20-832-cr

United States v. Graham

United States Court of Appeals

for the Second Circuit

August Term 2021

Argued: March 1, 2022

Decided: October 14, 2022

No. 20-832

UNITED STATES OF AMERICA,

Appellee,

v.

JACQUELINE GRAHAM,

Defendant-Appellant.*

On Appeal from the United States District Court 

for the Southern District of New York

Before: WALKER, PARK, and PÉREZ, Circuit Judges.

Defendant-Appellant Jacqueline Graham was convicted after a 

jury trial of conspiracy to commit mail, wire, and bank fraud, in 

violation of 18 U.S.C. § 1349. On appeal, Graham argues that her 

* The Clerk is respectfully directed to amend the caption accordingly.
2

pretrial counsel was constitutionally ineffective for failing to transmit 

a plea offer from the government to Graham before it expired, thereby 

depriving her of the chance to plead guilty under the terms of the 

offer. See Missouri v. Frye, 566 U.S. 134 (2012). We conclude that 

Graham has waived any claim that the alleged error violated her Sixth 

Amendment rights. Unlike the defendant in Frye, Graham learned 

of her expired plea offer and received new court-appointed counsel 

two months before trial. She nonetheless chose to go to trial rather 

than to plead guilty or to petition the court for reinstatement of the 

offer. This knowing and voluntary choice was inconsistent with 

seeking the benefit of the expired plea offer and thus constitutes 

waiver. We reject Graham’s remaining arguments and thus

AFFIRM.

Judge Pérez concurs in a separate opinion.

HARRY SANDICK (Christopher Wilds, Andrew Haddad, 

on the brief), Patterson Belknap Webb & Tyler LLP, New 

York, NY, for Defendant-Appellant.

DAVID R. FELTON, Assistant United States Attorney

(Michael D. Maimin, Karl Metzner, on the brief), for 

Audrey Strauss, United States Attorney for the Southern 

District of New York, New York, NY, for Appellee.

PARK, Circuit Judge:

Defendant-Appellant Jacqueline Graham was convicted after a 

jury trial of conspiracy to commit mail, wire, and bank fraud, in 

violation of 18 U.S.C. § 1349. On appeal, Graham argues that her 

pretrial counsel was constitutionally ineffective for failing to transmit 
3

a plea offer from the government to Graham before it expired, thereby 

depriving her of the chance to plead guilty under the terms of the 

offer. See Missouri v. Frye, 566 U.S. 134 (2012). We conclude that 

Graham has waived any claim that the alleged error violated her Sixth 

Amendment rights. Unlike the defendant in Frye, Graham learned 

of her expired plea offer and received new court-appointed counsel 

two months before trial. She nonetheless chose to go to trial rather 

than to plead guilty or to petition the court for reinstatement of the 

offer. This knowing and voluntary choice was inconsistent with 

seeking the benefit of the expired plea offer and thus constitutes 

waiver.

We also reject Graham’s remaining arguments on appeal. The 

district court did not abuse its discretion by admitting evidence of 

Graham’s other fraudulent activity that was similar and/or related to 

the charged conduct; the court did not err by allowing the 

government to introduce certain “red flag” emails from an outside 

attorney for the limited purpose of proving her knowledge; and the 

court’s decision to instruct the jury on conscious avoidance was 

proper. We thus affirm.

I. BACKGROUND

A. The Government’s Case

Jacqueline Graham approached struggling homeowners with 

an offer that was too good to be true: In exchange for a fee, her 

partnership (the “Terra Foundation” or “Terra”) could purportedly 

eliminate a customer’s mortgage debts in full. Styling herself as a 

“sovereign citizen[],” Graham pledged that she would help these 

homeowners fight against the prevailing “[Uniform Commercial 

Code (UCC)] system” by marshaling obscure parts of the “common 
4

law.” Joint App’x at A-676, A-1110, A-1113. In reality, however, 

Graham’s tactics were far more mundane. She and her 

coconspirators would pretend to be employees of mortgagee banks, 

send county title offices fake notices of discharge, and convince them 

to erase any record of the banks’ interests in the subject properties. 

Once Graham’s scheme was uncovered, the banks reinstated their 

interests, but Terra’s “clients” could not recover the fees they had 

paid. In all, the scheme temporarily erased nearly $40 million of 

debt in connection with over 60 mortgage loans.

To execute the fraud, Terra used a “three-step procedure”: “(1) 

an audit, (2) a ‘Qualified Written Request’ [QWR] to the client’s 

mortgage lender, and (3) the filing of a discharge of mortgage in the 

local clerk’s office.” Id. at A-54. Each QWR contained a series of 

pseudo-legal questions, purportedly based on one of Terra’s “audits,” 

demanding detailed narrative responses and documentary 

submissions. If Terra received no response from the lender or 

considered a response insufficient, it would claim that the lending 

bank had ceded authority over the mortgage to Terra. One of 

Graham’s coconspirators would then claim to be an agent of the 

lending bank, prepare a notice of discharge, and file it with the 

relevant county clerk.

Terra collected substantial fees from these homeowners in 

consideration for the promise of debt relief. For example, Augustine 

Alvarez testified that in 2011, Terra employees told him that they 

could render his mortgage debt “reduced or eliminated.” Id. at A376. After paying $1100 upfront and completing a so-called “UCC 

Financing Statement” form, Alvarez waited for nearly a year until 

Terra provided him with an authentic title search showing that his 
5

mortgage had been removed from county records. Id. at A-377. In 

exchange, Alvarez—who had been, prior to Terra’s involvement, 

barely able to satisfy his mortgage payments—wrote Terra two 

checks for $250,000 each. Soon thereafter, Alvarez’s bank notified 

him that the mortgage had been removed pursuant to a “fraudulent 

transaction” and had thus been reinstated. Id. at A-388. Alvarez 

tried repeatedly to contact Terra affiliates, who dodged his calls and 

ultimately refused to return his money. 

The government introduced evidence that Graham had 

directed the fraudulent scheme as the head partner of Terra. 

Witness testimony suggested that she personally helped prepare the 

QWRs and other documents. And documentary evidence showed 

her control of Terra’s finances, including its bank accounts. 

The defense principally argued that Graham lacked the 

requisite knowledge of the fraudulent means of the scheme. In 

particular, defense counsel argued that Graham “believed in good 

faith that the unorthodox methods and unconventional programs that 

she promoted . . . would help homeowners stay in their homes.” Id.

at A-1007. To rebut this argument, the government introduced, 

among other evidence: (1) Graham’s communications with 

coconspirators scolding them for sending multiple QWRs “to the 

same lender for the same client” because the QWRs would soon “look 

like some bull****,” Supp. App’x at SA-90; (2) Graham’s handwritten 

confession admitting her participation in the creation and distribution 

of “fraudulent mortgage discharges” and her “aware[ness] [that her] 

partners were committing fraudulent acts,” id. at SA-71; (3) Graham’s 

insistence that customers pay upfront; (4) Graham’s attempts to move 
6

Terra’s proceeds offshore; and (5) Graham’s efforts to remove her 

name from many of Terra’s documents and bank accounts. 

B. Procedural History

1. Pretrial

In November 2016, a grand jury returned an indictment 

charging Graham and four coconspirators with a single count of 

conspiracy to commit mail, wire, and bank fraud, in violation of 18 

U.S.C. § 1349. On April 2, 2019, just over one month before the 

scheduled trial date, the government sent a letter to the district court 

requesting a conference with Graham and her counsel. The 

government represented that it had transmitted a plea offer to 

Graham’s counsel on February 22, 2019 and that the offer had expired 

nearly one month prior to the April 2 letter. The government had 

not received a response and was thus concerned that Graham may 

not have “received, understood, discussed with her counsel, and 

rejected” the offer. Joint App’x at A-82. The government noted 

that all parties still had to “invest significant time and effort into 

preparing for trial,” so it would be advisable to act “at the Court’s 

earliest convenience in order to ensure that Graham fully understood 

the plea offer and, if she intended to reject it, did so with a full 

understanding of the consequences of such a rejection.” Id.1

1 The letter also presumed that if Graham asserted that she had not 

received and understood the offer, and if the government declined to 

reissue it, the district court would have to “hold a hearing” as late as the 

eve of trial, and the outcome of that hearing might be to override the 

government’s decision not to reissue the offer. See Joint App’x at A-82

(expressing concern that the hearing, if delayed, “might render all of the 
7

The district court held a conference on April 10, 2019. 

