In the Supreme Court of the United States

Transcription

1 In the Supreme Court of the United States ROBERT BLACK v. UNITED STATES, et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE RESPONDENTS

2 In the Supreme Court of the United States ROBERT BLACK v. UNITED STATES, et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE RESPONDENTS

3 TABLE OF CONTENTS TABLE OF CONTENTS....ii TABLE OF AUTHORITIES.. iv STATEMENT OF QUESTIONS PRESENTED... vi STATEMENT OF JURISDICTION.vii SUMMARY OF ARGUMENT STATEMENT OF FACTS ARGUMENT I. THE FOURTH AMENDMENT DOES NOT PROTECT AGAINST SEARCHES OF UNLOCKED THIRD-PARTY TRASH CONTAINERS ON A PUBLIC STREET OR THE SUBSEQUENT RECOVERY AND RECONSTRUCTION OF DOCUMENTS CONTAINED THEREIN....5 A. Mr. Black could not subjectively believe that the contents of the recovered documents were adequately shielded from state search and seizure by shredding and subsequently abandoning them to third-party access Contracting with a private trash collection service for garbage pick-up on a public street does not heighten reasonable privacy expectations Trash in a publicly accessible area located outside the curtilage of a business and knowingly exposed to the public is not subject to reasonable privacy expectations The recovery and reassembly of shredded trash obtained from a publically accessible trashcan does not infringe on Fourth Amendment protections...9 B. Society does not recognize as reasonable an individual s subjective belief that the Fourth Amendment protection includes trash left on a public street with the express purpose of transferral to a third party II. FRAZIER S ACTIVITY WITH PETITIONER S CO-CONSPIRATOR DID NOT CREATE A CONFLICT OF INTEREST AS TO PETITIONER SUCH THAT IT VIOLATED PETITIONER S SIXTH AMENDMENT RIGHT TO COUNSEL...11 A. Petitioner is unable to demonstrate that Larry Frazier s activity constituted an actual conflict of interest as required under the Cuyler exception to the Strickland test for Sixth Amendment violations B. Even if petitioner were able to fulfill the first prong of the Cuyler Page ii

4 exception, he is unable to fulfill the second prong which requires a showing that an actual conflict of interest adversely affected counsel s representation CONCLUSION iii

5 TABLE OF AUTHORITIES Page(s) United States Supreme Court Argersinger v. Hamlin, 407 U.S. 25 (1972)...11 California v. Ciraolo, 476 U.S. 207 (1986) 6,11 California v. Greenwood, 486 U.S. 35 (1988) passim Cuyler v. Sullivan, 446 U.S. 335 (1980).passim Florida v. Jardines, 133 S.Ct (2013).6 Hester v. United States, 265 U.S. 57 (1924) 5 Katz v.united States, 389 U.S. 347 (1967)..5,6 Mickens v. Taylor, 535 U.S. 162 (2002)...12,15 Smith v. Maryland, 442 U.S. 735 (1979).7 Strickland v. Washington, 466 U.S. 668 (1984) 1,12,13 United States v. Cronic, 466 U.S. 648 (1984)..11,12 United States Courts of Appeals Armienti v. United States, 313 F. 3d 807 (2d Cir. 2002)...15 Blake v. United States, 723 F.3d 870 (7th Cir. 2013)...16,17 Stoia v. United States, 109 F.3d 392 (7th Cir. 1997).20 United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990).16,17 United States v. Finlay, 55 F.3d 1410 (9th Cir. 1995)..12,14 United States v. Gambino, 864 F.2d 1064 (3d Cir. 1988).19 United States v. Hall, 47 F.3d 1091 (11th Cir. 1995) 7,8,9 United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991).9 United States v. Lopesierre-Giutierrez, 708 F.3d 193 (D.C. Cir. 2013)...17,18 United States v. Scott, 975 F.2d 927 (1st Cir. 1992)..9,10,11 Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993) 19,20 United State District Court Cases United States v. Varjabedian, No GAO, 2006 WL (D. Mass. 2006)..8 State Court Cases People v. Krivda, 486 P.2d 1262 (Cal. 1971)..7 iv

6 Constitutional Provisions U.S. Const. amend IV..5 U.S. Const. amend VI 11 Federal Statutes FED. R. CRIM. P. 7(c)(4).15 v

