UNITED STATES of America, Appellee, v. Lyubov GROYSMAN, Defendant–Appellant.
Before KEARSE, WINTER, and WESLEY, Circuit Judges. Michael H. Warren, Assistant United States Attorney, Brooklyn, N.Y. (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Amy Busa, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee. Maurice H. Sercarz, New York, N.Y. (Sercarz & Riopelle, New York, NY), for Defendant–Appellant.
Defendant Lyubov Groysman (or “Groysman” or “Lyubov”) appeals from a judgment entered in the United States District Court for the Eastern District of New York, following a jury trial before Sterling Johnson, Jr., Judge, convicting her of conspiring to commit health care fraud, in violation of 18 U.S.C. § 1349, and conspiring to commit money laundering, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1)(A)(i), and 1956(a)(1)(B)(i). Groysman was sentenced principally to 97 months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to forfeit $100,000. On appeal, she contends principally that the main government witness gave testimony that included inadmissible hearsay and inadmissible opinions, and was allowed, without personal knowledge, to provide the foundation for the admission of seven government exhibits (“GX”) that were not admissible under the Federal Rules of Evidence and that were inaccurate and misleading. The government concedes these errors but contends that they either were harmless or were not so harmful as to meet the standard for plain error. Finding admission of the challenged exhibits and much of the main government witness's testimony seriously prejudicial error, we conclude that Groysman's conviction should be vacated and her case remanded for a new trial. In light of this decision, we need not reach other arguments made by Groysman on this appeal.
The present prosecution arose out of an investigation by the Federal Bureau of Investigation (“FBI”), the Department of Homeland Security (“DHS”), the Internal Revenue Service (“IRS”), and the New York City Police Department (“NYPD”) into schemes by suppliers of durable medical equipment (or “DME”), such as neck braces, knee supports, and bed boards prescribed for patients, to submit fraudulent reimbursement claims to insurance companies. In this type of scheme, a DME retailer would procure from a wholesaler an invoice that bore inflated prices for the listed equipment and give the wholesaler a check for the total; the retailer would bill an insurance company for the inflated total; and the wholesaler would return to the retailer part of the difference between the stated price and the actual amount paid by the retailer.
The government's investigation resulted in the June 2010 arrests and indictment of numerous persons, including Groysman. Groysman and one codefendant, Vladimir Khmelnitski, were tried together on the two-count indictment charging health care fraud conspiracy and money laundering conspiracy. At their 11–day trial, the government called nine witnesses whose testimony related to Groysman (or to the companies by which she was employed), including two cooperating witnesses (the “cooperators” or “informants”): Grigory Groysman (or “Grigory G.”), who is not related to Lyubov Groysman, and Vadim Yuzovitskiy. The government's main witness was DHS Special Agent Semyon Ginzburg, who had run the latter stages of the investigation and who testified on the first four days of trial attended by the jury.
Agent Ginzburg testified that he became involved in the health care fraud investigation into DME companies in January 2010. Prior to his involvement, Grigory G. and Yuzovitskiy, DME wholesalers who had long been engaging in fraudulent schemes, had learned that a participant in their DME schemes had been arrested, and they had voluntarily surrendered to federal authorities and agreed to assist in the investigation. After Ginzburg became involved, he conducted a “street operation” by having the cooperators—monitored by himself and others—continue their dealings with suspects but with the goal of collecting evidence for the authorities.
The conversations between cooperators and suspects were usually in Russian. (See, e.g., id. at 68.) Ginzburg testified that his native language was Russian; that he was raised in the former U.S.S.R. until he came to the United States at about age 18; that his primary language at home and in social situations has remained Russian; and that he had been trained to translate between Russian and English and had passed tests given by the FBI, NYPD, and DHS for such translations. (See id. at 38–39.) Ginzburg testified that he reviewed translations of the cooperators' conversations with the suspects, and he “personally transcribed at least the final transcriptions of ․ [the] meetings and telephone recordings.” (Id. at 60.) At trial, the government introduced transcripts of recorded conversations between Groysman and Grigory G. or Yuzovitskiy, as well as videotapes of some of their meetings.
Ginzburg's testimony at trial with respect to Groysman included the following. Groysman, along with codefendant Grigory Branfenbrener (“Branfenbrener”) who had pleaded guilty prior to trial (see Government brief on appeal at 4 n.2), worked at two DME retail companies, first Leica Supply Inc. (“Leica”), and then EGA. Ginzburg testified that Groysman or Branfenbrener would give one of the cooperators a document that the government dubbed a “go-by” (see, e.g., Tr. 335; see also id. at 544 (“go-buy”)). The go-by listed the types of equipment that EGA supposedly wanted to buy from the wholesaler, the quantity of each item, and a highly inflated price per item. For example, bed boards that cost $10–$12 were listed as costing $92; home whirlpools that cost $30–$32 were listed as costing $380. (See, e.g., id. at 223, 244–45.) Ginzburg instructed the cooperators to prepare invoices to match the information EGA provided in the go-bys.
The go-bys were generally accompanied or followed by EGA “checks [that] would come from Ms. Groysman and Gregory [sic ] Branfenbrener.” (Id. at 66.) The EGA checks were deposited into an account of one of the cooperators' fictitious wholesale companies, usually one named “Delazoom.” Delazoom then issued a corresponding check to a shell company, and that check was cashed. After the check casher retained a small fee, all or most of the rest of the cash was divided among the defendants and their retail companies and the cooperators. In some instances, a small portion of the money would be used to purchase equipment.
Ginzburg testified that he monitored the operation in part by meeting with the cooperators before and after their face-to-face meetings with the suspects (see Tr. 68), and by controlling the deposits of the checks, the withdrawal of cash, and the “delivery of the cash to the defendant” (id.). Ginzburg attended none of the cooperators' meetings at EGA and could not see through the windows. (See, e.g., id. at 195–96, 256.) The only witnesses who had “actual knowledge of what [Groysman] did” were “the informants” (id. at 356–57); Ginzburg's knowledge of what took place at those meetings came from what he could hear through the audio equipment, from what he learned by reviewing the recordings, and from “the debriefing of the informant[s]” (id. at 196).
