MEDIA

June 13, 2008

On Ineffective Assistance, Child Abduction Remedies Act

Published in: New York Law Journal | volume 239

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge John Gleeson granted a habeas petition based on ineffectiveness of appellate counsel. Judge Arthur D. Spatt held that plaintiff was not bound by an oral agreement with the government in settlement of his personal injury claims. Judge Eric N. Vitaliano denied a father’s petition under the Hague Convention to return his son to Colombia. And Judge Dora L. Irizarry rejected a Sixth Amendment challenge to the certification of business records under 18 U.S.C. §3505.

Ineffective Assistance

In Ramchair v. Conway, 04 CV 4241 (EDNY, April 4, 2008), Judge Gleeson found that appellate counsel’s failure to argue that the trial court should have granted a mistrial required habeas relief.

Petitioner filed the instant habeas petition to contest his state-court robbery conviction. This case has had a long and tortuous procedural history.

In short, petitioner’s conviction rested on a disputed eyewitness identification. A full seven weeks after the robbery, petitioner was identified in a highly suggestive line-up. Among other things, petitioner was the only Guyanese Indian in the line-up even though the victim, a cab driver, had found that particular ethnicity to be an important part of his identification. Mr. Latimer, petitioner’s counsel at the line-up and later at three trials, had good reason not to object to the line-up at the time, despite its unfairness.

At the third trial the prosecutor pulled a ‘dirty trick.’ For the first time, she presented evidence of Mr. Latimer’s failure to object contemporaneously to the fairness of the line-up. That surprise tactic created a conflict of interest by making Mr. Latimer an essential witness to the main factual dispute. The trial court denied Mr. Latimer’s request to testify and his motion for a mistrial.

The prosecutor ‘capped off her case with outrageous and prejudicial accusations that [Mr.] Latimer was a racist.’ Slip op. 3.

Appellate counsel argued that it was error to preclude Mr. Latimer from testifying on his client’s behalf in response to the evidence of Mr. Latimer’s silence at the line-up. The state trial and appellate courts blamed Mr. Latimer for never asking to withdraw as trial counsel in order to testify.

As Judge Gleeson observed, a lawyer is prohibited from being both an advocate and a witness on a significant issue in the same jury trial. It was thus not error to keep [Mr.] Latimer off the witness stand. The error was the denial of his alternative motion for a mistrial. The failure to raise that claim on appeal constituted ineffective assistance of counsel. (Slip op. 4).

In Judge Gleeson’s view, appellate counsel’s omission was a ‘mistake,’ not a ‘strategy.’ Nor did setting forth ‘substantive grounds’ for relief amount to asking for it. The key argument here was not obscured. It was simply not made. Slip op. 9-10.

Oral Settlement Agreements

In Collick v. United States, 05 CV 5968 (April 28, 2008), Judge Spatt denied the government’s motion to enforce an oral settlement agreement in a personal injury case brought under the Federal Tort Claims Act.

Plaintiff alleged in his complaint that the negligent operation of a U.S. Postal Service vehicle caused him to sustain injuries while riding his bicycle on Montauk Highway. In January 2007 his counsel obtained a 90-day extension of discovery due to plaintiff’s incarceration in a pending state criminal matter. For the next few months counsel for both sides engaged in settlement discussions with plaintiff’s authorization. In March 2007 plaintiff’s lawyer orally accepted a settlement offer of $22,500. On March 15, the government mailed the settlement documents to plaintiff’s counsel, who forwarded them to plaintiff for his review and signature.

On March 29, 2007, the government submitted a letter on behalf of both parties to Magistrate Judge A. Kathleen Tomlinson, requesting an adjournment of a scheduled telephone conference ‘pending consummation of settlement.’ The letter stated that ‘the parties have agreed to settle this FTCA action.’

Later, plaintiff’s counsel advised the government that plaintiff had repudiated his prior acceptance on advice from a prison colleague. The government then sought to enforce the settlement. In response, plaintiff explained that his incarceration had prevented adequate communication with counsel prior to the oral settlement agreement. Plaintiff also asserted that, after receiving the settlement documents, he learned that his deposition and medical examinations could proceed even during his incarceration. This had prompted plaintiff to tell his attorney he would not settle for ‘mere crumbs that are being offered . . . .’

In declining to enforce the settlement agreement, Judge Spatt pointed to a number of circumstances:

  1. Certain language in the settlement documents indicate that the parties did not intend to bind themselves until the papers were executed.
  2. There was no partial performance of the agreement such as any payment to plaintiff.
  3. Though the parties had orally agreed to the material terms of the settlement, it is unclear whether they had ever agreed to a provision contained in the settlement papers authorizing public disclosure of the agreement.
  4. Despite the relative simplicity of the settlement, the agreement should have been in writing or set forth on the record in court.
  5. Plaintiff’s incarceration led to his uninformed assent to the $22,500 settlement. The oral agreement should therefore not be enforced as a matter of ‘fundamental fairness.’ Slip op. 11.

Child Abduction:  International Child Abduction Remedies Act

In Blanco v. Avila, 07 CV 5136 (EDNY, May 6, 2008), Judge Vitaliano denied a Colombian father’s petition for return of his child to Colombia brought under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §11601, et seq.

Ms. Avila, the mother, brought her son (ABA) from Colombia to the United States in November 2006 and retained him here beyond his scheduled return date, without the consent of Mr. Blanco, the father. Following a consolidated preliminary and permanent injunction hearing, during which Mr. Blanco testified via live video link from Colombia and Judge Vitaliano interviewed the child in camera, the court denied the injunction, dismissed the petition and ordered entry of judgment for the mother.

