UNITED STATES OF AMERICA, APPELLEE v. GREGORY BELL, ALSO KNOWN AS BOY-BOY, ALSO KNOWN AS BUNGA, APPELLANT
No. 08-3037 Consolidated with 11-3032
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2015 Decided July 28, 2015
Appeals from the United States District Court for the District of Columbia (No. 1:05-cr-00100-2 and -3)
James M. Perez and Stratton C. Strand, Assistant U.S. Attorneys, argued the causes for appellee. With them on the briefs were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.
Opinion for the Court filed by Circuit Judge BROWN.
Opinion dissenting in part and concurring in part filed by Circuit Judge WILKINS.
BROWN, Circuit Judge: “[L]ike a bad penny, it return[s] to [us] again.” Letter from Abigail Adams to Mary Smith (Oct. 6, 1766) (referencing unattributed aphorism). We revisit the Congress Park Crew (“Crew”), “a loose-knit gang that ran a market for crack cocaine in the Congress Park neighborhood of Southeast Washington, D.C., for nearly thirteen years.” United States v. Jones, 744 F.3d 1362, 1365 (D.C. Cir. 2014). Previously, we affirmed the sentences imposed on three of six jointly-tried Crew members; two additional members now appeal: one challenging his conviction and both challenging their sentences. We affirm the district court.
I
In 2005, eighteen Congress Park Crew members were indicted on various crimes including conspiracy and crack distribution. Eleven members pleaded guilty and one member was tried separately in 2006; the remaining six Crew members were tried together in 2007. In Jones we found the district court did not err in its sentencing of three of the jointly-tried Crew Members—Joseph Jones, Desmond Thurston, and Antwuan Ball. Id. at 1367–70. The present consolidated appeal concerns two additional Crew members tried in 2007—David Wilson and Gregory Bell (collectively “Defendants”). Wilson was convicted of two counts of aiding
Wilson challenges his conviction at trial. He claims ineffective assistance of counsel based on substitutions of his defense attorneys, that two uncharged murders were improperly admitted into evidence, and that the Government failed timely to produce pieces of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Both Defendants also challenge the sentences imposed on them for crack cocaine distribution. We address each issue in turn.
II
Wilson’s most facially credible argument is that substitutions of trial counsel deprived him of effective representation. But we are ultimately unpersuaded by his theory on appeal, which hinges on an extension of the doctrine of presumptive prejudice.
A
The course of Wilson’s representation was marked by a number of substitutions of his lead and secondary court-appointed counsels.1 We summarize the substitutions most pertinent to the present appeal. In January 2007—
The district court initially granted severance but the Government sought reconsideration, proposing a “brief continuance[,] . . . a week or two, to allow Mr. Proctor to get up to speed,” before allowing the Government “to finish its five to six days or so of its case,” then a longer continuance (“a month and a half”), to provide Proctor time to prepare Wilson’s case in defense. J.A. 3383–84. Finding the Government’s proposal “eminently fair,” J.A. 3386, the district court reversed its earlier grant of severance. Secondary counsel3 was appointed to assist Proctor in his new
Proctor represented Wilson as lead counsel through the remainder of trial arguments. Although the dissent assumes Wicks’s departure from the case robbed the defense of the benefits of her prior work, Proctor’s ability (or inability) to directly consult with Wicks, in preparing and conducting Wilson’s defense at trial, is sparsely developed in the record before us. But see J.A. 3417 (indicating Wicks had at least some capacity to accept telephone calls, albeit without providing insight into the extent of her availability or to what extent Proctor or Davies employed Wicks as a resource), 3486 (Proctor noting he “dragged Ms. Wicks out of retirement one more time,” to be present in the courtroom during his closing arguments).4
B
Despite being acquitted on a number of serious offenses—including counts of aiding and abetting murder,
In United States v. Cronic the Supreme Court identified three “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. 648, 658 (1984). See also Woods v. Donald, 135 S. Ct. 1372, 1378 (2015) (reiterating that Cronic applies only in such circumstances). “Most obvious, of course, is the complete denial of counsel.” Cronic, 466 U.S. at 659. The Court also recognized the presumption in the constructive absence of counsel, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or where “[c]ircumstances . . . [are] present . . . [such that] although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60.