Ginzburg testified that EGA would bill insurance companies for the items it claimed to have purchased at the prices shown on the invoices provided by the cooperators and that the insurance companies would then reimburse EGA for the DME. The government introduced a chart, GX 75, prepared at the direction of Ginzburg, that provided a general summary of the fraudulent health care scheme by giving a “visual description of the scheme that EGA was running with the informant” (Tr. 303). Circles on the chart contained the names or titles of relevant entities or documents, and arrows pointed from circle to circle to show the movements of documents and checks. As described by Ginzburg, GX 75 showed that “[t]he go bys were received predominantly from defendant Groysman to Delazoom. The false invoices were generated based on those go bys and brought back to the defendant Groysman.” (Tr. 307.) Ginzburg testified that after Groysman gave the cooperators EGA checks payable to Delazoom, “the resulting cash would go back minus the kickback and minus any cost of DME predominantly to Grigory Branfenbrener and at least on one occasion the defendant Groysman.” (Id.) GX 75 also suggested that EGA's inflated claims to the insurers were paid as submitted. The exhibit was admitted in evidence over Groysman's objection that, inter alia, that suggestion was inaccurate and misleading.
Q. Based on the street operation, based on the recorded meetings and telephone calls that you obtained and preserved in this investigation, what role did [Groysman] play in EGA office between January and June of 2010?
A. She provided the go-buys for the false invoices, received false invoices based on those go-buys, provided checks and received cash at least once.
Grigory G. testified that EGA and Leica, the companies that employed Groysman, were retailer clients of Grigory G. and Yuzovitskiy in the DME scheme. Grigory G. testified that he, either alone or with Yuzovitskiy, drove to the office of EGA or Leica dozens of times; however, usually Yuzovitskiy went into the office alone. Grigory G. went into the EGA office only six or seven times. When Grigory G. himself went in, “everything” he received with respect to the fictitious invoices came “from Lyubov Groysman” (id. at 659).
Grigory G. testified that when he returned cash to EGA, the amount returned was the amount of the check the cooperators had received from EGA minus five percent as the standard fee for the entity that cashed the check, a six percent fee for the cooperators, and the cost of DME actually supplied to EGA, if any. (See id. at 608–09; see also id. at 734 (similar testimony by Yuzovitskiy as to the division of the scheme's proceeds).) Thus, where no equipment was actually purchased, EGA would receive in cash 89 percent of the amount it had given a cooperator.
LG: Thank you, uh-huh. Yes.
GG: It has this and that.
Q. What were you referring to when you said “and this and that”?
Q. Do you recall what the purpose of the cash was?
A. It was the cash for the check that had been given prior to that.
Q. Did you ever, ever deliver cash to Lyubov Groysman?
A. I don't remember if it ever happened. But most of the time I would leave it in the drawer, in the Branfenbrener desk drawer. But I don't remember that I gave cash directly to Lyubov.
The government's other trial witnesses whose testimony related to EGA were an IRS special agent and an FBI special agent who had analyzed documents in connection with the health care fraud investigation; an IRS special agent who was involved in executing a search warrant at EGA's office; two investigators employed by insurance companies; and a DME wholesale distributor. None of these witnesses provided evidence about Groysman personally.
Groysman called three witnesses in her defense, including two character witnesses. Her fact witness was Yelena Panchenko, a longtime friend who had been a coworker at EGA for six or seven months, beginning in 2009 and ending in June 2010 when the arrests occurred. Panchenko worked part-time at EGA as a clerk, doing billing.
Panchenko testified that Groysman was not an owner of EGA; “E” “G” and “A” were the initials of the first names of the three owners, including Grigory Branfenbrener. She testified that Groysman, like Panchenko, was a clerk at EGA (see Tr. 1211), and she believed Groysman too worked part-time (see id. at 1210). Groysman “was doing the mail” (id. at 1209), sorting it and sometimes responding to insurance company requests for additional information (see id. at 1209–10).
We put on two cooperating witnesses. The government witnesses Grigory Groysman came first and then Vadim Yuzovitskiy.
Now let's talk for a second about what those cooperators are not. They are not boy scouts. They are not altar boys. They're criminals. They are individuals who came forward to the government and identified themselves as having been part of this scheme and as furthering this scheme and they wanted to cooperate, motivated in their own self interest of hoping to some day get leniency. They're not angels.
․ I said, you know, they weren't angels, but what they were and what they are was consistent, credible and corroborated.
I mean, they went into these meetings and they essentially operated as walking, talking, videographers. I mean, their video was no Steven Spielberg most of the time, but we have on tape documents that are incriminating, documents that are furthering the fraud, statements that are made by the defendants in furtherance of the fraud over and over and over again.
You can trust the testimony that came from Vadim Yuzovitskiy and Grigory Groysman because it was consistent and it was corroborated and every time they went into a meeting with one of the defendants, they met with an agent before they went in, they met with an agent when they came out and you heard from that agent. So you can trust that testimony.
Groysman was convicted on both of the counts with which she was charged. She was sentenced as indicated above.
On appeal, Groysman contends principally that Ginzburg's testimony was replete with inadmissible hearsay, as he recounted factual matter as to conduct by Groysman that he could not have learned except from statements by the cooperators; that Ginzburg was improperly allowed to give his opinion as to Groysman's culpability; that Ginzburg was allowed to give foundation testimony for the admission of documents as to whose accuracy he had no personal knowledge; and that seven charts introduced by the government showing go-bys from Groysman to Yuzovitskiy or Grigory G.—six of which indicated cash was given by Yuzovitskiy or Grigory G. to Groysman—were not admissible under the Federal Rules of Evidence and were inaccurate and misleading. Groysman concedes that some of her present objections to Ginzburg's testimony or to those charts were not made at trial. She contends, however, that the errors to which she objected were not harmless and that those to which she did not previously object warrant reversal on the ground of plain error. We conclude that given the serious impropriety of the prosecution's use of this witness in light of the record as a whole, the evidentiary errors of which Groysman complains on appeal—which, along with others, are admitted by the government as described below—meet the standard for plain error review and require that Groysman be given a new trial.
Preliminarily, we note the principal differences between harmless-error analysis and plain-error analysis. In conducting harmless-error analysis, applicable when an error claimed on appeal has been properly preserved in the district court, we consider “(1) the overall strength of the prosecutor's case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such evidence was cumulative of other properly admitted evidence.” United States v. Gomez, 617 F.3d 88, 95 (2d Cir.2010) (internal quotation marks omitted). Conducting harmless-error analysis, we will reverse a conviction on the basis of improperly admitted evidence “only if [the] error affects a substantial right.” United States v. Garcia, 413 F.3d 201, 210 (2d Cir.2005) (internal quotation marks omitted). The Federal Rules of Criminal Procedure (“Criminal Rules”) provide that any error “that does not affect substantial rights must be disregarded.” Fed.R.Crim.P. 52(a). “An evidentiary error affects substantial rights if it had a substantial and injurious effect or influence on the jury's verdict.” United States v. Garcia, 413 F.3d at 210 (internal quotation marks omitted). “An error is harmless if we can conclude with fair assurance that the evidence did not substantially influence the jury.” Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir.2010) (internal quotation marks omitted). With respect to harmless-error analysis, the government bears the burden of proof. See, e.g., United States v. Kaiser, 609 F.3d 556, 573 (2d Cir.2010).
