Same Claim, Different Day

United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)

In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months’ imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government’s efforts to sign him up as a cooperator, and affirmed. The court held that any deficiency in counsel’s advice was attributable to Pitcher’s own dishonesty in dealing with his attorney.

In 2004, Pitcher filed a § 2255 motion arguing that he would have received a much shorter sentence had his counsel not misinformed him about the risks of going to trial and the benefits of cooperating. After an evidentiary hearing, the district court granted the motion, vacated the sentence and resentenced Pitcher to time served. The government appealed, and the circuit reversed.

A § 2255 motion cannot be used to relitigate questions that were raised and considered on direct appeal. The claim is not barred, however, if it rests upon a different “ground” for relief than the one previously raised. A “ground” is a “legal basis for granting the relief sought by the applicant.” Here, the ground raised in the § 2255 motion was that Pitcher’s attorney gave him an “overly optimistic assessment of his chances at trial.” But this was “simply the inverse” of the claim disposed of on his direct appeal, that the attorney was ineffective for discouraging him from cooperating. Both were premised on the same facts and, hence rested on the same legal ground.

Crawford's Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his actions were driven by credulity and inexperience, rather than greed. The court also faulted the limiting instructions themselves, noting that they might have left jurors open to assuming that the allocutions could be considered on the issue of Becker’s intent.

Finally, the court concluded that the other evidence of Becker’s intent and membership in the conspiracy was “far from overwhelming.” Significantly, the court made clear that its finding that evidence as to these issues was legally sufficient did render an error affecting them harmless. This is an important distinction to which the Circuit has not always adhered.

Becker’s case is all the more remarkable in that arose in the context of a 2255 petition, and not a direct appeal, which means that he successfully overcame several procedural hurdles: the law of the case doctrine, since the court had, on his pre-Crawford direct appeal, rejected the Confrontation Clause claim, and a Teague problem. Fortunately for Becker, his case was not yet final (by a mere ten days) when Crawford was decided.

One note: Becker has already served his entire prison sentence and most of his term of supervised release. Let’s hope that the government does the right thing and drops the case entirely.