391 F.3d 135 | 2d Cir. | 2004
Lead Opinion
Judge IRENAS concurs by separate opinion.
Tremain Wade appeals from the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254, seeking to set aside his conviction in courts of the State of New York for murder and illegal weapons possession. At his trial, the New York Supreme Court excluded Wade’s alibi defense on the ground that his alibi notice was untimely under New York’s Criminal Procedure Law Section 250.20. He claimed in his petition that the exclusion of his alibi violated his rights under the Sixth Amendment to the Constitution. The United States District Court for the Eastern District of New York (Weinstein, J.) denied the petition. The district court concluded that the decision of the New York Supreme Court, Appellate Division, upholding the constitutionality of the exclusion of the alibi was not an unreasonable interpretation of Supreme Court, authority. We agree and affirm.
The Trial Evidence Establishing Wade’s Guilt
The evidence at Wade’s trial established the following: Lawrence Munson was shot and killed in the early morning of October 24, 1993, after an argument outside of a nightclub in Queens, New York. Munson and his friend Rudolph Jones had come to the Q Club at about two a.m. Sometime after five a.m., they exited the club and conversed with two women in a parked BMW. Two other men approached. One of them asked, “[W]hy you trying to talk to my girl?” Munson answered, “[Y]o, I wasn’t trying to talk [to her], she was trying to talk to me.” The man touched his waistband, prompting Munson to say, ‘You act like you got a gun, don’t act like you got heat.” The man then drew a gun and fired, hitting MunsOn in the chest.
Munson and Jones got into their red Mercury Mercure, and drove off — Munson behind the wheel. When the car hit a bicyclist, Jones realized Munson had been hit, and flagged down a police car. Mun-son soon died from his wound. At no point during the argument or the brief car ride did Munson tell Jones that he knew his assailant. On November 14, 1993, Jones viewed a photo array and identified the petitioner, Tremain Wade, as the shooter.
That same day, apparently after Jones’s photo identification, the police went to petitioner’s house to question him about the shooting. Petitioner was not home. To avoid the police, he then fled to Albany. He was not found until almost three years later, on September 24; 1996, at which point he was arrested.
Upon his arrest, petitioner spoke for about twenty minutes with Detective Wendell Stradford of the New York Police Department. Stradford testified that petitioner admitted having known, based on conversations with his father and friends, that the police were looking for him in connection with Munson’s killing, and that he therefore went to Albany to avoid arrest. Wade told Stradford he “knew this would come upon him one day.” Albany police officers testified that they had stopped petitioner on more than one occasion during the intervening period, and that petitioner had used a false name.
Stradford’s testimony left unclear, however, whether petitioner’s statement referred to the night Munson was killed or the last night petitioner had seen Munson alive, or whether those two dates were the same. Stradford asserted his belief that petitioner’s statement to the effect that he had seen Munson at the Q Club referred to the night Munson was killed. But Stradford also admitted at one point that petitioner had told him he did not remember the night Munson was killed, and that he did not actually learn of Munson’s death until two weeks later, on November 5, 1993.
After his interview with Stradford, petitioner was placed in a lineup and Jones again identified him as the shooter. Jones also identified petitioner in court during his trial.
Petitioner’s defense centered on the testimony of his friend Donna Beckett. Petitioner, Munson, and Beckett were friends from school and had ridden the bus together for almost ten years. Beckett testified that she had accompanied petitioner to the Q Club in October 1993, but that the occasion predated the night Munson was killed. Although they had seen Munson at the club the night they were there' — Beckett had even danced with him — Beckett testified that she went to the Q Club only on Thursday nights. The shooting, by contrast, took place on early Sunday morning. Beckett added that she had seen Munson at a gas station subsequent to their trip to the club.
In his trial defense, petitioner also introduced the surveillance video of the Q Club’s front entrance for the night Munson was killed. Viewing the videotape, Jones was unable to identify petitioner or his friends entering the club that night. The club, however, had two other entrances.
