UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Case Number: 10-cr-00178 (CRC)
Judge: Merrick Garland
Thomas B. Griffith
Stephen F. Williams
Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Plaintiff's Attorney: Vincent J. Falvo Jr., Attorney, U.S. Department of Justice
Tracee J. Plowell
Defendant's Attorney: Stephen L. Braga
Steven M. Klepper
Description: Defendant Caleb Gray-Burriss founded the National Association of Special Police and
Security Officers (“NASPSO”) in the 1990s and served the labor union in various high-ranking
positions. The government’s 19-count Second Superseding Indictment, filed in August 2012,
charged Gray-Burriss with “two distinct schemes to steal from the union and its members.”
United States v. Gray-Burriss, 791 F.3d 50, 53 (D.C. Cir. 2015). The first concerned his alleged
misuse of funds held in trust in a NASPSO-sponsored pension account. He was accused of
depositing employers’ trust contributions into an ordinary checking account and “writing checks
on the account to himself, to cash, and to cover the union’s operating expenses.” Id. The second
principal series of counts depicted a lengthy pattern of embezzlement from the union’s funds.
The remaining counts charged Gray-Burriss with criminal contempt for violating a 2007 consent
decree with the union in a related civil case, destruction of subpoenaed documents, witness
tampering, and union recordkeeping violations. Id. On December 4, 2012, the jury convicted Gray-Burriss on 18 of the 19 counts.1 Dec. 4, 2012 Verdict Form, ECF No. 174. And in April
2013, the Court, through former Chief Judge Roberts, sentenced him to 76 months’
1 He was found guilty on Counts One through Six (mail fraud, 18 U.S.C. § 1341), Seven through Thirteen (embezzlement from a labor organization, 29 U.S.C. § 501(c); conspiracy to commit embezzlement from a labor organization, 18 U.S.C. § 371), Fourteen (criminal contempt, 18 U.S.C. § 401(3)), Fifteen (obstructing a grand-jury investigation, 18 U.S.C. § 1512(c)(1)–(2)), Seventeen (failure to file reports required by the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 439(a)), Eighteen (falsification of reports required by the LMRDA, 29 U.S.C. § 439(b)), and Nineteen (failure to maintain in sufficient detail records required by the LMRDA (29 U.S.C. § 439(a)). He was acquitted on Count Sixteen alone (tampering with a witness, 18 U.S.C. § 1512(b)(2)(A), (C)).
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imprisonment and ordered him to pay roughly $252,000 in restitution. Apr. 29, 2013 Judgment
in a Criminal Case, ECF No. 235.
On appeal to the D.C. Circuit, Gray-Burriss challenged the trial court’s exclusion—due to
trial counsel’s delay in producing the document—of an employment contract that purported to
authorize an increase to Gray-Burriss’s salary, effective July 1, 2009. See Gray-Burriss, 791
F.3d at 58 (explaining that the employment contract was alleged to have increased his salary to
$75,000). The D.C. Circuit acknowledged that a factual dispute remained as to whether the
contract’s four signatories were authorized to raise Gray-Burriss’s salary, and it held that the trial
court’s exclusion of this document was “too severe a sanction” for Gray-Burriss’s discovery
violations. Id. at 56. It found the exclusion harmless as to his conviction on Count 8—which
charged Gray-Burriss with accepting unauthorized salary payments from December 2007 to
March 2011—but concluded that the district court “might well have arrived at a lower loss
finding and significantly reduced the defendant’s restitution and forfeiture obligations” if the
2009 document had been found to validly authorize a salary increase. Id. at 58–59. The Circuit
also suggested that a “lower loss finding [c]ould affect the defendant’s term of incarceration,”
but that it was unlikely given that the applicable Sentencing Guidelines range would not change.
Id. at 59 n.3. It accordingly remanded the case to this Court to determine whether the
document’s erroneous exclusion would lower Gray-Burriss’s restitution obligation and the term
of his incarceration. See id. at 65.
Within his appeal, Gray-Burriss also raised several ineffective-assistance claims.
Because the record was not clear on whether he was entitled to a new trial under the two-step test
established by Strickland v. Washington, 466 U.S. 668 (1984), the D.C. Circuit remanded those
claims for the district court’s consideration. See Gray-Burriss, 791 F.3d at 64. Gray-Burriss has
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since filed a motion for a new trial based on ineffective assistance of counsel, or in the
alternative, for resentencing because the trial court failed to consider the 2009 employment
contract. See Def.’s Mot. for New Trial and for Resentencing (“MNT”).
Gray-Burriss’s new attorney argues that his previous trial counsel—veteran attorneys
Heather Shaner and Patrick Christmas—were constitutionally ineffective in various ways when
preparing his defense. Ms. Shaner was initially appointed to represent Gray-Burriss under the
Criminal Justice Act (“CJA”) after his first indictment in 2010. Throughout 2010 and 2011, she
filed a number of motions on his behalf and successfully obtained several continuances in order
to negotiate a possible disposition prior to trial. Another CJA attorney, Edward Sussman,
entered his appearance in April 2012 to help Shaner prepare for trial. Later that month, the Court
set a trial date of November 2, 2012 and ordered the parties to jointly submit by October 24,
2012 suggested voir dire questions and jury instructions and a proposed verdict form. See Apr.
