ROBERT BLACK, Petitioner. UNITED STATES OF AMERICA, et al. Respondent PETITIONER

Transcription

1 Team No. 20 IN THE SUPREME COURT OF THE UNITED STATES ROBERT BLACK, Petitioner v. UNITED STATES OF AMERICA, et al. Respondent ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT ORIGINAL BRIEF ON BEHALF OF ROBERT BLACK, PETITIONER

2 IN THE SUPREME COURT OF THE UNITED STATES ROBERT BLACK, Petitioner v. UNITED STATES OF AMERICA, et al. Respondent ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT ORIGINAL BRIEF ON BEHALF OF ROBERT BLACK, PETITIONER

3 QUESTIONS PRESENTED I. The Fourth Amendment to the United States Constitution compels a law enforcement officer to obtain prior judicial approval before searching the contents of a container when: (1) doing so would constitute a common law trespass; or (2) the owner of the property retained a privacy interest that society is willing to recognize as reasonable in the contents. Black placed his shredded documents inside of an opaque container and entrusted them to a thirdparty, secure document storage and disposal company. The DEA obtained no prior approval before searching, seizing, and using complex forensic technology to reconstruct the documents. Does the recovery and reconstruction of shredded documents from an unlocked third-party contractor s receptacle on a public street violate the original owner s rights under the Fourth Amendment? II. Under the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed the assistance of counsel for his defense. Generally, in order to establish a deprivation of the right to counsel, a defendant must show Strickland prejudice. Prejudice, however, can be presumed when the likelihood that a verdict is unreliable is so high that a case-by-case inquiry is unnecessary. Certain conflicts of interest give rise to a presumption of prejudice. Black s trial attorney was indicted for laundering money in the same meth operation for which Black was convicted. The trial attorney worked directly with an unindicted co-conspirator to collect and hide profits of the operation. Black did not know of his attorney s involvement in the overall conspiracy until after his conviction. 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? ii

4 TABLE OF CONTENTS PAGE(S) QUESTIONS PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... vi STATEMENT OF JURISDICTION... ix STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 I. BLACK S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE WAS VIOLATED WHEN THE DEA SEARCHED, SEIZED, AND RECONSTRUCTED SHREDDED DOCUMENTS COLLECTED FROM A PRIVATE, PAPER FORTRESS CONTAINER WITHOUT PRIOR JUDICIAL APPROVAL....5 A. Under the common law trespass analysis, the DEA violated Black s Fourth Amendment interest when it physically intruded on Black s personal property for the purpose of obtaining information Black s shredded documents were not abandoned property because Black retained an ownership interest when he deposited the documents in the private, Paper Fortress container Because Black never abandoned his shredded documents, the DEA s search, seizure, and reconstruction of those documents for the purpose of obtaining information was an unconstitutional common law trespass....8 B. Even under the Katz privacy interest analysis, the DEA violated Black s Fourth Amendment interest because Black had a subjective expectation of privacy that society would find as reasonable in shredded documents that were entrusted to a company that advertised its services as secure document storage and disposal Black had a subjective expectation of privacy in his shredded documents at the time the DEA searched, seized, and reconstructed them because he took affirmative actions to keep the contents of his papers private Black s subjective expectation of privacy in his shredded documents is one society accepts as objectively reasonable because courts have held iii

5 contents placed in containers to be private; intrusions on private property through highly-technical means rise to the level of Fourth Amendment protected searches; and policy encourages this Court to protect the public s ability to dispose of sensitive private information without fear of government intrusion a. Black s Expectation of Privacy is Objectively Reasonable Because Courts Have Found a Fourth Amendment Protected Privacy Interest in Unsecure, Unlocked Containers b. Black s Expectation of Privacy is Objectively Reasonable Because Courts Have Recognized that Using Complex, Highly-Technical Means of Investigating Seemingly-Public Property Rises to the Level of a Fourth Amendment Protected Search c. Black s Expectation of Privacy is Objectively Reasonable Because Policy Encourages this Court to Protect the Public s Ability to Dispose of Sensitive Private Information Without Fear of Government Intrusion II. BLACK S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED BECAUSE STRICKLAND PREJUDICE IS PRESUMED WHEN COUNSEL SECRETLY CONSPIRES TO ENGAGE IN CRIMINAL ACTIVITY WITH AN UNINDICTED CO-CONSPIRATOR OF HIS CLIENT AND IS SUBSEQUENTLY INDICTED FOR THAT CRIMINAL BEHAVIOR A. The secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client creates such a high likelihood of prejudice that it falls under the circumstances of that magnitude exception to Strickland, requiring prejudice to be strictly presumed A strict presumption of prejudice should be adopted in the situation of an attorney engaging in criminal activity with respect to the same crime as his client because it is analogous to the standing exceptions that currently require strict presumptions of prejudice A strict presumption of prejudice should be adopted because this approach has been applied and consistently endorsed by the United States Court of Appeals for the Second Circuit with its per se conflict of interest line of cases A strict presumption of prejudice should be adopted because this Court has encouraged carving out strict presumptions for items that threaten the overall structure and integrity of the adversarial criminal process...20 iv

