United States v. Sharon Gandy et al. (6th Cir. June 2019)
Sixth Amendment/Ineffective Assistance of Counsel – A defendant does not receive ineffective assistance of counsel merely because she has a pending bar complaint with her defense counsel.
The defendants, a trio of siblings and a brother-in-law, were convicted of several tax fraud offenses involving a scheme to file fictitious tax returns. On appeal, they challenged the sufficiency of the evidence, duplicitous charges in the indictment, and the jury instructions. The Gandy brothers also argued that they were deprived of effective assistance of counsel because their state-bar complaints against their attorneys created a conflict of interest.
First, the Court held there was sufficient evidence to convict the sister, Sharon Gandy, of mail fraud, identify theft, and illegal monetary transactions. The Court recounted that the record showed Sharon had cashed a check from the IRS after falsely representing that the trust filing the return had earnings withheld despite having no taxable income. The Court also pointed to the evidence of refund checks, ledgers, and personal identifying information of other people found at Sharon’s house, in addition to her use of P.O. boxes to obtain returns. This was also sufficient to find she had a fraudulent intent.
The Court also held that the Government presented sufficient circumstantial evidence that Anthony and Sharon Gandy knew that they were using the names and personal information of real people in connection with proving the elements of the aggravated identity theft charges. Law enforcement ultimately recovered information relating to 100 real victims that the defendants had used in multiple ways throughout their scheme in obtaining fraudulent refunds. The Court cited precedent reflecting that a willingness to subject stolen personal information to government scrutiny is probative of a defendant’s knowledge that the information belongs to a real person.
Turning to the defendant’s Sixth Amendment claims, the Court described the basis of the defendants’ state bar complaints, which namely centered on the continuances that the parties had sought and been granted leading up to trial. The defendants filed their grievances after the district court declined to allow them to substitute new appointed counsel and rejected their Speedy Trial claims. Upon filing of the grievances, defendants’ counsel sought to withdraw citing conflicts of interests but the district court denied their motion, describing the state bar grievances as “100 percent frivolous” in light of it already rejecting the speedy trial arguments.
On appeal, the Court affirmed, holding that the defendants failed to show that their attorneys had a conflict of interest, let alone were ineffective, since “the state-bar grievances did not create conflicting obligations” and thus did not put the attorneys in a position to have to choose one interest over another. The Court added that recognizing a conflict of interest every time a defendant files a bar complaint, without showing how the attorney is compromised, would lead to habitual abuse by criminal defendants filing meritless grievances.
Finally, under plain error review, the Court rejected the defendants’ arguments that the indictment was duplicitous, that the district court had erred by not providing a specific unanimity instruction for the aggravated identify theft counts, and that the aiding and abetting instructions for the aggravated identity theft counts were insufficient.
Appeal from the Eastern District of Michigan
Opinion by Gilman, joined by Clay and Kethledge