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No 6th Amendment Right to Counsel at Writ of Garnishment Hearing

"Cohan argues that the attorney representing him at the writ of garnishment hearing labored under a conflict of interest in violation of his Sixth Amendment right to counsel, and that the district court committed plain error in failing to inquire as to the alleged conflict. [The Second Circuit found that] there is no Sixth Amendment right to counsel at a writ of garnishment hearing brought to satisfy forfeiture or restitution judgments, and the district court thus did not have a duty to inquire." Pp. 2 "On June 10, 2009, Cohan pleaded guilty to one count of healthcare fraud, in violation of 18 U.S.C. § 1347, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)." Pp. 3

What happened here - Cohan thought that the restitution and civil forfeiture ($600,000 each) were to run concurrently as per his plea deal with the government. "The government denied entering into any such agreement. On July 27, 2010, the district court entered a judgment of conviction setting the amount of restitution at $607,186. On the same day, the district court entered a final order of forfeiture requiring Cohan to forfeit $600,000." Pp. 7. Cohan was wrong and complained. Indeed, Cohan protested that:

"The record is clear that the government entered an agreement, and the defendant relied upon it, that the funds seized and forfeited in 2007, together with an additional amount to equal six hundred thousand ($600,000) dollars would be turned over to the victim, the Port Authority, as restitution. Accordingly, it is overreaching and unjust for the government to now claim that the funds seized were intended to be forfeited to the government and that an additional six hundred thousand ($600,000) should now be paid over to the Port Authority as restitution. That is simply not the bargain the government struck and it should be estopped from making such a claim." ECF Docket. No. 98 September 15, 2013.

The government, again, denied making any such agreement. "The writ of garnishment hearing was held on October 9, 2013. During the hearing, the district court explored the issue of whether the government had agreed to pay over any monies collected pursuant to the forfeiture money judgment to the victim and credit that amount as restitution. Both former Assistant U.S. Attorney Brownell and Cohan’s former co‐counsel Wikstrom testified. Wikstrom participated in the hearing as a witness, not as counsel, with Russo representing Cohan. Brownell testified that he did not recall discussing with Wikstrom the possibility of using the forfeiture money to pay restitution. He also testified that he did not promise that any of the forfeiture money would be used to pay restitution." Pp. 8. T1: "The district court granted the writs of garnishment and issued an amended order of forfeiture allowing the government to seize the funds, but only after fully satisfying Cohan’s restitution obligations. This appeal followed." Pp. 10. The issue focused upon here was whether there was a violation of the right to counsel:

Rule: ["It is well‐established that “[a] defendant’s Sixth Amendment right to effective assistance of counsel includes the right to representation by conflict‐free counsel.” LoCascio v. United States, 395 F.3d 51, 56 (2d Cir. 2005) (citation omitted). “[A] defendant has suffered ineffective assistance of counsel in violation of the Sixth Amendment if his attorney has (1) a potential conflict of interest that resulted in prejudice to the defendant, or (2) an actual conflict of interest that adversely affected the attorney’s performance.” United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994). “To ensure that this right to conflict‐free counsel is not abridged, a district court has two distinct obligations during criminal proceedings: (1) to initiate an inquiry whenever it is sufficiently apprised of even the possibility of a conflict of interest, and (2) to disqualify counsel or seek a waiver from the defendant whenever the inquiry reveals that there is an actual or potential conflict.” United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000) (internal quotation marks omitted). “These obligations, which stem from the Sixth Amendment, arise whenever there is the possibility that a criminal defendant’s attorney suffers from any sort of conflict of interest.” Levy, 25 F.3d at 153.] Pp.11-12 (citations and quotations preserved)..

Here, the Second Circuit reviews the District Court determination - narrowing the issue, the Second Circuit finds that "the district court had a duty to inquire only if Cohan had a right to counsel at the writ of garnishment hearing derived from the Sixth Amendment." Pp. 12.

Restitution is part of the criminal prosecution. By statute (Mandatory Victims Restitution Act), Restitution is mandatory and, thus, imposed as a criminal sanction. In contrast, "a writ of garnishment seeks to enforce an already existing order of restitution. It is not part of defendant’s criminal sentencing because it does not implicate the imposition of restitution. Collecting the restitution owed is decidedly civil in nature." Pp. 13. Adopting the rationale of the Seventh Circuit, the Second Circuit takes no issue with the Writ of Garnishment occurring within a criminal docket: "the government is free to pursue the civil remedy of garnishment under an existing criminal docket number without transforming the proceeding into a criminal matter." Pp. 14. Indeed, although occurring within the criminal prosecution, the criminal docket, and with all the same actors (i.e. same defense attorney, same prosecutor and same judge), "a writ of garnishment hearing is a civil proceeding collateral to the underlying criminal conviction" and thus no right to counsel attaches. Id.

Conclusion: "We find there is no Sixth Amendment right to counsel at a writ of garnishment hearing brought to satisfy restitution or forfeiture judgments, and the district court thus did not have a duty to inquire. While the imposition of restitution falls within a defendant’s criminal proceedings, a writ of garnishment is a civil remedy falling outside the scope of the Sixth Amendment’s protections." Pp. 3.

The case is United States of America v. Barry Cohan, 14‐127‐cr (2d Cir. Aug. 14, 2015).

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