DOE v. NESTLE, S.A. (C.D.Cal. 9-8-2010)

RICHARD LEE PRICE, J.

On February 9, 2006, defendant was convicted, upon a jury verdict, of conspiracy in the fourth degree (PL 105.10) and criminal possession of a controlled substance in the third degree (PL 220.16). Defendant was sentenced to two terms of life imprisonment with a mandatory minimum period of twenty years and fifteen years, respectively, each to run concurrent with the other. Defendant now moves pro se to vacate his conviction pursuant to CPL 440.10 (1) (f) and (h) based on ineffective assistance of counsel. Defendant argues that his trial counsel was ineffective in that he: (a) failed to object to prejudicial evidence; (b) opened the door to prejudicial testimony that this court previously held inadmissible; (c) failed to properly investigate and prepare his case prior to and during trial; (d) deprived him of the right to testify on his own behalf; and (e) failed to pursue plea opportunities and advise him of plea negotiations.

On April 10, 2003, defendant was arrested at his Bronx residence pursuant to a warrant based upon a sealed indictment charging, among other things, conspiracy in the second degree, criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the second degree. These charges stemmed from an investigation by the Bronx County District Attorney's Office and the New York City Police Department into narcotics sales in and around the Patterson apartments in the South Bronx. The People concluded that the defendant, Tony Windley, was the leader of approximately fifteen drug dealers who supplied cocaine to buyers in the Patterson apartments and possessed guns to protect their operation.

On December 13, 2007, the Appellate Division, First Department, affirmed his conviction, rejecting his claims that the court erred by providing the jury with a copy of the text of the statute during their deliberations, that his sentence was excessive and that the court's adjudication of him as a persistent felony offender was unconstitutional. On January 28, 2008, New York Court of Appeals Judge Victoria Graffeo denied defendant's application for leave. The United States Supreme Court denied defendant's petition for a writ of certiorari on April 28, 2008.

By motion submitted on April 13, 2009, defendant moved to vacate his conviction on the basis that trial counsel, Robert Walters, was ineffective, claiming he neither objected to nor created a record opposing the introduction of an unsigned police department voucher, opened the door to prejudicial testimony that had previously been held inadmissible by overemphasizing holes in the prosecution's case, failed to present documents that would have been useful in rebutting the testimony of the prosecution's witnesses, and failed to properly advise him of the maximum sentencing exposure if found guilty.

Regarding these claims, this court observed they were neither supported as a matter of law nor corroborated by the trial record. Thus, counsel provided meaningful representation under an objective standard of reasonableness. In any event, such claims, even if substantiated, would not have been likely to affect the verdict. Accordingly, by interim decision dated June 25, 2009, this court summarily denied this branch of defendant's motion.

Defendant's other contentions, however, that Mr. Walters deprived him of his right to testify and failed to pursue plea opportunities or communicate the status of plea negotiations, assert specific allegation of facts unable to be conclusively refuted by documentary evidence ( People v Session, 34 NY2d 254). Consequently, this court ordered that a hearing be conducted on these issues, which commenced before this court on September 23, 2009, and concluded on February 11, 2010. The Defense called four witnesses: Veronica Windley, the defendant's mother, the defendant, and Robert Walters, defendant's trial counsel. Notwithstanding that Assistant District Attorney Jeremy Shockett conducted the 440 hearing on behalf of the District Attorney, the defense called him as well. The People called one witness: Assistant District Attorney Joshua Gradinger. This court credits the testimony of these witnesses to the extent indicated, and largely discredits the defendant's testimony.

Success of an ineffective assistance of counsel claim under Article I, § 6, of the New York State Constitution depends on whether counsel's performance "viewed in totality and at the time of representation, reveal[s] that the attorney provided meaningful representation . . ." People v Baldi, 54 NY2d 137, 147; see also People v Henry, 95 NY2d 563, 565). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a "strategic or other legitimate explanation" for the allegedly deficient conduct ( see People v Benevento, 91 NY2d 708, 712; People v Rivera, 71 NY2d 705, 709). An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" ( People v Berroa, 99 NY2d 134, 138). "It is not for this court to "second-guess whether a course chosen by counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" ( People v Satterfield, 66 NY2d 796, 799-800). Thus, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole" ( Benevento at 714).

In addition to demonstrating that counsel's performance fell below an objective standard of reasonableness, a claim for ineffective assistance of counsel under the Sixth Amendment of the United States Constitution requires the defendant to also establish that he was prejudiced by such deficient performance ( Strickland v Washington, 466 US 668, 687). Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( Strickland at 694). A reasonable probability exists where the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result ( Lockhart v Fretwell, 506 US 364, 370-372).

In New York then, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" ( Benevento at 713). Indeed, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall ( People v Caban , 5 NY3d 143, 155-56).

Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard ( Rosario v Ercole, 601 F3d 118 [2d Cir 2010]; Eze v Senkowski, 321 F3d 110 [2d Cir 2003]); Lindstadt v Keane, 239 F3d 191 [2d Cir 2001]). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in "an inexplicably prejudicial course" ( People v Zaborski, 59 NY2d 863, 865; see also Benevento at 713). The New York Court of Appeals has observed that the State constitutional standard is indeed satisfied when "prejudice' is examined more generally in the context of whether defendant received meaningful representation" ( Benevento at 713).

Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the "but for" causation chain, the distinction between Baldi and Strickland is that New York "refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance" ( id. at 714). As a practical matter then, New York has "adopt[ed] a rule somewhat more favorable to defendants' ( People v Ozuna , 7 NY3d 913, 915, quoting People v Turner , 5 NY3d 476, 480) because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'" (Ozuna at 915 quoting Caban at 156).

Commenting on this ostensible dichotomy, the Second Circuit noted:

[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn- Benevento-affirmatively stated that even a "harmless error" could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance. [citation omitted] What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice ( Rosario at 125).

Consequently, though not required, this court believes it appropriate and wise to consider defendant's claim in accordance with both Baldi-Benevento and Strickland (at 125). In so doing, "[t]he performance and prejudice prongs of Strickland may be addressed in either order, and if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed'" ( Green v Portuondo, 2003 US Dist LEXIS 24342, quoting Strickland at 668).

The constitutional basis of a defendant's right to testify is well established under the due process clause of the Fourteenth Amendment ( Faretta v California, 422 US 806; Ferguson v Georgia, 365 US 510), the compulsory process clause of the Sixth Amendment ( United States v Valenzuela-Bernal, 458 US 858; Washington v Texas, 388 US 14), and the Fifth Amendment ( Rock v Arkansas, 483 US 44; Harris v New York, 401 US 222). The Supreme Court in Harris observed:

Every criminal defendant is privileged to testify in his own defense, or to refuse to do . . . [The Fifth Amendment's privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.' . . . The choice of whether to testify in one's own defense . . . is an exercise of the constitutional privilege ( Harris at 230 [citations omitted]).

Clearly then, the right to testify is fundamental (see Jones v Barnes, 463 US 745)

and the decision of whether to exercise it is the defendant's to make ( Brown v Artuz, 124 F3d 73 [2d Cir 1997]; People v Mason, 263 AD2d 73 [1st Dept 2000]; People v White, 73 NY2d 468, cert denied 493 US 859). While it is true that accepting assistance of counsel effectively delegates to counsel strategic decision-making authority, the defendant nevertheless retains authority over such fundamental decisions as "whether to plead guilty, waive a jury trial, testify on his or her own behalf or take an appeal" ( Mason at 76, quoting White at 478). Counsel certainly can, and should, advise clients of the benefits and pitfalls of a decision to testify, but the ultimate decision belongs to the defendant ( see Brown at 79 [holding that the burden of ensuring that the defendant is informed of the nature and existence of the right to testify rests upon defense counsel, and that this burden is a component of the effective assistance of counsel]). Since this constitutional right is personal to the defendant, the defendant must be allowed to testify if he or she so desires, regardless of the strategic considerations of his lawyer ( id).

The defendant here did not testify. At issue is whether he waived his constitutional right to do so, or whether counsel deprived him of it. Defendant, in his supporting affidavit, claims he intended ar acts and the substantive rules of attributing an agent's conduct to the principal. Given this widespread disagreement, it seems clear that the relevant norms are not sufficiently well-defined among foreign nations to satisfy the requirements of Sosa.

The Rome Statute's negotiating history therefore reveals that corporate liability fails to satisfy either of Sosa's two key requirements — that the norm must be based on clearly defined and universally recognized international law. As noted in Sosa, "we now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice." Sosa, 542 U.S. at 729. The positivistic approach leads to a clear conclusion: there has not been a clear "human choice" to impose liability on corporations for violating international norms. Indeed, to the extent that there has been a choice, the governments drafting the Rome Statute chose not to extend liability to corporations.

