United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Submitted November 13, 2018              Decided April 9, 2019

                         No. 17-3031

                 UNITED STATES OF AMERICA,
                         APPELLEE

                               v.

                    CALEB GRAY-BURRISS,
                        APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:10-cr-00178-1)


     Eric H. Kirchman, appointed by the court, was on the brief
for appellant.

    David Rybicki, Deputy Assistant Attorney General, and
Vincent J. Falvo, Jr., Attorney, U.S. Department of Justice, were
on the brief for appellee. Elizabeth Trosman, Assistant U.S.
Attorney, entered an appearance.

   Before: GARLAND, Chief Judge, and GRIFFITH and
WILKINS, Circuit Judges.
                                  1

     Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: A jury convicted Caleb Gray-
Burriss of fraud and embezzlement stemming from his
management of the National Association of Special Police and
Security Officers. We previously affirmed the convictions in
most respects. In accordance with this circuit’s practice,
however, we remanded Gray-Burriss’ ineffective-assistance-of-
counsel claims because he had not previously raised them in the
district court. That court conducted the remand proceedings in
an exemplary fashion, leaving little for us to do other than
recount its conclusions and express our agreement that Gray-
Burriss’ claims lack merit.1

                                  I

     In 1993, Caleb Gray-Burriss founded the National
Association of Special Police and Security Officers (NASPSO),
a union for private security officers working in federal buildings.
Gray-Burriss held various high-ranking positions in the union,
including executive director, secretary-treasurer, and president.
By the early 2000s, Gray-Burriss’ financial management of the
union began to draw legal scrutiny. In 2007, he entered into a
consent decree with the Department of Labor to pay more than
$100,000 in restitution for funds siphoned from NASPSO’s
pension and health plans. In June 2010, a grand jury indicted
Gray-Burriss for again misappropriating funds intended for the
pension plan. The grand jury returned a second superseding
indictment in August 2012.




    1
       This case was considered on the record from the United States
District Court for the District of Columbia and on the briefs filed by
the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
                                 2

     The second superseding indictment alleged two schemes.
In the first, Gray-Burriss deposited employer contributions to a
NASPSO-sponsored pension plan into an ordinary checking
account, from which he “would expend the funds of the
NASPSO Pension Plan for himself, for NASPSO, and for third
parties not entitled to those funds.” Second Superseding
Indictment ¶ 9 (J.A. 88). In the second scheme, Gray-Burriss
embezzled more than $200,000 in union funds by, inter alia,
directing the union’s payroll company to increase his salary and
bonus payments without authorization. For those actions, Gray-
Burriss faced charges of mail fraud (counts 1-6), embezzlement
(counts 7-12), and other related offenses.2

      The district court set the case for trial in November 2012.
Two attorneys represented Gray-Burriss at trial. Heather Shaner
was appointed by the district court as Gray-Burriss’ Criminal
Justice Act (CJA) attorney in early July 2010, shortly after the
first grand jury indictment. Patrick Christmas was retained by
Gray-Burriss as primary trial counsel in July 2012.

     The defense’s principal strategy was to argue that Gray-
Burriss had acted in good faith and that he was the victim of
vindictive prosecution. During the trial, Shaner attempted to
introduce testimony from David Levinson, a NASPSO attorney.
According to her proffer, Levinson would have testified that he
heard NASPSO general counsel Bruce Goodman tell a
Department of Labor investigator that he had advised Gray-
Burriss that it was permissible to use money from the union’s


    2
       The other counts charged Gray-Burriss with conspiracy to
embezzle (count 13), destruction of subpoenaed documents (count 15),
witness tampering (count 16), and Labor-Management Reporting and
Disclosure Act violations (counts 17-19). He was also charged with
criminal contempt for failing to comply with the 2007 consent decree
(count 14).
                                    3

pension fund to pay for union operating expenses. The district
court excluded the proposed testimony as hearsay.

     On December 4, 2012, the jury convicted Gray-Burriss on
eighteen of the nineteen counts of the indictment, acquitting him
only of a witness-tampering charge. Material submitted to the
jury included evidence and testimony that Gray-Burriss illegally
wrote checks to himself from the pension fund, invested
pension-fund monies in Brazilian junk bonds, and used union
funds to make an initial payment of $1,399 on a Las Vegas
condominium in his own name. In April 2013, the court
sentenced him to serve 76 months in prison and to pay
restitution and forfeiture in the amount of approximately
$250,000 each, subtracting from the restitution obligation any
money paid pursuant to the 2007 consent decree with the
Department of Labor.

