    14-90028-am
    In re Villanueva


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
    ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
    RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING
    A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
    FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A
    PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 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 1st day
    of December, two thousand fifteen.

    PRESENT:
              JOSÉ A. CABRANES,
              ROBERT D. SACK,
              RICHARD C. WESLEY,
                   Circuit Judges.
    _____________________________________


    In re Gary S. Villanueva,                                      14-90028-am

                             Attorney.                             ORDER OF
                                                                   GRIEVANCE PANEL

    _____________________________________



1         Gary S. Villanueva was admitted to the New York State bar in

2   1984, and to this Court’s bar in 1991.         By order filed in March 2015,

3   we directed Villanueva to show cause why disciplinary or other
1    corrective measures should not be imposed on him pursuant to Federal

2    Rules of Appellate Procedure 46(b) and (c) and Second Circuit Local

3    Rule 46.2, based on his conduct in several appeals and one district

4    court criminal proceeding.   Contrary to our instruction, Villanueva

 5   failed to explain all of the conduct described in that order.    See

 6   In re Aranda, 789 F.3d 48, 57 (2d Cir. 2015) (holding that a failure

 7   to properly respond to an order to show cause why discipline should

 8   not be imposed constitutes both an independent basis for disciplinary

 9   action and an aggravating factor).   Based on the conduct discussed

10   below, and Villanueva’s failure to properly respond to our March 2015

11   order, we publicly reprimand Villanueva for his misconduct in this

12   Court. 1

13        The relevant conduct is detailed in the March 2015 order, which

14   will be made public.   In the present decision, we primarily focus

15   on the conduct Villanueva failed to adequately explain.

16


     1
       Villanueva’s response to the March 2015 order was due by April 16,
     2015, but was not filed until July 13, 2015. When asked about his
     overdue response by a Court employee, Villanueva stated that he had
     not seen the order at the time it was mailed to him in March 2015.
     Although Villanueva’s written response to the order does not address
     the delay or request an extension of time, we sua sponte construe
     it as including such a request and grant it. For present purposes,
     we do not address whether Villanueva’s delay constituted additional
     misconduct, as it would not alter the result.

                                      2
1    I.   United States v. Berganza (Gomez-Lopez), Nos. 10-1868 (L),
2         10-4828 (Con)
3
4         Villanueva represented Carlos Fernando Gomez-Lopez in his

5    appeal from a judgment sentencing him to, inter alia, 120 months’

6    imprisonment. 2 After the appeal was opened, Villanueva was contacted

7    four times regarding his failure to file this Court’s Form B, as

8    required under Second Circuit Local Rule 12.2(a)(1).          After the

9    first call, a default order was entered stating that the appeal would

10   be dismissed unless the form was filed by a specified deadline.      See

11   Berganza,   No.   10-4828,   doc.   5.   Villanueva   did   not   comply;

12   fortunately for his client, the appeal was not dismissed based on

13   Villanueva’s default.    After the fourth call, Villanueva moved for,

14   and was granted, leave to withdraw as counsel, and new counsel was

15   appointed to represent Gomez-Lopez.      See id., doc. 14 (order).

16        In his response to our March 2015 order, Villanueva stated that,

17   after learning of Gomez-Lopez’s pro se notice of appeal, he “wrestled

18   with concerns regarding [Gomez-Lopez’s] potential exposure” to a

19   higher sentence if his case were remanded by this Court; those

20   concerns led to Villanueva’s motion for the appointment of new



     2
        The district court dockets for the four cases discussed in sections
     I through IV of this decision reflect that Villanueva was appointed
     to represent his clients in those cases under the Criminal Justice
     Act.

