ST. LOUIS – A federal judge has dismissed a $2 million malpractice complaint a lawyer faced from a former client in a case involving a guilty plea and federal witness tampering laws.
Representing himself, Robert Sills sued lawyer Nick Zotos, alleging Zotos shouldn’t have advised him to enter a guilty plea to witness tampering, which was agreed to as part of the government dropping the original charge of conspiracy to commit murder for hire.
In an opinion issued April 9, Judge Catherine Perry of the U.S. District Court for the Eastern District of Missouri granted Zotos’ motion for summary judgment and denied Sills’ motion for leave to file a response to Zotos’ statement of uncontroverted material facts.
Perry wrote in the ruling that “at the time of the plea and sentencing, none of the involved participants realized that the United States Supreme Court had recently ruled that the witness tampering statute could not apply to the facts set out in Sills’ guilty plea.”
A year after being sentenced to 136 months in federal prison for a cocaine conspiracy charge in a federal court in Michigan, Sills agreed to the plea deal in Missouri resulting in a 120-month sentence, to be served after the Michigan sentence, for a drug crime.
About 18 months later, Sills’ witness tampering conviction was vacated because his plea deal came after the U.S. Supreme Court opinion in Fowler v. United States, which held that witness tampering is only a federal crime if the relevant communication would have been made to a federal officer, whereas Sills only tried to keep someone from testifying in a state trial.
Since he had not begun serving the sentence for the vacated witness tampering conviction, Perry explained, Sills wasn’t legally damaged and has no standing to bring a malpractice claim.
“Any damages Sills claims are purely speculative,” Perry wrote. “Because the witness tampering conviction and sentence were set aside in 2013, long before Sills began serving that sentence, he never served any jail time on the invalid conviction.”
Further, Sills didn’t give the court any other evidence forming the basis for an award of damages.
“Sills pointed to his interrogatory answers and argues that he suffered ‘loss of retainer fees paid to the defendant,’” Perry wrote. “But neither in those answers or anywhere else in the record does he quantify the amount of any retainer that he may have paid. Moreover, in responding to an inquiry from defense counsel regarding the adequacy of his discovery responses, plaintiff responded only that he sought $2 million in damages for mental anguish and emotional distress, an argument (again without evidence) which he appears to have abandoned on summary judgment.”
Since three other charged defendants entered guilty pleas, with sentences ranging from 48 months to 150 months, Perry said, Sills cannot argue he would’ve prevailed at trial had he rejected the plea deal.
In trying to argue Zotos encouraged him to plead guilty to a crime he didn’t commit, Sills overlooked the involvement of the prosecuting attorney, federal probation officer and the federal judge who approved the arrangement.
“If all of those participants did not see the problem or did not grasp the relevance of a Supreme Court case so recently decided, the fact that Zotos also did not do so cannot be said to be clear and palpable negligence obvious to a layperson," Perry wrote. “Additionally, conduct of plea negotiations and the decision to plead guilty to a superseding charge are beyond the common understanding of laymen. This is not a case where a plaintiff can be excused from the requirement of presenting expert testimony to establish attorney malpractice.”