Johnson v. United States, 520 U.S. 461, 466–67 (1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993) (other internal quotation marks omitted)). An error affects substantial rights when it is prejudicial—that is, when there is a “reasonable probability” that the error affected the outcome of the trial. United States v. Dominguez Benitez, 542 U.S. 74, 81–82 (2004). The burden of meeting the above criteria for plain-error review is on the defendant. See, e.g., id. at 82. The government may point to parts of the record in an effort to counter any ostensible showing of prejudice the defendant may make. See, e.g., United States v. Young, 470 U.S. 1, 16 (1985).
Groysman challenges three aspects of Agent Ginzburg's testimony: (1) Ginzburg's incorporation of hearsay from the cooperators who later testified at trial, (2) the inadequate foundation during his testimony for the admission of summary charts, and (3) Ginzburg's inappropriate opinion testimony relating to Groysman's role in the charged fraudulent scheme․ While Groysman is correct that the government improperly admitted [sic ] several aspects of Ginzburg's testimony, ultimately, as explained below, any error in the admission of this testimony was harmless in light of the strength of the other evidence offered at trial.
First, to the extent that Ginzburg described what occurred at meetings inside EGA offices, he was conveying information that he learned from debriefing the cooperators and was thus conveying inadmissible hearsay. Fed.R.Evid. 801(c)(1).
Second, to the extent that Ginzburg interpreted recorded conversations involving the cooperators, Groysman and Branfenbrener, or opined upon Groysman's role in the charged conspiracy, he was providing inadmissible opinion testimony. United States v. Garcia, 413 F.3d 201, 210 (2d Cir.2005); United States v. Grinage, 390 F.3d 746, 749–51 (2d Cir.2004) (lay opinion); United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir.2003) (expert opinion).
Further, as counsel properly objected to all but one of the charts below, to the extent that Ginzburg provided a foundation for the admission of Government Exhibits 59 through 65, he had no personal knowledge of many of the matters conveyed on those exhibits. Compounding the lack of foundation for the admission of the summary exhibits, as counsel had further objected below, the exhibits contained inaccurate and misleading information, further rendering them inadmissible. United States v. Citron, 783 F.2d 307, 316 (2d Cir.1986).
More fundamentally, however, these charts were not “summary charts” as contemplated by Fed.R.Evid. 1006. Government Exhibits 59 through 65 do not summarize “voluminous writings, recordings, or photographs.” Id. Instead they appear to be pictorial representations of hearsay testimony offered through Agent Ginzburg and of events and transactions later described by the two cooperators. As such, the exhibits are no more admissible than any other extrinsic writing memorializing the substance of a witness's testimony. FN27.
27. In addition, although not raised in Groysman's brief, it appears that GX 75, a chart that generally summarized the scheme, was erroneously admitted for similar reasons and was also inaccurate to the extent it suggested that all claims that were submitted by EGA were paid by insurance companies without any rejections or inquiries, as counsel had objected below. (T 303–06). Using GX 75, Ginzburg described, without objection, a summary of the scheme, including opining that Groysman had provided the “go-bys” to Delazoom, which prepared false invoices on the basis of the “go-bys,” which, in turn, were delivered to Groysman. (T 307). Ginzburg further indicated that after the cooperators cashed the checks received from EGA, they returned the cash, less their fee and expenses, primarily to Branfenbrener but at least once to Groysman. (T 307). While this testimony improperly relayed hearsay from the cooperators, it too was harmless for the reasons explained below.
Further, these depictions may have also constituted a degree of improper bolstering of the cooperators.
The third plain-error analysis factor, whether the errors affected Groysman's substantial rights, i.e., whether there is a reasonable probability that, absent the erroneously admitted evidence, the jury would not have found Groysman guilty, is not conceded by the government, but we conclude for the reasons that follow that that factor too is established. “The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Dominguez Benitez, 542 U.S. at 83 n.9. “The question is not whether the defendant would more likely than not have received a different verdict ․ but whether ․ [despite the error] he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's [error] undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (internal quotation marks omitted).
(id.) and that “[t]hus, the ‘inadmissible aspects of [Ginzburg's] testimony, viewed in relation to the prosecution's formidable array of admissible evidence, was merely corroborative and cumulative’ “ (id. (quoting United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir.2002))).
On the contrary, we find the government's entire strategy was dependent on, and tainted by, the egregious errors that the government now admits. These errors, discussed in more detail below, so infected the fairness of the trial that Groysman's conviction would have been overturned in all but perhaps the most airtight of cases. Specifically, the prosecution chose to lead with Ginzburg's testimony, which gave a coherent, and superficially reliable, narrative of the government's version of Groysman's participation in the fraudulent scheme. It was the equivalent of an opening argument or summation by the prosecution but was presented as evidence for the jury to consider. The charts, graphically displaying purported “facts” Ginzburg had “verified,” compounded the error. With this in place, the jury was all but invited to fall asleep during the admissible but messy evidence of wrongdoing, i.e., the garbled audio-video evidence and credibility-challenged testimony of the cooperators.
Before delving into the individual weaknesses of the government's case, we issue a word of caution: The errors admitted to in this case bordered on the structural, and the government should not hope to overcome similar lapses in the future by the marshalling of a slightly stronger case. See United States v. Yakobowicz, 427 F.3d 144, 150, 154 (2d Cir.2005) (Interim summations that the prosecution used to “not only state[ ] what the particular witness ․ said but also argue[ ] the inferences to be drawn by the jury” constituted “a structural error requiring reversal.”). Viewed in the context of the trial strategy as a whole, Ginzburg's testimony was used to essentially vouch for the admissible evidence offered by the prosecution. This tactic, whether engaged in by a prosecutor or other government agent, has been repeatedly condemned. See, e.g., United States v. Modica, 663 F.2d 1173, 1178–79 (2d Cir.1981) (“This Court has repeatedly warned prosecutors not to vouch for their witnesses' truthfulness,” and “[t]he policies underlying this proscription go to the heart of a fair trial․ [W]hen the prosecutor conveys to the jurors his personal view that a witness spoke the truth, it may be difficult for them to ignore his views, however biased and baseless they may in fact be.”); United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (“Attorney statements vouching for the credibility of witnesses are generally improper because they ‘impl[y] the existence of extraneous proof’ “ (quoting United States v. Rivera, 22 F.3d 430, 438 (2d Cir.1994))); United States v. Young, 745 F.2d 733, 766 (2d Cir.1984) (Newman, J., concurring) (The “risk [of undue reliance on the testimony of a government agent] arises because the jury may infer that the agent's opinion about the criminal nature of the defendant's activity is based on knowledge of the defendant beyond the evidence at trial. The risk is increased when the opinion is given by ‘the very officers who were in charge of the investigation.’ “ (quoting United States v. Sette, 334 F.2d 267, 269 (2d Cir.1964))); United States v. Scop, 846 F.2d 135, 142 (2d Cir.1988) (A government investigator's testimony that was “based on his positive assessment of the trustworthiness and accuracy of the testimony of the government's witnesses” improperly “opine[d] as to the credibility of the testimony of other witnesses at the trial.” “The credibility of witnesses is exclusively for the determination by the jury․”). The cumulative and strategic effect of the inadmissible evidence proffered by the government in this case, even separate from other, individual deficiencies, thus went to the heart of a fair trial.
