United States District Court, Middle District of Pennsylvania
May 3, 2002
UNITED STATES OF AMERICA
PAUL J. MANGIARDI, DEFENDANT
The opinion of the court was delivered by: James F. Mcclure, Jr., United States District Court Judge.
This opinion discusses the sole remaining claim in Paul J. Mangiardi's
motion under 28 U.S.C. § 2255 to vacate, set aside or correct his
sentence. The only issue before the court is whether Mangiardi's trial
counsel provided ineffective assistance of counsel by refusing to allow
Mangiardi to testify at trial. The inquiry is straightforward: if
Mangiardi proves that counsel refused to let him testify and that he
suffered prejudice as a result, counsel was ineffective; if Mangiardi
fails to prove either that he was improperly barred from testifying or
that he suffered prejudice, then counsel was not ineffective. The court
held a two-day hearing in which it heard testimony of Mangiardi, his
wife, his sister, and trial counsel. Each person testified to certain
interactions between Mangiardi and trial counsel relating to whether
counsel improperly refused to let Mangiardi testify. Based on our
evaluation of the witnesses' testimony at the hearing, we find that
Mangiardi has failed to prove that trial counsel refused to let him
testify. For this Reason, counsel was not ineffective, and Mangiardi's
§ 2255 motion will be denied in its entirety.
Mangiardi's conviction grew out of a scheme to market health benefit
plans through several companies that he created, controlled, and
operated. While the plans were represented to be fully-funded,
self-insured trusts with backup coverage for claims exceeding premium
contributions, Mangiardi failed to secure either reinsurance or stop-loss
coverage, and he did not have the funds to compensate. Eventually,
policy beneficiaries were left with unpaid claims.
Between April 22, 1987, and March 21, 1988, Mangiardi defrauded two
elderly women, Ruth Waltman and Reba Fleming, of a total of $371,632.00.
He used the proceeds to establish PARCare, a company purported to be
engaged in the business of third-party administration of single-employer
health plans under the Employee Retirement Income Security Act (ERISA).
He issued the women certificates of investment in PARCare.
The purpose of operating PARCare under ERISA was to avoid regulation by
the Pennsylvania Insurance Department. But
PARCare failed to comply with ERISA for various reasons,
including the failure to establish trusts and trust
accounts for each employer and the commingling of funds. The
commingling of funds caused the operation to be in the business of
insurance, for which neither Mangiardi nor his business was licensed.
Also, the business had insufficient capital to operate as an insurance
company. The Insurance Department issued a suspension order for PARCare
and eventually assumed control of the company. Mangiardi sent his son to
Delaware to open a business called 1st Health, and then diverted to 1st
Health funds intended for PARCare. Mangiardi entered into a consent
decree with the Insurance Department and was permitted to operate a
company called West Branch Administrators. Eventually, however, West
Branch Administrators went the way of PARCare, for essentially the same
Mangiardi's operations resulted in large-scale fraud. The plans were
generally marketed to small businesses in need of inexpensive health care
coverage for employees. In all, more than 5,000 of these employees were
covered by the plans during the operation of PARCare, 1st Health, and
West Branch Administrators.
After a grand jury returned a 16-count superseding indictment against
him, Mangiardi was tried and convicted by a jury. The trial relevant to
the instant motion was the second of two trials, which occurred after the
first one was declared a mistrial. Mangiardi was represented at trial by
Patrick Casey of the Federal Public Defender's Office. Mangiardi did not
testify at trial, and at sentencing, he stated that he followed counsel's
advice in not taking the stand.
Mangiardi's conviction was affirmed on appeal. After the United States
Supreme Court denied Mangiardi's petition for a writ of certiorari,
Mangiardi filed a § 2255 motion with this court. On November 27,
2001, we issued an opinion denying each of Mangiardi's claims except for
the claim that, despite his wish to testify at trial, counsel refused to
let him do so.
Over the course of two days in March, 2002, we held a hearing in which
he heard testimony from Mangiardi, his wife, his sister, and trial
counsel. The testimony focused on whether trial counsel denied Mangiardi
his right to testify and whether Mangiardi suffered prejudice as a result
of his failure to testify.
To succeed on a claim of ineffective assistance of counsel, a defendant
must show that (1) the performance of counsel fell below an objective
standard of reasonableness; and (2) the errors of counsel prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687-688, 691-692
(1984). "Both Strickland prongs must be satisfied." George v. Sively,
254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino,
878 F.2d 101, 104 (3d Cir. 1989)). The defendant bears the burden of
establishing ineffective assistance of counsel. Whitney v. Horn,
280 F.3d 240, 258 (3d Cir. 2002).
The first prong requires the defendant to "establish . . . that
counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282
(3d Cir. 2001). "This requires showing that counsel was not functioning
as the `counsel' guaranteed defendant by the Sixth Amendment." Id.