     In Gray-Burriss’ first appeal to this court, we affirmed the
district court’s judgment with only one exception. United States
v. Gray-Burriss, 791 F.3d 50, 65 (D.C. Cir. 2015).3 Following
this circuit’s usual practice, we remanded Gray-Burriss’ newly
raised claims of ineffective assistance by his trial counsel for
initial consideration by the district court. Id. at 64.4

     3
        We found error only in the court’s decision to exclude from
evidence the defendant’s 2009 employment contract. 791 F.3d at 56.
Although we held that error was harmless with respect to Gray-
Burriss’ convictions, we remanded for the court to determine whether
consideration of the document would reduce the defendant’s sentence
or restitution and forfeiture obligations. Id. at 58-59. On remand, the
district court determined that the same sentence was warranted, and
Gray-Burriss has not raised that issue on this appeal.
     4
       In so doing, we rejected Gray-Burriss’ claim that his attorneys
had a conflict of interest, recharacterized it as an ineffective-assistance
claim, and included it in the remand. 791 F.3d at 64.
                                4

     On remand, represented by new counsel, Gray-Burriss
moved for a new trial and resentencing based on his claims of
ineffective assistance. Those claims principally relate to counts
1-6, involving Gray-Burriss’ conduct with respect to the pension
fund. In August 2016, the district court conducted a two-day
evidentiary hearing, in which it heard testimony by all of the
relevant witnesses: Gray-Burriss, attorneys Shaner and
Christmas, and former union general counsel Goodman.
Thereafter, it denied Gray-Burriss’ motions, rejecting all of his
arguments. United States v. Gray-Burriss, 251 F. Supp. 3d 13
(D.D.C. 2017). Gray-Burriss now appeals, raising what amounts
to three claims of ineffective assistance.

                                II

     As we explained in our previous opinion in this case, when
an ineffective-assistance claim is first raised on appeal, this
circuit’s practice in most instances is to remand the claim to the
district court:

         Due to the fact-intensive nature of the [ineffective-
         assistance] inquiry and the likelihood, when a
         defendant asserts his sixth amendment claim for the
         first time on direct appeal, that the relevant facts will
         not be part of the trial record, . . . this court’s general
         practice is to remand the claim for an evidentiary
         hearing unless the trial record alone conclusively
         shows that the defendant either is or is not entitled to
         relief.

United States v. Gray-Burriss, 791 F.3d at 60 (quoting United
States v. Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003)). The
bar to obtain a remand is relatively low: “[A]ll that is required
for a remand is ‘a colorable and previously unexplored claim of
                               5

ineffective assistance.’” United States v. Murray, 897 F.3d 298,
310 (D.C. Cir. 2018) (quoting Rashad, 331 F.3d at 908).

     In order to establish a claim of ineffective assistance on
remand, however, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). The first, “deficiency” prong of
Strickland requires a showing that the lawyer’s performance
“fell below an objective standard of reasonableness.” Id. at 688.
The second, “prejudice” prong “requires the defendant to
demonstrate that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’” United States v. Eli, 379 F.3d
1016, 1019 (D.C. Cir. 2004) (quoting Strickland, 466 U.S. at
694).

     On appeal after a remand, “[w]e review de novo the District
Court’s denial of [the defendant’s] claim of ineffective
assistance of counsel, including the question whether [he] was
prejudiced by [his] counsel’s allegedly deficient performance.”
United States v. Nwoye, 824 F.3d 1129, 1134-35 (D.C. Cir.
2016) (citing United States v. Abney, 812 F.3d 1079, 1086-87
(D.C. Cir. 2016)). We “review for clear error any findings of
historical fact embedded in the District Court’s conclusions on
deficient performance and prejudice.” Id. at 1135 n.4. We
address the defendant’s three allegations of ineffective
assistance below.

                               A

    Gray-Burriss’ first contention is that his trial counsel
rendered ineffective assistance by failing to lay a proper
foundation for an advice-of-counsel defense at trial. Gray-
Burriss explains that his counsel had “contemplated advancing”
                                  6

the argument that he “lack[ed] criminal intent and acted in good
faith in handling Union funds.” Gray-Burriss Br. 12. “Part of
this included the defense that [Gray-Burriss] had been acting
pursuant to advice of counsel in his dealing with the Union
Pension funds.” Id.