19, 2012, Pretrial Order, at 2, ECF No. 98. On June 20, the parties represented to the Court that
they “s[aw] no impediment to proceeding as scheduled on November 2, 2012.” June 20, 2012
Joint Status Rep., at 1, ECF No. 116.
A few months shy of the upcoming trial, Gray-Burriss sought new counsel. He retained
Mr. Christmas, who entered his appearance in the case on July 27, 2012. Both Shaner and
Christmas understood that Christmas had been hired to assume the role of “lead counsel.” Evid.
Hr’g Tr. 308:3–8. On August 10, shortly after the Court denied Christmas’s motion to continue
the trial because of scheduling conflicts, Ms. Shaner “delivered two sets of all case files and
relevant information” to Christmas. Heather Shaner’s Response to Order to Show Cause, at 2,
ECF No. 156. The government filed a second (and final) superseding indictment containing 19
counts a few days later, the same day that the Court permitted Attorney Sussman to withdraw.
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See ECF Nos. 132–133. The Court refused to let Shaner withdraw, however, due to her
familiarity with the case and her extensive advocacy on behalf of Gray-Burriss. Christmas again
moved to continue the trial two weeks before its scheduled commencement; he warned that “a
serious injustice will occur if the Defendant is ‘forced’ to trial on November 2, 2012.” ECF No.
141, at 2. The Court rejected this latest effort to delay a trial already beset by lengthy
continuances. It emphasized that the parties had recently foreseen “no impediments to trial
readiness” and that Gray-Burriss was still “represented by able, experienced CJA counsel [i.e.
Ms. Shaner] who has been on the case throughout.” Oct. 19, 2012 Mem. Order, at 4, ECF No.
Around that time, the Court also granted the government’s motion to preclude the defense
from introducing expert testimony, following the defense’s noncompliance with discovery
requests and failure to respond to the government’s motion. See Oct. 17, 2012 Mem. Order,
ECF No. 142. This setback followed the Court’s earlier refusal to appoint an expert forensic
accountant for Gray-Burriss at public expense without a greater showing of Gray-Burriss’s
financial need. Defense counsel also failed to communicate with the government in advance of
the October 24 pretrial-submissions deadline, causing the government to move to file its own
versions as joint submissions. The Court found “both defense counsel’s nonfeasance
inexcusable” and ordered that they each show cause why they should not be sanctioned and
referred for further discipline. Oct. 25, 2012 Ord. to Show Cause, at 2–3, ECF No. 152.
Shaner pointed to Christmas, explaining that he seldom communicated with her and cut
her out of all “strategic legal decisions[,]” Att’y Shaner’s Resp. to Ord. to Show Cause, at 3, ECF
No. 156, and that she hesitated to confer with government counsel “without permission of the
defendant’s retained lead counsel of choice.” Id. at 4. Christmas confirmed that the fault “l[ay]
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entirely with [him]” because Shaner had “made herself available at all times,” but that he was
“literally overwhelmed” with other responsibilities in the weeks leading up to the trial. Att’y
Christmas’s Resp. to Ord. to Show Cause, at 1, 4, ECF No. 157. Before jury selection in Gray
Burriss’s trial commenced, Shaner requested an immediate hearing on the outstanding show
cause order, “assert[ing] that the existence of the unresolved show cause order threatened her
professional license and ability to earn a livelihood, and would distract her from being able to
provide zealous and effective representation to her client in the trial.” Nov. 5, 2012 Minute Ord.
The Court denied her request, choosing to resolve the matter after the trial concluded. See id. In
making this decision, the Court stated it “was fully confident that [Ms. Shaner] would not falter
in her duty to her client[,]” and did not want “to delay the panel of 65 prospective jurors waiting
in the jury office who had been pre-screened and summoned specially for this trial, and to bring
no further delay to a trial that had been delayed far too long already.” Id. The trial concluded on
November 28, 2012 with Gray-Burriss’ conviction, and the Court dismissed the show-cause
order that day.
Gray-Burriss now moves for a new trial, arguing that his counsel were constitutionally
ineffective in a number of ways. At the evidentiary hearing on his motion, the Court heard
testimony from Gray-Burriss; Shaner, his CJA-appointed trial attorney; Christmas, his self
retained trial attorney; and Bruce Goodman, a former general counsel to the labor union who was
not called as a trial witness but whose testimony Gray-Burriss believes could have exonerated him.2
2 Mr. Christmas testified at the hearing that he had suffered a stroke the previous year and as a result his memory was somewhat impaired. Evid. Hr’g Tr. at 258:5–8. He relied on notes from an interview that was conducted weeks before the hearing to refresh his memory of
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II. Legal Standard The Court must evaluate Gray-Burriss’s motion for a new trial under the standard laid out
in Strickland v. Washington, 466 U.S. 668 (1984). As the Supreme Court had noted even before
Strickland, “the right to counsel is the right to the effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). But ineffective-assistance doctrine is not a panacea
for criminal defendants’ misfortunes. Courts presented with such claims are called on to
determine only “whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. It is the defendant’s burden to show by a preponderance of the
evidence that he is entitled to relief. See United States v. Soomai, 23 F. Supp. 3d 9, 11 (D.D.C.
