United States Court of Appeals
For the First Circuit
Nos. 05-1119, 05-1120
UNITED STATES OF AMERICA,
Appellant/Cross-Appellant,
v.
THOMAS RONALD THEODORE,
Defendant-Appellee/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.
Paul G. Levenson, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney and Adam J. Bookbinder,
were on brief, for United States.
Raymond E. Gillespie for defendant.
November 15, 2006
*Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. The Sixth Amendment to the United
States Constitution provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." This right "is the right to the
effective assistance of counsel." McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970). A defendant seeking to overturn a conviction
on ineffective assistance of counsel grounds usually must show that
counsel's representation was deficient and that this deficient
performance prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). There are, however, situations in which
prejudice is presumed, including where "counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing."
United States v. Cronic, 466 U.S. 648, 659 (1984).
In this case, the district court allowed Thomas Ronald
Theodore's motion for a new trial, see Fed. R. Crim. P. 33,
concluding that defense counsel had performed so poorly that
prejudice should be presumed under Cronic. See United States v.
Theodore, 345 F. Supp. 2d 123 (D. Mass. 2004). The government
appeals, arguing that the court erred in presuming prejudice.1
In 2000, a grand jury indicted Theodore on nine counts of
mail fraud, 19 U.S.C. § 341, and three counts of violating the
1
Theodore filed a notice of cross-appeal (No. 05-1120), which
the government moved to dismiss on the ground that Theodore's brief
did not include any argument supporting a cross-appeal. We allow
the government's motion.
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Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 331(a), (d), & (p). The
indictment alleged that from 1992 until 1995, Theodore and a
business partner solicited over $1.5 million in investments by
claiming that Theodore had invented a promising new anti-cancer
drug called "LK-200." Investors were told that the drug was
manufactured by means of a secret process at overseas facilities
because it had not been approved for domestic production. In fact,
there was nothing secret about "LK-200," which is a well-known
biological substance that is produced domestically. Over the life
of the scam, Theodore made misstatements to investors about himself
and the product, including representations that he was a medical
doctor. Theodore also directed the manufacture of "LK-200" in
unsanitary conditions that made it unsafe for use.
Following the indictment, Theodore initially was
represented by Attorney John Bostinalli, but Bostinalli quickly
withdrew from the case. Theodore then was represented by Attorney
Gordon White, a Texas attorney who appeared pro hac vice, with
Massachusetts Attorney John Noonan serving as local counsel.
During the period that White and Noonan represented Theodore, White
was lead counsel. However, while White never formally withdrew
from the case, he last appeared for Theodore at a motion hearing in
October 2000.
On February 1, 2001, Noonan represented Theodore at a
pretrial conference. At this hearing, it became apparent that
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White no longer represented Theodore and that Noonan was the sole
defense counsel. Noonan had been a lawyer for over forty years,
but had never tried a federal court case. The district court asked
Noonan if he felt comfortable representing Theodore. Noonan
responded that he was afraid that his continuing participation
could create a Sixth Amendment issue because he was not competent
to try the case.
The next day, Noonan formally moved to withdraw and have
new counsel appointed. The government responded that Noonan had
been involved in the case from the early stages and that he seemed
familiar with the issues. The district court denied Noonan's
motion and instead appointed standby counsel to advise Noonan about
federal procedure. At this point, Theodore objected to having
Noonan represent him. The court overruled the objection and
ordered that trial commence ten days later, with Noonan serving as
sole defense counsel. After a fifteen-day trial, Theodore was
convicted on all counts of the indictment.
The district court appointed new counsel to represent
Theodore at sentencing and in connection with any post-trial
motions he wished to file. Theodore subsequently filed a motion
for a new trial, asserting ineffective assistance of counsel. The
district court denied Theodore's motion without holding an
evidentiary hearing. Applying Strickland, the court ruled that,
even if Noonan's performance was deficient, the government's case
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was so overwhelming that Theodore could not possibly establish
prejudice.
