UNITED STATES OF AMERICA v. JACQUELINE GRAHAM
No. 20-832
United States Court of Appeals for the Second Circuit
October 14, 2022
August Term 2021
Argued: March 1, 2022
v.
JACQUELINE GRAHAM,
Defendant-Appellant.*
On Appeal from the United States District Court for the Southern District of New York
Before: WALKER, PARK, and PEREZ, Circuit Judges.
Defendant-Appellant Jacqueline Graham was convicted after a jury trial of conspiracy to commit mail, wire, and bank fraud, in violation of
We reject Graham‘s remaining arguments and thus AFFIRM.
Judge Perez concurs in a separate opinion.
HARRY SANDICK (Christopher Wilds, Andrew Haddad, on the brief), Patterson
DAVID R. FELTON, Assistant United States Attorney (Michael D. Maimin, Karl Metzner, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PARK, Circuit Judge:
Defendant-Appellant Jacqueline Graham was convicted after a jury trial of conspiracy to commit mail, wire, and bank fraud, in violation of
We also reject Graham‘s remaining arguments on appeal. The district court did not abuse its discretion by admitting evidence of Graham‘s other fraudulent activity that was similar and/or related to the charged conduct; the court did not err by allowing the government to introduce certain “red flag” emails from an outside attorney for the limited purpose of proving her knowledge; and the court‘s decision to instruct the jury on conscious avoidance was proper. We thus affirm.
I. BACKGROUND
A. The Government‘s Case
Jacqueline Graham approached struggling homeowners with an offer that was too good to be true: In exchange for a fee, her partnership (the “Terra Foundation” or “Terra“) could purportedly eliminate a customer‘s mortgage debts in full. Styling herself as a “sovereign citizen[],” Graham pledged that she would help these homeowners fight against the prevailing “[Uniform Commercial Code (UCC)] system” by marshaling obscure parts of the “common law.” Joint App‘x at A-676, A-1110, A-1113. In reality, however, Graham‘s tactics were far more mundane. She and her coconspirators would pretend to be employees of mortgagee banks, send county title offices fake notices of discharge, and convince them to erase any record of the banks’ interests in the subject properties. Once Graham‘s scheme was uncovered, the banks reinstated their interests, but Terra‘s “clients” could not recover the fees they had paid. In all, the scheme temporarily erased nearly $40 million of debt in connection with over 60 mortgage loans.
To execute the fraud, Terra used a “three-step procedure“: “(1) an audit, (2) a ‘Qualified Written Request’ [QWR] to the client‘s mortgage lender, and (3) the filing of a discharge of mortgage in the local clerk‘s office.” Id. at A-54. Each QWR contained a series of pseudo-legal questions, purportedly based on one of Terra‘s “audits,” demanding detailed narrative responses and documentary submissions. If Terra received no response from the lender or considered a response insufficient, it
Terra collected substantial fees from these homeowners in consideration for the promise of debt relief. For example, Augustine Alvarez testified that in 2011, Terra employees told him that they could render his mortgage debt “reduced or eliminated.” Id. at A-376. After paying $1100 upfront and completing a so-called “UCC Financing Statement” form, Alvarez waited for nearly a year until Terra provided him with an authentic title search showing that his mortgage had been removed from county records. Id. at A-377. In exchange, Alvarez—who had been, prior to Terra‘s involvement, barely able to satisfy his mortgage payments—wrote Terra two checks for $250,000 each. Soon thereafter, Alvarez‘s bank notified him that the mortgage had been removed pursuant to a “fraudulent transaction” and had thus been reinstated. Id. at A-388. Alvarez tried repeatedly to contact Terra affiliates, who dodged his calls and ultimately refused to return his money.
The government introduced evidence that Graham had directed the fraudulent scheme as the head partner of Terra. Witness testimony suggested that she personally helped prepare the QWRs and other documents. And documentary evidence showed her control of Terra‘s finances, including its bank accounts.
