Frank Christopher v. USA

Filing

OPINION and JUDGMENT filed : The district court's denial of Christopher's 2255 motion to vacate his sentence is AFFIRMED. Decision for publication. Jeffrey S. Sutton (AUTHORING), Richard Allen Griffin, and Bernice Bouie Donald, Circuit Judges.

Case: 15-2027

Document: 13-2

Filed: 08/01/2016

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0181p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

FRANK CHRISTOPHER,
Petitioner-Appellant,

┐
│
│
│

>

v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

│
│
│
│
┘

No. 15-2027

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 2:06-cr-20465-54; 2:12-cv-10310—Nancy G. Edmunds, District Judge.
Decided and Filed: August 1, 2016
Before: SUTTON, GRIFFIN, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Joan Ellerbusch Morgan, FEDERAL DEFENDER OFFICE, Flint, Michigan, for
Appellant. Shane Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. After the government charged him with peddling cocaine,
Frank Christopher hired a lawyer.

The lawyer and client, says Christopher, developed an

unusual professional relationship, which involved getting high more often than preparing a legal
defense.

Over the course of the representation, the lawyer allegedly used cocaine with

Christopher more than twenty times, including several times immediately before court hearings.

1

Case: 15-2027
No. 15-2027

Document: 13-2

Filed: 08/01/2016

Page: 2

Christopher v. United States

Page 2

This attorney–client cocaine use, says Christopher, caused him to forgo a favorable plea deal and
landed him in prison for ten years rather than just three. All of this would present a compelling
claim of ineffective assistance of counsel—if it were true. But the district court held an hourand-a-half-long hearing about the allegations and did not believe them.

It thus denied

Christopher’s § 2255 motion to vacate his sentence. Seeing no clear error, we affirm.
The government had considerable evidence to support its charges that Christopher
conspired to possess and distribute cocaine. See 21 U.S.C. §§ 841(a)(1), 846. It had recordings
of ten phone calls in which he negotiated purchases of the drug for later distribution, ready to
play to a jury. It had testimony from the leader of the conspiracy and another coconspirator that
Christopher had bought the drug for resale. And it had already convicted many of Christopher’s
coconspirators based on similar evidence.
The government offered Christopher a plea deal. If Christopher admitted his guilt, the
government would reduce the charges, making his recommended sentence 30–37 months rather
than 151–188 months. Many of his coconspirators took the deal.
Christopher did not. He went to trial, where a jury found him guilty and a judge
sentenced him to the statutory minimum of 120 months. 21 U.S.C. § 841(b). He did not appeal.
Three months later, Christopher claimed ineffective assistance of counsel. He rejected
the plea deal, he said in a letter to the court, because his attorney, a man named Thomas
Warshaw, “failed to properly advise me about taking [the] deal . . . due to his cocaine abuse.” R.
2308 at 1. That caught the court’s eye. It construed Christopher’s letter as a § 2255 motion and
appointed new counsel, who added meat to the letter’s bones. Warshaw’s cocaine use, the
supplemental motion maintained, caused him to give poor advice, including most harmfully his
advice “that the government’s case was weak and conspiracy was difficult to prove.” R. 2530-1
at 1. “Based on that advice, [Christopher] went to trial.” Id. With more sober counsel, the
motion added, Christopher would have accepted the plea bargain offered by the government.
The district court did not think these allegations, even if true, would prove ineffective
assistance of counsel.
evidentiary hearing.

It thus denied Christopher’s § 2255 motion without giving him an

Case: 15-2027
No. 15-2027

Document: 13-2

Filed: 08/01/2016

Christopher v. United States

Page: 3
Page 3

We vacated that decision. “Christopher has alleged sufficient facts to support, if true, a
finding that he received ineffective assistance,” we held. Christopher v. United States, 605 F.
App’x 533, 536 (6th Cir. 2015). If Christopher were telling the truth, he did not know of the
government’s strong case against him, and he suffered prejudice in rejecting the favorable plea.
Id. at 536–37. We remanded for an evidentiary hearing to determine whether Christopher’s
allegations were true. Id. at 537–38.
The district court held a hearing in which four witnesses, including Christopher and
Warshaw, testified. After the hearing, the court found Warshaw, not Christopher, credible and
again denied the § 2255 motion.
On appeal, Christopher claims that the district court botched its assessment of the
witnesses and their testimony. He faces a steep climb in making this argument, needing to leave
us “with the definite and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (discussing the standard for reversing a trial court’s
findings of fact).
At the evidentiary hearing, Christopher and Warshaw presented two distinct stories, only
one of which could be true:


Did Warshaw use cocaine with Christopher? Never, Warshaw said. About “20 to 30
times,” including immediately before some court hearings, Christopher remembered. R.
2734 at 31.



