Hoffler v. Bezio, 726 F.3d 144 (2d Cir. Aug. 8, 2013)
by Matthew Keller
There are many newer issues on my list to discuss here, but I wanted to go back to a Second Circuit decision from last summer. Hoffler is interesting for many reasons: it addresses sexy Double Jeopardy issues likely to come before the Supreme Court at some point, and it also discusses a couple of important habeas jurisdictional and procedural claims of equal (more?) interest to the (no offense, dear Readers) geeks who peruse this site.
The case concerns the December 2003 murder of Christopher Drabik. Michael Hoffler, a cocaine dealer from upstate New York, was charged with first-degree witness elimination murder on the theory that he contracted to have Drabik killed, and participated in the murder himself, in order to prevent Drabik from testifying against him at a trial on drug charges.*
* While I do not expect many potential witness murders to read this post, take note: it doesn't work. Even without Drabik as a witness, a jury found Hoffler guilty on the drug charges and the court sentenced him to a 17 to 34 year term.
A jury convicted Hoffler of Drabik’s murder, but the NY appellate court reversed because of what can only described as a rookie mistake. When the jury venire was sworn prior to voir dire, it was given the oath required of an empaneled petit jury, not the prospective juror oath.The appellate court found that, because this "structural" error infected the entire trial proceeding, there could be no harmless error. The court remanded for a new trial.
Determined to get some more mileage out of the mistake, Hoffler’s attorney argued on remand that a retrial was barred by Double Jeopardy. The thrust of the claim was that, having presented insufficient evidence of witness elimination murder at the first trial, Double Jeopardy precluded New York from a second bite at the apple. The appellate court did not reach Hoffler’s insufficiency claim. On remand, Hoffler claimed that the court’s failure to address the sufficiency issue precluded a second trial.*
*This claim is based on a 1978 Supreme Court decision, Burks v. United States (Double Jeopardy bars retrial where conviction reversed due to insufficiency).
The trial court rejected Hoffler’s claim but, before sitting through the retrial, allowed Hoffler to return to the appellate court. It, too, rejected the Burks claim, concluding that, in fact, Hoffler hadn’t been placed in jeopardy at his first trial because the failure to properly swear the jury venire rendered all subsequent proceedings a nullity. Hoffler collaterally attacked that decision in his habeas petition to the district court.
The district court denied Hoffler’s petition by upholding the state court decision: the jury oath error invalidated the entire trial, making it “patent” that Hoffler was never placed in jeopardy at his original trial. And the sufficiency of the evidence issue was not a problem, because the state appellate court had a “sound reason” for not considering the sufficiency challenge:
“Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler’s [first] trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature,” and it is “well-settled that the giving of [advisory] opinions is not the exercise of the judicial function of New York appellate courts.”
Second Circuit to the District Court: "Um, no."
The Second Circuit found the district court’s reasoning neither patent nor sound. It affirmed the district court, but on completely different grounds. First, it found that Hoffler had in fact been placed in jeopardy at the first trial. Even though the venire panel was not sworn in accordance with New York law, that error rendered the conviction merely “voidable” at the defendant’s election, not “void.”* Thus the court that heard the first trial retained “fundamental power or basic jurisdiction” over the murder charge.
* The Circuit dove deep to explain this conclusion, engaging in a lengthy discussion going all the way back to Blackstone and the common law preference for void rather than voidable judgments to promote “the law’s longstanding opposition to retrying an acquitted defendant.” I'm almost certainly nitpicking, but query whether that preference is relevant to the retrial of a convicted defendant. To be clear, I think the Circuit found the least contorted way out of the legal pickle presented here. But resort to Blackstone for the answer to this question? To go back even further, the Circuit doth protest too much.