The defense principally argued that Graham lacked the requisite knowledge of the fraudulent means of the scheme. In particular, defense counsel argued that Graham “believed in good faith that the unorthodox methods and unconventional programs that she promoted . . . would help homeowners stay in their homes.” Id. at A-1007. To rebut this argument, the government introduced, among other evidence: (1) Graham‘s communications with coconspirators scolding them for sending multiple QWRs “to the same lender for the same client” because the QWRs would soon “look like some bull****“, Supp. App‘x at SA-90; (2) Graham‘s handwritten confession admitting her participation in the creation and distribution of “fraudulent mortgage discharges” and her “aware[ness] [that her] partners were committing fraudulent acts,” id. at SA-71; (3) Graham‘s insistence that customers pay upfront; (4) Graham‘s attempts to move Terra‘s proceeds offshore; and (5) Graham‘s efforts to remove her name from many of Terra‘s documents and bank accounts.
B. Procedural History
1. Pretrial
In November 2016, a grand jury returned an indictment charging Graham and four coconspirators with a single count of conspiracy to commit mail, wire, and bank fraud, in violation of
The district court held a conference on April 10, 2019. Graham‘s counsel told the court that he had shared the “substance” of the plea agreement with Graham—he was not sure when—but he had not transmitted the agreement itself. Id. at A-90. Counsel explained that the reason for this was that he “knew that this plea offer would not be received well on [Graham‘s] part.” Id. at A-100. Graham stated that she had not heard anything about the plea agreement until the “end of March via email.” Id. at A-99. The court then instructed the government to provide a copy of the agreement—on the record—directly to Graham, remarking:
I don‘t want this later to come back to haunt us, so to speak. I don‘t want there to be a claim made that this plea offer was not conveyed to [Graham], and that she didn‘t have an opportunity to review it and understand it; and that she has made a determination not to accept the plea offer and that we are, in fact, going to trial . . .
I just want her to make sure . . . [that] she has a full understanding of the offer that has been made, and she has made a knowing and intelligent decision to proceed to trial if that‘s what she wants to do; and if she wants to go to trial, I have no problems with that. I just want to make sure that those decisions are made intelligently and knowingly, and that there is no basis for her later coming before the Court and saying that she was not aware that a plea offer was made and the consequences of it, of either accepting or denying the plea offer.
Id. at A-90 to -92. Graham reviewed the offer with trial counsel and, through counsel, indicated on the record that she wanted more time to consider it. The government explained that the offer had already expired but stated that it “would probably be able to get it reauthorized” if Graham so requested and that the government was also open to “alternative ways of structuring” a deal if Graham returned to negotiations “sooner rather than later.” Id. at A-96. The court then reiterated that it “want[ed] the record to be clear, that [Graham had] been given an opportunity to review the plea offer that was conveyed.” Id. at A-97.
At the same conference and immediately after this exchange, the district court dismissed Graham‘s attorney due to a “breakdown of communication“—which the court partly attributed to Graham‘s decision to remain in California prior to trial—and appointed Graham new trial counsel. Id. at A-101. The court then stated that new counsel would “probably want an opportunity to review the plea offer as well and discuss it with” Graham, id. at A-105, and the court told Graham directly that if she wanted to explore further plea discussions she could do so with new counsel. Graham acknowledged the court‘s instruction.
Graham did not raise the issue again with the district court at any time before trial. At the final pretrial conference on May 31, 2019, the government stated that it had “not made any new offers” or been “asked to reopen any offers.” Id. at A-172. Graham‘s new counsel did not dispute the government‘s characterization and said that he “expect[ed] to be in front of the
2. Trial and Appeal
Jury selection began on June 3, 2019, almost two months after the conference regarding the government‘s plea offer. After a six-day trial, the jury returned a verdict of guilty. The district court sentenced Graham to 132 months’ imprisonment, followed by five years’ supervised release. The court also ordered over $800,000 in restitution and forfeiture.
Graham timely appealed. Oral argument was held on March 1, 2022, and we ordered supplemental briefing on Graham‘s ineffective-assistance claim on March 15, 2022. Briefing was completed on April 18, 2022.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Graham argues that her pretrial counsel‘s failure to communicate the government‘s plea offer entitles her to reinstatement of the offer, followed by resentencing. For the reasons that follow, we conclude that even assuming counsel‘s alleged failure gave rise to an ineffective-assistance claim, any such claim has since been waived.
1. Doctrinal Background
The Constitution guarantees that “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.”
