UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 6, 1998
RICHARD C. MCNAUGHTON, Defendant
UNITED STATES OF AMERICA, Plaintiff
The opinion of the court was delivered by: BRODY
MEMORANDUM AND ORDER
Richard McNaughton ("McNaughton") was indicted on March 26, 1993 as part of a seventeen-defendant, eighty-nine count indictment charging evasion of excise taxes on fuel oil, and related offenses. In a superseding indictment filed on September 19, 1993, McNaughton was charged with 24 counts of conspiracy, wire fraud, tax evasion, and RICO forfeiture. On May 23, 1994, after a 20-day trial, McNaughton was convicted on all counts. On October 25, 1994 he was sentenced to a term of 40 months imprisonment, five years of supervised release and a $ 1400 fine.
McNaughton appealed his conviction and sentence to the Third Circuit, raising, inter alia, the issue of whether the sentencing court erred "in determining that it did not have the authority to depart on the grounds of the defendant's medical condition." The Court of Appeals affirmed McNaughton's sentence and ruled that the sentencing court's "refusal to depart was based not on a belief regarding its authority to depart,... but on McNaughton's failure to present evidence sufficient to warrant an exercise of the court's discretion under section 5H1.4." U.S. v. Veksler, 62 F.3d 544, 551 (3d Cir. 1995). McNaughton's petition for writ of certiorari to the U.S. Supreme Court was denied on January 16, 1996, 516 U.S. 1075, 133 L. Ed. 2d 731, 116 S. Ct. 780 (1996). McNaughton surrendered to begin serving his sentence on December 5, 1995.
On April 18, 1997, McNaughton filed a motion to vacate, set aside or correct his sentence, under 28 U.S.C. § 2255. His motion asserted two grounds for relief: 1) that his trial counsel's failure to adequately support his motion for a downward departure under U.S.S.G. § 5H1.4 denied McNaughton of his Sixth Amendment right to the effective assistance of counsel, and 2) that the court imposed sentence based on a misapprehension either of relevant facts or of the extent of its discretion to grant a downward departure, in violation of the Due Process Clause. After directing the government to file a response, I acceded to several requests from McNaughton that the government's time to respond be extended so that medical records could be obtained and shared with the government, with the prospect of reaching some accommodation of McNaughton's concerns. No settlement was reached, and the government filed its response on September 11, 1997. McNaughton then requested and received permission to file a reply brief, which he filed on November 20, 1997.
The reply brief included as exhibits two medical reports, one from a pulmonologist who reviewed McNaughton's treatment records, and one from a psychiatrist who evaluated McNaughton in the fall of 1995. An evidentiary hearing was held on April 1, 1998, at which time McNaughton offered the testimony of John Rogers Carroll, who testified as an expert on the prevailing standards of skill and care in the Philadelphia area criminal defense bar in 1994 and currently. McNaughton also offered into evidence Mr. Carroll's affidavit and the affidavit of McNaughton's trial counsel, Robert Welsh. The following constitute my findings of fact and conclusions of law with regard to McNaughton's 2255 motion.
A. Findings of Fact
At the time of sentencing, McNaughton was represented by Robert Welsh, who had represented McNaughton at trial. Prior to sentencing on October 25, 1994, Welsh was aware that McNaughton, who was 62 at the time of sentencing, had pulmonary problems; he had observed McNaughton using a bronchodilator inhaler once or twice. Welsh was aware that McNaughton smoked cigarettes. Welsh was also aware, at the time of preparation for sentencing, that McNaughton's wife had great concerns regarding her husband's health, specifically that she thought he was drinking too much and that he had serious pulmonary problems.
Welsh undertook to gather evidence to present to the sentencing court in support of a downward departure from the applicable guideline range on the basis of McNaughton's health. Welsh determined that McNaughton's alcohol use would not be a possible ground for departure, but that his pulmonary problems would be.