From the outset of the prosecution, Groysman's claim was that she had merely been following instructions given by Branfenbrener, without knowing of or intending to participate in the fraudulent scheme. As indicated in Part I.A. above, Ginzburg testified that Groysman took this position when he interviewed her following her arrest. At trial, Groysman's attorney's opening statement argued that the invoices were erroneous “unbeknownst to [Groysman]” (Tr. 23) and that there would be no evidence that Groysman “received money or saw money being exchanged” (id. at 25). And as set out in Part I.D. above, Groysman called as a witness Panchenko, who worked part-time at EGA during the entire period of Ginzburg's street operation and who testified that the details on the lists that EGA gave Yuzovitskiy for his preparation of invoices were dictated by Branfenbrener. Thus, the government set out to prove that Groysman was a knowing participant in the fraudulent scheme by, in part, presenting evidence that she received cash kickbacks. Most of the evidence that the government caused to be admitted for this purpose was inadmissible; and, as discussed below, the single bit of admissible direct evidence that Groysman received such a cash kickback—testimony by Grigory G.—was not corroborated.
The government also offered GX 59–65 as “summaries regarding the EGA interactions with the undercover operation” (Tr. 195) on various dates, and six of those seven charts indicated that the cash derived from the fictitious invoices and EGA checks went to Groysman and Branfenbrener or to Groysman alone. These charts were prepared at the direction of Ginzburg, and his testimony provided the only foundation for their admission, despite the fact that “he had no personal knowledge of many of the matters conveyed on those exhibits” (Government brief on appeal at 42)-which suffered the additional “fundamental[ ]” flaws that they “contained inaccurate and misleading information” and were, in any event, not the sort of “ ‘summary charts' “ whose admission is authorized by the rules of evidence (id.).
VY: Will you give me the money or not? ․ I am leaving.
LG: I am giving it. And when will you bring ․ ?
VY: I gave it already.
GB: He gave it already.
What were the three of you speaking about in the last lines that I just read?
A. Before Lyubov Groysman was going to give me check, she asked me when I will bring the money which was owed previously.
Q. When you say “the money,” what are you referring to?
A. We were talking about the cash and check.
Q. Is that the cash that we saw you handing in an envelope to Branfenbrener before this portion of the conversation?
In sum, the government's evidence that Groysman's words and conduct showed that she knowingly participated in the DME scheme consisted principally of testimony by one cooperator that when Groysman asked “When will you bring” and did not specify any object to be brought, she meant cash, and testimony by the other cooperator that when he handed her something described as “ha[ving] this and that,” she knowingly received cash. In light of the central role played by the evidentiary errors described above in the government's strategy, this evidence does not come close to defeating Groysman's claim of plain error.
Although the government argues that it did not emphasize the inadmissible evidence in its summation, in that it did not mention GX 59–65 and that it mentioned Ginzburg only once, we are unpersuaded in light of the record as a whole that the impact of Ginzburg's testimony, or of his misleading charts, was minimal. While GX 59–65 were not mentioned by name, the government told the jury that although Yuzovitskiy and Grigory G. were longtime “criminals” (Tr. 1306), their testimony was corroborated by, inter alia, “documents” (id. at 1307). Those charts—pictorial and easy to follow, generally showing only four or five boxes, connected by arrows indicating who gave fraudulent documents, checks, and cash to whom—were likely to be more memorable to jurors than the other documents, which consisted principally of lists of medical equipment on the go-bys and fictitious invoices or the transcripts of the translated conversations.
And although the government mentioned Ginzburg in its summation only once, it did so by telling the jury, “You can trust the testimony that came from Vadim Yuzovitskiy and Grigory [G.] ” in part because “every time they went into a meeting with one of the defendants, they met with an agent before they went in, they met with an agent when they came out and you heard from that agent. So you can trust that testimony.” (Id. (emphases added).) While that was the only mention of Ginzburg in the government's summation, we cannot ignore the fact that his testimony constituted about 40 percent of the live evidence at trial. Testimony was presented on nine days; Ginzburg testified on four of those days, and on the first three days of the trial, he was the only witness.
We also note that because the conversations among the cooperators and the targets of the investigation were conducted almost entirely in Russian, the jury was likely to accord special deference to Ginzburg's interpretations of those conversations, given the government's elicitation at the start of trial that Ginzburg's native language—and the language he still spoke at home and in social situations—was Russian and that he had passed several governmental tests for translation between Russian and English. When “a case agent also functions as an expert for the government, the government confers upon him” an “aura of special reliability and trustworthiness,” creating a “risk of prejudice ․ that increases when the witness has supervised the case.” United States v. Dukagjini, 326 F.3d at 53. Our unease in this regard is heightened in the present case by the facts that Ginzburg “personally transcribed at least the final transcriptions” of these meetings (Tr. 60) and was allowed at trial, over objection, to give interpretations as to what Yuzovitskiy and Groysman were discussing in Russian, for example interpretations that went beyond what was in the English-translation transcripts to which the parties had stipulated (see id. at 285–86). And some of Ginzburg's opinions interpreted conversations and events as incriminating to Groysman even though those conversations and events, as discussed above, were not recorded or were recorded but did not appear to inculpate her.