The Alibi Defense
On Friday, November 14, 1997, a few days before petitioner’s trial was to begin, his counsel interviewed petitioner’s cousin, Kim Jackson. Jackson told petitioner’s counsel that she would testify that petitioner could not have been at the Q Club in Queens on October 24, 1993, the night Munson was killed, because he was at an apartment on Long Island.
The next Tuesday, November 18, 1997, over four years after the crime, a year after petitioner’s arrest, and the day before the case was to be sent for jury selection, petitioner’s defense counsel asked leave of the court to file a late notice of alibi.
The next day, following jury selection, the case was transferred to Justice Robert Hanophy for trial. The prosecution renewed its objection, stating, “This -is so long after. So the timeliness is a big thing.” Defense counsel reiterated that he had only just discovered the alibi himself, and revealed that until that point he himself had not known where petitioner was on the night of the shooting:
[Defense Counsel]: One of the problems, Judge, well, the defendant was arrested last year, Judge. One of the problems that had incurred [sic] was the fact that he’s been continuously incarcerated and had difficulty making contact with people, to get people to call me. This witness, there have been numerous people that he’s attempted to get in contact with me and this is the first time this witness got in touch with me.
* :¡< :¡:
This defendant has only told me, Judge, that he did not do this and he has told me that from the very beginning. This defendant has not told me, I will,state it out, this defendant has not told me where he was the night that this person was killed.
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The Court: Let me stop you for a second. You just said now your client has not told you where he was on the night of this murder; is that correct?
[Defense Counsel]: That is correct. Other than the fact he said that he didn’t do it.
Justice Hanophy nonetheless concluded, “I see no reasonable excuse for failure to file a timely notice .... [The People] are going to be unduly prejudiced.” In response to defense counsel’s point that Jackson was willing to speak to the prosecution before trial, Justice Hanophy added:
I find it would be an impossible task for the People to go out and get witnesses to try and counter this last minute notice of' alibi .... [T]his is a 1993 crime. He was' arrested in ’96. There has been almost two years [sic] and there should have been something done. Filing a notice on the day of trial is not timely to me.
Justice Hanophy subsequently issued a written ruling, finding that petitioner had “failed to allege a reasonable excuse to the Court for this most egregious delay in filing notice of this defense” and that “it would be unduly burdensome for the People to now be in a position to try to locate witnesses to refúte the defendants] untimely alibi defense.” Defense counsel' cited no constitutional basis for his objection to the exclusion of the testimony.
The trial was conducted without evidence of petitioner’s alibi, and the jury convicted petitioner of second degree depraved indifference murder and one weapons count, while finding him not guilty of second degree intentional murder. Petitioner was sentenced to twenty-five years to life imprisonment.
On appeal to. the’Supreme Court, Appellate Division, petitioner, raised three objections to the exclusion of Jackson’s testimony. His first objection was based on New York’s criminal procedure law. He also objected that, in overruling Justice Appel-man, Justice Hanophy had not followed the law of the case. Finally, he raised a federal constitutional objection to the exclusion based on Taylor v. Illinois, 484 U.S. 400,
Wade’s petition for habeas corpus raised a single claim — that exclusion of the alibi violated his Sixth Amendment right to present witnesses under Taylor and related cases. The district court found the case “close,” but deferred to the Appellate Division’s judgment. On the issue of justification for the delay in giving the alibi notice, the district court concluded that petitioner could not have been unaware of his alibi. The court noted the close relationship between petitioner and the deceased, and petitioner’s awareness from an early date that the police considered him a suspect. The court concluded it was “unlikely that he was not aware of where he was on the night of the murder.”
