51 F.4th 67
2d Cir.2022Background
- Jacqueline Graham ran "Terra," a scheme promising mortgage elimination using pseudo-legal documents; the scheme temporarily erased nearly $40 million in mortgage debt and victim fees were not returned.
- A grand jury indicted Graham for conspiracy to commit mail, wire, and bank fraud; trial was scheduled for June 2019.
- The government sent a plea offer that expired; Graham’s pretrial counsel admitted he had not transmitted the written offer; the court held an April 10, 2019 conference in which Graham reviewed the expired offer on the record and the court appointed new counsel.
- The government told the court it might reauthorize the offer if Graham requested it, but Graham (with new counsel) did not seek reinstatement and proceeded to a jury trial beginning June 3, 2019.
- The jury convicted Graham; she appealed arguing (1) ineffective assistance for failure to convey the plea offer (invoking Missouri v. Frye and Lafler) and (2) various evidentiary and jury-instruction errors.
- The Second Circuit affirmed: it held Graham waived her Frye/Lafler claim by knowingly proceeding to trial after being informed and receiving new counsel, and it rejected her challenges to other-acts evidence, red-flag emails, and the conscious-avoidance instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pretrial counsel was constitutionally ineffective for failing to transmit a plea offer (Frye/Lafler) | Graham: counsel failed to convey an offer that she would have accepted; relief (reinstatement/resentencing) is required | Government: claim is meritless or needs collateral development; alternatively Graham waived any Frye right by proceeding to trial | Waived—Graham reviewed the expired offer on the record, got new counsel, then chose trial; she cannot now revive Frye/Lafler relief |
| Admissibility of other-acts evidence (EFT scheme; credit-repair scheme) under Rule 404(b) | Graham: evidence was improper propensity evidence and prejudicial | Government: evidence was probative of intent, knowledge, and was inextricably intertwined with charged scheme | No abuse of discretion—evidence admissible for intent/knowledge or as part of the same transactions |
| Admissibility of "red-flag" emails (outside attorney’s legal-opinion statements) | Graham: hearsay and impermissible legal opinion that prejudiced jury | Government: offered not for the truth but to show Graham’s knowledge and intent; limiting instruction mitigated risk | Admissible for non-hearsay purpose (knowledge/intent); limiting instruction sufficed |
| Whether conscious-avoidance (willful blindness) instruction was proper | Graham: improper because evidence insufficient | Government: ample evidence of deliberate avoidance (warnings, raids, communications) | Proper—sufficient factual predicate for instruction |
Key Cases Cited
- Missouri v. Frye, 566 U.S. 134 (2012) (Sixth Amendment requires effective counsel during plea negotiations; counsel must convey offers)
- Lafler v. Cooper, 566 U.S. 156 (2012) (remedies for counsel-induced loss of plea bargaining include resentencing or reoffering plea)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland prejudice framework applied to guilty-plea context)
- Berghuis v. Thompkins, 560 U.S. 370 (2010) (presumption against waiver of constitutional rights; waiver requires intentional relinquishment)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims may be raised on collateral review; distinguishes waiver from procedural default)
- United States v. Olano, 507 U.S. 725 (1993) (distinguishing waiver and forfeiture and their effects on appellate review)
- United States v. Svoboda, 347 F.3d 471 (2d Cir. 2003) (conscious-avoidance doctrine explained)
- United States v. Spruill, 808 F.3d 585 (2d Cir. 2015) (waiver requires intentional decision not to assert a right)