United States v. Griffiths

13‐2102‐cv
United States v. Griffiths
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2013
No. 13‐2102‐cr
U NITED S TATES OF AMERICA,
Appellee,
v.
D AVID G RIFFITHS ,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 11‐227(AKH) ― Alvin K. Hellerstein, Judge.
________
A RGUED: A PRIL 10, 2014
D ECIDED: A PRIL 25, 2014
________

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2 No. 13‐2102‐cr
Before: C ABRANES , LYNCH and L OHIER, Circuit Judges.
________
Defendant‐Appellant David Griffiths appeals from the May
14, 2013 judgment of the United States District Court for the
Southern District of New York (Alvin K. Hellerstein, Judge)
following Griffiths’s conviction, after a jury trial, on one count of
making false statements to the Government, 18 U.S.C. § 1001; one
count of obstruction of justice, 18 U.S.C. § 1512(c)(2); and one count
of mail fraud, 18 U.S.C. § 1341. On appeal, as below, Griffiths
principally contends that he was denied his Sixth Amendment right
to effective assistance of counsel when, after his attorney suffered
two strokes following the close of evidence at trial, the District
Court―instead of postponing trial indefinitely or granting a
mistrial―appointed an attorney who had not witnessed the
presentation of the evidence to deliver the defense summation.
Griffiths also contends that there was insufficient evidence for a jury
to convict on any of the three counts.
We hold that there is no per se violation of the Sixth
Amendment right to be represented by one’s counsel of choice and
to effective assistance of counsel when a district court, after defense
counsel has become incapacitated, appoints counsel, over
defendant’s objection, to deliver the defense summation,
notwithstanding the fact that appointed counsel did not witness the
presentation of the evidence. Because, in the circumstances
presented, the District Court’s decision to appoint substitute counsel
was reasonable, and Griffiths has shown no prejudice arising from
that appointment, his Sixth Amendment claim fails. We also hold
that the evidence was sufficient for a jury to convict on all three
counts.
Accordingly, we AFFIRM the judgment of the District Court.

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3 No. 13‐2102‐cr
________
D ONALD D. D UBOULAY, L AW O FFICES OF D ONALD
D. D UB OULAY , New York, NY, for Defendant‐
Appellant David Griffiths,
JUSTIN A NDERSON, Carrie Cohen, Assistant United
States Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, NY, for Appellee.
________
PER CURIAM:
Defendant‐Appellant David Griffiths appeals from the May
14, 2013 judgment of the United States District Court for the
Southern District of New York (Alvin K. Hellerstein, Judge)
following Griffiths’s conviction, after a jury trial, on one count of
making false statements to the Government, 18 U.S.C. § 1001; one
count of obstruction of justice, 18 U.S.C. § 1512(c)(2); and one count
of mail fraud, 18 U.S.C. § 1341. On appeal, as below, Griffiths
principally contends that he was denied his Sixth Amendment right
to effective assistance of counsel when, after his attorney suffered
two strokes following the close of evidence at trial, the District
Court―instead of postponing trial indefinitely or granting a
mistrial―appointed an attorney who had not witnessed the
presentation of the evidence to deliver the defense summation.
Griffiths also contends that there was insufficient evidence for a jury
to convict on any of the three counts.
We hold that there is no per se violation of the Sixth
Amendment right to be represented by one’s counsel of choice and
to effective assistance of counsel when a district court, after defense

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4 No. 13‐2102‐cr
counsel has become incapacitated, appoints counsel, over
defendant’s objection, to deliver the defense summation,
notwithstanding the fact that appointed counsel did not witness the
presentation of the evidence. Because, in the circumstances
presented, the District Court’s decision to appoint substitute counsel
was reasonable, and Griffiths has shown no prejudice arising from
that appointment, his Sixth Amendment claim fails. We also hold
that the evidence was sufficient for a jury to convict on all three
counts.
Accordingly, we AFFIRM the judgment of the District Court.
BACKGROUND
On April 24, 2012, the Government filed a Superseding
Information charging Griffiths with three counts relating to his
activities as Executive Director of the not‐for‐profit corporation
Neighborhood Enhancement Training Services, Inc. (“NETS”): (1)
making false statements, in violation of 18 U.S.C. § 1001, by
submitting, in response to a grand jury subpoena, fabricated
minutes of a meeting of the Board of Directors falsely reporting
events that never happened; (2) obstruction of justice, in violation of
18 U.S.C. § 1512(c)(2), based on the submission of fabricated
minutes; and (3) mail fraud, in violation of 18 U.S.C. § 1341, by
submitting an application for funding for NETS to the Dormitory
Authority of the State of New York containing false statements.
Griffiths retained Jared Scharf as his defense counsel.
At trial commencing on May 1, 2012, the Government and the
defense presented their respective cases, each of which included
witness testimony. On May 14, 2012, after the close of evidence and
after the completion of the charging conference, Griffiths’s lawyer,
Scharf, suffered two strokes and was hospitalized. A doctor’s note
submitted to the District Court revealed that Scharf would need to