      According to Gray-Burriss, former union general counsel
Goodman would have testified that Goodman “had given [him]
legal advice that the Union could borrow pension funds.” Id. at
10. Although trial counsel did not call Goodman to testify at
trial, Shaner sought to introduce Goodman’s advice through
David Levinson, another union attorney who heard Goodman
tell a Department of Labor investigator about this alleged
advice. The court excluded the proffered Levinson testimony as
hearsay, not subject to an exception because there was no
showing that Goodman was himself unavailable to testify. See
FED. R. EVID. 804(a). Thereafter, trial counsel did not request
an advice-of-counsel jury instruction.

     Gray-Burriss maintains that his attorneys’ conduct
represented a triple failure of effective assistance: they failed to
take reasonable steps to procure Goodman as a witness, failed to
lay a foundation for a hearsay exception to cover Levinson’s
testimony, and failed to request an advice-of-counsel instruction.
For a number of reasons, the district court correctly found that
those “failures” did not constitute deficient performance by the
attorneys. See 251 F. Supp. 3d at 21-22.5


     5
     The court found, for example, that “[d]eclining to locate and call
Goodman would have been a perfectly competent tactical decision
under the circumstances, even if no other avenues existed for the
admission of his testimony.” 251 F. Supp. 3d at 21. This was because

     [s]ubjecting Goodman to cross-examination would have been a
     treacherous proposition: Soon before Gray-Burriss’s trial, he had
                                    7

     But Gray-Burriss’ bigger Strickland problem, also set out
in the district court’s opinion, is the test’s “prejudice” prong.
Gray-Burriss maintains that, if Goodman had testified or if his
statement had come in through a hearsay exception, the court
would have granted a request for an advice-of-counsel
instruction. Moreover, he insists, “[h]ad the jury been given the
advice of counsel instruction there is . . . a reasonable
probability that the result would have been different” -- in the
form of a not-guilty verdict on some or all of the counts. Gray-
Burriss Br. 42-43.

     As the court explained, the flaw in this theory is that “there
would have been no evidentiary basis for issuing an
advice-of-counsel instruction even with Goodman’s testimony.”
251 F. Supp. 3d at 21. A defendant is not entitled to a jury
instruction on that defense unless he introduces evidence that
(1) “he relied in good faith on the counsel’s advice that his
course of conduct was legal,” and (2) “he made full disclosure
of all material facts to his attorney before receiving the advice
at issue.” United States v. DeFries, 129 F.3d 1293, 1308 (D.C.
Cir. 1997). Goodman’s testimony would not have satisfied
either requirement.


     lost his Maryland law license for placing client funds in his
     personal account, failing to pay clients’ medical bills from
     settlement proceeds that he held in trust, failing to maintain a
     client trust account, and failing to keep required financial records.
     These actions clearly bear on Goodman’s trustworthiness; Ms.
     Shaner may have understandably wanted to deemphasize any
     association between him, NASPSO, and Gray-Burriss.

Id. (citation omitted). The court also noted that Shaner’s investigator
had been unable to locate Goodman during the “critical months of
2012,” and that “halting these efforts when she did was a perfectly
reasonable decision under the circumstances and in light of her limited
resources.” Id. at 22.
                                 8

     When he testified at the evidentiary hearing on remand,
“Goodman recounted his specific legal advice to Gray-Burriss
as follows: ‘I advised him that I saw no impediment for the
union to borrow the monies [from the pension fund] for [a
particular Valentine’s Day] dance.’” 251 F. Supp. 3d at 21
(quoting Evid. Hr’g Tr. 141 (J.A. 321)); see also Evid. Hr’g Tr.
137 (J.A. 317) (Goodman’s testimony that “my only real foray
into [ERISA matters] was my discussion with Mr. Burriss with
respect to the borrowing of monies by the union to hold that
Valentine’s Day dance”). Of course, Gray-Burriss took more
than just the $1,200 needed for the Valentine’s Day dance from
the pension fund. He also took substantial amounts for other
operational purposes, as well as for personal and third-party
use.6 Nor did Gray-Burriss identify any “effort he made to
return a dime of the ‘borrowed’ funds -- with or without
interest -- before he agreed to do so in a 2007 consent decree
with the union.” 251 F. Supp. 3d at 21. Thus, even if Goodman
had testified, Gray-Burriss could not have shown that “he relied