Theodore appealed. See United States v. Theodore, 354
F.3d 1 (1st Cir. 2003). We upheld part of the appeal and remanded,
concluding that the district court "abused its discretion by not
holding an evidentiary hearing to resolve or clarify factual issues
ultimately crucial to Theodore's claim of ineffective assistance of
counsel." Id. at 8.
On remand, the district judge who had presided over the
trial and denied the new trial motion recused himself. A new
district judge held the required evidentiary hearing. Following
the conclusion of this hearing, the district court made detailed
findings concerning Noonan's performance, which we now summarize.
See Theodore, 345 F. Supp. 2d at 126-28.
Noonan's pretrial investigation was incomplete. He
reviewed boxes of documents at the United States Attorney's office
and identified certain documents that he thought were relevant.
But he never opened several CD ROMS that the government had
provided which contained all the documents that were available to
Noonan at the United States Attorney's office. Moreover, Noonan
did not attempt to interview any witness other than Theodore.
At the time of the trial, Noonan did not have an office
or support staff, and he in his own words planned "to play it by
ear and shoot from the hip." Noonan began his opening statement by
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stating that, "I am rapidly approaching seventy. I have been
retired for five years. I was never supposed to try this case."
The court struck these comments as inappropriate.
During cross examination of the government's witnesses,
Noonan repeatedly asked open-ended questions. He was criticized by
the court for being redundant and for having witnesses read from
documents already admitted into evidence. At times, Noonan
appeared unfamiliar with the rules of evidence, struggled to lay
proper evidentiary foundations, and had difficulty hearing
objections. His closing argument was interrupted by eight
objections, all of which were sustained.
Noonan was also unfamiliar with the federal subpoena
process and ultimately subpoenaed only one witness. The witness
filed a motion to quash claiming that he had no relevant
information. The trial judge held an impromptu hearing on March 2,
2001, to deal with the motion, but Noonan was unaware that the
hearing had been scheduled and did not attend. At the hearing, the
court concluded that the witness "had nothing relevant to say" and
allowed the motion to quash "subject to reconsideration." Noonan
never sought reconsideration.
On the basis of this factual predicate, the district
court concluded that Theodore was entitled to a new trial. The
court first ruled that "Noonan's representation of Theodore clearly
fell below an objective standard of reasonableness, easily
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satisfying the first part of the Strickland analysis." Id. at 129.
The court then further concluded that prejudice should be presumed
in these circumstances because the government's case had "never
been subjected to the crucible of meaningful adversarial testing."
Id. (citation omitted). According to the court, "the lack of
meaningful adversarial testing began with inadequate preparation
and continued throughout every stage of Theodore's trial." Id. at
130.
The government appeals. Acknowledging that "the overall
impression left by [Noonan's] defense was abysmal," the government
does not contest that Theodore satisfied the performance aspect of
his ineffective assistance of counsel claim. The government
contends, however, that the district court erroneously concluded
that Noonan's performance was so egregious that prejudice should be
presumed under Cronic. In the government's view, because Noonan
did subject the prosecutor's case to some adversarial testing,
Theodore was required to show actual prejudice under Strickland.
We ordinarily review the grant or denial of a new trial
motion for a manifest abuse of discretion. See United States v.
Conley, 249 F.3d 38, 44 (1st Cir. 2001). Where, however, a party
claims that the wrong legal standard was applied in adjudicating
the motion, we review the claim de novo. See United States v.
Josleyn, 206 F.3d 144, 151 (1st Cir. 2000). Determining whether
Strickland's actual prejudice standard or Cronic's presumed
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prejudice standard applies to Theodore's new trial motion is a
mixed question of law and fact subject to de novo review. See
Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. 1994); see also Haynes v.
Cain, 272 F.3d 757, 761 (5th Cir. 2001).
