United States v. Robert E. Tucker

America, UNITED STATES of

Plaintiff-Appellee, TUCKER, Robert E. Defendant-Appellant.

No. 79-1657. Appeals, United States Court Circuit. Ninth Oct. Argued and Submitted Sept. Decided 30, 1983. Sept. As Corrected

ALARCON, Judge: Circuit

Following appellant Robert Tucker was convicted of conspiracy de- fraud the of making United States and false income tax returns in connection with a scheme to overcharge Department for Navy items manufactured Tuck- er’s employer, Engineering. Sells Tucker incompetently repre- contends he was counsel, sented trial his retained a result he was denied a fair trial. agree. We sentencing, After Tucker moved for a new trial on the ground his retained counsel, Karl had Keating, ineffectively represented him at trial. The district court appointed new counsel for Tucker. An evi- dentiary hearing was held regarding the competency Keating’s representation. At hearing, Keating was examined ex- about tensively preparation his trial trial strategy.1 Expert testimony was also presented regarding accepta- the minimum preparation required ble trial in a case of this magnitude.

Tucker’s present requested counsel leave investigation conduct an to determine prejudiced by whether Tucker had been The trial incompetence. court re- fused request.2 his The trial court denied trial, finding Tucker’s motion for a new Reese, Warren P. Asst. that even if Atty., Keating’s representation U.S. had Nunez, argued, incompetent, Peter K. Atty., Warren Tucker had not been de- Reese, brief, a fair Atty., P. Asst. U.S. on the nied trial. San Cal., Diego, for plaintiff-appellee. court, This in an unpublished disposition Cal., Barnett, Diego, Richard de- San remanded this matter to the trial court for fendant-appellant. specific findings as to whether Tucker’s and, so, incompetent,

(cid:127)counsel had been if whether Tucker prejudiced by had been remand, such ineffectiveness. On the trial re- findings court made extensive fact ELY, SNEED, ALARCON, Before garding Keating’s qualifications, his trial Judges. Circuit preparation, performance. and his trial specifically it, simply retrying 1. The district court found that of I see that would [A]s 2,539 pages testimony that, heck, going transcribed if I’m the case and to do I case-in-chief, 2,389 government’s pages said, were may simply just as well do what we pages devoted direct examination while 150 simply request circuit court to remand by Keating. were devoted to cross examination point the case.... Because at in time some Law, Findings of Fact and Conclusions of Part thing.... there has to be a conclusion III, Finding p. (hereinafter Findings). No. Hearing Record of Post Trial 355-6 [herein- after RH] 2. The court stated: that, trial, impeach Keating while 7. At failed court concluded The district pri- incompetently, witnesses performed any government’s Keating had his at- prejudiced by had not been inconsistent statements. Tucker or and omissions. errors torney’s object to the admis- Keating failed OF COUNSEL INCOMPETENCE documenta- sion of evidence, object single to a failed ry conducted Keating alleges Tucker prosecutors, by government manner asked totally incompetent question in a his defense single make a motion. incompetence and failed to and that such Keating’s rep- claims that Tucker failed to Keating incompetently defense. particular, in at least incompetent resentation given of statements suppression seek respects:3 eight to the Tucker IRS. retained, Keating the time he was 1. At court’s and the trial allegations, Tucker’s a fed- to handle completely unqualified amply are findings incompetence implied steps to and took no eral criminal us. More- by the record before supported trial.4 shortcomings prior to remedy his over, was suffi- Keating’s incompetence Tucker’s to have adequately ciently to consult serious Keating

2. failed to to trial. He failed trial. Under the standards prior right with Tucker to a fair case to discovery in the the de- any concerning forward in this circuit adopted relevant infor- did not obtain competent representation Tucker and he fendant’s which would possession amendment, mation in Tucker’s Tucker’s con- under the sixth of the de- preparation have assisted viction must be reversed.

fense. Circuit, The Ninth in the land single a did not interview Keating 3. Fitzharris, Cooper case of mark although to trial prior witness government cert, denied, (9th Cir.1978) (en banc), them him that some of Tucker informed 59 L.Ed.2d 99 S.Ct. testimony. proposed could corroborate his compe minimum level of (1979), set out the any other Keating 4. failed to conduct the sixth attorney by of an required tence investigation in the case. pre-trial form of v. Fitzhar We held amendment. Tucker ade- keep failed to Keating 5. a requires that ris that the Constitution pretrial preparation. of his quately apprised “reasonably competent receive defendant at 1328. representation”. Id. and effective to conduct ade- Keating 6. failed accused must be representation of an documen- review of the quate competence generally range within the statements including evidence critical tary cases. attorneys in criminal demanded of by pro- given prosecutors and affidavits declined Cooper, 1329. In this court Id. at witnesses. spective representa- Appellant Keating’s torneys good standing claims area in who respects in a in, tion was deficient number of other perform, specialize but similar do as well. Because we find that incom- criminal federal cases. requires petence in the areas enumerated rever- Finding No. 3 conviction, for, sal of Tucker’s we need not address qualified neither Retained trial counsel appellant’s other contentions. necessary steps qualify nor did he take the indigent appointment for criminal cases in specifically The district court found as of the the United States District Court trial, Keating (a) date of Tucker’s had never Southern District of California. any case; (b) handled federal had never han- Finding No. 4 any matter; felony (c) dled state had never Retained trial counsel failed to associate or trial; jury (d) tried experience a his sole lawyers professionally consult with other pleading criminal law consisted of his clients possessed requisite who he believed guilty fact, driving in two drunk cases. it is learning regarding preparation or skill questionable Keating whether had ever tried a for, of, and trial this case. contested case. See RH: 268-9. The court I, Findings, Findings pp. Part 3-4. 1— following findings: also made the Finding No. 2 possess Retained trial counsel did not

learning ordinarily possessed by and skill at- adopt particularized checklist of mini- Keating’s Preparation Trial which counsel must meet in mum standards Defense counsel should discerned in a representing pro- a defendant criminal from both the indictment govern- and the that it would be unwise “to ceeding, noting ment documents made available to him that the jury’s guilt determination as to Tucker’s requirements to a restrict the constitutional or innocence would depend large part on applicable list of elements to all of essential testimony credibility govern- factual variety settings the infinite ment’s witnesses. At least two wit- key arise.” Id. at 1330. We also made clear government nesses for the agreed had guarantee the Constitution does not fraud, implicate Tucker directly representation that is infallible. For a had constructed substan- sixth amendment violation to be found: tial circumstantial case to corroborate its defense counsel’serrors or omissions must testimony. skill, reflect a failure to exercise the proof insanity, only Short Tucker’s or judgment, diligence reasonably of a plausible theory ap- of defense was readily competent attorney— criminal defense He parent. had to convince the they reasonably compe- must be errors a he was corporate an outsider to the hier- archy of unaware Engineering, Sells attorney acting tent as a diligent consci- others were perpetrating. fraud To raise made, entious advocate would not have doubt, reasonable it must have been proved for that is the constitutional standard. that there were innocent expla- alternative Id. at 1330.5 nations for the circumstantial evidence The District appears Court to have con- presented by which impli- Keating’s representation Therefore, cluded that him cated in the fraud. it was crucial for Tucker both undermine the Tucker incompetent. was The district court credibility government of the chief witness- found as follows: es and to establish the of his plausibility Retained trial counsel terms of his own There were a testimony. number professional basic experience prior to the ways this defense could have been devel- commencement of this trial unquali- was oped upon based information available to represent fied to the defendant Robert E. defense counsel before trial. The credibili- Tucker. He steps prop- failed to take ty principal prosecution of the witnesses erly familiarize himself with federal trial implicate who were to Tucker in the fraud procedure, he inexperienced was as a trial subject to question. They par- was had all lawyer and his lack of skill learning ticipated and in the fraud to varying degrees. prior Each given had statements under oath contributed to preparedness his or lack questions which raised as to his substantial at thereof time of trial.6 credibility plea and one had struck a bar- ample There is support the record before gain prosecutor exchange with the for his us for the court’s conclusion. Because the Moreover, testimony.7 a number of the nature and extent of Keating’s errors and other witnesses called omissions has a substantial bearing on the given prosecutors had also statements to question of whether Tucker was supportive govern- which were less incompetence, we Keating’s review testimony they gave ment’s case than the at most shortcomings serious in some detail. These prior very trial.8 statements at the presentation scope 5. The standard is the same for both retained to the court of the and value appointed Sullivan, Cuyler and cooperation” counsel. See v. of Mr. Teerlink’s the time of 335, 344-45, 1708, 1716, 446 U.S. sentencing. (1980). L.Ed.2d 333 example, Spurr 8. For at trial Ed had testified Findings, 3, pp. Conclusion of Law No. 14-15. govern- him that Tucker had ordered to use See also infra note 23. pur- ment and work order numbers on contract chase orders for materials unrelated to the exchange testimony, for Teerlink’s dispenser, claiming as- agreed chaff that Tucker had to make “a full and fair statutes, about the reli- questions serious tions of two different including least raised recollections as to expert of the witnesses’ 7206 which an ability witness de- U.S.C. § eight years be- which had occurred piece events “a complex legislation scribed as fore trial. a detailed requires analysis factually, additionally, requires and the aid of some obvious Tucker was most Finally, We type expert....”10 believe that it witnesses of leads as to corroborative source competent should have been obvious to a Indeed, gave Tucker his and information. that the assistance of an accountant lawyer who could the names of witnesses attorney to trace the distribution necessary would be testimony, or at least either corroborate alleged illegally of the funds infer- inculpatory counter or minimize the spent.11 the cir- which could be drawn from ences presented by the cumstantial evidence investigation prepara Pretrial and were interviewed by None government. representation are the to effective keys tion Furthermore, trial what prior counsel.9 Estelle, of counsel. Rummell 590 F.2d Tucker communication there was between Cir.1979). Courts have re During the Keating by telephone. importance stressed the peatedly ade before Tucker was St. period entire attorney consultation between quate while, Keating, along potential Louis client, interviewing important wit evi- documentary defense witnesses and nesses, adequate investigation poten dence, was in California. See, e.g., tial defenses. Goodwin Balk- that the actual task of com- recognize We com, (11th Cir.1982); 804-05 684 F.2d fashioning a defense to a case of petently Porterfield, United States one. The complexity substantial 124, (10th Cir.1980); Wood v. Zahrad it intended government had indicated niek, (4th Cir.1978). Mr. witnesses in its approximately to call none of these Keating performed essential introduce what it de- case in chief and to competently. tasks documentary “voluminous” evi- scribed as material pretrial discovery dence. The CLIENT CONSULTATION review in- made available for consultation between at Adequate 13,000 pages, encompassing at least volved element of and client is essential torney 3,800 separate documents. approximately a criminal de representation of competent Among pre- the documents included 224, Peyton, fendant. Coles 3,000 trial material were over discovery denied, (4th Cir.1968), cert. 393 U.S. 225-26 testimony by prospective pages of sworn (1968); 21 L.Ed.2d 89 S.Ct. witnesses, obviously which had to be studied Balkcom, Thus, also Adams required the time for in- carefully. Cir.1982); v. Porter- United States reviewing perti- and