7 STATEMENT OF QUESTIONS PRESENTED I. The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure against unreasonable searches and seizures. If a state actor violates that right, then that actor infringes on a citizen s right to security. Does a state actor violate an individual s Fourth Amendment privacy protections by conducting a search of an unlocked third-party container located on a public street, retrieving shredded trash contained therein, and subsequently reconstructing the retrieved material? II. A defendant who fails to object to representation at trial must demonstrate either that there was an actual conflict which adversely affected his representation or show that there was a possible conflict and that such conflict prejudiced defendant such that he was deprived of counsel at trial. Did the secret conspiratorial activity and subsequent indictment of Larry Frazier with an unindicted co-conspirator of petitioner give rise to a conflict of interest such that it deprived the petitioner of his Sixth Amendment right to counsel at trial? vi

8 STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C and issued its judgment in August Notice of appeal was timely filed. This Court has jurisdiction under 28 U.S.C and U.S. Const. Art. III 1. vii

9 SUMMARY OF ARGUMENT Although the Fourth Amendment protects against unreasonable searches and seizures, society does not recognize as reasonable an individual s subjective belief that the Fourth Amendment protects trash left on a public street for the express purpose of transferral to a thirdparty. Placing trash in a publicly accessible area located outside the curtilage of a business and knowingly exposed it to the public vitiates all reasonable privacy expectations. More specifically, the Fourth Amendment does not protect against searches of unlocked third-party trash containers on a public street or the subsequent recovery and reconstruction of documents contained therein. Because there exists no right to privacy in the trash itself, there is also no Fourth Amendment right to privacy in a subsequent recovery and reassembly of shredded trash obtained from a publically accessible trashcan. Although petitioner s actions of contracting with a private trash collection service and shredding of the documents indicate an affirmative attempt to keep private the contents of his documents, they fall short of establishing a reasonable belief in their continued privacy. Therefore, petitioner could not subjectively believe that the contents of the recovered documents were adequately shielded from state search and seizure by shredding and subsequently abandoning them to third-party access. The lower court ruled correctly and consistently with this Court s prior holdings in finding that the state did not violate petitioner s Fourth Amendment rights in this case. Additionally, the petitioner has failed to establish that his Sixth Amendment right to assistance of counsel was violated. While this right is a fundamental right necessary to both the service of justice and the reliability of the trial process, an individual who alleges that this right has been violated must show how it was violated. Under the Strickland v. Washington standard, a 1

10 defendant must show that his counsel was deficient in some way and that this deficiency prejudiced the defendant. An exception to this standard is expressed in Cuyler v. Sullivan allowing a defendant to only show an adverse effect if he can also show that there was an actual conflict of interest. In the present case, petitioner has failed to show that there was an actual conflict of interest which adversely affected his representation because he has only established the potentiality for a conflict of interest. He has not shown that this is a suspect situation, such as a dual representation; he has not shown that there were divergent interests between himself and his attorney; and he has not show that Frazier s misconduct was so related to his own that it gave rise to a danger that Frazier would value his own interests above those of petitioner. After failing to establish an actual conflict of interest, petitioner has also failed to even address how, or if, such an alleged conflict impacted his representation. As such, the lower courts ruled correctly in finding that there was no violation of petitioner s Sixth Amendment right to counsel. 2

11 STATEMENT OF FACTS In the spring of 2011, Agent Schroder and the Drug Enforcement Administration (DEA) began investigating A & L Abatement (A & L) believing its owner, Robert Black, to be operating a methamphetamine operation out of the business. [R. 1]. On July 6, 2011, after extended surveillance, Agent Schroder witnessed Black wheel a garbage bin labeled Paper Fortress, Inc. from inside A & L to the curb of an adjacent public street. [R. 1]. Black opened the trash container and emptied a cardboard box filled with shredded paper into the bin. [R. 2]. After Black left, Agent Schroder approached the bin and, finding its lid unsecured by any kind of lock, opened it to find a pile of both shredded and intact documents. [R. 2]. Agent Schroder and his fellow agents emptied the bin and took the documents to the local DEA office for further examination. [R. 2]. The DEA reconstructed the shredded documents using sophisticated scanning equipment from the Department of Justice s Forensic Services Department [R. 2]. These documents revealed purchases of equipment and chemicals necessary for a methamphetamine operation. [R. 3]. Agent Schroder used this information to obtain a search warrant for A & L s offices where they found a large methamphetamine operation. [R. 3]. In August 2011, the State of Jensen charged Black in the U.S. District Court for the District of Jensen with violations of the Federal Controlled Substances Act and associated conspiracies [R. 3]. Prior to trial, defense counsel, Larry Frazier, filed various motions, including a motion to suppress evidence obtained as a result of the search of the Paper Fortress, Inc trash bin, which Frazier argued was a violation of Black s Fourth Amendment rights. [R. 4]. At the hearing on the motion to suppress, Frazier called Joan Parker, a customer service representative from Paper Fortress, Inc., the company that handled Black s account. [R. 3]. Parker testified that Paper Fortress, Inc. was a document storage and disposal company 3

