USA v. Gladys Bishop

Filing

PUBLISHED OPINION FILED. [09-20750 Affirmed] Judge: EMG , Judge: FPB , Judge: BML. Mandate pull date is 01/19/2011 for Appellant Gladys Nell Bishop [09-20750]

USA v. Gladys Bishopase: 09-20750 C

Document: 00511335558 Page: 1 Date Filed: 12/29/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20750 December 29, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. G L A D Y S NELL BISHOP, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e GARZA and BENAVIDES, Circuit Judges, and LYNN * , District Judge. E M I L I O M. GARZA, Circuit Judge: A p p e lla n t Gladys Bishop ("Bishop") was indicted on three counts of m a k in g a false statement in a tax return, in violation of 26 U.S.C. § 7206(1). She w a s convicted and sentenced to thirty-six months in prison. Bishop appeals from t h e district court's denial of her pre-trial motion for dismissal of her indictment, t h e district court's alleged refusal to permit her to assert the defense of her c h o o s in g , and the district court's denial, without a hearing, of her motion for a n e w trial based on her claim of ineffective assistance of counsel. For the reasons s e t forth herein, we affirm.

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District Judge of the Northern District of Texas, sitting by designation.

Dockets.Justia.com

Case: 09-20750 Document: 00511335558 Page: 2 Date Filed: 12/29/2010 No. 09-20750 I B is h o p was the owner and president of Quality Trucking, Inc. ("Quality T r u c k in g " ). Her son, Travis Bishop, was its vice president. On her 2000, 2001 a n d 2002 corporate tax returns, Bishop failed to report income she received t h r o u g h Quality Trucking business. All in all, the unreported income, across the t h r e e -y e a r period, totaled $534,937. In March 2007, following a six-year

in v e s t ig a t io n of the company's activities, a grand jury indicted Bishop on three c o u n t s of violating 26 U.S.C. § 7206(1). Her indictment was sealed on the g r o u n d that the investigation into the unreported Quality Trucking income was o n g o in g and Bishop was a flight risk. Bishop was arraigned in January 2009. Bishop and the Government

jo in t ly sought two continuances, both of which were granted. Thereafter, Bishop file d a motion to dismiss the indictment, alleging inter alia that the Government fa ile d to conduct a speedy trial. The district court denied Bishop's speedy trial c la im . The trial proceeded, and Bishop was convicted on all three counts. After her conviction but before her sentencing, Bishop hired new counsel a n d filed a motion for a new trial under Rule 33 of the Federal Rules of Criminal P r o c e d u r e . In the motion, Bishop argued that her original trial counsel rendered in e ffe c t iv e assistance in three ways: (1) failing to communicate Bishop's a c c e p t a n c e of a proposed plea bargain to either the Government or the district c o u r t; (2) attempting to further negotiate the terms without Bishop's a u t h o r iz a t io n ; and (3) failing to adequately investigate Bishop's cognitive d is a b ilit ie s , despite trial counsel's own observation of those disabilities t h r o u g h o u t the pretrial decision-making period. The district court denied

B is h o p 's motion without a hearing. Bishop was sentenced to a thirty-six month term on each count, with the sentences to run concurrently, and three

c o n c u r r e n t one-year terms of supervised released. This appeal follows.

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Case: 09-20750 Document: 00511335558 Page: 3 Date Filed: 12/29/2010 No. 09-20750 II B is h o p contends that the district court should have concluded that the d e la y in trying her was presumptively prejudicial. A defendant's Sixth