2014) (citing United States v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009)); see also United
States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973). A. Strickland’s First Prong To prevail on an ineffective-assistance claim, a defendant must make two separate
showings. First, he must prove that “counsel’s performance was deficient”—that it “fell below
an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. A reviewing court
must determine whether counsel acted “reasonabl[y] under prevailing professional norms . . .
considering all the circumstances.” Id. at 688; see also Padilla v. Kentucky, 559 U.S. 356, 366
(2010) (reasonableness assessed against “the practice and expectations of the legal community”).
Because constitutionally effective assistance can be administered in “countless ways,”
Strickland, 466 U.S. at 689, the question is not whether representation “deviated from best
the events at issue. The government avowed that Christmas’s memory at the time of the prehearing interview was sound. Id. at 269:15–25.
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practices or most common custom,” Harrington v. Richter, 562 U.S. 86, 88 (2011). That another
strategy “might have been more successful” is not determinative. United States v. Catlett, 97
F.3d 565, 568 (D.C. Cir. 1996). Courts must strive to “eliminate the distorting effects of
hindsight”—knowledge that counsel’s strategy actually failed—and evaluate the challenged
conduct “from counsel’s perspective at the time.” Strickland, 466 U.S. at 689 (emphasis added).
That a “defense strategy did not work out as well as counsel had hoped” does not mean that
earlier efforts were objectively deficient. Harrington, 562 U.S. at 109. And although “even an
isolated error” can support an ineffective-assistance claim if it is “sufficiently egregious,”
Murray v. Carrier, 477 U.S. 478, 496 (1986), “it is difficult to establish ineffective assistance
when counsel’s overall performance indicates active and capable advocacy,” Harrington, 562
U.S. at 111.
The Supreme Court has cautioned that “[j]udicial scrutiny of counsel’s performance must
be highly deferential,” and that defense attorneys are to be afforded “wide latitude . . . in making
tactical decisions.” Strickland, 466 U.S. at 689. For that reason, Strickland’s first prong is
seldom satisfied. See Padilla, 559 U.S. at 371 (“Surmounting Strickland’s high bar is never an
easy task.”); Harrington, 562 U.S. at 105 (instructing that “the Strickland standard must be
applied with scrupulous care”); United States v. Moore, 703 F.3d 562, 574 (D.C. Cir. 2012) (“[I]t
is very difficult for a convicted defendant to prevail on a claim of ineffective assistance of
counsel.”). Attorney performance need only “meet . . . a minimal standard of competence.”
Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (per curiam). Courts must “apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington, 562 U.S. at 104. At the same time, rare cases may arise
“where the only reasonable and available defense strategy requires” taking a particular action—
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for example, “consultation with experts or introduction of expert evidence.” Harrington, 562
U.S. at 106.
In order to measure up to this standard, counsel must “make reasonable investigations
or . . . make a reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. “[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.” Id. at 690. But such choices made after less
than-full investigation “are reasonable [only] to the extent that reasonable professional
judgments support the limitations on investigation.” Id. The Supreme Court has made clear that
“[a]n attorney’s ignorance of a point of law that is fundamental to his case combined with his
failure to perform basic research on that point is a quintessential example of unreasonable
performance under Strickland.” Hinton, 134 S. Ct. at 1089. To be sure, “[t]here is a ‘strong
presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial
tactics rather than ‘sheer neglect.’” Harrington, 562 U.S. at 109 (quoting Yarborough v. Gentry,
540 U.S. 1, 8 (2003)(per curiam)). But courts “may not indulge ‘post hoc rationalization’ for
counsel’s decisionmaking that contradicts the available evidence of counsel’s actions.” Id.
