United States v. Robert Dennis Swinehart
617 F.2d 336
3rd Cir.
1980
Check Treatment

*2 ADAMS, Before ROSENN SLOVI- TER, Judges. Circuit THE OPINION OF COURT PER CURIAM. Swinehart, appellant, Robert by jury

convicted conspiracy to defraud by uttering stolen sav- bonds, uttering ings aiding abetting bonds, and thirteen ninety-four savings account, In his insufficient funds refused forgery.1 appeal, counts of Swine- prejudiced hart alleges that he cer- Swinehart informed cash the cheek. prosecutor during tain remarks made deposit had been made employee that a closing that he had re- argument and City the Park previous night at branch. ceived effective tri- Swinehart to return employee told al. He asks us to the district court order *3 deposit next the had cleared. day to see if grant prejudicial a new because of trial April Upon his return on Swinehart comments or by prosecution, the to remand agents of the was arrested evidentiary hearing for an on the ineffec- agents testified Secret Service. One reject tive assistance of claim. We that the learned of the deposits Service had these contentions and affirm. of the stolen from the bank bonds and other I. FACTUAL BACKGROUND sources, attempted that had on Swinehart Testimony at established the follow- April 19 to cash a check drawn the on ing 21, 1977, January facts: On account, “Shirley he Johnston” and that Savings States Bonds were stolen from the expected day. was following to return the Phoenix, LeRoy home of of Arizo- Johnston arrest, agents At the scene the the of na. April 15, On woman identifying a her- obtained from the Swinehart checkbook self “Shirley of presented Johnston” given “Shirley that the bank had Johnston” bonds, endorsed, these fully to the First the opened April when she account on a Lancaster, Farmers Bank Pennsylvania bearing bank identification card the name and used open them to account. Three Johnston,” “LeRoy compu- and an interest later, days bonds, remaining the thirteen listing tation sheet the stolen Johnston bearing Johnston,” the signature “LeRoy given “Shirley bonds which to were deposited LeRoy into the account. opened Johnston” at the time she the Johnston that he testified had never en- account. bonds, dorsed the and a handwriting expert II. IMPROPER PROSECUTORIAL called by government the testified that the STATEMENTS signatures on the thirteen bonds matched handwriting. Swinehart’s During the closing remarks to jury, that, prosecutor suggested the in his On April attempted Swinehart to cash $3,000.00 opinion, a check, guilty,2 Swinehart and made “Shirley drawn on the account, Johnston” several to the veracity at the Neffsville references of a hand branch of the First writing expert prosecution Farmers Bank. A bank as a witn em- called ployee, telling that there object Swinehart were ess.3 Swinehart’s counsel did to 2. The 1. 18 count. quitted concurrent sentence imprisonment placed would man who who would back has never evidences a And Now, Someone anyway: abetting U.S.C. prosecutor easy Swinehart on five intended to Swinehart [*] sign sign on the thirteen a United Innocent term lives instance, enough who intended to commit met, §§ count. the name of another [*] guilty who the stated: of three was sentenced to three person’s on Phoenix, Arizona, to deceive, sfc persons The trial conspiracy who but a mind, doesn't one state, years probation. Savings years forgery aiding [*] name in guilty knowledge. but will state do not know deception. judge count and to on the [*] guilty person Bond? Who counts and him, suspended attempt the back? person, whom he jury abetting forgery, [*] aiding years That ac- it, a a In the course U.S. (emphasis cash Also, witnesses —and deposit sole Savings Bonds, Innocent sons with innocent I Choate, person attempting signature defendant did that He suggest prosecutor said, purpose situation. Savings checks on * * what was he asked? that isn’t people “Yes.” He is an honest witness. would to added). has * * you stated: it true that Bonds. give a And I I believe that all the depositing ever existed accounts do not which summarizing * to mimic another * stops minds, phony story. suggest Mr. Innocent give * * in which the Choate, two stolen and phony do not do that. were stolen opened to gaps?” * * aspects you people, “Well, testimony, of all stories person’s witness- * * for forged of a only per- U.S. Mr. the the comments, reject plea for a new trial on request nor did he these unless, disregard reading record as a judge jury ground to instruct whole, prejudiced now contends that these he was them.4 Swinehart we conclude that deprived process. him of due prosecutor’s past, remarks comments. In the by the distinguished prose- has between Court cases, reprimanded previous we have regarding cutorial remarks the defendant’s who, opening in the course of or prosecutors