United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
four-week jury trial, Defendant Caleb Gray-Burriss was
convicted of embezzling over two hundred thousand dollars
from the National Association of Special Police and Security
Officers (“NASPSO”), a union of private security
guards that he was entrusted with managing. He appealed his
conviction to the D.C. Circuit, arguing that his two trial
counsel were ineffective for a variety of reasons, including
their failure to present crucial witness testimony and
general lack of preparedness. He also challenged the trial
court's exclusion of a 2009 employment contract that he
alleges formed the basis of a viable affirmative defense. The
D.C. Circuit remanded the ineffective-assistance-of-counsel
claims to this Court for further factual development, and
additionally, requested that the Court assess whether
consideration of the 2009 employment contract by the trial
court would have changed Gray-Burriss's original
sentence. Gray-Burriss has since moved for a new trial and
for resentencing relying on those same grounds. The Court
held an evidentiary hearing on the motion on August 1 and 2,
2016, and accepted subsequent supplemental briefing. Having
closely reviewed the evidence presented both at the hearing
and through briefing, it will deny the motion for the reasons
Factual and Procedural Background
Caleb Gray-Burriss founded the National Association of
Special Police and Security Officers (“NASPSO”)
in the 1990s and served the labor union in various
high-ranking positions. The government's 19-count Second
Superseding Indictment, filed in August 2012, charged
Gray-Burriss with “two distinct schemes to steal from
the union and its members.” United States v.
Gray-Burriss, 791 F.3d 50, 53 (D.C. Cir. 2015). The
first concerned his alleged misuse of funds held in trust in
a NASPSO-sponsored pension account. He was accused of
depositing employers' trust contributions into an
ordinary checking account and “writing checks on the
account to himself, to cash, and to cover the union's
operating expenses.” Id. The second principal
series of counts depicted a lengthy pattern of embezzlement
from the union's funds. The remaining counts charged
Gray-Burriss with criminal contempt for violating a 2007
consent decree with the union in a related civil case,
destruction of subpoenaed documents, witness tampering, and
union recordkeeping violations. Id. On December 4,
2012, the jury convicted Gray-Burriss on 18 of the 19
counts. Dec. 4, 2012 Verdict Form, ECF No. 174.
And in April 2013, the Court, through former Chief Judge
Roberts, sentenced him to 76 months' imprisonment and
ordered him to pay roughly $252, 000 in restitution. Apr. 29,
2013 Judgment in a Criminal Case, ECF No. 235.
appeal to the D.C. Circuit, Gray-Burriss challenged the trial
court's exclusion-due to trial counsel's delay in
producing the document-of an employment contract that
purported to authorize an increase to Gray-Burriss's
salary, effective July 1, 2009. See Gray-Burriss,
791 F.3d at 58 (explaining that the employment contract was
alleged to have increased his salary to $75, 000). The D.C.
Circuit acknowledged that a factual dispute remained as to
whether the contract's four signatories were authorized
to raise Gray-Burriss's salary, and it held that the
trial court's exclusion of this document was “too
severe a sanction” for Gray-Burriss's discovery
violations. Id. at 56. It found the exclusion
harmless as to his conviction on Count 8-which charged
Gray-Burriss with accepting unauthorized salary payments from
December 2007 to March 2011-but concluded that the district
court “might well have arrived at a lower loss finding
and significantly reduced the defendant's restitution and
forfeiture obligations” if the 2009 document had been
found to validly authorize a salary increase. Id. at
58-59. The Circuit also suggested that a “lower loss
finding [c]ould affect the defendant's term of
incarceration, ” but that it was unlikely given that
the applicable Sentencing Guidelines range would not change.
Id. at 59 n.3. It accordingly remanded the case to
this Court to determine whether the document's erroneous
exclusion would lower Gray-Burriss's restitution
obligation and the term of his incarceration. See
id. at 65.
his appeal, Gray-Burriss also raised several
ineffective-assistance claims. Because the record was not
clear on whether he was entitled to a new trial under the
two-step test established by Strickland v.
Washington, 466 U.S. 668 (1984), the D.C. Circuit
remanded those claims for the district court's
consideration. See Gray-Burriss, 791 F.3d at 64.
Gray-Burriss has since filed a motion for a new trial based
on ineffective assistance of counsel, or in the alternative,
for resentencing because the trial court failed to consider
the 2009 employment contract. See Def.'s Mot.
for New Trial and for Resentencing (“MNT”).
new attorney argues that his previous trial counsel-veteran
attorneys Heather Shaner and Patrick Christmas-were
constitutionally ineffective in various ways when preparing
his defense. Ms. Shaner was initially appointed to represent
Gray-Burriss under the Criminal Justice Act
(“CJA”) after his first indictment in 2010.
