United States Court of Appeals
For the First Circuit
No. 02-1281
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS RONALD THEODORE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Reginald C. Lindsay, U.S. District Judge)
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Raymond J. Rigat, with whom Gilbride & Rigat was on brief for
Defendant-Appellant.
Paul G. Levenson, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Adam J.
Bookbinder, Assistant United States Attorney, were on brief for
Appellee.
December 12, 2003
STAHL, Senior Circuit Judge. Defendant-appellant Thomas
Ronald Theodore appeals from his conviction and sentence on nine
counts of mail fraud, in violation of 19 U.S.C. § 1341, and three
counts of violating the Food Drug and Cosmetic Act, 21 U.S.C. §§
331(a), (d), & (p). He contends that the district court erred: (1)
when it denied defense counsel's motion to withdraw and request for
a continuance; (2) when it did not declare mid-trial a mistrial sua
sponte; (3) when it did not conduct an evidentiary hearing on
Theodore's post-trial motion for a new trial and denied his motion
for a new trial based on ineffective assistance of counsel; and (4)
when it ordered restitution to victims without holding an
evidentiary hearing. Because this case presents serious claims of
ineffective assistance of counsel, we remand for an evidentiary
hearing on Theodore's post-trial motion for a new trial based on
ineffective assistance.
We note that the almost universal rule in these cases is
that petitioners cannot raise ineffective assistance of counsel
claims for the first time on direct review, the concern being that
there is often no opportunity to develop the necessary evidence
where the claim is first raised on direct appeal. See Ellis v.
United States, 313 F.3d 636, 652 (1st Cir. 2002); United States v.
Knight, 37 F.3d 769, 774 (1st Cir. 1994); United States v.
Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir.1994); United States v.
Mala, 7 F.3d 1058, 1063 (1st Cir.1993), cert. denied, 511 U.S. 1086
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(1994). This rule does not apply in this instance because the
record here is sufficiently developed to warrant further
consideration of the previously raised issue of ineffective
assistance of counsel as the entirety of the appeal revolves around
the question of whether Theodore's counsel was ineffective within
the strictures of Strickland v. Washington, 466 U.S. 668 (1984).
See United States v. Sotomayor-Vazquez, 249 F.3d 1, 13 (1st Cir.
2001); United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.), cert.
denied, 528 U.S. 887 (1999).
Here, we have a series of claims implicating the
effectiveness of counsel and enough indicia of ineffectiveness to
warrant remanding for an evidentiary hearing on Theodore's motion
for new trial. We stress that we are not deciding whether the
totality of the circumstances in this case amounts to ineffective
assistance. Rather, we remand to the district court where it can
determine in the first instance whether defense counsel's total
performance was such that a new trial is warranted.
I. BACKGROUND
From 1992 until approximately April 1995, Theodore and
Thomas Rodgers, Jr. solicited about $1.6 million of investments in
a company called Private Biologicals Corporation (PBC) by claiming
that they had invented a promising new drug called "LK-200."
Investors were told that, because the drug was not FDA-approved,
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PBC had manufactured it overseas using a proprietary production
method.
In actuality, "LK-200" was not "proprietary." As a
subject of medical research, the substance and the methods for
making it had been well-known for years and produced by researchers
at the University of Pennsylvania. None of PBC's product was made
overseas but instead was produced in a manufacturing facility that
Theodore had set up in Woburn, Massachusetts. Over the course of
three years, Theodore and Rodgers, in addition to misleading
investors about the claimed invention and overseas operation,
manufactured LK-200 in sub-standard conditions that exposed the
product to contamination. At the same time, Theodore
misrepresented himself as a medical doctor.
On April 6, 2000, a federal grand jury returned a
fourteen-count indictment against Theodore for conspiracy, mail
fraud, and violations of the Food Drug and Cosmetic Act. Theodore
was represented by a series of attorneys throughout the
proceedings. The first was John Bonistalli, who represented
Theodore at his initial appearance on January 24, 2000. On April
11, 2000, John Noonan, now acting as Theodore's counsel, filed a
motion for another attorney, Gordon White, to appear pro hac vice
as co-counsel. White, a Texas-based attorney, and Noonan filed
several motions on Theodore's behalf and on October 23, 2000, both
attorneys appeared at an evidentiary hearing on one of the motions,
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a motion to dismiss based on an implied promise of immunity. White
was the only one to actively participate in that hearing. This was
the last time the record reflects the presence of White on behalf
of Theodore, despite the fact that Theodore was soon to undergo a
fifteen-day trial on the underlying criminal charges. The record
indicates that until White disappeared from the scene, Noonan's
role was simply that of local counsel.