(quoting Wiggins v. Smith, 539 U.S. 510, 526–27 (2003)). In other words, trial decisions
avowedly based on ignorance of governing legal principles “cannot be accorded the same
presumption of reasonableness as is accorded most strategic decisions.” Dixon v. Snyder, 266
F.3d 693, 703 (7th Cir. 2001). B. Strickland’s Second Prong Once a counsel’s deficiency is established, a defendant must also “affirmatively prove
prejudice[,]” i.e. that counsel’s performance “undermine[d] the reliability of the result of the
proceeding.” Strickland, 466 U.S. at 693. Prejudice is established if the defendant demonstrates
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“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A “reasonable probability” means one
“sufficient to undermine confidence in the outcome.” Id. A different outcome need not have
been “more likely than not.” Id. at 693. Still, the likelihood of a contrary outcome must have
been “substantial, not just conceivable.” Harrington, 562 U.S. at 112. For example, prejudice
can be established by counsel’s failure to lay the foundation for a jury instruction that “would
have given jurors a legal basis upon which to vote not guilty,” assuming that an acquittal in those
circumstances would have been “reasonably probable.” United States v. Nwoye, 2016 WL
3213038, *9 (D.C. Cir. June 10, 2016). And naturally, an adverse judgment with substantial
evidentiary support is less likely to have been tainted by deficient performance than one with
weaker grounding in the record. Strickland, 466 U.S. at 696. A defendant’s failure to make the
required showing on either Strickland prong defeats an ineffective-assistance claim, and the
order of analysis is at the court’s discretion. Id. at 697, 700. III. Analysis Gray-Burriss asserts five independent grounds for his ineffective-assistance claim: his
trial counsel’s (1) failure to lay a foundation for, and request, a jury instruction on the advice-of
counsel affirmative defense; (2) failure to call a forensic accountant to testify at trial; (3) failure
to prepare Gray-Burriss to testify on his own behalf; (4) allegedly fragmentary and ineffectual
closing argument; and (5) allegedly inadequate trial preparation (and resulting deficient performance).3 Because the record discloses no Sixth Amendment violation on any of these
3 In his motion, Gray-Burriss identified two other potential predicates for a Sixth Amendment violation: trial counsel’s (1) allegedly inadequate preparation and presentation of jury instructions, and (2) failure to interview material witnesses and present their testimony at trial. See Def.’s MNT 18–20, 29–34. Because Gray-Burriss has failed to present any evidence
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grounds under the exacting Strickland standard, the Court will deny Gray-Burriss’s motion for a
new trial. A. Failure to Lay a Foundation for and Request an Advice-of-Counsel Instruction The cornerstone of Gray-Burriss’s ineffective-assistance claim is his trial counsel’s
failure to secure the admission of witness testimony that he claims would have warranted a jury
instruction on an advice-of-counsel affirmative defense for Counts One through Four (all mail
fraud counts). A defendant is entitled to a jury instruction on this affirmative defense only if he
introduces evidence that “(1) he made full disclosure of all material facts to his attorney before
receiving the advice at issue; and (2) he relied in good faith on the counsel’s advice that his
course of conduct was legal.” United States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997).
The D.C. Circuit has cautioned that a “district court is required to give this instruction ‘if there is
any foundation in the evidence sufficient to bring the issue into the case.’” Id. (quoting United
States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988)). The disclosure prong is satisfied “[s]o
long as the primary facts which a lawyer would think pertinent are disclosed, or the client knows
the lawyer is aware of them.” Id. at 1309. A client need not actually adhere to his attorney’s
legal advice in order to have relied on it in good faith. Id. Nor must the attorney have furnished written instructions to her client for the affirmative defense to apply.4
Gray-Burriss contends that a statement from NASPSO’s former general counsel, Bruce
Goodman, would have laid much of the foundation required for an advice-of-counsel instruction.
that could conceivably afford relief on these grounds, the Court considers the arguments as withdrawn.
4 The case that the government cites in support of its contrary assertion, United States v. West, 392 F.3d 450 (D.C. Cir. 2004), neither says nor implies any such thing. See Gov’t’s Opp’n Def.’s MNT n.3 (citing id. at 457).
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His trial counsel, however, did not call Goodman at trial. Ms. Shaner instead attempted to
introduce Goodman’s statements through David Levinson, a former NASPSO attorney who was
present when Goodman allegedly told Department of Labor investigators that Goodman had told
Gray-Burriss that sponsoring unions could lawfully use pension-fund money to pay their
operating expenses as long as it was paid back with interest. See Def.’s Exs. for Evid. Hr’g, Ex.
12 (Trial Tr.) at 170:5–172:23. When Ms. Shaner asked Levinson at trial whether Goodman had
made any statements to Labor investigators, the government objected on hearsay grounds. Id. at
170:25. She then proffered to the Court that Levinson would have likely testified as follows:
“Bruce Goodman said I told him that he should do that, that that was just fine. . . . Goodman
said, yeah, I told him he could do that, and it was—turns out I was completely wrong. I’m not an
expert on ERISA law. I shouldn’t have told him that.” Id. at 172:4-13. Ms. Shaner argued that
Goodman’s statements were statements against interest and therefore admissible under Rule
804(b)(3) of the Federal Rules of Evidence. For that exception to apply though, the defense must
have laid the foundation that Goodman was unavailable to testify. Finding they did not, the
Court sustained the government’s hearsay objection. Id. at 174:4-7.