Discussion
We conclude that the Appellate Division’s affirmance of petitioner’s conviction was not an unreasonable application of the Supreme Court’s precedents, and the district court therefore correctly denied the petition. Petitioner’s alibi notice was not served until more than a year after the date prescribed by state law, and just before the start of trial. Based on petitioner’s three-year pattern of flight and obstructive conduct, the state court could reasonably conclude that petitioner’s violation of the notice-of-alibi rule was willful misconduct, and that the alibi was false. It could also reasonably conclude that the delay was prejudicial to the People’s ability to rebut the alibi.
1. Relevant Supreme Court Authority.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that federal courts may not grant habeas corpus relief to state prisoners
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1). The relevant state court decision for our purposes is that of the Appellate Division, which declared that petitioner’s federal constitutional claim was “without merit.” Such a summary determination, even absent citation of federal case law, is a determination “on the merits” and as such requires the deference specified by § 2254. See Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002). The Appellate Division concluded that exclusion of petitioner’s alibi was not unconstitutional. Our task is to determine whether the Appellate Division’s decision “involved an unreasonable application” of Taylor v. Illinois and other pertinent Supreme Court authority. See Williams v. Taylor, 529 U.S. 362, 409-10, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” U.S. Const, amend. VI. In interpreting that text, the Supreme Court has made clear two general proposi
The principle that undergirds the defendant’s right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case.
Id. at 410-11,108 S.Ct. 646.
In Taylor, the Supreme Court applied these general principles to the exclusion of potentially exculpatory testimony of a defense witness.
In evaluating the defendant’s subsequent Sixth Amendment challenge to the exclusion of the testimony, the Supreme Court declined to “draft a comprehensive set of standards to guide the exercise of discretion in every possible case,” and stated generally that courts must weigh “the defendant’s right to offer the testimony of witnesses in his favor” against the likelihood that improperly offered testimony will subvert “[t]he integrity of the adversary process.” Id. at 414-15, 108 S.Ct. 646. The Court observed that discovery rules serve the important interest of “mini-miz[ing] the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony.” Id. at 411-12, 108 S.Ct. 646. It also noted that it was “reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed.” Id. at 414, 108 S.Ct. 646.
The Court rejected three arguments advanced by the defendant. First, it rejected the argument that the defendant should not be punished for the behavior of his counsel. See id. at 418, 108 S.Ct. 646. Second, it rejected the argument that the prosecution’s opportunity to voir dire the witness made up for the late notice. “More is at stake than possible prejudice to the prosecution,” the Court stated. Id. at 416, 108 S.Ct. 646. Given that the late
In a more recent case involving a defendant’s right to present evidence, the Court reasserted that there is no per se constitutional bar against the exclusion of testimony for failure to comply with discovery rules, specifically the notice provisions of Michigan’s rape-shield law. See Michigan v. Lucas, 500 U.S. 145, 153, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). The Court stated generally that “[rjestrictions on a criminal defendant’s right[ ] ... to present evidence ‘may not be arbitrary or disproportionate to the purposes they are designed to serve.’” Id. at 151, 111 S.Ct. 1743 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). But because exclusion could be justified in certain circumstances, the Supreme Court remanded to the state court (which had found a per se bar against exclusion) to reevaluate the exclusion in context. Id. at 153, 111 S.Ct. 1743.
2. Merits.
Because the Appellate Division gave no explanation beyond saying that the claim was “without merit,” we cannot know the exact basis of its reasoning. If any reasonable ground was available, we must assume the court relied on it. See Broum, 283 F.3d at 498. We believe that, based on the evidence before it, the Appellate Division could reasonably have concluded (i) that petitioner’s failure to disclose the alibi in a timely fashion was willful misconduct or that there was a substantial risk that the alibi was fabricated, and (ii) that the misconduct caused the People irremediable prejudice. Although the Sixth Amendment generally requires courts to employ alternative sanctions where possible, it would not have been an unreasonable reading of Taylor to condone exclusion of petitioner’s alibi in these circumstances.
a. The mllfulness of the violation and the suspicious nature of the alibi. New York law required petitioner to disclose his alibi within eight days of the People’s timely demand. In violation of that requirement, petitioner waited over a year after his arrest — itself three years after the murder — without doing so. The alibi was not revealed to the prosecution until defense counsel presented it on, literally, the eve of trial. The Appellate Division’s task was to determine whether the late revelation was the product of an innocent mistake or of intentional obstruction.