Courts have limited Cronic to “a very narrow range of situations.” United States v. Hughes, 514 F.3d 15, 18 (D.C. Cir. 2008); United States v. Thompson, 27 F.3d 671, 676 (D.C. Cir. 1994). For example, Cronic is only applicable for failure to test a prosecutor’s case where “the attorney’s failure . . . [is] complete,” Hughes, 514 F.3d at 18; the presumption is “reserved for situations in which counsel has entirely failed to
Wilson would have us extend Cronic to cases where a substitution means at least one specific defense counsel was not continuously present during each and every critical stage of trial.5 In Wilson’s view, in cases where counsel is substituted, the duration of the continuance granted to allow substitute counsel to prepare is irrelevant. See Reply Brief for Appellant David Wilson at 7, United States v. Bell, No. 08-
The dissent focuses on concerns Wilson never raised—either at trial or on appeal: (1) that the mid-trial substitution led to the irretrievable loss of Wick’s strategic consultations with him and (2) that Proctor could not begin his representation with the same well-developed rapport. But, since the Sixth Amendment does not guarantee representation by a single counsel or a meaningful relationship with counsel, Morris v. Slappy, 461 U.S. 1, 19-19-20 (1983), the fact that Proctor could not replicate the exact depth of relationship Wilson enjoyed with Wicks—even if true—cannot be the basis of a presumption оf prejudice.
Further, the record is inconclusive as to whether Proctor had access to a paralegal who was present for the entire trial and could foster continuity for the defense team after the mid-trial substitution. See J.A. 3381 (the Government arguing that Proctor was “not truly alone,” in part, because “Ms. Wicks ha[d] a paralegal who’s been very involved in the case, [and
Wilson analogizes Proctor to an errant defense counsel whose absence prevents him from “assess[ing] each piece of the government’s case[,] observ[ing] how it is received by the jury[,] assess[ing] how it fits into the larger picture of trial[,] and . . . choos[ing] what evidence to present in the defense[’s] case.” Id. at 9. To be sure the complete absence of any dedicated counsel for the accused, during a critical stage of a proceeding, would warrant Cronic’s presumption. See, e.g., United States v. Russell, 205 F.3d 768, 771–72 (5th Cir. 2000); United States v. Decoster, 624 F.2d 196, 256 (D.C. Cir. 1976) (en banc) (“[W]here the defendant had no counsel at all at a critical stage of his trial, automatic reversal of his conviction is usually in order.”). But where counsel is substituted promptly, there is no impermissible gap in a defendant’s representation. The identity of counsel has changed but at each critical stage a defense lawyer was present to actively subject the prosecution’s case to “the crucible of meaningful adversarial testing.” Cronic, 466 U.S. at 656. See Goodwin v. Johnson, 132 F.3d 162, 176 (5th Cir. 1997) (“When the defendant receives at least some meaningful assistance, he must prove prejudice in order to obtain relief for ineffective assistance of counsel.”) (emphasis added). Cf. Carroll v. Renico, 475 F.3d 708, 713 (6th Cir. 2007) (finding the Supreme Court has not even clearly
The inquiry thus turns on whether substitution of counsel, during the course of trial, is tantamount to a constructive absence of representation or is otherwise a circumstance where no “lawyer, even a fully competent one, could provide effective assistance.” Id. at 659–60. “The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time.” Wright v. Van Patten, 552 U.S. 120, 125 (2008).
Mid-trial substitution may prove disruptive. Even following a continuance, a substitute defense counsel will sometimes be disadvantaged by his absence from earlier proceedings. Indeed, best practice may favor allowing for a severance or mistrial where the prolonged illness or absence of a defense counsel would require substitution. But “best practice” is not the standard for constitutional deficiency. Nor does every disadvantage to the defense’s representation, however meagre, suffice to “infect[] [an] entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). See generally Harrington v. Richter, 562 U.S. 86, 110 (2011) (the Sixth Amendment “does not guarantee perfect representation, only a ‘reasonably competent attorney’”).
If any break in the continuity of counsel at trial were sufficient to create a presumption of prejudice, even where a different attorney for the accused was present at critical stages missed by the substitute lead counsel, the Sixth Amendment’s guarantee would resemble less the assurance of “effective” representation and instead demand something closer to a “perfect” defense. While perfection may seem a laudable goal, this latter threshold of performance is not demanded by our Constitution. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (right to counsel guarantees “effective (not mistake-free) representation”). Cf. Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir. 1998) (“A constructive denial of counsel occurs . . . in only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.”) (quoting Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.1997)).
Wilson emphasizes that, unless the lawyer assuming the lead counsel role was continuously present at trial prior to the substitution, he will have been unable to physically “observ[e]
Review of the trial transcript or other records is, at times, an imperfect substitute for being present. Indeed, courts often acknowledge that “a cold record cannot recreate testimony. A witness may be credible on paper but not on the stand.” Harvard v. Florida, 459 U.S. 1128, 1134 (1983).9 This does not mean, however, that it is impossible for an attorney to
There may be cases where a defendant is constitutionally prejudiced by his substitute counsel’s inability to directly evaluate a critical witness’s demeanor at trial because, for example, prior counsel was unavailable to consult and left no material records or notes, the transcript of the witness’s testimony was highly ambiguous, and the prosecution’s case significantly hinged on the particular witness’ recitation. But constitutional prejudice does not automatically flow in every case where counsel is substituted mid-trial.10 See United States v. Griffiths, 750 F.3d 237, 239 (2d Cir. 2014) (per curiam) (“We hold that there is no per se violation of the Sixth Amendment right to be represented by one’s counsel of choice and to effective assistance of counsel when a district court, after defense counsеl has become incapacitated, appoints counsel, over defendant’s objection, to deliver the defense summation, notwithstanding the fact that appointed counsel did not witness the presentation of the evidence.”).