Of course, the Court does not intend to suggest that the Rome Statute is the sole authority for construing international law norms under Sosa. See, e.g., Abagninin, 545 F.3d at 738-40 (rejecting plaintiffs' reliance on Rome Statute with respect to genocide because Rome Statute's definition of genocide conflicted with definition that was uniformly adopted by other authorities). Nor does the negotiating history of the Rome Statute provide a definitive international rejection of corporate liability in international law. A fair amount of the delegates' opposition to corporate liability arose from the eleventh-hour nature of the proposal to include corporate liability. See generally 2 United Nations Diplomatic Conference on the Establishment of an International Criminal Court, Rome, 15 June — 17 July 1998, at 133-36. In addition, others were concerned with the idea of imposing corporate criminal responsibility, but were silent regarding the possibility of corporate civil responsibility. Id. As international-crimes expert Professor Bassiouni has emphasized, it is important to distinguish the substantive elements of international law from the sometimes-idiosyncratic procedural systems that are used to enforce those substantive rules. M. Cherif Bassiouni, 1 International Criminal Law 5, 7-8 (2008). It is important not to place too much weight on the Rome Statute, which defined certain crimes and created certain enforcement mechanisms, but was not intended to serve as an encyclopedic restatement of the full body of international law. The negotiating history must therefore be viewed as persuasive rather than conclusive authority for purposes of the Alien Tort Statute.

In the end, though, international treaties and conventions reveal an absence of international human rights norms governing corporate conduct. As noted by the United Nations Special Representative of the Secretary-General, "states have been unwilling to adopt binding international human rights standards for corporations." Representative of the Secretary-General,Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, at ¶ 44 (2007). Instead, the only pertinent authorities are "soft law standards and initiatives." Id. Such non-binding, aspirational norms are insufficient under Sosa.

Another line of reasoning was set forth in Judge Cote's decision in Presbyterian Church of Sudan II, which re-affirmed Judge Schwartz's prior decision and, in light of the intervening Supreme Court decision in Sosa, supplemented Judge Schwartz's reasoning.

In re-assessing the applicability of Alien Tort Statute to corporations in light of Sosa, the Presbyterian Church of Sudan II court relied heavily on the fact that no country had ever objected to domestic courts' exercise of jurisdiction over corporations under the Alien Tort Statute. The court stated that "[o]ne of the clearest means for determining the content of a rule of customary international law is to examine situations where a governmental institution asserts a claim purportedly based on the customary rule, and to consider, as part of state practice, whether States with competing interests object."Presbyterian Church of Sudan II, 374 F. Supp. 2d at 336. This proposition is drawn from the general rule that there is "only [one] way that customary international law can change — by one state's violating the old norm and other states' acquiescing in the violation." Phillip R. Trimble, The Supreme Court and International Law, 89 Am. J. Int'l L. 53, 55 (1995). However, this general rule presupposes that a customary international law norm exists in the first instance — i.e., that there is an "old norm" governing state behavior. Objections become relevant only after that "old norm" exists; once the rule is established, the rule may be altered when other states deviate and no objections are lodged. This is the approach stated in the Restatement, which explains that state practice is evidence of customary international law only "where there is broad acceptance and no or little objection" by other states. Restatement (Third) of Foreign Relations Law, § 102 n. 2 (emphasis added). In other words, objections are only relevant if states have already accepted a particular norm as constituting binding international law.

The Presbyterian Church of Sudan II court concluded that it was highly relevant that foreign governments acquiesced in the domestic courts' exercise of Alien Tort Statute jurisdiction over those governments' corporations. Presbyterian Church of Sudan II, 374 F. Supp. 2d at 337. The court explained that those governments presumably would have objected if domestic courts were incorrectly applying international law against corporate defendants. Id. As the court explained: "Talisman has not cited a single case where any government objected to the exercise of jurisdiction over one of its national corporations based on the principle that it is not a violation of international law for corporations to commit or aid in the commission of genocide or other similar atrocities. If this issue was a genuine source of disagreement in the international community, it would be expected that the assertion of such a rule as customary would provoke objections from States whose interests were implicated by the assertion of the rule in those cases against their nationals." Id.

The Court recognizes that the Presbyterian Church of Sudan II court's analysis would be correct if in fact there was, as that court suggested, "compelling evidence of state practice" holding corporations responsible for international human rights violations. Id. However, the Court disagrees with the premise that there is "compelling evidence" of an international consensus regarding corporate liability. See generally supra. Absent any "old norm" of corporate liability, see Trimble, 89 Am. J. Int'l L. at 55, that has achieved "broad acceptance" among the international community, see Restatement, § 102 n. 2, the Court disagrees with the Presbyterian Church of Sudan II court's reliance on the absence of objections from foreign governments. Mere silence and acquiescence does not provide probative evidence of a well-defined universal norm of international law.