Gray-Burriss argues that his trial counsel behaved “inexcusably”—objectively
unreasonably—in failing to secure Goodman’s presence at trial. Def.’s MNT 14. The Court
disagrees, for several reasons. Most significantly, there would have been no evidentiary basis for
issuing an advice-of-counsel instruction even with Goodman’s testimony. When he testified at
the evidentiary hearing, Goodman recounted his specific legal advice to Gray-Burriss as follows:
“I advised him that I saw no impediment for the union to borrow monies [from the pension fund]
for [a particular Valentine’s Day] dance. . . . [but] that he should speak with another attorney,
and I specifically mentioned David Levinson.” Evid. Hr’g Tr. 141:4–11. Gray-Burriss
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remembers this advice more expansively; he testified that Goodman told him “that it was okay to
use the pension fund” for union expenses generally—“that as long as we returned the money
with interest, it wouldn’t be a problem.” Id. at 160:17–20. Regardless, Gray-Burriss has
identified no effort he made to return a dime of the “borrowed” funds—with or without
interest—before he agreed to do so in a 2007 consent decree with the union. The Court thus
cannot conclude that the defense would have been able to introduce evidence that Gray-Burriss
relied in good faith on whichever version of the legal advice Goodman might have given. In
addition, Gray-Burriss has also failed to show that he disclosed all material facts to Goodman
before the advice was rendered. Goodman testified that at the time he gave the advice, Gray
Burriss had failed to inform him that he had already withdrawn substantial sums of money from
the pension account. See id. at 90:22–91:4 (denying any knowledge that Gray-Burriss had
already begun commingling putative beneficiaries’ funds with his own). Because there would
have been “[no] foundation in the evidence sufficient to bring the issue into the case,” DeFries,
129 F.3d at 1308, trial counsel did not perform deficiently in failing to pursue an advice-of
counsel instruction. Nor is it substantially likely that calling Goodman would have resulted in
Gray-Burriss’s acquittal in the absence of such an instruction. Trial counsel’s failure to pursue
an advice-of-counsel instruction thus affords no basis for a new trial under Strickland.
Even assuming that Gray-Burriss had disclosed all material facts to Goodman and relied
in good faith on his advice, Gray-Burriss still could not satify either prong of Strickland—
objectively deficient performance and “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Declining to locate and call Goodman would have been a perfectly competent tactical decision
under the circumstances, even if no other avenues existed for the admission of his testimony.
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The Federal Rules of Evidence generally allow witnesses to be cross-examined about any
specific instances of prior conduct that are probative of their character for truthfulness or
untruthfulness. Fed. R. of Evid. 608(b). Subjecting Goodman to cross-examination would have
been a treacherous proposition: Soon before Gray-Burriss’s trial, he had lost his Maryland law
license for placing client funds in his personal account, failing to pay clients’ medical bills from
settlement proceeds that he held in trust, failing to maintain a client trust account, and failing to
keep required financial records. Gov’t’s Exs. for Evid. Hr’g, Exs. 7–9. These actions clearly
bear on Goodman’s trustworthiness; Ms. Shaner may have understandably wanted to
deemphasize any association between him, NASPSO, and Gray-Burriss.
Shaner’s testimony at the evidentiary hearing bears this out. She asserted that she
“considered a lot of things” in deciding whether Goodman would be a good witness, including
his recent disbarment, the contents of his 2009 Labor Department interview, and the extent to
which Gray-Burriss’s withdrawals from the pension account actually functioned as loans. Evid.
Hr’g Tr. 92:23. Although Christmas could not remember Goodman’s name, he too testified that
“we knew the government would question him about his disbarment.” Id. at 318:10–11. To be
sure, Shaner recalls believing that Goodman was unavailable during the critical months of 2012;
her investigator was evidently unable to locate him, so she stopped trying to reach him in July.
See id. at 121:18–23. But halting these efforts when she did was a perfectly reasonable decision
under the circumstances and in light of her limited resources. After the government produced its
likely impeachment materials, Shaner concluded that “I probably could not have used him
anyway.” Id. at 122:18–19. Accordingly, the Court cannot conclude that trial counsel’s abortive
investigation of Goodman’s whereabouts—and the decision not to pursue his testimony—
“undermine[d] the reliability of the result of the proceeding.” Strickland, 466 U.S. at 693.
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Defense counsel’s characterization of the evidence has also taken Rule 804’s statement
against-interest exception off the table. See Fed. R. Evid. 804(a)(5). The Court seriously doubts
whether Goodman’s relevant advice to Gray-Burriss—either the version Shaner proferred at trial,
or one consistent with Goodman’s own recollection—was sufficiently “contrary to [his]
proprietary or pecuniary interest” at the time he made the statement. Id. 804(b)(3)(A). Losing
one’s law license would certainly ensure the kind of pecuniary harm contemplated by the rule.
But Goodman’s alleged advice to Gray-Burriss played no part in his Maryland disbarment. See
Gov’t’s Exs. for Evid. Hr’g, Ex. 8 (Goodman’s Disbarment Order). Nor has Gray-Burriss made
any showing that (1) the one-time provision of inaccurate legal advice based on a mistaken
assumption is grounds for disbarment in Maryland (or can be a significant contributing factor),
(2) Labor Department investigators would likely have relayed his statement to the relevant
disciplinary body, and (3) that body might well have revoked Goodman’s law license as a result.
In sum, the failure to introduce Bruce Goodman’s statements at trial did not gravely
“undermine the proper functioning of the adversarial process.” Strickland, 466 U.S. at 686.
