Lyons v. United States

FARRELL, Associate Judge,

concurring.

I agree fully with the court’s disposition of Lyons’ appeal. As to Hilton, I concur reluctantly in the remand for a hearing. The court says that at a hearing the trial judge can “evaluate Hilton’s demeanor and credibility,” ante at 489. But credibility as to what? We presently have no idea what Hilton would say on the stand, since he personally has furnished no affidavit or other statement asserting a basis for the claim of intimidation. His counsel suggests that Hilton is afraid to substantiate the claim (“[T]his motion is itself more strongly worded than Mr. Hilton might like.”), so we are left to assume that — just perhaps — at the hearing Hilton will have overcome his fear and be ready to recite the objective basis for the coercion Lyons supposedly worked upon him. That, as I see it, is an insufficient showing to require the judge to convene an evidentiary hearing.

On the other hand, trial counsel’s motion, read very generously, implies that he himself witnessed interactions between the codefendants or was told things by Hilton (which might be admissible as going to the client’s state of mind) that could support a claim of duress or intimidation.1 That is *490enough to justify a hearing, though barely. Ultimately, however, unless Hilton’s own words — not his counsel’s — impeached by his failure to utter them at any time earlier, see Geddie v. United States, 663 A.2d 631, 535 (D.C.1995) (discussing means by which defendant can timely bring intimidation to court’s attention without danger of retaliation), persuade the trial judge that duress rather than an unsuccessful choice of strategy likely dictated his defense, the hearing will be as predictable in outcome as it may be brief.

. I say read "very generously” because counsel’s motion is filled with elusive and conclu-sory language about "the unusual dynamic of *490this co-defendant trial” in which "Lyons called the shots and he dragged Hilton down with him,” and where — without further specification — "the co-defendant’s influence ... kept Mr. Hilton from the stand.”