Supreme Court of the United States

TEAM 37t

la ______

In The Supreme Court of the

United States

October Term 2014 ______

ROBERT BLACK,

Petitioner,

UNITED STATES, Attorney General

Respondent,

______

BRIEF FOR RESPONDENT

______

Counsel for Respondent TEAM #37

TABLE OF CONTENTS

TABLE OF CONTENTS …....…………………………………………………………. i

TABLE OF AUTHORITIES …………………………………………………………... ii

Cases …………………….……………………………………………………... ii

Statutes …………………….…………………………………………………… iii

STATEMENT OF JURISDICTION ..………………………………..………………... 1

QUESTIONS PRESENTED …...... ………………………………………………… 2

STATEMENT OF THE FACTS ..……………………………………………………... 3

SUMMARY OF THE ARGUMENTS …………………………………………………... 7

THE AGRUMENTS ……………….…………………………………………………… 9

CONCLUSION …………………….…………………………………………………… 20

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TABLE OF AUTHORITIES

CASES : PAGES Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995). …………………………………………. 15

Buenoano v. Singletary, 74 F.3d 1078 (11th Cir. 1996). ……………………………… 15, 16

California v. Ciraolo, 476 U.S. 207, 212-13 (1986)…………………………………….11, 12

California v. Greenwood, 486 U.S. 35 (1988) ………………………………… 9, 10, 11, 12, 13

California v. Hodari D., 499 U.S. 621 (1991) ………………………………………….. 13

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ……………………………..… 15

Cuyler v. Sullivan, 466 U.S. 335 (1980). ……………………………………………… 17

Data Processing Service v. Camp, 397 U.S. 150 (1970) …………………………….… 9

Florida v. Riley, 488 U.S. 445, 449 (1989) ……………………………………………. 11

Katz v. United States, 389 U.S. 347 (1967) .………………………………………….. 11, 13

Koon v. United States, 518 U.S. 81 (1996). ……………………………………………. 15

Mickens v. Taylor, 535 U.S. 162 (2002) ……………………………………………… 17

O'Connor v. Ortega, 480 U.S. 709 (1987) ……………………………………………. 11

Oliver v. United States, 466 U.S. 170, 180 (1984). ………………………………...… 11, 12

Pierce v. Underwood, 487 U.S. 552 (1988) ………………………………………….. 15

Rakas v. Illinois, 439 U.S. 128 (1978) ……………………………………………….. 9

Singleton v. Wulff, 428 U.S. 106 (1976) …………………………………………….. 9

Strickland v. Washington, 466 U.S. 668 (1984) ……………………………………. 16, 17

Terry v. Ohio, 392 U.S. 1 (1968)……………………………………………………... 9

United States v Leshuk, 65 F.3d 1105 (4th Cir. 1995) ……………………………… 14

United States v. Aguirre, 839 F.2d 854 (1st Cir. 1988)…………………………….… 13

United States v. Barlow, 17 F.3d 85 (5th Cir. 1994). ………………………………. 14

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United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) ……………………………… 15

United States v. Dunn, 480 U.S. 294, 301 (1987) ……………………………………. 10

United States v. Hall, 47 F.3d 1091 (11th Cir. 1995) ………………………………….. 9

United States v. Knox, 839 F.2d 285 (6th Cir.1988) ………………………………….. 13

United States v. Levy, 25 F.3d 146 (2d Cir. 1994). …………………………………… 17

United States v. Mancini, 8 F.3d 104 (1st Cir. 1993) …………………………………. 11

United States v. McLain, 823 F.2d 1457 (11th Cir. 1987) ……………………………. 15

United States v. Mustone, 469 F.2d 970 (1st Cir. 1972). ……………………………. 14

United States v. Schwartz, 283 F.2d 76 (2d Cir. 2002) ………………………………..18

United States v. Scott, 975 F.2d 927 (7th Cir. 1992) ……………………….……….. 10, 12

United States v. Scrivner, 680 F.2d 1099 (5th Cir. 1982) ……………………………. 13

United States v. Shelby, 573 F.2d 971 (7th Cir. 1978)………………………………... 9, 11

United States v. Simms, 626 F.3d 966 (7th Cir. 2010) ……………………………….. 10

United States v. Terry, 702 F.2d 299 (2d Cir. 1983)……………………………….… 9, 11

United States v. Torres-Urena, 513 F.2d 540 (9th Cir. 1975) ………………………. …10

United States v. Williams, 372 F.3d 96 (2d Cir. 2004) ……………………………….. 17

Warth v. Seldin, 422 U.S. 490, 499 (1975) ……………………………………………. 9

Williams v. Washington, 59 F.3d 673 (7th Cir. 1995). ………………………………. 16

Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993). …………………………………...... 17, 18

