UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AHMAD SAYED HASHIMI, a/k/a Jimmy, a/k/a Jimmy Jimski, a/k/a Jamshaid, Defendant - Appellant.
No. 22-7190
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: August 2, 2024
PUBLISHED. Argued: May 9, 2024.
Before WYNN, HARRIS, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Wynn and Judge Heytens joined.
ARGUED: Zachariah Alexander Spurrier, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgantown, West Virginia, for Appellant. Philip Samuel Alito, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:
A federal jury convicted Ahmad Hashimi of four criminal charges after his lawyer conceded guilt on two. Hashimi says his lawyer made the concession against his wishes and therefore violated the Sixth Amendment autonomy right established in McCoy v. Louisiana, 584 U.S. 414 (2018). The district court denied Hashimi‘s
I.
A.
Ahmad Hashimi was indicted in the Eastern District of Virginia on four counts, two drug-related and two involving violence. According to the government, Hashimi ran a drug-distribution conspiracy and, in related activity, assaulted and kidnapped his ex-girlfriend.
Hashimi and his court-appointed lawyer Bruce Johnson had a rocky relationship from the start. Hashimi repeatedly complained about Johnson in written and oral submissions to the court, generally focused on poor communication that Hashimi believed prevented him from obtaining a plea deal. The district court rebuffed Hashimi‘s attempts to have Johnson replaced, accepting Johnson‘s representations that Hashimi had been presented with numerous plea offers and had rejected them all of his own volition.
Hashimi proceeded to trial. The government put on several witnesses, including Hashimi‘s ex-girlfriend, who testified that Hashimi choked her during a fight over her infidelity and later kidnapped her to reclaim drugs he believed she had stolen from him. Other witnesses generally corroborated this account and offered additional testimony related to the drug conspiracy.
At the close of evidence and out of the presence of the jury, attorney Johnson again raised the possibility of a plea, asking the court if Hashimi could “tender a plea of guilt” to the “kidnapping and interstate domestic violence” charges while putting the drug conspiracy charges to the jury. J.A. 601-02. Johnson‘s plan, apparently, was to argue for lenience at sentencing based on Hashimi‘s purported “acceptance of responsibility” on the assault and kidnapping counts. J.A. 602. The government objected, saying that it would consent to Hashimi pleading to all or none, but not some, of the charges against him.
The court sided with the government, rejected the putative plea, and put the whole case to the jury.1 Accordingly, it never conducted a plea colloquy and Hashimi never confirmed or denied his desire to plead guilty to any of the charges against him.
His plea gambit having failed, Johnson took another tack. In his closing argument to the jury, Johnson made a critical concession that had not yet featured in the trial: that Hashimi had, in fact, assaulted and kidnapped his ex-girlfriend.
The last few days I‘ve done very little, if no questioning relating to the kidnap and domestic violence. Shame on Mr. Hashimi, shame on him. I am sure he was humiliated that [his ex-girlfriend] was cheating on him behind his back, I am sure, but that doesn‘t excuse what he did. And if he were allowed to, he would
accept responsibility for that right in front of you.
J.A. 649.
Those two counts conceded, Johnson devoted his efforts to contesting the drug counts. It did not work. The jury was persuaded by Johnson‘s concession but not his defense, and it found Hashimi guilty on all counts. The court sentenced Hashimi to a total of 300 months’ (25 years‘) imprisonment.
B.
