Opinion
CRIMINAL ACTION NO. 00-10246-RWZ
September 13, 2002
MEMORANDUM OF DECISION AND ORDER
On January 30, 2002, after a six-day jury trial, Defendant Humberto Correia was convicted of arson in violation of 18 U.S.C. § 844(i), three counts of mail fraud in violation of 18 U.S.C. § 1341, and use of fire in the commission of a felony in violation of 18 U.S.C. § 844(h)(1). After the verdict, Defendant renewed his written Motion for a Judgment of Acquittal, first made after the close of the government's case and again after all the evidence had been presented to the jury, and orally moved for a new trial.
Upon motion of the government under 18 U.S.C. § 3143 (a)(2), I ordered Defendant detained and set a hearing date for any post-trial motions five days later, February 5, 2002. Although a subsequent memorandum and order denied the motion for acquittal, I raised sua sponte the issue whether defendant had received ineffective assistance of counsel at trial and ordered an evidentiary hearing on the matter. See Memorandum and Order, February 7, 2002 ("February 7 Memorandum"), p. 2. As a result of the necessary withdrawal of defendant's trial counsel, new counsel, Robert George ("George"), entered an appearance and represented defendant at the May 17, 2002, evidentiary hearing. The purpose of the hearing was to ascertain whether "counsel's performance fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687 (1984), and whether a reasonable probability existed that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94. At the hearing, one of defendant's attorneys at trial, James Fagan ("Fagan"), testified [and addressed this Court's concerns over the performance of trial counsel, as set forth in the February 7 Memorandum]. No other witnesses were called by either the defendant or the government. Both sides then filed post-hearing memoranda and presented oral argument. Based on facts presented at the evidentiary hearing, multiple post-trial submissions, and my observations of defendant's attorneys during the six-day trial, I am left with an abiding belief that a miscarriage of justice has occurred. That is, defense counsels' multiple missteps, failures, and omissions fell outside the "wide range of reasonable professional assistance" guaranteed by the Sixth Amendment, Strickland, 466 U.S. at 689.
Furthermore, there is a reasonable probability that but for those lapses, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
This considered determination is appropriately based on the combined effect of all defense counsels' errors. See Pavel v. Hollins, 261 F.3d 210, 225 (2d Cir. 2001) (ruling that there was ineffective assistance of counsel "[i]n light of the cumulative weight" of "three serious flaws" in the defense attorney's representation of his client) (emphasis in original); Kubat v. Thieret, 867 F.2d 351, 370 (7th Cir. 1989) ("Strickland clearly allows the court to consider the cumulative effect of counsel's errors in determining whether a defendant was prejudiced."). Although the government valiantly argued that each error, considered by itself, lacked the necessary prejudicial import to warrant a finding of ineffective assistance, the combined effect of the defense's many errors significantly "undermined the court's confidence in the outcome of the trial." United States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001).
At trial, the government could not, and did not, present any direct evidence that defendant set fire to his photo processing laboratory on that fateful Monday morning, in downtown Taunton, Massachusetts. Rather, the case against him was crafted from a patchwork of circumstantial evidence, largely unrebutted by the defense. According to the government, defendant arrived at his photo lab on September 30, 1996, with the intent to set fire to the building. The government's theory was that defendant was in financial straits and the fire became his "exit strategy."
A crucial factual element of the government's case was that defendant shut off his fire alarm upon coming to work the morning of the fire. Gregory W. Galligan ("Galligan"), an investigator for the Taunton Fire Department present at the scene, noticed that he did not hear an "alarm system" siren. When Galligan asked defendant why there were no alarms sounding at the burning building, defendant replied that he had shut "the alarm" off when he arrived at the store that morning. Galligan testified that he then asked defendant "if he disconnected the fire system too." This testimony led to a brief discussion on direct and later on cross-examination regarding whether defendant had a fire alarm in addition to a burglar alarm and, if so, whether he specifically turned off the fire alarm. Although Galligan testified that defendant stated that he deactivated a "fire alarm," his report merely states that defendant had turned off "the alarm system." Galligan never personally investigated the existence or nonexistence of a fire alarm. However, he testified on cross-examination that he "saw the key pad that [defendant] had in the front door," but it remained unclear what kind of key pad it was. At this point, even the Court became confused about the status of defendant's alarm system(s).