12 specializing in the secure disposal of sensitive documents. [R. 3]. In March 2011, Parker had offered Black several secure options for document disposal that included lockable containers, secure shredding and incineration, and in-office pick up. [R. 4]. She testified that Black seemed unconcerned about what happened to his shredded papers following their collection, choosing the company s most basic disposal services. [R. 4]. These services only included a weekly, curbside pickup of a provided standard container to be shredded and recycled at a public, state run paper-recycling facility. [R. 4]. The District Court ultimately denied the motion, and in August 2012, Black was convicted of all charges by a federal jury. [R. 4]. Following trial, a grand jury unsealed an indictment against defense counsel for money laundering in association with a co-conspirator of petitioner. [R. 5]. At no time during the trial was the court, the prosecutor, the defendant, or even, apparently, defense counsel, aware of the investigation or indictment. [R. 5]. Following the indictment, Black obtained the assistance of a public defender. [R. 5]. Subsequently, Black moved for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure, re-urging the Fourth Amendment suppression issue and claiming a deprivation of his right to counsel under the Sixth Amendment. [R. 5]. The district court denied the motion on both issues noting that Black s and Frazier s interests were quite perfectly aligned and that Frazier at times appeared stressed, but was more likely than not unaware that he was going to be indicted. [R. 6]. Following a timely appeal to the U.S. Court Appeals for the Thirteenth Circuit, the court affirmed Black s conviction stating that the shredded documents were abandoned property not subject to a reasonable expectation of privacy. [R. 6]. Black then submitted a petition for writ of certiorari to the Supreme Court of the United States which was granted. [R. 7]. 4

13 ARGUMENT I. THE FOURTH AMENDMENT DOES NOT PROTECT AGAINST SEARCHES OF UNLOCKED THIRD-PARTY TRASH CONTAINERS ON A PUBLIC STREET OR THE SUBSEQUENT RECOVERY AND RECONSTRUCTION OF DOCUMENTS CONTAINED THEREIN. The Fourth Amendment of the United States Constitution states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The theory of abandonment is an essential concept in the consideration of Fourth Amendment protections. The idea originates in early twentieth century jurisprudence and stands for the proposition that once a person, by his own actions, abandons an item to the public realm, he renounces all reasonable claims to privacy protections concerning that item. Hester v. United States, 265 U.S. 57, 58 (1924). Drawing upon well-established property law principles, there can be no seizure in the sense of the law when a state actor searches the contents of an abandoned thing. Id. More recently however, the Court has rejected the singular understanding of Fourth Amendment protections as a property right consideration, instead adopting a personal privacy analysis that focuses more on individuals than locations. Katz v. United States, 389 U.S. 347, 353 (1967). Recognizing that the Amendment extends beyond the protection of areas from trespass and unreasonable search and seizure, this analysis broadens safeguards to apply to persons and the prevention of unreasonable violations of privacy. Id at 351. That is not to say that the Amendment protects an all encompassing right to privacy, but it does protect individual privacy against unreasonable searches and seizures by the state actors. Id at 350. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth 5

14 Amendment protection But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected. Id at 351. Although not articulated in directly in Katz, Justice Harlan in his concurring opinion refined the standard for determining the scope of this constitutional protection to require a person to demonstrate an actual expectation of privacy in a particular situation and for society to recognize that expectation as reasonable. Id at 360. This two-fold test calls for both a subjective and objective analysis that adequately addresses privacy considerations. Since Katz, the Court has adopted Justice Harlan s requirements, applying these threshold conditions to allegations of privacy violations by the state. California v. Ciraolo, 476 U.S. 207, 1 (1986). Despite the modern analysis of privacy considerations, abandonment theory considerations have not disappeared completely from the discussion of Fourth Amendment violations. Recently the Court, in Florida v. Jardines, explicitly stated that the reasonable expectations test adopted in Katz did not eradicate the original property centric understanding of the amendment, but, instead, had been added to it to create a well-rounded analysis. 133 S.Ct. 1409, 1417 (2013). Therefore, to determine whether an individual has been subject to an unreasonable search and seizure requires consideration of both the traditional abandonment and the modern reasonable privacy expectations approaches. A. Petitioner could not subjectively believe that the contents of the recovered documents were adequately shielded from state search and seizure by shredding and subsequently abandoning them to third-party access. In determining whether the state has violated an individual s Fourth Amendment protections, the court looks to that person s subjective belief of privacy in a given situation. Ciraolo, 476 U.S. at 1. The Court in California v. Greenwood outlined the considerations necessary to determine what constitutes a reasonable subjective belief in the context of trash and 6