A m e n d m e n t speedy trial claim is evaluated pursuant to a four-factor balancing t e s t considering: (1) the length of the delay; (2) the reason for the delay; (3) the d e fe n d a n t 's diligence in asserting her Sixth Amendment right; and (4) any p r e ju d ic e to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 5 1 4 , 530-33 (1972); see also United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2 0 0 7 ). Once a speedy trial analysis is triggered, the court "determines whether t h e first three Barker factors weigh so heavily in favor of the defendant that p r e ju d ic e is presumed." Frye, 489 F.3d at 209 (internal quotations and citation o m it t e d ). If the first three factors do not justify a presumption of prejudice, " t h e n the defendant bears the burden of establishing actual prejudice and d e m o n s t r a t in g that such prejudice is sufficient to outweigh the other three fa c t o r s ." Frye, 489 F.3d at 209. We review the trial court's weighing of the B a r k e r factors de novo. United States v. Molina-Solario, 577 F.3d 300, 304 (5th C ir . 2009). We review its underlying findings of facts, however, for clear error. Id. at 303 (citing United States v. Frye, 372 F.3d 729, 735 (5th Cir.2004)). A B is h o p contends that the length of her post-indictment delay weighs in fa v o r of concluding that the delay was presumptively prejudicial. In considering t h e length of a delay, this court has generally held that delays of less than five y e a r s are insufficient, by duration alone, to give rise to a presumption of p r e j u d i c e and relieve the defendant of satisfying Barker's fourth prong. See U n ite d States v. Parker, 505 F.3d 323, 328 29 (5th Cir. 2007) (delay of 17 months in s u ffic ie n t to presume prejudice); see also United States v. Serna-Villarreal, 352 F .3 d 225, 233 (5th Cir. 2003) (delay of three years and nine months insufficient).

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Case: 09-20750 Document: 00511335558 Page: 4 Date Filed: 12/29/2010 No. 09-20750 B is h o p argues, however, that the length of her delay favors a finding that it was presumptively prejudicial for three reasons: (1) the post-trial delay came a ft e r a six-year delay from the time the investigation began; (2) her advanced a g e made her subject to cognitive deterioration and the "other realities of a d v a n c e d age"; and (3) the factual complexity of the case demanded a speedier t r ia l, given the complex transactions and business practices relevant to the case. She concedes that she has waived her right to assert a claim of unreasonable p r e - in d ic t m e n t delay. Her first argument, therefore, is not that the pre-

in d ic t m e n t delay was unreasonable, but that the context of the pre-indictment d elay renders the post-indictment delay presumptively prejudicial. We disagree. Claims of pre-indictment delay are considered under the Fifth Amendment, w h ile claims of post-indictment delay are considered under the Sixth A m e n d m e n t . United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994). To the e x t e n t that the pre-indictment delay is relevant to this factor at all, we must c o n s i d e r it in light of the fact that Bishop had an adequate, independent c o n s t it u t io n a l protection through which to protect herself from pre-indictment d e la y , and she did not avail herself of it. Understood in those terms, the prein d ic t m e n t delay does not, at least in this instance, render the otherwise p e r m is s ib le post-indictment delay prejudicial. W e agree that a defendant's age and health may be relevant to a speedy t r ia l claim. They will be most relevant, however, in evaluating whether actual p r e ju d ic e occurred pursuant to the fourth Barker factor. The same is true for the c o m p le x it y of the case. It is true that the length of delay, like the other criteria, is to be considered on a case-by-case basis. See United States v. Eight Thousand E ig h t Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 5 5 5 , 565 (1983) ("Little can be said on when a delay becomes presumptively p r o p e r , for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not

e s t a b lis h in g a statute of limitations."). Nevertheless, when considering the 4

Case: 09-20750 Document: 00511335558 Page: 5 Date Filed: 12/29/2010 No. 09-20750 " le n g t h of a delay" factor, the paramount issue is the actual duration itself. The a d d it io n a l factors identified by Bishop do not rise to the level of tilting this factor in her favor in this instance. B B is h o p next contends the reasons for her delay also favor a holding that it was presumptively prejudicial. We will not presume prejudice "[i]f the

g o v e r n m e n t diligently pursues a defendant from indictment to arrest." United S ta te s v. Bergfeld, 280 F.3d 486, 489 (5th Cir. 2002) (quoting Doggett v. United S ta te s , 505 U.S. 647, 656 (1992)). In contrast, deliberate, bad-faith delays made t o hamper the defense and gain some impermissible trial advantage do weigh a g a in s t the Government. Doggett, 505 U.S. at 656. "Between diligent