Throughout 2010 and 2011, she filed a number of motions on
his behalf and successfully obtained several continuances in
order to negotiate a possible disposition prior to trial.
Another CJA attorney, Edward Sussman, entered his appearance
in April 2012 to help Shaner prepare for trial. Later that
month, the Court set a trial date of November 2, 2012 and
ordered the parties to jointly submit by October 24, 2012
suggested voir dire questions and jury instructions and a
proposed verdict form. See Apr. 19, 2012, Pretrial
Order, at 2, ECF No. 98. On June 20, the parties represented
to the Court that they “s[aw] no impediment to
proceeding as scheduled on November 2, 2012.” June 20,
2012 Joint Status Rep., at 1, ECF No. 116.
months shy of the upcoming trial, Gray-Burriss sought new
counsel. He retained Mr. Christmas, who entered his
appearance in the case on July 27, 2012. Both Shaner and
Christmas understood that Christmas had been hired to assume
the role of “lead counsel.” Evid. Hr'g Tr.
308:3-8. On August 10, shortly after the Court denied
Christmas's motion to continue the trial because of
scheduling conflicts, Ms. Shaner “delivered two sets of
all case files and relevant information” to Christmas.
Heather Shaner's Response to Order to Show Cause, at 2,
ECF No. 156. The government filed a second (and final)
superseding indictment containing 19 counts a few days later,
the same day that the Court permitted Attorney Sussman to
withdraw. See ECF Nos. 132-133. The Court refused to
let Shaner withdraw, however, due to her familiarity with the
case and her extensive advocacy on behalf of Gray-Burriss.
Christmas again moved to continue the trial two weeks before
its scheduled commencement; he warned that “a serious
injustice will occur if the Defendant is ‘forced'
to trial on November 2, 2012.” ECF No. 141, at 2. The
Court rejected this latest effort to delay a trial already
beset by lengthy continuances. It emphasized that the parties
had recently foreseen “no impediments to
trial-readiness” and that Gray-Burriss was still
“represented by able, experienced CJA counsel [i.e. Ms.
Shaner] who has been on the case throughout.” Oct. 19,
2012 Mem. Order, at 4, ECF No. 146.
that time, the Court also granted the government's motion
to preclude the defense from introducing expert testimony,
following the defense's noncompliance with discovery
requests and failure to respond to the government's
motion. See Oct. 17, 2012 Mem. Order, ECF No. 142.
This setback followed the Court's earlier refusal to
appoint an expert forensic accountant for Gray-Burriss at
public expense without a greater showing of
Gray-Burriss's financial need. Defense counsel also
failed to communicate with the government in advance of the
October 24 pretrial-submissions deadline, causing the
government to move to file its own versions as joint
submissions. The Court found “both defense
counsel's nonfeasance inexcusable” and ordered that
they each show cause why they should not be sanctioned and
referred for further discipline. Oct. 25, 2012 Ord. to Show
Cause, at 2-3, ECF No. 152.
pointed to Christmas, explaining that he seldom communicated
with her and cut her out of all “strategic legal
decisions[, ]” Att'y Shaner's Resp. to Ord. to
Show Cause, at 3, ECF No. 156, and that she hesitated to
confer with government counsel “without permission of
the defendant's retained lead counsel of choice.”
Id. at 4. Christmas confirmed that the fault
“l[ay] entirely with [him]” because Shaner had
“made herself available at all times, ” but that
he was “literally overwhelmed” with other
responsibilities in the weeks leading up to the trial.
Att'y Christmas's Resp. to Ord. to Show Cause, at 1,
4, ECF No. 157. Before jury selection in Gray-Burriss's
trial commenced, Shaner requested an immediate hearing on the
outstanding show-cause order, “assert[ing] that the
existence of the unresolved show cause order threatened her
professional license and ability to earn a livelihood, and
would distract her from being able to provide zealous and
effective representation to her client in the trial.”
Nov. 5, 2012 Minute Ord. The Court denied her request,
choosing to resolve the matter after the trial concluded.
See id. In making this decision, the Court stated it
“was fully confident that [Ms. Shaner] would not falter
in her duty to her client[, ]” and did not want
“to delay the panel of 65 prospective jurors waiting in
the jury office who had been pre-screened and summoned
specially for this trial, and to bring no further delay to a
trial that had been delayed far too long already.”
