November 13, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

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 Jack B. Weinstein held that an improper contingency fee agreement in a state criminal case had no "adverse effect" warranting habeas relief. Judge Arthur D. Spatt granted a habeas petition based on trial counsel's failure to investigate and use important available evidence. Magistrate Judge E. Thomas Boyle declined to compel production of handwritten notes taken by a non-attorney employee of defendant to help defense counsel at a deposition. And Judge Nicholas G. Garaufis denied a pro se plaintiff's belated application for costs and fees relating to his successful challenge to a removal order.

Contingent 'Bonus'

In Garguilio v. Heath, 13 CV 701 (EDNY, Aug. 1, 2013), Judge Weinstein denied a habeas corpus petition where petitioner had agreed to pay one of his trial lawyers a financial bonus in the event of a complete acquittal. While this arrangement created an actual conflict of interest, the state court below reasonably concluded that the conflict did not adversely affect counsel's performance.

After a jury trial in Kings County, petitioner was convicted of murder in the second degree. He is serving a prison term of 15 years to life. The evidence showed that in 2004 petitioner had killed his brother-in-law, Preston Geritano, during a fight that began outside a Brooklyn restaurant. Geritano had previously, and repeatedly, threatened to kill petitioner. At one point in the fight, petitioner dragged Geritano from a car and stabbed him many times.

The jury received instructions on (1) second-degree murder, (2) the lesser crimes of first- and second-degree manslaughter, and (3) self-defense. Only second-degree murder required a finding of intent to kill. Petitioner's two defense counsel — Ronald Aiello, now deceased, and Albert Brackley — discussed but did not pursue the defense of extreme emotional disturbance, a mitigating factor that would convert murder in the second degree into manslaughter in the first degree.

Petitioner's argument here, and in a state Section 440.10 proceeding, was that his fee arrangement with Aiello, which included a $75,000 bonus for an acquittal on all counts, caused Aiello to forgo an extreme emotional disturbance defense. Had that defense succeeded, there would have been a conviction for a lesser offense — and no bonus. After an evidentiary hearing, the state court found that the bonus arrangement did create a conflict of interest but prejudice was not sufficiently shown to establish ineffective assistance of counsel under federal or state law.

Judge Weinstein saw no basis to grant habeas corpus under the high standards of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §2254. The contingency fee arrangement, Weinstein stated, "presents a classic case of an actual conflict of interest." Slip op. 13. Nevertheless, petitioner failed to show here that the state court's finding of no "adverse effect" was unreasonable.

On the one hand, the state court plausibly found that Aiello was "hostile" to the suggestion of a "mental" defense. "And there was some color to the emotional disturbance argument. Since the deceased Geritano had been goading [petitioner] with threats of harm, arguably [petitioner] stabbed his tormentor repeatedly and uncontrollably because he suddenly cracked after a final threat." Slip op. 15-16.

On the other hand, no constitutional error occurred when the state court concluded that the bonus did not motivate Aiello's opposition to the extreme emotional disturbance defense. As Weinstein observed, Aiello did not pursue "primarily an all-or-nothing strategy: the first-and second-degree manslaughter charges would not have resulted in a bonus and yet were advocated by counsel — or, at least unopposed by Aiello." Slip op. 15. This course of action indicates that Aiello's decisions were based on trial strategy rather than his own financial gain.

The state court also reasonably saw legitimate explanations for such a strategy — such as a concern not to overwhelm the jury with alternative defenses. "Aiello and his co-counsel were already arguing for a conviction on the lesser charges of first- and second-degree manslaughter, both premised on a lack of intent to kill, as well as self-defense." Slip op. 15.

Yet the bonus arrangement was problematic, a conflict existed, and petitioner's argument has merit. The court therefore granted a certificate of appealability. Slip op. 17.

Failure to Supervise

In Green v. Lee, 12 CV 5796 (EDNY, Aug. 12, 2013), Judge Spatt conditionally granted petitioner's motion for a writ of habeas corpus unless the state afforded him a new trial within 90 days.

