Sealed Appellee v. Sealed Appellant

• Decision Date: 17 August 2018
• Docket Number: No. 17-50487,17-50487
• Citation: 900 F.3d 663
• Parties: SEALED APPELLEE, Plaintiff-Appellee v. SEALED APPELLANT, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

900 F.3d 663

SEALED APPELLEE, Plaintiff-Appellee

v.SEALED APPELLANT, Defendant-Appellant

No. 17-50487

United States Court of Appeals, Fifth Circuit.

FILED August 17, 2018

Paige Messec, Assistant U.S. Attorney, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Plaintiff-Appellee.

David Michael Gonzalez, Sumpter & Gonzalez, L.L.P., Austin, TX, for Defendant-Appellant.

Before CLEMENT, HIGGINSON, and HO, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Angus McGinty, a former Texas state court judge, pleaded guilty to Honest Services Wire Fraud after accepting bribes for favorable rulings. McGinty now alleges that his attorneys were suspects in the same corruption investigation that led to his conviction. He argues that his attorneys’ potential criminal liability created a conflict that infringed his Sixth Amendment right to effective counsel, and seeks to vacate his conviction pursuant to 28 U.S.C. § 2255.

The district court denied McGinty’s motion to vacate, holding that McGinty failed to show that his counsel’s performance was deficient or that any deficiency prejudiced his defense. We affirm on the alternative basis that McGinty knowingly, intelligently, and voluntarily waived the purported conflict.

I.

Angus McGinty served as an elected judge of the 144th Judicial District Court in Bexar County, Texas, from January 2011 until his resignation on February 14, 2014. On April 13, 2015, McGinty pleaded guilty to one count of Honest Services Wire Fraud. Consistent with a plea agreement entered under Federal Rule of Criminal Procedure 11(c)(1)(C), the court imposed a 24 month sentence.

A.

The investigation that culminated in Angus McGinty’s conviction began with a tip. In early March 2013, an informant told an FBI agent that Albert Acevedo, Jr., a local criminal defense attorney, was paying for repairs to McGinty’s car in exchange for favorable rulings. Consensual recordings and a wiretap confirmed the informant’s story.

In conversations recorded over the next several months, Acevedo discussed paying to repair and sell McGinty’s car. When the car sold (to an FBI agent) for $700 less than McGinty was asking, recorded conversations indicate that Acevedo made up the difference out of his own pocket. When Acevedo texted McGinty to say he had the cash from the car sale, McGinty responded: "Well I’m a whore for money." After selling McGinty’s old car, Acevedo also paid to find, repair, and register a new car for McGinty.

In total, Acevedo provided McGinty with approximately $6,655 in car-related services. This generosity did not go unrewarded. Acevedo told the informant that McGinty did "a lot of shit for [him]." Acevedo raved that McGinty sold influence at a relative steal; unlike a former judge that used to ask for "a grand every couple days," McGinty "doesn’t ask for much. I’ll give him cash and he won’t say nothing." In August 2013, Acevedo called McGinty and requested that one of his clients be removed from electronic monitoring. Without asking the client’s name or what he was charged with, McGinty agreed. Intercepted communications also show that McGinty agreed to remove an alcohol monitoring release requirement for one defendant and to recall an arrest warrant for another at Acevedo’s request.

In December 2013, FBI agents confronted Acevedo with the results of their investigation and Acevedo agreed to cooperate. According to one of the FBI agents that interviewed him, Acevedo "made a myriad of allegations against other individuals." Acevedo "stated that he was not the only attorney with influence in McGinty’s court" and gave Alan Brown and Jay Norton, two partners at a local criminal defense firm, "as examples of other attorneys who got favorable rulings from McGinty."¹ When pressed, however, Acevedo said that his allegations against Brown and Norton were based only on his "observations around the courthouse" and he "admitted that he did not have concrete information that Brown or Norton were involved in public corruption."

The agents returned to interview Acevedo the next day, and Brown and Norton’s names came up again. According to the agent’s account, Acevedo said that he gave judges campaign contributions, and then "stated that Brown and Norton also made campaign contributions to judges and had more influence with judges than he did." Ten days later, in another interview, Acevedo relayed to the agents a secondhand account "that Brown had said that he had heard from a local judge that Acevedo was ‘debriefing with the Fed’s on public corruption cases’ and wanted to know if the rumor was true."²

By January 2014, according to FBI agents, the corruption investigation had "become a topic of interest among attorneys" in the San Antonio area. That month, McGinty hand-delivered a backdated check to the mechanic that had repaired his car at Acevedo’s request. FBI agents watched and recorded the meeting.

