U.S. v. Gray-Burriss, 17-3031

920 F.3d 61

UNITED STATES of America, Appellee

v.Caleb GRAY-BURRISS, Appellant

No. 17-3031

United States Court of Appeals, District of Columbia Circuit.

Submitted November 13, 2018

Decided April 9, 2019

Eric H. Kirchman, appointed by the court, was on the brief for appellant.

David Rybicki, Deputy Assistant Attorney General, and Vincent J. Falvo, Jr., Attorney, U.S. Department of Justice, were on the brief for appellee. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: Garland, Chief Judge, and Griffith and Wilkins, Circuit Judges.

Garland, Chief Judge:

A jury convicted Caleb Gray-Burriss of fraud and embezzlement stemming from his management of the National Association of Special Police and Security Officers. We previously affirmed the convictions in most respects. In accordance with this circuit’s practice, however, we remanded Gray-Burriss’ ineffective-assistance-of-counsel claims because he had not previously raised them in the district court. That court conducted the remand proceedings in an exemplary fashion, leaving little for us to do other than recount its conclusions and express our agreement that Gray-Burriss’ claims lack merit.¹

I

In 1993, Caleb Gray-Burriss founded the National Association of Special Police and Security Officers (NASPSO), a union for private security officers working in federal buildings. Gray-Burriss held various high-ranking positions in the union, including executive director, secretary-treasurer, and president. By the early 2000s, Gray-Burriss’ financial management of the union began to draw legal scrutiny. In 2007, he entered into a consent decree with the Department of Labor to pay more than $100,000 in restitution for funds siphoned from NASPSO’s pension and health plans. In June 2010, a grand jury indicted Gray-Burriss for again misappropriating funds intended for the pension plan. The grand jury returned a second superseding indictment in August 2012.

The second superseding indictment alleged two schemes. In the first, Gray-Burriss deposited employer contributions to a NASPSO-sponsored pension plan into an ordinary checking account, from which he "would expend the funds of the NASPSO Pension Plan for himself, for NASPSO, and for third parties not entitled to those funds." Second Superseding Indictment ¶ 9 (J.A. 88). In the second scheme, Gray-Burriss embezzled more than $200,000 in union funds by, inter alia, directing the union’s payroll company to increase his salary and bonus payments without authorization.

For those actions, Gray-Burriss faced charges of mail fraud (counts 1-6), embezzlement (counts 7-12), and other related offenses.²

The district court set the case for trial in November 2012. Two attorneys represented Gray-Burriss at trial. Heather Shaner was appointed by the district court as Gray-Burriss’ Criminal Justice Act (CJA) attorney in early July 2010, shortly after the first grand jury indictment. Patrick Christmas was retained by Gray-Burriss as primary trial counsel in July 2012.

The defense’s principal strategy was to argue that Gray-Burriss had acted in good faith and that he was the victim of vindictive prosecution. During the trial, Shaner attempted to introduce testimony from David Levinson, a NASPSO attorney. According to her proffer, Levinson would have testified that he heard NASPSO general counsel Bruce Goodman tell a Department of Labor investigator that he had advised Gray-Burriss that it was permissible to use money from the union’s pension fund to pay for union operating expenses. The district court excluded the proposed testimony as hearsay.

On December 4, 2012, the jury convicted Gray-Burriss on eighteen of the nineteen counts of the indictment, acquitting him only of a witness-tampering charge. Material submitted to the jury included evidence and testimony that Gray-Burriss illegally wrote checks to himself from the pension fund, invested pension-fund monies in Brazilian junk bonds, and used union funds to make an initial payment of $1,399 on a Las Vegas condominium in his own name. In April 2013, the court sentenced him to serve 76 months in prison and to pay restitution and forfeiture in the amount of approximately $250,000 each, subtracting from the restitution obligation any money paid pursuant to the 2007 consent decree with the Department of Labor.