This is our third encounter with Hashimi‘s case. Hashimi first appealed directly from his conviction and sentence and we affirmed. See United States v. Hashimi, 718 F. App‘x 178 (4th Cir. 2018). In that first appeal, as relevant here, Hashimi argued that Johnson provided ineffective assistance under the Sixth Amendment when “he conceded Hashimi‘s guilt on Counts 3 and 4” – the violence charges – “during closing argument without Hashimi‘s consent.” Id. at 181. We disagreed, reasoning that because the concession of guilt “may have been a strategic decision, counsel‘s ineffectiveness does not appear on the face of the record and thus Hashimi should raise this claim, if at all, in a
Less than five months later, the Supreme Court called that ruling into question, “shift[ing] the balance of power between counsel and client” in a way that would bear on Hashimi‘s case. Smith v. Stein, 982 F.3d 229, 235 (4th Cir. 2020). In McCoy v. Louisiana, the Supreme Court “added a new item” to the list of “fundamental decisions reserved to the client,” Kellogg-Roe v. Gerry, 19 F.4th 21, 26 (1st Cir. 2021): the decision to maintain innocence at trial. See McCoy v. Louisiana, 584 U.S. 414, 422-24 (2018). Conceding guilt before a jury, the Court explained, is not a “strategic choice[]” for counsel to make, subject to the familiar Strickland standard for ineffective assistance. Id. at 422, 426-28; see generally Strickland v. Washington, 466 U.S. 668 (1984). Instead, the defendant has a Sixth Amendment-secured autonomy right to make that choice himself, and a violation of that right ranks as structural error calling for reversal. McCoy, 584 U.S. at 426-28.
After it decided the McCoy case, the Supreme Court granted Hashimi‘s petition for writ of certiorari, vacated our decision, and remanded for reconsideration under McCoy. Hashimi v. United States, 139 S. Ct. 377 (2018). On remand, we again affirmed Hashimi‘s conviction and sentence, but this time with a caveat. United States v. Hashimi, 768 F. App‘x 159 (4th Cir. 2019). The record on direct appeal in this case, we observed, was silent as to “whether Hashimi consented or objected to his counsel‘s concession of guilt.” Id. at 163. So on the record as it then stood, we could not say that Hashimi had been deprived of his McCoy autonomy right. Id. But we invited Hashimi to help us assess his claim on a fuller record: “[I]f there are facts not currently in the record before us that call [our] conclusion into question, Hashimi remains free to raise this claim in a
Hashimi accepted the invitation. He filed a
Second was a page of handwritten notes passed between Hashimi and Johnson. In the notes, exchanged during Hashimi‘s ex-girlfriend‘s trial testimony, Hashimi appears to express disbelief at the testimony and encourages Johnson to try to impeach it:
Hashimi: It‘s funny how [the ex-girlfriend] remembers everything to the teeth precoached.
Johnson: One of the reasons I recommended plea to you of [illegible] count. You now have unlimited exposure.
Hashimi: I never met her nor know Sharon we need her to testify.
...
Johnson: I don‘t understand why you would take the risk.
Hashimi: She [is] clearly lying we need to prove it with Sharon.
Johnson: C‘mon Hashimi c‘mon dude. You really think jury is going to totally disbelieve her.
J.A. 839. According to Hashimi, this exchange illustrates a persistent divergence between himself and his lawyer as to whether to admit guilt: While Johnson continued to press Hashimi to admit or concede guilt, Hashimi steadfastly searched for ways to convince the jury of his innocence.
C.
The district court denied Hashimi‘s
The district court rejected other claims by Hashimi not at issue here and denied Hashimi‘s
Hashimi timely appealed and we granted a certificate of appealability on the McCoy issue, finding that “Hashimi has demonstrated that reasonable jurists could conclude that counsel conceded guilt against his wishes, in violation of McCoy v. Louisiana, 138 S. Ct. 1500 (2018).” J.A. 865.
On appeal from the denial of a
A.
The district court properly identified the Supreme Court‘s decisions in McCoy and Nixon as the starting point for analysis of Hashimi‘s claim. We begin by laying out the principles that flow from those decisions. And we note at the outset that the parties in this case do not meaningfully dispute these background principles, focusing instead on how they apply to the facts of Hashimi‘s case or, more properly, to what we know of those facts at this point in the proceedings.
