Last week, in Weingarten v. United States, the Second Circuit denied the Section 2255 petition of a convicted child sex offender, who claimed that his counsel had rendered ineffective assistance by failing to challenge the timeliness of the Government’s indictment. The panel—consisting of Judge Wesley, who authored the opinion, as well as Judge Parker and Judge Droney—unanimously concluded that the timeliness issue was too complex, and too uncertain, to support a finding that trial counsel made a “significant and obvious” error by declining to raise it.
The underlying facts are not sympathetic. The indictment arose from Weingarten’s sexual abuse of his daughter, “Jane Doe,” which occurred between 1991 and 1997. In 1997, when Doe was sixteen years old, he took her on a month-long trip from their home in Israel to Brooklyn, during which time he sexually abused her. Weingarten’s abuse eventually came to the attention of federal authorities, and in 2008 he was indicted in the Eastern District of New York for transporting a minor in foreign commerce for the purpose of engaging in criminal sexual activity, in violation of 18 U.S.C. § 2423.
In 1997, when Weingarten committed the offense, the relevant statute of limitations, 18 U.S.C. § 3283, provided that a defendant could be prosecuted for a federal offense involving child abuse within either (1) the default five-year limitations period for federal offenses; or (2) until the child reached the age of 25, whichever occurred later. If that provision had remained in effect, the statute of limitations on Weingarten’s offense conduct would have run out in 2006, which was the year Doe turned twenty-five. Instead, however, Congress amended the provision in 2003, to provide that the statute of limitations on offenses involving child abuse extends throughout the entire life of the child. See 18 U.S.C. § 3283.
This left Weingarten in a gray area. If the statute applied as it existed when Weingarten committed his offense, the Government’s 2008 indictment was untimely. But if the 2003 amendments applied to the 2008 indictment, it was timely. Despite this tension, Weingarten’s counsel did not raise the issue in the district court, instead explicitly conceding the timeliness of the indictment. In his § 2255 petition, Weingarten argued that this concession amounted to ineffective assistance.
The panel disagreed. In deciding whether a failure to raise an argument constitutes ineffective assistance, the Second Circuit considers whether the oversight was “significant and obvious.” Here, the panel concluded, there was no dispute that the oversight was “significant.” But it held that the argument that Weingarten’s counsel had forgone—that the pre-2003 statute of limitations applied to his 2008 indictment—was far from “obvious.”
In order to make that argument, the panel reasoned, Weingarten would have had to establish that the 2003 amendment was not retroactively applicable. This in turn, would have required him to show that (1) the language of the statute did not evince a clear intent for it to apply retroactively; and (2) applying the statute to his 1997 offense conduct would create “presumptively impermissible” retroactive effects under the Ex Post Facto clause. The second part of this inquiry, in particular, is “murky,” requiring an examination of whether it “increases a defendant’s liability for past conduct.” The panel noted that amendments to statutes of limitations do generally “increase a defendant’s liability for past conduct” when they retroactively revoke a defendant’s vested statute-of-limitations defense, but that is not necessarily the case when, as here, the statute of limitations is still running at the time of the amendment.
All of these nuances, the panel concluded, made it impossible to find that Weingarten’s counsel’s failure to raise a statute-of-limitations defense constituted a “significant and obvious” error. In a briefer discussion, the panel also rejected Weingarten’s alternative argument that his counsel should have argued for the application of the default five-year statute of limitations for federal offenses. Weingarten argued that the limitations period in § 3283 was limited to offenses involving child abuse, and that although his offense conduct involved child abuse, the statute under which he was convicted did not, by its terms, necessarily involve the abuse of children. The panel held that it was not clear at the time of Weingarten’s conviction, and is not clear today, that § 3823 applies only to offenses that relate “categorically” to the abuse of children, no matter the particular offense conduct. So this argument, too, was not sufficiently “obvious” that counsel’s failure to raise it amounted to ineffective assistance.
The question of why trial counsel elected not to present this argument is a good one to ask. In some cases, defense counsel must pick one path even as it forecloses other possible paths. For example, a decision to assert a possessory interest over property in connection with a suppression motion may limit the defendant’s ability to present certain defenses at trial. Here, the defendant did make a motion to dismiss challenging his indictment on a number of grounds. In an affidavit, Weingarten’s counsel stated that he did not raise the argument because it was “tenuous” and would distract from the other arguments presented. This may have been logical and to be sure counsel is not required to raise every non-frivolous argument to the district court. But given that Weingarten faced a very long sentence—ultimately receiving 30 years’ imprisonment—it may have made sense for his attorney to have raised every claim that might defeat his indictment, even if the claim was something of a long shot. Here, the decision not to raise the claim, being found reasonable by the Circuit, will prevent Weingarten from ever raising the claim.