Petitioner contended that his violation of the notice-of-alibi rule was not “willful misconduct” because he himself did not know where he was on the night of the murder until his counsel interviewed Kim Jackson in November 1997. However, petitioner offered no competent evidence supporting that assertion. It was supported only by defense counsel’s statement to the trial court in that “[petitioner] has not told me where he was the night that this person was killed .... [o]ther than the fact he said that he didn’t do it.”
Especially in the absence of any qualified evidence, the Appellate Division could reasonably have rejected the proffered explanation and concluded either that the alibi was deliberately withheld or that there was a strong likelihood that the alibi was fabricated at the last minute. Petitioner knew he was a suspect within three
To believe that petitioner passed four years in ignorance of having spent the night of the murder with Jackson in Long Island rather than at the Q Club in Queens, a court would have to accept a series of improbable propositions. The court would have to accept that, when he learned of Munson’s murder two weeks after it took place, petitioner could no longer remember where he was on the night his childhood friend was killed at a club he himself had recently patronized. It would have to accept that he failed for the next four years, even after he had been jailed and while he awaited trial for murder, to ask his close friends and family to assist him in reconstructing his whereabouts. Finally, it would have to accept that Jackson, who all the while possessed pressing information that could exonerate her cousin, never revealed it.
It would certainly have been reasonable for the Appellate Division to conclude instead that petitioner was engaged in a long continued course of obstruction of-justice and that his alibi notice was delivered late either to make its investigation more difficult, or because the alibi was- recently fabricated. Such a conclusion would justify the further conclusion that excluding the alibi witness was consistent with Taylor.
Petitioner argues that prejudice was minimal because Jackson was not a “surprise witness.” The argument depends on the fact that petitioner mentioned to Detective Stradford in his 1996 statement that Jackson had accompanied him to the Q Club when he last saw Munson. This argument misses the mark. The People might have interviewed Jackson in 1996 once petitioner mentioned her name to Detective Stradford. But, because petitioner did not disclose any alibi, the People had no reason to believe Jackson would be an alibi witness for petitioner. Indeed, because New York’s rule requires prompt notice of alibi, and petitioner had given no notice, the People were entitled to assume that Jackson would not provide an alibi. See Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (“The adversary system of trial ... is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.”). Nor would a pretrial adjournment have done much to counteract the prejudice. By the time petitioner presented his alibi, as Justice Hanophy observed, it would likely have been difficult to find a witness who could remember the events from 1993 and rebut Jackson’s story.
The circumstances in Noble and Escal-era were quite different. The defendant in Escalera had noticed an alibi claim which placed him at his home for a brief but crucial period of time. The defendant himself testified that he was home at the time of the murder, approximately 6:30 p.m., and another witness testified that he dropped the defendant off at his home at 6:00 and picked him up there at 6:40. The defendant then sought to introduce a third witness to attest to his presence at home at the same time. The People were thus confronted only with corroboration of a precise alibi defense that had been noticed long before. Because the absence of prejudice was patent, we remanded to the district court to address the willfulness of
In Noble, we granted the writ because the failure to notice the alibi was a mere matter of semantics. The defendant’s theory was that at the time of the murder he was inside the Around the Corner Bar. The People’s theory, by contrast, placed the defendant “in front of the Around the Corner Bar.” Noble, 246 F.3d at 100. Defense counsel plausibly explained that he did not consider his theory an alibi defense because he did not claim to be “at some place or places other than the scene of the crime.” Id. at 96 (citing N.Y.Crim. Proc. Law § 250.20[1]). We held that there was no willfulness because the lack of notice resulted from counsel’s misunderstanding of state law; further, in circumstances where the witness had long been on the defendant’s disclosed witness list, and was, as claimed, present at the crime scene, we also saw no prejudice. See id. at 98-101.