Defendant testified that he did not have a fire alarm and never made any admission to Galligan that would suggest as much. Yet it was not until the post-trial evidentiary hearing that Fagan revealed that he was aware of the existence of a crucial piece of corroborative evidence. Fagan testified that before trial he had spoken with a lawyer for Manual Franco ("Franco"), the alarm technician who installed the alarm and key pad at defendant's business. Fagan was told that the technician had installed only a "standard burglar alarm" in defendant's photo lab — not a fire alarm. Although the alarm system could have also been wired as a fire alarm "at greater expense," defendant "was not interested in that service." Defendant did not have a fire alarm at all.
It is objectively apparent that the deactivation of the fire alarm was a pivotal piece of the circumstantial case against defendant. Had the jury heard Franco's testimony that no such alarm had been installed, such a fact would have greatly undermined, if not disproved, the government's theory on the means by which defendant undertook to burn down his business. Yet Fagan failed to call Franco to testify. This failure had no strategic value and was not the product of any "balancing of the benefits and risks of the anticipated testimony." Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993). Rather, Fagan testified that Franco would have been one of the last witnesses before defendant and his wife took the witness stand. However, according to Fagan, the defense case "wrapped up a little more quickly than [Fagan] anticipated," so Franco was not at the courthouse when it was his turn to testify. Rather than have Franco testify out of sequence one day later, Fagan simply decided not to call him at all. This is "not the sort of conscious, reasonably informed decision made by an attorney with an eye to benefitting his client" that is the hallmark of constitutionally adequate representation. Pavel, 261 F.3d at 218 (holding that a defense attorney's failure to call crucial factual witnesses was "an extraordinarily poor" decision that constituted ineffective assistance of counsel). See also Berryman v. Morton, 100 F.3d 1089, 1098-99 (3d Cir. 1996) (holding that defense counsel acted unreasonably in failing to use devastating inconsistencies in the victim's testimony that "cut directly to the heart of the only evidence against" defendant); Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355, 1356 (4th Cir. 1992) ("An attorney's failure to present available exculpatory evidence is ordinarily deficient, unless some cogent tactical or other consideration justified it.") (internal quotation marks omitted).
On the fifth day of trial, the Court had to take a recess because defense counsel "told all [his] witnesses to be ready tomorrow" and consequently ran out of witnesses to call. From the courthouse, Fagan telephoned one witness, Dennis Carignan, who then traveled to the court to give his testimony. Although Fagan mentioned the name of one other witness whom he might have called, he did not mention Franco.
Whether taken alone or in combination with the numerous other errors discussed below, defense counsel's failure to call Franco to testify is more egregious than the conduct at issue in Tejeda v. Dubois, 142 F.3d 18, 24 (1st Cir. 1998), in which the court vacated a conviction due to counsel's "impotent presentation" of the defense. Id. In the present case, the "impotence" of counsel deprived defendant of a much stronger defense. Fagan himself deemed his failure to call Franco to give highly exculpatory testimony unreasonable, and this Court so finds it.
Equally deficient was defense counsels' counterproductive attempt to rebut the government's evidence on causation. As noted above, there were no eye witnesses nor any other direct evidence as to the cause of the fire. Galligan, the fire investigator, testified that he determined the cause of fire by process of elimination. Along with ruling out numerous other possible causes, he testified that "nothing electrical could possibly have started the fire."
Three other government expert witnesses reached the same conclusion. Roger J. Nascimento ("Nascimento"), an electrical inspector for the City of Taunton with 30 years' experience, examined the wiring at defendant's building on the day of the fire, just as the fire department was "mopping up." He testified that he saw nothing to indicate an electrical fire. Vincent P. Calenda ("Calenda"), an investigator hired by Travelers Insurance Company ("Travelers") to determine the cause of the blaze, went so far as testify that he was "absolutely" correct in his assessment that the fire was not electrical. And John J. Mulcahy, a forensic electrical engineer with between 35 and 40 years of experience, also testified that he "didn't find any fault in the electric wiring or electric components that would have been causal to a fire."
