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United States v. Bernier

United States District Court, District of Columbia

July 18, 2019

UNITED STATES OF AMERICA,
v.
DAVID BERNIER, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a remand from the United States Court of Appeals for the District of Columbia Circuit (the “Circuit Court'). On June 7, 2018, this Court convened an Evidentiary Hearing on Defendant's alleged violations of his supervised release. Both Defendant David Bernier (“Defendant” or “David Bernier”) and the Government introduced witness testimony and exhibits, but the Defendant elected not to testify. Transcript of June 7, 2018 Evidentiary Hearing (“6/7/18 Tr.”) at 153. On August 23, 2018, the Court issued its [65] Memorandum Opinion and [64] Order finding that David Bernier had violated the conditions of his supervised release with regard to Violations Nos. 1-3, 5-7, and 9-14, as alleged by the Probation Office in a series of memoranda presented to the Court. The Court revoked David Bernier's supervised release and imposed a six-month sentence. See November 8, 2018 Judgment for Revocation of Supervised Release, ECF No. 75. Defendant appealed the revocation of his supervised release and imposition of a sentence.

         On April 5, 2019, the Circuit Court issued an unpublished decision affirming the revocation of Defendant's supervised release but remanding “[a]ppellant's claims of ineffective assistance of counsel” for “further factual development for the reasons set forth in the memorandum filed simultaneously herewith.” See Judgment and Memorandum in No. 18-3083, ECF No. 90-1.[1] In order to further develop the record regarding David Bernier's ineffective assistance of counsel claims, this Court held a second Evidentiary Hearing on June 5, 2019. At the June 5, 2019 Evidentiary Hearing, David Bernier was represented by counsel, Mr. Gregory Smith, and he and his brother, James Bernier, testified on Defendant's behalf, while David Bernier's former counsel, Mr. Steven Kiersch, testified for the Government.[2]

         For the reasons explained herein, David Bernier's claims of ineffective assistance of counsel are DENIED.

         I. BACKGROUND

         Prior to the June 7, 2018 Evidentiary Hearing, this Court set an April 12, 2018 Status Conference with the parties to discuss the ten violations of Defendant's supervised release, which had been alleged by the Probation Office. Because Defendant contested the ten violations, the Court set this matter for a June 7, 2018 Evidentiary Hearing, where each side could present witness testimony and exhibits. At the June 7, 2018 Hearing, David Bernier was represented by CJA Attorney Steven Kiersch. Subsequent to the June 7, 2018 Hearing, but before this Court rendered its decision on whether David Bernier had violated his conditions of supervised release, Defendant submitted two ex parte letters challenging his legal representation. See Defendant's Ex Parte Letters, ECF No. 61 (filed under seal). On July 20, 2018, this Court held a Sealed Ex Parte Hearing to permit David Bernier to discuss on the record his allegations that his counsel had failed to: (1) contact a witness to obtain a statement; (2) ask certain questions of witnesses; and (3) introduce certain documents. Subsequent to the hearing, this Court denied David Bernier's claims of ineffective assistance of counsel, finding that:

[C]ounsel's actions before and during the June 7, 2018 evidentiary hearing - including his decision not to rely on certain documents because they did not further his client's case, or were not relevant, or were inadmissible without supporting testimony; determining which questions to ask the witnesses; and advising Defendant of the possible detriment if he testified were tactical decisions. [Furthermore, ] [a]t the June 7, 2018 evidentiary hearing, the Court inquired whether it was Defendant's decision not to testify and whether such decision was made voluntarily and willingly, and Defendant answered all three questions affirmatively. At the end of the sealed motions hearing, the Court concluded that Defendant failed to establish that his counsel's performance was deficient, and Defendant's claims of ineffective assistance of counsel were unwarranted and unsupported by the record in this case.

Order, ECF No. 62 (filed under seal).

         On August 23, 2018, this Court issued its decision that David Bernier had violated the conditions of his supervise release, revoked his supervision and set a schedule for submission of documentation relevant to Defendant's resentencing. See Memorandum Opinion, ECF No. 65; Order, ECF No. 64; Scheduling Order, ECF No. 66. On October 30, 2018, David Bernier was sentenced to six months incarceration, but he was permitted to delay his self-surrender and the commencement of his incarceration. Defendant indicates that his scheduled release date (according to the BOP website) is July 21, 2019.

