The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Preclude Admission of Former Testimony (ECF No. 809). For the following reasons, Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn2 Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On December 10, 2012, Savage filed a Motion to Preclude Admission of Former Testimony. (Def.'s Mot., ECF No. 809.) The Government filed a Response on December 20, 2012. (Gov't's Resp., ECF No. 850.) Trial of Defendants is scheduled for February 4, 2013.
Defendant requests that the Government be precluded from offering testimony that Defendant provided in his own defense in a prior federal criminal case. (Def.'s Mot. 1.)*fn3
Defendant argues that he was provided ineffective assistance of counsel when his retained attorney, suffering from laryngitis at the time, delegated direct and cross-examination of him to the attorney's estranged wife. (Def.'s Mot. 2.) Defendant contends that the delegation of such a duty was unreasonable and "resulted in the effective absence of counsel during a critical stage of the proceeding." (Id.) In support of this argument, Defendant asserts that the attorney who questioned him on direct examination was a civil law practitioner who had not been previously present in court and had only met with him on one occasion. (Id.) Defendant argues that this former testimony was provided in violation of his Sixth Amendment right to the effective assistance of counsel. (Id. at 1.) Defendant further contends that if the Government is allowed to admit any portion of his 2005 testimony, Defendant will be compelled to testify at this trial to explain his former testimony, violating his Fifth Amendment right against compelled self-incrimination. (Id. at 3.) Finally, Defendant argues that allowing his former testimony to be presented would result in unfair prejudice that outweighs the probative value of the testimony. (Id.)
The Government responds that Defendant's claim is devoid of substantive merit because his retained trial counsel was not only present during his 2005 testimony, but actively participated in Defendant's examination. (Gov't's Resp. 2.) The Government contends that Defendant agreed on the record to a substitution of counsel, and that the direct examination questions asked of Defendant were constructed by his retained trial attorney. (Id. at 3, 6.) The Government further argues that it was Defendant's "poor performance" on the witness stand, not his counsel's ineffective assistance, that produced incriminating evidence. (Id. at 2.)
A. Ineffective Assistance of Counsel
Counsel's performance will be considered ineffective when a defendant can establish that (1) counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's error, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). When reviewing a claim under Strickland, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689.
There are situations in which the ineffectiveness of counsel may be "presumed without inquiry into actual performance at trial." United States v. Cronic, 466 U.S. 648, 661 (1984). A presumption of such prejudice can be found where: (1) the accused is denied the presence of counsel at a critical stage of the trial; (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; or (3) where the likelihood that even a fully competent lawyer could provide effective assistance is small under the circumstances. Id. at 659-60; Bell v. Cone, 535 U.S. 685, 695-96 (2002).
Strickland applies to claims asserting deficient lawyering, whereas claims falling under Cronic contemplate absentee lawyering. Scott v. Sobina, No. 09-1081, 2011 WL 6337566, at *3 (E.D. Pa. Dec. 16, 2011) (citing Woodard v. Collins, 898 F.2d 1027, 1028 (5th Cir. 1990)). Under Strickland, a defendant must demonstrate specific errors committed by counsel that prejudiced the outcome of the trial. Sobina, 2011 WL 6337566, at *3. Under Cronic, prejudice is presumed and need not be demonstrated. Id. However, the Cronic per se rule is a "very rare" exception to Strickland, Vance v. Lehman, 64 F.3d 119, 122 (3d Cir. 1995), and is limited to circumstances where the "denial of counsel would necessarily undermine the reliability of the entire criminal proceeding." Ditch v. Grace, 479 F.3d 249, 255 (3d Cir. 2007) (emphasis added).
In this case, Defendant has failed to demonstrate that his trial counsel was ineffective under either a ...