United States v. Cohan
798 F.3d 84
2d Cir.2015Background
- Cohan, a dentist, pleaded guilty (2009) to healthcare fraud and aggravated identity theft and agreed in a plea agreement to pay restitution (amount to be determined) and forfeit $600,000; the plea agreement contained a merger clause.
- At sentencing (2010) the district court set restitution at $607,186 and entered a final forfeiture order for $600,000; the government seized approximately $222,000 initially.
- Cohan later claimed the government had agreed to apply forfeited funds toward restitution and that he relied on that understanding; the government denied any such agreement.
- In April 2013 the government sought writs of garnishment to collect additional retirement-account assets (~$627,000) to satisfy restitution; Cohan objected, arguing estoppel based on the alleged agreement.
- At the October 9, 2013 garnishment hearing, former AUSA Brownell and former co-counsel Wikstrom testified; Russo represented Cohan at the hearing while Wikstrom testified as a witness.
- The district court found the plea agreement and merger clause precluded Cohan’s claim and concluded forfeited funds need not be credited against restitution; it granted the garnishment. Cohan appealed, asserting Russo labored under a Sixth Amendment conflict and the court erred in not inquiring into it.
Issues
| Issue | Cohan's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether defendant had Sixth Amendment right to conflict-free counsel at a writ of garnishment hearing | Russo was a necessary witness and thus had a conflict; district court should have inquired and disqualified or obtained a waiver | Garnishment is a civil, postjudgment collection proceeding, so the Sixth Amendment right to counsel does not apply | Garnishment proceedings to enforce restitution are civil and collateral; no Sixth Amendment right to counsel, so no duty to inquire |
Key Cases Cited
- LoCascio v. United States, 395 F.3d 51 (2d Cir. 2005) (right to representation by conflict-free counsel under Sixth Amendment)
- Levy v. United States, 25 F.3d 146 (2d Cir. 1994) (actual or potential conflicts and prejudice standards)
- Rogers v. United States, 209 F.3d 139 (2d Cir. 2000) (district court duties to inquire and obtain waiver or disqualify counsel)
- Stantini v. United States, 85 F.3d 9 (2d Cir. 1996) (plain-error review in criminal appeals)
- Marcus v. United States, 560 U.S. 258 (Sup. Ct. 2010) (plain-error test for appellate review)
- Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697 (2d Cir. 2000) (restitution is part of sentencing, not a separate civil action)
- Timilty v. United States, 148 F.3d 1 (1st Cir. 1998) (restitution orders do not need reduction to civil judgment for enforcement)
- Satterfield v. United States, 743 F.2d 827 (11th Cir. 1984) (restitution as criminal penalty)
- Kollintzas v. United States, 501 F.3d 796 (7th Cir. 2007) (garnishment and FDCPA procedures may be pursued under criminal docket postjudgment)
- Mays v. United States, 430 F.3d 963 (9th Cir. 2005) (FDCPA procedures available as postjudgment remedies in criminal cases)
- McCleskey v. Zant, 499 U.S. 467 (Sup. Ct. 1991) (no Sixth Amendment right to counsel in collateral proceedings)
- Bloomer v. United States, 162 F.3d 187 (2d Cir. 1998) (same)