UNITED STATES оf America, Appellee, v. Kissone FREDERICK, aka Blacko, Defendant-Appellant.
No. 12-2580-cr
United States Court of Appeals, Second Circuit
May 3, 2013
II. Duty of Fair Representation
Having determined that the issue of the appellees’ alleged breach of the duty of fair representation is ripe for our review, we now turn to the merits. A union breaches its duty to fairly represent its members if its conduct is “arbitrary, discriminatory, or in bad fаith,” and if there is “a causal connection between the union‘s wrongful conduct and their injuries.” Vaughn v. Air Line Pilots Ass‘n, Int‘l, 604 F.3d 703, 709 (2d Cir.2010) (quotation marks omitted). A court‘s examination of a union‘s representаtion “must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.” Air Line Pilots Ass‘n, Int‘l v. O‘Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991).
The District Court сorrectly concluded that ALPA did not breach its duty of fair representation to its members. Construing all facts in the light most favorable to appellants, the record is devoid of evidence that ALPA‘s conduct was arbitrary, discriminatory, or taken in bad faith. Accordingly, we need not reach the causation issue.
We have considered appellants’ remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
Shreve Ariail (Jo Ann M. Navickas, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Megan Wolfe Benett (Joyce C. London, on the brief), New York, NY, for Dеfendant-Appellant.
PRESENT: GUIDO CALABRESI, DEBRA ANN LIVINGSTON, and GERARD E. LYNCH, Circuit Judges.
Defendant-Appellant Kissone Frederick (“Frederick“) appeals from a June 21, 2012 judgment of conviction entered by the United Stаtes District Court for the Eastern District of New York (Matsumoto, J.) following a jury trial. Prior to trial on charges of Hobbs Act conspiracy, see
“If a plea bargain has been offered, a defendant has the right tо effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). A claim of ineffective assistance of counsel has two elements. “First, the defendant must show that counsel‘s performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Second, the defendant must show that deficient performance prejudiced the defensе.” Id. We review a claim of ineffective assistance of counsel de novo, United States v. Guang, 511 F.3d 110, 119 (2d Cir.2007), and review the district court‘s underlying factual findings for clear error, see Davis v. Greiner, 428 F.3d 81, 92 (2d Cir.2005).
Frederick argues that his counsel, Ephraim Savitt (“Savitt“), performed deficiently in three ways: (1) by not advising Frederick that he could be subject to a fifteen-year mandatory minimum sentenсe under the Armed Career Criminal Act, see
To prove prejudicе, a “defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In the context of plea negotiations, a defendant can make this showing by producing both a sworn affidavit or testimony stating that he would have acceрted or rejected a plea agreement but for his counsel‘s deficient performance and also some additional “objective evidence” suрporting his claim. See United States v. Gordon, 156 F.3d 376, 381 (2d Cir.1998); see also Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003). This “objective evidence” can be a large disparity between the defendant‘s advised and actual sentencing exposure. Gordon, 156 F.3d at 381. Even with suсh a disparity, however, the district court must still find the defendant‘s evidence to the effect that he would have made a different decision but for his counsel‘s deficient advice to be credible. See Purdy v. United States, 208 F.3d 41, 49 (2d Cir.2000); see also United States v. Arteca, 411 F.3d 315, 321 (2d Cir.2005) (explaining that this Circuit “has not adopted mechanistic rules for determining whether an adequate showing of prejudice has been made, but inquires into the record as a whole to determine whether a reasonable probability exists that absent counsel‘s error, the outcome of the proceeding would have been different“).
There is a large disparity between Frederick‘s sentence and the likely sentence he would have received pursuant to the plea agreement, which contained an estimated sentencing range of 161 to 180 months, including a minimum term of eighty-four months. Frederick has also provided а sworn affidavit stating that but for his counsel‘s allegedly deficient advice he would have accepted the plea deal. Savitt, however, testified that he reрeatedly emphasized to Frederick that the case against him was overwhelming and that if convicted at trial he would face a minimum sentence of thirty-two years, a sentence much higher than the one he would receive under the plea agreement (but very close to the sentence he in fact received). Sаvitt further testified that he warned Frederick of the possibility of a fifty-year sentence if convicted at trial. According to Savitt, Frederick was adamant that he wantеd to proceed to trial, even threatening at one point that “he would ask for new counsel if [Savitt] continued to suggest that he should consider the government‘s рlea offer.”
The district court found Savitt‘s testimony to be credible, and found Frederick‘s affidavit not to be credible. We cannot conclude that this determination wаs clear error. First, while Savitt testified before the district court, Frederick did not. Moreover, contemporaneous emails sent by Savitt corroborate his account of Frederick‘s obstinacy about proceeding to trial despite the likelihood of receiving a fifty-year prison sentence. Though those emails also show that Frederick eventually
The district court determined that Frederick, despite the overwhelming evidence against him, strongly desired to proceed to trial despite the risk of facing a sentence at least twice as severe and рrobably even more substantially severe than the one he would likely have received under the government‘s plea offer. The district court further determined that Frеderick was “repeatedly informed of the significant benefits of the plea offer.” In light of these factual determinations, it was not error for the district court to сonclude that there was no reasonable probability that additional information from his counsel about the potential consequences of proceeding to trial would have changed his mind.
We have reviewed Frederick‘s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.