         Defendant appealed from this Court's revocation of his supervised release, which was upheld by the Court of Appeals for the D.C. Circuit, and he alleged ineffective assistance of counsel. Defendant's claim of ineffective assistance of counsel was remanded to this Court for an evidentiary hearing to resolve the following two issues “(1) that [Defendant's] attorney conceded guilt to certain violations during the revocation hearing, and (2) that his attorney failed to provide him with the revised terms of his supervised release conditions after those conditions materially changed in April 2018, leading to additional violations.” Memorandum, No. 18-3083, ECF No. 90-1. The Circuit Court “decline[d] to resolve the matter because it require[d] further factual development” and accordingly, the case was remanded for an evidentiary hearing. Id. at 3-4.

         II. LEGAL STANDARD

         A defendant claiming ineffective assistance of counsel must show (1) “that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, ” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted); Hinton v Rudasill, 624 F.Supp.2d 48, 52 (D.D.C. 2009). For the first prong, “[j]udicial scrutiny of counsel's performance must be highly deferential” and defendant must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks and citation omitted). The Court must consider “counsel's overall performance, ” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” Strickland, 466 U.S. at 689. “The benchmark for judging any claim of ineffectiveness must be 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.” Id. at 686. It is the defendant's burden to show that counsel's errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011).

         Furthermore, the defendant must meet the second Strickland prong and “affirmatively prove prejudice.” Strickland, 466 U.S. at 693. That is, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 669. To find prejudice, the petitioner must show that there is “a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks and citation omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong.

         III. ANALYSIS

         On June 5, 2019, this Court held an evidentiary hearing to further develop the record regarding Defendant's claims of ineffective assistance of counsel, in accordance with the Circuit Court's remand. The scope of the evidentiary hearing encompassed two claims of ineffective assistance of counsel relating to: (1) counsel's concession of guilt to certain violations during the revocation hearing; and (2) counsel's failure to provide the Defendant with the revised terms of his supervised release conditions after those changed in April 2018, which allegedly led to additional violations. In connection with that Hearing, the Court credits the testimony of Mr. Steven Kiersh, Defendant's former counsel. The Court credits the majority but not all testimony by David Bernier and his brother James Bernier, particularly as to some inconsistencies in their testimony reflected in the recitation of facts to follow. The Defendant's exhibits numbered 1 through 28 were admitted into evidence. The Government did not move for the admission of any exhibits into evidence.

         A. Failure to Provide Revised Terms of Supervised Release Conditions

         Pursuant to the Circuit Court's remand, this Court is tasked with examining whether David Bernier's attorney “failed to provide him with the revised terms of his supervised release conditions after those conditions materially changed in April 2018, leading to additional violations.” Judgment and Memorandum, No. 18-3083, ECF No. 90-1. This claim was addressed briefly by David Bernier during the June 5, 2019 hearing. Defendant acknowledged that, at the end of the April 12, 2018 hearing, the Court said it would impose some new conditions that had not previously been in place. See 4/12/18 Transcript (“4/12/18 Tr.”) at 77:10-13. These conditions were memorialized in a [46] Memorandum Opinion and Order dated April 13, 2018. See 4/12/18 Tr. at 77:14-21. The three conditions: (1) prohibited Defendant from engaging in business or volunteer activities that required him to consummate or negotiate financial contracts without the permission of the probation officer; (2) required that Defendant provide the probation officer with access to any requested financial information and authorize the release of any financial information; and (3) prohibited Defendant from accessing the Internet except with receiving advance permission and supervision from the Probation Office. Memorandum Opinion and Order, ECF No. 46, at 3; 4/12/18 Tr. at 77:22-25.[3]

         Defendant indicated that he was charged with two additional violations - Nos. 13 and 14 - which were alleged to have occurred on May 15, 2018, when Defendant went to the Probation Office and accessed a computer without advance permission (a violation of the aforementioned third condition) and did not truthfully answer questions about the access (a violation of his standard conditions). 6/5/19 Tr. at 78:10-22. Defendant stated that he did not receive a copy of the April 13, 2018 Memorandum Opinion and Order “until the end of June after the evidentiary hearing, when this document was discussed[.]” 6/5/19 Tr. at 78: 1-9. Without directly stating so, Defendant implied that because he did not receive a memorialization of the three conditions until sometime in June 2018, he was unaware that he had violated the third condition when he accessed information from the Probation Office in May 2018. Defendant's implication fails as he was present in the courtroom on April 12, 2018, when this third condition was discussed in detail.