In sum, the government has conceded that at Groysman's trial there were a large number of erroneously admitted pieces of evidence inculpating Groysman, including the many hearsay assertions by the government's main witness; the simple and easy-to-remember charts that were prepared on the basis of hearsay, whose admission in evidence was not authorized by the rules of evidence, and whose contents were inaccurate and misleading; and the impermissible opinion evidence from the government's main witness whose views were likely to be given substantial credence by reason of both his status as a law enforcement agent and his expertise in the language spoken by Groysman and the cooperators. The sole witness who could testify from first-hand knowledge in support of the government's contention that Groysman received cash from the present fraudulent scheme was Grigory G., a longtime criminal who had continued his fraudulent activities after escaping punishment in the past by assisting law enforcement authorities to convict others. Grigory G.'s testimony that he gave cash to Groysman was not corroborated by the electronic surveillance and was contrary to Ginzburg's debriefing notes; and Grigory G.'s uncorroborated testimony was the sole admissible basis for Ginzburg's repeated hearsay testimony that Groysman received cash at least once and for the government's reiteration of that assertion in summation. We conclude that the evidentiary errors now conceded by the government were serious and central to the prosecution's strategy; as such, they deeply undermine our confidence in the fairness and outcome of Groysman's trial. The paucity of the government's other evidence, although not as central to our decision, bolsters our conclusion that there was plain error.
Finally, at trial, the government told the jury that it could trust the testimony of the longtime criminal cooperators because, inter alia, their testimony was corroborated by Ginzburg. (See Tr. 1307.) On appeal, while confessing numerous errors in the admission of the testimony by Ginzburg and the exhibits he had prepared, the government urges this Court to disregard those errors because, inter alia, “Ginzburg's testimony about Groysman's role in the fraud was ․ corroborated by ․ the cooperators ” (Government brief on appeal at 48 (emphases added)). We can only conclude that an affirmance of a conviction on the basis of such arguments, in the face of so many conceded errors, would seriously affect the fairness, integrity, and public reputation of these judicial proceedings.
We appreciate the government's candor in acknowledging the errors at trial. We have considered all of the government's arguments in support of affirmance and have found them to be unpersuasive. The judgment convicting Groysman is vacated, and the matter is remanded for a new trial.


Caddy's is the first case where the Nebraska Supreme Court even admits that the constitutionality of the second degree murder statute has been challenged by a defendant. The Court will end up dodging the issue by misrepresenting it. The Court will also adopt the Court of Appeal's previous lies to avoid Caddy's issue of "upping the charge."
"Upping the charge" against a defendant because he sought and successfully obtained relief on appeal is a violation of the Due Process Clause. See, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098 (1974). Likewise, increasing a sentence for no other reason than the defendant obtained relief on appeal is also a violation of Due Process. See, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969).
Caddy got his second degree murder conviction overturned in 1995 because of the malice issue. The prosecutor then filed a first degree murder charge against him. Under that threat Caddy pled guilty to second degree murder again. On appeal from the second conviction in 1996, Caddy argued that the prosecutor "upped the charge" because of Attorney General Don Stenberg's threats to have all those who took advantage of the malice issue on second degree murder cases charged with first degree murder. (See the 6-9-95 and 6-10-95 newspaper articles in The Press Speaks). This was the basis of Caddy's statewide conspiracy claim.
The Nebraska Supreme Court decides that this issue "cannot be reviewed" because it was already rejected by the Appeals Court in Caddy's 1996 appeal. However, you will notice that the Appeals Court did not publish their 1996 opinion affirming Caddy's convictions. They issued a memorandum opinion; i.e. not for publication. The reasons for not publishing that opinion was to avoid making their lies public. In that memorandum opinion the Appeals Court denied Caddy's "upping the charge" claim by saying that Caddy was originally charged by information with first degree murder in 1992. That is untrue. The Nebraska Supreme Court correctly notes that Caddy was first charged with the victim's murder on July 9, 1992. That information shows Caddy was charged with second degree murder not first degree. The Appeals Court lied to avoid that constitutional issue and now the Nebraska Supreme Court adopts that lie to avoid the issue too.
What the Supreme Court did is all too common. This opinion is the third time Caddy's case has been on appeal. His conviction and sentence have been overturned twice. The Court finds that they do not need to examine many of Caddy's claims because Caddy failed to bring them in his previous appeals. What happened to wiping the slate clean when a conviction is overturned? See, State v. Palmer, 257 Neb 702, 600 N.W.2d 756 (1999). We have a name for this "scumbag lawyer trick," its called, "cheatin em,fair and square."
There are two parts to the Court's decision regarding the constitutionality of the second degree murder statute, §28-304. They claim Caddy has waived this argument. But, to avoid having to thoroughly analyze the waiver issue and alert everyone that it can't be waived, they proceed to examine the constitutionality claim anyway.
Regarding a waiver the Court makes three points, none of which are valid in this case. The Court first claims that the issue is barred because Caddy could have raised it in his 1996 direct appeal. Second, they claim Caddy's voluntary guilty plea waives all defenses to this criminal charge. Lastly, they claim Caddy waived the constitutionality claim by not filing a motion to quash in the district court.
While it is true that Caddy did not raise this specific issue in his 1996 direct appeal, that does not bar him from raising it at this time. The Court is willing to concede only half the argument by reciting to State v. LeGrand. LeGrand holds that a void judgment can be attacked in any proceeding at anytime. The argument starts where a criminal statute is facially unconstitutional courts lack subject-matter jurisdiction over such a purported offense. State v. Valencia, 205 Neb 179, 290 N.W.2d 181 (1980). Where a court lacks subject-matter jurisdiction its judgment is void, and all proceedings in such action are void. State v. Dvorak, 254 Neb 87, 574 N.W.2d 492 (1998). At that point, LeGrand says that the void judgment can be attacked in any proceeding at anytime. Furthermore, the issue of subject-matter jurisdiction cannot be waived because a court cannot obtain subject-matter jurisdiction by waiver, consent, or the conduct of the parties in a case. State v. Jacques, 253 Neb 247, 570 N.W.2d 331 (1997). Therefore, Caddy's conduct in failing to raise the issue in a prior proceeding does not waive the issue of the court's subject-matter jurisdiction.
This same argument resolves the Court's third claim, that Caddy had to file a motion to quash or he waived the issue. Obviously, if a court cannot obtain subject-matter jurisdiction by the conduct, consent, or waiver by Caddy, his conduct in failing to file a motion to quash cannot be considered a waiver of this issue. The Court relies on State v. Kanarick and State v. Conklin to support this part of their claim. However, in Kanarick the statute challenged as unconstitutional did not affect the court's subject-matter jurisdiction. Kanarick was convicted of DWI under § §60-6,196, 60-6,l97(2)&(3). He challenged the constitutionality of §60-6,197(10) which requires a defendant to be informed that his refusal to take a sobriety test was a separate crime. That challenge does not affect the court's subject-matter jurisdiction of the crimes Kanarick was convicted of. In Conklin, the Court tried to do the same thing they try to do to Caddy. They argue that Conklin waived the issue of constitutionality but then they examined and ruled on that issue anyway, without any discussion of subject-matter jurisdiction. The Court acts like they are trying to hide what the law and the constitution really say.
