by Matthew Keller
It is a fundamental tenet of criminal defense that your client’s unrelated bad acts cannot be used against him. To do so would unfairly tempt a jury to find guilt not on the charges, but on the “bad man” theory that, if someone did wrong in the past, it’s more likely that they did wrong in the case at hand.
Do lawyers deserve the same treatment? According to the Second Circuit, apparently not. Last week, in Gonzalez v. United States, 10-3630-pr (2d Cir. July 10, 2013), the Court remanded Pedro Gonzalez’s case for resentencing for the second time. The only difference between the first and second remands: in the interim, the attorney was convicted of murdering his wife.
The $35,000 No-Frills Retainer
Pedro Gonzalez owned a small contracting company in upstate New York. However, it appeared he had become involved in a drug trafficking operation that used drugs and cash to bribe a corrupt immigration official in exchange for green cards for illegal immigrants. In 2001, he pled guilty to eight narcotics and bribery charges for his part in the scheme. At his plea hearing, Gonzales admitted that he had made several deliveries of cocaine or heroin and that he had “produced over two kilograms of heroin throughout the course of this conspiracy.” Consequently, a judge ordered him imprisoned for seventeen and a half years.
At his sentencing, Gonzales asked for his plea back. He told the court that his attorney, Carlos Perez Olivo, had not sufficiently explained to him the charges or the plea process. Gonzales claimed that Olivo, after accepting a $35,000 retainer, told Gonzales to sign the Plea Agreement without allowing Olivo to read it or even explaining to him what it was. Olivo then told Gonzales to “‘agree with everything that was being said’ at the plea hearing in order ‘not to upset the judge’ or risk losing benefits the government had promised.” In addition, Olivo did not submit a sentencing memorandum and did not meet with Gonzales prior to sentencing. During the sentencing Olivo spoke only two sentences in favor of a sentence at the low end of the Guidelines range.
In a follow-up letter to the Court, Gonzales also offered what sounded like a defense to the charges or, at least, a reasonable mitigation argument. He explained that he became involved with the conspiracy after one of his employees introduced him to “a friend” who offered Gonzales legal services in order to obtain green cards for his undocumented workers. The friend assured Gonzalez that it was all legal.
Not quite. Gonzalez went to a meeting at an Albany restaurant, he said, for the purpose of learning more about what the immigration lawyer could offer. Instead he met a group of people who thereafter “threatened and used” him in order to compel his participation in their narcotics activities. Gonzales said that a Government informant “called me and told me if I did not get the drugs for him, they were going to kill me.” This is a compelling narrative: the bad guys, through threats and coercion, strong-arm a hardworking small businessman into doing their dirty work. If Gonzales could support his version of events, he had a strong defense of duress.*
*The Sentencing Guidelines also recognize a coercion basis for a downward departure where “the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense.” See USSG § 5K2.12.)
First Habeas Motion
Soon after he was sentenced, Gonzales filed an initial §
2255 motion claiming ineffective assistance of counsel based on Olivo’s failure
to appeal the court’s denial of the motion to withdraw the guilty
plea. The district court denied the motion on
grounds that Gonzalez’s plea agreement contained a valid appeal waiver. Gonzalez then sought, and the Second Circuit
granted, a COA on the issue of whether Gonzalez had asked Olivo to file an
appeal – the Circuit remanded for factfinding on that issue. On remand, the government submitted an affidavit from
Olivo, “stating at length that he had not been paid and, far more briefly, that
Gonzalez had told Olivo that Gonzalez did not wish to appeal.” Apparently, Olivo believed that no respectable lawyer could be expected to pursue a defense for just $35,000.
In February 2006, over four years after he was sentenced and his motion to withdraw his plea was denied, the district court credited Olivo’s affidavit and again denied Gonzalez's § 2255 motion. Gonzalez again sought a COA, and the Second Circuit again granted it to review “whether the district court properly decided the factual question – i.e., whether Gonzalez asked Olivo to file a notice of appeal – solely on the basis of affidavits.”