Graham’s counsel told the court that he had shared the “substance” 

of the plea agreement with Graham—he was not sure when—but he 

had not transmitted the agreement itself. Id. at A-90. Counsel

explained that the reason for this was that he “knew that this plea 

offer would not be received well on [Graham’s] part.” Id. at A-100. 

Graham stated that she had not heard anything about the plea 

agreement until the “end of March via email.” Id. at A-99. The 

court then instructed the government to provide a copy of the 

agreement—on the record—directly to Graham, remarking: 

I don’t want this later to come back to haunt us, so to 

speak. I don’t want there to be a claim made that this 

plea offer was not conveyed to [Graham], and that she 

didn’t have an opportunity to review it and understand 

it; and that she has made a determination not to accept 

the plea offer and that we are, in fact, going to trial . . .

I just want her to make sure . . . [that] she has a full 

understanding of the offer that has been made, and she 

has made a knowing and intelligent decision to proceed 

to trial if that’s what she wants to do; and if she wants to 

go to trial, I have no problems with that. I just want to 

make sure that those decisions are made intelligently and 

knowingly, and that there is no basis for her later coming 

before the Court and saying that she was not aware that 

a plea offer was made and the consequences of it, of 

either accepting or denying the plea offer.

Court’s, Government’s, and [defense counsel’s] [additional] work and 

preparation for naught”).
8

Id. at A-90 to -92. Graham reviewed the offer with trial counsel and, 

through counsel, indicated on the record that she wanted more time 

to consider it. The government explained that the offer had already 

expired but stated that it “would probably be able to get it 

reauthorized” if Graham so requested and that the government was 

also open to “alternative ways of structuring” a deal if Graham 

returned to negotiations “sooner rather than later.” Id. at A-96. 

The court then reiterated that it “want[ed] the record to be clear, that 

[Graham had] been given an opportunity to review the plea offer that 

was conveyed.” Id. at A-97. 

At the same conference and immediately after this exchange, 

the district court dismissed Graham’s attorney due to a “breakdown 

of communication”—which the court partly attributed to Graham’s 

decision to remain in California prior to trial—and appointed Graham 

new trial counsel. Id. at A-101. The court then stated that new 

counsel would “probably want an opportunity to review the plea 

offer as well and discuss it with” Graham, id. at A-105, and the court 

told Graham directly that if she wanted to explore further plea 

discussions she could do so with new counsel. Graham 

acknowledged the court’s instruction. 

Graham did not raise the issue again with the district court at 

any time before trial. At the final pretrial conference on May 31, 

2019, the government stated that it had “not made any new offers” or 

been “asked to reopen any offers.” Id. at A-172. Graham’s new 

counsel did not dispute the government’s characterization and said 

that he “expect[ed] to be in front of the Court on Monday ready to 

select a jury.” Id.
9

2. Trial and Appeal

Jury selection began on June 3, 2019, almost two months after 

the conference regarding the government’s plea offer. After a sixday trial, the jury returned a verdict of guilty. The district court 

sentenced Graham to 132 months’ imprisonment, followed by five 

years’ supervised release. The court also ordered over $800,000 in 

restitution and forfeiture. 

Graham timely appealed. Oral argument was held on March 

1, 2022, and we ordered supplemental briefing on Graham’s 

ineffective-assistance claim on March 15, 2022. Briefing was 

completed on April 18, 2022. 

II. DISCUSSION

A. Ineffective Assistance of Counsel

Graham argues that her pretrial counsel’s failure to 

communicate the government’s plea offer entitles her to 

reinstatement of the offer, followed by resentencing. For the reasons 

that follow, we conclude that even assuming counsel’s alleged failure 

gave rise to an ineffective-assistance claim, any such claim has since 

been waived.

1. Doctrinal Background

The Constitution guarantees that “[i]n all criminal 

prosecutions, the accused shall . . . have the Assistance of Counsel for 

his defence.” U.S. Const. amend. VI. The right to counsel 

necessarily includes “the right to the effective assistance of counsel.” 

Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) 

(citation omitted). And it is well-established that the Sixth 
10

Amendment entitles a defendant to relief when (1) counsel’s 

“deficient performance” has (2) “prejudiced the defense” by leading 

to a conviction at trial or to an ill-advised guilty plea. Id. at 687; see 

Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). A defendant satisfies the 

performance prong by proving that counsel failed to provide 

“reasonably effective assistance” in executing the defense. 

Strickland, 466 U.S. at 687. And the prejudice prong requires a 

defendant to show a “reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694.

In a pair of companion cases in 2012, the Supreme Court held 

that the right to effective assistance “for [one’s] defence” encompasses 

a right to effective assistance in forgoing a defense. In the first case, 

Missouri v. Frye, the Court held that, although no defendant has a right 

to a plea bargain, once such a bargain has been offered, the Sixth 

Amendment is violated when a defendant loses the opportunity to 

benefit from the offer without the advice of competent counsel. See 

566 U.S. 134, 142-44, 148 (2012). In Frye, the defendant’s counsel had 

failed to advise him that the government transmitted a plea offer 

before that offer expired. The defendant then entered a guilty plea 

without the benefit of the bargain. Id. at 138–39. Applying 

Strickland’s performance prong, the Court held that “[w]hen defense 

counsel allowed the offer to expire without advising the defendant or

allowing him to consider it, defense counsel did not render the 

effective assistance the Constitution requires.” Id. at 145. As for the 

prejudice prong, the Court explained that a defendant must show a 

“reasonable probability” that “they would have accepted the . . . plea 

offer had they been afforded effective assistance of counsel,” that “the 

plea would have been entered without the prosecution canceling it or 
11

the trial court refusing to accept it,” and that “the end result of the 

criminal process would have been more favorable by reason of a plea 

to a lesser charge or a sentence of less prison time.” Id. at 147. The 

Court did not resolve whether the defendant in Frye had satisfied the 

prejudice prong and left the issue for remand. See id. at 151.

In the other case, Lafler v. Cooper, 566 U.S. 156 (2012), the 

defendant alleged that he had been improperly advised to reject a 

plea offer and was later convicted at trial. The government 

conceded that defense counsel was deficient in advising the 

defendant not to accept its plea bargain, and the Court concluded that 

the defendant was indeed prejudiced by proceeding to trial rather 

than taking the deal. The Court then turned toward structuring a 

remedy aimed at “neutraliz[ing] the taint of [the] constitutional 

violation, while at the same time not grant[ing] a windfall to the 

defendant or needlessly squander[ing] the considerable resources” 

put toward a prosecution. Id. at 170 (cleaned up) (citation omitted). 

When the only advantage a defendant would have received by 

accepting the plea is a lesser sentence, remand for resentencing is 

proper so that a district court may “exercise discretion in determining 

whether the defendant should receive the term of imprisonment the 

government offered in the plea, the sentence he received at trial, or 

something in between.” Id. at 171. When, however, resentencing 

would not “full[y] redress” the constitutional injury, the court may 

“require the prosecution to reoffer the plea proposal . . . [and] then 

[on remand] exercise discretion in deciding whether to vacate the 

conviction from trial and accept the plea or leave the conviction 

undisturbed.” Id.
12

2. Graham’s Waiver

Graham asserts that this case is directly controlled by Frye: The 

government made her an offer, which her counsel failed to convey to 

her. The government contends that more factual development on 

collateral review is needed to determine whether Graham has a viable 

ineffective-assistance claim and that the court should defer resolution 

of her claim.