6 B. In the alternative, even under the Cuyler standard, Black is entitled to a limited presumption of prejudice because Frazier and Redman s interests created an actual conflict of interest that adversely affected Frazier s performance at trial The lower courts erred as a matter of law in holding that Frazier did not actively represent conflicting interests at trial because Frazier simultaneously represented the conflicting interests of not only himself and Black, but also of Black and Redman Furthermore, because the lower courts erred on the first prong of the Cuyler test, this case must be remanded for further factfinding on whether Frazier s performance was adversely affected at trial CONCLUSION...25 v

7 TABLE OF AUTHORITIES UNITED STATES CONSTITUTION PAGE (S) U.S. Const. amend. IV...5 U.S. Const. amend. VI...14 UNITED STATES SUPREME COURT Abel v. United States, 362 U.S. 217 (1960)...6, 7 Arizona v. Fulminante, 499 U.S. 279 (1991)...20 Arkansas v. Sanders, 442 U.S. 753 (1979)...11 Boyd v. United States, 116 U.S. 616 (1886), overruled on other grounds by Fisher v. United States, 425 U.S. 391 (1976)...8 California v. Greenwood, 486 U.S. 35 (1988)... passim Chapman v. California, 386 U.S. 18 (1967)...16 Cuyler v. Sullivan, 446 U.S. 335 (1980)...15, 21 Ex Parte Jackson, 96 U.S. 727 (1877)...7 Florida v. Riley, 488 U.S. 445 (1989)...13 Hester v. United States, 265 U.S. 57 (1924)...5 Holloway v. Arkansas, 435 U.S. 475 (1978)... passim Katz v. United States, 389 U.S. 347 (1967)...5, 6, 9 Kyllo v. United States, 533 U.S. 27 (2001)...13 Mickens v. Taylor, 535 U.S. 162 (2002)...20, 21 Robbins v. California, 453 U.S. 420 (1979), overruled on other grounds by United States v. Ross, 456 U.S. 798 (1982)...11 Strickland v. Washington, 466 U.S. 668 (1984)... passim United States v. Cronic, 466 U.S. 648 (1984)...14, 15, 20 vi

8 United States v. Jacobsen, 466 U.S. 109 (1984)...11 United States v. Jones, 132 S. Ct. 945 (2012)...5, 6, 8 United States v. Leeuwen, 397 U.S. 249 (1970)...7 United States v. Ross, 456 U.S. 798 (1982)...11 Wheat v. United States, 486 U.S. 153 (1988)...20 OTHER UNITED STATES FEDERAL COURTS Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984)...22, 23 Moss v. United States, 323 F.3d 445 (6th Cir. 2003)...25 United States v. Allen, 831 F.2d 1487 (9th Cir. 1987)...23 United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990)...22 United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984)...19, 20 United States v. Chaves, 169 F.3d 687 (11th Cir. 1999)...8 United States v. Christakis, 238 F.3d 1164 (9th Cir. 2001)...23 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993)...18, 19 United States v. Hall, 47 F.3d 1091 (11th Cir. 1995)...10, 11, 12 United States v. Johns, 851 F.2d 1131 (9th Cir. 1988)...8 United States v. Johnson, 584 F.3d 995 (10th Cir. 2009)...8 United States v. McLain, 823 F.2d 1457 (11th Cir. 1987), overruled on other grounds by United States v. Watson, 866 F.2d 381 (11th Cir. 1989)...22 United States v. Pizzonia, 415 F. Supp. 2d 168 (E.D.N.Y. 2006)...23 United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998)...12 United States v. Scott, 975 F.2d 927 (1st Cir. 1992)...10 United States v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006)...12 vii

9 United States v. Shanks, 97 F.3d 977 (7th Cir. 1996)...12 United States v. Terry, 702 F.2d 299 (2d Cir. 1983)...10 Federal Rules Fed. R. Crim. P. 33(b)(2)...1, 3, 25 Secondary Sources Black s Law Dictionary (9th ed. 2009)...6, 7 viii

10 STATEMENT OF JURISDICTION Jurisdiction of the United States District Court for the District of Jensen over this matter arises under 18 U.S.C (2012). Following a conviction by a federal jury in August 2012, the district court entered a final judgment. [R.4]. Black timely appealed to the United States Court of Appeals for the Thirteenth Circuit. [R.6]. Jurisdiction of the Thirteenth Circuit over this matter arises under 28 U.S.C (2012). The Thirteenth Circuit affirmed the conviction. [R.6]. Black timely petitioned this Court for a writ of certiorari. [R.7]. Jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) (2012). ix