In a pair of companion cases in 2012, the Supreme Court held that the right to effective assistance “for [one‘s] defence” encompasses a right to effective assistance in forgoing a defense. In the first case, Missouri v. Frye, the Court held that, although no defendant has a right to a plea bargain, once such a bargain has been offered, the Sixth Amendment is violated when a defendant loses the opportunity to benefit from the offer without the advice of competent counsel. See 566 U.S. 134, 142-44, 148 (2012). In Frye, the defendant‘s counsel had failed to advise him that the government transmitted a plea offer before that offer expired. The defendant then entered a guilty plea without the benefit of the bargain. Id. at 138–39. Applying Strickland‘s performance prong, the Court held that “[w]hen defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” Id. at 145. As for the prejudice prong, the Court explained that a defendant must show a “reasonable probability” that “they would have accepted the . . . plea offer had they been afforded effective assistance of counsel,” that
In the other case, Lafler v. Cooper, 566 U.S. 156 (2012), the defendant alleged that he had been improperly advised to reject a plea offer and was later convicted at trial. The government conceded that defense counsel was deficient in advising the defendant not to accept its plea bargain, and the Court concluded that the defendant was indeed prejudiced by proceeding to trial rather than taking the deal. The Court then turned toward structuring a remedy aimed at “neutraliz[ing] the taint of [the] constitutional violation, while at the same time not grant[ing] a windfall to the defendant or needlessly squander[ing] the considerable resources” put toward a prosecution. Id. at 170 (cleaned up) (citation omitted). When the only advantage a defendant would have received by accepting the plea is a lesser sentence, remand for resentencing is proper so that a district court may “exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Id. at 171. When, however, resentencing would not “full[y] redress” the constitutional injury, the court may “require the prosecution to reoffer the plea proposal . . . [and] then [on remand] exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Id.
2. Graham‘s Waiver
Graham asserts that this case is directly controlled by Frye: The government made her an offer, which her counsel failed to convey to her. The government contends that more factual development on collateral review is needed to determine whether Graham has a viable ineffective-assistance claim and that the court should defer resolution of her claim.
We need not reach these arguments because we hold that any such ineffective-assistance claim has been waived. “[W]aiver can result only from a defendant‘s intentional decision not to assert a right.” United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015). “As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Berghuis v. Thompkins, 560 U.S. 370, 385 (2010); see also United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995) (“If . . . [a] party consciously refrains from objecting as a tactical matter, then that action constitutes a true ‘waiver,’ which will negate even plain error review.” (citation omitted)); Hemphill v. New York, 142 S. Ct. 681, 694–95 (2022) (Alito, J., concurring) (explaining that waiver “is predicated on [either] conduct evincing intent to relinquish the right” or “action inconsistent with the assertion of that right“).
In Frye, the defendant “had no knowledge of the [plea offer] until after he was convicted, sentenced, and incarcerated.” Frye v. State, 311 S.W.3d 350, 352 (Mo. Ct. App. 2010), vacated, 566 U.S. 134.
Graham‘s choice was plainly inconsistent with vindicating her rights under Frye and Lafler. Those cases held that defendants have a contingent right to benefit from a plea offer in the sense that, once an offer has been made, a defendant is entitled to the advice of competent counsel before rejecting the offer or letting it expire. See, e.g., Lafler, 566 U.S. at 163–64 (“[I]neffective advice led not to an offer‘s acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged.“). Proceeding to trial is incompatible with a pretrial plea agreement, which of course requires a defendant to enter a guilty plea.2 Graham could not both proceed
to trial and benefit from the government‘s conditional offer, which—even under the special rights conferred by Frye and Lafler—required a guilty plea. She could not have availed herself of both options in real time, so waiver rules preclude her from doing so now.
