                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               August 15, 2016
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                             No. 15-4050
 ROBERT G. LUSTYIK, JR.,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                (D.C. NO. 2:12-CR-00645-TC-DBP-1)


Michael J. Langford, Law Office of Michael J. Langford, Salt Lake City, Utah,
for Appellant.

William A. Glaser, Appellate Section, Criminal Division (Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General,
Peter M. Koski, Deputy Chief, Public Integrity Section, Maria N. Lerner, Public
Integrity Section, Anne Marie Blaylock Bacon, Asset Forfeiture & Money
Laundering Section, United States Department of Justice, Washington, DC, and
John W. Huber, United States Attorney for the District of Utah, Salt Lake City,
Utah, with him on the brief), United States Department of Justice, Washington,
DC, for Appellee.


Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit
Judges.


TYMKOVICH, Chief Judge.
      Robert G. Lustyik served as a special agent with the Federal Bureau of

Investigation for twenty-four years before he was indicted on charges related to

the obstruction of justice. Prior to trial, Lustyik pleaded guilty to all charges in

the indictment without a plea agreement. After his plea, his lead counsel

withdrew and Lustyik obtained new counsel. On the eve of sentencing, counsel

sought an order allowing him to obtain security clearance to review classified

material he believed might be relevant for sentencing. The district court, having

previously reviewed the documents, deemed them irrelevant to the sentencing

issues, denied the motion, and subsequently sentenced Lustyik to 120 months’

imprisonment.

      Lustyik argues that the district court’s order denying his counsel access to

the classified materials violated his Sixth Amendment rights at sentencing. We

affirm the district court’s denial of Lustyik’s motion and its judgment below. The

court’s decision was not presumptively prejudicial to Lustyik’s advocacy at

sentencing, nor did the district court abuse its discretion in concluding the

documents were not relevant for sentencing.

      We remand for the limited purpose of clarifying the general sentence.

                                 I. Background

      Former FBI agent Robert G. Lustyik wanted to help his friend and business

partner, Michael L. Taylor, in return for payment. Taylor owned American

International Security Corporation (AISC), a company that offered security and

                                          -2-
defense contracting services. The Department of Defense awarded AISC a

contract in 2007 to provide training and related services to Afghan Special

Forces. In mid-2010, the United States began investigating AISC regarding fraud

and money laundering in connection with the 2007 contract.

      In September 2011, the United States filed a civil forfeiture action against

assets owned by Taylor and AISC, which resulted in the seizure of more than $5

million dollars from AISC’s bank account. Lustyik used his status as an FBI

agent to impair the government’s investigation of Taylor, including attempting to

establish Taylor as a confidential source. From February through August 2012,

Lustyik contacted multiple individuals connected with the AISC investigation to

dissuade them from indicting Taylor and promoted him as a confidential source.

      In return for Lustyik’s efforts, Taylor promised Lustyik cash payments and

shared profits from their joint business venture. Lustyik repeatedly reminded

Taylor of his need for money, and Taylor promised, “You will have more coin

than you know what to do with.” R., Vol. I at 141.

      In 2012, a grand jury indicted Lustyik, Taylor, and their middle-man

Johannes Thaler, for conspiracy, honest services wire fraud, obstruction of

justice, and obstruction of agency proceedings. The United States proceeded to

disclose more than one million pages of unclassified discovery, and more than

10,000 pages of partially-redacted classified discovery to all defense counsel with

security clearance including Lustyik’s lead counsel. Of those 10,000 classified

                                        -3-
pages, the government disclosed 6,961 pages to Lustyik, even though he no longer

had a security clearance.

      Pursuant to the Classified Information Procedures Act (CIPA) § 5(a),

Lustyik and his co-defendants identified classified information—80 pages of

interviews, 400 pages of documents, and 15 topics—they wished to present at

trial. After the government objected, the court met ex parte with Defendants’

counsel to understand how Defendants wanted to use the evidence. The court

held a hearing on the government’s motion and subsequently determined the

confidential information was inadmissible, concluding most of the information

was not relevant under Federal Rule of Evidence 401. To the extent a piece of

evidence was relevant, the court found it inadmissible under Rule 403 because

Defendants “intend[ed] to offer details of information Mr. Taylor provided to the

FBI[,]” which “would create a sideshow that would waste time and substantially

risk confusing the jury.” R., Vol. I at 180. Further, the question for the jury was

not the actual value of Taylor as a source, but rather Lustyik’s good faith belief

that what he was doing was legitimate. The court also described equally

probative evidentiary alternatives.