Welsh asked McNaughton and his wife on several occasions who he should contact concerning the extent and seriousness of McNaughton's health problems. On each occasion, McNaughton and/or his wife directed Welsh to consult McNaughton's treating physician, Dr. Winslow Murdoch. Dr. Murdoch is not a pulmonologist. Welsh contacted Dr. Murdoch, and after several requests,
obtained the following report:
Mr. McNaughton has advanced, chronic, obstructive pulmonary disease. His lung function tests show that he has little reserve to tolerate any significant pneumonia or severe bronchitis. These would be life-threatening. His lung volume indicates that his disease is severe and that he may soon need to be on oxygen therapy for life-support/prolongation at home.
In his affidavit, Welsh described his response to Murdoch's report:
12. I did not ask Dr. Murdoch for any further elaboration upon the report and I did not seek an examination by any other physician. My reason for not seeking such additional information was that I spoke with Dr. Murdoch on the telephone in advance of the sentencing and, to the best of my recollection, after I received his faxed note. I asked Dr. Murdoch specifically about the implication of his diagnosis for Mr. McNaughton's life span. I also told him that it was important because it could influence the length of time he would be sentenced to jail.
13. Dr. Murdoch told me during the telephone conversation that Mr. McNaughton would "be fine if he would just stop smoking." I recall this not only because it was an important issue, but also because, at sentencing, government counsel made an observation to the same effect about Mr. McNaughton's health problem.
14. My decision then to go no further was based upon the fact that Dr. Murdoch plainly had a basis for an evaluation of Mr. McNaughton, Dr. Murdoch knew the importance of the issue, and yet would not give me any basis upon which to argue that Mr. McNaughton faced a likelihood of a shortened life span.
Welsh Affidavit, at PP12-14.
At sentencing, Welsh submitted Dr. Murdoch's faxed report and argued that "this material should inform the Court's exercise in sentencing discretion and that it should be the basis for a departure. I cannot tell the Court that this man is [sic] time bomb, but I do believe that he is in a substantially different position health wise than many, many other people. And finally, I do ask that it be part of the record for the Bureau of Prisons." (Transcript of Sentencing Hearing, 10/25/94, pp. 32-3).
After hearing argument from the government on this issue, I denied Welsh's motion for a downward departure, stating that "...the Defendant has not met ... his burden in showing -- the Court his right to depart and -- for that reason, I'm not going to consider a departure." (Transcript of Sentencing Hearing, 10.25,94, p. 33) I then sentenced McNaughton to a term of 40 months imprisonment, based on a guideline range of 37 to 46 months.
In the fall of 1995, when McNaughton was still free on bail pending his appeal, Welsh arranged to have McNaughton evaluated by Dr. Richard F. Limoges, a psychiatrist with experience with addictions. Dr. Limoges' report, submitted to the court in 1995 as part of a request that McNaughton be permitted to remain free on bail pending determination of his petition for writ of certiorari to the Supreme Court, and also submitted as part of the current § 2255 motion, included the opinion that McNaughton
suffers from two very serious progressive addictions, namely that of alcoholism and that of addiction to nicotine. They are both of sufficient severity to compromise his health and both are progressive and fatal. If Mr. McNaughton does not receive treatment for these addictions, he will die before his time in a ghastly manner.
(Limoges report, Exhibit C to defendant's reply memorandum)
A 10/26/95 letter from Dr. Murdoch, also prepared at Welsh's request for submission as part of a bail request, contained the opinion that Mr. McNaughton had an "estimated mortality in less than five years, based on his lung function." As part of McNaughton's § 2255 motion, McNaughton's current counsel requested that Dr. Scott Manaker, a pulmonologist, review McNaughton's medical records from Dr. Murdoch and the Bureau of Prisons. In a report prepared August 1, 1997, Dr. Manaker offered the opinion that "Mr. McNaughton has severe chronic obstructive pulmonary disease, with elements of both emphysema and asthma. His life expectancy is less than five years." Dr. Manaker's report noted that Dr. Murdoch had reached the same conclusion in October 1995, and concurred in that prognosis. (Manaker report, Exhibit B to defendant's reply memorandum).