We decline to sweep virtually every mid-trial substitution under Cronic’s blanket rule. See generally Cronic, 466 U.S. at 659 n. 26 (“[T]here is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”); Appel v. Horn, 250 F.3d 203, 214 (3d Cir. 2001) (“[T]he majority of Sixth Amendment right to counsel cases are, and should be, analyzed under the ineffective assistance standard of Strickland which requires a showing of prejudice.”). The Cronic inquiry is a largely mechanical one, and we are mindful of avoiding a holding that could open the door to replacing “case-by-case litigation over prejudice with case-by-case litigation over prejudice per se.” Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir. 1994) (in the context of finding Cronic inapplicable based on claims of substandard attorney performance).
Moreover, we are unpersuaded that a contrary rule would actually prove narrow. The dissent suggests Cronic would “only” apply where a “defense counsel is incapacitated mid-trial . . . and no replacement attorney is available who observed the testimony of key government witnesses . . . and participated in mаterial consultations with the defendant.” Dissenting Op. at 19. The dissent’s logic would extend to most mid-trial substitutions. And this kind of excruciatingly detailed examination of the facts is exactly the circumstance for which Strickland is designed.
III
Wilson also challenges the admission of evidence of two uncharged murders: that Wilson—with the assistance of his
The lower court deemed the Phillips murder extrinsic to the charged conspiracies, noting it stemmed from a “dispute over an overlapping romantic relationship.” J.A. 2133. Nonetheless the murder was admitted under
In contrast, the Reid murder was admitted as “intrinsic” to the charged conspiracy because it was “evidence . . . of the development of relationships among the alleged co-conspirators to show the way that the alleged conspiracies grew and were formed and developed, as well as evidence of prior conspiratorial conduct among the alleged conspirators that would be corroborative of the defendant’s entry into the charged agreements in the indictment.” J.A. 2132.
Our review is for abuse of discretion. See United States v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (Rule 404(b) standard); see also id. (review of Rule 403 balancing reviewed only for grave abuse); United States v. Becton, 601 F.3d 588, 595 (D.C. Cir. 2010) (applying the Rules 401 and 403 abuse of discretion standard when reviewing if evidence was intrinsic to the charged crime). We find no basis to reverse the district court’s judgment.
A
As to the Phillips murder, the Government makes a threshold argument that Wilson waived his challenge by arguing he should be allowed to offer evidence that the Phillips shooting resulted in Phillips’s death. See Wagner v. Taylor, 836 F.2d 596, 599 (D.C. Cir. 1987) (“It has long been
Though not waived, Wilson’s merits argument is fruitless. The Phillips murder is admissible to show use of and familiarity with firearms. Knowledge of firearms is a permissible purpose under Rule 404(b). See
It was likewise not an abuse of discretion—much less grave abuse—for the lower court to hold exclusion
B
The district court also admitted evidence of the Reid murder, finding it intrinsic to the charged conspiracy because it “show[ed] the way that the alleged conspiracies grew and were formed and developed, as well as evidence of prior conspiratorial conduct among the alleged conspirators that would be corroborative of the defendant’s entry into the charged agreements in the indictment.” J.A. 2132.
Generally intrinsic evidence includes “act[s] that [are] part of the charged offense” or “some uncharged acts performed contemporaneously with the charged crime . . . if they facilitate the commission of the charged crime.” United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). Thus, evidence is not generally rendered intrinsic simply because it completes the story or explains the circumstances behind a charged offense. Id. But even if evidence of the Reid murder was improperly admitted as intrinsic, any error was
Wilson next asserts Brady violations, which bear on his conviction for two counts of aiding and abetting murder. The Government’s theory was that Wilson acted as the getaway driver for two gunmen in the murder of rival gang-member Ronnie Middleton and his girlfriend Sabrina Bradley. The Government argued Wilson assisted in the shootings because he believed Middleton was responsible for the murder of Maurice Doleman, who was “like a brother” to Wilson. See J.A. 2572 (“They was almost like brothers, sir.“). Wilson points to the Government’s failure to timely disclose various reports allegedly material to the murders and favorable to the accused. Our review is de novo. In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999).
Wilson first points to the Carter Report, which the Government disclosed roughly three months into trial. That police report contains a two-paragraph section reflecting Bradley Carter’s statement that Aman Ball and Joseph Jones committed the murders, rather than Antonio Roberson and Antoine Draine—as the Government had theorized at trial. Second, Wilson argues the Doleman Reports were also improperly suppressed. Wilson obtained the Doleman Reports only in post-trial discovery. The reports consist of summaries of police interviews conducted during the investigation of the Doleman murder, including summaries of statements by three witnesses who indicated that they believed or had hеard individuals other than Middleton were responsible for Doleman’s death.
