CHARLES FULTON, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-58

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-9a) is
   unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 12, 1988.
 On June 3, 1988, Justice Marshall extended the time for filing a
petition for a writ of certiorari to July 11, 1988, and the petition
was filed on July 9, 1988.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner is entitled to a new trial because the
government allegedly violated the Jencks Act, 18 U.S.C. 3500.

   2. Whether petitioner's counsel had a conflict of interest that
impaired his representation of petitioner.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of New York, petitioner was convicted on one count of
conspiring to possess more than one kilogram of heroin with intent to
distribute it (21 U.S.C. 841(a) and 846), five counts of possessing
heroin with intent to distribute it (21 U.S.C. 841(a)(1)), one count
of attempting to possess more than one kilogram of heroin with intent
to distribute it (21 U.S.C. 846), and one count of possessing cocaine
(21 U.S.C. 844).  Petitioner was sentenced to concurrent 20-year terms
of imprisonment on the conspiracy and heroin possession counts, as
well as a concurrent two year term of imprisonment on the cocaine
count.  Petitioner was also fined $710,000.  Pet. App. 2a-3a.

   1. The evidence at trial showed that petitioner was involved over a
two-year period in five large heroin transactions (Tr. 41-81,
219-260).  During part of that period, between June 1985 and February
1986, petitioner received a total of 18 kilograms of heroin.
Petitioner was arrested on April 13, 1987, when agents of the Drug
Enforcement Administration accompanied petitioner's supplier to an
apartment where petitioner and his accomplice hoped to buy five
kilograms of heroin.  After arresting petitioner, the agents found two
and one-half kilograms of heroin hidden in the apartment.  Id. at
229-234, 243-260.

   2. Before trial, petitioner was arraigned on an eight-count
superseding indictment.  At that time, the prosecutor brought to the
district court's attention the fact that petitioner's personal
calendar, which was seized at the time of his arrest, contained a
notation of a loan from petitioner to the son of petitioner's counsel
(C.A. App. 13a).  The prosecutor told the court that she would agree
to redact that notation in the event that the calendar was introduced
into evidence (ibid.).  /1/ The prosecutor said:  "I think it is
advisable that we notify the Court of this redaction, and that the
defendant be advised * * * about his right to be represented by an
attorney without conflict of interest" (ibid.).  Petitioner's counsel
then explained that petitioner gave counsel's son the money to buy
audio equipment for petitioner at an auction.  Petitioner's counsel
stated:  "My son felt very ill at ease with it and turned it -- never
used it, and turned it back" (id. at 14a).

   Petitioner then addressed the court and stated (C.A. App. 14a):

         I verify that that is what happened and * * * I do find some
      things in conflict of interest and * * * I am dismissing Mr.
      Port as my attorney and will seek other counsel.

   The court then asked petitioner:  "What is this conflict of
interest?" (ibid.).  Petitioner responded:  "The conflict of interest
of what the item that (the prosecutor) just spoke of" (ibid.).  The
court then asked:  "How does that give rise to a conflict of
interest?" (ibid.).  Petitioner responded that his lawyer's
description of the "loan" was accurate, but petitioner added:  "I feel
that there has been swaying or a swaying of (my attorney's) decisions
to consult me and therefore, I feel that the issue developed a
conflict of interest between my attorney and myself" (id. at 15a).
The prosecutor and petitioner's counsel then told the court that they
did not see any conflict of interest.  The district court agreed and
stated:  "I don't see any conflict of interest at all" (id. at 16a).
When the trial commenced five days later, petitioner's counsel told
the district court that "(t)he defendant has not changed his views"
but that "he has not hired anyone else * * * " (Tr. 2).

   3. At trial, Ashok Malik testified about petitioner's role in four
large heroin transactions.  On cross-examination, Malik, who testified
under a cooperation agreement with the government, discussed his
meetings with DEA agents.  He stated that "there were quite a few
debriefing meetings" from October 1986 through June 1987 (Tr. 91,
156).  In preparing for those meetings, Malik made "some notes in the
bullpen before coming to see (the agents) * * * so that (he) could
collect and get the time of these (drug) transactions" (Tr. 120).  The
government gave petitioner's counsel a photocopy of Malik's notes
(Pet. App. 7a).