The Court dodges Caddy's issue on the constitutionality of §28-304. The Court describes "the essence of Caddy's argument" as, §28-304 is not distinguishable from §28-305. More accurately, Caddy argued that the statute's definitions create an arbitrary choice between second degree murder (§28-304) and sudden quarrel manslaughter (§28-305). The Court properly points out that Caddy claims this is a violation of the vagueness doctrine and states the two independent prongs of this doctrine: a penal statute must define a criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. While Caddy's argument obviously deals with the second prong, the Court dodges the issue by only discussing the first prong.
The case law cited by the Court does not address Caddy's issue. All the case law cited by the Court deals with claims that words or phrases in a statute were too vaguely defined to give fair warning of what was guilty conduct as opposed to innocent conduct. The Court finds that a person is not entitled to clear notice that their conduct violates a particular criminal statute. But none of the cases cited by the Court deal with murder and manslaughter. This is significant because the Court does not discuss Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975), where the U.S. Supreme Court decided that the difference between a conviction for murder and a conviction for manslaughter is of greater importance than the difference between guilt or innocence for many lesser crimes. The Mullaney decision did not deal with vagueness of words or phrases or with fair warning. It dealt with the State's manner of choosing between murder and manslaughter. That is Caddy's issue, the second prong of the vagueness doctrine.
Caddy did not argue that any of the words and phrases in §28-304 are vague. Caddy accepted the plain meaning of the statutory language as written by the Legislature and, now, construed by the Court in State v. Burlison. Caddy accepted that the Legislature's intended definition of second degree murder under §28-304 is an intentional killing without premeditation. Likewise, Caddy accepted the elements of sudden quarrel manslaughter are, at the time of Caddy's crime (before State v. Jones), the intentional killing of a person, without malice, upon a sudden quarrel. Caddy's claim is that these two definitions allow, encourage, and do not prevent the arbitrary enforcement of §28-304.
[Nebraska] has chosen to distinguish between those who kill [upon a sudden quarrel] from those who kill in the absence of this factor. Because the former are less blameworthy, they are subjected to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, [Nebraska] denigrates the interests found critical in In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970).
The criminality of the conduct in both statutes is clearly defined, but these clear definitions leave an arbitrary choice between the two crimes. A person who intentionally kills another person, where the intent to kill is only the product of a sudden quarrel, has committed sudden quarrel manslaughter. But at the same time that person has also committed the crime of second degree murder by intentionally killing a person without premeditation. Because that person is guilty of both crimes the prosecution can arbitrarily choose which crime they want that person to be found guilty of. The prosecutor can simply choose not to present any evidence of the sudden quarrel.
In re Winship decided that the Due Process Clause requires the State (the prosecution) to bear the burden of proving every fact necessary to prove the crime was committed. It did not permit the prosecution to simply prove that some crime was committed. The State must prove the distinction between the two crimes to obtain a conviction for second degree murder. Requiring a defendant to present some evidence of the element of a sudden quarrel forces the defendant to waive this Due Process right. Therefore, the State must prove the lack of a sudden quarrel to obtain a conviction for second degree murder. §28-304 is unconstitutional because it does not make that requirement, thus allowing the arbitrary enforcement of that statute.
Jurors are also left with an arbitrary choice between the two crimes. In any case, jurors can ignore the defendant's evidence of a sudden quarrel because they are instructed that the State must prove that element of manslaughter, not the defendant.
It is more likely that the jurors will never even consider a conviction for manslaughter. Jurors are given a "step" instruction that requires them to find a defendant not guilty of second degree murder before they consider whether the defendant is only guilty of manslaughter. Since everyone who commits sudden quarrel manslaughter has also committed second degree murder (every intentional killing upon a sudden quarrel is, necessarily, an intentional killing without premeditation) a jury will probably never get to deliberate on the manslaughter charge. This leaves the prosecutor's choice even more significant.
The Nebraska Supreme Court dodged Caddy's claim of arbitrary enforcement by only discussing fair warning and the vagueness of words and phrases. (If there is a fair warning issue here, it is the lack of fair warning, first raised in Cave, of how to resolve this dilemma without requiring a defendant to waive their substantial constitutional right to force the State to prove every fact beyond a reasonable doubt.) Caddy properly presented this constitutional claim to the Nebraska Supreme Court. Their decision demonstrates the Court's ignorance of constitutional law or their corruption in desiring to avoid their duty to uphold and enforce the U.S. Constitution.
Fortunately the malice story is not finished yet. Caddy had his direct appeal reinstated and will point out the Court's flaws to them again. And there are others bringing this issue to the Nebraska Supreme Court and to the Federal Courts too. Stay tuned.
STATE OF NEBRASKA, APPELLEE, v.
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed in part, and in part reversed and remanded with directions.
Michael T. Caddy, pro se.
Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MJLLER-LERMAN, JJ.
Michael T. Caddy, the appellant, seeks postconviction relief relating to his convictions for the June 10, 1992, murder of Charles Burns. The primary issue presented in this appeal is whether Caddy is entitled to an evidentiary hearing on his claim that he was deprived of a direct appeal from his 1998 resentencing by ineffective assistance of counsel.
Where cases are interwoven and interdependent and the controversy involved has already been considered and decided by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000).
Caddy was first charged in connection with Burns' murder on July 9, 1992. On July 29, Caddy entered pleas of no contest to murder in the second degree and use of a firearm to commit a felony. Caddy was convicted and sentenced to 25 to 40 years' imprisonment on the murder charge and 5 to 15 years' imprisonment on the weapons charge, to be served consecutively. Caddy's sole assignment of error on direct appeal was that the sentences were excessive, and the Nebraska Court of Appeals summarily affirmed the judgment of the district court. See State v. Caddy, 1 Neb. App. xlix (case No. S-92-878, March 18, 1993).
In 1995, Caddy filed a motion for postconviction relief, arguing, inter alia, that he was entitled to a new trial because the information filed against him had omitted the element of malice from the crime of murder in the second degree. See State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995), overruled, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31(1998). On July 20, 1995, based on State v. Barfoot, the district court set aside both of Caddy's convictions and granted Caddy a new trial. On the same day, the Buffalo County Attorney filed a new information charging Caddy with murder in the first degree and use of a firearm in the commission of a felony. Pursuant to a plea bargain, Caddy pled guilty to murder in the second degree and use of a firearm to commit a felony. Caddy was convicted of those charges, and the sentences imposed were identical to those resulting from his first conviction.