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5 No. 13‐2102‐cr
undergo rehabilitation after his hospitalization, but did not predict if
or when Scharf would be able to resume representation of Griffiths.
Notwithstanding the lack of evidence regarding Scharf’s
prognosis, Griffiths insisted that he was willing to continue trial
only with Scharf as his counsel. He refused to consent to a mistrial
which would have entailed a waiver of his Fifth Amendment right
against double jeopardy and permitted him to be retried. On May
16, 2012, with only closing arguments remaining and the jury
empaneled, the District Court adjourned trial for five days and
appointed Bennett Epstein as counsel1 to advise Griffiths solely on
the issue of how to proceed in light of Scharf’s condition. The
District Court expressed a willingness to adjourn the trial for up to
three weeks rather than “give [Griffiths] the opportunity to have the
benefit of a mistrial” without waiving his right against double
jeopardy. J.A. 129.
At conference on Monday May 21, 2012, Judge Hellerstein
summarized his predicament, as set forth in a letter to Scharf’s
doctor requesting information: “[I]f Mr. Scharf’s anticipated
disability will be longer [than about a week] or indefinite, I may
have to discharge the jury . . . and declare a mistrial. But I cannot do
so unless the defendant consents or unless I find manifest necessity.
So I need to know . . . how long Mr. Scharf’s disability will last.” J.A.
131. The defense team was unable or unwilling to provide any
concrete information about Scharf’s prognosis2 and, accordingly, the
1 Epstein was appointed pursuant to the Criminal Justice Act (“CJA”), which
mandates that courts provide “representation for [criminal defendants] financially
unable to obtain adequate representation.” 18 U.S.C. § 3006A.
2 The District Court independently contacted Scharf’s physicians and
rehabilitation center, but could not obtain confidential information about Scharf’s
condition from those sources. Scharf’s paralegal could say only that Scharf would be in
the rehabilitation center for at least a week, and Griffiths volunteered that “his mind is

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6 No. 13‐2102‐cr
projected length of Scharf’s absence remained indefinite. Epstein
stated that “the only position Mr. Griffiths wishes to take and
should take at this point is he’s not consenting to the granting of a
mistrial.” Id.
Rather than declare a mistrial on grounds of “manifest
necessity,” the District Court appointed Epstein as trial counsel, over
Griffiths’s objection, and instructed Epstein to prepare for
summations the following Tuesday. See id. at 131‐32. The District
Court stated that, if Griffiths submitted information indicating that
Scharf could return in a reasonable amount of time, it would
reconsider the decision to proceed with substitute counsel. The jury
was then informed of Epstein’s appointment, and told that they
would need to return for summations and deliberation on May 29,
two weeks after the first adjournment. Id. at 132‐33. The District
Court noted the possibility of “redo[ing] some testimony” in
advance of summations. Id. at 135.
At a May 24, 2012 status conference, Epstein represented: “I’m
ready and I believe that I can deliver an effective summation in the
case. . . . My issue is this. . . . I don’t know if, by definition, I can
render effective assistance of counsel based upon the fact that I
never saw a single witness testify.” J.A. 136. He classified the issue
as a “structural one.” Id. Judge Hellerstein responded, “I felt, in
appointing you . . . that you would be able to effectively[ ]represent
Mr. Griffiths. . . . I can’t think of a particular demeanor issue that
much improved” but that he had a “speech problem.” It is unclear whether the defense
team was unwilling or unable to provide more information to the District Court. See J.A.
130 (PROSECUTION: “I am concerned that the defense team is not providing us with the
information we need in order for the Court to determine whether to declare a mistrial.
They have the ability to get that information, your Honor. We don’t.” THE COURT: “Mr.
Epstein, what do you know?” MR. EPSTEIN [(CJA counsel)]: “I don’t think it is proper
for me to reveal at this point what the subject of those discussions was.”).