                                         3
 1   counsel, to allow for an independent reevaluation of Gomez-Lopez’s

 2   potential exposure, Villanueva’s performance, and Gomez-Lopez’s

 3   appeal waiver.   Response at 12.     He asserts that the delay in filing

 4   Form B did not prejudice Gomez-Lopez or any other person.           Id.

 5        Villanueva also addressed his Form B defaults in an introductory

 6   statement concerning all four appeals that are the subject of this

 7   disciplinary proceeding.      He stated that the Form B defaults in the

 8   four appeals “represent inefficiencies in [his] law practice which

 9   [he has] taken steps to correct by engaging an administrative

10   assistant experienced in federal appellate procedure.”           Id. at 11.

11   He also stated that those defaults “do not represent archetypically

12   unethical or unbecoming conduct” and did not prejudice his clients

13   since the appeals were decided on their merits.         Id.

14        Villanueva did not explain his failure to respond to the Court’s

15   first three telephone messages, which were left over a span of five

16   weeks, or his failure to request either an extension of time to file

17   the required form or a stay of the appeal while he evaluated the risk

18   posed by the appeal.     An attorney who is evaluating whether an appeal

19   should   proceed,   or   whether   the   attorney   should    continue    his

20   representation, cannot passively allow deadlines in the appeal to

21   expire during that evaluation process.       If the attorney has not yet

22   decided to either withdraw as counsel or withdraw the appeal, he must

                                          4
 1   request an extension of any looming deadline, a stay of the appeal,

 2   or advice from the Court.       “Simply ignoring the deadline . . . is

 3   not an option.”      In re Payne, 707 F.3d 195, 203-04 (2d Cir. 2013)

 4   (discussing attorney who permitted briefing deadlines to expire

 5   while awaiting stipulations to withdraw his clients’ appeals); see

 6   In re Yan, 390 F. App’x 18, 20 (2d Cir. 2010) (“[I]f it is unclear

 7   whether a client wishes to proceed, an attorney may, depending on

 8   the circumstances, request: an extension of time to file his brief,

 9   a stay of the appeal, withdrawal as counsel, withdrawal of the appeal,

10   or advice from the Court. [The attorney’s] failure to take any of

11   the preceding actions was a disservice to his clients, this Court,

12   and the public.”).

13        Villanueva also did not address the order threatening dismissal

14   of the appeal if the missing form was not filed by the specified

15   deadline, or his failure to meet that deadline, or the fact that he

16   did not move to withdraw as counsel until five weeks after the order

17   was filed and three weeks after the deadline.         If the Court had

18   dismissed the appeal on that deadline, as threatened, Villanueva’s

19   evaluation of the appeal would have been a moot exercise.      Although

20   Villanueva claimed that his clients were not prejudiced by his Form

21   B   defaults,   he     risked   serious   prejudice   to   Gomez-Lopez,




                                          5
 1   “specifically, the substantial risk that the appeal could have been

 2   dismissed.”   Aranda, 789 F.3d at 51.

 3   II.   United States v. Britton (Guerino), No. 12-49

 4         Villanueva represented Joseph Guerino in his appeal from a

 5   judgment sentencing him to, inter alia, 44 years’ imprisonment.

 6   Villanueva’s defaults in Britton were similar to those in Berganza.

 7   He was contacted three times by Court personnel regarding his failure

 8   to file required forms and, on two occasions, default orders were

 9   entered threatening dismissal of the appeal if he did not file the

10   missing forms.   See Britton, No. 12-49, docs. 9, 17 (orders).   When

11   Villanueva did not respond to the second such order, the appeal was

12   dismissed.    See id., doc. 20.       However, the appeal was later

13   reinstated, with new counsel assigned, after Guerino himself wrote

14   to the Court stating that Villanueva had abandoned him and ceased

15   communicating with him about the appeal.    See id., doc. 24 (pro se

16   motion), doc. 28 (reinstatement order).

17         In his response to our March 2015 order, Villanueva stated that

18   “the critical decisions regarding the Guerino appeal were rendered”

19   while he was overwhelmed by three complicated criminal proceedings

20   in district court and by his grief concerning personal losses in his

21   life (which we discuss infra).   Response at 14.   He did not identify

22   the “critical decisions,” or specifically address: the unanswered

                                       6
 1   communications from the Court, the two orders threatening dismissal

 2   based on his defaults, the resulting default dismissal, or his

 3   client’s    assertion    that   Villanueva    had    abandoned    him.