We need not reach these arguments because we hold that any 

such ineffective-assistance claim has been waived. “[W]aiver can 

result only from a defendant’s intentional decision not to assert a 

right.” United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015). “As 

a general proposition, the law can presume that an individual who, 

with a full understanding of his or her rights, acts in a manner 

inconsistent with their exercise has made a deliberate choice to 

relinquish the protection those rights afford.” Berghuis v. Thompkins, 

560 U.S. 370, 385 (2010); see also United States v. Yu-Leung, 51 F.3d 1116, 

1122 (2d Cir. 1995) (“If . . . [a] party consciously refrains from 

objecting as a tactical matter, then that action constitutes a true 

‘waiver,’ which will negate even plain error review.” (citation 

omitted)); Hemphill v. New York, 142 S. Ct. 681, 694–95 (2022) (Alito, J., 

concurring) (explaining that waiver “is predicated on [either] conduct 

evincing intent to relinquish the right” or “action inconsistent with 

the assertion of that right”).

In Frye, the defendant “had no knowledge of the [plea offer] 

until after he was convicted, sentenced, and incarcerated.” Frye v. 

State, 311 S.W.3d 350, 352 (Mo. Ct. App. 2010), vacated, 566 U.S. 134. 

But here, Graham acknowledged the expired plea offer on the 

record—and was appointed new, competent counsel—nearly two 
13

months before trial began. The government, going above and 

beyond its obligations, sent a letter to the district court on April 2, 

2019, explaining that it had received no response to its plea offer and 

requesting that the court schedule a conference. The district court 

held a hearing on April 10, during which Graham reviewed and 

acknowledged the offer on the record. Graham stated that she 

wanted time to consider how to proceed and received new counsel to 

help her do so. Two months later, she proceeded to trial without any 

further mention to the court of the expired offer.

Graham’s choice was plainly inconsistent with vindicating her 

rights under Frye and Lafler. Those cases held that defendants have 

a contingent right to benefit from a plea offer in the sense that, once 

an offer has been made, a defendant is entitled to the advice of 

competent counsel before rejecting the offer or letting it expire. See, 

e.g., Lafler, 566 U.S. at 163–64 (“[I]neffective advice led not to an offer’s 

acceptance but to its rejection. Having to stand trial, not choosing to 

waive it, is the prejudice alleged.”). Proceeding to trial is

incompatible with a pretrial plea agreement, which of course requires

a defendant to enter a guilty plea.2 Graham could not both proceed 

2 The concurrence disagrees that Graham waived her Frye right and 

refers to the “well-established processes and procedures to ensure that . . . a 

plea is entered voluntarily, knowingly, and intelligently,” citing Fed. R. 

Crim. P. 11(b). Concurrence at 5–6. But Rule 11(b) prescribes procedures 

for when a defendant is “considering and accepting a guilty or nolo 

contendere plea”—i.e., waiving the right to trial. Fed. R. Crim. P. 11(b). 

But Graham’s case relates to waiver of her right to a plea offer, to which Rule 

11(b) does not apply. Cf. United States v. Albarran, 943 F.3d 106, 113 & n.5 

(2d Cir. 2019) (explaining that the purpose of “a Frye hearing” is “to ensure 

that a full and accurate communication on the subject has occurred” so that 
14

to trial and benefit from the government’s conditional offer, which—

even under the special rights conferred by Frye and Lafler—required 

a guilty plea. She could not have availed herself of both options in 

real time, so waiver rules preclude her from doing so now.

The remedy that Graham seeks highlights why her ineffectiveassistance claim is waived. Graham asks us to enter a judgment

forcing the government to reinstate its old, expired plea offer so that 

she may now plead guilty under its terms.3 But Graham already 

chose not to pursue that offer by going to trial with full awareness of 

the offer’s existence under the advice of competent counsel. That is, 

after the April 10, 2019 conference, Graham had the option either (1) 

to exercise her Frye right to compel the government to revive the 

expired plea offer, and then accept that offer or negotiate its terms;4

or (2) to proceed to trial.5 From at least April 10 on, Graham (with 

her new counsel) was aware of any Frye errors committed by her 

a defendant “fully underst[ands] the terms of the plea agreement that he 

[is] rejecting” (emphasis added)).

3 The other remedy available under Lafler—resentencing alone—

would not make any sense here because the district court already knew 

about the expired plea offer well before Graham was sentenced. In any 

event, either approach would be equally inconsistent with Graham’s choice 

to go to trial because it would aim to give Graham the benefit of a plea offer 

that had required her to plead guilty. 

4 Even then, the district court could still exercise “discretion” in 

determining whether to accept the plea, and it could base that discretion on 

intervening events between the time of the original offer and the time of the 

request. See Lafler, 566 U.S. at 170–71.

5 Graham also could have negotiated with the government without 

first seeking reinstatement of the offer; such bargaining would have 

occurred in the shadow of Graham’s Frye rights. 
15

former attorney. But she chose not to seek reinstatement of the deal, 

invoking her trial right instead. Graham may not undo the 

consequences of that decision on appeal.6

Without a waiver rule, a defendant in Graham’s position would 

have little reason to exercise her Frye rights before trial. Such a 

defendant could instead go to trial and hope for an acquittal, knowing 

that she could force the government to reoffer the same, expired 

pretrial deal if she were convicted.7 Or she could try to trade her free 

roll of the dice for a new, better deal with the government. Either 

way, Frye would give a defendant the option to rewind the clock after 

6 Graham asks us to create an exception to the “usual principles of 

determining waiver” for Frye and Lafler errors by requiring some sort of 

additional formal judicial proceeding. Appellant’s Supp. Br. at 4 (quoting 

Berghuis, 560 U.S. at 383). We decline to do so. Graham’s two examples 

of special rules—Curcio and Faretta hearings—both involve circumstances 

in which the court cannot be sure that the defendant is adequately 

represented. See id. (first citing United States v. Arrington, 941 F.3d 24, 40 

(2d Cir. 2019) (describing Curcio hearings for possibly conflicted counsel); 

and then citing Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998)

(describing Faretta hearings for pro se representation)). Here, there has 

been no suggestion that Graham’s trial counsel after the April 10 conference 

was ineffective, conflicted, or absent. 

7 We do not mean to suggest that courts are generally required to 

give a defendant the full benefit of the original bargain in cases where the 

ineffective-assistance claim was not waived. To the contrary, Lafler 

emphasized that judges must use “discretion”—either in “determining 

whether the defendant should receive the term of imprisonment the 

government offered in the plea, the sentence he received at trial, or 

something in between” or in “deciding whether to vacate the conviction 

from trial and accept the plea or leave the conviction undisturbed.” 566 

U.S. at 171. But such remedial measures do not displace ordinary waiver 

rules.
16

a guilty verdict, violating the Supreme Court’s instruction that a Sixth 

Amendment remedy should not “grant a windfall to the defendant.” 

Lafler, 566 U.S. at 170. This sort of gamesmanship is, of course,

precisely what waiver rules guard against. See United States v. Gersh, 

328 F.2d 460, 463 (2d Cir. 1964) (Friendly, J.) (noting that there would 

be waiver where a party had knowledge of an error “but had 

nevertheless stood mute, gambling on an acquittal while holding this 

issue in reserve”).

The Frye Court anticipated precisely this scenario when 

explaining how courts can prevent “late, frivolous, or fabricated 

claims” of expired plea offers raised only “after a trial leading to 

conviction with resulting harsh consequences.” 566 U.S. at 146. 

