Originally published by Jack Townsend.
In United States v. Udo, ___ F.3d ___, 2015 U.S. App. LEXIS 12783 (DC Cir. 2015), here, the defendant, a CPA, was a return preparer. He prepared many false returns falling into a pattern. The IRS was suspicious and conducted a sting operation. He prepared a false return for the undercover agent. He was convicted at trial. He raised several issues on appeal. I address only a couple here.
Ineffective Assistance From Promise that Defendant Would Testify and Then Not Testifying
Here are the relevant facts from the opinion:
We recount only the events at Udo’s trial relevant to this appeal. During his opening statement at trial, Udo’s counsel told the jury that the case “comes down to . . . he said, she said.” Trial Tr. 168 (Aug. 1, 2012). Counsel went on to promise that the jury would “hear from Mr. Udo,” who would explain that he acted in good faith based on what his clients had told him about their expenses. Id. at 173. But Udo never testified.
Instead, when the government’s case came to a close, Udo’s counsel asked the court for a ruling limiting any cross-examination of Udo to those issues about which he would testify: his background, his education, and his knowledge of the law and his professional duties. Relying on Brown v. United States, defense counsel argued that a defendant who testifies in his own defense does not waive the Fifth Amendment’s protection from self-incrimination to matters unrelated to his testimony. Cf. Brown v. United States, 356 U.S. 148, 154-55 (1958). In response, the government argued that, at the very least, Federal Rule of Evidence 608(b) permitted questioning Udo about his character for truthfulness. n1 Skeptical of Udo’s request, the court stated that it would be “very, very, very surprised” if counsel was correct. Trial Tr. 67 (Aug. 3, 2012). After a short break to consider the question, the court announced that it would not limit cross-examination before Udo testified, and that his credibility was fair game for the government to examine. n2 Udo’s counsel decided not to call him to testify.
n1 Rule 608(b) allows a party to inquire on cross-examination into specific instances of a witness’s conduct if those instances are probative of the witness’s character for truthfulness. See FED. R. EVID. 608(b).
n2 Udo does not appeal the court’s determination that the government would likely be able to cross-examine him about his character for truthfulness. Cf. Brown, 356 U.S. at 154-55 (“If [a defendant] takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination.”).
The Court started by saying the, normally, ineffective assistance of counsel is not raised on direct appeal because a hearing may be required. Nevertheless, the Court determined that on the record it could adequately address the claim. In doing so, the Court said that “the government’s case against him was, in a word, overwhelming.” There was cumulative evidence, and “Udo — a licensed CPA — never introduced a shred of evidence suggesting that he thought that making up these expenses out of whole cloth was somehow permissible.” That created a high bar for Udo to show prejudice.
Then turning to the claim and resolution.
Udo argues that his counsel was constitutionally ineffective because he incorrectly promised the jury that it would hear from Udo. The false promise was especially prejudicial, Udo argues, because his counsel characterized the case from the start as a “he said, she said” matter that depended on Udo providing the “he said.” Udo points to cases from several of our sister circuits finding ineffectiveness when a defense attorney mistakenly promised that a witness would testify. See McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002); United States ex rel. Hampton v. Leibach, 347 F.3d 219,258-59 (7th Cir. 2003); Saesee v. McDonald, 725 F.3d 1045, 1049-50 (9th Cir. 2013).
As an initial matter, “the [Supreme] Court has emphasized the limited nature of any exceptions to the general rule that a defendant must demonstrate actual prejudice.” Ouber, 293 F.3d at 32. That is, only a handful of mistakes by counsel, none in play here, allow a court to presume constitutional ineffectiveness. See Bell v. Cone, 535 U.S. 685, 695-96 (2002) (identifying only three examples of ineffectiveness so damaging that prejudice is presumed). The Court has never said, and we are not prepared to say now, that falsely promising in an opening statement that a witness will testify necessarily prejudices a defendant. We are thus left to look at the evidence against Udo, evaluate the gravity of the harm that counsel’s false promise may have caused, and determine whether Udo suffered prejudice as a result.
