18-330-cr
United States v. Gumaer

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                AMENDED SUMMARY ORDER

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FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
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ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of April, two thousand nineteen.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            DEBRA ANN LIVINGSTON,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                v.                                                 18-330-cr

MICHAEL GUMAER,

                  Defendant-Appellant.
_____________________________________

For Appellee:                             PAUL D. SILVER, Assistant United States Attorney
                                          (Miroslav Lovric, Assistant United States Attorney, on
                                          the brief), for Grant C. Jaquith, United States Attorney
                                          for the Northern District of New York, Albany, NY.

For Defendant-Appellant:                  MELISSA A. TUOHEY, Assistant Federal Public
                                          Defender, for Lisa A. Peebles, Federal Public Defender,
                                          Syracuse, NY.


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       Appeal from a February 2, 2018 judgment of the United States District Court for the

Northern District of New York (McAvoy, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       State prosecutors charged Michael Gumaer (“Gumaer”) with two counts of predatory

sexual assault against a minor.   While Gumaer remained in state custody pending trial, federal

agents filed a sealed criminal complaint charging him with two federal child pornography offenses.

A federal prosecutor then secured Gumaer’s attendance at the United States Attorney’s Office

(“USAO”) for the Northern District of New York (“NDNY”).         In a meeting with Gumaer and the

attorney representing him in connection with the state charges, the federal prosecutor described

the evidence and potential federal charges against Gumaer, and a state prosecutor offered Gumaer

a plea deal that required, inter alia, his subsequent cooperation with federal agents.     Gumaer

accepted the state prosecutor’s plea deal and then confessed his crimes to the federal agents in a

subsequent interview.    Following the interview and state court plea, federal prosecutors obtained

an eight-count indictment against Gumaer.        Gumaer moved in federal court to dismiss the

indictment against him on the grounds that the federal government had violated his Fifth

Amendment substantive due process rights and his Sixth Amendment right to counsel.             The

district court denied the motion, and a jury convicted Gumaer on all eight counts. Gumaer now

appeals the denial of his motion to dismiss the indictment.     We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

                                           Background

       A. Facts

               1.       The State and Federal Investigations


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       On August 28, 2016, state police received a report from a mother who claimed that she had

found images and video on the cell phone of her twelve-year-old daughter (“V-1”) depicting

Gumaer and V-1 engaging in sexual intercourse and other sexual conduct.     Examination of V-1’s

phone and a subsequent interview with V-1 confirmed the mother’s report.       On September 18,

2016, police arrested Gumaer and charged him with two counts of predatory sexual assault against

a minor under New York state law.     On September 19, Gumaer was arraigned and remanded to a

local jail. Because Gumaer could not afford counsel, the state court appointed attorney Patrick

Kilker to represent him on the state charges.

       Four days later, the police contacted FBI Special Agent (“SA”) Robert Lyons in connection

with information provided by Gumaer’s sister in Florida, who had alerted police that Gumaer had

contacted her and told her that he was sending her two hard drives because they contained family

pictures that he did not want police to seize.   Lyons commenced a federal investigation.     FBI

agents secured search warrants to examine the hard drives.   The FBI’s review of these hard drives

revealed videos depicting V-1 masturbating Gumaer and Gumaer subjecting V-1 to oral sex.       In

addition, one of the hard drives contained images of V-1’s five-year-old sister (“V-2”) with her

legs spread open and Gumaer’s hand on her vagina.

       On October 13, 2016, federal prosecutors obtained a criminal complaint and federal arrest

warrant from a magistrate judge.     The complaint charged Gumaer with one count of sexual

exploitation of a child/production of child pornography in violation of 18 U.S.C. § 2251(a), and

one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).      The

government requested that the complaint be filed under seal because public filing would

“jeopardize an ongoing federal criminal investigation by revealing the existence of that

investigation to potential targets and subjects of that investigation.”     Sp. App. 10.      The


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magistrate judge granted the government’s sealing request and the FBI lodged a copy of the arrest

warrant as a detainer with the state facility where Gumaer was being held.

                   2.       The Pre-Indictment Meetings with Gumaer

         On November 29, 2016, an Assistant United States Attorney (“AUSA”) sought and

obtained a writ of habeas corpus ad testificandum authorizing Gumaer’s removal from the state

jail.   Upon issuance of the writ, two FBI agents transported Gumaer to a meeting at the USAO in

Binghamton.1        Present at the meeting were the AUSA, a state district attorney, two FBI agents,

and Gumaer’s attorney, Kilker.             The district court found that “[t]he purpose of the meeting was

for the state and federal prosecutors to lay out for [the] defendant and his counsel the evidence

each had against [the] defendant, for the state prosecutor to present a plea bargain deal on the state

charges, for the federal prosecutor to provide an overview of possible dispositions in federal court,

and for both prosecutors to seek [the] defendant’s cooperation in identifying other possible child

victims.”     Sp. App. 12.

