Supreme Court of the United States

Transcription

1 Team 36 In The Supreme Court of the United States October Term 2014 Robert Black, Petitioner, v. United States of America, Respondent. On Writ of Certiorari From the United States Court of Appeals For the Thirteenth Circuit

2 Table of Contents Table of Authorities... ii Question Presented... 1 Statement of Jurisdiction... 2 Statement of Facts... 3 Summary of the Arguments... 6 Argument... 8 I. Mr. Black, having shredded his personal documents and disposed of them in a private container contracted through a document disposal company had a reasonable expectation of privacy under the Fourth Amendment and has protection from warrantless search and seizures. 8 A. Mr. Black demonstrated he had a reasonable expectation of privacy in his documents he placed in his personal Paper Fortress recycle container II. The secret conspiratorial criminal activity by Mr. Black s trial counsel gave rise to a conflict of interest that deprived Mr. Black of his Sixth Amendment right to counsel at trial. 14 A. Mr. Frazier s participation in Mr. Redmond s money laundering scheme did constitute as a conflict of interest and it adversely affected his performance during Mr. Black s criminal trial Conclusion i

3 TABLE OF AUTHORITIES Cases California v. Greenwood, 486 U.S. 35 (1988)... 10,13, 14 Cuyler v. Sullivan, 446 U.S. 335 (1980) Gideon v. Wainwright, 372 U.S. 335 (1963)... 6, 14 Glasser v. United States, 315 U.S. 60 (1942) Katz v. United States, 389 U.S 347 (1967)... 8, 9, 10, 11, 13 Olmstead v. United States, 277 U.S. 438 (1928)... 8 Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) Smith v. Maryland, 442 U.S 735 (1979) United Sates v. Dunkel, 900 F.2d 105 (7 th Cir. 1990) United States v. Carpenter, 769 F.2d 258 (5th Cir. 1985) United States v. Chadwick, 433 U.S 1 (1977) United States v. Hendrick, 922 F.2d 396 (7th Cir. 1991) United States v. Jacobsen, 466 U.S 109 (1984) United States v. Miskinis, 966 F.2d 1263 (9 th Cir. 1992) United States v. Ross, 456 U.S. 798 (1982) United States v. Strickland, 466 U.S. 668 (1984) United States v. Vaquero, 997 F.2d 78 (5th Cir. 1993) Wolf v. Colorado, 338 U.S 25 (1949) Wood v. Georgia, 450 U.S. 261 (1981) ii

4 Other Authorities U.S Patent Number A (issued Aug. 3, 1909) "Code of Federal Regulations 12 C.F.R (2011)." 17 iii

5 Question Presented I. Does the recovery and reconstruction of shredded documents from an unlocked thirdparty contractor s receptacle on a public street violate the original owner s right under the Fourth Amendment? II. Does the secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client give rise to a conflict of interest such that it deprives the client of his Sixth Amendment right to counsel at trial? 1

6 Statement of Jurisdiction Petitioner Robert Black was convicted in the U.S District Court for the District of Jensen in August The Mr. Black filed a timely appeal and judgment by the U.S Court of Appeals for the Thirteenth Circuit was entered in favor of the respondent. Petitioner was granted a writ of certiorari by the Supreme Court of the United States. 2