The Sixth Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is master of his own defense.” Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979). To that end, the Supreme Court has reserved for a criminal defendant the right to make “certain fundamental decisions” about his defense no matter how strongly his lawyer may disagree. United States v. Roof, 10 F.4th 314, 351 (4th Cir. 2021). This is a narrow class of decisions; “trial management” remains the “lawyer‘s province,” and counsel need not seek or obtain consent before deciding, for instance, “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” McCoy, 584 U.S. at 422 (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)); see also Roof, 10 F.4th at 351. But some decisions are so fundamental that they are “reserved for the client,” including “whether to plead guilty, waive the right to a jury trial, testify in one‘s own behalf, and forgo an appeal.” McCoy, 584 U.S. at 422.
McCoy added to that “latter category” the decision whether to maintain innocence or concede guilt at trial. Id.; see also Kellogg-Roe, 19 F.4th at 26. That decision, the Supreme Court explained, is not a “strategic choice[] about how best to achieve a client‘s objectives” but instead a “choice[] about what the client‘s objectives in fact are.” McCoy, 584 U.S. at 422. It follows, the Court held, that a defendant has a Sixth Amendment autonomy right to make the choice for himself. Id. at 426-27. And, critically, because counsel‘s strategic decisions and competence are not at issue, a violation of that autonomy right is not subject to the Strickland standard for ineffective assistance, which requires a showing of prejudice. Id. at 426 (citing Strickland, 466 U.S. at 692). Instead, a violation of the Sixth Amendment autonomy right is a structural error, entitling the defendant to a new trial without the need to show prejudice, because the error both negates the defendant‘s “right to make [] fundamental choices about his own defense” and impacts the trial in ways that are “immeasurable.” Id. at 427-28.
To protect a client‘s right to decide for himself whether to concede guilt to a jury, McCoy explained, defense counsel is obliged to do two things. First, McCoy contemplates a consultation between defense counsel and client, in which defense counsel may try to persuade a client that conceding guilt is or has become the best course. Id. at 423-24. And second, if the client expresses a preference in response to that consultation, counsel may not “override” it and must instead abide by it. Id. at 424. We emphasize, again, that the parties here agree on these twin obligations; at oral argument, the government clarified that it reads McCoy as requiring defense counsel both to consult with a defendant before conceding guilt and to honor any objection raised by the defendant.
But what happens if defense counsel, convinced that he has before him the rare case in which conceding guilt at trial is the best path forward, consults with his client and receives no response – neither approval nor objection? McCoy answers that question by reference to its earlier-decided Nixon case: If “a client declines to participate in his defense,” then the choice defaults to the attorney, who “may permissibly guide the defense pursuant to the strategy she believes to be in the defendant‘s best interest.” McCoy, 584 U.S. at 424 (discussing Nixon, 543 U.S. at 181).
Like McCoy, Nixon involved a capital defendant facing overwhelming evidence of guilt. See Nixon, 543 U.S. at 180-82. And as in McCoy, defense counsel determined that “the most promising means to avert a sentence of death” was to concede guilt at the guilt phase of trial and then hope for mercy at the sentencing phase. Id. at 178, 190-91. But unlike the defendant in McCoy, who vocally opposed his counsel‘s “assertion of his guilt at every opportunity,” 584 U.S. at 424, the defendant in Nixon took no position on his counsel‘s planned concession of guilt, refusing to engage at all in his defense: Counsel “attempted to explain this [concession] strategy to Nixon at least three times,” and each time, Nixon “was generally unresponsive” and “never verbally approved or protested” the concession. Nixon, 543 U.S. at 181; McCoy, 584 U.S. at 424. In those circumstances, the Court held, the client‘s effective abdication of his right to choose allowed counsel to make the decision instead. Nixon, 543 U.S. at 192. But essential to the Nixon Court‘s holding were the lawyer‘s efforts to leave the decision with the client: “When counsel informs the defendant of the strategy counsel believes to be in the defendant‘s best interest and the defendant is unresponsive, counsel‘s strategic choice is not impeded by any blanket rule
demanding the defendant‘s explicit consent.” Id.; see McCoy, 584 U.S. at 424 (discussing Nixon).
B.
