IN THE SUPREME COURT OF THE UNITED STATES FEBRUARY TERM, Robert Black, The United States of America,

Transcription

1 Team #8 IN THE SUPREME COURT OF THE UNITED STATES FEBRUARY TERM, 2014 Robert Black, Petitioner, v. The United States of America, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE RESPONDENT THE UNITED STATES OF AMERICA

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii QUESTIONS PRESENTED... v JURISDICTIONAL STATEMENT... vi STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 Standard of Review... 5 I. Defendant Black s Fourth Amendment rights were not violated A. Defendant Black had no subjective expectation of privacy when he abandoned his documents in an unlocked container, on the curb, for a third-party, without taking sufficient precautions The trash container was unlocked Defendant Black abandoned the trash container on the curb and left his office, leaving the container for a third-party Defendant Black did not take sufficient precautions to safeguard his documents, instead choosing the most basic recycling plan from PFI B. There is no objective societal expectation of privacy in one s abandoned trash The trash was outside Defendant Black s business, not his home The trash was knowingly exposed to the public II. Defendant Black s Sixth Amendment rights were not violated A. There was no per se conflict The per se rule does not apply to alleged conflicts caused by Attorney Frazier s involvement in the underlying criminal activity because such an application unduly extends the Sullivan rule Even if the per se rule is applied, Defendant Black cannot illustrate that the rule was met by the facts of this case B. No actual conflict existed that adversely affected the fairness of the trial No actual conflict existed No adverse effect impacted the fairness of the trial CONCLUSION i

3 Constitutional Provisions TABLE OF AUTHORITIES U.S. CONST. amend IV... 5 U.S. CONST. amend VI U.S. Supreme Court Cases Abel v. United States, 362 U.S. 217 (1960) Burger v. Kemp, 483 U.S. 776 (1987)... 15, 23 Burt v. Titlow, 134 S. Ct. 10 (2013)... 5, 14, 15 California v. Ciraolo, 476 U.S. 207 (1986) California v. Greenwood, 486 U.S. 35 (1988)... 5, 6, 13 Couch v. United States, 409 U.S. 322 (1973)... 8 Cuyler v. Sullivan, 446 U.S. 335 (1980)... 15, 23 Fernandez v. California, No , 2014 U.S. LEXIS 1636 (Feb. 25, 2014)... 5 Florida v. Nixon, 543 U.S. 175 (2004) Gideon v. Wainwright, 372 U.S. 335 (1963) Glasser v. United States, 315 U.S. 60 (1942) Haig v. Agee, 453 U.S. 280 (1981) Holloway v. Arkansas, 435 U.S. 475 (1980) Illinois v. Andreas, 463 U.S. 765 (1983)... 6 Katz v. United States, 389 U.S. 347 (1967)... 5, 6 Kimmelman v. Morrison, 477 U.S. 365 (1986)... 5 Kyllo and Payton v. New York, 445 U.S. 573 (1980) Kyllo v. United States, 533 U.S. 27 (2001) Lewis v. United States, 385 U.S. 206 (1966)... 11, 12 Maryland v. King, 133 S. Ct (2013)... 5 Mickens v. Taylor, 535 U.S. 162 (2002)... 15, 17, 20, 23 Nix v. Whiteside, 475 U.S. 157 (1986) Oliver v. United States, 466 U.S. 170 (1984)... 10, 12 Ornelas v. United States, 517 U.S. 690 (1996)... 5 Rawlings v. Kentucky, 448 U.S. 98 (1980)... 5 Silverman v. United States, 365 U.S. 505 (1961) Smith v. Maryland, 442 U.S. 735 (1979)... 6 South Dakota v. Opperman, 428 U.S. 364 (1976)... 6 Strickland v. Washington, 466 U.S. 668 (1984) Terry v. Ohio, 392 U.S. 1 (1968)... 5 United States v. Alden, 439 U.S. 855 (1978)... 9 United States v. Cronic, 466 U.S. 648 (1984)... 17, 20 United States v. Dunn, 480 U.S. 294 (1987) United States v. Jones, 132 S. Ct. 945 (2012)... 5 United States v. Michaels, 469 U.S. 820 (1984)... 6 United States v. Miller, 425 U.S. 435 (1976)... 8 United States v. Terry, 702 F.2d 299 (2d Cir. 1983)... 8 United States v. Wallace, 536 U.S. 924 (2002) Wheat v. United States, 486 U.S. 153 (1988) ii

