UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 22, 1985
UNITED STATES OF AMERICA
GLEN E. SLAYMAN, APPELLANT.
On Appeal from the United States District Court for the Western District of Pennsylvania, (Crim. No. 83-00028-01), (Honorable Rabe F. Marsh)
MEMORANDUM OPINION OF THE COURT
Before: ADAMS, WEIS and WISDOM,*fn* Circuit Judges.
ADAMS, Circuit Judge
Defendant Glen E. Slayman appeals the district court's denial of his motion to vacate his conviction and sentence and to grant a new trial. Because the denial of defendant's motions was not in error, we will affirm the judgment of the district court.
Slayman was a building contractor operating his own company, Arrow Engineers and Consultants, Inc. He devised a scheme to defraud churches of money by promising that the could use his contacts at the Mellon Foundation to obtain funds for proposed construction.
Defendant professed to be a born-again Christian and made representations to ministers and other church representatives that he was a church builder. In this regard, Slayman sought out churches in need of funds to finance construction of church-related buildings and claimed to have influence with the Mellon Foundation, which occasionally helps to finance such construction projects. In fact, his only connection with Mellon activities was an acquaintance who was a teller at a Mellon Bank branch office.
Slayman informed the churches that architectural drawings were a prerequisite to obtaining a foundation grant and claimed that Clarence Blezard, an architect, also had influence with the Mellon Foundation. Some of the churches thereafter signed contracts with Blezard to obtain the required drawings. In fact, Blezard shared office space with Slayman and defendant deposited the checks for the architect's fees into his own account. In this way, Slayman fraudulently received $140,000.
On June 2, 1983, a jury convicted Slayman of twelve counts of mail fraud in violation of 18 U.S.C. § 1341 (1982), and three counts of transporting an individual in interstate commerce to execute a scheme to defraud in violation of 18 U.S.C. § 2314 (1982).
At trial, Slayman was represented by Samuel Orr, Esq., who had been a practicing attorney for eighteen years. Orr had been an Assistant United States Attorney for eight years and in 1977 returned to private practice, with a specialty in criminal law. Orr began representing Slayman in 1980 when some of defendant's bank records were subpoenaed. After the government indicted Slayman on March 2, 1983, Orr had a 4-1/2 hour meeting with Slayman and his wife. Thereafter, until the beginning of the trial in June, Orr met with defendant two or three times a week for periods ranging from one to two hours.
During these numerous meetings, neither defendant nor his wife ever informed Orr that Slayman had been seeing a therapist since 1979 or that he was then taking medication for a mental condition. Orr testified that because he found Slayman very helpful in preparing for trial he did not feel it necessary to make inquiries into defendant's psychological history. Orr observed that Slayman had a tendency to ramble when answering questions but gave such behavior no special significance. The attorney considered this speech pattern to be consistent with defendant's character as an overpowering salesman. Moreover, according to Orr, Slayman appeared to understand the charges and the issues in the case and was knowledgeable of which witnesses would be helpful and harmful.
Approximately ten days before trial, Orr received a letter from Dr. George Demos, a clinical psychologist who had treated Slayman occasionally since 1980. App. at 107a. On his own initiative, defendant apparently obtained the letter to secure a continuance. In the letter, Dr. Demos stated that Slayman had "suffered serious physical and emotional damage" as a result of a fall from a scaffold. The psychologist concluded that defendant should not be permitted to testify in court. Because he believed the letter was too ambiguous, Orr did not present it to the district court.
At trial, Orr noticed that Slayman's ability to respond to questioning "deteriorated somewhat" but attributed this condition to the pressures at trial and defendant's lack of sleep. One example of his unusual behavior was his claim that he had done some investigative work on a mission for the President. App. at 128a. Orr did not give serious consideration to a defense of insanity because there were only a few isolated statements that could be characterized as unusual or bizarre. After the jury rendered its verdict, Orr believed that Slayman had regained his composure. Therefore he did not request a psychological evaluation of defendant before sentencing.
Orr appealed the conviction and sentence to this Court. Thereafter Slayman obtained his present counsel who withdrew the appeal and then filed in district court a motion to vacate the sentence and for a new trial pursuant to 28 U.S.C. § 2255. The basis of the motion was that the failure to prepare and utilize an insanity defense constituted ineffective assistance of counsel. The new counsel also filed a motion for a new trial on the basis of newly discovered evidence of insanity and because defendant was incompetent to stand trial.*fn1
In support of these motions, defendant submitted a letter written by Dr. Demos which gave the opinion that Slayman was suffering from undifferentiated schizophrenia. App. at 6a. The new counsel also had defendant examined by a psychiatrist, Dr. Bowman. After reading several background reports and examining defendant twice, Dr. Bowman concluded that Slayman was suffering from a manic depressive illness. The psychiatrist was unable to state conclusively whether defendant would have been unable to conform his conduct to the law at the time the crimes were committed.
In March of 1984, the district court held two hearings on defendant's motions. It was then agreed that Slayman should be sent to the United States Medical Center for Federal Prisoners in Springfield, Missouri, for a ninety-day psychiatric evaluation. After Slayman's stay at Springfield ended, the Center prepared a diagnostic report for the court on the basis of first hand observation, extensive testing, and copies of the prior psychiatric evaluations. The staff was unable to reach any conclusion regarding Slayman's past mental status. With respect to his current condition, the staff found Slayman to be depressed but not actively psychotic.
