14‐1271 United States of America v. Kristina Thomas

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of May, two thousand fifteen.

PRESENT: AMALYA L. KEARSE, BARRINGTON D. PARKER, RICHARD C. WESLEY, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 14‐1271

KRISTINA THOMAS,

Defendant‐Appellant. ____________________________________________

For Appellee: JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J.

1 Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY.

For Defendant‐Appellant: CHERYL MEYERS‐BUTH, Murphy Meyers LLP, Orchard Park, NY.

Appeal from the United States District Court for the Western District of New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Defendant‐Appellant Kristina Thomas (“Thomas”) was charged, in a two‐

count indictment, with bank fraud, in violation of

and 2, and

aggravated identify theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. On

August 29, 2012, Thomas was convicted after a jury trial of both counts of the

indictment. Following her conviction, but before her sentencing, Thomas sent a

number of letters to the court complaining that her trial counsel had been

ineffective. The district court relieved trial counsel from the case and appointed

Thomas’s current counsel.

On August 2, 2013, Thomas filed a motion pursuant to Federal Rule of

Criminal Procedure 33 requesting that the district court vacate her conviction

and grant her a new trial. She claimed that her trial counsel was ineffective by 1)

failing to explain that a sentence of 24 months’ imprisonment was statutorily

2 mandated upon conviction of aggravated identity theft in addition to any other

sentence and that acceptance of the plea offer would have avoided that

mandatory sentence; 2) failing to sufficiently investigate the charges and

interview potential witnesses; 3) engaging another attorney to help him at trial;

and 4) failing to object to, and actively pursuing, testimony concerning Thomas’s

sexual orientation. The district court denied the motion on February 24, 2014.

Thomas was later sentenced principally to a term of 32 months’ imprisonment

and three years of supervised release, and she timely appealed. Because the

district court ordered Thomas remanded pending sentencing due to allegations

of witness tampering, she completed her term of incarceration while this appeal

was pending and was released on December 19, 2014. See Federal Bureau of

Prisons Inmate Locator, available at http://www.bop.gov/inmateloc/. On appeal,

Thomas argues that the district court should have conducted an evidentiary

hearing in connection with her claim that her lawyer was ineffective with regard

to the plea offer and that the district court erred in denying her Rule 33 motion to

vacate the conviction.

A defendant’s claim for ineffective assistance of counsel is evaluated

pursuant to Strickland v. Washington,

(1984). To establish ineffective

3 assistance, a defendant must (1) show that counselʹs representation “fell below

an objective standard of reasonableness,” and (2) “affirmatively prove prejudice”

by showing that “there is a reasonable probability that, but for counselʹs

unprofessional errors, the result of the proceeding would have been different.”

, 693–94. The standard for evaluating the adequacy of counselʹs

representation is “a most deferential one,” Harrington v. Richter,

(2011), since “counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment,” Strickland,

.

We first review Thomas’s claim that the district court erred in not

providing an evidentiary hearing in connection with her claim that her lawyer

was ineffective with regard to advising her about the plea offer. This Court has

held that in cases where the judge who tried the case holds a “limited hearing,”

which includes a review of letters, documentary evidence, and affidavits, “the

determination of whether the hearing was sufficient is reviewed for an abuse of

discretion.” Puglisi v. United States,

(2d Cir. 2009) (citing Chang

v. United States,

, 85–86 (2d Cir. 2001)). A hearing on a Rule 33

motion is not always required, but we have noted that one is sometimes

4 necessary to provide a sufficient record for us to review the ineffective assistance

claim on the merits. See United States v. Brown,

, 114–15 (2d Cir.

2010). Here, the limited hearing, held by the district court on the basis of

affidavits and unsworn factual declarations, was plainly sufficient. Because

Thomas failed to provide any sworn statement of her own, a full evidentiary

hearing “would be fruitless,” Puglisi,

.

With regard to the performance prong of the Strickland analysis, Thomas

did not present any evidence that her trial counsel failed to explain to her the

government’s plea offer. Her trial counsel’s affidavit stated that he “discussed

the terms of the government’s proposed plea” with Thomas, “including

specifically that the government’s plea proposal . . . would enable [Thomas] to

avoid the mandatory 24 month consecutive sentence” on Count 2 of the

indictment. J.A. 805–06. The affidavit of Thomas’s mother and the unsworn

declarations from family members in support of the Rule 33 motion indicated

that they were not present for any discussions regarding the government’s plea

offer, but did not establish that Thomas did not participate in any such

discussions with her trial counsel. And no affidavit or declaration by Thomas

was submitted.