At a February 1, 2001 pretrial conference, Noonan for the
first time appeared as Theodore's sole counsel. The district court
set the trial back a week and denied several of Theodore's pretrial
motions as untimely. At this hearing, it was apparently made clear
that White would no longer be representing Theodore, despite never
having formally withdrawn his appearance. In response to the
district court's determination that the pretrial motions were
untimely, Noonan explained that "Mr. White is supposedly an expert
in federal courts and was supposed to handle all these things."
Towards the end of the conference, the court inquired into Noonan's
comfort with representing Theodore in federal court. Noonan
responded that he was concerned that there might be a Sixth
Amendment problem, admitting that he was "very uncomfortable." It
was Noonan's first trial in federal court in his forty years of
practice.
At a subsequent conference on February 2, 2001, Theodore
stated that he did not want Noonan to represent him and that from
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the start, Noonan had told him that he was not competent to try the
case. He moved to replace counsel. The government countered that
it had dealt with Noonan since the beginning of the case, that he
had always seemed familiar with the case, and that he had had an
opportunity to review the local procedural rules. The court denied
Theodore's motion and instead appointed Dennis Kelly, a lawyer
experienced in handling federal criminal cases, as standby counsel
to advise Noonan about federal procedure. Theodore reiterated his
objection to having Noonan as his counsel.
On the first day of trial, February 12, 2001, Noonan
filed a motion to withdraw as Theodore's counsel and requested a
continuance so that another attorney could be appointed. The
court, however, denied the motion and ruled that Noonan would
continue to represent Theodore.
During Noonan's opening statement at trial, the district
court sustained two objections made by the government. Throughout
trial, his attempts at cross-examination were riddled with
sustained objections for relevance and assuming facts not in
evidence. Nine days into trial, the district court received a note
from a juror named Babchak inquiring about the possibility of the
government offering Theodore a plea bargain. The court brought
Babchak into chambers and asked about the note. Babchak responded,
"I'm wondering if the defendant is being properly represented."
The court then interviewed each juror. Two jurors, Moynihan and
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Birch, stated that they could no longer remain open-minded about
Theodore's guilt. Birch expressed his belief that Theodore was
being inadequately represented. Noonan responded that he agreed
with Birch and that his inadequate performance was "really a
fundamental problem all the way through here." The court removed
these two jurors, but not Babchak.
On the tenth day of trial, Noonan informed the court that
he had thirteen witnesses to call. As it turned out, the only
witness that he actually attempted to call succeeded in having his
subpoena quashed, as Noonan had failed to follow federal procedure.
Noonan took no steps to oppose the motion to quash the subpoena,
nor did he appear at the hearing. Thereafter, Noonan told the
court that he had no witnesses to present to the jury. The
government, apparently concerned, requested the court to instruct
Theodore that he had a right to call witnesses. Finally, during
Noonan's closing argument, the court sustained eight objections
made by the government, again due to his commentary on facts not in
evidence.
Theodore was convicted of every charge in the indictment.
For sentencing and post-trial motions, new counsel was appointed to
represent Theodore. Together with his motion for a new trial,
Theodore presented an affidavit from Noonan stating that he had a
drinking problem that resurfaced during Theodore's trial and that
he had not examined thousands of pages of evidence disclosed by the
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government. Noonan also indicated that contrary to his pretrial
representations to the court, he had never represented a defendant
accused of murder. Theodore requested an evidentiary hearing on
the new trial motion. The court denied his request as well as the
motion. Theodore was ultimately sentenced to 121 months in prison
and ordered to pay $1,535,240.00 in restitution to the defrauded
investors.
II. DISCUSSION
A. Noonan's Motion to Withdraw
We review for abuse of discretion the district court's
denial of defense counsel's motion to withdraw and request for a
continuance. See United States v. Woodard, 291 F.3d 95, 106 (1st
Cir. 2002). We accord "'extraordinary deference'" to the district
court's decision when "allowance of the motion would necessitate a
last-minute continuance." Id. at 107. "Only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the assistance
of counsel." Id. at 106 (citation omitted).
Though we do not address the merits of Theodore's
ineffective assistance claim under Strickland, it is important to
set out the constitutional standard for such claims. To
successfully claim ineffective assistance of counsel under the
Sixth Amendment, a defendant must establish that his counsel's
performance fell below an objective standard of reasonableness and
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"that there was a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would have
been different." Strickland, 466 U.S. at 687-94.
The government argues that Noonan and Theodore never
intended to make their claim of inadequate representation until the
district court inquired into Noonan's comfort in trying the case,
and that the motion was a "patent attempt to parlay the district
court's solicitude into some advantage for" Theodore. It contends
that Noonan seemed prepared to represent Theodore and that the
district court's compromise of appointing Kelly as standby counsel
compensated for Noonan's lack of experience in federal court.
