United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2014 Decided June 23, 2015

No. 13-3041

UNITED STATES OF AMERICA,

APPELLEE

v.

CALEB GRAY-BURRISS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cr-00178-1)

Steven M. Klepper, appointed by the court, and Alexander

M. Krischik, Student Counsel, argued the cause for appellant. 

With them on the briefs were Stephen L. Braga, and Student

Counsel, Michael Baker, John Gunter, Stewart Inman, and

Benjamin Wood.

Vincent J. Falvo Jr., Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief was Tracee

J. Plowell, Attorney.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Defendant Caleb Gray-Burriss was

convicted of fraud and embezzlement in connection with his

management of a union of private security guards. On appeal,

Gray-Burriss argues that the district court erred in excluding two

defense exhibits at trial, that his attorneys labored under a

conflict of interest, and that the attorneys provided ineffective

assistance. We conclude that it was error to exclude one of the

defense exhibits and remand for the district court to determine

whether that additional evidence affects Gray-Burriss’ sentence. 

Although we reject the defendant’s conflict-of-interest theory,

we follow this circuit’s usual practice and remand most of his

ineffective assistance claims for initial determination by the

district court.

I

Gray-Burriss founded the National Association of Special

Police and Security Officers (NASPSO) in the 1990s. The union

represents private security officers who work in federal

buildings. At various times, Gray-Burriss served as its

executive director, secretary-treasurer, and president. In June

2010, a grand jury returned an indictment charging Gray-Burriss

with mail fraud. In April 2011, the grand jury returned a

superseding indictment. And in August 2012, the grand jury

returned a second superseding indictment, this time charging the

defendant with nineteen counts of mail fraud, embezzlement,

and related offenses. The gravamen of the indictment alleged

two distinct schemes to steal from the union and its members.

The first scheme, set forth in Counts 1-6, charged GrayBurriss with mail fraud in connection with benefits plans that

NASPSO purportedly established for its members. In several

instances, NASPSO negotiated agreements that required private
3

security companies to make contributions to a NASPSOsponsored health or retirement plan. The indictment charged the

defendant with receiving the employers’ payments, depositing

them in an ordinary checking account -- keeping no records of

what individual members had earned -- and then writing checks

on the account to himself, to cash, and to cover the union’s

operating expenses. These criminal charges stemmed from

essentially the same conduct that the Department of Labor

charged in a civil suit against Gray-Burriss in 2006. In that

proceeding, Gray-Burriss agreed to a consent judgment that

obligated him to restore $115,000 in diverted funds and

permanently barred him from exercising any control over an

employee benefit plan. Consent Judgment, Chao v. GrayBurriss, No. 06-1382 (D.D.C. Apr. 17, 2007).

The second set of charges, set forth in Counts 7-12, alleged

various forms of embezzlement from the union’s funds, totaling

$203,000. The allegations most central to this appeal concern

unauthorized salary increases. 

Count 8 charged unauthorized payments to Gray-Burriss

himself. As of July 1, 2007, Gray-Burriss was earning a salary

of $55,000 for his work as the union’s executive director, based

on a signed employment agreement with the union. In February

2008, he sought a salary increase from the union’s executive

board. The prosecution alleged that, when his request was

rebuffed, Gray-Burriss secretly directed Paychex Corporation --

the firm that processed the union’s payroll -- to increase his

salary payments. Count 8 charged that by increasing his salary

in July 2008, and then again in October 2009, Gray-Burriss
4

collected $29,000 in unauthorized salary1 before a new and valid

employment agreement was finally adopted in April 2011.

Count 12 of the indictment alleged similar wrongdoing with

respect to salary payments made to Gaby Fraser, another union

employee. NASPSO hired Fraser in September 2011 at a rate of

$45 per hour. On October 15, the union’s executive board

signed an employment agreement authorizing that rate. Just a

few days later, however, Gray-Burriss instead allegedly directed

Paychex to pay Fraser $2,925 semi-monthly, equivalent to a

$70,200 annual salary. Gray-Burriss was charged with

embezzling all of the money paid to Fraser under that substituted

salary arrangement, amounting to some $43,000.

The remaining counts, Counts 13-19, charged Gray-Burriss

with criminal contempt for violating the terms of the 2007 civil

judgment, destruction of subpoenaed records, conspiracy,

witness tampering, and union record-keeping violations.

The trial unfolded over four weeks in November 2012. At

its conclusion, the jury found Gray-Burriss guilty of eighteen of

the nineteen counts; it acquitted him only of tampering with a

witness in connection with the grand jury investigation. In April

2013, the court sentenced Gray-Burriss to 76 months’

imprisonment and ordered restitution and forfeiture in the

amount of roughly $252,000 each, with an open-ended credit

toward the restitution obligation for money already repaid

pursuant to the earlier civil judgment.

On appeal, Gray-Burriss challenges the district court’s

exclusion of two documents from the evidence at trial. He

1

Count 8 also charged other payments, such as a duplicate

paycheck and unauthorized bonuses, that are not included in this

figure.
5

further contends that his attorneys had a conflict of interest and

that they provided ineffective assistance. We address the

evidentiary contentions in Parts II and III, and the conflict-ofinterest and ineffectiveness claims in Part IV.