4 Wood v. Georgia, 450 U.S. 261 (1981) Federal Circuit Court Cases Beets v. Collins, 65 F.3d 1258 (5th Cir. 1995) Blake v. United States, 723 F.3d 870 (7th Cir. 2013) Briguglio v. United States, 675 F.2d 81 (3d Cir. 1982) Burchard v. Schneiderman, 445 F. App x. 415 (2d Cir. 2011) Cardoza v. Rock, 731 F.3d 169 (2d Cir. 2013) Cerro v. United States, 872 F.2d 780 (7th Cir. 1989) Davis v. Thaler, 373 F. App x. 446 (5th Cir. 2010) Familia-Consoro v. United States, 160 F.3d 761 (1st Cir. 1998)... 5 Foote v. Del Papa, 492 F.3d 1026 (9th Cir. 2007)... 20, 21 Freeman v. Chandler, 645 F.3d 863 (7th Cir. 2011) Freund v. Butterworth, 165 F.3d 839 (11th Cir. 1999) Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984)... 16, 21 McCorkle v. United States, 325 F. App x. 804 (11th Cir. 2009)... 16, 20 Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013) Mora v. Williams, 111 F. App x. 537 (10th Cir. 2004) Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000) Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989)... 8 Plunk v. Hobbs, 719 F.3d 977 (8th Cir. 2013) Ray v. Rose, 535 F.2d 966 (6th Cir. 1976) Reyes-Vejerano v. United States, 276 F.3d 94 (1st Cir. 2002) Stephens v. Branker, 570 F.3d 198 (4th Cir. 2009) Tillery v. Horn, 142 F. App x. 66 (3d Cir. 2005) Triana v. United States, 205 F.3d 36 (2d Cir. 2000) United States v. Alden, 576 F.2d 772 (8th Cir. 1978)... 9 United States v. Barren, 474 F. App x. 374 (4th Cir. 2012)... 15, 16 United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) United States v. Comeaux, 955 F.2d 586 (8th Cir. 1992) United States v. Dunkel, 900 F.2d 105 (7th Cir. 1990) United States v. Ewing, 470 F. App x. 394 (5th Cir. 2012)... 5 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993) United States v. Galpin, 720 F.3d 436 (2d Cir. 2013)... 5 United States v. Hall, 47 F.3d 1091 (11th Cir. 1995)... 9, 11 United States v. Harris, 6 F. App x. 304 (6th Cir. 2001) United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991)... 10, 12, 13 United States v. Howard, 621 F.3d 433 (6th Cir. 2010)... 5 United States v. Kramer, 711 F.2d 789 (7th Cir. 1983)... 8 United States v. Long, 176 F.3d 1304 (10th Cir. 1999)... 11, 12 United States v. Lopesierra-Gutierrez, 708 F.3d 193 (D.C. Cir. 2013) United States v. Mahibubani-Ladharam, 405 F. App x. 429 (11th Cir. 2010) United States v. McLain, 823 F.2d 1457 (11th Cir. 1987) United States v. Michaels, 726 F.2d 1307 (8th Cir. 1984)... 6 United States v. Mota-Santana, 391 F.3d 42 (1st Cir. 2004) United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) United States v. Oliver, 406 Fed. Appx. 808 (4th Cir. 2011) iii

5 United States v. Redmon, 138 F.3d 1109 (7th Cir ) United States v. Reeves, 892 F.2d 1223 (5th Cir. 1990) United States v. Roth, 860 F.2d 1382 (7th Cir. 1988) United States v. Scott, 975 F.2d 927 (1st Cir. 1992)... 8, 11 United States v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006)... 9, 10 United States v. Shanks, 97 F.3d 977 (7th Cir. 1996) United States v. Timley, 338 F. App x. 782 (10th Cir. 2009) United States v. Trice, 864 F.2d 1421 (8th Cir. 1988) United States v. Wake, 318 F. App x. 658 (10th Cir. 2009) United States v. Wallace, 276 F.3d 360 (7th Cir. 2002) United States v. Watson, 479 F.3d 607 (8th Cir. 2007) United States v. Williams, 372 F.3d 96 (2d Cir. 2004)... 15, 16, 18, 23 United States v. Williams, 669 F.3d 903 (8th Cir. 2012) Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995) Federal District Court Cases Martin v. Ercole, 2010 U.S. Dist. LEXIS , at *51-52 (S.D.N.Y. Aug. 19, 2010) Martinez v. Kirkpatrick, No , 2013 U.S. Dist. LEXIS (N.D.N.Y. May 22, 2013) 21 Postell v. Bradt, No , 2013 U.S. Dist. LEXIS (S.D.N.Y. Nov. 13, 2013) United States v. Redding, 540 F. Supp. 2d 1184 (D. Kan. 2008)... 7 United States v. Wolfe, 375 F. Supp. 949 (E.D. Pa. 1974) State Supreme Court Cases (including the District of Columbia Court of Appeals) Danai v. Canal Square Associates, 862 A.2d 395 (D.C. 2004)... 6, 7 State v. Goss, 834 A.2d 316 (N.H. 2003) State v. Granville, 142 P.3d 933 (N.M. 2006) State v. Morris, 680 A.2d 90 (V.T. 1996) Other State Cases State v. McAllister, 840 A.2d 967 (N.J. Super. 2004) Statutes 31 U.S.C iv

6 QUESTIONS PRESENTED I. Did the U.S. Court of Appeals for the Thirteenth Circuit correctly hold that there was no violation of Defendant Robert Black s Fourth Amendment rights because he had no expectation of privacy in the shredded documents when he abandoned them in an unlocked trash container, in plain sight, on the curb outside his business? II. Did the U.S. Court of Appeals for the Thirteenth Circuit correctly hold that there was no violation of Defendant Black s Sixth Amendment rights because there was no conflict at trial between Attorney Larry Frazier s interests and Defendant Black s interests because Attorney Frazier was unaware that he was under investigation, both men s interests were aligned, and Attorney Frazier was charged by a different prosecutor for unrelated crimes? v

7 JURISDICTIONAL STATEMENT Following unsuccessful pre-trial motions, Defendant Black was tried by jury, convicted, and the U.S. District Court for the District of Jensen entered judgment against him in August (R. at 4.) Defendant Black filed a motion for post-conviction relief in the district court, which was denied. (R. at 6.) Defendant Black subsequently appealed the denial to the U.S. Court of Appeals for the Thirteenth Circuit, including a direct appeal of the district court s denial of his pre-trial motion to suppress. (R. at 6.) Defendant Black s conviction was affirmed by the circuit court. (R. at 6.) Defendant Black timely petitioned this Court for a writ of certiorari, which was granted with review limited to whether the circuit court correctly held that Defendant Black s Fourth and Sixth Amendment rights were not violated. (R. at 7.) Jurisdiction for this appeal is based upon 28 U.S.C. 1254(1). vi

