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The destruction of some trial exhibits in the Sept. 11, 2001, terror attacks on the World Trade Center did not deprive a convicted sexual predator of his right to appeal, the 2nd U.S. Circuit Court of Appeals has ruled in U.S. v. John Weisser. The court reaffirmed that an appellant in the circuit must show that the absence of trial records has created “specific prejudice to his ability to perfect an appeal” before it orders a new trial. Moreover, the court stressed that its standard would remain the law even when, as in this case, the appellant “is represented by new counsel on appeal.” In so ruling, the court remained in the camp of the majority of circuits requiring “specific prejudice” where trial transcripts are missing or inaccurate. John Weisser was caught in a sting operation by a federal agent masquerading as an pre-teen boy using the name Skaterboard on the Internet. After dozens of chat sessions, Weisser was caught in New York after arranging to meet Skaterboard at the Grand Hyatt Hotel at Grand Central Station. He was convicted in the Southern District of using a facility of interstate commerce to entice a minor to engage in a sexual act, traveling interstate to engage in a sexual act with a minor and transporting child pornography in interstate commerce. Judge Richard Conway Casey sentenced him to 17 1/2 years in prison. Weisser claimed at trial that he knew Skaterboard was an adult posing as a child — and that he did not know that a CD containing pornographic images was in his briefcase when he flew across country to meet Skaterboard. But the government won the conviction after introducing transcripts of Internet chat sessions and two phone conversations between Weisser and Skaterboard into evidence — and proving that the CD was created the day before Weisser flew to New York for the meeting. The appeal was decided by Chief Judge John M. Walker Jr., Judge Richard Cardamone and Southern District of New York Judge Richard Owen, sitting by designation. Writing for the panel, Judge Walker referred to two previous cases where the circuit has required a showing of prejudice, including one in which the absence of a completely accurate transcript for appeal (the stenographer had died before he was able to transcribe his notes) did not, “without more,” invalidate a conviction. A prejudice requirement has now been adopted by the large majority of circuits, he said, with only two circuits — the 5th and 11th — taking a different approach. Those circuits grant relief to the defendant where a “substantial and significant portion of the record” is missing — and only where the defendant is represented by new counsel on appeal. But the problem with the minority rule as expressed in the case law, Judge Walker said, is that it creates a “perverse incentive” for defendants to fire their lawyers and hire new appellate counsel where there has been a problem with the transcript. “A prejudice requirement, by contrast, makes sense: Where gaps in the record on appeal bear no relation to a litigant’s ability to prosecute an appeal, relief is not warranted,” and so the court declared it was following and reaffirming its earlier insistence on a showing of prejudice whether or not a defendant is represented by new counsel on appeal. LOST EXHIBITS Weisser claimed that three exhibits containing potentially exculpatory materials were lost when a building adjacent to the Twin Towers that was used by the government as storage space was destroyed on Sept. 11. The exhibits were a record of more than 1,400 chat sessions between Weisser and people other than Skaterboard, the recordings of the two telephone calls, and a record of chats between Weisser and an AOL user who identified himself as a child and with whom Weisser had a sexually explicit conversation. Without these materials, Weisser said he would be unable to press his claim that he suffered from ineffective assistance of counsel at trial. The court was unconvinced. “We acknowledge that inability to raise an ineffective assistance of counsel claim due to gaps in the record may support a claim of specific prejudice,” Judge Walker said, but, nonetheless, “Weisser’s own argument reveals that even if these exhibits were available, he would not have colorable claim of ineffective assistance.” The availability of all of these exhibits, the court found, would not have shed light on whether the way counsel used them at trial, or declined to use them, fell short of the standard for effective assistance. “Most of the exhibits at issue were before the jury, and we cannot see how counsel’s treatment of the exhibits could be deemed ‘objectively unreasonable,’” he said. RE-SENTENCING ORDERED Weisser had more success on his claim that his sentence, reached after several enhancements were imposed based on facts found by Judge Casey, violated the rule announced by the U.S. Supreme Court in January in United States v. Booker. “We agree with Weisser that because the district court increased his sentence above the applicable Guidelines range based in part on facts not proven to a jury beyond a reasonable doubt, his sentence violated the Sixth Amendment,” Judge Walker said. The court then remanded the case to the lower court for resentencing. Mary Anne Wirth of Bleakley, Platt & Schmidt in White Plains, N.Y., represented Weisser. Assistant U.S. Attorneys Jason M. Weinstein and Celeste L. Koeleveld represented the government.

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