credibility that are guilt or a witness’ based argument, veracity for the closing vouch and those that are based on on the evidence express their government witness the record. We have information outside guilt of the defendant.5 regarding views stated that the latter constitute reversible contrary statements are both to deci- Such se, per grounds error but the former are sions of this Court6 and violate the Code of preju- if the defendant was new trial Pennsyl- Responsibility Professional diced the remarks.9 vania It is with consider- Supreme Court.7 *4 concern, therefore, again able that we must improper prosecutorial in statements express disapproval improper prose- our regard- to comments this case were limited veracity cutorial comments about a witness’ ing Accordingly, adduced at trial. evidence guilt.8 and the defendant’s per do not reversible error they constitute se, whether and we must determine Swine- Despite disapprobation, our we are con- by them. The record prejudiced hart was by previous strained decisions of this Court testified, honestly ity litigant, guilt es or that testified one of a civil or as to the —was proper of the most sub- honest innocence of an accused is not a ject argument to the trier of fact. (Purdon’s Pennsylvania Rules of Court 183 suggest expert in that this case who 1979). 7-106(C) Disciplinary provides: concerning questioned Rule testified docu- ments, professional capacity totally worthy appearing testimony In in his be- that his tribunal, lawyer belief. shall not: fore a a (emphasis added). (4) opinion just- personal Assert his attorney’s object 4. The failure to was one cause, credibility ness of as to the of a wit- ground for Swinehart’s motion for new trial. ness, culpability litigant, as to the of a civil or verdict, See IIIB infra. After the Swine- accused; guilt of an as to the or innocence attorney hart dismissed his trial and obtained may argue, analysis but he evidence, on his prepared new counsel who the motion for new any position or conclusion with trial. respect to the matters stated herein. g., Gallagher, 5. E. United States v. 576 F.2d Id. at 189. These identical to standards are (3d 1978); promulgated 1041-43 Cir. United States v. those Asso- the American Bar Benson, (3d 1973); 981-82 Cir. Responsibility ciation. Code Professional LeFevre, (3d United States v. F.2d 477 Cir. of Judicial and 37C Code Conduct 34C 1973); Schartner, United States v. (1976). (3d 477-78 Cir. Gallagher, States v. 576 F.2d 8. United LeFevre, In United States v. 483 F.2d Gallagher, we ex- 1973), adopted we Standard prohibition plained the reasons for the of this 5.8(b) of the American Bar Association’s Prose- prosecutorial kind of comment: governing practice cution Standards as the law they imply personal Not do a belief in in the district courts of this Circuit. That stan- guilt, they directly but also [the defendant’s] provides: dard rely jury invite the on the Government unprofessional prosecu- It is conduct for the attorney’s experience prosecuting in crimi- express personal opinion tor to his belief or generally attor- nals and on the Government falsity any testimony as to the truth or ney’s ‘sincerity’. prosecutor’s Neither the guilt evidence of the of the defendant. integrity general experience nor his moral Relating Standards to The Prosecution Func- anything has to do with the evidence tion and The Defense Function 39 case. provides part: Schartner, 7. Ethical Canon 7-24 (quoting in relevant at 1041 Id. 1970)). expression by lawyer personal a 426 F.2d his opinion justness cause, as to the of a as to witness, Id. at 1041-43. credibility culpabil- of a as to the counsel, right to assistance of but also persuades us at trial10 that the developed even would have convicted Swinehart jury assistance be effec- guarantees such improper exposed to the it not been of ef- defined the standard tive. We have comments. Swinehart prosecutorial the custom- “the exercise of fectiveness as to withdraw funds attempting apprehended normally knowledge which ary skill and pro- comprised account from a bank Moore v. place.” at the time and prevails items link- bonds. Several ceeds of stolen States, bonds were obtained to the stolen ing him Thus, 1970) (in banc). to succeed on time of his arrest. from him at the directly claim, a defendant whose testimo- And, handwriting expert, a per- that his counsel’s must demonstrate contradicted, declared that the ny was the Moore standard formance fell below matched on thirteen of the bonds signature to the client.11 handwriting. prejudice and resulted in Moreover, judge, charge any improper infer- dispel jury, helped Appeal on Direct Cognizability A. from the jurors might have drawn ences the questions, these addressing Before terms, In clear prosecutor’s remarks. the issue of we must determine whether pre-

