United States v. Caleb Gray-Burriss

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2014 Decided June 23, 2015

No. 13-3041

UNITED STATES OF AMERICA,
APPELLEE

v.

CALEB GRAY-BURRISS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00178-1)

Steven M. Klepper, appointed by the court, and Alexander
M. Krischik, Student Counsel, argued the cause for appellant.
With them on the briefs were Stephen L. Braga, and Student
Counsel, Michael Baker, John Gunter, Stewart Inman, and
Benjamin Wood.

Vincent J. Falvo Jr., Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Tracee
J. Plowell, Attorney.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
 2

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Defendant Caleb Gray-Burriss was
convicted of fraud and embezzlement in connection with his
management of a union of private security guards. On appeal,
Gray-Burriss argues that the district court erred in excluding two
defense exhibits at trial, that his attorneys labored under a
conflict of interest, and that the attorneys provided ineffective
assistance. We conclude that it was error to exclude one of the
defense exhibits and remand for the district court to determine
whether that additional evidence affects Gray-Burriss’ sentence.
Although we reject the defendant’s conflict-of-interest theory,
we follow this circuit’s usual practice and remand most of his
ineffective assistance claims for initial determination by the
district court.

I

Gray-Burriss founded the National Association of Special
Police and Security Officers (NASPSO) in the 1990s. The union
represents private security officers who work in federal
buildings. At various times, Gray-Burriss served as its
executive director, secretary-treasurer, and president. In June
2010, a grand jury returned an indictment charging Gray-Burriss
with mail fraud. In April 2011, the grand jury returned a
superseding indictment. And in August 2012, the grand jury
returned a second superseding indictment, this time charging the
defendant with nineteen counts of mail fraud, embezzlement,
and related offenses. The gravamen of the indictment alleged
two distinct schemes to steal from the union and its members.

The first scheme, set forth in Counts 1-6, charged Gray-
Burriss with mail fraud in connection with benefits plans that
NASPSO purportedly established for its members. In several
instances, NASPSO negotiated agreements that required private
 3

security companies to make contributions to a NASPSO-
sponsored health or retirement plan. The indictment charged the
defendant with receiving the employers’ payments, depositing
them in an ordinary checking account -- keeping no records of
what individual members had earned -- and then writing checks
on the account to himself, to cash, and to cover the union’s
operating expenses. These criminal charges stemmed from
essentially the same conduct that the Department of Labor
charged in a civil suit against Gray-Burriss in 2006. In that
proceeding, Gray-Burriss agreed to a consent judgment that
obligated him to restore $115,000 in diverted funds and
permanently barred him from exercising any control over an
employee benefit plan. Consent Judgment, Chao v. Gray-
Burriss, No. 06-1382 (D.D.C. Apr. 17, 2007).

The second set of charges, set forth in Counts 7-12, alleged
various forms of embezzlement from the union’s funds, totaling
$203,000. The allegations most central to this appeal concern
unauthorized salary increases.

Count 8 charged unauthorized payments to Gray-Burriss
himself. As of July 1, 2007, Gray-Burriss was earning a salary
of $55,000 for his work as the union’s executive director, based
on a signed employment agreement with the union. In February
2008, he sought a salary increase from the union’s executive
board. The prosecution alleged that, when his request was
rebuffed, Gray-Burriss secretly directed Paychex Corporation --
the firm that processed the union’s payroll -- to increase his
salary payments. Count 8 charged that by increasing his salary
in July 2008, and then again in October 2009, Gray-Burriss
 4

collected $29,000 in unauthorized salary1 before a new and valid
employment agreement was finally adopted in April 2011.

Count 12 of the indictment alleged similar wrongdoing with
respect to salary payments made to Gaby Fraser, another union
employee. NASPSO hired Fraser in September 2011 at a rate of
$45 per hour. On October 15, the union’s executive board
signed an employment agreement authorizing that rate. Just a
few days later, however, Gray-Burriss instead allegedly directed
Paychex to pay Fraser $2,925 semi-monthly, equivalent to a
$70,200 annual salary. Gray-Burriss was charged with
embezzling all of the money paid to Fraser under that substituted
salary arrangement, amounting to some $43,000.

The remaining counts, Counts 13-19, charged Gray-Burriss
with criminal contempt for violating the terms of the 2007 civil
judgment, destruction of subpoenaed records, conspiracy,
witness tampering, and union record-keeping violations.

The trial unfolded over four weeks in November 2012. At
its conclusion, the jury found Gray-Burriss guilty of eighteen of
the nineteen counts; it acquitted him only of tampering with a
witness in connection with the grand jury investigation. In April
2013, the court sentenced Gray-Burriss to 76 months’
imprisonment and ordered restitution and forfeiture in the
amount of roughly $252,000 each, with an open-ended credit
toward the restitution obligation for money already repaid
pursuant to the earlier civil judgment.

On appeal, Gray-Burriss challenges the district court’s
exclusion of two documents from the evidence at trial. He

1
Count 8 also charged other payments, such as a duplicate
paycheck and unauthorized bonuses, that are not included in this
figure.
 5

further contends that his attorneys had a conflict of interest and
that they provided ineffective assistance. We address the
evidentiary contentions in Parts II and III, and the conflict-of-
interest and ineffectiveness claims in Part IV.

