Georgia 11th Circuit finds no exception for 'cowardly counsel'

By Pat Murphy

The Daily Record Newswire

BOSTON, MA -- It's no fun facing a judge on the warpath.

But when protecting a client's interests, can discretion ever be the better part of valor?

Last week, the 11th Circuit created a circuit split in answering the question of whether there's a "vindictive judge or cowardly counsel" exception to the contemporaneous objection rule.

The issue was addressed in the case of Alicia Rodriguez, who was indicted in Florida for participating in a $3,000,000 Medicare fraud scheme.

In February 2008, Rodriguez agreed to plead guilty to one count each of mail fraud, money laundering, and obstruction of a criminal investigation. Under the terms of her plea agreement, the government dropped other charges in exchange for her cooperation in the investigation and recovery of fraudulently obtained funds.

At the sentencing hearing, the district judge had some strong comments in response to Rodriguez's plea for leniency. The judge noted that Rodriguez was a "Cuban refugee" who had repaid this country's sanctuary by ripping off the Medicare program of millions of dollars.

Of course, the reference to Rodriguez's national origin created the appearance that her Cuban ancestry was improperly considered when the judge imposed a sentence of 91 months. But the lawyer representing Rodriguez failed to object to the reference at the time.

And even though the sentence was in line with the government's recommendation that Rodriguez receive a 40 percent reduction in sentence under the guidelines, Rodriguez was unhappy with the time she was facing. So she appealed to the 11th Circuit.

Now, no one actually believes that the sentencing judge was or is biased. Rodriguez simply claims that the "Cuban refugee" comment created the appearance of bias which can only be cured by resentencing.

Rodriguez's big problem was that her lawyer failed to raise a contemporaneous objection, subjecting her case to plain error review. In order to avoid that high standard, Rodriguez seemed to argue that her lawyer held his tongue because he felt intimidated in the face of the sentencing judge's expression of apparent bias.

In support of her contention that her case was not governed by the contemporaneous objection rule, Rodriguez relied on a two cases from the 2nd Circuit which forgive a lawyer's failure to object when a judge evinces national origin bias at sentencing.

But the 11th Circuit was not about to follow the 2nd Circuit's lead and discard the contemporaneous objection requirement in this context.

In upholding Rodriguez's sentence, the 11th Circuit said that the "vital interests protected by the rule requiring an objection are discarded under the exception the 2nd Circuit has created that excuses the failure to object whenever a lawyer would be 'understandably reluctant' to do so."

The court asked "what lawyer will not be 'understandably reluctant' to object if no objection is required? By not objecting the lawyer can avoid any risk that an ambiguous statement will be clarified or an actual error corrected on the spot in response to an objection; she can keep the issue in her pocket in hopes that it will serve as a get-out-of-judgment-free card on appeal."

What of getting on a judge's bad side by raising the issue of bias before sentence is pronounced?

The 11th Circuit turned that question around.

"A judge's ire is, if anything, more likely to be raised by an assertion that he is actually biased than by an assertion that he only appears to be biased. Holding that the law does not require objections to statements appearing to indicate bias where there is none would be inconsistent with the law requiring objections where there is bias," the court said.

Accordingly, the court reached this bottom line: "[W]e hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it." (U.S. v. Rodriguez)

Published: Thu, Dec 30, 2010