 4   Additionally, he did not make clear how the district court cases

 5   prevented him from responding to this Court’s communications and

 6   orders; he provided the dates of various district court proceedings

 7   in late 2011 and early January 2012, see id. at 13-14, but this Court’s

 8   first order threatening dismissal was filed on January 19, 2012, the

 9   unanswered Court communications were made in February 2012, the

10   second order threatening dismissal was filed on February 24, 2012,

11   and the dismissal was entered in March 2012, see Britton, No. 12-49,

12   entries 9-12, 17, 20.

13        Although Villanueva did not mention the dismissal of the appeal

14   based on his default, he did note that the conviction was ultimately

15   affirmed by this Court and asserted that his client therefore

16   suffered no prejudice.     See Response at 14.      That assertion is

17   somewhat disingenuous, since it was the client himself, and not

18   Villanueva, who requested reinstatement of the appeal.    See Britton,

19   No. 12-49, entry 24.    In any event, there was no guarantee that the

20   appeal would be reinstated after that dismissal and, therefore,

21   Villanueva exposed his client to the risk of severe prejudice.     See

22   In re Aranda, 789 F.3d at 51; In re DeMell, 589 F.3d 569, 573 (2d

                                       7
 1   Cir. 2009) (“[A] reasonable attorney with thirty years’ experience

 2   ... clearly would know that defaulting on a client’s case leaves open

 3   the possibility of severe prejudice.”).

 4   III. United States v. Clarke (Phillips), No. 12-266

 5        Villanueva represented Glenroy Phillips in his appeal from a

 6   judgment sentencing him to, inter alia, 96 months’ imprisonment.

 7   Phillips filed his own notice of appeal, stating in a letter to the

 8   Court that he had requested that Villanueva file a notice of appeal,

 9   but Villanueva had not done so.   See Clarke, No. 12-266, doc. 1.   As

10   detailed in our March 2015 order, the docket reflects that Villanueva

11   thereafter defaulted on several occasions, culminating in the

12   dismissal of the appeal based on his failure to file a brief and

13   appendix.     See id., doc. 32 (dismissal order); see also March 2015

14   Order at 2.    Approximately five months after the default dismissal,

15   Phillips filed a pro se motion to recall the mandate, which was

16   forwarded to Villanueva.     See Clarke, No. 12-266, doc. 34.    Well

17   over a year later, Villanueva moved to reinstate the appeal, stating

18   that the dismissal had resulted from unspecified “overwhelming

19   personal and professional obligations.”     Id., doc. 35.   The motion

20   was deemed defective for failure to include a brief and appendix,

21   and a deadline for curing the defect was set.      See id., doc. 36.

22   Villanueva cured the defect approximately three months after the

                                        8
 1   deadline.    See id., doc. 42.       The appeal was reinstated, and the

 2   judgment of conviction was affirmed.

 3         In his response, Villanueva briefly described the district

 4   court proceedings, and disputed Phillips’s assertion that he had

 5   requested Villanueva to file a notice of appeal.           See Response at

 6   15-16.      Aside   from   the   general   remarks   in   his   introduction

 7   concerning his Form B defaults in all four appeals, see id., at 11,

 8   he did not address his defaults in Clarke, the dismissal of the appeal

 9   based on his default, his failure to request reinstatement until

10   Phillips himself had requested that relief, or the risk of severe

11   prejudice to Phillips.

12   IV.   United States v. Prado (Guzman), No. 14-4707

13         Villanueva represented Adalberto Ariel Guzman in his appeal

14   from a judgment sentencing him to, inter alia, life imprisonment.