(quoting Strickland, 466 U.S. at 687) (internal quotation marks
omitted). "In assessing counsel's performance, `every effort [must] 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.'" Id. (quoting Strickland, 466 U.S. at 689). "There is a `strong
presumption' that counsel's performance was reasonable." Id. "That is to
say, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy." Id. (quoting Berryman v. Morton, 100 F.3d 1089,
1094 (3d Cir. 1996) (in turn quoting Strickland, 466 U.S. at 689)).
The second prong requires the defendant to "demonstrate that he was
prejudiced by counsel's errors." Id. (citing Strickland, 466 U.S. at
693). "The [movant] must show that `there is a reasonable probability
that, but for counsel's errors, the result of the proceeding would have
been different.'" Id. (quoting Strickland, 466 U.S. at 694). "A
`reasonable probability' is `a probability sufficient to undermine
confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694).
"This standard `is not a stringent one;' it is less demanding than the
preponderance standard." Id. (quoting Baker v. Barbo, 177 F.3d 149, 154
(3d Cir. 1999)). "[A] court must consider the strength of the evidence
in deciding whether the Strickland prejudice prong has been satisfied."
Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999). "`[A] verdict or
conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.'"
Id. (quoting Strickland, 466 U.S. at 696). Specifically, Mangiardi claims
that defense counsel denied him his right to testify. "[T]he right to
`testify on one's own behalf at a criminal trial' is grounded in . . .
the Constitution." United States v. Leggett, 162 F.3d 237, 245 (3d Cir.
1998) (quoting Rock v. Arkansas, 483 U.S. 44, 51 (1987)). "The right is
personal and can be waived only by the defendant, not defense counsel."
Id. (citing United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir. 1995)).
A claim that defense counsel denied a defendant's request to testify is
"at least . . . colorable." Id. at 249 n. 12 (citation omitted). "[T]he
appropriate vehicle for claims that the defendant's right to testify was
violated by defense counsel is a claim of ineffective assistance of
counsel." 9 A Fed. Proc., L.Ed. § 22:1423 (2001).
Mangiardi requests that the court find certain facts leading to the
conclusion that counsel denied him his right to testify. Mangiardi, his
wife, and his sister made statements that, if believed, would support a
finding that although Mangiardi wished to testify at trial and counsel
was aware of Mangiardi's wishes, counsel prevented him from doing so.
According to the Mangiardi family, when Mangiardi expressed to counsel
his wish to testify, counsel (1) told Mangiardi a number of times that
"you are not going to testify." (Transcript of § 2255 Hearing, Volume
One, Rec. Doc. No. 672, at 4-5, 47, 50); and (2) said that he did not
plan to call Mangiardi as a witness (Id. at 23, 24-25, 26). Mangiardi
testified that, although he was aware of a general constitutional right
to testify at trial, he was not aware that only the defendant can waive
this right or that he could have overruled defense counsel's decision.
(Id. at 48-49, 53.) Also, according to Mangiardi, defense counsel
contributed to this lack of understanding by raising his voice often and
stating emphatically, "I'm a lawyer [and] you're the client." (Id. at
50.) If true, these statements would prove Mangiardi's claim that
counsel denied him his right to testify at trial.
In addition to stating that counsel thwarted his attempts to testify,
Mangiardi asserts that he suffered prejudice as a result of his inability
to tell his side of the
story. The primary defense theory at trial was
that in engaging in the conduct for which he was convicted, Mangiardi
acted reasonably on the advice of attorneys who instructed him on the
operation of his businesses. A number of those attorneys testified at
trial, and, according to Mangiardi, they testified inaccurately about a
large number of the interactions they had with him. Mangiardi claims that
if he would have testified, he would have corrected the numerous factual
inaccuracies offered by the attorneys, and the jury would have been
presented with the true nature of the advice the attorneys gave him.
When testifying at the hearing, defense counsel disputed nearly all of
Mangiardi's contentions. Specifically, counsel made the following
• Initially, counsel wanted Mangiardi to testify
at trial, but Mangiardi refused to discuss many
facts relating to his potential testimony. For
example, Mangiardi was unresponsive and even defiant
in response to counsel's questions regarding the
money he received from Waltman and Fleming. Because
Mangiardi would not adequately prepare, counsel
believed that it was not in his interest to
testify. Although counsel believed at that point
that Mangiardi was ill-prepared to testify and that
his testifying would hurt his case, counsel never
told him that he was not permitted to testify.
(Transcript of § 2255 Hearing, Volume Two, Rec.
Doc. No. 672, at 47, 52-56, 58-65.)
• Near the end of the defense's case, Mangiardi
stated loudly in court that he wished to testify.
Counsel and Mangiardi proceeded to a witness room.