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7 No. 13‐2102‐cr
will control how one looks at the testimony that was presented.” Id.
Griffiths then renewed his motion “to continue the trial until Mr.
Scharf becomes able to conduct his duties as defense counsel,”
which the District Court denied.3 Id. at 138.
On May 29, 2012, the parties gave summations and the jury
began deliberations. On May 30, the jury delivered a verdict of
guilty on all three counts. Griffiths made post‐trial motions for a
new trial or judgment of acquittal, Fed. R. Crim. P. 29, 33, which the
District Court denied. The District Court sentenced Griffiths
principally to five months’ imprisonment on each count, to be
served concurrently, and two years’ supervised release. Judgment
was entered on May 14, 2013, and this timely appeal followed.
DISCUSSION
On appeal, Griffiths argues that the District Court erred in
denying his post‐trial motions because (1) the appointment of
Epstein to deliver the summation, over Griffiths’s objection, violated
his Sixth Amendment rights; and (2) there was insufficient evidence
for the jury to convict on any count.
A. Griffiths’s Sixth Amendment Rights
The Sixth Amendment guarantees a right to effective
assistance of counsel as part of the fundamental right to a fair trial.
See Strickland v. Washington, 466 U.S. 668, 685‐86 (1984). It also
guarantees, with some limitations, a right to counsel of one’s
choosing. See United States v. Gonzalez‐Lopez, 548 U.S. 140, 147‐48
(2006). Griffiths argues that his Sixth Amendment rights were
3 Prior to renewing his motion, Griffiths reported that Scharf was improved but
still “slurring his speech” and could not stay awake for more than twenty minutes at a
time. J.A. 137.

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8 No. 13‐2102‐cr
violated by (1) the denial of his right to be represented by counsel of
his choice, and (2) the appointment of counsel to deliver a closing
argument “without having seen a minute of trial.”4 Appellant’s Br.
32‐33.
It is well established that “although [a trial court] may not
compel [a] defendant to proceed with incompetent counsel[,]” it
may, in certain circumstances, “require a defendant to proceed to
trial with counsel not of defendant’s choosing.” United States v.
Schmidt, 105 F.3d 82, 89 (2d Cir. 1997); see also Wheat v. United States,
486 U.S. 153, 159 (1988) (“[T]he essential aim of the [Sixth]
Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.”). Moreover, a district
court has “a great deal of latitude in scheduling trials,” Morris v.
Slappy, 461 U.S. 1, 11 (1983), and need not grant a continuance so
that a defendant may be represented by counsel of his choosing,
where such a continuance would cause significant delay, United
States v. Brumer, 528 F.3d 157, 161 (2d Cir. 2008) (noting that this
decision is reviewed for “abuse of discretion”). See generally Sims v.
4 Although we do not ordinarily decide “ineffective assistance” claims on direct
appeal, under the circumstances presented here―a well‐developed record on appeal
resulting from the fact that the ineffective assistance issue was fully developed at
trial―postponing a decision until defendant can bring a habeas petition pursuant to 28
U.S.C. § 2255 would not serve the interests of justice. See Massaro v. United States, 538 U.S.
500, 504‐05 (2003) (“[I[n most cases a motion brought under § 2255 is preferable to direct
appeal for deciding claims of ineffective‐assistance [because] [w]hen an ineffective‐
assistance claim is brought on direct appeal, appellate counsel and the court must
proceed on a trial record not developed precisely for the object of litigating or preserving
the claim and thus often incomplete or inadequate for this purpose.”); see also United
States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (noting that we have “entertained
ineffective assistance claims for the first time on direct appeal when their resolution is
beyond any doubt or to do so would be in the interest of justice”) (internal quotation
marks omitted).