15   After Villanueva defaulted on the filing of Form B, an order issued

16   stating that the appeal would be dismissed if he failed to cure the

17   default by January 20, 2015.       See Prado, No. 14-4707, doc. 5.      When

18   Villanueva failed to comply, the Court left messages for him twice,

19   in February and March 2015, requesting that he file Form B or a motion

20   to be relieved as counsel.       See id., entries 9-10.   On March 31, 2015

21   and April 2, 2015, respectively, Villanueva filed a motion to be

22   relieved and Form B (although both were initially found defective).

                                           9
 1   See id., docs. 11-17, 20-23.     He was thereafter replaced by new

 2   counsel.   See id., doc. 26.

 3        In Villanueva’s response to our March 2015 order, he stated,

 4   inter alia, that his delay in moving to withdraw as counsel resulted

 5   from his sense of responsibility for Guzman, that the late filing

6    of Form B “was inexcusable,” and that no one was prejudiced by it.

7    See Response at 16-17.    He did not mention the order threatening

8    dismissal, his failure to comply with the deadline provided in that

9    order, the multiple communications that were required before he

10   belatedly complied, or the fact that his response to that order was

11   filed well over two months after its due date at which time the appeal

12   was to be dismissed. 3



     3
        We also directed Villanueva to address his conduct in a district
     court criminal case, United States v. Santiago, No. 00-cr-237
     (S.D.N.Y.), but we reach no conclusions concerning that conduct.
     His client in that case, Santiago, asserted that Villanueva had,
     inter alia, failed to request resentencing, as permitted by the terms
     of this Court’s remand on direct appeal, and failed to communicate
     with Santiago. See March 2015 order at 3. In his response to our
     March 2015 order, Villanueva stated that he had determined that
     moving for resentencing for Santiago would be futile and that
     Santiago was aware of “the status of his sentence”; however,
     Villanueva did not state that he, himself, ever informed Santiago
     of his decision not to pursue resentencing, or specify how or when
     Santiago became aware of the “status” of his sentence. See Response
     at 19-21. While Villanueva’s response leaves significant questions
     unanswered, we decline to inquire further because it is unlikely
     further information would alter the disposition of this proceeding.
                                       10
 1   V.   Mitigating and Aggravating Factors

 2        In his response to the March 2015 order, Villanueva described

 3   personal and professional circumstances that we consider significant

 4   mitigating factors for some, but not all, of the relevant conduct.

 5   After the October 2009 death of his close friend and professional

 6   colleague, with whom he had shared an office and support staff,

 7   Villanueva assumed responsibility for his colleague’s cases and the

 8   closing of the colleague’s practice.      Additionally, without his

 9   colleague’s financial contribution, he needed to relocate his

10   office, which occurred in early 2010, and lacked consistent support

11   staff for the next five years.   See Response at 2-3.

12        From January 2010 through August 2010, he also was responsible

13   for the care of his terminally ill parents, spending a great deal

14   of time doing such things as shopping, cooking, managing medications,

15   and traveling to medical appointments.   See id. at 3-4.   His parents

16   died in June and August 2010, respectively, and, during the “next

17   year” (i.e., through an unspecified date in 2011), his two next

18   closest relatives also died.   See id. at 4.   Villanueva stated that

19   his misconduct in Berganza, Britton, Clarke, and Prado “occurred or



     However, other disciplinary committees are free to pursue the matter
     further.



                                      11
1    commenced in the wake of these personal and professional tragedies”

2    and, although “[r]eeling with shock and disbelief, [he] was unable

3    to seek comfort or counseling.”    Id.

4      An attorney’s culpability for misconduct may be mitigated if,

5    during the relevant time period, the attorney was overwhelmed by the

6    illnesses or other dire circumstances of close family and friends,

7    or by grief, depression, shock, or other forms of mental trauma.   We

8    accept Villanueva’s sworn statements concerning the time and effort

9    required to care for his terminally ill parents and to wind down his

10   close friend’s law practice.    The impact of his grief and shock is

11   more difficult to gauge, because he did not explain with any

12   specificity how they affected his practice or otherwise link them

13   to his misconduct.     However, for present purposes, we assume his

14   grief and shock had a significant impact on his ability to meet his

15   professional obligations during the time periods specified in his

16   response, which extended through some part of 2011, and perhaps for

17   a period thereafter.