There, counsel told Mangiardi that he had an
absolute right to testify and that they should
discuss it if he wished to testify. Mangiardi then
said that he did not want to testify. (Id. at
• Before resting, counsel asked Mangiardi if he
wished to testify, and Mangiardi shook his head and
said "no." (Id. at 22.)
Undoubtedly, the witnesses at the hearing gave differing versions of the
events. Evaluating the witnesses' testimony, we credit counsel's
testimony and give no value to the testimony provided by Mangiardi or
that offered by his family members. Based on his demeanor in the witness
chair, we find Mangiardi to be totally without credibility. In
addition, we believe that Mangiardi's wife and sister are naturally
biased and otherwise lacking in credibility. Conversely, we find defense
counsel to be quite credible, and we believe the statements that he made
at the hearing. It is our finding, then, that defense counsel gave
Mangiardi every opportunity to testify and that Mangiardi voluntarily
declined to exercise his right to testify.
In addition to our credibility determinations at the hearing, we must
emphasize that some of Mangiardi's own open-court statements have been
directly contrary to his claim. We point to one statement that he made
at sentencing and another that he made at the § 2255 hearing
discussed in this opinion.
At sentencing, the court gave Mangiardi an opportunity to speak in
favor of the mitigation of his sentence. Mangiardi spoke regarding his
decision to refrain from testifying:
Thank you, Your Honor. In the course of two lengthy
court trials, Your Honor, I took the advice of counsel
and elected not to testify. However, it was stated in
the courtroom that I hid behind the Fifth Amendment,
which I don't believe that that is true, that I did
hide behind anything. I just took the advice of the
attorney that offered me the advice.
(Transcript of Sentencing Hearing, Rec. Doc. No. 545, at 79.) This
that Mangiardi took counsel's advice and voluntarily
elected to stay off the witness stand. Mangiardi attempts to explain
this statement by pointing to another statement he made at sentencing.
According to Mangiardi, this statement explains his relationship to
In the Army I took an oath 40 years ago to support
and defend the Constitution of the United States
against all enemies, foreign and domestic, and the
orders of the Presidents and officers appointed over
me. I did so without conviction. I also learned to
obey and follow orders of the officers appointed over
me. Whether I thought they were right or wrong, I
followed those orders.
Rightly or wrongly I brought the same reverence to
the officers of the court that I had representing me
as attorneys. Believe me, this has changed my mind in
(Id. at 81-82.) At the § 2255 hearing, Mangiardi contended that his
statement about bringing "reverence" to his attorneys implied that he
followed defense counsel's order to refrain from testifying at trial.
(Transcript of § 2255 Hearing, Volume One, at 144.) We find this
after-the-fact assertion to be entirely lacking in credibility.
The other statement that belies Mangiardi's argument came at the §
2255 hearing itself. The prosecutor asked Mangiardi a question about
whether defense counsel made it clear to Mangiardi that he had a right to
PROSECUTOR: And on these occasions when you met and
discussed [the issue of testifying], Mr. Casey told
you that it was your decision to testify, that he
could not make that decision for you; isn't that
MANGIARDI: But it was also with a stipulation that he
didn't want me to testify.
PROSECUTOR: So the answer is yes, Mr. Casey did tell
you that it was your decision and your decision alone
to take the stand and testify; is that right?
MANGIARDI: Yes, sir, but not — that he did not
want me to testify.
(Id. at 168-69).
Mangiardi's statements here show that, while defense counsel may have
expressed an opinion that it was not in Mangiardi's interest to testify,
the decision as to whether to testify was Mangiardi's alone. That this
statement is inconsistent with Mangiardi's claim not only serves as an
admission that Mangiardi's claim is meritless, but also severely
diminishes his credibility as a witness.
We find that counsel did not deny Mangiardi his right to testify at
trial. At most, he advised against Mangiardi taking the witness stand.
Mangiardi has failed to prove that counsel's performance was deficient.
Because we conclude that Mangiardi has not met his burden to show that
counsel's performance was deficient, we need not reach the issue of
whether he suffered prejudice as a result of counsel's representation.
United States v. Roberson, 194 F.3d 408, 418-19 (3d Cir. 1999) (citations
Mangiardi's claim that he was denied the opportunity to testify at
trial is meritless. Mangiardi and his family members lack credibility,
and defense counsel credibly explained that he did not stop Mangiardi
from testifying. Therefore, Mangiardi's claim will be denied. Because
the instant claim is the final remaining claim under Mangiardi's §
2255 motion, the motion will be denied in its entirety. All other claims
are denied for the reasons set forth in the court's memorandum of
November 27, 2001.
An appropriate order follows.
For all the reasons set forth in the accompanying memorandum and the
memorandum filed November 27, 2001
IT IS ORDERED THAT:
1. Defendant Paul J. Mangiardi's motion under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence (Rec. Doc. No. 624) is denied.
2. There is no basis for the issuance of a certificate of appealability.
3. The clerk is directed to close the case file.
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