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9 No. 13‐2102‐cr
Blot (In re Sims), 534 F.3d 117, 132 (2d Cir. 2008) (describing abuse of
discretion standard). We conclude that in the circumstances
presented here, the efforts of the District Court to accommodate
Griffiths’s desire to be represented by Scharf were more than
adequate, and it was not an abuse of discretion to conclude that “the
needs of fairness” and “demands of its calendar” permitted
appointment of substitute counsel. See Gonzalez‐Lopez, 548 U.S. at 152
(recognizing that those considerations may trump the right to one’s
counsel of choice).
Griffiths’s attempt to show that Epstein was constitutionally
ineffective also fails. Ordinarily, to prevail on a claim for ineffective
assistance of counsel a defendant must demonstrate that: (1)
counsel’s performance fell below an “objective standard of
reasonableness”; and (2) defendant was “prejudice[d],” meaning
that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 688, 693‐94. We have also
recognized two discrete situations constituting “per se ineffective
assistance,” such that a defendant “need not make a particularized
showing of prejudice to obtain relief”: when “unknown to the
defendant, counsel was, at the time of representation, (1) not duly
licensed to practice law . . . or (2) implicated in the defendant’s
crimes.” United States v. Rondon, 204 F.3d 376, 379‐80 (2d Cir. 2000)
(internal quotation marks and citation omitted).
Griffiths points to no particularized prejudice suffered as a
result of Epstein’s appointment as counsel to deliver the summation,
and the record reveals no basis for finding such prejudice.5 Instead,
5 Griffiths did not argue below, and does not argue on appeal, that Epstein was
unprepared or point to specific flaws in Epstein’s summation that might have altered the
outcome.

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10 No. 13‐2102‐cr
Griffiths urges us to create a new category of per se ineffective
assistance―where counsel delivers a summation without having
witnessed the presentation of the evidence. There is no basis in law
or logic for creating such a rule, as the facts of this case reveal. The
fact that Griffiths’s replacement counsel―who was undisputedly
competent and prepared―did not witness the presentation of
evidence is not tantamount to having “no counsel at all,” nor does it
present a “conflict of interest” that would prevent zealous
representation, such that his representation could be deemed per se
deficient.6 See Rondon, 204 F.3d at 381 (discussing rationales for per se
ineffective assistance categories). Accordingly, absent any showing
of prejudice, Griffiths’s claim that he was deprived of his right to
counsel fails.
In reaching these conclusions, we do not minimize the
difficulty of the choice faced by the District Court, and the less‐than‐
ideal situation facing Griffiths. Griffiths asserted two valuable and
constitutionally‐protected rights: the right to counsel of one’s
choosing, Gonzalez‐Lopez, 548 U.S. at 147‐48, and the right to proceed
to verdict at a single trial before the jury originally empaneled to
hear his case, see United States v. Razmilovic, 507 F.3d 130, 136 (2d Cir.
2007) (citing Arizona v. Washington, 434 U.S. 497, 503 (1978)). He
urged the District Court to ensure both of these rights by continuing
the trial until Scharf recovered sufficiently to resume his duties and
complete the trial.
6 The contrast between this case, where Epstein prepared for a week and then
delivered a thorough closing argument, and the case relied upon by Griffiths, Herring v.
New York, 422 U.S. 853, 863 (1975), in which the Supreme Court held that “a trial judge
[cannot] deny absolutely the opportunity for any closing summation” in criminal trials,
merely highlights why the circumstances presented here do not form the basis for an
ineffective assistance claim, much less a finding of per se ineffective assistance of counsel.

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11 No. 13‐2102‐cr
Had the District Court immediately pressed ahead with trial
following Scharf’s strokes, without regard for Griffiths’s
constitutional rights, his argument might well have force. Instead,
the District Court made appropriate efforts to accommodate
Griffiths’s preference. It adjourned the trial, appointed counsel for
the limited purpose of advising Griffiths of his rights and options
under the circumstances, and sought to determine whether and
when Scharf was likely to be able to return to court and effectively
represent Griffiths.
Although the District Court had indicated its willingness to
adjourn the trial for as long as three weeks to await Scharf’s return
to health, after two weeks the court remained unable to secure any
indication of when, if ever, Scharf would be able to return. Under
these circumstances, Griffiths’s position amounted to a demand for
an indefinite adjournment―an impossibility in this, and perhaps
any, case. No jury can be held on indefinite call. Moreover, under
the circumstances here, the judge had no guarantee that Scharf
would ever be sufficiently recovered to resume trial. Urgent action
was necessary.
Since Griffiths’s demand for an indefinite adjournment was
appropriately rejected, the courses of action open to the District
Court permitted the preservation of one or the other, but not both, of
the constitutional interests he asserted. A mistrial would, at least
potentially, preserve his right of counsel of choice, either by
permitting a new trial once Scharf had recovered, or by giving
Griffiths time to retain alternate counsel if Scharf was unable to
proceed within a reasonable time, but at the cost of subjecting
Griffiths to a new trial; the appointment of substitute counsel would
preserve Griffiths’s right to a single trial before a single jury, but at
the cost of proceeding with appointed counsel rather than with his
retained counsel, Scharf.

