Thursday, October 6, 2016

Creative But Unsuccessful 2255 Proceeding with Interesting, but Unproven, Allegations (10/6/16)

I offer today an opinion in a Hail Mary habeas corpus-like proceeding under 28 USC 2255 after conviction and appeal.  United States v. Bertram, 2016 U.S. Dist. LEXIS 126906 (D DC 2016)  The opinion is here and the petition addressed in the opinion is here.  These proceedings are very common, particularly federal prisoners who have some time on their hands and can proceed pro se. Bertram proceeded pro se, but the petition reflects a lot of research and creativity.  The opinion offers no new law, but, although the petition was unsuccessful, the opinion does have some interesting aspects.  Readers should look for the following:

1. The petitioner argues that his conviction should be reversed because he was selectively prosecuted.  The claim was that
he was the victim of selective prosecution because his work during President Obama's administration was for the GOP.1 See, e.g., Def.'s Mem. at 8. In support of this claim, defendant provides the court with seven anecdotal examples of prominent Democratic figures who allegedly committed similar offenses but were not prosecuted. See Def.'s Mem. at 5-6. He also provides statistics in an effort to show that the felony charged in this case - 26 U.S.C. § 7202 - is "infrequently charged." See U.S. Sentencing Comm'n Guidelines Manual, Ex. 1 to Def.'s Mot. [Dkt. # 24-1]; see also Emp't Tax Evasion Statistical Data, Ex. 10 to Def.'s Mot. [Dkt. # 24-1] at 50 (providing statistics showing the relative infrequency of prosecution). Finally, he contends that the prosecution was permeated with "bad intent" because an IRS agent allegedly inquired as to the political motivations behind defendant's work. See Aff. of Kevin Duane Bertram, Ex. 14 to Def.'s Mot. [Dkt. # 24-2] ¶¶ 10-15.
For his statistical presentation, see the petition linked above.