         At the start of the meeting, Kilker advised the group that the scope of his representation

was limited to the state case, and that Gumaer would “probably” need a federal public defender to

represent him on the federal charges.              App. 212. The prosecutors and agents then gave Kilker

and Gumaer an opportunity to meet in private. After the two had spoken in private, Kilker told

the others that he and Gumaer were ready to proceed, and that Gumaer would seek to formally

retain him on the federal charges.




1
  Section 2241(c)(5) provides that “[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [i]t is necessary
to bring him into court to testify or for trial.” Steven D. Clymer, Chief of the Criminal and Appeals Divisions for
the USAO for the NDNY, confirmed in a letter to the magistrate judge that the AUSA had used the writ improperly
and that measures were being undertaken to prevent future misuse of the writ in the NDNY. Supp. App. 1; see also
id. at 2 (“I regret that this occurred and have taken steps to ensure that it does not happen again.”).


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       The prosecutors then made their respective presentations.      The state prosecutor outlined

the state’s evidence against Gumaer and presented the state’s plea offer. In exchange for Gumaer

pleading guilty to one count of rape in the first degree stemming from his contact with V-1, the

state prosecutor explained, the state would recommend a sentence of 25 years in prison, 20 to 25

years of supervised release, and registration as a sex offender in the New York State Sex Offender

Registry. The state’s plea offer also required Gumaer to participate in an interview with the FBI.

       The AUSA then outlined the federal government’s evidence against Gumaer.        The AUSA

advised that the federal government could not make a plea offer until Gumaer was in federal

custody and until the offer had received approval through an internal USAO plea offer approval

process.   Nevertheless, the AUSA informed Gumaer and Kilker that the “best possible case

scenario” for a potential future plea offer would entail the following: (1) Gumaer would plead

guilty to two counts of sexual exploitation of a minor/production of child pornography (one count

per victim); (2) the government would seek the maximum sentence on each of the two counts; and

(3) the government would seek to have each of the two federal sentences run consecutively to the

state sentence and to each other.    Sp. App. 13.    The AUSA then reiterated that the federal

government was not making a plea offer and that the USAO would likely seek additional charges

with respect to the defendant’s sexual exploitation of V-1 and V-2.

       After these presentations, the prosecutors gave Gumaer and Kilker another opportunity to

meet privately.   After meeting with his client, Kilker informed the group that he had spoken with

Gumaer and that Gumaer would accept the state’s plea offer. After Kilker finished speaking,

Gumaer affirmed that he wanted to accept the state’s plea offer, that he wanted the AUSA to begin

the USAO’s internal plea approval process, and that he would consent to be interviewed by the

FBI in accordance with the state’s plea deal.


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       On December 6, 2016, the FBI interviewed Gumaer.          Present at the interview were two

FBI agents (including SA Lyons), Kilker, and Gumaer.         SA Lyons informed Gumaer that in

addition to the state charges, there was a sealed federal complaint charging him with one count of

production of child pornography and one count of possession of child pornography. SA Lyons

told Gumaer that he would receive a copy of the sealed complaint once it was unsealed.         After

noting both sets of charges, SA Lyons stated that “it is our understanding that we are going to

speak to you today about those charges” and that Gumaer had “indicated to us previously that you

had no issue with that.” Sp. App. 16.    Gumaer responded: “I don’t.” Sp. App. 16.       SA Lyons

then advised Gumaer that he could consult privately with Kilker at any time during the interview.

SA Lyons informed Gumaer of his Miranda rights, and Gumaer executed a form waiving those

rights in Kilker’s presence.   SA Lyons then conducted a three-hour interview in which Gumaer

admitted to much of the criminal conduct of which he had been accused.

       On December 21, 2016, Gumaer appeared with his attorney in New York state court. The

parties acknowledged the aforementioned plea agreement: Gumaer would plead guilty to rape in

the first degree, and the state would recommend a 25-year sentence with 20 years of post-release

supervision.   After the state prosecutor informed the state court judge of the pending federal

charges, the judge proceeded to question Gumaer about those charges.            He asked whether

Gumaer “had an adequate amount of time to discuss this whole situation with [his] attorney.”    Sp.

App. 18.    He asked whether Gumaer had been afforded the opportunity to discuss with his

attorney “the evidence both the district attorney’s office has and the U.S. attorney’s office has in

connection with all of these matters against you.”   Sp. App. 19. And he asked Gumaer whether

he had discussed with his attorney “not only the evidence that they have, but your relative chance




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of success or failure should you decide to take these matters to trial.” Sp. App. 19.          Gumaer

responded in the affirmative to all three questions.