terviewing witnesses Moreover, field, 124. While the amount of enormous. 624 F.2d at nent documents was required depend will on the indictment involved six counts for viola- consultation hearing purchases compa- expert post-trial on com- him that the for other witness at sured Mitchell, petence Mr. a certified nies of accounting and Sells were loans and of counsel. Witte prob- department prosecuted specialist, would handle the had criminal criminal law cases, IRS, “many” including to the how- lem. In an earlier statement tax fraud income ever, Spurr “guessed” Attorneys during that Tucker had cases, had for the U.S. Office government practice, numbers for private directed him to use Mitchell had In his 1962-68. dispenser. He materials unrelated to the chaff in federal court numerous fraud cases defended nothing wrong was also asserted that there fraud defenses. has lectured in the area of and practice using numbers be- with the those “accounting of all that stuff.” cause takes care involving a case Mitchell testified that public requires aid of a certified § 9. See infra note 19. analyze the tax returns in order to accountant question, in the books of and to trace entries by 10. RH: 230. Section 7206 was so described corporation question. RH: 250-58. A. who was called as an Mr. John Mitchell case, Keating the consultation should had no of his provide part: in relevant trial, helpful just at I know if but don’t we Interviewing 4-3.2 the client swing § can cost. the practicable lawyer as soon as the should seek written, Keating time was had At the this letter to all relevant determine facts known to the $2300 over trust Tucker’s client account. doing, lawyer accused. In so the should Keating simply testified that he was reluctant probe legally for all relevant information $1,000 cost, however, pay to the because he felt seeking without to influence the direction of being payments and Tucker was too slow his responses. the client’s money. up him more he wanted to come RH: 55-58. 13. RH: 59-63. 14. RH: 56-63. This material was available for prosecutor specifically on 15. The commented shortly photocopying after the indictment was Keating’s opening con- the fact that statement 1978, 14, In returned. a letter dated Nov. Keat- cerning charges significantly differed Cook’s ing advised Tucker as follows: testimony them. RT: from Tucker’s trial about attorney] suggested Reese U.S. [the 3432-35. supply photocopies his office us with of Keating con- developed. did fense was never Keating investigation.16 pretrial any interview, him the given nor Tucker had names attempt to ceded that nor not interview his behalf acting portions on who could corroborate anyone of witnesses request he did witness single government testimony.19 “The most able to interview of Tucker’s no felt “there was he to trial because in the world can not prior competent lawyer to.”17 need in the de- render effective assistance [sic] preparation his lack of fense of his client if Keating could see how It is difficult learn of in his failure to for trial results of assessment make an informed might facts which readily available govern- and weaknesses strengths justiciable a legitimate his client afforded ascertain attempting to case without ment’s Swenson, F.2d McQueen defense.” of testimony what specifically Cir.1974), Goodwin v. 207, (8th quoting gen- would be. witnesses government’s 166, (W.D.Mo. Swenson, 182-3 F.Supp. cross-examine eral, Keating’s ability to any corroboration 1968). The absence effectively was se- witnesses un- repeatedly was testimony for Tucker’s to inter- by his failure riously compromised prosecutor exploited by derscored them, have little idea since he would view closing argument: in his testimony specific as to the areas Keating’s failure to challenged.18 could be witness, only really Bear mind witnesses, the circum- given interview these witness, Mr. Tucker. There was only case, incompe- clearly stances of support presented no corroboration tent. significant There was no his contentions. any government cross-examination identify or Moreover, Keating’s failure There was develop any points. witness be able to might witnesses who interview wit- testimony given any from no direct im- made it testimony Tucker’s corroborate Tucker, and I except sug- ness .. . Mr. indepen- make an for the possible for was there was no the reason gest there was a as to whether judgment dent truth- presented that could evidence guilt. Tucker’s regarding doubt reasonable sup- which would any from witness fully interview adequately Keating did Since Mr. Tucker’s claims in this case. port prospective or any either his own client witnesses, for Tucker’s de- RT: 341120 corroboration lawyer investigation has an right reasonably competent counsel Effective 16. The representa- bearing competent important duty on imposes on defense counsel a correlative adequate investiga- investigate without steps at all tion reasonable to undertake Zahradnick, lawyer position to is not in a make tion the avenues of defense. Wood 980, 1978). principle as cross-ex- (4th use of such mechanisms the best Cir. impeachment adverse wit- amination or to conduct a so fundamental that the failure may at trial.... pretrial investigation in itself nesses reasonable of counsel. assistance amount to ineffective testimony following was elicited at the 19. The Swenson, 217-18 See McQueen hearing: post trial Cir.1974). you often tell to con- Didn’t he [Tucker] Q: firm information or Serle importance with Atha or Cook repeatedly stress cases people Spurr preparation number of interviewing or or witnesses to [sic] Parratt, Engineering? See, e.g., Sells a defense. Ford v. particular might grounds, (8th Cir.), He have mentioned on other A: vacated say Spurr could confirm 70 L.Ed.2d 242 facts and [sic] 102 S.Ct. thing, not be in- “ordinarily reasonably competent in fact I would (1981): at- by Spurr, I read his state- investigation because in-depth formed torney conduct an will RH: 78-79. case, independent it there.... ment and was inter- which includes witnesses, omitted).” (citation viewing of the argu- closing prosecutor said in The also 216; 20. Swenson, Accord, F.2d at McQueen ment: States, (3rd Moore v. United 1970). you prosecution to examine Cir. asks . . The . presented and the de- that’s evidence it, essentially, ignore you, and Commentary A.B.A. fense asks 4.4.1 of the to § 18. See defendant, who the witness to believe Standards: prosecutor’s argument em- eloquently prior their statements —no matter how fa phasized importance of corroboration to vorable to Tucker or how damaging Tucker’s defense. failure in- credibility witness’ such statements might terview of the witnesses who would be. Failure to explore fully or exploit such have corroborated his defense clearly dem- important avenue of defense was clearly diligent onstrates a total absence of and incompetent. advocacy.21 conscientious The government claims that Keat Keating also failed to make a thorough ing’s pretrial investigation was adequate documentary examination of the evidence because “[djogged exploratory investigation in the case. The record reflects that Keat interviewing prior witnesses to trial ing eleven spent approximately hours re would have been of no avail.” govern 13,000 viewing pages discovery unsupported ment’s assertions are uncon case, including pages sworn state vincing. We realize that the duty to inves key government ments and affidavits of tigate prepare a defense is not limit witnesses. Before the documents less: it does not necessarily require that case were Keating, turned over to he spent every conceivable witness be interviewed or four hours them reviewing at the federal that counsel must pursue “every path until courthouse. time During he reviewed it bears fruit or until all conceivable hope given statements govern two of the Florida, withers.” Lovett v. ment’s He spent witnesses. also 7½ hours (5th Cir.1980). Nor does it necessarily with government prosecutors, in order to require that pore counsel over docu every determine whether exhib ment which the government intended to its were admissible. While Keating claimed introduce into evidence. The specific tasks spent many he had additional hours required for adequate preparation of a de reviewing discovered documents after particular fense turn on the facts and cir them, he received the only notes he could cumstances of each case. Adams v. Balk- produce of his examination referred to the 740; corn, Estelle, 688 F.2d at Nelson v. material he had reviewed in the federal (5th Cir.1981). Moreover, courthouse. after conceding that case, however, In this Keating

