United States v. Graham ( 2022 )

20-832-cr
United States v. Graham
United States Court of Appeals
for the Second Circuit
August Term 2021
Argued: March 1, 2022
Decided: October 14, 2022
No. 20-832
UNITED STATES OF AMERICA,
Appellee,
v.
JACQUELINE GRAHAM,
Defendant-Appellant. *
On Appeal from the United States District Court
for the Southern District of New York
Before: WALKER, PARK, and PÉREZ, Circuit Judges.
Defendant-Appellant Jacqueline Graham was convicted after a
jury trial of conspiracy to commit mail, wire, and bank fraud, in
violation of 18 U.S.C. § 1349. On appeal, Graham argues that her
* The Clerk is respectfully directed to amend the caption accordingly.
pretrial counsel was constitutionally ineffective for failing to transmit
a plea offer from the government to Graham before it expired, thereby
depriving her of the chance to plead guilty under the terms of the
offer. See Missouri v. Frye, 566 U.S. 134 (2012). We conclude that
Graham has waived any claim that the alleged error violated her Sixth
Amendment rights. Unlike the defendant in Frye, Graham learned
of her expired plea offer and received new court-appointed counsel
two months before trial. She nonetheless chose to go to trial rather
than to plead guilty or to petition the court for reinstatement of the
offer. This knowing and voluntary choice was inconsistent with
seeking the benefit of the expired plea offer and thus constitutes
waiver. We reject Graham’s remaining arguments and thus
AFFIRM.
Judge Pérez concurs in a separate opinion.
HARRY SANDICK (Christopher Wilds, Andrew Haddad,
on the brief), Patterson Belknap Webb & Tyler LLP, New
York, NY, for Defendant-Appellant.
DAVID R. FELTON, Assistant United States Attorney
(Michael D. Maimin, Karl Metzner, on the brief), for
Audrey Strauss, United States Attorney for the Southern
District of New York, New York, NY, for Appellee.
PARK, Circuit Judge:
Defendant-Appellant Jacqueline Graham was convicted after a
jury trial of conspiracy to commit mail, wire, and bank fraud, in
violation of 18 U.S.C. § 1349. On appeal, Graham argues that her
pretrial counsel was constitutionally ineffective for failing to transmit
2
a plea offer from the government to Graham before it expired, thereby
depriving her of the chance to plead guilty under the terms of the
offer. See Missouri v. Frye, 566 U.S. 134 (2012). We conclude that
Graham has waived any claim that the alleged error violated her Sixth
Amendment rights. Unlike the defendant in Frye, Graham learned
of her expired plea offer and received new court-appointed counsel
two months before trial. She nonetheless chose to go to trial rather
than to plead guilty or to petition the court for reinstatement of the
offer. This knowing and voluntary choice was inconsistent with
seeking the benefit of the expired plea offer and thus constitutes
waiver.
We also reject Graham’s remaining arguments on appeal. The
district court did not abuse its discretion by admitting evidence of
Graham’s other fraudulent activity that was similar and/or related to
the charged conduct; the court did not err by allowing the
government to introduce certain “red flag” emails from an outside
attorney for the limited purpose of proving her knowledge; and the
court’s decision to instruct the jury on conscious avoidance was
proper. We thus affirm.
I. BACKGROUND
A. The Government’s Case
Jacqueline Graham approached struggling homeowners with
an offer that was too good to be true: In exchange for a fee, her
partnership (the “Terra Foundation” or “Terra”) could purportedly
eliminate a customer’s mortgage debts in full. Styling herself as a
“sovereign citizen[],” Graham pledged that she would help these
homeowners fight against the prevailing “[Uniform Commercial
Code (UCC)] system” by marshaling obscure parts of the “common
3
law.” Joint App’x at A-676, A-1110, A-1113. In reality, however,
Graham’s tactics were far more mundane. She and her
coconspirators would pretend to be employees of mortgagee banks,
send county title offices fake notices of discharge, and convince them
to erase any record of the banks’ interests in the subject properties.
Once Graham’s scheme was uncovered, the banks reinstated their
interests, but Terra’s “clients” could not recover the fees they had
paid. In all, the scheme temporarily erased nearly $40 million of
debt in connection with over 60 mortgage loans.
To execute the fraud, Terra used a “three-step procedure”: “(1)
an audit, (2) a ‘Qualified Written Request’ [QWR] to the client’s
mortgage lender, and (3) the filing of a discharge of mortgage in the
local clerk’s office.” Id. at A-54. Each QWR contained a series of
pseudo-legal questions, purportedly based on one of Terra’s “audits,”
demanding detailed narrative responses and documentary
submissions. If Terra received no response from the lender or
considered a response insufficient, it would claim that the lending
bank had ceded authority over the mortgage to Terra. One of
Graham’s coconspirators would then claim to be an agent of the
lending bank, prepare a notice of discharge, and file it with the
relevant county clerk.
Terra collected substantial fees from these homeowners in
consideration for the promise of debt relief. For example, Augustine
Alvarez testified that in 2011, Terra employees told him that they
could render his mortgage debt “reduced or eliminated.” Id. at A-
376. After paying $1100 upfront and completing a so-called “UCC
Financing Statement” form, Alvarez waited for nearly a year until
Terra provided him with an authentic title search showing that his
4
mortgage had been removed from county records. Id. at A-377. In
exchange, Alvarez—who had been, prior to Terra’s involvement,
barely able to satisfy his mortgage payments—wrote Terra two
checks for $250,000 each. Soon thereafter, Alvarez’s bank notified
him that the mortgage had been removed pursuant to a “fraudulent
transaction” and had thus been reinstated. Id. at A-388. Alvarez
tried repeatedly to contact Terra affiliates, who dodged his calls and
ultimately refused to return his money.
The government introduced evidence that Graham had
directed the fraudulent scheme as the head partner of Terra.
Witness testimony suggested that she personally helped prepare the
QWRs and other documents. And documentary evidence showed
her control of Terra’s finances, including its bank accounts.
The defense principally argued that Graham lacked the
requisite knowledge of the fraudulent means of the scheme. In
particular, defense counsel argued that Graham “believed in good
faith that the unorthodox methods and unconventional programs that
she promoted . . . would help homeowners stay in their homes.” Id.at A-1007. To rebut this argument, the government introduced,
among other evidence: (1) Graham’s communications with
coconspirators scolding them for sending multiple QWRs “to the
same lender for the same client” because the QWRs would soon “look
like some bull****,” Supp. App’x at SA-90; (2) Graham’s handwritten
confession admitting her participation in the creation and distribution
of “fraudulent mortgage discharges” and her “aware[ness] [that her]
partners were committing fraudulent acts,” id. at SA-71; (3) Graham’s
insistence that customers pay upfront; (4) Graham’s attempts to move
5
Terra’s proceeds offshore; and (5) Graham’s efforts to remove her
name from many of Terra’s documents and bank accounts.
