United States v. Lustyik

FILED
United States Court of Appeals
Tenth Circuit
August 15, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-4050
ROBERT G. LUSTYIK, JR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:12-CR-00645-TC-DBP-1)
Michael J. Langford, Law Office of Michael J. Langford, Salt Lake City, Utah,
for Appellant.
William A. Glaser, Appellate Section, Criminal Division (Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General,
Peter M. Koski, Deputy Chief, Public Integrity Section, Maria N. Lerner, Public
Integrity Section, Anne Marie Blaylock Bacon, Asset Forfeiture & Money
Laundering Section, United States Department of Justice, Washington, DC, and
John W. Huber, United States Attorney for the District of Utah, Salt Lake City,
Utah, with him on the brief), United States Department of Justice, Washington,
DC, for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit
Judges.
TYMKOVICH, Chief Judge.
Robert G. Lustyik served as a special agent with the Federal Bureau of
Investigation for twenty-four years before he was indicted on charges related to
the obstruction of justice. Prior to trial, Lustyik pleaded guilty to all charges in
the indictment without a plea agreement. After his plea, his lead counsel
withdrew and Lustyik obtained new counsel. On the eve of sentencing, counsel
sought an order allowing him to obtain security clearance to review classified
material he believed might be relevant for sentencing. The district court, having
previously reviewed the documents, deemed them irrelevant to the sentencing
issues, denied the motion, and subsequently sentenced Lustyik to 120 months’
imprisonment.
Lustyik argues that the district court’s order denying his counsel access to
the classified materials violated his Sixth Amendment rights at sentencing. We
affirm the district court’s denial of Lustyik’s motion and its judgment below. The
court’s decision was not presumptively prejudicial to Lustyik’s advocacy at
sentencing, nor did the district court abuse its discretion in concluding the
documents were not relevant for sentencing.
We remand for the limited purpose of clarifying the general sentence.
I. Background
Former FBI agent Robert G. Lustyik wanted to help his friend and business
partner, Michael L. Taylor, in return for payment. Taylor owned American
International Security Corporation (AISC), a company that offered security and
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defense contracting services. The Department of Defense awarded AISC a
contract in 2007 to provide training and related services to Afghan Special
Forces. In mid-2010, the United States began investigating AISC regarding fraud
and money laundering in connection with the 2007 contract.
In September 2011, the United States filed a civil forfeiture action against
assets owned by Taylor and AISC, which resulted in the seizure of more than $5
million dollars from AISC’s bank account. Lustyik used his status as an FBI
agent to impair the government’s investigation of Taylor, including attempting to
establish Taylor as a confidential source. From February through August 2012,
Lustyik contacted multiple individuals connected with the AISC investigation to
dissuade them from indicting Taylor and promoted him as a confidential source.
In return for Lustyik’s efforts, Taylor promised Lustyik cash payments and
shared profits from their joint business venture. Lustyik repeatedly reminded
Taylor of his need for money, and Taylor promised, “You will have more coin
than you know what to do with.” R., Vol. I at 141.
In 2012, a grand jury indicted Lustyik, Taylor, and their middle-man
Johannes Thaler, for conspiracy, honest services wire fraud, obstruction of
justice, and obstruction of agency proceedings. The United States proceeded to
disclose more than one million pages of unclassified discovery, and more than
10,000 pages of partially-redacted classified discovery to all defense counsel with
security clearance including Lustyik’s lead counsel. Of those 10,000 classified
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pages, the government disclosed 6,961 pages to Lustyik, even though he no longer
had a security clearance.
Pursuant to the Classified Information Procedures Act (CIPA) § 5(a),
Lustyik and his co-defendants identified classified information—80 pages of
interviews, 400 pages of documents, and 15 topics—they wished to present at
trial. After the government objected, the court met ex parte with Defendants’
counsel to understand how Defendants wanted to use the evidence. The court
held a hearing on the government’s motion and subsequently determined the
confidential information was inadmissible, concluding most of the information
was not relevant under Federal Rule of Evidence 401. To the extent a piece of
evidence was relevant, the court found it inadmissible under Rule 403 because
Defendants “intend[ed] to offer details of information Mr. Taylor provided to the
FBI[,]” which “would create a sideshow that would waste time and substantially
risk confusing the jury.” R., Vol. I at 180. Further, the question for the jury was
not the actual value of Taylor as a source, but rather Lustyik’s good faith belief
that what he was doing was legitimate. The court also described equally
probative evidentiary alternatives.