The Court explained that trial judges could make “formal 

offers . . . part of the record at any subsequent plea proceeding or 

before a trial on the merits, all to ensure that a defendant has been fully 

advised before those further proceedings commence.” Id. (emphasis 

added). The district court heeded that advice here and recognized 

that a Frye error could “haunt” the case if not redressed immediately.

Joint App’x at A-90. So the court summoned Graham to New York

from California, ensured that she was aware of the offer, and required 

her to review it on the record. The district court stated clearly and 

repeatedly that the purpose of this conference was to avoid any 

belated claim “that this plea offer was not conveyed to [Graham],” 

“that she didn’t have an opportunity to review it and understand it,” 

or that Graham made anything other than a “knowing and intelligent 

decision to proceed to trial if that’s what she wants to do.” Id. at A90 to -91. The court also appointed new counsel that day to aid 

Graham in her decision. These efforts were aimed at putting 

Graham in a position to exercise her Frye rights before trial, not to grant 
17

her the option to seek to vacate her conviction after a guilty verdict. 

See United States v. Draper, 882 F.3d 210, 218 (5th Cir. 2018) (rejecting 

the argument that “Frye permits district judges to identify [ineffective 

assistance] but not to remedy it” before a trial or subsequent plea).8 

Entertaining Graham’s claim now would both penalize the 

government for proactively bringing a possible error to the court’s 

attention and disregard the court’s conscientious efforts to correct it.

Typically, a waiver of rights arises from the choice to plead 

guilty, not from exercising the right to go to trial. See Fed. R. Crim. 

P. 11; Class v. United States, 138 S. Ct. 798, 805 (2018). Accordingly, 

we appreciate that it may seem unusual to cast the decision to go to 

trial—itself a right enshrined by the Sixth Amendment—as waiver of

some other right. But that is so only because outside the context of

Lafler and Frye, there is no “right” to a plea bargain at all nor a “right” 

that the judge accept a plea offer. See Frye, 566 U.S. at 148–49 (first 

citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977); and then citing 

Santobello v. New York, 404 U.S. 257, 262 (1971)). Waiver here takes a 

unique form because Frye and Lafler convey unique rights. A 

defendant waives a right to trial by pleading guilty; we have no 

trouble concluding that she waives a contingent right to plead 

8 The concurrence states that “the district court should have done 

more.” Concurrence at 7. We respectfully disagree. The district court 

informed Graham of the government’s offer, described the consequences of 

accepting or declining the offer, and suggested that Graham review the 

offer with new counsel. See supra at 7-8. In light of that colloquy, it’s hard 

to see how Graham’s decision to go to trial was not knowing and intelligent 

or to fault the district court for not doing more.
18

guilty—the kind granted by Frye and Lafler—by making a knowing 

and intelligent decision to proceed to trial.9

3. The Government’s Purported “Waiver”

Graham and the concurrence respond that we should look past 

Graham’s waiver because the government did not mention waiver in 

its principal brief. See Concurrence at 1-3. According to the 

concurrence, the government abandoned this argument on appeal by 

failing to raise Graham’s waiver in its opposition brief and expressing 

“serious doubt” about waiver when questioned during oral 

argument. Id. at 1-2. In other words, the government itself 

“waived” the waiver argument. 

This reasoning is flawed. To be sure, we have at times used 

the shorthand “waiver” to describe a party’s failure to raise an 

argument in its brief on appeal. See, e.g., Norton v. Sam’s Club, 145 

F.3d 114, 117 (2d Cir. 1998); United States v. Brown, 352 F.3d 654, 663 

(2d Cir. 2003) (“waiver” of waiver argument). 10 But as a formal

9 Nothing in this opinion should be construed as holding that waiver 

of a Lafler or Frye right can occur only beginning on the first day of trial. 

We need not decide whether Graham’s waiver occurred even earlier, i.e., 

whether some other action she took before the start of trial was also 

inconsistent with timely pursuing reinstatement of the expired plea offer. 

For example, a defendant may not act inconsistently with exercising rights 

under Frye, learn that the government has discovered strong inculpatory 

evidence, and then ask the court to reinstate a stale, expired offer after the 

fact. We need not develop the record here further because it is clear 

already that, at least by the time trial commenced, Graham’s course of 

conduct was inconsistent with vindicating any Frye rights.

10 Despite use of the term “waiver,” we have never treated omission 

of an argument alone as the “intentional relinquishment of a known right,” 

which is why unlike in instances of true waiver, we emphasize that a failure 
19

matter, this confuses several distinct concepts. One set of rules—

waiver and forfeiture—governs when a court may subtract from the 

arguments raised on appeal. Waiver, the “intentional 

relinquishment or abandonment of a known right” at or before the 

time of appeal, “extinguish[es] an error” along with any appellate 

review. United States v. Olano, 507 U.S. 725, 733 (1993) (cleaned up); 

see Yu-Leung, 51 F.3d at 1121 (“[W]aiver necessarily ‘extinguishes’ the 

claim.” (citation omitted)). Forfeiture, a mere “failure to make the 

timely assertion of a right” when procedurally appropriate, allows a 

court either to disregard an argument at its discretion (in civil cases) 

or otherwise subject it to plain-error review (in criminal cases). 

Olano, 507 U.S. at 733; see Greene v. United States, 13 F.3d 577, 585–86 

(2d Cir. 1994) (civil cases); Fed. R. Crim. P. 52(b) (criminal cases).11 

A different rule, the party-presentation rule, governs when a 

court may add to the issues raised on appeal. The party-presentation 

rule reflects the principle that courts “normally decide only questions 

to raise an argument does not extinguish appellate review entirely. See 

Norton, 145 F.3d at 117 (noting these arguments “normally will not be 

addressed on appeal” (emphasis added)).

11 Graham’s confusion of waiver and forfeiture also explains why 

her reliance on Massaro v. United States, 538 U.S. 500 (2003), is misplaced. 

There, the Supreme Court rejected this Circuit’s rule that ineffectiveassistance claims should be raised on direct appeal rather than collateral 

review. Although the Court occasionally used the term “waiver,” it was 

expressly evaluating a rule of “procedural default”—i.e., forfeiture—and 

accordingly determining at what time it was “preferable” to require 

ineffective-assistance claims after trial. Id. at 503–04. The case was about 

the efficient handling of claims, not the intentional relinquishment of a 

known right; procedural default, unlike true waiver, is excused with a 

showing of cause and prejudice. Id. at 504, 506. 
20

presented by the parties” and may play only “a modest initiating 

role” in shaping the arguments before them. United States v. 

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (citation omitted). Here, 

Graham raised a claim of ineffective assistance of counsel, and we 

ordered supplemental briefing on whether that claim was waived. 

Graham and the concurrence object to our decision to do so and to 

decide her claim on that ground now. See Concurrence at 1-3. This

objection to the government’s allegedly “abandoned claim[]” thus 

sounds in the party-presentation rule. Id. at 2. But “it cannot be a 

departure from the principle of party presentation to decide the issue 

on which the appellant relies for relief.” United States v. 

Moyhernandez, 5 F.4th 195, 207 (2d Cir. 2021) (emphasis added), cert.

granted, vacated, and remanded on other grounds, 142 S. Ct. 2899 (2022)

(mem.).12 In other words, because we are not “hidebound by the 

12 Moreover, the district court was clearly concerned about the 

waiver issue, as it articulated at the Frye conference. See supra at 7-9. And 

once we ordered supplemental briefing, the government endorsed the 

proposition that Graham waived her claims. We thus conclude, with the 

benefit of supplemental briefing, that the district court ensured that 

Graham had the opportunity to assert her Frye right after being presented 

with the expired plea offer. See supra at 14-18. In any event, the 

government’s arguments in its principal brief—mostly regarding the lack 

of prejudice to Graham, assuming there was deficient performance—

focused on the timing of Graham’s representations to the court and to the 

government, her appointment of new counsel, and her decision to go to 

trial. Our “modest initiating role” was to ask the parties whether 

Graham’s central claim on appeal was waived. Sineneng-Smith, 140 S. Ct. 

at 1579. The parties have now fully addressed the waiver issue, and so we 

decide that issue today.