8 STATEMENT OF THE FACTS In August 2012, Defendant Black was tried and convicted by a federal jury for violating the Federal Controlled Substances Act (the Act ) and associated conspiracies stemming from his methamphetamine lab. (R. at 3-4.) After an unsuccessful post-conviction motion before the U.S. District Court for the District of Jensen and a failed appeal to the U.S. Court of Appeals for the Thirteenth Circuit, Defendant Black initiated this appeal. (R. at 5-6.) The Drug Enforcement Agency (the DEA ) first became aware of Defendant Black through its increased investigation in illegal drug manufacturing in Jensen. (R. at 1.) In the spring of 2011, DEA Agent Frank Schroder began surveillance of Defendant Black s asbestos and lead paint abatement business, A&L Abatement ( A&L ), to determine whether A&L was a front for a methamphetamine lab. (R. at 1.) Initial efforts, including surveillance of Defendant Black, as well as trash pulls from his home and A&L s alleyway, were unfruitful. (R. at 1.) On July 6, 2011, Agent Schroder caught a break when he seized documents from a Paper Fortress, Inc. ( PFI ) trash container that Defendant Black left unlocked on the curb outside A&L. (R. at 1-2.) The trash container had the PFI name and logo and an attached, hinged lid but no lock. (R. at 2.) Defendant Black locked the doors to A&L when he left the premises for the evening, but he left the trash container unlocked. (R. at 2.) Agent Schroder collected the trash container s contents before the PFI collection truck arrived. (R. at 2.) The DEA discovered both intact and shredded documents. (R. at 2.) Although the DEA s initial efforts to manually reconstruct the documents failed, the U.S. Department of Justice reassembled the documents using scanning and optical character-recognition software. (R. at 2.) The intact documents had no evidentiary value. (R. at 2.) The reconstructed documents, in contrast, contained inter alia orders for equipment and chemicals used by methamphetamine labs. (R. at 2-3.) Using the reconstructed documents, Agent Schroder obtained a search warrant 1

9 and searched A&L. (R. at 3.) The search revealed incriminating evidence against Defendant Black and others that led the DEA to his methamphetamine lab. (R. at 3.) Defendant Black was indicted in August (R. at 3.) Defendant Black s counsel, Attorney Frazier, filed and argued pre-trial motions including a motion to suppress, pursuant to the Fourth Amendment, the evidence obtained as a result of the trash pull. (R. at 3.) During the suppression motion hearing, Attorney Frazier admitted into evidence the contract between PFI and A&L. (R. at 4.) A representative from PFI, Joan Parker, testified that although PFI offered more highly secured services, which Parker herself recommended to Defendant Black, he seemed unconcerned and selected PFI s most basic services. (R. at 3-4.) Defendant Black, as sole proprietor of A&L, selected weekly, curbside collection of the unlocked trash container. (R. at 3-4.) He agreed that PFI would collect any documents therein, shred them, and send them to a public, state-run paper recycling facility. (R. at 2, 4.) Among the services rejected by Defendant Black were in-office and locked pickup services as well as secure shredding and incineration. (R. at 4.) After Attorney Frazier argued the suppression motion, it was denied. (R. at 4.) Defendant Black was tried and convicted. (R. at 4.) During trial, unbeknownst to Defendant Black, the DEA, and the U.S. Attorney s Office for the District of Jensen, Attorney Frazier was the subject of tips by several banks resulting in a Suspicious Activity Report (the SAR ) to the U.S. Department of Treasury (the Treasury ). (R. at 5.) Two days after the conviction, an indictment in the U.S. District Court for the Eastern District of Louisiana was unsealed (R. at 5.) It accused Attorney Frazier of laundering money in Louisiana and establishing front businesses for Jefferson Redman, one of Defendant Black s unindicted partners in the methamphetamine lab. (R. at 5.) The Treasury and the U.S. Attorney s 2

10 Office for the Eastern District of Louisiana had had no knowledge of the Jenson charges or any connection between Defendant Black and Redman. (R. at 5.) After the indictment was unsealed, Assistant Federal Public Defender Gary Cohen represented Defendant Black. (R. at 5.) Defender Cohen moved for a new trial, arguing that the suppression motion should have been granted and also that Defendant Black s Sixth Amendment right to counsel was violated due to Attorney Frazier s conflict of interest. 1 (R. at 5.) The motion was denied by the district court which held, in part, that there was no actual conflict for three reasons: (1) Defendant Black and Attorney Frazier s interests were aligned; (2) Attorney Frazier was unaware of the impending indictment during trial; and (3) although at times nervous and harried, there was nothing wrong with Attorney Frazier s handling of the case. (R. at 6.) As to the final issue, the effectiveness of Attorney Frazier s performance, the district court made no factual finding. (R. at 6.) Defendant Black timely appealed both issues to the circuit court, which affirmed the conviction in an unpublished opinion. (R. at 6.) The circuit court held that Defendant Black had no expectation of privacy in the shredded documents because they constituted abandoned property. (R. at 6.) The circuit court also held that there had been no conflict between Defendant Black and Attorney Frazier. (R. at 6.) Defendant Black timely petitioned for review by this Court, which was granted on both issues. (R. at 7.) 1 The procedural history of this case is somewhat atypical because Defendant Black s direct appeal and motion for post-conviction relief were filed in tandem and were seemingly considered in consolidated fashion by the district court and then again by the circuit court. 3

11 SUMMARY OF THE ARGUMENT Defendant Black got his bite at the apple. He was investigated and convicted for operating a methamphetamine lab. He now seeks a second bite, not by arguing innocence but by identifying purported investigatory irregularities and untoward trial tactics that he claims violated his constitutional rights. He had his day in court. He is not entitled to another. Defendant Black s Fourth and Sixth Amendment rights were not violated. First, Defendant Black s Fourth Amendment challenge lacks merit. The DEA properly searched and seized the incriminating documents found inside the unlocked trash container, he left in plain sight, on the curb outside his business. Defendant Black could not have subjectively believed that the documents would be kept private. The trash container was unlocked. It was abandoned and left unattended for a third-party. Defendant Black took no sufficient precautions to safeguard its contents. Moreover, society recognizes no objective expectation of privacy under these facts. The trash container was outside a business, not a home. It was also readily accessible to the public. Defendant Black s Fourth Amendment privacy rights were not violated. Second, Defendant Black s Sixth Amendment challenge lacks merit. Attorney Frazier provided effective assistance throughout the pendency of Defendant Black s case. Regardless of whether the per se or actual conflict rule is applied, Defendant Black s challenge fails. Not only is the per se rule inapplicable to counsel conflicts but even if the rule is applied, Defendant Black cannot prove that the rule was met by the facts of this case. No actual conflict occurred because there was neither a true conflict of interests nor an adverse effect. Defendant Black s Sixth Amendment right to counsel was not violated. Defendant Black had his trial and his bite at the apple. He is not entitled to another. 4