7 Statement of Facts Throughout spring of 2011, the Drug Enforcement Administration (DEA) had a hunch that the petitioner Robert Black was possibly involved in a methamphetamine operation. R. 1: The DEA thought that Mr. Black was using his legitimate asbestos and lead paint removal business A&L Abatement (A&L) as a front for a methamphetamine operation. R. 1: To gain evidence, DEA agent Frank Schroder put the Mr. Black under twenty-four hour surveillance for weeks. R. 1:17. In addition to the surveillance, Agent Schroder collected Mr. Black s trash from the alleyway behind A&L and from Mr. Black s household garbage. R. 1: None of the collections Mr. Black s garbage produced evidence to substantiate the DEA s hunch that Mr. Black was involved in criminal activity. R. 1:20. On July 6, 2011, while under continued twenty four hour surveillance by the DEA and Agent Schroder, Mr. Black took out his Paper Fortress, Inc. paper container to the curb of A&L. R.1: Paper Fortress Inc. is a document storage and disposal company that deals with sensitive and personal information of companies. R. 3: For a monthly fee, Paper Fortress provided weekly pickup for documents to be shredded and recycled. R The Paper Fortress container contained an attached lid and was opaque and was in no way visible to the public. R. 4: 6-8. Agent Schroder observed Mr. Black wheeling the secured Paper Fortress container to the curb. When Mr. Black left his place of business, Agent Schroder seized all of the contents of the container. R.1-2: 23-26, 1-3. Agent Schroder did not obtain a search warrant to seize Mr. Black s private documents. The seized documents consisted of both fully intact documents and shredded documents. R.2: 6-8. The DEA did not find any useful information in the intact documents. The shredded 3

8 documents did provide useful information to the DEA, however it took extensive manipulation and the use of scanning and computer software to access this information. R. 2: The information from the shredded documents alluded that Mr. Black s company was buying chemicals that could have been used in the operation of a methamphetamine lab. R. 2: Mr. Black s shredded documents also referenced business and tax records of small companies he had a controlling interest in. R. 3: 1-3. The information from the shredded documents was used to obtain a search warrant of A&L offices where the DEA was able to find strong evidence to implicate Mr. Black and eventually did result in the DEA finding a methamphetamine operation. R. 3: In August 2012, Mr. Black was convicted in the U.S District Court for the District of Jensen for violation of the Federal Controlled Substance Act and other conspiracies with indicted and unindicted co-conspirators. R. 3:12-14, 4: Mr. Black s trial counsel was Larry Frazier. R. 3: 15. Ten days after his trial, Mr. Black moved for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. R. 4: After his conviction Mr. Black became aware that during his trial, Mr. Frazier had been subject to a Suspicious Activity Report (SAR) that was initiated by the U.S Department of the Treasury. R. 5: 3-8. The basis for the SAR was Mr. Frazier s involvement with Jefferson Redmond. Mr. Frazier invested in small businesses for Mr. Redmond, however he also participated in a money laundering scheme for Mr. Redmond s methamphetamine operation. R. 5: Shortly after Mr. Black had been convicted; Mr. Frazier was indicted based on the SAR investigation in the Eastern District of Louisiana. R. 5: 5-7. The Treasury department claimed that it did not know of Mr. Frazier s connection with Mr. Black and his case. The DEA subsequently claimed that they did not know of the Treasury department s investigation of Mr. Fraizer or the filing of the SAR. R. 5:

9 Mr. Black s new counsel filed a motion for a new trial because of Mr. Frazier s conflict of interest that persisted through Mr. Black s trial. R. 5: The district court was not convinced that a conflict existed, even though they noted that Mr. Frazier did appear harried and uncharacteristically nervous. R. 6: The district court was also unwilling reconsider the motion to suppress the warrantless seizure of Mr. Black s trash. R. 6:21. Mr. Black appealed both issues to the U.S Court of Appeals for the Thirteenth Circuit, where the court was unwilling to extend a reasonable expectation of privacy to Mr. Black s private documents and did not find a conflict of interest in Mr. Frazier s representation of Mr. Black. R. 6:

10 Summary of the Arguments A man s trash is not the police s treasure. The U.S Court of Appeals for the Thirteenth Circuit was incorrect in holding that Mr. Black Fourth Amendment rights were not violated when documents were seized from his private document container. When the petitioner Robert Black wheeled his privately owned document container to the curb of his business to be collected, he was not abandoning his documents. Mr. Black expected to transfer ownership to Paper Fortress. He was not giving the world and let alone the Drug Enforcement Agency (DEA) carte blanche license to take the contents of the container. Additionally, Mr. Black had a reasonable expectation of privacy in these documents for two reasons. Generally, an individual possesses a reasonable expectation of privacy when they can show that they had a subjective expectation of privacy and that this expectation is one that society was willing to accept as reasonable. Mr. Black s subjective expectation of privacy was two-fold. First, Mr. Black placed his documents in a secured, opaque container that was not open to the public. Additionally, Mr. Black had shredded documents he had wanted to keep private and was sending these shredded documents to be further shredded. It is expected when a document is shredded it would remain as such and not be manipulated and reconstructed by others and this expectation is one that society has accepted. Our society has also accepted that lawyers in criminal courts are necessities, not luxuries. Gideon v. Wainwright, 372 U.S. 335, 441 (1963). When an attorney undergoes the representation of a client, the client presumes unless otherwise informed, that their legal counsel is free of any conflicts of interest. When legal representation does operate under a conflict of interest they are unable to effectively advocate for the best interest of their clients. The Thirteenth Circuit of Appeals erred when it held that Mr. Black s legal counsel during his initial 6