The concurrence states that we have engaged in a “sua sponte 

application[] of waiver” or even judicial immodesty. Concurrence at 3. 
21

precise arguments of counsel,” Sineneng-Smith, 140 S. Ct. at 1581, we 

may affirm a judgment of the district court on any ground that is 

directly responsive to an appellant’s arguments. That is why we 

may affirm a judgment even when an appellee submits no brief at all. 

See Fed. R. App. P. 31(c). In considering Graham’s ineffectiveassistance argument, we find the issue waived, which “necessarily 

extinguishes” the error and our review, so we decline to opine on its

hypothetical merits. Yu-Leung, 51 F.3d at 1121 (cleaned up).

* * *

In sum, even assuming that Graham would have accepted the 

government’s offer if it had been timely presented to her by her prior 

counsel, once competent counsel was appointed, she elected not to 

exercise her Frye rights and chose to take her chances at trial instead. 

She cannot now revive any Frye remedies on appeal. The record 

already reflects Graham’s review of the plea offer and the court’s 

appointment of new counsel, so there is no need for further factfinding. We thus reject Graham’s claim for relief without waiting for 

a collateral challenge.

B. Evidentiary Rulings and Jury Charge

Graham also raises several challenges to the admission of 

evidence and jury instructions at trial. All are meritless.

We respectfully disagree. It is the concurrence’s approach that would 

have us discredit the district court’s efforts, reach the merits, and apply Frye

to the facts of Graham’s case. See id. at 11–12. 
22

1. Other Acts Evidence

At trial, the government introduced evidence of (a) Graham’s 

participation in an electronic funds transfer (“EFT”) scheme that 

purported to eliminate debts by writing checks against a zero-balance 

checking account; and (b) Graham’s attempts to improve a victim’s 

credit score using sham methods. As to both sets of evidence, the 

district court provided a limiting instruction that the evidence could 

be used only to show intent, mental state, or lack of good faith. We 

review for abuse of discretion. See United States v. Rowland, 826 F.3d 

100, 114 (2d Cir. 2016).

Graham argues that admitting this evidence ran afoul of 

Federal Rule of Evidence 404(b), which provides:

(1) Prohibited Uses. Evidence of any other crime, wrong, 

or act is not admissible to prove a person’s character in 

order to show that on a particular occasion the person 

acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.

In general, “‘[o]ther act’ evidence serves a proper purpose so long as 

it is not offered to show the defendant’s propensity to commit the 

offense.” United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011). 

“This Circuit follows the ‘inclusionary’ approach, which admits all 

‘other act’ evidence that does not serve the sole purpose of showing 

the defendant’s bad character and that is neither overly prejudicial 

under Rule 403 nor irrelevant under Rule 402.” Id. at 56 (citation 

omitted). Relevance toward a permissible purpose often turns on 
23

the similarity between the prior act and the charged offense. See, e.g., 

United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002).

a. EFT Scheme

The government introduced evidence that, concurrently with 

the charged fraud, Graham instructed a coconspirator, Rocco 

Cermele, to etch markings on checks in “[c]ertain colors” of ink so that 

they could be drawn against closed checking accounts to cover 

Cermele’s debts. Joint App’x at A-799. The evidence included two 

email chains between Graham and Cermele. In the first, Graham 

says that she will detail the method to Cermele, and in the second, 

Cermele explains that his efforts to avail himself of the scheme were 

fruitless. 

We agree with the government that this evidence was probative 

of Graham’s fraudulent intent. At trial, Graham’s principal defense 

was that she lacked the requisite mental state for a fraud conspiracy 

conviction. “[W]here it is apparent that intent will be in dispute, 

evidence of prior or similar acts may be introduced during the 

government’s case-in-chief . . . .” United States v. Pitre, 960 F.2d 1112, 

1120 (2d Cir. 1992). Even when “the [other bad] acts and the charged 

conduct d[o] not involve exactly the same co-conspirators, [conduct], 

or temporal timelines,” the evidence may still be “[]sufficiently 

relevant or probative” to be admitted. United States v. Dupree, 870 

F.3d 62, 77 (2d Cir. 2017). Here, the EFT scheme was done at the 

same time as the charged conspiracy, with the same coconspirators, 

and with the same hallmarks—“unconventional” financial techniques 

used to purportedly discharge debt. The district court properly 

admitted this evidence.
24

b. Credit Repair Scheme

The government also introduced testimony from one of the 

victims of the charged fraud, Sherry Hopple. According to Hopple, 

Graham had induced her to redirect $25,000 worth of mortgage 

payments to Graham, after which Hopple would declare bankruptcy. 

When this ploy did not save Hopple and her husband from financial 

trouble, the pair had to leave their home, and her husband’s credit 

score plummeted. Graham said that she could boost that score into 

the 700s or 800s as she had purportedly done for three other clients—

indeed, supposedly removing any record of their foreclosures from 

their credit reports within ten days.

We agree with the government that this evidence was properly 

admitted as “direct evidence of the crime charged” because it “arose 

out of the same transaction or series of transactions as the charged 

offense, . . . [was] inextricably intertwined with the evidence 

regarding the charged offense, or . . . [was] necessary to complete the 

story of the crime on trial.” United States v. Hsu, 669 F.3d 112, 118 (2d 

Cir. 2012) (citation omitted). First, the evidence tended to show 

conduct that was intertwined with the charged fraud, of which 

Hopple was a victim. Second, the jury could have found that the 

credit repair scheme served to “lull” Hopple into not reporting 

Graham or working with authorities against her. Cf. United States v. 

Lane, 474 U.S. 438, 451–52 (1986) (explaining that lulling can be in 

furtherance of fraudulent conduct). Third, Graham’s purported 

offer to help could be taken as evidence of fraudulent intent by taking 

steps to mask her missteps. See United States v. Kelley, 551 F.3d 171, 

176 (2d Cir. 2009) (holding that subsequent acts to hide a fraud 

“indicate[d] that [Defendant’s] actions in defrauding his clients were 
25

not simple mistakes but were instead part of a larger, intentional 

scheme to defraud”). Any one of these reasons would be sufficient 

to admit the evidence, and the district court did not abuse its 

discretion by doing so.

2. Red-Flag Evidence

The government also introduced certain “red flag” emails sent 

among Graham, Cermele, and an outside attorney. The attorney, 

after learning of Graham’s methods, gave a detailed explanation of 

why they were illegitimate. Referring to those methods, he 

summarized that he could “unequivocally say that the filing of those 

liens, the transfer of the properties, the creation of the trusts, etc., 

constitutes a crime.” Joint App’x at A-1107. Graham responded by 

asserting that this attorney was uneducated in the “common law,” 

and she later wrote that “title companies . . . are LAWYER owned and 

part of the UCC system we fight against.” Id. at A-1110, A-1113. 

The district court instructed the jury to use these emails as evidence 

only of Graham’s intent, knowledge, or lack of good faith.

Graham contends that these emails were inadmissible hearsay, 

see Fed. R. Evid. 801, 802, and that they unduly prejudiced the jury by 

providing a legal opinion, see Cameron v. City of N.Y., 598 F.3d 50, 62 

(2d Cir. 2010). Again, we disagree. The evidence was introduced 

not for the truth of the matter asserted—i.e., that Graham’s actions 

were in fact illegitimate—but rather to show her fraudulent intent 

and, indeed, her knowledge that she was breaking the law. In other 

words, the evidence “rebut[ted] [Graham’s] argument that [she] had 

no reason to know [her conduct] was fraudulent.” United States v. 