II

Gray-Burriss argues that the district court erred in excluding
two employment contracts that he offered as defense exhibits.
In this part we address the exclusion of the defendant’s 2009
employment contract. We conclude that the exclusion was
error; that the error was harmless as to Gray-Burriss’
convictions; but that we must remand the case for resentencing
because the contract may have influenced the defendant’s
sentence, including the amount of his restitution and forfeiture
obligations.

A

In September 2010, shortly after Gray-Burriss was first
indicted on the mail fraud charges, the grand jury subpoenaed
union records from NASPSO and from John Tresvant, a union
board member. When no one complied, the district court
entered a compulsion order against both NASPSO and Tresvant.
After the prosecution moved to hold Tresvant in contempt,
Gray-Burriss produced three rounds of documents to the grand
jury. In March 2011, the defendant confirmed on the record that
those were all the responsive documents.

In May and June 2012, a succeeding grand jury issued new
subpoenas for any additional responsive records. The district
court entered a new compulsion order, and Wanda Gibbs, then
the union’s secretary-treasurer, produced additional documents
in August 2012. The grand jury returned the final indictment
shortly thereafter.
 6

Rule 16(a) of the Federal Rules of Criminal Procedure
requires the government, upon the defendant’s request, to
disclose various discovery materials before trial. The
government provided those materials after each of the three
successive indictments, beginning in July 2010. See United
States v. Gray-Burriss, No. 10-178, 2012 WL 5195997, at *1 n.2
(D.D.C. Oct. 19, 2012). Pursuant to Rule 16(b), the government
requested reciprocal discovery from the defendant of material
within his possession that he intended to use in his case-in-chief
at trial. See FED. R. CRIM. P. 16(b)(1)(A). In December 2011,
the government informed the court that Gray-Burriss had “not
provided the Government with a single piece of paper or other
discovery item in this case” and sought an order compelling
production. Gov. Consol. Mot. in Limine at 20 (12/16/2011).
Gray-Burriss’ counsel, Heather Shaner, acknowledged that she
had “not produced any exhibits” and affirmed that she would
“disclose them at such time that I have them.” 3/14/2012 Tr. at
76. The judge said he would “hold [her] to that promise.” Id.

In August 2012, the prosecution again “renew[ed] [its]
demand for discovery under Rule 16.” 8/28/2012 Tr. at 13.
Shaner’s co-counsel, Patrick Christmas, responded that he “did
not know that no discovery had been provided,” that the
government’s “point is well taken,” and that he did not expect
the defense to have any discovery to offer beyond the material
that the government itself produced. Id. at 14. On September 6,
2012, the parties confirmed that the government completed its
final production of discovery materials related to the second
superseding indictment. 9/6/2012 Tr. at 3.

One of the disputed issues at trial was whether the union’s
executive board authorized an increase in Gray-Burriss’ salary
in July 2009. Among the records produced to the grand jury, the
government found an unsigned agreement providing for a
$75,000 salary effective July 1, 2009, which it included on its
 7

exhibit list and used at trial. Tresvant, a government witness,
and Gregory Tyree, a defense witness, each testified to signing
that contract on the union’s behalf. But two other members of
the union leadership, Gibbs and Shavonya Munford, testified
that they were unsure whether the agreement had ever been
signed. The government’s investigator also testified that, as far
as his investigation disclosed, “[t]here was no signed agreement
in 2009.” 11/19/2012 Tr. at 141.

In fact, the defense had a copy of the same July 2009
agreement, but its version was signed by Tresvant, Tyree, Gibbs,
and a fourth union member. The government first learned of the
document during the second week of the trial, when Christmas
attempted to confront a government witness with it. After a
brief investigation, the government learned from Paychex that
Gray-Burriss had sent the signed contract to the company in the
fall of 2009, as purported documentation of a raise, and that
Gray-Burriss had asked Paychex to send a copy back to him
during the trial. At various points in the government’s case, the
defense tried to use the exhibit to cross-examine the
government’s witnesses. The government objected each time
that Gray-Burriss had not produced the signed contract either in
discovery or pursuant to the grand jury subpoenas. After a
series of colloquies spread over several days, the court
ultimately ruled that the signed contract could “not be used for
any purpose.” 11/20/2012 Tr. at 117.

B

Rule 16(d)(2) provides that, “[i]f a party fails to comply
with this rule, the court may: (A) order that party to permit the
discovery or inspection . . . ; (B) grant a continuance; (C)
prohibit that party from introducing the undisclosed evidence;
or (D) enter any other order that is just under the
circumstances.” FED. R. CRIM. P. 16(d)(2). “The district court
 8

has wide discretion in imposing a sanction if it finds that Rule
16 has been violated,” United States v. Marshall, 132 F.3d 63,
69 (D.C. Cir. 1998); see United States v. Day, 524 F.3d 1361,
1372 (D.C. Cir. 2008), and we review its decision to impose a
particular sanction only for abuse of discretion, United States v.
Sayan, 968 F.2d 55, 63 (D.C. Cir. 1992).

