Evidentiary Hearing Required to Determine if Defendant Agreed to Concede Guilt on Some Counts

US v. Hashimi: In the beginning, Hashimi was charged with two drug counts related to a drug conspiracy and two counts related to the assault and kidnapping of his wife. He had a poor relationship with his counsel, who assured the district court (in the context of motions for new counsel) that Hashimi had “been presented with numerous plea offers and had rejected them all of his own volition.”

At trial, after the close of evidence, counsel raised the possibility of Hashimi pleading guilty to the two kidnapping-related counts while taking the drug counts to the jury. The Government rejected that idea, its position being Hashimi could either plead guilty to all four counts or to none. The district court agreed. “Hashimi never confirmed or denied his desire to plead guilty to any of the charges against him.” During closing argument, counsel then conceded that Hashimi had “assaulted and kidnapped his ex wife,” but was not guilty of the drug charges. “It did not work” and Hashimi was convicted on all counts and sentenced to 300 months in prison.

On direct appeal, Hashimi argued (among other things) that he had been denied effective assistance of counsel when his attorney conceded his guilt on two counts “during closing argument without Hashimi’s consent.” The court affirmed the convictions, holding that there may have been strategic reasons for such a decision and therefore “counsel’s ineffectiveness does not appear on the face of the record” and Hashimi would need to raise it in a §2255 motion. Months later, the Supreme Court in McCoy v. Louisiana, “added a new item to the list of fundamental decisions reserved to the client,” namely “the decision to maintain innocence at trial.” Hashimi’s case was remanded in light of McCoy, but the Fourth Circuit again affirmed his conviction, holding that the record was silent as to “whether Hashimi consented or objected to his counsel’s concession of guilt.”

Direct appeal complete, Hashimi filed a §2255 motion in which he asserted both that his counsel failed to consult with him about his case and failed to obtain his consent to concede. The district court denied the motion without holding an evidentiary hearing, concluding that Hashimi had asserted “only that he did not give permission for a concession of guilt – not that he had expressly denied that permission.” Without that, counsel’s conduct did not run afoul of McCoy.

On appeal this time, the Fourth Circuit vacated the denial of Hashimi’s §2255 motion. Noting that, without an evidentiary hearing and findings, it was required to accept Hashimi’s assertions as true, the court concluded that he did make out a violation of McCoy, for two reasons. First, McCoy requires “consultation between defense counsel and client, in which defense counsel may try to persuade a client that conceding guilt is or has become the best course.” Per Hashimi’s motion, no such consultation occurred in his case. That alone would require a new trial. Second, however, the court rejected the district court’s parsing of Hashimi’s assertion as showing only a lack of permission for a concession, not a denial of permission. The record, as it stood, showed as least a “possibility” that “Hashimi did expressly deny permission for the concession.” As a result, the case was remanded to the district court for an evidentiary hearing.