In 2007 petitioner was indicted by a Suffolk County grand jury on 10 counts related to the alleged sexual molestation of his granddaughter and four of her friends. Although the alleged crimes were committed in 1998, 1999, 2001 and 2003, the principal complainant (B.M.) did not come forward until 2006. Petitioner denied that any abuse occurred and denied that he knew B.M. during the key period, 1998-99. B.M. testified that she and petitioner's granddaughter spent every weekend at petitioner's house in 1998-1999.

In addition to B.M.'s testimony describing the alleged abuse, the main evidence against petitioner included a photograph of the two girls in Halloween costumes on petitioner's front porch, alleged by B.M. to have been taken in 1998, and a photograph taken in Coney Island with "6/98" printed on the photo jacket. The prosecution relied on the time line set forth by B.M., while the defense denied that the girls knew each other during the 1998-1999 period. After a four-week trial, the jury found petitioner guilty of seven counts and acquitted him of three counts.

New counsel then contacted a private investigator who previously had been retained by trial counsel, but never contacted for trial. The investigator determined that (1) the film in the Coney Island photograph was not manufactured until several years after the date the prosecutor represented it had been taken; (2) the sweatshirt worn in the Halloween photograph displayed a logo of a company that did not do business until three years after the date testified to at trial; (3) an episode of Law and Order — cited by B.M. to justify her delay in reporting the abuse — was not shown until months after the date B.M. testified she viewed it; and (4) a toy petitioner allegedly gave to B.M. in 1999 did not exist until 2001. Trial counsel conceded that this information would have proved indispensable to petitioner's defense


Based on this information, new counsel made a post-trial motion to set aside the verdict, which the county court denied, holding "that it could not adjudicate claims of ineffective assistance of counsel resting on matters not appearing in the record." Slip op. 20. Following sentencing, new counsel made a motion to vacate the conviction, claiming that trial counsel's failure to investigate the evidence had deprived petitioner of effective assistance of counsel, and that the prosecution knew or should have known of the false nature of the evidence it offered. That motion was also denied, and the conviction was affirmed on appeal.

Petitioner alleged here that his trial counsel's failure to investigate the four pieces of evidence described above violated his Sixth Amendment rights. Spatt agreed that trial counsel's failure to investigate was not reasonable. Petitioner had consistently maintained that he could not have committed some of the offenses because he had not met his accusers during the alleged years of abuse. Moreover, the relevant information would have been easy to obtain within 24 hours by the same investigator who had been hired prior to trial, but not used. As the court observed, "trial counsel failed in his duty to present multiple material facts and exhibits, which…were easily obtainable and, with 'reasonable probability,' would have resulted in an acquittal." Slip op. 32, 36.

Finally, applying the Antiterrorism and Effective Death Penalty Act of 1996, Spatt concluded that the state court's decision rejecting the ineffective assistance of counsel claim was an unreasonable application of both the performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668 (1994). Thus, Spatt granted the habeas petition as to the counts relating to alleged abuse in 1998-1999.

Because of the spillover effect on the remaining counts, habeas relief was appropriate for those counts as well. The evidence was inflammatory, the primary victim was the same and the prosecution case would have been damaged by the undermining of B.M.'s credibility and parallel bolstering of petitioner's credibility. Slip op. 39-40.

Non-Attorney Notes

In Brown v. Northrop Grumman, 12 CV 1488 (EDNY, July 22, 2013), Magistrate Judge Boyle denied a motion to compel the production of notes taken by a non-attorney at deposition.

Plaintiff Sandra Brown brought federal and state claims for gender discrimination, retaliation, retaliatory discharge and perceived disability discrimination after being terminated under a "downsizing" program by Northrop Grumman. Brown had been employed as a software engineer, and claimed the "downsizing" was a pretext to replace her with a less-qualified male employee.

