Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Delaura

United States Court of Appeals, Second Circuit

June 5, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JOHNATHAN DELAURA, AKA Jon Dulak, Defendant-Appellant.

          Argued: January 4, 2017

          ANDREW H. FREIFELD, New York, New York, for Appellant Johnathan DeLaura.

          MARCIA S. COHEN (with Karl Metzner, on the brief), for JOON H. KIM, Acting United States Attorney for the Southern District of New York.

          Before: JACOBS, SACK, and CARNEY, Circuit Judges.

          JACOBS, Circuit Judge

         Defendant-Appellant Johnathan DeLaura pleaded guilty to multiple child pornography counts in the United States District Court for the Southern District of New York (Karas, J.), and was sentenced to 35 years' imprisonment. Shortly before the guilty plea, the United States Attorney's Office informed the district court of a possible sexual relationship between DeLaura's counsel and DeLaura's mother, and alerted the court to serious conflicts that could result. At the prosecutors' suggestion, the court appointed independent counsel to advise DeLaura on the possible conflict. The court's efforts to get to the bottom of the allegation were then frustrated by DeLaura's defense counsel, who refused to confirm or deny the relationship. Unable to determine what took place, the court told DeLaura to assume that there was a sexual relationship and that various conflicts arose from it, and asked DeLaura whether he wished to waive those hypothetical conflicts. After a confused colloquy, he agreed to waive the hypothetical conflicts, and the district court accepted the guilty plea. On this direct appeal, DeLaura argues that the possible conflicts made his counsel's assistance ineffective. We affirm the conviction because, given the gaps in the record, DeLaura's ineffectiveness challenge is best suited for collateral review, where a district court can take evidence and make factual findings.

         In this direct criminal appeal, the defendant argues that his defense lawyer was ineffective because of a conflict of interest caused by a (possible) secret sexual relationship between the lawyer and the defendant's mother. When the district judge learned of the allegation, he questioned the defense attorney about it, but the (now-deceased) lawyer refused to answer the judge's inquiries, and coyly suggested that the judge instead deduce the answers from a Hollywood movie.

         Defendant-Appellant Johnathan DeLaura pleaded guilty to multiple child pornography offenses, and was sentenced to 35 years in prison. Shortly before the plea, the United States Attorney's Office informed the court of a possible sexual relationship between DeLaura's counsel and DeLaura's mother, and alerted the court to the risk of conflicts. The court's effort to get to the bottom of the issue at a hearing to test the allegation was frustrated by DeLaura's lawyer, Gary Greenwald, who refused to confirm or deny it. Unable to determine at the hearing what took place and whether a conflict therefore actually existed, the district court approached the matter in another way. The judge told DeLaura (by then represented by independent, court-appointed "conflict counsel") to make the assumption that there was a sexual relationship from which various conflicts could have arisen, and asked DeLaura whether he wished to waive those hypothetical conflicts. After a confused colloquy, DeLaura agreed to waive the hypothetical conflicts. The district court decided that any conflict was waived, accepted DeLaura's guilty plea, and sentenced him to 35 years' imprisonment.

         DeLaura (with new counsel) now argues that Greenwald's conflict rendered him ineffective, and that the conflict waiver was invalid. Because of the gaps in the record, we conclude that his claim is better suited for collateral review, and therefore we decline to consider the ineffectiveness argument on direct appeal. But given the circumstances, a thorough evidentiary hearing would be justified if a habeas petition is filed.

         I

         In 2011 and 2012, DeLaura shared and downloaded violent child pornography; he tricked two teenagers into sending him nude photos of themselves and threatened to make the photos public if they refused to meet him for sex; and he sexually abused one of them. Federal agents detected his child pornography on a peer-to-peer site, and, at about the same time, the two teenagers went to the authorities. Law enforcement officers arrested DeLaura in a sting, and he was charged with multiple child pornography counts.

         DeLaura retained Gary Greenwald to defend him. DeLaura's mother appears to be the one who located Greenwald and made the fee arrangements: the DeLauras paid a $25, 000 retainer, which is the only fee Greenwald received. Then the plot thickened. The central, unresolved question is whether Greenwald had a sexual relationship with DeLaura's mother. If their entanglement existed, it began approximately when DeLaura retained Greenwald and ended a few months later. DeLaura agreed in principle to a plea agreement around the same time the (alleged) relationship allegedly ended.

         Somehow, the federal prosecutors heard of the relationship, and they privately confronted Greenwald. He answered some questions and refused to answer others, but (according to the prosecutors) the conversation "certainly suggested to us that the information that we had received [of the relationship] was, was correct." App'x at 50. The conversation also led the prosecutors to believe that Greenwald had forgiven "significant legal fees" in connection with the relationship. Id.

         The government advised the district court by letter on January 17, 2013 that it believed there was a potential conflict, that the nature of the conflict was personal and sensitive, that Greenwald denied any conflict, that the government believed a hearing on the conflict was necessary, and that DeLaura should have independent counsel to advise him on the conflict. On February 13, 2013, the parties appeared for a status conference to discuss the conflict question. Greenwald did not oppose the appointment of independent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.