Above all, domestic courts have been guided by a single erroneous assumption: that the burden is on corporations to show that international law does not recognize corporate liability.See, e.g., In re Agent Orange, 373 F. Supp. 2d at 59 ("Defendants present no policy reason why corporations should be uniquely exempt from tort liability under the ATS, and no court has presented one either.") (quotations omitted); Presbyterian Church of Sudan I, 244 F. Supp. 2d at 319 ("while Talisman disputes the fact that corporations are capable of violating the law of nations, it provides no logical argument supporting its claim."). Instead, this Court believes that Sosa requires courts to undertake the opposite analysis: the plaintiffs must bear the burden to show that international law does recognize corporate liability. As the Supreme Court emphasized, "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted." Sosa, 542 U.S. at 732. Plaintiffs seeking to identify a cause of action under international law bear the burden of persuading the Court that international law contains a norm with sufficiently "definite content and acceptance among civilized nations." Id. If the Court is not persuaded that international law satisfies this standard, then the plaintiff's claim must fail. This burden-shifting approach is consistent with the general rule that plaintiffs bear the burden of proving the elements of their claims. See generally Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56-57 (2005) (collecting cases). Furthermore, this is the burden-shifting approach applied by Sosa itself: because the plaintiff Alvarez-Machain had not shown that he suffered an injury in violation of international law, his claims failed. See Sosa, 542 U.S. at 736 ("Alvarez cites little authority that a rule so broad has the status of a binding customary norm today"), 737 ("Alvarez's failure to marshal support for his proposed rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States"), 738 ("Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require.").

In other words, international law must contain rules establishing corporate liability. This Court therefore disagrees with the other courts that have inverted this legal standard and examined whether international law contains rules establishing corporate immunity. See Romero v. Drummond Co., Inc., 552 F.3d at 1315 ("The text of the Alien Tort Statute provides no express exception for corporations.") (emphasis added); In re Agent Orange, 373 F. Supp. 2d at 59 ("Defendants present no policy reason why corporations should be uniquely exempt from tort liability under the ATS, and no court has presented one either."); Prebyterian Church of Sudan I, 244 F. Supp. 2d at 319 ("A private corporation . . . has no per se immunity under U.S. domestic or international law.") (emphasis added); see also In re South African Apartheid, 617 F. Supp. 2d at 255 n. 127 (noting that Second Circuit could potentially "determine that corporations are immune from liability under customary international law") (emphasis added). These courts start from the erroneous premise that international law norms do apply to corporations, and then search for significant international precedents that reject corporate liability. However, as demonstrated supra, no court has yet identified a sufficiently well-defined and universally recognized international law norm establishing corporate liability in the first place. In this Court's view, the Supreme Court's guidance in Sosa requires that, at present, corporations may not be held liable under international law in an Alien Tort Statute action.

Having examined the legal arguments pro and con regarding corporate liability for international human rights violations, the Court concludes that corporations as such may not presently be sued under Sosa and the Alien Tort Statute. There is no support in the relevant sources of international law for the proposition that corporations are legally responsible for international law violations. International law is silent on this question: no relevant treaties, international practice, or international caselaw provide for corporate liability. Instead, all of the available international law materials apply only to states or natural persons. Sosa's minimum standards of definiteness and consensus have not been satisfied. It is impossible for a rule of international law to be universal and well-defined if it does not appear in anything other than a handful of law review articles. Judicial diktat cannot change the basic fact that international law does not recognize corporate liability.

To the extent that corporations should be liable for violating international law, that is a matter best left for Congress to decide. See Sosa, 542 U.S. at 728 ("We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity."). However, to the extent that Congress has ever addressed the question of corporate liability for violating international law, it has explicitly refrained from extending liability beyond natural persons under the Torture Victim Protection Act. See supra Part VIII.B. Accordingly, the Court concludes that corporations as such may not be sued under the Alien Tort Statute. Corporate agents — i.e., natural persons — are subject to civil actions, but corporations themselves are not. Based on the authorities identified by the parties and by other courts, the Court concludes that corporations may not be sued under the Alien Tort Statute.

Having thoroughly considered the question of corporate liability under the Alien Tort Statute, the Court concludes that the existing authorities fail to show that corporate liability is sufficiently well-defined and universal to satisfy Sosa.

In light of the foregoing analysis, the Court GRANTS Defendants' Motion to Dismiss. To the extent that the Court has not addressed any the parties' remaining arguments, the Court's analysis has rendered those issues moot.

Given Plaintiffs' representations in its briefing and at oral argument, it appears that further amendment of the Complaint would be futile. Plaintiffs have already amended the Complaint in order to provide additional factual details, and they have not suggested to the Court that they left out any material facts. It appears to the Court that Plaintiffs hold a very different view of the legal principles discussed in this Order. If that is the case, Plaintiffs would be well-advised to consider filing an appeal rather than filing an amended complaint. However, because the Ninth Circuit has articulated a strong policy in favor of permitting complaints to be amended, e.g., Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003), the Court will provide Plaintiffs another opportunity to amend their Complaint.

Accordingly, Defendants' Motion to Dismiss is GRANTED with leave to amend. If Plaintiffs elect to file an amended complaint, they shall do so no later than September 20, 2010. If Plaintiffs fail to file an amended complaint at that time, Defendants shall submit a proposed final judgment no later than September 22, 2010.

IT IS SO ORDERED.