United States Court of Appeals

For the First Circuit

No. 02-1281

UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS RONALD THEODORE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Reginald C. Lindsay, U.S. District Judge)

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Senior Circuit Judge.

Raymond J. Rigat, with whom Gilbride & Rigat was on brief for

Defendant-Appellant.

Paul G. Levenson, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, and Adam J.

Bookbinder, Assistant United States Attorney, were on brief for

Appellee. 

December 12, 2003
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STAHL, Senior Circuit Judge. Defendant-appellant Thomas

Ronald Theodore appeals from his conviction and sentence on nine

counts of mail fraud, in violation of 19 U.S.C. § 1341, and three

counts of violating the Food Drug and Cosmetic Act, 21 U.S.C. §§

331(a), (d), & (p). He contends that the district court erred: (1)

when it denied defense counsel's motion to withdraw and request for

a continuance; (2) when it did not declare mid-trial a mistrial sua

sponte; (3) when it did not conduct an evidentiary hearing on

Theodore's post-trial motion for a new trial and denied his motion

for a new trial based on ineffective assistance of counsel; and (4)

when it ordered restitution to victims without holding an

evidentiary hearing. Because this case presents serious claims of

ineffective assistance of counsel, we remand for an evidentiary

hearing on Theodore's post-trial motion for a new trial based on

ineffective assistance. 

We note that the almost universal rule in these cases is

that petitioners cannot raise ineffective assistance of counsel

claims for the first time on direct review, the concern being that

there is often no opportunity to develop the necessary evidence

where the claim is first raised on direct appeal. See Ellis v.

United States, 313 F.3d 636, 652 (1st Cir. 2002); United States v.

Knight, 37 F.3d 769, 774 (1st Cir. 1994); United States v.

Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir.1994); United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir.1993), cert. denied, 511 U.S. 1086
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(1994). This rule does not apply in this instance because the

record here is sufficiently developed to warrant further

consideration of the previously raised issue of ineffective

assistance of counsel as the entirety of the appeal revolves around

the question of whether Theodore's counsel was ineffective within

the strictures of Strickland v. Washington, 466 U.S. 668 (1984).

See United States v. Sotomayor-Vazquez, 249 F.3d 1, 13 (1st Cir.

2001); United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.), cert.

denied, 528 U.S. 887 (1999). 

Here, we have a series of claims implicating the

effectiveness of counsel and enough indicia of ineffectiveness to

warrant remanding for an evidentiary hearing on Theodore's motion

for new trial. We stress that we are not deciding whether the

totality of the circumstances in this case amounts to ineffective

assistance. Rather, we remand to the district court where it can

determine in the first instance whether defense counsel's total

performance was such that a new trial is warranted.

I. BACKGROUND

From 1992 until approximately April 1995, Theodore and

Thomas Rodgers, Jr. solicited about $1.6 million of investments in

a company called Private Biologicals Corporation (PBC) by claiming

that they had invented a promising new drug called "LK-200."

Investors were told that, because the drug was not FDA-approved,
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PBC had manufactured it overseas using a proprietary production

method. 

In actuality, "LK-200" was not "proprietary." As a

subject of medical research, the substance and the methods for

making it had been well-known for years and produced by researchers

at the University of Pennsylvania. None of PBC's product was made

overseas but instead was produced in a manufacturing facility that

Theodore had set up in Woburn, Massachusetts. Over the course of

three years, Theodore and Rodgers, in addition to misleading

investors about the claimed invention and overseas operation,

manufactured LK-200 in sub-standard conditions that exposed the

product to contamination. At the same time, Theodore

misrepresented himself as a medical doctor.

On April 6, 2000, a federal grand jury returned a

fourteen-count indictment against Theodore for conspiracy, mail

fraud, and violations of the Food Drug and Cosmetic Act. Theodore

was represented by a series of attorneys throughout the

proceedings. The first was John Bonistalli, who represented

Theodore at his initial appearance on January 24, 2000. On April

11, 2000, John Noonan, now acting as Theodore's counsel, filed a

motion for another attorney, Gordon White, to appear pro hac vice

as co-counsel. White, a Texas-based attorney, and Noonan filed

several motions on Theodore's behalf and on October 23, 2000, both

attorneys appeared at an evidentiary hearing on one of the motions,
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a motion to dismiss based on an implied promise of immunity. White

was the only one to actively participate in that hearing. This was

the last time the record reflects the presence of White on behalf

of Theodore, despite the fact that Theodore was soon to undergo a

fifteen-day trial on the underlying criminal charges. The record

indicates that until White disappeared from the scene, Noonan's

role was simply that of local counsel.

