire.

The Court expanded the scope of the duty of

inquiry rule established by Ho/loway in Sulkvan. According

to Sudkvan, a trial court has a duty to inquire if it “knows or

reasonably should know that a particular conflict exists.”

Sullivan, 446 U.S. at 347.

-14-

The Holloway-Sulivan duty of inquiry rule was

applied by the Court in Wood v. Georgia, supra. The

petitioners in Wood challenged the revocation of their

probation on equal protection grounds, alleging that the

revocation of their probation for failure to pay a fine

discriminated against them on the basis of wealth in

violation of the Equal Protection Clause of the Fourteenth

Amendment. Wood, 450 U.S. at 262. The Court granted

review to address that question, but then declined to do so

because it realized the record suggested “that petitioners

may be in their present predicament because of the divided.

loyalties of their counsel...” Id. 450 U.S. at 262-263.

The Court observed that the same lawyer had represented

all three petitioners throughout the proceedings, and that

the lawyer’s fee in all three instances was paid by

petitioners’ employer, the owner of the adult book store

where petitioners committed the crimes. Id. 450 U.S. at

265-267.

The Court determined that the existence of a

conflict was sufficiently apparent from the record so as to

impose upon the state court a duty of inquiry under

Sullivan. After determining the trial court had a duty of

inquiry, and that it had failed to fulfill that duty, the Court

otdered a remand “to determine whether the conflict of

interest that this record strongly suggests actually existed,”

and directed a new hearing be granted if “an actual conflict

of interest existed at that time.” Wood, 450 U.S. at 274.

The Court did not condition the right to relief upon a

showing that counsel’s performance was adversely affected

by an actual conflict, but only upon a showing that an

actual conflict existed.

«ti.

Further support for the conclusion that where a

court has failed to fulfill its duty of inquiry under Sudévan,

a defendant need only establish that an actual conflict

existed to be entitled to relief, is provided by the Court’s

statement in footnote 18: “Moreover, Su/kvan mandates a

reversal when the trial court has failed to make an inquiry

even though it ‘knows or reasonably should know that a

particular conflict exists.”” Wood, 450 U.S. at 273, n.18,

quoting, Sullivan, 446 U.S. at 347 (emphasis in original).

The right to relief established by Su/:van where a

court fails to fulfill its duty of inquiry, and an actual

conflict is demonstrated to exist, has been applied or

acknowledged by four circuits. See Ciak v. United States, 59

F.3d 296, 302 (2d Cir. 1995); United States v. Crespo de Llano,

830 F.2d 1532, 1538 (Oth Cir. 1987); United States v.

Cirrincione, 780 F.2d 620, 625 (7" Cir. 1985); United States v.

Burney, 756 F.2d 787, 791 (10th Cir. 1985).

The First and Fourth Circuits, on the other hand,

disagree that Su/kvan or Wood establish such a rule.

According to those circuits, even where a court has failed

to fulfill its duty of inquiry, a defendant must demonstrate

not only that an actual conflict existed, but that the actual

conflict adversely affected counsel’s performance. See

Mickens v. Taylor, 240 F.3d 348, 358-59 (4 Cir. 2001)(en

banc), certiorart granted, 121 S. Ct. 1651 (2001); Brian ».

United States, 695 F.2d 10, 15, n.10 (1 Cir. 1982).

The question of whether a petitioner must establish

an actual conflict of interest existed, and demonstrate that

it adversely affected his lawyer’s performance in order to

obtain relief where a trial court fails to fulfill its duty of

inquiry, is presently before this Court pursuant to the grant

of certiorari in the Fourth Circuit’s decision in Mickens »v.

Taylor, 121 S. Ct. 1651 (2001).

D. _‘ Petitioner’s Counsel Was Burdened by an

Actual Conflict

This Court has stated that “attorneys are officers of

the court, and when they address the judge solemnly upon

a matter before the court, their declarations are virtually

made under oath.” Holloway, 435 U.S. at 486 (internal

quotations & citation omitted) Having represented to the

trial judge that petitioner was guilty, attorney Riddet

“could not swallow [his] words and present [petitioner] as

an innocent man.” Sa##es, 56 F.3d at 1025. As the Court

of Appeals explained in Sizes, “nothing in our professional

ethics permits an advocate to tell a court one set of facts

today and a contradictory set of facts tomorrow.” Id. at

1026.