15 its disposal. 486 U.S. 35, 39 (1988). Key to this determination is an examination of the care an individual takes in handling and disposing of the trash in question. 1. Contracting with a private trash collection service for garbage pick-up on a public street does not heighten reasonable privacy expectations. Repeatedly, this Court has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Smith v. Maryland, 442 U.S. 735, 743 (1979). Leaving trash on a curb of a common street may reasonably result in animals, children, vagrants, and other members of the public rummaging around in its content, in essence voluntarily granting countless third parties access to the garbage. People v. Krivda, 486 P.2d 1262, 1269 (Cal. 1971). Indeed, original owners of the trash generally place it on the curb with the express purpose of relinquishing control by conveying it to a trash collector. Even if an individual turns trash over directly to such a designated party, the collector himself could be reasonably expected to sort through the trash or allow others, including the police, to do so at will. Greenwood, 486 U.S. at 41. Hiring a private trash collector to avoid using public collection provides no distinction in the reasonableness of the expectation of privacy consideration. United States v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995). The Court in Greenwood declined to make any distinction between private and public trash services in noting the diminishing effect that garbage collectors handling of garbage has on subjective privacy expectations. 86 U.S. at 40. Contracting with a private trash collection service does nothing to reduce the fact that the trash is abandoned to the control of a separate third-party, capable of sifting through or letting others examine the collected garbage. Hall, 47 F.3d at In this case, the fact that petitioner contracted with a private firm for trash removal does not support his allegation of a subjective privacy expectation. In fact, his interaction with Paper Fortress, Inc. should have acted as notice to eliminate any such expectations. Joan Parker, a 7

16 customer service representative for Paper Fortress, Inc., made it clear to petitioner that the cheapest option was not secure and that her company offered clients more secure document removal complete with lockable containers, in house pick-up, and incineration. [R. 4]. He opted instead for the cheapest option which included unsecured containers, pick-up on a public street, and recycling at a state-run facility. [R. 4]. Indeed, at the hearing, Parker testified that petitioner seemed utterly unconcerned with what happened to his documents following collection. [R. 4]. Had petitioner invested in a trashcan with a secure lock capable of keeping contents securely private until pick-up instead of abandoning his trash to public accessibility, he might have had a heightened expectation of privacy was the trash was on the public street. United States v. Varjabedian, No GAO, 2006 WL at *3 (D. Mass. 2006). However, knowing that his documents would be left unsecured on a public street, be handled by thirdparties, and then be turned over to a state operated facility should have served to shatter all privacy expectations which petitioner now claims. Even if some shred of expectation remained, this Court has ruled definitively that once trash has been abandoned on a public street with the intent to turn it over to a third-party, an individual can no longer maintain a legitimate expectation of privacy. Greenwood, 486 U.S. at Trash in a publicly accessible area located outside the curtilage of a business and knowingly exposed to the public is not subject to reasonable privacy expectations. Garbage, as a class of items for Fourth Amendment analysis, must be protected by especially stringent safeguards to preserve privacy interests because the public recognizes as common knowledge the inherent risk of third-party access they present. Greenwood, 486 U.S. at 40. Trash discarded outside the curtilage of a home is not afforded Fourth Amendment privacy protections. Id. at 42. Of those state appellate courts that have been presented with the issue, an 8

17 overwhelming majority of them have consistently held that state actors may conduct all manner of warrantless searches of garbage abandoned in this public area. Id. When considering trash disposed of outside of a commercial structure, as opposed to a residence, the expectation of privacy becomes even lower. Hall, 47 F.3d at The occupants of commercial buildings must take affirmative action to effectively bar the public from the area where trash is discarded to maintain any measure of privacy expectations or protection from warrantless searches. Id. When trash is placed in an area where it is not only readily accessible to the public but also likely to viewed by them it is knowingly exposed to society at large, eliminating Fourth Amendment privacy expectations. United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991). Even when contained in a dumpster or trash can, garbage can be considered exposed to the public and abandoned based on the locale of the container. Petitioner abandoned his trash on a public street accessible to all who wandered by, opting to remove it from the safety of his Fourth Amendment protected building. [R. 2]. No special care was taken at the trash site of his commercial building to affirmatively and effectively bar public access. Petitioner s discarded garbage lay in an area with clear public access outside the curtilage of his business, sitting in an area petitioner knew was exposed to the public on the street corner. Id. The placement of the unsecured trash container and utter lack of affirmative action taken to prevent public access vitiates any of petitioner s claims asserting a right to privacy to his abandoned garbage. 3. The recovery and reassembly of shredded trash obtained from a publically accessible trashcan does not infringe on Fourth Amendment protections. The mere shredding of documents does not establish a presumption of an individual s reasonable subjective belief of continued privacy. United States v. Scott, 975 F.2d 927, 930 (1st Cir. 1992). Shredded paper placed in a trash container is considered trash, and is afforded no 9