judge instructed may be raised on direct effective assistance prosecu- that the sumed to be innocent and cognizable only whether it is appeal, or guilt beyond proving tion had the burden of doubt; “[sjtatements a reasonable under 28 U.S.C. 2255 proceeding collateral *5 counsel are not evidence in arguments of (1976). In United v. Rad-O-Lite States case”; jurors the are the “sole the Inc.,12 Philadelphia, an from a crimi witnesses”; judges credibility of the of all conviction, to hear a claim nal we declined jurors give expert’s should the and that the of ineffective assistance because the conten testimony weight [they] may “such as think tion was not raised in the district court.13 judge it The district also noted deserves.” questions involve re frequently Such claims specifically “throughout closing the ar- garding conduct that occurred outside the guments you of counsel have heard refer- therefore purview court and of the district witnesses,” credibility ence made to the a factual devel only can be resolved after jurors “[y]ou and reiterated that as opment hearing. Because appropriate at an judges credibility are the sole change in most cases a defendant does not weight testimony witnesses and the their entered, judgment deserves.” final counsel before rarely claims are instructions, light In of these careful therefore, and, can be raised at by prose- well as the evidence adduced the the cution, brought to the attention of district we conclude that Swinehart was not the prejudiced by prosecutor’s remarks. review under only court on collateral When, case, present as in the how 2255. III. INEFFECTIVE ASSISTANCE OF § COUNSEL ever, assistance question of ineffective court,14 in the trial there would is raised only The Sixth Amendment avoiding adjudica- no basis for appear to be provides proceedings in criminal defendants denied, 917, part supra. 1977), 10. See U.S. cert. (1978); 56 L.Ed.2d 757 98 S.Ct. Fitzharris, Cooper Id. at 737. See v. Garcia, 684 n.l States v. 1978) (en banc), F.2d 1325 cert. de nied, 99 S.Ct. 59 L.Ed.2d here, a claim of ineffective 14. As Swinehart did for a new be raised in a motion 12. 612 F.2d 740 the district trial. Fed.R.Crim.P. 33 authorizes Id., at 743-744. See United States v. required grant “if court to such a motion Schreiber, denied, Cir.), 599 F.2d 534 cert. justice.” interest of — —, 62 L.Ed.2d 100 S.Ct. U.S. Bazzano, (1979), law, predicate Ac- a sufficient for the appeal.15 tion of the claim on direct ineffec- claim, the merits of cordingly, accordingly we turn to Swine- tive assistance there that he was denied effective hart’s claim evidentiary hearing was no need for an on assistance of counsel. question.

B. Merits Object Improper Prosecu- 2. Failure to Suppression 1. Failure to File Motion torial Remarks support of the inef- argument first theory second is that he Swinehart’s fective assistance claim is that his counsel by was denied effective assistance his coun failing suppress was remiss in to move to object improper prose sel’s failure to the materials taken from Swinehart at the cutorial remarks that were discussed in time of his arrest. prevail To II above.18 under the Moore standard, prove In United v. Hines16 we a defendant must that he held that assistance does not prejudiced by incompetenc his counsel’s “[effective filed, demand that motion every possible Because we have y.19 already concluded having but those a solid foundation.” prejudiced by was not suppress goods A motion to comments,20 seized at prosecutor’s any dereliction the time of arrest would have failing object, defense counsel in al lacked foundation. Warrantless searches of unfortunate, though legally would be harm a suspect’s person during conducted less. arrest, course of a lawful are constitutiona