A few days later, during Lustyik’s first day of trial, he pleaded guilty to
each of the eleven counts in the indictment without a plea agreement. In
November 2014, the court granted Lustyik’s lead counsel’s motion to withdraw
and appointed Lustyik’s local counsel as substitute counsel. The court
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rescheduled sentencing to March 30, 2015, allowing more than four months to
prepare. On February 12, defense counsel received the pre-sentence investigation
report (PSR), prepared by a probation officer who was not provided with
classified information. On March 2, Lustyik filed a motion for an order allowing
his attorney to seek security clearance in preparation for sentencing.
A magistrate judge denied the motion. The district court affirmed and
denied Lustyik’s corresponding motion to continue. At the March 30 sentencing
hearing, Lustyik’s attorney indicated he only knew the case, “to the extent [he
could].” R., Vol. III at 85. The court responded that the classified information
“would not add to your ability to make a good argument and to argue for your
client.” Id. The court added, “To the extent that it would be relevant, I am well
aware, mainly from the materials that Mr. Taylor has sent, that Mr. Taylor may
have had some value as an operative or as a contact, which is what I think you
were needing it for.” Id. Counsel responded, “Yes, Judge.” Id. at 86.
Lustyik’s counsel went on to present sentencing considerations under 18
U.S.C. § 3553(a) (nature of the offense, just punishment, deterrence, public
protection, and rehabilitation). Counsel described that Lustyik’s crime did not
involve violence, did not implicate national security, and was not successful. He
detailed the legal and extra-legal punishment Lustyik had suffered and promoted
Lustyik’s previously unblemished career and the work he had done for the
community.
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Counsel succeeded in securing a downward variance from the guidelines
range. The court departed from the recommended range of 151 to 188 months and
imposed a 120-month sentence considering minimal deterrence value, family
need, and prison conditions.
Lustyik appeals, arguing that his constitutional rights were violated when
his counsel was denied access to the classified materials.
II. Discussion
We review district court rulings limiting access to evidence for abuse of
discretion. See United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004).
But to the extent Lustyik asserts that the district court’s decision violated his
Sixth Amendment rights, we review the decision de novo. 1 United States v.
DeChristopher, 695 F.3d 1082, 1095 (10th Cir. 2012) (“We ordinarily review
evidentiary rulings for abuse of discretion, but to the extent Defendant asserts the
exclusion of evidence violated his constitutional rights, we review the ruling de
novo.”).
We first examine the scope of the Sixth Amendment as it relates to
accessing discovery during sentencing proceedings, and then determine whether
1
Lustyik alludes in his opening brief that he also has a due process right to
review the classified documents. He does not describe the contours of this right,
but merely asserts that it has been violated. Since he did not raise a due process
argument before the district court, we review for plain error. He advances no
argument as to why the district court plainly erred, thereby waiving the argument.
United States v. Rodebaugh, 798 F.3d 1281, 1305 (10th Cir. 2015).
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the district court abused its discretion in denying access to the classified
materials.
A. The Sixth Amendment
The Sixth Amendment guarantees every defendant “the assistance of
counsel for his defense.” U.S. Const. amend VI. The Supreme Court has
interpreted this right to extend to all critical stages of criminal proceedings,
including sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977)
(“[S]entencing is a critical stage of the criminal proceeding at which [the
defendant] is entitled to the effective assistance of counsel.”); United States v.
Washington, 619 F.3d 1252, 1258 (10th Cir. 2010). The guarantee of “effective”
assistance follows from the Amendment’s language and purpose—to ensure
fairness in the adversary process. United States v. Cronic, 466 U.S. 648, 655–56
(1984). The accused thus has the right to subject the prosecution’s case to “the
crucible of meaningful adversarial testing.” Id. at 656. In evaluating whether
the accused’s right to counsel has been violated, we must consider whether the
criminal proceeding “cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Lustyik contends the district court denied him the right to meaningful
adversarial testing. He claims his lawyer was hamstrung at sentencing because
the court denied him access to potentially relevant classified information that he
could have used to argue for a more lenient sentence.