The remedy that Graham seeks highlights why her ineffective-assistance claim is waived. Graham asks us to enter a judgment forcing the government to reinstate its old, expired plea offer so that she may now plead guilty under its terms.3 But Graham already chose not to pursue that offer by going to trial with full awareness of the offer‘s existence under the advice of competent counsel. That is, after the April 10, 2019 conference, Graham had the option either (1) to exercise her Frye right to compel the government to revive the expired plea offer, and then accept that offer or negotiate its terms;4 or (2) to proceed to
former attorney. But she chose not to seek reinstatement of the deal, invoking her trial right instead. Graham may not undo the consequences of that decision on appeal.6
Without a waiver rule, a defendant in Graham‘s position would have little reason to exercise her Frye rights before trial. Such a defendant could instead go to trial and hope for an acquittal, knowing that she could force the government to reoffer the same, expired pretrial deal if she were convicted.7 Or she could try to trade her free roll of the dice for a new, better deal with the government. Either way, Frye would give a defendant the option to rewind the clock after
a guilty verdict, violating the Supreme Court‘s instruction that a Sixth Amendment remedy should not “grant a windfall to the defendant.” Lafler, 566 U.S. at 170. This sort of gamesmanship is, of course, precisely what waiver rules guard against. See United States v. Gersh, 328 F.2d 460, 463 (2d Cir. 1964) (Friendly, J.) (noting that there would be waiver where a party had knowledge of an error “but had nevertheless stood mute, gambling on an acquittal while holding this issue in reserve“).
The Frye Court anticipated precisely this scenario when explaining how courts can prevent “late, frivolous, or fabricated claims” of expired plea offers raised only “after a trial leading to conviction with resulting harsh consequences.” 566 U.S. at 146. The Court explained that trial judges could make “formal offers . . . part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.” Id. (emphasis added). The district court heeded that advice here and recognized that a Frye error could “haunt” the case if not redressed immediately. Joint App‘x at A-90. So the court summoned Graham to New York from California, ensured that she was aware of the offer, and required her to review it on the record. The district court stated clearly and repeatedly that the purpose of this conference was to avoid any belated claim “that this plea offer was not
Typically, a waiver of rights arises from the choice to plead guilty, not from exercising the right to go to trial. See
guilty—the kind granted by Frye and Lafler—by making a knowing and intelligent decision to proceed to trial.9
3. The Government‘s Purported “Waiver”
Graham and the concurrence respond that we should look past Graham‘s waiver because the government did not mention waiver in its principal brief. See Concurrence at 1-3. According to the concurrence, the government abandoned this argument on appeal by failing to raise Graham‘s waiver in its opposition brief and expressing “serious doubt” about waiver when questioned during oral argument. Id. at 1-2. In other words, the government itself “waived” the waiver argument.
This reasoning is flawed. To be sure, we have at times used the shorthand
matter, this confuses several distinct concepts. One set of rules—waiver and forfeiture—governs when a court may subtract from the arguments raised on appeal. Waiver, the “intentional relinquishment or abandonment of a known right” at or before the time of appeal, “extinguish[es] an error” along with any appellate review. United States v. Olano, 507 U.S. 725, 733 (1993) (cleaned up); see Yu-Leung, 51 F.3d at 1121 (“[W]aiver necessarily ‘extinguishes’ the claim.” (citation omitted)). Forfeiture, a mere “failure to make the timely assertion of a right” when procedurally appropriate, allows a court either to disregard an argument at its discretion (in civil cases) or otherwise subject it to plain-error review (in criminal cases). Olano, 507 U.S. at 733; see Greene v. United States, 13 F.3d 577, 585–86 (2d Cir. 1994) (civil cases);
A different rule, the party-presentation rule, governs when a court may add to the issues raised on appeal. The party-presentation rule reflects the principle that courts “normally decide only questions
presented by the parties” and may play only “a modest initiating role” in shaping the arguments before them. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (citation omitted). Here, Graham raised a claim of ineffective assistance of counsel, and we ordered supplemental briefing on whether that claim was waived. Graham and the concurrence object to our decision to do so and to decide her claim on that ground now. See Concurrence at 1-3. This objection to the government‘s allegedly “abandoned claim[]” thus sounds in the party-presentation rule. Id. at 2. But “it cannot be a departure from the principle of party presentation to decide the issue on which the appellant relies for relief.” United States v. Moyhernandez, 5 F.4th 195, 207 (2d Cir. 2021) (emphasis added), cert. granted, vacated, and remanded on other grounds, 142 S. Ct. 2899 (2022) (mem.).12 In other words, because we are
The concurrence states that we have engaged in a “sua sponte application[] of waiver” or even judicial immodesty. Concurrence at 3.
precise arguments of counsel,” Sineneng-Smith, 140 S. Ct. at 1581, we may affirm a judgment of the district court on any ground that is directly responsive to an appellant‘s arguments. That is why we may affirm a judgment even when an appellee submits no brief at all. See
* * *
In sum, even assuming that Graham would have accepted the government‘s offer if it had been timely presented to her by her prior counsel, once competent counsel was appointed, she elected not to exercise her Frye rights and chose to take her chances at trial instead. She cannot now revive any Frye remedies on appeal. The record already reflects Graham‘s review of the plea offer and the court‘s appointment of new counsel, so there is no need for further fact-finding. We thus reject Graham‘s claim for relief without waiting for a collateral challenge.