At the evidentiary hearing held on April 1, 1998, John Rogers Carroll, an experienced and respected member of the local criminal defense bar, testified and adopted his affidavit, in which he stated that McNaughton
faced a level 21 sentence of up to 47 months. He had no other chance for downward departure apart from the health issue. While Dr. Murdoch's testing and observations gave good grounds to seek evidence of "extraordinary infirmity", his letter could not possibly carry the defense burden of proof on the requested departure. Counsel was therefore obliged, in my opinion, to seek the medical evidence needed from a pulmonologist (not a family practitioner) once he was on notice of this medical condition.
(Carroll Affidavit at P13). Carroll went on to opine that "failure to pursue this evidence is not consistent with the standards of skill and care expected in the Philadelphia federal Criminal Defense bar in 1994 or today." Id. at P14.
B. Conclusions of Law
1. Ineffective Assistance of Counsel
A Sixth Amendment claim alleging ineffective assistance of counsel requires a showing that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment", and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reasonable." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In evaluating the first part of the test, I am mindful that "no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-9. I am therefore bound to "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.'" Id. at 689 (citation omitted).
The essence of McNaughton's ineffective assistance of counsel claim is that a reasonably competent attorney, when faced with the inconclusive report offered by Dr. Murdoch on October 13, 1994, would have persevered, either to obtain more persuasive language from Dr. Murdoch, or to obtain an evaluation and report from a pulmonary specialist such as Dr. Manaker. McNaughton argues that his trial counsel's conduct, in failing to pursue either course, fell below an objective standard of reasonable representation, and that he was prejudiced as a result.
As noted in Strickland, there is no mechanical rule I can employ to determine whether counsel's conduct falls short of the Sixth Amendment's strictures. The American Bar Association guidelines are informative, as is the testimony of an experienced criminal defense attorney like Mr. Carroll. Ultimately, however, this is a legal determination informed by experience and judgment. Mr. Carroll's opinion notwithstanding, I find no basis in the record before me to conclude that Mr. Welsh's investigation with regard to McNaughton's health status at the time of sentencing constituted "error so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id.
My reasons for this conclusion are several. McNaughton does not, and cannot argue that Welsh failed to investigate the possibility of moving for downward departure based on McNaughton's poor health, or that he didn't understand his burden with regard to this sentencing issue. Cf., U.S. v. Day, 969 F.2d 39, 43 (3d Cir. 1992)(counsel ineffective for failing to research and understand guideline issue). Welsh knew that his client was ill, and that it was possible to move for downward departure based on an extraordinary physical impairment. Welsh asked his client and his client's wife who could best evaluate McNaughton's health status; he then obtained a report from McNaughton's treating physician, found it unsatisfactory on an issue likely to persuade a judge to grant a downward departure, i.e., life expectancy, and went back to the doctor, at least once, in an attempt to obtain a more strongly worded report. This conduct clearly meets the "investigation" requirement of effective representation. Cf., United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997)(counsel ineffective for rejecting insanity defense without conducting any investigation into its strengths or weaknesses); Glass v. Vaughn, 860 F. Supp. 201 (E.D. Pa. 1994) (Yohn, J.), rev'd on other grounds, 65 F.3d 13 (3d Cir. 1995) (counsel failed to conduct proper interview of defendant, thereby failing to discover possible posttraumatic stress defense).
Nor can McNaughton argue that Dr. Murdoch was not qualified to offer an expert opinion regarding McNaughton's lung disease, or that his opinion would carry less weight than that of a pulmonologist. Cf., Rogers v. Israel, 746 F.2d 1288 (7th Cir. 1984)(habeas petitioner entitled to remand on ineffective assistance of counsel claim for, inter alia, evidentiary hearing on issue of whether physicians consulted by defense counsel could have been qualified as an expert). As recognized by Welsh, Dr. Murdoch "plainly had a basis for an evaluation of Mr. McNaughton, Dr. Murdoch knew the importance of the issue, and yet would not give ... any basis upon which to argue that Mr. McNaughton faced a likelihood of a shortened life span." (Welsh Affidavit at P14). McNaughton did not seek to test or impeach the credibility of either Welsh or Dr. Murdoch by having them appear at the hearing.