11 trial operated free from a conflict of interest. When making a claim of conflict of interest the party bringing the claim must show two things. First, they must establish that counsel actively represented conflicting interest and that an actual conflict of interest adversely affected his lawyer s performance. Mr. Frazier s representation of Mr. Black did constitute as a conflict of interest because Mr. Fraizer was serving two masters during his representation of Mr. Black. Mr. Fraizer s Treasury investigation, his Suspicious Activity Report and ultimately his indictment were the main master that Mr. Fraizer was serving under. Mr. Black as a result to Mr. Fraizer s divided loyalties had his Sixth Amendment rights violated. 7

12 Argument I. Mr. Black, having shredded his personal documents and disposed of them in a private container contracted through a document disposal company had a reasonable expectation of privacy under the Fourth Amendment and has protection from warrantless search and seizures. The Fourth Amendment protects individuals to be secure in their persons, papers, houses and effects from unreasonable search and seizure from the government. Olmstead v. United States, 277 U.S. 438, 464 (1928). In this case, Mr. Black had a right to be protected from unwarranted searches and seizure of his private shredded documents. Mr. Black s Fourth Amendment rights were violated by Drug Enforcement (DEA) Agent Frank Schroder when he seized shredded documents from Mr. Blacks private recycle container without a warrant. Mr. Black s invocation of the Fourth Amendment is appropriate because Mr. Black maintained a reasonable expectation of privacy in his private documents through his actions of both shredding them and securing them in a privately contracted third party container. A. Mr. Black demonstrated he had a reasonable expectation of privacy in his documents he placed in his personal Paper Fortress recycle container. When Mr. Black wheeled his Paper Fortress container to the curb, he maintained a reasonable expectation of privacy with the contents of that privately owned recycling container. This Court has upheld that a reasonable expectation of privacy will be supported if a there is an expectation that a person s actions were to remain private. Katz v. United States, 389 U.S 347, 361 (1967) (Harlan, J., concurring). This expectation of privacy extends to actions that might be accessible or visible to the public, so long as there was an expectation that what he wanted to keep private remained private from the rest of the world. Id. at In Katz, Mr. Katz went into a public phone booth to place an illegal bet with his bookie. Id Unbeknownst to Mr. 8

13 Katz, the Federal Bureau of Investigation (FBI) had placed a wiretap on the outside of the phone booth to intercept his calls. Id. When charges were brought against him, Mr. Katz argued that even in a public phone booth, he maintained a reasonable expectation of privacy. The government contended however that because the booth was made out of glass and visible to the public, that Mr. Katz did not have a reasonable expectation of privacy. Id This Court agreed with Mr. Katz s analysis and focused on what he (Mr. Katz) sought to exclude when he entered the booth was not the intruding eye--it was the uninvited ear. Id Justice Harlan s concurrence set out a two prong subjective and objective standard of how to interpret whether a person had a reasonable expectation of privacy. The first is whether the individual, by his conduct, has exhibited an actual expectation of privacy... The second... is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable. Id Seeing that this Court was willing to recognize Mr. Katz reasonable expectation of privacy for a private phone conversation, this Court again should recognize the reasonable expectation of privacy in Mr. Black s private shredded documents. 1. Mr. Black maintained a subjective expectation of privacy with his shredded documents. Though there is a sharp divide among the courts on how to approach the reasonable expectation of privacy in garbage, the Fourth Amendment only allows for the warrantless searches of an individual trash when it can be shown a person does not have a reasonable expectation of privacy. USCS Const. Amend. 4 Art. 9. This Court in California v. Greenwood gave four reasons why the respondent in that case did not manifest a reasonable expectation of privacy. California v. Greenwood, 486 U.S. 35, 38 (1988). First, because respondent left his garbage in an area easily accessible to the public he surrendered any claim of Fourth Amendment protection. Id. This Court reasoned that it is common knowledge that 9