he failed to billed Tucker fairly accurately for his prepare his client’s defense competently review of the un- government’s documents22 he der the most tolerant standard of evalua- admitted that he had not billed his client tion. He failed such an to obtain legally examination after the date relevant client; these facts from his he pursue materials had been failed to made available to him. record, provided client, From this obvious leads we can only con clude that Keating completely garner did not failed corroborating conduct an ade quate review of most of the evidence for his client’s documentary testimony. He evidence, crucial including statements and failed to interview or attempt to interview given witnesses, affidavits by many key govern key and his review of the trial ment witnesses. He was therefore com exhibits made available pletely unprepared to question those wit inadequate. Under these circumstanc- nesses particularly es, when their trial testimo it can hardly be claimed that his prepa- ny differed in any significant respect from ration of Tucker’s defense was adequate.23 essentially [discovery type uncorroborated. . . . RT: 22. This is the Q: review] you you for, thing your felt should bill client right? 21. As the court stated in v. Swenson: McQueen it, A: Not all of no .... precisely “Yet it is in such circumstances Certainly a fair amount of it— Q: investigation these ... that outside is absolute- A: Sure. ly crucial. In no other fashion can the truth of RH: 27-28. the defendant’s version of events be corrobo- hearing appellant’s 23. At the on motion for a rated.” 498 F.2d at new the district court said: Keating’s TRIAL PERFORMANCE KEATING’S most serious dereliction of duty trial, however, during was the failure to investigate failure to and Keating’s any prior given utilize of the statements by Tucker’s de adequately prepare otherwise earlier, witnesses. As noted predictable consequences fense had at trial. key government each of the witnesses had First, government prosecutor as the noted given govern- statements or affidavits to there was no closing argument, sig in his which raised investigators questions ment any of of the nificant cross-examination credibility as to their or which were more through Secondly, witnesses. supportive theory of Tucker’s of defense rife with days testimony was testimony they gave than the trial. statements, and leading questions, hearsay prior inconsistent None of these statements responses, Keating raised but a conclusory brought jury’s to the attention. The objection questions by asked thus of the single deprived opportunity fairly fully to assess the accuracy of to move to prosecution,24 he failed Tucker, testimony damaging or to deter- by any strike witness.25 any response given honesty gave mine the witnesses who Keating’s incompetence regard Mr. this testimony. government prose that the complete was so cutor himself had to move on three separate most failure in Keating’s egregious regard directly impli- involved Teerlink who responses occasions to strike the of one of in the spite cated Tucker fraud. In his own witnesses.26 discrepancies numerous material between object to the admission Keating did prior Teerlink’s statements and his trial tes- any of the documents introduced timony, Keating attempt did not to impeach surprising which is not prosecution, light prior Teerlink with a inconsistent single adequate of his failure to conduct an review impact Keating’s statement. The failure Moreover, of most of them. Keating failed impeaching use available material to at- object transcript to the admission of the veracity tack Teerlink’s was described of the statement Tucker had under given the district court as follows: assumption it would not be used govern- Richard Teerlink one of the [was] against prosecutor questioned him. The key ment’s witnesses.... Richard Teer- Tucker about the contents of the statement link numerous perjury committed acts of his during During cross-examination. clos- his during the course of 1975 sworn state- ing argument prosecutor directed the impeach ment. Trial counsel did not to the jury’s apparent discrepan- attention single prior Teerlink with a inconsistent cies between the statement and Tucker’s the course during statement cross examination of Richard Teerlink. There testimony.27 Keating general, obligation opposing Mr. There is no doubt but what ... it is the counsel my judgment interpose appropriate objections was in over his head. He to the form prepared questions, neither himself for this case nor and content of as well as to prepared try objectionable responses questions. a lawsuit himself to feder- to those By meager al court. the most of standards— require we this is the standards of our During prosecution’s questioning 25. appointed appointment counsel on our civil Ruby Thompson, bookkeeper a former at Sells list. RH: 473-74. Keating objected prose- Engineering, when the Judge also said: inadvertently cutor read the name “Teerlink” prepared say unequivocally I am not as “Tucker.” 1504-05. on a document RT: Keating’s performance attorney Mr. as an acceptable was below the standard. It was See, 2390, 2399, e.g., RT: 2419. my acceptable below standard. It was below my say, standard and I venture to below the Appellant’s present counsel was unable to acceptable judges all standard of on this adequate regarding make an record court. RH: 475. suppress statement at the failure to Tucker’s hearing on the motion for a new trial because 24. We do not intend this observation to key corroborative witness was not available. suggest any part on the misconduct RH: 334-40. prosecutor questioning of in his witnesses. testimony although which ure to make use of prior of inconsistent state- were areas aware Teerlink had was never ments cross jury during examination was a mat- otherwise, nevertheless were rel- testified strategy, thereby ter of this omission is not case, facts of the evant not to the only judicial scrutiny. immune from Certain de- determination of the jury’s but to the strategies may fense be so ill-chosen that of Teerlink’s and truthfulness credibility render counsel’s overall they may represen- testimony. constitutionally tation defective. As the Beasley