Nonetheless, our cases have identified certain important
considerations to guide the court’s exercise of its discretion.
Most relevant here, “although Rule 16 gives trial judges the
option of suppressing evidence as a result of [a party’s]
discovery violations, such a severe sanction would seldom be
appropriate where . . . the trial court finds that [the party’s]
violation did not result from its bad faith and that a less drastic
remedy (such as a continuance) will mitigate any unfair
prejudice.” Marshall, 132 F.3d at 70. This does not mean that
exclusion is always unwarranted in the absence of bad faith or
the presence of less drastic alternatives. See United States v.
Johnson, 970 F.2d 907, 911 (D.C. Cir. 1992); Day, 524 F.3d at
1372. Exclusion is “inappropriate,” however, when it would
“subvert[] one of Rule 16’s goals: ‘contributing to an accurate
determination of the issue of guilt or innocence.’” Marshall,
132 F.3d at 70 (quoting FED. R. CRIM. P. 16, advisory committee
note to 1974 amendment).

In this case, the combined weight of several factors
persuades us that excluding the 2009 contract was too severe a
sanction.

First, the contract was potentially a significant piece of
exculpatory evidence. Gray-Burriss was charged with
embezzling the very salary payments that the disputed document
purported to authorize. We say “purported” advisedly, for the
government argues that the people who signed the contract were
not legitimate members of the executive board at the time, and
 9

therefore could not have authorized an increase in Gray-Burriss’
salary in any event. Perhaps so; but there is no indication that
the jury either did or would have agreed with the government on
this point. Gray-Burriss’ defense to the embezzlement charges
at issue would have been considerably strengthened by proof of
an executed agreement -- signed by four union leaders --
increasing his salary. Thus, even the government concedes on
appeal that the exhibit was “potentially” exculpatory as to the
salary payments within its scope. Oral Arg. Recording 46:04-
10.

Second, the government has not identified any prejudice it
would have suffered from the defense’s use of the exhibit. The
government has not, for example, disputed the authenticity of
the document. After the document emerged, the prosecution had
several days to investigate its provenance and raise any such
concerns. Upon conducting that investigation, the government
argued that the defense exhibit was “not authentic” only in the
sense that it omitted a cover page that Gray-Burriss included
when he faxed the contract to Paychex in 2009. 11/19/2012 Tr.
at 288. But the government did not question that the contract
itself was what it purported to be, or that it had been signed by
the people who appeared to have signed it. (Nor does it question
the document’s authenticity on appeal. See Oral. Arg.
Recording 44:11-26.) Therefore, “[o]ne of the purposes of the
discovery rule” -- “to minimize the risk that fabricated testimony
will be believed” -- was not implicated here. Taylor v. Illinois,
484 U.S. 400, 413 (1988).

Nor did the government identify any other respect in which
the late appearance of the document threatened to undercut the
prosecution unfairly. To the contrary, the government
essentially conceded that there was no prejudice. On Thursday,
November 15, 2012, the court advised that it would “hear
arguments, if necessary,” about “prejudice to the government.”
 10

11/15/2012 Tr. at 106. The court scheduled the arguments to
take place after the upcoming long weekend, thus affording the
prosecutors time for “any further investigation they might need
to do,” including “the kind of stuff they would have been able to
do had they been timely given it.” Id. After the weekend, the
prosecutors made clear that they were upset by the defense’s
conduct. 11/19/2012 Tr. at 315. But they never identified any
way in which permitting use of the document would improperly
prejudice their case. See id.; cf. Marshall, 132 F.3d at 70
(“Because the court deferred its ruling on the admissibility of the
. . . records during its adjournment period, the defense received
what amounted to a four-day continuance to ponder how it
would confront that evidence. Ordinarily, a continuance is the
preferred sanction for a discovery delay because it gives the
[party] time to alleviate any prejudice it may have suffered from
the late disclosure.”).

Third, the district court did not find that the defense
withheld the disputed contract in bad faith, either from the grand
jury or in reciprocal discovery before trial. Rather, the court
said it accepted Shaner’s “word as an officer of the court” that
any violation of Rule 16 “was not willful, wasn’t intentional.”
11/15/2012 Tr. at 100. Although a finding of bad faith is not a
necessary precondition for exclusion, see Day, 526 F.3d at 1372,
the lack of such a finding takes on greater significance when, as
here, the evidence is exculpatory on its face and there is no
showing of prejudice.

