Galanis Appeal Leads To Limited Remand To Determine Whether Counsel Was Ineffective
The appeal in United States v. Galanis, 17-629 (Sack, Parker, Chin) resulted in a limited remand in a summary order so that the district court can determine whether there was ineffective assistance of counsel. The facts of the case are somewhat unusual. Galanis was indicted in two different and separately-charged securities fraud cases. In September 2015, Galanis was indicted in the Gerova matter, and in May 2016, he was indicted in the Wakpamni matter. He was represented by a California law firm in the Gerova matter, but that firm declined to appear in the Galanis matter (perhaps due to unpaid invoices by the client). This left Galanis unrepresented in the Genova matter.
In July 2016, the government made two plea offers to Galanis through his California counsel: one for the Gerova matter, and one for the Gerova and Wakpamni matters together. Two days later, Galanis pleaded guilty to the Genova matter alone. In December 2016, then represented by counsel in the Wakpanmi matter, the government made Galanis a plea offer, pursuant to which Galanis pleaded guilty. Galanis was separately sentenced in the two matters and received a sentence of 195 months imprisonment—which was higher than the low end of the 168-210 month range in the plea offer that would have resolved both the Gerova and Wakpanmi matters. He appealed from both convictions and alleged ineffective assistance of counsel in connection with his plea offers.
Galanis claims that his California counsel did not consult with him about the merits of taking the plea offer that involved his pleading guilty to both the Gerova and Wakpanmi matters. His counsel stated at the sentencing in the Gerova matter that the reason he recommended the guilty plea only in the Gerova matter (as opposed to pleading guilty to both matters together) was because he had not been retained in the Wakpanmi matter and had not seen any discovery in that matter. The advice was not based on the merits of the dual matter plea offer. The Court found this admission “troubling,” even more so because the government knew when it made the plea offers that Galanis did not have counsel in the Wakpanmi matter and that neither the government nor defense counsel made reference to the joint plea at the plea proceeding. The Court also found prejudice, given that Galanis credibly stated that he would not have pleaded guilty to each matter separately had he known of the opportunity to plead guilty in a single proceeding with a shorter resulting sentence. His sentence could have been 27 months shorter had he pleaded guilty.
As a result, the Court made a Jacobson remand of the Gerova matter to permit the district court to conduct a proceeding that will give the allegedly ineffective lawyer an opportunity to present evidence. The government has already indicated that if there is a finding of ineffectiveness, it would allow the withdrawal of the guilty plea in the Wakpanmi matter and “carry out the joint plea offer.”
The unusual nature of the case and the fact that the government seems willing to correct any error on remand likely account for this case being decided in a summary order. Nonetheless, even if not precedential, this is a cautionary tale for defendants and their counsel (and for the government) in cases in which there are multiple indictments. It is better for the government to wait for the defendant to receive counsel in both matters before making any “time-limited" plea offer in order to allow the defendant to receive the advice necessary to make the best possible decision. Also it is better for defense counsel not to recommend one plea offer rather than the other when counsel lacks the knowledge to make such a recommendation. We will keep an eye out to see what happens when this matter returns to the panel later this year.