court in v. United noted: States strategy Defense and tactics which law- case, . .. most Given the facts of this ordinary training of and skill in the yers reasonably competent criminal defense compe- criminal law would not consider brought would have at least attorneys deny tent a criminal defendant the effec- some, prior all of Mr. Teerlink’s if not counsel, statements, if some of which tive assistance of some other inconsistent nature, a perjurious protected have been in to action would have better de- may provide so as to them jury’s reasonably attention fendant and was foreseeable properly with the exercise opportunity as such before [citation omitted] finding their fact function.28 Cir.1974). (6th fail- strategic significance Keating’s The Keating’s decision not to utilize any ure Teerlink was not lost on challenge prior prevented these statements closing In his prosecutor. argument, making from an accurate determination as the prosecutor following made the com- The testimony. to the truth of Teerlink’s ments at- concerning absence concluded, jury might have as did the dis- impeach Teerlink’s tempt extremely court, trict that the witness damaging testimony: guilty perjury” of “numerous acts of Mr. Tucker claims Mr. Teerlink is lying satisfied, We are his sworn statements. . .. there were any inconsistencies [IJf court, competent was the district that a (sic) significance to defendants be- lawyer recognized would have the critical testimony tween the of Mr. Teerlink on importance using prior inconsistent originally the stand and the statement he impeachment. for statements case, made before a resolution of the then rec independent Our review of this I that the suggest you defense would Keating’s ord convinces us that lack of you. [emphasis have advised added] preparation strategic for trial and his blun 3387,3389. RT: during ders and omissions trial reflected a government argues skill, judgment, failure to exercise impeach failure to Teerlink or any other competent a crimi diligence reasonably strategy witness was a matter of rea —a attorney. nal defense judgment Keating sonable made Incom- Requirement Counsel’s about the value placing these statements Prejudice the Defense petency before the v. jury. Citing United States In a new definition adopting addition Decoster, (D.C.Cir.1973), 487 F.2d 1197 circuit, court, for this incompetency government tells us that this court should Fitzharris, en su- sitting banc guess Keating second on matters of test pra, judging created twofold if, strategy even with the benefit of a hind of counsel: claim of ineffective assistance sight, his choices unwise in appear light of in a reasonably competent “did counsel act Keating’s experience lack of as a trial attor and, not, manner was his It and effective if ney. is difficult for us attribute such to the defense?” strategic incompetence prejudicial critical blunder to a choice. Cardwell, if fail- 653 F.2d 408 at 409 Even we can assume that Satchell 2, 3, III, Findings, Findings pp. p. Part Nos. No. omitted); (footnotes of Law 8-9 Conclusion Williams, eluded that Cir.1981). Ewing representation also counsel’s (9th Cir.1979). competent. Id. at 1371. this matter counsel’s ineffectiveness conformity opinion loyal write this We overwhelmingly has been demonstrated. teaching of the en banc decision with the Therefore, we cannot avoid the confronting recognize We that we Cooper v. Fitzharris. Chapman issue. not, not, panel could and we would as Prejudicial of Review of Effect Standard court, modify this undertake to an en banc Incompetency of Counsel’s adopt ap- this circuit or the decision of proach Cooper in v. Fitzhar- dissent The fact that we have determined that Williams, at 397. Ewing supra ris. v. See the record demonstrates that Tucker re- incompetent ceived does not representation Cooper in v. Fitzharris ex- The dissent automatically compel end our task or rever- who the view that: pressed “[d]efendants Cooper sal. v. Fitzharris we held that Amendment have been denied their Sixth the claim of ineffective assistance “[where] compe- the reasonably assistance upon specific of counsel rests acts and omis- tent counsel at trial should be entitled to ... relief sions of counsel at will be showing prejudice." relief without a if it that the defend- granted only appears added). (emphasis Id. at prejudiced by ant was counsel’s conduct.” court, adopt A of this refused to majority 586 F.2d at 1331. reversal rule advocated automatic requirement accused concluded that coun- Having the dissent. errors must establish that counsel’s met the representation requirements sel’s omissions the defense “does not amendment, majority in Coo- the sixth only mean that relief is available if the Fitzharris, left per quite properly, v. acquitted defendant would have been but another the determination of alloca- day counsel’s blunders.” Id. at 1333. persuasion tion the burden of Recognizing guilty as well as the “[t]he California, Chapman v. 386 applicability trial”, innocent are entitled to a fair 824, 18, (1967) 87 S.Ct. L.Ed.2d inquiry is whether counsel’s incom primary of counsel is demon- where ineffectiveness defense, petence impaired his not whether Thus, adopted this court neither strated. the defendant would have been convicted rejected Judge analysis nor Hufstedler’s spite of those errors. Indeed, constitutional issue. separate Fitzharris, v. not While the of whether a Cooper question the court in did has been denied a fair trial can nor v. or defendant Chapman cite discuss California partic in the context of a persuasion only the allocation of the burden of be answered case, it is that a defendant is impact incompetence as to the of counsel’s ular clear finding proc- of the fact fair trial where the actions of his integrity on the denied a “precluded her the fact-finder attorney ess.29 or majority apparently Those judging the merits of question independently to remain silent until from chose Campbell, v. the case.” United States day That has arrived. ripe for review. cert, denied, (9th Cir.1980), dim, v. years ago, McNulty Two 64 L.Ed.2d 861 447 U.S. Cir.1981), issue of the F.2d 1369 (1980). Chapman test was ar- applicability of not had occasion to This court has declined to gued this court. We before which we determine this court con- the standard question adopt because address impaired significantly enigmatic passage the defense.” Su- v. alone 29. There is one Unfortunately did not might sug- pra this court at 1341. be construed as Fitzharris which ultimately the absence of gesting prosecution further reference to bears make obvious, however, fairly prejudice. persuasion presence It seems the burden of re- following language: be construed to prejudice. these words cannot refer to the We quire “the absence of to show is not established the defendant “absence of prejudice.” single demonstrating that no error considered incompetence California, whether counsel’s was harm- incompetence once of counsel it deny less because did accused a demonstrated, has been we construe it to be above, fair noted McNulty trial. As our duty proceed as follows: Olim, (9th Cir.1981), 652 F.2d 1369 we de- One. The defendant must point to errors adopt “strong- clined to such standard but or omissions in the record appeal on ly suggested]” that where the errors and establish that he did not receive reasonably omissions of counsel appear on the face of competent and effective assistance of coun- the record and can be thus evaluated with Fitzharris, sel. Cooper v. 586 F.2d at 1328. reasonable “the certainty, proper might test Two. We must affirm if the defendant well be whether the of prejudice absence fails make this initial showing. Hall established with reasonable certainty.” Sumner, (where incom- McNulty, (emphasis added). Id. at 1371 shown, petence is not we do not reach the Thus, dictum, McNulty under the it would contention that the district misapplied court appear court suggesting was the Cooper prejudice requirement). Id. at burden of convinc- ing certainty this court to a reasonable Three. If the defendant shows that no a occurred as result of coun- representation ineffective, he has the sel’s errors appearing or omissions further burden of showing record. We how counsel’s McNulty so read because it errors indeed, “impaired and omissions the de- strange, interpret would be Fitzharris, Cooper fense.” v. language requiring supra the defendant at 1333. Chapman California, 18, v. show that “no See 386 prejudice occurred to a rea- U.S. 87 824, certainty.” (1963). sonable 17 L.Ed.2d 705 Fahy S.Ct. Cf. Connecticut, 85, 86-87, v. 375 84 U.S. S.Ct. The rule we suggested adopt but did not 229, 230, 11 (1963). L.Ed.2d 171 also in McNulty fully is consistent with the re- Hinton, 769, United States v. 631 F.2d 771 quirements California, of v. Chapman 386 (D.C.Cir.1980). 18, 824, (1967). U.S. 87 17 L.Ed.2d 705 S.Ct. There, the Supreme Court held that “before Four. If the defendant fails to meet his a federal constitutional error can be held initial burden of establishing that he was harmless, the court must be able to declare prejudiced by counsel’s we incompetency a belief that it was harmless a rea- beyond must affirm. See United v. Alta- States California, sonable doubt.” v. Chapman 386 marino, (9th Cir.1980) (coun- 633 F.2d 147 24, U.S. at 87 S.Ct. at 828. We are satisfied unprofessional sel’s conduct was found to be that we must apply Chapman test in incompetent representation but defendant reviewing the impact incompetence failed to show prejudice). counsel on a defendant’s to a fair Five. If the defendant initial meets his

trial. burden by “pleading inadequacies Alabama, 45, Since Powell v. counsel’s performance they preju- and how 55, (1932) S.Ct. 77 L.Ed. 158 it has been accused,” Fitzharris, dice the Cooper v. su- clear that the sixth guarantees amendment 1329, pra at must bear to an accused in a proceeding criminal ef- of persuading beyond burden this court a Powell, fective assistance of counsel. In reasonable doubt that counsel’s errors and the Court concluded that the right to coun- deny omissions did not the accused a fair sel precious is so “that it cannot be denied Zahradnick, trial. See Wood v. 578 F.2d violating without prin- ‘those fundamental (4th Cir.1978). See also Wash- ciples of liberty justice which lie at the Strickland, v. ington base of all our civil political institu- (5th Cir.1982) (en banc). ” tions.’ (citation Id. at at 63. Connecticut, In v. Fahy Supreme omitted). considering Court in the effect on the jury light evidence, Supreme Court’s de of the erroneous admission of cision in Powell Chapman v. Alabama and not here with stated: “We are concerned acts make it example, incompetent evidence on counsel’s was sufficient there whether con- to determine whether the de- impossible could have been petitioner which the of. complained the evidence because of the fail- victed without fendant was is a reasona- whether there is question dead, witness who is now “a ure to call a complained that the evidence possibility ble from the standard of finding departure to the convic- have contributed might more, requires without competence normal 86-87, at 230. 84 S.Ct. tion.” 375 U.S. ex rel. Green new trial.” United States Fitzharris, held, we Similarly, Rundle, (3rd Cir.1970). that counsel where it is demonstrated “any substantial doubt must In such cases ineffective, we are not concerned defendant, inas- be resolved in favor prove presented the amount of evidence Chapman permits finding much as Instead, we are guilt of the defendant. where it is concluded only harmless error whether counsel’s er- to determine required preju- doubt that no beyond a reasonable him a have denied may rors and omissions the identified constitu- resulted from dice 586 F.2d at 1333. fair trial. v. Baynes, violation.” United States tional not contain the appeal A record on does (3d Cir.1982). 659 at 670-71 un- nor the deliberations of secret incompetence per counsel’s Where juror of each thoughts articulated prej must “demonstrate We vasive the accused at his verdict. motivated him to arrive assistance situations.” cannot, therefore, in ineffective fairly charge defendant udice pointing to direct 687 F.2d at 670. responsibility Baynes, with the United States mind at the juror’s of each state of evidence only situations the defendant need such we can reverse guilty he voted before time or attorney’s that his acts omissions show of counsel incompetence where a conviction viable defense and a have led to a “might has been shown. 671, (em [him],” id. at verdict favorable quoting from United original) phasis test adopting Chapman Before (3rd 622 F.2d 66 at 69 Baynes, v. States by caused impact prejudice weigh to determine Cir.1980). possible Where it is we by counsel representation ineffective competence normal from departure if the the rules which have been surveyed first as the failure to such prejudicial, other courts. developed by evidence, the bur physical certain present allocates Circuit The District Columbia “to show that is on the defendant den between the defense proof the burden of helpful.” would have been missing evidence following prosecution by posing and the ex rel. Johnson v. Id. United States demon- (1) “Has the defendant questions: 169, Cir.), Johnson, (3d 177 cert. 531 F.2d inadequa- likelihood that counsel’s strated a 997, 2214, denied, 96 48 425 S.Ct. U.S. (2) “... Is his defense?” cy prejudiced (1976) (petitioner had burden L.Ed.2d 823 prove beyond unable to government by alleged prejudiced that he was proving de- doubt that the constitutional reasonable performance). trial counsel’s deficiencies were representations ficiencies of counsel’s Ex Rel. Caruso v. Hinton, also United States v. 631 See harmless?” United States 435, Cir.1982). (3d F.2d 438 769, Zelinsky, 689 (D.C.Cir.1980). 771 F.2d Circuits, the de- First Circuit, In the and Second if the defendant Fourth In the he has suffered must show that fendant fail incompetent that counsel was shows counsel’s ineffec- from prejudice “actual” requirements, certain minimum to meet ing reversal of his convic- tiveness to secure a proving the burden of government F.2d Campa, v. 679 tion. United States was not the defendant v. 1006, (1st Cir.1982); United 1014 States 224, 226 F.2d Peyton, v. 389 thereby. Coles 182, (2d Cir.1980). Aulet, 188 618 F.2d denied, 849, 89 393 (4th Cir.), cert. (1968). In Wood v. Zah- 80, 120 21 L.Ed.2d burden of Third varies the The Circuit (4th Cir.1978), the radnick, 980 F.2d 578 proof quantum nature and according to the must If, government stated that court of counsel’s errors and omissions. 590 beyond