11 STATEMENT OF THE FACTS In August 2012, Robert Black ( Black ) was convicted by a federal jury in the United States District Court for the District of Jenson for numerous violations of the Federal Controlled Substances Act and associated conspiracies. [R.3]. Ten days later, Black moved for a new trial pursuant to Rule 33(b)(2) of the Federal Rules of Criminal Procedure. Fed. R. Crim. P. 33(b)(2); [R.4]. At hearing, Black argued two points: (1) the evidence obtained as a result of the warrantless search, seizure, and reconstruction of shredded documents entrusted to third-party operator, Paper Fortress, Inc. ( Paper Fortress ), should be suppressed because the government s actions violated Black s Fourth Amendment rights; and (2) Black was deprived of his Sixth Amendment right to counsel because his trial attorney, Larry Frazier ( Frazier ), advocated under a conflict of interest due to his involvement in the same methamphetamine ( meth ) conspiracy for which Black was convicted. [R.3,5]. The district court judge denied the motion for new trial on both points orally from the bench. [R.6]. On the Fourth Amendment claim, the district court provided no reasoning. [R.4,6]. On the Sixth Amendment claim, the court noted that it could not find a violation because it failed to see any actual conflict of interest in the case. [R.6]. The court refused to consider whether Frazier s performance was adversely affected at trial. [R.6]. Black timely appealed. [R.6]. The United States Court of Appeals for the Thirteenth Circuit affirmed. [R.6]. On the Fourth Amendment issue, the appellate court called the shredded documents abandoned property, just as regular garbage would have been, and thus, Black had no reasonable expectation of privacy in the property. [R.6]. Additionally, the court agreed that Frazier was not subject to a conflict of interest. [R.6]. This appeal followed. [R.7]. 1

12 The facts pertinent to both issues on appeal are as follows. On July 6, 2011, DEA agent Frank Schroder ( Schroder ) was surveilling Black s business, A&L Abatement (A&L), believing it was a cover up for a complex meth operation. [R.1]. Schroder witnessed Black wheel a large blue container with the words Paper Fortress, Inc. and a castle-like emblem printed on the side to the curb of the public street in front of A&L. [R.1]. Black poured a load of shredded paper into the container, left the container on the curb, and went home. [R.1-2]. Upon investigation, Schroeder learned that the container had an attached, hinged lid but no lock. [R.2]. Inside, Schroder found a large pile of shredded papers. [R.2]. Schroder transferred those papers into boxes for review at the DEA field office. [R.2]. Soon after, Schroder witnessed a Paper Fortress box truck pull up in front of A&L. [R.2]. Discovering the container was empty, however, the Paper Fortress employees left the container as it stood on the curb. [R.2]. Schroder attempted to manually reconstruct the shredded papers. [R.2]. When this method proved unsuccessful, Schroder reached out to the Department of Justice s Forensic Services Department and was ultimately able to reconstruct the documents using sophisticated scanning and optical character-recognition software. [R.2]. Among the documents, Schroder found purchase orders, invoices, tax documents, and business records he deemed indicative of meth operations. [R.2-3]. Using this new information to get a warrant, Schroder searched A&L and found incriminating evidence against Black and his employees. [R.3]. Together, the shredded documents and the physical evidence led Schroder to one of Black s other businesses [R.3]. There, Schroder found a large meth operation, and Black was duly charged. [R.3]. Before trial, Black s attorney, Frazier, filed a motion to suppress the evidence collected as a result of the search, seizure, and reconstruction of the shredded papers. [R.3]. At hearing, Joan Parker ( Parker ), the Paper Fortress employee responsible for the A&L account, testified that 2

13 Paper Fortress is a document storage and disposal company, specializing in the disposal of sensitive documents. [R.3]. While Paper Fortress offered various package options, Black opened a basic services account for A&L. [R.4]. Under their service contract, Paper Fortress would provide weekly, curbside pickup of one standard container of documents for shredding and recycling. [R.4]. Paper Fortress mandated the use of a special Paper Fortress container and provided it to customers for a refundable deposit of $ [R.4]. Once collected and shredded, Paper Fortress forwarded the documents to a state-run paper-recycling facility. [R.4]. After the trial court denied the motion to suppress, Black was convicted of all charges. [R.4]. Two days after Black s conviction, however, the grand jury for the Eastern District of Louisiana unsealed an indictment charging Frazier with money laundering on behalf of Jefferson Redman ( Redman ), one of Black s partners in the meth operation. [R.5]. Soon after, Black filed a motion for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. [R.4]. At hearing, Black s new attorney presented evidence that sometime during the pendency of Black s case, Frazier was the subject of a Suspicious Activity Report ( SAR ) to the United States Department of Treasury by several financial institutions in neighboring states. [R.5]. According to the investigation and indictment, Frazier had been working with Redman, making numerous deposits in multiple banks around Louisiana to help launder Redman s money earned in the meth operation. [R.5]. Frazier also helped Redman buy real estate and invest in a few small businesses. [R.5]. Before and during trial, Black, the district judge, and everyone at the Jenson United States Attorney s Office had no knowledge of the SAR, the investigation, or the sealed indictment against Frazier. [R.5]. Black only made the connection after he learned that Redman and Frazier were both indicted. [R.5]. 3

