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U.S. v. MANGIARDI

May 3, 2002

UNITED STATES OF AMERICA
V.
PAUL J. MANGIARDI, DEFENDANT



The opinion of the court was delivered by: James F. Mcclure, Jr., United States District Court Judge.

MEMORANDUM

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.

BACKGROUND:

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.

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.

DISCUSSION:

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 ...

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