p r o s e c u t io n and bad-faith delay, official negligence in bringing an accused to t r ia l occupies the middle ground." Id. at 657. The district court determined that t h e Government's post-indictment delay was not a bad-faith, tactical maneuver t o reap litigation advantages. In particular, the district court credited the G o v e r n m e n t 's cited reasons for sealing the indictment and delaying the trial, s p e c ific a lly Bishop's flight risk and the Government's continued investigation of T r a v is Bishop. Bishop cites data from the Department of Justice showing that individuals c h a r g e d with fraud offenses rarely flee before trial. The conclusion that she was a flight risk was not, however, based simply on the fact that she faced fraud-type c h a r g e s , but rather on the sheer magnitude of her potential liability, as attested t o by IRS Agent Mark Lyons. See United States v. Arroyo)Reyes, 32 F.3d 561, 1 9 9 4 WL 440654 at *4 (1st Cir. Aug. 15, 1994) (considering severity of penalties in risk-of-flight analysis). Moreover, the district court's conclusion that the G o v e r n m e n t 's belief that Bishop was a flight risk was valid is subject only to c le a r error review. Bishop further argues that the Government has not shown that it was d ilig e n t ly pursuing the investigation, and thus any delay based on that 5

Case: 09-20750 Document: 00511335558 Page: 6 Date Filed: 12/29/2010 No. 09-20750 in v e s t ig a t io n was the result of official negligence. The record shows that the o n g o in g investigation responsible for the delay consisted largely, if not entirely, o f internal discussions regarding whether Travis Bishop would be indicted and in t e r n a l consideration of how to proceed. There is a limit, of course, to the a m o u n t of delay that can be reasonably justified by discussions and c o n s id e r a t i o n alone. The cases on which Bishop relies to allege official

n eg lig e n c e , however, involved considerably longer delays with less justification. See Bergfeld, 280 F.3d at 490 (delay over five years while taking minimal steps t o apprehend codefendants); Doggett, 505 U.S. at 657-58 (delay over eight years, s ix of which while Government was negligently unaware that defendant had ree n te r e d the country). T h e trial court's core finding, moreover, that the Government was not e n g a g in g in a deliberate attempt to gain an impermissible advantage at trial, w a s based on findings of fact that were not clear error. Therefore, this factor d o e s not bring this case into the class of cases where the reason for delay is s u ffic ie n t , in and of itself, to give rise to a presumption of error. C B is h o p finally contends that the district court erred in holding that the t h ir d Barker factor--her timely assertion of her speedy trial rights--favored the G o v e r n m e n t . The trial court based its conclusion on the fact that, after her i n d ic t m e n t became known to her, Bishop filed two motions for continuances b e fo r e raising the speedy trial issue in her motion to dismiss. Bishop's argument on this point has more merit than the district court a c k n o w le d g e d . First, of course, Bishop correctly observes--and the Government d o e s not dispute--that she had no opportunity to assert her right to a speedy t r ia l at any time during the first twenty-two months post-indictment because the c a s e was sealed. Bishop did not acquiesce in the delay in the same manner as a n individual who fails to object to a motion for a continuance filed by the G o v e r n m e n t . See Frye, 489 F.3d at 212. 6 The bulk of the delay had already

Case: 09-20750 Document: 00511335558 Page: 7 Date Filed: 12/29/2010 No. 09-20750 o c c u r r e d when she sought her continuances, and the complex nature of the case r e n d e r s the continuances understandable. In light thereof, this factor at most w e a k ly favors the Government, if at all. D N o n e of the first three Barker factors is individually sufficient to give rise t o a presumption of prejudice in this case. Moreover, although our analysis a b o v e differs from the trial court's in some particulars, we agree with its u ltim a te conclusion that the factors are, on balance, insufficient when considered tog eth er. Therefore, Bishop was entitled to a dismissal based on her speedy

t r ia l rights only upon a showing of actual prejudice. Bishop has not challenged t h e district court's finding that no actual prejudice occurred. Therefore, reversal is not warranted. III B is h o p also contends that the trial court violated her constitutional right t o present a complete defense by preventing her from arguing that her case was a "perjury case" rather than a "tax case." She does not argue that she should h a v e been charged under some statute other than § 7206(1); rather, her c h a l l e n g e solely concerns the way in which she sought to characterize the ch arge. As an initial matter, Bishop and the Government disagree regarding the s t a n d a r d of review applicable to this argument. Bishop suggests that, because s h e has presented a question of constitutional law, we should review the issue d e novo. See United States v. Locke, 482 F.3d 764, 766 (5th Cir. 2007) ("[W]e r e v ie w issues of constitutional law de novo." (citations omitted)). The

