No Egregious Circumstance

The United States Court of Appeals for the Second Circuit affirmed a criminal conviction, rejecting a number of contentions including ineffective assistance of counsel as raised on direct appeal.

The crime

This is an appeal by two fiduciaries—Defendants-Appellants Kenneth Wynder, Jr., and Andrew Brown—who were convicted for their roles in improperly withdrawing hundreds of thousands of dollars from a retirement fund they administered for the Law Enforcement Employees Benevolent Association (“LEEBA”). After a one-week jury trial in the United States District Court for the Southern District of New York (Castel, J.), Brown and Wynder were convicted of wire fraud and conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349. Wynder was also convicted of conspiracy to defraud the United States, 18 U.S.C. § 371, and four counts of tax evasion, 26 U.S.C. § 7201.

Claim of ineffective assistance

Wynder alleges that his principal trial counsel, George Goltzer, was ineffective because he was suffering from Creutzfeldt-Jakob Disease (“CJD”). CJD is a fatal, fast-moving neurodegenerative disease. Wynder claims that the timeline for Goltzer’s illness aligned with his trial. During jury selection in March 2023, Goltzer collapsed and was taken to the hospital. In August, just two months after the verdict, Goltzer withdrew as counsel due to his deteriorating health. He died in December, a few weeks before Wynder’s sentencing.  Wynder argues that Goltzer’s disease per se deprived him of effective assistance of counsel and a fair trial. We disagree.

We analyze claims of ineffective assistance of counsel under the Strickland framework, which requires a defendant to show (1) that his attorney’s performance “fell below an objective standard of reasonableness,” and (2) that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In rare situations, “a defendant may establish per se ineffective assistance of counsel, which means that he need not make a particularized showing of prejudice to obtain relief.” United States v. Rondon, 204 F.3d 376, 379 (2d Cir. 2000); see United States v. Luciano, 158 F.3d 655, 661 (2d Cir. 1998). We have recognized per se ineffective assistance of counsel only in an extremely limited set of circumstances, however, such as when an attorney is not duly licensed to practice law or is implicated in the defendant’s crimes. Luciano, 158 F.3d at 661; Winkler v. Keane, 7 F.3d 304, 308 (2d Cir. 1993).

Goltzer’s illness, while tragic, does not fall into these “egregious circumstances.” Luciano, 158 F.3d at 661. “[T]here is simply nothing inherent in an attorney’s illness that necessarily will impede a spirited defense ‘most of the time’ to justify finding the attorney’s representation per se ineffective.” Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992) (en banc). “[G]iven the varying effects health problems can have on an individual’s ability to function,” ineffective assistance of counsel claims based on attorney illness are better suited to Strickland’s fact-specific inquiry. Id.; see United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) (per curiam). Indeed, Wynder himself concedes that CJD’s symptoms and progression can vary from case to case.

In the event we are not persuaded that he has established per se ineffective assistance of counsel, Wynder encourages us to find Goltzer was ineffective because his CJD prevented him from cross-examining key witnesses and providing a vigorous defense. He also contends his post-trial attorney was ineffective for failing to take any action regarding Goltzer’s condition. “When faced with a claim for ineffective assistance of counsel on direct appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.” United States v. Ramos, 677 F.3d 124, 129 (2d Cir. 2012) (citation omitted). Due to our “baseline aversion to resolving ineffectiveness claims on direct review,” we decline to consider Wynder’s alternative ineffective-assistance argument at this time. Id. (citation omitted). Wynder may pursue this claim in a petition for writ of habeas corpus under 28 U.S.C. § 2255.

(Mike Frisch)