Finally, although we have analyzed the exclusion in terms
of the factors familiar from our Rule 16 cases, we have some
doubt as to whether the district court’s decision was an exercise
of discretion under Rule 16 at all. Rule 16 requires the
defendant, having secured disclosure from the government, to
disclose in turn certain items that “the defendant intends to use
. . . in the defendant’s case-in-chief at trial.” FED. R. CRIM. P.
 11

16(b)(1)(A)(ii). Here, however, the court barred the defense
from using the excluded contract “for any purpose,” including
impeachment and refreshing a witness’ recollection during the
government’s case-in-chief. 11/20/2012 Tr. at 117. Thus, the
sanction reached uses of the evidence that may not have
triggered a reciprocal discovery obligation under Rule 16 in the
first place.2

Moreover, although the parties argued Rule 16 extensively
to the district court, the court ultimately cited the 2010 grand
jury subpoenas and supporting compulsion order as the principal
grounds for its ruling. 11/20/2012 Tr. at 117-18. Whether or
not the district court had inherent power to sanction grand jury
subpoena violations through exclusion of trial evidence in an
appropriate case, cf. FED. R. CRIM. P. 17(g) (authorizing the
court to hold in contempt a witness who disobeys a subpoena),
the necessary predicate for such a sanction was not established
here, for the following reasons. The district court found only “a
prima facie case” that the 2009 contract was withheld in
violation of the grand jury subpoenas and compulsion order.
11/20/2012 Tr. at 117. Even if the document “was in the
defendant’s possession or at least NASPSO’s possession in
2009,” as the court inferred, id. at 118, that was still roughly a
year before the first subpoenas issued to NASPSO and Tresvant,

2
See, e.g., United States v. Medearis, 380 F.3d 1049, 1057 (8th
Cir. 2004) (holding that a document used only for impeachment is not
excludable under Rule 16); United States v. Moore, 208 F.3d 577, 579
(7th Cir. 2000) (same); cf. United States v. Young, 248 F.3d 260, 269
(4th Cir. 2001) (affirming exclusion because the party “intended to
offer the tapes not for impeachment purposes, but as ‘evidence in
chief’”); United States v. King, 703 F.2d 119, 126 n.6 (5th Cir. 1983)
(affirming exclusion and noting that, “even though the documents
were excluded from evidence, . . . [d]efense counsel was allowed to
use the documents to refresh the recollection of witnesses”).
 12

see Gov. Ex. 108 (Tresvant subpoena); Gov. Ex. 109 (NASPSO
subpoena). The court did not find that the document was still in
the possession of the defendant or NASPSO (which the
defendant allegedly controlled) when the latter received a grand
jury subpoena, much less that the defendant knowingly withheld
it from the materials he furnished in response. Moreover, the
government’s investigation only determined that Gray-Burriss
obtained a copy of the document from Paychex during the trial.
See 11/19/2012 Tr. at 280-83. In short, given the sparse record
and the absence of prejudice or bad faith, the objective of
vindicating the grand jury subpoenas did not suffice to justify
excluding this potentially exculpatory document.

C

Although we conclude that the district court erroneously
excluded the July 2009 employment contract, that is not the end
of the matter. Even when evidence is erroneously excluded,
“[a]ny error . . . that does not affect substantial rights must be
disregarded.” FED. R. CRIM. P. 52(a); see United States v.
Olano, 507 U.S. 725, 734 (1993); see also FED. R. EVID. 103(a).
A nonconstitutional error (such as the error alleged here) is
subject to reversal under this standard “‘if one cannot say, with
fair assurance, . . . that the judgment was not substantially
swayed by the error.’” United States v. Palmera Pineda, 592
F.3d 199, 200 (D.C. Cir. 2010) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)); see, e.g., United States v.
Bailey, 319 F.3d 514, 519 (D.C. Cir. 2003). Because Gray-
Burriss objected to the exclusion at trial, the government bears
the burden of proving harmlessness. See Olano, 507 U.S. at
734.

It is clear that the error was harmless with respect to Gray-
Burriss’ conviction. Count 8 charged Gray-Burriss with
embezzlement from the union through many separate
 13

transactions (checks). See Second Superceding Indictment at 9-
13. The verdict sheet listed each transaction, and the jury
unanimously agreed that Gray-Burriss was guilty of virtually all
of them -- including twenty-three that took place before the July
1, 2009 effective date of the contract. Verdict Form at 2-7; see
Def. Ex. 5 (2009 employment contract). Gray-Burriss concedes
that the contract did not authorize transactions that predated it.
See Oral Arg. Recording 10:37-48. And, as the court instructed
the jury without objection, a guilty verdict required unanimous
agreement on only a single transaction for each count. See
11/27/2012 Tr. at 231. Although Gray-Burriss suggests that the
jury’s judgment as to the post-July 1 transactions could have
affected its appraisal of the twenty-three pre-July transactions,
that possibility is too remote to disturb our confidence in the
jury’s verdict. See, e.g., United States v. Bishop, 469 F.3d 896,
904 (10th Cir. 2006) (finding harmless error where the verdict
form indicated unanimous agreement with respect to another
charged act that was independently sufficient for the same count
of the indictment), abrogated on other grounds by Gall v.
United States, 552 U.S. 38 (2007). And the possibility that this
limited error infected the other counts of the indictment, none of
which related to the employment contract, is even more
speculative.