II

Gray-Burriss argues that the district court erred in excluding

two employment contracts that he offered as defense exhibits. 

In this part we address the exclusion of the defendant’s 2009

employment contract. We conclude that the exclusion was

error; that the error was harmless as to Gray-Burriss’

convictions; but that we must remand the case for resentencing

because the contract may have influenced the defendant’s

sentence, including the amount of his restitution and forfeiture

obligations.

A

In September 2010, shortly after Gray-Burriss was first

indicted on the mail fraud charges, the grand jury subpoenaed

union records from NASPSO and from John Tresvant, a union

board member. When no one complied, the district court

entered a compulsion order against both NASPSO and Tresvant. 

After the prosecution moved to hold Tresvant in contempt,

Gray-Burriss produced three rounds of documents to the grand

jury. In March 2011, the defendant confirmed on the record that

those were all the responsive documents.

In May and June 2012, a succeeding grand jury issued new

subpoenas for any additional responsive records. The district

court entered a new compulsion order, and Wanda Gibbs, then

the union’s secretary-treasurer, produced additional documents

in August 2012. The grand jury returned the final indictment

shortly thereafter.
6

Rule 16(a) of the Federal Rules of Criminal Procedure

requires the government, upon the defendant’s request, to

disclose various discovery materials before trial. The

government provided those materials after each of the three

successive indictments, beginning in July 2010. See United

States v. Gray-Burriss, No. 10-178, 2012 WL 5195997, at *1 n.2

(D.D.C. Oct. 19, 2012). Pursuant to Rule 16(b), the government

requested reciprocal discovery from the defendant of material

within his possession that he intended to use in his case-in-chief

at trial. See FED. R. CRIM. P. 16(b)(1)(A). In December 2011,

the government informed the court that Gray-Burriss had “not

provided the Government with a single piece of paper or other

discovery item in this case” and sought an order compelling

production. Gov. Consol. Mot. in Limine at 20 (12/16/2011). 

Gray-Burriss’ counsel, Heather Shaner, acknowledged that she

had “not produced any exhibits” and affirmed that she would

“disclose them at such time that I have them.” 3/14/2012 Tr. at

76. The judge said he would “hold [her] to that promise.” Id.

In August 2012, the prosecution again “renew[ed] [its]

demand for discovery under Rule 16.” 8/28/2012 Tr. at 13. 

Shaner’s co-counsel, Patrick Christmas, responded that he “did

not know that no discovery had been provided,” that the

government’s “point is well taken,” and that he did not expect

the defense to have any discovery to offer beyond the material

that the government itself produced. Id. at 14. On September 6,

2012, the parties confirmed that the government completed its

final production of discovery materials related to the second

superseding indictment. 9/6/2012 Tr. at 3.

One of the disputed issues at trial was whether the union’s

executive board authorized an increase in Gray-Burriss’ salary

in July 2009. Among the records produced to the grand jury, the

government found an unsigned agreement providing for a

$75,000 salary effective July 1, 2009, which it included on its
7

exhibit list and used at trial. Tresvant, a government witness,

and Gregory Tyree, a defense witness, each testified to signing

that contract on the union’s behalf. But two other members of

the union leadership, Gibbs and Shavonya Munford, testified

that they were unsure whether the agreement had ever been

signed. The government’s investigator also testified that, as far

as his investigation disclosed, “[t]here was no signed agreement

in 2009.” 11/19/2012 Tr. at 141.

In fact, the defense had a copy of the same July 2009

agreement, but its version was signed by Tresvant, Tyree, Gibbs,

and a fourth union member. The government first learned of the

document during the second week of the trial, when Christmas

attempted to confront a government witness with it. After a

brief investigation, the government learned from Paychex that

Gray-Burriss had sent the signed contract to the company in the

fall of 2009, as purported documentation of a raise, and that

Gray-Burriss had asked Paychex to send a copy back to him

during the trial. At various points in the government’s case, the

defense tried to use the exhibit to cross-examine the

government’s witnesses. The government objected each time

that Gray-Burriss had not produced the signed contract either in

discovery or pursuant to the grand jury subpoenas. After a

series of colloquies spread over several days, the court

ultimately ruled that the signed contract could “not be used for

any purpose.” 11/20/2012 Tr. at 117.

B

Rule 16(d)(2) provides that, “[i]f a party fails to comply

with this rule, the court may: (A) order that party to permit the

discovery or inspection . . . ; (B) grant a continuance; (C)

prohibit that party from introducing the undisclosed evidence;

or (D) enter any other order that is just under the

circumstances.” FED. R. CRIM. P. 16(d)(2). “The district court
8

has wide discretion in imposing a sanction if it finds that Rule

16 has been violated,” United States v. Marshall, 132 F.3d 63,

69 (D.C. Cir. 1998); see United States v. Day, 524 F.3d 1361,

1372 (D.C. Cir. 2008), and we review its decision to impose a

particular sanction only for abuse of discretion, United States v.

Sayan, 968 F.2d 55, 63 (D.C. Cir. 1992). 

