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July 23, 1984


The opinion of the court was delivered by: MARSH

 The defendant, Glen E. Slayman, has filed a motion to vacate sentence alleging ineffective assistance of counsel. Slayman was convicted by a jury on June 23, 1983 of twelve (12) counts of mail fraud in violation of 18 U.S.C. § 1341 and three (3) counts of transporting an individual in interstate commerce in execution of a scheme to defraud in violation of 18 U.S.C. § 2314. On September 6, 1983 he was sentenced to five (5) years imprisonment on each count to run concurrently.

 Slayman was a building contractor operating through his own company, Arrow Engineers and Consultants, Inc. He devised a scheme to defraud churches of money by promising the pastors of said churches or other members of the congregation that he could obtain funds to pay for proposed construction utilizing his contacts at the Mellon Foundation of Pittsburgh. Defendant obtained in excess of $ 140,000 from twelve churches or church organizations by way of his fraudulent representations.

 This was done by a well thought out scheme over a period of approximately six (6) years. Slayman, who purported himself to be a born-again Christian and church builder, actively sought out churches who were in need of funds to finance construction of churches, schools and other church-related buildings. Using the techniques of an accomplished con-artist, Slayman made representations to ministers, church representatives, and congregation members that he possessed the expertise and ability to obtain funding for all proposed construction projects. In particular, he professed to have a contact who had influence with the Mellon Foundation and who could obtain grants from said Foundation to finance church construction projects. In fact, his contact with the Mellon Foundation was a teller who worked at a branch office and had no connection with the Foundation or any expertise in obtaining funding. Defendant also represented he had contacts with an attorney who sat on the board of the Mellon Foundation. This representation was a complete falsehood.

 It was further part of the scheme to defraud that Slayman represented to the churches that he had an architect with influence with the Mellon Foundation and that architectural drawings were absolutely necessary before a grant could be considered for a construction project. In fact, the architect involved shared business offices with Slayman and Slayman received all the money paid to said architect.

 A percentage of the cost of the construction project had to be obtained from each church to pay for architectural drawings. It was through this method of obtaining a fee for architectural drawings that Slayman was able to collect over $ 140,000. In fact, construction was never accomplished and Slayman utilized delay tactics when he was questioned by the various church organizations as to when they would receive their grants.

 Defendant's primary ground to support his motion to vacate is an assertion that his trial counsel knew or should have known that "the conduct which led to the indictment in this case was the product of mental disease or illness and that the defense of insanity should have been asserted." (Emphasis supplied.)

 Hearings were held on this issue on March 7 and March 26, 1984. Subsequent to said hearings, the parties stipulated that sentence should be vacated pending the outcome of a ninety (90) day study at the United States Medical Center for Federal Prisoners. The defendant was, therefore, committed to the Medical Center at Springfield, Missouri, for evaluation of his current and prior mental status. Accordingly, on April 5, 1984, the court entered an order staying a ruling on defendant's motion to vacate until such time as the court had an opportunity to review and consider a report from Springfield Medical Center. Said report was received by the court on July 16, 1984.

 After review of the report, the transcripts of hearings held on the motion to vacate and consideration of the files and records of this case, the court makes the following findings of fact and conclusions of law:

 As has been stated above, the primary issue to be considered in this matter is whether defendant's counsel knew or should have known that the conduct which led to the charges against defendant was the product of mental disease or illness. In addressing ourselves to this issue, we look to the hearing testimony and the report from Springfield Medical Center.

 Testimony of Defense Counsel

 The testimony of defendant's counsel, Samuel Orr, reveals the following. Defendant's counsel has been an attorney since October, 1966 and has therefore been in practice almost eighteen years. His practice concentrated initially on the defense in criminal cases until January, 1968, when he was appointed an Assistant District Attorney in Beaver County, Pennsylvania. In September, 1969, Mr. Orr was appointed as an Assistant United States Attorney in the Western District of Pennsylvania and served in this post until September, 1977, at which time he returned to private practice specializing in criminal law.

 His representation of the defendant in this case began with a consultation in 1980 when defendant's bank records were subpoenaed from Mellon Bank. Prior to indictment in this matter, Mr. Orr spent approximately ten hours in meetings with the defendant discussing the probability of indictment and potential litigation.

 Subsequent to the indictment, Mr. Orr had an initial meeting with defendant and his wife for approximately four and one-half hours. After said initial meeting, Mr. Orr met with defendant two or three times a week for periods ranging from one to two hours. These meetings continued from the time of indictment, March 2, 1983 to the commencement of trial on June 13, 1983. Mr. Slayman would supply his counsel with documents and statements for use in his defense and then meetings were held to discuss these documents after counsel had reviewed them in light of the indictment.

 Prior to trial, defendant made no indication to his counsel that he was under treatment or taking medication for a mental condition. Counsel knew defendant to have a business reputation of being successfully and gainfully employed in his own business for approximately thirty (30) years. Furthermore, neither defendant nor his wife volunteered information to counsel that defendant had a prior history of a mental condition.

 In addition, it was counsel's testimony that defendant exhibited no behavior which would raise a question in counsel's mind that defendant was suffering from any mental disease, defect or disorder. Counsel further testified that he found his client to be direct in denying the charges against him, responsive to the major issues in the case, and knowledgeable of which witnesses could help him and which witnesses could hurt him in his defense. Counsel did notice that defendant's ability to respond deteriorated somewhat, but attributed this to defendant's failure to get adequate sleep and the pressure a criminal trial imposes on a defendant. ...

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