STATUTES:

U.S. CONST. AMEND. IV ………………………………………………………….. 9

iii

TEAM #37

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Thirteenth District affirmed the lower court’s ruling. The petition for writ of certiorari was filed, and this Court granted the petition. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254 (1994).

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QUESTION PRESENTED

I. Whether the recovery and reconstruction of petitioner’s incriminating shredded documents from an unlocked third-party’s receptacle on a public street was reasonable under the Fourth Amendment?

II. Whether the conspiratorial criminal activity and subsequent indictment of petitioner’s attorney with an unindicted co-conspirator failed to rise to the level of a conflict of interest, depriving the client of his Sixth Amendment right to counsel?

TEAM #37

STATEMENT OF THE FACTS

A. Proceedings Below.

In August 2011, Petitioner was charged with violations of the Federal Controlled

Substances Act and associated conspiracies by the U.S. District Court for the District of Jensen.

(R. at 3)1. In August 2012, Petitioner was tried and convicted before a federal jury of all charges.

(R. at 4.) Petitioner motioned the District Court for a new trial under Rule 33(b) (2) of the

Federal Rules of Criminal Procedure. Id. After consideration of the motion, the motion was denied by a bench trial. (R. at 6.) Petitioner filed a timely appeal to the U.S. Court of Appeals for the Thirteenth Circuit. Id. After the Thirteenth Circuit affirmed the lower court’s conviction,

Petitioner sent a request to the Supreme Court to grant a writ of certiorari. (R. at 7.) The

Supreme Court granted the writ. Id.

B. Statement of Facts

The Drug Enforcement Administration (“DEA”) started investigating whether there was a high-volume, industrial-level methamphetamine (“meth”) manufacturing operation within the suburbs of Jensen’s capital city in the spring of 2011. (R. at 1.) Agent Schroder (“Schroder”), lead investigator, began looking into Petitioner, Robert Black, because he believed that he was using his asbestos and lead paint abatement business, as a beard for the meth manufacturing operation. Id. Going on a hunch and belief that Petitioner was purchasing the equipment and chemicals necessary to manufacture the drugs, Schroder and his team began surveillance on

Petitioner and his business. Id.

For twenty-four hours a day, DEA watched Petitioner. Id. They began collecting and going through garbage from the dumpster in the alleyway behind the business and from

1 The record is cited as R. at [Page No.]. 3

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Petitioner’s household garbage cans. Id. After weeks of no useful evidence, in the summer of

2011, that changed. Id. On July 6, 2011, DEA saw Petitioner roll along a blue garbage container with the words “Paper Fortress, Inc.” to the curb of a public street. Id. After leaving the garbage container at the curb, the Petitioner then returned carrying a cardboard box and poured what appeared to be loads of shredded paper into the garbage container, before leaving for his home.

(R. at 2.) When Petitioner was gone, Schroder opened the unsecure, unlocked lid of the garbage container and called the rest of the team to retrieve the shredded and intact documents that

Petitioner discarded inside. Id. After returning to their surveillance location with the discarded documents, a truck with “Paper Fortress” logo appeared, but once the workers discovered that the garbage container was empty, they left, leaving behind the garbage container. Id.

The DEA went through the intact documents and found nothing of evidentiary value.

Then they took on the painstaking job of manually reconstructing the shredded documents. Id.

After hours of manual reconstruction and through sophisticated scanning and optical character recognition software, the DEA discovered purchase orders and invoices for laboratory equipment and chemicals indicative of tools needed to operate a meth lab. (R. at 2-3.) This information provided Schroder with the probable cause to obtain a search warrant to search the business. (R. at 3.) Once the warrant was served, the DEA found more incriminating evidence, including a lead to one of Petitioner’s other business where important ingredients used for “cooking” meth was found. Id. Black was charged with violating the Federal Controlled Substances Act and other associated conspiracies. Id.