An initial custody agreement in Colombia provided for joint custody. Anticipating the mother’s relocation to the United States, the parties entered into a new custody agreement endorsed by the Colombian family court. The agreement provided that ABA should live in Colombia, but visit his mother in the United States between Nov. 15 and Feb. 15. If ABA advised his father that he wished to live in the United States with his mother, he would be permitted to do so after a psychological evaluation under the auspices of the Colombian child welfare agency in the town where he lived.

ABA stayed with his father in Colombia from the time his mother left Colombia in July 2006 until November 2006, when he went to the United States to visit her. Mr. Blanco expected him to return to Colombia in February 2007, but he did not return. In the interim, his mother sought to have the Colombian child welfare agency change the conditions of the agreement, but was unable to accomplish that from the United States. The father filed a Request for Return of the Child with the Central Authority of Colombia in April 2007, and the instant petition in December 2007.

Under the Hague Convention, the court may address only the wrongful removal or retention of the child. It may not consider the ‘best interests of the child’ as in a state custody case. Judge Vitaliano found that Mr. Blanco had made a prima facie case of wrongful retention. First, Colombia was the child’s habitual or mutually intended residence and he had been removed from Colombia. Nor had he ‘become wholly acclimatized to his new environment such that his habitual residence had shifted to the United States.’ Slip op. 9. Second, Mr. Blanco was exercising rights of custody when Ms. Avila retained the child in the United States. Third, the retention by Ms. Avila was a breach of Mr. Blanco’s custody rights.

Judge Vitaliano turned next to Ms. Avila’s defenses under the Hague Convention. Ms. Avila presented no evidence of acquiescence by Mr. Blanco. Ms. Avila also did not establish by clear and convincing evidence that returning the child to Colombia would ‘create a grave risk of physical or psychological harm.’ Slip op. 12. Even though there was testimony that Mr. Blanco abused alcohol, there was no evidence that he ever physically abused ABA.

In connection with the ‘age and maturity’ defense, Judge Vitaliano interviewed ABA in chambers outside the presence of the parties and their counsel. The court found the child to be ‘bright, articulate and mature well-beyond what would reasonably be expected of a 13-year-old boy.’ Slip op. 16. ABA understood the key issues and said that in preparation for the interview he had only been told to answer the court’s questions truthfully. ABA testified with independent reasoning and thoughtful consideration that he ‘honestly and free from any undue family pressure does not want to return to Colombia.’ Slip op. 18. The court found this testimony to be the child’s honest opinion and not the product of coaching by his parents. ABA’s explanation of why he wanted to stay in the United States, as a place offering ‘far better opportunities in life,’ also impressed Judge Vitaliano. The court also found compelling ABA’s ‘correct understanding that his subsequent return to America could not be guaranteed. ‘ That factor in particular, coupled with ABA’s demonstrable age and maturity, the bases, breadth, depth and perceptive nature of his objection to his return to Colombia, including the effect such a result would have on his relationship with each parent, meets the narrow exception created by the Hague Convention’s unnumbered defense to repatriation. Slip op. 20.

Finally, the child’s return to Colombia would not be necessary to further the goals of the Hague Convention, because there was nothing in the record to show that Ms. Avila retained the child in New York because she believed she would have a more favorable forum for a custody battle. Slip op. 20-21.

Certification of Records after ‘Crawford’

In United States v. Qualls, 07 CR 14 (EDNY, May 19, 2008), Judge Irizarry, rejecting defendant’s interpretation of Crawford v. Washington, 541 U.S. 36 (2004), held that certification of business records under 18 U.S.C. §3505 did not violate his Sixth Amendment right of confrontation.

The government sought to introduce into evidence foreign business records from a London-based currency and derivatives trading firm, and establish the authenticity of the records by a certification from the firm’s head of compliance under 18 U.S.C. §3505. Defendant sought an order either requiring the government to produce a live witness to provide foundational support for admission of the records or permitting the defendant to depose one of the firm’s employees.

In Crawford, the Supreme Court held that ‘the admission of testimonial hearsay against an accused in a criminal case violates the Confrontation Clause, ‘unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the defendant regarding the statement." Slip op. 4-5.

As Judge Irizarry noted, the admission of nontestimonial records such as business records survivedCrawford. Defendant argued that §3505 certifications fit within the definition of ‘testimonial’ hearsay under Crawford, because they were prepared by government officers in anticipation of trial. The U.S. Court of Appeals for the Second Circuit has not yet ruled on the issue, but all circuits that have addressed challenges to §3505 certification have rejected them. As Judge Irizarry concluded, authentication of foreign business records pursuant to §3505 does not violate the Confrontation Clause, because business records are not testimonial. Nor did the preparation of the certification in anticipation of trial create the abusive admission of testimonial hearsay at issue in Crawford. Indeed, a §3505 certification does not ‘contain any information about defendants, the relative merits of the charges against defendants, or any factual support for the charges.’ Slip op. 8. Instead, the certification ‘simply attest[ed] to the reliability of the ‘procedures necessary to create a business record.” Slip op. 8.

Judge Irizarry also discussed the policy reasons for allowing admission of business records through §3505 certification. In complex cases where business records come from numerous sources, including foreign sources, requiring a live witness or deposition for the admission of each business record would ‘dramatically decrease judicial efficiency at minimal or no gain to the truth-seeking process.’ Slip op. 7. This is particularly true in light of the global economy and the need to facilitate international financial transactions. Slip op. 7-8.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the June 13, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]