show the error was harmless a rea- record must show prejudice” “demonstrable sonable Id. at 982. doubt. to his Golub, defense. United States v. 694 207, (10th Cir.1982). F.2d Where coun The places Fifth Circuit the burden on a sel has not had time adequate to prepare defendant, incompetently repre- who was for trial “the defendant spec need not show sented, to show that counsel’s ineffective- ified errors in the conduct of his defense in possibility ness not created a only preju- order to show ineffectiveness of counsel.” dice, but that it also worked to his “actual Cronic, 1126, 1128 United States disadvantage.” Upon substantial such (10th Cir.1982). showing must show that counsel’s ineffectiveness was Zant, harmless be- The Eleventh Circuit in Stanley v. yond Washington a reasonable doubt. (11th Cir.1983), F.2d 955 adopted Strickland, (5th 693 F.2d Cir. test Washington Strickland, set forth in 1982) (en banc). (5th Cir.1982) (en banc). F.2d 1243 As above, Strickland, noted under once the de- Circuit does not require Sixth fendant has shown that counsel’s ineffec- showing once it is shown coun- tiveness “worked to his ‘actual and substan- sel was ineffective. “Harmless error tests ” tial disadvantage’ must do apply regard to the deprivation of prove “that counsel’s ineffectiveness was a procedural right so fundamental as the beyond harmless a reasonable doubt.” effective assistance of counsel.” Beasley v. Strickland, Washington v. 593 F.2d at 1258. States, (6th United Cir. See also Owens v. Wainwright, 698 F.2d 1974). (11th Cir.1983). adopted Seventh Circuit has a test We can summarize the results of our re- deny which will relief to a person represent- search into the approach taken other ed ineffective spite counsel if in of coun- circuits as follows: sel’s blunders it still beyond clear a rea- sonable doubt would have One. The Chapman test has been adopt- Franzen, convicted him. Wade v. ed in each circuit where the issue was raised Cir.1982). and discussed in connection with a claim of prejudice resulting from of incompetency Eighth Circuit requires that a de- counsel. fendant who is incompetently represented must show that “the action or inaction of Two. In some proof prejudice circuits of the attorney must have materially preju- is not once required of coun- incompetency diced the petitioner’s defense.” Tinlin v. sel is demonstrated. The Chapman test is Parratt, (8th Cir.1982). 50 not relevant in these circuits. These cir- also Speedy v. Wyrick, F.2d simply weigh cuits refuse to the impact of (8th Cir.1983). attorney incompetence on the defendant’s to a rejected fair trial. We this ap- made, Once this showing is a new trial is proach in Cooper v. Fitzharris. warranted unless the court is able to de- clare a belief that Three. In counsel’s omission was other circuits a demonstration harmless beyond prejudice a reasonable doubt. of required is not where an attor- McQueen Swenson, v. (8th ney’s incompetence pervasive is or where Cir.1974). there was inadequate pre- time alloted to for trial. pare Circuit,

In the Tenth if of incompetence counsel pervasive, a showing prejudice circuits, Four. The remaining including is not required. Rather ours, “the burden should require the defendant to make an on the to establish the lack initial that showing counsel’s errors and of prejudice.” Porterfield, United v. prejudicial. States omissions were 624 F.2d at (10th 124-25 Cir.1980). Five. variation of the Chapman Some

Where the record shows that counsel has test adopted has been considered had adequate time to prepare following require showing the circuits which Columbia, reading Cooper the A careful will reveal District of the prejudice: require. this court did not so Fifth, Seventh, that Fourth, Eighth, Third, Tenth, and Eleventh Circuits. that panel are satisfied the three-man We Coupez purport did not produced which have Circuits The First Second Six. recently the law for this circuit so rewrite apply they the test would not disclosed yet en in sitting court banc adopted by this prejudicial effect considering in of Coupez a construction Cooper. Such where incom- errors and omissions counsel’s decision in conflict with place would that has demonstrated. petency counsel of this that an en banc decision the rule Thus, Chapman in test applying judge a three by court can not be modified preju- of the impact evaluation of Williams, supra v. at 397. Ewing panel. we incompetency, counsel’s by dice caused suspect, committing that instead of We its expressed every circuit which has join simply in heresy, Coupez the court was such this when issue. view confronted Cooper’s holding. attempting paraphrase adopted we forth rule setting Further, adjective “actual” to using Fitzharris, ac- requires the prejudice, the court undoubted- modify im- that his defense cused show Cooper requires ly emphasizing be- placed we not a modifier paired, prejudice. not showing imagined of real and “prejudice” because the word fore is bolstered interpretation Coupez Our law of fashioning so court did not do the court concluded its discus- the fact that circuit. representa- subject of defective sion of “Furthermore, record stating: tion filed that in a few decisions recognize We showing factual preju- is devoid of Fitzharris, at least Cooper v. shortly after defense reason Coupez’ dice of this court stated judge panel one three rulings.” Id. at 1351. District Court’s preju- must show “actual” defendant in the Ninth Coupez has never been cited in an case. In United incompetency dice setting heightened quan- as forth a (9th Cir. Coupez, F.2d Circuit States set in Coo- proof beyond forth 1979), the summarized rule tum court has, however, “However, cit- that a The Seventh Circuit Cooper requires per. follows: it will Coupez proposition for the representa- a lack of effective ed showing of where “the defendant reverse showing with a factual coupled tion must be from his counsel’s fail- no prejudice to a defense shown of actual defendant’s Raineri, ure.” United States representation.” because of defective such Cir.1982)30 (7th added). Id. 702 at (emphasis States, denying a hear- United 665 F.2d 271 trict court erred accused In Brown v. petition 1982), ing her in her 2255 an attor- on claim section Cir. ney this court held that where arising dual has a of out of of interest conflict interest her counsel’s conflict that retained weight representation, the of the evidence the as- violated her Sixth Amendment “cannot, itself, justify against the accused Brown court of of counsel. As in this sistance has denial relief under 2255 once there distinguished apply § the of where the test which must ” finding a of of interest... been actual conflict rule interest is raised from the a conflict of opinion, Judge Tang concurring distin- incompetency passing, In a applicable cases. In in guished applied in a opinion Cooper the test which must v. Fitzharris states that the of interest from that which petitioner conflict case requires the show that coun- “that required incompetency where counsel incompetent actual assistance resulted in sel’s proved. doing Judge Tang referred In so para- prejudice.” 1194. This shorthand Id. at “ Cooper prejudice’ v. clearly test of requirements ‘actual phrase Cooper was not (en (9th 1978) creating F.2d Fitzharris.’ 586 1325 Cir. a new rule construed as intended to be cert, 1542, denied, 974, banc), necessary “quantum proof 440 U.S. 99 S.Ct. spelling out the (1979).” Judge Tang not 793 did prejudice” 59 L.Ed.2d in to demonstrate existence placed provide page a he incompetency citation for the words of counsel case. an quotes. in We find reference cannot in v. Win- It is that United States also true Cooper 221, Cir.1980) ston, (9th v. Fitzharris. “actual” and in 224 613 F.2d 926, Cardwell, (9th Hearst, (9th 609 F.2d 928-29 v. Lewis In v. 638 F.2d 1190 United States appellants 1979) Cir.1980), these dis- stated that court Cir. this court determined 592 not to circuits course of the trial. chose aware that other also