14 SUMMARY OF THE ARGUMENT The Thirteenth Circuit s holdings should be reversed. Black is entitled to a new trial. The DEA deprived Black of his Fourth Amendment rights when he searched, seized, and reconstructed Black s shredded papers without a warrant. Schroder committed a common law trespass when he examined, transferred, and reconstructed Black s un-abandoned papers for the purpose of obtaining information. Furthermore, under the Katz test, Black manifested a subjective expectation of privacy that society would recognize as objectively reasonable. By shredding the papers and contracting for their disposal with a secure disposal company, Black manifested a subjective privacy interest. This interest is objectively reasonable because courts have found that: (1) a Fourth Amendment protected privacy interest exists in many unlocked containers; (2) using highly-technical means of investigating seemingly-public property rises to the level of a protected search; and (3) a need exists for the public to be able to dispose of sensitive private information without fear of government intrusion. Additionally, Black was deprived of his Sixth Amendment right to counsel due to Frazier s secret conspiratorial criminal activity within the same meth conspiracy for which Black was convicted. The circumstances entitle Black to a strict presumption of Strickland prejudice because: (1) an attorney engaging in the same crime as his client is analogous to the standing strict presumptions; (2) this approach is consistent with the Second Circuit s per se conflict of interest line of cases; and (3) the circumstances threaten the overall structure and integrity of the criminal process. Alternatively, Black is entitled to a limited presumption under the Cuyler standard. The lower court erred because Frazier actively represented the conflicting interests of himself, Redman, and Black. Because of this error, the case must be remanded for further factfinding on whether the conflict adversely affected Frazier s performance at trial. 4

15 ARGUMENT I. BLACK S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE WAS VIOLATED WHEN THE DEA SEARCHED, SEIZED, AND RECONSTRUCTED SHREDDED DOCUMENTS COLLECTED FROM A PRIVATE, PAPER FORTRESS CONTAINER WITHOUT PRIOR JUDICIAL APPROVAL. The decision of the United States Court of Appeals for the Thirteenth Circuit, holding that Black s Fourth Amendment right against unreasonable search and seizure was not violated, should be reversed. Because the evidence collected in the unconstitutional search should be suppressed, Black is entitled to a new trial. The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures in persons, houses, papers, and effects. U.S. Const. amend. IV. A search that is conducted without prior judicial approval is per se unreasonable, unless the search falls within a limited number of exceptions. Katz v. United States, 389 U.S. 347, 357 (1967) (recognizing exceptional circumstances for searches incident to arrest, searches conducted in hot pursuit, and searches conducted with consent). This Court, however, has recognized that a number of government actions fall outside of the technical definition of a search, and thus, are not subject to Fourth Amendment protection. California v. Greenwood, 486 U.S. 35, 40 (1988). Because it is uncontested that Schroder did not obtain a warrant prior to taking investigatory action and because all parties agree that the Katz exceptions do not apply, this appeal turns on whether Schroder s actions constituted a search within the protective sphere of the Fourth Amendment. Most recently, in United States v. Jones, this Court held that two legal tests apply when determining whether government action constitutes a search. 132 S. Ct. 945, 952 (2012). First, Jones reaffirms the application of the common law trespass theory set forth in Hester v. United States. Id.; 265 U.S. 57 (1924). Specifically, when the government physically occupies private 5

16 property for the purpose of obtaining information, it has conducted a search for purposes of the Fourth Amendment. Jones, 132 S. Ct. at 949. A party, however, does not retain a Fourth Amendment interest in abandoned property. Abel v. United States, 362 U.S. 217, 241 (1960). Second, Jones reaffirms the Katz v. United States privacy interest test. 132 S. Ct. at 952; 389 U.S. at 393. Under Katz, the Fourth Amendment compels a law enforcement officer to obtain a search warrant prior to searching property whenever the owner of that property manifests: (1) a subjective expectation of privacy that (2) society would find objectively reasonable. Greenwood, 486 U.S. at 39 (1988). Under both court-recognized tests, Black was unconstitutionally deprived of his Fourth Amendment rights. When the government physically occupied Black s un-abandoned papers for the purpose of obtaining information it committed a common law trespass. Furthermore, under Katz, Black retained a Fourth Amendment privacy interest in his papers because he had a subjective expectation of privacy that society would be willing to recognize as reasonable. A. Under the common law trespass analysis, the DEA violated Black s Fourth Amendment interest when it physically intruded on Black s personal property for the purpose of obtaining information. Most recently, this Court held that the history of the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ( persons, houses, papers, and effects ) it enumerates. Jones, 132 S. Ct. at 950. Black s Law Dictionary defines a trespass as an unlawful act committed against the person or property of another (9th ed. 2009). Therefore, the government s physical intrusion into a constitutionally-protected area to obtain information without prior judicial approval is a trespass at common law. 6

17 The question of abandonment, however, is a fact relevant to the determination of Fourth Amendment standing. Abel, 362 U.S. at 241. Specifically, a party cannot assert a claim against government actions based on the trespass theory if they do not own the underlying property. Id. Under these standards, the DEA s actions with respect to Black s shredded documents constituted a common law trespass because the property was not abandoned and because the DEA physically intruded on Black s papers to collect incriminating information. 1. Black s shredded documents were not abandoned property because Black retained an ownership interest when he deposited the documents in the private, Paper Fortress container. The Thirteenth Circuit relied upon the abandonment theory in rejecting Black s Fourth Amendment claim. [R.6]. The law, however, is unclear as to whether the abandonment theory is still a basis for rejecting a privacy interest in items ultimately destined for destruction. Greenwood, 486 U.S. at 46 (Brennan, J., dissenting). Although, if applicable, abandonment is consistently recognized to require the relinquishment of a right. Id. at 51; Black s Law Dictionary 2 (9th ed. 2009) ( the relinquishing of a right or interest with the intention of never reclaiming it ). Not all relinquishments, however, lead to abandonment. For example, it has long been recognized that a person does not abandon letters and sealed packages when he deposits them with a mail carrier. See United States v. Leeuwen, 397 U.S. 249, (1970). Courts acknowledge that postal employees have no legal right to take or snoop through the contents of packages while in their custody. Id. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Ex Parte Jackson, 96 U.S. 727, 733 (1877). Black s entrustment of his shredded papers to Paper Fortress is analogous to the entrustment of a letter to the postman. Like a mail carrier, Paper Fortress merely delivers Black s documents 7

