United States v. Gray-Burriss, Case No. 10-cr-00178 (CRC).

251 F.Supp.3d 13

UNITED STATES of America

v.Caleb GRAY-BURRISS, Defendant.

Case No. 10-cr-00178 (CRC).

United States District Court, District of Columbia.

Signed April 24, 2017

Tracee Joy Plowell, Vincent J. Falvo, Jr., U.S. Department of Justice, Washington, DC, for United States of America.

Steven Roy Kiersh, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

After a four-week jury trial, Defendant Caleb Gray-Burriss was convicted of embezzling over two hundred thousand dollars from the National Association of Special Police and Security Officers ("NASPSO"), a union of private security guards that he was entrusted with managing. He appealed his conviction to the D.C. Circuit, arguing that his two trial counsel were ineffective for a variety of reasons, including their failure to present crucial witness testimony and general lack of preparedness. He also challenged the trial court's exclusion of a 2009 employment contract that he alleges formed the basis of a viable affirmative defense. The D.C. Circuit remanded the ineffective-assistance-of-counsel claims to this Court for further factual development, and additionally, requested that the Court assess whether consideration of the 2009 employment contract by the trial court would have changed Gray-Burriss's original sentence. Gray-Burriss has since moved for a new trial and for resentencing relying on those same grounds. The Court held an evidentiary hearing on the motion on August 1 and 2, 2016, and accepted subsequent supplemental briefing. Having closely reviewed the evidence presented both at the hearing and through briefing, it will deny the motion for the reasons discussed below.

I. Factual and Procedural Background

Defendant Caleb Gray-Burriss founded the National Association of Special Police and Security Officers ("NASPSO") in the 1990s and served the labor union in various high-ranking positions. The government's 19-count Second Superseding Indictment, filed in August 2012, charged Gray-Burriss with "two distinct schemes to steal from the union and its members." United States v. Gray-Burriss, 791 F.3d 50, 53 (D.C. Cir. 2015). The first concerned his alleged misuse of funds held in trust in a NASPSO-sponsored pension account. He was accused of depositing employers' trust contributions into an ordinary checking account and "writing checks on the account to himself, to cash, and to cover the union's operating expenses." Id. The second principal series of counts depicted a lengthy pattern of embezzlement from the union's funds. The remaining counts charged Gray-Burriss with criminal contempt for violating a 2007 consent decree with the union in a related civil case, destruction of subpoenaed documents, witness tampering, and union recordkeeping violations. Id. On December 4, 2012, the jury convicted Gray-Burriss on 18 of the 19 counts.¹ Dec. 4, 2012 Verdict Form, ECF No. 174. And in April 2013, the Court, through former Chief Judge Roberts, sentenced him to 76 months' imprisonment and ordered him to pay roughly $252,000 in restitution. Apr. 29, 2013 Judgment in a Criminal Case, ECF No. 235.

On appeal to the D.C. Circuit, Gray-Burriss challenged the trial court's exclusion—due to trial counsel's delay in producing the document—of an employment contract that purported to authorize an increase to Gray-Burriss's salary, effective July 1, 2009. See Gray-Burriss, 791 F.3d at 58 (explaining that the employment contract was alleged to have increased his salary to $75,000). The D.C. Circuit acknowledged that a factual dispute remained as to whether the contract's four signatories were authorized to raise Gray-Burriss's salary, and it held that the trial court's exclusion of this document was "too severe a sanction" for Gray-Burriss's discovery violations. Id. at 56. It found the exclusion harmless as to his conviction on Count 8—which charged Gray-Burriss with accepting unauthorized salary payments from December 2007 to March 2011—but concluded that the district court "might well have arrived at a lower loss finding and significantly reduced the defendant's restitution and forfeiture obligations" if the 2009 document had been found to validly authorize a salary increase. Id. at 58–59. The Circuit also suggested that a "lower loss finding [c]ould affect the defendant's term of incarceration," but that it was unlikely given that the applicable Sentencing Guidelines range would not change. Id. at 59 n.3. It accordingly remanded the case to this Court to determine whether the document's erroneous exclusion would lower Gray-Burriss's restitution obligation and the term of his incarceration. See id. at 65.

Within his appeal, Gray-Burriss also raised several ineffective-assistance claims. Because the record was not clear on whether he was entitled to a new trial under the two-step test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the D.C. Circuit remanded those claims for the district court's consideration. See Gray-Burriss, 791 F.3d at 64. Gray-Burriss has since filed a motion for a new trial based on ineffective assistance of counsel, or in the alternative, for resentencing because the trial court failed to consider the 2009 employment contract. See Def.'s Mot. for New Trial and for Resentencing ("MNT").