Wilson cannot show the delayed disclosure of the Carter Report was prejudicial. See generally Strickler v. Greene, 527 U.S. 263, 281–82 (1999) (the three components of a
We also find no Brady violation based on suppression of the Doleman Reports. “Suppressed information is exculpatory and thus ‘favorable’ to the defense for Brady purposes when it directly contradicts the motive theory testified to by prosecution witnesses.” Mendez v. Artuz, 303 F.3d 411, 414 (2d Cir. 2002). The Government theorized Wilson believed Middleton was responsible for Doleman’s death, and this belief precipitated Wilson’s involvement in the Middleton-Bradley murders. The suppressed reports, however, merely demonstrate that other individuals believed someone other than Middleton was responsible—which is, at best, tertiary to the question of Wilson’s subjective beliefs and does not directly contradict the Government’s theory of motive. Cf. Hunt v. Lee, 291 F.3d 284, 295 (4th Cir. 2002) (“[T]he state’s theory [was] that Hunt killed Jones because Hunt believed that Jones . . . t[old] [the police] that Hunt killed Ransom. It is irrelevant whether Jones [] actually told the police that Hunt was Ransom’s killer. The critical issue is whether Hunt believed that Jones was telling the police that Hunt was the killer.“). Further, Wilson cannot show the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). “The police reports do not directly exonerate Wilson or lessen the force of the corroborated and credible testimony regarding admissions Wilson made about his involvement in the[] [Middleton-Bradley] murders to [various witnesses].” Wilson, 720 F. Supp. 2d at 65.16
Even considering the cumulative effect of the multiple alleged Brady violations, United States v. Lloyd, 71 F.3d 408, 412 (D.C. Cir. 1995), the untimely or suppressed materials are insufficient to undermine our confidence in the jury’s verdict or to overcome the Government’s evidence, which included, inter alia, testimony from multiple witnesses that Wilson told them of his involvement in the Middleton-Bradley murders.
V
We turn to the Defendants’ sentencing challenges. Both Wilson and Bell were convicted of multiple counts of crack distribution. They argue the sentences imposed by the district court violated the Sixth Amendment and were procedurally and substantively unreasonable. As the Defendants concede, our prior decision in Jones, 744 F.3d 1362, directly forecloses these sentencing arguments—save one claim related to a two-point firearm enhancement applied to Bell. See Oral Arg. Tr. at 1:08:42–09:53 (“We understand that this panel cannot reverse the holding in Jones. We think it was wrongly decided. . . . We would just ask that you would agree that we should have rehearing . . . .“).17
A
In determining the Defendants’ sentences, the district court attributed 1.5 kilograms of crack cocaine from the conspiracy to each of the Defendants as relevant conduct, a finding the court made by a preponderance of the evidence. Because the jury acquitted the Defendants of the charged drug conspiracies, the Defendants argue the district court’s attributions violated the Sixth Amendment by increasing the minimum and maximum terms of imprisonment based on facts not found by a jury beyond a reasonable doubt.
The Sixth Amendment provides criminal defendants with the right to a jury trial. “The right includes, . . . as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.‘” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Acting in conjunction with the Sixth Amendment is the protection of the Fifth Amendment, which requires a jury “to find each element of [a] crime beyond a reasonable doubt,” Patterson v. New York, 432 U.S. 197, 204 (1977), before a guilty verdict can properly be rendered, United States v. Gaudin, 515 U.S. 506, 509–10 (1995).
That said, many facts that result in an increase to a defendant’s sentence are not considered elements of a crime and can be found by a sentencing judge relying on a preponderance of the evidence standard. Rita v. United States, 551 U.S. 338, 352 (2007) (“[A] sentencing court [may] take account of factual matters not determined by a jury [] to
The Defendants’ sentences fall within the statutory range, rendering their constitutional argument unconvincing. They first suggest the sentencing court ran afoul of Alleyne by using the 1.5 kilograms of crack cocaine from the conspiracy to sentence the Defendants pursuant to
Even if the sentences fall within the statutory range, the Defendants argue Alleyne prohibits any increase in the defendant’s base offense level or upward departure from the base offense level, where such an increase or departure is based on facts found by a sentencing judge to a preponderance of the evidence. Alleyne, however, dealt with an increase to the statutory range—not increases to a defendant’s range under the Sentencing Guidelines (“Guidelines“). See Alleyne, 133 S. Ct. at 2161 n.2 (“Juries must find any facts that increase [] the statutory maximum or minimum . . . . Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment within limits fixed by law.“) (emphasis added) (internal quotation marks and citations omitted). “We [] lack any basis to reconsider the settled rule that enhancing a sentence within the statutory range based on facts found by the judge, as opposed to the jury, does not violate the Sixth Amendment.” Jones, 744 F.3d at 1369. “[J]udicial fact-finding does ‘not implicate the Sixth Amendment even if it yield[s] a sentence above that based on a plea or verdict alone.‘” Id. at 1370 (quoting United States v. Bras, 483 F.3d 103, 107 (D.C. Cir. 2007)).
