Sunday, January 27, 2019

There are worse things [agents and lawyers] could do...

Trials are supposed to be the main event. To ensure judges, lawyers, and litigants remember that fact, appellate rules and legal doctrine makes sure that when a jury says, “guilty,” there’s not much that can be done about it. United States v. Monea provides a number of lessons about the many limitations of appellate work.

An undercover FBI agent targeted Paul Monea under the guise of a big-time drug dealer named “Rizzo”  (not that Rizzo) in need of a way to clean his cash. Monea agreed to sell a 43-carat diamond and some real estate to Rizzo’s “clients,” but didn’t want to deal with cash. Instead, he asked Rizzo to wire him the money. But Rizzo said that he didn’t have enough money on hand to pay a $300,000 deposit, so he wired Monea $100,000 three times. What that meant was that the prosecutor could charge Monea with three counts of money laundering. According to the trustee of the Monea Family Fund, the agent admitted that was his goal, but he said something different at trial.

Unfortunately for Monea, the FBI captured a lot of the dealings on a wire. At some point during the review of discovery, Monea told his attorney that he thought the tapes were altered. The attorney didn’t pay this much mind, but he did talk to an investigator who asked for a hefty fee to investigate the matter. But the attorney and investigator never finalized the deal, so the industrious investigator started listening to the tapes out of curiosity. On the literal eve of trial, the investigator called with some news: he had reason to think the tapes had been altered.

Deep in trial mode, the attorney dismissed the investigator’s call to action because he believed the investigator was not a qualified expert. Undeterred, the investigator found another person who was qualified to testify about the tape’s anomaly. The trouble was that the court had stopped taking evidence and was about to instruct the jury. When the attorney brought the issue to the court’s attention, the plan was to wait for the jury’s verdict and address the issue afterwards.

The judge provided defense counsel with the information of a qualified forensic analyst. For mysterious reasons, counsel did not hire the recommended expert; he hired a music professor and his assistant to review the tapes. The government came to the hearing with a bevy of experts. To the judge’s mind, the music neither defense expert was qualified. So, the post-trial motion went nowhere.
A month later, defense counsel returned with two actually qualified experts and filed a second motion to set aside the verdict. The judge denied Monea a chance to have another evidentiary hearing and rejected his request for an opportunity to examine the recording device.

If you’re reading this and thinking that defense counsel did too little too late, then you have identified the crux of this appeal: ineffective assistance of counsel. Despite the various indications that it found defense counsel’s pretrial investigation lackluster, the Sixth Circuit chose to resolve the claim on the question of prejudice. Monea argued that his attorney’s poor performance deprived him of the outrageous-government-conduct defense because he could not show that the agent threatened him and his family. “This defense is a bit of a leprechaun,” the court wrote, which is probably true because the standard is so high. It only works when the government’s conduct “shocks the conscience,” and very little shocks federal judges.

The evidence Monea brought didn’t do the trick either, in part, because he did not introduce new evidence with his post-conviction motion. Instead, he argued the district judge should have permitted the second round of experts to testify at the hearing. The Sixth Circuit rejected this argument because the district judge said that he thoroughly considered the new affidavits and said that the fact these experts were presented only after trial and an evidentiary hearing made no difference. Whether both assertions are true is hard to know on appeal. The judge’s words were enough for the Sixth Circuit. And so, Monea hadn’t proven that the tapes were altered or that the agent lied on the stand, so he could not show that his attorney’s tardy efforts caused him prejudice.

Monea offers a lot of lessons to federal criminal appellate defense attorneys. The first is about the power of investigators. Agents investigating federal crimes have extraordinary control over charging decisions and sentencing. By coaxing a target to break the law in very specific ways, agents can rack up the number of charges a prosecutor can file. The second is that verdicts are incredibly difficult to undo, so attorneys should investigate their cases before trial, not after. And, third, the defense of “outrageous government conduct” is a bit like “fetch”—it’s not going to happen.

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