B. Procedural History
1. Pretrial
In November 2016, a grand jury returned an indictment
charging Graham and four coconspirators with a single count of
conspiracy to commit mail, wire, and bank fraud, in violation of 18
U.S.C. § 1349. On April 2, 2019, just over one month before the
scheduled trial date, the government sent a letter to the district court
requesting a conference with Graham and her counsel. The
government represented that it had transmitted a plea offer to
Graham’s counsel on February 22, 2019 and that the offer had expired
nearly one month prior to the April 2 letter. The government had
not received a response and was thus concerned that Graham may
not have “received, understood, discussed with her counsel, and
rejected” the offer. Joint App’x at A-82. The government noted
that all parties still had to “invest significant time and effort into
preparing for trial,” so it would be advisable to act “at the Court’s
earliest convenience in order to ensure that Graham fully understood
the plea offer and, if she intended to reject it, did so with a full
understanding of the consequences of such a rejection.” Id. 1
1 The letter also presumed that if Graham asserted that she had not
received and understood the offer, and if the government declined to
reissue it, the district court would have to “hold a hearing” as late as the
eve of trial, and the outcome of that hearing might be to override the
government’s decision not to reissue the offer. See Joint App’x at A-82
(expressing concern that the hearing, if delayed, “might render all of the
6
The district court held a conference on April 10, 2019.
Graham’s counsel told the court that he had shared the “substance”
of the plea agreement with Graham—he was not sure when—but he
had not transmitted the agreement itself. Id. at A-90. Counsel
explained that the reason for this was that he “knew that this plea
offer would not be received well on [Graham’s] part.” Id. at A-100.
Graham stated that she had not heard anything about the plea
agreement until the “end of March via email.” Id. at A-99. The
court then instructed the government to provide a copy of the
agreement—on the record—directly to Graham, remarking:
I don’t want this later to come back to haunt us, so to
speak. I don’t want there to be a claim made that this
plea offer was not conveyed to [Graham], and that she
didn’t have an opportunity to review it and understand
it; and that she has made a determination not to accept
the plea offer and that we are, in fact, going to trial . . .
I just want her to make sure . . . [that] she has a full
understanding of the offer that has been made, and she
has made a knowing and intelligent decision to proceed
to trial if that’s what she wants to do; and if she wants to
go to trial, I have no problems with that. I just want to
make sure that those decisions are made intelligently and
knowingly, and that there is no basis for her later coming
before the Court and saying that she was not aware that
a plea offer was made and the consequences of it, of
either accepting or denying the plea offer.
Court’s, Government’s, and [defense counsel’s] [additional] work and
preparation for naught”).
7
Id. at A-90 to -92. Graham reviewed the offer with trial counsel and,
through counsel, indicated on the record that she wanted more time
to consider it. The government explained that the offer had already
expired but stated that it “would probably be able to get it
reauthorized” if Graham so requested and that the government was
also open to “alternative ways of structuring” a deal if Graham
returned to negotiations “sooner rather than later.” Id. at A-96.
The court then reiterated that it “want[ed] the record to be clear, that
[Graham had] been given an opportunity to review the plea offer that
was conveyed.” Id. at A-97.
At the same conference and immediately after this exchange,
the district court dismissed Graham’s attorney due to a “breakdown
of communication”—which the court partly attributed to Graham’s
decision to remain in California prior to trial—and appointed Graham
new trial counsel. Id. at A-101. The court then stated that new
counsel would “probably want an opportunity to review the plea
offer as well and discuss it with” Graham, id. at A-105, and the court
told Graham directly that if she wanted to explore further plea
discussions she could do so with new counsel. Graham
acknowledged the court’s instruction.
Graham did not raise the issue again with the district court at
any time before trial. At the final pretrial conference on May 31,
2019, the government stated that it had “not made any new offers” or
been “asked to reopen any offers.” Id. at A-172. Graham’s new
counsel did not dispute the government’s characterization and said
that he “expect[ed] to be in front of the Court on Monday ready to
select a jury.” Id.8
2. Trial and Appeal
Jury selection began on June 3, 2019, almost two months after
the conference regarding the government’s plea offer. After a six-
day trial, the jury returned a verdict of guilty. The district court
sentenced Graham to 132 months’ imprisonment, followed by five
years’ supervised release. The court also ordered over $800,000 in
restitution and forfeiture.
Graham timely appealed. Oral argument was held on March
1, 2022, and we ordered supplemental briefing on Graham’s
ineffective-assistance claim on March 15, 2022. Briefing was
completed on April 18, 2022.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Graham argues that her pretrial counsel’s failure to
communicate the government’s plea offer entitles her to
reinstatement of the offer, followed by resentencing. For the reasons
that follow, we conclude that even assuming counsel’s alleged failure
gave rise to an ineffective-assistance claim, any such claim has since
been waived.
1. Doctrinal Background
The Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. The right to counsel
necessarily includes “the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added)
(citation omitted). And it is well-established that the Sixth
9
Amendment entitles a defendant to relief when (1) counsel’s
“deficient performance” has (2) “prejudiced the defense” by leading
to a conviction at trial or to an ill-advised guilty plea. Id. at 687; see
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). A defendant satisfies the
performance prong by proving that counsel failed to provide
“reasonably effective assistance” in executing the defense.
Strickland, 466 U.S. at 687. And the prejudice prong requires a
defendant to show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
In a pair of companion cases in 2012, the Supreme Court held
that the right to effective assistance “for [one’s] defence” encompasses
a right to effective assistance in forgoing a defense. In the first case,
Missouri v. Frye, the Court held that, although no defendant has a right
to a plea bargain, once such a bargain has been offered, the Sixth
Amendment is violated when a defendant loses the opportunity to
benefit from the offer without the advice of competent counsel. See
566 U.S. 134, 142-44, 148 (2012). In Frye, the defendant’s counsel had
failed to advise him that the government transmitted a plea offer
before that offer expired. The defendant then entered a guilty plea
without the benefit of the bargain. Id. at 138–39. Applying
Strickland’s performance prong, the Court held that “[w]hen defense
counsel allowed the offer to expire without advising the defendant or
allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires.” Id. at 145. As for the
prejudice prong, the Court explained that a defendant must show a
“reasonable probability” that “they would have accepted the . . . plea
offer had they been afforded effective assistance of counsel,” that “the
plea would have been entered without the prosecution canceling it or
10
the trial court refusing to accept it,” and that “the end result of the
criminal process would have been more favorable by reason of a plea
to a lesser charge or a sentence of less prison time.” Id. at 147. The
Court did not resolve whether the defendant in Frye had satisfied the
prejudice prong and left the issue for remand. See id. at 151.
In the other case, Lafler v. Cooper, 566 U.S. 156 (2012), the
defendant alleged that he had been improperly advised to reject a
plea offer and was later convicted at trial. The government
conceded that defense counsel was deficient in advising the
defendant not to accept its plea bargain, and the Court concluded that
the defendant was indeed prejudiced by proceeding to trial rather
than taking the deal. The Court then turned toward structuring a
remedy aimed at “neutraliz[ing] the taint of [the] constitutional
violation, while at the same time not grant[ing] a windfall to the
defendant or needlessly squander[ing] the considerable resources”
put toward a prosecution. Id. at 170 (cleaned up) (citation omitted).
When the only advantage a defendant would have received by
accepting the plea is a lesser sentence, remand for resentencing is
proper so that a district court may “exercise discretion in determining
whether the defendant should receive the term of imprisonment the
government offered in the plea, the sentence he received at trial, or
something in between.” Id. at 171. When, however, resentencing
would not “full[y] redress” the constitutional injury, the court may
“require the prosecution to reoffer the plea proposal . . . [and] then
[on remand] exercise discretion in deciding whether to vacate the
conviction from trial and accept the plea or leave the conviction
undisturbed.” Id.11
2. Graham’s Waiver
Graham asserts that this case is directly controlled by Frye: The
government made her an offer, which her counsel failed to convey to
her. The government contends that more factual development on
collateral review is needed to determine whether Graham has a viable
ineffective-assistance claim and that the court should defer resolution
of her claim.