18 unique protection based on an individual s intent behind shredding it. Id. at 928. The shredding of the paper is akin to the use of code in a written letter; the individual wishes to keep the content of the document secret, but the subsequent reassembling or decoding of the messages by the police presents no constitutional infringement. Id. at 930. Discarding garbage in the trash presents obvious risks of public discovery, and the process of shredding minimally reduces this risk. Shredding garbage and abandoning it in an area readily accessible to the public, merely represents a failed attempt to permanently secure and keep private its contents. Id. Although a person s intent in shredding documents may be to render their content indecipherable, an individual cannot use this intent to establish a reasonable belief that the content of shredded papers will remain private unless additional care is taken to safeguard the shreds themselves. Id. With the courts declining to treat discarded shredded documents different from any other rubbish found in trash cans, the same rules set forth in Greenwood governing the standards for establishing reasonable expectations of privacy in trash apply. Petitioner shredded the contested documents in what certainly constituted an affirmative attempt to keep their content concealed from law enforcement and the public as a whole. [R. 2]. However, that intent falls short of establishing the existence of a reasonable subjective belief of the continued privacy of the contents of his trash can. Despite the effort to destroy the papers, the Drug Enforcement Administration (D.E.A.), with the assistance of the Department of Justice s Forensic Services Department, reassembled the shreds and retrieved the content, [R. 2], and did so without violating petitioner s constitutional rights. B. Society does not recognize as reasonable an individual s subjective belief that the Fourth Amendment protection includes trash left on a public street with the express purpose of transferral to a third-party. 10

19 Even if the Court finds that an individual possesses a subjective expectation of privacy, society must still be prepared to recognize that belief as objectively reasonable for Fourth Amendment protections to apply. Ciraolo, 476 U.S. at 1. As Greenwood explicitly lays out, when persons expose their garbage to the public, society is not willing to accept their expectations of privacy as reasonable. 486 U.S. at 40. Petitioner may have intended for the contents of his trashed documents to remain private, but his actions only constitute failed attempts at maintaining privacy whose failure can only be attributed to the conscious acceptance by the actor of obvious risk factors. Scott, 975 F.2d at 930. The courts have consistently found that society will not recognize as reasonable Fourth Amendment privacy protections for trash abandoned to third parties for collection in areas accessible to the public. Greenwood, 486 U.S. at 41. In this case, the District Court ruled consistently with years of federal jurisprudence and this Court s prior holdings in finding no violation of petitioner s Fourth Amendment rights in the recovery and subsequent reconstruction of the shredded documents in question. II. FRAZIER S ACTIVITY WITH PETITIONER S CO-CONSPIRATOR DID NOT CREATE A CONFLICT OF INTEREST AS TO PETITIONER SUCH THAT IT VIOLATED PETITIONER S SIXTH AMENDMENT RIGHT TO COUNSEL. The Sixth Amendment to the United States Constitution states, in pertinent part, that [i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence. The right to counsel is a fundamental right. Cuyler v. Sullivan, 446 U.S. 335, 343 (1980) (citing to Argersinger v. Hamlin, 407 U.S. 25, (1972)). As stated in U.S. v. Cronic, 466 U.S. 648, (1984), the purpose of this right is not only to assure that individual defendants are convicted only after the prosecution s case has survive[d] the crucible of meaningful adversarial testing, but also to ensure that the trial process as a whole is reliable. 11

