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. e du/thir dc ir c uit_1997/73Filed March 28, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7287

UNITED STATES OF AMERICA

v.

KOURTNEY KAUFFMAN Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 92-cr-00268)

ARGUED NOVEMBER 12, 1996

Before: ALITO, ROTH and LEWIS, Circuit Judges .

(Filed March 28, 1997)

Daniel M. Pell (ARGUED)

425 West Market Street York, PA 17404

Attorney for AppellantEric Pfisterer (ARGUED)

Office of United States Attorney Federal Building

228 Walnut Street

Post Office Box 11754 Harrisburg, PA 17108

Attorney for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

Kourtney Kauffman appeals from the order of the dis trict court denying his motion to vacate, set aside or co rrect sentence under 28 U.S.C. S 2255, on the ground of

ineffective assistance of counsel. Kauffman's claim was based, inter alia, on his counsel's failure to cond uct any pre-trial investigation, or contact potential witne sses in connection with a possible insanity defense. We hav e jurisdiction under 28 U.S.C. SS 2253 and 2255. Beca use ineffective assistance of counsel claims present mi xed questions of law and fact, our review is plenary. D ooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).

I.

A.

On July 19, 1991, Kourtney Kauffman was released, against the advice of his psychiatrists, from Edgew ater Psychiatric Center in Harrisburg, Pennsylvania, whe re he had been involuntarily committed since July 14, 199 1.1 On July 12, 1991, just two days prior to Kauffman's commitment, three shotguns and two rifles were repo rted stolen from a residence in Hellam Township, Pennsyl vania.

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1. Prior to Kauffman's discharge, Edgewater petitio ned the Court of Common Pleas of Dauphin County, Pennsylvania, for a n order of involuntary commitment for Kauffman. The court deni ed the hospital's petition.

2Kauffman was arrested on July 24, 1991, five days a fter his

discharge from Edgewater, while attempting to sell four of these stolen guns to a firearms dealer in a transac tion monitored by the police.2

Immediately following his arrest on July 24, 1991, Kauffman was examined by Dr. Jacob Stacks, a psychiatrist at Harrisburg State Hospital. In a dis charge summary prepared by Dr. Stacks, he stated that Kauf fman "went into the York County Prison on 7/24/91 with a charge of receiving stolen property. He was undoubt edly psychotic at that time." On March 25, 1992, Dr. Sta cks wrote a letter to attorney Steven Zorbaugh, who was representing Kauffman at the time, stating that in his opinion Kauffman was manic and psychotic "at the ti me of the committing of the crime he was charged with." D espite the exculpatory nature of this letter, Zorbaugh dec lined to investigate further a possible insanity defense and advised Kauffman to plead guilty.

On February 19, 1993, acting upon the advice of cou nsel, Kauffman pleaded guilty, pursuant to a plea agreeme nt with the government, to a one-count indictment whic h charged Kauffman with being a felon in possession o f firearms in violation of 18 U.S.C. SS 922(g) and 92 4(c). Kauffman was sentenced to 15 years imprisonment pursuant to 18 U.S.C. S 924(e), the mandatory minim um sentence for violation of the armed career criminal offender

statute.

On January 24, 1994, Kauffman filed a pro se motion pursuant to 28 U.S.C. S 2255 to vacate, set aside o r correct sentence, which the district court denied without a hearing on March 25, 1994. Kauffman then retained private counsel and timely filed a second habeas motion on February 13, 1995. In his petition, Kauffman assert ed that he was entitled to habeas corpus relief because Zor baugh

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2. Initially, state charges were brought against Ka uffman. Kauffman retained Steven Zorbaugh as his lawyer and on July 9, 1992, Kauffman pleaded guilty to four counts of receiving stolen p roperty arising out of the sale of four of the five guns described above. Zorbaugh was then appointed by the district court to represent appell ant on the pending federal charges which are the subject of this opini on.

3rendered ineffective assistance by failing to couns el him

regarding his right to proceed to trial and present an insanity defense. Kauffman also contends that his f ormer attorney incorrectly advised him that probation was a possible sentence if a downward departure motion wa s granted. Moreover, Kauffman contends that his prior counsel should be deemed per se ineffective because his attorney was himself suffering from a debilitating mental

condition.

We vacated the judgment of the district court denyi ng Kauffman's second petition and remanded for an evidentiary hearing on December 6, 1995. At the con clusion of the evidentiary hearing, the district court deni ed the habeas petition. Kauffman once again appeals. For t he reasons which follow, we will reverse and remand to the

district court for a new trial.

