PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-7976
NATHAN A. CHAPMAN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:03-cr-00301-WDQ-1; 1:08-cv-01268-WDQ)
Argued: December 1, 2009
Decided: January 29, 2010
Before TRAXLER, Chief Judge, and WILKINSON and
MICHAEL, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Wilkinson joined. Judge
Michael wrote a separate opinion concurring in the judgment.
COUNSEL
ARGUED: Lartease Martrell Tiffith, KIRKLAND & ELLIS,
LLP, Washington, D.C., for Appellant. Jefferson McClure
Gray, OFFICE OF THE UNITED STATES ATTORNEY,
2 UNITED STATES v. CHAPMAN
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
OPINION
TRAXLER, Chief Judge:
After being convicted of numerous charges, including mail
and wire fraud, see United States v. Chapman, No. 04-5010,
2006 WL 3539146 (4th Cir. Dec. 8, 2006), Nathan Chapman
filed a motion under 28 U.S.C.A. § 2255 challenging his con-
victions on several grounds. The district court denied relief.
We granted a certificate of appealability to permit Chapman
to appeal the district court’s rejection of his claim that trial
counsel was ineffective for ignoring Chapman’s direction to
accept the district court’s offer of a mistrial. For the reasons
set forth below, we affirm.
I.
Chapman was the chief executive officer and majority
shareholder of various financial services companies, and a
portion of the charges against Chapman involved his use of
"business development funds" provided by these companies
for personal rather than business purposes. The government’s
theory of the case was that Chapman needed the business
development funds to support a lifestyle that he could not oth-
erwise afford. The trial court permitted the government to
present, as proof of Chapman’s motive, see Fed. R. Evid.
404(b), evidence of substantial loans (eventually totaling
more than $1 million) that Chapman took from his companies
but never repaid.
After the government’s rebuttal closing argument, counsel
for Chapman objected to a reference by the government to the
UNITED STATES v. CHAPMAN 3
loans, believing the reference went beyond the limitations the
trial court had placed on the use of the loan evidence. The
trial court stated that counsel "might be right," J.A. 20, and
directed counsel for Chapman to draft a curative instruction
to be given to the jury. Counsel for Chapman then, "just for
the record," moved for a mistrial with prejudice. J.A. 20. The
trial court offered to grant Chapman a mistrial without preju-
dice, but counsel for Chapman declined, insisting that the
mistrial should be with prejudice. The case proceeded, and the
trial court gave the curative instruction to the jury. The jury
ultimately convicted Chapman on 22 of the charges alleged in
the indictment.
In his § 2255 motion, Chapman contended that when the
trial court offered to grant a mistrial without prejudice, he
instructed his attorney to accept the offer. Chapman argued
that his attorney, by rejecting his instructions to accept the
mistrial, was constitutionally ineffective and that Chapman
was therefore entitled to a new trial. The district court rejected
Chapman’s claim, concluding that the decision to go forward
with the trial rather than accept a mistrial without prejudice
was a tactical decision to be made by counsel, not Chapman.
II.
A criminal defendant’s right to counsel as guaranteed by
the Sixth Amendment is, of course, a guarantee of the right
to effective assistance of counsel. See Strickland v. Washing-
ton, 466 U.S. 668, 686 (1984). To succeed on a Sixth Amend-
ment claim of ineffective assistance of counsel, "the
defendant must show that his counsel’s performance ‘fell
below an objective standard of reasonableness’ in light of the
prevailing professional norms." Lawrence v. Branker, 517
F.3d 700, 708 (4th Cir. 2008) (quoting Strickland, 466 U.S.
at 688). If the defendant can establish that his attorney’s per-
formance was deficient, the defendant must then demonstrate
that "there is a reasonable probability that but for counsel’s
4 UNITED STATES v. CHAPMAN
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694.
Chapman’s ineffective-assistance claim is a narrow one.
Chapman does not argue that, given the manner in which the
trial had unfolded, the only reasonable decision was to accept
the mistrial offer. Nor does Chapman argue that counsel
should have consulted with him before rejecting the mistrial
offer. Instead, Chapman contends only that counsel’s perfor-
mance was deficient because counsel ignored Chapman’s
instructions to accept the mistrial offered by the trial court.
The government, however, argues that decisions involving
mistrials—whether to ask for a mistrial and whether to accept
an offer of a mistrial—are tactical decisions that must be
made by the attorney, not the defendant. Because the decision
belongs to the attorney, the government argues that Chap-
man’s disagreement with the decision made by counsel is
simply irrelevant.* We agree with the government.
It is by now well-established that in a criminal trial, defense
counsel has the authority to manage most aspects of the
defense without first obtaining the consent of the defendant.