As mentioned earlier, a successful ineffective assistance
of counsel claim generally requires the defendant to demonstrate
actual prejudice, i.e., a reasonable probability that, but for
counsel's deficient performance, the result of the trial would have
been different. See Strickland, 466 U.S. at 695. There is an
exception, however, where "counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing."2 Cronic,
466 U.S. at 659. In such cases, prejudice is presumed. Id. But
the Cronic exception is exceedingly narrow, see Florida v. Nixon,
543 U.S. 175, 190 (2004), and applies where the defendant has
demonstrated that "the attorney's failure [was] complete," Bell v.
Cone, 535 U.S. 685, 696-97 (2002). In other words, "the
circumstances leading to counsel's ineffectiveness [must be] so
egregious that the defendant was in effect denied any meaningful
assistance at all." United States v. Griffin, 324 F.3d 330, 364
(5th Cir. 2003) (citation omitted).
2
Prejudice is also presumed where there is the complete denial
of counsel during a critical stage of the prosecution or
circumstances surrounding the trial make it impossible for even
competent counsel to provide effective representation. See Cronic,
466 U.S. at 659-61.
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The Cronic exception has been applied in cases where
counsel slept as evidence was being introduced against the
defendant, Burdine v. Johnson, 262 F.3d 336, 338 (5th Cir. 2001)
(en banc), where counsel adopted and acted upon a belief that his
client should be convicted, Osborn v. Shillinger, 861 F.2d 612, 625
(10th Cir. 1988), and where counsel sat silently throughout the
entire trial, see Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.
1989). But it has been held inapplicable to cases involving "bad
lawyering, regardless of how bad." Scarpa, 38 F.3d at 13
(citation omitted). "Attorney error, even when egregious, . . .
almost always require[s] analysis under Strickland's prejudice
prong." Id. at 14.
Bell demonstrates the narrowness of the Cronic exception.
See 535 U.S. at 696-97. During the sentencing phase of a capital
murder trial, defense counsel took three actions on behalf of his
client: he made a brief opening statement asking for mercy and
referencing that the defendant suffered Vietnam Veterans Syndrome;
he established on cross-examination that the defendant had received
the Bronze Star during his Vietnam service; and he successfully
objected to the introduction of two photographs of the murder
victims. Id. at 708. But counsel did not interview any witnesses
relevant to the guilt phase; present mitigation testimony from the
defendant's relatives who were available to testify; or make a
closing statement. Id. at 708-10. Despite counsel's meager
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efforts, the Supreme Court determined that the defendant had not
demonstrated that counsel failed entirely to oppose the
prosecution; rather, the defendant showed only that counsel failed
to oppose the prosecution "at specific points" in the proceeding.
Id. at 696-97. Therefore, the Court held that Cronic's presumed
prejudice standard did not apply. Id. at 697.
Noonan's performance resembles the attorney's performance
in Bell. While Noonan's representation of Theodore suffered
significant shortcomings, it was not tantamount to non-
representation. Prior to trial, Noonan reviewed boxes of
documents, "looked at every single cotton-picking piece of paper,"
and asked the government to provide copies of those documents he
thought relevant. Noonan also filed pretrial motions on Theodore's
behalf, including a non-frivolous motion arguing that a recent
Supreme Court decision required the dismissal of the mail fraud
charges. During voir dire, Noonan exercised several peremptory
challenges.
Noonan also participated in the trial itself. He
presented an opening during which he touched on several themes,
including that Theodore's conduct was beyond the statute of
limitations; that someone else was responsible for the illegal
conduct; and that "LK-200" was not a drug and therefore not subject
to the Food Drug and Cosmetic Act. He cross-examined all of the
government witnesses, and he occasionally asked questions that
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returned to the themes mentioned in the opening. Noonan also
introduced nine defense exhibits that related in some degree to the
defense themes, filed a Fed. R. Crim. P. 29 motion for judgment of
acquittal, and made a closing argument.
