UNITED STATES OF AMERICA v. CHRISTIAN M. ALLMENDINGER
US Court of Appeal for the Fourth Circuit, Motz, June 26, 2018,
Post-Conviction – Failure to raise an almost certain winning issue on appeal can constitute ineffective assistance of counsel, even if the lawyer claims it was a tactical decision

Facts:
Christian Allmendinger and a co-defendant were convicted of money laundering and other crimes relating to a fraudulent investment scheme resulting in losses of roughly $100 million.
On direct appeal, his counsel failed to raise a significant and obvious issue that, if raised, likely would have resulted in the reversal of Allmendinger’s money laundering convictions.
Allmendinger’s co-defendant did raise the issue on appeal and had his conviction reversed, but at re-sentencing he received the same sentence that he had the first time.
Allmendinger then filed a post-conviction arguing that his lawyer on appeal was ineffective for failing to raise the issue.
That post-conviction was denied by the District Court, which held that his appellate attorney made a tactical decision not to raise the issue and (looking at what happened with the co-defendant) that it wouldn’t have changed Allmendinger’s sentence anyway.
Allmendinger appealed.

Held: The Fourth Circuit held that, since the issue was almost certainly going to win, it should have been brought up. There was no way that the lawyer on appeal could know that the sentence would stay the same.

Ineffective Assistance of Counsel – It is not a reasonable tactical decision for a lawyer to fail to raise an issue stronger than the issue that he does raise

From the Case: “Given our circuit precedent, at the time appellate counsel decided not to raise the merger argument, that argument had a near-certain likelihood of success…” and “it is equally clear that the contentions raised by Allmendinger’s appellate counsel did not.”

Ineffective Assistance of Counsel – Prejudice – Prejudice is determined at the time of the failure, not with the benefit of hindsight.

Ineffective Assistance of Counsel – Prejudice – Prejudice for an IAC claim on appeal results if the result of the appeal would have been different; not what would have happened on remand

Money Laundering – Merger – A defendant cannot be convicted of both money laundering and “for paying the essential expenses of operating the underlying crime.”