On March 12, 2001, Thomas Ronald Theodore ("Theodore") wasconvicted of nine counts of mail fraud and three counts ofviolating the Food, Drug, and Cosmetic Act.1 He wassentenced to 121 months in prison.2 Theodore appealed hisconviction, alleging several errors by the district court. TheCourt of Appeals rejected all of Theodore's arguments, except hiscontention that the district court erred in denying Theodore'smotion for an evidentiary hearing on his motion for a new trial.The Court of Appeals remanded the case to this court for anevidentiary hearing to determine whether Theodore is entitled toa new trial because of the ineffective assistance of his counselat his first trial. Background
On April 6, 2000, a federal grand jury indicted Theodore onmultiple counts of conspiracy, mail fraud, and violations of theFood, Drug, and Cosmetics Act.3 Between 1992 and 1995,Theodore and an associate allegedly solicited investments inPrivate Biologicals Corporations (PBC), falsely claiming that thecompany had developed, and manufactured overseas, a cuttingedgenew drug called "LK-200." In fact, PBC manufactured LK-200, awell-known drug, in allegedly sub-standard conditions at afacility in Woburn, Massachusetts.
Prior to his trial, a series of different attorneys representedTheodore. In January of 2000, John Noonan ("Noonan") appeared forTheodore at his initial appearance.4 After the initialappearance, John Bonistalli briefly represented Theodore. InApril of 2000, Noonan filed a motion for Gordon White ("White")to appear pro hac vice on behalf of Theodore, with Noonan toserve as local counsel. On October 23, 2000, Noonan and Whiterepresented Theodore at an evidentiary hearing regarding a motionto dismiss. At this hearing, however, only White activelyparticipated. Although White never formally withdrew, this washis last appearance made on behalf of Theodore.
On February 1, 2001, Noonan represented Theodore at hispretrial conference. Although Noonan had not tried a case infederal court during his forty years of practice, he appeared asTheodore's sole counsel. During this conference, the districtcourt pushed the trial date back one week and denied several ofTheodore's pretrial motions as untimely. The district court asked Noonan how comfortable he felt representing Theodore in thismatter. Noonan stated that he was "very uncomfortable" and wasworried that there might be a Sixth Amendment issue.5
At a conference held the next day, Theodore moved to have newcounsel appointed. Theodore told the court that he did not wantNoonan to represent him, and "that from the start, Noonan hadtold him that he was not competent to try the case."6 Thedistrict court denied Theodore's motion, but appointed DennisKelly as standby counsel "to advise Noonan about federalprocedure."7
Before jury selection on the first day of trial, February 12,2001, Noonan filed a motion to withdraw as Theodore's attorneyand sought a continuance for new counsel to be found. Thedistrict court denied Noonan's motion. Throughout the trial,Noonan's performance was abysmal, and the jury convicted Theodoreof all the charges against him.
The district court appointed Theodore new counsel for hissentencing and post-trial motions. Theodore filed a motion for anew trial claiming ineffective assistance of counsel, and herequested that the district court conduct an evidentiary hearing.Theodore's motion included an affidavit from Noonan in whichNoonan stated that "he had a drinking problem that resurfacedduring Theodore's trial and that he had not examined thousands ofpages of evidence disclosed by the government."8 Contraryto his pretrial representations to the court, Noonan alsoadmitted 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 fora new trial. Theodore was sentenced to 121 months in prison andordered to pay $1,535,240 in restitution.
Theodore filed a timely appeal, alleging several errors by thedistrict court. The Court of Appeals rejected all of Theodore'sarguments, except his contention that the district court erred indenying his motion for an evidentiary hearing on his motion for anew trial.9 The Court of Appeals remanded the case tothis court for an evidentiary hearing to determine whetherTheodore is entitled to a new trial based on ineffectiveassistance of counsel.10
The Evidentiary Hearing
In June of 2004, this court held a two-day evidentiary hearingto determine whether Theodore is entitled to a new trial. At thehearing, Noonan testified at length. Noonan stated that duringthe discovery phase of Theodore's trial he viewed only a smallnumber of the approximately 16,000 images of financial documentsscanned and cataloged onto CD ROMs by prosecutors.11Instead, Noonan went to the U.S. Attorney's Office and lookedthrough boxes of documents concerning Theodore's case.12This search, however, was limited to identifying financialrecords for delivery to Attorney White.13 Noonan did notanalyze these records or develop a theory of the case.14 The analytical work wasleft to White,15 and he was certainly out of the pictureby February of 2001.