Dupre, 462 F.3d 131, 137 (2d Cir. 2006).
26

Nor did the emails create a risk of prejudice that substantially 

outweighed their probative value. See Fed. R. Evid. 403; United 

States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994) (noting that we look at 

“whether the probative value of th[e] evidence for its non-hearsay 

purpose is outweighed by the danger of unfair prejudice resulting 

from the impermissible hearsay use of the declarant’s statement”). 

The danger of prejudice was low because there was no reasonable 

dispute that Graham used illegitimate means to eliminate the debts of 

Terra’s clients. And the probative value of the evidence was high 

because it tended to undermine Graham’s argument that she lacked 

mens rea. Moreover, the court gave a limiting instruction that the 

evidence could be considered “for a very limited purpose” as to her 

intent, which it repeated during the general jury charge. Supp. 

App’x at SA-56. The “law recognizes a strong presumption that 

juries follow limiting instructions.” United States v. Snype, 441 F.3d 

119, 129 (2d Cir. 2006). We thus conclude that admission of the 

evidence was not an abuse of discretion.

3. Conscious-Avoidance Instruction

Finally, Graham argues that the district court erred by 

instructing the jury on conscious avoidance, also known as willful 

blindness. In general, a criminal conspiracy conviction requires 

actual knowledge of the unlawful aims of the conspiracy, but a 

“defendant’s conscious avoidance of knowledge of the unlawful aims 

of the conspiracy . . . may be invoked as the equivalent of knowledge 

of those unlawful aims.” United States v. Svoboda, 347 F.3d 471, 480 

(2d Cir. 2003). The conscious-avoidance doctrine applies to a 

defendant who “consciously avoided learning [a] fact while aware of 

a high probability of its existence.” Id. at 477 (citation omitted); see 
27

also Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766–67 (2011). 

An instruction on the doctrine is proper when the “factual predicate 

for the charge” exists such that “a rational juror may reach the 

conclusion beyond a reasonable doubt that the defendant was aware 

of a high probability of the fact in dispute and consciously avoided 

confirming that fact.” Svoboda, 347 F.3d at 480 (cleaned up). We 

review jury instructions de novo and find error only if “the charge, 

taken as a whole, [is] prejudicial.” United States v. Caban, 173 F.3d 89, 

94 (2d Cir. 1999).

We conclude that there was sufficient evidence for a rational 

jury to conclude that Graham consciously avoided evidence of 

wrongdoing. In addition to the “red flag” emails, see supra Section 

II.B.2, and much of the evidence of actual knowledge, see supra at 5-6, 

the government introduced evidence showing Graham’s active 

disregard of information tending to show a high probability of the 

fraudulent aims of the conspiracy. For example, the government 

introduced comments from title companies expressing alarm at 

Graham’s methods. It also recounted that law enforcement raided 

Graham’s office in 2012, after which Graham’s criminal conduct 

continued. The government’s evidence served to show that Graham 

ignored these signals and told others not to engage with outside 

lawyers or the title companies. There was therefore ample basis for 

the district court’s conscious-avoidance instruction.

III. CONCLUSION

Graham’s ineffective-assistance claim was waived, and her 

remaining arguments are meritless. For the foregoing reasons, the 

judgment of conviction is affirmed.
20-832-cr

United States v. Graham

PÉREZ, Circuit Judge, concurring in the judgment as to Section II.A:

There is no debate that “criminal defendants require effective 

counsel during plea negotiations” and that “anything less might deny 

a defendant effective representation by counsel at the only stage when 

legal aid and advice would help him.” Missouri v. Frye, 566 U.S 134, 

144 (2012) (cleaned up). Binding precedent does not treat the right to 

counsel during plea negotiations with short shrift. 

I agree with the majority opinion that we should reject 

Graham’s claim, though I would do so on the merits, instead of 

finding waiver, because she is not able to prove the requisite 

prejudice. As such, I respectfully concur in the judgment of the Court

in Section II.A, but not its discussion and conclusion as to waiver. I 

fear that the majority opinion—after reaching beyond what the 

parties initially argued—has muddied the waters concerning the right 

to effective assistance of counsel in plea bargaining by finding waiver. 

I.

The Court should not have reached for waiver here. To speak 

plainly: the government abandoned this argument. The government 

did not raise waiver in its opposition brief—it even expressed 

serious doubt on whether there was a waiver when first questioned 

about it during oral argument.1 “It is well established that an 

argument not raised on appeal is deemed abandoned[.]” United 

States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (internal quotation 

marks omitted); see also United States v. Olano, 507 U.S. 725, 732–33 

(1993) (a party forfeits an argument when it “fail[s] to make the 

1 Counsel stated during oral argument that “ineffective assistance [] 

can be raised for the first time in collateral review, so I’m not sure that the 

defendant was obligated to raise it at the time” before the district court. 

Oral Arg. Audio Recording at 17:35–18:00. 
2

timely assertion of a right,” subjecting it to plain error review); cf.

JLM Couture, Inc. v. Gutman, 24 F.4th 785, 801 n.19 (2d Cir. 2022)

(declining to address “belatedly” made arguments raised in reply 

brief on appeal). Of course, this Court may consider abandoned 

claims if “manifest injustice would otherwise result[.]” Quiroz, 22 

F.3d at 491. But no one—even now after the government was

prodded by this Court to make a waiver argument—argues such 

manifest injustice would occur here if we considered Graham’s

ineffective assistance claim.2 Respectfully, I see much irony in that 

the majority opinion easily finds Graham’s Frye claim waived but 

declines to find the government’s new argument abandoned given 

that the government would not have asserted waiver if not for a 

request for supplemental briefing by this Court. 

While it is true that there is “no right to be offered a plea . . . nor 

a federal right that the judge accept it,” Frye, 566 U.S. at 148 (internal 

citations omitted), there is no question that the Sixth Amendment 

enshrines the right to counsel—“a right that extends to the pleabargaining process,” Lafler v. Cooper, 566 U.S. 156, 162 (2012); see also 

Frye, 566 U.S at 138 (“The right to counsel is the right to effective

assistance of counsel.” (emphasis added)). As such, “the right to 

adequate assistance of counsel cannot be defined or enforced without 

taking account of the central role plea bargaining plays in securing 

convictions and determining sentences.” Lafler, 566 U.S. at 170; see 

also Frye, 566 U.S. at 143 (“The reality is that plea bargains have 

become so central to the administration of the criminal justice system 

that defense counsel have responsibilities in the plea bargain process, 

2 In fact, the government initially suggested additional fact finding 

could be useful and that the Court should consider Graham’s ineffective 

assistance claim if presented via a 28 U.S.C. § 2255 motion, as an alternative 

argument to the record not supporting her claim. 
3

responsibilities that must be met to render the adequate assistance of 

counsel that the Sixth Amendment requires in the criminal process at 

critical stages.”). 

Something as bedrock to our criminal justice system and 

judicial process—the right to effective assistance of counsel—

demands the judiciary be modest in its approach to doctrines that 

may serve to limit the right, such as waiver. See, e.g., Carnley v. 

Cochran, 369 U.S. 506, 514 (1962) (“[C]ourts indulge every reasonable 

presumption against waiver of fundamental constitutional rights and

. . . do not presume acquiescence in the loss of fundamental rights.”

(internal quotation marks omitted)). Accordingly, when a 

fundamental right such as the right to effective assistance of counsel 

is implicated, sua sponte applications of waiver should be made with 

considerable restraint.

II.

Even if waiver had been raised by the government in its initial 

briefing, the government did not overcome the presumption against 

waiver, or meet its burden for us to find Graham’s purported waiver 

was knowing and intelligent. 

“There is a presumption against the waiver of constitutional 

rights[.]” Brookhart v. Janis, 384 U.S. 1, 4 (1966). “Whether a particular 

right is waivable; whether the defendant must participate personally 

in the waiver; whether certain procedures are required for waiver; 

and whether the defendant's choice must be particularly informed or 

voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733.

