354 F.3d 1 (1st Cir. 2003), 02-1281, U.S. v. Theodore

Docket Nº:02-1281
Citation:354 F.3d 1
Party Name:U.S. v. Theodore
Case Date:December 12, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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354 F.3d 1 (1st Cir. 2003)

UNITED STATES of America, Appellee,


Thomas Ronald THEODORE, Defendant, Appellant.

No. 02-1281.

United States Court of Appeals, First Circuit

December 12, 2003

Heard Nov. 4, 2003.

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[Copyrighted Material Omitted]

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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.


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.

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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...

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