Petitioner hired Larry Frazier (“Frazier”) as his defense counsel. Id. Before trial,

Frazier filed and argued several pre-trial motions, including a motion to suppress. Id. Frazier attempted to convince the court that the evidence obtained as a result of the search, seizure, and

TEAM #37 reconstruction of the shredded documents amounted to a violation of Petitioner’s Fourth

Amendment rights under the United States Constitution. Id. At a hearing on the motion, Frazier called the customer service representative assigned to Petitioner’s account to testify. Id. The representative testified the Petitioner was offered more secure services such as in-office pick up, secured garbage container with a lock and key and incineration services, but Petitioner did not sign up for any of these because seemed unconcerned with what happens to his papers once they have been shredded. (R. at 4.) The court disagreed with Frazier’s arguments and denied the motion. Id. In August 2012, Petitioner was convicted of all charges. Id.

Petitioner moved for a new trial under 33(b) (2) of the Federal Rules of Criminal

Procedure. Id. Petitioner’s new evidentiary reason for a new trial stemmed from Petitioner discovering after his conviction that Frazier was indicted by the Eastern District of Louisiana for money laundering for an individual to generate a stream of legitimate income, who coincidentally, was an associate of Petitioner. (R. at 5.) However, while the investigation of

Frazier was being conducted and the sealed indictment was handed down, neither the DEA nor the Jensen U.S. Attorney’s Office knew about the Louisiana investigation. Id. Neither the

Eastern District of Louisiana nor the Treasury knew about the Frazier and Black connection either. Id. Frazier only ceased to represent the Petitioner, once Petitioner became aware of the connection. Id. Thus, Petitioner’s new counsel argued that Petitioner had been deprived of his right to counsel under the Sixth Amendment of the United States Constitution. Id.

The motion for a new trial was denied orally from the bench. (R. at 6.) The district court held that there were not any factual issues that amounted to an actual conflict of interest that would have deprived Petitioner of a fair trial. Id. Petitioner filed an appeal to the U.S. Court of

Appeals for the Thirteenth Circuit. Id. The Thirteenth Circuit upheld the lower court’s

TEAM #37 disposition by holding the evidence collected by the DEA was abandoned and Petitioner was

“not subject a reasonable expectation of privacy”, therefore Petitioner’s Fourth Amendment rights had not been violated. Id. Moreover, Petitioner’s counsel was “not subject to a conflict of interest” and Petitioner had the “benefit of competent counsel of his choosing at his trial.” Id.

Petitioner filed a writ of certiorari with the Supreme Court of the United States. (R. at 7.) This

Court granted the writ. Id.

TEAM #37

SUMMARY OF THE ARGUMENTS

The Fourth Amendment of the U.S. Constitution provides individuals a protection against unreasonable searches and seizures in their "persons, houses, papers, and effects." Mr. Black questions whether 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. The warrantless search and seizure of the trash receptacle left at the curb outside the petitioner’s place of business was reasonable under the Fourth Amendment because

Black did not manifest a subjective expectation of privacy that society accepts as objectively reasonable, which would have provided him standing. Petitioner may have manifested a slight subjective expectation of privacy by shredding the discarded documents; however, that expectation was not reasonably objective based on today’s society. Petitioner has no standing to challenge the search because he had no trespass or other privacy violation. The documents were readily accessible to the public for inspection. Moreover, he intended to abandon his interest in the documents by leaving them on the street for collection by a third party. Petitioner did not exercise any additional security measures to provide reasonable societal objectivity and acceptance for expected privacy. The contents of the receptacle were abandoned by the petitioner, so the mere fact that he shredded his discarded documents before he placed them outside of his business was not enough to expect privacy under the Fourth Amendment.

Therefore, the recovery and reconstruction of the documents used as evidence was not a violation of the Fourth Amendment. Respondent respectfully requests that this Court affirmed the decision of the United States Thirteenth Circuit of Appeals.

After Petitioner’s conviction in the district court, he moved for a new trial under Rule

33(b)(2) of the Federal Rules of Criminal Procedure because his trial counsel was investigated

TEAM #37 and indicted by the Eastern District of Louisiana for money laundering for a known associate of the Petitioner. Petitioner claims this caused a conflict of interest and deprived Petitioner of a fair trial, violating the Sixth Amendment of the United States Constitution. Petitioner’s claim will fail because to have an actual conflict of interest trial counsel must have been cognizant of the investigation and consciously refrained from informing Petitioner. Here, the DEA, the United

States Attorney’s Office, and the District Court were completely unaware of the sealed indictment from the Eastern District of Louisiana; to which it can be inferred trial counsel was unaware as well. Furthermore, even if trial counsel was aware of the indictment, trial counsel’s actions did not establish that the Strickland factors were met because he did not exhibit a lapse of representation at any time while defending Petitioner that affected the outcome of the trial.

