                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


KHARII W. BRODIE,

                      Plaintiff,
                                                  Civil Action No. 11-1769 (BJR)
               v.
                                                  MEMORANDUM OPINION
BRENT JACKSON,

                      Defendant.



                                     I. INTRODUCTION

       Pro se Plaintiff, Kharii W. Brodie, was convicted of a federal crime. In his criminal

appeal and habeas petition, Brodie unsuccessfully challenged his conviction and sentence by

arguing that his former criminal attorney, Brent Jackson, had represented him ineffectively. In

the instant suit, Brodie alleges that Jackson committed legal malpractice during the course of his

representation. The matter is currently before the Court upon consideration of Jackson’s Motion

for Judgment on the Pleadings, in which he argues that Brodie’s legal malpractice claims are

precluded under the doctrine of collateral estoppel. For the following reasons, the Court grants

the Defendant’s motion.

                     II. FACTUAL & PROCEDURAL BACKGROUND

       In August 2004, a grand jury indicted Brodie of wire fraud and conspiring to make false

statements to financial institutions to obtain mortgage loans. See United States v. Brodie, Crim.

No. 02-190, Second Superseding Indictment [Dkt. #95] at 1. Assistant United States Attorney

Katherine Worthington presented the government’s evidence to the grand jury. See Amd.

Compl. at 2.
       In January 2005, a jury found Brodie guilty of the charges in this indictment. See United

States v. Brodie, 524 F.3d 259, 261 (D.C. Cir. 2008). During his trial, Brodie was represented by

Attorney Bruce Johnson and prosecuted by AUSA Jonathan Rosen.

       After his conviction, Brodie retained Brent Jackson, the defendant in the instant case, to

represent him in obtaining post-trial relief and at his sentencing. Specifically, Defendant Jackson

agreed to do the following post-trial relief work:

       Trial Relief – Due to the fact that this firm is concerned with the representation of
       the prior attorney during trial, it will be this firm’s task to review the entire cause
       of action to discern whether or not there exists a sufficiency of evidence claim; to
       review any and all evidence that has not been introduced by his attorney (or
       review evidence that his trial attorney was not aware of); to converse with
       witnesses and/or ascertain whether additional witnesses are available; to discern
       whether or not said statutory sections are appropriate; to file relevant motions
       with the Court with regard to bond (if appropriate), to set aside the verdict of the
       Court, and other post conviction motions which are appropriate and possess merit;
       and to perform any and all tasks which are relevant and appropriate hereunder.

Amd. Compl., Ex. B-1 (“letter of engagement”). Defendant Jackson entered an appearance in

February 2005.

       Brodie alleges that Jackson never filed “the motions he was hired to submit.” Pl.’s Opp’n

at 4. Brodie furthermore claims that he paid Jackson an additional $5,000 to attain an expedited

trial transcript, and that Jackson never reviewed the trial transcript with Brodie. Id.

       Ultimately, Brodie was sentenced to 57 months of imprisonment, three years of

supervised release and ordered to pay $355,449.70 in restitution. In September 2005, Jackson

withdrew as counsel. Pl.’s Opp’n at 4.

       Brodie, by then incarcerated and proceeding pro se, filed an appeal, asserting inter alia

ineffective assistance of counsel. Brodie claims that he asked Jackson for his “entire original




                                                  2
court files,” and that Jackson’s failure to comply greatly hindered Brodie’s ability to successfully

argue his appeal. Pl.’s Opp’n at 5.

       In March 2009, Brodie was released from prison. Pl.’s Opp’n at 5. Shortly afterwards, in

April 2009, Brodie moved the district court to vacate, set aside or correct his sentence, asserting,

inter alia, a litany of alleged errors by his criminal attorney resulting in ineffective assistance of

counsel. Judge Huvelle, who had presided over his criminal case, denied Brodie’s motion.

United States v. Brodie, Crim. No. 02-190, Mem. Op. (Dkt # 174) at 3.

       In September 2009, Brodie filed a civil complaint against 17 individuals, including most

of the judges sitting on the D.C. Circuit bench, Judge Huvelle, the Attorney General, the Bureau

of Prisons Director, AUSA Rosen, AUSA Worthington, Johnson and Jackson. See Brodie v.