12 ARGUMENT Standard of Review Both Fourth and Sixth Amendment claims are reviewed under a mixed standard. Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (Sixth Amendment); Ornelas v. United States, 517 U.S. 690, (1996) (Fourth Amendment). Under this standard, legal issues are reviewed de novo but factual findings are reviewed with clear error deference. See United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013); United States v. Ewing, 470 F. App x. 394, 395 (5th Cir. 2012); United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010); Familia-Consoro v. United States, 160 F.3d 761, (1st Cir. 1998). I. Defendant Black s Fourth Amendment rights were not violated. The Thirteenth Circuit s order should be affirmed because Defendant Black s Fourth Amendment rights were not violated. The purported investigatory irregularies he now identifies are just an attempt to get another bite at the apple. Defendant Black had no expectation of privacy in his incriminating documents seized by the DEA. The Fourth Amendment protects against unreasonable searches and seizures. See U.S. CONST. amend IV. The Court s Fourth Amendment cases primarily address the boundaries of search, seizure, and probable cause. See, e.g., Fernandez v. California, No , 2014 U.S. LEXIS 1636, at *5 (Feb. 25, 2014) (permitting, in some instances, a warrantless search of an apartment); Maryland v. King, 133 S. Ct (2013) (upholding DNA swabbing upon arrest); United States v. Jones, 132 S. Ct. 945 (2012) (holding that using GPS denotes a search); Terry v. Ohio, 392 U.S. 1 (1968) (approving law enforcements warrantless searches of automobiles). Fourth Amendment rights attach only where there is a reasonable expectation of privacy. See California v. Greenwood, 486 U.S. 35, 39 (1988); Kimmelman v. Morrison, 477 U.S. 365, 374 (1986); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). In Katz v. United States, the Court 5

13 articulated a two-part test to determine whether such an expectation exists. 389 U.S. 347, 360 (1967) (Harlan, J., concurring). A reasonable expectation exists where: (1) a defendant himself subjectively expects privacy; and (2) society as a whole would objectively deem that expectation to be reasonable. Greenwood, 486 U.S. at 39; Smith v. Maryland, 442 U.S. 735, 740 (1979). Here, Defendant Black had no subjective expectation of privacy and there is no objective societal expectation of privacy in abandoned trash. A. Defendant Black had no subjective expectation of privacy when he abandoned his documents in an unlocked container, on the curb, for a thirdparty, without taking sufficient precautions. Defendant Black had no subjectively reasonable expectation of privacy for three reasons: (1) the trash container was unlocked; (2) he abandoned the trash container on the curb and left his office, leaving the container for a third-party; and (3) he failed to take sufficient precautions to safeguard the trash container s contents, instead choosing PFI s most basic recycling plan. 1. The trash container was unlocked. First, Defendant Black left the trash container unlocked, so he had no reasonable expectation of privacy. Although locking enhances privacy, even locking a container is no guarantee of privacy. For example, in South Dakota v. Opperman, the Court held that police officers could unlock a suspect s car and search the unlocked glove compartment. 428 U.S. 364, (1976). Similarly, in United States v. Michaels, the court ruled that a trash bin in a wholly open, publicly-accessible area was not situated within a zone of privacy because anyone could access its contents. 726 F.2d 1307, 1312 (8th Cir. 1984), cert. denied, 469 U.S. 820 (1984); see c.f. Illinois v. Andreas, 463 U.S. 765 (1983) (holding that a sealed container could be re-opened); Danai v. Canal Square Associates, 862 A.2d 395 (D.C. 2004) (holding that even trash in a locked community trash room was not private and could be searched by a landlord). 6

14 Here, PFI offered Defendant Black a locked trash container. (R. at 3-4.) He declined. (R. at 4.) He locked the door to A&L, showing an intent to keep his building s contents private, but he left the trash container unlocked. (R. at 2.) Here, unlike the officers in Opperman, Agent Schroder was searching inside an unlocked container. The PFI container was akin to the trash bin in Michaels, and therefore Defendant Black had no subjective expectation of privacy. His decision to leave the trash container unlocked weighs in favor of concluding that he had no subjective expectation of privacy. 2. Defendant Black abandoned the trash container on the curb and left his office, leaving the container for a third-party. Second, Defendant Black abandoned his documents in the trash container on the curb, unattended, and left his office for the evening. When documents are left unattended, the defendant evidences no desire to keep them private. In Danai, the court held that a defendant tenant did not have a reasonable expectation of privacy in trash she discarded in her wastepaper basket because she knew that the trash would be readily accessible to her landlord, and ultimately to trash collectors. 862 A.2d at Similarly in United States v. Redding, the court found no expectation of privacy where a defendant left his trash out overnight for collection the next morning. 540 F. Supp. 2d 1184, 1187 (D. Kan. 2008). Here, Defendant Black must have known that leaving the trash container on the curb made it accessible to anyone. (R. at 1-2.) Yet he left his documents unsupervised in this unlocked trash container when leaving A&L for the evening. (R. at 1-2.) Like the defendants in Danai and Redding, Defendant Black left his documents unattended and accessible to the public. As in those cases, there was no subjective expectation of privacy. Defendant Black left his documents in the trash container for a third-party, specifically PFI. When documents are given to a third-party, the defendant evidences no desire to keep them 7

