United States v. Griffiths

• Decision Date: 25 April 2014
• Docket Number: No. 13–2102–cr.,13–2102–cr.
• Citation: 750 F.3d 237
• Parties: UNITED STATES of America, Appellee, v. David GRIFFITHS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

750 F.3d 237

UNITED STATES of America, Appellee,

v.David GRIFFITHS, Defendant–Appellant.

No. 13–2102–cr.

United States Court of Appeals, Second Circuit.

Argued: April 10, 2014.

Decided: April 25, 2014.

D. Duboulay, New York, NY, for Defendant–Appellant David Griffiths.

Justin Anderson, Carrie Cohen, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: CABRANES, LYNCH and LOHIER, Circuit Judges.

PER CURIAM:

Defendant–Appellant David Griffiths appeals from the May 14, 2013 judgment of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge ) following Griffiths's conviction, after a jury trial, on one count of making false statements to the Government, 18 U.S.C. § 1001; one count of obstruction of justice, 18 U.S.C. § 1512(c)(2); and one count of mail fraud, 18 U.S.C. § 1341. On appeal, as below, Griffiths principally contends that he was denied his Sixth Amendment right to effective assistance of counsel when, after his attorney suffered two strokes following the close of evidence at trial, the District Court—instead of postponing trial indefinitely or granting a mistrial—appointed an attorney who had not witnessed the presentation of the evidence to deliver the defense summation. Griffiths also contends that there was insufficient evidence for a jury to convict on any of the three counts.

We hold that there is no per se violation of the Sixth Amendment right to be represented by one's counsel of choice and to effective assistance of counsel when a district court, after defense counsel has become incapacitated, appoints counsel, over defendant's objection, to deliver the defense summation, notwithstanding the fact that appointed counsel did not witness the presentation of the evidence. Because, in the circumstances presented, the District Court's decision to appoint substitute counsel was reasonable, and Griffiths has shown no prejudice arising from that appointment, his Sixth Amendment claim fails. We also hold that the evidence was sufficient for a jury to convict on all three counts.

Accordingly, we AFFIRM the judgment of the District Court.

BACKGROUND

On April 24, 2012, the Government filed a Superseding Information charging Griffiths with three counts relating to his activities as Executive Director of the not-for-profit corporation Neighborhood Enhancement Training Services, Inc. (“NETS”): (1) making false statements, in violation of 18 U.S.C. § 1001, by submitting, in response to a grand jury subpoena, fabricated minutes of a meeting of the Board of Directors falsely reporting events that never happened; (2) obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2), based on the submission of fabricated minutes; and (3) mail fraud, in violation of 18 U.S.C. § 1341, by submitting an application for funding for NETS to the Dormitory Authority of the State of New York containing false statements. Griffiths retained Jared Scharf as his defense counsel.

At trial commencing on May 1, 2012, the Government and the defense presented their respective cases, each of which included witness testimony. On May 14, 2012, after the close of evidence and after the completion of the charging conference, Griffiths's lawyer, Scharf, suffered two strokes and was hospitalized. A doctor's note submitted to the District Court revealed that Scharf would need to undergo rehabilitation after his hospitalization, but did not predict if or when Scharf would be able to resume representation of Griffiths.

Notwithstanding the lack of evidence regarding Scharf's prognosis, Griffiths insisted that he was willing to continue trial only with Scharf as his counsel. He refused to consent to a mistrial which would have entailed a waiver of his Fifth Amendment right against double jeopardy and permitted him to be retried. On May 16, 2012, with only closing arguments remaining and the jury empaneled, the District Court adjourned trial for five days and appointed Bennett Epstein as counsel ¹ to advise Griffiths solely on the issue of how to proceed in light of Scharf's condition. The District Court expressed a willingness to adjourn the trial for up to three weeks rather than “give [Griffiths] the opportunity to have the benefit of a mistrial” without waiving his right against double jeopardy. J.A. 129.