Nonetheless, our cases have identified certain important

considerations to guide the court’s exercise of its discretion. 

Most relevant here, “although Rule 16 gives trial judges the

option of suppressing evidence as a result of [a party’s]

discovery violations, such a severe sanction would seldom be

appropriate where . . . the trial court finds that [the party’s]

violation did not result from its bad faith and that a less drastic

remedy (such as a continuance) will mitigate any unfair

prejudice.” Marshall, 132 F.3d at 70. This does not mean that

exclusion is always unwarranted in the absence of bad faith or

the presence of less drastic alternatives. See United States v.

Johnson, 970 F.2d 907, 911 (D.C. Cir. 1992); Day, 524 F.3d at

1372. Exclusion is “inappropriate,” however, when it would

“subvert[] one of Rule 16’s goals: ‘contributing to an accurate

determination of the issue of guilt or innocence.’” Marshall,

132 F.3d at 70 (quoting FED.R.CRIM.P. 16, advisory committee

note to 1974 amendment).

In this case, the combined weight of several factors

persuades us that excluding the 2009 contract was too severe a

sanction. 

First, the contract was potentially a significant piece of

exculpatory evidence. Gray-Burriss was charged with

embezzling the very salary payments that the disputed document

purported to authorize. We say “purported” advisedly, for the

government argues that the people who signed the contract were

not legitimate members of the executive board at the time, and
9

therefore could not have authorized an increase in Gray-Burriss’

salary in any event. Perhaps so; but there is no indication that

the jury either did or would have agreed with the government on

this point. Gray-Burriss’ defense to the embezzlement charges

at issue would have been considerably strengthened by proof of

an executed agreement -- signed by four union leaders --

increasing his salary. Thus, even the government concedes on

appeal that the exhibit was “potentially” exculpatory as to the

salary payments within its scope. Oral Arg. Recording 46:04-

10.

Second, the government has not identified any prejudice it

would have suffered from the defense’s use of the exhibit. The

government has not, for example, disputed the authenticity of

the document. After the document emerged, the prosecution had

several days to investigate its provenance and raise any such

concerns. Upon conducting that investigation, the government

argued that the defense exhibit was “not authentic” only in the

sense that it omitted a cover page that Gray-Burriss included

when he faxed the contract to Paychex in 2009. 11/19/2012 Tr.

at 288. But the government did not question that the contract

itself was what it purported to be, or that it had been signed by

the people who appeared to have signed it. (Nor does it question

the document’s authenticity on appeal. See Oral. Arg.

Recording 44:11-26.) Therefore, “[o]ne of the purposes of the

discovery rule” -- “to minimize the risk that fabricated testimony

will be believed” -- was not implicated here. Taylor v. Illinois,

484 U.S. 400, 413 (1988).

Nor did the government identify any other respect in which

the late appearance of the document threatened to undercut the

prosecution unfairly. To the contrary, the government

essentially conceded that there was no prejudice. On Thursday,

November 15, 2012, the court advised that it would “hear

arguments, if necessary,” about “prejudice to the government.” 
10

11/15/2012 Tr. at 106. The court scheduled the arguments to

take place after the upcoming long weekend, thus affording the

prosecutors time for “any further investigation they might need

to do,” including “the kind of stuff they would have been able to

do had they been timely given it.” Id. After the weekend, the

prosecutors made clear that they were upset by the defense’s

conduct. 11/19/2012 Tr. at 315. But they never identified any

way in which permitting use of the document would improperly

prejudice their case. See id.; cf. Marshall, 132 F.3d at 70

(“Because the court deferred its ruling on the admissibility of the

. . . records during its adjournment period, the defense received

what amounted to a four-day continuance to ponder how it

would confront that evidence. Ordinarily, a continuance is the

preferred sanction for a discovery delay because it gives the

[party] time to alleviate any prejudice it may have suffered from

the late disclosure.”).

Third, the district court did not find that the defense

withheld the disputed contract in bad faith, either from the grand

jury or in reciprocal discovery before trial. Rather, the court

said it accepted Shaner’s “word as an officer of the court” that

any violation of Rule 16 “was not willful, wasn’t intentional.” 

11/15/2012 Tr. at 100. Although a finding of bad faith is not a

necessary precondition for exclusion, see Day, 526 F.3d at 1372,

the lack of such a finding takes on greater significance when, as

here, the evidence is exculpatory on its face and there is no

showing of prejudice.

Finally, although we have analyzed the exclusion in terms

of the factors familiar from our Rule 16 cases, we have some

doubt as to whether the district court’s decision was an exercise

of discretion under Rule 16 at all. Rule 16 requires the

defendant, having secured disclosure from the government, to

disclose in turn certain items that “the defendant intends to use

. . . in the defendant’s case-in-chief at trial.” FED. R. CRIM. P.
11

16(b)(1)(A)(ii). Here, however, the court barred the defense

from using the excluded contract “for any purpose,” including

impeachment and refreshing a witness’ recollection during the

government’s case-in-chief. 11/20/2012 Tr. at 117. Thus, the

sanction reached uses of the evidence that may not have

triggered a reciprocal discovery obligation under Rule 16 in the

first place.2

Moreover, although the parties argued Rule 16 extensively

to the district court, the court ultimately cited the 2010 grand

jury subpoenas and supporting compulsion order as the principal

grounds for its ruling. 11/20/2012 Tr. at 117-18. Whether or

not the district court had inherent power to sanction grand jury

subpoena violations through exclusion of trial evidence in an

appropriate case, cf. FED. R. CRIM. P. 17(g) (authorizing the

court to hold in contempt a witness who disobeys a subpoena),

the necessary predicate for such a sanction was not established

here, for the following reasons. The district court found only “a

prima facie case” that the 2009 contract was withheld in

violation of the grand jury subpoenas and compulsion order. 

