Opposition Brief — D&J Enterprises, Inc. v. United States

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DEC 26 2007

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No. 02-636

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States

Jn the Supreme Court of the Gnited

D&J ENTERPRISES, INC., PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CER TIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether, in order to establish a conflict of inter-

est in violation of the Sixth Amendment, a defendant

must show that the conflict adversely affected counsel’s

performance, where the government brought the po-

tential conflict to the attention of the district court be-

fore trial, and the court declined to inquire into the con-

flict or to disclose it to the defendant.

2. Whether the courts below erred in rejecting peti-

tioner’s conflict-of-interest claim without conducting an

evidentiary hearing.

3. Whether the exclusion of petitioner from a pre-

trial, in-chambers conference at which the district court

rejected the government’s request for a hearing to in-

quire into defense counsel’s alleged conflict of interest

constituted structural error in violation of the Due

Process Clause, U.S. Const. Amend. V.

(I)

TABLE OF CONTENTS

Opinion below .........sssssessssssssseessesseenssnnseneenseeneesssensssssssesenseneeseensesns 1

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TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) ....ccseeeeees 9

Armienti v. United States, 234 F.3d 820 (2d Cir.

I cassis baninaieieaseitiibenentiontetnemenvenseverns 7

Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002) ..........+0+ a

Holloway v. Arkansas, 435 U.S. 475 (1978) ....scseseseeeees 6

Massaro v. United States, 123 S. Ct. 31 (2002) ............0. 7

Mickens v. Taylor, 122 S. Ct. 1237 (2002) «0... sees 4,5,6

Rose v. Clark, 478 U.S. 570 (1986) ......ccssseseseeesereseeseeeees 9

United States v. D&J Enters., Inc., 136 F.3d 140

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United States v. Lovasco, 431 U.S. 783 (1977) .......seceeee 9

Constitution, statutes and regulation:

U.S. Const. Amend. V1 ...cessscccrcossscscsccsesesccessorneverssessvossosonees sé 5

Clean Air Act, 42 U.S.C. 7401 et seq.:

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(IIT)

In the Supreme Court of the Gnited States

No. 02-636

D&J ENTERPRISES, INC., PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The per curiam opinion of the court of appeals (Pet.

App. 31-32) is unreported, but the judgment is noted at

136 F.3d 140 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

April 25, 2002. The petition for rehearing was denied

on July 2, 2002 (Pet. App. 33-34). On September 10,

2002, Justice Kennedy extended the time within which

to file a petition for a writ of certiorari to and including

October 30, 2002. The petition for a writ of certiorari

was filed on October 25, 2002. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

A jury in the United States District Court for the

Southern District of Florida found petitioner guilty of

conspiring to release Freon into the atmosphere and to

conceal the release from the United States Environ-

mental Protection Agency and the Army Corps of En-

gineers, in violation of 18 U.S.C. 371; and of releasing

Freon into the atmosphere, in violation of the Clear Air

Act, 42 U.S.C. 7413(¢)(1), 7671g(c)(1), and 40 C.F.R.

82.154(a). Following the jury’s determination of guilt,

the district court granted petitioner a judgment of ac-

quittal on both counts. The government appealed and

the court of appeals reversed, ordering reinstatement

of the jury verdicts. United States v. D&J Enters.,

Inc., 186 F.3d 140 (11th Cir. 1998) (Table). Thereafter,

petitioner moved for a writ of coram nobis, asserting

that its trial counsel had a conflict of interest and had

provided ineffective assistance. The district court de-

nied the motion. The court then sentenced petitioner to

a fine in the amount of $250,000 and a five-year term of

probation. The court of appeals affirmed the judgment

of conviction and held that the appeal from the denial of

coram nobis was moot. Pet. App. 32.

1. As part of the cleanup operation following Hurri-

cane Andrew, the Army Corps of Engineers retained

petitioner D&J Enterprises as a subcontractor to de-

molish housing units at the Homestead Air Force Base

in Florida. The contract required petitioner to use

EPA-certified technicians to recapture Freon from the

hundreds of air conditioners in the housing units, in-

stead of releasing the freon into the air. Rather than

recapturing the freon, petitioner allowed Freon from 94

air conditioners to escape. In two letters to the prime

contractor on the cleanup, petitioner attempted to

3

cover up those environmental and contractual viola-

tions. Gov't C.A. Br. 7-8.

2. In a sealed pre-trial motion, the government in-

formed the district court that Fred A. Schwartz, peti-

tioner’s trial counsel, was a “subject” of a grand jury

investigation in an unrelated matter in the Southern

District of Florida. The government requested the

court to conduct a hearing for the purpose of advising

petitioner of that fact, explaining to petitioner the na-

ture of the potential conflict of interest, and informing

petitioner of its right to seek new counsel or to have

new counsel appointed upon a proper finding of indi-

gency. Pet. App. 2-8. The sealed motion was served on

defense counsel. In a sealed response, defense counsel

asserted that a hearing was not required because he

was only a “subject” of a grand jury investigation. Jd.

at 9. The district court considered the matter in cham-

bers without the presence of petitioner, and it decided

that no hearing was required. Gov’t C.A. Br. 25.

