U.S. v. Nagib, 93-4018

• Decision Date: 06 June 1995
• Docket Number: No. 93-4018,93-4018
• Citation: 56 F.3d 798
• Parties: 42 Fed. R. Evid. Serv. 536 UNITED STATES of America, Plaintiff-Appellee, v. Kareem A. NAGIB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

56 F.3d 798

42 Fed. R. Evid. Serv. 536

UNITED STATES of America, Plaintiff-Appellee, v. Kareem A. NAGIB, Defendant-Appellant.

No. 93-4018.

United States Court of Appeals, Seventh Circuit.

Decided June 6, 1995.

Matthew L. Jacobs, Asst. U.S. Atty. (argued), Office of U.S. Atty., Milwaukee, WI, for plaintiff-appellee U.S.

Robert L. Graham, Stephen L. Wood (argued), Stephen A.K. Palmer, Jenner & Block, Chicago, IL, for defendant-appellant Kareem A. Nagib.

Before POSNER, Chief Judge, and WELLFORD ^* and EASTERBROOK, Circuit Judges.

WELLFORD, Circuit Judge.

I. JURISDICTION

The defendant, Kareem Nagib, was convicted of drug trafficking on October 1, 1990, but he failed to file a timely notice of appeal as required by Federal Rule of Appellate Procedure 4(b). See 936 F.2d 292, 295 (7th Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 399, 116 L.Ed.2d 349 (1991). Since Rule 4(b)'s time limit is jurisdictional, we dismissed his appeal. Id. Undeterred, Nagib filed a motion under 28 U.S.C. Sec. 2255, collaterally attacking the district court's judgment of conviction. Nagib argued before the district court that he had been denied effective assistance of counsel when Mr. Frederick Zievers, his first lawyer, mistakenly filed a motion to reconsider the sentence instead of a notice of appeal. Such a motion no longer exists in the advent of Guidelines sentencing. The district court granted Nagib's motion and ordered a new appeal. We again declined to reach the merits of Nagib's appeal because the district court failed to make a finding that Nagib requested, in a timely manner, that his lawyer file a notice of appeal. See 44 F.3d 619, 622-23 (7th Cir.1995). Absent such a finding or definitive proof in the record, we were unable to determine whether Nagib's failure to file a timely notice of appeal was due solely to his lawyer's error or perhaps, in part, his own negligence. Id. at 622. This factual determination was crucial to our exercise of appellate jurisdiction because if the untimely appeal was the result of Nagib's own conduct, then Nagib could not demonstrate the ineffective assistance of counsel needed to justify the granting of a new appeal. Accordingly, we remanded to the district court to make a specific finding as to whether Nagib instructed his counsel, in a timely manner, to file a notice of appeal. Id. at 623.

Nagib now asks us to reconsider that decision. We believe Nagib's motion has merit in light of the government's concession that it will not, and cannot, offer proof to contradict Nagib's contention that he instructed Mr. Zievers, in a timely manner, to file a notice of appeal. Brief of Appellee at 6. As we noted in our previous opinion, it is the district court's role to determine whether a defendant requested, in a timely manner, that his lawyer file a notice of appeal. See 44 F.3d at 622 (citing Castellanos v. United States, 26 F.3d 717, 720 (7th Cir.1994); United States v. Mosley, 967 F.2d 242, 244 (7th Cir.1992)). Nonetheless, since the government cannot contest the allegations of the defendant and his lawyer, there is nothing for the district court to resolve. We will not require the district court to engage in a pointless exercise. Thus, it is quite apparent that Nagib instructed his lawyer to appeal in a timely manner. Since Nagib was denied appeal solely because of lawyer error, the question remains whether that error was sufficient to constitute ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Strickland requires a showing 1) of deficient counsel performance, 2) which prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. We have little difficulty finding that Mr. Zievers' performance was deficient. Filing the wrong papers or a non-existent motion under federal practice clearly qualifies as deficient attorney performance. A finding of deficient performance does not end the inquiry; there is still the matter of demonstrated prejudice. Nevertheless, a defendant seeking to demonstrate ineffective assistance is relieved of the heavy burden to show prejudice when there has been an "[a]ctual or constructive denial of the assistance of counsel altogether." Id. at 692, 104 S.Ct. at 2067. Accordingly, in Castellanos v. United States, 26 F.3d 717 (7th Cir.1994), we held that a defendant was not required to show prejudice under Strickland if he instructed his lawyer to appeal and his lawyer failed to do so. Id. at 718. We stated: "If the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the [S]ixth [A]mendment." Id.