11/20/2012 Tr. at 117. Even if the document “was in the

defendant’s possession or at least NASPSO’s possession in

2009,” as the court inferred, id. at 118, that was still roughly a

year before the first subpoenas issued to NASPSO and Tresvant,

2

See, e.g., United States v. Medearis, 380 F.3d 1049, 1057 (8th

Cir. 2004) (holding that a document used only for impeachment is not

excludable under Rule 16); United States v. Moore, 208 F.3d 577, 579

(7th Cir. 2000) (same); cf. United States v. Young, 248 F.3d 260, 269

(4th Cir. 2001) (affirming exclusion because the party “intended to

offer the tapes not for impeachment purposes, but as ‘evidence in

chief’”); United States v. King, 703 F.2d 119, 126 n.6 (5th Cir. 1983)

(affirming exclusion and noting that, “even though the documents

were excluded from evidence, . . . [d]efense counsel was allowed to

use the documents to refresh the recollection of witnesses”).
12

see Gov. Ex. 108 (Tresvant subpoena); Gov. Ex. 109 (NASPSO

subpoena). The court did not find that the document was still in

the possession of the defendant or NASPSO (which the

defendant allegedly controlled) when the latter received a grand

jury subpoena, much less that the defendant knowingly withheld

it from the materials he furnished in response. Moreover, the

government’s investigation only determined that Gray-Burriss

obtained a copy of the document from Paychex during the trial. 

See 11/19/2012 Tr. at 280-83. In short, given the sparse record

and the absence of prejudice or bad faith, the objective of

vindicating the grand jury subpoenas did not suffice to justify

excluding this potentially exculpatory document.

C

Although we conclude that the district court erroneously

excluded the July 2009 employment contract, that is not the end

of the matter. Even when evidence is erroneously excluded,

“[a]ny error . . . that does not affect substantial rights must be

disregarded.” FED. R. CRIM. P. 52(a); see United States v.

Olano, 507 U.S. 725, 734 (1993); see also FED.R.EVID. 103(a). 

A nonconstitutional error (such as the error alleged here) is

subject to reversal under this standard “‘if one cannot say, with

fair assurance, . . . that the judgment was not substantially

swayed by the error.’” United States v. Palmera Pineda, 592

F.3d 199, 200 (D.C. Cir. 2010) (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)); see, e.g., United States v.

Bailey, 319 F.3d 514, 519 (D.C. Cir. 2003). Because GrayBurriss objected to the exclusion at trial, the government bears

the burden of proving harmlessness. See Olano, 507 U.S. at

734.

It is clear that the error was harmless with respect to GrayBurriss’ conviction. Count 8 charged Gray-Burriss with

embezzlement from the union through many separate
13

transactions (checks). See Second Superceding Indictment at 9-

13. The verdict sheet listed each transaction, and the jury

unanimously agreed that Gray-Burriss was guilty of virtually all

of them -- including twenty-three that took place before the July

1, 2009 effective date of the contract. Verdict Form at 2-7; see

Def. Ex. 5 (2009 employment contract). Gray-Burriss concedes

that the contract did not authorize transactions that predated it. 

See Oral Arg. Recording 10:37-48. And, as the court instructed

the jury without objection, a guilty verdict required unanimous

agreement on only a single transaction for each count. See

11/27/2012 Tr. at 231. Although Gray-Burriss suggests that the

jury’s judgment as to the post-July 1 transactions could have

affected its appraisal of the twenty-three pre-July transactions,

that possibility is too remote to disturb our confidence in the

jury’s verdict. See, e.g., United States v. Bishop, 469 F.3d 896,

904 (10th Cir. 2006) (finding harmless error where the verdict

form indicated unanimous agreement with respect to another

charged act that was independently sufficient for the same count

of the indictment), abrogated on other grounds by Gall v.

United States, 552 U.S. 38 (2007). And the possibility that this

limited error infected the other counts of the indictment, none of

which related to the employment contract, is even more

speculative.

