Trial Strategies - Win Some, Lose Some (4/3/13)

Most 28 U.S.C. § 2255, here, a form of federal habeas corpus, cases are ho-hum, desperate attempts to seize victory from the jaws of defeat.  But a recent one was interesting to illustrative that facially creative trial strategies that may not work.  By way of general background, criminal trials (as well as civil trials) involve many strategic decisions, large and small, that may affect the outcome of the case -- most of the time, positively, if well conceptualized and implemented.  Some don't work, which often means that other strategies that might have worked were not pursued into order to pursue the one that, hindsight tells, did not work.  So, I present the recent case of Cantrell v. United States, 2013 U.S. Dist. LEXIS 45107 (ND IN 2013), here.

The Court gives a short summary of the background facts to set the stage:

The substantive facts and procedural posture underlying this case are familiar to all parties, as well as the Court. Defendant, Robert J. Cantrell, was charged in an eleven count indictment. Counts One through Four alleged mail fraud and wire fraud, in violation of Title 18 U.S.C. sections 1341 and 1346. Counts Five through Seven charged Defendant with insurance fraud, in violation of Title 18 U.S.C. section 1341, by fraudulently representing that his adult children were employees of Addiction and Family Care, Inc. ("AFC") in order to procure health insurance for them under AFC's group insurance plan. Counts Eight through Eleven alleged Defendant filed false income tax returns for the years 2001 through 2004, in violation of Title 26 U.S.C. section 7206(1). 

On May 27, 2008, a jury trial commenced in this case. The Government introduced evidence for five days and, on June 5, the Government concluded its presentation of testimony and evidence. After the Government rested its case, the Defendant orally moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The Defendant raised a host of arguments as to why he was entitled to judgment as a matter of law. Among those, Defendant argued that "no one ever identified Mr. Cantrell in court as the Defendant." (Gov. Ex. 0, p. 3). The Court denied the Rule 29 motion in all respects, except as to the issue of whether the Government properly identified the Defendant. (DE# 62). This issue was taken under advisement and the trial continued. At the conclusion of trial, the jury returned guilty  verdicts on all eleven counts. Following the jury verdict, the Court denied Cantrell's motion for judgment of acquittal and motion for new trial.

On March 31, 2009, Cantrell was sentenced to a 78 month term of imprisonment on each of Counts 1-7 and 36 months on each of Counts 8-11, all to be served concurrently. Cantrell then appealed his conviction and sentence to the Seventh Circuit Court of Appeals. United States v. Cantrell, 617 F.3d 909 (7th Cir. 2010). The Seventh Circuit affirmed Cantrell's conviction and sentence. Id. Cantrell has now filed the instant section 2255 petition, challenging his convictions for honest services fraud, claiming constitutionally ineffective assistance of both his trial and appellate counsel.

In part relevant to this blog entry, Mr. Cantrell complained about the adequacy of his trial counsel with respect to the strategy in the highlighted Rule 29 motion.  In effect, he argued that his counsel was deficient in failing to introduce evidence, including Mr. Cantrell's own testimony, to pursue the strategy that the alleged failure to identify the defendant would be fatal to the prosecution.  The Court said:

Trial Counsel 

At the conclusion of the Government's case, Cantrell's trial counsel moved for a directed verdict based, in part, on his belief that the Government had failed to properly identify him as the defendant in this case. This Court took that issue under advisement and proceeded with trial. Cantrell's trial counsel did not offer any witnesses in his case in chief. Trial counsel now indicates that he decided to forego presenting witnesses because he believed the Government would elicit identification testimony via its cross-examination of defense witnesses that would defeat his motion for directed verdict. Cantrell asserts that his attorney rendered ineffective assistance of counsel by not presenting witnesses after the Government concluded its case-in-chief. 

Performance 

Cantrell argues trial counsel's performance was constitutionally deficient for misunderstanding  Rule 29(b) of the Federal Rules of Criminal Procedure, causing counsel to fail to call Cantrell and Cvitkovich as witnesses. In support of this claim, Cantrell attaches the affidavit of trial counsel, which essentially states as much, providing that trial counsel did not call witnesses in Cantrell's case in chief because he misunderstood Rule 29. (Ex. L). The Government contests the factual assertions in Cantrell's trial counsel's affidavit, but concedes that this dispute merely creates an issue of fact regarding trial counsel's performance. Usually, such an issue of fact would be resolved by the Court after conducting a hearing to determine which set of facts is true. However, because Cantrell has failed to establish that trial counsel's alleged deficient performance caused him any prejudice, as discussed below, there is no need to resolve the question of trial counsel's performance. 