In Gray-Burriss’ first appeal to this court, we affirmed the district court’s judgment with only one exception. United States v. Gray-Burriss , 791 F.3d 50, 65 (D.C. Cir. 2015).³ Following this circuit’s usual practice, we remanded Gray-Burriss’ newly raised claims of ineffective assistance by his trial counsel for initial consideration by the district court. Id. at 64.⁴

On remand, represented by new counsel, Gray-Burriss moved for a new trial and resentencing based on his claims of ineffective assistance. Those claims principally relate to counts 1-6, involving Gray-Burriss’ conduct with respect to the pension fund. In August 2016, the district court conducted a two-day evidentiary hearing, in which it heard testimony by all of the relevant witnesses: Gray-Burriss, attorneys Shaner and Christmas, and former union general counsel Goodman. Thereafter, it denied Gray-Burriss’ motions, rejecting all of his arguments. United States v. Gray-Burriss , 251 F.Supp.3d 13 (D.D.C. 2017). Gray-Burriss now appeals, raising what amounts to three claims of ineffective assistance.

II

As we explained in our previous opinion in this case, when an ineffective-assistance claim is first raised on appeal, this circuit’s practice in most instances is to remand the claim to the district court:

Due to the fact-intensive nature of the [ineffective-assistance] inquiry and the likelihood, when a defendant asserts his sixth amendment claim for the first time on direct appeal, that the relevant facts will not be part of the trial record, ... this court’s general practice is to remand the claim for an evidentiary hearing unless the trial record alone conclusively shows that the defendant either is or is not entitled to relief.

United States v. Gray-Burriss , 791 F.3d at 60 (quoting United States v. Rashad , 331 F.3d 908, 909-10 (D.C. Cir. 2003) ). The bar to obtain a remand is relatively low: "[A]ll that is required for a remand is ‘a colorable and previously unexplored claim of ineffective assistance.’ " United States v. Murray , 897 F.3d 298, 310 (D.C. Cir. 2018) (quoting Rashad , 331 F.3d at 908 ).

In order to establish a claim of ineffective assistance on remand, however, a defendant must show (1) "that counsel’s performance was deficient," and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first, "deficiency" prong of Strickland requires a showing that the lawyer’s performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. The second, "prejudice" prong "requires the defendant to demonstrate that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ " United States v. Eli , 379 F.3d 1016, 1019 (D.C. Cir. 2004) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

On appeal after a remand, "[w]e review de novo the District Court’s denial of [the defendant’s] claim of ineffective assistance of counsel, including the question whether [he] was prejudiced by [his] counsel’s allegedly deficient performance." United States v. Nwoye , 824 F.3d 1129, 1134-35 (D.C. Cir. 2016) (citing United States v. Abney , 812 F.3d 1079, 1086-87 (D.C. Cir. 2016) ). We "review for clear error any findings of historical fact embedded in the District Court’s conclusions on deficient performance and prejudice." Id. at 1135 n.4. We address the defendant’s three allegations of ineffective assistance below.

A

Gray-Burriss’ first contention is that his trial counsel rendered ineffective assistance by failing to lay a proper foundation for an advice-of-counsel defense at trial. Gray-Burriss explains that his counsel had "contemplated advancing" the argument that he "lack[ed] criminal intent and acted in good faith in handling Union funds." Gray-Burriss Br. 12. "Part of this included the defense that [Gray-Burriss] had been acting pursuant to advice of counsel in his dealing with the Union Pension funds." Id .

According to Gray-Burriss, former union general counsel Goodman would have testified that Goodman "had given [him] legal advice that the Union could borrow pension funds." Id. at 10. Although trial counsel did not call Goodman to testify at trial, Shaner sought to introduce Goodman’s advice through David Levinson, another union attorney who heard Goodman tell a Department of Labor investigator about this alleged advice. The court excluded the proffered Levinson testimony as hearsay, not subject to an exception because there was no showing that Goodman was himself unavailable to testify. See FED. R. EVID. 804(a). Thereafter, trial counsel did not request an advice-of-counsel jury instruction.

Gray-Burriss maintains that his attorneys’ conduct represented a triple failure of effective assistance: they failed to take reasonable steps to procure Goodman as a witness, failed to lay a foundation for a hearsay exception to cover Levinson’s testimony, and failed to request an advice-of-counsel instruction. For a number of reasons, the district court correctly found that those "failures" did not constitute deficient performance by the attorneys. See 251 F.Supp.3d at 21-22.⁵

But Gray-Burriss’ bigger Strickland problem, also set out in the district court’s opinion, is the test’s "prejudice" prong. Gray-Burriss maintains that, if Goodman had testified or if his statement had come in through a hearsay exception, the court would have granted a request for an advice-of-counsel instruction. Moreover, he insists, "[h]ad the jury been given the advice of counsel instruction there is ... a reasonable probability that the result...