Neither Noble nor Escalera suggests that a state court may not lawfully exclude an alibi witness where the circumstances permit a reasonable conclusion that the alibi was willfully concealed or bore a substantial risk of falsehood, and that the late notice irremediably prejudiced the People.
Conclusion
We emphasize that, by reason of AED-PA’s restrictive standards, the only question we face is whether the state court’s determination of constitutionality was objectively unreasonable. We have not considered the very different question of how we would treat the same facts were we required to rule de novo on their legal significance. Where the Supreme Court has spoken only in general terms, as it did in Taylor, various outcomes may be reasonable applications of the Court’s precedents. See Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004) (“The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.”). The Appellate Division’s determination was not objectively unreasonable.
The judgment of the district court is AFFIRMED.
. N.Y.Crim. Proc. Law § 250.20[1] provides that defense counsel must serve notice of an alibi defense within eight days of a demand by the prosecution. The court may extend that period "[fjor good cause shown.” It is not disputed that the prosecution had made a demand contemporaneous with petitioner's arrest.
. In two cases decided prior to Taylor, the Supreme Court directly addressed notice-of-alibi rules, but not in the context of the Compulsory Process Clause. In Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Court held that Florida’s notice-of-alibi rule did not violate the Fifth Amendment's provision against self-incrimination, even though the sanction for noncompliance was exclusion of the testimony. Next, in Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the Court struck down Oregon's notice-of-alibi rule under the Due Process Clause because it did not provide for reciprocal disclosure by the state.
. Petitioner objects that it would not have been reasonable for him to have hidden his alibi from his own lawyer. Petitioner argues that if he truly knew of the alibi at the time, there was no "strategic advantage” in concealing it from his counsel. .Yet this objection does not necessarily weigh in petitioner's favor. Even if the state court accepted that petitioner’s post-arrest silence resulted from his ignorance of any truthful alibi, it might reasonably have concluded that such ignorance in turn resulted from the fact that there was no truthful alibi. As the Supreme Court observed in Taylor, it is "reasonable to presume that there is something suspect about a defense witness who- is not identified until after the 11th hour has passed.” Taylor, 484 U.S. at 414, 108 S.Ct. 646. What was "suspect” about the alibi in petitioner's case was not merely its timing but also its veracity.
. In some cases, of course, a court may be obliged to accept otherwise counterintuitive propositions. A defendant may not be able to remember an alibi if he does hot become a suspect for some time after the incident, or if he suffers from amnesia; a witness may not come forward if she is unaware of the relevance of her knowledge to a criminal case; a late-arriving story may be plausible because it is corroborated by physical- evidence. It would not be appropriate, however, for us to "draft a comprehensive set of standards to guide the exercise of discretion in every possible case.” Taylor, 484 U.S. at 414, 108 S.Ct. 646. It suffices that petitioner has offered no evidence to rebut the logical inferences in this case. The Supreme Court's opinion in Taylor, which emphasized "the truth-determining function of the trial process,”, id. at 414-15, 108 S.Ct. 646, does not require state courts to suspend all reasonable disbelief.
. In an effort to discount the prejudice attributable to his violation of the notice-of-alibi rule, petitioner argues that his fourth year of obstruction- was in all likelihood harmless. Any prejudice to the prosecution’s ability to locate witnesses who might rebut the alibi inevitably occurred during the three years he spent avoiding the police, when he was not under a statutory responsibility to reveal his alibi. This is a novel argument, but we do not think the Appellate Division would have been unreasonable to reject it. It is one thing to present one's alibi in a timely fashion after spending three years on the run. We need not address what the Constitution requires of the State in such a case. But it is quite another thing to use one’s three years on the run, and the prejudice caused by those three years, as an excuse for a further year's delay in violation of discovery rules. Such reasoning turns the Compulsory Process Clause from a protection into an abusive weapon. "[T]he mere invocation of [the right to present witnesses] cannot automatically and invariably outweigh countervailing public interests.” Taylor, 484 U.S. at 414, 108 S.Ct. 646.