15 private. For example, in Couch v. United States, the Court found no expectation of privacy in documents provided to an accountant because the defendant knew that the information contained therein could subsequently be disclosed to the government. 409 U.S. 322, 335 (1973); see also United States v. Miller, 425 U.S. 435, 443 (1976) (no expectation of privacy in information conveyed to a bank). Like the defendant in Couch who provided documents to his accountant, here, Defendant Black left the contents of the container for PFI. (R. at 1-2.) Although it was ultimately the DEA, not PFI, who collected the trash container, Defendant Black had no reason to believe that the contents would not later become public. Defendant Black s abandonment of his documents in the trash weighs in favor of the conclusion that he had no subjective expectation of privacy. 3. Defendant Black did not take sufficient precautions to safeguard his documents, instead choosing the most basic recycling plan from PFI. Third, Defendant Black took insufficient precautions to protect his documents in the trash container. He shredded some but left others intact. (R. 2.) The use of security precautions, like shredding, may reflect an intent that trash be kept private. See Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989). The sufficiency of these precautions evolves over time. In older cases, courts have suggested that shredding documents may be a sufficient precaution to show a subjective intent to retain privacy rights. See, e.g., United States v. Terry, 702 F.2d 299, 309 (2d Cir. 1983) (suggesting in dicta that shredding may reveal an intent to retain privacy); United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983) (same). More recent cases hold otherwise. For example, in United States v. Scott, where Internal Revenue Service agents painstakingly recreated shredded documents from a trash pull, the court held that shredding documents does not create a reasonable expectation of privacy. 975 F.2d 927, 930 (1st Cir. 1992). As this case 8

16 illustrates, today s technology makes it possible for shredded documents to be reassembled using both manual and computerized techniques. Moreover, even if a person intends to keep documents private via shredding, such intention does not prove that there is an objective societal expectation. A defendant s intention may conflict with community expectations. For example, in United States v. Hall, the court acknowledged that a defendant manifested a subjective expectation of privacy by shredding documents but nonetheless that a warrantless trash pull was permissible because society did not objectively expect privacy. 47 F.3d 1091, (11th Cir. 1995). Even incineration may be an ineffective special precaution to ensure privacy. See United States v. Alden, 576 F.2d 772, 777 (8th Cir. 1978) cert. denied, 439 U.S. 855 (1978). Here, PFI offered a variety of security options to Defendant Black, ranging from a locked container to private incineration he elected none of these. (R. at 3-4.) Instead, he placed both intact and shredded documents in the unlocked trash container. (R. at 1-2.) Here, as in Scott, shredding the documents alone did not create a heightened expectation of privacy. Like the defendant in Hall, Defendant Black may have desired for certain documents to remain private, but he had no reasonable expectation that they would remain so. Here, Defendant Black was offered incineration services but declined. (R. at 4.) Defendant Black s ineffective precautions weigh in favor of concluding that he did not have a subjective expectation of privacy. B. There is no objective societal expectation of privacy in one s abandoned trash. Defendant Black had no objectively reasonable expectation of privacy because, under the circumstances, there was no societal expectation of privacy. The constitutionality of a trash pull depends on whether the trash was publicly accessible so as to render any expectation of privacy objectively unreasonable. United States v. Segura-Baltazar, 448 F.3d 1281, 1287 (11th Cir. 9

17 2006); United States v. Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (quoting United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991)). A defendant must do more than simply leave trash for collection to expect privacy. United States v. Trice, 864 F.2d 1421, 1424 (8th Cir. 1988) (reasoning that a trashcan might offer protection beyond a trashbag). Although many state constitutions impose more stringent search constraints than the Constitution, these state requirements do not demonstrate that society expects trash to be private. State court decisions interpreting state constrictions are inapt. See, e.g., State v. Granville, 142 P.3d 933, 939 (N.M. 2006); State v. Goss, 834 A.2d 316, 319 (N.H. 2003); State v. Morris, 680 A.2d 90, 98 (V.T. 1996); State v. McAllister, 840 A.2d 967, 975 (N.J. Super. 2004). State constitutions neither reflect national societal expectations nor the reach of the Constitution. Moreover, the state of Jensen has not joined the handful of states with constitutions that extend protections to the trash. Certain areas have been deemed by society to deserve higher protection. Compare California v. Ciraolo, 476 U.S. 207, 210 (1986) (high societal expectation of privacy in a fenced backyard) with Oliver v. United States, 466 U.S. 170, (1984) (low societal expectation of privacy in open fields). Trash left for collection on the curb enjoys no societal expectation of privacy, even if documents in the trash are shredded. Here, there is no objective societal expectation of privacy for two reasons: (1) the trash was outside Defendant Black s business, not his home; and (2) the trash was exposed to the public. 1. The trash was outside Defendant Black s business, not his home. First, society s expectations of privacy form a spectrum; the home is highly private, businesses are less private, and public areas are not private at all. As the Court noted, [a]t its very core, the Fourth Amendment stands for the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Kyllo v. United States, 533 U.S. 27, 31 (2001); Silverman v. United States, 365 U.S. 505, 511 (1961). The Fourth Amendment embodies 10

18 historic principles of respect for the privacy of the home and therefore the line at the entrance to the house... must not only be firm but be bright. Kyllo and Payton v. New York, 445 U.S. 573, 589 (1980). The home and its surrounding area, known as curtilage, receive extra protection. United States v. Dunn, 480 U.S. 294 (1987) (applying a four-factor test to determine a home s curtilage). Conversely, the Fourth Amendment does not protect a business. Lewis v. United States, 385 U.S. 206, 211 (1966) (so holding even when the business is illegal and conducted from within a home). Curtilage has no application in the commercial sphere. 2 United States v. Wolfe, 375 F. Supp. 949, (E.D. Pa. 1974) (holding that a business s yard has less protection than a home s, but recognizing that a business may take steps to enhance privacy). Public areas have no expectation of privacy. Where trash is left on the curb or public alley, there is no societal expectation of privacy. This is true even where documents in the trash are shredded. See Scott, 975 F.2d at 930; Hall, 47 F.3d at In United States v. Williams, the court denied a motion to suppress evidence seized from bags on the curb because there was no societal expectation of privacy there. 669 F.3d 903, 905 (8th Cir. 2012) ( Williams I ); see also United States v. Wake, 318 F. App x. 658, 660 (10th Cir. 2009). Similarly in United States v. Timley, the court held that there was no expectation of privacy for trash left in an alley behind a defendant s residence. 338 F. App x. 782, (10th Cir. 2009); see also United States v. Long, 176 F.3d 1304, 1309 (10th Cir. 1999). Here, the container was not in Defendant Black s home. (R. at 1.) It was not inside A&L. (R. at 1.) It was not even in A&L s backyard or parking lot. (R. at 1.) The container was out on the curb. (R. at 2.) Defendant Black had the highest expectation of privacy in his home with 2 Not only is a business entitled to lower protection, but tort law does not define the parameters of the Fourth Amendment. Even when documents are seized via trespass, they may still be admissible. Hall, 47 F.3d 1097 (approving the legality of law enforcement s seizure of shredded documents through trespass). 11