Worthington et al., Civil Action No. 09-1828, Compl. (Dkt. #1). Judge Kennedy dismissed these

claims, and, in particular, dismissed the legal malpractice claims against Jackson due to

insufficiency of process. See id., Order (Sept. 21, 2011, Dkt. # 110). The case was transferred to

the undersigned Judge, who denied Brodie’s motion for reconsideration. The D.C. Circuit

affirmed that decision in September 2012.

       A few weeks later, in October 2011, Brodie filed the instant complaint against Jackson

only. Defendant Jackson moved to dismiss, arguing that Brodie’s claims were barred by the

statute of limitations and collateral estoppel. In the alternative, Jackson moved for a more

definite statement. The Court denied Defendant Jackson’s motion to dismiss, but granted his

motion for a more definite statement. Mem. Op. (July 24, 2012) at 3. Given the lack of clarity

in the original Complaint, the Court declined to rule as to whether collateral estoppel precluded

Brodie’s legal malpractice claims.




                                                   3
       Brodie filed his Amended Complaint on July 26, 2012. See generally Amd. Compl.

Jackson again moved for dismissal, arguing that the amended complaint remained vague and

inadequate and, therefore, did not meet pleading requirements. The Court rejected these

arguments, finding that Brodie’s amended complaint met the requirements of Federal Rule of

Civil Procedure 8(a). Mem. Op. (November 9, 2012) at 12. The Court did, however, dismiss

sua sponte Counts 1 and 2 for failure to state a claim.

       Brodie’s remaining claims center around his argument that Jackson committed legal

malpractice when he failed to file a motion for judgment of acquittal based on what Brodie

claims were false statements by the criminal prosecutors. Pl.’s Opp’n at 3. According to Brodie,

AUSA Worthington falsely told the grand jury that Brodie had lied on mortgage loan

applications by stating that he was a United States citizen, that he was not self-employed, and by

falsifying the income he had earned for tax years 1995 and 1996. Amd. Compl. at 2 & ¶ 15.

Similarly, Brodie claims that the AUSA Rosen and Johnson had entered into allegedly inaccurate

stipulations during the trial, namely, that Brodie was not a United States citizen and that the

Internal Revenue Service did not have any record of Brodie’s tax identification number. Amd.

Compl. at 2, ¶¶ 16-17.

       More generally, Brodie claims that Jackson should have filed a motion to dismiss or

taken other legal action based on the fact that Plaintiff was a United States citizen. Amd. Compl.

¶ 18. Additionally, Brodie claims that Jackson failed to return his entire court file prior to his

release from incarceration, thereby hindering Brodie from having access to what he considered to

be critical evidence in formulating his appeal. Amd. Compl. ¶ 20 (Count 8). Similarly, Brodie

claims that, during the course of his legal representation, Jackson failed to review the trial

transcript and his criminal case file with Brodie. Id. ¶ 22 (Count 10). Brodie claims that



                                                  4
Jackson’s professional negligence led to Brodie’s sentence, the loss of $56,000 in attorney fees

for services that Brodie claims he did not receive, and Brodie’s high blood pressure. Amd.

Compl. ¶¶ 23-25.

       Defendant now moves for judgment as to the remaining claims, reasserting yet again his

argument that Brodie’s claims are barred by collateral estoppel. With this motion ripe for

consideration, the Court turns to the parties’ arguments and the applicable legal standards. 1

                                           III. ANALYSIS

A. Legal Standard for Judgment on the Pleadings

       “After the pleadings are closed but within such time as not to delay the trial, any party

may move for judgment on the pleadings.” See FED. R. CIV. P. 12(c). Under Federal Rule of

Civil Procedure 12(c), the Court must accept the nonmovant’s allegations as true and should

view the facts in the light most favorable to the nonmovant. See Judicial Watch, Inc. v. Clinton,

880 F. Supp. 1, 7 (D.D.C. 1995). The court should grant a motion for judgment on the pleadings

if the movant “is entitled to judgment as a matter of law.” See Burns Int’l Sec. Servs. v. Int’l

Union, 47 F.3d 14, 16 (2d Cir. 1995).