We cannot, however, be confident that exclusion of the

2009 contract was harmless with respect to Gray-Burriss’

sentence. The amounts the government charged as theft (and

found to be such by the jury) were premised on the assumption

that Gray-Burriss was authorized to receive only a $55,000

annual salary, not a $75,000 salary, during the period from July

2009 to April 2011. See 11/14/2012 Tr. at 33-35 (Michel Test.);

Gov. Ex. 212. If the sentencing court had considered the 2009

contract -- and if, in doing so, the court had considered it to

validly authorize an increase in salary -- the court might well

have arrived at a lower loss finding and significantly reduced the
14

defendant’s restitution and forfeiture obligations. Accordingly,

we will remand the case to the district court to determine

whether adding this piece of evidence into the mix leads it to a

different conclusion with respect to the restitution and forfeiture

components of Gray-Burriss’ sentence. At the same time, of

course, the district court may determine whether, in its

discretion, any lower loss finding should affect the defendant’s

term of incarceration.3

III

In addition to excluding Gray-Burriss’ July 2009

employment contract, the district court also excluded an October

2011 employment contract for Gaby Fraser on essentially the

same grounds. That signed agreement, dated October 15, 2011,

authorized payment to Fraser at a rate of $45 per hour for

various services. The court accepted the government’s

contention that the contract was a “payroll record” within the

scope of the grand jury subpoena issued in June 2012, and it

barred the defense from making use of the document because it

was not produced to the grand jury or the government.

We do not need to consider whether excluding Fraser’s

2011 employment contract was error, however, because it is

clear that any error was harmless in all respects. Although the

court barred the defense from using the October 2011 contract,

3

We note that it does not appear that a lower loss finding would

change the defendant’s Sentencing Guidelines range. Even the sum

of all the thefts the jury found in Count 8 ($35,680) is less than the

difference between the court’s overall loss finding ($252,276) and the

next-lowest threshold for a loss enhancement under the Guidelines

($200,000). See Verdict Form at 2-7; Presentence Investigation

Report ¶ 86a; 4/8/2013 Tr. at 44 (accepting the Report’s findings);

U.S.S.G. § 2B1.1(b)(1).
15

the contract’s existence was established and never disputed at

trial. Indeed, it was the premise of the government’s case on

Count 12: that, although Fraser had a $45 per hour contract,

Gray-Burriss improperly shifted her to an unauthorized $70,000

annual salary. The prosecution elicited from Tresvant both that

Fraser was hired in September 2011 at $45 per hour and that a

formal agreement to that effect was signed on October 15. For

its part, the defense called April Richardson, another executive

board member, who also testified to signing a $45 per hour

contract for Fraser in October 2011. Tyree said the same during

the government’s cross-examination. And the government

reminded the jury of the October 15 agreement in its own

closing argument:

Now we have the infamous day, October 15th, 2011. 

What the testimony was, was we signed an agreement

with [Fraser] for $45 an hour. . . . They think she’s

getting $45 an hour for every hour she works. In fact,

as the Paychex records show, she was getting over

$70,000 in a salary. 

11/28/2012 Tr. at 38-39. Accordingly, because introduction of

the 2011 document itself would have been merely cumulative,

any error in its exclusion was at worst harmless. See, e.g.,

United States v. Gupta, 747 F.3d 111, 133-34 (2d Cir. 2014)

(finding exclusion of defense evidence harmless because, inter

alia, the evidence was “plainly cumulative”).

Gray-Burriss suggests that the contract document might not

have been cumulative in one respect: it stated that Fraser would

receive $45 per hour for at least twenty hours per week (and for

a maximum of forty hours). But this provision would not have

made a difference. The defense theory on Count 12 was that

Gray-Burriss acted in good faith, and, to support that argument,

the defendant elicited undisputed testimony that Fraser did
16

substantial work for the union. See 11/27/2012 Tr. at 7-8 (Tyree

Test.); 11/21/2012 Tr. at 76-77 (Tresvant Test.). Indeed, the

government’s own investigator so testified. See 11/19/2012 Tr.

at 89-90 (Michel Test.). The prosecution theory, by contrast,

was that each of the charged salary payments constituted an act

of embezzlement because the defendant’s decision to put Fraser

on salary, only days after the board adopted a different

arrangement, was unauthorized and manifested fraudulent intent. 

The jury adopted the prosecution’s view as to each payment

notwithstanding the undisputed evidence about Fraser’s work. 

And when the defense moved for a judgment of acquittal on this

count, the district court concluded that there was sufficient

evidence of embezzlement notwithstanding Fraser’s work for

the union. United States v. Gray-Burriss, No. 10-178, 2013 WL

460220, at *1-2 (D.D.C. Feb. 6, 2013). Whatever its merits,

Gray-Burriss has neither appealed that decision nor made any

other sufficiency-of-the-evidence argument on appeal.

Nor would the minimum-hours provision have affected the

district court’s determination of the amount of loss at

sentencing. The defense objected to the Presentence

Investigation Report’s loss calculation on the ground that Fraser

had done a great deal of work and “was worth every penny she

received.” PSR at 40 (objection to ¶¶ 55-62). The district court

overruled that objection “for all the reasons that . . . [it] denied

the motion for judgment of acquittal on Count 12.” 4/8/2013 Tr.

at 31; see Gray-Burriss, 2013 WL 460220 (D.D.C. Feb. 6,

2013). There is no indication that, in deciding on an appropriate

sentence, the court doubted Fraser had a contractual right to be

paid on an hourly basis for whatever amount of work she did.
17

IV

Gray-Burriss also contends that he was denied effective

assistance of counsel. In order to succeed on a Sixth

Amendment claim of ineffective assistance, a defendant must

show two things: (1) “that counsel’s performance was

deficient,” falling “below an objective standard of

reasonableness”; and (2) “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S.

