Thursday, November 3rd, 2022

Conviction Affirmed on Ground Not Initially Briefed by the Government and First Raised by Court at Oral Argument

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . waiver. Op. at 12-18. When counsel’s failure to convey the offer was discovered before trial, the government placed the offer on the record; new counsel was appointed; and Graham proceeded to trial without mentioning the offer again or asking that it be reinstated and she be allowed to plead guilty. The majority wrote that these facts were distinguishable from Frye and amounted to waiver because she had “full understanding of . . . her rights” and “act[ed] in a manner inconsistent with their exercise,” and made an “intentional decision not to assert a right.” Op. at 12 (citations and quotations omitted).

On the other hand, the majority held, the government had not waived this ground for affirmance by failing to brief it initially. In several dense paragraphs that appellate lawyers will love (or hate), the majority discusses and contrasts the “waiver,” “forfeiture,” and “party-presentation” rules. It ultimately concluded that it was not “hidebound” by the government’s initial arguments for affirmance, impliedly found that the Court had only a “modest initiating role” in shaping the parties’ arguments, and held that it could affirm the judgment “on any ground that is directly responsive to appellant’s arguments.” Op. at 18-21.

Judge Pérez concurred in the judgment but disagreed with the Court’s reasoning. In her view, the government had abandoned any claim of defense waiver. Concur. at 1. (Later, Judge Pérez notes that, when questioned about defense waiver at oral argument, counsel for the government stated, “I don’t know if I would style it as a knowing relinquishment.” Concur. at 7.)  Moreover, the importance of the right to effective counsel “demands that the judiciary be modest in its approach to doctrines that may serve to limit the right, such as waiver” and “sua sponte applications of waiver should be made with considerable restraint.”  Concur. at 3. Nor did Graham waive the claim, she would have held, as the district court should have conducted an inquiry to assure that the defendant’s waiver of her Frye right was knowing and intelligent. Concur. at 7-8. Judge Pérez saw “much irony in that the majority opinion easily finds Graham’s Frye claim waived but declines to find the government’s new argument abandoned given that the government would not have asserted waiver if not for a request for supplemental briefing by this Court.” Concur. at 2. In the end, however, she would have agreed with the government’s initial argument and held that Graham failed to demonstrate prejudice, i.e., that Graham’s choice to go to trial rather than request reopening of the plea offer suggested she would not have taken the plea had she been properly advised. Concur. at 11.

Even aside from the extended conversation between the majority and concurrence on waiver and party-presentation issues, as well as the majority’s fresh takes on the Frye right, Graham is also worth reviewing for its discussion of several other appellate claims involving evidentiary issues (Rule 404(b) “other act” evidence) and the jury charge (a conscious avoidance instruction).

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