Lacking such evidence to prove a sixth amendment violation, this Court should dismiss this case and affirm the lower court’s decision.

TEAM #37

THE ARGUMENTS

I. THE RECOVERY AND RECONSTRUCTION OF THE PETITIONER’S

INCRIMINATING DOCUMENTS WAS REASONABLE UNDER THE FOURTH

AMENDMENT.

Under the Fourth Amendment of the U.S. Constitution, 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. U.S. CONST. AMEND.

IV. However, what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9 (1968). As a general proposition, the issue of standing involves two inquiries: (1) whether the proponent of a particular legal right has alleged injury in fact, and, (2) whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. Rakas v. Illinois,

439 U.S. 128, 139 (1978) (citing see, e.g., Singleton v. Wulff, 428 U.S. 106, 112 (1976); Warth v. Seldin, 422 U.S. 490, 499 (1975); Data Processing Service v. Camp, 397 U.S. 150, 152-53

(1970)). The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home or business. California v. Greenwood, 486

U.S. 35, 55 (1988); United States v. Hall, 47 F.3d 1091, 1094 (11th Cir. 1995). The special protection the Fourth Amendment accords people in their “persons, houses, papers, and effects” does not extend to their discarded garbage. United States v. Terry, 702 F.2d 299, 309 (2d Cir.

1983); United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978).” Mr. Black may have manifested a subjective right to an expectation of privacy by shredding the discarded documents; however, that expectation was not reasonably objective based on today’s society. Petitioner did not opt for any additional security measures under his contracted services with Fortress Paper, a

TEAM #37 contract that clearly allowed Fortress to dispose of the documents at a public trash facility. (R.

3-4.) The contents of the receptacle, which include intact and shredded documents, were abandoned by the Petitioner. (R. 1-2.) The mere fact that appellant shredded some of the documents in his garbage before he placed it outside of his business, did not create a reasonable heightened expectation of privacy under the Fourth Amendment. United States v. Scott, 975

F.2d 927, 930 (7th Cir. 1992). Under these facts, petitioner has no standing to challenge the search because he had no legal right to assert a privacy violation where the documents were readily accessible to the public for inspection. The absence of his privacy expectation was intently perpetuated when he left the documents in a trash container on street for collection, relinquishing his interest in the discarded documents to a third party. Greenwood, 486 U.S. at

39-44. Therefore, the recovery and reconstruction of the documents used as evidence was not a violation of the Fourth Amendment. Respondent respectfully requests that this Court affirmed the decision of the Thirteenth Circuit of Appeals.

Standard of Review

The Fourth Amendment standard for review of reasonableness of search is an objective one, and courts must evaluate each case on its unique facts, to determine whether officers can point to specific and articulable facts that, if taken together with rational inferences from those facts, reasonably warrant the intrusion. United States v. Torres-Urena, 513 F.2d 540, 542 (9th

Cir. 1975). However, the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Greenwood, 486 U.S. at

55. “The concept of ‘curtilage’ is a variant of the Old French word for a little court[yard]. It is not the entirety of a person's property; it is just the part used for private activities. United States v. Simms, 626 F.3d 966, 970 (2010); United States v. Dunn, 480 U.S. 294, 301 (1987);

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California v. Ciraolo, 476 U.S. 207, 212-13 (1986); Oliver v. United States, 466 U.S. 170, 180

(1984).” The special protection the Fourth Amendment accords people in their persons, houses, papers, and effects does not extend to their discarded garbage. Terry, 702 F.2d at 309; Shelby,

573 F.2d at 973. The warrantless search and seizure of the trash receptacle left at the curb outside the petitioner’s place of business would violate the Fourth Amendment only if he has standing from him manifesting a subjective expectation of privacy in the garbage that society accepts as objectively reasonable. Greenwood, 486 U.S. 35, 39 (1988); O'Connor v. Ortega, 480

U.S. 709 (1987); Ciraolo, 476 U.S. at 207 (1986); Oliver, 466 U.S. at 184 (1984); Katz v. United

States, 389 U.S. 347 (1967). See also United States v. Mancini, 8 F.3d 104, 109 (1st Cir. 1993)

(reasoning that the following factors are especially relevant to the standing determination: ownership, possession and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case.)