We are testimony explanatory term believe Tucker’s “prejudice” modify chosen to have upon which he and his retained counsel they apply of the rule in their formulation their defense. has been shown. based ineffectiveness where change power if we had the Even test, grammati- see no we Cooper prejudice where coun- required new trial is not A doing Adding so. justification for

cal or results preparedness sel’s lack “substantial” is rhetorical words “actual” or possible impeachment utilize failure to prej- persuaded If we are surplusage. a prose- in cross examination of evidence shown as the has been udice to the defense witness, in view particularly cution we errors and omissions of counsel’s result of Tucker’s overwhelming of the evidence true that consti- While it is must reverse. herein.31 guilt [Emphasis added] there non-prejudicial, bemay tutional error Whether a defendant has been thing prejudice. as harmless is no such counsel’s ineffectiveness is prejudiced by review of the record independent Our reviewable as such. question of law and is errors convinces us counsel’s this case we to the district court’s factu While defer deprived opinions prejudicial were al as to what counsel did or did not findings Tucker of a fair trial. evaluate whether do, independently we that despite court concluded The district prejudiced the de representation counsel’s Tucker was not de- Keating’s incompetence, Balkcom, 734, Adams v. 688 F.2d fendant. judge The trial found: nied a fair trial. Cir.1982). In our view the (11th 739 district concluded that Tucker Here, incorrectly not court the defendant was Keating’s incompetence. prejudiced by errors or omissions not by any of the asserted fair, preju conclusion that rather received a The district court’s complained of but part was at least in dice has not been shown perfect trial. although perhaps its the evi its conclusion on its determi- based on determination court bases overwhelming. In Coo guilt dence of represented nation that no matter who defendant, competen- per rejected quantum level of v. Fitzharris we nor his as a measure of guilt nevertheless would of the evidence of cy, defendant re charges prejudice. require We chose instead by jury been convicted indictment, overwhelming incompetency due to the versal if counsel’s denied a fair trial. 586 F.2d at 1333. guilt presented during evidence of accused Cir.1982) Enomoto, preju- (9th (per curiam); failed demonstrate “substantial Hines v. had 667, (9th Cir.1981); Satchell v. satisfied that in each case this 658 F.2d 675 We are dice.” Cardwell, 408, (9th Cir.1981), merely summarizing holding cert. 653 F.2d 409 court was 1026, denied, 1154, Cooper intending 71 a new 454 U.S. 102 S.Ct. without to create stan- Olim, (1983); McNulty quantum proof preju- 652 F.2d L.Ed.2d 311 v. dard to measure 1369, (9th Cir.1981); United States v. 1370-71 dice. 369, (9th Cir.1981); Mayo, United every F.2d other case from this Circuit Altamirano, 147, (9th counsel, competency 152-53 the issue of States v. 633 F.2d considered 839, denied, 1980), cert. 454 U.S. 102 S.Ct. read v. Fitzharris as Cir. this court has not 145, (1981); requiring showing v. 70 L.Ed.2d 120 Gustave United of “actual” or “substan 901, States, (9th 1980); Coleman, United prejudice. 627 F.2d Cir. tial” United States v. Williams, 75, (9th 374, 1983); (9th 624 F.2d Cir. States 707 F.2d Cir. United States 1980); Campbell, Christopher, United States Cir. States, denied, (9th Cir.), 1983); cert. 447 U.S. Baumann v. United Gibson, 2998, (1980); (9th Cir.1982); United 64 L.Ed.2d 861 United States v. 100 S.Ct. 572 Moore, 310, (9th 697, denied, (9th Cir.1982), 599 F.2d 314 Cir. cert. States v. 690 F.2d 704 1024, denied, 1446, 1979), -U.S.-, 100 444 U.S. S.Ct. 75 801 cert. 103 S.Ct. L.Ed.2d Williams, 687, Rushen, 826, (1980); Ewing (1983); 658 686 F.2d 832 62 L.Ed.2d Hudson v. 391, (9th 1979); denied,-U.S.-, (9th Cir.1982), United States 103 395 Cir. cert. 596 993, 1979). Currie, (9th 1886, 1896, (1983); 995 Cir. 589 F.2d 285 Hail v. S.Ct. 77 L.Ed.2d Sumner, 786, Cir.1982); (9th Frit- 682 F.2d 787 12, Findings, Law Nos. 7 and of Conclusions 208, McCarthy, (9th chie v. 664 F.2d 214 Cir. pp. Donn, 820, 15-16. 1981); 824 United States v. view, Tucker has shown that incompetence In our tion demonstrates neither nor According government, precluded prejudice. the incompetence his counsel’s judging the merits “there was no other independently evidentiary from source jury Campbell, promote his case. United States v. could have been utilized to of defense other than the of the testimony 616 F.2d at 1152. Tucker’s demonstration trial, moreover, defendant”, “appellant’s the unfairness of the and counsel has government’s shown us none.” We find the not restricted to defense counsel’s failure to impeach prior argument unconvincing, disingenuous. Teerlink with his inconsistent even statements, suggested by as the district Where, here, as the attorney did not even court. Tucker has also shown that Keat obtain attempt corroborating witnesses trial ing’s grossly inadequate preparation or otherwise to conduct a pretrial minimal compromised every significant portion the record is in- investigation, necessarily task. jury’s finding fact complete prejudice as to the extent of the

First, the chance to which resulted from counsel’s jury was denied dereliction. government’s of the an it fol- judge credibility adequate investigation, Without Adequate witnesses. cross examination lows that the trial record will not key contain principal example, of witnesses is “the means all the available evidence. For believability which the of a witness and the this court cannot review testimony truth are tested.” Davis v. testimony witnesses favorable to the who defendant 1105, Alaska, 308, 316, S.Ct. were never called. We cannot know if (1974). The can jury 39 L.Ed.2d 347 government witnesses would have been opportunity be said to have had the hardly they forced to tell the truth had been con- credibility the truth and to consider prior fronted with their inconsistent state- where, testimony govern- witnesses’ as the ments. We believe that it would be anoma- argued jury, ment to the there prosecutor on the a lous for us to hold one hand that significant was no cross examination of complete prepare failure to government particularly, witness. More it present all available defenses and known prior is undeniable that relevant inconsist- witnesses or adequately corroborative statements, ent made under oath key government cross-examine witnesses on witnesses, present- were never inconsistent statements prior basis of jury. jury certainly ed to the The counsel, but incompetence demonstrates presented entitled to have that information deny any then to relief because the defend- judgment in order to make an informed conclusively ant cannot demonstrate from weight to the on the witnesses’ place impact the face of the record the total Id. at at 1111. testimony. S.Ct. those on his to a fair trial. omissions As the stated in United States court Second, in- Keating’s grossly because of Cronic: adequate pre-trial preparation, potential never inter- court can way appellate

witnesses for Tucker were is no [T]here case would say precisely given how possible help- viewed and leads to evidence dili- reasonably Tucker’s defense were never investi- have been handled ful to The virtually gent properly prepared lawyer. This assured gated. incompetence preparation would be denied the from lack of jury opportu- nity fairly judge experience nicely weighed. the soundness cannot be fully and the merits of case Cir.1982), cert. did not jury Tucker’s defense. granted,-U.S.-, opportunity to consider evidence (1983). L.Ed.2d credibility impeached counsel has Although appellate Tucker’s witnesses, or which tended to show that outline of the testi- provided only general spoke Tucker the truth. discovered and mony might have been adequate after an presented that Keat to the government argues opportuni- pretrial investiga- investigation, failure to conduct a he was denied ing’s very record the absence of ty “profes- to build the rect examination of Tucker was acceptable” “throughout is fatal the sionally now claims which the kept trial he before the the basic theo- counsel present to Tucker’s Tucker’s claim. Findings, the case.” ry of Conclusion of an leave to conduct attempted to obtain Law 6. While it is true that a reason- No. purpose the of ascertain- investigation for competent ably lawyer must concerned Keat- ing resulted from prejudice whether with the of his case before keeping theory ing’s investigation an failure to conduct he factual jury, provide sup- the must also trial.32 preparation for The government that such port for defense where corrobora- the motion.33 vigorously opposed The dis- Moreover, tion available. even if we is trict the motion. court denied that at Keating’s performance trial assume presented Under the circumstances this was in some sense we are still adequate case, was no be- investigation where there with the of his impact faced ineffective fore the opportunity trial and no to assess performance prior to trial on inadequate trial, to re- impact of that omission after trial. Tucker's to a fair As the quire point to evidence specific Tucker to McQueen Eighth Circuit observed that the presented jury, would have Swenson: through pretrial investigation, an adequate exercise skill during of the utmost require impossible. would be to the For trial if counsel enough the not has purposes demonstrating prejudice result- investigation the neglected necessary ing from counsel’s failure to conduct an of the or failed to inter- preparation case adequate investigation, we it suffi- think or arrange view essential witnesses for cient an ade- that Tucker shown that attendance, (citation omitted) their quate pretrial un- preparation would have at 215-16. covered substantial evidence which fact Altamirano, In United States v. finder delib- was entitled consider in its denied, (9th Cir.1980), cert. allegations erations. Tucker’s that witness- (1981) we L.Ed.2d es who testimo- could have corroborated his prejudice no the record found where available, ny along showing were with the competent that counsel performed showed made by present regard- Tucker’s attorney examination defendant and direct of the ing investigation, his limited results of keep theory the defense able that sufficiently carried burden.34 Altamirano, the jury. case before coun Finally, government points out at least to obtain wit attempted sel had that the court district found di- nesses who could corroborate defend- happening indicated to the it strikes Counsel district court But me that what’s here apple, sufficient he did have time to conduct of like a second bite or a is kind investigation prior hearing, to the since his shot counsel can show second ... unless sorting completely engaged something time was there is indicates that if through page transcript and investigation the 3500 trial were an extensive conducted discovery something massive case. of value the defendant would Nevertheless, investiga- RH: 348. developed, what brief think have been I don’t the court suggested tion he do was able to that there was ought expendi- enormous countenance this independent suggesting corroborative evidence public of time ture funds what strikes falsely had Crawford accused Tucker of being capricious me rather exercise. ordering pad the him to cost of some RH: 343. (RT: 414-16) work and that corroborative tes- case, timony support appellant could have been was not harmed elicited to In this permit post Tucker’s he claim that was an outsider to the court’s refusal trial corporate hierarchy investigation. Engineering. at Sells RH: before us is suffi- record suggested appellant preju- 418-19. also Counsel that witnesses cient to establish that the position We, incompetence. who were in a to observe interac- his counsel’s diced therefore, among corporate question tions officers should need not reach as to been interviewed to observa- corroborate allow an inves- a district court should whether tion. RH: tigation 418-20. is silent where the record as to the as the re- suffered the defendant incompetence. 33. The stated: sult of counsel’s