20 When the question arises as to the effectiveness of counsel, the Supreme Court of the United States expressed the following framework for analysis: As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct (1984). There is an exception to this general rule. We have spared the defendant the need of showing probable effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. (citation omitted). But only in circumstances of that magnitude do we forego individual inquiry into whether counsel s inadequate performance undermined the reliability of the verdict. (citation omitted). We have held in several cases that circumstances of that magnitude may also arise when the defendant s attorney actively represented conflicting interests. Mickens v. Taylor, 535 U.S. 162, 166 (2002). In United States v. Finlay, 55 F.3d 1410, 1415 (9th Cir. 1995), the court emphasized that the exception is a relaxation of the Strickland standard: His burden is less than showing actual harm; he must show actual conflict. This Court has placed further limitations on this standard by stating that because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, (citation omitted), the burden rests on the accused. United Stated v. Cronic, 466 U.S. 648, 658 (1984). In the case at bar, petitioner is unable to demonstrate that there were circumstances of sufficient magnitude to create an actual conflict of interest. As noted by the district court, petitioner s interests and Mr. Frazier s interests were quite perfectly aligned. (R. 6). At best, petitioner is able to show only a theoretical division of loyalty ; this is not enough to allow petitioner to take advantage of the Cuyler exception. Furthermore, petitioner has failed to show, even were such conflict to exist, that it adversely affected his representation. As such, petitioner is unable to meet even the relaxed standard, rending petitioner s success under the Strickland 12

21 standard highly unlikely. Because petitioner is unable to make the requisite showing under either test, the Thirteenth Circuit s denial of petitioner s appeal should be affirmed. A. Petitioner is unable to demonstrate that Larry Frazier s activity constituted an actual conflict of interest as required under the Cuyler exception to the Strickland test for Sixth Amendment violations. In Cuyler v. Sullivan, 446 U.S. 335 (1980) this Court addressed what a defendant must show to establish a violation of the Sixth Amendment. In that case, the defendant had been indicted along with two co-defendants for two counts of first-degree murder. At trial, all three defendants were represented by two privately retained attorneys. During the trial, neither the defendants nor the attorneys contested the attorneys representing all three defendants as a possible conflict of interest. The defendant was subsequently convicted, while his co-defendants were acquitted. On appeal, defendant claimed that the dual representation had created a conflict of interest because his attorneys were serving two mutually exclusive interests. The two attorneys testified as to their respective roles in the case: one claimed that the two had been associate counsel while the other stated that he had acted only as assistant at defendant s trial. The court reversed the defendant s conviction on the grounds that the defendant had shown a possible conflict of interest which was sufficient to establish a violation of his Sixth Amendment right to counsel. However, on writ of certiorari, this Court stated that, [i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer s performance. Id. at 348. (emphasis added). While the various circuits expand the definition of an actual conflict of interest in various ways, all agree that in order to satisfy the Cuyler exception, a defendant must provide proof 13

22 beyond a mere indication of a possible conflict of interest. Cuyler addressed a conflict of interest in the context of a single attorney representing multiple defendants. In such an instance, there is obviously concern that the interests of one defendant will be sacrificed to the interests of another. However, the Court specifically stated that until a defendant produced evidence that his attorney actively represented conflicting interests, he had not laid the foundation for constitutional violation. Id. at 350. Such concern was also addressed in Finlay where the court specifically addressed the possibility of an actual conflict of interest when a single attorney represents multiple defendants. In that case, Finlay, an individual, was tried jointly with his company for conspiring to defraud the United States. Finlay s counsel attended negotiations with United States attorneys on behalf of both defendants and executed waivers on their behalf pursuant to the negotiations. On appeal, defendant Finlay contested his conviction on the ground that his attorney had an actual conflict of interest in representing both defendants. However, in finding that no such conflict was present, the court noted that the defendants had the same interests in being exonerated, and neither had been sacrificed to the interests of the other. Petitioner has not shown that Frazier was acting as counsel for any other person or sacrificing petitioner s interests to those of another person. Frazier was not the attorney for petitioner s unindicted co-conspirator, nor was Frazier acting in a pro se capacity. The only indication that Frazier was in any way cautious about his representation is that Frazier apparently appeared harried and nervous in the trial court. (R. 6). However, as an attorney, Frazier was well within his own rights and those of his client to manifest the signs of stress that are customary in the profession. 14