      A few days later, during Lustyik’s first day of trial, he pleaded guilty to

each of the eleven counts in the indictment without a plea agreement. In

November 2014, the court granted Lustyik’s lead counsel’s motion to withdraw

and appointed Lustyik’s local counsel as substitute counsel. The court

                                         -4-
rescheduled sentencing to March 30, 2015, allowing more than four months to

prepare. On February 12, defense counsel received the pre-sentence investigation

report (PSR), prepared by a probation officer who was not provided with

classified information. On March 2, Lustyik filed a motion for an order allowing

his attorney to seek security clearance in preparation for sentencing.

      A magistrate judge denied the motion. The district court affirmed and

denied Lustyik’s corresponding motion to continue. At the March 30 sentencing

hearing, Lustyik’s attorney indicated he only knew the case, “to the extent [he

could].” R., Vol. III at 85. The court responded that the classified information

“would not add to your ability to make a good argument and to argue for your

client.” Id. The court added, “To the extent that it would be relevant, I am well

aware, mainly from the materials that Mr. Taylor has sent, that Mr. Taylor may

have had some value as an operative or as a contact, which is what I think you

were needing it for.” Id. Counsel responded, “Yes, Judge.” Id. at 86.

      Lustyik’s counsel went on to present sentencing considerations under 18

U.S.C. § 3553(a) (nature of the offense, just punishment, deterrence, public

protection, and rehabilitation). Counsel described that Lustyik’s crime did not

involve violence, did not implicate national security, and was not successful. He

detailed the legal and extra-legal punishment Lustyik had suffered and promoted

Lustyik’s previously unblemished career and the work he had done for the

community.

                                         -5-
      Counsel succeeded in securing a downward variance from the guidelines

range. The court departed from the recommended range of 151 to 188 months and

imposed a 120-month sentence considering minimal deterrence value, family

need, and prison conditions.

      Lustyik appeals, arguing that his constitutional rights were violated when

his counsel was denied access to the classified materials.

                                  II. Discussion

      We review district court rulings limiting access to evidence for abuse of

discretion. See United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004).

But to the extent Lustyik asserts that the district court’s decision violated his

Sixth Amendment rights, we review the decision de novo. 1 United States v.

DeChristopher, 695 F.3d 1082, 1095 (10th Cir. 2012) (“We ordinarily review

evidentiary rulings for abuse of discretion, but to the extent Defendant asserts the

exclusion of evidence violated his constitutional rights, we review the ruling de

novo.”).

      We first examine the scope of the Sixth Amendment as it relates to

accessing discovery during sentencing proceedings, and then determine whether


      1
        Lustyik alludes in his opening brief that he also has a due process right to
review the classified documents. He does not describe the contours of this right,
but merely asserts that it has been violated. Since he did not raise a due process
argument before the district court, we review for plain error. He advances no
argument as to why the district court plainly erred, thereby waiving the argument.
United States v. Rodebaugh, 798 F.3d 1281, 1305 (10th Cir. 2015).

                                         -6-
the district court abused its discretion in denying access to the classified

materials.

      A. The Sixth Amendment

      The Sixth Amendment guarantees every defendant “the assistance of

counsel for his defense.” U.S. Const. amend VI. The Supreme Court has

interpreted this right to extend to all critical stages of criminal proceedings,

including sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977)

(“[S]entencing is a critical stage of the criminal proceeding at which [the

defendant] is entitled to the effective assistance of counsel.”); United States v.

Washington, 619 F.3d 1252, 1258 (10th Cir. 2010). The guarantee of “effective”

assistance follows from the Amendment’s language and purpose—to ensure

fairness in the adversary process. United States v. Cronic, 466 U.S. 648, 655–56

(1984). The accused thus has the right to subject the prosecution’s case to “the

crucible of meaningful adversarial testing.” Id. at 656. In evaluating whether

the accused’s right to counsel has been violated, we must consider whether the

criminal proceeding “cannot be relied on as having produced a just result.”

Strickland v. Washington, 466 U.S. 668, 686 (1984).

      Lustyik contends the district court denied him the right to meaningful

adversarial testing. He claims his lawyer was hamstrung at sentencing because

the court denied him access to potentially relevant classified information that he

could have used to argue for a more lenient sentence.