668, 687-88 (1984). See United States v. Shabban, 612 F.3d

693, 697 (D.C. Cir. 2010). In United States v. Rashad, we

explained that: 

Due to the fact-intensive nature of the Strickland

inquiry and the likelihood, when a defendant asserts his

sixth amendment claim for the first time on direct

appeal, that the relevant facts will not be part of the

trial record, . . . this court’s general practice is to

remand the claim for an evidentiary hearing unless the

trial record alone conclusively shows that the

defendant either is or is not entitled to relief. 

331 F.3d 908, 909-10 (D.C. Cir. 2003) (internal quotation marks

omitted). See, e.g., United States v. Pole, 741 F.3d 120, 126

(D.C. Cir. 2013); United States v. Fareri, 712 F.3d 593, 595

(D.C. Cir. 2013); United States v. Bell, 708 F.3d 223, 225 (D.C.

Cir. 2013).

In subpart A, we address Gray-Burriss’ contention that his

attorneys had a conflict of interest that adversely affected their

representation of him. In subpart B, we briefly address his

remaining ineffectiveness contentions.
18

A

We begin our consideration of Gray-Burriss’ conflict-ofinterest claim by setting forth the facts that underlie it. We then

explain that the claim is not properly analyzed as a conflict of

interest issue, but that construed as an ordinary Strickland claim,

it nonetheless warrants consideration on remand.

1. Heather Shaner was appointed under the Criminal Justice

Act (CJA) to represent Gray-Burriss from the outset of his case

in June 2010. In July 2012, Gray-Burriss retained attorney

Patrick Christmas to represent him as well. Shortly thereafter,

Shaner informed the court that Gray-Burriss was “satisfied with

his retained counsel” and moved to withdraw from the case. 

Mot. to Withdraw as Counsel at 1 (8/23/2012). The court asked

Christmas if he would feel prepared for the scheduled November

trial date if Shaner withdrew; Christmas said he would not, and

the court denied Shaner’s motion. Christmas also said he would

not be prepared in time even with Shaner’s help, but the court

denied his motion for a continuance. The court then reminded

the parties that, pursuant to a pretrial order entered months

earlier, they were required to confer and make a joint

submission of pretrial materials by October 24.

The government filed its proposals on October 10. On

October 17, Christmas again moved to continue the trial date,

stating that “a serious injustice will occur if the Defendant is

‘forced’ to trial on November 2, 2012.” Def.’s Renewed Mot.

to Continue at 2 (10/17/2012). The court again denied the

continuance, citing the long pendency of the case and the

“numerous continuances and accommodations” that the court

had already granted Gray-Burriss before he retained Christmas. 

United States v. Gray-Burriss, No. 10-178, 2012 WL 5195997,

at *1 (D.D.C. Oct. 19, 2012). Although the court recognized

that “Christmas may not feel fully prepared,” it stressed that
19

Shaner, “the defendant’s CJA counsel from the beginning of the

case over 27 months ago, still represents him.” Id. at *2. 

In the days that followed, the defense failed to submit the

required pretrial materials and did not take up the government’s

invitations to discuss its own proposed submissions. On the

morning of the October 24 due date for the joint pretrial

submission, the prosecution informed the court that it had failed

in its efforts to reach Christmas, and that Shaner had merely

deferred to Christmas as “lead counsel” (although she, too, had

not heard from him). Mot. for Leave to File at 2 (10/24/2012). 

The court responded that, if these allegations were accurate, “the

Court finds both defense counsel’s nonfeasance inexcusable.” 

Order to Show Cause at 2 (10/25/2012). It therefore entered an

order directing Shaner and Christmas to show cause why they

should not be sanctioned and referred for further discipline.

In her response, Shaner contended that Christmas had cut

her out of his planning for the case. Nonetheless, she said, she

had done “everything reasonably possible within the scope of

her authority” to aid Christmas without “usurp[ing]” his role as

Gray-Burriss’ “lead counsel of choice.” Response to Order at 3-

4 (10/29/2012). Shaner also secured her own counsel and

requested a hearing to address the show-cause order. For his

part, Christmas acknowledged that he only recently “began to

appreciate the complexity of preparing a professional and proper

defense in this matter.” Response to Order at 2 (10/31/2012). 

He had failed to meet the court’s deadlines, he said, because he

was “literally overwhelmed” with other obligations. Id. at 4.

On November 2, as jury selection was set to begin, Shaner

noted that her attorneys were present in the courtroom and asked

to address the court regarding the show-cause order. When the

court declined to take up the show-cause order, Shaner

protested:
20

Your Honor, I cannot go forward and zealously

advocate for my client and I would move to withdraw

therefore. I am too upset to go forward with my

license, my liberty, my reputation and my livelihood

pending, and I am afraid that it will have prejudicial

effects on my zealous advocacy and on Mr. Burriss. 