14 plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public as well as to the prying eyes of the trash collector and therefore the respondent did not have a reasonable expectation of privacy. Id Second, this Court reasoned that once garbage was exposed to the public, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Id. 40. Third, this Court did not find the respondents claim of privacy because he was going to convey the trash to a third party and thus a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Id. quoting Smith v. Maryland, 442 U.S 735, (1979). Finally, the majority of the Court looked towards the vastly different opinions among the different circuits and state courts about the reasonable expectation of privacy and used this as evidence that society does not find a privacy interest for the respondent. Id The Seventh Circuit has decided a number of cases that denied a reasonable expectation of privacy based on the access of the public to the trash. In United States v. Dunkel a trash dumpster of an office building that was exposed to the public could be searched without a warrant. United Sates v. Dunkel, 900 F.2d 105 (7 th Cir. 1990). In United States v. Hendrick, the court decided that the location of a trash container on the curb of the sidewalk containing plastic garbage bags showed there was no reasonable expectation of privacy because the proximity of the garbage cans did not have fence or barrier around them. The court reasoned that the lack of barriers meant that there was no reasonable expectation of privacy with the garbage. United States v. Hendrick, 922 F.2d 396 (7th Cir. 1991). Greenwood and the Seventh Circuit cases all show the inclination of courts to allow for warrantless searches when garbage is exposed to the public in any sense. However, these cases 10

15 fail to acknowledge that what one seeks to keep private, even if it is accessible to the public must be constitutionally protected. United States v. Katz, 389 U.S 347, (1967). The "Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." The fact that a container contains contraband, which indeed it usually does in such cases, has never altered (this Courts) analysis. United States v. Ross, 456 U.S. 798, (1982). Additionally, In United States v. Chadwick, this Court emphasized that a fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests. United States v. Chadwick, 433 U.S 1, 11 (1977). citing Wolf v. Colorado, 338 U.S 25, 27 (1949). Applying the logic in Katz, Mr. Black maintained a reasonable expectation of privacy in his shredded documents for two reasons. First, Mr. Black took extensive steps to secure his private documents so they would not be readily accessible to the world. Mr. Black did not leave his documents in a plastic bag on the corner waiting to be picked up as the respondent in Greenwood did. Nor did Mr. Black leave these documents in a public office dumpster as in Dunkle. Mr. Black secured his documents in privately contracted Paper Fortress container. The container had a lid on it and inquiring minds would have to lift the lid and dig through the container to get access to the intact documents. Thus the concerns that this Court had in Greenwood are not present in Mr. Black s situation. Granted, Mr. Black did not construct any physical barrier to keep his trash container behind as the court in Hendrick would have found persuasive for a reasonable expectation of privacy, however Mr. Black did provide a significant barrier to the public from snooping when he shredded the documents. It took the police extensive manipulation and reconstruction of the shredded documents to have access to the information that was contained in them. The average passerby would not have the advanced digital scanning 11