The Court thus declines to grant Gray-Burriss’s motion for a new trial on this ground. B. Failure to Call a Forensic Accountant to Testify at Trial Gray-Burriss next argues that his trial counsel were ineffective in failing to call a forensic
accountant as an expert to testify at trial to support his good-faith defense. Ms. Shaner had
retained an accountant, who contacted the government in September 2011 seeking to review
NASPSO’s financial records. Gov’t’s Mot. in Limine 2, ECF No. 147. The accountant declined
to continue indefinitely in the case without satisfactory compensation. In the months before trial,
the Court denied Gray-Burriss’s request for payment of an expert accountant at public expense,
and also granted the government’s motion to preclude the defense’s use of experts, because the
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deadline for disclosing expert witnesses had passed. See Def.’s Exs. for Evid Hr’g, Ex. 9 (Oct.
17, 2012 Order to Preclude Expert Witness).
Shaner testified quite critically regarding what she viewed as Christmas’s failure to
secure testimony from an expert forensic accountant. She answered affirmatively when asked
whether she viewed the lack of an expert as an impediment to going to trial. She expected such a
witness to testify that Gray-Burriss’s bookkeeping was “a big mess”—that “[t]his person who
was doing all these pieces of paper didn’t know their foot from their nose and just didn’t know
what they were doing.” Evid. Hr’g Tr. 42:16–20. In other words, an expert might have
suggested that Gray-Burriss harbored “a good faith belief that such expenditures benefited
NASPSO”—an “honesty of purpose and freedom from the intention to defraud.” Final Jury
Instrs. 20, ECF No. 171; see also Evid. Hr’g Tr. 42:21–24 (expert accountant’s testimony could
have indicated “that Mr. Burriss tried to comply with these instructions and the regulations from
the Department of Labor, but this recordkeeping was faulty[.]”)
To be sure, “[c]riminal cases will arise where the only reasonable and available defense
strategy requires consultation with experts or introduction of expert evidence.” Harrington, 562
U.S. at 106. This is not one of those cases. As government counsel demonstrated at the
evidentiary hearing, any expert accountant testifying on Gray-Burriss’s behalf would have
endured a blistering cross-examination about the details of specific questionable transactions.
See id. at 109:6–110:22 (government would have asked the expert accountant if he or she
believed an individual could have a “good-faith” basis for destroying records, failing to file tax
returns, or purchasing an apartment in Las Vegas, all of which the evidence revealed Gray
Burriss had done). A decision not to call such an expert then—even if Gray-Burriss had
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qualified for CJA funding—would have been a perfectly reasonable trial strategy, considering
how severely it might have backfired.
In addition, Gray-Burriss admitted at the evidentiary hearing that Shaner informed him
that he could file an affidavit in support of his claimed financial need for use of CJA funds to
hire a forensic accountant. See Evid. Hr’g Tr. 182:4–17. He never did. Nor, evidently, did he
view the private retention of an accountant as cost-justified, since no accountant worked on the
case after Christmas entered his appearance. See id. at 319:7–12 (Christmas indicating that
Gray-Burriss “did not offer to pay” for an accountant at any point). While his counsel perhaps
could have done more to assist Gray-Burriss in retaining an expert forensic accountant, their
performance was hardly deficient because Gray-Burriss knew what needed to be done but did not
take the necessary steps to obtain one. See id. at 114:19–115:3; 278:19–21 (“MR. CHRISTMAS:
And I did talk to [Gray-Burriss] about him having to pay [for a forensic accountant] because—I
think I talked with Ms. Shaner, and she said the Court would not pay it.”). The Court also doubts
whether an accountant’s testimony would have resulted in Gray-Burriss’s acquittal on the
relevant counts, given the nature and quantum of evidence against him and the fact that his
attorneys had pressed (without success) this “sloppiness” argument themselves in support of his
good-faith defense. For these reasons, trial counsel’s failure to secure the testimony of an expert
forensic accountant fails to satisfy Strickland’s standards for proving ineffective assistance of
counsel. C. Failing to Prepare Gray-Burriss to Testify as a Witness on His Own Behalf Gray-Burriss next argues that his trial counsel were constitutionally ineffective by failing
to adequately prepare him to testify, resulting in a less-than-fully-informed waiver of that right.
He maintains that his counsel never conducted a moot cross-examination or even initiated “a
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discussion of the positives and negatives of his potential testimony.” Def.’s MNT 38. Had he
testified, he insists he could have (1) “explained that he was working around the clock on behalf
of the union and was only interested in the wellbeing of the union and its members,” (2)
“explained that he did not intend to wrongfully obtain union funds,” (3) “offered direct testimony
that his actions may have been sloppy, ill-conceived, or misguided, but were not the product of a
criminal intent,” and (4) clarified “that he was acting in response to the advice of counsel.” Id.
The Court finds neither Strickland prong satisfied on this point. For starters, the Court
deems credible the independent testimony of both Shaner and Christmas that they did discuss
with Gray-Burriss the advantages and disadvantages of testifying on his own behalf. See Evid.
