The United States Court of Appeals for the Second Circuit recently vacated the 1999 conviction of an Australian national living in the United States for misprision of felony. The court granted a writ of error after Stephen Kovacs demonstrated that his guilty plea relied on ineffective assistance of counsel. Kovacs’s attorney affirmatively misstated the immigration consequences of a misprision of felony conviction and based on that advice, Kovacs accepted a plea he would not otherwise have taken.

Kovacs was charged in October 1996 with the substantive offense and conspiracy to commit wire fraud after submitting an inflated insurance claim at the recommendation of his corrupt insurance adjuster in September 1991. Kovacs instructed his attorney to negotiate a plea with no immigration consequences. Kovacs’s attorney advised a misprision of felony charge for failing to disclose the criminal conduct of the public adjuster, believing in error that it was not a deportable offense. The government agreed to the proposed plea, aware of Kovacs’s immigration concerns, and Kovacs was sentenced to probation and restitution. Between 2006 and 2009, Kovacs travelled internationally until immigration officials questioned his eligibility to return to the United States, after which Kovacs remained in Australia, separated from his wife and children, who resided in the United States where they were citizens. In May 2012, Kovacs submitted a petition for coram nobis relief asking the court to overturn his conviction on the grounds of ineffective assistance of counsel. The District Court for the Eastern District of New York denied the petition and Kovacs appealed.

The Second Circuit reversed, finding that Kovacs reached the demanding standard for obtaining the extraordinary remedy of the writ. Counsel’s affirmative misrepresentation regarding the deportation consequences of a guilty plea was outside the range of professional competence and therefore objectively unreasonable and deficient representation. Kovacs was prejudiced by his counsel’s error because he was primarily interested in reaching a plea that did not have an adverse effect on his immigration status. He chose not to litigate a statute of limitations defense because he was satisfied that he would not be deported if he accepted the plea. The court found that Kovacs demonstrated a reasonable probability that he would have negotiated a more favorable plea but for his counsel’s error.

Kovacs v. United States, No. 13-0209 (2d Cir. Mar. 3, 2014).