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As an initial matter, the Sixth Amendment’s guarantee of effective counsel
applies to court-imposed limitations on the adversarial process. That is, trial
courts must ensure that restrictions on representation by counsel do not undercut
his or her role as an effective advocate. Herring v. New York, 422 U.S. 853, 857
(1975); see also 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §
11.8(a) (4th ed.) (“The ‘right to the assistance of counsel’ the Supreme Court
noted in Herring, ‘has been understood to mean that there can be no restrictions
upon the function of counsel in defending a criminal prosecution in accord with
the traditions of the adversary factfinding process.’ Accordingly, state action,
whether by statute or trial court ruling, that prohibits counsel from making full
use of traditional trial procedures may be viewed as denying defendant the
effective assistance of counsel.”).
Of course, not all government action regulating the trial process violates
the Sixth Amendment. A defendant must generally show how a particular action
violates his right to a fair trial. See Michigan v. Lucas, 500 U.S. 145 (1991)
(holding that courts may not find a per se Sixth Amendment violation where the
defendant was unable to present relevant evidence). This is because a rigid, per
se rule is, by its nature, too blunt an instrument to account for the “legitimate
demands of the adversarial system[.]” See United States v. Nobles, 422 U.S. 225,
241 (1975); see also 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
§ 2.9(g) (4th ed.) (explaining that in the Sixth Amendment context, a “per se
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standard is either overinclusive or underinclusive as compared to the application
of that function to all relevant circumstances on a case-by-case basis”); cf.
Strickland, 466 U.S. at 688 (noting that for ineffective assistance claims “specific
guidelines are not appropriate[,]” rather, “the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances”).
Still, a bright-line rule may be appropriate where the constitutional
violation is so flagrant that we need not consider it on a case-by-case-basis. E.g.,
Turner v. Murray, 476 U.S. 28, 36–37 (1986) (per se unfair trial where capital
defendant accused of an interracial crime cannot question prospective jurors on
the issue of racial bias). A categorical approach may also be appropriate to
alleviate administrative difficulties and apply prophylactic rules. E.g., Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (per se ineffective assistance if counsel
fails to file a requested appeal as of right); Edwards v. Arizona, 451 U.S. 477,
484–85 (1981) (per se Fifth Amendment protection where accused invokes his
right to counsel and police re-engages interrogation); Cuyler v. Sullivan, 446 U.S.
335, 349–50 (1980) (per se ineffective assistance of counsel where conflict-of-
interest affects representation).
By that logic, the right to effective assistance of counsel is presumptively
violated only where the circumstances “are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified.” Cronic, 466
U.S. at 658. A court must determine whether “there was a breakdown in the
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adversarial process that would justify a presumption that [a defendant’s]
conviction was insufficiently reliable to satisfy the Constitution.” Id. at 662. In
explaining Cronic, the Supreme Court has identified three situations where the
defendant need not show prejudice or harm:
First and “[m]ost obvious” was the “complete denial of
counsel.” . . . Second, we posited that a similar presumption
was warranted if “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Finally,
we said that in cases like Powell v. Alabama where counsel is
called upon to render assistance under circumstances where
competent counsel very likely could not, the defendant need
not show that the proceedings were affected.
Bell v. Cone, 535 U.S. 685, 695 (2002) (citations omitted).
Lustyik contends the district court ruling violated a variation of the second
and third situations described above. He claims the limitations on his counsel’s
ability to review classified materials fatally undercut his effectiveness, and
prevented him from adequately testing the government’s position at sentencing.
For support, he points to our decision in United States v. Collins, 430 F.3d 1260(10th Cir. 2005). There we applied Cronic’s presumption of prejudice where the
defendant was effectively denied counsel at a competency hearing. The district
court had denied defense counsel’s request to withdraw the day of defendant’s
hearing, but proceeded with the hearing anyway. Defense counsel remained
present but “abstained from providing the court with information relevant to the
issue of competency.” Id. at 1266. We found defendant was constructively
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denied effective counsel due to the “complete absence of adversarial testing” of
the government’s case at the hearing. Id. at 1265. Relying on Collins, Lustyik
argues he was effectively without counsel at sentencing. We disagree, for several
reasons.
