14‐1271
United States of America v. Kristina Thomas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 5th day of May, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ No. 14‐1271
KRISTINA THOMAS,
Defendant‐Appellant.
____________________________________________
For Appellee: JOSEPH J. KARASZEWSKI, Assistant
United States Attorney, for William J.
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Hochul, Jr., United States Attorney for the
Western District of New York, Buffalo, NY.
For Defendant‐Appellant: CHERYL MEYERS‐BUTH, Murphy Meyers
LLP, Orchard Park, NY.
Appeal from the United States District Court for the Western District of
New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
Defendant‐Appellant Kristina Thomas (“Thomas”) was charged, in a two‐
count indictment, with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and
aggravated identify theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. On
August 29, 2012, Thomas was convicted after a jury trial of both counts of the
indictment. Following her conviction, but before her sentencing, Thomas sent a
number of letters to the court complaining that her trial counsel had been
ineffective. The district court relieved trial counsel from the case and appointed
Thomas’s current counsel.
On August 2, 2013, Thomas filed a motion pursuant to Federal Rule of
Criminal Procedure 33 requesting that the district court vacate her conviction
and grant her a new trial. She claimed that her trial counsel was ineffective by 1)
failing to explain that a sentence of 24 months’ imprisonment was statutorily
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mandated upon conviction of aggravated identity theft in addition to any other
sentence and that acceptance of the plea offer would have avoided that
mandatory sentence; 2) failing to sufficiently investigate the charges and
interview potential witnesses; 3) engaging another attorney to help him at trial;
and 4) failing to object to, and actively pursuing, testimony concerning Thomas’s
sexual orientation. The district court denied the motion on February 24, 2014.
Thomas was later sentenced principally to a term of 32 months’ imprisonment
and three years of supervised release, and she timely appealed. Because the
district court ordered Thomas remanded pending sentencing due to allegations
of witness tampering, she completed her term of incarceration while this appeal
was pending and was released on December 19, 2014. See Federal Bureau of
Prisons Inmate Locator, available at http://www.bop.gov/inmateloc/. On appeal,
Thomas argues that the district court should have conducted an evidentiary
hearing in connection with her claim that her lawyer was ineffective with regard
to the plea offer and that the district court erred in denying her Rule 33 motion to
vacate the conviction.
A defendant’s claim for ineffective assistance of counsel is evaluated
pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
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assistance, a defendant must (1) show that counselʹs representation “fell below
an objective standard of reasonableness,” and (2) “affirmatively prove prejudice”
by showing that “there is a reasonable probability that, but for counselʹs
unprofessional errors, the result of the proceeding would have been different.”
Id. at 688, 693–94. The standard for evaluating the adequacy of counselʹs
representation is “a most deferential one,” Harrington v. Richter, 562 U.S. 86, 105
(2011), since “counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment,” Strickland, 466 U.S. at 690.
We first review Thomas’s claim that the district court erred in not
providing an evidentiary hearing in connection with her claim that her lawyer
was ineffective with regard to advising her about the plea offer. This Court has
held that in cases where the judge who tried the case holds a “limited hearing,”
which includes a review of letters, documentary evidence, and affidavits, “the
determination of whether the hearing was sufficient is reviewed for an abuse of
discretion.” Puglisi v. United States, 586 F.3d 209, 215 (2d Cir. 2009) (citing Chang
v. United States, 250 F.3d 79, 82, 85–86 (2d Cir. 2001)). A hearing on a Rule 33
motion is not always required, but we have noted that one is sometimes
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necessary to provide a sufficient record for us to review the ineffective assistance
claim on the merits. See United States v. Brown, 623 F.3d 104, 114–15 (2d Cir.
2010). Here, the limited hearing, held by the district court on the basis of
affidavits and unsworn factual declarations, was plainly sufficient. Because
Thomas failed to provide any sworn statement of her own, a full evidentiary
hearing “would be fruitless,” Puglisi, 586 F.3d at 218.
With regard to the performance prong of the Strickland analysis, Thomas
did not present any evidence that her trial counsel failed to explain to her the
government’s plea offer. Her trial counsel’s affidavit stated that he “discussed
the terms of the government’s proposed plea” with Thomas, “including
specifically that the government’s plea proposal . . . would enable [Thomas] to
avoid the mandatory 24 month consecutive sentence” on Count 2 of the
indictment. J.A. 805–06. The affidavit of Thomas’s mother and the unsworn
declarations from family members in support of the Rule 33 motion indicated
that they were not present for any discussions regarding the government’s plea
offer, but did not establish that Thomas did not participate in any such
discussions with her trial counsel. And no affidavit or declaration by Thomas
was submitted.