Upon order of Judge Joanna Seybert, Thomas Cunningham, also employed by defendant as a software engineer, attended plaintiff's deposition as defendant's representative under Local Rule 30.3. Plaintiff moved to compel production of handwritten notes that Cunningham took at the first day of plaintiff's deposition.

Boyle rejected plaintiff's argument that, because Cunningham testified he took the notes "of his own volition," they were not "work product" entitled to qualified protection under Fed. R. Civ. P. 26(b)(3). While Cunningham's testimony on the subject was inconsistent, the affidavit of defendant's counsel confirmed that she had asked Cunningham to take the notes to help her in trial preparation and questioning of the witness. Seybert's order allowing Cunningham to attend was "in part due to the assistance he would provide to defendant's counsel." Slip Op. 4.

Plaintiff's attempt to establish "substantial need," entitling her to work product under Rule 26(b)(3), was also rejected. Her argument that Cunningham's inability to recall all of what he described as inaccuracies in plaintiff's deposition without the notes was undermined by his identification of three specific inaccuracies and, in any event, "even where a party has demonstrated a substantial need for the documents at issue, courts must still shield from disclosure opinion work product" of the kind in Cunningham's first-day notes. Slip Op. 5.

Defendant's voluntary production of Cunningham's notes from the second day of plaintiff's deposition did not waive work product protection because, in contrast to the first-day notes, those taken on the second day were limited to a factual recitation and did not contain analysis or reveal trial strategy. Slip Op. 6.

Attorney Fees

In Aziz v. Attorney General of the United States, 11 CV 3021 (EDNY, Aug. 6, 2013), Judge Garaufis dismissed pro se plaintiff's action for an award of attorney fees in connection with his successful 2004 petition challenging his order of deportation and seeking permission to apply for cancellation of removal.

Plaintiff was a lawful permanent resident of the United States. In 1996, he was convicted of firearm-related criminal offenses. A removal order was entered in 1998 and affirmed by the Board of Immigration Appeals (BIA) in 2002. Plaintiff was represented by counsel during a portion of these proceedings.

In 2004 Garaufis granted plaintiff's petition allowing him to apply to the immigration court for cancellation of removal. Plaintiff was represented by counsel in connection with his 2004 petition.

The immigration court later denied the petition for cancellation of removal, the BIA affirmed the decision in May 2008, and plaintiff has been subject to a final order of removal since then. A subsequent habeas corpus petition, motion to stay removal and motion for appointment of counsel were denied by the Middle District of Pennsylvania.

Plaintiff, pro se, sought fees and costs incurred in connection with his successful petition challenging the order of deportation. For a claimant to be eligible for a fee award under the Equal Access to Justice Act, (1) the claimant must be a prevailing party; (2) the government's position must not have been "substantially justified"; and (3) no special circumstances make an award unjust. A party must file an application within 30 days of final judgment.

Judgment was entered on May 6, 2004, and became final on July 5, 2004. Plaintiff's application was due 30 days later on Aug. 4, 2004, but was not filed until May 20, 2013—nine years after the deadline. This delay may be excused if there is some basis for equitable tolling, but a litigant must show that he has diligently pursued his rights and extraordinary circumstances stood in the way.

Plaintiff asserted that his action was untimely because his counsel was deceptive or fraudulent and he had just learned about the availability of fees under the EAJA, but he failed to allege facts sufficient to explain his attorney's purported deception. Garaufis therefore denied plaintiff's application as untimely.

In deference to plaintiff's pro se status, the court allowed him the opportunity to amend his complaint to provide a factual basis for equitable tolling of the deadline. Because plaintiff had not shown that his claim was "likely to be of substance," Garaufis also denied without prejudice his request for appointment of pro bono counsel.

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 September 13, 2013, issue of the New York Law Journal.  Copyright © 2013 ALM Properties, Inc.  All rights reserved.  Further duplication without permission is prohibited.]