B. Evidentiary Rulings and Jury Charge
Graham also raises several challenges to the admission of evidence and jury instructions at trial. All are meritless.
We respectfully disagree. It is the concurrence‘s approach that would have us discredit the district court‘s efforts, reach the merits, and apply Frye to the facts of Graham‘s case. See id. at 11-12.
1. Other Acts Evidence
At trial, the government introduced evidence of (a) Graham‘s participation in an electronic funds transfer (“EFT“) scheme that purported to eliminate debts by writing checks against a zero-balance checking account; and (b) Graham‘s attempts to improve a victim‘s credit score using sham methods. As to both sets of evidence, the district court provided a limiting instruction that the evidence could be used only to show intent, mental state, or lack of good faith. We review for abuse of discretion. See United States v. Rowland, 826 F.3d 100, 114 (2d Cir. 2016).
Graham argues that admitting this evidence ran afoul of
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
In general, ““[o]ther act’ evidence serves a proper purpose so long as it is not offered to show the defendant‘s propensity to commit the offense.” United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011). “This Circuit follows the ‘inclusionary’ approach,
a. EFT Scheme
The government introduced evidence that, concurrently with the charged fraud, Graham instructed a coconspirator, Rocco Cermele, to etch markings on checks in “[c]ertain colors” of ink so that they could be drawn against closed checking accounts to cover Cermele‘s debts. Joint App‘x at A-799. The evidence included two email chains between Graham and Cermele. In the first, Graham says that she will detail the method to Cermele, and in the second, Cermele explains that his efforts to avail himself of the scheme were fruitless.
We agree with the government that this evidence was probative of Graham‘s fraudulent intent. At trial, Graham‘s principal defense was that she lacked the requisite mental state for a fraud conspiracy conviction. “[W]here it is apparent that intent will be in dispute, evidence of prior or similar acts may be introduced during the government‘s case-in-chief . . ..” United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992). Even when “the [other bad] acts and the charged conduct d[o] not involve exactly the same co-conspirators, [conduct], or temporal timelines,” the evidence may still be “[]sufficiently relevant or probative” to be admitted. United States v. Dupree, 870 F.3d 62, 77 (2d Cir. 2017). Here, the EFT scheme was done at the same time as the charged conspiracy, with the same coconspirators, and with the same hallmarks-“unconventional” financial techniques used to purportedly discharge debt. The district court properly admitted this evidence.
b. Credit Repair Scheme
The government also introduced testimony from one of the victims of the charged fraud, Sherry Hopple. According to Hopple, Graham had induced her to redirect $25,000 worth of mortgage payments to Graham, after which Hopple would declare bankruptcy. When this ploy did not save Hopple and her husband from financial trouble, the pair had to leave their home, and her husband‘s credit score plummeted. Graham said that she could boost that score into the 700s or 800s as she had purportedly done for three other clients-indeed, supposedly removing any record of their foreclosures from their credit reports within ten days.
We agree with the government that this evidence was properly admitted as “direct evidence of the crime charged” because it “arose out of the same transaction or series of transactions as the charged offense, . . . [was] inextricably intertwined with the evidence regarding the charged offense, or . . . [was] necessary to complete the story of the crime on trial.” United States v. Hsu, 669 F.3d 112, 118 (2d Cir. 2012) (citation omitted). First, the evidence tended to show conduct that was intertwined with the charged fraud, of which Hopple was a victim. Second, the jury could have found that the credit repair scheme served to “lull” Hopple into not reporting Graham or working with authorities against her. Cf. United States v. Lane, 474 U.S. 438, 451-52 (1986) (explaining that lulling can be in furtherance of fraudulent conduct). Third, Graham‘s purported offer to help could be taken as evidence of fraudulent intent by taking steps to mask her missteps. See United States v. Kelley, 551 F.3d 171, 176 (2d Cir. 2009) (holding that subsequent acts to hide a fraud “indicate[d] that [Defendant‘s] actions in defrauding his clients were not simple mistakes but were instead part of a larger, intentional scheme to defraud“). Any one of these reasons would be sufficient to admit the evidence, and the district court did not abuse its discretion by doing so.