We need not reach these arguments because we hold that any
such ineffective-assistance claim has been waived. “[W]aiver can
result only from a defendant’s intentional decision not to assert a
right.” United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015). “As
a general proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.” Berghuis v. Thompkins,
560 U.S. 370, 385 (2010); see also United States v. Yu-Leung, 51 F.3d 1116,
1122 (2d Cir. 1995) (“If . . . [a] party consciously refrains from
objecting as a tactical matter, then that action constitutes a true
‘waiver,’ which will negate even plain error review.” (citation
omitted)); Hemphill v. New York, 142 S. Ct. 681, 694–95 (2022) (Alito, J.,
concurring) (explaining that waiver “is predicated on [either] conduct
evincing intent to relinquish the right” or “action inconsistent with
the assertion of that right”).
In Frye, the defendant “had no knowledge of the [plea offer]
until after he was convicted, sentenced, and incarcerated.” Frye v.
State, 311 S.W.3d 350, 352 (Mo. Ct. App. 2010), vacated, 566 U.S. 134.
But here, Graham acknowledged the expired plea offer on the
record—and was appointed new, competent counsel—nearly two
12
months before trial began. The government, going above and
beyond its obligations, sent a letter to the district court on April 2,
2019, explaining that it had received no response to its plea offer and
requesting that the court schedule a conference. The district court
held a hearing on April 10, during which Graham reviewed and
acknowledged the offer on the record. Graham stated that she
wanted time to consider how to proceed and received new counsel to
help her do so. Two months later, she proceeded to trial without any
further mention to the court of the expired offer.
Graham’s choice was plainly inconsistent with vindicating her
rights under Frye and Lafler. Those cases held that defendants have
a contingent right to benefit from a plea offer in the sense that, once
an offer has been made, a defendant is entitled to the advice of
competent counsel before rejecting the offer or letting it expire. See,
e.g., Lafler, 566 U.S. at 163–64 (“[I]neffective advice led not to an offer’s
acceptance but to its rejection. Having to stand trial, not choosing to
waive it, is the prejudice alleged.”). Proceeding to trial is
incompatible with a pretrial plea agreement, which of course requires
a defendant to enter a guilty plea. 2 Graham could not both proceed
2 The concurrence disagrees that Graham waived her Frye right and
refers to the “well-established processes and procedures to ensure that . . . a
plea is entered voluntarily, knowingly, and intelligently,” citing Fed. R.
Crim. P. 11(b). Concurrence at 5–6. But Rule 11(b) prescribes procedures
for when a defendant is “considering and accepting a guilty or nolo
contendere plea”—i.e., waiving the right to trial. Fed. R. Crim. P. 11(b).
But Graham’s case relates to waiver of her right to a plea offer, to which Rule
11(b) does not apply. Cf. United States v. Albarran, 943 F.3d 106, 113 & n.5
(2d Cir. 2019) (explaining that the purpose of “a Frye hearing” is “to ensure
that a full and accurate communication on the subject has occurred” so that
13
to trial and benefit from the government’s conditional offer, which—
even under the special rights conferred by Frye and Lafler—required
a guilty plea. She could not have availed herself of both options in
real time, so waiver rules preclude her from doing so now.
The remedy that Graham seeks highlights why her ineffective-
assistance claim is waived. Graham asks us to enter a judgment
forcing the government to reinstate its old, expired plea offer so that
she may now plead guilty under its terms. 3 But Graham already
chose not to pursue that offer by going to trial with full awareness of
the offer’s existence under the advice of competent counsel. That is,
after the April 10, 2019 conference, Graham had the option either (1)
to exercise her Frye right to compel the government to revive the
expired plea offer, and then accept that offer or negotiate its terms; 4
or (2) to proceed to trial. 5 From at least April 10 on, Graham (with
her new counsel) was aware of any Frye errors committed by her
a defendant “fully underst[ands] the terms of the plea agreement that he
[is] rejecting” (emphasis added)).
3 The other remedy available under Lafler—resentencing alone—
would not make any sense here because the district court already knew
about the expired plea offer well before Graham was sentenced. In any
event, either approach would be equally inconsistent with Graham’s choice
to go to trial because it would aim to give Graham the benefit of a plea offer
that had required her to plead guilty.
4 Even then, the district court could still exercise “discretion” in
determining whether to accept the plea, and it could base that discretion on
intervening events between the time of the original offer and the time of the
request. See Lafler, 566 U.S. at 170–71.
5 Graham also could have negotiated with the government without
first seeking reinstatement of the offer; such bargaining would have
occurred in the shadow of Graham’s Frye rights.
14
former attorney. But she chose not to seek reinstatement of the deal,
invoking her trial right instead. Graham may not undo the
consequences of that decision on appeal. 6
Without a waiver rule, a defendant in Graham’s position would
have little reason to exercise her Frye rights before trial. Such a
defendant could instead go to trial and hope for an acquittal, knowing
that she could force the government to reoffer the same, expired
pretrial deal if she were convicted.7 Or she could try to trade her free
roll of the dice for a new, better deal with the government. Either
way, Frye would give a defendant the option to rewind the clock after
6 Graham asks us to create an exception to the “usual principles of
determining waiver” for Frye and Lafler errors by requiring some sort of
additional formal judicial proceeding. Appellant’s Supp. Br. at 4 (quoting
Berghuis, 560 U.S. at 383). We decline to do so. Graham’s two examples
of special rules—Curcio and Faretta hearings—both involve circumstances
in which the court cannot be sure that the defendant is adequately
represented. See id. (first citing United States v. Arrington, 941 F.3d 24, 40
(2d Cir. 2019) (describing Curcio hearings for possibly conflicted counsel);
and then citing Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998)
(describing Faretta hearings for pro se representation)). Here, there has
been no suggestion that Graham’s trial counsel after the April 10 conference
was ineffective, conflicted, or absent.
7 We do not mean to suggest that courts are generally required to
give a defendant the full benefit of the original bargain in cases where the
ineffective-assistance claim was not waived. To the contrary, Lafler
emphasized that judges must use “discretion”—either in “determining
whether the defendant should receive the term of imprisonment the
government offered in the plea, the sentence he received at trial, or
something in between” or in “deciding whether to vacate the conviction
from trial and accept the plea or leave the conviction undisturbed.” 566
U.S. at 171. But such remedial measures do not displace ordinary waiver
rules.
15
a guilty verdict, violating the Supreme Court’s instruction that a Sixth
Amendment remedy should not “grant a windfall to the defendant.”
Lafler, 566 U.S. at 170. This sort of gamesmanship is, of course,
precisely what waiver rules guard against. See United States v. Gersh,
328 F.2d 460, 463 (2d Cir. 1964) (Friendly, J.) (noting that there would
be waiver where a party had knowledge of an error “but had
nevertheless stood mute, gambling on an acquittal while holding this
issue in reserve”).
The Frye Court anticipated precisely this scenario when
explaining how courts can prevent “late, frivolous, or fabricated
claims” of expired plea offers raised only “after a trial leading to
conviction with resulting harsh consequences.” 566 U.S. at 146.
The Court explained that trial judges could make “formal
offers . . . part of the record at any subsequent plea proceeding or
before a trial on the merits, all to ensure that a defendant has been fully
advised before those further proceedings commence.” Id. (emphasis
added). The district court heeded that advice here and recognized
that a Frye error could “haunt” the case if not redressed immediately.