16 software that the DEA utilized to access the information in shredded documents. Thus, Mr. Black is able to show through his actions of securing his documents in a private secured and shredding documents, he maintain an expectation that these documents were not easily accessible to the world and not be subjected to a warrantless search. 2. Society has been willing to recognize Mr. Black s action of securing his privacy in his private documents by shredding them as objectively reasonable. When Mr. Black shredded his documents and then placed them in his private container, he was exercising an accepted societal norm. The very nature of shredding documents is to insure privacy of the shredded documents. The general society has recognized this as reasonable since the first patent was filed for a paper shredder in U.S Patent Number A (issued Aug. 3, 1909). Society has continued to find the need for document shredding as a reasonable one because of companies like Paper Fortress are hired nationwide to secure the privacy of peoples documents. The majority opinion in Greenwood had difficulties finding the societal acceptance in the privacy of plastic trash bags. Looking towards the vast number of court s that agreed with their conclusion, the majority in Greenwood essentially thought that once trash is in a plastic bag, society has accepted that it was either susceptible to the eyes of the public, or that it was going to be accessed by the trash collector. In either situation, society did not hold an expectation of privacy. California v. Greenwood, 486 U.S. 35, 40-41(1988). Justices Brennan and Marshall vigorously dissented. They reasoned the scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior. Id. 46. The dissent argued that the rule derived from prior cases is that any container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant. Id. 46. quoting United States v. 12

17 Jacobsen, 466 U.S 109, 120 (1984). The dissent, not focusing on what container the trash is placed in, held that there was an expectation of privacy. The dissent stated, [a] trash bag... is a common repository for one's personal effects and is, therefore, inevitably associated with the expectation of privacy. Id. 50. Almost every human activity manifests itself in waste products. Id. 43. As a result of our daily lives being reflected in our trash, the dissent found no difficulty in recognizing as reasonable an individual's expectation of privacy in the most private of personal effects sealed in an opaque container and disposed of in a manner designed to commingle it imminently and inextricably with the trash of others. Id. 55. Just as the dissent in Greenwood found that society is willing to accept the privacy in plastic trash bags, society is willing to accept the privacy of shredded documents that are placed in a private container. Mr. Black used a paper shredder to dispose of documents that he did not want to be exposed to the public which included the DEA. R. 2: 5-8. This action should have been enough to place any to animals, children, scavengers, snoops, and other members of the public on notice that Mr. Black meant to keep his documents private. Yet Mr. Black went one step further to ensure his privacy. Mr. Black contracted with Paper Fortress to further shred his documents and then dispose of them. R. 4: 5-8. These documents were not intended to be reconstructed through the enhanced methods of the DEA. The dissenters in Greenwood would presumably find very troubling that an individual who takes steps such as Mr. Black to keep documents private, who shows that he has a reasonable expectation of privacy and it is an expectation that society readily accepts is now subject to the unreasonable search and seizure of his private and personal documents by the DEA. 13

18 II. The secret conspiratorial criminal activity by Mr. Black s trial counsel gave rise to a conflict of interest that deprived Mr. Black of his Sixth Amendment right to counsel at trial. Lawyers in criminal courts are necessities, not luxuries. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense. Cuyler v. Sullivan, 446 U.S. 335, (1980). Going hand in hand with the right to counsel is the right that legal representation will operate free from any conflict of interest. Wood v. Georgia, 450 U.S. 261, 271 (1980). Mr. Black rights were violated when his trial attorney, Mr. Frazier represented Mr. Black even though he was under suspicion by the Treasury department for money laundering with a co-conspirator of Mr. Blacks. Mr. Frazier operated under a conflict of interest because he had divided loyalties at the time of Mr. Black s representation, violating both moral and ethical standards of the legal fields. In order to establish a conflict of interest claim two things need to be established. First, claimant must show that counsel actively represented a conflicted interest. Second, an actual conflict of interest must adversely affect a lawyer s performance. A. Mr. Frazier s participation in Mr. Redmond s money laundering scheme did constitute as a conflict of interest and it adversely affected his performance during Mr. Black s criminal trial. When Mr. Black retained Mr. Frazier as his legal counsel, Mr. Black had no knowledge that his attorney was operating under a conflict of interest. This Court has held in Cuyler v. Sullivan an attorney has ethical obligation to avoid confliction representation and to advise the court promptly when a conflict of interest arises during the course of trial Cuyler v. Sullivan, 446 U.S 335, 344 (1980). The ABA Model Rules of Professional Conduct and the Disciplinary Rules of the ABA Model Code of Professional Responsibility state that an attorney may not represent a client whose interests are adverse to those of another client or the attorney himself. 14

