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April 5, 2019, the Circuit Court issued an unpublished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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