First, as the Supreme Court has emphasized, the Sixth Amendment’s right
to counsel applies only where there has been a complete breakdown in the
adversarial process, such that “counsel has entirely failed to function as the
client’s advocate.” Florida v. Nixon, 543 U.S. 175, 189 (2004). As we put it in a
recent case, counsel’s performance must be so lacking that “in effect, no
assistance of counsel is provided.” Williams v. Trammell, 782 F.3d 1184, 1201
(10th Cir. 2015) (quoting Cronic, 466 U.S. at 654 n.11). Only in those cases do
we presume the defendant has been denied a fair trial.
But where defense counsel’s conduct has only been partially restricted by
the trial court, such as here, the presumption of prejudice does not apply. See,
e.g., Goodwin v. Johnson, 132 F.3d 162, 176 n.10 (5th Cir. 1997) (“When the
defendant receives at least some meaningful assistance, he must prove prejudice
in order to obtain relief for ineffective assistance of counsel.”). Not every
“disadvantage to the defense’s representation” infects the proceedings “with error
of constitutional dimensions.” United States v. Bell, 795 F.3d 88, 96 (D.C. Cir.
2015) pet. for cert. filed, No. 15-8606 (Mar. 18, 2016).
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Nor do the circumstances here eliminate the “likelihood that any lawyer,
even a fully competent one, could provide effective assistance.” Cronic, 466 U.S.
at 659–60. The Supreme Court has found a constitutional violation only in a few
circumstances including where the district court (1) prohibited direct examination
of the defendant by his counsel, see Ferguson v. Georgia, 365 U.S. 570 (1961);
(2) required defendants who choose to testify to do so before any other defense
witnesses, see Brooks v. Tennessee, 406 U.S. 605 (1972); (3) refused to allow
defense counsel closing argument in a bench trial, see Herring, 422 U.S. 853; and
(4) prohibited consultation between a defendant and his attorney during an
overnight recess between direct- and cross-examination of the defendant, see
Geders v. United States, 425 U.S. 80 (1976). See also Shillinger v. Haworth, 70
F.3d 1132, 1141 (10th Cir. 1995) (summarizing cases). As we explained in
Shillinger, the Sixth Amendment right to counsel is presumptively violated where
the government acts with the purpose of intruding on the attorney-client
relationship, absent a countervailing interest. Id. at 1141–42.
Lustyik has failed to establish that the district court’s determination by
itself creates a Sixth Amendment violation. 2 So, we review this factual
finding—that the classified material was not relevant for sentencing—for abuse of
discretion. See United States v. Apperson, 441 F.3d 1162, 1193 (10th Cir. 2006)
2
Further, Lustyik does not engage in a factual inquiry of constitutional
ineffectiveness by pointing us to any prejudicial effect.
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(reviewing district court’s restrictions regarding discoverable classified
information).
Lustyik argues the classified documents might contain information
regarding the criminal act and his character, which, he says, are relevant to the 18
U.S.C. § 3553(a) sentencing factors. But he does not explain what material he
needed, nor what additional light it might have shed on his character.
Instead, the record amply supports the district court’s conclusion. Counsel
received more than one million pages of unclassified documents prior to
sentencing, and Lustyik himself was able to review almost 7,000 pages of
classified material. The probation officer prepared the PSR without access to
confidential information. After Lustyik’s counsel received the PSR, the
government confirmed that it would not be basing sentencing arguments on
classified material. The district court had already read the confidential material
and heard from Taylor regarding his value as a confidential source. Further,
Taylor’s value as a source was only relevant to the extent Lustyik was aware of it.
The relevant question is what Lustyik believed about Taylor’s value, not his
objective potential. 3 Lustyik did not need access to confidential materials to
3
This is because the crime Lustyik committed involved a question of
intent: whether he intended to offer Taylor as an informant purely to impair the
government’s investigation of Taylor, or whether he honestly believed Taylor
would provide information of value to the government. If Taylor had
information, but Lustyik was unaware of this, nothing in the confidential
information would be relevant to the district court’s consideration.
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make this showing. At the sentencing hearing, counsel proceeded to argue each
of the 18 U.S.C. § 3553(a) sentencing factors and secured a significant downward
variance—the court varied downward from the recommended range of 151 to 188
months to impose a 120-month sentence. 4
It is worth noting the district court here faced circumstances similar to
those courts routinely face in addressing confidential or private information. In
many situations we allow courts to review evidence in camera to determine its
relevancy and admissibility. For example, where the government is required to
turn over relevant and material evidence to the accused, but the information is the
victim’s confidential medical information, the defendant’s interests are instead
protected by the trial court’s in camera review. Pennsylvania v. Ritchie, 480 U.S.