         Following that colloquy, the state court judge confirmed with Gumaer that he understood

the rights he was giving up by pleading guilty. The judge then accepted Gumaer’s waiver of his

right to a grand jury indictment, as well as his plea of guilty to rape in the first degree.

         B. Procedural History

         On the day of Gumaer’s guilty plea in state court, the USAO applied for and received a

writ of habeas corpus ad prosequendum to have Gumaer produced before a federal magistrate

judge.    Gumaer’s initial appearance took place on December 30, 2016, when the magistrate judge

held a video conference with Gumaer, the AUSA, and an Assistant Federal Public Defender.

Gumaer received copies of the since-unsealed criminal complaint and arrest warrant.               The

magistrate reviewed Gumaer’s financial affidavit and appointed the Office of the Federal Public

Defender (“OFPD”) as counsel for Gumaer.

         On January 11, 2017, a grand jury returned an indictment in the United States District Court

for the Northern District of New York charging Gumaer with four counts of Sexual Exploitation

of a Child, in violation of 18 U.S.C. §§ 2251(a) & (e); one count of Receipt of Child Pornography,

in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (b)(1); one count of Transportation and Shipment

of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) & (b)(1); and two counts of

Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) & (b)(2).

         On March 27, 2017, Gumaer moved to dismiss the indictment with prejudice based upon

the USAO’s alleged interference with his Fifth Amendment substantive due process rights and his

Sixth Amendment right to counsel. Gumaer alleged, in substance, that the USAO violated these

provisions by “delaying the unsealing of the federal criminal complaint until after Gumaer


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cooperated with federal authorities and entered a guilty plea in state court to a related charge,”

thereby “prevent[ing] Gumaer from being assigned counsel on his federal case until December 30,

2016, after Gumaer had already waived his Fifth Amendment rights.” App. 46.

       The Honorable Thomas J. McAvoy, Senior United States District Judge, rejected these

arguments and denied the motion. Following the denial of Gumaer’s motion, the USAO rejected

Gumaer’s request to enter into a conditional plea agreement.       Gumaer proceeded to trial on

September 18, 2017.       After a four-day jury trial, Gumaer was convicted on all eight counts.

Judge McAvoy sentenced Gumaer to a term of 65 years’ imprisonment, to run consecutively to

Gumaer’s state sentence of 25 years.     Judgment was entered on February 2, 2018, and Gumaer

appealed that same day.

                                            Discussion

       On appeal, Gumaer challenges only the district court’s denial of his pre-trial motion to

dismiss the indictment.    “We review a district court’s decision denying a motion to dismiss an

indictment de novo.”   United States v. Yousef, 327 F.3d 56, 137 (2d Cir. 2003).

       A. Fifth Amendment

       Gumaer first argues that the USAO’s application to seal the criminal complaint against him

violated his Fifth Amendment substantive due process rights.      This argument lacks merit.    In

broad terms, Gumaer asserts that the federal government violated his fundamental “right to fairness

in a criminal proceeding.”    Appellant Br. 40. But in more concrete terms, Gumaer argues that

by sealing the complaint against him and thereafter meeting with him and obtaining statements

from him before he was presented in federal court on the federal complaint, the USAO delayed

the appointment of federal defense counsel until after Gumaer had crippled any potential future

defense he might make to the federal charges. According to Gumaer, this conduct violated his


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substantive due process rights.

        We disagree.    Assuming without deciding that Gumaer’s allegations could establish a

substantive due process claim, the district court’s factual findings refute the claim that the

government conduct here was fundamentally unfair. With respect to the USAO’s application to

seal the complaint against Gumaer, the district court concluded that the USAO had a “justifiable

basis to believe that further investigation would disclose more expansive criminal conduct,”

potentially involving other suspects, and that sealing of the complaint ultimately allowed “federal

investigators . . . to pursue areas of investigation without unduly tipping their hand to the basis for

their inquiries.”   Sp. App. 24.   With respect to the November 29 meeting with Gumaer at the

USAO, the district court found that “[t]he purpose of the meeting was for the state and federal

prosecutors to lay out for [Gumaer] and his counsel the evidence each had against [Gumaer], for

the state prosecutor to present a plea bargain deal on the state charges, for the federal prosecutor

to provide an overview of possible dispositions in federal court, and for both prosecutors to seek

[Gumaer]’s cooperation in identifying other possible child victims.”           Sp. App. 12.     These

findings belie the notion that the USAO engaged in conduct improperly geared toward delaying

the appointment of federal counsel for Gumaer or otherwise prejudicing his “right to fairness in a

criminal proceeding.”