1
       Brodie filed a motion for leave to file a sur-reply, stating that he seeks to respond to new factual
       allegations and legal issues raised by Jackson in his reply brief. See generally Pl.’s Mot. for
       Leave to File Sur-reply, Dkt. # 31. However, Brodie fails to identify these new factual and legal
       issues. In any event, the Court has not considered any new facts or law that Jackson may have
       raised in his reply and therefore a sur-reply is not helpful to the Court. Accordingly, the Court
       denies Brodie’s motion for leave to file a surreply. Banner Health v. Sebelius, 905 F. Supp. 2d
       174, 187 (D.D.C. 2012) (“the determination as to whether to grant or deny leave is entrusted to
       the sound discretion of the district court”); Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C.
       2001) (denying leave to file a sur-reply where the plaintiff failed to demonstrate that the
       defendant's reply presented any new matters).




                                                    5
        Generally, if a court considers matters outside the pleadings, then a motion for judgment

on the pleadings will be treated as a motion for summary judgment. However, this is not so if

the court is merely taking judicial notice of its own records, as the Court is doing here. Cf. 18

FED. PRAC. & PROC. § 4405 n.32 (explaining that a court may consider res judicata arguments

raised in a Rule 12(b)(6) motion so long as it considers the pleadings and materials of which the

court may take judicial notice).




B. Legal Standard for Collateral Estoppel

        Under issue preclusion (also known as collateral estoppel), “once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.” Yamaha Corp. of Am.

v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94). Issue

preclusion applies if three criteria are met: (1) if in the prior litigation, the issue was “actually

litigated, that is, contested by the parties and submitted for determination by the court;” (2) if the

prior litigation was “actually and necessarily determined by a court of competent jurisdiction;”

and (3) if “preclusion in the second trial [does] not work an unfairness.” Otherson v. Dep’t of

Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (citations omitted). A defendant may assert

“collateral estoppel to prevent a plaintiff’s litigation of issues the plaintiff previously litigated

and lost . . . even though the defendant was not himself bound by the prior judgment.” McCord

v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980).

C. The Doctrine of Issue Preclusion Bars Brodie’s Legal Malpractice Claims

        Jackson argues that Brodie’s claims are precluded by the decisions of the D.C. Circuit




                                                   6
and Judge Huvelle, both of which rejected Brodie’s arguments that Jackson had rendered

ineffective assistance of counsel. 2 Def.’s Mot. at 9. Jackson contends that the issue addressed in

those prior decisions is the same as the issue presented to this Court, i.e. whether Jackson’s

performance was so deficient as to prejudice Brodie in his criminal proceedings. Id. at 14.

According to Jackson, Brodie cannot defeat issue preclusion by offering new legal theories or

factual assertions that he neglected to previously raise. Id. at 15.

       Brodie responds that the issues dealt with in his criminal proceedings are different than

the issues he raises in this legal malpractice suit, and thus issue preclusion does not apply. Pl.’s

Opp’n at 1, 7. Brodie insists that nowhere “in the court’s established records . . . [has Brodie]

previously brought up the issues stated in [his] complaint.” Id. at 7. According to Brodie, the

crux of the instant legal malpractice suit is that Jackson failed to “submit[] a motion of judgment

of acquittal [based] on the specific issues complained of in [the instant] amended complaint.” Id.

at 10. Indeed, Brodie states that he would not have filed a civil suit against Jackson if Jackson

had simply filed a motion for acquittal. Id.

       Collateral estoppel may preclude a plaintiff from raising legal malpractice claims if the

plaintiff has previously presented an unsuccessful ineffective assistance of counsel claim that

raised the same factual and legal issues. See e.g., McCord v. Bailey, 636 F.2d 606, 609 (D.C.

Cir. 1980); Alevras v. Tacopina, 226 F. App’x 222 (3d Cir. 2007). In addressing whether

2
       The parties conflate claim preclusion and issue preclusion (respectively referred to as res judicata
       and collateral estoppel). “Under the doctrine of res judicata, or claim preclusion, a subsequent
       lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of
       action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment
       on the merits, (4) by a court of competent jurisdiction.” Porter v. Shah, 606 F.3d 809, 813 (D.C.
       Cir. 2010). Brodie’s prior ineffective assistance of counsel claim and his instant legal malpractice
       claims are two separate causes of action. Moreover, Jackson was not a party in the criminal
       proceedings nor in privity with the government. Accordingly, claim preclusion does not apply.