G o v e r n m e n t counters that Bishop did not raise her constitutional claim at trial, a n d therefore review is for plain error. See United States v. Bourgeois, 423 F.3d 5 0 1 , 506 (5th Cir. 2005) (noting that the defendant "raised none of the c o n s t it u t io n a l challenges in the district court that he now raises on appeal" and t h a t "[a]ccordingly, we review them for plain error"). 7

Case: 09-20750 Document: 00511335558 Page: 8 Date Filed: 12/29/2010 No. 09-20750 B is h o p 's allegation of error stems from the district court's ruling p r e v e n t in g her attorney from asking IRS Special Agent Robert Whalen whether t h is case was "basically a perjury case." The Government objected to the q u e s t io n , and the court sustained the objection, observing, "This is a tax case." Bishop then moved on in her cross-examination. Her counsel took no steps to in fo r m the district court that barring the question potentially violated Bishop's c o n s t it u t io n a l rights or to clarify the nature of the defense she was pursuing. Her argument on appeal, therefore, must be reviewed for plain error. To

e s t a b lis h plain error, Bishop must demonstrate: (1) there was an error; (2) the e r r o r is "plain"; and (3) the error affected her substantial rights, was prejudicial a n d affected the outcome of the district court proceeding. United States v. Olano, 5 0 7 U.S. 725, 731)32 (1993). We will correct a plain error only if the error " s e r io u s ly affects the fairness, integrity or public reputation of judicial p r o c e e d in g s ." Id. at 736. B is h o p 's argument hinges on a misreading of our discussion of § 7206(1) in State v. Adams, 314 F. App'x 633, 638 (5th Cir. 2009). In that case, we s t r e s s e d , in obiter dicta, that a § 7206(1) false return case is "a perjury case," u n lik e , for example, a tax evasion or failure to file case. We interpret those

r e m a r k s simply to distinguish a charge under § 7206(1) from other types of taxr e la t e d charges. We did not hold, nor would it make sense to hold, that false r e t u r n cases are not "tax cases."1 Regardless, even if Bishop's characterization o f Adams were accurate, she could not show that the district court's ruling a ffe c t e d the outcome of its proceedings, as is required for a reversal based on p l a in error. The court's lone ruling on her questioning of Whalen did not

p r o s p e c t iv e ly prevent her from emphasizing the elements of the Government's c a s e that she considered weakest. Moreover, we see no reason to think that the

In fact, later in the opinion, we made clear that Adams was a "tax case." 314 F. App'x at 652 (referring to another case as "also a tax case").

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Case: 09-20750 Document: 00511335558 Page: 9 Date Filed: 12/29/2010 No. 09-20750 ju r y 's verdict would have been any different even if she had emphasized those p o in ts in the manner she says she would have preferred. Reversal on this point is not warranted. IV B is h o p contends that the district court erred in denying her motion for a n ew trial without granting a hearing to consider her ineffective assistance claims o n the merits. She contends that the court should have granted a hearing in o r d e r to develop the factual record or, in the alternative, should have granted the m o t io n for a new trial without a hearing. The Government counters that the d is t r ic t court acted within its discretion, in light of the circumstances of the case a n d the general principle that the preferred device for raising a claim of in e ffe c t iv e assistance of counsel is a federal habeas corpus petition under 28 U .S .C . § 2255. A defendant may raise a claim of ineffective assistance of counsel in a m o t io n for a new trial. See United States v. Fuchs, 467 F.3d 889, 910-11 & n.15 (c o n s id e r in g ineffective assistance of counsel claim that was raised in motion for a new trial). However, a motion for relief in habeas corpus pursuant to 28 U.S.C. § 2255 "is the preferred method for raising a claim of ineffective assistance of c o u n s e l." United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003) (citing