18     Villanueva’s misconduct in Berganza occurred in December 2010 and

19   January 2011; in Britton, his misconduct began in January 2012 and

20   extended through at least July 2012 (when his client’s pro se motion

21   for reinstatement of the appeal was forwarded to him) and arguably

22   through October 2013 (when the appeal was sua sponte reinstated and

                                       12
1    new counsel appointed); in Clarke, his misconduct occurred in January

 2   2012 through early September 2014; and, in Prado, it occurred in early

 3   2015.   His failure to respond appropriately to our March 2015 order

 4   occurred this year.   We do not wish to minimize the potential impact

 5   of grief and other forms of mental trauma, but Villanueva has not

 6   suggested that his grief and shock had any appreciable impact on his

 7   professional conduct in the later years in which his misconduct

 8   occurred.   Thus, although we assume his grief and shock had a

 9   substantial impact in the early years, warranting a finding of

10   mitigation, there is no evidence (or assertion) that they impacted

11   the later years. 4

12        We give little weight to Villanueva’s statement that, in the

13   five-year period after his colleague’s October 2009 death, he lacked

14   consistent support staff due to the loss of his colleague’s financial

15   contribution.   If an attorney is financially unable to maintain a

16   staff and other office resources commensurate with his caseload, he




     4
       Due to the difficulty of assessing the impact of mental trauma on
     an attorney’s professional obligations, attorneys are encouraged to
     provide as much detail as possible when raising that issue.
     Corroborating evidence, including sworn statements from medical or
     mental health professionals and others with personal knowledge of
     the impact, would be helpful. However, the need for corroborating
     evidence will differ from case to case.

                                      13
 1   is obligated to reduce that caseload or find some other means to

 2   ensure his clients are not prejudiced.

 3         Villanueva’s failure to explain, or even mention, much of the

 4   questionable conduct described in our March 2015 order, contrary to

 5   our explicit instruction, constitutes an admission that he did, in

 6   fact, engage in that conduct and lacked any legitimate excuse for

 7   it.   See Aranda, 789 F.3d at 57.    Additionally, since he failed to

 8   address conduct that is central to this disciplinary inquiry, that

 9   failure is considered a significant aggravating factor, even if it

10   was not intentional.   Id. at 58.

11         Finally, the fact that his misconduct occurred in criminal

12   appeals, where important liberty interests were at stake, is also

13   a significant aggravating factor.        Id. at 59.

14   VI.   Conclusion

15         Upon due consideration of Villanueva’s misconduct in Berganza,

16   Britton, Clarke, and Prado, and his failure to properly respond to

17   our March 2015 order, it is hereby ordered that Villanueva is publicly

18   reprimanded for his misconduct in this Court.

19         The Clerk of Court is directed to release this decision to the

20   public by posting it on this Court’s web site and providing copies

21   to the public in the same manner as all other unpublished decisions

22   of this Court, and to serve a copy on Villanueva, the attorney

                                         14
1   disciplinary committees for the New York State Appellate Division,

2   First Department, and the United States District Courts for the

3   Eastern and Southern Districts of New York, and all other courts and

4   jurisdictions to which this Court distributes disciplinary decisions

5   in the ordinary course. 5

6
7                                  FOR THE COURT:
8                                  Catherine O=Hagan Wolfe, Clerk




    5
      Counsel to this panel is authorized to provide, upon request, all
    documents from the record of this proceeding to other attorney
    disciplinary authorities. While we request that those documents
    remain confidential to the extent circumstances allow, we of course
    leave to the discretion of those disciplinary authorities the
    decision of whether specific documents, or portions of documents,
    should be made available to any person or the public.

                                    15