23 This Court again addressed what constitutes an actual conflict of interest in Mickens v. Taylor. The Mickens court stated that an actual conflict of interest meant precisely a conflict that affected counsel s performance as opposed to a mere theoretical division of loyalties. Id. at 171. Petitioner has also failed to meet this standard because he has failed to produce concrete evidence that counsel was conflicted, offering instead only speculative hyperboles in an attempt to have his conviction overturned. Petitioner states that at some point during petitioner s case, Frazier became the subject of an investigation. (R. 5). Two days after petitioner s conviction for the manufacture of methamphetamine manufacture and distribution and conspiracy charges, Frazier s indictment for money laundering was unsealed. (R. 5). There is nothing to indicate that Frazier was aware of either the investigation or the indictment 1 prior to its being unsealed, eviscerating any substantiated foundation for the argument that Frazier was so conflicted or distracted that he was unable to represent petitioner. In Armienti v. United States, 313 F.3d 807, 811 (2d Cir. 2002), the court described an actual conflict of interest as a situation in which during the course of representation, the attorney s and defendant s interests diverge with respect to a material factual or legal issue or to a course of action. In that case, the defendant alleged that his attorney had an actual conflict of interest because the attorney had come under investigation for a connection to a crime family by the same office prosecuting defendant; had failed to prepare for trail or conduct a vigorous defense; and had failed to cross examine a key witness. In affirming the trial court s finding that the defendant had failed to establish an actual conflict of interest, the court noted that defendant had not shown divergent interests and had only offered speculative evidence to support his 1 FED. R. CRIM. P. 7(e)(4): Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons. 15

24 claims. In specifically addressing the defendant s claims as to his attorney s investigation, the court noted that defendant had not shown that his attorney was even aware that he was under investigation at the time. Petitioner s claims also fail under this standard because petitioner has failed to explain how his interests and those of Mr. Frazier were divergent. Indeed, the district court noted that the interests of two were quite perfectly aligned. (R. 6). Frazier s interests lay in protecting the defendant from conviction: a failure to find petitioner guilty ensured that Frazier and the coconspirator similarly protected because petitioner was the linchpin of the entire operation. Moreover, in light of the fact that there is no reason to believe that Mr. Frazier was even aware that he was about to be indicted when he was trying case, even if the interests were divergent, they could not yet have given rise to an actual conflict of interest for Frazier. In Blake v. United States, 723 F.3d 870 (7th Cir. 2013), the court offered yet another interpretation of what constitutes an actual conflict of interest. In that case, counsel was being investigated by the same office which was prosecuting defendant; defendant alleged that counsel was sacrificing his defense in order to curry favor for his own personal matter. The court stated that an actual conflict of interest can arise only where there is a danger that [counsel] would ineffectively represent his client because of fear that authorities might become aware of the attorney s own misconduct if he undertook effective representation. Id. at 889 n.10 (citing to United States v. Balzano, 916 F.2d 1273)(7th Cir. 1990) (Holding that defendant had failed to establish an actual conflict of interest under this standard because the attorney s crimes were not related to those of the defendant). In affirming the lower courts finding, the court stated that because the investigation was fully known to the court and because defendant had failed to 16

25 produce sufficient evidence upon which to prove his claims, there was no actual conflict of interest. The standard garnered from Blake, is best understood in the context of a related test expressed in United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990). Under this test, courts examine whether the attorney s misconduct is sufficiently related to the defendant s crimes to give rise to a conflict of interest. If the attorney s crimes are not sufficiently related, there are no reasonable grounds for fearing that the attorney s misconduct will be discovered by representing the defendant and thus no reasonable grounds for fearing that an attorney will provide ineffective assistance to protect this misconduct. In Balzano, defendant was tried for extortion, witness intimidation, and RICO violations. After conviction, he argued that he had been ineffectively represented because immediately prior to trial his attorney was under investigation for criminal tax matters. In finding that the defendant had not alleged an actual conflict of interest, the court noted that the attorney s misconduct was completely unrelated to the defendant s crimes and did not present a sufficient conflict to reverse. Id. at This test was more fully explained in United States v. Lopesierra-Giutierrez, 708 F.3d 193 (D.C. Cir. 2013). In that case, defendant was tried and convicted for trafficking in cocaine. On appeal, defendant maintained that his trial counsel suffered from an actual conflict of interest because he had received laundered funds in payment for his legal fees. Although the issue was addressed in the context of whether or not defendant could validly waive his rights to conflict free counsel, the court addressed the relatedness of the defendant s and counsel s conduct. The court began by stating that there was no basis for claiming that attorneys who are the subject of criminal investigations are incapable of rendering adequate constitutional representation, although there were many circuits who had rejected this very proposition. Id. at 201. It noted that 17