18 to their final destination. [R.4]. Similar to a person placing a sealed letter in the mail, Black may have had an unequivocal intention to part with the papers forever; however, he did not have any intention of making the contents of the documents public. The pertinent inquiry should be the function of the company that picks up the items. Accordingly, because Paper Fortress is an intermediary carrier, it maintains the ownership interest of Black. Additionally, at the time the DEA unconstitutionally seized Black s documents, the agency had no indication of whether those documents would ultimately be destroyed or stored. [R.1-2]. It is clear that Paper Fortress provided both services. [R.3]. Had Black s intention been storage, no court would hold that Black abandoned his documents. See United States v. Johnson, 584 F.3d 995, 1001 (10th Cir. 2009); see also United States v. Johns, 851 F.2d 1131, (9th Cir. 1988); United States v. Chaves, 169 F.3d 687, (11th Cir. 1999). Overall, because Paper Fortress is an intermediary carrier that provided both storage and disposal, Black s transfer of documents to the container did not constitute abandonment. 2. Because Black never abandoned his shredded documents, the DEA s search, seizure, and reconstruction of those documents for the purpose of obtaining information was an unconstitutional common law trespass. The Fourth Amendment embodies a particular concern for a government trespass on papers. Jones, 132 S. Ct. at 950. For example, carrying away private papers without proper justification results in a trespass. Boyd v. United States, 116 U.S. 616, (1886), overruled on other grounds by Fisher v. United States, 425 U.S. 391 (1976). Unquestionably, the DEA physically intruded on Black s papers. Agent Schroder left his surveillance position, approached the fully-enclosed container, lifted the lid, and peered into the container. [R.2]. Once government reinforcements arrived, the agents reached inside, physically removed all documents in the sixty-five-gallon container, and transferred them to the DEA field 8

19 office. [R.2]. Later that evening, the team attempted to manually reconstruct the shreddings into cognizable documents. [R.2]. Unable to reconstruct even one page, agents contacted the DOJ Forensic Services Department, and only then, were able to reconstruct the documents using the sophisticated scanning and optical character-recognition software. [R.2]. These actions taken together constituted three separate trespasses examination, transfer, and reconstruction. The DEA did not have prior judicial approval to take any of these actions; therefore, Black s Fourth Amendment rights were violated. B. Even under the Katz privacy interest analysis, the DEA violated Black s Fourth Amendment interest because Black had a subjective expectation of privacy that society would find as reasonable in shredded documents that were entrusted to a company that advertised its services as secure document storage and disposal. Finding that what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected, this Court has endorsed a two-prong test for determining when government action constitutes a legally-protected search. Katz, 389 U.S. at 351. The question of whether government intrusions violate the Fourth Amendment hinges on whether: (1) the owner of the searched property manifests a subjective expectation of privacy in their papers; and (2) this expectation is one society accepts as objectively reasonable. Greenwood, 486 U.S. at 39. Black can meet both prongs of the Katz test because he retained a subjective privacy interest in his shredded papers that society would accept as objectively reasonable. 1. Black had a subjective expectation of privacy in his shredded documents at the time the DEA searched, seized, and reconstructed them because he took affirmative actions to keep the contents of his papers private. Because subjectivity is unique to the challenger, the subjective-expectation-of-privacy prong of the Katz analysis is a low threshold. For example, this Court has found that the mere placement of garbage in opaque bags on the curb of the street manifests a subjective expectation 9

20 of privacy. Greenwood, 486 U.S. at 39. Other courts recognize that the shredding of documents alone is evidence of the challenger s subjective expectation of privacy. United States v. Scott, 975 F.2d 927, 929 (1st Cir. 1992); United States v. Terry, 702 F.2d 299, 309 (2d Cir. 1983). Applying these minimal standards, Black had a subjective expectation of privacy in his documents at the time the DEA searched, seized, and reconstructed the papers. Not only did Black take the effort to shred his documents, he also subscribed to a monthly service for private disposal. [R.4]. Through shredding the documents, placing them in a mandatory, clearly-labeled, opaque, fully-enclosed container, and transporting that container to a mandated location for pick up, it is clear that Black did not expect his papers to become known to the DEA. [R.1-2,4]. Furthermore, although Black had other contract options with Paper Fortress, it is of no consequence that he selected a basic services plan. [R.4]. The determinative fact is that all disposal methods presented to Black were conveyed as secure. [R.4]. Black believed that since Paper Fortress is in the business of secure disposal and offered shredding as a secure method of disposal, any shredded documents he placed inside the container would remain private. [R.4]. Accordingly, regardless of what level of secure disposal Paper Fortress supplied, Black had a subjective expectation of privacy in his shredded documents. Thus, the Katz analysis turns on whether Black s subjective expectation of privacy was objectively reasonable. 2. Black s subjective expectation of privacy in his shredded documents is one society accepts as objectively reasonable because courts have held contents placed in containers to be private; intrusions on private property through highly-technical means rise to the level of Fourth Amendment protected searches; and policy encourages this Court to protect the public s ability to dispose of sensitive private information without fear of government intrusion. Whether Black s expectation of privacy is one society accepts as objectively reasonable depends on whether the governmental intrusion infringes upon the personal and societal values the Fourth Amendment protects. United States v. Hall, 47 F.3d 1091, 1094 (11th Cir. 1995). 10