At a February 1, 2001 pretrial conference, Noonan for the

first time appeared as Theodore's sole counsel. The district court

set the trial back a week and denied several of Theodore's pretrial

motions as untimely. At this hearing, it was apparently made clear

that White would no longer be representing Theodore, despite never

having formally withdrawn his appearance. In response to the

district court's determination that the pretrial motions were

untimely, Noonan explained that "Mr. White is supposedly an expert

in federal courts and was supposed to handle all these things."

Towards the end of the conference, the court inquired into Noonan's

comfort with representing Theodore in federal court. Noonan

responded that he was concerned that there might be a Sixth

Amendment problem, admitting that he was "very uncomfortable." It

was Noonan's first trial in federal court in his forty years of

practice.

At a subsequent conference on February 2, 2001, Theodore

stated that he did not want Noonan to represent him and that from
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the start, Noonan had told him that he was not competent to try the

case. He moved to replace counsel. The government countered that

it had dealt with Noonan since the beginning of the case, that he

had always seemed familiar with the case, and that he had had an

opportunity to review the local procedural rules. The court denied

Theodore's motion and instead appointed Dennis Kelly, a lawyer

experienced in handling federal criminal cases, as standby counsel

to advise Noonan about federal procedure. Theodore reiterated his

objection to having Noonan as his counsel. 

On the first day of trial, February 12, 2001, Noonan

filed a motion to withdraw as Theodore's counsel and requested a

continuance so that another attorney could be appointed. The

court, however, denied the motion and ruled that Noonan would

continue to represent Theodore.

During Noonan's opening statement at trial, the district

court sustained two objections made by the government. Throughout

trial, his attempts at cross-examination were riddled with

sustained objections for relevance and assuming facts not in

evidence. Nine days into trial, the district court received a note

from a juror named Babchak inquiring about the possibility of the

government offering Theodore a plea bargain. The court brought

Babchak into chambers and asked about the note. Babchak responded,

"I'm wondering if the defendant is being properly represented."

The court then interviewed each juror. Two jurors, Moynihan and
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Birch, stated that they could no longer remain open-minded about

Theodore's guilt. Birch expressed his belief that Theodore was

being inadequately represented. Noonan responded that he agreed

with Birch and that his inadequate performance was "really a

fundamental problem all the way through here." The court removed

these two jurors, but not Babchak.

On the tenth day of trial, Noonan informed the court that

he had thirteen witnesses to call. As it turned out, the only

witness that he actually attempted to call succeeded in having his

subpoena quashed, as Noonan had failed to follow federal procedure.

Noonan took no steps to oppose the motion to quash the subpoena,

nor did he appear at the hearing. Thereafter, Noonan told the

court that he had no witnesses to present to the jury. The

government, apparently concerned, requested the court to instruct

Theodore that he had a right to call witnesses. Finally, during

Noonan's closing argument, the court sustained eight objections

made by the government, again due to his commentary on facts not in

evidence.

Theodore was convicted of every charge in the indictment.

For sentencing and post-trial motions, new counsel was appointed to

represent Theodore. Together with his motion for a new trial,

Theodore presented an affidavit from Noonan stating that he had a

drinking problem that resurfaced during Theodore's trial and that

he had not examined thousands of pages of evidence disclosed by the
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government. Noonan also indicated that contrary to his pretrial

representations to the court, he had never represented a defendant

accused of murder. Theodore requested an evidentiary hearing on

the new trial motion. The court denied his request as well as the

motion. Theodore was ultimately sentenced to 121 months in prison

and ordered to pay $1,535,240.00 in restitution to the defrauded

investors. 

II. DISCUSSION

A. Noonan's Motion to Withdraw

We review for abuse of discretion the district court's

denial of defense counsel's motion to withdraw and request for a

continuance. See United States v. Woodard, 291 F.3d 95, 106 (1st

Cir. 2002). We accord "'extraordinary deference'" to the district

court's decision when "allowance of the motion would necessitate a

last-minute continuance." Id. at 107. "Only an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the assistance

of counsel." Id. at 106 (citation omitted).

Though we do not address the merits of Theodore's

ineffective assistance claim under Strickland, it is important to

set out the constitutional standard for such claims. To

successfully claim ineffective assistance of counsel under the

Sixth Amendment, a defendant must establish that his counsel's

performance fell below an objective standard of reasonableness and
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"that there was a reasonable probability that, but for counsel's

unprofessional errors, the results of the proceeding would have

been different." Strickland, 466 U.S. at 687-94.

The government argues that Noonan and Theodore never

intended to make their claim of inadequate representation until the

district court inquired into Noonan's comfort in trying the case,

and that the motion was a "patent attempt to parlay the district

court's solicitude into some advantage for" Theodore. It contends

that Noonan seemed prepared to represent Theodore and that the

district court's compromise of appointing Kelly as standby counsel

compensated for Noonan's lack of experience in federal court.

