Hating The Game: Counsel’s Strategic Concessions in Rapper-Related Shooting Case Cannot Support IAC Claim
In United States v. Rosemond, 18-3561-cr (May 1, 2020) (Sack, Chin, Bianco), the Second Circuit held principally that Defendant-Appellant James R. Rosemond’s Sixth Amendment “Right to Autonomy” was not violated when his defense attorney, over his objection, conceded an element of the charged murder-for-hire offense—that he had hired individuals to shoot the victim—and instead argued that the government had failed to prove Rosemond’s intent to kill the victim. The court also rejected Rosemond’s ineffective assistance of counsel claim under Strickland and an evidentiary challenge. The case is a notable decision for the criminal defense bar, as it lays out the circumstances in which the Circuit believes that a defense lawyer must follow his client’s wishes in planning his defense strategy.
Rosemond owned Czar Entertainment (“Czar”), a hip-hop, rap, and R&B management company that managed artists such as rapper The Game (Jayceon Taylor). Czar and rival management company Violator Records (“Violator”) had a feud dating back to 2002, which intensified when The Game was publicly ousted from rap group “G-Unit” by rapper 50 Cent (Curtis Jackson). At the time, G-Unit was represented by Violator as a group, and The Game was individually represented by Czar. In 2007, as tensions between Czar and Violator/G-Unit continued to rise, G-Unit associates, including the eventual decedent Lowell Fletcher, assaulted Rosemond’s son. Eventually, in 2009, Rosemond paid associates to lure Fletcher to a pre-arranged location, and shoot him. On September 27, 2009, one associate shot and killed Fletcher, while two others were on standby as “back up” shooters.
In March 2014, a jury deadlocked on murder-for-hire charges against Rosemond. He was retried in December 2014, convicted on four counts related to murder-for-hire, and sentenced to life plus 20 years’ imprisonment. However, on appeal, the Circuit vacated his conviction and sentence—in an opinion covered in our 2016 blog post—and remanded for a new trial on the grounds the district court had misinterpreted the scope of a proffer agreement waiver.
Rosemond was tried for a third time in 2017. Prior to trial, Rosemond communicated to his defense attorney that he wanted him to dispute the Government’s theory that Rosemond had instructed associates to shoot Fletcher. Nevertheless, defense counsel conceded to jurors that Rosemond had directed the shooting, and focused his defense on what he characterized as a lack of evidence that Rosemond had intended for Fletcher to be killed. Despite presenting this defense, Rosemond was once again found guilty of murder-for-hire related charges. Prior to sentencing, Rosemond moved for a new trial, arguing that he had not authorized his attorney to concede that he had orchestrated the shooting. The district court denied his motion, and sentenced him to life plus 30 years’ imprisonment.
The Second Appeal
Rosemond again appealed his conviction to the Circuit, arguing principally that his attorney deprived him of his Sixth Amendment “Right to Autonomy,” or right to “make fundamental choices about his own defense”—as announced by the Supreme Court in McCoy v. Louisiana, 138 S. Ct. 1500 (2018)—by overruling his expressed desire regarding strategy and conceding an element of the charged offenses, i.e., that he had directed the shooting. In McCoy, defendant’s counsel had, over the defendant’s objection, conceded the defendant’s guilt of capital murder during the guilt phase of the trial in an attempt to avoid a death sentence during the penalty phase. The Supreme Court held that the move had deprived the defendant of his right “to make fundamental choices about his defense,” including “the right to insist that counsel refrain from admitting guilt, even when counsel’s experience-based view is that confessing guilt” is in the defendant’s best interests.” Id. 1511, 1505.
The Circuit rejected Rosemond’s argument, distinguishing between a defense attorney’s concession of guilt of a charged offense (as was the case in McCoy), and making a strategic decision to concede that the government has proven an element of an offense as part of a strategy in pursuit of acquittal with respect to that offense (as Rosemond’s attorney did). According to the Circuit, “when a lawyer makes strategic concessions in pursuit of an acquittal, there is no McCoy violation,” even if the defendant vehemently opposed those concessions.
For similar reasons, the Court rejected Rosemond’s argument that he was deprived of effective assistance of counsel, as the Court found “no reasonable probability that the outcome of the case would have been different” had his attorney presented the defense urged by Rosemond. Ineffective assistance claims are ordinarily litigated in the context of 2255 petitions, see Massaro v. United States, 538 U.S. 500 (2003), but here the Court considered the record sufficiently developed to resolve the issue.
Finally, the Court affirmed the admission of Rule 404(b) evidence as appropriate to provide the jury with “context” for the crime and to explain the “mutual trust” between the co-conspirators.
The Circuit’s decision in Rosemond suggests that the Court intends to construe McCoy narrowly, and apply its rule only where a defense attorney concedes all elements of a charged offense over a client objection: “McCoy is limited to a defendant’s right to maintain his innocence of the charged crimes.” The Second Circuit’s decision is in keeping with the decisions of the other Circuits to have interpreted McCoy. In addition, the Court found illogic in Rosemond’s argument that he did not want his lawyer to concede that he committed an “immoral and shameful act” by hiring a gunman to shoot a rival, but that he instead wanted his counsel to argue that Rosemond only intended to orchestrate a kidnapping. The argument “loses its thrust . . . when [Rosemond] picks and chooses which crime he is comfortable conceding.” It is not clear from the appellate decision which defense stood a greater chance of success. The panel seemed to decide whichever defense might have been stronger relative to the other, neither would have carried the day.
Here, the lawyer-client relationship seems to have been a challenging one for both lawyer and client, with the lawyer and client each seemingly unable to persuade the other of the right course to take. In the end, someone must have the authority to decide and in our system this decision rests with counsel. While defense attorneys in the Second Circuit will continue to steer the ship when it comes to trial strategy, Rosemond does not relieve attorneys of their ethical obligations to effectively communicate such strategy with their clients.
-By Ryan J. Kurtz and Harry Sandick