Hollenback v. U.S.

• Decision Date: 08 March 1993
• Docket Number: No. 92-2439,92-2439
• Citation: 987 F.2d 1272
• Parties: Brian HOLLENBACK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1272

987 F.2d 1272

Brian HOLLENBACK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-2439.

United States Court of Appeals Seventh Circuit.

Argued Feb. 2, 1993.

Decided March 8, 1993.

James J. Cutrone (argued), Chicago, IL, for petitioner-appellant.

Bradley W. Murphy, Peoria, IL, Rodger A. Heaton, Asst. U.S. Attys., Springfield, IL, for respondent-appellee.

Before CUMMINGS and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

Brian Hollenback filed a request for relief under 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel on the direct appeal of his conviction on three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and one count of conspiracy to impede an Internal Revenue Service ("IRS") investigation in violation of 18 U.S.C. § 371. The defendant's motion alleged that he was constructively denied counsel on appeal because his appellate counsel cited the elements of the wrong portion of the money laundering statute, subsection (a)(1)(A)(i) (hereinafter "subsection (A)(i)") rather than subsection (a)(1)(B)(i) (hereinafter "subsection (B)(i)"), and that defense counsel failed to raise other arguments on appeal that were clearly stronger than the issues he presented. The district court found that Hollenback had failed to demonstrate that he was prejudiced by his counsel's error and denied the defendant's motion. On appeal, Hollenback argues that the district court erred in finding that he was not constructively denied counsel, thus excusing a showing of prejudice, and, in the alternative, that the district court erred in finding that Hollenback had not demonstrated prejudice.

The three money laundering counts contained in the indictment alleged that Hollenback had violated two subsections of the money laundering statute, subsection (A)(i) and subsection (B)(i). Under 18 U.S.C. § 1956(a)(1), which applied to both subsections cited in the indictment, the government was obliged to prove that Hollenback (1) knowingly conducted a financial transaction (2) that he knew involved funds derived from criminal activity and that in fact involved the proceeds of drug distribution. In addition, if the charge was violation of subsection (A)(i), the government had to prove that Hollenback acted with the intent to promote "specific unlawful activity" as defined in 18 U.S.C. § 1956(c)(7); if the charge was violation of subsection (B)(i), the government had to prove that Hollenback acted with knowledge that the transaction was designed to conceal or disguise the nature or source of the proceeds. The government elected to proceed only on subsection (B)(i), alleging that Hollenback attempted to disguise the nature or source of the proceeds. The government's proof and argument and the instructions to the jury only concerned Hollenback's liability under (B)(i).

On direct appeal of his convictions, Hollenback's defense counsel primarily argued that the evidence adduced at trial on the money laundering charge was insufficient because the government did not introduce any evidence showing that Hollenback knew that the monies involved in financial transactions with his co-defendants were derived from their illegal marijuana distribution scheme. This argument would apply to the second of the three elements needed to obtain a section 1956(a)(1) conviction, and therefore would be an appropriate challenge to either a subsection (A)(i) or a subsection (B)(i) conviction. In addition, defense counsel made a conclusory remark that the evidence was insufficient to show intent to promote the carrying on of the unlawful activity. This second argument directly attacked an element unique to an (A)(i) conviction, and therefore was an inapplicable argument to raise in an appellate brief challenging a (B)(i) conviction. Defense counsel also challenged the sufficiency of the evidence supporting Hollenback's conviction for impeding an IRS investigation. The government's brief, which was written by an Assistant United States Attorney ("AUSA") who had no involvement with the trial, responded to the appellant's arguments without any mention of the erroneous references to the element unique to an (A)(i) conviction.

In United States v. Brown, 944 F.2d 1377 (7th Cir.1991), we affirmed Hollenback's conviction and the convictions of his co-defendants. In discussing the arguments raised by Hollenback, we recognized sub silentio the applicability of Hollenback's sufficiency of the evidence challenge to a (B)(i) conviction and the section 371 conviction. Id. at 1386-88. This court found that there was sufficient circumstantial evidence to allow the jury to find that Hollenback knew that the financial transactions that he structured involved funds derived from criminal activity. Id. at 1387-88. Hollenback thereafter obtained new counsel and filed a petition for rehearing that notified the court that his original defense counsel erred in referring to the language contained in subsection (A)(i) in the appellant's brief. We denied the request for rehearing, and Hollenback unsuccessfully sought section 2255 relief in the district court.

ANALYSIS

Hollenback raised two claims concerning his counsel's performance on appeal. First, Hollenback claimed that his attorney's performance was so inept that it amounted to a constructive denial of counsel, which was prejudicial per se and obviated the usual requirement of a showing of prejudice under the Strickland test for ineffective counsel. Second, Hollenback argued that even if his appellate counsel's performance did not sink to the level of denial of counsel, his advocacy was deficient and this deficiency was prejudicial under Strickland.

The Sixth Amendment provides Hollenback with the right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). To prevail on a claim of ineffective assistance of counsel, Hollenback must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under Strickland, Hollenback is obliged to prove that his counsel's performance was deficient and that the deficiency prejudiced the result of his appeal. The Strickland test's first prong requires a determination of whether defense counsel's assistance fell below "an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. There is a strong presumption that counsel's conduct falls within the reasonable standard of conduct. Id.; United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir.1990). In the context of an appeal, counsel need not raise every conceivable argument that is supported by the record. Evitts, 469 U.S. at 394, 105 S.Ct. at 834; Gray v. Greer, 800 F.2d 644, 647 (7th Cir.1986). Nonetheless, when "appellate counsel fails to present significant and obvious issues on appeal," his conduct falls below the standard of objective reasonableness. Gray, 800 F.2d at 646. "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Id. Under the second prong of the Strickland test, the reviewing court must decide whether counsel's performance prejudiced the defendant such that it rendered the proceeding fundamentally unfair or made the result unreliable. Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842-44, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As to the reference to subsection (A)(i), the government concedes that defense counsel erred.

I. Presumption of Prejudice Under United States v. Cronic

In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided on the same day as Strickland, the Supreme Court recognized an exception to the Strickland standard for ineffective assistance of counsel for certain circumstances that are so egregiously prejudicial that ineffective assistance of counsel is presumed. The Court stated that, "[t]he presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." Id. at 659, 104 S.Ct. at 2047. "A critical stage is one where potential substantial prejudice to [a] defendant's rights inheres in the particular confrontation and where counsel's abilities can help avoid that prejudice." United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1014 (7th Cir.1988).

In Siverson v. O'Leary, 764 F.2d 1208 (7th Cir.1985), this court recognized that counsel's conduct may be so deficient as to amount to a "constructive absence" during criminal proceedings. Id. at 1216-17 (citing Martin v. Rose, 744 F.2d 1245, 1251 (6th Cir.1984) (presumption of prejudice where counsel present but refused to participate in defendant's trial); Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984) (where defense counsel slept through a substantial portion of the trial, no showing of prejudice is required)); see also Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 ("Actual or constructive denial of counsel altogether is legally presumed to result in prejudice."). Nonetheless, cases in which an inherently prejudicial constructive absence of counsel has been found involve particularly egregious conduct that is the functional equivalent of actual absence of counsel.

Hollenback cites Jenkins v. Coombe, 821 F.2d 158 (2d Cir.1987), cert. denied, 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988), and Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990), as being compelling authority for presuming prejudice in Hollenback's case. In Jenkins, the Second Circuit found that prejudice should be presumed because the defendant's appointed counsel had been removed before his appeal was submitted to the appellate court for decision, and no replacement counsel had been assigned. Jenkins, 821 F.2d at 161. As Hollenback notes, Jenkins'...