26 when an attorney is or is likely to be the subject of a criminal investigation, courts worry that he might attempt to curry general favor with the government by pulling punches. Id. The court went on to hold that because the attorney s relation to the crime at issue was so tenuous and the information could be obtained without ever implicating the attorney s misconduct, there was no actual conflict of interest. Id. at 200. Petitioner s claims fail under both of these standards. First, the standard expressed in Blake presupposes that the interests of the two parties conflict, causing the attorney to value his own interests above those of his client. However, Frazier only stood to gain from effectively representing petitioner because, in doing so, he protected his own activities from detection. Not only has petitioner failed to show that a danger existed, the record indicates that Frazier was a very competent defense attorney. Frazier vigorously argued several motions, including a motion to suppress which involved offering various exhibits and examining witnesses. (R. 3-4). Only after this motion was denied and petitioner was tried before a jury of his peers with the effective assistance of counsel was petitioner was rightfully convicted at trial. Secondly, Frazier s misconduct was only tangentially related to defendant s crimes. Defendant was on trial for cooking and distributing methamphetamine; Frazier was indicted for laundering the funds of an unindicted co-conspirator. Frazier s relationship with the coconspirator was not the subject of a known investigation, nor was it necessary to address during defendant s trial for unrelated charges. In vigorously defending petitioner, Frazier focused his efforts on forcefully questioning the tactics of the police. (R. 3-4). Further, while the record does not disclose his actual court strategy, Frazier could also easily question and cross examine witnesses regarding petitioner s activities at his place of business without addressing his own relationship to the scheme. 18

27 B. Even if petitioner were able to fulfill the first prong of the Cuyler exception, he is unable to fulfill the second prong which requires a showing that an actual conflict of interest adversely affected counsel s representation. Even assuming that petitioner could show an actual conflict of interest, petitioner is also unable to satisfy the second prong of the Cuyler test because he is unable to show that this alleged conflict adversely affected his lawyer s performance. In Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993), defendant contested his conviction on the grounds that he had been denied his Sixth Amendment right to counsel after he entered into a contingency fee contract with his attorney under which his attorney got a bonus only if defendant was acquitted or otherwise found not guilty. The court stated that this created an impermissible incentive for the attorney to approach the defendant s case with an all or nothing mindset, rather than allowing negotiation. Id. at The court declined to reverse the defendant s conviction, however, on the grounds that the defendant had failed to show an adverse affect. The court stated that a defendant must establish that an actual lapse in representation, Cuyler, 446 U.S. at 336, 100 S.Ct. at 1711, resulted from the conflict. Id. at 309. The court analyzed the case under a test previously adopted by the Third Circuit and First Circuit which required the following: [A defendant first] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney s other loyalties or interests. Id. at 309. (Citing to United States v. Gambino, 864 F.2d 1064, 1071 (3d Cir. 1988)). It concluded by stating that the defendant failed to show any other plausible alternative that would have had succeeded, such that defendant was not entitled to a reversal. 19

28 This standard was also addressed in Stoia v. United States, 109 F.3d 392 (7th Cir. 1997). In that case, the court stated that if there is an actual conflict of interest, it has an adverse effect when there is a a reasonable likelihood that counsel s performance somehow would have been different but for the conflict of interest. Id. at 395. In noting that the analysis of fact and law associated with Cuyler exception intertwine, the court averred to the lapse in representation contrary to the defendant s interest test noted in Winkler. Id. at 397. In finding that the defendant had failed to show that there was any adverse effect on his defense, the court noted that the defendant had failed to establish that proposed alternative methods would have affected the outcome of the case, had failed to established a connection between the alleged actual conflict of interest, and had failed to disprove the ethical soundness of the strategy actually pursued at trial. Id. at Just as petitioner failed to establish that there was an actual conflict of interest, so too has he failed to establish that any supposed conflict of interest adversely affected counsel s representation. In the record, petitioner only stated that Frazier had a conflict; at no point does petitioner address what impact such a conflict had on Frazier s representation or even whether it had an impact at all. Petitioner does not allege an alternative strategy that might have been pursued by counsel or that might have conflicted with the strategy counsel actually chose, as required under Winkler, nor can petitioner show that there was a reasonable likelihood that Frazier would have somehow represented him differently if the alleged conflict had not existed. The record indicates that for from petitioner experiencing a lapse in representation, he enjoyed a vigorous defense that only failed because petitioner was truly guilty. As such, petitioner has failed 20

29 altogether to address the second prong of the Cuyler exception, and as such, has failed to show that he is entitled to the lesser burden when counsel acts under an actual conflict of interest.

30 CONCLUSION For the foregoing reasons, respondents respectfully request that this Court affirm the decision of the Court of Appeals affirming the District Court s denial of defendant s motion for a new trial. Respectfully submitted, 22