2. Red-Flag Evidence
The government also introduced certain “red flag” emails sent among Graham, Cermele, and an outside attorney. The attorney, after learning of Graham‘s methods, gave a detailed explanation of why they were illegitimate. Referring to those methods, he summarized that he could “unequivocally say that the filing of those liens, the transfer of the properties, the creation of the trusts, etc., constitutes a crime.” Joint App‘x at A-1107. Graham responded by asserting that this attorney was uneducated in the “common law,” and she later wrote that “title companies . . . are LAWYER owned and part of the UCC system we fight against.” Id. at A-1110, A-1113. The district court instructed the jury to use these emails as evidence only of Graham‘s intent, knowledge, or lack of good faith.
Graham contends that these emails were inadmissible hearsay, see
Nor did the emails create a risk of prejudice that substantially outweighed their probative value. See
3. Conscious-Avoidance Instruction
Finally, Graham argues that the district court erred by instructing the jury on conscious avoidance, also known as willful blindness. In general, a criminal conspiracy conviction requires actual knowledge of the unlawful aims of the conspiracy, but a “defendant‘s conscious avoidance of knowledge of the unlawful aims of the conspiracy . . . may be invoked as the equivalent of knowledge of those unlawful aims.” United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003). The conscious-avoidance doctrine applies to a defendant who “consciously avoided learning
We conclude that there was sufficient evidence for a rational jury to conclude that Graham consciously avoided evidence of wrongdoing. In addition to the “red flag” emails, see supra Section II.B.2, and much of the evidence of actual knowledge, see supra at 5-6, the government introduced evidence showing Graham‘s active disregard of information tending to show a high probability of the fraudulent aims of the conspiracy. For example, the government introduced comments from title companies expressing alarm at Graham‘s methods. It also recounted that law enforcement raided Graham‘s office in 2012, after which Graham‘s criminal conduct continued. The government‘s evidence served to show that Graham ignored these signals and told others not to engage with outside lawyers or the title companies. There was therefore ample basis for the district court‘s conscious-avoidance instruction.
III. CONCLUSION
Graham‘s ineffective-assistance claim was waived, and her remaining arguments are meritless. For the foregoing reasons, the judgment of conviction is affirmed.
20-832-cr
United States v. Graham
PÉREZ, Circuit Judge, concurring in the judgment as to Section II.A:
There is no debate that “criminal defendants require effective counsel during plea negotiations” and that “anything less might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (cleaned up). Binding precedent does not treat the right to counsel during plea negotiations with short shrift.
I agree with the majority opinion that we should reject Graham‘s claim, though I would do so on the merits, instead of finding waiver, because she is not able to prove the requisite prejudice. As such, I respectfully concur in the judgment of the Court in Section II.A, but not its discussion and conclusion as to waiver. I fear that the majority opinion-after reaching beyond what the parties initially argued-has muddied the waters concerning the right to effective assistance of counsel in plea bargaining by finding waiver.
I.
The Court should not have reached for waiver here. To speak plainly: the government abandoned this argument. The government did not raise waiver in its opposition brief-it even expressed serious doubt on whether there was a waiver when first questioned about it during oral argument.1 “It is well established that an argument not raised on appeal is deemed abandoned[.]” United States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (internal quotation marks omitted); see also United States v. Olano, 507 U.S. 725, 732-33 (1993) (a party forfeits an argument when it “fail[s] to make the timely assertion of a right,” subjecting it to plain error review); cf. JLM Couture, Inc. v. Gutman, 24 F.4th 785, 801 n.19 (2d Cir. 2022) (declining to address “belatedly” made arguments raised in reply brief on appeal). Of course, this Court may consider abandoned claims if “manifest injustice would otherwise result[.]” Quiroz, 22 F.3d at 491. But no one-even now after the government was prodded by this Court to make a waiver argument-argues such manifest injustice would occur here if we considered Graham‘s ineffective assistance claim.2 Respectfully, I see much irony in that the majority opinion easily finds Graham‘s Frye claim waived but declines to find the government‘s new argument abandoned given that the government would not have asserted waiver if not for a request for supplemental briefing by this Court.