        B. Sixth Amendment

        Gumaer next argues that the federal government violated his Sixth Amendment right to

counsel by delaying the appointment of his federal counsel until after he had confessed his crimes

to the FBI and pled guilty to the state charges. Again, we disagree. The Sixth Amendment

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.”    U.S. Const. amend. VI.     But in order to show a violation


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of the Sixth Amendment, Gumaer must establish that his Sixth Amendment right had “attached”

at the time of its claimed violation. See Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 215 (2008)

(Alito, J., concurring) (“[Attachment] mean[s] nothing more than that a criminal prosecution has

begun.”) (internal quotation marks and alterations omitted). Attachment of the Sixth Amendment

right to counsel occurs “only when formal judicial proceedings are initiated against an individual

by way of indictment, information, arraignment, or preliminary hearing.”           United States v.

Gouveia, 467 U.S. 179, 180 (1984).        In other words, absent the filing of a formal charging

instrument, the right to counsel attaches “at the first appearance [by the accused] before a judicial

officer at which a defendant is told of the formal accusation against him and restrictions are

imposed on his liberty.” Rothgery, 554 U.S. at 194 (majority opinion).

       Gumaer claims that the government violated his right to counsel by conducting the

November 29 meeting at the USAO and the December 6 interview with the FBI prior to the

appointment of Gumaer’s federal counsel.      But both of those events occurred before the federal

government had initiated “formal judicial proceedings” against Gumaer “by way of indictment,

information, arraignment, or preliminary hearing.” Gouveia, 467 U.S. at 186.         Gumaer points

to federal agents’ filing of a criminal complaint and arrest warrant with the jail where Gumaer was

being held. But as we held in United States v. Moore, 670 F.3d 222 (2012), “[a]bsent a formal

charge, arrest on a warrant, even one issued pursuant to a criminal complaint sworn out by

prosecutors, is insufficient [to trigger Sixth Amendment protections] prior to the initial appearance

before a judicial officer.” Id. at 234. Because Gumaer had not been formally charged or made

his initial appearance before a judicial officer by the time of the November 29 or December 6

meetings, Gumaer’s Sixth Amendment right to counsel had not yet attached at the time of those




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events.2

        Gumaer attempts to circumvent the fact that his Sixth Amendment right had not yet

attached by relying on United States v. Stein, 541 F.3d 130 (2d Cir. 2008), for the proposition that

“[w]hen the government acts prior to indictment so as to impair the suspect’s relationship with

counsel post-indictment, the pre-indictment actions ripen into cognizable Sixth Amendment

deprivations upon indictment.” Id. at 153.         But Stein is readily distinguishable from Gumaer’s

case.   In Stein, the government interfered with the defendants’ Sixth Amendment right to counsel

by pressuring KPMG, the defendants’ employer, to abandon its preexisting policy of advancing

legal fees to employees who incurred liability out of their activities at the firm. Id. at 137. The

pressure that the government applied to KPMG violated the Sixth Amendment because some of

the Stein defendants “were unable to retain the counsel of their choosing as a result of the

termination of fee advancements upon indictment,” while other defendants were “caused . . . to

restrict the activities of their counsel, and thus to limit the scope of their pre-trial investigation and

preparation.” Id. at 157 (internal quotation marks omitted).

        This case presents none of the singular facts presented in Stein.               Here, the federal

government did not interfere in any way with Gumaer’s ability to obtain and fund the counsel of

his choice after indictment.        See Medunjanin, 752 F.3d at 590 (rejecting a similar Sixth

Amendment claim, based on analogy to Stein, because “Medunjanin was not denied his choice of

counsel”).    On the contrary, at Gumaer’s initial appearance on December 30 (and in light of

Gumaer’s indigency), the magistrate judge appointed an OFPD attorney to represent Gumaer—

the very same counsel that would have been appointed regardless whether he had any contact with


2
  Gumaer does not raise a challenge to the admissibility of his inculpatory statements during the December 6
interview, which were made only after Miranda warnings had been given and he had executed a waiver.


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federal agents prior to his court appearance.   As the district court found, the government obtained

sealing of the criminal complaint and the arrest warrant in this matter and thereafter met with

Gumaer in the preindictment period in furtherance of its ongoing investigation, which sought, inter

alia, to identify other suspects and other potential victims.    Nothing in the Sixth Amendment

prohibited this investigation, nor did the government’s activities in this regard prevent the OFPD

from representing Gumaer once he was formally charged.            In short, Stein does not support

Gumaer’s Sixth Amendment claim because the government’s conduct here in no way impaired

Gumaer’s right to counsel after a formal charge had been lodged.

                                          *       *      *

         We have considered all of Gumaer’s remaining arguments and find them to be without

merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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