“Waiver is different from forfeiture. Whereas forfeiture is the 

failure to make the timely assertion of a right, waiver is the intentional 

relinquishment or abandonment of a known right.” Id. (internal 

quotation marks omitted). There is no dispute that the Court has 
4

discretion to correct certain errors that were forfeited using a plain 

error analysis, and that, in most cases, forfeiture occurs when a 

defendant fails to assert an objection in the district court due to 

mistake or oversight. See United States v. Yu-Leung, 51 F.3d 1116, 1122 

(2d Cir. 2015). But the Court has no such discretion to conduct a plain 

error review if there was a true waiver. See id. The government must 

prove waiver by a preponderance of the evidence. See, e.g., Berghuis 

v. Thompkins, 560 U.S. 370, 384 (2010). Where this Court has found 

waiver, “the record has supported the critical determination that the 

defendant . . . acted intentionally in pursuing, or not pursuing, a 

particular course of action.” United States v. Spruill, 808 F.3d 585, 597 

(2d Cir. 2015).

A. 

The record does not support a finding by a preponderance of 

the evidence that any purported waiver was knowing and intelligent. 

See Berghuis, 560 U.S. at 384; see also Brady v. United States, 397 U.S. 742, 

748 (1970) (“Waivers of constitutional rights not only must be 

voluntary but must be knowing, intelligent acts done with sufficient 

awareness of the relevant circumstances and likely consequences.”).

This Court has recognized several instances where the district 

court must conduct a meaningful inquiry with the defendant to 

ensure that the waiver of a constitutional right was knowing and 

intelligent. See, e.g., United States v. Ferguson, 758 F.2d 843, 850–51 (2d 

Cir. 1985) (noting requirement that waiver of indictment be made in 

open court, where the defendant is “informed of the nature of and the 

cause for the accusation, and the court must be satisfied that the 

defendant[] waive[s] their right[] knowingly, intelligently and 

voluntarily” to safeguard Fifth Amendment right to an indictment); 

United States v. Arrington, 941 F.3d 24, 39–40 (2d Cir. 2019) (requiring 
5

the defendant participate in Curcio hearing for possibly conflicted 

counsel to safeguard Sixth Amendment right to effective assistance of 

counsel); Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) 

(requiring the defendant participate in Faretta hearing before allowing

the defendant to proceed pro se to safeguard Sixth Amendment right 

to counsel); see also United States v. Carmenate, 544 F.3d 105, 108 (2d 

Cir. 2008) (“strongly encourag[ing] the district court to give 

appropriate warnings and question a defendant on the record” before 

finding waiver of right to jury trial).3 

And there is no dispute that deciding to waive the 

constitutional right to trial and instead plead guilty is among the 

decisions that a defendant must personally participate in, and there 

accordingly are well-established processes and procedures to ensure 

that such a plea is entered voluntarily, knowingly, and intelligently. 

See Fed. R. Crim. P. 11(b), (c); Taylor v. Illinois, 484 U.S. 400, 417–18, 

418 n.24 (1988); see also Brookhart, 384 U.S. at 7–8; United States v. 

Livorsi, 180 F.3d 76, 79–80 (2d Cir. 1999) (explaining that Rule 11 is 

“designed to assist the district judge in making the constitutionally 

3 The majority opinion dismisses Arrington and Torres as inapposite 

because each “involve[s] circumstances in which the court cannot be sure 

that the defendant is adequately represented.” Op. at 15 n.6. The animating 

concern of Arrington and Torres, ensuring the Sixth Amendment right to 

adequate assistance of counsel, is present here. In any case, the district 

court had good reason to believe that Graham had not been adequately 

represented in plea negotiations before she was appointed new counsel, 

because former counsel indicated that he had only conveyed the 

“substance” of the plea agreement, but not the offer itself, and Graham 

indicated that that communication was in late March—seemingly after the 

offer had expired. Joint App’x at A-90, A-99. While there has been no claim 

that counsel after the April 10 conference was ineffective, that does not 

mean the district court should not have taken steps to ensure any earlier 

Sixth Amendment violation was actually adequately remedied. 
6

required determination that a defendant’s guilty plea is truly 

voluntary” and that the defendant “knows the consequences of doing 

so” (quoting United States v. Maher, 108 F.3d 1513, 1520 (2d Cir. 1997)). 

Frye, which indisputably implicates both the right to effective counsel 

and the right of a defendant to accept a plea offer once made, see Op. 

at 17–18, Frye, 566 U.S. at 148–49, accordingly demands a robust 

process.4 

As the majority opinion aptly notes, it is not as if “Frye permits 

district judges to identify [ineffective assistance] but not to remedy it 

before a trial or subsequent plea.” Op. at 17 (quoting United States v. 

Draper, 882 F.3d 210, 218 (5th Cir. 2018)) (internal quotation marks 

omitted). To its credit, the district court did acknowledge the 

potential Frye issue and raised its concern for the parties, stating that 

it did not want this Frye issue “to come back to haunt us, so to speak.” 

Joint App’x at A-90. Recognizing that the scenario was dynamic and 

unfolding in real-time, merely acknowledging the potential for a Frye

4 As the majority opinion highlights in citing United States v. Albarran, 

Frye hearings involve distinct procedures, where the “court strives to 

ensure that a full and accurate communication on the subject has occurred” 

so a defendant “fully underst[ands] the terms of the plea agreement that he 

[is] rejecting.” 943 F.3d 106, 113 & n.5 (2d Cir. 2019); Op. at 13–14 n.2. But 

Graham did not have a Frye hearing like the defendant in Albarran, where

before the defendant stated on the record that he was rejecting the 

government’s proposed plea agreement, the government reviewed the 

specific terms of the proposed plea agreement, identified the elements to 

which the defendant would plead guilty, listed the rights the defendant 

would forfeit by entering a guilty plea, and described the Sentencing 

Guidelines’ application to the defendant’s conviction. Id. at 113. And 

during the Frye hearing in Albarran, the defendant was present when the 

parties discussed the evidence that they would present and “each side 

candidly acknowledged the strengths and weaknesses of its case.” Id. The 

district court here conducted no such hearing or inquiry with Graham, and 

thus could—and in hindsight should—have done more. See Op. at 17 n.8.
7

issue does not provide the groundwork for finding waiver. See 

Arrington, 941 F.3d at 43 (noting that the key for waiver is not whether 

“a trial judge recited any particular litany of questions[,]” but whether 

“the defendant appreciated his predicament and made a properly 

informed choice”); see also United States v. Jenkins, 943 F.2d 167, 176 (2d 

Cir. 1991) (referring to “the common sense notion that the existence 

of a knowing and intelligent waiver inevitably depends upon the 

particular facts and circumstances surrounding each case, including 

the background, experience, and conduct of the accused” (cleaned 

up)). 

Once a potential Frye issue arose, to ensure any Frye right was 

knowingly and intentionally waived, the district court should have 

done more than flag it and rest on the assurance of the allegedly 

ineffective counsel.

5

 Besides the statements to former counsel, there

was no further inquiry of whether Graham wanted the plea offer 

ordered reopened (or if she even knew she could request that), or 

whether there was a knowing and voluntary waiver of her Frye right. 

Indeed, even when counsel for the government addressed waiver for 

the first time after the Court raised it during oral argument, counsel 

stated, “I don’t know if I would style it as a knowing relinquishment.” 

Oral Arg. Audio Recording at 17:20–28. Without more, the 

5 The district court stated that it “just want[ed] to make sure that 

those decisions [concerning the expired plea agreement] are made 

intelligently and knowingly, and that there is no basis for [Graham] later 

. . . [to] say[] that she was not aware that a plea offer was made and the 

consequences of it, of either accepting or denying the plea offer.” Joint 

App’x at A-91–A-92. Counsel—who admitted on the record to not having 

timely shared the plea agreement with his client—responded that he had 

“accomplished that.” Id. at A-92. This is an important point, and the 

majority opinion does not adequately engage with it: the district court’s 

explanation and the subsequent assurance came from former trial counsel 

who—moments later—was replaced. 
8

government has not sufficiently demonstrated the purported waiver 

was knowing and intelligent. 