A. The petitioner has no standing to bring a Fourth Amendment challenge against

warrantless search and seizure of the shredded documents that were readily accessible

to the public.

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Greenwood, 486 U.S. 35 at 55 (1988).

Warrantless searches may be conducted in areas not within the petitioner's legitimate expectation of privacy, even if the defendant unsuccessfully attempted to shield those areas from inspection.

See, e.g., Florida v. Riley, 488 U.S. 445, 449 (1989) (upholding warrantless helicopter surveillance of interior of a partially covered greenhouse); Ciraolo, 476 U.S. at 212-215

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(upholding warrantless aerial surveillance of yard enclosed by 10 foot fence); Oliver, 466 U.S.

170, 177 (1984) (upholding warrantless search of open fields on which defendant placed fences and no trespassing signs); Scott, 975 F.2d 927, 930 (1992) (upholding warrantless search of garbage reasoning that shredding garbage and placing it in the public domain subjects it to the same risks regarding privacy, as engaging in a private conversation in public where it is subject to the possibility that it may be overheard by other persons); Greenwood, 486 U.S. at 40

(upholding warrantless search noting that curbside trash is readily accessible to animals, children, scavengers, snoops, and other members of the public).

Here, the petitioner has no legal right to privacy where the search and seizure of his garbage took place in an area outside of his business’s curtilage. (R. 1-2.) Petitioner contracted with Fortress Paper, who provided him with their company labeled trash receptacle, for trash service picked up from the street in front of his business, A&L Abatement. Id. Joan Parker of

Fortress paper testified that the company offers services with a range of security levels from basic recycling pickup to locked disposal containers with secure shredding and incineration. (R.

3-4.) Petitioner did not attempt to secure the Fortress Paper trash container even when offered additional services that would provide some sort of expectation of privacy. Had the shredded documents been at least locked in the container, there may have been a scintilla of subjective expectation of privacy. Id. Parker even testified that “Black seemed unconcerned about what happened to his papers after they were shredded, and instead signed up for the basic service plan.

Id. The petitioner declined to take any of the offered services that included: (1) in-office document pickup, as opposed to curbside; (2) a secure document container that allowed the customer to keep documents to be shredded under lock and key until they were in the hands of

Paper Fortress; and (3) secure shredding and incineration services, as opposed to standard

TEAM #37 recycling. (R. 3) Thus, Mr. Black had no expectation of privacy right to violate. See

Greenwood, 48 U.S. at 39 (factually analyzing that trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone); see also United States v. Aguirre, 839 F.2d 854, 857 (1st Cir. 1988) (reasoning that the most intimate of documents, if left strewn about in the most public of places, would surely not give rise to an expectation of privacy); Greenwood, 48 U.S. at 41 (citing Katz, 389 U.S. at 351, holding that “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. Hence, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of

Fourth Amendment protection”).

B. The shredded documents were abandoned by petitioner when he discarded of them in

the receptacle and relinquished over to Fortress Paper; thus, petitioner had no

possessory interest in the documents to manifest an expectation of privacy.

Police may lawfully seize contraband cast away by a fleeing suspect because the contraband has been abandoned by the suspect. See California v. Hodari D., 499 U.S. 621, 629

(1991). Similarly, a closed container is considered abandoned and therefore subject to search when the suspect disavows ownership of the container. See, e.g., United States v. Knox, 839

F.2d 285, 293 (6th Cir.1988). Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts - the question being whether the actor has voluntarily discarded or relinquished his interest in the property in question. United States v.

Scrivner, 680 F.2d 1099, 1100 (5th Cir. 1982). The accused need not to have abandoned the

TEAM #37 search item in the strict property sense, where an intent to relinquish ownership must be shown; merely an intent voluntarily to relinquish his privacy interest is sufficient. United States v.

Barlow, 17 F.3d 85, 88 (5th Cir. 1994). Once abandonment occurs, a renunciation of any reasonable expectation of privacy in the property is abandoned. United States v. Mustone, 469

F.2d 970, 972 (1st Cir. 1972).