See Florida v. Nixon, 543 U.S. 175, 187 (2004). "Decisions
that may be made without the defendant’s consent primarily
involve trial strategy and tactics, such as what evidence
should be introduced, what stipulations should be made, what
objections should be raised, and what pre-trial motions should
be filed." Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998)
(internal quotation marks omitted). However, "certain deci-
sions regarding the exercise or waiver of basic trial rights are
*The government seems to challenge the factual underpinnings of
Chapman’s claim, questioning whether the trial court was serious in its
offer of a mistrial and noting that one of Chapman’s trial attorneys stated
in an affidavit that he consulted with Chapman about the mistrial and that
Chapman agreed with his decision. Because the district court rejected
Chapman’s claims without holding an evidentiary hearing, we must
review the facts in the light most favorable to Chapman. See United States
v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).
UNITED STATES v. CHAPMAN 5
of such moment that they cannot be made for the defendant
by a surrogate." Nixon, 543 U.S. at 187.
The only decisions that have been identified by the
Supreme Court as belonging exclusively to the defendant are
"whether to plead guilty, waive a jury, testify in his or her
own behalf, or take an appeal." Jones v. Barnes, 463 U.S.
745, 751 (1983). The Supreme Court has never suggested that
decisions about mistrials are "of such a moment" that they can
be made only by the defendant himself, and every circuit to
consider the question has concluded that decisions regarding
mistrials belong to the attorney, not the client. See United
States v. Burke, 257 F.3d 1321, 1324 (11th Cir. 2001) ("We
. . . reject Defendant’s contention that the decision to request
a mistrial is a fundamental decision that only a defendant can
make."); United States v. Washington, 198 F.3d 721, 723 (8th
Cir. 1999) ("Washington argues that the defendant must be
allowed to make the ultimate decision on whether to request
a mistrial. We disagree and hold that the decision to make
such a request is a strategic decision for counsel."); Watkins
v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996) ("[W]here . . .
defense counsel consents as a matter of trial strategy to a mis-
trial, that consent binds the defendant . . . , regardless of
whether the defendant participates in the decision.");
Galowski v. Murphy, 891 F.2d 629, 639 (7th Cir. 1989) ("The
decision whether to move for a mistrial or instead proceed to
judgment with the expectation that the client will be acquitted
is a matter of trial strategy."). As the Eighth Circuit explained,
the decision to move for a mistrial often must be
made in a split-second and it involves numerous
alternative strategies such as remaining silent, inter-
posing an objection, requesting a curative instruc-
tion, or requesting an end to the proceeding.
Moreover, counsel is generally in a better position
than a lay person to judge the impact of a potentially
prejudicial incident in the context of the entire trial.
6 UNITED STATES v. CHAPMAN
Washington, 198 F.3d at 724 (citation omitted).
We likewise conclude that decisions regarding a mistrial
are tactical decisions entrusted to the sound judgment of
counsel, not the client. Preliminarily, we note that mistrial
issues bear no similarity, in nature or significance, to the deci-
sions that the Supreme Court has identified as belonging
solely to the defendant. Moreover, deciding whether to seek
a mistrial (or whether to accept or reject a mistrial offered by
the trial court) involves an on-the-fly balancing of the proba-
ble damage caused by the trial error against the likelihood that
a different jury might be more inclined to acquit—a question
that itself requires considering how receptive the current jury
is to the defendant, whether key witnesses have testified as
anticipated, etc. Given the many issues that must be identi-
fied, evaluated, and weighed when determining whether to
seek or accept a mistrial, we think it clear that the decision is
a tactical one to be made by counsel, not the client.
As noted above, Chapman does not contend otherwise —
that is, he does not argue that decisions regarding mistrials are
so fundamental that they must be made by the client rather
than the attorney. Chapman nonetheless insists that if a mis-
trial is offered by the trial court and the defendant expresses
his opinion on whether the offer should be accepted, counsel
is obligated to follow the defendant’s instructions. We dis-
agree.
A criminal defense attorney is obligated to follow his cli-
ent’s wishes only with regard to the fundamental issues that
must be personally decided by the client. As to those limited
issues—pleading guilty, waiving a jury, taking the stand, and
appealing a conviction or sentence—"an attorney must both
consult with the defendant and obtain consent to the recom-
mended course of action." Nixon, 543 U.S. at 187. If the deci-
sion is a tactical one left to the sound judgment of counsel, the
decision must be just that—left to the judgment of counsel.
Counsel need not consult with the client about the matter or
UNITED STATES v. CHAPMAN 7
obtain the client’s consent. See id. (The "duty to consult with
the client regarding important decisions . . . does not require
counsel to obtain the defendant’s consent to every tactical
decision." (internal quotation marks omitted)); Sexton, 163
F.3d at 885 (whether to file a motion to suppress "is a classic
tactical decision" for which consent from the defendant was
not required).