In our previous opinion, we declined to reach any conclusions about whether there was a difference under Castellanos between a lawyer failing to file a timely appeal and failing to file at all. See 44 F.3d at 621-22. Today, we expressly hold that there is no meaningful distinction for the purpose of a Strickland analysis. See United States v. Horodner, 993 F.2d 191, 195 (9th Cir.1993) (holding that a defendant does not have to show prejudice under Strickland because "[t]he legal effect is the same[ ]" regardless of whether the lawyer files untimely, or fails to file at all). Castellanos controls this case, because Mr. Zievers' error denied Nagib the assistance of a lawyer's services on direct appeal. Castellanos, 26 F.3d at 718. Consequently, Nagib is not required to demonstrate prejudice under Strickland and his lawyer's failure to file a timely notice of appeal constituted per se ineffective assistance of counsel. As a result, Nagib is entitled to a new appeal.

II. THE MERITS

Nagib, and his co-defendants, Levon Dumont and Walter Atri, travelled across the country following the band, The Grateful Dead, frequently sharing lodging and transportation.

On September 14, 1989, Nagib and his co-defendants shared a cab to the Portland, Maine airport. While Nagib waited outside, Atri purchased airline tickets for himself and Dumont, who pursued arrangements to ship a cardboard box to Milwaukee. The shipping agent at the airport, Sandy Prox, asked Dumont for identification and he tendered his driver's license. Dumont identified himself as the shipper, but he gave Nagib's name as the addressee. When Prox asked about the contents of the box, Dumont told her that the box contained a backpack and a lamp. Prox then indicated that she might have to open the box to check for any flammable items. Dumont responded that he would check with a friend to verify the contents; he then left the counter and summoned Nagib, who was standing nearby. Dumont and Nagib returned to the counter, whereupon Dumont told the agent that "they had not put the lamp in the box." Prox then requested a Milwaukee shipping address, and Nagib provided Prox with a Milwaukee address for a Sheldon Boren. While completing the necessary shipping forms, Prox indicated that she intended to x-ray the package to determine whether flammable materials were enclosed. Neither Dumont nor Nagib objected. Nagib's name, however, appeared on the shipping papers.

While Dumont and Atri boarded a flight to Milwaukee, Prox did x-ray the package. Unable to determine its contents, Prox and another employee, Lisa Chavaree, decided to open the box. Upon finding LSD and dried mushrooms, Prox notified the Portland Police Department, who, in turn, contacted the Milwaukee Police Department. Authorities then shipped the box under a controlled delivery to Milwaukee where local police waited for the arrival of the intended recipient. When Dumont attempted to retrieve the box, a Milwaukee police officer, posing as an airline employee, told Dumont that the box came open during the flight. The officer explained that he would keep quiet about the drugs in the box if Dumont gave him money. Dumont walked over to Atri, they briefly conversed, then Atri handed Dumont $300.00 in $20 bills. Dumont gave the money to the undercover officer, whereupon police arrested Dumont and Atri. Found on Dumont's person were large bundles of currency totalling approximately $28,000.00.

The next day, United Airlines employees observed Nagib at the Portland airport rushing to board a flight bound for Milwaukee. The employees notified the Portland Police Department, which again notified the Milwaukee Police Department. Upon his arrival in Milwaukee, the police arrested Nagib. The police also seized a bag at the time of the defendant's arrest which contained women's clothing and other personal items, along with the defendant's passport, a pair of scissors, and two rolls of tape similar to the tape used to seal the package containing the LSD and hallucinogenic mushrooms. The police could not identify the bag as belonging to Nagib, but it did contain some of his possessions.

A Milwaukee grand jury promptly indicted Dumont, Atri and the defendant, charging all three with conspiring to distribute LSD and conspiring to distribute a substance containing Psilocybin in violation of 21 U.S.C. Secs. 846, 841(a)(1) and 18 U.S.C. Sec. 2 (count one). In addition, the grand jury charged Dumont and Atri with travelling in interstate commerce to carry on a business enterprise involving a controlled substance.

During trial, Dumont changed his plea to guilty as to count one of the indictment, reserving the right to contest the manner in which the sentencing court determined the weight of the LSD for purposes of calculating his Guidelines range and the applicability of any minimum, mandatory sentencing provision. Defendant and Atri, however, proceeded with trial. The jury returned a verdict of guilty against defendant, who was sentenced to a prison term of 235 months. The jury also convicted Atri on both counts.

Defendant raises two issues on appeal: (1) whether the trial court committed reversible error when it refused to...