39 (1987). And where the party seeking access to undisclosed information can
“point to no prejudice or harm” from in camera review, we have declined to find
an abuse of discretion. Estate of Trentadue ex rel. Aguilar v. United States, 397
F.3d 840, 865 (10th Cir. 2005); see also United States v. Gagnon, 470 U.S. 522,
526 (1985) (finding no constitutional violation where the court questioned a juror
in camera); United States v. Hinkle, 37 F.3d 576 (10th Cir. 1994) (finding
4
Lustyik argues his co-defendant received a shorter sentence, 24 months’
imprisonment, for similar conduct. But the co-defendant’s guidelines range was
70 to 87 months, less than half of Lustyik’s range. Further, the government faced
a suppression of evidence issue in the other case that led to its agreement to the
specific sentence approved by the court.
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defendant’s Confrontation Clause rights fulfilled even though counsel was not
given access to mental health history, which the court reviewed in camera).
In sum, the district court did not violate Lustyik’s Sixth Amendment right
to counsel nor did it abuse its discretion in determining the confidential material
was not relevant for sentencing.
B. CIPA Does Not Entitle Lustyik To Relief
Lustyik also contends the district court should have interpreted the
Classified Information Procedures Act (CIPA) “to allow defense counsel to
review classified information in preparation for a sentencing hearing.” Aplt Br.
15.
CIPA provides guidance to trial judges applying Federal Rule of Criminal
Procedure 16(d) (discovery) where confidential information is involved. United
States v. El-Mezain, 664 F.3d 467, 519–20 (5th Cir. 2011). CIPA “clarifies
district courts’ power under Federal Rule of Criminal Procedure 16(d)(1) to issue
protective orders denying or restricting discovery for good cause.” United States
v. Aref, 533 F.3d 72, 78 (2d Cir. 2008); see also CIPA § 4, 18 U.S.C. App. III § 4
(“The court, upon a sufficient showing, may authorize the United States to delete
specified items of classified information from documents to be made available to
the defendant through discovery under the Federal Rules of Criminal Procedure
. . . .”). It is a procedural statute, however, that does not give rise to an
independent right to discovery. El-Mezain, 664 F.3d at 519–20; see also United
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States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (“CIPA does not create any
discovery rights for the defendant.”).
While CIPA could provide procedural guidance to a district court in
restricting or denying review of classified information, it does not provide
Lustyik a freestanding right to classified information. 5 And to the extent Lustyik
argues CIPA’s procedural requirements highlight the court’s duty to balance the
government’s need for confidentiality with the defendant’s right to a fair trial, as
we explained above the district court did not abuse its discretion in denying
access to the confidential information.
C. Sentencing Error
Finally, the government concedes the sentence of 120 months may be
reversible error. Two of the eleven counts Lustyik pleaded guilty to only carry a
maximum sentence of five years. See 18 U.S.C. § 371 (Count 1); 18 U.S.C.
§ 1505 (Count 11). “A district court imposes an illegal sentence when it
sentences a defendant to a term of incarceration that exceeds the statutory
maximum.” United States v. MacKay, 715 F.3d 807, 846 (10th Cir. 2013). The
remaining counts, however, provide for at least a ten-year maximum sentence. 18
5
Lustyik additionally suggests Federal Rule of Criminal Procedure 32
supports his right to access confidential material, but does not sufficiently
develop the argument. “The court will not consider such ‘issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation.’” United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004)
(quoting Murrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994)). Further,
the parties do not dispute the Rule 32 procedural guarantees have been satisfied.
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U.S.C. § 1343 (twenty years); 18 U.S.C. § 1503 (ten years). At sentencing, the
district court did not differentiate between the separate counts but rather imposed
a blanket 120-month sentence. Therefore, “the judgment is unclear whether the
district court intended to impose a [120]-month sentence on each count, a clearly
illegal sentence.” MacKay, 715 F.3d at 846. Based on the government’s
concession, we remand to the district court for the limited purpose of clarifying
the general sentence. Id. at 846–47.
III. Conclusion
We AFFIRM the district court’s denial of Lustyik’s request for a security
clearance for his attorney. We REMAND for sentence clarification.
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