Gray-Burriss's new attorney argues that his previous trial counsel—veteran attorneys Heather Shaner and Patrick Christmas—were constitutionally ineffective in various ways when preparing his defense. Ms. Shaner was initially appointed to represent Gray-Burriss under the Criminal Justice Act ("CJA") after his first indictment in 2010. Throughout 2010 and 2011, she filed a number of motions on his behalf and successfully obtained several continuances in order to negotiate a possible disposition prior to trial. Another CJA attorney, Edward Sussman, entered his appearance in April 2012 to help Shaner prepare for trial. Later that month, the Court set a trial date of November 2, 2012 and ordered the parties to jointly submit by October 24, 2012 suggested voir dire questions and jury instructions and a proposed verdict form. See Apr. 19, 2012, Pretrial Order, at 2, ECF No. 98. On June 20, the parties represented to the Court that they "s[aw] no impediment to proceeding as scheduled on November 2, 2012." June 20, 2012 Joint Status Rep., at 1, ECF No. 116.

A few months shy of the upcoming trial, Gray-Burriss sought new counsel. He retained Mr. Christmas, who entered his appearance in the case on July 27, 2012. Both Shaner and Christmas understood that Christmas had been hired to assume the role of "lead counsel." Evid. Hr'g Tr. 308:3–8. On August 10, shortly after the Court denied Christmas's motion to continue the trial because of scheduling conflicts, Ms. Shaner "delivered two sets of all case files and relevant information" to Christmas. Heather Shaner's Response to Order to Show Cause, at 2, ECF No. 156. The government filed a second (and final) superseding indictment containing 19 counts a few days later, the same day that the Court permitted Attorney Sussman to withdraw. See ECF Nos. 132–133. The Court refused to let Shaner withdraw, however, due to her familiarity with the case and her extensive advocacy on behalf of Gray-Burriss. Christmas again moved to continue the trial two weeks before its scheduled commencement; he warned that "a serious injustice will occur if the Defendant is ‘forced’ to trial on November 2, 2012." ECF No. 141, at 2. The Court rejected this latest effort to delay a trial already beset by lengthy continuances. It emphasized that the parties had recently foreseen "no impediments to trial-readiness" and that Gray-Burriss was still "represented by able, experienced CJA counsel [i.e. Ms. Shaner] who has been on the case throughout." Oct. 19, 2012 Mem. Order, at 4, ECF No. 146.

Around that time, the Court also granted the government's motion to preclude the defense from introducing expert testimony, following the defense's noncompliance with discovery requests and failure to respond to the government's motion. See Oct. 17, 2012 Mem. Order, ECF No. 142. This setback followed the Court's earlier refusal to appoint an expert forensic accountant for Gray-Burriss at public expense without a greater showing of Gray-Burriss's financial need. Defense counsel also failed to communicate with the government in advance of the October 24 pretrial-submissions deadline, causing the government to move to file its own versions as joint submissions. The Court found "both defense counsel's nonfeasance inexcusable" and ordered that they each show cause why they should not be sanctioned and referred for further discipline. Oct. 25, 2012 Ord. to Show Cause, at 2–3, ECF No. 152.

Shaner pointed to Christmas, explaining that he seldom communicated with her and cut her out of all "strategic legal decisions[,]" Att'y Shaner's Resp. to Ord. to Show Cause, at 3, ECF No. 156, and that she hesitated to confer with government counsel "without permission of the defendant's retained lead counsel of choice." Id. at 4. Christmas confirmed that the fault "l[ay] entirely with [him]" because Shaner had "made herself available at all times," but that he was "literally overwhelmed" with other responsibilities in the weeks leading up to the trial. Att'y Christmas's Resp. to Ord. to Show Cause, at 1, 4, ECF No. 157. Before jury selection in Gray-Burriss's trial commenced, Shaner requested an immediate hearing on the outstanding show-cause order, "assert [ing] that the existence of the unresolved show cause order threatened her professional license and ability to earn a livelihood, and would distract her from being able to provide zealous and effective representation to her client in the trial." Nov. 5, 2012 Minute Ord. The Court denied her request, choosing to resolve the matter after the trial concluded. See id. In making this decision, the Court stated it "was fully confident that [Ms. Shaner] would...