Petitioner’s counsel was ethically restrained from

offering evidence which required him to assume

petitioner’s innocence. -Under well established ethical

provisions, an attorney may not present facts to a court

which he or she believes are false, and is prohibited from

taking any steps or in any assisting a client in presenting

false evidence. Nix v. Whiteside, 475 U.S. at 166, 167-169,

106 S. Ct. at 994, 995; see, ¢g. California Rules of

Professional Conduct, Rule 5-200(B); A.B.A. Model

Rules, Rule 3.33. As this Court noted in Holloway, defense

counsel has an “obligation to avoid assisting in the

presentation of what counsel had reason to believe was

false testimony.” Holloway, 435 U.S. at 480, n.4. That

ethical restriction meant petitioner’s attorney was not free

to present affirmative evidence which required him to

assume petitioner’s innocence, because, based on the

attorney's earlier public statements of petitioner’s

indisputable guilt, he would have to know, or have reason

to believe, such evidence was false. Nex v. Whiteside, 475

U.S. at 166. While the attorney could challenge the

government's evidence and argue it failed to prove

petitioner’s guilt, the attorney was not free to affirmatively

offer defense evidénce which assumed petitioner’s

innocence without violating the ethical rules that governed

his conduct.

A conflict thus resulted, because the attorney’s self-

interest dictated that he limit his defense of petitioner to

challenging the government’s evidence in order to avoid

the appearance of presenting evidence he knew or believed

was false, and that self-interest conflicted with petitioner’s

interest, which dictated that decisions about his defense be

made according to whether they would aid in achieving his

acquittal. Indeed, the Court of Appeals acknowledged that

petitioner’s counsel had an actual conflict as a result of

having represented to the trial judge, that petitioner was

guilty and was also responsible for his sons’ criminal

activity. App B-4-5.

E. The Judge Knew or Reasonably Should Have

Known of the Actual Conflict and Failed to

Inquire Into the Conflict

The facts giving rise to counsel’s actual conflict

were statements he made to petitioner’s trial judge that

petitioner was guilty. The judge openly expressed her

agreement with counsel’s position, stating that petitioner

was responsible for involving his sons in criminal activity.

App C 18. Based on these circumstances, the trial judge

reasonably should have known of the conflict.

That is especially true here, because the record

confirms the judge was cognizant of the conflict. When

the judge first refused Riddet’s proposed substitution, she

stated “fi]t seems to me I should rightly be concerned also

about the possibility of a conflict here,” and went on to

explain, “I can only say that I’m left with the impression

that the Fowlie juniors had strongly suggested, if not

through counsel, through some of the filings with the

court, that it was Dan Fowlie who is responsible for

everyone’s misconduct in this case.” RT 11/19/90 p. 142-

43.

Despite having expressed these concerns about the

conflict, the judge inexplicably allowed Riddet’s

substitution on December 10, 1990. App C-19. The judge

never conducted an inquiry into Riddet’s self-interest

conflict before or after permitting his substitution. In fact,

the minute authorizing the substitution ruled there was no

conflict. App C-19-20.

-19-

Thus, under the rule established by Sw/ivan, and

acknowledged by Wood, petitioner is entitled to relief - - he

has demonstrated his lawyer was burdened by an actual

conflict of interest, the record establishes the trial judge

knew or reasonably should have known of the conflict,

and the judge failed to inquire into the conflict.

II.

The Court of Appeals Erred in Ruling That

Counsel’s Defense of Petitioner Through

Cross-Examination and Argument Demonstrated

His Failure to Offer Favorable Evidence of

Petitioner’s Innocence Was Not an Adverse Effect

of the Actual Conflict

A. An actual conflict adversely affects a lawyer’s

performance, where a lawyer is confronted

with a strategic decision that will impact his

self-interest and the interest of his client

differently, and he chooses the course of

action that favors his own interest.

The requirement that a petitioner demonstrate “an

actual conflict adversely affected his lawyer’s performance”

in order to establish a Sixth Amendment violation, was

first established by the Court’s opinion in Swisvan. Id., 446

U.S. at 348. The Court contrasted the standard to its

holding: “We hold that the possibility of a conflict is

insufficient to impugn a criminal conviction. In order to

demonstrate a violation of his Sixth Amendment rights, a

defendant must establish that an actual conflict adversely

his lawyer’s performance.” Id., 446 U.S. 350. The Sudivan

Court used Géasser v. United States, 315 U.S. 60 (1942), as an

example of a case that would meet this standard. Sudkvan,

446 US. at 348-349.

In Géasser, two defendants, Glasser and Kretske,

had initially been represented by separate counsel. During

the course of the trial, Kretske dismissed his lawyer and

the trial judge then appointed Glasser’s lawyer, Stewart, to

represent Kretske as_ well. Stewart objected,

unsuccessfully, on grounds that his representation of both

Glasser and Kretske might lead the jury to link the two

defendants together, and thus created a possible conflict of

interest. After becoming counsel for both Glasser and |

Kretske, Stewart failed to cross-examine a government

witness who linked Glasser to the conspiracy and failed to

object to the admission of arguably inadmissible evidence.