3. After the court of appeals ordered reinstatement

of the guilty verdicts, petitioner, assisted by new coun-

sel, obtained access to the sealed submission relating to

the conflict-of-interest issue. Before being sentenced

on the convictions, petitioner filed a petition for a writ

of coram nobis, claiming that its original trial counsel

labored under a conflict of interest. Pet. App. 12. Peti-

tioner argued that, in light of the district court’s failure

to conduct a hearing on the conflict after being alerted

to the matter by the government, petitioner was enti-

tled to automatic reversal. Jd. at 18-19. In the alterna-

tive, petitioner argued that the conflict adversely af-

fected counsel’s performance. In particular, petitioner

argued that counsel’s legal problems contributed to his

inability at trial to “concentrate, recall names or places,

4

or discern critical issues that would have supported not

guilty verdicts.” Jd. at 24.

The district court denied petitioner’s motion for a

writ of coram nobis. The court concluded that such re-

lief was unavailable because petitioner could raise the

conflict-of-interest claim on appeal from petitioner’s fi- .

nal judgment of conviction. The court found that the

record was sufficiently developed for the court of ap-

peals to resolve the conflict-of-interest claim based on

the current record. Gov’t C.A. Br. 28-29. Following the

issuance of the final judgment of conviction, petitioner

filed two appeals—one from the denial of its motion for

a writ of coram nobis, and one from the final judgment.

The appeals were consolidated in the court of appeals.

4. In a per curiam opinion, the court of appeals

summarily affirmed the judgment of conviction. Pet.

App. 31-32. The court held (id. at 32) that petitioner

had failed to demonstrate that any conflict of interest

“adversely affected” defense counsel’s performance at

trial, as required by Mickens v. Taylor, 122 S. Ct. 1237

(2002). In light of its disposition of the conflict-of-

interest claim on direct appeal, the court held that the

petition for a writ of coram nobis was moot. Pet. App.

32.

ARGUMENT

1. Petitioner contends (Pet. 5-13) that the court of

appeals erred in requiring petitioner to establish that

its attorney’s alleged conflict of interest adversely af-

fected counsel’s performance. In petitioner’s view,

where, as here, the government brings a possible con-

flict to the court’s attention before trial, and the court

fails to conduct an inquiry into the allegation or to dis-

close the conflict to the defendant, automatic reversal of

a conviction is required.

5

This Court’s decision in Mickens v. Taylor, 122 S. Ct.

1237 (2002), makes clear that petitioner’s claim lacks

merit. In that case, Mickens was convicted of premedi-

tated murder following the commission of forcible sod-

omy. After his trial, he learned that one of his attor-

neys had represented the victim of his crime on a dif-

ferent matter. Based on that discovery, Mickens filed a

federal habeas petition alleging that the attorney had a

conflict of interest in violation of the Sixth Amendment.

In particular, Mickens argued that because the trial

court knew or had reason to know about his attorney’s

conflict of interest and failed to conduct an inquiry into

the conflict, automatic reversal of his conviction was

required. This Court rejected that claim, holding that

where a trial court fails to inquire into a potential con-

flict of interest about which it knew or reasonably

should have known, a defendant must show, at a mini-

mum, that the conflict adversely affected his counsel’s

performance. Jd. at 1243-1245. The Court explained

that a rule of automatic reversal would “make[ ] little

policy sense” because a “trial court’s awareness of a po-

tential conflict neither renders it more likely that coun-

sel’s performance was significantly affected nor in any

other way renders the verdict unreliable.” Jd. at 1244.

Mickens’s reasoning is controlling here. In order to

establish a Sixth Amendment violation, petitioner was

required to show, at a minimum, that its attorney’s

alleged conflict of interest adversely affected counsel’s

performance. The fact that the government alerted the

district court to a potential conflict does not support a

rule of automatic reversal because that fact “neither

renders it more likely that counsel’s performance was

significantly affected nor in any other way renders the

verdict unreliable.” Mickens, 122 S. Ct. at 1244.

Because petitioner failed to establish that defense

6

counsel’s asserted conflict of interest adversely affected

counsel’s performance, the court of appeals correctly

rejected petitioner’s conflict-of-interest claim.

Holloway v. Arkansas, 435 U.S. 475 (1978), on which

petitioner relies, does not suggest otherwise. There,

defense counsel objected to being required to represent

three co-defendants in the same matter because the co-

defendants allegedly had divergent interests. The trial

court denied the motion without inquiry and required

defense counsel to represent the co-defendants. This

Court held that, where a trial court fails to conduct an

inquiry into defense counsel’s claim that multiple repre-

sentation would give rise to a conflict of interest, auto-

matic reversal is required. Jd. at 487-491. The Court

reasoned that a defense counsel is in the best position to |

ascertain whether he labors under a disabling conflict, |

id. at 485-486, and that joint representation of co-defen- |

dants raises distinct concerns, id. at 489. Holloway |

therefore creates a narrow exception to the gen- |

eral rule that a defendant asserting a conflict of in- . |

terest must demonstrate, at a minimum, that the con- |

flict adversely affected his lawyer’s performance. As |

the Court explained in Mickens, Holloway “creates an |

automatic reversal rule only where defense counsel is |

forced to represent codefendants over his timely objec- |

tion, unless the trial court has determined that there is |

no conflict.” 122 S. Ct. 1241-1242. Because defense |

counsel in this case did not object to representing peti-

tioner, and because defense counsel was not in the posi-

tion of representing multiple defendants, Holloway is

inapposite here.