B
The Defendants next challenge their sentences as procedurally unreasonable. Among other things, they protest the district court’s consideration of 1.5 kilograms of crack cocaine from the acquitted conspiracy when calculating the Defendants’ sentences. They argue crack cocaine distributed through the acquitted conspiracy is not “relevant conduct” where the Defendants’ convictions were for “street-level drug
Relying on Justice Scalia’s partial concurrence in Rita, 551 U.S. at 375 (Scalia, J., concurring in part), the Defendants next rehash their Sixth Amendment argument couched as a distinct theory of procedural unreasonableness. They argue the sentencing court misunderstood the scope of his sentencing authority and misapplied the Guidelines. The Defendants’ refrain is familiar: because the acquitted conspiracy was not found by a jury beyond a reasonable doubt, it was procedurally unreasonable for the sentencing judge to consider it in calculating the Defendants’ base
The Defendants’ final argument for procedural unreasonableness relates to a two-point firearm enhancement imposed on Bell. See
C
The Defendants also contend their sentences were substantively unreasonable, though—at times—their arguments are mere variations of their constitutional or procedural unreasonableness theories. For example, the Defendants again argue the sentencing judge could not attribute crack cocaine from the acquitted conspiracy to them, as relevant conduct. This particular iteration of the Defendants’ argument hinges on their bеlief that “[t]he only reasonable interpretation of the [jury’s acquittal on conspiracy] is that [the jury] believed either no conspiracy existed or that Appellants were not part of the conspiracy.” Brief for Joint Appellants Sentencing at 28.19 But “an acquittal in a criminal case does not preclude the Government
The Defendants also argue it was substantively unreasonable to attribute the distribution of 1.5 kilograms of crack cocaine to them. The Defendants argue there was insufficient evidence to support the quantities of crack cocaine attributed by the judge, based on the evidence presented of the quantities that Bell and Wilson personally distributed. The sentencing judge’s attribution, however, was—in the first instance—based upon whether crack cocaine sales among all the conspirators exceeded 1.5 kilograms and were reasonably foreseeable to the Defendants. J.A. 3623–24 (Bell),20 3687–88 (Wilson). See also Jones, 744 F.3d at 1368 (permitting the attribution of crack cocaine from defendants’ coconspirators as relevant conduct);
The Defendants further protest that the Government relied upon testimonial evidence, rather than physical or documentary evidence. But there is no problem with the Government relying on admissible testimony, so long as it is sufficient—either alone or in combination with other evidence—to satisfy the requisite burden of proof. See United States v. Graham, 317 F.3d 262, 271 (D.C. Cir. 2003). Moreover, contrary to the Defendants’ claims of vagueness and inconsistency, the Government’s witnesses offered specific information to support the quantities of cocaine attributed to the Defendants based on the acquitted conspiracy. Drug dealer Cedric “Conner . . . [testified to] supplying an estimated quantity in excess of one kilo between 1999 and 2000, and [coconspirator Robert] Capies . . . [admitted to] buying over 500 grams from 1992 to 2001.” J.A. 3622. The Defendants challenge the credibility of these witnesses. But, while evidence of their coconspirators’ disreputable character “may undercut the[ir] . . . credibility generally, [it] do[es] not establish that it was implausible for the district court to credit particular aspects of their testimony, especially where, as here, the cooperators offered mutually corroborative accounts.” 744 F.3d at 1367.
VI
For the foregoing reasons the district court is
Affirmed.
I.
The Supreme Court decided United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668 (1984) on the same day. In doing so, the Court examined the Sixth Amendment right to the effective assistance of counsel with respect to two very distinct categories of asserted error. Understanding the reasons for the separate paths is fundamental to the analysis of the error asserted in this case.
In the first category of constitutional error, the defense lawyer “deprive[s] a defendant of the right to effective assistance, simply by failing to render ‘adequate legal assistance.‘” Strickland, 466 U.S. at 686 (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). “[B]ecause we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation.” Cronic, 466 U.S. at 658 (citation omitted); see also Strickland, 466 U.S. at 688 (discussing “presumption that counsel will fulfill the role in the adversary process that the Amendment envisions“). To prevail on this type of claim, the defendant must show that counsel’s performance was objectively unreasonable, and that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694. Thus, the analysis hinges on an examination
The second category of Sixth Amendment error does not examine specific errors of counsel at all. Rather, this error transpires when “[t]here are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658. In these instances, the constitutional violation is shown “without inquiry into counsel’s actual performance at trial,” id. at 662, because “the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness [i]s properly presumed without inquiry into actual performance аt trial,” id. at 661 (emphasis added). Stated differently, the circumstances of this type of error are such that “although counsel [was] available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60.