We cannot, however, be confident that exclusion of the
2009 contract was harmless with respect to Gray-Burriss’
sentence. The amounts the government charged as theft (and
found to be such by the jury) were premised on the assumption
that Gray-Burriss was authorized to receive only a $55,000
annual salary, not a $75,000 salary, during the period from July
2009 to April 2011. See 11/14/2012 Tr. at 33-35 (Michel Test.);
Gov. Ex. 212. If the sentencing court had considered the 2009
contract -- and if, in doing so, the court had considered it to
validly authorize an increase in salary -- the court might well
have arrived at a lower loss finding and significantly reduced the
 14

defendant’s restitution and forfeiture obligations. Accordingly,
we will remand the case to the district court to determine
whether adding this piece of evidence into the mix leads it to a
different conclusion with respect to the restitution and forfeiture
components of Gray-Burriss’ sentence. At the same time, of
course, the district court may determine whether, in its
discretion, any lower loss finding should affect the defendant’s
term of incarceration.3

III

In addition to excluding Gray-Burriss’ July 2009
employment contract, the district court also excluded an October
2011 employment contract for Gaby Fraser on essentially the
same grounds. That signed agreement, dated October 15, 2011,
authorized payment to Fraser at a rate of $45 per hour for
various services. The court accepted the government’s
contention that the contract was a “payroll record” within the
scope of the grand jury subpoena issued in June 2012, and it
barred the defense from making use of the document because it
was not produced to the grand jury or the government.

We do not need to consider whether excluding Fraser’s
2011 employment contract was error, however, because it is
clear that any error was harmless in all respects. Although the
court barred the defense from using the October 2011 contract,

3
We note that it does not appear that a lower loss finding would
change the defendant’s Sentencing Guidelines range. Even the sum
of all the thefts the jury found in Count 8 ($35,680) is less than the
difference between the court’s overall loss finding ($252,276) and the
next-lowest threshold for a loss enhancement under the Guidelines
($200,000). See Verdict Form at 2-7; Presentence Investigation
Report ¶ 86a; 4/8/2013 Tr. at 44 (accepting the Report’s findings);
U.S.S.G. § 2B1.1(b)(1).
 15

the contract’s existence was established and never disputed at
trial. Indeed, it was the premise of the government’s case on
Count 12: that, although Fraser had a $45 per hour contract,
Gray-Burriss improperly shifted her to an unauthorized $70,000
annual salary. The prosecution elicited from Tresvant both that
Fraser was hired in September 2011 at $45 per hour and that a
formal agreement to that effect was signed on October 15. For
its part, the defense called April Richardson, another executive
board member, who also testified to signing a $45 per hour
contract for Fraser in October 2011. Tyree said the same during
the government’s cross-examination. And the government
reminded the jury of the October 15 agreement in its own
closing argument:

Now we have the infamous day, October 15th, 2011.
What the testimony was, was we signed an agreement
with [Fraser] for $45 an hour. . . . They think she’s
getting $45 an hour for every hour she works. In fact,
as the Paychex records show, she was getting over
$70,000 in a salary.

11/28/2012 Tr. at 38-39. Accordingly, because introduction of
the 2011 document itself would have been merely cumulative,
any error in its exclusion was at worst harmless. See, e.g.,
United States v. Gupta, 747 F.3d 111, 133-34 (2d Cir. 2014)
(finding exclusion of defense evidence harmless because, inter
alia, the evidence was “plainly cumulative”).

Gray-Burriss suggests that the contract document might not
have been cumulative in one respect: it stated that Fraser would
receive $45 per hour for at least twenty hours per week (and for
a maximum of forty hours). But this provision would not have
made a difference. The defense theory on Count 12 was that
Gray-Burriss acted in good faith, and, to support that argument,
the defendant elicited undisputed testimony that Fraser did
 16

substantial work for the union. See 11/27/2012 Tr. at 7-8 (Tyree
Test.); 11/21/2012 Tr. at 76-77 (Tresvant Test.). Indeed, the
government’s own investigator so testified. See 11/19/2012 Tr.
at 89-90 (Michel Test.). The prosecution theory, by contrast,
was that each of the charged salary payments constituted an act
of embezzlement because the defendant’s decision to put Fraser
on salary, only days after the board adopted a different
arrangement, was unauthorized and manifested fraudulent intent.
The jury adopted the prosecution’s view as to each payment
notwithstanding the undisputed evidence about Fraser’s work.
And when the defense moved for a judgment of acquittal on this
count, the district court concluded that there was sufficient
evidence of embezzlement notwithstanding Fraser’s work for
the union. United States v. Gray-Burriss, No. 10-178, 2013 WL
460220, at *1-2 (D.D.C. Feb. 6, 2013). Whatever its merits,
Gray-Burriss has neither appealed that decision nor made any
other sufficiency-of-the-evidence argument on appeal.

Nor would the minimum-hours provision have affected the
district court’s determination of the amount of loss at
sentencing. The defense objected to the Presentence
Investigation Report’s loss calculation on the ground that Fraser
had done a great deal of work and “was worth every penny she
received.” PSR at 40 (objection to ¶¶ 55-62). The district court
overruled that objection “for all the reasons that . . . [it] denied
the motion for judgment of acquittal on Count 12.” 4/8/2013 Tr.
at 31; see Gray-Burriss, 2013 WL 460220 (D.D.C. Feb. 6,
2013). There is no indication that, in deciding on an appropriate
sentence, the court doubted Fraser had a contractual right to be
paid on an hourly basis for whatever amount of work she did.
 17

IV

Gray-Burriss also contends that he was denied effective
assistance of counsel. In order to succeed on a Sixth
Amendment claim of ineffective assistance, a defendant must
show two things: (1) “that counsel’s performance was
deficient,” falling “below an objective standard of
reasonableness”; and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687-88 (1984). See United States v. Shabban, 612 F.3d
693, 697 (D.C. Cir. 2010). In United States v. Rashad, we
explained that:

Due to the fact-intensive nature of the Strickland
inquiry and the likelihood, when a defendant asserts his
sixth amendment claim for the first time on direct
appeal, that the relevant facts will not be part of the
trial record, . . . this court’s general practice is to
remand the claim for an evidentiary hearing unless the
trial record alone conclusively shows that the
defendant either is or is not entitled to relief.

