U.S. v. Theodore, 02-1281.

• Decision Date: 12 December 2003
• Docket Number: No. 02-1281.,02-1281.
• Citation: 354 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Thomas Ronald THEODORE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

354 F.3d 1

UNITED STATES of America, Appellee, v. Thomas Ronald THEODORE, Defendant, Appellant.

No. 02-1281.

United States Court of Appeals, First Circuit.

Heard November 4, 2003.

Decided December 12, 2003.

COPYRIGHT MATERIAL OMITTED

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.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Senior Circuit Judge.

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); Knight v. United States, 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, 114 S.Ct. 1839, 128 L.Ed.2d 466 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 120 S.Ct. 206, 145 L.Ed.2d 173 (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, 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, 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 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 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 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. Se...