Theodore responds that up to the point of his motion to
withdraw, Noonan utterly failed to develop and present a defense.
Counsel had not filed any substantive pre-trial motions and had
several procedural motions denied as untimely. On the other hand,
Noonan did say to the district court that he "did all the
preliminary work that needs to be done." He met with prosecutors
to discuss the trial, came to the U.S. Attorney's Office to review
documents, and produced documents and marked exhibits that he
apparently intended to use at trial.
As replacing defense counsel so close to the beginning of
trial is a measure appropriate for only the most extraordinary
circumstances, we cannot hold that the district court abused its
discretion when it crafted a compromise solution and denied
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Noonan's motion to substitute counsel. The court's accommodation
of Noonan's claimed unfamiliarity with federal procedure was
reasonable under the circumstances and satisfied Theodore's Sixth
Amendment right to effective assistance. See United States v.
Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989); see also Woodard, 291
F.3d at 106 (the Sixth Amendment "does not provide an absolute
right to counsel of a defendant's choosing"). The fact that Kelly
proved to be available for only seven out of the fifteen trial days
is another matter, better dealt with in connection with Theodore's
motion for a new trial.
Given the deferential standard of review, we hold that
the district court did not abuse its discretion when denying
Noonan's motion to withdraw and request for a continuance.
B. Mistrial Sua Sponte
We review the district court's decision not to declare a
mistrial sua sponte for plain error. See United States v. Smith,
101 F.3d 202, 212 (1st Cir. 1996). A mistrial is declared in a
criminal case only when manifest necessity requires it. See
Illinois v. Somerville, 410 U.S. 458, 462 (1973).
Theodore claims that when the jurors expressed concerns
about Noonan's performance as counsel, manifest necessity required
the district court to declare a mistrial, even if Noonan failed to
move for one. Theodore further argues that the jurors' concerns
were yet another indication that Theodore effectively "had no
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representation throughout all phases of the trial." Though
Noonan's performance was concededly less than stellar, it did not
amount to "no representation"--Noonan still conducted voir dire,
presented opening and closing statements, objected to prosecution
evidence, cross-examined witnesses, offered evidence on Theodore's
behalf, and requested jury instructions.
Moreover, the court took steps to address the jurors'
concerns about Noonan's representation by suspending the trial and
questioning each juror individually about the memo. When two of
the jurors admitted that they could no longer be impartial, the
court excused them and replaced them with alternates. It was not
plain error for the court to conclude, despite the jurors' concerns
and Noonan's performance thus far, that the trial could go on after
it had taken measures to investigate and remedy those concerns. By
declaring a mistrial sua sponte under such circumstances, the court
would have imposed on Theodore its view of counsel's performance
and deprived him of "his option to go to the jury first, and,
perhaps, end the dispute then and there with an acquittal." United
States v. Jorn, 400 U.S. 470, 484 (1971). Again, given the very
high standard of review, we decline to find plain error.
C. Post-Trial Motion for a New Trial and Evidentiary Hearing
We review the district court's denial of an evidentiary
hearing for an abuse of discretion. See United States v. Alicea,
205 F.3d 480, 487 (1st Cir. 2000). The party seeking an
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evidentiary hearing on a motion for a new trial must make "a
sufficient threshold showing that material facts [are] in doubt or
dispute." Id. (citing United States v. Panitz, 907 F.2d 1267,
1273 (1st Cir. 1990)).
Theodore sought an evidentiary hearing to address
concerns about Noonan's veracity and how previous
misrepresentations by Noonan to the court might bear on Theodore's
ineffective assistance claim. In particular, he produced an
affidavit submitted by Noonan admitting that he had misrepresented
his past trial experience to the court. A determination of
Noonan's credibility bears on the issue of whether the district
court might have handled Theodore's (and Noonan's) repeated claims
of ineffective assistance differently, and ultimately whether
Theodore satisfied Strickland.
Similarly, revelations of Noonan's alcohol abuse during
trial and failure even to glance at volumes of government evidence
bear strongly on factual issues of Noonan's overall competency and
performance. We already know that Noonan failed to appear at the
hearing held on the motion to quash made by the only defense
witness subpoenaed for trial, not due to any tactical choice, but
because of negligence and his utter ignorance of federal procedure
despite the availability of standby counsel. The same goes for the
several pre-trial motions denied as untimely by the district court.