In the present case, the petitioner discarded of the documents, which were recovered as evidence, into Paper Fortress’s curbside trash container, relinquishing his interest to the third party. (R. 1-3.) The receptacle was labeled with Fortress Paper’s name and company emblem.

Id. The company truck arrived shortly after the petitioner left his business, at which point

Fortress would have control of the documents as Petitioner intended. Id. Petitioner, therefore, cannot claim a possessory interest in the documents in efforts to gain standing under the Fourth

Amendment. The fact that Petitioner trashed the documents and left his place of business shortly after, shows he had no intent to retain possession of the documents. Thus, Petitioner abandoned the documents renouncing any right for expectation of privacy. United States v Leshuk, 65 F.3d

1105, 1111 (4th Cir. 1995) (Evidence supported finding that defendant abandoned backpacks and garbage bag, and thus deputy sheriffs' warrantless search of those items, during which marijuana plants and other incriminating evidence were found, did not violate Fourth Amendment).

II. THE TRIAL COUNSEL’S CRIMINAL ACTIVITY FAILED TO CONSTITUTE A

CONFLICT OF INTEREST UNDER THE SIXTH AMENDMENT.

Standard of Review

This Court should review the lower court’s decision under an abuse of discretion standard of review. The abuse of discretion standard includes review to determine that the discretion was

TEAM #37 not guided by erroneous legal conclusions. Koon v. United States, 518 U.S. 81, 100 (1996). To determine whether a legal position is substantially justified depends greatly on factual determinations that a district court is better positioned to rule on such factual determinations.

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403 (1990); Pierce v. Underwood, 487 U.S.

552, 559-60 (1988).

A. Petitioner failed to demonstrate an actual conflict of interest existed due to his

attorney’s conspiratorial criminal activity and indictment.

Petitioner’s Sixth amendment right to an effective counsel was not violated because

Petitioner failed to demonstrate an actual conflict of interest existed. Even if Petitioner could show an actual conflict of interest existed, the conflict did not adversely affect the outcome of the trial. A mere possibility of a conflict of interest does not produce a sixth amendment violation. Buenoano v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996). First, the defendant must prove that an actual conflict of interest existed because counsel owes the client a duty to avoid conflicts of interests. Id.; Beets v. Scott, 65 F.3d 1258, 1272 (5th Cir. 1995). According to

United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir. 1987), an actual conflict of interest exists when counsel fails to inform his client that he is under investigation before and during his client’s trial and that the investigation could affect his judgment. The court reasoned that not informing the defendant of this conflict could result in depriving the defendant of a fair trial. Id. at 1464. Also, in United States v. Cancilla, 725 F.2d 867, 868 (2d Cir. 1984), an actual conflict of interest exists when trial counsel has engaged in criminal activity related to the conduct for which defendant is convicted and the defendant has no knowledge of the activity.

Based on upon the facts of this case, an actual conflict of interest would have existed, if

Petitioner’s counsel failed to inform Petitioner of his alleged criminal activity and indictment.

TEAM #37

However, this failure did not happen. The present case exemplifies the contention that no actual conflict exists. Here, trial counsel was not aware of his indictment while representing Petitioner.

Since trial counsel was not cognizant of an impending indictment, he could not actively fail to inform the client under McClain and Cancilla. The indictment was not unsealed by the grand jury of the Eastern District of Louisiana until two days after Petitioner was convicted. When the

Suspicious Activities Report (“SAR”) was issued, the investigation conducted, and the indictment was handed down, neither the DEA nor the Jensen U.S. Attorney’s Office had any clue of the Louisiana investigation. If the DEA, U.S. Attorney’s Office, and the District Court were unaware of trial counsel’s impeding indictment, one can reasonably infer that trial counsel was unaware as well. Therefore, Petitioner is unable to prove that an actual conflict of interest existed.

B. If an actual conflict had existed, Petitioner failed to prove that the conflict of

interest adversely affected the outcome of the trial.

Assuming this Court finds that a conflict of interest existed, then it must be determined by a totality of circumstances2 whether the actual conflict of interest had an adverse effect on counsel’s representation. Buenoano, 74 F.3d at 1086. To prevail on a sixth amendment claim, first, the defendant must show counsel’s performance was deficient. Strickland v. Washington,

466 U.S. 668, 687 (1984). This would require showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. Id. This would also require showing that counsel’s errors were so serious to deprive the defendant of a fair trial. Id.