Caddy appealed to the Court of Appeals. Caddy's counsel on appeal was different from his counsel at his pleas, convictions, and sentencing. The Court of Appeals, in a memorandum opinion, affirmed Caddy's convictions, but vacated the sentences and remanded the cause to the district court for resentencing. See State v. Caddy, 5 Neb. App. xviii (case No. A-96-077, April 3, 1997). This court overruled Caddy's petition for further review. See State v. Caddy, 252 Neb. xxiii (case No. A-96-077, July 23, 1997).
After remand, on November 17, 1997, the district court sentenced Caddy to imprisonment for a period of 40 years on the charge of murder in the second degree and a period of 5 to 15 years on the weapons charge. Caddy appealed, but his appeal was dismissed by this court for failure to file the poverty affidavit required for an in forma pauperis appeal. See State v. Caddy, 256 Neb. xxi (case No. S-98-335, Jan. 27, 1999).
On January 20, 2000, Caddy filed the postconviction motion that is the subject of the instant case, raising several claimed constitutional errors. The district court determined that Caddy's post-conviction motion was without merit and denied the motion without an evidentiary hearing. Caddy timely appealed. We moved the appeal to our docket after Caddy filed a notice of a constitutional question, pursuant to Neb. Ct. R. of Prac. 9E (rev. 2000).
Caddy has assigned several errors. Those errors have been consolidated and restated and are organized based upon whether they relate to Caddy's convictions, sentences, or direct appeal.
Conviction errors: Caddy assigns that the district court erred in failing to find that (1) it lacked subject matter jurisdiction due to defective informations; (2) Neb. Rev. Stat. § 28-304 (Reissue 1995), the statute defining murder in the second degree, is unconstitutionally vague; (3) there had been prosecutorial misconduct; (4) there had been judicial misconduct; (5) there was a statewide conspiracy against Caddy's rights; (6) Caddy's 1995 pleas were coerced; and (7) Caddy's right to be protected against double jeopardy was violated.
Sentencing error: Caddy assigns that the district court erred in not finding that Caddy had illegal and unauthorized sentences imposed in 1997, in violation of his due process and equal protection rights.
Direct appeal error: Caddy assigns that the district court erred in failing to find that Caddy was denied effective assistance of counsel on direct appeal after Caddy's counsel failed to file a required poverty affidavit, resulting in the dismissal of the direct appeal from Caddy's 1997 resentencing.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Becerra, 261 Neb. 596, 624 N.W.2d 21(2001); State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001). Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Becerra, supra; State v. Narcisse, 260 Neb. 55, 615 N.W.2d 110 (2000). The appellant in a postconviction proceeding has the burden of alleging and proving that the claimed error is prejudicial. State v. Hess, supra.
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Where such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000).
Caddy presents three arguments to support his claim that the district court was without subject matter jurisdiction to originally convict and sentence him. One of these arguments is that § 28-304, the statute defining murder in the second degree, is unconstitutionally vague. This argument will be addressed below in our analysis of Caddy's more specific assignment of error on that issue.
Caddy's second argument supporting this assignment of error is that the information charging him with murder in the second degree was defective and void because it included the element of malice, which is not contained in the statutory definition of the offense. Caddy did not raise this argument in his motion for postconviction relief. Because we do not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief, this argument fails. See State v. Becerra, supra.
Moreover, Caddy raised the foregoing argument and it was rejected by the Court of Appeals in Caddy's 1996 appeal from his second convictions. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Hess, supra.
Caddy's third argument is that the information against him was void because after his successful postconviction proceeding, the State initially charged him with murder in the first degree, thus it unlawfully "upped the charge" against him. Brief for appellant at 33. This argument was also raised in and rejected by the Court of Appeals in Caddy's 1996 appeal and cannot be reviewed in Caddy's motion for postconviction relief. See State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
Caddy argues that his convictions are void because the statute pursuant to which he was convicted, § 28-304, is unconstitutionally vague. We initially note that this argument is barred by virtue of the fact that Caddy could have raised it in his 1996 direct appeal. See, State v. Hess, supra; State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000). Moreover, normally, a voluntary guilty plea waives all defenses to a criminal charge. See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). Finally, as the State argues, Caddy has waived his facial challenges to the validity of the statute by not filing a timely motion to quash in the district court. See, State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
Caddy argues, however, that because the statute is void, his convictions are void ab initio, and that this presents a jurisdictional issue that may be raised at any time in any proceeding. See State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995), overruled on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). Assuming for the sake of discussion that Caddy's convictions would be void and subject to collateral attack--a matter we do not address--Caddy's argument fails because § 28-304 is not unconstitutionally vague.
The essence of Caddy's argument is that § 28-304 is not distinguishable from Neb. Rev. Stat. § 28-305 (Reissue 1995), which defines the crime of manslaughter. But see State v. Burlison, 255 Neb. 190, 196, 583 N.W.2d 31, 36 (1998) (holding that "construction of § 28-304(1) to include only those elements which the Legislature specifically included in its text does not result in constitutional infirmity"). Caddy argues that this violates the void-for-vagueness doctrine, which requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. See State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).
The void-for-vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applications. United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). The Due Process Clause prohibits the states from holding an individual criminally responsible for conduct which he or she could not reasonably understand to be proscribed. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Id. All the Due Process Clause requires is that the law give sufficient warning that people may conduct themselves so as to avoid that which is forbidden. Id. The touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal. United States v. Lanier supra.
Application of these principles in the case at bar clearly establishes that even if Caddy is correct in arguing that there is ambiguity between § § 28-304 and 28-305, there is still little question whether § 28-304 provides with reasonable clarity that the intentional killing of another may be criminal. If the general class of offenses to which a statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). This is particularly so where, as here, whatever debate there is would center around the appropriate sentence, and not the criminality of the conduct. See Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
[W]e think it significant that the issue of construction involved here is not the drawing of a line between legal conduct and illegal conduct. What Knutson did was unlawful under any interpretation of Iowa law, and he makes no contention to the contrary. His position, reduced to its simplest terms, is that he had a right to expect that he would be convicted for kidnapping only, rather than for kidnapping for ransom. This kind of reliance interest is not, in our view, entitled to a great deal of weight. When a person does an act that he well knows to be a violation of some law, and when a statute is later interpreted to cover his conduct in a way that does not do violence to the ordinary understanding of the English language, the Fourteenth Amendment is not offended.
Id. at 750. Accord, McSherrv v. Block, 880 F.2d 1049 (9th Cir. 1989); Welton v. Nix, 719 F.2d 969 (8th Cir. 1983); Sodergren v. State, 715 P.2d 170 (Wyo. 1986).
