U.S. v. Theodore, No. CR. 00-10023-JLT.

• Decision Date: 22 November 2004
• Docket Number: No. CR. 00-10023-JLT.
• Citation: 345 F.Supp.2d 123
• Parties: UNITED STATES of America, v. Thomas Ronald THEODORE, Defendant.
• Court: U.S. District Court — District of Massachusetts

345 F.Supp.2d 123

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

No. CR. 00-10023-JLT.

United States District Court, D. Massachusetts.

November 22, 2004.

W. Arthur Garrity, III, Garrity, Levin and Muir, Boston, MA, for Sunder K. Ganglani, Interested Party.

Paul G. Levenson, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

Eugene P. McCann, Manzi & McCann, Lawrence, MA, John A. Noonan, Bridgewater, MA, Gordon E. White, Houston, TX, for Thomas Ronald Theodore (1), Defendant, Pro se.

Pretrial Services, U.S. Pretrial Services, Boston, for Pretrial Services, U.S. Pretrial Services, Boston, Notice.

MEMORANDUM

TAURO, District Judge.

On March 12, 2001, Thomas Ronald Theodore ("Theodore") was convicted of nine counts of mail fraud and three counts of violating the Food, Drug, and Cosmetic Act.¹ He was sentenced to 121 months in prison.² Theodore appealed his conviction, alleging several errors by the district court. The Court of Appeals rejected all of Theodore's arguments, except his contention that the district court erred in denying Theodore's motion for an evidentiary hearing on his motion for a new trial. The Court of Appeals remanded the case to this court for an evidentiary hearing to determine whether Theodore is entitled to a new trial because of the ineffective assistance of his counsel at his first trial.

Background

On April 6, 2000, a federal grand jury indicted Theodore on multiple counts of conspiracy, mail fraud, and violations of the Food, Drug, and Cosmetics Act.³ Between 1992 and 1995, Theodore and an associate allegedly solicited investments in Private Biologicals Corporations (PBC), falsely claiming that the company had developed, and manufactured overseas, a cutting-edge new drug called "LK-200." In fact, PBC manufactured LK-200, a well-known drug, in allegedly sub-standard conditions at a facility in Woburn, Massachusetts.

Prior to his trial, a series of different attorneys represented Theodore. In January of 2000, John Noonan ("Noonan") appeared for Theodore at his initial appearance.⁴ After the initial appearance, John Bonistalli briefly represented Theodore. In April of 2000, Noonan filed a motion for Gordon White ("White") to appear pro hac vice on behalf of Theodore, with Noonan to serve as local counsel. On October 23, 2000, Noonan and White represented Theodore at an evidentiary hearing regarding a motion to dismiss. At this hearing however, only White actively participated. Although White never formally withdrew, this was his last appearance made on behalf of Theodore.

On February 1, 2001, Noonan represented Theodore at his pretrial conference. Although Noonan had not tried a case in federal court during his forty years of practice, he appeared as Theodore's sole counsel. During this conference, the district court pushed the trial date back one week and denied several of Theodore's pretrial motions as untimely. The district court asked Noonan how comfortable he felt representing Theodore in this matter. Noonan stated that he was "very uncomfortable" and was worried that there might be a Sixth Amendment issue.⁵

At a conference held the next day, Theodore moved to have new counsel appointed. Theodore told the court 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."⁶ The district court denied Theodore's motion, but appointed Dennis Kelly as standby counsel "to advise Noonan about federal procedure."⁷

Before jury selection on the first day of trial, February 12, 2001, Noonan filed a motion to withdraw as Theodore's attorney and sought a continuance for new counsel to be found. The district court denied Noonan's motion. Throughout the trial, Noonan's performance was abysmal, and the jury convicted Theodore of all the charges against him.

The district court appointed Theodore new counsel for his sentencing and post-trial motions. Theodore filed a motion for a new trial claiming ineffective assistance of counsel, and he requested that the district court conduct an evidentiary hearing. Theodore's motion included an affidavit from Noonan in which Noonan stated 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."⁸ Contrary to his pretrial representations to the court, Noonan also admitted that he had never tried a murder case in state court. The district court, however, denied Theodore's request for an evidentiary hearing and his motion for a new trial. Theodore was sentenced to 121 months in prison and ordered to pay $1,535,240 in restitution.