19 lower expectations inside and around A&L. Neither was where the trash container was searched. It was in the public domain. There was no expectation of privacy in that location. The trash container here was akin to the trash in Williams I, both were left on the curb, and therefore, were validly searched. Unlike the trash in Timley, which was left in an alley behind a house, here, the container was on the curb of a public street in front of A&L. The trash container was not in the public by accident, Defendant Black intentionally left the unlocked container there. (R. at 1-2.) Under a reasonable, objective standard the trash container was not in a private area. This weighs in favor of finding no reasonably objective societal expectation of privacy. 2. The trash was knowingly exposed to the public. Second, regardless of the method of exposure, once documents are exposed to the public there is no objectively reasonable expectation of privacy. Lewis, 385 U.S. at 211; Oliver, 46 U.S. at 179 (holding that open fields, even those fenced or marked No Trespass are not sheltered from government intrusion or surveillance). When trash is plainly visible, is left for collection, or is abandoned, there is no societal expectation of privacy. Where trash is plainly visible, there is no societal expectation of privacy. For example, in United States v. Shanks, the court found no expectation of privacy where anyone passing on a public road could view the trash. 97 F.3d 977, 980 (7th Cir. 1996); see also Hedrick, 922 F.2d at 400 (finding no reasonable expectation of privacy in trash that was visible from the sidewalk); United States v. Dunkel, 900 F.2d 105, 107 (7th Cir. 1990) (holding that there was no expectation of privacy in a dumpster in a public parking lot). In contrast, where trash is secluded or inaccessible, there may be an expectation of privacy. See c.f. Long, 176 F.3d at Here, as in Shanks, the trash container was plainly visible. Not only did Agent Schroder observe the trash container, but anyone driving past A&L could also view it. (R. at 1-2.) The trash container was unlocked, so anyone who opened its lid could view its contents. (R. at 2.) 12

20 Where trash is left for collection, there is no societal expectation of privacy. For example, in United States v. Redmon, the court held that the use of trashcans left for collection distinguished those cans from personal safety deposit boxes because the trash was intended to be conveyed to a third-party so there was no expectation of privacy. 138 F.3d 1109, 1113 (7th Cir ) (en banc); see also Hedrick, 922 F.2d at 400 (affirming denial of motion to suppress in part where trash was left in the designated collection location); United States v. Harris, 6 F. App x. 304, 308 (6th Cir. 2001) (noting that animals, children, scavengers, and other members of the public can access the trash). Here, the trash container was left for collection. Defendant Black, the sole proprietor of A&L, had an agreement with PFI for weekly collection of its contents. (R. at 3-4.) Like the trashcans in Redmon, the trash container here was not Black s personal safety deposit box, it was PFI s property. Defendant Black had no reason to believe that the trash container s contents would exclusively be viewed by PFI because he was warned by PFI that any documents therein would be delivered to a public, state-run paper-recycling facility. (R. at 4.) He seemed unconcerned. (R. at 4.) He accepted the risk that his documents might be publicly viewed. Where trash is abandoned, there is no societal expectation of privacy. It is long-settled law that the government may appropriate abandoned property. Abel v. United States, 362 U.S. 217, 241 (1960). For example, in Greenwood, the defendant left trash on the curb for collection, which was set aside by the trash collector at the behest of the police. 486 U.S. at The Court reasoned that when the trash was left on the curb, the defendant abandoned his interests in keeping the contents of the trash private. Id. at Here, Defendant Black abandoned his privacy interests when he dumped the intact and shredded documents into PFI s trash container, locked up his business, and left A&L for the 13

21 evening. (R. at 1-2.) He was unconcerned with the documents in the trash. (R. at 4.) He could have waited for PFI to arrive before he left but chose not to do so. He left the documents in an unlocked, publicly-accessible location. (R. at 1-2.) Like the defendant in Greenwood, Defendant Black demonstrated every intention to forever part with the documents he left in the trash container. Defendant Black s handling of the trash weighs in favor of finding no objectively, reasonable societal expectation of privacy. Because there was neither a subjective nor objective expectation of privacy, Defendant Black s Fourth Amendment rights were not violated. II. Defendant Black s Sixth Amendment rights were not violated. The Thirteenth Circuit s order should be affirmed because Defendant Black s Sixth Amendment rights were not violated. No conflict adversely impacted Attorney Frazier s representation. By identifying trial tactics and claiming ineffective assistance, Defendant Black attempts to get an undeserved, second bite at the apple. He received the fair trial guaranteed by the Sixth Amendment. 3 See U.S. CONST. amend VI; Gideon, 372 U.S. at 343. At the trial, Defendant Black had effective assistance of counsel. The Supreme Court addressed the parameters of a claim for ineffective assistance in the landmark case of Glasser v. United States, 315 U.S. 60 (1942). Subsequently, in Strickland, the Court set forth two mandatory requirements for an ineffective assistance of counsel claim. 466 U.S. at 687. The defendant alleging ineffective assistance has the burden to prove his attorney s performance was deficient and that the deficiencies prejudiced his defense. Id. This burden is high; counsel s assistance is strongly presumed to have been adequate. Burt, 134 S. Ct. at The Sixth Amendment right to counsel protects the fundamental right to a fair trial guaranteed in the Due Process Clause. Strickland v. Washington, 466 U.S. 668, 684 (1984). Without the right to assistance of counsel, due process protections would be of little value in most cases. Gideon v. Wainwright, 372 U.S. 335, (1963). Therefore, the proper focus of a Sixth Amendment inquiry is the integrity of the adversarial system. Wheat v. United States, 486 U.S. 153, 159 (1988). Here, Defendant Black got a fair trial and his bite at the apple. 14