And though a finding of "no representation" is reserved only for
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the most extreme cases of ineffective assistance, facts adduced at
the hearing may lend some support to Theodore's claim that he was
constructively abandoned by his counsel throughout trial. See
United States v. Cronic, 466 U.S. 650, 659 (1984).1
The government's contention that Theodore failed to
satisfy Strickland in his request for an evidentiary hearing misses
the thrust of the request. Indeed, the point of an evidentiary
hearing would be to consider evidence upon which a new trial might
be ordered pursuant to Strickland. Where a defendant "[provide]s
adequate factual specification beyond bald speculation," an
evidentiary hearing is warranted. United States v. Rodriguez
Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991). Theodore's claims of
ineffective assistance before and throughout trial already present
close cases--the addition of Noonan's affidavits post-trial make
this case all the more unusual and troubling. As the district
court itself expressed concerns regarding Noonan's veracity upon
considering Theodore's new trial motion, we hold that the court
abused its discretion by not holding an evidentiary hearing to
1
We caution, however, that prejudice may be presumed only in
three narrowly circumscribed situations: "First, a trial is
presumptively unfair if the accused is completely denied the
presence of counsel at a critical stage of the proceedings.
Second, such a presumption is warranted if counsel entirely fails
to subject the prosecution's case to meaningful adversarial
testing. Third, prejudice may be presumed in the presence of
circumstances under which a competent lawyer would likely not be
able to render effective assistance." Ouber v. Guarino, 293 F.3d
19, 33 (1st Cir. 2002) (internal citations and quotation marks
omitted).
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resolve or clarify factual issues ultimately crucial to Theodore's
claim of ineffective assistance of counsel. We leave to the
district court the determination of whether a new trial should be
granted, taking into account what happened at trial and whatever
evidence is adduced at the hearing.
D. Restitution Order2
As Theodore never requested an evidentiary hearing
regarding the question of victim restitution, we review the
district court's decision for plain error. See Johnson v. United
States, 520 U.S. 461, 467 (1997). We review the restitution order
itself for an abuse of discretion and subsidiary factual findings
for clear error. See United States v. Vaknin, 112 F.3d 579, 586
(1st Cir. 1997).
Theodore argues that without a hearing, the district
court had no evidentiary basis on which to make a fair and reasoned
restitution order. We disagree and find that the evidence at trial
as well as the Pre-Sentence Report (PSR) provided sufficient
support for the court's order.
The PSR set forth a schedule of victims and the amount of
restitution owed to each. Moreover, Gary Coulter, who had served
as counsel to PBC, identified a contemporaneous schedule of
investors' contributions, which detailed the identities of the
2
In the event the district court orders a new trial, the
restitution order becomes moot.
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investors, the amounts they invested in the company, and the dates
on which they did so. In his only objection to the PSR, Theodore
stated that he never solicited, raised, or received any funds on
behalf of PBC or for the production and distribution of LK-200.
Evidence at trial, however, showed that though others may have
played leading roles in PBC's financial operations, Theodore was
integral to the initiation of the fraudulent scheme and was
directly responsible for the key falsehoods upon which the scheme
rested. We have noted that
restitution for all criminal conduct done in the course
of a single scheme, conspiracy, or pattern of activity is
now appropriate, whether or not the defendant has been
convicted of (or even charged with) the specific acts, as
long as the offense of conviction has an element in the
broader scheme, conspiracy, or pattern.
Vaknin, 112 F.3d at 582 n.1. Though Theodore may not have been
implicated in each and every step of the fraudulent scheme, what
was proved at trial is more than enough for purposes of finding him
liable for the amount in the restitution order.
Theodore also claims that without an evidentiary hearing,
the district court could not have determined whether Theodore would
be able to pay restitution.3 The record, however, reflects that
3
Under 18 U.S.C. § 3663(a)(1)(B)(i), the court, in determining
whether to order restitution, must consider:
(I) the amount of the loss sustained by each victim as a
result of the offense; and
(II) the financial resources of the defendant, the financial
needs and earning ability of the defendant and the defendant's
dependents, and such other factors as the court deems appropriate.
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the court was aware of Theodore's financial status and considered
it in fashioning the order. The court provided for installment
payments in the event that immediate payment of the entire amount
proved impossible. It also determined that he did not have to pay
interest. Finally, it chose not to impose a fine. It is enough
that the court "made implicit findings or otherwise adequately
evinced [its] consideration" of Theodore's ability to pay. United
States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).
We therefore affirm the district court with respect to
(1) its denial of Noonan's motion to withdraw and request for a
continuance, (2) its decision not to declare a mistrial sua sponte,
and (3) its restitution order. We vacate the district court's
order denying Theodore's motion for a new trial based on
ineffective assistance of counsel and remand for further
proceedings consistent with this opinion.
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