595 Moreover, in the facts. he would fare if he had no at all. attorney ant’s version of believe, This, My I is an undeniable truth. no indication that the Altamirano there is my is pre- squarely only upon an belief based attorney adequate failed to conduct key to investigation, impeach experience or failed own personal legal trial for almost in fifty years, participating state- hundreds of tri- prior witnesses with inconsistent there that counsel had als as a trial and re- lawyer subsequently ments. We found keep means” the as a attempted “by many viewing judge countless records circuit almost It years. nineteen is also found- theory basic defense case before put upon experiences highly and that the defense was before related to me jury, by ed judges an After a jury acceptable respectable attorneys during my manner. and case, officerships in the Texas Junior Bar Associ- careful review of the record in that ation, Bar, ineptness court that the Los this concluded counsel’s California State Association, fair deprived Angeles particular- had not the defendant of a Bar County during my The the matter us are and asso- ly presidency, trial. facts in before intimate arising my ciations from in the distinguishable membership and a differ- clearly compel ent result. House of of the Bar Delegates American my Association from many years and Here, we that evidence and are convinced fellowship in the American of Trial College helpful witnesses to his defense would Lawyers. adequate investiga- been discovered pretrial The of counsel's inadequacy my respects tion. If belief in the above is cor- carry rect, investigation is sufficient that has thus far unal- alone and belief been terable, fairly then demonstrating logically it should Tucker’s initial burden Further, fair it follow that when it is that an that he was denied a trial. determined legally has a represented by is that has shown accused also clear to us Tucker here, oth- as is it incompetent attorney, effect of the case that the cumulative presumed, to a fair be further in- right er errors Tucker’s should without law, Williams Ewing As the court in and as a matter of that quiry trial. noted, grievous preju- has such a court find unfairness —and accused suffered may of coun- totality thus dice as to entitle him forthwith to a new —from Fitzharris, Compare Cooper sel’s errors and omissions. 596 trial. (9th Cir.1978) (Hufstedler, (9th Cir.1979). The F.2d 1325 Circuit joined Ely Hug, Circuit carry Judge, burden of us persuading failed its 1334). incompetence Judges, dissenting counsel’s was harmless beyond reasonable doubt. SNEED, Judge (concurring in Circuit remanded. judgment is reversed and result): ELY, concurring: holding appellant I concur Judge, Circuit effective assistance of deprived law of our court Under current be and that his conviction should counsel I Appeals, that of numerous other Courts of has estab- appellant amply reversed. The opinion my concur Brother must incompe- his at trial was lished that counsel intensive Alarcon. His reflects opinion fair trial tent and As I scholarship. and remarkable study enough entitle him That is prejudiced. concurrence, however, I cannot express my is all need be said. to a reversal. That my deeply temptation resist reiterate be has been said and Regrettably more representa- ineffective held conviction that I, say will regrettably, of this also for an accused should cause attorney tion The test for ineffective assistance more. equated representation with lack drawn tried circuit has been and remains no doubt that one whatsoever. I have Fitzharris, F.2d 1325 very Cooper v. fares from for a criminal offense often denied, Cir.1978) banc), (en he cert. worse, if in a especially much 1542, 59 L.Ed.2d than counsel represented by incompetent (9th Cir.1982) J., en v. 665 F.2d (1979). (Tang, banc court two-part inquiry concurring) (describing Cooper “actual Fitzharris established prejudice” test); Hearst, United v. first, States into of counsel: ineffectiveness 1190, 1194 (9th Cir.1980) 638 (Cuyler F.2d v. show he was denied “rea- defendant must showing Sullivan of adverse not same effect represen- effective sonably competent and as Cooper showing prejudice”), of “actual 1327; second, tation,” “where, at as id. denied, 938, 101 2018, cert. 451 U.S. 68 S.Ct. here, assistance is the claim ineffective (1981); L.Ed.2d 325 v. United States Cou specific founded acts and omissions of upon 1347, 1350 pez, (9th Cir.1979) (stat- 603 F.2d trial, defense counsel at the accused must ing requirement as “actual prejudice”); see counsel’s errors establish that 221, Winston, also United v. 613 F.2d States defense,” id. Alarcon does not Judge Cir.1980) (9th (no 224 preju- “substantial disagree with this. dice” from counsel’s failure to inform ac- counsel was described in Incompetent cused of judge’s participation competen- Cooper Fitzharris as one that made “er- v. Cardwell, cy v. 609 hearing); Lewis F.2d reasonably competent attorney rors a act- 926, (9th Cir.1979) (also using 928-29 “sub- ing diligent as a conscientious advocate prejudice” standard). stantial Also the would not have made.” Id. 1330. Also repeatedly standard has been described presence such distinguished counsel was more one of simply showing prejudice.1 as from in which was no coun- situations there The difference between “prejudice” and sel or in which “counsel was from prevented “actual prejudice” apparently been discharging normal functions.” Id. at thought “preg- to be the same as between “prejudice” 1332. The verb was used with- nancy” “actual pregnancy” —non- out modifiers. existent. placed The burdens on defendant might Judge opinion Some read Alarcon’s the government v. Cooper under Fitzharris he indicating that discerns what others are as follows: I not seen. think such a reading 1. The defendant’s In this cir burden. change would be mistaken. He makes no cuit the has the defendant burden show prejudice 587, standard. pp. See ing or “prejudice” prejudice” “actual from 588, 591, 594, 593, It is true he counsel. banc errors of The en court in describes the defendant’s burden alter-' Cooper specifical v. Fitzharris did not state natively as of showing one of a denial fair ly the quantum proof necessary to dem 588, 589, 594, pp. 593, 595, see onstrate prejudice. the existence of How or impairment defense, see ever, repeatedly this court has described pp. 586, 587, 588. And it is also true showing defendant’s burden as one of actu goes great that he lengths dismiss al prejudice. States, describing those cases v. Fit- See Brown v. United cert, 408, stating require (9th Cir.1981), denied, 1. For other cases 409 454 U.S. unsettled, 1154, 1026, (1982); finding ment 102 71 311 without it see United S.Ct. L.Ed.2d 374, 369, Coleman, (9th Mayo, (9th States v. 376 United 373 707 F.2d Cir. States v. 646 F.2d 1983); Cir.) curiam), denied, 1127, Christopher, (per United States v. 700 F.2d cert. U.S. 454 1253, 979, (9th 1983); (1981); 1261 Cir. v. United 102 71 L.Ed.2d Baumann S.Ct. 115 United States, 565, Altamirano, (9th Cir.1982); 147, (9th 692 F.2d 572 United States v. 633 F.2d 152-53 cert, Gibson, 697, denied, 839, (9th Cir.1980), States v. 690 F.2d 704 Cir. 454 102 U.S. S.Ct. - 1982), denied, -, 145, (1981); cert. 103 70 120 U.S. S.Ct. L.Ed.2d Gustave v. United 1446, 901, States, Cir.1980); (1983); (9th 75 L.Ed.2d 801 Hudson v. Rush- 627 F.2d 904 United en, 826, Cir.1982), Williams, 75, (9th (9th 686 77 F.2d 832 cert. de States v. 624 F.2d Cir. nied, -U.S.-, 1896, 1980); Campbell, 103 77 L.Ed.2d United States v. 616 F.2d S.Ct. 786, 1151, Cir.), 910, (1983); Sumner, (9th denied, 285 Hall v. F.2d 1152 cert. 447 U.S. 682 787 (9th Cir.1982); 2998, (1980); Spalding, Powell v. 679 F.2d 100 64 L.Ed.2d United S.Ct. 861 163, Moore, 310, (9th Cir.1982); McCarthy, (9th 167 v. States 599 F.2d Cir. Fritchie v. 314 208, denied, 1024, (9th Cir.1982); 1979), 664 F.2d United 444 100 States cert. Williams, Dorm, 820, 687, (1980); Cir.1982) Ewing (9th (per 661 F.2d 62 L.Ed.2d curiam); Enomoto, (9th Cir.1979); Hines v. States 596 F.2d United (9th Cir.1981); Cir.1979). Cardwell, Currie, Satchel1 v. prejudice. tempt as one of actual to show that a constitutional error in zharris test However, 590-591 & n. 30. he re- pp. process by which the defendant was when he admits beyond baseline convicted was harmless a reasonable proper turns to real, imag- is one of injection the standard A with its difficulty doubt. into he ined, and when p. setting the ineffective assistance is that it prejudice, test be- prejudice” “actual with neither an provides criticizes the P. 592. arrow nor a bow surplusage,” strings. Assuming of its “rhetorical cause Judge Alarcon Thus, although it is clear has established prejudice the defendant unmodified, a to be “prejudice” there is little or no chance the prefers subscribe, which I also to show it to have harm- stylistic preference will be able no difference between he sees the of Discharge by I conclude less. defendant simpliciter. prejudice actual and prejudice Chapman burden forecloses as a useful af- government. firmative defense the burden. 2. The There be may hypothetical situations that go- the burden of has neither imagined can be which this would not be the de- until persuasion forward nor ing so; however, I have not been able to think existence of the fendant has established any. of point that At prejudice. and incompetency area, Injection Chapman as it of into this how- proof with such go it must forward ever, of incom- perhaps to rebut the existence can have effect more to might have in its Judge liking. If unsuccessful Alarcon’s is to reduce petency prejudice. or That a new wins magnitude the defendant the of the defendant’s burden rebuttal efforts af- conviction is respect showing prejudice. if successful the with to the the govern- effect would constitute an description example firmed. This This appearing to that might jurisprudential hy- ment’s burden conforms what be called more than score reading of the by many, from a draulics. As has been observed cases this court ineffective assistance law creates a flexible law of rigid divorce here; Fitzharris. Similarly decided since annulments. treating Chapman as a burden of the It is fair to say Judge Alarcon does will tend to reduce the burden of the de- complete believe this is a descrip prejudice. point fendant to show The same tion might of what be described as either differently. If may put Chapman had “government’s or right” “govern large play role to in ineffective assistance it, ment’s burden.” As he sees after the it cases must be because defendant’s defendant successfully has established inef respect prejudice fairly with is burden govern fective assistance and philosophically, prejudice small. Put ment must “bear the burden” of persuading the Yin Chapman Yang function as the court beyond a reasonable doubt that assistance Perhaps the ineffective area. the counsel’s errors and omissions did not relationship of this ex- helps the realization deprive the defendant of a fair trial. P. plain Alarcon’s distaste for “actual” Judge short, 588. In he wheels place into “prejudice.” perhaps as a modifier of But California, test Chapman 386 U.S. not. 824, 17 (1967), although L.Ed.2d 705 event, Judge Alarcon’s reliance on he acknowledges that the en banc majority dim, 652 F.2d 1369 McNulty v. Cir. it, in Cooper v. Fitzharris invoked neither 1981), misplaced. As one who sat on the it, nor it only appeared referred and that case, I am confident court that decided in Judge Hufstedler’s dissent. it Judge Alarcon attributes to an unin- (Hufstedler, J., joined at 1340-41 by Ely & improper tended effect. That would not be JJ., Hug, dissenting part). language supports if its his attribution. It The case was not concerned analytic point

