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United States v. Whiteside

United States District Court, S.D. New York

February 20, 2018

UNITED STATES OF AMERICA,
v.
SAMUEL L. WHITESIDE, Defendant.

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE:

         Samuel Whiteside pled guilty to a two-count indictment charging him with (1) traveling interstate with intent to commit a "crime of violence" (the assault and / or murder of Anthony Martino) to further an unlawful activity, namely, prostitution offenses, in violation of 18 U.S.C. § 1952(a)(2); and (2) persuading women to travel interstate for the purpose of engaging in prostitution in violation of 18 U.S.C. § 2422(a). After a Fatico hearing, the Court determined that Whiteside had committed the crime of voluntary manslaughter, not murder in the first or second degree. The PSR calculated an offense level of 27 and criminal history category of II for a guidelines range of 78 to 97 months. On December 8, 2016, the Court sentenced him to 115 months' imprisonment, Whiteside did not file a notice of appeal. He now moves to reinstate his right to appeal, principally on the ground that his attorneys rendered ineffective assistance of counsel by failing to file a notice of appeal despite his explicit instruction.

         To prevail on a claim of ineffective assistance of counsel, "a defendant must demonstrate both 'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense.'" Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure of an attorney to file a notice of appeal after being instructed to do so by a client is "professionally unreasonable" and is presumed to be prejudicial "when counsel's failure] deprives a defendant of an appeal that he otherwise would have taken, " Roe v. Flores-Ortega, 528 U.S. 470, 477, 484 (2000). Here, the question of whether Whiteside instructed his attorneys to file a notice of appeal was sharply disputed. The Court appointed Whiteside new counsel and held an evidentiary hearing on January 16 and 18, 2018. See Campusano v. United States, 442 F.3d 770, 777 (2d Cir. 2006) ("[0]n remand, the district court is directed to conduct an evidentiary hearing to determine whether Campusano in fact instructed his attorney to file an appeal. If Campusano did give such an instruction, he is to be allowed a direct appeal.").

         At the evidentiary hearing, Whiteside conceded that his attorneys, Anthony Cecutti and Ying Stafford, discouraged him from appealing because of their concern that he could receive even more time in prison. Tr. 8:10. Nevertheless, he testified that he instructed Cecutti "in no uncertain terms" that he wanted him to file a notice of appeal, and he listed five grounds for appeal that he wanted to raise: (1) the upward variance, (2) misrepresentation of e-mails he authored, (3) receiving only a two point reduction for acceptance of responsibility, (4) his brother not being allowed to speak at sentencing and the Court not taking his background into consideration, and (5) the Court and Government making adverse comments about him. Tr. 8:7-8, 12-15. He also testified that he met with Stafford on the day the notice of appeal was due and that she informed him that she would file it "before midnight." Tr. 8:17-25.

         The Government called three witnesses: Cecutti, Stafford, and Whiteside's former mitigation specialist Ericka Adams. Each disputed Whiteside's version of events. Cecutti testified that he met with Whiteside twice during the two-week period following his sentencing-once by himself and once with Adams. Tr. 75:18-25. Cecutti conceded that Whiteside initially wanted to appeal. Tr. 26:15-22; 59:4-5. But Cecutti explained that he discouraged Whiteside from taking an appeal because of the danger that the Government would cross-appeal the Court's finding that Whiteside committed manslaughter rather than murder as his crime of violence, thus exposing him to a longer sentence. Tr. 31:12-24. Cecutti also expressed his concern that, on remand from a successful appeal, the Court may impose a longer sentence based on hundreds of e-mails from Whiteside that the Government produced the day before the sentencing hearing. These e-mails reflected a "complete disrespect for human life, " and the Government only cited a "limited" number during sentencing. Tr. 49:6-7; 51:23-24. Cecutti was concerned that, before a potential resentencing, the Government "would have been able to locate many others that were equally or perhaps more damaging." Tr. 52:2-4.

         Cecutti testified that, by the end of his second meeting with Whiteside, he was "strongly leaning towards not going forward with an appeal." Tr. 34:10-17. Adams, who also attended that meeting, corroborated this testimony, explaining that Whiteside was "leaning towards not appealing." Tr. 88:17-89:6. Both Cecutti and Adams denied that Whiteside ever directed Cecutti to file a notice of appeal. Tr, 34:13-17; 89:7-16.

         Stafford testified that she met with Whiteside on the day the notice of appeal was due. She was prepared to handle the filing "in case [Whiteside] wanted - or had changed his mind and wanted to file a notice of appeal." Tr. 106:9-11. But Stafford also discouraged Whiteside from appealing. Her principal concern was the e-mails, and she explained to Whiteside that she had recently been involved in a resentencing in which the judge resentenced the defendant to a harsher sentence "strictly for lack of remorse by the defendant." Tr. 107:16-19. She testified that as she left, she asked Whiteside, "do you want me to file this thing or should I go home, " and he responded "I guess I'll have to trust you all." Tr. 107:22-25. Stafford agreed and said that he should "leave it alone, " and Whiteside responded "okay." Tr. 107:25-108:3. She also testified as follows:

Q. Was there ever any doubt in your mind as to the direction for Mr. Whiteside not to file the notice of appeal?
A. None.
Q. During that meeting did you ever hear Mr. Whiteside say that he "absolutely wanted to file an appeal"?
A. No.
Q. During that meeting did you ever hear Mr. Whiteside say that he "absolutely wanted to file an appeal"?
A. No.

Tr. ...


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