Id. The trial concluded on November 28, 2012 with
Gray-Burriss' conviction, and the Court dismissed the
show-cause order that day.
now moves for a new trial, arguing that his counsel were
constitutionally ineffective in a number of ways. At the
evidentiary hearing on his motion, the Court heard testimony
from Gray-Burriss; Shaner, his CJA-appointed trial attorney;
Christmas, his self-retained trial attorney; and Bruce
Goodman, a former general counsel to the labor union who was
not called as a trial witness but whose testimony
Gray-Burriss believes could have exonerated
Court must evaluate Gray-Burriss's motion for a new trial
under the standard laid out in Strickland v.
Washington, 466 U.S. 668 (1984). As the Supreme Court
had noted even before Strickland, “the right
to counsel is the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970). But ineffective-assistance doctrine is not a
panacea for criminal defendants' misfortunes. Courts
presented with such claims are called on to determine only
“whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. It is the
defendant's burden to show by a preponderance of the
evidence that he is entitled to relief. See United States
v. Soomai, 23 F.Supp.3d 9, 11 (D.D.C. 2014) (citing
United States v. Pollard, 602 F.Supp.2d 165, 168
(D.D.C. 2009)); see also United States v. Simpson,
475 F.2d 934, 935 (D.C. Cir. 1973).
Strickland's First Prong
prevail on an ineffective-assistance claim, a defendant must
make two separate showings. First, he must prove that
“counsel's performance was deficient”-that it
“fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at
687-88. A reviewing court must determine whether counsel
acted “reasonabl[y] under prevailing professional norms
. . . considering all the circumstances.” Id.
at 688; see also Padilla v. Kentucky, 559 U.S. 356,
366 (2010) (reasonableness assessed against “the
practice and expectations of the legal community”).
Because constitutionally effective assistance can be
administered in “countless ways, ”
Strickland, 466 U.S. at 689, the question is not
whether representation “deviated from best practices or
most common custom, ” Harrington v. Richter,
562 U.S. 86, 88 (2011). That another strategy “might
have been more successful” is not determinative.
United States v. Catlett, 97 F.3d 565, 568 (D.C.
Cir. 1996). Courts must strive to “eliminate the
distorting effects of hindsight”-knowledge that
counsel's strategy actually failed-and evaluate the
challenged conduct “from counsel's perspective
at the time.” Strickland, 466 U.S. at
689 (emphasis added). That a “defense strategy did not
work out as well as counsel had hoped” does not mean
that earlier efforts were objectively deficient.
Harrington, 562 U.S. at 109. And although
“even an isolated error” can support an
ineffective-assistance claim if it is “sufficiently
egregious, ” Murray v. Carrier, 477 U.S. 478,
496 (1986), “it is difficult to establish ineffective
assistance when counsel's overall performance indicates
active and capable advocacy, ” Harrington, 562
U.S. at 111.
Supreme Court has cautioned that “[j]udicial scrutiny
of counsel's performance must be highly deferential,
” and that defense attorneys are to be afforded
“wide latitude . . . in making tactical
decisions.” Strickland, 466 U.S. at 689. For
that reason, Strickland's first prong is seldom
satisfied. See Padilla, 559 U.S. at 371
(“Surmounting Strickland's high bar is
never an easy task.”); Harrington, 562 U.S. at
105 (instructing that “the Strickland standard
must be applied with scrupulous care”); United
States v. Moore, 703 F.3d 562, 574 (D.C. Cir. 2012)
(“[I]t is very difficult for a convicted defendant to
prevail on a claim of ineffective assistance of
counsel.”). Attorney performance need only
“meet . . . a minimal standard of competence.”
Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) (per
curiam). Courts must “apply a ‘strong
presumption' that counsel's representation was within
the ‘wide range' of reasonable professional
assistance.” Harrington, 562 U.S. at 104. At
the same time, rare cases may arise “where the only
reasonable and available defense strategy requires”
taking a particular action- for example, “consultation
with experts or introduction of expert evidence.”
Harrington, 562 U.S. at 106.
order to measure up to this standard, counsel must
“make reasonable investigations or . . . make a
reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691.
“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. But such choices
made after less-than-full investigation “are reasonable
[only] to the extent that reasonable professional judgments
support the limitations on investigation.” Id.
The Supreme Court has made clear that “[a]n
attorney's ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under Strickland.”
Hinton, 134 S.Ct. at 1089. To be sure,
“[t]here is a ‘strong presumption' that
counsel's attention to certain issues to the exclusion of
others reflects trial tactics rather than ‘sheer
neglect.'” Harrington, 562 U.S. at 109
(quoting Yarborough v. Gentry, 540 U.S. 1, 8
(2003)(per curiam)). But courts “may not indulge
‘post hoc rationalization' for
counsel's decisionmaking that contradicts the available
evidence of ...