United States v. Weathers
2007 U.S. App. LEXIS 16919, 493 F.3d 229, 377 U.S. App. D.C. 256 (2007)
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Rule of Law:
A defense attorney's failure to raise a meritorious double jeopardy claim constitutes ineffective assistance of counsel if the failure was based on a misunderstanding of the law and there was no reasonable strategic reason not to raise it. However, if the failure to raise the claim was a tactical decision to avoid a legitimate risk, such as the government filing a superseding indictment with more charges, the attorney's performance is not deficient.
Facts:
- Mark Weathers was in jail awaiting trial on multiple rape charges.
- While incarcerated, Weathers plotted to have the prosecutor, Assistant United States Attorney (AUSA) Bernadette Sargeant, an informant, and the five rape victims murdered to prevent them from testifying.
- In a recorded conversation with a fellow inmate, Weathers offered to pay $20,000 to have the prosecutor killed.
- Weathers later met with an undercover police officer posing as a hitman and instructed him to kill one of the rape victims and the informant.
- Weathers explained that his friend, Maurice Logan, would provide payment for the murders.
- Police found a letter from Weathers in Logan's apartment asking Logan to burn down the houses of the rape victims.
- Based on these actions, Weathers was charged in a six-count indictment, which included separate counts for threatening the prosecutor as a federal official (Count 4) and as a person (Count 5), and for obstructing justice against witnesses (Count 3) and the prosecutor (Count 6).
Procedural Posture:
- Mark Weathers was convicted by a jury in federal district court on a six-count indictment.
- Weathers appealed his conviction to the U.S. Court of Appeals for the D.C. Circuit, arguing for the first time that his indictment contained multiplicitous counts in violation of the Double Jeopardy Clause.
- The Court of Appeals held that Weathers had waived his double jeopardy claim by failing to raise it before trial.
- The Court of Appeals remanded Weathers's alternative claim—that his trial counsel was ineffective for failing to raise the double jeopardy issue—to the district court for an evidentiary hearing.
- On remand, the district court held a hearing and rejected the ineffective assistance of counsel claim, finding counsel's decision was a reasonable tactical judgment and that Weathers was not prejudiced.
- Weathers appealed the district court's rejection of his ineffective assistance claim to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does a trial counsel's failure to file a pre-trial motion challenging multiplicitous counts on double jeopardy grounds constitute ineffective assistance of counsel under the Strickland v. Washington standard?
Opinions:
Majority - Brown, J.
Yes, in part, and no, in part. Counsel's failure to challenge the multiplicitous counts for threatening the prosecutor constituted ineffective assistance, but the failure to challenge the obstruction of justice counts did not. To establish ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that counsel's performance was deficient and that the deficiency prejudiced the defense. For Counts Three and Six (obstruction of justice), counsel's performance was not deficient. Counsel testified he made a tactical decision not to challenge the counts because he feared the government would respond with a superseding indictment containing even more obstruction charges, which was a real possibility. This was an objectively reasonable strategic judgment, and the court must be highly deferential to such choices. For Counts Four and Five (threatening the prosecutor), counsel's performance was deficient and prejudicial. His stated reason for not challenging the counts—that threatening a person and a federal officer are 'two different things'—demonstrated a misunderstanding of the Blockburger test, which requires each offense to have an element the other does not. There was no reasonable strategic benefit to this failure, as the risk of a superseding indictment with more charges did not apply to these counts. Furthermore, there was a reasonable probability that a double jeopardy challenge would have succeeded, as Count Five was likely a lesser-included offense of Count Four, thus satisfying the prejudice prong of Strickland.
Analysis:
This decision provides a clear illustration of the boundaries of 'reasonable professional assistance' under the Strickland standard for ineffective assistance of counsel. It distinguishes between a deliberate, tactical choice made to avoid a worse outcome—which is afforded significant deference—and a failure to act based on a fundamental misunderstanding of controlling legal principles. The ruling reinforces that a lawyer's decision is not 'strategic' if it is not based on sound legal judgment. By vacating one conviction, the case demonstrates that an ineffective assistance claim can serve as a successful collateral attack to remedy a double jeopardy violation that was waived on direct appeal.