                                                    7
collateral estoppel is appropriate, the Court turns to consider what issues were litigated and

decided in the prior criminal proceeding and whether any of those decided issues remain material

and preclude the instant malpractice claims. 3

       In his criminal appeal, Brodie argued, inter alia, that “his counsel was ineffective in

failing to move for judgment of acquittal.” United States v. Brodie, 524 F.3d 259, 273 (D.C. Cir.

2008). Brodie did not specify what arguments his counsel should have put forth in such a motion

for acquittal. Instead, Brodie averred that his “counsel acted as a rubber stamp for the

prosecution” and that Jackson had been hired to request acquittal but had failed to do so. United

States v. Brodie, No. 05-3131, Brodie’s “Amdmt. to Appellant’s Pro-Se Suppl. Br.” at 24-25

(June 26, 2006); id., Brodie’s “Mot. En Banc De Nova” at 7 (Aug. 8, 2008). The Circuit swiftly

rejected Brodie’s ineffective assistance of counsel claim, explaining that even if Brodie could

show that his counsel had erred by not filing a motion for acquittal, Brodie had not suffered

prejudice “[b]ecause the evidence of Brodie’s guilt was overwhelming.” 4 United States v.

Brodie, 524 F.3d at 273. In finding that there was no prejudice, the Circuit determined that

Brodie could not show “a reasonable probability that, but for [Jackson’s failure to file a motion

for acquittal], the result of the proceeding would have been different.” Strickland v. Florida


3
       The other requirements for issue preclusion are clearly met. First, there is no question that the
       D.C. Circuit is a court of competent jurisdiction. Second, preclusion would not “work an
       unfairness” since Brodie “had every incentive in his criminal proceedings to argue aggressively
       for his claim of ineffective assistance of counsel.” McCord v. Bailey, 636 F.2d at 609; see also
       Johnson v. Sullivan, 784 F. Supp. 2d 1, 12 (D.D.C. 2010) (finding that preclusion of plaintiff’s
       malpractice claims did not work a basic unfairness because plaintiff “vigorously and persistently
       sought post-conviction relief and had the benefit of legal representation).
4
       The Circuit used the phrase “trial counsel” to refer to both Jackson and Johnson. See United
       States v. Brodie, 524 F.3d at 272 (referring to trial counsel when discussing the alleged
       ineffectiveness during sentencing, which was handled by Jackson).




                                                   8
State Prison, 466 U.S. at 698. In sum, the Circuit believed that the evidence against Brodie was

so incriminating that even if Jackson had filed a motion for acquittal, Brodie would still have

been convicted.

       In the instant case, Brodie again argues that Jackson should have filed a motion for

acquittal. This time around, Brodie arguments are more detailed, contending that Jackson should

have filed a motion for acquittal in light of evidence that Brodie was a citizen, that he was not

self-employed, and that he did not falsify his income tax returns. Presumably, Brodie believes

that such evidence would have refuted the prosecution’s claim that Brodie lied on the mortgage

applications with respect to his nationality, income, and employment. 5 However, as with the

ineffectiveness of counsel claim, Brodie has to show also that Jackson’s failure to file a motion

for acquittal caused him harm, in order to succeed with his instant legal malpractice claims. See

Bigelow v. Knight, 737 F. Supp. 669, 671 (D.D.C. 1990) (stating that a plaintiff in a legal

