More on the Strategic Decision to Not Testify as to Good Faith (12/10/11)

In United States v. Stierhoff, 2011 U.S. Dist. LEXIS 138418 (D RI 2011), decided 11/30/11, the defendant was a stalker who also had failed to report and pay tax.  He was convicted by the state of Rhode Island for stalking.  The feds then slammed him with indictment for income tax evasion of approaching $460,000.  He was convicted.  He appealed.  He lost. United States v. Stierhoff, 549 F.3d 19 (1st Cir. 2008).  Stierhoff took another grasp with a motion "a motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255."  He lost again.  United States v. Stierhoff, 2011 U.S. Dist. LEXIS 138418 (D RI 2011).

What was his most recent gripe?  He claimed his right to effective representation was denied.  That is usually done in a 2255 proceeding, so nothing unusual here.  As the court noted, "Success on a claimed violation of the right to effective representation of counsel requires a showing of both "deficient performance by counsel and resulting prejudice." [Citations and quotes omitted]  He urged a number of failures by his trial counsel, but the only failure the court could find was his failure to meet the requirements for success.

He raised several points which I find generally unexceptional, but one of his arguments does address a theme I have discussed before -- the interplay between a Cheek good faith defense and the need for a defendant to testify in order to successfully assert the defense.  See my prior blog Making a Cheek Good Faith Defense without Testifying (11/24/11), here.

Stierhoff complained that his attorney was

that trial counsel was ineffective because he advised Stierhoff not to testify and thus failed to have Stierhoff testify about whether he believed he had a legal duty to pay taxes. Likewise, Stierhoff claims that appellate counsel was ineffective for failing to raise the issue. Stierhoff argues that this testimony would have been particularly important to disprove willful intent. Stierhoff contends that trial counsel did not explain to him that the "only way . . . to... counter the substantial amount of circumstantial evidence" would be for him to testify about his good faith belief that he was not violating tax law.

So, here is the Court's excellent discussion of that claim.  I omit most case citations and quotation marks and the footnote for easier readability:

Unaccompanied by coercion, legal advice concerning exercise of the right to testify infringes no right but simply discharges defense counsel's ethical responsibility to the accused.  In determining whether a defendant was coerced, courts are guided by (1) whether the defendant knew about his constitutional right to testify, (2) the competence and soundness of defense counsel's tactical advice, and (3) any intimidation or threatened retaliation by counsel relating to the defendant's testimonial decision. It is abundantly clear that Stierhoff was not coerced into not testifying. 

Although Stierhoff contends that he was not advised that he had a fundamental right to testify, he concedes that he was advised not to testify.  The Court is very familiar with Mr. Stierhoff. He is a well-educated and highly intelligent individual. This Court has, however, found Stierhoff's testimony at the suppression hearing on the motion to suppress to be not credible. In light of Stierhoff's acuity and the fact that he testified at the suppression hearing, for Stierhoff to suggest that he was not aware of his fundamental right to testify is preposterous and lacks even a patina of plausibility. 

The decision whether to call a particular witness is almost always strategic . Defense counsel filed a motion to dismiss on May 15, 2007, and after being informed that the Court would take the motion under advisement and would not rule on it pretrial, Stierhoff concedes that counsel did not revisit the issue of testifying. Stierhoff admits that counsel advised him not to testify in the hope that the motion to dismiss would be successful. Thus, it certainly appears reasonable that a strategic decision was made that Stierhoff would not testify because he believed the motion to dismiss had a chance at success. 

In addition, in light of the evidence presented at trial, it is clear that, given the choices, counsel was well aware of the risks associated with Stierhoff testifying. Stierhoff admits that he was faced with substantial evidence of income tax evasion. Counsel was aware that if Stierhoff took the stand the government could cross examine Stierhoff with the multitude of ways he attempted to conceal his activities. Any claim of good faith would be confronted with a wall of evidence of deceit and concealment rendering any good faith testimony incredible. 

Furthermore, if Stierhoff testified that he held a good faith belief that he did not have to file tax returns or pay taxes — there was a possibility that the suppressed evidence could have been used to refute that testimony. The suppressed evidence, among other things, included Stierhoff's computer files and folders that had titles labeled "Banking," "Conspiracy," "Cuba," "Escape," "Greneda," "Havens," "Passports & ID's," "Panama," "Switzerland," "Offshore," and "Money Laundering." This evidence, at the very least, would have rebutted testimony concerning Stierhoff's subjective good faith belief about his duty to pay taxes.

The habeas court must evaluate the challenged conduct from counsel's perspective at the time, considering the totality of the circumstances before it and making every effort... to eliminate the distorting effects of hindsight. It must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. 

With the benefit of hindsight, Stierhoff now wishes to revisit a strategic decision that did not have the favorable outcome hoped for. Recognizing the circumstances that Stierhoff faced and weighing the risks and benefits of testifying, it was a reasonable decision by counsel to advise Stierhoff not to testify.  Defense counsel's performance, thus, did not fall below an objective standard of reasonableness. 

However, even if counsel's performance could be considered deficient, Stierhoff has failed to establish a reasonable probability that the trial result would be different. Stierhoff must show that his proffered testimony would have so altered the path of trial that a different outcome would have resulted. In this instance, the lack of specificity in Stierhoff's affidavit, as well as the mountain of evidence submitted by the government at trial, also proves fatal to Stierhoff's claim.

It is clear that this judge -- the one who tried the case -- knew too much about this defendant to be beguiled by his claims.  Stierhoff, hardly an idiot, surely knew that this judge was not dumb, so he filed a motion to recuse the judge in the 2255 proceeding, arguing

that because his § 2255 petition challenges the Court's decisions at trial, which he contends were in error, an appearance of partiality arises. Stierhoff contends that it would preserve the administration of justice and the perception to the public if the district judge who handled the trial would recuse from deciding the § 2255 petition.

The judge responded (citations and quotes also omitted):

Section 2255 evinces a strong preference for post conviction review by the judge who presided at trial. Stierhoff claims that because he is alleging that the Court made errors at trial the Court will hold that against him in its rulings on his § 2255 petition. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. To establish a bias or prejudice springing from the facts adduced or events occurring at trial, the movant must demonstrate bias so extreme as to display clear inability to render fair judgment.A judge has a duty not to recuse himself or herself if there is no objective basis for recusal. Stierhoff has presented "no objective basis" to support the motion to recuse. The Court denies Stierhoff's motion to recuse.

Enough said.