From an of view one must does not. Chapman appears no mention of acknowledge Chapman Chapman; that under sought at- court government always opinion. has the The district quan- refine further the court to force the ex- necessary to establish proof tum FENNER, Plaintiff/Appellee, John The court able to

istence of prejudice. either the invitation because under decline offered the district formulations COMPANY, DEPENDABLE TRUCKING court, judgment from whose the defendant INC., corporation, a California Federat- the defendant had failed to appealing, Department Stores, Inc., ed a Delaware prejudice. the existence of establish corporation, Lemmons, and Martin De- opin- in the course court made clear fendants/Appellants. ion, however, discussing it was 81-5752, Nos. 81-5777. of establishing incompe- defendant’s burden tency and See id. at 1370-71. prejudice. Appeals, United States Court of Moreover, suggest that, we did in addition Ninth Circuit. to the two formulations offered dis- court, might prej- trict another be whether Argued Nov. Submitted 1982. cer- udice was established with reasonable Decided Sept. tainty. It is true that we the stan- stated rather negative, positive, dard in a than a Dissenting Sept. Opinion fashion. We said: suggests proper This strongly

test whether might well be the absence of

prejudice is established with reasonable

certainty. positive expression Id. 1371. A mode of would have been: suggests proper

This strongly might test well whether certainty. established with reasonable negative not be employed mode should been an attempt understood to have to di- enlarging minish the defendant’s burden by sum, Chapman’s wrong role. In it is quite McNulty conclude that “under the dic- ..., tum has the burden convincing this court to a cer- reasonable

tainty that no result prejudice occurred as a

of counsel’s appearing errors or omissions the record.” P. 588. Alarcon,

When Judge all is said and done Judge Ely, and I agree in this case

Cooper v. Fitzharris test has met. Judge Alarcon but in vacillates somewhat end I I agree think he and as to defend-

ant’s prejudice. Judge burden to establish

Ely, heart, at least in parts company us on that and I point. Judge Alarcon differ concerning somewhat role proper Chapman. put If we on difference

one side of scale on Justice’s and a feather other, wager I would the balance would tip toward the feather. facts of each Since notes substan- legally determine all rele sufficient Tucker, Keating tive conversations with to the known defendant.12 vant information any aspects could not recall in detail what of the case he had discussed with Tucker. of the the nature Given However, it that a Tucker, appears substantial necessity for ex- against case Keating consultation between and amount of time was taken with discus- up tensive Tucker obvious. Tucker was familiar plea sion of the government’s bargain offer with a number of witnesses to be called and with discussions of fees.13 provide and could infor- by government admission, By Keating spent his own no were and what their they mation as to who discussing more than 20 hours the case with might be. Tucker had some fa- testimony none of the govern- Virtually Tucker. documentary with the evidence miliarity ment’s massive evidence or documentary a provided portion since he himself had of it wit- given by prospective the statements investigators, and a number government nesses were discussed with Tucker. Keat- involved transactions in the documents ing single page did not forward a directly he involved. Tuck- had government material disclosed familiarity er’s with the facts set forth in result, review the defense.14 As a given the statements and affidavits might advice Tucker have been able to of- investigators by prosecu- fer as to the attorney possible use of tor’s should have been explored. witnesses those statements in his own defense Tucker well have been able to may provide lost. accuracy into their and insight veracity. Communication with Tucker was essen- also Two weeks before tial to his trial prepare testimony Cook, Keating prose- informed that John obtain information as to the most likely witness, just had given cution statement witnesses and physical sources of evidence Tucker of to “kick accusing ordering Cook which could corroborate his testimony. half of his travel expense money back” Keating Tucker. this new did discuss facts, Keating’s these Given consultation potentially damaging development totally inadequate. with Tucker was Dur- ing case, the entire pendency of the Keat- Tucker until the before trial.15 weekend ing had no more than 7 telephone hours of Keating compensate did not for his Tucker; conversations with from those sev- inadequate consultation with Tucker en Keating produce single hours could but a conducting thorough pre-trial investiga note which read “Pods chaff dispenser] [the fees, Israel, fact, Judge Thompson.” Keating tion. In did not undertake everything, 12. The American Bar Association Standards but that will cost us around Justice, for Criminal are in arrange accord. $1000. the material He would Function,” chapter they us, entitled “The Defense quite book form for and that would be

Case Details

Case Name: United States v. Robert E. Tucker

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 30, 1983

Citation: 716 F.2d 576

Docket Number: 79-1657

Court Abbreviation: 9th Cir.