B.

Waiver also cannot be found here because it does not appear, 

by a preponderance of the evidence, that Graham made a strategic, 

calculated decision to waive her Frye right. “[W]aiver can result only 

from a defendant’s intentional decision not to assert a right.” Spruill, 

808 F.3d at 597. “As a corollary, if a party consciously refrains from 

objecting as a tactical matter, then that action constitutes a true 

‘waiver[.]’” United States v. Cosme, 796 F.3d 226, 231–32 (2d Cir. 2015) 

(internal quotation marks omitted). “[C]ourts applying [the] waiver 

doctrine have focused on strategic, deliberate decisions that litigants 

consciously make.” United States v. Dantzler, 771 F.3d 137, 146 n.5 (2d 

Cir. 2014). While the Court has declined to make a “tactical benefit a 

prerequisite to identifying waiver[,]” it is certainly “evidence that the 

relinquishment of a right was intentional[.]” Spruill, 808 F.3d at 599. 

We have accordingly declined to hold an argument waived when 

there was “nothing in the record suggesting . . . a strategic, calculated 

decision[.]” Dantzler, 771 F.3d at 146 n.5. 

The majority opinion concludes Graham waived her Frye right

because she chose to take her case to trial. But this high-level 

characterization dismisses the complete picture of Graham’s 

circumstance. The court replaced allegedly ineffective counsel with 

new counsel, and Graham went to trial where she sought an acquittal 

largely on the basis that she lacked the requisite intent.6 Advancing 

6 Graham’s defense strategy focused on the contention that she 

lacked the requisite intent to defraud and believed in good faith in the 

legality of her actions—to the point where the government sought a 

conscious avoidance charge. 
9

to trial with the hope and belief that a jury would acquit, without 

requesting the government reopen its plea offer, does suggest that 

Graham would not have taken the plea had she been properly 

advised—which speaks to the lack of requisite prejudice, not waiver.

7

 

See Lafler, 566 U.S. at 164 (requiring the defendant show that “but for 

the ineffective advice of counsel there is a reasonable probability that 

the plea offer would have been presented to the court (i.e., that the 

defendant would have accepted the plea . . . .)”). This case would not 

7 Of course, a defendant advancing to trial after learning of a plea 

offer does not necessarily mean that the defendant would not have accepted 

a plea offer, had they been properly advised by counsel. The Court’s usual 

practice to defer resolution of such claims on direct appeal to allow further 

development of the evidentiary record is a sound one. For this case, 

however, we can resolve the issue now because Graham’s assertion of 

prejudice is not “accompanied by some ‘objective evidence’” and instead 

relies “solely on [her] own, self-serving statement post-verdict that [she] 

would have accepted a more favorable plea deal.” United States v. Bent, 654 

F. App’x 11, 13 (2d Cir. 2016) (summary order). 

Among other facts, the district court informed Graham’s new 

counsel that there was an expired plea offer that the government indicated 

could come back on the table if Graham indicated an interest in pursuing it. 

At the final pretrial conference, Graham’s counsel did not dispute the 

government’s characterization that there had been some discussions of 

“resolving the matter short of trial,” but that it was the government’s 

understanding that Graham was “not seeking resolution, so [the 

government had] not made any new offers, nor [had it] been asked to 

reopen any offers.” Joint App’x at A-172. Counsel merely stated that he 

was “ever hopeful of resolving [this] matter,” but expected to be before the 

jury the following week. Id. This suggests Graham’s lack of interest in the 

original plea offer, such that Graham is not able to show there was a 

reasonable probability she would have accepted the plea offer. The 

majority opinion instead interprets these events as evidencing waiver. As 

I discuss supra Section I, I believe that approach is inappropriate and 

unnecessary here, given the presumption against waiver of constitutional 

rights and that this Court raised waiver sua sponte, to the government’s 

initial skepticism.
10

result in the “windfall” scenario Lafler warns of, for it does not present 

a credible worry that a defendant could seek a tactical benefit by 

waiting to raise a Frye claim on appeal where ineffective counsel 

during plea bargaining was replaced before trial. See id. at 170, 172. 

Here, there simply is “nothing in the record suggesting . . . a strategic, 

calculated decision” to decline a possible reinstatement of the 

government’s plea offer, only to potentially resurrect the claim on 

appeal after losing at trial—or even sandbag the government on 

appeal. Dantzler, 771 F.3d at 146 n.5. The majority thus should not 

have found waiver.

C.

By finding waiver, the majority opinion fails to grapple with

the practical realities of the situation Graham faced in the time 

between the April 10, 2019 hearing (where the district court appointed 

new counsel), and the May 31, 2019 final pretrial conference (where 

the district court asked “whether or not the parties have discussed 

any possibility of resolving this [case] short of trial?”). Joint App’x at 

A-171–A-72. The district court made clear during the April 10 

conference that it “intend[ed] to stick to th[e] trial schedule that [it] 

already set.” Id. at A-95. And while it did move the trial date back by 

approximately one month to allow newly appointed counsel to get up 

to speed, the district court set the trial date as commencing only two 

months from the appointment. During the April 10 conference, the

government—at several points—made clear that the “plea offer has 

technically expired” and that it doesn’t “bid against [itself]. That is, 

we don’t keep on making new plea offers.” Id.; see also id. at A-96. The 

government also explained that “the closer we get to trial, the less 

flexible [the government is] likely to be to the extent that we have 
11

flexibility in plea negotiation. . . . [T]he longer she waits, the less likely 

it is that it will benefit her[.]” Id. at A-95–A-96.8

As already explained, Graham’s new counsel was preparing for 

a two-week trial—on two months’ notice—which entailed learning 

the record and communicating with former trial counsel about the 

case. Raising concerns about deficiencies regarding former counsel’s 

performance for the purpose of requesting a Frye remedy would have 

hindered new counsel’s ability to receive information and context

from former counsel. Cf. Massaro v. United States, 538 U.S. 500, 506 

(2003) (explaining challenges for appellate counsel when preparing 

an appeal that also attacks actions of trial counsel). Additionally, 

requiring new counsel to raise an ineffective assistance of counsel 

claim immediately after appointment would create a “perverse 

incentive[]” to raise potentially frivolous issues just to avoid 

subsequent allegations of waiver, “creat[ing] inefficiencies[.]” Id. at 

506–07. Massaro evaluated a rule of “procedural default” to 

determine it is “preferable” to bring ineffective assistance of counsel 

claims under 28 U.S.C. § 2255 instead of by direct appeal. Id. at 504. 

The same considerations are applicable to declining to find waiver 

because of the unique nature of raising an ineffective assistance of 

counsel claim.

III.

The majority opinion’s finding of wavier here appears to be a 

solution in search of a manufactured problem. Indeed, the majority 

8 The government restated the same sentiment on several more 

occasions throughout this hearing, including that “[the offer] has been 

taken off the table, . . . ” Joint App’x at A-96, and “[the government has 

considered] discussing alternative ways of structuring the plea, but again, 

the longer she waits, the less likely it is that it will work out[,]” id. 
12

opinion searches for a solution when waiver was not even advanced 

by the government until it was ordered to brief it. Even so, the 

government has not established by a preponderance of the evidence 

that Graham knowingly and voluntarily waived her Frye right. 

Nonetheless, I respectfully concur that we should reject her claim. 

Graham’s ineffective assistance claim may be considered, and 

rejected, under existing precedent, because Graham has not 

demonstrated there was a reasonable probability that she would have 

accepted the plea offer. See Lafler, 566 U.S. at 164.