2.   The petitioner made the standard 2255 claim of ineffective assistance of counsel.  His particular focus was upon Cono Namorato, here, a giant of the tax crimes bar, who had represented him during the criminal investigation but did not enter an appearance for him in the criminal case or represent him in the plea agreement and plea hearing.  The petitioner argued that nevertheless Namorato had failed in his due diligence, infected by a conflict of interest by his nomination to be AAG of the Tax Division while representing him.  The Court''s resolution of the conflict issue is:
B. Defendant has not shown that Mr. Namorato had a conflict of interest. 
Defendant complains that Mr. Namorato was nominated by President Obama to serve as Assistant Attorney General for the Tax Division of the Justice Department while he was still engaged as a member of the defense team. See Def.'s Mem. at 12-13. Defendant insists "that a lawyer attempting to become the head prosecutor of an agency would not want to risk his chance of that desired position by zealously representing his defendant-client who is at odds with the agency." Id. at 13. Whatever truth there might be to this statement as a general principle, the record does not indicate that the nomination posed an actual conflict in this case — in which, it bears repeating, another attorney was counsel of record — or that defendant was adversely affected in any way. n14
   n14 Defendant seems determined to deflect responsibility for his own wrongdoing onto Mr. Namorato, but the last time he invoked Mr. Namorato's name in these proceedings, he sought to benefit from the attorney's recent nomination and cloak himself in his lawyer's fame and reputation. In the sentencing memorandum filed on April 29, 2015, defendant informed the Court that at one time, defendant had retained Caplin & Drysdale to represent him in the criminal investigation. Def.'s Mem. in Aid of Sentencing [Dkt. # 12] at 11. After touting Mr. Namorato's qualifications and specifically mentioning his recent nomination to the Tax Division post, defendant stated that he "believed that his attorneys were working to resolve the outstanding tax liabilities and that he should delay filing all outstanding Form 941s and pay all tax liabilities as part of a comprehensive settlement." Id. at 11 & n.4. The next day, the defense filed a motion for leave to file a "corrected" memorandum that would "clarify" certain statements made in the memorandum, Mot. for Leave to File Corrected Def.'s Mem. in Aid of Sentencing [Dkt. # 14], and in the revised version, this reference to Mr. Namorato was completely excised. See Def.'s Mem. in Aid of Sentencing at 11. 
"Conflict of interest claims ...are a 'specific genre' of ineffective assistance of counsel claim." United States v. Wright, 745 F.3d 1231, 1233, 409 U.S. App. D.C. 63 (D.C. Cir. 2014), quoting United States v. Bruce, 89 F.3d 886, 893, 319 U.S. App. D.C. 245 (D.C. Cir. 1996). "[A] defendant who asserts a conflict of interest habeas proceedings generally must demonstrate only that an actual conflict of interest adversely affected his lawyer's performance." Id., citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). "An actual conflict of interest exists where a lawyer is 'required to make a choice advancing his own . . . interests to the detriment of his client's interest.'" United States v. Thomas, 114 F.3d 228, 252, 324 U.S. App. D.C. 374 (D.C. Cir. 1997), quoting Bruce, 89 F.3d at 893. If a defendant can show an actual conflict that adversely affected his attorney's performance, he "typically need not demonstrate the second prong of the Strickland test — that the lawyer's deficient performance affected the outcome of the case." Wright, 745 F.3d at 1233, citing Cuyler, 446 U.S. at 349-50. 
First, the timeline does not support defendant's claim. Defendant retained Mr. Namorato and Caplin & Drysdale to deal with the tax matter on May 30, 2012. Aff. of Kevin Duane Bertram, Ex. 17 to Def's Mot. [Dkt. # 24-2] ¶ 1; see also Engagement Letter, Ex. 1 to Def.'s Reply [Dkt. # 27] at 1. Defendant avers that "sometime in 2013," he noticed a "marked decrease in Mr. Namorato's performance." Ex. 17 to Def.'s Mot. ¶ 6. According to defendant's own account, he "became so concerned about Mr. Namorato's decrease in representation, that [he] retained attorneys Thomas Perrelli and Jessie Liu of the firm Jenner & Block to assist [him]." Id. ¶ 13. Defendant retained Jenner & Block on February 10, 2014. Ex. 1 to Def.'s Suppl. The prosecutor sent the formal [*36]  plea offer letter to Ms. Liu on January 13, 2015, and she entered her appearance in the case at the arraignment and plea hearing on February 10, 2015. She was also the lone counsel for the sentencing on May 5, 2015. n15
   n15 Caplin & Drysdale formally concluded its representation of the defendant in a letter dated June 8, 2015. Ex. 2 to Def.'s Reply [Dkt. # 27].  
The defendant has produced evidence that shows that on February 24, 2015, the President announced his intention to nominate Mr. Namorato to serve as the as the next Assistant Attorney General in charge of the Department of Justice Tax Division. Ex. 22 to Def.'s Mot. [Dkt. # 24-2], and that he was formally nominated on February 25. See U.S. Senate Comm. on the Judiciary, PN214-114: Cono R. Namorato, (last visited Sept. 19, 2016). The record does not indicate when Mr. Namorato was first informed that he was under consideration for the post. Defendant argues, though, that because of "the commonly-known lengthy vetting and selection process," this "period of time tracks too closely to be a mere coincidence," and he speculates that the alleged decline in quality in Mr. Namorato's representation can be attributed to the fact that the attorney had been informed that he was a candidate for the nomination that was announced later. Def.'s Mem. at 12.
But defendant has indicated that his dissatisfaction began to fester in 2013, and the immediately-preceding Assistant Attorney General, Kathryn Keneally, did not announce her resignation until May 27, 2014. See Press Release, U.S. Dep't of Justice, Assistant Attorney General Kathryn Keneally Announced Her Departure (May 27, 2014), available at So there is no basis in the record to conclude that the vetting process had already begun by "some point in 2013." And, even if it had, defendant retained two additional attorneys, from a different law firm, who had their own independent obligations to provide zealous representation, free from any conflict of interest, and it was one of those attorneys who acknowledged the plea agreement and verified that the acceptance of the plea was consistent with her advice. 
Furthermore, with respect to the defendant's recent suspicions about Mr. Namorato's divided interests, the Court "generally presume[s] that the lawyer is fully conscious of the overarching duty of complete loyalty to his or her client." Burger v. Kemp, 483 U.S. 776, 784, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Indeed, "trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel." Cuyler, 446 U.S. at 347, citing Holloway v. Arkansas, 435 U.S. 475, 485-86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Merely pointing to Mr. Namorato's potential future employment is not sufficient to establish an actual conflict of interest. "[U]ntil ...a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Mickens v. Taylor, 535 U.S. 162, 175, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (emphasis in original), quoting Cuyler, 446 U.S. at 350. And "[i]n order for there to be an actual conflict," the defendant must show how the attorney was "forced to make a choice advancing his own interest at the expense of his client's." United States v. Taylor, 139 F.3d 924, 930, 329 U.S. App. D.C. 231 (D.C. Cir. 1998). As the Seventh Circuit explained in an analogous case:
We will not indulge the presumption that a defense attorney who is being considered for a position as United States Attorney is unable to represent a defendant in federal court to the best of his ability and with the defendant's best interests in mind.
United States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1988). Defendant argues that Mr. Namorato intentionally underperformed in defendant's case in order to win a job at the Department of Justice but he can point to no facts that would lead to that conclusion.
Mr. Namorato's nomination is, I think, still pending.  He got caught in a political cat fight where Republicans were just being Republicans.  That is a shame because he is eminently qualified for the position and has the respect and admiration of the criminal tax bar and, indeed, the tax bar generally.

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