11/2/2012 Tr. at 5. The court denied Shaner’s motion and

reiterated that “[w]e’ll take this up after the trial.” Id. at 6. In

a minute order, the court explained that, based on its past

experience with Shaner, it “was fully confident that she would

not falter in her duty to her client.” Minute Order (11/5/2012).4

Four weeks later, after closing arguments, Christmas raised

the pending show-cause order again, asserting that it “has chilled

my representation and that of Ms. Shaner.” 11/28/2012 Tr. at

103. The judge agreed to hear from both lawyers. Christmas

apologized several times for his failure to comply with the

pretrial order, explaining again that he “was just overwhelmed”

and “took on too much work.” Id. at 108-09. He said he

thought he could “[p]lay with Your Honor, as far as some of the

4

The minute order stated:

This court has seen Ms. Shaner under fire before, and she

has held her own like the experienced professional that she

is. The court was fully confident that she would not falter

in her duty to her client. That confidence has been borne

out thus far by her usual skilled advocacy during the full day

of voir dire that has been completed. Her motion was

denied so as not to delay the panel of 65 prospective jurors

waiting in the jury office . . . and to bring no further delay

to a trial that had been delayed far too long already. 

Minute Order (11/5/2012).
21

rules,” and “did not realize . . . that Your Honor makes an order

and stays with that order.” Id. at 112.

Shaner explained that she had struggled to define her role

once Gray-Burriss made clear that he wanted to be represented

by Christmas and not by her. Christmas confirmed that

“everything she says today . . . is true.” Id. at 124. The court

then vacated and discharged the show-cause order, stating that

“[a]s far as I’m concerned[,] the matter is over.” Id. at 125.

2. Gray-Burriss argues that the show-cause order that was

left pending during the trial created a conflict of interest, or at

least the possibility of one, between his attorneys and himself. 

As he sees it, Shaner and Christmas were put to a choice

between zealously advocating for him (and risking irritating the

trial judge) or preparing their own defenses in the show-cause

proceeding. Gray-Burriss particularly stresses an apparent lastminute hand-off of the closing argument from Shaner to

Christmas -- which in court Christmas attributed to the fact that

Shaner’s “voice [was] going,” 11/28/2012 Tr. at 56 -- and

speculates that Shaner was in fact conserving her energy, or the

court’s goodwill, for the show-cause hearing that took place

later that day. See Def. Br. 45-46; Reply Br. 18. 

Doctrinally, reframing an alleged deficiency in performance

in terms of a conflict of interest makes a world of difference. In

Cuyler v. Sullivan, the Supreme Court held that, if a defendant

can show that “a conflict of interest actually affected the

adequacy of [the attorney’s] representation,” he “need not

demonstrate prejudice in order to obtain relief.” 446 U.S. 335,

349-50 (1980). In those circumstances, when counsel “is

burdened by an actual conflict of interest,” prejudice “is

presumed” and the second prong of Strickland does not apply. 

Strickland, 466 U.S. at 692 (citing Cuyler, 446 U.S. at 345-50);

see United States v. Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998). 
22

This court has been careful, however, to reject “defendants’

attempts to force their ineffective assistance claims into the

‘actual conflict of interest’ framework . . . and thereby supplant

the strict Strickland standard with the far more lenient Cuyler

test.” United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996);

see, e.g., United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir.

1998); United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir.

1996).

When a defendant claims a conflict between himself and his

attorney, he must show that the attorney was “forced to make a

choice advancing his own interest at the expense of his client’s.” 

Taylor, 139 F.3d at 930; see Bruce, 89 F.3d at 893 (same). The

mere fact that a court has threatened an attorney with contempt

is insufficient to make that showing. In United States v. Shark,

for example, the district court complained in open court that

defense counsel “doesn’t pay any attention to me, . . . and next

time I’m going to get his attention and put him in the cell

block.” 51 F.3d 1072, 1074 (D.C. Cir. 1995). Although the

defendant maintained that this threat created a conflict “between

the defense counsel’s personal interest (to mollify the judge) and

that of her client,” id. at 1075, this court disagreed. “We very

much doubt,” we said, “that mere fear of rebuke from the court

could ever give rise to a conflict of interest sufficient to establish

a predicate for ineffective assistance.” Id. at 1076. Likewise, in

United States v. Taylor, we rejected a defendant’s claim that his

trial counsel had a conflict of interest because he faced a

possible contempt sanction from the district court. 139 F.3d at

928, 931. “Because all attorneys potentially face contempt

citations, no particular attorney can be considered ineffective

due to a concern that he or she might be so cited.” Id. at 932;

see id. at 930 (“[A] Cuyler conflict does not arise from mere
23

‘friction between trial counsel and the court.’” (quoting Shark,

51 F.3d at 1076)); Leggett, 81 F.3d at 227 (same).5

This case readily falls into the category defined by Shark

and Taylor. Nothing about the show-cause order made it

different in kind from the circumstances considered in those

cases. To the contrary, the order, which criticized Shaner and

Christmas for their “nonfeasance,” Order to Show Cause at 2

(10/25/2012), gave them every incentive to showcase their most

engaged and assiduous lawyering on Gray-Burriss’ behalf. Cf.

Leggett, 81 F.3d at 227 (“[A]n attorney fearing an ineffective

assistance of counsel claim has an incentive to do his best, not

the contrary.”). It did not create a conflict between their

personal interests and those of their client.