Unlike ineffectiveness cases where counsel's conduct is challenged as not being the "result of sound trial strategy", Strickland, this case presents the question of how far counsel need go in pursuit of that strategy. Faced with this less-than satisfactory report from his client's treating physician, as to an issue which may have persuaded a sentencing court that a sentence below the guideline range was warranted, what should competent trial counsel have done? Mr. Carroll testified that
there is just no doubt that he was obliged, keep in mind that this was his client's only chance for a downward departure, and there is no doubt in my mind that he had to do whatever he could to support that claim. And it clearly means that when he got that unsatisfactory fax from Dr. Murdock [sic] that he should have gone to somebody knowledgeable in the field such as a pulmonologist.
Transcript of evidentiary hearing, 4/1/98, at p. 12).
Mr. Carroll's opinion would be more persuasive if Dr. Murdoch were not himself knowledgeable in the field, but that is not the case. No one disputes that Dr. Murdoch was qualified to offer an expert opinion regarding McNaughton's health and life expectancy. Mr. Carroll testified that McNaughton is not required to show that Welsh would have "struck gold", only that Welsh did not even look. The record makes plain, however, that Welsh did look, to an eminently reasonable and credible source - the treating physician, and looked again, and came up short. In essence, Carroll would have me read into the Sixth Amendment guarantee of effective assistance of counsel a requirement that an attorney, when trying to support his or her case, is obliged to continue to consult with more and more experts (as Dr. Murdoch undeniably was) until he or she gets the answer which is likely to carry the day. That may be the standard of practice for personal injury attorneys, and it may even be, as Mr. Carroll opines, the standard of practice in the Philadelphia criminal defense bar, but it is not what the Sixth Amendment requires of criminal defense attorneys. The purpose of the Sixth Amendment effectiveness guarantee "is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at 689.
An even more troubling aspect of this case is the question of what it was that, but for trial counsel's failure to further pursue expert opinion, could or should have been discovered and placed before me at the time of sentencing. McNaughton's current counsel argued, in his brief and at the hearing, that he did not believe that I intended to impose what would effectively be close to a life sentence on Mr. McNaughton, and that Welsh could have put the evidence of McNaughton's diminished life expectancy in evidence at the time of sentencing in 1994. No evidence, however, has been presented to indicate that a five-year, or indeed any-year, prognosis for McNaughton existed as of October 1994. Dr. Manaker's report reviews Dr. Murdoch's records, and concurs in Dr. Murdoch's August 1995 diagnosis that McNaughton has advanced emphysema, with a five-year life expectancy. Dr. Manaker's report refers generally to poor lung function test results in 1994 and "similar" ones in 1995, but he nowhere offers the opinion that those tests would support a five-year prognosis as of October 1994. Assuming that Dr. Manaker, like Dr. Murdoch, was asked the necessary questions by the attorney requesting the report, it is not at all clear that trial counsel could have obtained a more favorable report in 1994.
Conceding that Welsh was on notice that his client was or may have been seriously ill, and even conceding that a departure under 5H1.4 based on an extraordinary physical impairment was his client's best hope,
I cannot conclude that Welsh's ultimately unsuccessful efforts to meet his evidentiary burden in this regard fell below an objective standard of reasonableness. As a result, McNaughton's Sixth Amendment claim fails.
