Habeas Petitioner's Counsel Was Not Ineffective For Rejecting Instructiions, Conceding Conspiracy
United States v. Gonzalez, ___ F.3d ___ , 2010 WL 702297 (10th Cir. 2010).
After a direct appeal of his drug conspiracy conviction, defendant filed an unsuccessful post-conviction petition claiming errors and ineffectiveness by trial counsel.
(1) Counsel rejected instruction on withdrawal from conspiracy even though trial strategy was to show withdrawal. The Court of Appeals agrees with district court that Defendant cannot show prejudice–the evidence at trial was insufficient for a jury to reasonably find that he withdrew from the conspiracy. While not endorsing a strategy of aiming for jury nullification, the Court attributes counsel’s rejection of the instruction to his realization that he could not meet the hurdle of sufficient evidence to satisfy the elements of the defense (it looked like the district court was going to give the instruction, and the government agreed to it, before defense counsel declined it), while still presenting the jury with some evidence of and claim of withdrawal, at least to some counts. Evidence the Defendant was guilty of conspiracy was overwhelming.
(2) Counsel’s concession that Defendant was guilty of conspiracy was not a “breakdown of the adversarial process” that would lead to a presumption of prejudice under Cronic. The Court seems to set up a requirement that there is a “complete” admission of guilt by counsel before counsel moves into the forbidden zone. The compounding of the harm done by the concession in the context of complexities inherent in multiple charges involving a large and long-standing conspiracy–Defendant argued that concession on the main conspiracy charges amounted to concession on everything–did not move the Court. The fact that counsel vigorously cross-examined witnesses, for example, and tried to show that Defendant left the conspiracy post-2003 (and therefore was not guilty of post-2003 substantive counts) showed that he was still the Defendant’s champion.
(3) Counsel’s concession did not relieve the government of its burden of proof and was not a due process violation. This claim is disposed of like the Cronic claim: There was no concession of guilt on post-2003 counts, so there was not a complete concession of guilt.
The district court correctly rejected a certificate of appealability on 4 other claims: counsel’s failure to present certain evidence; Defendant’s not being present for in-chamber conference on jury instructions; cumulative error; and failure to hold an evidentiary hearing.
After a direct appeal of his drug conspiracy conviction, defendant filed an unsuccessful post-conviction petition claiming errors and ineffectiveness by trial counsel.
(1) Counsel rejected instruction on withdrawal from conspiracy even though trial strategy was to show withdrawal. The Court of Appeals agrees with district court that Defendant cannot show prejudice–the evidence at trial was insufficient for a jury to reasonably find that he withdrew from the conspiracy. While not endorsing a strategy of aiming for jury nullification, the Court attributes counsel’s rejection of the instruction to his realization that he could not meet the hurdle of sufficient evidence to satisfy the elements of the defense (it looked like the district court was going to give the instruction, and the government agreed to it, before defense counsel declined it), while still presenting the jury with some evidence of and claim of withdrawal, at least to some counts. Evidence the Defendant was guilty of conspiracy was overwhelming.
(2) Counsel’s concession that Defendant was guilty of conspiracy was not a “breakdown of the adversarial process” that would lead to a presumption of prejudice under Cronic. The Court seems to set up a requirement that there is a “complete” admission of guilt by counsel before counsel moves into the forbidden zone. The compounding of the harm done by the concession in the context of complexities inherent in multiple charges involving a large and long-standing conspiracy–Defendant argued that concession on the main conspiracy charges amounted to concession on everything–did not move the Court. The fact that counsel vigorously cross-examined witnesses, for example, and tried to show that Defendant left the conspiracy post-2003 (and therefore was not guilty of post-2003 substantive counts) showed that he was still the Defendant’s champion.
(3) Counsel’s concession did not relieve the government of its burden of proof and was not a due process violation. This claim is disposed of like the Cronic claim: There was no concession of guilt on post-2003 counts, so there was not a complete concession of guilt.
The district court correctly rejected a certificate of appealability on 4 other claims: counsel’s failure to present certain evidence; Defendant’s not being present for in-chamber conference on jury instructions; cumulative error; and failure to hold an evidentiary hearing.
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