Tuesday, August 19, 2008

Tamper Proof

United States v. Ventry, No. 06-3104-pr (2d Cir. August 15, 2008) (Cabranes, Wesley, CJJ, Castel, DJ).

In this appeal from the denial of a 2255 motion, the circuit faulted the district court’s finding that Ventry’s counsel did not suffer from a conflict of interest. It remanded the case for further proceedings to determine the nature of the conflict and consideration of whether Ventry was prejudiced by it.


Ventry was a suspect in robbery in the Niagara Falls area. After he received a subpoena to testify before a federal grand jury, he confessed to his girlfriend, Christine Janik. When Janik was interviewed by an FBI agent, she told the agent when Ventry had said, and signed a written statement, although she later testified that she had felt pressured to make the statement. Janik then told Ventry what she had done and, that same day, broke up with him.

Ventry’s father had hired a lawyer for him, Anthony Lana, but they had not yet spoken. After Ventry learned what Janik had done, he called what he thought was Lana’s firm and spoke to another lawyer, Thomas Eoannou, for advice about what to do about Janiks’ statement.

The next day, Ventry sent Janik an email. In the first paragraph, he indicated that he had spoken with a lawyer, and the lawyer had said that if she made the statement under duress the government could not use it. Ventry told Janik to call the AUSA and say that the statement was coerced and untrue. The second paragraph warned that if she were a witness against him, his lawyer would have to “destroy [her] reputation” by cross-examining her about some embarrassing personal information.

Ventry was ultimately charged with the robbery itself, as well as with witness tampering. Before trial, the government became concerned about a potential conflict of interest between Ventry and both Lana, who was still his counsel, and Eoannou, who was now representing one of the co-defendants, because it appeared that the attorneys had encouraged Ventry to tamper with Janik.

At a hearing, it emerged that Eoannou was the attorney to whom Ventry had spoken; he vigorously defended his advice - at least that in the first paragraph of the email - as legal and proper. And Lana backed him up. Ultimately, although the district court concluded that there might be possible conflict between Ventry and Eoannou, it dismissed the possibility of a conflict between Ventry and Lana, even though Lana and Eoannou shared office space and utilized a firm name that included both of their names. The only outcome of this hearing was that Eoannou ultimately withdrew as counsel for Ventry’s co-defendant..

Lana defended the witness tampering count by asserting that Ventry was acting on the advice of counsel, although he did not call either Ventry or Eoannou as a defense witness. Ventry was acquitted of the robbery but was convicted of witness tampering based on the email to Janik. After losing his direct appeal, Ventry filed a 2255 motion arguing, inter alia, that his trial counsel, Lana, had a conflict of interest because of his professional relationship with Eoannou. In response, the government submitted an affidavit from Lana in which he claimed that he did not have a professional relationship with Eoannou; Lana claimed that he was a “sole practitioner” and that Eoannou was merely his landlord. Without conducting a hearing, the district court accepted Lana’s assertions as true, and denied the motion.

The Appeal

The circuit reversed. The first thing it noted was that the record had not been developed sufficiently for it to even identify the type of conflict here - an actual conflict, which would be presumptively prejudicial - or a potential conflict, in which Ventry would have to prove prejudice.

But either such claim would turn on getting to the bottom of Lana’s business relationship with Eoannou, and understanding why Lana failed to call Eoannou as a defense witness to support the “advice of counsel” defense. The court first noted that there was no ethical bar to Lana's calling Eoannou, even if he and Eoannou were partners. It also noted that the evidence before the district court flatly contradicted Lana’s claim that they were not law partners. They shared a firm name, address and a single telephone number, and publicly represented themselves as being members of the same firm.

The court next noted that Lana’s sworn denial that they were in partnership appeared to be false, and raised questions as to why he did not call Eoannou as a defense witness. Was Lana concerned that, if he did so, Eoannou would admit that their public representations as partners were false, which would expose them to professional discipline? Or was he concerned that Eoannou would admit that they really were partners, which would expose Lana’s own lack of candor? The court also noted that by deciding not to call Eoannou, Lana was spared both of these fates, but only at the expense of potentially beneficial testimony for his client.

The court ultimately decided that it could not resolve Ventry’s claim on the present record. It remanded the case for an evidentiary hearing on the nature of Lana’s and Eoannou’s professional relationship, and for consideration of whether any aspect of it influenced Lana’ decision not to call Eoannou as a witness.



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