Theodore responds that up to the point of his motion to

withdraw, Noonan utterly failed to develop and present a defense.

Counsel had not filed any substantive pre-trial motions and had

several procedural motions denied as untimely. On the other hand,

Noonan did say to the district court that he "did all the

preliminary work that needs to be done." He met with prosecutors

to discuss the trial, came to the U.S. Attorney's Office to review

documents, and produced documents and marked exhibits that he

apparently intended to use at trial. 

As replacing defense counsel so close to the beginning of

trial is a measure appropriate for only the most extraordinary

circumstances, we cannot hold that the district court abused its

discretion when it crafted a compromise solution and denied
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Noonan's motion to substitute counsel. The court's accommodation

of Noonan's claimed unfamiliarity with federal procedure was

reasonable under the circumstances and satisfied Theodore's Sixth

Amendment right to effective assistance. See United States v.

Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989); see also Woodard, 291

F.3d at 106 (the Sixth Amendment "does not provide an absolute

right to counsel of a defendant's choosing"). The fact that Kelly

proved to be available for only seven out of the fifteen trial days

is another matter, better dealt with in connection with Theodore's

motion for a new trial.

Given the deferential standard of review, we hold that

the district court did not abuse its discretion when denying

Noonan's motion to withdraw and request for a continuance.

B. Mistrial Sua Sponte

We review the district court's decision not to declare a

mistrial sua sponte for plain error. See United States v. Smith,

101 F.3d 202, 212 (1st Cir. 1996). A mistrial is declared in a

criminal case only when manifest necessity requires it. See

Illinois v. Somerville, 410 U.S. 458, 462 (1973).

Theodore claims that when the jurors expressed concerns

about Noonan's performance as counsel, manifest necessity required

the district court to declare a mistrial, even if Noonan failed to

move for one. Theodore further argues that the jurors' concerns

were yet another indication that Theodore effectively "had no
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representation throughout all phases of the trial." Though

Noonan's performance was concededly less than stellar, it did not

amount to "no representation"--Noonan still conducted voir dire,

presented opening and closing statements, objected to prosecution

evidence, cross-examined witnesses, offered evidence on Theodore's

behalf, and requested jury instructions. 

Moreover, the court took steps to address the jurors'

concerns about Noonan's representation by suspending the trial and

questioning each juror individually about the memo. When two of

the jurors admitted that they could no longer be impartial, the

court excused them and replaced them with alternates. It was not

plain error for the court to conclude, despite the jurors' concerns

and Noonan's performance thus far, that the trial could go on after

it had taken measures to investigate and remedy those concerns. By

declaring a mistrial sua sponte under such circumstances, the court

would have imposed on Theodore its view of counsel's performance

and deprived him of "his option to go to the jury first, and,

perhaps, end the dispute then and there with an acquittal." United

States v. Jorn, 400 U.S. 470, 484 (1971). Again, given the very

high standard of review, we decline to find plain error.

C. Post-Trial Motion for a New Trial and Evidentiary Hearing

We review the district court's denial of an evidentiary

hearing for an abuse of discretion. See United States v. Alicea,

205 F.3d 480, 487 (1st Cir. 2000). The party seeking an
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evidentiary hearing on a motion for a new trial must make "a

sufficient threshold showing that material facts [are] in doubt or

dispute." Id. (citing United States v. Panitz, 907 F.2d 1267,

1273 (1st Cir. 1990)).

Theodore sought an evidentiary hearing to address

concerns about Noonan's veracity and how previous

misrepresentations by Noonan to the court might bear on Theodore's

ineffective assistance claim. In particular, he produced an

affidavit submitted by Noonan admitting that he had misrepresented

his past trial experience to the court. A determination of

Noonan's credibility bears on the issue of whether the district

court might have handled Theodore's (and Noonan's) repeated claims

of ineffective assistance differently, and ultimately whether

Theodore satisfied Strickland. 

Similarly, revelations of Noonan's alcohol abuse during

trial and failure even to glance at volumes of government evidence

bear strongly on factual issues of Noonan's overall competency and

performance. We already know that Noonan failed to appear at the

hearing held on the motion to quash made by the only defense

witness subpoenaed for trial, not due to any tactical choice, but

because of negligence and his utter ignorance of federal procedure

despite the availability of standby counsel. The same goes for the

several pre-trial motions denied as untimely by the district court.

And though a finding of "no representation" is reserved only for
1We caution, however, that prejudice may be presumed only in

three narrowly circumscribed situations: "First, a trial is

presumptively unfair if the accused is completely denied the

presence of counsel at a critical stage of the proceedings.

