468 F.3d 52 (1st Cir. 2006), 05-1119, United States v. Theodore

Docket Nº:05-1119, 05-1120.
Citation:468 F.3d 52
Party Name:UNITED STATES of America, Appellant/Cross-Appellant, v. Thomas Ronald THEODORE, Defendant-Appellee/Cross-Appellee.
Case Date:November 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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468 F.3d 52 (1st Cir. 2006)

UNITED STATES of America, Appellant/Cross-Appellant,

v.

Thomas Ronald THEODORE, Defendant-Appellee/Cross-Appellee.

Nos. 05-1119, 05-1120.

United States Court of Appeals, First Circuit.

November 15, 2006

Heard Sept. 12, 2006.

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

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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.

Before Selya, Circuit Judge, Siler, [*] Senior Circuit Judge, and Howard, Circuit Judge.

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, 90 S.Ct. 1441, 25 L.Ed.2d 763 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

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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, 104 S.Ct. 2039, 80 L.Ed.2d 657 (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 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 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...

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