21 Courts generally focus on the nature of the privacy interest asserted and the extent of governmental intrusion. Id. at Under these facts, Black s privacy expectation was objectively reasonable because: (1) courts have found an objectively reasonable privacy interest in many unsecured, unlocked containers; (2) using complex and highly-technical methods to investigate the contents of a person s seemingly-public property rises to the level of a Fourth Amendment protected search; and (3) holding otherwise would effectively prevent people from disposing of any sensitive documents and would stifle the business of secure document disposal. a. Black s Expectation of Privacy is Objectively Reasonable Because Courts Have Found a Fourth Amendment Protected Privacy Interest in Unsecure, Unlocked Containers. Historically, this Court has found a privacy interest in containers of all different types and levels of impenetrability. See Arkansas v. Sanders, 442 U.S. 753, 762 (1979) (a small, unlocked suitcase ); see also Robbins v. California, 453 U.S. 420, 422 (1979) (plurality opinion), overruled on other grounds by United States v. Ross, 456 U.S. 798, 826 (1982) (a totebag ); Ross, 456 U.S. at 801 (suggesting that a warrant is needed to search a lunch-type brown paper bag and a zippered red leather pouch ); United States v. Jacobsen, 466 U.S. 109, 111 (1984) (suggesting that a warrant is needed to search an ordinary cardboard box wrapped in brown paper ). It is improper for a court to attempt to differentiate between containers that are worthy of the Fourth Amendment s protection and those that are unworthy. Robbins, 453 U.S. at Since this Court has recognized a privacy interest in an easily-accessible brown paper bag, it is reasonable to extend those security interests to a Paper-Fortress-type container. Paper Fortress required its customers to use a blue, opaque, fully-enclosed container regardless of the level of security provided under the contract. [R.4]. The company even required customers to pay a 11

22 $ deposit on the special container. [R.4]. Accordingly, it is immaterial that Black did not lock or secure the documents in his container. Furthermore, the facts of this case are distinguishable from this Court s garbage precedent, in which courts have refused to recognize an objectively reasonable privacy interest in garbage containers. While courts have addressed similar situations in isolation, no court has reviewed a case where: (1) the documents placed in the container were shredded; (2) the container was blue, opaque, lidded, hinged, and required; (3) the container was clearly labeled with a third-party corporation logo and business name; and (4) the third party advertised its services as secure document storage and disposal. [R.1-4]; see Hall, 47 F.3d at 1091 (agents removed a bag of shreddings from garbage dumpster on private property); see also United States v. Segura- Baltazar, 448 F.3d 1281 (11th Cir. 2006) (police took bags of trash from large containers enclosed with lids from the curb); United States v. Shanks, 97 F.3d 977 (7th Cir. 1996) (police took garbage cans that contained sealed opaque bags from next to the garage). Moreover, courts have consistently recognized that there is a factual scenario that will create Fourth Amendment protection in disposed property. See, e.g., United States v. Redmon, 138 F.3d 1109, 1111 (7th Cir. 1998). The facts of this case rise to that level. The totality of the circumstances require this Court to hold that society would recognize a privacy interest in the disposal, transfer, and entrustment of these papers to Paper Fortress as objectively reasonable. b. Black s Expectation of Privacy is Objectively Reasonable Because Courts Have Recognized that Using Complex, Highly-Technical Means of Investigating Seemingly-Public Property Rises to the Level of a Fourth Amendment Protected Search. With the advancement of technology, this Court has taken extra precautions to prevent the erosion of privacy. Generally, it is not a search when an officer obtains information about a 12

23 constitutionally-protected area from a public place. Florida v. Riley, 488 U.S. 445 (1989). Even from a public location, however, a search takes place when law enforcement utilizes technology that is not in general public use to intrude on a constitutionally-protected area. Kyllo v. United States, 533 U.S. 27, 34 (2001). Similar to the facts of Kyllo, the DEA utilized complex, highly-technical means of investigating that is not in general public use. After struggling with manual reconstruction of the shredded papers, the agents had to use the Department of Justice s highly-sophisticated scanning and optical character-recognition software to intrude on Black s constitutionally-protected papers. [R.2]. Presumably, this software is not in general public use, as the DEA did not have access to it. Accordingly, even if the taking and transferring of the papers did not constitute a search, the reconstruction with complex, highly-technical software, not generally available to the public, unquestionably did. c. Black s Expectation of Privacy is Objectively Reasonable Because Policy Encourages this Court to Protect the Public s Ability to Dispose of Sensitive Private Information Without Fear of Government Intrusion. Faithful application of the Fourth Amendment requires the government to adhere to society s privacy norms. Greenwood, 486 U.S. at 54 (Brennan, J., dissenting). In holding that the warrantless search of the Paper Fortress container is not protected by the Fourth Amendment, this Court would depict a society in which local authorities may arbitrarily monitor citizens without judicial oversight in their most sensitive of documents. Id. If a citizen is unable to maintain their privacy interest in these sensitive documents after shredding them, paying for secure private disposal, and placing them out for pickup moments before the truck arrives, then there is no realistic method of disposal of sensitive private information that would be free from government intrusion. Persons must be able to dispose of 13