United States v. Hurt, 543 F.2d 162 (D.C. Cir. 1976), upon

which Gray-Burriss heavily relies, provides an instructive

contrast. In Hurt, the defendant’s replacement counsel argued

that his conviction should be reversed because his trial counsel

had provided ineffective assistance. The trial counsel then sued

the replacement counsel for libel, seeking $2 million in

damages. The lawsuit, we said, created an actual conflict of

interest: “[W]hile his client’s interest plainly lay in hammering

away toward th[e] objective” of showing that “trial counsel’s

performance was constitutionally inadequate,” replacement

counsel’s “self-interest in not worsening his own position tugged

strongly in the opposite direction.” Id. at 166. Gray-Burriss, by

contrast, has identified no self-interest that would have tugged

5

Of course, a judge’s hostility may “so hamper counsel’s zealous

representation as to violate a defendant’s right to a fair trial,” which

“would be independently remediable on those grounds.” Shark, 51

F.3d at 1076. There was no such extraordinary rebuke here, and the

defendant does not contend that there was. See also supra note 4

(quoting Minute Order describing Shaner’s work favorably).
24

his attorneys toward being less zealous than required for his

defense.

3. Because Gray-Burriss’ claim of conflicting courtroom

incentives is unwarranted, the Cuyler exception to the twopronged Strickland test does not apply. But Strickland itself still

does. And “if judicial expressions of dissatisfaction were severe

enough to lead defense counsel to make decisions that are both

objectively deficient and prejudicial, the Strickland requirements

for showing ineffective assistance would be satisfied.” Shark,

51 F.3d at 1077.

Viewed through that lens, Gray-Burriss’ various allegations

of inadequate preparation for trial and closing argument are

sufficiently colorable to warrant factual findings on remand. See

Pole, 741 F.3d at 126 (“In this Circuit, we generally remand

colorable claims of ineffective assistance to the district court to

make any necessary factual findings, unless the record

conclusively demonstrates that the defendant is or is not entitled

to relief.” (internal quotation marks and citations omitted)). The

record before us understandably does not focus on the extent of

Shaner’s and Christmas’ preparation for the trial or for its key

moments (such as closing argument). See Massaro v. United

States, 538 U.S. 500, 504-05 (2003); Rashad, 331 F.3d at 911. 

Gray-Burriss also raises colorable questions about who had

planned to give the closing argument in this complex criminal

case and whether the argument that Christmas ultimately gave

passed muster.

“Like most ineffective-assistance claims raised on direct

appeal,” these claims “require[] further factual development.” 

Fareri, 712 F.3d at 595. We therefore remand for the district

court to consider them in the first instance.
25

B

Gray-Burriss makes several additional claims of ineffective

assistance. Those include a claim that his attorneys failed to

procure the assistance of a forensic accounting expert to review

withdrawals and expenditures for authorization in the union’s

records. They also include, inter alia, a claim that the attorneys

failed to properly raise an advice-of-counsel defense -- either by

subpoenaing NASPSO’s former general counsel, who Shaner

told the court had advised Gray-Burriss that it “was just fine” to

transfer money from the union’s pension fund to use for

operating expenses, 11/26/2012 Tr. at 172; or by satisfying the

hearsay rule’s requirements for admitting that advice through the

testimony of another NASPSO attorney who allegedly was

present at the time. Because the record does not “conclusively

demonstrate[] that the defendant is or is not entitled to relief”

based on Gray-Burriss’ various claims, we remand them to the

district court to make the necessary findings. Pole, 741 F.3d at

126 (internal quotation marks and citations omitted); see Fareri,

712 F.3d at 595; Bell, 708 F.3d at 225-26. 

We do not, however, remand Gray-Burriss’s claim that his

attorneys’ deficient performance led to the exclusion of the two

disputed employment contracts discussed in Parts II and III. To

establish a Strickland claim, a defendant must show both that

there was a deficiency in his attorneys’ performance and that the

deficiency was prejudicial. See Strickland, 466 U.S. at 694. To

the extent that the government has carried its burden to prove

that the exclusions were harmless (entirely with respect to the

2011 contract, and insofar as Gray-Burriss’ conviction is

concerned with respect to the 2009 contract), it follows a fortiori

that Gray-Burriss cannot prove the same exclusions were

prejudicial. See United States v. Cassell, 530 F.3d 1009, 1018

(D.C. Cir. 2008) (explaining that “the harmless error standard of

review” is “more favorable to the defendant than the prejudice
26

prong of Strickland”). And to the extent that we have concluded

the exclusion of the 2009 contract was not necessarily harmless

(with respect to Gray-Burriss’ sentence), we are already

remanding for the district court to reconsider the sentence in

light of the contract. Such reconsideration will render harmless

any ineffectiveness of counsel that contributed to that error.

V

For the foregoing reasons, we remand this case for the

district court to reconsider Gray-Burriss’ sentence in light of the

excluded 2009 employment contract, and to consider GrayBurriss’ colorable ineffective assistance claims. In all other

respects, we affirm the judgment of the district court.

So ordered.