    6
       See Evid. Hr’g Tr. 196-98, 210-12 (J.A. 376-78, 390-92) (Gray-
Burriss’ testimony admitting cash withdrawals from the pension fund,
the use of pension fund monies for a “bad investment” in Brazilian
junk bonds, and the use of “union money” for a Las Vegas apartment
payment); id. at 94-95 (J.A. 274-75) (Shaner’s testimony
acknowledging cash payments from the pension fund to Gray-Burriss
without loan documentation); id. at 333 (J.A. 513) (acknowledgment
by Gray-Burriss’ new counsel on remand that there was evidence
Gray-Burriss spent pension funds for his “personal use”); see also,
e.g., 11/19/12 Trial Tr. 57-58 (J.A. 696-97) (prosecution witness’
testimony estimating $25,000 in withdrawals from the pension fund
to cash or to Gray-Burriss); 6/22/06 Interview with Dep’t of Labor
¶ 55 (J.A. 1644) (Gray-Burriss’ admission that he withdrew
“approximately $30,000 total in fees” from the pension plan).
                                 9

in good faith on the counsel’s advice.” DeFries, 129 F.3d at
1308.7

     Moreover, Gray-Burriss “also failed to show that he
disclosed all material facts to Goodman before the advice was
rendered.” 251 F. Supp. 3d at 21. As the court recounted,
“Goodman testified that at the time he gave the advice,
Gray-Burriss had failed to inform him that he had already
withdrawn substantial sums of money from the pension
account.” Id.; see Evid. Hr’g Tr. 146 (J.A. 326). And if a
statement by Goodman had come in only through Levinson, the
latter would have been wholly unable to testify as to whether
Gray-Burriss had disclosed all material facts to Goodman.
(There was no proffer that Levinson knew anything about that
issue.) Thus, for this reason, too, there would have been “[no]
foundation in the evidence sufficient to bring the [advice-of-
counsel defense] into the case.” DeFries, 129 F.3d at 1308
(internal quotation marks omitted). Accordingly, there is no
“reasonable probability that, but for counsel’s [allegedly]
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.




    7
       The district court acknowledged that “Gray-Burriss remembers
[Goodman’s] advice more expansively; he testified that Goodman told
him ‘that it was okay to use the pension fund’ for union expenses
generally -- ‘that as long as we returned the money with interest, it
wouldn’t be a problem.’” 251 F. Supp. 3d at 21 (quoting Evid. Hr’g
Tr. 160 (J.A. 340)). But the court held that it “cannot conclude that
the defense would have been able to introduce evidence that
Gray-Burriss relied in good faith on whichever version of the legal
advice Goodman might have given.” Id. In any event, Gray-Burriss’
recollection of Goodman’s advice is not at issue with respect to this
claim; what matters is what Goodman would have said had counsel
been able to obtain his testimony.
                                10

                                B

     Gray-Burriss’ second contention is that counsel was
ineffective by “fail[ing] to secure the testimony of an expert
witness on account[ing] to review the books and records to
support the defense that [he] acted in good faith in dealing with
the Union fund.” Gray-Burriss Br. 11. As the court recounted:

         Shaner had retained an accountant, who contacted the
         government in September 2011 seeking to review
         NASPSO’s financial records. The accountant declined
         to continue indefinitely in the case without satisfactory
         compensation. In the months before trial, the Court
         denied Gray-Burriss’s request for payment of an expert
         accountant at public expense, and also granted the
         government’s motion to preclude the defense’s use of
         experts, because the deadline for disclosing expert
         witnesses had passed.

251 F. Supp. 3d at 22 (citation omitted). With respect to this
claim, the deficient-performance prong of Strickland poses the
bigger problem for the defendant.

     The district court concluded that it was not objectively
unreasonable for trial counsel to fail to secure the testimony of
an accountant because that failure was largely the result of Gray-
Burriss’ own choices. Gray-Burriss was present in court when
the trial judge declined to authorize the use of public funds until
he filed an affidavit showing financial necessity.8 9/6/12 Status
Hr’g Tr. 3, 10-14 (J.A. 623, 630-34). At the same hearing,
Shaner stated -- in Gray-Burriss’ presence -- that she would “ask


    8
      Gray-Burriss’ ability to pay for retained counsel (Christmas)
was part of the reason the trial court required him to demonstrate
financial need.
                                11

that Mr. Burriss . . . go back to the Office of the Federal
Defender and fill out another affidavit” so that the funds could
be authorized. Id. at 13 (J.A. 633). Gray-Burriss further
“admitted at the evidentiary hearing that Shaner informed him
that he could file an affidavit in support of his claimed financial
need for use of CJA funds to hire a forensic accountant. He
never did.” 251 F. Supp. 3d at 23. Likewise, Christmas testified
at the evidentiary hearing that he “talk[ed] to [Gray-Burriss]
about him having to pay.” Evid. Hr’g Tr. 278 (J.A. 458).
Nonetheless, Gray-Burriss failed to take any further action.
Under these circumstances, the court correctly concluded that,
“[w]hile his counsel perhaps could have done more to assist
Gray-Burriss in retaining an expert forensic accountant, their
performance was hardly deficient because Gray-Burriss knew
what needed to be done but did not take the necessary steps to
obtain one.” 251 F. Supp. 3d at 23; see Strickland, 466 U.S. at
681 (noting that “[l]imitations of time and money . . . may force
early strategic choices, often based solely on conversations with
the defendant and a review of the prosecution’s evidence”).