M a s s a r o v. United States, 538 U.S. 500, 504 (2003)). Regardless of whether an in e ffe c t iv e assistance of counsel claim is raised in a motion for a new trial, on c o l l a t e r a l review, or on direct appeal, the standard of review is the same. Strickland v. Washington, 466 U.S. 668, 697 (1984). The defendant bears the b u r d e n of demonstrating that (1) counsel's performance fell below an objective s t a n d a r d of reasonableness and that (2) but for counsel's deficient performance, t h e result of the proceeding would have been different. Id. at 687-96. We review the district court's denial of a motion for a new trial for an a b u s e of discretion. United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983). T h e record of a defendant's criminal trial will rarely be adequately developed for 9

Case: 09-20750 Document: 00511335558 Page: 10 Date Filed: 12/29/2010 No. 09-20750 t h e purpose of considering an ineffective assistance of counsel claim. See

G o r d o n , 346 F.3d at 137 (noting that it is a "rare case" where the record on direct a p p e a l is adequate to permit consideration of an ineffective assistance claim). Although Bishop supplemented the trial record with her motion and a t t a c h m e n t s ,2 the motion presented a one-sided account of events that took place p r im a r ily outside the view of the court. Bishop's telling of those events has not b e e n subject to rebuttal or cross-examination. Therefore, it would have been in a p p r o p r ia t e to grant the motion without a hearing. The decision to conduct an evidentiary hearing on a motion for a new trial is within the sound discretion of the district court and we will reverse only where t h e ruling was so clearly erroneous as to constitute an abuse of discretion. United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004); see also United S ta te s v. Demik, 489 F.3d 644, 646 (5th Cir. 2007) (applying abuse of discretion s t a n d a r d on direct appeal to denial of an evidentiary hearing regarding an in e ffe c t iv e assistance claim). Bishop argues that she was entitled to a hearing b e c a u s e her motion for a new trial pleaded material facts that, if true, would s a t is fy the requirements for a showing of ineffective assistance of counsel under S tr ic k la n d . In Demik, the defendant raised a similar argument. 489 F.3d at 6 4 6 -4 7 . Because the plaintiff's allegation of ineffective assistance had been p o o r ly pled, we affirmed the denial of new trial without setting forth a precise t e s t for when it would be an abuse of discretion to deny such a hearing.3

Bishop's attachment included the following: correspondence from the Department of Justice attempting to finalize a settlement; an affidavit by Bishop detailing her attempts to plead guilty and her original trial counsel's responses; an affidavit by Travis Bishop recounting meetings he attended between Bishop and her original trial counsel as well as his own observations based on day-to-day interaction with his mother; a bank deposit ticket from June 4, 2009, showing a transfer of funds, allegedly in anticipation of a plea including payment of her liabilities; an affidavit from her new counsel detailing his investigations into ineffective assistance rendered at trial; and an affidavit from a licensed psychologist attesting to Bishop's cognitive difficulties. We held that a motion for a new trial's "conclusional allegations" of ineffective assistance of counsel do not require a trial court to conduct an evidentiary hearing before
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Case: 09-20750 Document: 00511335558 Page: 11 Date Filed: 12/29/2010 No. 09-20750 W e are now presented with a motion for a new trial in which the d e fe n d a n t 's claims were raised with greater specificity. In light of the significant fa c t u a l issues necessary to the ineffective assistance claim, we hold that it was n o t an abuse of the district court's discretion to deny the motion in favor of a llo w in g Bishop to raise those issues in § 2255 proceedings. A full hearing of B is h o p 's claims would have required not only a close analysis of her original c o u n s e l's actions toward Bishop, but also the actions of the Government in p u r s u in g the plea deal, as well as psychological evidence regarding Bishop's m e n ta l state. It was within the district court's discretion to decline to prolong it s original proceedings to consider matters that would be better raised c o lla t e r a lly . We accordingly affirm the denial of motion for new trial, without p r e ju d ic e to Bishop's raising the ineffective assistance claims in a later p r o c e e d in g . V F o r the foregoing reasons, we AFFIRM the judgment of the district court in all respects.

denying the motion. Demik, 489 F.3d at 646-47.

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