Based entirely on their elimination of other causes, government witnesses deduced that defendant must have set the fire. Defense counsel, however, never pursued a critical statement made by Galligan during voir dire. When asked by the government if he was "[always] able to determine the cause and origin of specific fires," Galligan answered, "about 80 percent of the time." As an objective matter, Galligan's testimony that the cause and origin of 20 percent of all fires remain unknown, coupled with the dearth of direct evidence of arson by defendant, would have permitted the jury to find reasonable doubt as to defendant's culpability. However, rather than pursue the logical argument that the cause of the fire was unknown, the defense insisted that the cause of fire was known — and that it was electrical in nature. Trial counsel pursued this implausible theory without calling any defense experts to support that position and despite the fact that every government witness questioned on the subject stated categorically that the fire could not possibly have been electrical in nature. Counsel's "fundamentally flawed trial strategy" ignored the one easily available and logical defense to causation and in essence forced the jury to accept the result of the government's tenuous process of elimination. Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001). Such conduct fell below the standard for professionally competent assistance that is safeguarded by the Sixth Amendment.
The errors continue. In the four years between the date of the fire and the federal indictment, neither the Commonwealth of Massachusetts nor defendant's insurance company found sufficient evidence of fraud. According to James A. Hanrahan ("Hanrahan"), the general adjuster for Travelers assigned to defendant's claim, the company's Major Case Unit conducted a "full arson investigation" under the supervision of Attorney John Tener ("Tener") of the law firm Robinson and Cole. At the end of this investigation, Tener advised Travelers to pay defendant's claim. The summary report stated that his decision was based on expert opinions, an examination of defendant under oath, observations of the actual crime scene, interviews with firefighters present on the day of the fire, and defendant's favorable policy payment history. Tener concluded that "the cause of the fire should be classified as undetermined." At trial, William A. Brown ("Brown"), defendant's other attorney, attempted to ask Hanrahan about the contents of Tener's report. Such questions were barred under the hearsay rule. Rather than present direct testimony from the insurance company's experts and Tener himself, defense counsel simply acquiesced to the Court's hearsay ruling. The facts and opinions contained in Tener's report potentially provided a roadmap to reasonable doubt and a list of solid defense witnesses. To defendant's detriment, counsel let this important evidence rot on the shelf.
Additionally, the defense failed to object to a highly misleading chart, prepared by the government, that depicted defendant's liabilities at over $270,000. This chart neither explained the nature of defendant's liabilities, nor listed any assets in his favor. These debts consisted of two mortgages — one on his house for approximately $90,000 and one on his business for approximately $118,000 — as well as an equipment loan for approximately $53,000 and a car loan for approximately $6,000. In other words, defendant had no current debt. His liabilities consisted mostly of debt that typically goes hand-in-hand with home and business ownership. There is nothing in the government's one-sided presentation of facts that should inexorably lead to the "exit strategy conclusion." Yet the defense allowed the government to argue precisely that without any meaningful rebuttal.
Indeed, the truly relevant facts remained largely unaddressed. The bleak financial picture painted by government witnesses was at odds with the fact that defendant had savings accounts totaling $26,000 and maintained a household of five without any outstanding current debt or history of constant and continuous delinquent bill payments. Even though multiple government witnesses gave opinion testimony that defendant was in financial trouble, defense counsel failed to call any experts to tie together the plethora of evidence on defendant's stable economic situation. In addition, defendant testified that he had begun to prepare the apartment above the photo lab for Dennis Carignan ("Carignan"), an intended tenant. Carignan himself testified that he had made arrangements before the fire to move into the apartment and that he had agreed to pay defendant rent. Fagan, however, never argued the inference at closing that, with the addition of this prospective tenant, defendant had no need for an "exit strategy." In fact, Fagan made no mention of Carignan whatsoever.
This is an unusual case in that Fagan, during the new trial hearing, admitted to the inadequacies of his representation. When asked whether the failure to prepare the case fully, hire experts, interview key witnesses, present testimony from other key witnesses, prepare exhibits and clarify exculpatory evidence, Fagan repeatedly, consistently, and credibly responded that these failures were not the result of any coherent strategic decision. The government notes that much, though not all, of Fagan's testimony is phrased in the language of hindsight. Independent of that, however, the record shows that defense counsels' errors were unreasonable given the circumstances of the case and the possible penalties involved. While the government argues that Fagan and Brown pursued a legitimate reasonable doubt defense, the facts do not support that conclusion.
Based on my own observations at trial and consequent knowledge of the facts of this case, I am convinced that defense counsels' performance "fell below an objective standard of reasonableness" and "prejudiced the defense." Strickland, 466 U.S. at 687. As the Supreme Court emphasized, "the court should be concerned with whether . . . the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696. In light of all the errors and omissions during trial, the verdict constitutes a serious miscarriage of justice. Accordingly, Defendant's Motion For a New Trial is allowed.