                                          -7-
      As an initial matter, the Sixth Amendment’s guarantee of effective counsel

applies to court-imposed limitations on the adversarial process. That is, trial

courts must ensure that restrictions on representation by counsel do not undercut

his or her role as an effective advocate. Herring v. New York, 422 U.S. 853, 857

(1975); see also 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §

11.8(a) (4th ed.) (“The ‘right to the assistance of counsel’ the Supreme Court

noted in Herring, ‘has been understood to mean that there can be no restrictions

upon the function of counsel in defending a criminal prosecution in accord with

the traditions of the adversary factfinding process.’ Accordingly, state action,

whether by statute or trial court ruling, that prohibits counsel from making full

use of traditional trial procedures may be viewed as denying defendant the

effective assistance of counsel.”).

      Of course, not all government action regulating the trial process violates

the Sixth Amendment. A defendant must generally show how a particular action

violates his right to a fair trial. See Michigan v. Lucas, 500 U.S. 145 (1991)

(holding that courts may not find a per se Sixth Amendment violation where the

defendant was unable to present relevant evidence). This is because a rigid, per

se rule is, by its nature, too blunt an instrument to account for the “legitimate

demands of the adversarial system[.]” See United States v. Nobles, 422 U.S. 225,

241 (1975); see also 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure

§ 2.9(g) (4th ed.) (explaining that in the Sixth Amendment context, a “per se

                                          -8-
standard is either overinclusive or underinclusive as compared to the application

of that function to all relevant circumstances on a case-by-case basis”); cf.

Strickland, 466 U.S. at 688 (noting that for ineffective assistance claims “specific

guidelines are not appropriate[,]” rather, “the performance inquiry must be

whether counsel’s assistance was reasonable considering all the circumstances”).

      Still, a bright-line rule may be appropriate where the constitutional

violation is so flagrant that we need not consider it on a case-by-case-basis. E.g.,

Turner v. Murray, 476 U.S. 28, 36–37 (1986) (per se unfair trial where capital

defendant accused of an interracial crime cannot question prospective jurors on

the issue of racial bias). A categorical approach may also be appropriate to

alleviate administrative difficulties and apply prophylactic rules. E.g., Roe v.

Flores-Ortega, 528 U.S. 470, 477 (2000) (per se ineffective assistance if counsel

fails to file a requested appeal as of right); Edwards v. Arizona, 451 U.S. 477,

484–85 (1981) (per se Fifth Amendment protection where accused invokes his

right to counsel and police re-engages interrogation); Cuyler v. Sullivan, 446 U.S.

335, 349–50 (1980) (per se ineffective assistance of counsel where conflict-of-

interest affects representation).

      By that logic, the right to effective assistance of counsel is presumptively

violated only where the circumstances “are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is unjustified.” Cronic, 466

U.S. at 658. A court must determine whether “there was a breakdown in the

                                          -9-
adversarial process that would justify a presumption that [a defendant’s]

conviction was insufficiently reliable to satisfy the Constitution.” Id. at 662. In

explaining Cronic, the Supreme Court has identified three situations where the

defendant need not show prejudice or harm:

             First and “[m]ost obvious” was the “complete denial of
             counsel.” . . . Second, we posited that a similar presumption
             was warranted if “counsel entirely fails to subject the
             prosecution’s case to meaningful adversarial testing.” Finally,
             we said that in cases like Powell v. Alabama where counsel is
             called upon to render assistance under circumstances where
             competent counsel very likely could not, the defendant need
             not show that the proceedings were affected.

Bell v. Cone, 535 U.S. 685, 695 (2002) (citations omitted).

      Lustyik contends the district court ruling violated a variation of the second

and third situations described above. He claims the limitations on his counsel’s

ability to review classified materials fatally undercut his effectiveness, and

prevented him from adequately testing the government’s position at sentencing.

For support, he points to our decision in United States v. Collins, 430 F.3d 1260

(10th Cir. 2005). There we applied Cronic’s presumption of prejudice where the

defendant was effectively denied counsel at a competency hearing. The district

court had denied defense counsel’s request to withdraw the day of defendant’s

hearing, but proceeded with the hearing anyway. Defense counsel remained

present but “abstained from providing the court with information relevant to the

issue of competency.” Id. at 1266. We found defendant was constructively



                                         -10-
denied effective counsel due to the “complete absence of adversarial testing” of

the government’s case at the hearing. Id. at 1265. Relying on Collins, Lustyik

argues he was effectively without counsel at sentencing. We disagree, for several

reasons.