331 F.3d 908, 909-10 (D.C. Cir. 2003) (internal quotation marks
omitted). See, e.g., United States v. Pole, 741 F.3d 120, 126
(D.C. Cir. 2013); United States v. Fareri, 712 F.3d 593, 595
(D.C. Cir. 2013); United States v. Bell, 708 F.3d 223, 225 (D.C.
Cir. 2013).

In subpart A, we address Gray-Burriss’ contention that his
attorneys had a conflict of interest that adversely affected their
representation of him. In subpart B, we briefly address his
remaining ineffectiveness contentions.
 18

A

We begin our consideration of Gray-Burriss’ conflict-of-
interest claim by setting forth the facts that underlie it. We then
explain that the claim is not properly analyzed as a conflict of
interest issue, but that construed as an ordinary Strickland claim,
it nonetheless warrants consideration on remand.

1. Heather Shaner was appointed under the Criminal Justice
Act (CJA) to represent Gray-Burriss from the outset of his case
in June 2010. In July 2012, Gray-Burriss retained attorney
Patrick Christmas to represent him as well. Shortly thereafter,
Shaner informed the court that Gray-Burriss was “satisfied with
his retained counsel” and moved to withdraw from the case.
Mot. to Withdraw as Counsel at 1 (8/23/2012). The court asked
Christmas if he would feel prepared for the scheduled November
trial date if Shaner withdrew; Christmas said he would not, and
the court denied Shaner’s motion. Christmas also said he would
not be prepared in time even with Shaner’s help, but the court
denied his motion for a continuance. The court then reminded
the parties that, pursuant to a pretrial order entered months
earlier, they were required to confer and make a joint
submission of pretrial materials by October 24.

The government filed its proposals on October 10. On
October 17, Christmas again moved to continue the trial date,
stating that “a serious injustice will occur if the Defendant is
‘forced’ to trial on November 2, 2012.” Def.’s Renewed Mot.
to Continue at 2 (10/17/2012). The court again denied the
continuance, citing the long pendency of the case and the
“numerous continuances and accommodations” that the court
had already granted Gray-Burriss before he retained Christmas.
United States v. Gray-Burriss, No. 10-178, 2012 WL 5195997,
at *1 (D.D.C. Oct. 19, 2012). Although the court recognized
that “Christmas may not feel fully prepared,” it stressed that
 19

Shaner, “the defendant’s CJA counsel from the beginning of the
case over 27 months ago, still represents him.” Id. at *2.

In the days that followed, the defense failed to submit the
required pretrial materials and did not take up the government’s
invitations to discuss its own proposed submissions. On the
morning of the October 24 due date for the joint pretrial
submission, the prosecution informed the court that it had failed
in its efforts to reach Christmas, and that Shaner had merely
deferred to Christmas as “lead counsel” (although she, too, had
not heard from him). Mot. for Leave to File at 2 (10/24/2012).
The court responded that, if these allegations were accurate, “the
Court finds both defense counsel’s nonfeasance inexcusable.”
Order to Show Cause at 2 (10/25/2012). It therefore entered an
order directing Shaner and Christmas to show cause why they
should not be sanctioned and referred for further discipline.

In her response, Shaner contended that Christmas had cut
her out of his planning for the case. Nonetheless, she said, she
had done “everything reasonably possible within the scope of
her authority” to aid Christmas without “usurp[ing]” his role as
Gray-Burriss’ “lead counsel of choice.” Response to Order at 3-
4 (10/29/2012). Shaner also secured her own counsel and
requested a hearing to address the show-cause order. For his
part, Christmas acknowledged that he only recently “began to
appreciate the complexity of preparing a professional and proper
defense in this matter.” Response to Order at 2 (10/31/2012).
He had failed to meet the court’s deadlines, he said, because he
was “literally overwhelmed” with other obligations. Id. at 4.

On November 2, as jury selection was set to begin, Shaner
noted that her attorneys were present in the courtroom and asked
to address the court regarding the show-cause order. When the
court declined to take up the show-cause order, Shaner
protested:
 20

Your Honor, I cannot go forward and zealously
advocate for my client and I would move to withdraw
therefore. I am too upset to go forward with my
license, my liberty, my reputation and my livelihood
pending, and I am afraid that it will have prejudicial
effects on my zealous advocacy and on Mr. Burriss.