Joint App’x at A-90. So the court summoned Graham to New York
from California, ensured that she was aware of the offer, and required
her to review it on the record. The district court stated clearly and
repeatedly that the purpose of this conference was to avoid any
belated claim “that this plea offer was not conveyed to [Graham],”
“that she didn’t have an opportunity to review it and understand it,”
or that Graham made anything other than a “knowing and intelligent
decision to proceed to trial if that’s what she wants to do.” Id. at A-
90 to -91. The court also appointed new counsel that day to aid
Graham in her decision. These efforts were aimed at putting
Graham in a position to exercise her Frye rights before trial, not to grant
16
her the option to seek to vacate her conviction after a guilty verdict.
See United States v. Draper, 882 F.3d 210, 218 (5th Cir. 2018) (rejecting
the argument that “Frye permits district judges to identify [ineffective
assistance] but not to remedy it” before a trial or subsequent plea). 8
Entertaining Graham’s claim now would both penalize the
government for proactively bringing a possible error to the court’s
attention and disregard the court’s conscientious efforts to correct it.
Typically, a waiver of rights arises from the choice to plead
guilty, not from exercising the right to go to trial. See Fed. R. Crim.
P. 11; Class v. United States, 138 S. Ct. 798, 805 (2018). Accordingly,
we appreciate that it may seem unusual to cast the decision to go to
trial—itself a right enshrined by the Sixth Amendment—as waiver of
some other right. But that is so only because outside the context of
Lafler and Frye, there is no “right” to a plea bargain at all nor a “right”
that the judge accept a plea offer. See Frye, 566 U.S. at 148–49 (first
citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977); and then citing
Santobello v. New York, 404 U.S. 257, 262 (1971)). Waiver here takes a
unique form because Frye and Lafler convey unique rights. A
defendant waives a right to trial by pleading guilty; we have no
trouble concluding that she waives a contingent right to plead
8 The concurrence states that “the district court should have done
more.” Concurrence at 7. We respectfully disagree. The district court
informed Graham of the government’s offer, described the consequences of
accepting or declining the offer, and suggested that Graham review the
offer with new counsel. See supra at 7-8. In light of that colloquy, it’s hard
to see how Graham’s decision to go to trial was not knowing and intelligent
or to fault the district court for not doing more.
17
guilty—the kind granted by Frye and Lafler—by making a knowing
and intelligent decision to proceed to trial. 9
3. The Government’s Purported “Waiver”
Graham and the concurrence respond that we should look past
Graham’s waiver because the government did not mention waiver in
its principal brief. See Concurrence at 1-3. According to the
concurrence, the government abandoned this argument on appeal by
failing to raise Graham’s waiver in its opposition brief and expressing
“serious doubt” about waiver when questioned during oral
argument. Id. at 1-2. In other words, the government itself
“waived” the waiver argument.
This reasoning is flawed. To be sure, we have at times used
the shorthand “waiver” to describe a party’s failure to raise an
argument in its brief on appeal. See, e.g., Norton v. Sam’s Club, 145
F.3d 114, 117 (2d Cir. 1998); United States v. Brown, 352 F.3d 654, 663
(2d Cir. 2003) (“waiver” of waiver argument). 10 But as a formal
9 Nothing in this opinion should be construed as holding that waiver
of a Lafler or Frye right can occur only beginning on the first day of trial.
We need not decide whether Graham’s waiver occurred even earlier, i.e.,
whether some other action she took before the start of trial was also
inconsistent with timely pursuing reinstatement of the expired plea offer.
For example, a defendant may not act inconsistently with exercising rights
under Frye, learn that the government has discovered strong inculpatory
evidence, and then ask the court to reinstate a stale, expired offer after the
fact. We need not develop the record here further because it is clear
already that, at least by the time trial commenced, Graham’s course of
conduct was inconsistent with vindicating any Frye rights.
10Despite use of the term “waiver,” we have never treated omission
of an argument alone as the “intentional relinquishment of a known right,”
which is why unlike in instances of true waiver, we emphasize that a failure
18
matter, this confuses several distinct concepts. One set of rules—
waiver and forfeiture—governs when a court may subtract from the
arguments raised on appeal. Waiver, the “intentional
relinquishment or abandonment of a known right” at or before the
time of appeal, “extinguish[es] an error” along with any appellate
review. United States v. Olano, 507 U.S. 725, 733 (1993) (cleaned up);
see Yu-Leung, 51 F.3d at 1121 (“[W]aiver necessarily ‘extinguishes’ the
claim.” (citation omitted)). Forfeiture, a mere “failure to make the
timely assertion of a right” when procedurally appropriate, allows a
court either to disregard an argument at its discretion (in civil cases)
or otherwise subject it to plain-error review (in criminal cases).
Olano, 507 U.S. at 733; see Greene v. United States, 13 F.3d 577, 585–86
(2d Cir. 1994) (civil cases); Fed. R. Crim. P. 52(b) (criminal cases). 11
A different rule, the party-presentation rule, governs when a
court may add to the issues raised on appeal. The party-presentation
rule reflects the principle that courts “normally decide only questions
to raise an argument does not extinguish appellate review entirely. See
Norton, 145 F.3d at 117 (noting these arguments “normally will not be
addressed on appeal” (emphasis added)).
11 Graham’s confusion of waiver and forfeiture also explains why
her reliance on Massaro v. United States, 538 U.S. 500 (2003), is misplaced.
There, the Supreme Court rejected this Circuit’s rule that ineffective-
assistance claims should be raised on direct appeal rather than collateral
review. Although the Court occasionally used the term “waiver,” it was
expressly evaluating a rule of “procedural default”—i.e., forfeiture—and
accordingly determining at what time it was “preferable” to require
ineffective-assistance claims after trial. Id. at 503–04. The case was about
the efficient handling of claims, not the intentional relinquishment of a
known right; procedural default, unlike true waiver, is excused with a
showing of cause and prejudice. Id. at 504, 506.
19
presented by the parties” and may play only “a modest initiating
role” in shaping the arguments before them. United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (citation omitted). Here,
Graham raised a claim of ineffective assistance of counsel, and we
ordered supplemental briefing on whether that claim was waived.
Graham and the concurrence object to our decision to do so and to
decide her claim on that ground now. See Concurrence at 1-3. This
objection to the government’s allegedly “abandoned claim[]” thus
sounds in the party-presentation rule. Id. at 2. But “it cannot be a
departure from the principle of party presentation to decide the issue
on which the appellant relies for relief.” United States v.
Moyhernandez, 5 F.4th 195, 207 (2d Cir. 2021) (emphasis added), cert.
granted, vacated, and remanded on other grounds, 142 S. Ct. 2899 (2022)
(mem.). 12 In other words, because we are not “hidebound by the
12 Moreover, the district court was clearly concerned about the
waiver issue, as it articulated at the Frye conference. See supra at 7-9. And
once we ordered supplemental briefing, the government endorsed the
proposition that Graham waived her claims. We thus conclude, with the
benefit of supplemental briefing, that the district court ensured that
Graham had the opportunity to assert her Frye right after being presented
with the expired plea offer. See supra at 14-18. In any event, the
government’s arguments in its principal brief—mostly regarding the lack
of prejudice to Graham, assuming there was deficient performance—
focused on the timing of Graham’s representations to the court and to the
government, her appointment of new counsel, and her decision to go to
trial. Our “modest initiating role” was to ask the parties whether
Graham’s central claim on appeal was waived. Sineneng-Smith, 140 S. Ct.
at 1579. The parties have now fully addressed the waiver issue, and so we
decide that issue today.