Harmless Error Resurrected
Having come out in favor of Hoffler on the Double Jeopardy issue, the Second Circuit now had to deal with the sufficiency claim. Hoffler appeared to be on solid ground here: although jeopardy does not terminate when a conviction is reversed for trial error, it does terminate upon a reversal due to insufficient evidence at trial. This is the Burks rule: the Double Jeopardy Clause protects a defendant from being subjected to a second opportunity by the government “to supply evidence which it failed to muster in the first proceeding.” And in a 1992 case, United States v. Wallach, the Second Circuit interpreted Burks broadly to require a determination of sufficiency prior to retrial:
“A reversal on the basis of insufficiency of evidence, like an acquittal, bars a retrial, and a reversal of a conviction on grounds other than sufficiency does not avoid the need to determine the sufficiency of the evidence before a retrial may occur.”
You might think that this seals the deal in favor of Hoffler: we have a “reversal of a conviction on grounds other than sufficiency,” (here the jury oath error) and a state appellate court that “avoid[ed] the need to determine the sufficiency of the evidence before a retrial may occur.” Hoffler’s free to go then, right?
Of course not. The Second Circuit was not going to give a pass to Hoffler, a convicted witness murderer, for any reason, and certainly not because the Rensselaer County Court stopped listening for a few seconds on a Monday morning while his clerk swore in a jury venire prior to voir dire. Accordingly, the Court found a way out of Wallach:
“Nowhere in [Wallach], however, did we indicate whether we were identifying a prudential rule for the courts of this circuit or a generally applicable constitutional requirement.”
Indeed, the Circuits are split on this issue. According to the Second Circuit’s count, the Third, Eighth, and Tenth Circuits have found it to be a constitutional requirement, while the First, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits have adopted, as a prudential rule, mandatory appellate review of sufficiency challenges prior to retrial. The Second Circuit declined to answer the question.* Instead, the Circuit held that, even if sufficiency review prior to retrial was a constitutional requirement, the failure to review Hoffler’s sufficiency claim was “necessarily” harmless because Hoffler’s claim was meritless.**
* Why not weigh in on the issue here? My guess is that at least one panel member believed that would have involved overruling Wallach, something the Second Circuit can only do en banc.
** At this point you have to ask: why didn't the NY Appellate Division reject Hoffler's sufficiency claim in the first instance? It's as close to a zero-risk ruling as you can get. The standard is so high for a defendant that there is almost no chance of reversal. And while answering only the minimum to dispose of a case is a great rule, all of this Burks precedent suggesting that this is an exception to that rule has been out there for a long time. The closest the Circuit came to criticizing the Appellate Division is that sufficiency review was warranted, “at a minimum, as a matter of prudent policy.” I can only conclude that the state court did not think through the ramifications of its omission.
The Circuit did what the state appellate court should have done. Of course the trial evidence against Hoffler was sufficient: Hoffler had a “strong motive” and ample means to murder Drabik. After a thorough review of the evidence, the Circuit held that “the totality of these circumstances” allowed a reasonable jury to infer that Hoffler solicited Drabek’s murder, and then aided in its commission, in order to silence Drabik prior to Hoffler’s drug trial.
I cannot finish this post without noting the procedural rulings, which also involve some clever strategic thinking on the part of New York here. Hoffler initially raised his habeas claims in a § 2241 petition. A little brother to the usual § 2254 petition, § 2241s are appropriate in limited circumstances and, as the district court noted:
“whether a petition for a pretrial writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit.”
Importantly, the district court concluded that § 2241 was the appropriate vehicle for Hoffler’s petition and, as a result, the state court decision did not get AEDPA deference. Yet New York did not appeal that issue to the Circuit.
It turned out that was the smart thing to do, because the state appellate court decision was not great for New York, either. That court reversed Hoffler’s conviction and held that the trial error was “not subject to harmless error” – a phrase that must send shivers down a prosecutor’s spine. By not challenging the form of the petition or, more to the point, the standard of review*, New York made it easier for the Second Circuit to undo the state court’s pro-defendant Double Jeopardy ruling. It will be interesting to see how the New York courts deal with the Second Circuit’s decision.
* The district court, following holdings in the First, a Fifth, Ninth and Tenth Circuits, ruled that there is no AEDPA deference in § 2241 proceedings. But the Circuit reminded everyone that that question is “unsettled in this circuit.”