         At that April 12, 2018 Status Hearing, Defendant's Probation Officer from the District of Maine raised the issue of restricting Defendant's possible access to the Internet. The Court opined that during the time from the status hearing (April 12, 2018) though the upcoming evidentiary hearing (set for June 7, 2018), the Defendant “should not be using the computer since we're having problems.” See 4/12/2018 Transcript (“4/12/18 Tr.”) at 41:14-22. David Bernier's Probation Officer from the District of Columbia proposed that David Bernier, who was already “under a computer-monitoring restriction, ” be restricted from Internet access until the violations had been resolved so as to ensure the safety of the community, and she noted that this could be accomplished through a modification of his conditions. 4/12/18 Tr.at 42:2-14. Defendant, through counsel, stated that “the only modification that we would ask for is that [David Bernier] be allowed to use the computer at the . . . United States Probation Office, under the supervision of Ms. Phillips.” 4/12/18 Tr. at 43:1-4.

         In response to Defendant's statement, Ms. Phillips noted that this condition was already in force insofar as “the only time that [Probation] ha[s] actually permitted him to use the Internet has been at our office” so she concluded that this was merely a reiteration of what had already been implemented. 4/12/18 Tr. at 43:6-10. The Court agreed that the condition involving Probation Office approval and monitoring was not being changed per se, but rather, the Court was clarifying that “he doesn't have access to the Internet otherwise.” 4/12/18 Tr. at 43:11-16. Defendant, through counsel, agreed to the condition “as long as we keep this provision [regarding Defendant's Internet access at the Probation Office] in effect.” 4/12/18 Tr. a 43:17-18. This condition involving restrictions on Defendant's Internet access was memorialized subsequently as follows: “[David Bernier] must not access the Internet except with receiving advance permission and supervision from the United States Probation Office.” Memorandum Opinion and Order, ECF No. 46, at 3.

         The Court notes that Defendant was privy to the entire discussion at the April 12, 2018 Status Hearing regarding restrictions on his Internet usage. Furthermore, his need to obtain Probation Office approval and monitoring when he used the computer at the Probation Office was reiterated. Through counsel, he agreed to the restriction on his Internet usage so long as he could use the computer at the Probation Office, with the proviso that he had to seek permission and was subject to monitoring. Accordingly, David Bernier's claim that he was unaware of this condition until after he incurred a violation of the condition (on May 15, 2018) is contrary to the record in this case and without merit, and this claim shall be DENIED.

         B. Concession of Guilt to Some Violations

         Pursuant to the Circuit Court's remand, this Court is tasked with examining David Bernier's claim that his attorney proffered ineffective assistance of counsel based on his concession of guilt to certain violations during the revocation hearing.

         1. Counsel's Performance - Overall Litigation Strategy

         At an April 12, 2018 Status Conference, the parties discussed Defendant's ten alleged violations of the conditions of his supervision. Defendant, through counsel, contested all ten violations, 4/12/18 Tr. at 6:3-4, which resulted in this Court setting a June 7, 2018 Evidentiary Hearing to address Defendant's alleged violations of supervised release, which then totaled fourteen. In contrast, a review of Mr. Kiersh's closing at the June 7, 2018 Evidentiary Hearing indicates that he acknowledged that: “[Defendant has committed technical violations [and] [w]e're not going to dispute that. We're not going to come before the Court and argue things that are in contradiction to the facts that are before the Court.” 6/7/18 Tr. at 178:9-12. The technical violations that counsel had referenced prior to that acknowledgment included: (1) David Bernier's travel to New Hampshire without permission; (2) possession of a second computer; (3) use of a thumb drive; (4) failure to “verify” the narrative therapy; and (5) creation of “BOP” letterhead for a letter drafted for Mr. Dempsey.[4] But, even with these “concessions” on technical violations, Mr. Kiersh proffered mitigating circumstances relevant to these violations and testimony by Dr. Nicoloff regarding narrative therapy as a modality. See 6/7/18 Tr. at 163-182.

         David Bernier claims that he never told Mr. Kiersh to concede any violations. 6/5/19 Tr. at 77:4-9; 80 (“I told him that he screwed up the entire closing and conceded to violations that I didn't give him permission to do so.”). But see 6/5/19 Tr. at 92-93 (acknowledging that at sentencing, he admitted to traveling to New Hampshire without permission and to using a thumb drive); 10/30/18 Sentencing Hearing Transcript (“10/30/18 Tr.”) at 16:18-25 (“I do admit to some of the violations, but I would be lying to the Court if I accepted responsibility for all of the violations[.]”). When asked why he conceded some violations at the June 7, 2018 Evidentiary Hearing, after contesting all violations in April 2018, Mr. Kiersh explained that “when this information [regarding the ten violations] first came in, before [he] had a chance to evaluate it, [they] were asking for a hearing [and] [t]hat's why [he] said that [they] were going to contest all the violations.” 6/5/19 Tr. at 137:12-17.