Hr’g Tr. 118:23–25 (Examination by government Counsel) (“MS. SHANER: I advised him not to
testify. [Q]: Okay. And did you go over the pros and cons with him? MS. SHANER: Yes.”); id.
at 61:11–13 (“MS. SHANER: I do believe we talked throughout the case as to what he would
testify to, if he would testify, and whether or not it would be a good idea.”); id. at 297:7–10
(Examination by Gray-Burriss’s counsel) (“[Q]: So you didn’t prepare Mr. Burriss either for his
direct or what you anticipated the cross would be? MR. CHRISTMAS: I can’t say that. We talked
with him extensively about it. He asked questions. We answered questions.”). Gray-Burriss
acknowledged as much at the evidentiary hearing, testifying that “[Christmas] figured that the
government was going to just rake me over the coals” on cross-examination. Id. at 177:12–13.
Shaner also discouraged Gray-Burriss from testifying, “based on all his admissions in the civil
[case]” that could be used against him. Id. at 60:5. In these circumstances, trial counsel acted
“reasonabl[y] under prevailing professional norms” in declining to expend time and resources on
mock examinations that they believed would be fruitless. Strickland, 466 U.S. at 688. Such
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“strategic choices made after thorough investigation of law and facts relevant to plausible
options” are “virtually unchallengeable.” Id. at 690.
The Court also finds it highly unlikely that testimony from Gray-Burriss would have
made an acquittal on one or more counts substantially more likely. Shaner affirmed, for
example, that she advised Gray-Burriss to accept a plea because of the “overwhelming evidence” against him. Evid. Hr’g Tr. 76:8. 5 And Christmas independently determined that certain
evidence was particularly “damning.” Id. Based on the magnitude of the evidence against Gray
Burriss, and having witnessed his recent cross-examination by the same government counsel
who tried the case, the Court concludes that he cannot satisfy Strickland’s prejudice prong. The
Court therefore declines to award Gray-Burriss a new trial merely because his trial counsel did
not subject him to a moot examination. D. Presentation of Closing Argument Gray-Burriss also contends that both counsel were constitutionally ineffective in
preparing for and presenting the closing argument at trial. Mr. Christmas gave the closing,
which he prefaced as follows: “It was decided while you were on your break that I was going to
give closing arguments because Ms. Shaner’s voice is going. So I’m not going to be as
organized as the government, . . . so bear with me if you would[.]” Def.’s MNT 40. Gray
Burriss points to Christmas’s introductory comment as an early indication that counsel was not
prepared. Shaner disputes this account, stating that they had agreed beforehand that Christmas
would give the closing argument. She further opined that she would not have given such a
5 Gray-Burriss formally waived his attorney-client privilege with respect to trial counsel in anticipation of the evidentiary hearing. May 1, 2016 Notice of Waiver of Attorney-Client Privilege with Respect to Trial Counsel, ECF No. 281.
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“limited,” “folksy southern gentleman kind of closing[,]” but rather would have “discussed the
elements . . . of each charge and gone through it and discussed specific proofs.” Id. at 62:17–21.
But regardless of who was supposed to do the closing, Shaner agreed that Christmas’s closing
touched on both major defense themes—that Gray-Burriss had been the target of a vindictive
prosecution, and that he was a sloppy record-keeper, but no criminal. See id. at 85:3–14,
The Sixth Amendment accommodates a vast range of advocacy styles. See Strickland,
466 U.S. at 689 (“There are countless ways to provide effective assistance in any given case.”).
While there is no question that Christmas’s closing could have been more organized or
comprehensive, that is often the case when reviewing closing arguments retrospectively. And
Gray-Burriss has identified no critical argument or defense theme that Christimas failed to raise
in his closing argument. In light of Strickland’s acknowledged deference for varying advocacy
styles, it would require a dramatic extension of Strickland to deem Christmas’s performance
objectively deficient. Counsel’s presentation of the closing argument therefore provides no basis
for granting Gray-Burriss’s motion. E. Counsel’s Trial Preparation (and Resulting Performance) Finally, Gray-Burriss argues that both trial counsel were generally “ineffective
throughout the proceedings” because they were “admittedly not prepared to go to trial and were
overwhelmed by the charges presented in the indictment.” Def.’s MNT 20. He identifies a
number of troubling circumstances regarding his attorneys’ readiness for trial. Most strikingly,
Mr. Christmas stated on October 17, 2012 that because of his caseload, “a serious injustice will
result if the Defendant is ‘forced’ to trial on November 2, 2012.” Def.’s Renewed Mot. Cont.
Trial 2, ECF No. 141. Christmas avowedly “went into this relationship [with Ms. Shaner] . . .
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with the concept I’m going to bully this lawyer and I think I did.” Def.’s Exs. for Evid. Hr’g, Ex.
