# Petition for Writ of Certiorari — Fowlie v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 970

## Text

» \ 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

ra
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

SS

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
18 United States Code re
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SE ckanéonn dae £Gawes hese san dann anes 4

DE is Chan wenne dnsceccgdehnibdnmaaeels 25
28 United States Code

Go Ferre ty Serre ree rere 1

Ce i tidanse dueibainbehialaneasasunes 1

rrr Perrot Se ryerr re 1,8

es cs cake cn ees 5, 6

ifs

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

ee

ee

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)).

es

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.

Ye
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
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 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

a.

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

oo

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.

a

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

YF

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

2.

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
related documents. ER 409-11.

C. Petitioner’s showing that counsel’s failure’ io
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.

The Court of Appeals rejected petitioner’s
contention that his counsel’s failure to use the evidence
discussed above demonstrated his actual conflict adversely
affected his performance. The Court of Appeals gave its
reasons for this ruling in two sentences: “[Petitioner] fails
to meet his burden to demonstrate, with a factual showing
on the record, that the self-conflict adversely affected his
attorney’s performance. [citation omitted] Rather, the
record demonstrates that [petitioner’s] attorney argued
[petitioner’s] innocence, vigorously cross-examined the
government’s witnesses, and attempted to shift blame to
several viable suspects.” Appendix B - 5.

The efforts of petitioner’s counsel cited by the
Court of Appeals to support its ruling - ie., he argued
petitioner’s innocence, vigorously cross-examined the
government's witnesses and attempted to shift blame to

2

several viable suspects - do not legally or logically
demonstrate that his failure to offer evidence which
required him to assume petitioner’s innocence was not an
adverse effect of his actual conflict. None of the actions
cited by the Court of Appeals were inconsistent with
counsel’s self-interest. That is, they involved challenging
the government’s evidence of guilt, which counsel could
do without appearing to offer evidence he knew or had to
believe was false. Counsel’s use of strategies that were
consistent with his self-interest doés not mean that his
failure to offer evidence which would have aided
petitioner’s defense but conflicted with his self-interest
was not an adverse effect of his actual conflict. In fact,
counsel’s exclusive use of strategies that were consistent
with his self-interest, and avoidance of those which were
inconsistent with his self-interest, supports petitioner’s
showing that counsel’s actual conflict adversely affected
his performance.

This includes what the Court of Appeals referred to
as counsel having argued petitioner’s innocence. App B-5.
Counsel’s assertions of petitioner’s innocence equated
petitioner’s “innocence” with the government’s failure to
prove him guilty beyond a reasonable doubt, not with
actual innocence. See RT 91-92 (“When this case is over,
I fully expect that you will find from the evidence that the
charges which have been brought against Mr. Fowlie have
not been proven and that he is innocent of these

charges.”’)

Nor does the vigorous manner in which counsel
executed these strategic choices demonstrate that his

e

failure to offer affirmative evidence was not an adverse
effect of his actual conflict. Counsel may well have made
the best effort he could to achieve an acquittal within the
limits his self-interest imposed on petitioner’s defense.
Counsel may have tried as hard as he could to win with
one hand tied behind his back, but that does not mean his
performance was not adversely affected.

CONCLUSION

For the foregoing reasons, this Court should
issue a writ of certiorari to the United States Court of
Appeals for the Ninth Circuit to review the questions
presented in this petition.

Respectfully submitted,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2591%3A1. Public record. Not legal advice.