l.17 only possible ground for a sup Drugs 3. Use of Alcohol and Counsel pression motion then be that would motion for a new trial of his probable arrest was made without cause. assistance, grounds of ineffective Swine- agent At the arresting testified that hart also filed an affidavit in which he investigation had determined that alleged attorney was habitually that his bonds which John comprised “Shirley “consistently liquor late to trial and drank stolen, ston” account had been and that he *6 drugs” during and used the trial. The dis- was told the bank that Swinehart hearing allega- trict court held a on these attempted on April 19 to cash a check appeared tions at which as the Swinehart drawn depos on the account and knew of a sole In a footnote to his order witness. it, bonds, comprised also of stolen that was motion, denying judge the discred- April made on 18. This information physi- ited Swinehart’s view of his counsel’s sufficient to probable establish cause to ar cal condition: Thus, existing rest under Swinehart. law, During the neither throughout Fourth Amendment case there was no suppress personnel foundation to a motion to the court nor its observed de- the beverages items taken from His trial fendant’s counsel use alcoholic Swinehart. counsel’s failure suppress drugs appear to move to the or nor did said counsel not, evidence any therefore is as a matter of time influence there- to be under the Accord, DeCoster, California, 159 U.S. United States v. 17. See Chimel v. 395 U.S. 326, 333-34, App.D.C. 2034, 2040, (1969) (“[I]t 89 S.Ct. 23 L.Ed.2d 685 (D.C.Cir. 1973) (“when entirely arresting a claim of ineffective is reasonable for the officer contemplated, any is it [of to search for and seize evidence on the counsel] presented person prevent should first be the district court in to arrestee’s in order to its trial”); destruction.”) a motion for a new United States v. concealment or Bender, 1972) (per 457 F.2d 801 cu Katz, riam); 425 F.2d 928 supra. 18. See notes & 3 19. See at note 12. text 1972), 16. 470 F.2d cert. de nied, 93 S.Ct. 35 L.Ed.2d supra. 20. See II adjudicating Thus, slurring actually appeal. of the by way impedi- any of either motion, impairment saving appeal ment of of at the speech, stage by resources Tardiness of postponing might odor or otherwise. defend- well be resolution illuso- was, instance, Moreover, ant’s in each ry. suggestion counsel satis- that we defer explained to the Court no factorily and at adjudicating until a 2255 motion is filed § any delay cases, time was the advised that jury might, duplication in some result in due in the trial was to the tardiness of judicial If this appeal effort. Court on defendant’s counsel. denies an assistance of ineffective counsel claim, appellant subsequently and the urges Judge Sloviter us not to entertain brings premised 2255 motion that § appeal question because, on this in her solely allegations on the same that were view, hearing a full there was not and fair adjudicated rejected on appeal, then question on the alleged of defense counsel’s the district court would able to dismiss inebriation, and therefore it would be bet- on the decision § motion based ter to issue for the consider the first time contrast, previous panel.22 if on di- on a 2255 motion. Swinehart raised this § rect we reviewed the ineffective as- question in the district court as one of the claim, adjudicate sistance but declined to it grounds for motion for a new trial. It hearing because there a full was not the district judge, resolved court, trial expended we would have our appealed the court’s decision on giving resources without 2255 district circumstances, this very point. these Under guidance, court thereby requiring the latter and because completely we cannot decide full, to inquiry conduct a de novo into the this appeal resolving without each basis for identical, Thus, previously litigated claims. claim, the ineffective assistance of counsel we judicial economy, conclude that as well adjudicate we are constrained the inebri- duty as our all issues necessary decide ation question in the form in which it has appeal, require resolution of an us to presented to us. alternative is to resolve, they to the extent that were decid- abjure duty our to decide an issue over ed by the trial and raised court on the which we jurisdiction.21 have present appeal, all Swinehart’s ineffec- It is also not that remitting clear criminal tive claims.23 assistance of counsel appellants, whose ineffective assistance of fully claims were not presented in We thus to the merits turn of this court, aspect forum would claim of ineffective judicial conserve resources. In order to de- assistance of counsel. Inasmuch as the dis cide whether a claim was acting accorded full and trict court was as a finder of fact in fair consideration, matter, we would have to review considering this we will not over *7 and just assess the trial record as we regard do in turn its this decision in unless it is Virginia, Wheat.) (6 (1959) (“[T]he only proper See Cohens judgment may v. that 264, 404, (1821) (Marshall, J.): 5 L.Ed. 257 lead to an C. abstention from decision is that the Constitution has committed the determination cannot, judiciary legislature The may, as the agency government of the issue to of another measure, approaches avoid a because it courts.”). than the pass confines of the constitution. We cannot by, it because it is doubtful. With whatever Palumbo, 22. See United States v. 608 F.2d doubts, difficulties, with whatever a case (3d 1979) (per curiam) (discussed 532-33 Cir. may attended, it, be we must decide if it be ). in note 26 infra brought right before us. We have no more to jurisdiction decline the exercise of which is custody jurisdictional pre- Inasmuch as is a given, usurp given. than to that which is not motion, requisite suggestion to a 2255 may occur, . Questions which we delayed that resolution of the issue be a avoid; until gladly would but we cannot avoid might, frequent is, § 2255 motion is filed on occa- them. All we can do to exercise our best sions, require begin criminal judgment, defendants to conscientiously perform and to serving they duty. their sentences before could have our their ineffective of Wechsler, counsel claims Principles See also Toward Neutral appeals. Law, resolved in of the court of Constitutional 73 9 Harv.L.Rev. 1979) lumbo, 532-33 Cir. 608 F.2d on the record Based erroneous.24 clearly that defend- will assure us, appear curiam). that This it would (per is available to that treated, will avoid present and opportunity fairly had ant has Swinehart support in nonexpert, duplication testimony, expert unnecessary and undesirable counsel was that his trial allegation court. in this effort declined apparently inebriated. Swinehart no basis case furnishes record in this one wit- only called instead to do has had appellant that for a conclusion judge, The district who ness—himself.25 that of his claim and fair consideration full observe the behavior occasion to ample in drugs and alcohol used his trial counsel during the course of Swinehart’s and de- preparation his trial the course of contention. rejected majority opinion noted in the fense. As record, say are unable on we Based the hear- transcript of (note 26), there is no respect clearly finding in this that his itself raises ing. opinion Indeed the hold, we do not Accordingly, erroneous. relitigation question of this that possibility time, that the court erred at this least in a section 2255 precluded not be ineffective assistance rejecting Swinehart’s long possibil- as that remains a hearing. As claim.26 considera- not bifurcate our ity, we should to con- reluctance tion of the claim. Our IV. CONCLUSION appeal claims which do sider on direct court will district judgment stems not developed record fully have a affirmed. duty but from abdication our from an stage at which we recognition our SLOVITER, Judge, concurring. Circuit duty. can best fulfill decisions do not agree prior that our I Inc., 612 F.2d Philadelphia, Rad-O-Lite of the issue preclude us from consideration 1979); at 743-744 Cir. of counsel on direct of ineffective assistance (5th Rodriguez, v. 582 F.2d has been raised in the appeal when issue Kazni, curiam); v. 1978) United States (per However, I believe we should trial court. 576 F.2d issue when it is cognizance take of that disposition of this appropriate I think the was accorded clear that defendant’s claim be to decline to consider the case would full and fair consideration of counsel issue inso- equivalence court. There be an be- should far as it relates to the claim tween, hand, the level of considera- on one alcohol, drugs so that counsel used tion the claim in the trial court accorded question no there will be Swinehart cogni- to take which we deem sufficient in a section and, would be free to raise the issue zance of the issue on direct appropri- if he deemed it hand, proceeding the other the level of consideration respects, agree with the ate.1 In all other preclude relitigation which will of that issue proceeding. in a section 2255 U. v. Pa- decision. S. Stassi, curiam) (questions which received full and fair