19 United States v. Vaquero, 997 F.2d 78, 91 (5th Cir. 1993). A conflict of interest persists when legal counsel places himself in a position amenable to divided loyalties and when legal counsel is tainted by his own personal involvement in the conspiracy. United States v. Carpenter, 769 F.2d 258, 263 (5th Cir. 1985).; United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993). To establish a violation of the Sixth Amendment right to counsel based on conflict of interest, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer s performance. Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994). The adverse effect element does not require a showing of prejudice; it does not require a showing the conflict had an effect on the outcome of the proceeding. Glasser v. United States, 315 U.S. 60, 62 (1942). In United States v. Strickland, this Court explained in a Sixth Amendment claim based on a conflict of interest, once it has been established that an actual conflict adversely effected counsel s representation, prejudice is presumed and the petitioner is entitled to relief. United States v. Strickland, 466 U.S. at 692 (1984). When assessing if an action adversely affected this Court described an adverse effect of an actual conflict to include circumstances where a conflict impaired the defense, influenced counsel s strategic decisions, or precluded counsel from pursuing the interests of his client single-mindedly. Wood v. Georgia, 450 U.S. 261, (1981); United States v.sullivan, 446 U.S An actual conflict of interest adversely affected counsel s performance if it likely affected counsel s performance with respect to particular aspects of the case. United States v. Miskinis, 966 F.2d 1263, 1268 (9 th Cir. 1992). Mr. Fraizer did have a conflict of interest when he represented Mr. Black during his trial. By representing Mr. Black, who was a co-conspirator to the man he had helped in a money laundering scheme, Mr. Frazier was serving two masters. The record states that Mr. Frazier was 15

20 subject to a Suspicious Activity Report through the Treasury department that led to an indictment for money laundering. The primary master that Mr. Frazier was serving during his representation of Mr. Black was his own interest. According to The Code of Federal Regulations, the filing of a SAR puts banks and other Federal agencies on notice of individual when identified who have committed banking crimes and their patterns. It also gives notice to parties who are under investigation. Code of Federal Regulations 12 C.F.R (2011). Though the record states that the different agencies claimed they did not know about the subsequent agencies involvement with Mr. Frazier, Mr. Frazier did know. He knew that he was under suspicion by the Treasury while defending a client with the DEA. He knew that the man he was laundering money for was involved in a methamphetamine operation. The record is unclear on whether Mr. Frazier knew the connection between Mr. Redmond and Mr. Black; however it is clear that Mr. Frazier knew that Mr. Black was being convicted because his alleged involvement with a methamphetamine operation. Mr. Frazier did not tell his client of the conflict. Mr. Black had to put two and two together after trial and by that time, the damage was already done. Mr. Frazier was able to serve his best interest by not zealously representing Mr. Black and potentially have a bargaining position with the Treasury department. This Court has made it clear to establish a conflict of interest claim that a there needs to be an actual conflict. Mr. Frazier s representation of Mr. Black while having constructive knowledge that the government was investigating his own illegal actions constituted as an conflict. It would have served Mr. Frazier s interest to not presue all claims against Mr. Black. Additionally, Mr. Frazier gave no notice to his client that he was facing an investigation and what it would mean for Mr. Black s own litigation. The conflict of interest affected Mr. Frazier through the manifestation of an uncharacteristically nervous and harried appearance during 16

21 trial. Though the record does not give specific details, it can be presumed that if it was enough to be brought to the attention of the judge in some form, it was enough to hinder representation. For these following reasons Mr. Black was denied his Sixth Amendment rights due to his attorneys conflict of interest. 17

22 Conclusion The Fourth Amendment protects all individuals who have demonstrated that they have a reasonable expectation of privacy in their trash. This expectation of privacy is evidenced by the certain measures that, like Mr. Black in this case, took to make sure that the public would not have open access to it. The Sixth Amendment protects all individuals right to counsel in a criminal proceeding. This Court has interpreted that legal counsel cannot operate under a conflict of interest and protect the interest of their clients. When legal counsel serves two masters, as Mr. Frazier did, the client is the one who pays the highest price. 18