The concurrence states that we have engaged in a “sua sponte
application[] of waiver” or even judicial immodesty. Concurrence at 3.
20
precise arguments of counsel,” Sineneng-Smith, 140 S. Ct. at 1581, we
may affirm a judgment of the district court on any ground that is
directly responsive to an appellant’s arguments. That is why we
may affirm a judgment even when an appellee submits no brief at all.
See Fed. R. App. P. 31(c). In considering Graham’s ineffective-
assistance argument, we find the issue waived, which “necessarily
extinguishes” the error and our review, so we decline to opine on its
hypothetical merits. Yu-Leung, 51 F.3d at 1121 (cleaned up).
* * *
In sum, even assuming that Graham would have accepted the
government’s offer if it had been timely presented to her by her prior
counsel, once competent counsel was appointed, she elected not to
exercise her Frye rights and chose to take her chances at trial instead.
She cannot now revive any Frye remedies on appeal. The record
already reflects Graham’s review of the plea offer and the court’s
appointment of new counsel, so there is no need for further fact-
finding. We thus reject Graham’s claim for relief without waiting for
a collateral challenge.
B. Evidentiary Rulings and Jury Charge
Graham also raises several challenges to the admission of
evidence and jury instructions at trial. All are meritless.
We respectfully disagree. It is the concurrence’s approach that would
have us discredit the district court’s efforts, reach the merits, and apply Frye
to the facts of Graham’s case. See id. at 11–12.
21
1. Other Acts Evidence
At trial, the government introduced evidence of (a) Graham’s
participation in an electronic funds transfer (“EFT”) scheme that
purported to eliminate debts by writing checks against a zero-balance
checking account; and (b) Graham’s attempts to improve a victim’s
credit score using sham methods. As to both sets of evidence, the
district court provided a limiting instruction that the evidence could
be used only to show intent, mental state, or lack of good faith. We
review for abuse of discretion. See United States v. Rowland, 826 F.3d
100, 114 (2d Cir. 2016).
Graham argues that admitting this evidence ran afoul of
Federal Rule of Evidence 404(b), which provides:
(1) Prohibited Uses. Evidence of any other crime, wrong,
or act is not admissible to prove a person’s character in
order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.
In general, “‘[o]ther act’ evidence serves a proper purpose so long as
it is not offered to show the defendant’s propensity to commit the
offense.” United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011).
“This Circuit follows the ‘inclusionary’ approach, which admits all
‘other act’ evidence that does not serve the sole purpose of showing
the defendant’s bad character and that is neither overly prejudicial
under Rule 403 nor irrelevant under Rule 402.” Id. at 56 (citation
omitted). Relevance toward a permissible purpose often turns on
22
the similarity between the prior act and the charged offense. See, e.g.,
United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002).
a. EFT Scheme
The government introduced evidence that, concurrently with
the charged fraud, Graham instructed a coconspirator, Rocco
Cermele, to etch markings on checks in “[c]ertain colors” of ink so that
they could be drawn against closed checking accounts to cover
Cermele’s debts. Joint App’x at A-799. The evidence included two
email chains between Graham and Cermele. In the first, Graham
says that she will detail the method to Cermele, and in the second,
Cermele explains that his efforts to avail himself of the scheme were
fruitless.
We agree with the government that this evidence was probative
of Graham’s fraudulent intent. At trial, Graham’s principal defense
was that she lacked the requisite mental state for a fraud conspiracy
conviction. “[W]here it is apparent that intent will be in dispute,
evidence of prior or similar acts may be introduced during the
government’s case-in-chief . . . .” United States v. Pitre, 960 F.2d 1112,
1120 (2d Cir. 1992). Even when “the [other bad] acts and the charged
conduct d[o] not involve exactly the same co-conspirators, [conduct],
or temporal timelines,” the evidence may still be “[]sufficiently
relevant or probative” to be admitted. United States v. Dupree, 870
F.3d 62, 77 (2d Cir. 2017). Here, the EFT scheme was done at the
same time as the charged conspiracy, with the same coconspirators,
and with the same hallmarks—“unconventional” financial techniques
used to purportedly discharge debt. The district court properly
admitted this evidence.
23
b. Credit Repair Scheme
The government also introduced testimony from one of the
victims of the charged fraud, Sherry Hopple. According to Hopple,
Graham had induced her to redirect $25,000 worth of mortgage
payments to Graham, after which Hopple would declare bankruptcy.
When this ploy did not save Hopple and her husband from financial
trouble, the pair had to leave their home, and her husband’s credit
score plummeted. Graham said that she could boost that score into
the 700s or 800s as she had purportedly done for three other clients—
indeed, supposedly removing any record of their foreclosures from
their credit reports within ten days.
We agree with the government that this evidence was properly
admitted as “direct evidence of the crime charged” because it “arose
out of the same transaction or series of transactions as the charged
offense, . . . [was] inextricably intertwined with the evidence
regarding the charged offense, or . . . [was] necessary to complete the
story of the crime on trial.” United States v. Hsu, 669 F.3d 112, 118 (2d
Cir. 2012) (citation omitted). First, the evidence tended to show
conduct that was intertwined with the charged fraud, of which
Hopple was a victim. Second, the jury could have found that the
credit repair scheme served to “lull” Hopple into not reporting
Graham or working with authorities against her. Cf. United States v.
Lane, 474 U.S. 438, 451–52 (1986) (explaining that lulling can be in
furtherance of fraudulent conduct). Third, Graham’s purported
offer to help could be taken as evidence of fraudulent intent by taking
steps to mask her missteps. See United States v. Kelley, 551 F.3d 171,
176 (2d Cir. 2009) (holding that subsequent acts to hide a fraud
“indicate[d] that [Defendant’s] actions in defrauding his clients were
24
not simple mistakes but were instead part of a larger, intentional
scheme to defraud”). Any one of these reasons would be sufficient
to admit the evidence, and the district court did not abuse its
discretion by doing so.
2. Red-Flag Evidence
The government also introduced certain “red flag” emails sent
among Graham, Cermele, and an outside attorney. The attorney,
after learning of Graham’s methods, gave a detailed explanation of
why they were illegitimate. Referring to those methods, he
summarized that he could “unequivocally say that the filing of those
liens, the transfer of the properties, the creation of the trusts, etc.,
constitutes a crime.” Joint App’x at A-1107. Graham responded by
asserting that this attorney was uneducated in the “common law,”
and she later wrote that “title companies . . . are LAWYER owned and
part of the UCC system we fight against.” Id. at A-1110, A-1113.
The district court instructed the jury to use these emails as evidence
only of Graham’s intent, knowledge, or lack of good faith.
Graham contends that these emails were inadmissible hearsay,
see Fed. R. Evid. 801, 802, and that they unduly prejudiced the jury by
providing a legal opinion, see Cameron v. City of N.Y., 598 F.3d 50, 62
(2d Cir. 2010). Again, we disagree. The evidence was introduced
not for the truth of the matter asserted—i.e., that Graham’s actions
were in fact illegitimate—but rather to show her fraudulent intent
and, indeed, her knowledge that she was breaking the law. In other
words, the evidence “rebut[ted] [Graham’s] argument that [she] had
no reason to know [her conduct] was fraudulent.” United States v.
Dupre, 462 F.3d 131, 137 (2d Cir. 2006).