. We note as well that Escalera was decided prior to the enactment of AEDPA, and thus offers less guidance on how to treat state court denials Of federal constitutional claims under § 2254(d)(1) than cases decided after AEPDA.
Concurrence Opinion
Concurring.
I concur in the judgment and agree that the trial court was justified in excluding the proffered alibi testimony based on the holding in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), which permits the exclusion of alibi testimony, without consideration of the prejudice to the State, when the defendant engages in willful misconduct. I write separately because Judge Leval’s excellent opinion may convey the impression' that Petitioner’s three year flight from justice should be considered in assessing the prejudice to the prosecution caused by his' failure to timely file notice of an alibi defense as required by New York law! Therefore, I join all parts of the majority’s opinion except that captioned “b. Prejudice to the prosecution from the late notice.”
Many jurisdictions, including New York State, have statutes or court rules which require a defendant to give early notice of
Taylor identifies two types of willful misconduct justifying the exclusion of alibi testimony without consideration of the prejudice to the State. First, “[i]f ... the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the Compulsory Process Clause simply to exclude the witness’ testimony.” Id. at 415, 108 S.Ct. 646. Second, “[i]f a pattern of discovery violations is explicable only on the assumption that the violations were designed to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the tainted evidence regardless of whether other sanctions would also be merited.” Id. at 414, 108 S.Ct. 646.
I agree that the Appellate Division could have reasonably found that Petitioner engaged in both types of willful misconduct and that excluding Ms. Jackson’s tardily proffered alibi testimony was not an “unreasonable application of’ Taylor. I also agree that evidence of Petitioner’s pre-arrest flight may be relevant to determining whether the late notice was given with the intent to either gain a tactical litigation advantage or to proffer fabricated trial testimony. In this context, evidence of flight may be considered analogous to evidence admissible under Fed.R.Evid. 404(b) to prove “motive, opportunity, intent, preparation, plan, knowledge, ... or absence of mistake or accident....”
Here, Petitioner moved to Albany for three years after hearing that he was a suspect in this case and used aliases to avoid the police. He claims not to remember where he was on the night his longtime friend was killed, yet is able to recall in detail the events of an otherwise unremarkable evening he claims was several days prior to the murder. Suddenly, four years later and on the eve of trial, Petitioner’s cousin mentions off-hand to defense counsel that Petitioner was in fact nowhere near the scene of the crime. Petitioner’s efforts to evade the police combined with a belated and convenient recollection of an alibi suggest a willfulness which would make exclusion an appropriate remedy under Taylor, even where prejudice to the state by late notice might otherwise be curable.
However, I cannot join the majority’s conclusion that the prosecution would have suffered incurable prejudice from the admission of Ms. Jackson’s testimony. Moreover, such a holding is unnecessary to the result we reach here. My concerns lie with how evidence of Petitioner’s flight is used to assess the extent of the prejudice to the State caused by the late alibi notice.
Putting aside the evidence of Petitioner’s three year flight, my review of the record does not satisfy me that it would be a reasonable application of Taylor for the Appellate Division to conclude that there was incurable prejudice caused solely by the delay in filing notice of the alibi witness. The argument expressed in footnote five, supra, of the majority opinion has an instinctive appeal, but I disagree with its logic. Justice Appelman felt that the prosecution’s concerns could be alleviated with an adjournment to provide time for the State to investigate Petitioner’s alibi defense. I agree with her assessment that lesser sanctions were appropriate, as the one year post-arrest delay was neither so severe nor irremediable as to justify the extreme sanction of preclusion. Moreover, because the panel is in unanimous agreement as to the existence of willful misconduct, there is no need to reach this issue.