Against this standard, we conclude that the district court erred in denying
When we last considered Hashimi‘s McCoy claim, recall, we had only the direct appeal record before us, with no indication as to whether Hashimi “consented or objected to his counsel‘s concession of guilt.” Hashimi, 768 F. App‘x at 163. But Hashimi supplemented that record by submitting to the district court, along with his
the trial ... did I give my attorney, Bruce A. Johnson, Jr., permission to concede, during his closing argument to the jury, my guilt on any count[.]” J.A. 780. In this posture, we take Hashimi‘s allegation as true. See Mayhew, 995 F.3d at 176. So for present purposes, we must rule out what would be the most straightforward defense of Johnson‘s concession to the jury: that Johnson first consulted with his client and obtained Hashimi‘s consent. See McCoy, 584 U.S. at 424.
The district court properly assumed that Hashimi had not consented to Johnson‘s concession of guilt. But Hashimi still could not make out a claim under McCoy, the district court reasoned, because he did not aver that he expressly objected to the concession, either. J.A. 846. Absent evidence that Hashimi “expressly told his lawyer not to concede his guilt during closing statements,” the district court concluded, his case was governed by Nixon, not McCoy, and Hashimi‘s claim could be rejected without need for further development of the facts. Id. For two principal reasons, we disagree.
1.
First, it is true, as the district court reasoned, that the Supreme Court approved a concession of guilt in Nixon where the defendant did not consent but also did not object to his lawyer‘s plan to concede – a scenario that matched, in the court‘s view, with the contours of Hashimi‘s affidavit. But that analysis overlooks a critical element of Nixon: In that case, the defendant neither consented nor objected to a concession of guilt after his lawyer consulted with him, three times, in a futile effort to get his input and leave the choice to concede guilt where it belonged, with the client. Under those circumstances – where attempts to consult are stonewalled and the client refuses to make the concession decision
himself – counsel is free to fall back on his own professional judgment.
But that rule does not apply when a lawyer fails his initial duty of consultation, conceding guilt to a jury without first consulting with his client and seeking the client‘s views. McCoy does not impose on criminal defendants who have chosen to go to trial a prophylactic (and mostly redundant) obligation to notify their lawyers that their plan for trial is not to concede guilt to the jury. Instead, and as the government concedes, McCoy puts the obligation on the lawyer, requiring that before counsel may make a concession of guilt to the jury, he must discuss his plan with the defendant. McCoy, 584 U.S. at 424. Put differently, McCoy is not satisfied if a defendant fails to object because he was never given the opportunity to object. Were it otherwise, this loophole would swallow the McCoy rule, transferring the concession decision from client to lawyer so long as the lawyer never asks the client‘s permission.4
And on this record, viewing the record facts in the light most favorable to Hashimi and drawing reasonable inferences in his favor, we cannot say “conclusively” that Hashimi‘s lawyer satisfied his McCoy obligation to consult with his client before
conceding guilt to the jury. See
Those questions multiply when we consider the government‘s theory for how Hashimi‘s affidavit can be squared with the rule of McCoy. As the government recognizes, under McCoy, Johnson was permitted to concede Hashimi‘s guilt to the jury only if Hashimi was “informed of the plan” and then consented or “neither consent[ed] nor object[ed],” as in Nixon. Appellee‘s Br. at 31. The consent option is out for now, the government understands, given Hashimi‘s affidavit. So the government goes with the Nixon option: that at some point during the trial – perhaps at the close of evidence, along with the exploration of a guilty plea to assault and kidnapping – Johnson consulted with Hashimi about conceding guilt to the jury and was met with a Nixon-like silence, with Hashimi refusing to offer a view either way on the planned concession.