And if consultation and consent by the client are not
required with regard to these tactical decisions, the client’s
expressed disagreement with counsel’s decision cannot some-
how convert the matter into one that must be decided by the
client. For example, which witnesses to call is a classic tacti-
cal decision left to counsel, see Boyle v. McKune, 544 F.3d
1132, 1139 (10th Cir. 2008) ("[T]he decision of which wit-
nesses to call is quintessentially a matter of strategy for the
trial attorney."), and it remains a decision for counsel even
when the client disagrees, see Blanco v. Singletary, 943 F.2d
1477, 1495 (11th Cir. 1991) ("[T]he trial court overreached its
authority and infringed upon the relationship between Blanco
and his attorneys by requiring defense counsel to call two
additional witnesses [as requested by the defendant]. Gener-
ally, trial tactics are for defense counsel to formulate. The
decision as to which witnesses to call is an aspect of trial tac-
tics that is normally entrusted to counsel." (footnotes omit-
ted)). Likewise, we believe that whether to seek or accept a
mistrial is a matter left to the sound judgment of counsel, even
if the client disagrees with counsel’s decision. See Burke, 257
F.3d at 1324 ("[T]he decision to refrain from asking the court
for a mistrial is a tactical decision entrusted to defense coun-
sel, binding the defendant even when the defendant expressed
a contrary wish to his lawyer." (emphasis added)). The rea-
sonableness of the tactical decision actually made by counsel
is of course subject to challenge, but the decision is not unrea-
sonable simply because the client expressed a contrary view.
Chapman, however, views his position as a necessary con-
sequence of the agency relationship between the defendant
and his attorney:
8 UNITED STATES v. CHAPMAN
[A]s defendant’s counsel and agent, defense counsel
is permitted to make decisions that bind the defen-
dant as agents generally do with regard to matters
within the scope of their authority. However, that
authority is binding only unless and until revoked.
When the defendant specifically instructs his agent
to accept a court’s offer of a mistrial on his behalf,
to the extent that the defendant’s request is reason-
able, defense counsel as his agent is obligated to do
so — his agency to do otherwise is revoked.
Brief of Appellant at 19. While it is of course true that an
attorney is the agent of his client, the attorney’s obligations in
a criminal case do not precisely mirror the obligations of a
general agent representing his principal on civil matters. Not-
withstanding the fact that an agent is generally authorized to
act for the principal in all matters within the scope of the
agent’s authority, the law requires the criminal defendant, not
his attorney, to make the critical decisions about whether to
plead guilty or go to trial, whether to testify, and whether to
appeal. And notwithstanding the fact that a principal generally
has the authority to dictate the manner in which his agent will
carry out his duties, the law places certain tactical decisions
solely in the hands of the criminal defense attorney. This real-
location of rights and duties is necessary to give effect to the
constitutional rights granted to criminal defendants and to
insure the effective operation of our adversarial system, where
defense attorneys must protect the interests of their clients
while also serving as officers of the court. See Taylor v. Illi-
nois, 484 U.S. 400, 417-18 (1988) ("Although there are basic
rights that the attorney cannot waive without the fully
informed and publicly acknowledged consent of the client, the
lawyer has—and must have—full authority to manage the
conduct of the trial. The adversary process could not function
effectively if every tactical decision required client approval."
(footnote omitted)). As the Eleventh Circuit has explained,
Defense counsel in a criminal trial is more than an
adviser to a client with the client’s having the final
UNITED STATES v. CHAPMAN 9
say at each point. He is an officer of the court and
a professional advocate pursuing a result—almost
always, acquittal—within the confines of the law; his
chief reason for being present is to exercise his pro-
fessional judgment to decide tactics.
. . . . When the defendant is given the last word
about how his case will be tried, the defendant
becomes his own trial lawyer. If we add to the list of
circumstances in which a defendant can trump his
counsel’s decision, the adversarial system becomes
less effective as the opinions of lay persons are sub-
stituted for the judgment of legally trained counsel.
The sound functioning of the adversarial system is
critical to the American system of criminal justice.
We intend to defend it.
Burke, 257 F.3d at 1323. We therefore reject Chapman’s
claim that an attorney loses the right to make tactical deci-
sions about the conduct of a criminal trial if the client
expresses disagreement with the attorney’s decision.
III.
To summarize, we conclude that decisions involving mistri-
als — whether to seek a mistrial or accept a mistrial offered
by the trial court — are tactical decisions left to the sound
judgment of counsel. The decision remains counsel’s to make
even if the client expresses disagreement with the decision,
and counsel’s decision is not unreasonable simply because the
client disagrees. The district court therefore properly rejected
Chapman’s claim that his attorney provided constitutionally
ineffective assistance of counsel by refusing, over Chapman’s
instructions to the contrary, the trial court’s offer of a mistrial
without prejudice. Accordingly, we hereby affirm the district
court’s order denying Chapman’s § 2255 motion.