At conference on Monday, May 21, 2012, Judge Hellerstein summarized his predicament, as set forth in a letter to Scharf's doctor requesting information: “[I]f Mr. Scharf's anticipated disability will be longer [than about a week] or indefinite, I may have to discharge the jury ... and declare a mistrial. But I cannot do so unless the defendant consents or unless I find manifest necessity. So I need to know ... how long Mr. Scharf's disability will last.” J.A. 131. The defense team was unable or unwilling to provide any concrete information about Scharf's prognosis ² and, accordingly, the projected length of Scharf's absence remained indefinite. Epstein stated that “the only position Mr. Griffiths wishes to take and should take at this point is he's not consenting to the granting of a mistrial.” Id.

Rather than declare a mistrial on grounds of “manifest necessity,” the District Court appointed Epstein as trial counsel, over Griffiths's objection, and instructed Epstein to prepare for summations the following Tuesday. See id. at 131–32. The District Court stated that, if Griffiths submitted information indicating that Scharf could return in a reasonable amount of time, it would reconsider the decision to proceed with substitute counsel. The jury was then informed of Epstein's appointment, and told that they would need to return for summations and deliberation on May 29, two weeks after the first adjournment. Id. at 132–33. The District Court noted the possibility of “redo [ing] some testimony” in advance of summations. Id. at 135.

At a May 24, 2012 status conference, Epstein represented: “I'm ready and I believe that I can deliver an effective summation in the case.... My issue is this.... I don't know if, by definition, I can render effective assistance of counsel based upon the fact that I never saw a single witness testify.” J.A. 136. He classified the issue as a “structural one.” Id. Judge Hellerstein responded, “I felt, in appointing you ... that you would be able to effectively [ ]represent Mr. Griffiths.... I can't think of a particular demeanor issue that will control how one looks at the testimony that was presented.” Id. Griffiths then renewed his motion “to continue the trial until Mr. Scharf becomes able to conduct his duties as defense counsel,” which the District Court denied.³Id. at 138.

On May 29, 2012, the parties gave summations and the jury began deliberations. On May 30, the jury delivered a verdict of guilty on all three counts. Griffiths made post-trial motions for a new trial or judgment of acquittal, Fed.R.Crim.P. 29, 33, which the District Court denied. The District Court sentenced Griffiths principally to five months' imprisonment on each count, to be served concurrently, and two years' supervised release. Judgment was entered on May 14, 2013, and this timely appeal followed.

DISCUSSION

On appeal, Griffiths argues that the District Court erred in denying his post-trial motions because (1) the appointment of Epstein to deliver the summation, over Griffiths's objection, violated his Sixth Amendment rights; and (2) there was insufficient evidence for the jury to convict on any count.

A. Griffiths's Sixth Amendment Rights

The Sixth Amendment guarantees a right to effective assistance of counsel as part of the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 685–86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It also guarantees, with some limitations, a right to counsel of one's choosing. See United States v. Gonzalez–Lopez, 548 U.S. 140, 147–48, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Griffiths argues that his Sixth Amendment rights were violated by (1) the denial of his right to be represented by counsel of his choice, and (2) the appointment of counsel to deliver a closing argument “without having seen a minute of trial.” ⁴ Appellant's Br. 32–33.

It is well established that “although [a trial court] may not compel [a] defendant to proceed with incompetent counsel[,]” it may, in certain circumstances, “require a defendant to proceed to trial with counsel not of defendant's choosing.” United States v. Schmidt, 105 F.3d 82, 89 (2d Cir.1997); see also Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (“[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”). Moreover, a district court has “a great deal of latitude in scheduling trials,” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), and need not grant a continuance so that a defendant may be represented by counsel of his choosing, where such a continuance would cause significant delay, United States v. Brumer, 528 F.3d 157, 161 (2d Cir.2008) (noting that this decision is reviewed for “abuse of discretion”). See generally Sims v. Blot (In re Sims), 534 F.3d 117, 132 (2d Cir.2008) (describing abuse of discretion standard). We conclude that, in the circumstances presented here, the efforts of the District Court to accommodate Griffiths's desire to be represented by Scharf were more than adequate, and it was not an abuse of discretion to conclude that “the needs of fairness” and “demands of its calendar” permitted appointment of substitute counsel. See Gonzalez–Lopez, 548 U.S. at 152, 126 S.Ct. 2557 (recognizing that those considerations may trump the right to one's counsel of choice).

Griffiths's attempt to show that Epstein was constitutionally ineffective also fails. Ordinarily,...