Noonan testified that on February 1, 2001, the date of thepretrial conference, he was not operating out of an office, andhe did not have a secretary, paralegal, or any part-timeassistants.16 At the pretrial conference, Noonan informedthe district court that he felt "very uncomfortable" trying thecase.17 The next day, Theodore moved to have new counselappointed.18 Noonan, though, had told District JudgeLindsay, the presiding trial judge, that he had forty years oftrial experience in state court, including trying murdercases.19 Noonan also represented to Judge Lindsay that he"did all the preliminary work that needs to be done."20Noonan statements, however, were grossly inaccurate. At theevidentiary hearing held before this court, Noonan admitted thathe never tried a murder case in state court.21 And thereis little doubt that Noonan's preliminary work was far fromcomplete.
Believing Noonan's statements, Judge Lindsay determined thatNoonan was competent to try the case, but appointed AttorneyDennis Kelly as standby counsel to assist Noonan with federal criminal procedure.22 Mr. Kelly, though, had noimpact on the quality of Noonan's representation. Mr. Kelly didnot assist Noonan outside the courtroom, he did not assist Noonanwith direct or cross-examination, and he did not assist Noonan intrying to tear down the government's case againstTheodore.23 Despite Judge Lindsay's best efforts toensure a fair trial by appointing standby counsel, Noonan failedto utilize the available assistance of Mr. Kelly.24Indeed, Noonan testified, as of ten days before trial, he had nodefense theme or themes and planned to "[p]lay it by ear andshoot 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 hisopening statement with the following comment: "I am rapidlyapproaching seventy. I have been retired for five years. I wasnever supposed to try this case."27 Though unprepared,Noonan cross-examined the government's witnesses,28suggested some defense themes,29 and introduced a fewexhibits.30 Yet during his cross-examinations, Noonan repeatedly asked open-endedquestions,31 and was often admonished for askingredundant questions32 and having witnesses read fromdocuments already admitted into evidence.33 At trial,Noonan frequently floundered and looked, he explained, "foranything I could hang my hat on."34 In addition, Noonanstruggled with the rules of evidence,35 could not lay aproper foundation for the introduction of evidence,36 andoften could not hear the prosecution's frequentobjections.37 And during Noonan's closing argument, JudgeLindsay sustained eight of the government's objections.38At the evidentiary hearing, Judge Lindsay testified that Noonanhad "a theory of defense," but he "poorly, poorly executedit."39 Indeed, during the trial, one juror asked JudgeLindsay whether the U.S. Attorney could offer Theodore a pleabargain because Noonan's representation was soineffective.40
Even more troubling, Noonan did not know how to subpoenawitnesses in federal court.41 Although he wanted to call thirteen witnesses, Noonan was able toproperly subpoena only one witness, Sunder Ganglani.42Ganglani, however, never testified at trial. On March 1, 2001,Mr. Ganglani filed a motion to quash the subpoena on grounds thathe had no relevant personal knowledge of the facts atissue.43 Ganglani, however, had informed the Food andDrug Administration that Theodore's former company, PBC, wasengaged in wrongdoing.44 Ganglani also helped the FDAobtain incriminating telephone conversations with employees atPBC.45
Because Ganglani was scheduled to leave the country, thedistrict court held an impromptu motion hearing on March 2,2001.46 Ganglani and his attorney were present for thehearing but Noonan did not attend.47 Noonan testifiedthat he spoke with the court clerk at 10:00 a.m. and was informedthat nothing was scheduled.48 Noonan, thereafter, went tothe library all day and did not receive any messages left for himby the court concerning the motion hearing.49 At thehearing, Judge Lindsay decided that Ganglani had nothing"relevant to say about this case" and allowed the motion to quashthe subpoena "subject to reconsideration."50 Even thoughNoonan believed that Ganglani had relevant things to say, henever filed a motion for reconsideration.51
In addition to his lack of preparation and inexperience infederal court, Noonan's difficulties were compounded by failinghealth and alcohol consumption. Noonan testified that he suffersfrom shortness of breath due to emphysema and partial lungremoval.52 He has also undergone bypasssurgery.53 During the trial, Noonan often received lessthan two hours of sleep per night.54 To help him fallasleep, Noonan would consume "three to four hard liquor beveragesper night."55 Noonan, a former alcoholic, now believesthat his alcohol consumption dulled his senses and was "anotherimpediment to [his] ability to effectively represent Mr. Theodorein this matter."56 Before and during the trial, Noonannever informed Judge Lindsay of his medical conditions, historyof alcoholism, or present alcohol consumption.57
Noonan never filed for compensation because he believed hisminimal services were entirely worthless.58 Even thegovernment concedes that "the overall impression left by hisdefense was abysmal."59 Finally, Judge Lindsay testifiedthat Noonan's representation failed to subject the prosecution's case to meaningful adversarialtesting.60