5 Nor did Thomas meet her burden under the prejudice prong, which

requires that she demonstrate her intent to take the plea offer, see Puglisi,

. The statements made by Thomas’s counsel in the Rule 33 motion and the

affidavit of her mother submitted in support thereof are insufficient to constitute

statements of intent for purposes of satisfying Strickland. See

(“a

statement regarding intent must be directly attributable to the [defendant],

whether it be through sworn testimony in the main proceeding or by a sworn

affidavit in support of the motion”). Thomas herself failed to respond to her trial

counsel’s affidavit stating that from the outset Thomas “adamantly indicated to

[him] that she was not interested in any plea bargain and wanted to take the case

to trial” and that when he “discussed the terms of the government’s proposed

plea, . . . she rejected it.” J.A. 805. Furthermore, the record evidence shows that

Thomas had an opportunity to review the government’s offer, was well aware of

its terms, and insisted on going to trial nevertheless. There was also evidence in

the record that, while represented by another lawyer, Thomas rejected a pre‐

indictment offer of a misdemeanor plea, which is consistent with the district

court’s conclusion that Thomas was not interested in accepting an offer and

wanted to proceed to trial.

6 Accordingly, with regard to Thomas’s claim that counsel was ineffective

for failing to explain the mandatory statutory sentence and that acceptance of the

plea offer would have avoided that mandatory sentence, we conclude that the

district court did not err by failing to hold an oral evidentiary hearing or by

denying the motion on the merits because Thomas failed to meet her burden

under either prong of the Strickland analysis.

This Court reviews a district court’s denial of a Rule 33 motion for abuse of

discretion and the factual findings in support of that decision for clear error. See

United States v. Rigas,

(2d Cir. 2009). We review the ultimate

question of whether Thomas’s trial counsel rendered ineffective assistance de

novo. See Strickland,

; Bennett v. United States,

(2d

Cir. 2011). As to Thomas’s other ineffective assistance claims, we conclude that

the district court did not err in its application of Strickland.

With regard to trial preparation and communication with Thomas pre‐

trial, the district court found that counsel had contact with Thomas leading up to

trial and reviewed the government’s evidence and discovery with her. We

conclude that his level of preparation was within the “wide range of reasonable

professional assistance,” Strickland,

; see also United States v.

7 Caracappa,

(2d Cir. 2010). While Thomas identifies numerous

ways in which she believes trial counsel could have been better prepared, “every

effort [must] be made to eliminate the distorting effects of hindsight,” Strickland,

. With regard to trial counsel’s performance at trial, we agree with

the district court that many of the alleged “deficiencies” constitute strategic

decisions, presumably made “in the exercise of reasonable professional

judgment,”

. Nor do we believe that trial counsel was deficient for

allowing an experienced criminal defense lawyer to assist him, and Thomas does

not point us to any authority for such a claim. Finally, with regard to Thomas’s

claim that reference to her sexual orientation was improper, we agree with the

district court that pursuing testimony about Thomas’s personal relationships

with some of the witnesses was a reasonable strategy to attempt to discredit the

witnesses on the basis of bias, prejudice, or motive to lie.

Furthermore, even if trial counsel’s performance were deficient for any of

the above reasons, Thomas fails to satisfy the prejudice prong of the Strickland

analysis. Given the overwhelming evidence of Thomas’s guilt presented by the

government, including the detailed testimony of three co‐participants in the

crimes which was evidently found credible by the jury, whose credibility

8 determinations and assessment of the evidence the court was not entitled to

overrule in the absence of exceptional circumstances, which were not present

here, see, e.g., United States v. Ferguson,

, 133–34 (2d Cir. 2001),

Thomas cannot show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” Strickland,

. Thus, because trial counsel did not provide

constitutionally ineffective assistance, we conclude that the district court did not

abuse its discretion in denying Thomas’s Rule 33 motion.

We have considered all of Thomas’s remaining arguments and find them

to be without merit. For the reasons stated above, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9