In summarizing Noonan's performance, the district court
recognized that Noonan had "cross-examined the government
witnesses, suggested some defense themes, and introduced a few
exhibits." Theodore, 345 F. Supp. 2d at 126-27. Such minimal
performance is sufficient to remove this case from Cronic's ambit.
See, e.g., Bell, 535 U.S. at 696-97; Barrow v. Uchtman, 398 F.3d
597, 603 n.4 (7th Cir. 2005) (concluding that Cronic did not apply
where counsel presented no evidence in defendant's capital case but
did present an opening or closing argument and conducted some
cross-examinations); Millender v. Adams, 376 F.3d 520, 524 (6th
Cir. 2004) (concluding that Cronic did not apply where counsel
cross-examined witnesses, made objections, and presented a closing
argument); Hooper v. Mullin, 314 F.3d 1162, 1175 (10th Cir. 2002)
(concluding that Cronic did not apply where counsel cross-examined
witnesses, made objections, presented some evidence favoring
defendant, and made an opening and closing argument); Fink v.
Lockhart, 823 F.2d 204, 206 (8th Cir. 1987) (concluding that Cronic
did not apply where defense counsel used peremptory challenges,
cross-examined witnesses, and made a closing argument). This is
not to say that Noonan's performance was acceptable. Indeed, it
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undoubtedly fell below the "very forgiving" Sixth Amendment
standard for effective assistance of counsel. Delgado v. Lewis,
223 F.3d 976, 981 (9th Cir. 2000). But Noonan's conduct was not so
deficient that Theodore should have been relieved from
demonstrating actual prejudice under Strickland.
Theodore has presented an alternative argument for
affirming the new trial order. He contends that even if prejudice
was incorrectly presumed under Cronic, he has demonstrated actual
prejudice under Strickland. The government disagrees and further
contends that Theodore forfeited the actual prejudice argument by
failing to raise it in the district court.
In the circumstances of this case, we do not find that
Theodore has forfeited his actual prejudice claim. During
Theodore's opening remarks at the post-trial evidentiary hearing,
counsel stated that Theodore would present evidence showing that if
Noonan had done a better job "it would have made a difference."
Counsel also specifically distinguished Theodore's Strickland
argument from his Cronic argument by telling the court that, at the
conclusion of the hearing, Theodore "will have met the Strickland
test [and] will also have met the test to show that Noonan . . .
constructively abandoned [him]." And, in Theodore's proposed
findings of fact and conclusions of law, he specifically requested
a ruling on actual prejudice.
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It is true that Theodore did not fully develop the actual
prejudice issue before the district court. But this resulted from
the manner in which events unfolded and not from any decision to
abandon the actual prejudice argument. On the first day of the
evidentiary hearing, Noonan and the trial judge testified
concerning Noonan's performance. At the start of the second day of
the hearing, the district court announced that, based on the first
day's testimony, it had decided to order a new trial under Cronic.
The court offered the government the opportunity to withdraw its
opposition to Theodore's motion, but the government declined, so
the court permitted the hearing to continue to a conclusion. Given
the court's statement that it had already decided to allow the new
trial motion on presumed prejudice grounds, we will not fault
Theodore for declining to make a detailed presentation on actual
prejudice.
The lack of a complete evidentiary record does, however,
prevent us from accepting Theodore's invitation to resolve the
actual prejudice issue on this appeal. The issue largely turns
on documents that are not properly within the appellate record.
Moreover, the record, as currently constituted, lacks an adequate
description of the precise evidence that Theodore would present if
a retrial were ordered. We therefore vacate the new trial order
and remand to the district court to consider, upon further
submissions or after hearing, whether Theodore has demonstrated
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actual prejudice under Strickland. See Dugas v. Coplan, 428 F.3d
317, 342-43 (1st Cir. 2005) (remanding for further record
development on whether the defendant could establish actual
prejudice under Strickland).
So ordered.
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