Monday, November 03, 2014

Petitioner obtains remand for an evidentiary hearing

U.S. v. Adams, 2014 WL 5394293 (10/24/14) (Ut.) (unpub'd) - The 10th remands for an evidentiary hearing on a number of ineffective assistance of counsel claims. Mr. Adams alleged his trial attorney, Mr. Leavitt, interviewed his girlfriend-co-defendant in prison. She indicated she and Mr. Adams were common-law spouses. Mr. Leavitt prepared an affidavit to establish a spousal privilege to keep her from testifying against Mr. Adams. Unfortunately, the girlfriend had previously entered into a plea agreement that required her to testify for the government. When the government informed her attorney, Mr. Jaenish, about Mr. Leavitt's scheme, Mr. Janeish was displeased. He threatened to file a bar complaint against Mr. Leavitt for talking to a defendant who had counsel. The girlfriend testified against Mr. Adams at trial. Mr. Leavitt conducted a less-than-scintillating cross. When Mr. Adams complained about this, Mr. Leavitt promised to recall her to get out information that was favorable to Mr. Adams and impeaching of the girlfriend. That didn't happen after a shouting match between Mr. Leavitt and Mr. Jaenish in which Mr.Jaenish once again threatened a bar complaint When Mr. Adams asked why his girlfriend was not recalled, Mr. Leavitt explained that the prosecution would revoke her plea bargain and she would serve 40 years in prison. This scenario evidenced Mr. Leavitt was laboring under conflicts of interest because of his interest in avoiding a bar complaint and his apparent concern for the girlfriend's welfare. The 10th found that, if his allegations were true, Mr. Adams was entitled to relief. An evidentiary hearing was necessary to determine whether the instances of ineffective representation were the result of a conflict or Mr. Leavitt's strategic choices.

The 10th also found an evidentiary hearing was necessary to consider Mr. Adams' allegation that Mr. Leavitt lied when he told him the government had not filed an § 851 notice, which would have increased his mandatory minimum from 10 to 20 years. Mr. Adams said he would have taken the plea offer if he had known the truth. An evidentiary hearing would resolve whether Mr. Leavitt lied or instead the § 851 had not yet been filed at the time of the relevant conversation, whether the government's plea offer was made and how long it was good for, how willing was Mr. Adams to accept the plea offer, whether the government would have withdrawn the plea offer and whether the court would have accepted it.

On appeal the government changed course from its position in district court and contended an evidentiary hearing was necessary for the above two claims. The 10th rejected Mr Adams' contention that the government had waived its evidentiary hearing argument on appeal. He should be entitled to relief without such a hearing, Mr. Adams argued. The 10th reasoned that the government was not trying to better its position on appeal by making its argument. It was actually adopting a position more favorable to Mr. Adams than it had before. So no waiver.

With little discussion, the 10th also finds Mr. Adams' other two claims, if proved, would entitle him to relief, leaving to the district court the decision whether to hold an evidentiary hearing on those ineffective-assistance claims regarding: (1) appellate counsel's failure to adequately argue his life sentence was substantively unreasonable; and (2) trial counsel's failure to object to instances of prosecutorial misconduct.

Most impressively, Mr. Adams' appellate counsel sought a more-than-four-fold expansion of the word limit to 60,000 words. The 10th rules counsel could have fit in all of Mr. Adams' additional nine claims with a little more abbreviation or consolidation.