24. United States v. Delerme, 1978); original trial and on consideration at criminal appeal may relitigated not be in a 2255 direct motion, proceeding). of such a transcript hearing is 25. No of this included opportunity might well have the *8 the record. present evidence. additional may 26. Our resolution of this contention not may foreclose 1. of this claim Our consideration raising necessarily foreclose Swinehart from hearing, since from a section 2255 his claim of in a estab- he not be able to meet the criteria transcript is no motion. Because there relitigation preclude lished this court which id., nothing hearing, in the record see there original of a claim considered at the precluded to indicate that Swinehart would be “newly direct unless there has been relitigating question in a 2255 mo- from reasonably discovered evidence that could tion under the United States v. Palum- rule of presented original bo, 1979) (per have PLANTAMURA, Toni and others situated, Appellants,

similarly

Mayor CIPOLLA; Joseph Borough of Par Kosco,

amus Members: Council Louis Masel, Sklar, Boici,

Joan Allen Robert Brock, DiGiulio,

Vincent Enrico Theo D’Uva, Rogut,

dore Robert Blanche

Patchett, Sodaro, Charles each in their capacity past present

official mem Borough

bers Paramus Coun Nicholas,

cil; Police, John P. Chief of Department; Bergen

Paramus Police

County Association; Police Chiefs Local

186, Patrolmen’s Benevolent Associa

tion; Committee; Paramus Police Bor

ough Assistant; Administrative New

Jersey State Patrolmen’s Benevolent As

sociation, Department. Paramus Police

No. 79-1783. Appeals, States Court of

Third Circuit.

Submitted Jan.

Decided March Stark,

Isabel Hackensack, J., Brawer N. brief; Stark, Hackensack, Abraham & J., appellants. N.

Joseph Maria, Paramus, J., DiS. N. appellees, Mayor Cipolla, and Borough Paramus, Mayor & Council the Bor- Paramus, ough of et al. law,

change applicable incompetent prior statutory constitutional claims representation counsel, Palumbo, or other circum- 608 F.2d at 533 indicating (footnotes omitted). stances that an accused did not re- *9 ceive full and fair consideration of his federal