   Special Agent Lori Butler was one of the DEA agents who interviewed
Malik (Tr. 412).  Butler met with Malik at least ten times before she
left on maternity leave in March 1987.  Agent Butler took notes during
her meetings with Malik (Tr. 417), but she was unable to locate those
notes when she returned to work after her leave (Tr. 417-418).  /2/
Petitioner's counsel questioned Butler at length about the misplaced
notes (id. at 418-422).  And counsel emphasized the lost notes in his
argument to the jury in an attempt to cast doubt on the government's
case (id. at 417-418).  Petitioner's counsel, however, did not move to
strike Malik's or Butler's testimony, nor did he move for a mistrial
based on the government's failure to produce the notes at trial.

   4. The court of appeals affirmed petitioner's convictions (Pet.
App. 1a-9a).  The court rejected petitioner's argument, first raised
in the court of appeals, that the government failed to produce
statements of witnesses as required by the Jencks Act, 18 U.S.C. 3500.
 The court observed that petitioner was given a copy of Malik's notes
and that the government was not required to produce the originals
(Pet. App. 7a).  The court further held that the government was not
required under the Jencks Act to preserve and turn over the rough
notes made by Agent Butler (ibid.).

   The court of appeals also ruled that petitioner failed to show that
an actual conflict of interest affected his lawyer's performance (Pet.
App. 6a).  And the court observed that "the redaction of the calendar
to remove the name of counsel's son as a person to whom (petitioner)
had loaned money removed any appearance of conflict" (ibid.).

                               ARGUMENT

   1. Petitioner contends (Pet. 15-16) that the government violated
the Jencks Act by giving petitioner's counsel photocopies of Malik's
notes rather than the original notes.  As the court of appeals pointed
out (Pet. App. 7a), however, petitioner's counsel did not request the
original notes at trial.  Moreover, nothing in the Jencks Act requires
the government to produce original documents containing witness
statements rather than accurate and clear photocopies.

   Petitioner further asserts (Pet. 18) that the "government's failure
to preserve the handwritten notes of agent Butler * * * is a violation
of the Jencks Act." Petitioner, however, did not preserve that claim
for appeal.  The Jencks Act provides that after a witness has
testified on direct examination, the court shall, on motion of the
defendant, order the government to produce any statement of the
witness in its possession that relates to the subject matter of the
witness's testimony (18 U.S.C. 3500(b)).  If the government does not
comply with the court's order, the court "shall strike from the record
the testimony of the witness" and, if necessary, declare a mistrial
(18 U.S.C. 3500(d)).  In this case, petitioner's counsel did not move
for the production of Agent Butler's notes.  Instead, counsel called
the jury's attention to the loss of Butler's notes and sought to make
"the most of the loss" of the notes "as casting doubt on the
Government's case." United States v. Miranda, 526 F.2d 1319, 1328 (2d
Cir. 1975), cert. denied, 429 U.S. 821 (1976).  Petitioner's counsel
did not seek a mistrial nor did he ask the court to strike any
witness's testimony.  Accordingly, petitioner waived any claim that
the government violated the Jencks Act by failing to produce Agent
Butler's notes.  See United States v. McKenzie, 768 F.2d 602, 607-608
(5th Cir. 1985), cert. denied, 474 U.S. 1086 (1986);  United States v.
Petito, 671 F.2d 68, 73-74 (2d Cir.), cert. denied, 459 U.S. 824
(1982), United States v. Lyman, 592 F.2d 496, 499 (9th Cir. 1978),
cert. denied, 442 U.S. 931 (1979);  United States v. Peterson, 524
F.2d 167, 175 (4th Cir. 1975), cert. denied, 423 U.S. 1088 (1976);
United States v. Washington, 504 F.2d 346, 349 (8th Cir. 1974);
United States v. Spatuzza, 331 F.2d 214, 218 (7th Cir.), cert. denied,
379 U.S. 829 (1964).  /3/

   2. Petitioner next maintains (Pet. 18-29) that the district court
did not conduct a sufficient inquiry into whether petitioner's counsel
labored under a conflict of interest.  It is settled that "the
possibility of conflict is insufficient to impugn a criminal
conviction.  * * * (A) defendant must establish that an actual
conflict of interest adversely affected his lawyer's performance."
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).  Petitioner does not
contend that the record shows such an actual adverse effect from a
conflict.  Instead, petitioner claims that his lawyer might have been
influenced by a conflict of interest and thus the district court
should have conducted an inquiry into the matter.