Simply put, even if trial counsel failed to call any witnesses based on his misunderstanding of Rule 29, that failure did not alter the outcome of the trial.

The Trial Counsel gave an affidavit that Cantrell submitted in support of his petition.  The relevant parts of the affidavit are quoted as follows:

14. As stated, I intended to present witness testimony in Cantrell's defense. However, I did not call any defense witnesses to the stand because the Court had reserved ruling on my motion for directed verdict. I believed that the government had failed to formally identify Cantrell as the defendant at trial and that my motion would ultimately be successful. Because of this, I advised Cantrell that if I called any witnesses to testify on his behalf, the government would use that opportunity to cross-examine his witnesses as to his identity and would thus be able to establish a formal, in-court identification and defeat the success of my motion for directed verdict. 

15. Also, as stated, Cantrell was present and available to testify on his own behalf. Cantrell likewise wanted to testify on his own behalf. If called to the stand, Cantrell would have explained the circumstances surrounding the series of contracts between AFC and North Township, the legal advice he received and relied upon in this regard, the actions and statements of the various witnesses, and his understanding of what was occurring. Further, Cantrell would have provided testimony in direct rebuttal [of] the statements and accusations of various witnesses including, but not limited to the government's main witness, Nancy Fromm. 

16. However, I advised Cantrell that my motion for directed verdict would be successful because the government had failed to formally identify him as the defendant at trial. I advised Cantrell that if he took the witness stand, the government would use that opportunity to cross-examine him as to his identity and would thus be able to establish a formal, in-court identification of the defendant and thus defeat the success of my motion for directed verdict. I directed Cantrell not to testify on his own behalf. Despite his expressed desire to testify on his own behalf, Cantrell complied with my direction.

The Court then resolves the claim made as follows:

First, Cantrell argues that he was deprived of his right to testify based on his attorney's deficient advice. (Ex. L, ¶¶ 14-16). Cantrell argues that "[t]his alone justifies a claim of ineffective assistance of counsel." (DE# 168, p. 13). However, that is not the law in this Circuit. The Seventh Circuit has concluded that "a defendant who forfeits his constitutional right to testify because of counsel's deficient performance is not automatically prejudiced." Alexander v. United States, 219 Fed. Appx. 520, 523 (7th Cir. 2007)(citing Barrow v. Uchtman, 398 F.3d 597, 608 n.2 (7th Cir. 2005). So, even if Cantrell can show that his trial counsel deprived him of his right to testify, Cantrell must still show "that there is a reasonable probability that his failure to testify affected the outcome of the trial." Id.(citations omitted). 

Trial counsel's affidavit regarding what Cantrell's testimony would have been at trial speaks only in generalizations. The affidavit points out that, if called to testify, Cantrell would have "explained the circumstances surrounding the series of contracts between AFC and North Township, the legal advice he received and relied upon in this regard, the actions and statements of the various witnesses, and his understanding of what was occurring" and "provided testimony of direct rebuttal" of "various witnesses." (Ex. L, ¶ 15). This generalized proffer as to what Cantrell would have testified to in opposition to the Government's case is insufficient to establish prejudice under Strickland. United States v. Herrera-Rivera, 25 F.3d 491, 497 (7th Cir. 1994)(noting that "vague and general allegations are insufficient to satisfy . . . the Strickland test). Indeed, it does not specify what Cantrell would have said or explained how his testimony would have changed the outcome of the trial. These generalized statements fail to establish a reasonable probability that Cantrell's failure to testify affected the outcome of the trial and, as such, are fatal to his claim. United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987)("[t]he district court simply cannot fulfill its obligation under Strickland to assess prejudice until the petition has met his burden of supplying sufficiently precise information."). 

[Cantrell made the argument that, following the same strategy, his trial counsel failed to call another witness, on Cvitkovich.  The Court analyzes that claim and finds it also deficient; I do not include the analysis here, since the claim of the defective strategy is presented in the foregoing discussion.]

In sum, Cantrell has failed to establish that his trial counsel's failure to call either Cantrell or Cvitkovich as witnesses caused him any prejudice.

Cantrell also claims his appellate counsel was deficient as well.  That is interesting, but not, to me at least, as interesting as the claim that his trial counsel was deficient.