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12 No. 13‐2102‐cr
Under these unusual circumstances, the District Court
properly exercised its discretion in deciding to appoint substitute
counsel, given Griffiths’s refusal to consent to a feasible alternative.7
The right to counsel of choice, which after all often gives ground to
the simple demands of judicial scheduling, is not automatically to be
preferred over the right to a single trial before a single jury.
At the same time, we note that the right to effective assistance
of counsel is paramount. A second trial before a different jury,
despite the inconvenience, cost and disruption, is preferable to an
unfair trial. A district court must carefully consider the extent to
which substituted counsel can effectively continue the trial on
defendant’s behalf. Here, as discussed above, we are confident that
the district court weighed the ability of substitute counsel to deliver
an effective summation on the defendant’s behalf, and our review
reveals neither a departure from highly competent advocacy nor any
prejudice to the defendant’s rights. Accordingly, we find no reason
to overturn the judgment of the District Court.8
7 The District Court properly indicated that it would defer to any feasible
preference expressed by Griffiths, whether a request for a mistrial, or proceeding with his
counsel of choice within a known, reasonable time period. But Griffiths’s insistence on an
impracticable course of action necessitated the District Court’s exercise of discretion in
choosing between two undesirable alternatives.
8 In affirming the decision of the District Court, we do not hold that Judge
Hellerstein lacked the discretion to grant a mistrial if, he concluded that the appointment
of substitute counsel posed a genuine threat to Griffiths’s Sixth Amendment rights. In
weighing alternative courses that implicate different constitutional rights, a district court
necessarily exercises discretion in determining which course will encroach the least upon
a defendant’s rights, for it often cannot know the answer in advance. Cf United States v.
MacQueen, 596 F.2d 76, 82 (1979) (“Per se rules are inappropriate in the mistrial context,
and every case turns on its own facts.”) (internal quotation marks omitted). We are not
in a position to second‐guess such decisions, which are necessarily based on a nuanced
understanding of the facts. See Razmilovic, 507 F.3d at 133 (a district court’s declaration of
a mistrial on grounds of manifest necessity is reviewed for abuse of discretion).

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13 No. 13‐2102‐cr
B. Sufficiency of the Evidence
Griffiths contests his conviction on Counts One and Two on
the basis that there was insufficient evidence that the minutes of
relevant meetings of the Board of Directors of NETS contained
material falsehoods. On Count Three, Griffiths argues that there was
insufficient evidence that he had the requisite fraudulent intent in
completing the Dormitory Authority questionnaire containing
falsehoods.
We review de novo a challenge to sufficiency of the evidence,
viewing the evidence in the light most favorable to the Government,
and affirming if “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United
States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979), other quotations omitted); United
States v. Henry, 325 F.3d 93, 103 (2d Cir. 2003) (citations omitted).
With respect to Counts One and Two, we conclude that the
evidence that Griffiths fabricated minutes of NETS meetings to
falsely reflect, among other things, approval of transfers of money
from NETS to himself―transfers which were, in fact, never
approved―was sufficient for a jury to find that the falsehoods in the
minutes were material. See United States v. Stewart, 433 F.3d 273, 318
(2d Cir. 2006) (“A false statement is material if it . . . is capable of
influencing the decision‐making body to which it was addressed”
including by “distracting government investigators’ attention away”
from the target of the investigation).
With respect to Count Three, which was based on the false
statements in the Dormitory Authority questionnaire, we conclude
that there was sufficient circumstantial evidence that “defendant
made misrepresentations to the victim(s) with knowledge that the

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14 No. 13‐2102‐cr
statements were false,” as required to show fraudulent intent. United
States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999).
We therefore conclude that there was sufficient evidence to
convict Griffiths on all three counts.
CONCLUSION
To summarize:
(1) Griffiths’s claim that his Sixth Amendment rights
were violated fail.
a. The Sixth Amendment does not create an absolute
right for a defendant to be represented by counsel of
his choice; where his chosen counsel becomes
incapacitated for an indefinite period a district court
has discretion to appoint substitute counsel, where
doing so would not unduly prejudice the defendant.
b. A district court’s appointment of counsel to deliver
the defense summation where counsel did not
witness the presentation of the evidence is not a per
se violation of the Sixth Amendment right to
effective assistance of counsel.
c. Griffiths has not shown that he was prejudiced by
the District Court’s appointment of substitute
counsel to deliver the summation in his defense.
(2) There was sufficient evidence for a jury to convict
Griffiths on all three counts.
Accordingly, we AFFIRM the judgment of the District Court.

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