The Sixth Amendment guarantees that "the accused shall enjoythe right to . . . have the Assistance of Counsel for hisdefence." Under Strickland v. Washington, to prevail on anineffective assistance of counsel claim, "a defendant mustestablish that his counsel's performance  fell below anobjective standard of reasonableness and  `that there was areasonable probability that, but for counsel's unprofessionalerrors, the results of the proceeding would have beendifferent.'"61 Under the first part of this analysis, "areviewing court must not lean too heavily on hindsight: alawyer's acts and omissions must be judged on the basis of whathe knew, or should have known, at the time his tactical choiceswere made and implemented."62 This court must considerthe totality of circumstances, and "must indulge a strongpresumption that counsel's conduct falls within a wide range ofreasonable professional assistance."63 In determiningwhether Noonan's representation satisfied an "objective standardof reasonableness," this court's scrutiny of counsel'sperformance is "highly deferential."64
This court believes that Noonan's representation of Theodoreclearly fell below an objective standard of reasonableness,easily satisfying the first part of the Strickland analysis. By his own admission, Noonan was not competent to representTheodore.65 Noonan did not adequately prepare for trialbecause he believed that Attorney Gordon White would try thecase. Noonan, a retired attorney in failing health, found himselfin federal court for the first time, mostly unprepared, andwithout a focused defense strategy. He failed to call a singlewitness, he failed to oppose a motion to quash his one properlyexecuted subpoena, and he completely failed to utilize theassistance of standby counsel.
None of Noonan's shortcomings can properly be described as"tactical decisions" to which this court must defer. Noonan'sfailures were caused by inexperience, lack of preparation,failing health, and possibly, alcohol consumption. Because "[f]ewrights are more fundamental than that of an accused to presentwitnesses in his own defense,"66 Noonan's inability tosubpoena witnesses raises grave concerns. Noonan's clumsy,redundant, and open-ended questioning rendered the minimaleffectiveness of his cross-examinations an illusion of thetranscript. From his self-deprecating opening statement to hisobjection-ridden closing, Noonan fell far below an objectivestandard of professional competence.
Under the "prejudice prong" of the Strickland analysis, adefendant must prove that his "attorney's parlous conduct mayhave altered the outcome of the case."67 Such prejudicemay be presumed, however, in three narrowly circumscribedsituations: (1) if the accused is completely denied the presenceof counsel at a critical stage of the proceedings; (2) if counselentirely fails to subject the prosecutor's case to meaningful adversarial testing;or (3) if circumstances arise in which a competent lawyer wouldlikely not be able to render effective assistance.68
This court believes that prejudice may be presumed in thishighly extraordinary case because the prosecution's case has"never been subjected to the crucible of meaningful adversarialtesting."69 In order to presume prejudice, this courtunderstands that "the attorney's failure to test the prosecutor'scase must be complete."70 The evidentiary hearingrevealed that the break-down of the adversarial process was notlimited to "specific points" or discrete aspects of Noonan'srepresentation.71 Rather, the lack of meaningfuladversarial testing began with inadequate preparation andcontinued throughout every stage of Theodore's trial.
"The very premise of our adversary system of criminal justiceis that partisan advocacy on both sides of a case will bestpromote the ultimate objective that the guilty be convicted andthe innocent go free."72 When a criminal trial, however,"loses its character as a confrontation between adversaries" theSixth Amendment is violated.73 Finding a break-down ofthe adversarial process is, of course, "reserved only for themost extreme cases."74 And while this court recognizes that a "criminal trial is not a game in which theparticipants are expected to enter the ring with a near match inskills," the Sixth Amendment will not tolerate "a sacrifice ofunarmed prisoners to gladiators."75
Judge Lindsay testified that Noonan's representation ofTheodore, overall, failed to subject the government's case tomeaningful adversarial testing.76 The evidence stronglysupports this conclusion. With almost no trial preparation, thisretired lawyer, in failing health, with no federal courtexperience, attempted to act as the government's adversary in afifteen day trial. Noonan's blunders were severe, persistent, andso distracting that some members of the jury felt that Theodorewould do better to enter a plea agreement than to proceed withNoonan as his advocate. Excusing some members of the jury couldnot remedy the underlying break-down of the adversarial process.This court, therefore, presumes that Theodore was prejudiced bythe ineffectiveness of his counsel.
For the foregoing reasons, Defendant's motion for a new trialis ALLOWED.
AN ORDER WILL ISSUE.
1. United States v. Theodore, 354 F.3d 1, 3 (1st Cir.2003).
2. Id. at 5.
3. Id. at 4. Unless otherwise noted, the background facts inthis section are drawn from the opinion of the Court of Appeals.