      First, as the Supreme Court has emphasized, the Sixth Amendment’s right

to counsel applies only where there has been a complete breakdown in the

adversarial process, such that “counsel has entirely failed to function as the

client’s advocate.” Florida v. Nixon, 543 U.S. 175, 189 (2004). As we put it in a

recent case, counsel’s performance must be so lacking that “in effect, no

assistance of counsel is provided.” Williams v. Trammell, 782 F.3d 1184, 1201

(10th Cir. 2015) (quoting Cronic, 466 U.S. at 654 n.11). Only in those cases do

we presume the defendant has been denied a fair trial.

      But where defense counsel’s conduct has only been partially restricted by

the trial court, such as here, the presumption of prejudice does not apply. See,

e.g., Goodwin v. Johnson, 132 F.3d 162, 176 n.10 (5th Cir. 1997) (“When the

defendant receives at least some meaningful assistance, he must prove prejudice

in order to obtain relief for ineffective assistance of counsel.”). Not every

“disadvantage to the defense’s representation” infects the proceedings “with error

of constitutional dimensions.” United States v. Bell, 795 F.3d 88, 96 (D.C. Cir.

2015) pet. for cert. filed, No. 15-8606 (Mar. 18, 2016).




                                        -11-
      Nor do the circumstances here eliminate the “likelihood that any lawyer,

even a fully competent one, could provide effective assistance.” Cronic, 466 U.S.

at 659–60. The Supreme Court has found a constitutional violation only in a few

circumstances including where the district court (1) prohibited direct examination

of the defendant by his counsel, see Ferguson v. Georgia, 365 U.S. 570 (1961);

(2) required defendants who choose to testify to do so before any other defense

witnesses, see Brooks v. Tennessee, 406 U.S. 605 (1972); (3) refused to allow

defense counsel closing argument in a bench trial, see Herring, 422 U.S. 853; and

(4) prohibited consultation between a defendant and his attorney during an

overnight recess between direct- and cross-examination of the defendant, see

Geders v. United States, 425 U.S. 80 (1976). See also Shillinger v. Haworth, 70

F.3d 1132, 1141 (10th Cir. 1995) (summarizing cases). As we explained in

Shillinger, the Sixth Amendment right to counsel is presumptively violated where

the government acts with the purpose of intruding on the attorney-client

relationship, absent a countervailing interest. Id. at 1141–42.

      Lustyik has failed to establish that the district court’s determination by

itself creates a Sixth Amendment violation. 2 So, we review this factual

finding—that the classified material was not relevant for sentencing—for abuse of

discretion. See United States v. Apperson, 441 F.3d 1162, 1193 (10th Cir. 2006)



      2
         Further, Lustyik does not engage in a factual inquiry of constitutional
ineffectiveness by pointing us to any prejudicial effect.

                                        -12-
(reviewing district court’s restrictions regarding discoverable classified

information).

      Lustyik argues the classified documents might contain information

regarding the criminal act and his character, which, he says, are relevant to the 18

U.S.C. § 3553(a) sentencing factors. But he does not explain what material he

needed, nor what additional light it might have shed on his character.

      Instead, the record amply supports the district court’s conclusion. Counsel

received more than one million pages of unclassified documents prior to

sentencing, and Lustyik himself was able to review almost 7,000 pages of

classified material. The probation officer prepared the PSR without access to

confidential information. After Lustyik’s counsel received the PSR, the

government confirmed that it would not be basing sentencing arguments on

classified material. The district court had already read the confidential material

and heard from Taylor regarding his value as a confidential source. Further,

Taylor’s value as a source was only relevant to the extent Lustyik was aware of it.

The relevant question is what Lustyik believed about Taylor’s value, not his

objective potential. 3 Lustyik did not need access to confidential materials to



      3
         This is because the crime Lustyik committed involved a question of
intent: whether he intended to offer Taylor as an informant purely to impair the
government’s investigation of Taylor, or whether he honestly believed Taylor
would provide information of value to the government. If Taylor had
information, but Lustyik was unaware of this, nothing in the confidential
information would be relevant to the district court’s consideration.

                                         -13-
make this showing. At the sentencing hearing, counsel proceeded to argue each

of the 18 U.S.C. § 3553(a) sentencing factors and secured a significant downward

variance—the court varied downward from the recommended range of 151 to 188

months to impose a 120-month sentence. 4

      It is worth noting the district court here faced circumstances similar to

those courts routinely face in addressing confidential or private information. In

many situations we allow courts to review evidence in camera to determine its

relevancy and admissibility. For example, where the government is required to

turn over relevant and material evidence to the accused, but the information is the

victim’s confidential medical information, the defendant’s interests are instead

protected by the trial court’s in camera review. Pennsylvania v. Ritchie, 480 U.S.

