Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of

693 F.3d 274

2d Cir.

2012

Check Treatment

Docket

Commonwealth of the NORTHERN MARIANA ISLANDS, Plaintiff--Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Garnishee--Appellee, William H. Millard, Defendant, The Millard Foundation, Intervenor.

Docket No. 12-1857-cv.

United States Court of Appeals, Second Circuit.

Argued: Aug. 22, 2012. Decided: Sept. 5, 2012. Amended: Sept. 6, 2012.

275

ed to proceed pro se. Thereafter, Eisemann, inter alia, filed a motion for a new trial for Barnes and represented Barnes throughout the sentencing proceedings. After July 2008, Barnes simply “never reasserted his request to represent himself.” (Barnes brief on appeal at 2.) Moreover, Barnes‘s silence, in stark contrast to his adamant assertions of his perceived rights at other points during the proceedings, ultimately raises doubt as to the genuineness of Barnes‘s request to proceed pro se, i.e., whether Barnes “truly” wanted to represent himself at trial, Faretta, 422 U.S. at 817, 95 S.Ct. 2525. Barnes had displayed abundant willingness to express his personal views and to take issue with the views of others earlier in the proceedings. (See, e.g., July 17, 2008 Tr. 12; November 2007 Tr. 5-7; December 2007 Tr. 3-6; January 2008 Tr. 5, 6-9, 14-19, 24-26.) Against this background, the record evinces vacillation by Barnes in his self-representation request when, at the July 17 conference discussing that request, he voiced no objection whatever to Eisemann‘s statement that after the competency evaluation “[Barnes] might actually change his mind about whether he would like a lawyer” (July 17, 2008 Tr. 11; see id. at 11-34). Both Barnes‘s silence in response to that pre-evaluation statement and his post-evaluation conduct in allowing Eisemann to represent him, with no further mention of the self-representation request, are unsurprising given that, in the proceedings leading up to this request to proceed pro se, Barnes had expressed a clear desire not to represent himself (see January 2008 Tr. 5).

In sum, as set out in Parts I.A. and B. above, the record from November 2007 through June 2008 reveals that Barnes was engaging in obstructionist behavior toward his attorney and toward the district court, which the court found to be manipulative; that in early 2008 Barnes stated unequivocally that he did not wish to proceed pro se; that after Barnes changed his mind in mid-2008 and asked to represent himself at trial, the court stated that it would not rule on that request until there had been a competency evaluation; and that Eisemann stated that Barnes might change his mind again about proceeding pro se, a statement with which Barnes expressed no disagreement. The suggestion that Barnes would proceed to vacillate or abandon his request to proceed pro se—like Eisemann‘s prediction that Barnes would refuse even to cooperate in the prior competency evaluation—proved to be correct: After the psychiatrist advised that there was no competency impediment to Barnes‘s proceeding pro se, Barnes and his attorney never mentioned the subject again.

We have considered all of Barnes‘s arguments, and we conclude that his request to proceed pro se was abandoned.

CONCLUSION

The judgment of the district court is affirmed.

Michael S. Kim (Melanie L. Oxhorn, on the brief) Kobre & Kim LLP, New York, NY, for Plaintiff-Appellant.

Scott D. Musoff (Timothy G. Nelson, Gregory A. Litt, on the brief) Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Garnishee-Appellee.

Before: CABRANES, STRAUB and HALL, Circuit Judges.

PER CURIAM:

For the reasons set forth in the District Court‘s well-reasoned and thorough opinion, Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, No. 11-mc-00099-LAK (S.D.N.Y. Apr. 12, 2012), ECF No. 97, resolution of this case turns upon unresolved issues of New York State law regarding the interpretation of N.Y. C.P.L.R. § 5225(b). We believe it is more appropriate for the New York Court of Appeals to address this matter because it is in a better position than this Court to determine how § 5225(b) should be interpreted in light of New York‘s overall statutory scheme (including, but not limited to, consideration of whether the identical language in § 5225(a) should be given the same meaning as § 5225(b) and what the legislature intended when enacting § 5225(b)).

For the foregoing reasons and pursuant to New York Court of Appeals Rule 500.27 and Local Rule 27.2 of this Court, we respectfully CERTIFY to the Court of Appeals the following questions:

May a court issue a turnover order pursuant to N.Y. C.P.L.R. § 5225(b) to an entity that does not have actual possession or custody of a debtor‘s assets, but whose subsidiary might have possession or custody of such assets?
If the answer to the above question is in the affirmative, what factual considerations should a court take into account in determining whether the issuance of such an order is permissible?

“As is our practice, we do not intend to limit the scope of the Court of Appeals’ analysis through the formulation of our question, and we invite the Court of Appeals to expand upon or alter [these] question[s] as it should deem appropriate.” Joseph v. Athanasopoulos, 648 F.3d 58, 68 (2d Cir.2011).

It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York Court of Appeals a copy of this opinion as our certificate, together with a complete set of the briefs, the appendix, and the record filed in this Court by the parties. The parties shall bear equally all fees and costs that may be imposed by the New York Court of Appeals in connection with this certification. This panel will resume its consideration of this appeal after the disposition of this certification by the New York Court of Appeals. The stay imposed by the District Court shall remain in effect at least until we dispose of the case upon its return to this panel.