ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 81-00043-01).
Aldisert, Rosenn and Sloviter, Circuit Judges.
After a jury trial, Joseph Frankenberry was convicted on a four-count indictment. Count I charged a conspiracy to transport stolen goods in interstate commerce in violation of 18 U.S.C. § 371; Count II charged possession of a firearm, specifically a.45 caliber Star automatic handgun, by a convicted felon in violation of 18 U.S.C. §§ 922(h)(1) and 924(a); Count III charged possession of a firearm, specifically a.22 caliber Ruger revolver, by a convicted felon in violation of 18 U.S.C. §§ 922(h)(1) and 924(a); and Count IV charged possession of an unregistered firearm, a silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871. Frankenberry was sentenced to a five-year term of imprisonment on Count I; a five-year term of imprisonment on Count II, to run consecutively; a two-year term of imprisonment on Count III, to run consecutively; and a ten-year term of imprisonment on Count IV, ordered to run concurrently with the sentences imposed on Counts I and II. On appeal, Frankenberry claims that he was denied effective assistance of trial counsel, that the court erred in admitting evidence of threats of harm to witnesses and other individuals without cautionary instructions, that the court improperly denied his motion for a severance, and that he was improperly prosecuted and sentenced to consecutive prison terms for simultaneous possession of two handguns.
The facts as presented at trial are not in issue on this appeal and therefore will be only briefly summarized. The government presented sound recordings, videotapes, and testimony proving that Frankenberry, Charles Huey, Theodore Slagle, and John Sullivan developed a plan to rob Temple Enterprises, Inc., a Philadelphia precious metals firm. Defendant involved Benjamin Wujs to assist in disposal of the metals in Ohio. On February 7, 1981, defendant, Slagle and Huey drove from Huey's home in Yoe, Pennsylvania, to Philadelphia to make plans and arrangements for the robbery. Huey wore sound recording equipment pursuant to an arrangement he had made with the government covering this and other crimes in which he was implicated. On route to the premises of Temple Enterprises, Huey met with Sullivan who related details of the layout of Temple Enterprises and its security devices. The defendant, Slagle and Huey then drove to Temple Enterprises where they examined the area. They discussed details of the planned robbery both there and during the trip back to Yoe.
On the day of the planned robbery, February 11, 1981, defendant, Huey and Slagle met in a Ramada Inn motel room in York, Pennsylvania rented by Huey and which had been equipped with audio and video recorders by the government. The three men discussed the robbery and assembled preparatory items, including firearms. They were arrested on leaving the motel. A search of Frankenberry by the arresting F.B.I. agents revealed that he carried a.45 caliber Star pistol and a.22 caliber Ruger pistol.
Slagle, Sullivan and Wujs were named as co-defendants with Frankenberry in Count I of the indictment directed to the conspiracy to transport stolen goods. Only defendant Frankenberry was named in the other counts. Slagle and Sullivan pleaded guilty. Defendant and Wujs were tried jointly. Wujs testified on his own behalf. Defendant chose not to. The jury failed to agree on a verdict as to Wujs and a mistrial was declared as to him.
Ineffective Assistance of Counsel
We consider first Frankenberry's claim that he is entitled to a new trial because of ineffective assistance of counsel. In his brief, Frankenberry makes a systematic attack on the effectiveness of his trial counsel. In particular, he faults counsel for their failure to challenge the indictment for multiplicity, failure to seek to suppress recorded conversations and items of physical evidence seized from his home, failure to object to introduction of prejudicial photographs, abrupt and superficial cross-examination of witnesses, failure to request cautionary instructions with regard to evidence of other crimes, numerous miscellaneous errors and omissions at trial, and languid post-trial conduct with respect to the post-trial motions and sentencing. He claims that the totality of errors and omissions of his trial counsel, pervading the entire proceeding, constitutes a denial of effective assistance of counsel.
Surprisingly, the government has failed to contest the reviewability of the issue of ineffective assistance of counsel on direct appeal. Whatever the basis for the government's strategy, it is for this court to decide whether we will hear a claim of ineffective assistance of counsel on direct appeal. Sound prudential considerations require that we apply a consistent approach to this issue, and we believe it inappropriate to deviate from our practice merely because the government has chosen not to press the issue in a particular case.*fn1
The recent precedent in this court is clear that as a general rule we will not consider ineffective assistance of counsel claims on direct appeal. United States v. Sturm, 671 F.2d 749, 750-51 (3d Cir. 1982) (per curiam); United States v. Jackson, 649 F.2d 967, 973 (3d Cir.), cert. denied, 454 U.S. 871, 1034, 102 S. Ct. 341, 70 L. Ed. 2d 176 (1981); United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 744 (3d Cir. 1979); United States v. Garcia, 544 F.2d 681, 684 n. 1 (3d Cir. 1976). We have preferred this practice so that the accused can raise the objection in a collateral proceeding under 28 U.S.C. § 2255 where the district court may develop an appropriate factual record. Defendant argues that in this case the ineffectiveness is so plain from the record that it can be reviewed by us in the first instance. A review of Frankenberry's objections to his trial counsel's conduct shows why our customary procedure should be followed in this case as well. For example, Frankenberry claims that trial counsel failed to vigorously cross-examine the government's witnesses. The government, however, suggests that this was part of trial counsel's cross-examination strategy in an effort to show defendant "had been set up". Trial counsel is entitled to a measure of latitude and discretion in the manner in which the trial is conducted. Assuming arguendo there was minimal cross-examination (and we expressly refrain from so characterizing the cross-examination) and that this followed from a tactical decision, a collateral proceeding will provide a forum in which a district court may ascertain the "nature and plausibility of any explanations [trial] counsel may have had for [such] a decision." United States v. Sturm, 671 F.2d at 751; see Cerbo v. Fauver, 616 F.2d 714 (3d Cir.), cert. denied, 449 U.S. 858, 66 L. Ed. 2d 73, 101 S. Ct. 158 (1980) (counsel's affidavit sufficient to explain basis for tactical decision).
Defendant suggests that if factfinding by the district court is needed, we should remand so that the hearing can take place in the criminal action. Defendant cites to a memorandum order of this court in which that procedure was followed. United States v. Williams, 588 F.2d 825 (3d Cir. 1978) (mem.), referred to in United States v. Williams, 631 F.2d 198, 199 (3d Cir. 1980). We do not know the basis for the action in the earlier Williams case, but we find persuasive reasons to follow the weight of our precedent that this issue should be raised in a collateral proceeding under 28 U.S.C. § 2255. Trial counsel will ordinarily handle the criminal action through the appeal stages. Patently, an ineffective assistance of counsel attack will not be launched by trial counsel. If we were to permit such a challenge to be heard in the criminal action, we would encourage a change of counsel with its concomitant inefficiency and delay. ...