While that appeal was pending, things started to fall apart for attorney Olivo. In August 2006, he was disbarred in New York State for, among other things, defaulting on a former client’s appeal and, to avoid the consequences of that default, misrepresenting to the client that the appeal was meritless. (It also turned out that Olivo previously had forfeited a license to practice law in Puerto Rico due to similar charges of malfeasance). Three months later, Olivo was shot and his wife was tragically murdered. Olivo told police that the two of them were driving to their home in Chappaqua from New York City when another car ran them off the road and shot at them. His wife was struck in the back of the head; authorities described Olivo’s wounds as “minor.”
Maybe it was the disparity in the alleged assassin's accuracy that caused authorities to focus their investigation on Olivo. Whatever the reason, he didn’t help his case by holding a creepy yard sale in which he sold his dead wife’s boots, pajamas and other personal items. He was charged, and later convicted, of the murder.
While Olivo’s murder case was proceeding, in February 2007 the district court granted Gonzalez’s § 2255 motion and vacated his sentence. However, the court resentenced him to the same terms as the initial sentence. Gonzalez again appealed, asking (again) for his plea back and, barring that, for a new sentence based on Olivo’s ineffective assistance. The Second Circuit affirmed in November 2008, but granted leave for Gonzalez to file a second § 2255 motion “[i]n view of the existence of facts, not previously available, that might relate to the performance of counsel (including those that might bear on counsel’s effectiveness at the time of Gonzalez's guilty plea).”
The Second § 2255 Motion
In his second habeas motion, Gonzalez “drew the court's attention to the new fact that in 2008, Perez-Olivo was convicted of murdering his own wife and was currently serving a prison term of 25 years to life.” Despite that new information, and despite a 63-paragraph sworn affirmation “describing in detail the events leading to his arrest, beginning with his being contacted by one of the government's confidential informants,” the district court denied the motion. The district court implicitly conceded that Olivo had been Strickland deficient with respect to both the plea and sentencing but, it held, there was no prejudice: the court concluded that Gonzalez “fail[ed] to show that the deficient representation he received from trial counsel adversely affected the length of his sentence.”
Last week, the Second Circuit reversed. With respect to Gonzalez’s plea, the Court arguably created* a new rule in its Strickland jurisprudence: “the fact that an attempt was made to withdraw the guilty plea and go to trial may not be dispositive on the issue of IAC prejudice; however, it is a factor that must be considered by the court in assessing whether there is a reasonable probability that but for substandard performance by counsel, the defendant would have chosen to eschew the plea and go to trial.” With characteristic pithiness, the Circuit reasoned that in determining “whether there was a reasonable probability that, absent [counsel’s] allegedly substandard performance, Gonzalez would have gone to trial, the district court did not mention the plainly relevant fact . . . that Gonzalez had actually attempted to . . . go to trial.”
* I say that this is “arguably” a new rule because it is just as arguably dicta. The court held that the record was devoid of evidence of deficient conduct. In essence, the Court said that, despite having twelve years to develop his duress claims, Gonzalez had not presented any proof that “Olivo failed to investigate any aspects of the case that could have led to a successful defense by Gonzalez if the charges against him were tried.”
Gonzales fared better, however, with his ineffectiveness claims regarding sentencing. The Circuit reversed the district court’s finding of no Strickland prejudice:
“[t]he hypothetical sentencing arguments proffered by Gonzalez's new counsel, along with the district court's reference to some of them as potentially ‘effective’ arguments, suffice to undermine our confidence in the outcome of Gonzalez's original sentencing and thus to show that the reasonable-probability standard with respect to the sentencing claim was met.”
What role, ultimately, did Olivo’s murder conviction play in the Second Circuit’s decision? Your answer to that question probably says something about whether you are at heart a legal realist or a formalist. But ask yourself: if there was no evidence to support a duress defense, what can Gonzalez possibly have used to justify a departure on that basis? The Guidelines provision provides for a downward departure where the evidence does not support a "complete" duress defense, but Gonzalez still needed some hard evidence to support his claim that the other conspirators threatened him. If you accept the Court's conclusion that Gonzalez again failed to come forward with such evidence, the only difference between this remand and the previous one is Olivo's murder conviction.
Logically, Olivo’s murder conviction - and his deficient performance in other cases - do not prove that he was ineffective in Gonzalez’s case. But the Second Circuit’s two remands of this case for a second and third look suggest that the Court is (wisely, I think) not prepared to trust Gonzalez’s fate to a disbarred murderer.