22 A defendant is also entitled to counsel who is free from conflicts of interest. 4 Wood v. Georgia, 450 U.S. 261, 271 (1981). In two cases decided prior to Strickland, the Court indicated that the burden to prove ineffective assistance may be lighter in the context of attorney conflicts. See Holloway v. Arkansas, 435 U.S. 475 (1980); Cuyler v. Sullivan, 446 U.S. 335 (1980). In Sullivan, the Court held that prejudice may be presumed, or per se, where counsel s representation of multiple defendants causes a conflict. 446 U.S. at The Court has never applied the per se rule outside the context of multiple representation of codefendants. See, e.g., Mickens v. Taylor, 535 U.S. 162, 168 (2002); Burger v. Kemp, 483 U.S. 776, 783 (1987); Nix, 475 U.S. at 176. Instead, a defendant alleging ineffective assistance due to counsel s conflict must prove an actual conflict. Sullivan, 446 U.S. at Here, there was no per se conflict and Defendant Black can show no actual conflict. A. There was no per se conflict. A per se conflict of interest requires automatic reversal, without a showing of prejudice or an adverse effect, due to the severe nature of the conflict. United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004) ( Williams II ). The Court has recognized a per se conflict of interest only where defense counsel is forced to represent codefendants over counsel s timely objection. See Mickens, 535 U.S. at 168. The Court has never further extended the rule. A majority of lower courts have similarly declined to extend the rule. Courts have limited the per se rule to conflicts raised by the concurrent representation of codefendants in all but one circuit where the issue was decided. See Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir. 2013) (declining to adopt the per se rule); United States v. Barren, 474 F. App x. 374, 375 (4th Cir. 4 Most rules of attorney professional conduct prohibit conflicts of interest. Although the rules may serve as a guide, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of the assistance of counsel. Nix v. Whiteside, 475 U.S. 157, 165 (1986). As the Court recently noted violation of ethical rules does not render counsel per se ineffective. Burt, 134 S. Ct. at

23 2012) (requiring a showing of actual conflict); McCorkle v. United States, 325 F. App x. 804, 808 (11th Cir. 2009) ( [T]his circuit does not recognize a per se violation... ); United States v. Watson, 479 F.3d 607, 611 (8th Cir. 2007) (declining to adopt the per se rule); United States v. Mota-Santana, 391 F.3d 42, (1st Cir. 2004) (limiting the per se rule to the facts of Sullivan); Mora v. Williams, 111 F. App x. 537, 547 (10th Cir. 2004) (requiring a showing of actual conflict); United States v. Wallace, 276 F.3d 360, (7th Cir. 2002) cert. denied, 536 U.S. 924 (2002) (rejecting extension of the per se rule); Williams v. Calderon, 52 F.3d 1465, (9th Cir. 1995) (declining to extend the Sullivan rule beyond its facts); Beets v. Collins, 65 F.3d 1258, (5th Cir. 1995) (same); Government of Virgin Islands v. Zepp, 748 F.2d 125, (3d Cir. 1984) (requiring a showing of actual conflict). Only the Second Circuit has uniformly extended the per se rule beyond the Sullivan facts. See Williams II, 372 F.3d at 105. Here, the per se rule does not apply to a purported conflict caused by Attorney Frazier s alleged involvement in any criminal activity because such an application unduly extends the Sullivan reasoning. Even if the rule is applied, Defendant Black cannot illustrate that the rule was met by the facts of this case. 1. The per se rule does not apply to alleged conflicts caused by Attorney Frazier s involvement in the underlying criminal activity because such an application unduly extends the Sullivan rule. The per se rule should not apply here because such an application unduly extends the Sullivan rule. The Second Circuit has created new applications of the per se rule beyond the facts of Sullivan. Courts outside the Second Circuit have questioned and rejected this extension of the rule. See, e.g., Mora, 111 F. App x. at 547; Wallace, 276 F.3d at 368. Even the Second Circuit has noted that its extension of the rule exceeds the Court s application. See Cardoza v. Rock, 731 F.3d 169, 183 (2d Cir. 2013). 16

24 Such an extension conflicts with the Court s reasoning in Mickens. Albeit in dicta, the Mickens Court articulated why the Sullivan per se rule should not apply unblinkingly to all kinds of alleged attorney ethical conflicts. 535 U.S. at Undoubtedly, in certain circumstances prejudice is nearly inevitable, so a per se rule has a logical foundation. See, e.g., United States v. Cronic, 466 U.S. 648, (1984) (failure to present any meaningful defense). However, unlike in the case of concurrent representation of codefendants, where counsel s loyalties are almost certainly divided, counsel facing other conflicts may successfully balance competing loyalties. For example, in Ray v. Rose, counsel remained mindful of his obligation to vigorously defend his client and did so even where the defense jeopardized counsel s financial interests. 535 F.2d 966, (6th Cir. 1976); see also United States v. Oliver, 406 Fed. Appx. 808, 811 (4th Cir. 2011) (fee dispute did not create conflict); United States v. Novaton, 271 F.3d 968, (11th Cir. 2001) (counsel s own implication in a federal investigation did not conflict with his obligations to his client). The higher standard of Sullivan makes sense in cases of concurrent representation of codefendants but not in contexts where competing duties are more easily balanced. This case illustrates precisely why the per se rule should not be applied unblinkingly. Prejudice was not nearly inevitable here. To the contrary, Attorney Frazier was able to balance any interests competing with his duty of loyalty to Defendant Black. Defendant Black was charged and tried with violations of the Act and related conspiracies. (R. at 3.) Unbeknownst to him at the time of trial, Attorney Frazier was under investigation for aiding Redman in laundering Redman s own funds and establishing front businesses for Redman. (R. at 5.) By the time the indictment was unsealed and Attorney Frazier learned that he was under investigation, Defendant Black had already been convicted. (R. at 5.) Attorney Frazier had no reason to 17