After reviewing the Springfield report and the transcripts of the two March hearings, the district court denied defendant's post-trial motions in a memorandum opinion and order on July 23, 1984. Because of the extended period of observation by the staff at Springfield as compared to the other psychiatric evaluations, the district judge considered the Springfield report "to carry much greater weight" than, for example, Dr. Bowman's report. The district court's reading of the medical evidence led it to conclude that Slayman was not insane at the time the acts were committed and had not been incompetent to stand trial. Accordingly, because he did not find defendant legally insane, the district judge also dismissed the petition regarding ineffective assistance counsel for failing to assert the insanity defense.
Defendant argues on appeal that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney did not investigate or assert at trial the defense of insanity. The standard by which to evaluate an ineffective assistance of counsel claim has been set forth by the Supreme Court in Strickland v. Washington, 104 S. Ct. 2052 (1984). The Court stated that the benchmark for judging such a claim is whether counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 2064. To succeed on an ineffective assistance of counsel claim, the defendant must demonstrate two things: first, that counsel's performance was deficient, i.e., that counsel made errors so serious that his representation fell below an objective standard of reasonableness thereby not functioning as the "counsel" guaranteed by the Sixth Amendment; and second, that the deficient performance prejudiced his defense. Id. at 2064-65.
In making an ineffectiveness determination, the Court stressed that the particular facts of each case must be considered. The inquiry is whether counsel's performance was reasonable considering all the circumstances. And there is a strong presumption that a counsel's actions fall "within the wide range of reasonable professional assistance." Id. at 2066. In the present case, the district judge found that Orr's failure to pursue a defense of insanity was reasonable.
Orr was an experienced trial attorney and had frequent communications with defendant. Other than the fact that defendant occasionally provided rambling answers, nothing in his pre-trial behavior should have put Orr on notice that an investigation into defendant's mental condition would be appropriate. In addition, Orr knew of Slayman's reputation in the community in general and specifically through mutual friends. Arguably, when Orr received Dr. Demos' letter ten days prior to trial, counsel might have taken some action. However, the primary purpose of the letter was Slayman's attempt, apparently without consulting Orr, to obtain a continuance. Because the letter was vague, Orr did not act on it. We cannot say that the district court erred in concluding that the failure to pursue an insanity defense was reasonable under the circumstances.
Even assuming Orr had been deficient in failing to investigate the insanity defense, Slayman must also demonstrate actual prejudice to prevail on his motion. In light of the conflicting and inconclusive psychiatric evidence, and in particular the difficulty of proving insanity throughout the multi-year period during which the fraud took place, it is doubtful whether such a showing has been made.
Because Slayman's ineffective assistance of counsel claim appears to meet neither prong of Strickland, we cannot say that the district court erred in ruling that Orr rendered constitutionally adequate "counsel."
Defendant also argues that a new trial should be granted because the evidence of insanity constitutes newly discovered evidence under Fed. R. Crim. P. 33. This Court has established five requirements to be met before a district court may grant a new trial on the ground of newly acquired evidence:
(a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976); see also United States v Herman, 614 F.2d 369, 371 (3d Cir. 1980) (reaffirming test).
The government concedes that defendant can meet three of the requisite complaints: a) the evidence is newly discovered; c) such evidence is not merely cumulative; and d) the evidence is material. The government contends, however, that the other two tests are not met: b) due diligence on the part of the movant; and e) the evidence would probably produce an acquittal.
Consistent with his claim that Orr's representation was ineffective, defendant in one sense concedes that Orr did not act with due diligence. Slayman argues, however, that if the district court's ruling that Orr rendered reasonably effective assistance is correct, then a necessary corollary is that Orr was duly diligent. The implication of this argument is that anytime there is newly discovered material evidence, either the trial attorney's failure to uncover it amounts to ineffective assistance of counsel or the failure to discover it does not violate the Rule 33 due diligence requirement. Such reasoning would in effect read the due diligence requirement out of a Rule 33 determination, because a new trial would have to be granted whether or not the attorney practiced due diligence.
We reject such a conclusion. On the contrary, we believe there is a middle ground between the standard the Sixth Amendment imposes on an attorney and the due diligence requirement of Rule 33. It is possible for an attorney's failure to investigate a line of inquiry not to constitute ineffective assistance of counsel and, at the same time, violate the due diligence requirement of Rule 33. The Tenth Circuit implicitly reached this conclusion -- that a gap exists between Rule 33 due diligence and Sixth Amendment ineffective assistance of counsel. See United States v. Allen, 554 F.2d 398 (10th Cir.), cert. denied, 434 U.S. 836 (1977). Similar to the present case, in Allen defendant's counsel received a letter from a psychiatrist indicating that the defendant was not competent. The Tenth Circuit affirmed the trial court's decision that although the attorney's decision not to assert the insanity defense was not violative of the Sixth Amendment it could preclude a due diligence finding for purposes of a new trial under Rule 33.
We hold that defendant did not meet the due diligence requirement of Rule 33. Dr. Demos' letter should have put Orr on notice that some psychiatric investigation was warranted for purposes of Rule 33. In addition, the time period for newly discovered evidence begins after trial. Consequently, Orr can be charged with a lack of due diligence for failing to take notice of Slayman's unusual behavior at trial.
There is also a question whether Slayman can meet the final requirement of Iannelli -- the probability of success on a new trial. In light of the conflicting medical testimony, we are unable to conclude that Slayman would succeed at a new trial. Thus, we cannot say that the district court erred in denying defendant's motions based on newly discovered evidence.
For the above mentioned reasons, the judgment of the district court will be affirmed.
TO THE CLERK:
Kindly file the foregoing opinion.