Did Warshaw review the discovery materials with Christopher? Yes, many times,
testified Warshaw. “Just once,” while they were high, said Christopher. Id. at 23.



Did Warshaw inform Christopher that “the government had a weak case” and conspiracy
charges were “difficult [] to prove”? “No,” “[a]bsolutely not,” testified Warshaw. Id. at
52. Yes, several times, Christopher responded.



And, most importantly, did Warshaw advise Christopher to reject the plea? The opposite,
said Warshaw: I “attempted to induce him to plead.” Id. at 51. That’s not true, testified
Christopher, or else I would have taken the deal.
Both accounts cannot be true. Faced with starkly different views of the facts, either one

of which has ample evidence to support it, “the factfinder’s choice between them cannot be
clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). In he-said, he-said

Case: 15-2027
No. 15-2027

Document: 13-2

Filed: 08/01/2016

Christopher v. United States

Page: 4
Page 4

cases like this one, that means the factfinder does not clearly err in picking one “he” over the
other so long as there is support for each account. That is this case. As the finder of fact, Judge
Edmunds thus did not clearly err in finding Warshaw “credible” while finding Christopher’s
credibility “very much undercut.” R. 2734 at 67.
Judge Edmunds stood on firm ground in making this choice. As we “recognize[d]” in
ordering the evidentiary hearing, Judge Edmunds was “in the best position to gauge
[Christopher’s] credibility.” 605 F. App’x at 538. And she, not we, “had the opportunity . . . to
observe Mr. Warshaw through the pretrial proceedings and the trial.” R. 2734 at 66–67. While
“we review transcripts for a living,” she assesses live witnesses for a living, and we must account
for this “ring-side perspective” when reviewing a trial judge’s findings of fact. United States v.
Poynter, 495 F.3d 349, 351–52 (6th Cir. 2007). On that basis, she observed, “[T]here was
nothing to suggest that [Warshaw] did not have full understanding of what was happening, full
commitment to the representation of Mr. Christopher.” R. 2734 at 67. “[R]ight up to the very
last minute,” she continued, he “was trying to convince Mr. Christopher to take the plea offer in
this case,” but “Mr. Christopher didn’t want to do it.” Id.
Once we accept Warshaw’s version of events, that dooms Christopher’s § 2255 motion.
It means Warshaw never did cocaine with Christopher. It means he reviewed the discovery
materials with Christopher and explained that “the government would be able to sustain their
burden in the case.” R. 2734 at 51. It means he “discussed [the plea deal] with” Christopher “at
great length” and “attempted to induce him to plead.” R. 2532 at 8; R. 2734 at 51. It means he
rendered effective assistance of counsel. And it means Christopher’s knowing and voluntary
decision to go to trial should be respected, painful though the effects of that decision now may
be.
What of the two other fact witnesses at the evidentiary hearing? One witness, it is true,
testified that in a previous representation Christopher had paid Warshaw with bartered cocaine.
But this witness, Christopher’s “long time” friend, R. 2734 at 5, did not observe any such thing
happen in this case. Another witness, it is also true, thought he saw Warshaw use cocaine once
before, possibly during his representation of Christopher. But this witness admitted he was
foggy on the details due to “some memory impairment from a car accident,” id. at 11, and he

Case: 15-2027
No. 15-2027

Document: 13-2

Filed: 08/01/2016

Christopher v. United States

Page: 5
Page 5

“d[id]n’t know” if what he saw was actually cocaine, id. at 17. These sizeable gaps in the
testimony provided ample reason for the district court to discount it.
Christopher adds that Warshaw’s confusion at a pretrial conference showed he hadn’t
reviewed the discovery materials. “That is one possibility” of what happened, “but it is not the
only one, and above all it was not the one the district court credited.” United States v. Stafford,
639 F.3d 270, 276 (6th Cir. 2011). The district court thought Warshaw was prepared and
rendered effective counsel, and the record permits that conclusion.
In the last analysis, Christopher’s current attorney may have summed it up best:
“[W]hether or not [Warshaw’s] performance was deficient as a result of the cocaine or
otherwise . . . depend[s] on the [c]ourt’s determination as to which of the two witnesses is more
credible.” R. 2734 at 61. Because the court reasonably concluded the “more credible” witness
was Warshaw, not Christopher, id. at 68, Christopher’s § 2255 motion fails.
For these reasons, we affirm.