Although counsel’s promise was a tactical misstep, it does not raise a “reasonable probability … sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. We fail to see how the unfulfilled promise in the opening statement had any bearing on how the jury evaluated the credibility of either the videotape or the witnesses. Udo had the same opportunity to cross-examine witnesses and question the veracity of the videotape that he would have had even if counsel had never made the promise. We find no reasonable probability that the jury would have weighed this evidence and come to a different outcome had counsel never promised the jury that Udo would testify.
Nor do the cases Udo cites from our sister circuits give us pause. For one, the Third and Ninth Circuits said only in dicta that the alleged unfulfilled promises in those cases would trigger a claim for ineffectiveness. Both courts eventually concluded that no such promises were even made. See Saesee, 725 F.3d at 1050; McAleese, 1 F.3d at 167. And we agree with the government that the other cases Udo cites are readily distinguishable from Udo’s because each involved a close call whether the evidence supported a guilty verdict. See Hampton, 347 F.3d at 237 (noting that the district court found the prosecution’s case “far from unassailable”); Ouber, 293 F.3d at 33 (calling the case “exceedingly close”). This case was not a close call. The strength of the government’s case against Udo leaves us with no concern that the outcome would have been different had counsel never promised that Udo would testify. We therefore hold that counsel’s unfulfilled promise did not amount to ineffective assistance of counsel because Udo suffered no prejudice. See Strickland, 466 U.S. at 694.
Of course, several lessons are here. First, defendants in this type of case, generally should not testify. His counsel realized that truth. Second, recognizing that truism, should not promise otherwise unless counsel is certain the defendant is going to testify. Counsel did not realize that truth and thus had to backtrack on the “promise.”
Ineffective Assistance Because of Court’s Instruction About Duties of Tax Preparers.
The Court tried to offer the jury some explanation of the tax preparer’s role and therein led to an erroneous argument by the prosecutor. The bold face in the following quoted segment is mine.
Udo raises another concern with the court’s explanation about the duties of tax preparers. By agreeing to this instruction, Udo argues, his trial counsel relieved the government of its burden to prove that Udo acted willfully and instead put the defense to the task of proving that his actions were innocent mistakes. Udo points to a statement by the prosecutor in her closing argument: “We’re talking about Mr. Udo who is a CPA, who prepares tax returns, must exercise due diligence in the accurate preparation and filing of tax returns to the IRS. That’s the jury instruction. That’s the law. He knows. He is deemed to know.” Trial Tr. 88 (Aug. 6, 2012).
The government concedes that the prosecutor misspoke. The government always bears the burden of proving all elements of a crime, including intent. By telling the jury that Udo “is deemed to know” the law, the prosecutor incorrectly suggested that Udo bore the burden of proving he did not. The government calls this a mere slip-up during closing argument. More importantly, the government argues, was the court’s instruction to the jury:
Every defendant in a criminal case is presumed to be innocent. This presumption of innocence remains with the defendant throughout the trial unless and until the government has proven he is guilty beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require the defendant to prove his innocence or to produce any evidence at all.
Trial Tr. 15-16 (Aug. 6, 2012). The court further instructed the jury that “[t]he government has the burden of proving the defendant guilty beyond a reasonable doubt as to each element of the crime charged,” id. at 16; “[t]he statements, arguments and questions of the lawyers are not evidence; they are only intended to assist you in understanding the evidence,” id. at 23; “the prosecution must prove that the defendant knew the deductions and credits were false or fraudulent beyond a reasonable doubt,” id. at 27.
We agree with the government that these instructions clarified any confusion the prosecutor’s misstatement may have caused. This court has previously held that “[t]he jury is presumed to follow the instructions” even in the face of a misstatement of the law by a prosecutor. United States v. Hall, 610 F.3d 727, 741-42 (D.C. Cir. 2010). We apply the same presumption here. The court’s instructions were crystal clear: The government bore the sole burden of proving beyond a reasonable doubt that Udo knew his clients’ returns were materially false. Again, we hold that Udo suffered no prejudice because any alleged ineffectiveness by his counsel did not “undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Restitution Calculation Reversal
Finally, the court reversed because the restitution award included counts of conviction and relevant conduct. Restitution can only include relevant conduct.
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