U.S. v. DeRewal

• Decision Date: 08 December 1993
• Docket Number: No. 93-1152,93-1152
• Citation: 10 F.3d 100
• Parties: UNITED STATES of America v. Manfred DeREWAL, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 100

10 F.3d 100

UNITED STATES of America v. Manfred DeREWAL, Appellant.

No. 93-1152.

United States Court of Appeals, Third Circuit.

Argued Aug. 26, 1993.

Decided Nov. 9, 1993.

Sur Petition for Rehearing Dec. 8, 1993.

Michael J. Rotko, U.S. Atty., E.D. Pennsylvania, Frank J. Marine, Miriam Banks (Argued), Attys., U.S. Dept. of Justice, Organized Crime & Racketeering Section, Washington, DC, for appellee.

Stephen R. LaCheen (Argued), LaCheen & Associates, Philadelphia, PA, for appellant.

Before: BECKER, NYGAARD, and ALITO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Manfred DeRewal appeals from a district court order denying his motion to vacate his sentence under 28 U.S.C. Sec. 2255. Adopting the report and recommendation of a magistrate judge, the district court held, among other things, that DeRewal had not shown "cause" pursuant to United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), for not raising his ineffective assistance of counsel claim on direct appeal or in his motion for a new trial based on newly discovered evidence. We hold that the "cause and prejudice" standard set out in Frady does not apply to an ineffective assistance of counsel claim asserted in a Section 2255 motion, and we therefore reverse the decision of the district court in part and remand for further proceedings.

I.

DeRewal was indicted in 1988 for one count of conspiracy to import phenyl-2-propanone (P2P) into the United States from Costa Rica, in violation of 21 U.S.C. Sec. 963; one count of importation of P2P, in violation of 21 U.S.C. Sec. 952(a); and one count of attempting to import P2P, in violation of 21 U.S.C. Sec. 963. Before trial, DeRewal moved to suppress the fruits of wiretaps conducted in Costa Rica, contending that the wiretaps violated the Fourth Amendment and Costa Rican law. After a hearing, the district court denied this motion. United States v. DeRewal, 703 F.Supp. 372 (E.D.Pa.1989). Addressing DeRewal's Fourth Amendment claim, the court began by stating that as a general rule "[n]either the Fourth Amendment nor the exclusionary rule applies to searches conducted in foreign countries by foreign officials" but that two exceptions to this rule had been recognized by the courts: "(1) where the involvement of the United States officials is so extensive in the search that the United States government and the foreign government are said to be involved in a 'joint venture'; and (2) where the action taken by the foreign officials shocks the judicial conscience." Id. at 374 (footnote omitted). The court then held that "no joint venture [could] be found between the United States and Costa Rica in this case." Id. at 375. The court further concluded that the Costa Rican wiretap "was placed pursuant to a properly obtained [Costa Rican] court order" and did not violate Costa Rican law. Id. at 375-76. Finally, the court held that the conduct of the Costa Rican officials did not shock the conscience of the court. Id. at 376.

DeRewal was subsequently tried before a jury and convicted on all counts. He appealed, but we affirmed his conviction and issued an unpublished Memorandum Opinion. In response to his argument that his suppression motion had been improperly denied, we held that the district court had applied the correct legal standard and had not made any clearly erroneous findings of fact. We also rejected DeRewal's argument that the district court had erred in allowing the testimony of a prosecution witness, Peggy Turner Dunn, whose identity had not been disclosed to him prior to trial. We stated that we were "impressed ... that the government gave defense counsel rough notes of a prior interview by the FBI with [Peggy Turner Dunn], thus providing counsel with possible materials for impeachment" and that "defense counsel was given unrestrictive opportunity to cross-examine her out of the presence of the jury before her testimony." United States v. DeRewal, No. 89-1298, at 5-6 (3d Cir. Sept. 8, 1989). ¹

After our decision on direct appeal, DeRewal filed in the district court a motion for a new trial based on newly discovered evidence. In this motion, DeRewal first contended that he had discovered new evidence that supported his argument that the Costa Rican wiretap violated Costa Rican law and was part of a joint venture involving United States agents. DeRewal also contended that he had uncovered new evidence showing that Peggy Turner Dunn had testified falsely. The district court denied this motion. The court held that DeRewal had not shown that the evidence concerning the Costa Rican wiretap was newly discovered or that it could not have been discovered with due diligence by trial counsel. The court also observed that the evidence did not concern DeRewal's guilt or innocence but only the issue of suppression. Finally, the court held that "even without the wiretap evidence it was improbable that [DeRewal] would be acquitted." With respect to the evidence concerning Peggy Turner Dunn, the court observed that the propriety of allowing her testimony had been litigated at trial and that the only pieces of evidence bearing on this question that could be considered newly discovered were "merely cumulative" and "impeaching." The court also stated that "it is highly unlikely that such evidence would produce an acquittal." DeRewal appealed the denial of his new trial motion, but the appeal was dismissed by agreement of the parties.