11/2/2012 Tr. at 5. The court denied Shaner’s motion and
reiterated that “[w]e’ll take this up after the trial.” Id. at 6. In
a minute order, the court explained that, based on its past
experience with Shaner, it “was fully confident that she would
not falter in her duty to her client.” Minute Order (11/5/2012).4

Four weeks later, after closing arguments, Christmas raised
the pending show-cause order again, asserting that it “has chilled
my representation and that of Ms. Shaner.” 11/28/2012 Tr. at
103. The judge agreed to hear from both lawyers. Christmas
apologized several times for his failure to comply with the
pretrial order, explaining again that he “was just overwhelmed”
and “took on too much work.” Id. at 108-09. He said he
thought he could “[p]lay with Your Honor, as far as some of the

4
The minute order stated:

This court has seen Ms. Shaner under fire before, and she
has held her own like the experienced professional that she
is. The court was fully confident that she would not falter
in her duty to her client. That confidence has been borne
out thus far by her usual skilled advocacy during the full day
of voir dire that has been completed. Her motion was
denied so as not to delay the panel of 65 prospective jurors
waiting in the jury office . . . and to bring no further delay
to a trial that had been delayed far too long already.

Minute Order (11/5/2012).
 21

rules,” and “did not realize . . . that Your Honor makes an order
and stays with that order.” Id. at 112.

Shaner explained that she had struggled to define her role
once Gray-Burriss made clear that he wanted to be represented
by Christmas and not by her. Christmas confirmed that
“everything she says today . . . is true.” Id. at 124. The court
then vacated and discharged the show-cause order, stating that
“[a]s far as I’m concerned[,] the matter is over.” Id. at 125.

2. Gray-Burriss argues that the show-cause order that was
left pending during the trial created a conflict of interest, or at
least the possibility of one, between his attorneys and himself.
As he sees it, Shaner and Christmas were put to a choice
between zealously advocating for him (and risking irritating the
trial judge) or preparing their own defenses in the show-cause
proceeding. Gray-Burriss particularly stresses an apparent last-
minute hand-off of the closing argument from Shaner to
Christmas -- which in court Christmas attributed to the fact that
Shaner’s “voice [was] going,” 11/28/2012 Tr. at 56 -- and
speculates that Shaner was in fact conserving her energy, or the
court’s goodwill, for the show-cause hearing that took place
later that day. See Def. Br. 45-46; Reply Br. 18.

Doctrinally, reframing an alleged deficiency in performance
in terms of a conflict of interest makes a world of difference. In
Cuyler v. Sullivan, the Supreme Court held that, if a defendant
can show that “a conflict of interest actually affected the
adequacy of [the attorney’s] representation,” he “need not
demonstrate prejudice in order to obtain relief.” 446 U.S. 335,
349-50 (1980). In those circumstances, when counsel “is
burdened by an actual conflict of interest,” prejudice “is
presumed” and the second prong of Strickland does not apply.
Strickland, 466 U.S. at 692 (citing Cuyler, 446 U.S. at 345-50);
see United States v. Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998).
 22

This court has been careful, however, to reject “defendants’
attempts to force their ineffective assistance claims into the
‘actual conflict of interest’ framework . . . and thereby supplant
the strict Strickland standard with the far more lenient Cuyler
test.” United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996);
see, e.g., United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir.
1998); United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir.
1996).

When a defendant claims a conflict between himself and his
attorney, he must show that the attorney was “forced to make a
choice advancing his own interest at the expense of his client’s.”
Taylor, 139 F.3d at 930; see Bruce, 89 F.3d at 893 (same). The
mere fact that a court has threatened an attorney with contempt
is insufficient to make that showing. In United States v. Shark,
for example, the district court complained in open court that
defense counsel “doesn’t pay any attention to me, . . . and next
time I’m going to get his attention and put him in the cell
block.” 51 F.3d 1072, 1074 (D.C. Cir. 1995). Although the
defendant maintained that this threat created a conflict “between
the defense counsel’s personal interest (to mollify the judge) and
that of her client,” id. at 1075, this court disagreed. “We very
much doubt,” we said, “that mere fear of rebuke from the court
could ever give rise to a conflict of interest sufficient to establish
a predicate for ineffective assistance.” Id. at 1076. Likewise, in
United States v. Taylor, we rejected a defendant’s claim that his
trial counsel had a conflict of interest because he faced a
possible contempt sanction from the district court. 139 F.3d at
928, 931. “Because all attorneys potentially face contempt
citations, no particular attorney can be considered ineffective
due to a concern that he or she might be so cited.” Id. at 932;
see id. at 930 (“[A] Cuyler conflict does not arise from mere
 23

‘friction between trial counsel and the court.’” (quoting Shark,
51 F.3d at 1076)); Leggett, 81 F.3d at 227 (same).5

This case readily falls into the category defined by Shark
and Taylor. Nothing about the show-cause order made it
different in kind from the circumstances considered in those
cases. To the contrary, the order, which criticized Shaner and
Christmas for their “nonfeasance,” Order to Show Cause at 2
(10/25/2012), gave them every incentive to showcase their most
engaged and assiduous lawyering on Gray-Burriss’ behalf. Cf.
Leggett, 81 F.3d at 227 (“[A]n attorney fearing an ineffective
assistance of counsel claim has an incentive to do his best, not
the contrary.”). It did not create a conflict between their
personal interests and those of their client.