So how do we identify those circumstances “that are so likely to prejudice the accused” that prejudice is presumed? The Supreme Court provided several salient examples in both Strickland and Cronic.
In Strickland, the Court observed that prejudice is presumed where there is an “[a]ctual or constructive denial of the assistance of counsel altogether.” 466 U.S. at 692. Cronic agreed, explaining that prejudice is presumed where a defendant was “denied counsel at a critical stage of his trial,” whether actually or constructively. 466 U.S. at 659. The Court also explained that, when counsel “entirely fails to subject the prosecution’s case to meaningful adversarial
But in addition to these scenarios, Strickland explained that prejudice is presumed where there have been “various kinds of state interference with counsel’s assistance,” 466 U.S. at 692, because the “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense,” id. at 686. Again, Cronic agreed, explaining that prejudice is presumed where the defense was “prevented from assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659 n.25. In so doing, both Strickland and Cronic reaffirmed the long-established principle that certain impediments to the defense are so grave that they thwart the adversarial factfinding process at the heart of our system of justice. These impediments can result from actions of the trial court as well as those of the prosecutor. When a trial court imposes serious obstacles to a defendant’s ability to obtain the “guiding hand of counsel at every step in the proceedings against him,” due process is denied. Brooks v. Tennessee, 406 U.S. 605, 612 (1972) (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)). This is because “[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975).
In this case, forcing Wilson to finish the trial with a lawyer who had missed several critical days of the proceedings was such an impediment to the defense and interference with counsel’s assistance that prejudice is presumed. To understand why, we need to review the facts.
As the majority explains, Wilson was one of six defendants in a drug conspiracy trial that lasted ten months. Four months into the government’s case, Wilson’s lead counsel, Jenifer Wicks, suddenly took ill, and the District Court initially announced its intent to grant Wilson’s motion for a mistrial. However, the Government objected, and the District Court changed course. The Government proposed that Wilson’s second-chair counsel, Gary Proctor, be elevated to take over his defense, and that the court could take a continuance to allow Proctor to get up to speed. The District Court acceded to this request and denied Wilson’s motion for a mistrial.1
Because of his administrative duties in this case, as well as his work on his other cases, Proctor was not present in court for about a third of trial before Wicks’s illness. Proctor missed the testimony of several witnesses who were critical to the prosecution’s case against Wilson, including Torran Scott and Renee Cottingham, two of the four witnesses who inculpated Wilson in the murders of Sabrina Bradley and Ronnie Middleton. See Trial Tr. at 11, United States v. Ball, No. 05-cr-100 (D.D.C. June 27, 2007), ECF No. 1040. Proctor was not in the courtroom to watch Scott tell the jury that Wilson had admitted involvement in the shooting, and that Wilson asked Scott to corroborate his alibi. Nor did Proctor see Scott admit on cross examination that he failed to inculpate Wilson until four years after the murders and two days before pleading guilty as part of a deal with the government. Proctor was not present when Cottingham told the jury that Wilson confessed to her that he had committed
Proctor missed other significant parts of the prosecution case as well. Proctor was not present during a large part of the cross-examination of Damien Green. Green was a government witness who had testified at length that Wilson had robbed several men at gunpoint, threatened him with a gun, shot at him, and even shot up a recreation center. See Trial Tr. at 11,675-77, United States v. Ball, No. 05-cr-100 (May 17, 2007), ECF No. 942; Trial Tr. at 13,106-12, id. (D.D.C. May 29, 2007), ECF No. 967; Trial Tr. at 13,786-88, 13,827-35, id. (D.D.C. May 31, 2007), ECF No. 978. On cross, when Proctor was absent, other defense attorneys questioned Green about his daily use of drugs and alcohol throughout the period about which he had testified. Trial Tr. at 13,913-22, id. (D.D.C. June 4, 2007), ECF No. 979. Proctor was also absent during – and did not see the jury’s reaction to – a forensic pathologist’s graphic testimony about Middleton and Bradley’s deaths, during which the government introduced into evidence autopsy photographs of their gunshot wounds and their faces. Trial Tr. at 15,629-34, 15,645-69, id. (D.D.C. June 14, 2007), ECF No. 1010, 1012.
When Wicks left Wilson’s side, her accumulated knowledge of the case left with her. In particular, Wilson lost: (1) Wicks’s tactical and strategic consultations with Wilson about the trial, (2) Wicks’s appraisal of witness
A.
