United States District Court, W.D. Pennsylvania
OPINION AND ORDER OF COURT
Donetta W. Ambrose U.S. Senior District Judge
criminal action brought by the United States Government,
Defendant, James Nassida, was charged with committing one
count of Conspiracy to Commit Bank Fraud and Wire Fraud and
committing one count of Bank Fraud. Defendant entered a plea
of not guilty to the charges set forth in the Superseding
Indictment, and a jury trial on both counts was held from
October 4, 2016 to October 24, 2016. On October 24, 2016, the
jury returned a verdict finding Defendant guilty on all
counts. Pending is Defendant's Motion for New Trial
Pursuant to Rule 33 of the Federal Rules of Criminal
Procedure [ECF No. 149],  arguing that his retained trial
counsel, Attorney Stanton Levenson, was asleep during a
substantial portion of the trial, thus denying Defendant his
Sixth Amendment right to effective assistance of counsel and
requiring a new trial. After careful consideration, and for the
reasons set forth below, Defendant's Motion is granted.
trial, Defendant was represented by attorney Stanton
Levenson. On October 18, 2016, Assistant United States
Attorney, Cindy Chung, who second-chaired the trial for the
government, brought to my attention (outside the presence of
the jury) that Attorney Levenson appeared to have been
sleeping the prior day during the testimony of one of the
government's witnesses, Michael Keller. (Trial
Transcript, 10/18/2016, at 2-5). When I questioned him about
this incident, Mr. Levenson admitted that he dozed off during
Mr. Keller's direct examination because he had taken an
antihistamine that morning that made him drowsy. Id.
at 3. At the time, Mr. Nassida testified that he did not feel
prejudiced or disadvantaged by the incident and was prepared
to go forward with Mr. Levenson representing him.
Id. at 4-5. I also indicated on the record that I
had noticed the incident and that I recalled it being brief,
but that I did not know whether the jury had noticed it or
not. I agreed with Attorney Chung, however, that Mr.
Levenson's cross-examination of Mr. Keller appeared to be
appropriate and on point and did not prejudice or
disadvantage Mr. Nassida. Id. at 5.
to this interaction, Defendant Nassida informed me that there
were other times that he noticed Mr. Levenson was asleep
during the trial and that he had written down the occasions
when he observed Mr. Levenson sleeping contemporaneously in
his trial notes. Id. at 271-278. Although Mr.
Nassida continued to indicate that he was not unhappy with
Mr. Levenson in his trial, I instructed Mr. Nassida to bring
his trial notes to court the next day and to provide them to
me unaltered. Id. During this interaction, Attorney
Chung added that she was aware of at least two other
occasions when Mr. Levenson may have been sleeping, but she
was not sure - once during jury selection, and once the prior
week during trial. Id.
the afternoon of October 20, 2016, after I dismissed the jury
for the day, I again addressed Mr. Levenson's alleged
sleeping with Mr. Nassida and counsel for both sides. (Trial
Transcript, 10/20/2016, at 265-276). During that discussion,
Mr. Nassida provided me with his trial notes and also
informed me that he and Mr. Levenson had gone at least a day
without speaking after the prior incident. Mr. Nassida also
stated, inter alia, that he was not a lawyer and did
not know what questions Mr. Levenson should or should not
have asked witnesses who were on the stand when he allegedly
was sleeping, but that he did not think his attorney nodding
off would ever be effective. Id. He also noted the
names of five witnesses other than Mr. Keller during whose
testimony he had noted that Mr. Levenson was sleeping.
Id. at 267.
morning of October 21, 2016, outside the jury's presence,
Mr. Nassida informed me that he had major doubts about his
ability to get a fair trial. (Trial Transcript, 10/21/2016,
at 2). I again raised my concerns regarding the issue of Mr.
Levenson sleeping, and Mr. Nassida formally requested a
mistrial. Id. at 2-4. Mr. Levenson joined in Mr.
Nassida's motion for a mistrial, stating that the
attorney/client relationship between them had been destroyed
and that there was no possibility Mr. Nassida would trust him
again. Id. at 8-9. After discussion with counsel and
Mr. Nassida, I denied Mr. Nassida's motion for a mistrial
on the basis that the best protection for him would be an
evidentiary hearing post-trial. Id. at 129. In that
regard, I explained to Mr. Nassida that, if the jury returned
a guilty verdict, then I would immediately appoint a new
attorney to represent him and that I would hold a full
evidentiary hearing to determine whether he was effectively
denied counsel for a substantial portion of the trial.
Id. at 129-131.
October 24, 2016, the jury returned a verdict of guilty
against Mr. Nassida. After the verdict, I interviewed each
juror separately under oath about whether they had observed
Mr. Levenson sleeping during trial. (Trial Transcript,
10/24/2016, at 118-135). Juror Number 1 testified that s/he had
seen Mr. Levenson sleeping at least three to four times, for
maybe a minute each time. Id. at 120-121. Juror
Number 2 testified that s/he witnessed Mr. Levenson sleeping
maybe three or four times for “a few minutes probably
at some points” and sometimes just “real quick
dozing off.” Id. at 121-122. Juror Number 3
testified that s/he remembered Mr. Levenson sleeping
“maybe three times” for about thirty seconds.
Id. at 123-124. Juror Number 4 testified that s/he
noticed Mr. Levenson sleeping about twice for about thirty
seconds. Id. at 124-125. Juror Number 5 testified
that s/he thought Mr. Levenson was sleeping at least two
times but could not estimate the duration. Id. at
125-126. Juror Number 6 testified that s/he did not
personally notice Mr. Levenson sleeping, but that other
jurors had talked about him sleeping and that they did not
think it was very good that he had fallen asleep.
