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April 6, 1998


The opinion of the court was delivered by: BRODY


 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. *fn1" 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. *fn2" 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, *fn3" 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 ...

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