24 banking information, medical information, and personal information without the fear of it being seized by the government or anyone else. In addition, holding that secure document disposal is not sufficient to maintain a privacy interest would impinge on the legitimate business of secure document disposal; no disposal would truly be secure. Overall, under both recognized Fourth Amendment search theories, the actions of the DEA represented an unconstitutional search in violation of Black s Fourth Amendment rights. Accordingly, the appellate court s decision should be reversed, and Black should be granted a new trial where the evidence collected due to the unconstitutional searches is suppressed. II. BLACK S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED BECAUSE STRICKLAND PREJUDICE IS PRESUMED WHEN COUNSEL SECRETLY CONSPIRES TO ENGAGE IN CRIMINAL ACTIVITY WITH AN UNINDICTED CO-CONSPIRATOR OF HIS CLIENT AND IS SUBSEQUENTLY INDICTED FOR THAT CRIMINAL BEHAVIOR. The decision of the United States Court of Appeals for the Thirteenth Circuit, holding that Black was not deprived of his Sixth Amendment right to counsel because his trial attorney, Frazier, was not subject to an actual conflict of interest at the time of his representation, should be reversed. The interest of justice mandates that Black be granted a new trial. Under the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed the Assistance of Counsel for his defense. U.S. Const. amend. VI. This Court has consistently held that of all rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have. United States v. Cronic, 466 U.S. 648, (1984). Generally, a defendant alleging a Sixth Amendment violation must demonstrate prejudice. Strickland v. Washington, 466 U.S. 668, 692 (1984). Specifically, he or she must show that there is a reasonable probability that, but for counsel s unprofessional errors, the results of the 14

25 proceeding would have been different. Id. at 694. However, recognizing that there are conditions where the likelihood of prejudice is so high that a case-by-case inquiry is unnecessary, this Court has carved out a number of exceptions to the Strickland rule and allowed prejudice to be presumed. Id. at 692. Most importantly, prejudice is strictly presumed: (1) where assistance of counsel is denied entirely or during a critical stage of the proceeding, Cronic, 466 U.S. at 659; (2) where counsel entirely fails to subject the prosecution s case to meaningful adversarial testing, id.; (3) where defense counsel is forced to represent co-defendants over counsel s timely objection; Holloway v. Arkansas, 435 U.S. 475 (1978); and (4) in other circumstances of that magnitude, Cronic, 466 U.S. at Furthermore, the Cuyler court carved out a limited presumption for defendants who can establish an actual conflict of interest. Cuyler v. Sullivan, 446 U.S. 335 (1980). Here, prejudice is only presumed if the defendant can show: (1) that counsel actively represented conflicting interests; and (2) that this conflict adversely affected his lawyer s performance. Id. at 349. In accordance with these standards, Black was unconstitutionally deprived of his Sixth Amendment right to counsel. The secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client creates such a high likelihood of prejudice that it falls under the circumstances of that magnitude exception to Strickland, requiring prejudice to be strictly presumed. Alternatively, even under the Cuyler standard, Black is entitled to a limited presumption of prejudice because Frazier s and Redman s interests created a conflict of interest that adversely affected Frazier s performance at trial. A. The secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client creates such a high likelihood of prejudice that it falls under the circumstances of that magnitude exception to Strickland, requiring prejudice to be strictly presumed. 15

26 The Thirteenth Circuit s decision should be reversed because Frazier s criminal involvement in the overarching conspiracy of the accused calls for prejudice to be strictly presumed under the circumstances of that magnitude exception. Carving out a strict presumption is appropriate under these facts because: (1) the situation of an attorney engaging in criminal activity with respect to the same crime as his client is analogous to the standing exceptions that call for strict presumptions of prejudice; (2) this approach has been adopted and consistently endorsed by the United States Court of Appeals for the Second Circuit with its per se conflict of interest line of cases; and (3) this Court has encouraged carving out strict presumptions for items that threaten the overall structure and integrity of the adversarial criminal process. 1. A strict presumption of prejudice should be adopted in the situation of an attorney engaging in criminal activity with respect to the same crime as his client because it is analogous to the standing exceptions that currently require strict presumptions of prejudice. Repeatedly, this Court has stressed that the law allows for prejudice to be strictly presumed in cases such as the complete deprivation of counsel and forced representation of co-defendants because these are easily-identifiable situations where prejudice is so likely that it is unnecessary and costly to require a case-by-case inquiry as to whether there was a Sixth Amendment violation. Strickland, 466 U.S. at 692. Under these circumstances, a conviction must be reversed even if no particular prejudice is shown and even if the defendant was clearly guilty. Chapman v. California, 386 U.S. 18, 43 (1967) (Stewart, J., concurring). The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Holloway, 435 U.S. at 488. In discussing the forced representation of co-defendants specifically, the Holloway court noted that [t]he mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate s conflicting obligations have effectively sealed his lips on crucial 16

