Osagiede v. United States
543 F.3d 399, 2008 WL 4140630, 2008 U.S. App. LEXIS 19237 (2008)
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Rule of Law:
An attorney's failure to advise a foreign national defendant of their right to consular assistance under Article 36 of the Vienna Convention, and to seek a remedy for the government's violation of that right, can constitute deficient performance under the Sixth Amendment. To establish prejudice, the defendant must make a credible showing that their consulate could have and would have provided assistance that created a reasonable probability of a different outcome in the proceeding.
Facts:
- Johnbull K. Osagiede, a Nigerian national, was arrested by federal agents on March 13, 2003, for heroin distribution.
- The government conceded that it failed to inform Osagiede of his right to contact the Nigerian consulate, as required by Article 36 of the Vienna Convention.
- The government's case for a longer sentence relied heavily on attributing additional drug sales ('relevant conduct') to Osagiede.
- This attribution was supported by wiretapped recordings of speakers with strong Nigerian accents, which Osagiede denied were him, and the testimony of an informant, Michael Braxton.
- Braxton had previously misidentified Osagiede in a photo, confusing him with Osagiede's cousin, Akeem Lasisi, who was also a suspect and had since returned to Nigeria.
- A voice analysis expert, hired by Osagiede's family, concluded that Osagiede's voice was not on the one recording that could be properly analyzed.
- The sentencing judge characterized the evidence supporting the 'relevant conduct' determination as 'a close call'.
Procedural Posture:
- Johnbull K. Osagiede was charged with heroin distribution in the U.S. District Court for the Northern District of Illinois.
- Osagiede pleaded guilty to one count of heroin distribution.
- At sentencing, the district court found by a preponderance of the evidence that Osagiede was responsible for additional 'relevant conduct', significantly increasing his sentencing range.
- The district court sentenced Osagiede to 97 months in federal prison.
- Osagiede filed a pro se petition for a writ of habeas corpus (§ 2255), claiming his trial counsel was ineffective for failing to address the government's violation of his Vienna Convention rights.
- The district court denied the petition without holding an evidentiary hearing, reasoning that any motion by counsel would have been futile.
- Osagiede applied for a certificate of appealability from the U.S. Court of Appeals for the Seventh Circuit, which the court granted.
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Issue:
Does an attorney's failure to inform a foreign national client of their right to consular assistance under Article 36 of the Vienna Convention, or to seek a remedy for the government's violation of that right, constitute ineffective assistance of counsel under the Sixth Amendment?
Opinions:
Majority - Cudahy, Circuit Judge.
Yes. An attorney's failure to seek a remedy for the violation of a foreign national's consular notification rights under Article 36 can support a claim for ineffective assistance of counsel. To warrant an evidentiary hearing, a defendant must show that counsel's performance was deficient and that this deficiency was prejudicial. First, counsel's performance was likely deficient because a reasonably competent attorney in 2003 should have been aware of Article 36 rights, given the clear law, federal regulations, and prevailing professional norms, especially in Illinois where district courts had affirmed these rights. Second, Osagiede made a sufficient showing of prejudice by demonstrating how consular assistance could have plausibly affected the outcome of his sentencing. The Nigerian consulate might have provided funds for a complete voice analysis of the disputed tapes or helped locate the key alternative suspect, Osagiede's cousin, in Nigeria. Because the determination of relevant conduct was a 'close call,' such assistance could have created a reasonable probability of a different result.
Analysis:
This case establishes that a violation of the Vienna Convention on Consular Relations, while not typically providing a direct judicial remedy like suppression of evidence, can serve as the predicate for a Sixth Amendment ineffective assistance of counsel claim. The decision clarifies that the 'remedy' counsel should have sought was not necessarily dismissal, but a simple request for the trial court to make accommodations to cure the violation. By framing the issue through the lens of Strickland, the court provides a viable path for foreign nationals to challenge convictions or sentences where their counsel's ignorance of treaty rights deprived them of tangible, outcome-determinative assistance.
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