920 F.3d 61
D.C. Cir.2019Background
- Caleb Gray-Burriss founded and ran NASPSO and was indicted for schemes diverting pension and union funds; jury convicted him on 18 of 19 counts (mail fraud, embezzlement, and related offenses).
- Evidence at trial showed checks to himself from the pension fund, risky investments of pension monies, and use of union funds for a Las Vegas condominium; he had a prior 2007 consent decree ordering restitution for similar conduct.
- On direct appeal this court affirmed convictions but remanded ineffective-assistance-of-counsel claims for district-court factfinding, as is the circuit’s usual practice when such claims are first raised on appeal.
- On remand the district court held a two-day evidentiary hearing (testimony from Gray-Burriss, his trial attorneys Heather Shaner and Patrick Christmas, and former union counsel Bruce Goodman) and denied the motion for a new trial and resentencing.
- Gray-Burriss raised three principal Strickland-based claims: (1) counsel failed to preserve an advice-of-counsel defense by not securing Goodman’s testimony or obtaining an instruction; (2) counsel failed to obtain an accounting expert; and (3) counsel inadequately prepared him to testify. The district court rejected each claim.
- The D.C. Circuit affirmed the district court, agreeing that counsel’s performance was not deficient in ways that prejudiced the defense and that even with the proffered evidence an advice-of-counsel defense would have failed as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Failure to preserve advice-of-counsel defense | Shaner and Christmas failed to procure Goodman, failed to lay hearsay foundation for Levinson testimony, and failed to request an advice-of-counsel instruction; Goodman would have said borrowing pension funds was permitted | Good faith advice defense would still lack foundation: Goodman’s limited, narrow advice (re: a $1,200 dance) did not show reliance on counsel for large withdrawals and Gray-Burriss did not disclose material facts to Goodman | No deficient performance affecting outcome; even with Goodman’s testimony defendant could not meet DeFries elements (good-faith reliance and full disclosure) so no Strickland prejudice |
| 2. Failure to secure forensic accounting expert | Counsel did not obtain or present an accounting expert to show proper bookkeeping or good-faith handling of funds | Failure was largely due to Gray-Burriss’s refusal/neglect to submit required financial-need affidavit for CJA funding; strategic decision to forgo an expert was reasonable given risk of damaging cross-examination | No deficient performance: defendant’s own choices caused lack of funding and an expert’s testimony risked serious impeachment, so no Strickland relief |
| 3. Failure to prepare defendant to testify/mock cross-examination | Counsel did not conduct mock cross or sufficiently prepare Gray-Burriss so his waiver to testify was uninformed | Counsel discussed advantages/disadvantages of testifying and anticipated cross-examination; mock cross would likely not have changed decision and testimony likely would not have altered verdict given overwhelming evidence | No deficient performance and no prejudice: preparation was reasonable and defendant’s testimony would not have created a reasonable probability of acquittal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard: deficiency and prejudice)
- United States v. DeFries, 129 F.3d 1293 (D.C. Cir.) (elements for advice-of-counsel defense: good-faith reliance and full disclosure)
- United States v. Gray-Burriss, 791 F.3d 50 (D.C. Cir. 2015) (prior appeal; remand of newly raised ineffective-assistance claims)
- United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003) (circuit practice to remand colorable ineffective-assistance claims for evidentiary hearing)