While it is true that there is “no right to be offered a plea . . . nor a federal right that the judge accept it,” Frye, 566 U.S. at 148 (internal citations omitted), there is no question that the
Something as bedrock to our criminal justice system and judicial process-the right to effective assistance of counsel-demands the judiciary be modest in its approach to doctrines that may serve to limit the right, such as waiver. See, e.g., Carnley v. Cochran, 369 U.S. 506, 514 (1962) (“[C]ourts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights.” (internal quotation marks omitted)). Accordingly, when a fundamental right such as the right to effective assistance of counsel is implicated, sua sponte applications of waiver should be made with considerable restraint.
II.
Even if waiver had been raised by the government in its initial briefing, the government did not overcome the presumption against waiver, or meet its burden for us to find Graham‘s purported waiver was knowing and intelligent.
“There is a presumption against the waiver of constitutional rights[.]” Brookhart v. Janis, 384 U.S. 1, 4 (1966). “Whether a particular right is waivable; whether the defendant
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” Id. (internal quotation marks omitted). There is no dispute that the Court has discretion to correct certain errors that were forfeited using a plain error analysis, and that, in most cases, forfeiture occurs when a defendant fails to assert an objection in the district court due to mistake or oversight. See United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995). But the Court has no such discretion to conduct a plain error review if there was a true waiver. See id. The government must prove waiver by a preponderance of the evidence. See, e.g., Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). Where this Court has found waiver, “the record has supported the critical determination that the defendant acted intentionally in pursuing, or not pursuing, a particular course of action.” United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015).
A.
The record does not support a finding by a preponderance of the evidence that any purported waiver was knowing and intelligent. See Berghuis, 560 U.S. at 384; see also Brady v. United States, 397 U.S. 742, 748 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.“).
This Court has recognized several instances where the district court must conduct a meaningful inquiry with the defendant to ensure that the waiver of a constitutional right was knowing and intelligent. See, e.g., United States v. Ferguson, 758 F.2d 843, 850-51 (2d Cir. 1985) (noting requirement that waiver of indictment be made in open court, where the defendant is “informed of the nature of and the cause for the accusation, and the court must be satisfied that the defendant[] waive[s] their right[] knowingly, intelligently and voluntarily” to safeguard
As the majority opinion aptly notes, it is not as if ”Frye permits district judges to identify [ineffective assistance] but not to remedy it before a trial or subsequent plea.” Op. at 17 (quoting United States v. Draper, 882 F.3d 210, 218 (5th Cir. 2018)) (internal quotation marks omitted). To its credit, the district court did acknowledge the potential Frye issue and raised its concern for the parties, stating that it did not want this Frye issue “to come back to haunt us, so to speak.” Joint App‘x at A-90. Recognizing that the scenario was dynamic and unfolding in real-time, merely acknowledging the potential for a Frye issue does not provide the groundwork for finding waiver. See Arrington, 941 F.3d at 43 (noting that the key for waiver is not whether “a trial judge recited any particular litany of questions[,]” but whether “the defendant appreciated his predicament and made a properly informed choice“); see also United States v. Jenkins, 943 F.2d 167, 176 (2d Cir. 1991) (referring to “the common sense notion that the existence of a knowing and intelligent waiver inevitably depends upon the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused” (cleaned up)).
Once a potential Frye issue arose, to ensure any Frye right was knowingly and
B.
Waiver also cannot be found here because it does not appear, by a preponderance of the evidence, that Graham made a strategic, calculated decision to waive her Frye right. “[W]aiver can result only from a defendant‘s intentional decision not to assert a right.” Spruill, 808 F.3d at 597. “As a corollary, if a party consciously refrains from objecting as a tactical matter, then that action constitutes a true ‘waiver[.]‘” United States v. Cosme, 796 F.3d 226, 231-32 (2d Cir. 2015) (internal quotation marks omitted). “[C]ourts applying [the] waiver doctrine have focused on strategic, deliberate decisions that litigants consciously make.” United States v. Dantzler, 771 F.3d 137, 146 n.5 (2d Cir. 2014). While the Court has declined to make a “tactical benefit a prerequisite to identifying waiver[,]” it is certainly “evidence that the relinquishment of a right was intentional[.]” Spruill, 808 F.3d at 599. We have accordingly declined to hold an argument waived when there was “nothing in the record suggesting . . a strategic, calculated decision[.]” Dantzler, 771 F.3d at 146 n.5.