2 A petitioner may demonstrate that the cumulative effect of counsel’s individual acts or omissions was substantial enough to meet the Strickland test. Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995). 16

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However, prejudice is presumed only when counsel is burdened by an actual conflict of interest.

Id. at 692. Both of these claims have to exist in order to successfully overturn a lower court’s verdict. Id. at 687.

In order to establish if Petitioner will prevail based on the Strickland factors3, an actual conflict of interest caused by the trial counsel has to have resulted in an actual lapse in representation which led to an guilty verdict. United States v. Williams, 372 F.3d 96, 106 (2d

Cir. 2004); United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994). An actual lapse in representation occurs when: (1) the petitioner demonstrates that some plausible alternative defense strategy or tactic might have been pursued, and (2) the petitioner establishes that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests. Id. However, it is key to note that the Petitioner has the increased burden of proving that the alternative strategy possessed sufficient substance to be an executable alternative. Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993).

In Winkler, Petitioner claimed that trial counsel failed to initiate or engage in plea bargaining because of his interest in the $25,000 “bonus” and trial counsel should have developed “an intoxication defense” and his failure to mount this defense motivated by his pecuniary interest in total acquittal. Id. These claims were discredited. The court discovered that Petitioner advised trial counsel specifically that he was not interested in pleading to a manslaughter count even if offered because he was innocent. Id. Additionally, the court discovered the Petitioner’s version of the facts did not accurately portray himself as being so

3 If the issue in this case was a conflict based upon the representation of multiple defendants the proper “factors” or rule would be the Sullivan rule. Mickens v. Taylor, 535 U.S. 162, 175 (2002) (stressing the high probability of prejudice arising from multiple concurrent representation); Cuyler v. Sullivan, 466 U.S. 335 (1980). 17

TEAM #37 intoxicated to prevent forming the specific intent to cause death. Id. at 310. The court concluded that Petitioner had not established an “actual lapse in representation.” Id. Therefore, the

Petitioner’s sixth amendment rights had not been violated. Id.

The present facts suggest that at no time did trial counsel have an actual lapse in representation. Admittedly, there may have been times when trial counsel may have appeared harried or nervous, but these observations did not amount to a level where an actual lapse of representation presented itself. There are no concrete templates in place for trial attorneys to follow in order to present a case before a court. Petitioner’s trial counsel presented the case in the same manner as any reasonable defense attorney. Trial counsel filed the proper pre-trial motions, such as, a motion to suppress. He argued that the evidence obtained by the DEA from the trash receptacle was a violation of Petitioner’s rights under the fourth amendment. He called a representative of Paper Fortress as a witness to attempt to persuade the jury that Petitioner had an expectation of privacy of his trash because he hired a private company to secure that expectation. It can be reasonably inferred that trial counsel developed a sound defense, but the jury was not persuaded.

Furthermore, trial counsel had every reason to want to walk away with a not guilty verdict. If the alleged crimes that counsel was indicted for were true, counsel would definitely want Petitioner to win. An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney’s and defendant’s interests diverge; with respect to a material factual or legal issue or to a course of action. United States v.

Schwartz, 283 F.2d 76, 91 (2d Cir. 2002). The alleged crimes that trial counsel has been accused of and defendant has been convicted of, do not diverge, instead, they are aligned. A negative outcome on this case would further shed light on trial counsel’s activities. The two shared a

TEAM #37 common link in the crimes they were involved in. Trial counsel would not want the shredded evidence to be admitted to prevent being implicated based upon that evidence. Also, there are no facts to support that trial counsel actively took steps to prohibit Petitioner from negotiating any plea deals or advising Petitioner not to present a defense. Thus, the Strickland factors have not been met because without an actual lapse in representation, Petitioner has not proven that trial counsel’s criminal activities and indictment adversely affected the outcome of Petitioner’ case.

Therefore, without an actual conflict of interest and failing to establish the Strickland factors have been met, Petitioner’s sixth amendment rights have not been violated, and the lower court’s judgment should be affirmed.

TEAM #37

CONCLUSION

For the foregoing reasons, Respondents respectfully request that this Court DISMISS this case and AFFIRM the lower court’s decision that the Petitioner’s Fourth and Sixth Amendment rights were not violated.

Respectfully Submitted, Team 37 Counsel for Respondent