United States Court of Appeals, District of Columbia Circuit
Submitted November 13, 2018
from the United States District Court for the District of
Columbia (No. 1:10-cr-00178-1)
H. Kirchman, appointed by the court, was on the brief for
Rybicki, Deputy Assistant Attorney General, and Vincent J.
Falvo, Jr., Attorney, U.S. Department of Justice, were on the
brief for appellee. Elizabeth Trosman, Assistant U.S.
Attorney, entered an appearance.
Before: Garland, Chief Judge, and Griffith and Wilkins,
GARLAND, CHIEF JUDGE:
convicted Caleb Gray-Burriss of fraud and embezzlement
stemming from his management of the National Association of
Special Police and Security Officers. We previously affirmed
the convictions in most respects. In accordance with this
circuit's practice, however, we remanded
Gray-Burriss' ineffective-assistance-of-counsel claims
because he had not previously raised them in the district
court. That court conducted the remand proceedings in an
exemplary fashion, leaving little for us to do other than
recount its conclusions and express our agreement that
Gray-Burriss' claims lack merit.
1993, Caleb Gray-Burriss founded the National Association of
Special Police and Security Officers (NASPSO), a union for
private security officers working in federal buildings.
Gray-Burriss held various high-ranking positions in the
union, including executive director, secretary-treasurer, and
president. By the early 2000s, Gray-Burriss' financial
management of the union began to draw legal scrutiny. In
2007, he entered into a consent decree with the Department of
Labor to pay more than $100, 000 in restitution for funds
siphoned from NASPSO's pension and health plans. In June
2010, a grand jury indicted Gray-Burriss for again
misappropriating funds intended for the pension plan. The
grand jury returned a second superseding indictment in August
second superseding indictment alleged two schemes. In the
first, Gray-Burriss deposited employer contributions to a
NASPSO-sponsored pension plan into an ordinary checking
account, from which he "would expend the funds of the
NASPSO Pension Plan for himself, for NASPSO, and for third
parties not entitled to those funds." Second Superseding
Indictment ¶ 9 (J.A. 88). In the second scheme,
Gray-Burriss embezzled more than $200, 000 in union funds by,
inter alia, directing the union's payroll company to
increase his salary and bonus payments without authorization.
For those actions, Gray-Burriss faced charges of mail fraud
(counts 1-6), embezzlement (counts 7-12), and other related
district court set the case for trial in November 2012. Two
attorneys represented Gray-Burriss at trial. Heather Shaner
was appointed by the district court as Gray-Burriss'
Criminal Justice Act (CJA) attorney in early July 2010,
shortly after the first grand jury indictment. Patrick
Christmas was retained by Gray-Burriss as primary trial
counsel in July 2012.
defense's principal strategy was to argue that
Gray-Burriss had acted in good faith and that he was the
victim of vindictive prosecution. During the trial, Shaner
attempted to introduce testimony from David Levinson, a
NASPSO attorney. According to her proffer, Levinson would
have testified that he heard NASPSO general counsel Bruce
Goodman tell a Department of Labor investigator that he had
advised Gray-Burriss that it was permissible to use money
from the union's pension fund to pay for union operating
expenses. The district court excluded the proposed testimony
December 4, 2012, the jury convicted Gray-Burriss on eighteen
of the nineteen counts of the indictment, acquitting him only
of a witness-tampering charge. Material submitted to the jury
included evidence and testimony that Gray-Burriss illegally
wrote checks to himself from the pension fund, invested
pension-fund monies in Brazilian junk bonds, and used union
funds to make an initial payment of $1, 399 on a Las Vegas
condominium in his own name. In April 2013, the court
sentenced him to serve 76 months in prison and to pay
restitution and forfeiture in the amount of approximately
$250, 000 each, subtracting from the restitution obligation
any money paid pursuant to the 2007 consent decree with the
Department of Labor.
Gray-Burriss' first appeal to this court, we affirmed the
district court's judgment with only one exception.
United States v. Gray-Burriss, 791 F.3d 50, 65 (D.C.
Cir. 2015). Following this circuit's usual
practice, we remanded Gray-Burriss' newly raised claims
of ineffective assistance by his trial counsel for initial
consideration by the district court. Id. at
remand, represented by new counsel, Gray-Burriss moved for a
new trial and resentencing based on his claims of ineffective
assistance. Those claims principally relate to counts 1-6,
involving Gray-Burriss' conduct with respect to the
pension fund. In August 2016, the district court conducted a
two-day evidentiary hearing, in which it heard testimony by
all of the relevant witnesses: Gray-Burriss, attorneys Shaner
and Christmas, and former union general counsel Goodman.
Thereafter, it denied Gray-Burriss' motions, rejecting
all of his arguments. United States v. Gray-Burriss,
251 F.Supp.3d 13 (D.D.C. 2017). Gray-Burriss now appeals,
raising what amounts to three claims of ineffective
explained in our previous opinion in this case, when an
ineffective-assistance claim is first raised on appeal, this
circuit's practice in most ...