4. Tr. June 28, 2004 ("Tr. 1") at 22:9-18.
5. Theodore, 354 F.3d at 4.
8. Id. at 5.
9. Id. at 9.
11. Tr. 1 at 37:19-38:10, 40:2-8.
12. Id. at 28:1-17.
13. Id. at 28:1-29:9.
14. Id. at 27:24-29:9, 40:14-20.
15. Id. at 29:4-9, 40:14-20.
16. Id. at 39:1-12.
17. Id. at 46:25-47:23.
18. Id. at 50:13-21.
19. Id. at 47:6-19, 146:16-147:17.
20. United States v. Theodore, 354 F.3d 1, 6 (1st Cir.2003).
21. Tr. 1 at 47:6-19; See Def.'s Ex. D ¶ 8.
22. Tr. 1 at 107:25-110:8.
23. Id. at 53:2-16.
24. Id. at 53:2-54:5.
25. Id. at 57:13-58:1.
26. Id. at 58:2-3.
27. Id. at 74:18-75:6.
28. Id. at 76:22-77:2 (witness Mr. Hayhurst), 78:20-79:18(witness Dr. Phillips), 86:20-88:18 (witness Ms. MacNeil),94:17-21 (witness Attorney Coulter).
29. Id. at 119:7-120:1, 120:9-14.
30. Tr. June 29, 2004 ("Tr. 2") at 76:7-77:9.
31. Tr. 1 at 76:15-77:9 (Mr. Hayhurst), 88:21-22 (Ms.MacNeil), 94:22-24 (Attorney Coulter).
32. Id. at 95:10-12.
33. Id. at 88:23-89:9.
34. Tr. 2 at 73:3-7.
35. Tr. 1 at 90:18-91:18.
36. Id. at 91:19-92:5, 93:17-21.
37. Id. at 92:6-11.
38. United States v. Theodore, 354 F.3d 1, 5 (1st Cir.2003).
39. Tr. 1 at 119:4-6.
40. Id. at 96:18-97:12, 99:11-13. Judge Lindsay promptlyaddressed the jurors' concerns and dismissed two jurors who couldnot remain impartial. Theodore, 354 F.3d at 6-7.
41. Tr. 1 at 33:21-34:4, 86:20-87:4.
42. Id. at 81:6-16; Tr. 2 at 87:10-13.
43. Tr. 1 at 132:16-20, 134:25-135:10.
44. Tr. 2 at 103:15-21.
45. Id. at 104:8-24.
46. Tr. 1 at 132:16-133:24.
47. Id. at 133:4-8.
48. Tr. 2 at 87:15-17.
49. Id. at 87:15-20.
50. Tr. 1 at 135:4-10; Mot. to Quash [#141].
51. Tr. 2 at 89:4-7.
52. Tr. 1 at 41:3-16.
53. Id. at 41:18.
54. Id. at 42:15-16.
55. Def.'s Ex. E ¶ 10.
56. Id. ¶¶ 11-12.
57. Tr. 1 at 117:8-11.
58. Id. at 58:6-18.
59. United States' Proposed Findings of Fact and Conclusionsof Law at 10.
60. When asked, by this court, if Noonan failed to subject theprosecution's case to meaningful adversarial testing, JudgeLindsay testified, "I think it more often fell short of that thanit met that standard." Tr. 1 at 153:12-13.
61. United States v. Theodore, 354 F.3d 1, 5-6 (1st Cir.2003) (quoting Strickland v. Washington, 466 U.S. 668, 687-94(1984)).
62. Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002).
63. Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993).
64. Strickland, 466 U.S. at 689.
65. Tr. 1 at 46:25-47:5.
66. U.S. v. Scheffer, 523 U.S. 303, 330 n. 17 (1998)(Stevens, J., dissenting) (citing Webb v. Texas, 409 U.S. 95(1972); Washington v. Texas, 388 U.S. 14, 19 (1967); In reOliver, 333 U.S. 257 (1948)).
67. Ouber, 293 F.3d at 25.
68. Id. at 33.
69. Alabama v. Shelton, 535 U.S. 654, 667 (2002) (quotingUnited States v. Cronic, 466 U.S. 648, 656 (1984)) (internalquotation marks omitted).
70. Bell v. Cone, 535 U.S. 685, 686 (2002).
72. United States v. Cronic, 466 U.S. 648, 655 (1984)(quoting Herring v. New York, 422 U.S. 853, 862 (1975))(internal quotation marks omitted).
73. Id. at 656-57.
74. United States v. Theodore, 354 F.3d 1, 7 (1st Cir.2003).
75. Cronic, 466 U.S. at 657 (quoting United States exrel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)).
76. See Tr. 1 at 152:11-153:14.