27 matters. Id. at 490. Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. Id. at 489. It has a pervasive affect on plea negotiations, witness testimony, sentencing recommendations, admission of evidence, and defense strategy. Id. at Requiring defendants to show prejudice after counsel is forced to represent codefendants also presents practical concerns. Id. at Specifically, courts have cautioned that even if it was possible to identify some prejudice on record, it is difficult to judge intelligently the impact of a conflict on the attorney s representation. Id. at For example, it is virtually impossible to assess the manner in which a conflict influenced the attorney s options, tactics, and decisions in plea negotiations. Id. The whole process consists of unguided speculation. Id. at 492. The situation of an attorney who is criminally involved in the same crime as his own client is analogous to those situations where prejudice is strictly presumed. First, in general, the facts of these cases exemplify an easily-identifiable conflict. As the investigation and indictment papers clearly indicate, Frazier was indicted for his involvement in the same criminal enterprise as his client. [R.5]. Second, like the complete or partial denial of counsel, a criminally-involved attorney is so intrinsically connected to the client s case that he is truly representing himself, while his client is left with no constitutionally-adequate counsel at all. Third, like the complete failure to subject the prosecution to adversarial testing, an attorney involved in the same crime as his client advocates under such pervasive fear of being discovered in the case that he is not likely to zealously challenge the prosecution. Even more clear is the analogy to forced representation of co-defendants. In these situations, the criminally-involved attorney is the co-defendant. As the Holloway court discussed, this creates both theoretical and practical concerns. First, an attorney who is involved in the same 17

28 crime as his client is effectively wearing a muzzle during representation. In fact, the attorney is even more constrained at trial here because the conflicting interest is personal. It is highly likely that the attorney s personal stake in the case will prevent him from pursuing certain plea options or trial tactics. It is mere human nature to act in a manner that is self-protective. Second, forcing a defendant under these circumstances to prove that his attorney s interests adversely affected his performance at trial is impractical. The judge would have to engage in unguided speculation without enough information to judge intelligently both the affirmative and negative decisions of the attorney. Furthermore, it would be virtually impossible for the judge to predict how conflictfree plea negotiations would have played out. Finally, while the Holloway strict presumption for representation of co-defendants requires the attorney to raise a motion at trial, this prerequisite is inapplicable for prejudice that arises out of an attorney s personal involvement in the crimes of his client. It would be illogical for an attorney to make a motion at trial because this would bring the attorney s position in the overall crime to the forefront of the proceedings. This once again reinforces that the attorney s role in the crime creates such a high likelihood of prejudice that justice requires a strict presumption. Accordingly, because an attorney being involved in the crimes of his client is analogous to the standing strict presumptions of prejudice, it is a circumstance of that magnitude under Cronic and prejudice should be strictly presumed. 2. A strict presumption of prejudice should be adopted because this approach has been applied and consistently endorsed by the United States Court of Appeals for the Second Circuit with its per se conflict of interest line of cases. The Second Circuit has long held that there is an actual or constructive denial of assistance of counsel, and as such, a per se violation of the Sixth Amendment when the attorney has engaged in the defendant s crimes. United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993). This is 18

29 because the attorney cannot be free from fear that a vigorous defense should lead the prosecutor or trial judge to discover evidence of the attorney s own wrongdoing. Id. In United States v. Cancilla, the Second Circuit held that the per se conflict of interest rule applied to defendant s representation by trial counsel who, unknown to the defendant, had himself engaged in criminal activity with a possible co-conspirator of the defendant. 725 F.2d 867, 870 (2d Cir. 1984). The defendant was convicted of fourteen counts of mail fraud for filing false insurance claims with respect to two cars. Id. at During a pending appeal, the government learned of an allegation that Cancilla s trial counsel may have himself conspired with another connected to the defendant s schemes on similar fraudulent insurance claims. Id. at 868. The court noted: What could be more of a conflict than a concern over getting oneself in trouble with criminal law enforcement authorities? Id. Distinguishing this situation from standard conflicts of interest under Cuyler, the court called this a different type of conflict for a lawyer. Id. This type of conflict is always real, not simply possible, and which, by its nature, is so threatening as to justify a presumption that the adequacy of representation was affected. Id. The facts of Black s case are directly analogous to Cancilla. First, like in Cancilla, no one involved in Black s trial, other than Frazier, was aware of the attorney s conduct or his potential connection to the case. [R.5]. Second, in both cases, the co-conspirator with which counsel s criminal conduct was directly connected was not indicted at the time the conflict of interest was under review. In Cancilla, the court considered the attorney s connection with a possible coconspirator. Cancilla, 725 F.2d at 868. Here, Black had a known co-conspirator, Redman, but he too was not indicted at the time of Black s trial. [R.4-5]. Finally, under both sets of facts, the attorney committed a severe crime in an overarching conspiracy of which the defendant was also 19