25
Nor did the emails create a risk of prejudice that substantially
outweighed their probative value. See Fed. R. Evid. 403; United
States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994) (noting that we look at
“whether the probative value of th[e] evidence for its non-hearsay
purpose is outweighed by the danger of unfair prejudice resulting
from the impermissible hearsay use of the declarant’s statement”).
The danger of prejudice was low because there was no reasonable
dispute that Graham used illegitimate means to eliminate the debts of
Terra’s clients. And the probative value of the evidence was high
because it tended to undermine Graham’s argument that she lacked
mens rea. Moreover, the court gave a limiting instruction that the
evidence could be considered “for a very limited purpose” as to her
intent, which it repeated during the general jury charge. Supp.
App’x at SA-56. The “law recognizes a strong presumption that
juries follow limiting instructions.” United States v. Snype, 441 F.3d
119, 129 (2d Cir. 2006). We thus conclude that admission of the
evidence was not an abuse of discretion.
3. Conscious-Avoidance Instruction
Finally, Graham argues that the district court erred by
instructing the jury on conscious avoidance, also known as willful
blindness. In general, a criminal conspiracy conviction requires
actual knowledge of the unlawful aims of the conspiracy, but a
“defendant’s conscious avoidance of knowledge of the unlawful aims
of the conspiracy . . . may be invoked as the equivalent of knowledge
of those unlawful aims.” United States v. Svoboda, 347 F.3d 471, 480
(2d Cir. 2003). The conscious-avoidance doctrine applies to a
defendant who “consciously avoided learning [a] fact while aware of
a high probability of its existence.” Id. at 477 (citation omitted); see
26
also Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766–67 (2011).
An instruction on the doctrine is proper when the “factual predicate
for the charge” exists such that “a rational juror may reach the
conclusion beyond a reasonable doubt that the defendant was aware
of a high probability of the fact in dispute and consciously avoided
confirming that fact.” Svoboda, 347 F.3d at 480 (cleaned up). We
review jury instructions de novo and find error only if “the charge,
taken as a whole, [is] prejudicial.” United States v. Caban, 173 F.3d 89,
94 (2d Cir. 1999).
We conclude that there was sufficient evidence for a rational
jury to conclude that Graham consciously avoided evidence of
wrongdoing. In addition to the “red flag” emails, see supra Section
II.B.2, and much of the evidence of actual knowledge, see supra at 5-6,
the government introduced evidence showing Graham’s active
disregard of information tending to show a high probability of the
fraudulent aims of the conspiracy. For example, the government
introduced comments from title companies expressing alarm at
Graham’s methods. It also recounted that law enforcement raided
Graham’s office in 2012, after which Graham’s criminal conduct
continued. The government’s evidence served to show that Graham
ignored these signals and told others not to engage with outside
lawyers or the title companies. There was therefore ample basis for
the district court’s conscious-avoidance instruction.
III. CONCLUSION
Graham’s ineffective-assistance claim was waived, and her
remaining arguments are meritless. For the foregoing reasons, the
judgment of conviction is affirmed.
27
20-832-cr
United States v. Graham
PÉREZ, Circuit Judge, concurring in the judgment as to Section II.A:
There is no debate that “criminal defendants require effective
counsel during plea negotiations” and that “anything less might deny
a defendant effective representation by counsel at the only stage when
legal aid and advice would help him.” Missouri v. Frye, 566 U.S 134,
144 (2012) (cleaned up). Binding precedent does not treat the right to
counsel during plea negotiations with short shrift.
I agree with the majority opinion that we should reject
Graham’s claim, though I would do so on the merits, instead of
finding waiver, because she is not able to prove the requisite
prejudice. As such, I respectfully concur in the judgment of the Court
in Section II.A, but not its discussion and conclusion as to waiver. I
fear that the majority opinion—after reaching beyond what the
parties initially argued—has muddied the waters concerning the right
to effective assistance of counsel in plea bargaining by finding waiver.
I.
The Court should not have reached for waiver here. To speak
plainly: the government abandoned this argument. The government
did not raise waiver in its opposition brief—it even expressed
serious doubt on whether there was a waiver when first questioned
about it during oral argument. 1 “It is well established that an
argument not raised on appeal is deemed abandoned[.]” United
States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (internal quotation
marks omitted); see also United States v. Olano, 507 U.S. 725, 732–33
(1993) (a party forfeits an argument when it “fail[s] to make the
1Counsel stated during oral argument that “ineffective assistance []
can be raised for the first time in collateral review, so I’m not sure that the
defendant was obligated to raise it at the time” before the district court.
Oral Arg. Audio Recording at 17:35–18:00.
timely assertion of a right,” subjecting it to plain error review); cf.
JLM Couture, Inc. v. Gutman, 24 F.4th 785, 801 n.19 (2d Cir. 2022)
(declining to address “belatedly” made arguments raised in reply
brief on appeal). Of course, this Court may consider abandoned
claims if “manifest injustice would otherwise result[.]” Quiroz, 22
F.3d at 491. But no one—even now after the government was
prodded by this Court to make a waiver argument—argues such
manifest injustice would occur here if we considered Graham’s
ineffective assistance claim. 2 Respectfully, I see much irony in that
the majority opinion easily finds Graham’s Frye claim waived but
declines to find the government’s new argument abandoned given
that the government would not have asserted waiver if not for a
request for supplemental briefing by this Court.
While it is true that there is “no right to be offered a plea . . . nor
a federal right that the judge accept it,” Frye, 566 U.S. at 148 (internal
citations omitted), there is no question that the Sixth Amendment
enshrines the right to counsel—“a right that extends to the plea-
bargaining process,” Lafler v. Cooper, 566 U.S. 156, 162 (2012); see also
Frye, 566 U.S at 138 (“The right to counsel is the right to effective
assistance of counsel.” (emphasis added)). As such, “the right to
adequate assistance of counsel cannot be defined or enforced without
taking account of the central role plea bargaining plays in securing
convictions and determining sentences.” Lafler, 566 U.S. at 170; see
also Frye, 566 U.S. at 143 (“The reality is that plea bargains have
become so central to the administration of the criminal justice system
that defense counsel have responsibilities in the plea bargain process,
2In fact, the government initially suggested additional fact finding
could be useful and that the Court should consider Graham’s ineffective
assistance claim if presented via a 28 U.S.C. § 2255 motion, as an alternative
argument to the record not supporting her claim.
2
responsibilities that must be met to render the adequate assistance of
counsel that the Sixth Amendment requires in the criminal process at
critical stages.”).
Something as bedrock to our criminal justice system and
judicial process—the right to effective assistance of counsel—
demands the judiciary be modest in its approach to doctrines that
may serve to limit the right, such as waiver. See, e.g., Carnley v.
Cochran, 369 U.S. 506, 514 (1962) (“[C]ourts indulge every reasonable
presumption against waiver of fundamental constitutional rights and
. . . do not presume acquiescence in the loss of fundamental rights.”
(internal quotation marks omitted)). Accordingly, when a
fundamental right such as the right to effective assistance of counsel
is implicated, sua sponte applications of waiver should be made with
considerable restraint.
II.
Even if waiver had been raised by the government in its initial
briefing, the government did not overcome the presumption against
waiver, or meet its burden for us to find Graham’s purported waiver
was knowing and intelligent.
“There is a presumption against the waiver of constitutional
rights[.]” Brookhart v. Janis, 384 U.S. 1, 4 (1966). “Whether a particular
right is waivable; whether the defendant must participate personally
in the waiver; whether certain procedures are required for waiver;
and whether the defendant's choice must be particularly informed or
voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733.