DeRewal subsequently filed a motion to vacate his sentence under 28 U.S.C. Sec. 2255. In support of this motion, he first claimed that he had been denied the effective assistance of counsel at trial, primarily because his attorney had failed to conduct an adequate pretrial investigation. Second, he contended DeRewal's motion was referred to a magistrate judge, who recommended that the motion be denied. The magistrate judge concluded that DeRewal was required to satisfy the "cause and prejudice" standard set out in Frady and that DeRewal had not shown "cause" for failing to raise his ineffective assistance of counsel claim on direct appeal or in his motion for a new trial. The magistrate judge also concluded that DeRewal's arguments concerning the wiretap and the other alleged government misconduct were not cognizable under Section 2255 because they were based, not on trial error, but on evidence that was discovered after trial. Thus, the magistrate judge stated, the proper vehicle for asserting this argument was a motion for a new trial based on newly discovered evidence, and the magistrate judge stated that the district court's denial of DeRewal's new trial motion was dispositive of those claims. The district court adopted the magistrate judge's report and recommendation and denied DeRewal's motion. This appeal followed.

that the conduct of the United States agents related to the Costa Rican wiretap and the testimony of Peggy Turner Dunn and another witness was so egregious that it violated due process and required dismissal of the charges against him. As part of this argument, DeRewal again argued that the Costa Rican wiretap was illegal and was the product of a joint venture.

II.

DeRewal argues that the district court erred in holding that Frady 's "cause and prejudice" standard applies to his argument that his trial attorney provided ineffective assistance. We agree.

In Frady, a defendant sought to have his murder sentence vacated based on an erroneous jury instruction that he had not challenged at trial or on direct appeal. After reaffirming the principle that "a collateral challenge may not do service for an appeal," the Court held that the proper standard for review of the defendant's motion was the " 'cause and actual prejudice standard' enunciated in Davis v. United States, 411 U.S. 233 [93 S.Ct. 1577, 36 L.Ed.2d 216] (1973)." Frady, 456 U.S. at 167, 102 S.Ct. at 1594. Under that standard, the Court explained, "a convicted defendant must show both (1) 'cause' excusing his ... procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Id. at 168, 102 S.Ct. at 1594.

Although the government's brief in this case argued that DeRewal was required to show "cause and prejudice" with respect to his failure to raise his ineffective assistance of counsel claim on direct appeal, the government informed us shortly before argument that it was withdrawing this contention based on the position taken by the Solicitor General in the Supreme Court in the case of Billy-Eko v. United States, No. 92-7897 (see --- U.S. ----, 113 S.Ct. 2989, 125 L.Ed.2d 685 (1993) (vacating and remanding)). In the government's brief in that case, the Solicitor General stated:

It has long been the position of the United States that claims of ineffective assistance of trial counsel ordinarily should be raised in the first instance in a motion under Section 2255 rather than on direct appeal.... There are two reasons for that position: (1) if the same lawyer represented the defendant both at trial and on appeal, it is unrealistic to expect a lawyer to argue on appeal that his own performance at trial was ineffective; and (2) resolution of claims of ineffective assistance of trial counsel often requires consideration of matters that are outside the record on direct appeal and that should be considered by the district court in the first instance.

Respondent's Brief at 6. Citing, among other cases, our decision in United States v. Rieger, 942 F.2d 230, 235 (3d Cir.1991), the Solicitor General observed that "[t]he courts of appeals have expressed a strong preference (or, in some cases, required) that an ineffective assistance claim be presented to the district court in the first instance in a motion under Section 2255." Id. "Hence," he added, "because it is appropriate to raise a claim of ineffective assistance under Section 2255, rather than on direct appeal, the failure to raise such a claim on direct appeal should not be treated as a...