The District Court did not consider the impact on Wilson’s defense of losing Wicks’s work-product from her consultations with Wilson, but Supreme Court precedent makes clear the centrality of these consultations to the right to assistance of counsel. Moreover, when a defendant is denied the opportunity to consult with counsel at trial, prejudice is presumed. In a series of cases reaffirmed in Cronic, 466 U.S. at 659 n.25, the Supreme Court found constitutional error based upon limitations on criminal defendants’ ability to consult with their attorneys. In Geders v. United States, the Court held that a trial court’s denial of the defendant’s access to his attorney during a weekend trial recess violated the right of effective assistance of counsel, because it hampered counsel’s ability to discuss the significance of the day’s evidence with the defendant. 425 U.S. 80, 88-89 (1976); see also Mudd v. United States, 798 F.2d 1509, 1510 (D.C. Cir. 1986) (holding that even an order only barring the defendant from discussing his upcoming testimony with his counsel – but not restricting any other topic of discussion – during a trial recess violates the Sixth Amendment and requires reversal without a showing of actual prejudice). Similarly, in Brooks, the Court struck down a Tennessee law that required a defendant to take the stand before any other defense witnesses, because it inhibited the
After Cronic, the Court confirmed that a trial court’s denial of the defendant’s right to confer with his attorney during trial recess “is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective.” Perry v. Leeke, 488 U.S. 272, 280 (1989). As this Court explained in Mudd, 798 F.2d at 1513, a rule that requires the defendant to establish that he was prejudiced by his inability to consult with counsel would require the defendant to show “what he and counsel discussed, what they were prevented from discussing, and how the order altered the preparation of his defense,” and “[p]resumably the government would then be free to question defendant and counsel about the discussion that did take place, to see if defendant nevertheless received adequate assistance.” Mudd, 798 F.2d at 1513. We stated then that we could not “accept a rule whereby private discussions between counsel and client could be exposed in order to let the government show that the accused’s sixth amendment rights were not violated,” chilling defendants’ ability to communicate freely with their lawyers. Id. (citing Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982)).
Proctor represented, and the government did not dispute, that while he was out of court attending to his other cases, making copies and performing other administrative tasks (and at one point even travelling to Ireland for a family funeral),
In reversing its prior decision to sever Wilson from the trial, the District Court gave no consideration to the prospect that moving forward would mean the loss of months’ worth of Wilson‘s consultations with Wicks. See id. at 16,636-39. But the
B.
The loss of Wicks‘s appraisal of witness demeanor is a separate highly prejudicial circumstance, because it impaired Wilson‘s right to present a defense, including the right to challenge the credibility of government witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967). The government conceded at oral argument that witness credibility is a critically important issue to trial success, Oral Arg. Tr. at 21:27-21:38, and that observing live testimony enhances credibility determinations beyond what is possible from merely reading a transcript, id. at 22:04-22:10. We afford trial judges the greatest deference in their role as factfinders precisely because only those who observe witness testimony firsthand “can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener‘s understanding of and belief in what is said.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (internal citations omitted); see also, e.g., Ornelas v. United States, 517 U.S. 690, 701 (1996) (Scalia, J., dissenting) (probable cause findings are reviewed deferentially because “[a]n appellate
Even more importantly, the
[T]he carriage, behavior, bearing, manner and appearance of a witness - in short, his “demeanor” - is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis
that this part of the evidence may have turned the scale. Moreover, such evidence may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.
Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (footnote omitted).
But unlike other forms of evidence, “[d]emeanor evidence is not captured by the transcript; when the witness steps down, it is gone forever.” United States v. Zeigler, 994 F.2d 845, 849 (D.C. Cir. 1993). Just as it is undoubtedly true that, “since [witness demeanor] evidence has disappeared, it will be impossible for an appellate court to say” whether the factfinder was correct in relying on it, Dyer, 201 F.2d at 269, any advocate hoping to challenge witness credibility based on demeanor will be fundamentally handicapped if he did not himself observe the witness testify. Since witness demeanor may determinе the jury‘s verdict, an attorney must observe the testimony in order to mount an effective defense.
When the District Court forced Proctor to take over Wilson‘s defense without having seen key government witness testimony, it denied him the means to prepare his client‘s defense. It is folly to expect an attorney who was not present at trial to “pick up the thread of the state‘s case, pick up on all the subtle nuances that are apparent only to those actually in the courtroom during trial, read a cold transcript . . . and go on to do an effective job on a criminal case.” Minnesota v. Parson, 457 N.W.2d 261, 263 (Minn. Ct. App. 1990) (holding that trial court erred in allowing pro se
C.
Wilson was further prejudiced because his lawyer missed the reaction of the most important people - the factfinders - to critical portions of the evidence. In Herring, a case favorably cited by both Cronic and Strickland, the Court ruled that the
Any good trial lawyer knows to watch the jury‘s reaction to testimony as it is presented, because jurors’ responses can inform strategic and tactical choices going forward. See HON. RICHARD B. KLEIN, ROBERTO ARON, TRIAL COMMUNICATION SKILLS § 46:4 (2d ed. 2014) (“During a court presentation one should observe the jury‘s response. . . . Not observing the jury‘s reaction is like walking down the street with your eyes
[W]e acknowledge that much of the evidence supporting this inference consisted of the district court‘s observations of the jury‘s general demeanor, observations that do not necessarily lend themselves to written expression. In other words, perhaps one just had to be there.
Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104, 1112 (8th Cir. 2014).
* * *
As explained above, in Cronic and Strickland the Supreme Court identified three scenarios in which prejudice is presumed to result from the denial of the
Our sister circuits, following the Supreme Court‘s lead, have adopted rules that certain other impairments of access to counsel are per se prejudicial. For instance, the Second Circuit concluded that representation by a disbarred attorney is prejudicial per se. United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990). More relevant to the case at bar, a number of our sister circuits have held even brief physical absences of defense counsel from trial presumptively prejudicial. The Sixth Circuit, for instance, overturned a conviction obtained after a trial in which counsel was absent for an afternoon of testimony that directly inculpated the defendant, reasoning that “[i]t is difficult to perceive a more critical stage of a trial than the taking of evidence on the defendant‘s guilt.” Green v. Arn, 809 F.2d 1257, 1263 (6th Cir. 1987), vacated on other grounds, 484 U.S. 806 (1987), reinstated, 839 F.2d 300 (6th Cir. 1988). The Fifth Circuit, in United States v. Russell, 205 F.3d 768 (5th Cir. 2000), reversed a conspiracy conviction even though the testimony focused on the co-defendants, rather than the defendant, during his counsel‘s day-long absence frоm court.
Neither the majority nor either party has found a case with facts analogous to this one. The best the majority can muster is United States v. Griffiths, 750 F.3d 237, 239 (2d Cir. 2014) (per curiam). But Griffiths is an apple to our orange. First, the case involved a two-week trial on a three count indictment for false statements, obstruction of justice and mail fraud; serious charges no doubt, but far from the bulk, complexity and seriousness of this case. Second, while replacement counsel was brought in to present closing arguments after the defense lawyer suffered a debilitating stroke at the close of the evidence, such counsel had the aid of the defense paralegal who had been present for the entire
The majority fears that presuming prejudice in Wilson‘s case would “sweep virtually every mid-trial substitution under Cronic‘s blanket rule,” Maj. Op. at 14, but the Court confuses analysis under Cronic with automatic reversal. Just because all mid-trial substitutions where replacement counsel missed earlier parts of trial should be analyzed under Cronic‘s rubric does not mean all substitutions violate the
My colleagues reply that determining situations in which prejudice is presumed with such a degree of specificity would “replac[e] ‘case-by-case litigation over prejudice with case-by-case litigation over prejudice per se.‘” Maj. Op. at 15 (quoting Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir. 1994)).
In addition, even on its own terms, Scarpa is unconvincing. The First Circuit reasoned that it was inappropriate to presume prejudice when the court must examine the trial record to detect whether the error occurred. Scarpa, 38 F.3d at 14 (“[O]nce it is necessary to examine the trial record in order to evaluate counsel‘s particular errors, resort to a per se presumption is no longer justified by the wish to avoid the cost of case-by-case litigation.“). Yet reviewing the trial record is precisely what must be done even in cases where the application of prejudice per se is unchallenged. See, e.g., Green, 809 F.2d at 1260-61 (analyzing large portions of trial transcript to determine that counsel was absent during government witness testimony that inculpated the defendant). And, contrary to the majority‘s exhortation not to frame the circumstances in which the Court should presume prejudice too narrowly, the Supreme Court has admonished us to define these situations with some
Presumptive prejudice as described by Strickland and Cronic is not an historical curio, kept in the reliquary cabinet to be taken out and marveled at but never employed in future cases, no matter how much they fit its pattern. Surely, if there are cases in which prejudice should be presumed, this is one. Wilson was convicted of Middleton and Bradley‘s murders solely based on the testimony of witnesses who claimed that he had confessed his involvement to them; no eyewitnesses testified and no physical evidence connected him to the crime. Replacement counsel missed all of that and more, even venturing to another continent during the trial, and prior counsel was under doctor‘s orders not to return to work. Under those circumstances, no “lawyer, even a fully competent one,” Cronic, 466 U.S. at 659-60, having missed so much of the live testimony and the consultation with the defendant about the proceedings, would be able “to participate fully and fairly in the adversary factfinding process” on the defendant‘s behalf. Herring, 422 U.S. at 858. Wilson had a right to counsel who “had been there” at all critical stages to carry forward this defense at trial, and with Wicks’ incapacitation, the proseсutors obtained a strategic advantage that resulted in an uneven playing field. Under the teachings of Strickland and Cronic, this was presumptively prejudicial.
Affording Wilson a new trial would undoubtedly have required the investment of additional judicial resources. It is
Accordingly, I dissent.