Theodore filed a timely appeal, alleging several errors by the district court. The Court of Appeals rejected all of Theodore's arguments, except his contention that the district court erred in denying his motion for an evidentiary hearing on his motion for a new trial.⁹ The Court of Appeals remanded the case to this court for an evidentiary hearing to determine whether Theodore is entitled to a new trial based on ineffective assistance of counsel.¹⁰

The Evidentiary Hearing

In June of 2004, this court held a two-day evidentiary hearing to determine whether Theodore is entitled to a new trial. At the hearing, Noonan testified at length. Noonan stated that during the discovery phase of Theodore's trial he viewed only a small number of the approximately 16,000 images of financial documents scanned and cataloged onto CD ROMs by prosecutors.¹¹ Instead, Noonan went to the U.S. Attorney's Office and looked through boxes of documents concerning Theodore's case.¹² This search, however, was limited to identifying financial records for delivery to Attorney White.¹³ Noonan did not analyze these records or develop a theory of the case.¹⁴ The analytical work was left to White,¹⁵ and he was certainly out of the picture by February of 2001.

Noonan testified that on February 1, 2001, the date of the pretrial conference, he was not operating out of an office, and he did not have a secretary, paralegal, or any part-time assistants.¹⁶ At the pretrial conference, Noonan informed the district court that he felt "very uncomfortable" trying the case.¹⁷ The next day, Theodore moved to have new counsel appointed.¹⁸ Noonan, though, had told District Judge Lindsay, the presiding trial judge, that he had forty years of trial experience in state court, including trying murder cases.¹⁹ Noonan also represented to Judge Lindsay that he "did all the preliminary work that needs to be done."²⁰ Noonan statements, however, were grossly inaccurate. At the evidentiary hearing held before this court, Noonan admitted that he never tried a murder case in state court.²¹ And there is little doubt that Noonan's preliminary work was far from complete.

Believing Noonan's statements, Judge Lindsay determined that Noonan was competent to try the case, but appointed Attorney Dennis Kelly as standby counsel to assist Noonan with federal criminal procedure.²² Mr. Kelly, though, had no impact on the quality of Noonan's representation. Mr. Kelly did not assist Noonan outside the courtroom, he did not assist Noonan with direct or cross-examination, and he did not assist Noonan in trying to tear down the government's case against Theodore.²³ Despite Judge Lindsay's best efforts to ensure a fair trial by appointing standby counsel, Noonan failed to utilize the available assistance of Mr. Kelly.²⁴ Indeed, Noonan testified, as of ten days before trial, he had no defense theme or themes and planned to "[p]lay it by ear and shoot from the hip."²⁵ Noonan admitted that his strategy, or lack thereof, was detrimental to Theodore.²⁶

On the first day of trial, February 12, 2001, Noonan began his opening statement with the following comment: "I am rapidly approaching seventy. I have been retired for five years. I was never supposed to try this case."²⁷ Though unprepared, Noonan cross-examined the government's witnesses,²⁸ suggested some defense themes,²⁹ and introduced a few exhibits.³⁰ Yet during his cross-examinations, Noonan repeatedly asked open-ended questions,³¹ and was often admonished for asking redundant questions³² and having witnesses read from documents already admitted into evidence.³³ At trial, Noonan frequently floundered and looked, he explained, "for anything I could hang my hat on."³⁴ In addition, Noonan struggled with the rules of evidence,³⁵ could not lay a proper foundation for the introduction of evidence,³⁶ and often could not hear the prosecution's frequent objections.³⁷ And during Noonan's closing argument, Judge Lindsay sustained eight of the government's objections.³⁸ At the evidentiary hearing, Judge Lindsay testified that Noonan had "a theory of defense," but he "poorly, poorly executed it."³⁹ Indeed, during the trial, one juror asked Judge Lindsay whether the U.S. Attorney could offer Theodore a plea bargain because Noonan's representation was so ineffective.⁴⁰

Even more troubling, Noonan did not know how to subpoena witnesses in federal court.⁴¹ Although he wanted to call thirteen witnesses, Noonan was able to properly subpoena only one witness, Sunder Ganglani.⁴² Ganglani, however, never testified at trial. On March 1, 2001, Mr. Ganglani filed a motion to quash the subpoena on grounds that he had no relevant personal knowledge of the facts at issue.⁴³ Ganglani, however, had informed the Food and Drug Administration that Theodore's former company, PBC, was engaged in wrongdoing.⁴⁴ Ganglani also helped the FDA obtain incriminating telephone conversations with employees at PBC.⁴⁵

Because Ganglani was scheduled to leave the country, the district court held an impromptu motion hearing on March 2, 2001.⁴⁶ Ganglani and his attorney were present for the hearing but Noonan did not attend.⁴⁷ Noonan testified that he spoke with the court clerk at 10:00 a.m. and was informed that nothing was scheduled.⁴⁸ Noonan, thereafter, went to the library all day and...