2. Petitioner contends (Pet. 13-14) that its conflict-

of-interest claim should not have been denied in the

absence of an evidentiary hearing. The district court

held that an evidentiary hearing was unnecessary be-

ae Ae Se

7

cause the record was sufficiently developed to enable

the court of appeals to adjudicate the conflict-of-inter-

est claim on petitioner’s direct appeal. The court of

appeals agreed with that assessment and rejected peti-

tioner’s conflict-of-interest claim on the merits. Peti-

tioner does not identify any basis for disturbing the

judgment of two courts below that the record was suffi-

ciently developed to permit a resolution of petitioner’s

claim without the need for an additional evidentiary

hearing.”

Petitioner contends (Pet. 13-14) that the decision be-

low conflicts with Armienti v. United States, 234 F.3d

820 (2d Cir. 2000). There is, however, no such conflict.

In that case, Armienti moved for collateral relief under

28 U.S.C. 2255, alleging that his trial counsel had a con-

flict of interest because he was under investigation by

the same United States Attorney’s office that was

prosecuting Armienti. The district court denied the

motion without an evidentiary hearing. The court of

appeals vacated the judgment and remanded for an

evidentiary hearing to determine whether there was an

actual conflict of interest and, if so, whether the conflict

adversely affected the lawyer’s performance. 234 F.3d

at 825.

* In Massaro v. United States, cert. granted, 123 S. Ct. 31

(2002). (No. 01-1559), this Court granted certiorari to resolve the

question whether a defendant who did not raise a claim of

ineffective assistance of counsel on direct appo2] must satisfy the

cause and prejudice standard in order to obtain vacation of his

conviction under 28 U.S.C. 2255. Although this case confirms (as

the government argues in Massaro) that some ineffective

assistance claims are capable of resolution on direct appeal, the

procedural default issue in Massaro is not presented here. There

is therefore no need to hold the present petition pending the

decision in Massaro.

8

Armienti did not hold that an evidentiary hearing is

necessary to resolve every conflict-of-interest claim.

Rather, it held that such a hearing was necessary in

that case because the record was not sufficiently devel-

oped to permit a resolution of the defendant’s claim.

The fact that the court of appeals in Armienti did not

regard the record on appeal in that case as sufficiently

developed to enable it to review the conflict-of-interest

claim has no bearing on whether the record in this case

was sufficiently developed to enable the court of ap-

peals to resolve petitioner’s conflict-of-interest claim.

3. Finally, petitioner contends (Pet. 14-15) that its

exclusion from the pre-trial conference at which the dis-

trict court determined that it did not need to conduct an

inquiry into defense counsel’s potential conflict consti-

tuted a structural due process violation. In support of

that contention, petitioner relies on the Ninth Circuit’s

decision in Campbell v. Rice, 302 F.3d 892 (2002). In

that case, the Ninth Circuit rejected the defendant’s

claim that defense counsel had an unconstitutional con-

flict of interest because counsel was being investigated

by the same United States Attorney’s office that was

prosecuting the defendant. Jd. at 896-898. The court

reasoned that defendant had failed to show that the al-

leged conflict adversely affected counsel’s performance.

Ibid. The court went on to hold, however, that the ex-

clusion of the defendant from an in-chambers confer-

ence concerning the alleged conflict constituted a struc-

tural due process violation requiring automatic rever-

sal. Id. at 898-900.

Petitioner did not argue in either the district court or )

the court of appeals that its exclusion from the pre-trial

conference constituted a structural due process viola-

tion, and neither one of those courts addressed that is-

sue. Accordingly, that question is not properly pre-

OO

9

sented here. See United States v. Lovasco, 431 U.S.

783, 788 n.7 (1977). Moreover, because the court of ap-

peals had no occasion to address the issue, there is no

conflict between the decision below and Campbell.

Petitioner’s structural error argument is also without

merit. A structural defect is one that affects “the

framework within which the trial proceeds” and in-

volves “basic protections, [without which] a criminal

trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence, and no criminal

punishment may be regarded as fundamentally fair.”

Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (quot-

ing Rose v. Clark, 478 U.S. 570, 577-578 (1986)). Under

that standard, any error in excluding petitioner from

the pre-trial conference on defense counsel’s possible

conflict would not constitute structural error. Because

counsel's alleged conflict of interest did not adversely

affect his performance, the exclusion of petitioner from

the pre-trial conference did not compromise the fair-

ness or reliability of petitioner’s trial.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor Genera!

MICHAEL CHERTOFF

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

DECEMBER 2002