5
       Brodie suggests that these more specific arguments were not available to him previously because
       the evidence supporting such arguments came to his attention only upon his release from prison,
       i.e., once he was able to travel to Richmond and photocopy Jackson’s files. However, the record
       disproves Brodie’s contention that such evidence is new: during his appeal, Brodie raised
       evidence of his U.S. Citizenship and of his employment in a company called I.C.N. (which would
       have demonstrated that he was not self-employed). See United States v. Brodie, No. 05-3131,
       Brodie’s Brief “In Lieu of Oral Argument” at 9 (June 8, 2007); id., Brodie’s “Amdmt. to
       Appellant’s Pro-Se Suppl. Br.” at 21 (June 26, 2006). Furthermore, Brodie disingenuously states
       that at the time he prepared his appeal, he only had his indictment, when in reality the record is
       clear that Brodie had the “pertinent trial transcripts, which he [] used to perfect [his] pro-se
       appellant brief, and the supplemental briefs thereafter.” See id., Brodie’s Pro-Se Appellant
       response to Court Ordered Transcript Status Filing (Jan. 19, 2007). Indeed, contrary to
       complaining that he lacked the proper documentation needed to formulate his appeal, Brodie
       urged the Circuit not to delay in its review of his case and expressed his belief that his appellant
       briefing was sufficient for a “full review of [his] case.” Id. Accordingly, the Court rejects
       Brodie’s argument, insofar as he suggests that his legal malpractice claims should not be
       precluded because he could not have raised these arguments until now. See Alveras, 226 F.
       App’x at 230 (holding that plaintiff “had the opportunity to challenge [his counsel’s] competence,
       prior to and at the sentencing hearing, in his [post-conviction motion]. [Plaintiff’s] failure to
       assert the [] issue in favor of that [ineffective assistance of counsel] claim does not give him the
       right to relitigate [his counsel’s] effectiveness again in this separate [legal malpractice] action.”).




                                                     9
malpractice claim must show that the counsel’s “negligence resulted in and was the proximate

cause of the loss to the client”); Strickland v. Florida State Prison, 466 U.S. 668, 698 (1984)

(holding that an ineffective assistance of counsel claim requires the criminal defendant to “show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”).

        As explained above, the Circuit has already decided that Jackson’s failure to file a motion

for acquittal caused Brodie no prejudice because the evidence of his guilt was overwhelming.

Thus, the issue litigated and decided by the Circuit during the course of Brodie’s criminal

appeal—i.e., whether or not Jackson’s alleged failure to file a motion for acquittal caused Brodie

harm—is identical to the issue of damages which Brodie’s must show to succeed with his legal

malpractice claims. Brodie cannot argue that the issues he presents in this legal malpractice suit

are different than those presented in his criminal appeal simply by providing more detailed

arguments now as to why Jackson should have moved for acquittal. Yamaha, 961 F.2d (“[O]nce

an issue is raised and determined, it is the entire issue that is precluded, not just the particular

arguments raised in support of it in the first case.”). The fact remains that a prior court of

competent jurisdiction has already decided that Jackson did not cause Brodie any harm, even

though Jackson erred in failing to file a motion for acquittal on Brodie’s behalf. Because

Brodie’s legal malpractice claims hinge upon his claim that Jackson’s failure to file a motion for

acquittal caused him harm, and because the Circuit has already decided that issue, the Court




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grants Jackson’s motion for judgment on the pleadings and dismisses this action under the

doctrine of issue preclusion. 6

                                          IV. CONCLUSION

       For the foregoing reasons, the Court hereby GRANTS Defendants’ motion for judgment

on the pleadings. An Order will be issued simultaneously and contemporaneously with this

memorandum opinion.



July 23, 2013




                                                          BARBARA J. ROTHSTEIN
                                                          UNITED STATES DISTRICT JUDGE




6
       Most of Brodie’s claims directly complain of Jackson’s failure to file a motion for acquittal, and
       the rest of his claims are premised on the notion that the failure to file for acquittal caused him
       harm. Indeed, Brodie concedes as much when he states that he would not have filed a civil suit
       against Jackson if he had simply filed a motion for acquittal. See Pl.’s Opp’n at 10. For instance,
       Brodie claims that Jackson was negligent when he failed to review and return Brodie’s criminal
       file in a timely fashion. Brodie suggests that the Jackson’s failure to review and return his file led
       to Jackson not filing a motion for acquittal, which in turn led to Brodie’s prolonged incarceration
       and other alleged damages. Because all of Brodie’s instant claims are premised on whether
       Jackson harmed Brodie by neglecting to file a motion for acquittal, and because that issue is
       precluded under the doctrine of collateral estoppel, the Court concludes that all of Brodie’s claims
       must be denied.




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