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Nor did Thomas meet her burden under the prejudice prong, which
requires that she demonstrate her intent to take the plea offer, see Puglisi, 586 F.3d
at 218. The statements made by Thomas’s counsel in the Rule 33 motion and the
affidavit of her mother submitted in support thereof are insufficient to constitute
statements of intent for purposes of satisfying Strickland. See id. at 217 (“a
statement regarding intent must be directly attributable to the [defendant],
whether it be through sworn testimony in the main proceeding or by a sworn
affidavit in support of the motion”). Thomas herself failed to respond to her trial
counsel’s affidavit stating that from the outset Thomas “adamantly indicated to
[him] that she was not interested in any plea bargain and wanted to take the case
to trial” and that when he “discussed the terms of the government’s proposed
plea, . . . she rejected it.” J.A. 805. Furthermore, the record evidence shows that
Thomas had an opportunity to review the government’s offer, was well aware of
its terms, and insisted on going to trial nevertheless. There was also evidence in
the record that, while represented by another lawyer, Thomas rejected a pre‐
indictment offer of a misdemeanor plea, which is consistent with the district
court’s conclusion that Thomas was not interested in accepting an offer and
wanted to proceed to trial.
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Accordingly, with regard to Thomas’s claim that counsel was ineffective
for failing to explain the mandatory statutory sentence and that acceptance of the
plea offer would have avoided that mandatory sentence, we conclude that the
district court did not err by failing to hold an oral evidentiary hearing or by
denying the motion on the merits because Thomas failed to meet her burden
under either prong of the Strickland analysis.
This Court reviews a district court’s denial of a Rule 33 motion for abuse of
discretion and the factual findings in support of that decision for clear error. See
United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009). We review the ultimate
question of whether Thomas’s trial counsel rendered ineffective assistance de
novo. See Strickland, 466 U.S. at 698; Bennett v. United States, 663 F.3d 71, 85 (2d
Cir. 2011). As to Thomas’s other ineffective assistance claims, we conclude that
the district court did not err in its application of Strickland.
With regard to trial preparation and communication with Thomas pre‐
trial, the district court found that counsel had contact with Thomas leading up to
trial and reviewed the government’s evidence and discovery with her. We
conclude that his level of preparation was within the “wide range of reasonable
professional assistance,” Strickland, 466 U.S. at 689; see also United States v.
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Caracappa, 614 F.3d 30, 46 (2d Cir. 2010). While Thomas identifies numerous
ways in which she believes trial counsel could have been better prepared, “every
effort [must] be made to eliminate the distorting effects of hindsight,” Strickland,
466 U.S. at 689. With regard to trial counsel’s performance at trial, we agree with
the district court that many of the alleged “deficiencies” constitute strategic
decisions, presumably made “in the exercise of reasonable professional
judgment,” id. at 690. Nor do we believe that trial counsel was deficient for
allowing an experienced criminal defense lawyer to assist him, and Thomas does
not point us to any authority for such a claim. Finally, with regard to Thomas’s
claim that reference to her sexual orientation was improper, we agree with the
district court that pursuing testimony about Thomas’s personal relationships
with some of the witnesses was a reasonable strategy to attempt to discredit the
witnesses on the basis of bias, prejudice, or motive to lie.
Furthermore, even if trial counsel’s performance were deficient for any of
the above reasons, Thomas fails to satisfy the prejudice prong of the Strickland
analysis. Given the overwhelming evidence of Thomas’s guilt presented by the
government, including the detailed testimony of three co‐participants in the
crimes which was evidently found credible by the jury, whose credibility
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determinations and assessment of the evidence the court was not entitled to
overrule in the absence of exceptional circumstances, which were not present
here, see, e.g., United States v. Ferguson, 246 F.3d 129, 133–34 (2d Cir. 2001),
Thomas cannot show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” Strickland, 466 U.S. at 694. Thus, because trial counsel did not provide
constitutionally ineffective assistance, we conclude that the district court did not
abuse its discretion in denying Thomas’s Rule 33 motion.
We have considered all of Thomas’s remaining arguments and find them
to be without merit. For the reasons stated above, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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United States v. Kristina Thomas
Combined Opinion