U.S. v. Tucker

Decision Date30 September 1983
Docket NumberNo. 79-1657,79-1657
Citation716 F.2d 576
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert E. TUCKER, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Warren P. Reese, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Warren P. Reese, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Richard Barnett, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before ELY, SNEED, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Following a jury trial, appellant Robert Tucker was convicted of conspiracy to defraud the United States and of making false income tax returns in connection with a scheme to overcharge the Department of the Navy for items manufactured by Tucker's employer, Sells Engineering. Tucker contends that he was incompetently represented at trial by his retained counsel, and that as a result he was denied a fair trial. We agree.

After sentencing, Tucker moved for a new trial on the ground that his retained counsel, Karl Keating, had ineffectively represented him at trial. The district court appointed new counsel for Tucker. An evidentiary hearing was held regarding the competency of Keating's representation. At the hearing, Keating was examined extensively about his trial preparation and trial strategy. 1 Expert testimony was also presented regarding the minimum acceptable trial preparation required in a case of this magnitude.

Tucker's present counsel requested leave to conduct an investigation to determine whether Tucker had been prejudiced by Keating's incompetence. The trial court refused his request. 2 The trial court denied Tucker's motion for a new trial, finding that even if Keating's representation had been incompetent, Tucker had not been denied a fair trial.

This court, in an unpublished disposition remanded this matter to the trial court for specific findings as to whether Tucker's counsel had been incompetent, and, if so, whether Tucker had been prejudiced by such ineffectiveness. On remand, the trial court made extensive findings of fact regarding Keating's qualifications, his trial preparation, and his trial performance.

The district court concluded that, while Keating had performed incompetently, Tucker had not been prejudiced by his attorney's errors and omissions.


Tucker alleges that Keating conducted his defense in a totally incompetent manner and that such incompetence prejudiced his defense. Tucker claims that Keating's representation was incompetent in at least eight respects: 3

1. At the time he was retained, Keating was completely unqualified to handle a federal criminal jury trial, and took no steps to remedy his shortcomings prior to trial. 4

2. Keating failed to consult adequately with Tucker prior to trial. He failed to forward any of the discovery in the case to Tucker and he did not obtain relevant information in Tucker's possession which would have assisted the preparation of the defense.

3. Keating did not interview a single government witness prior to trial although Tucker informed him that some of them could corroborate his proposed testimony.

4. Keating failed to conduct any other form of pre-trial investigation in the case.

5. Keating failed to keep Tucker adequately apprised of his pretrial preparation.

6. Keating failed to conduct an adequate review of the government's documentary evidence including critical statements and affidavits given to prosecutors by prospective witnesses.

7. At trial, Keating failed to impeach any of the government's witnesses with prior inconsistent statements.

8. Keating failed to object to the admission of any of the government's documentary evidence, failed to object to a single question asked by government prosecutors, and failed to make a single motion. In particular, Keating incompetently failed to seek suppression of statements given by Tucker to the IRS.

Tucker's allegations, and the trial court's implied findings of incompetence are amply supported by the record before us. Moreover, Keating's incompetence was sufficiently serious to have prejudiced Tucker's right to a fair trial. Under the standards adopted in this circuit concerning the defendant's right to competent representation under the sixth amendment, Tucker's conviction must be reversed.

The Ninth Circuit, in the landmark case of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), set out the minimum level of competence required of an attorney by the sixth amendment. We held in Cooper v. Fitzharris that the Constitution requires that a defendant receive "reasonably competent and effective representation". Id. at 1328. The representation of an accused must be within the range of competence generally demanded of attorneys in criminal cases. Id. at 1329. In Cooper, this court declined defense counsel's errors or omissions must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney--they must be errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made, for that is the constitutional standard.

                to adopt a particularized checklist of minimum standards which counsel must meet in representing a defendant in a criminal proceeding, noting that it would be unwise "to restrict the constitutional requirements to a list of essential elements applicable to all of the infinite variety of factual settings that arise."    Id. at 1330.  We also made clear that the Constitution does not guarantee representation that is infallible.  For a sixth amendment violation to be found

Id. at 1330. 5

The District Court appears to have concluded that Keating's representation of Tucker was incompetent. The district court found as follows:

Retained trial counsel in terms of his basic professional experience prior to the commencement of this trial was unqualified to represent the defendant Robert E. Tucker. He failed to take steps to properly familiarize himself with federal trial procedure, he was inexperienced as a trial lawyer and his lack of skill and learning contributed to his preparedness or lack thereof at time of trial. 6

There is ample support in the record before us for the court's conclusion. Because the nature and extent of Keating's errors and omissions has a substantial bearing on the question of whether Tucker was prejudiced by that incompetence, we review Keating's most serious shortcomings in some detail.

Keating's Trial Preparation

Defense counsel should have discerned from both the indictment and the government documents made available to him that the jury's determination as to Tucker's guilt or innocence would depend in large part on the testimony and credibility of the government's witnesses. At least two key witnesses for the government had agreed to implicate Tucker directly in the fraud, and the government had constructed a substantial circumstantial case to corroborate its testimony.

Short of proof of insanity, Tucker's only plausible theory of defense was readily apparent. He had to convince the jury that he was an outsider to the corporate hierarchy of Sells Engineering, unaware of the fraud others were perpetrating. To raise a reasonable doubt, it must have been proved that there were innocent alternative explanations for the circumstantial evidence presented by the government which implicated him in the fraud. Therefore, it was crucial for Tucker both to undermine the credibility of the chief government witnesses and to establish the plausibility of his own testimony. There were a number of ways this defense could have been developed based upon information available to defense counsel before trial. The credibility of the principal prosecution witnesses who were to implicate Tucker in the fraud was subject to question. They had all participated in the fraud to varying degrees. Each had given prior statements under oath which raised substantial questions as to his credibility and one had struck a plea bargain with the prosecutor in exchange for his testimony. 7 Moreover, a number of the other witnesses called by the government had also given statements to prosecutors which were less supportive of the government's case than the testimony they gave at trial. 8 These prior statements at the very Finally, Tucker was the most obvious source of leads as to corroborative witnesses and information. Indeed, Tucker gave his attorney the names of witnesses who could either corroborate his testimony, or at least counter or minimize the inculpatory inferences which could be drawn from the circumstantial evidence presented by the government. None were interviewed by counsel. 9 Furthermore, prior to trial what communication there was between Tucker and Keating was by telephone. During the entire period before trial, Tucker was in St. Louis while, Keating, along with potential defense witnesses and documentary evidence, was in California.

least raised serious questions about the reliability of the witnesses' recollections as to events which had occurred eight years before trial.

We recognize that the actual task of competently fashioning a defense to a case of this complexity was a substantial one. The government had indicated that it intended to call approximately 80 witnesses in its case in chief and to introduce what it described as "voluminous" documentary evidence. The pretrial discovery material made available for Keating's review involved at least 13,000 pages, encompassing approximately 3,800 separate documents. Among the documents included in the pretrial discovery material were over 3,000 pages of sworn testimony by prospective witnesses, which obviously had to be studied carefully. Thus, the time required for interviewing witnesses and...

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