Second, such a presumption is warranted if counsel entirely fails

to subject the prosecution's case to meaningful adversarial

testing. Third, prejudice may be presumed in the presence of

circumstances under which a competent lawyer would likely not be

able to render effective assistance." Ouber v. Guarino, 293 F.3d

19, 33 (1st Cir. 2002) (internal citations and quotation marks

omitted).

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the most extreme cases of ineffective assistance, facts adduced at

the hearing may lend some support to Theodore's claim that he was

constructively abandoned by his counsel throughout trial. See

United States v. Cronic, 466 U.S. 650, 659 (1984).1 

The government's contention that Theodore failed to

satisfy Strickland in his request for an evidentiary hearing misses

the thrust of the request. Indeed, the point of an evidentiary

hearing would be to consider evidence upon which a new trial might

be ordered pursuant to Strickland. Where a defendant "[provide]s

adequate factual specification beyond bald speculation," an

evidentiary hearing is warranted. United States v. Rodriguez

Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991). Theodore's claims of

ineffective assistance before and throughout trial already present

close cases--the addition of Noonan's affidavits post-trial make

this case all the more unusual and troubling. As the district

court itself expressed concerns regarding Noonan's veracity upon

considering Theodore's new trial motion, we hold that the court

abused its discretion by not holding an evidentiary hearing to
2In the event the district court orders a new trial, the

restitution order becomes moot.

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resolve or clarify factual issues ultimately crucial to Theodore's

claim of ineffective assistance of counsel. We leave to the

district court the determination of whether a new trial should be

granted, taking into account what happened at trial and whatever

evidence is adduced at the hearing. 

D. Restitution Order2

As Theodore never requested an evidentiary hearing

regarding the question of victim restitution, we review the

district court's decision for plain error. See Johnson v. United

States, 520 U.S. 461, 467 (1997). We review the restitution order

itself for an abuse of discretion and subsidiary factual findings

for clear error. See United States v. Vaknin, 112 F.3d 579, 586

(1st Cir. 1997).

Theodore argues that without a hearing, the district

court had no evidentiary basis on which to make a fair and reasoned

restitution order. We disagree and find that the evidence at trial

as well as the Pre-Sentence Report (PSR) provided sufficient

support for the court's order.

The PSR set forth a schedule of victims and the amount of

restitution owed to each. Moreover, Gary Coulter, who had served

as counsel to PBC, identified a contemporaneous schedule of

investors' contributions, which detailed the identities of the
3Under 18 U.S.C. § 3663(a)(1)(B)(i), the court, in determining

whether to order restitution, must consider:

 (I) the amount of the loss sustained by each victim as a

result of the offense; and 

(II) the financial resources of the defendant, the financial

needs and earning ability of the defendant and the defendant's

dependents, and such other factors as the court deems appropriate.

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investors, the amounts they invested in the company, and the dates

on which they did so. In his only objection to the PSR, Theodore

stated that he never solicited, raised, or received any funds on

behalf of PBC or for the production and distribution of LK-200.

Evidence at trial, however, showed that though others may have

played leading roles in PBC's financial operations, Theodore was

integral to the initiation of the fraudulent scheme and was

directly responsible for the key falsehoods upon which the scheme

rested. We have noted that

restitution for all criminal conduct done in the course

of a single scheme, conspiracy, or pattern of activity is

now appropriate, whether or not the defendant has been

convicted of (or even charged with) the specific acts, as

long as the offense of conviction has an element in the

broader scheme, conspiracy, or pattern. 

Vaknin, 112 F.3d at 582 n.1. Though Theodore may not have been

implicated in each and every step of the fraudulent scheme, what

was proved at trial is more than enough for purposes of finding him

liable for the amount in the restitution order.

Theodore also claims that without an evidentiary hearing,

the district court could not have determined whether Theodore would

be able to pay restitution.3 The record, however, reflects that
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the court was aware of Theodore's financial status and considered

it in fashioning the order. The court provided for installment

payments in the event that immediate payment of the entire amount

proved impossible. It also determined that he did not have to pay

interest. Finally, it chose not to impose a fine. It is enough

that the court "made implicit findings or otherwise adequately

evinced [its] consideration" of Theodore's ability to pay. United

States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).

We therefore affirm the district court with respect to

(1) its denial of Noonan's motion to withdraw and request for a

continuance, (2) its decision not to declare a mistrial sua sponte,

and (3) its restitution order. We vacate the district court's

order denying Theodore's motion for a new trial based on

ineffective assistance of counsel and remand for further

proceedings consistent with this opinion.