Glasser, 315 U.S. at 72-75. The Court viewed those failures

to be the result of Stewart’s desire to protect Kretske’s

interests by diminishing the jury’s perception of his guilt,

and as “indicative of Stewart’s struggle to serve two

masters... .” Glasser, 315 US. at 75.

In explaining G/asser, the Court in Su/dvan stated

that, “[s]ince this actual conflict impaired Glasser’s

defense, the Court reversed his convictions.” Sudkvan, 446

U.S. at 349. The Court in Su/évan also noted that “[o]nce

the Court concluded that Glasser’s lawyer had an actual

conflict of interest, it refused ‘to indulge in nice

calculations as to the amount of prejudice’ attributable to

the conflict. The conflict itself demonstrated a denial of

it.

the ‘right to have the effective assistance of counsel.”

Sullivan, 446 US. at 349, quoting, Glasser, 315 U.S. at 76.

The Sudkvan Court’s discussion of Glasser as an

example of a case in which an “actual conflict adversely

affected counsel’s performance,” makes three points about

the meaning and application of that standard.

First, an actual conflict exists where counsel is faced

with a strategic decision which will impact the interests he

represents differently. Thus, for example, an actual

conflict existed in G/asser because Stewart was faced with

deciding whether to cross-examine the witness who linked

Glasser to the conspiracy, and the decision he made would

impact the interests of Glasser and Kretse differently.

Second, counsel’s actual conflict adversely affects

his performance with respect to the client whose interest

is disserved by the strategic decision. Again this point is

illustrated by Géasser. Stewart’s failure to cross-examine the

government witness served Kretske’s interests, but

disserved Glasser’s interests, and the Court ruled that the

conflict resulted in a violation of Glasser’s Sixth

Amendment rights, but not Kretske’s. Gia«er, 315 U.S. at

76. The Court has emphasized on other occasions that the

harmful effect of a conflict lies in what a lawyer fails to do.

“Joint representation of conflicting interests is suspect

because of what it tends to prevent the attorney from

doing.” Holloway, 435 U.S. at 489-490.

Third, if an actual conflict adversely affected

counsel’s performance, prejudice is presumed and a Sixth

Amendment violation established. Sud/ivan, 446 U.S. at 349

(“The conflict itself demonstrated a denial of the ‘right to

have the effective assistance of counsel.””), quoting, Glasser,

315 U.S. at 76. This point was also made explicit in

Strickland v. Washington, 466 U.S. 668, 692

(1984)(“Prejudice is presumed only if the defendant

demonstrates that counsel ‘actively represented conflicting

interests,’ and that ‘an actual conflict adversely affected his

lawyer’s performance.””), quoting, Sullivan, 446 U.S. at 350,

348.

B. Counsel’s failure to offer available evidence

to prove affirmatively petitioner was not

guilty constituted an adverse effect of the

actual conflict.

The conflicting interests in this case were Riddet’s

self-interest, which dictated that he limit his defense of

petitioner to challenging the government’s evidence of

guilt, and refrain from offering evidence which assumed

petitioner’s innocence, and the interest of petitioner, which

dictated that decisions about defense strategy and defense

evidence be made according to whether they would aid

petitioner in achieving an acquittal.

Petitioner demonstrated this actual conflict

adversely affected his lawyer’s performance by identifying

available evidence that would have aided petitioner’s

defense, but harmed counsel’s self-interest. That evidence

included the following:

—.

1. Evidence that the instrumentalities of

marijuana smuggling found at petitioner’s

ranch were the property of the ranch

manager Westmoreland, and not petitioner.

Police searched petitioner’s ranch on March 1,

1985, and seized instrumentalities of marijuana smuggling.

The prosecution offered these items at trial as the property

of petitioner and thus evidence of his guilt.°

Evidence was available to petitioner’s counsel that

was relevant to prove the incriminating items were the

property of the manager of the ranch, Wade

Westmoreland, and not petitioner. The day before

petitioner’s ranch was searched, Westmoreland’s

apartment was searched and police seized a large quantity

of marijuana, $73,000 cash, loaded and unloaded firearms,

and ledgers reflecting large scale sale of controlled

substances. As noted above, Westmoreland was the

manager of the ranch, and when arrested, Westmoreland

had keys to the ranch on his personal key chain. App C-15.

