Brodie v. Jackson

630 F. App'x 1
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 13, 2015
DocketNo. 14-7099
StatusPublished
Cited by3 cases

This text of 630 F. App'x 1 (Brodie v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brodie v. Jackson, 630 F. App'x 1 (D.C. Cir. 2015).

Opinion

JUDGMENT

'per curiam.

This appeal was considered on the briefs of the parties and the record from the United States District Court for the District of Columbia. . See Fed. R,App. P. 34(a)(2); D.C. Cir. Rule 34(j). The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is

ORDERED AND ADJUDGED that the judgment of the district court is affirmed for the reasons stated herein.

In the mid-1990s, Kharii Brodie was involved in a. “mortgage flipping” scheme in Washington, D.C. Brodie would purchase distressed properties through his company, Inter Communication Network, [2]*2Inc., of which he was the president, chief executive officer, and sole employee. The company would then sell the properties to Brodie for significantly increased prices. Brodie, in turn, would obtain fabricated property appraisals to support the artificial sales prices, and use those appraisals and other forged documents to apply for mortgage loans. After receiving the loan proceeds, Brodie would reimburse his company for the initial purchase price and pocket the remainder for himself. See United States v. Brodie, 524 F.3d 259, 261-262 (D.C.Cir.2008).

But Brodie eventually got caught, and he was convicted in 2005 of three counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of conspiracy to make false statements to financial institutions to obtain mortgage loans, in violation of 18 U.S.C. § 371. This court affirmed his conviction. Brodie, 524 F.3d at 274. In that decision, we rejected Brodie’s claim that his counsel had been ineffective in failing to move for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Because “the evidence of Brodie’s guilt was overwhelming,” we explained, “Brodie was not prejudiced by his counsel’s failure[.]” Id. at 273; see generally Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Three years later, Brodie filed this malpractice action against Brent Jackson, the attorney who represented him at his criminal sentencing. As relevant here, Brodie alleged that, in obtaining the indictment, the prosecutor falsely told the grand jury that Brodie had misrepresented his citizenship, income, and employment status on the mortgage applications he submitted to banks as part of his “mortgage flipping” scheme. Brodie also argued that his trial attorney (Jackson’s predecessor) had stipulated to the truth of those and other misrepresentations at trial without Bro-die’s knowledge. Brodie alleged that Jackson should have moved for acquittal “or take[n] other appropriate legal actions in [his] defense” because of the false statements and stipulations. App. Ex. 34. Brodie further alleged that he was unaware of those purported misrepresentations until his release from prison in 2009 because Jackson did not review the file and transcripts with him while he was incarcerated. Nor did Jackson return Brodie’s entire case file to him at the conclusion of representation in 2005. Bro-die contended that Jackson’s failure to review or timely return the files prevented him from timely challenging those misrepresentations.

The district court granted Jackson’s motion for judgment on the pleadings, holding that Brodie’s claims were barred by collateral estoppel in light of our holding in his criminal appeal that the “overwhelming” evidence of his guilt precluded a showing of prejudice from his counsel’s failure to move for acquittal. On appeal, this court remanded the case for further consideration of whether collateral estoppel barred the entirety of Brodie’s complaint. Order, EOF No. 1470416, Brodie v. Jackson, No. 13-7113 (D.C.Cir. Dec. 13, 2013). In particular, this court concluded that the claims relating to Jackson’s retention of and failure to review Brodie’s file “are independent of appellant’s arguments concerning the motion for acquittal, and have not been submitted for judicial determination in a prior proceeding.” Id. (citing Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C.Cir.1992)). We also noted that Jackson’s failure to timely provide Brodie with his file “may have deprived [him] of a ‘full and fair opportunity’ to litigate in a prior proceeding the issue of [Jackson’s] failure to file a motion for acquittal.” Id. (citing Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987)).

On remand, the district court granted summary judgment for Jackson. Review[3]*3ing the grant of summary judgment de novo, we affirm. See Coleman v. District of Columbia, 794 F.3d 49, 57 (D.C.Cir. 2015).

To make out a case of legal malpractice under District of Columbia law, Brodie had to come forward with evidence from which a reasonable jury could conclude that, inter alia, Jackson’s alleged missteps “caused a legally cognizable injury.” Kaempe v. Myers, 367 F.3d 958, 966 (D.C.Cir.2004) (citation omitted). In other words, to avoid summary judgment, Bro-die had to identify evidence from which a reasonable jury could conclude that, but for Jackson’s conduct, Brodie “would have had [a] judgment” in his favor in his criminal case. Hobley v. Law Office of S. Howard Woodson, III, 983 A.2d 1000, 1002 n. 3 (D.C.2009) (citation and internal quotation marks omitted). Viewing the facts and record in the light most favorable to Bro-die, as we must at this juncture, see, e.g., Walker v. Johnson, 798 F.3d 1085, 1091 (D.C.Cir.2015), we hold that Brodie has failed that task.

First, Brodie can show no “legally cognizable injury” from Jackson’s failure to challenge his indictment. Brodie claims that Jackson should have sought an acquittal because the government withheld exculpatory evidence from the grand jury concerning his income and employment status, and his company’s income tax filings for some of the years during which he was operating his “mortgage flipping” scheme. Even assuming that Brodie is correct about those alleged withholdings, he has suffered no prejudice because the Supreme Court has expressly held that a facially valid indictment may not be dismissed on the ground that the government failed to disclose “substantial exculpatory evidence” in its possession to the grand jury. See United States v. Williams, 504 U.S. 36, 45-46, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992); see also Kaley v. United States, — U.S. -, 134 S.Ct.

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630 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brodie-v-jackson-cadc-2015.