2. Due Process Claims
McNaughton makes two due process claims - that he was sentenced under a misapprehension of fact and/or that he was sentenced under a misapprehension of law. As to the first, McNaughton asserts that if at the time of sentencing, I based my decision regarding McNaughton's eligibility for a downward departure on a fact (that McNaughton did not have a significantly decreased life expectancy relative to other people his age) which was not true, then his sentence is constitutionally infirm. McNaughton relies on Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948) and U.S. v. Tabares, 86 F.3d 326 (3d Cir. 1996) in support of this argument. As to the second, McNaughton relies on Koon v. U.S., 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996) to argue that McNaughton was sentenced based on an interpretation of my discretion to depart from guideline ranges which has since been determined by the Supreme Court to be unnecessarily narrow.
McNaughton's misapprehension of fact argument fails because, as noted in my findings regarding his Sixth Amendment claim, McNaughton has not demonstrated that the fact of his diminished life expectancy existed at the time of sentencing. Moreover, it seems highly problematic to couch a claim regarding after-discovered evidence of ill health in due process terms, as it may often be the case that a terminal illness or serious disability will not be discovered until after sentencing. Unlike Townsend and Tabares, upon which McNaughton relies, and which both involved sentences imposed based on inaccurate information regarding the defendant's prior record, McNaughton was sentenced based on contemporaneously accurate information regarding his health.
To comport with the Due Process clause, sentences must be based on facts having "some minimal indicium of reliability beyond mere allegation". Tabares, 86 F.3d at 328, citing U.S. v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982). McNaughton is not arguing that he was sentenced based on false or unreliable information, but rather on an arguably incomplete analysis of that information. I am not aware of any case which casts such an argument in due process terms; such a formulation would open up for due process challenge every sentence imposed without benefit of every possibly relevant bit of information and expert opinion about the defendant. This, it seems, is just a recasting of the Sixth Amendment argument; for the same reason that it is not ineffective representation to fail to put every possibly relevant piece of information before the court at sentencing, it does not violate due process to sentence a defendant based on accurate and relevant information which, theoretically, might have been more persuasively presented.
McNaughton's misapprehension of law argument requires little discussion, as this precise issue was argued to and decided by the Court of Appeals. The Court of Appeals affirmed McNaughton's sentence and ruled that the sentencing court's "refusal to depart was based not on a belief regarding its authority to depart,... but on McNaughton's failure to present evidence sufficient to warrant an exercise of the court's discretion under section 5H1.4." U.S. v. Veksler, 62 F.3d at 551. McNaughton argues that since he was sentenced, and his sentence affirmed, before the Supreme Court decided Koon v. U.S., 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996), he is entitled to resentencing under the standard of greater judicial discretion in applying and departing from the guidelines announced in that case. I understand this argument to say that if McNaughton had been sentenced with the benefit of the Koon decision, a sentencing court would have had greater latitude in accepting the evidence that was presented as sufficient to support a downward departure.
This argument fails because physical condition was a discouraged factor under the sentencing guidelines pre-Koon, and it remains so post-Koon. As such, Koon instructs that "if the special factor is a discouraged factor... the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Id. at , 116 S. Ct. at 2045, 1996 U.S. LEXIS 3877, *27, see also U.S. v. McQuilkin, 97 F.3d 723 (3d Cir. 1996)(discussing standard for departure based on physical impairment). Although some pre-Koon sentencing decisions may indeed have been made based on a misapprehension of the proper breadth of sentencing discretion, McNaughton has pointed to nothing either in the record or in the post-Koon case law to indicate that his motion for a downward departure was considered under a narrower reading of the guidelines than that authorized by the Supreme Court in Koon.
I therefore conclude that he was not sentenced based on a misapprehension of law in violation of the Due Process clause.
AND NOW, this 6th day of April, 1998, upon consideration of defendant/petitioner's motion to set aside, vacate or correct sentence under 28 U.S.C. 2255, the government's response, defendant/petitioner's reply brief and attached exhibits, and after an evidentiary hearing, IT IS ORDERED THAT defendant/petitioner's motion is DENIED for the reasons stated in the accompanying memorandum. There is no basis for issuance of a certificate of appealability.
Anita B. Brody, J.