    Moreover, given the potential for seriously damaging cross-
examination, the district court further concluded that a “decision
not to call such an expert then -- even if Gray-Burriss had
qualified for CJA funding -- would have been a perfectly
reasonable trial strategy, considering how severely it might have
backfired.” 251 F. Supp. 3d at 23; see Strickland, 466 U.S. at
681 (holding that “[a]mong the factors relevant to deciding
whether particular strategic choices are reasonable are . . . the
potential for prejudice from taking an unpursued line of
defense”). As the court explained:

         [G]overnment counsel demonstrated at the evidentiary
         hearing [that] any expert accountant testifying on
         Gray-Burriss’s behalf would have endured a blistering
         cross-examination about the details of specific
                                12

         questionable transactions. [The] government would
         have asked the expert accountant if he or she believed
         an individual could have a “good-faith” basis for
         destroying records, failing to file tax returns, or
         purchasing an apartment in Las Vegas, all of which the
         evidence revealed Gray-Burriss had done.

Id. at 23 (citation omitted).

     In short, because the failure to secure funds for an
accountant was Gray-Burriss’ fault rather than that of his
attorneys, and given the damaging cross-examination that an
accountant would have endured, the court correctly found that
trial counsel did not render deficient performance. Because
Gray-Burriss cannot satisfy Strickland’s first prong, we need not
consider the prejudice prong before rejecting this claim of
ineffective assistance.

                                C

     Finally, Gray-Burriss contends that trial counsel “failed to
properly prepare [him] to testify on his own behalf at trial,” and,
as a result, that his “waiver of his right to testify was not fully
informed.” Gray-Burriss Br. 11. In particular, he argues that
trial counsel should have “subject[ed] him to mock cross-
examination so that they could have determined how he would
hold up and [he] could determine if he could respond
effectively.” Id. at 48. The district court found that this claim
failed both prongs of Strickland. 251 F. Supp. 3d at 24. Once
again, Strickland’s first prong poses the more difficult hurdle.

     “For starters, the Court deem[ed] credible the independent
testimony of both Shaner and Christmas that they did discuss
with Gray-Burriss the advantages and disadvantages of
testifying on his own behalf,” including anticipated cross-
                                13

examination. 251 F. Supp. 3d at 24 (citing Evid. Hr’g Tr. 61,
118 (J.A. 241, 298) (Shaner); id. at 297 (J.A. 477) (Christmas)).
Indeed, “Gray-Burriss acknowledged as much at the evidentiary
hearing.” Id. (citing Evid. Hr’g Tr. 177 (J.A. 357)). We agree
with the district court that, “in these circumstances, trial counsel
acted ‘reasonabl[y] under prevailing professional norms’ in
declining to expend time and resources on mock examinations
that they believed would be fruitless.” Id. (quoting Strickland,
466 U.S. at 688).

     With respect to Strickland’s second prong, the district court
found “it highly unlikely that testimony from Gray-Burriss
would have made an acquittal on one or more counts
substantially more likely.” Id. The court noted that Shaner
testified she had “advised Gray-Burriss to accept a plea because
of the ‘overwhelming evidence’ against him,” and that
“Christmas independently determined that certain evidence was
particularly ‘damning.’” Id. “Based on the magnitude of the
evidence against Gray-Burriss, and having witnessed his recent
cross-examination by the same government counsel who tried
the case,” the district court concluded that there was no
reasonable probability that the defendant’s testimony would
have led to a different outcome at the trial. Id.

     Of course, even this assumes there was a reasonable
probability that a mock examination would have led Gray-
Burriss to take the stand. But this is a claim he does not
expressly make and that the preceding discussion suggests
would have been unlikely. Indeed, Gray-Burriss acknowledged
that Christmas had advised him that “the government was going
to just rake me over the coals” on cross-examination. Evid.
Hr’g Tr. 177 (J.A. 357). Hence, because neither Strickland
prong is satisfied, we reject Gray-Burriss’ final claim of
ineffective assistance.
                                14

                                III

    For the foregoing reasons, we conclude that Gray-Burriss’
claims of ineffective assistance lack merit and affirm the district
court’s denial of his motion for a new trial.

                                                      So ordered.