13 at 124:9-12. Christmas’s failure to consult with Shaner—regardless of what caused it—
prevented the defense from working effectively as a team, which meant that Christmas was
unable to capitalize on Shaner’s familiarity with the case. And both attorneys acknowledged
their rather limited experience in the field of labor law. Id. at 10:12–15, 262:2–24. The
evidentiary hearing furnished additional support for Gray-Burriss’s concern. Shaner answered
“no” when asked whether she believed that Christmas was ready to go to trial in November
2012. Evid. Hr’g Tr. 38:3. Christmas’s failure to consult with Shaner left her “very
uncomfortable,” for she “did not feel he’d even thought about this case.” Id. at 38:7–8.
But the Sixth Amendment does not demand perfection. Gray-Burriss identifies no
plausible bases for a successful Strickland claim—no objectively deficient performance, no
prejudice—not already subsumed within his other, more narrowly crafted arguments. A lawyer
can perform proficiently despite qualms about her method of preparation, even if her peers
would have pursued a different course. See Harrington v. Richter, 562 U.S. 86, 88 (2011) (“The
question is whether an attorney’s representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or most common custom”). The
Court thus declines to grant a new trial on account of trial counsel’s allegedly inadequate preparation.6
6 Although Gray-Burriss failed to argue that the various grounds for ineffective assistance of counsel should be analyzed together under Strickland, the Court will briefly address it. Since the Supreme Court established a constitutional right to effective counsel, the Circuits have split as to whether the cumulative error doctrine applies when considering individual ineffective-assistance-of-counsel claims, i.e. if independent errors should be assessed collectively as well as individually when determining if counsel were constitutionally ineffective. See, e.g., Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) (cumulative error doctrine does not apply); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (individual counsel errors should
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* * *
Apart from raising ineffective-assistance-of-counsel claims, Gray-Burriss also challenges
the district court’s exclusion of a July 2009 employment contract—that purportedly increased his
annual salary to $75,000—at sentencing. Def.’s Exs. for Evid. Hr’g, Ex. 16 (“2009 Employment
Contract”), at 1. The D.C. Circuit held that the district court erred in excluding the contract from
trial, but given the overwhelming amount of evidence of embezzlement, “the error was harmless
with respect to Gray-Burriss’s conviction[.]” Gray-Burriss, 791 F.3d at 58. In addition to
culpability, however, the 2009 contract also bears on the extent of Gray-Burriss’s liability for
embezzlement under Count 8 of the second superseding indictment because he was convicted of
stealing $37,641.71 in the form of unauthorized salary payments between December 2007 and
March 2011. See Gov’t’s Opp’n Def.’s Supplemental Post-Evidentiary Hr’g Br., Ex. A (Verdict
Form), at 7. If Gray-Burriss was entitled to a higher salary, then some of those payments
(roughly $27,000 between 2009 and 2011) would have been authorized and would not qualify as
embezzlement. Gray-Burriss, 791 F.3d at 58; see also Gov’t’s Opp’n Def.’s MNT 12.
Accordingly, because it was less “confident that exclusion of the 2009 contract was harmless
with respect to Gray-Burriss’s sentence[,]” the Circuit remanded the issue so that the district
court could determine if consideration of the contract at sentencing would have lowered Gray
Burriss’s restitution and forfeiture obligations. Id. And if the district court were to credit the
2009 employment contract and conclude that the restitution amount should be less, then it would
also be assessed cumulatively); see also Forrest v. Florida Dep’t of Corr., 342 F. App’x 560, 564 (11th Cir. 2009) (“The Supreme Court has not directly addressed the applicability of the cumulative error doctrine in the context of an ineffective assistance of counsel claim.”). While the D.C. Circuit has not yet had an occasion to weigh in on this issue, it has no bearing on the outcome of this case because the Court concludes that the examples of counsel errors presented by Gray-Burriss when considered together still do not “f[all] below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88.
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also be free to revisit whether the “lower loss finding” should affect the length of Gray-Burriss’s incarceration. Id. at 59.7
The government contends that the July 2009 employment contract does not affect Gray
Burriss’s restitution obligations because the contract’s signatories lacked the authority to
increase Gray-Burriss’s salary. To support its argument, the governments point to testimony by
two NAPSO board members who testified that after the NAPSO Executive Board had declined
to increase Gray-Burriss’s salary, he resorted to asking three NAPSO members—who did not
belong to the board—to sign it. Gov’t’s Opp’n Def.’s MNT 10; see also Evid. Hr’g 361:13–
364:5. Despite having opportunities both before and after the evidentiary hearing, Gray-Burriss
has failed to rebut the government’s evidence or to offer any evidence to support the legitimacy
of the 2009 employment contract, specifically the basis of its signatories’ authority. See Evid.
Hr’g 367:19–368:3. Therefore, after examining the evidence presented at the evidentiary hearing
and through post-evidentiary hearing briefing, the Court is unable to conclude that the
employment contract “validly authorize[d] an increase in salary” and would thus “lead it to a
different conclusion with respect to the restitution and forfeiture components of Gray-Burriss’ sentence.” Gray-Burriss, 791 F.3d at 59.8
Outcome: For the foregoing reasons, the Court will deny Gray-Burriss’s motion for a new trial, or in the alternative for resentencing, and uphold his restitution obligation and term of incarceration.