The majority opinion concludes Graham waived her Frye right because she chose to take her case to trial. But this high-level characterization dismisses the complete picture of Graham‘s circumstance. The court replaced allegedly ineffective counsel with new counsel, and Graham went to trial where she sought an acquittal largely on the basis that she lacked the requisite intent.6 Advancing to trial with the hope and belief that a jury would acquit, without requesting the government reopen its plea offer, does suggest that Graham would not have taken the plea had she been properly advised-which speaks to the lack of requisite prejudice, not waiver.7 See Lafler, 566 U.S. at 164 (requiring the defendant show that “but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea . . . .)“). This case would not result in the “windfall” scenario Lafler warns of, for it does not present a credible worry that a defendant could seek a tactical benefit by waiting to raise a Frye claim on appeal where ineffective counsel during plea bargaining was replaced before trial. See id. at 170, 172. Here, there simply is “nothing in the record suggesting . . . a strategic, calculated decision” to decline a possible reinstatement of the government‘s plea offer, only to potentially resurrect the claim on appeal after losing at trial-or even sandbag the government on appeal. Dantzler, 771 F.3d at 146 n.5. The majority thus should not have found waiver.
C.
By finding waiver, the majority opinion fails to grapple with the practical realities of the situation Graham faced in the time between the April 10, 2019 hearing (where the district court appointed new counsel), and the May 31, 2019 final pretrial conference (where the district court asked “whether or not the parties have discussed any possibility of resolving this [case] short of trial?“). Joint App‘x at A-171-A-72. The district court made clear during the April 10 conference that it “intend[ed] to stick to th[e] trial schedule that [it] already set.” Id. at A-95. And while it did move the trial date back by approximately one month to allow newly appointed counsel to get up to speed, the district court set the trial date as commencing only two months from the appointment. During the April 10 conference, the government-at several points-made clear that the “plea offer has technically expired” and that it doesn‘t “bid against [itself]. That is, we don‘t keep on making new plea offers.” Id.; see also id. at A-96. The government also explained that “the closer we get to trial, the less flexible [the government is] likely to be to the extent that we have flexibility in plea negotiation. . . . [T]he longer she waits, the less likely it is that it will benefit her[.]” Id. at A-95-A-96.8
III.
The majority opinion‘s finding of wavier here appears to be a solution in search of a manufactured problem. Indeed, the majority opinion searches for a solution when waiver was not even advanced by the government until it was ordered to brief it. Even so, the government has not established by a preponderance of the evidence that Graham knowingly and voluntarily waived her Frye right. Nonetheless, I respectfully concur that we should reject her claim. Graham‘s ineffective assistance claim may be considered, and rejected, under existing precedent, because Graham has not demonstrated there was a reasonable probability that she would have accepted the plea offer. See Lafler, 566 U.S. at 164.
Notes
Among other facts, the district court informed Graham‘s new counsel that there was an expired plea offer that the government indicated could come back on the table if Graham indicated an interest in pursuing it. At the final pretrial conference, Graham‘s counsel did not dispute the government‘s characterization that there had been some discussions of “resolving the matter short of trial,” but that it was the government‘s understanding that Graham was “not seeking resolution, so [the government had] not made any new offers, nor [had it] been asked to reopen any offers.” Joint App‘x at A-172. Counsel merely stated that he was “ever hopeful of resolving [this] matter,” but expected to be before the jury the following week. Id. This suggests Graham‘s lack of interest in the original plea offer, such that Graham is not able to show there was a reasonable probability she would have accepted the plea offer. The majority opinion instead interprets these events as evidencing waiver. As I discuss supra Section I, I believe that approach is inappropriate and unnecessary here, given the presumption against waiver of constitutional rights and that this Court raised waiver sua sponte, to the government‘s initial skepticism.