         Because David Bernier indicates that his counsel proceeded in a manner which was not consistent with his wishes, the Court must make a credibility determination as to whether Mr. Kiersh discussed his litigation strategy with his client, and they had a meeting of the minds or not.[5]David Bernier testified that with regard to the first ten violations, he gave his counsel a binder with a written summary and list of proposed cross-examination questions to use in challenging the Probation Office's position. 6/5/19 Tr. at 54-55. The testimony he had prepared for Mr. Kiersh admittedly relied on witnesses answering the way he thought they should, not the way they actually did. 6/5/19 Tr. at 94. Mr. Kiersh testified that he went through the binder thoroughly by himself and also with David Bernier. 6/5/19 Tr. at 126-127. He indicated that he considered what was presented but “ultimately, the strategy and the tactics [would] be those that [he] believe[d] [we]re in the [client's] best interest based on [his] experience as a criminal defense litigator.” 6/5/19 Tr. at 127:15-21. Mr. Kiersh's background includes 35 years of practicing as a criminal defense lawyer, with over 100 jury trials, and teaching trial practice and trial advocacy at various law schools and programs for practicing attorneys. 6/5/19 Tr. at 118-119.

         At the June 7, 2018 Evidentiary Hearing, Defendant, through counsel, challenged the more serious violations (for example, the Colorado and Alabama “wire fraud” incidents and the Florida arrest) but conceded some of the technical violations. Mr. Kiersh “thought that [Defendant] would be better off conceding some of the technical violations [for example, the trip to New Hampshire and the use of a USB drive] to avoid violations on the more serious charges.” 6/5/19 Tr. at 138:9-12, 140. Mr. Kiersh believed there was a “meeting of the minds” as to approaching the case by challenging the major charges and focusing on mitigation of the technical violations to try to keep Defendant from incurring any jailtime. 6/5/19 Tr. at 129-130. “And I said that - - again, the three major ones, we're going to fight those. We're going to contest those. But on the technical violations, we should not make an attempt to fight back - - I can't say every one, but not to fight back on those, because some of them were clearly violations.” 6/5/19 Tr. at 131. Mr. Kiersh looked at the totality of the alleged violations and characterized them as either serious violations, which he “was looking to beat back” or technical violations, for which they could “present mitigation evidence.” 6/5/19 Tr. at 128. According to Mr. Kiersh, Defendant acknowledged committing the technical violations. 6/5/19 Tr. at 130:24-131:1. Mr. Kiersh explained to David Bernier that as part of mitigation, he would have to accept responsibility, because he did not see Defendant prevailing “on the excuses that he outlined in some of his drafts [in the binder].” 6/5/19 Tr. at 129-131. Mr. Kiersh's stated goal with regard to this matter was to avoid imposition of incarceration for David Bernier, which was consistent with the goal expressed to him by David Bernier. 6/5/19 Tr. at 127:22-128-1. In contrast, at the June 5, 2019 Evidentiary Hearing, David Bernier testified that his “main goal [at the revocation hearing] was for justice.” 6/5/19 Tr. at 91:21-92:5.

         David Bernier testified that Mr. Kiersh “didn't really discuss” with him that he thought “the best way to proceed was to attack the serious claims [such as the wire fraud and Florida arrest] and to try to undermine them, the Government's presentation of those claims.” 6/5/19 Tr. at 98:12-17. However, when asked on cross-examination if this was a “complete surprise” to him when it happened at the hearing, he responded “no, ” and elaborated that he was expecting his counsel to address every violation with equal force. 6/5/19 Tr. at 98:18-23. David Bernier testified that Mr. Kiersh “never really explained a strategy” so he “[couldn't agree with something that he didn't [get] brief[ed] [on].” 6/5/19 Tr. at 99: 9-15.

         In contrast, Mr. Kiersh noted that if there had been a conflict in the way in which he and David Bernier wanted to approach the case, he would have put it on the record that Defendant disagreed with him. 6/5/19 Tr. at 132-133. He opined that “strategy and tactics” are decisions for counsel “with consultation of the person who's facing the prosecution, ” which is how he proceeded. 6/5/19 Tr. at 139 -141. “If I strategically and tactically decide it's in your best interest to not contest or make excuses for the technical violations but go after the serious violations, I will discuss that with the client. That's what I did with Mr. Bernier.” 6/5/19 Tr. at 14:20-24. Mr. Kiersh was cross-examined on why - if they had agreed on a strategy - David Bernier claimed Mr. Kiersh was ineffective immediately after the evidentiary hearing. Mr. Kiersh opined that “Mr. Bernier was constantly changing his mind about things. And whatever decision he made, he would then try to change it after he made the decision, always trying to gain a tactical advantage. . . [and] he clearly saw it wasn't going his way during the hearing - - .” ...


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