“Waiver is different from forfeiture. Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” Id. (internal
quotation marks omitted). There is no dispute that the Court has
3
discretion to correct certain errors that were forfeited using a plain
error analysis, and that, in most cases, forfeiture occurs when a
defendant fails to assert an objection in the district court due to
mistake or oversight. See United States v. Yu-Leung, 51 F.3d 1116, 1122
(2d Cir. 2015). But the Court has no such discretion to conduct a plain
error review if there was a true waiver. See id. The government must
prove waiver by a preponderance of the evidence. See, e.g., Berghuis
v. Thompkins, 560 U.S. 370, 384 (2010). Where this Court has found
waiver, “the record has supported the critical determination that the
defendant . . . acted intentionally in pursuing, or not pursuing, a
particular course of action.” United States v. Spruill, 808 F.3d 585, 597
(2d Cir. 2015).
A.
The record does not support a finding by a preponderance of
the evidence that any purported waiver was knowing and intelligent.
See Berghuis, 560 U.S. at 384; see also Brady v. United States, 397 U.S. 742,
748 (1970) (“Waivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.”).
This Court has recognized several instances where the district
court must conduct a meaningful inquiry with the defendant to
ensure that the waiver of a constitutional right was knowing and
intelligent. See, e.g., United States v. Ferguson, 758 F.2d 843, 850–51 (2d
Cir. 1985) (noting requirement that waiver of indictment be made in
open court, where the defendant is “informed of the nature of and the
cause for the accusation, and the court must be satisfied that the
defendant[] waive[s] their right[] knowingly, intelligently and
voluntarily” to safeguard Fifth Amendment right to an indictment);
United States v. Arrington, 941 F.3d 24, 39–40 (2d Cir. 2019) (requiring
4
the defendant participate in Curcio hearing for possibly conflicted
counsel to safeguard Sixth Amendment right to effective assistance of
counsel); Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998)
(requiring the defendant participate in Faretta hearing before allowing
the defendant to proceed pro se to safeguard Sixth Amendment right
to counsel); see also United States v. Carmenate, 544 F.3d 105, 108 (2d
Cir. 2008) (“strongly encourag[ing] the district court to give
appropriate warnings and question a defendant on the record” before
finding waiver of right to jury trial). 3
And there is no dispute that deciding to waive the
constitutional right to trial and instead plead guilty is among the
decisions that a defendant must personally participate in, and there
accordingly are well-established processes and procedures to ensure
that such a plea is entered voluntarily, knowingly, and intelligently.
See Fed. R. Crim. P. 11(b), (c); Taylor v. Illinois, 484 U.S. 400, 417–18,
418 n.24 (1988); see also Brookhart, 384 U.S. at 7–8; United States v.
Livorsi, 180 F.3d 76, 79–80 (2d Cir. 1999) (explaining that Rule 11 is
“designed to assist the district judge in making the constitutionally
3 The majority opinion dismisses Arrington and Torres as inapposite
because each “involve[s] circumstances in which the court cannot be sure
that the defendant is adequately represented.” Op. at 15 n.6. The animating
concern of Arrington and Torres, ensuring the Sixth Amendment right to
adequate assistance of counsel, is present here. In any case, the district
court had good reason to believe that Graham had not been adequately
represented in plea negotiations before she was appointed new counsel,
because former counsel indicated that he had only conveyed the
“substance” of the plea agreement, but not the offer itself, and Graham
indicated that that communication was in late March—seemingly after the
offer had expired. Joint App’x at A-90, A-99. While there has been no claim
that counsel after the April 10 conference was ineffective, that does not
mean the district court should not have taken steps to ensure any earlier
Sixth Amendment violation was actually adequately remedied.
5
required determination that a defendant’s guilty plea is truly
voluntary” and that the defendant “knows the consequences of doing
so” (quoting United States v. Maher, 108 F.3d 1513, 1520 (2d Cir. 1997)).
Frye, which indisputably implicates both the right to effective counsel
and the right of a defendant to accept a plea offer once made, see Op.
at 17–18, Frye, 566 U.S. at 148–49, accordingly demands a robust
process. 4
As the majority opinion aptly notes, it is not as if “Frye permits
district judges to identify [ineffective assistance] but not to remedy it
before a trial or subsequent plea.” Op. at 17 (quoting United States v.
Draper, 882 F.3d 210, 218 (5th Cir. 2018)) (internal quotation marks
omitted). To its credit, the district court did acknowledge the
potential Frye issue and raised its concern for the parties, stating that
it did not want this Frye issue “to come back to haunt us, so to speak.”
Joint App’x at A-90. Recognizing that the scenario was dynamic and
unfolding in real-time, merely acknowledging the potential for a Frye
4 As the majority opinion highlights in citing United States v. Albarran,
Frye hearings involve distinct procedures, where the “court strives to
ensure that a full and accurate communication on the subject has occurred”
so a defendant “fully underst[ands] the terms of the plea agreement that he
[is] rejecting.” 943 F.3d 106, 113 & n.5 (2d Cir. 2019); Op. at 13–14 n.2. But
Graham did not have a Frye hearing like the defendant in Albarran, where
before the defendant stated on the record that he was rejecting the
government’s proposed plea agreement, the government reviewed the
specific terms of the proposed plea agreement, identified the elements to
which the defendant would plead guilty, listed the rights the defendant
would forfeit by entering a guilty plea, and described the Sentencing
Guidelines’ application to the defendant’s conviction. Id. at 113. And
during the Frye hearing in Albarran, the defendant was present when the
parties discussed the evidence that they would present and “each side
candidly acknowledged the strengths and weaknesses of its case.” Id. The
district court here conducted no such hearing or inquiry with Graham, and
thus could—and in hindsight should—have done more. See Op. at 17 n.8.
6
issue does not provide the groundwork for finding waiver. See
Arrington, 941 F.3d at 43 (noting that the key for waiver is not whether
“a trial judge recited any particular litany of questions[,]” but whether
“the defendant appreciated his predicament and made a properly
informed choice”); see also United States v. Jenkins, 943 F.2d 167, 176 (2d
Cir. 1991) (referring to “the common sense notion that the existence
of a knowing and intelligent waiver inevitably depends upon the
particular facts and circumstances surrounding each case, including
the background, experience, and conduct of the accused” (cleaned
up)).
Once a potential Frye issue arose, to ensure any Frye right was
knowingly and intentionally waived, the district court should have
done more than flag it and rest on the assurance of the allegedly
ineffective counsel. 5 Besides the statements to former counsel, there
was no further inquiry of whether Graham wanted the plea offer
ordered reopened (or if she even knew she could request that), or
whether there was a knowing and voluntary waiver of her Frye right.
Indeed, even when counsel for the government addressed waiver for
the first time after the Court raised it during oral argument, counsel
stated, “I don’t know if I would style it as a knowing relinquishment.”
Oral Arg. Audio Recording at 17:20–28. Without more, the
5 The district court stated that it “just want[ed] to make sure that
those decisions [concerning the expired plea agreement] are made
intelligently and knowingly, and that there is no basis for [Graham] later
. . . [to] say[] that she was not aware that a plea offer was made and the
consequences of it, of either accepting or denying the plea offer.” Joint
App’x at A-91–A-92. Counsel—who admitted on the record to not having
timely shared the plea agreement with his client—responded that he had
“accomplished that.” Id. at A-92. This is an important point, and the
majority opinion does not adequately engage with it: the district court’s
explanation and the subsequent assurance came from former trial counsel
who—moments later—was replaced.