Id. at 126-127. Juror Number 7 testified that it
seemed like Mr. Levenson was sleeping a few times but that
s/he did not know if he was sleeping or concentrating.
Id. at 127-128. Juror Number 8 testified that s/he
observed Mr. Levenson sleeping on “probably two”
occasions, and that the duration was “not long.”
Id. at 129-130. Juror Number 9 testified that s/he
saw Mr. Levenson “rest his eyes on occasion” but
would not call it “full-fledged sleep.” The juror
stated that this occurred several times. Id. at
130-131. Juror Number 10 testified that s/he witnessed Mr.
Levenson sleeping a few times and Defendant Nassida
“having to kind of wake him” at least two times.
Id. at 131-133. Juror Number 11 testified that s/he
noticed Mr. Levenson sleeping around four or five times for a
few minutes, “maybe three, four, five minutes,
something like that.” Id. at 133-134. Finally,
Juror Number 12 testified that s/he believed s/he saw Mr.
Levenson sleeping a couple times but that s/he was not really
watching him. The juror did not think the duration was
“all that long[, m]aybe a few minutes, ” but also
stated that s/he could not really say because s/he was not
“paying a whole lot of attention.” Id.
at 134-135. With the exception of one, none of the jurors
could recall which witnesses were testifying during the times
Attorney Levenson was sleeping. At the conclusion of the
proceedings on October 24, 2016, I reiterated that I would
appoint new counsel for Defendant Nassida and reminded him
that, if he filed a motion for a new trial, I would hold a
full evidentiary hearing on that motion. Id. at 138.
October 28, 2016, I appointed attorney James Brink to
represent Defendant. [ECF No. 147]. On November 6, 2016, Mr.
Brink, on behalf of Defendant, filed the instant Motion for
New Trial Pursuant to Rule 33 of the Federal Rules of
Criminal Procedure [ECF No. 149] and Brief in Support [ECF
No. 150]. On April 11, 2017, I held a full evidentiary
hearing on Defendant's Motion. Defendant presented
evidence and argument at the hearing in addition to his
written brief. The government presented evidence and argument
at the hearing, but did not submit any written briefs.
hearing, Attorney Brink called Attorney Cindy Chung, Attorney
Levenson, and Defendant Nassida as witnesses. Attorney Chung
testified that that she had brought Mr. Levenson's
sleeping to my attention on October 18, 2016, and that she
had seen Mr. Levenson possibly sleeping for brief periods on
three occasions during trial (once during jury selection,
once during the week of October 10, 2016, and once during Mr.
Keller's testimony). During his testimony, Attorney
Levenson admitted that he had slept during trial but that he
did not know how long. Mr. Levenson stated that he felt badly
about falling asleep and that he had joined in Mr.
Nassida's request for a mistrial because the relationship
between them had deteriorated. On cross, Mr. Levenson
testified that he was asleep for thirty seconds at most and
that he often closes his eyes to concentrate. Mr. Nassida
testified that he first noticed Mr. Levenson sleeping during
jury selection, and that the sleeping continued to happen a
few times a day, for a total of approximately twenty times.
Mr. Nassida stated that, when he saw Mr. Levenson sleeping,
he would nudge him awake and/or ask if he had heard what was
being said at the time. Mr. Nassida described Mr.
Levenson's sleeping as substantial and stated that, by
the end of trial, the two had an unsettling relationship and
that their communication eventually stopped for a few days.
Mr. Nassida agreed that his contemporaneous trial notes
reference at least ten instances of sleeping, but stated that
he was too busy taking other notes to write down every
instance. Mr. Nassida explained that the reason he told me
during the trial that he did not feel prejudiced was because
he was not a lawyer and he was afraid.
government called witnesses Neal Caldwell, Al Vogt, and
Attorney Tom Brown. Neal Caldwell was an FBI agent present in
the courtroom during most of the trial. He testified that he
saw Defendant Nassida nudge Mr. Levenson awake several times.
He stated that he also saw Mr. Levenson close his eyes on
occasion, but that he appeared to be listening. Witness Al
Vogt is a forensic accountant for the FBI who was present in
the courtroom for almost all of the trial. He testified that
he saw Mr. Levenson with closed eyes 1-2 times and that he
saw Mr. Nassida nudge Mr. Levenson awake one time. Tom Brown,
who represented co-Defendant Janna Nassida at trial,
testified that he observed Mr. Levenson from behind during
trial but had not seen him sleeping because of his
positioning. Mr. Brown did notice, however, that problems had
developed with Mr. Levenson and Mr. Nassida's
Strickland v. Washington, 466 U.S. 668 (1984), the
U.S. Supreme Court held that, in order to succeed on a Sixth
Amendment ineffective assistance of counsel claim, a
defendant must show: (1) that counsel's performance was
deficient; and (2) that the deficient performance prejudiced
the defense. In Strickland's companion case,
however, United States v. Cronic, 466 U.S. 648
(1984), the Supreme Court concluded that:
there are circumstances “so likely to prejudice the
accused that the cost of litigating their effect in a
particular case is unjustified” and prejudice is
presumed. The “[m]ost obvious” of these
circumstances is “the complete denial of
counsel.” Where the defendant “is denied counsel
at a critical stage of his trial, ” we are required