Thus, provided that conduct is of a sort known among the lay public to be criminal, a person is not entitled to clear notice that the conduct violates a particular criminal statute. It is enough that he or she knows that what he or she is about to do is probably or certainly criminal. See, U.S. v. White, 882 F.2d 250 (7th Cir. 1989); People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994).
Even if we were to assume that § 28-304 is not clearly distinguishable from § 28-305, as Caddy alleges, that would not render either statute unconstitutionally vague, as the criminality of the conduct described is nonetheless clearly established. Therefore, Caddy's postconviction motion does not allege facts that support a constitutional violation, and the district court did not err in denying an evidentiary hearing on this issue. As Caddy has not shown that his convictions are void or that the district court lacked subject matter jurisdiction to enter them, his first two assignments of error are without merit.
Caddy alleges that he was convicted due to the misconduct of the prosecution and the judges involved in his trial and also argues that this amounted to a "statewide conspiracy" against his rights. We first note that Caddy's appellate brief does not argue that any misconduct has tainted the instant postconviction proceeding; thus, these claims of misconduct are all collateral attacks on the prior proceedings against Caddy.
We also note that Caddy's claim of prosecutorial misconduct was raised and rejected in Caddy's 1996 appeal, and cannot be relitigated here. See State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001). More significant, however, is the fact that Caddy has not assigned in this court that his counsel in the district court in 1996 was ineffective in failing to raise these issues on appeal.
When a plaintiff seeking postconviction relief has different counsel on appeal than at trial, the plaintiff's motion for postconviction relief is procedurally barred if the plaintiff (1) knew of the issues assigned in the postconviction motion at the time of the plaintiff's direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion. State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). Caddy has failed, in the instant case, to assign error regarding his appellate counsel in 1996 and has assigned error only regarding his appellate counsel in 1998 relating to failure to properly perfect the appeal. Consequently, Caddy's arguments are procedurally barred, as they either were or should have been raised in his 1996 and 1998 appeals. Caddy's assignments of error on these issues are without merit.
As with Caddy's other assignments of error relating to his convictions, the voluntariness of his 1995 pleas were certainly known to him at the time of his 1996 appeal. This claim was available to Caddy and should have been raised in his 1996 appeal, and Caddy has not assigned that his direct appeal counsel was ineffective in failing to assign this as error. Consequently, this argument is procedurally barred. See State v. Williams, supra.
Caddy claims that his 1995 conviction was obtained in violation of his rights under the Double Jeopardy Clause. Caddy has likely waived this alleged error by pleading guilty to the offense. See, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991); State v. Enriquez-Beltran, 9 Neb. App. 459, 616 N.W.2d 14 (2000) (defendant waives double jeopardy claim on direct appeal and in postconviction proceedings when he or she voluntarily pleads guilty to criminal charges). We also note that this assignment of error was raised in and rejected by the Court of Appeals in Caddy's 1996 direct appeal.
However, we do not address this assignment of error, as Caddy has not argued the alleged error in his brief. Errors that are assigned but not argued will not be addressed by an appellate court. State v. Spurgin, 261 Neb. 427, 623 N.W.2d 644 (2001).
Caddy assigns that the district court's 1997 sentences were not authorized by statute and violated his constitutional rights. However, Caddy did not raise this issue in his motion for post-conviction relief. As noted previously, an appellate court will not consider as an assignment of error a question not presented to the district court for disposition though a defendant's motion for postconviction relief. State v. Becerra, 261 Neb. 596, 624 N.W.2d 21(2001). Consequently, Caddy's assignment of error is without merit, as the district court could not err in failing to address an issue that was not presented to it.
We also note that this issue should have been presented for appellate review on direct appeal. Caddy argues that he was deprived of his direct appeal by the ineffective assistance of counsel. If Caddy prevails on that argument, he could receive a new direct appeal in which to raise his arguments regarding the legality of his sentences. Consequently, this assignment of error is subsumed by Caddy's arguments relating to his 1998 direct appeal, to which we now turn.
Caddy argues that he was denied effective assistance of counsel when his attorney on direct appeal from his 1997 resentencing failed to perfect his appeal by filing a required poverty affidavit. See State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998) (abrogated in part by statute as recognized in State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000)). Where a defendant is denied his or her right to appeal because counsel fails to perfect an appeal, the proper vehicle for the defendant to seek relief is through the Nebraska Postconviction Act. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
Caddy alleges, and this court's record of the case reflects, that Caddy's attorney in his 1998 direct appeal filed a timely notice of appeal, but failed to perfect the appeal with a timely poverty affidavit. We addressed a similar situation in State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000), in which a defendant was denied a direct appeal because his attorney failed to file a poverty affidavit. We concluded, as a matter of law, that the defendant was denied his constitutional right to effective assistance of counsel and was entitled to postconviction relief. See id.	Based on State v. Trotter, there can be little doubt that Caddy's postconviction petition in the instant case alleges facts which, if proved, would constitute an infringement of his constitutional rights.
The district court in the instant proceeding resolved this issue by assuming that Caddy's counsel had been ineffective, but determining that Caddy had not been prejudiced because Caddy's appeal would have been found to be without merit. Generally, in order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. See, State v. Becerra, supra; State v. Hess, supra.
However, this court rejected an almost identical argument in State v. Trotter supra. We held that "after a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief." Id. at 222, 609 N.W.2d at 41. Based upon State v. Trotter, we conclude that the district court erred in determining that Caddy was not prejudiced by the alleged failure of his attorney to perfect his 1998 direct appeal. Caddy's final assignment of error has merit.
The district court has jurisdiction to exercise the power to grant a new direct appeal where the evidence establishes a denial or infringement of the right to effective assistance of counsel at the direct appeal stage of the criminal proceedings. See State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000). However, in this case, the evidence has not yet established a denial or infringement of Caddy's right to effective assistance of counsel, because the district court did not hold an evidentiary hearing on Caddy's postconviction motion.
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000). Because Caddy has alleged facts which, if proved, would constitute an infringement of his right to effective assistance of counsel on direct appeal, Caddy is entitled to an evidentiary hearing to determine if he should be granted a new direct appeal with respect to the narrow issues related to his November 1997 resentencing. See id.
The district court erred in determining that Caddy was not entitled to an evidentiary hearing regarding his claim that he was denied effective assistance of counsel on direct appeal from his resentencing. The judgment of the district court is reversed to that extent, and the cause is remanded to the district court with directions to conduct an evidentiary hearing, which is to be limited to the question whether Caddy was denied effective assistance of counsel in that his attorney failed to perfect his direct appeal from his resentencing by filing the required poverty affidavit. Caddy's other assignments of error are without merit, and the judgment of the district court is otherwise affirmed.