7
government has not sufficiently demonstrated the purported waiver
was knowing and intelligent.
B.
Waiver also cannot be found here because it does not appear,
by a preponderance of the evidence, that Graham made a strategic,
calculated decision to waive her Frye right. “[W]aiver can result only
from a defendant’s intentional decision not to assert a right.” Spruill,
808 F.3d at 597. “As a corollary, if a party consciously refrains from
objecting as a tactical matter, then that action constitutes a true
‘waiver[.]’” United States v. Cosme, 796 F.3d 226, 231–32 (2d Cir. 2015)
(internal quotation marks omitted). “[C]ourts applying [the] waiver
doctrine have focused on strategic, deliberate decisions that litigants
consciously make.” United States v. Dantzler, 771 F.3d 137, 146 n.5 (2d
Cir. 2014). While the Court has declined to make a “tactical benefit a
prerequisite to identifying waiver[,]” it is certainly “evidence that the
relinquishment of a right was intentional[.]” Spruill, 808 F.3d at 599.
We have accordingly declined to hold an argument waived when
there was “nothing in the record suggesting . . . a strategic, calculated
decision[.]” Dantzler, 771 F.3d at 146 n.5.
The majority opinion concludes Graham waived her Frye right
because she chose to take her case to trial. But this high-level
characterization dismisses the complete picture of Graham’s
circumstance. The court replaced allegedly ineffective counsel with
new counsel, and Graham went to trial where she sought an acquittal
largely on the basis that she lacked the requisite intent. 6 Advancing
6 Graham’s defense strategy focused on the contention that she
lacked the requisite intent to defraud and believed in good faith in the
legality of her actions—to the point where the government sought a
conscious avoidance charge.
8
to trial with the hope and belief that a jury would acquit, without
requesting the government reopen its plea offer, does suggest that
Graham would not have taken the plea had she been properly
advised—which speaks to the lack of requisite prejudice, not waiver.7
See Lafler, 566 U.S. at 164 (requiring the defendant show that “but for
the ineffective advice of counsel there is a reasonable probability that
the plea offer would have been presented to the court (i.e., that the
defendant would have accepted the plea . . . .)”). This case would not
7 Of course, a defendant advancing to trial after learning of a plea
offer does not necessarily mean that the defendant would not have accepted
a plea offer, had they been properly advised by counsel. The Court’s usual
practice to defer resolution of such claims on direct appeal to allow further
development of the evidentiary record is a sound one. For this case,
however, we can resolve the issue now because Graham’s assertion of
prejudice is not “accompanied by some ‘objective evidence’” and instead
relies “solely on [her] own, self-serving statement post-verdict that [she]
would have accepted a more favorable plea deal.” United States v. Bent, 654
F. App’x 11, 13 (2d Cir. 2016) (summary order).
Among other facts, the district court informed Graham’s new
counsel that there was an expired plea offer that the government indicated
could come back on the table if Graham indicated an interest in pursuing it.
At the final pretrial conference, Graham’s counsel did not dispute the
government’s characterization that there had been some discussions of
“resolving the matter short of trial,” but that it was the government’s
understanding that Graham was “not seeking resolution, so [the
government had] not made any new offers, nor [had it] been asked to
reopen any offers.” Joint App’x at A-172. Counsel merely stated that he
was “ever hopeful of resolving [this] matter,” but expected to be before the
jury the following week. Id. This suggests Graham’s lack of interest in the
original plea offer, such that Graham is not able to show there was a
reasonable probability she would have accepted the plea offer. The
majority opinion instead interprets these events as evidencing waiver. As
I discuss supra Section I, I believe that approach is inappropriate and
unnecessary here, given the presumption against waiver of constitutional
rights and that this Court raised waiver sua sponte, to the government’s
initial skepticism.
9
result in the “windfall” scenario Lafler warns of, for it does not present
a credible worry that a defendant could seek a tactical benefit by
waiting to raise a Frye claim on appeal where ineffective counsel
during plea bargaining was replaced before trial. See id. at 170, 172.
Here, there simply is “nothing in the record suggesting . . . a strategic,
calculated decision” to decline a possible reinstatement of the
government’s plea offer, only to potentially resurrect the claim on
appeal after losing at trial—or even sandbag the government on
appeal. Dantzler, 771 F.3d at 146 n.5. The majority thus should not
have found waiver.
C.
By finding waiver, the majority opinion fails to grapple with
the practical realities of the situation Graham faced in the time
between the April 10, 2019 hearing (where the district court appointed
new counsel), and the May 31, 2019 final pretrial conference (where
the district court asked “whether or not the parties have discussed
any possibility of resolving this [case] short of trial?”). Joint App’x at
A-171–A-72. The district court made clear during the April 10
conference that it “intend[ed] to stick to th[e] trial schedule that [it]
already set.” Id. at A-95. And while it did move the trial date back by
approximately one month to allow newly appointed counsel to get up
to speed, the district court set the trial date as commencing only two
months from the appointment. During the April 10 conference, the
government—at several points—made clear that the “plea offer has
technically expired” and that it doesn’t “bid against [itself]. That is,
we don’t keep on making new plea offers.” Id.; see also id. at A-96. The
government also explained that “the closer we get to trial, the less
flexible [the government is] likely to be to the extent that we have
10
flexibility in plea negotiation. . . . [T]he longer she waits, the less likely
it is that it will benefit her[.]” Id. at A-95–A-96. 8
As already explained, Graham’s new counsel was preparing for
a two-week trial—on two months’ notice—which entailed learning
the record and communicating with former trial counsel about the
case. Raising concerns about deficiencies regarding former counsel’s
performance for the purpose of requesting a Frye remedy would have
hindered new counsel’s ability to receive information and context
from former counsel. Cf. Massaro v. United States, 538 U.S. 500, 506
(2003) (explaining challenges for appellate counsel when preparing
an appeal that also attacks actions of trial counsel). Additionally,
requiring new counsel to raise an ineffective assistance of counsel
claim immediately after appointment would create a “perverse
incentive[]” to raise potentially frivolous issues just to avoid
subsequent allegations of waiver, “creat[ing] inefficiencies[.]” Id. at
506–07. Massaro evaluated a rule of “procedural default” to
determine it is “preferable” to bring ineffective assistance of counsel
claims under 28 U.S.C. § 2255 instead of by direct appeal. Id. at 504.
The same considerations are applicable to declining to find waiver
because of the unique nature of raising an ineffective assistance of
counsel claim.
III.
The majority opinion’s finding of wavier here appears to be a
solution in search of a manufactured problem. Indeed, the majority
8The government restated the same sentiment on several more
occasions throughout this hearing, including that “[the offer] has been
taken off the table, . . . ” Joint App’x at A-96, and “[the government has
considered] discussing alternative ways of structuring the plea, but again,
the longer she waits, the less likely it is that it will work out[,]” id.11
opinion searches for a solution when waiver was not even advanced
by the government until it was ordered to brief it. Even so, the
government has not established by a preponderance of the evidence
that Graham knowingly and voluntarily waived her Frye right.
Nonetheless, I respectfully concur that we should reject her claim.
Graham’s ineffective assistance claim may be considered, and
rejected, under existing precedent, because Graham has not
demonstrated there was a reasonable probability that she would have
accepted the plea offer. See Lafler, 566 U.S. at 164.
12