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UNITED STATES v. LENA

September 28, 1987

United States of America
v.
Joseph M. Lena



The opinion of the court was delivered by: SIMMONS

 Before the Court is a motion to vacate a judgment of sentence and for a new trial filed by defendant, Joseph M. Lena, pursuant to 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel.

 Defendant filed this motion prior to expiration of his parole, therefore, this Court has jurisdiction. Mabry v. Johnson, 467 U.S. 504, 507, 104 S. Ct. 2543, 2546 n.3, 81 L. Ed 2d 437 (1984), Swanger v. Zimmerman, 750 F.2d 291, 293, n.1 (3d Cir. 1984).

 Defendant cites fourteen factual situations wherein he alleges the ineffective assistance of his counsel and claims that the Court's individual and collective consideration of these fourteen factual situations will establish that the defendant's counsel's errors were so serious that said counsel was not functioning effectively, and hence, defendant was denied effective legal representation contrary to the requirement of the Sixth Amendment to the United States Constitution.

 The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), held that the proper standard for the performance of a defendant's attorney in a criminal case is that of reasonably effective assistance. To require reversal of a conviction based on ineffective assistance of counsel, the defendant must show:

 
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Strickland Id. at page 693.

 The defendant must also show that counsel's representation fell below an objective standard of reasonableness.

 The United States Supreme Court recognized that the purpose of the effective assistance of counsel guarantee of the Sixth Amendment is not to improve the quality of legal representation, but to insure that criminal defendants receive a fair trial. However, the Supreme Court of the United States cautioned against the use of hindsight in assessing an attorney's performance by saying:

 
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 71 L. Ed 2d 783, 102 S. Ct. 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, 350 U.S. 91, 101, 100 L. Ed 83, 76 S. Ct. 158. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."

 Strickland, Id. at pps. 694, 695.

 As hereinabove stated, the United States Supreme Court advanced a two pronged test in Strickland, Id at page 693, as follows:

 
"First, the defendant must show that counsel's performance was deficient", and "second, the defendant must show that the deficient performance prejudiced the defense."

 The District Court has granted defendant great latitude to enable him to introduce evidence to support his allegations of ineffective assistance of counsel.

 After a careful review of the voluminous transcripts and the numerous exhibits, this District Court finds that defendant has not met the burden of the Strickland test.

 Defendant's trial counsel possesses broad experience as a trial attorney. From 1964 to 1968, counsel was associated with a large firm in Allegheny County, Pennsylvania, that specialized in plaintiff's litigation. Also, during that period, defendant's counsel tried a homicide case. In 1968, defendant's counsel moved to Greensburg, Westmoreland County, Pennsylvania, where he engaged in both civil and criminal practice of the law for over eleven years. Defendant's counsel testified that he was placed on a panel of Westmoreland County lawyers and was appointed often by the Westmoreland Court of Common Pleas on what were considered as the more significant cases. Defendant's trial attorney further testified that additionally, he had tried approximately eight to ten criminal cases to a jury verdict in the United States District Court for the Western District of Pennsylvania. Said defendant's trial counsel indicated that his practice since 1968, to the time of defendant's trial, primarily had been the trial of criminal cases.

 This Opinion will now address defendant's fourteen contentions.

 1.

 Defendant alleges that defense counsel was ineffective in failing to move to have separate trials for each count of the indictment. The first count of the indictment charged that the defendant unlawfully and willfully obstructed, delayed and affected interstate commerce by attempting to and attaining an alleged sum of $ 8,000.00, from Donald G. Williams and Edmond George Good, Jr., architects in the construction of the Grandview Elementary School; that this alleged sum was obtained by wrongful use of fear and under color of official right by the defendant between July, 1973, and continuing to May, 1977, while the defendant was a member of the Derry Area School Board in Westmoreland County, Pennsylvania. The second count of the indictment charges that the defendant unlawfully and willfully obstructed, delayed and affected interstate commerce by extortion in that he attempted to and obtained an alleged sum of $ 5,000.00, from Desmone and Szalai Associates, and Charles L. Desmone, architects for the construction of the Eastern Westmoreland Area Vocational and Technical School, that the alleged sum was obtained by the defendant by the wrongful use of fear and under color of official right between March, 1974, and continuing until 1976, when the defendant was a member of the School Board for the Eastern Westmoreland Area Vocational Technical School and a member of the joint operating committee for this school board.

 Defendant argues that the counts of the indictment were unrelated and should not have been tried together and the joinder of the two counts gave the United States an undue advantage at the defendant's trial. Defendant further argues that under the entire circumstances of this case, the Court should have and would have severed the two counts, had defense counsel filed a motion for severance.

 Defense counsel admitted that he did not discuss with his client, the defendant, the merits or demerits of trying the counts together. However, defense counsel did assess the strengths and weaknesses of trying both counts simultaneously and decided, "putting them together, I thought you had the chance of knocking Desmone out, with Williams coloring both cases muddy." (H.T. 252) Defense counsel weighed the risk of strengthening the prosecution's case, if the counts were tried simultaneously and made the tactical decision not to seek a separate trial on each count. Under these circumstances, defendant has not established that counsel's performance was deficient. In fact, in retrospect, defense counsel testified, "well, that's a risk, but I'd take it again if I had the chance." (H.T. 252) There is no evidence that defendant's attorney's decision not to move to sever the counts of the indictment for trial, prejudiced the defendant.

  2.

 Defendant alleges that his trial counsel was ineffective in that said counsel generally failed to prepare for trial and that he, said counsel, improperly failed to obtain available facts from the Government by pre-trial discovery.

 During the preliminary interviews between defendant and his counsel prior to trial, defendant informed counsel that defendant, did not receive the payments from Williams and Desmone that were alleged in the two counts of the indictment. Defendant's trial counsel ...


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