United States v. Hurt, 543 F.2d 162 (D.C. Cir. 1976), upon
which Gray-Burriss heavily relies, provides an instructive
contrast. In Hurt, the defendant’s replacement counsel argued
that his conviction should be reversed because his trial counsel
had provided ineffective assistance. The trial counsel then sued
the replacement counsel for libel, seeking $2 million in
damages. The lawsuit, we said, created an actual conflict of
interest: “[W]hile his client’s interest plainly lay in hammering
away toward th[e] objective” of showing that “trial counsel’s
performance was constitutionally inadequate,” replacement
counsel’s “self-interest in not worsening his own position tugged
strongly in the opposite direction.” Id. at 166. Gray-Burriss, by
contrast, has identified no self-interest that would have tugged

5
Of course, a judge’s hostility may “so hamper counsel’s zealous
representation as to violate a defendant’s right to a fair trial,” which
“would be independently remediable on those grounds.” Shark, 51
F.3d at 1076. There was no such extraordinary rebuke here, and the
defendant does not contend that there was. See also supra note 4
(quoting Minute Order describing Shaner’s work favorably).
 24

his attorneys toward being less zealous than required for his
defense.

3. Because Gray-Burriss’ claim of conflicting courtroom
incentives is unwarranted, the Cuyler exception to the two-
pronged Strickland test does not apply. But Strickland itself still
does. And “if judicial expressions of dissatisfaction were severe
enough to lead defense counsel to make decisions that are both
objectively deficient and prejudicial, the Strickland requirements
for showing ineffective assistance would be satisfied.” Shark,
51 F.3d at 1077.

Viewed through that lens, Gray-Burriss’ various allegations
of inadequate preparation for trial and closing argument are
sufficiently colorable to warrant factual findings on remand. See
Pole, 741 F.3d at 126 (“In this Circuit, we generally remand
colorable claims of ineffective assistance to the district court to
make any necessary factual findings, unless the record
conclusively demonstrates that the defendant is or is not entitled
to relief.” (internal quotation marks and citations omitted)). The
record before us understandably does not focus on the extent of
Shaner’s and Christmas’ preparation for the trial or for its key
moments (such as closing argument). See Massaro v. United
States, 538 U.S. 500, 504-05 (2003); Rashad, 331 F.3d at 911.
Gray-Burriss also raises colorable questions about who had
planned to give the closing argument in this complex criminal
case and whether the argument that Christmas ultimately gave
passed muster.

“Like most ineffective-assistance claims raised on direct
appeal,” these claims “require[] further factual development.”
Fareri, 712 F.3d at 595. We therefore remand for the district
court to consider them in the first instance.
 25

B

Gray-Burriss makes several additional claims of ineffective
assistance. Those include a claim that his attorneys failed to
procure the assistance of a forensic accounting expert to review
withdrawals and expenditures for authorization in the union’s
records. They also include, inter alia, a claim that the attorneys
failed to properly raise an advice-of-counsel defense -- either by
subpoenaing NASPSO’s former general counsel, who Shaner
told the court had advised Gray-Burriss that it “was just fine” to
transfer money from the union’s pension fund to use for
operating expenses, 11/26/2012 Tr. at 172; or by satisfying the
hearsay rule’s requirements for admitting that advice through the
testimony of another NASPSO attorney who allegedly was
present at the time. Because the record does not “conclusively
demonstrate[] that the defendant is or is not entitled to relief”
based on Gray-Burriss’ various claims, we remand them to the
district court to make the necessary findings. Pole, 741 F.3d at
126 (internal quotation marks and citations omitted); see Fareri,
712 F.3d at 595; Bell, 708 F.3d at 225-26.

We do not, however, remand Gray-Burriss’s claim that his
attorneys’ deficient performance led to the exclusion of the two
disputed employment contracts discussed in Parts II and III. To
establish a Strickland claim, a defendant must show both that
there was a deficiency in his attorneys’ performance and that the
deficiency was prejudicial. See Strickland, 466 U.S. at 694. To
the extent that the government has carried its burden to prove
that the exclusions were harmless (entirely with respect to the
2011 contract, and insofar as Gray-Burriss’ conviction is
concerned with respect to the 2009 contract), it follows a fortiori
that Gray-Burriss cannot prove the same exclusions were
prejudicial. See United States v. Cassell, 530 F.3d 1009, 1018
(D.C. Cir. 2008) (explaining that “the harmless error standard of
review” is “more favorable to the defendant than the prejudice
 26

prong of Strickland”). And to the extent that we have concluded
the exclusion of the 2009 contract was not necessarily harmless
(with respect to Gray-Burriss’ sentence), we are already
remanding for the district court to reconsider the sentence in
light of the contract. Such reconsideration will render harmless
any ineffectiveness of counsel that contributed to that error.

V

For the foregoing reasons, we remand this case for the
district court to reconsider Gray-Burriss’ sentence in light of the
excluded 2009 employment contract, and to consider Gray-
Burriss’ colorable ineffective assistance claims. In all other
respects, we affirm the judgment of the district court.

So ordered.