AFFIRMED
10 UNITED STATES v. CHAPMAN
MICHAEL, Circuit Judge, concurring in the judgment:
I concur in the judgment but write separately to express my
belief that we should be resolving this case on much narrower
grounds. As the majority recognizes, "Chapman’s ineffective-
assistance claim is a narrow one." Ante at 4. Chapman simply
argues that under the particular circumstances of this case, he
received ineffective assistance when his lawyer refused to fol-
low his express instruction to accept the district court’s offer
of a mistrial without prejudice. Instead of affirming on the
narrow ground that Chapman’s lawyer acted reasonably, the
majority sweeps broadly and decides that a lawyer’s decision
to refuse a mistrial over his client’s wishes and without con-
sultation can never constitute ineffective assistance. I believe
such a broad rule is both ill-advised and unnecessary to
resolve this case.
There are at least three types of decisions where counsel’s
failure to seek or follow client input before acting could result
in constitutionally ineffective assistance: (1) fundamental
decisions requiring informed consent from the client; (2)
important decisions requiring consultation with the client; and
(3) decisions where the client has expressly instructed counsel
on a particular course. See Florida v. Nixon, 543 U.S. 175,
187 (2004); Jones v. Barnes, 463 U.S. 745, 751 (1983); Gov’t
of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1437 (3d
Cir. 1996). The majority has focused exclusively on the first
type, that is, the fundamental decisions described in Jones.
Nothing in this case has convinced me that the list of funda-
mental decisions in Jones should be expanded. But focusing
exclusively on the fundamental decision category inappropri-
ately ignores the other two categories. In Florida v. Nixon the
Supreme Court expressly recognized counsel’s "duty to con-
sult with the client regarding important decisions" as indepen-
dent from the duty to both consult with the client and obtain
his consent on fundamental decisions. 543 U.S. at 187
(emphasis added). The majority misreads this very portion of
Nixon to support the proposition that for non-fundamental
UNITED STATES v. CHAPMAN 11
decisions "[c]ounsel need not consult with the client about the
matter or obtain the client’s consent." Ante at 6-7 (emphasis
added). There will be important decisions that require consul-
tation with, but not consent from, the client. See, e.g., Wea-
therwax, 77 F.3d at 1436 (duty to consult with client
concerning possible mistrial motion after client’s family
raised fact that juror was reading prohibited materials). Simi-
larly, there will be decisions on which counsel and client dis-
agree that will at least require some form of accommodation.
See, e.g., United States v. Gillis, 773 F.2d 549, 560 (4th Cir.
1984) (defendant’s right to self-representation on appeal satis-
fied by allowing him to submit supplemental brief).
In assessing counsel’s failure to consult with his client or
follow an express instruction, I would follow the Third Cir-
cuit’s analysis in Weatherwax. There, the court held that
"[t]he constitutional duty to consult regarding issues on which
counsel has the last word requires only that counsel act rea-
sonably in light of the circumstances and what is likely to be
accomplished by a consultation." 77 F.3d at 1437. In assess-
ing reasonableness, the Third Circuit weighed the lawyer’s
actions against the "number of important purposes" served by
the duty to consult, including ensuring the client’s ability to
assist in his own defense, promoting open lawyer-client com-
munications, and safeguarding the client’s right to forgo his
current representation if he disagrees with his lawyer. Id. at
1436-37. The reasonableness assessment is, of course, fact
intensive and case specific.
I conclude that while the decision whether to accept a mis-
trial offered by the court will sometimes require a lawyer to
consult with his client, it was nevertheless reasonable here for
Billy Martin to refuse the offer against Chapman’s expressed
wishes and without consultation. The record does not indicate
that Chapman even understood the difference between a mis-
trial with prejudice and a mistrial without prejudice, let alone
the consequences of each in his case. Under these circum-
stances, following Chapman’s instruction might well have
12 UNITED STATES v. CHAPMAN
constituted ineffective assistance of counsel. A closer ques-
tion is whether Martin should have asked the court for time
to consult with Chapman concerning the offer, but I again
conclude that Martin’s actions were reasonable. The district
court was demanding an answer from Martin then and there.
Martin had to make a decision on the fly, and there is no evi-
dence that consultation would have prompted Chapman to
hold his position and request new counsel.
I would not foreclose the possibility that, in other situa-
tions, counsel’s failure to consult with his client or follow his
express, informed wishes would constitute constitutionally
ineffective assistance. Because I agree with the majority that
counsel was effective in Chapman’s case, however, I concur
in the result.