   The record does not support petitioner's claim.  The record shows
that petitioner gave his counsel's son some money to buy audio
equipment for petitioner.  Counsel's son returned the money to
petitioner without making any purchases.  Petitioner's relationship
with counsel's son was not relevant to any matter at issue in the
trial.  And the connection between petitioner and counsel's son was
not made known to the jury.  Petitioner does not dispute any of those
facts.  Nor could he explain to the district judge (who made several
inquiries) how those facts could possibly have given rise to a
conflict of interest.  The prosecutor and petitioner's lawyer did not
perceive any conflict.  Accordingly, the district court was justified
in finding that petitioner's counsel did not have a conflict of
interest that impaired his representation of petitioner.

   Petitioner cites Wood v. Georgia, 450 U.S. 261 (1981), and Holloway
v. Arkansas, 435 U.S. 475 (1978), for the proposition that a court
must conduct an inquiry when a possible conflict of interest is
brought to the court's attention.  Here, the district court conducted
such an inquiry.  The district court ascertained the facts regarding
petitioner's relationship with his lawyer's son.  The court gave
petitioner the opportunity to explain why he thought those facts gave
rise to a conflict of interest.  And the court asked both parties'
counsel whether they perceived any conflict.  On the basis of the
court's inquiry, the court found that petitioner's counsel did not
have an actual conflict of interest that would affect his performance.
 The court of appeals, which reviewed the entire record, agreed with
that assessment.  Petitioner is not now entitled to another hearing on
that issue.  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Acting Assistant Attorney General

   ANDREW LEVCHUK

      Attorney

   SEPTEMBER 1988

   /1/ At trial, the district court admitted into evidence only three
pages of petitioner's calendar;  those pages did not include the
reference to counsel's son (Tr. 251).

   /2/ Another DEA agent had used Butler's notes to prepare a formal
report on Malik's interviews (Tr. 415, 418-419).  The government gave
petitioner's counsel a copy of that report before trial.

   /3/ There is authority for the proposition that agents must
preserve their original notes of interviews with witnesses.  See
United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976);  United
States v. Harrison, 524 F.2d 421, 434-435 (D.C. Cir. 1975).  The
prevailing view, however, is that the Jencks Act does not require the
production of an agent's rough notes of interviews once those notes
have been "reduce(d) to formal reports" (United States v. Gotchis, 803
F.2d 74, 78 (2d Cir. 1986)).  See United States v. Hinton, 719 F.2d
711 (4th Cir. 1983), cert. denied, 465 U.S. 1032 (1984);  United
States v. Bastanipour, 697 F.2d 170, 174 (7th Cir. 1982), cert.
denied, 460 U.S. 1091 (1983);  United States v. Sanchez, 635 F.2d 47,
66 n.20 (2d Cir. 1980);  United States v. Cole, 634 F.2d 866, 868 (5th
Cir.), cert. denied, 452 U.S. 918 (1981);  see generally Killian v.
United States, 368 U.S. 231, 241-242 (1961).  Moreover, even the Ninth
Circuit, which holds rough notes subject to production under the
Jencks Act, has held that the Jencks Act is not violated when the
notes are lost, as in this case, rather than destroyed as a matter of
agency policy.  See United States v. Angelini, 607 F.2d 1305, 1308
(9th Cir. 1979).  Accordingly, even the courts that regard rough notes
as being subject to the Jencks Act would not necessarily have found a
violation in this case, even if the issue had been preserved.  In any
event, as we have noted, any conflict among the circuits on that issue
is not presented in this case because petitioner waived any Jencks Act
claim concerning Agent Butler's rough notes.

   /4/ None of the court of appeals decisions cited by petitioner
(Pet. 28-29) require a formal evidentiary hearing when, as here, the
undisputed facts do not demonstrate any conflict of interest.