But on the present record, that is pure speculation. Most obviously, Johnson did not put the hypothesized consultation and client non-responsiveness on the record, bringing it to the court‘s attention and laying the groundwork for a concession of
Nor did the government submit in the
Nor are we persuaded, as the district court suggested, that Hashimi‘s seeming interest in pleading guilty to the assault and kidnapping charges against him at the close of
evidence is enough to demonstrate a changed mind as to the “objective of the defense,” McCoy, 584 U.S. at 422, and a willingness to concede guilt on those counts to the jury. See J.A. 846 (noting that Hashimi “attempted to enter a guilty plea” on the two charges “in exchange for a reduction in the sentencing guidelines based on acceptance of responsibility“). We can assume that Johnson acted with Hashimi‘s consent in raising the possibility of pleading guilty at the close of evidence. Even so, consent to plead guilty is different in kind from consent to admit guilt to a jury; a defendant might well be interested in pleading guilty but not in assuring a guilty verdict from a jury and the accompanying opprobrium, and the Sixth Amendment reserves to him the right to make that choice. Cf. McCoy, 584 U.S. at 419 n.2 (“Encouraging a guilty plea pretrial, of course, is not equivalent to imparting to a defendant counsel‘s strategic determination to concede guilt should trial occur.“).
To be clear, our point here is not that the record conclusively rebuts the government‘s theory. The possibility remains that Johnson did indeed consult with Hashimi before conceding his client‘s guilt to the jury, consistent with McCoy, and that Hashimi sat silent à la Nixon. And evidence of Hashimi‘s apparent interest in pleading guilty to the counts in question may well be relevant to that inquiry. But the record before us, viewed in the light most favorable to Hashimi, is simply too “murky” on this point to allow for a decision
2.
We have a second disagreement with the district court‘s analysis. In denying relief under McCoy without a hearing, the court relied critically on the fact that Hashimi‘s affidavit says that Hashimi never gave his attorney permission to concede, but not that he expressly denied such permission. J.A. 846. For the reasons given above, the record as it stands yields a reasonable inference that Hashimi did not give his permission because he was never asked, in violation of McCoy‘s consultation rule. But we think Hashimi‘s affidavit leaves open a second possibility, as well: that Hashimi did expressly deny permission for the concession, and that Johnson violated McCoy‘s core command by failing to honor Hashimi‘s expressed wish to maintain his innocence.
Hashimi‘s affidavit says as follows: “At no time before or during the trial in this matter did I give my attorney, Bruce A. Johnson, Jr., permission to concede, during his closing argument to the jury, my guilt on any counts of the Indictment.” J.A. 780. That statement, to be sure, can be read as the district court and government read it, where Hashimi, informed of Johnson‘s plan to concede guilt, neither consents nor objects – the Nixon scenario, under which the client defaults his choice and the authority to concede guilt falls to the attorney. But Hashimi‘s affidavit is also consistent with a different version of events, in which Hashimi does expressly tell Johnson not to concede guilt and then describes that in his affidavit, as one might, as having not given permission for the concession when asked. We do not know, in other words, whether Hashimi‘s affidavit is worded cleverly, to avoid a fact unfavorable to Hashimi (that he never expressly objected), or poorly, so that it inadvertently omits a fact favorable to him (that he did expressly
object). But given the posture, in which we view the evidence in the light most favorable to Hashimi, we see no reason to commit at this juncture to the former interpretation over the latter.
Again, we emphasize that the record as it stands today would admit of a scenario in which Johnson carefully adhered to his obligations under McCoy – notwithstanding that McCoy had yet to be decided – consulting with Hashimi about the wisdom of conceding guilt to the assault and kidnapping charges before the jury and receiving neither approval nor disapproval from his client. An evidentiary hearing may well bear out the government‘s scenario, in other words or even establish, contrary to Hashimi‘s affidavit, that Hashimi in fact expressly approved Johnson‘s concession of guilt. But we draw our inferences here in Hashimi‘s favor, not the government‘s, and so viewed, the record remains decidedly “murky” as to whether Johnson consulted with Hashimi about conceding guilt and, if he did, whether and how exactly Hashimi responded. See Runyon, 994 F.3d at 208; United States v. Poindexter, 492 F.3d 263, 272 (4th Cir. 2007) (“[W]hen a defendant brings a
For the reasons given above, the judgment of the district court is vacated and the case remanded for proceedings consistent with this opinion.
VACATED AND REMANDED
PAMELA HARRIS
UNITED STATES CIRCUIT JUDGE