39 (1987). And where the party seeking access to undisclosed information can

“point to no prejudice or harm” from in camera review, we have declined to find

an abuse of discretion. Estate of Trentadue ex rel. Aguilar v. United States, 397

F.3d 840, 865 (10th Cir. 2005); see also United States v. Gagnon, 470 U.S. 522,

526 (1985) (finding no constitutional violation where the court questioned a juror

in camera); United States v. Hinkle, 37 F.3d 576 (10th Cir. 1994) (finding




      4
         Lustyik argues his co-defendant received a shorter sentence, 24 months’
imprisonment, for similar conduct. But the co-defendant’s guidelines range was
70 to 87 months, less than half of Lustyik’s range. Further, the government faced
a suppression of evidence issue in the other case that led to its agreement to the
specific sentence approved by the court.

                                        -14-
defendant’s Confrontation Clause rights fulfilled even though counsel was not

given access to mental health history, which the court reviewed in camera).

      In sum, the district court did not violate Lustyik’s Sixth Amendment right

to counsel nor did it abuse its discretion in determining the confidential material

was not relevant for sentencing.

      B. CIPA Does Not Entitle Lustyik To Relief

      Lustyik also contends the district court should have interpreted the

Classified Information Procedures Act (CIPA) “to allow defense counsel to

review classified information in preparation for a sentencing hearing.” Aplt Br.

15.

      CIPA provides guidance to trial judges applying Federal Rule of Criminal

Procedure 16(d) (discovery) where confidential information is involved. United

States v. El-Mezain, 664 F.3d 467, 519–20 (5th Cir. 2011). CIPA “clarifies

district courts’ power under Federal Rule of Criminal Procedure 16(d)(1) to issue

protective orders denying or restricting discovery for good cause.” United States

v. Aref, 533 F.3d 72, 78 (2d Cir. 2008); see also CIPA § 4, 18 U.S.C. App. III § 4

(“The court, upon a sufficient showing, may authorize the United States to delete

specified items of classified information from documents to be made available to

the defendant through discovery under the Federal Rules of Criminal Procedure

. . . .”). It is a procedural statute, however, that does not give rise to an

independent right to discovery. El-Mezain, 664 F.3d at 519–20; see also United


                                          -15-
States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (“CIPA does not create any

discovery rights for the defendant.”).

      While CIPA could provide procedural guidance to a district court in

restricting or denying review of classified information, it does not provide

Lustyik a freestanding right to classified information. 5 And to the extent Lustyik

argues CIPA’s procedural requirements highlight the court’s duty to balance the

government’s need for confidentiality with the defendant’s right to a fair trial, as

we explained above the district court did not abuse its discretion in denying

access to the confidential information.

      C. Sentencing Error

      Finally, the government concedes the sentence of 120 months may be

reversible error. Two of the eleven counts Lustyik pleaded guilty to only carry a

maximum sentence of five years. See 18 U.S.C. § 371 (Count 1); 18 U.S.C.

§ 1505 (Count 11). “A district court imposes an illegal sentence when it

sentences a defendant to a term of incarceration that exceeds the statutory

maximum.” United States v. MacKay, 715 F.3d 807, 846 (10th Cir. 2013). The

remaining counts, however, provide for at least a ten-year maximum sentence. 18

      5
         Lustyik additionally suggests Federal Rule of Criminal Procedure 32
supports his right to access confidential material, but does not sufficiently
develop the argument. “The court will not consider such ‘issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation.’” United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004)
(quoting Murrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994)). Further,
the parties do not dispute the Rule 32 procedural guarantees have been satisfied.

                                          -16-
U.S.C. § 1343 (twenty years); 18 U.S.C. § 1503 (ten years). At sentencing, the

district court did not differentiate between the separate counts but rather imposed

a blanket 120-month sentence. Therefore, “the judgment is unclear whether the

district court intended to impose a [120]-month sentence on each count, a clearly

illegal sentence.” MacKay, 715 F.3d at 846. Based on the government’s

concession, we remand to the district court for the limited purpose of clarifying

the general sentence. Id. at 846–47.

                                III. Conclusion

      We AFFIRM the district court’s denial of Lustyik’s request for a security

clearance for his attorney. We REMAND for sentence clarification.




                                        -17-