25 improperly preference his own interests before Defendant Black s because Attorney Frazier had no reason to think his own interests were at risk at the time of trial. Moreover, Attorney Frazier defended Defendant Black by arguing, inter alia, that key evidence supporting Defendant Black s conviction should have been suppressed. (R. at 3.) Attorney Frazier s strategy, had it been successful, could have resulted in Defendant Black s acquittal. There is no evidence that an argument favorable to Defendant Black conflicted with any argument Attorney Frazier might have made for himself or Redman. The district court found that Defendant Black and Attorney Frazier s interests were quite perfectly aligned. (R. at 6.) Like counsel in Ray, Attorney Frazier vigorously defended Defendant Black. Attorney Frazier never subordinated Defendant Black s interests to his own. This is not a case of concurrent representation of codefendants. It therefore does not raise the type of inherent conflicts justifying application of the per se rule. As the Court has noted, bad facts make bad law. Haig v. Agee, 453 U.S. 280, 319 (1981). This case, with no obviously inherent conflict, is an inappropriate one in which to extend the Sullivan per se rule. 2. Even if the per se rule is applied, Defendant Black cannot illustrate that the rule was met by the facts of this case. In the alternative, if this Court endorses the reasoning of the Second Circuit, Defendant Black is not entitled to relief pursuant to the per se rule. The Second Circuit has extended the rule in two circumstances: (1) where counsel was not duly licensed to practice law; and (2) where, unbeknownst to the defendant, counsel is implicated in the defendant s crimes. 5 Williams II, 372 F.3d at 105. The record contains no indication that Attorney Frazier was unlicensed nor that Defendant Black preserved such an argument, so only the second circumstance could apply. 5 The record is silent as to Defendant Black s contemporaneous knowledge of Attorney Frazier s activities on behalf of Redman. Defendant Black may have been so aware. The burden is on Defendant Black to prove he was unaware. 18

26 For the second circumstance to apply, counsel s alleged criminal activity must be sufficiently related to the defendant s charged crimes. See United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993); Triana v. United States, 205 F.3d 36, 42 (2d Cir. 2000). Where counsel s involvement is ancillary to the defendant s charged crimes, there is no sufficient relation. For example, in United States v. Lopesierra-Gutierrez, the court declined to hold that there was a per se conflict where counsel received illicit funds from his client, reasoning that this activity was not sufficiently related to the client s charges for distribution of cocaine. 708 F.3d 193, 202 (D.C. Cir. 2013); see also Cerro v. United States, 872 F.2d 780, 785 (7th Cir. 1989) (holding there was no per se conflict where counsel had used cocaine with his client who was tried and convicted for conspiracy to distribute cocaine). In contrast, where a per se conflict was found, counsel was more directly involved in the same underlying criminal activity with which his client was charged. For example, in Fulton, the court held that there was a per se conflict where the attorney and client together conspired to import and distribute heroin. 5 F.3d at ; see also United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) (counsel and his client co-conspired to commit insurance fraud). Even if this Court extends the per se rule, it is inapplicable here. Attorney Frazier was not implicated in Defendant Black s crimes. The allegations against Attorney Frazier are not sufficiently related to the charges against Defendant Black. Attorney Frazier is not accused of assisting Defendant Black in manufacturing or distributing methamphetamines. Nor is Attorney Frazier accused of taking any action on behalf of Defendant Black, such as aiding Defendant Black in laundering money from his criminal enterprise. To the contrary, Attorney Frazier is accused of the alleged actions he took on behalf of an entirely different client, Redman. (R. at 5.) If the charges are true, Attorney Frazier s actions are ancillary to Defendant Black s charges and 19

27 conviction. As in Lopesierra-Gutierrez, where the client was charged with drug distribution but the attorney was simply involved with the financial consequences of this activity, so too here is Attorney Frazier uninvolved with the possession, distribution, and sale of methamphetamines that form the basis of Defendant Black s conviction. Here, Attorney Frazier was not involved with the same underlying criminal activity with which Defendant Black was charged. Unlike counsel in Fulton who was a direct participant in drug distribution, here, Attorney Frazier is not accused of having any direct involvement with Defendant Black s manufacture of methamphetamines. In fact, Attorney Frazier is not accused of having any direct involvement with any action taken by Defendant Black at all. Attorney Frazier is accused only of aiding Redman in concealing Redman s own criminal proceeds. (R. at 5.) Even if the per se rule is endorsed by this Court, the facts do not suggest it applies here. B. No actual conflict existed that adversely affected the fairness of the trial. No actual conflict adversely affected Defendant Black s trial. Only conflicts arising from concurrent representation of codefendants are subject to the Sullivan rule, other conflicts must meet the Strickland requirements as adapted for conflict contexts in Mickens. 6 An actual conflict arises when counsel actually chooses between two conflicting interests and abandons his duty to zealously advocate for the client. See McCorkle, 325 F. App x. at 808; Tillery v. Horn, 142 F. App x. 66, 70 (3d Cir. 2005); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). As a threshold matter, the defendant must demonstrate an actual, not theoretical conflict. Mickens, 535 U.S. at 171. If such a conflict is proven, the defendant must then show an adverse effect caused by the conflict. Davis v. Thaler, 373 F. App x. 446, 449 (5th Cir. 2010); Foote v. 6 A different standard is applied when counsel is either wholly absent or prevented from assisting the defendant. See Florida v. Nixon, 543 U.S. 175, 190 (2004); Cronic, 466 U.S. at 659. The Cronic standard is inapplicable here because the record reflects that Attorney Frazier argued pretrial motions and performed traditional defense counsel roles at trial. (R. at 3-4, 6) (noting that Attorney Frazier handled the case at trial). 20