FBI agents confronted McGinty about two weeks later. According to the agents, McGinty initially lied about where he got the parts to repair his car. After being presented with the evidence against him, McGinty stated that "[t]his looks really bad" and that it appeared he had been "bought." McGinty told the agents that he wanted to speak with a lawyer, Alan Brown.

B.

In June of 2014, McGinty was indicted in the Western District of Texas for Federal Programs Bribery, Conspiracy to Commit Federal Programs Bribery, Extortion under Color of Official Right, and twelve counts of Honest Services Wire Fraud. McGinty retained Brown and Norton—the same two lawyers Acevedo had identified to the FBI—to represent him. McGinty also retained a third lawyer to serve as co-counsel to Brown and Norton, as to whom he has made no argument of a conflict of interest.

While McGinty’s case was pending before the district court, the government filed a Notice of Potential Conflict of Interest. The notice explained that Brown also represented another defendant, Cruz Dosdado Aranda, whom Acevedo had previously represented in state court.

The district court addressed the potential conflict at a status hearing. The district judge personally addressed McGinty and told him that the government had raised a potential conflict. The judge explained that a conflict could undermine McGinty’s representation and that McGinty had a right to conflict-free counsel. McGinty said that he understood and wanted to proceed with Brown and Norton.

Two weeks later, McGinty signed a plea agreement pursuant to Rule 11(c)(1)(C). In the agreement, McGinty stated that he was "fully satisfied with [his] attorney’s legal representation." He reiterated his satisfaction with his multiple counsel at his plea hearing. On July 15, 2015, the district court sentenced McGinty to 24 months’ imprisonment, consistent with the term agreed to by McGinty in his plea agreement, which also led to the dismissal of all but the one count. The court also imposed a one year term of supervised release and a special assessment of $100. McGinty did not file an appeal.

C.

In December 2015, McGinty requested an interview with FBI agents. According to one of the agents, McGinty stated at this meeting that he had received favors from several lawyers while serving as judge. He singled out Brown and Norton, and stated that the two attorneys had given him cash and free legal representation. McGinty specifically alleged that Brown gave him an envelope of cash after McGinty set bond for one of Brown’s clients. He also stated that Brown came to his chambers to talk about a client, and that before discussing the case, Brown asked how Norton’s (free) representation of McGinty was going. McGinty said that he sentenced Brown’s client to probation rather than prison based on the favors he received from Brown and Norton. McGinty stated that he had initially wanted to cooperate with the government, but that Brown and Norton convinced him not to. McGinty speculated that Brown and Norton advised him to plead guilty to protect themselves.

The FBI was unable to substantiate McGinty’s allegations against his attorneys. A search of McGinty’s text messages turned up nothing incriminating. Investigation revealed that the defendant that McGinty claimed received probation due to Brown and Norton’s influence actually got his break based on a favorable plea deal negotiated with the prosecutor. In the end, the United States declined to prosecute Brown and Norton.

D.

McGinty filed his first, pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on July 14, 2016. In his motion, McGinty stated that he first became aware that he was the target of an FBI investigation when Norton called to arrange an urgent meeting in a restaurant parking lot. Norton told McGinty that a prosecutor had informed Norton and his partner Brown of the investigation. Norton and Brown agreed that Brown would speak with two other judges, and Norton would speak with McGinty. Norton told McGinty that if the FBI contacted him, he should not answer any questions.

According to McGinty, after he did talk to the FBI in January 2014, Brown and Norton were "very upset." Brown told McGinty that Brown "had already told others in the legal community that [McGinty] had spoken with the government." The lawyers said they were going to help McGinty, but told him "not to worry" about paying. McGinty also alleged that Brown and Norton told him they were discussing his case with other judges and members of the San Antonio legal community. Brown told McGinty that Aranda—Brown’s other client that the government raised as a potential conflict—told the FBI that Acevedo had bribed another district judge. Brown said he had already warned that judge.

McGinty further alleged in this first, pro se habeas motion that Brown and Norton’s self-interest led them to forcefully discourage him from cooperating with the government. McGinty alleged that Brown and Norton told him that if he cooperated he would be labeled a snitch, his life would be in danger, and Brown and Norton would...