Police used Westmoreland’s connection to the ranch, to

obtain a warrant to search the ranch the very next day.

App C-15. Westmoreland later filed a motion to suppress

the items seized at petitioner’s ranch and submitted a

signed declaration demonstrating he had standing to assert

* Among the items were an Uzi firearm with a flash

suppressor, bullet proof vests, money counter, counterfeit

bill detector and other incriminating items of drug

paraphernalia.

- 24-

a Fourth Amendment interest as to a search of the

property. Petitioner’s counsel could have used this same

evidence, (¢., the facts set forth in the search warrant

affidavit and the statements in Westmoreland’s

declaration), to connect Westmoreland to the ranch and

the instrumentalities of marijuana smuggling which were

seized at the ranch. App C-15.

Petitioner’s counsel did not use any of this

evidence. Instead, counsel attempted to dispute the

prosecution’s claim that the items belonged to petitioner

by pointing to the absence of direct evidence connecting

petitioner to the items or the ranch‘ and eliciting in cross-

examination the names of three other people who might

have had access to the ranch ER 578-79. —

2. Evidence that Westmoreland, and not

petitioner, was the manager of the

conspiracy, to prove petitioner was not

guilty of the CCE charge.”

* Counsel relied on what the prosecution witnesses had

not established -- “[petitioner] was not seen by any of the

agents who searched the ranch. There’s also no evidence

by way of surveillance that he was seen on or about that

ranch in the time period of the search, that is, March of

1985.” ER 578.

> The CCE charge required the government to prove, inter

aka, that he occupied a position of manager, leader or

organizer with respect to five people, in the commission of

2%.

The same evidence discussed above, including the

statements of law enforcement officers that identified

Westmoreland as the manager of the ranch, as well as

Westmoreland’s guilty plea to possession of marijuana for

sale in the related state prosecution, could have been used

by petitioner’s counsel to implicate Westmoreland as the

manager of the conspiracy. In fact, while petitioner was in

Mexico fighting extradition, Riddet provided petitioner’s

Mexican counsel with an affidavit that placed responsibility

for the criminal activity at the ranch on Westmoreland, and

exculpated petitioner. ER 170.

Petitioner’s counsel did not use any of this

evidence, even though the affidavit he supplied for

petitioner’s extradition hearing in Mexico confirmed the

validity of such a strategy. Instead, counsel attempted by

cross-examination of the government’s cooperating

witnesses to shift responsibility to them for the marijuana

activities at the ranch.

> Evidence that petitioner left the U.S. more

than a week before the search of his ranch.

The prosecution contended that immediately after

and in response to the search of his ranch, petitioner fled

to Mexico and that his immediate flight proved he was

guilty. (“[RJight after that ranch search, he fled to Mexico.

a series of narcotics felonies, and the jury had to agree

unanimously on the five people whom he managed, lead

or organized. See 21 U.S.C. § 848(c).

«MH.

If he was not guilty, if he had nothing to do with that, why

did he go to Mexico?” “And finally, ladies and gentlemen,

why did the defendant flee to Mexico suddenly if he is not

guiltyr” ER 582, 583). Petitioner’s counsel had available

evidence which he could have offered to prove petitioner

left the United States for his home in Costa Rica more

than a week before the search of the ranch. This evidence

included petitioner’s passport, which showed that he left

the United States ten days before the search and arrived in

Costa Rica on February 19, 1985. ER 13, 26.

Petitioner’s counsel never used the passport.

Instead, he noted the absence of testimony placing

petitioner at the ranch on the day of the search to defend

against the prosecution’s allegation that petitioner’s guilt

was proven by his sudden flight to Mexico after the search.

4. Evidence petitioner had loaned Cooper

hundreds of thousands of dollars for real

estate investments and other legitimate

purposes, to provide an innocent

explanation for the money Cooper paid to

petitioner.

The prosecution presented evidence of payments

from Cooper to petitioner, and testimony by Cooper that

the payments were for marijuana. Petitioner’s counsel had

available evidence which he could have offered to prove

Cooper owed petitioner large sums of money for

legitimate loans, which would have provided an innocent

explanation for the payments. That evidence included the

contracts documenting the loans, their amounts and

NE ELEN TP YY PMCS .

«ae.

purposes. ER 13, 584.

Petitioner’s counsel did not present any documents

for any of the loans. Instead, he cross-examined Cooper

about the loans. Even after Cooper denied the loans,

except for one which he contended had long been paid,

petitioner’s counsel still did not offer the contracts and