B.

At the evidentiary hearing ordered by this court, S teven Zorbaugh testified that he remembered Kauffman brin ging Dr. Stacks' letter, describing Kauffman as manic an d psychotic when he was arrested for the offense, to his law office for review. Zorbaugh admitted to having no

conversation about Kauffman's mental status with an y physician or making any review of the medical recor ds, or doing any research on the federal insanity defense. The reason Zorbaugh gave for advising Kauffman to plead guilty and not tender an insanity defense at trial was tha t Kauffman had pleaded guilty to state charges of rec eiving stolen property. In Zorbaugh's words:

you go through . . . a written plea colloquy that was about ten or eleven pages I believe, plus an oral colloquy that included questions like did yo u understand what you were doing, did you know it was illegal. And you have to answer these questi ons. And I

felt that would be an additional barrier in Federal Court because I felt the prosecutor could us e those to establish that he knew what he was doing.

Zorbaugh also stated his belief that Kauffman's act of hiding the stolen property would impede a successfu l

4insanity defense in that it further enabled the gov ernment

to show that Kauffman was aware of the consequences of

his actions.

Yet, the hearing as a whole uncovered substantial evidence which would support Kauffman's claim that an insanity defense was nonetheless viable. For exampl e, Dr. Denis Milke, a Board Certified psychiatrist who is the Medical Director of Edgewater Psychiatric Center an d was Kauffman's attending physician, testified that as o f the date of discharge from Edgewater, Kauffman's mental stat us as reflected in the medical records was that of a pers on whose judgment was markedly compromised, with limited ins ight and poor reliability. He also testified that Kauffm an was released against medical advice just prior to the commission of the offense. In fact, Dr. Milke wante d Kauffman immediately transferred to Harrisburg Stat e Hospital, a long term care facility.

Dr. Milke identified Kauffman's illness as a bipola r disorder. He explained that Kauffman's thought diso rder is characterized by grandiose thought, loose associati ons, tangentiality, chronic poor judgment, with some deg ree of paranoid perceptions. He also stated that treatment of Kauffman's condition required psychotropic drugs, a nd that as of the date of discharge Kauffman did not have s ufficient Lithium in his blood stream to control the symptoms of his bipolar disorder. Finally, Dr. Milke testified that a bipolar disorder affects a person's ability to appreciate t he wrongfulness of his or her conduct.

The district court also heard testimony from Mr. Pa trick Gallagher, an employee of York Hospital. Mr. Gallag her had been the mental health counselor at York County Pri son in July, 1991. He testified that he saw Kauffman on hi s admission to York County Prison on July 24, 1991, a nd that Kauffman was clearly psychotic at that time. H e recalled discussing Kauffman's condition with Dr. J acob Stacks, the supervising physician and psychiatrist, perhaps as early as July 26, 1991, and that both he and Dr. Stacks agreed that Kauffman should be committed to a psych iatric facility.

Mr. Gallagher further stated that on or about July 26, 1991, Kauffman was engaging in "jerky" movements, w as

5very suspicious and angry, was suffering from a tho ught

disorder, was out of touch with reality, did not un derstand the consequences of his actions and would not have appreciated the wrongfulness of any criminal conduc t. In fact, Mr. Gallagher recalled that Kauffman attacked a guard on or about July 26, 1991, and as a result was plac ed in

isolation.

Robert H. Davis, M.D., a Board Certified Psychiatri st at the Harrisburg State Hospital, also testified on be half of Kauffman as an expert. Dr. Davis testified that Kau ffman was suffering from a severe mental disease such tha t he was unable to appreciate the wrongfulness of his ac ts. He further stated that had an attorney come to him reg arding the viability of an insanity defense in this case, he would have advised the attorney that such a defense would be

viable:

He has a clear history of a major psychiatri c disorder. The history of the disorder predates the cri me for which he is being charged. So it is a well d ocumented history. And the nature of his disorder is o ne that leads to impaired judgment, psychotic symptoms. An d that is the type of disorder that very much often le ads to a very successful insanity defense.

C.

After hearing the testimony on Kauffman's psychiatr ic condition, the district court concluded that Kauffm an's former attorney, Steven Zorbaugh, did not render in effective assistance when he declined to pursue investigation into an insanity defense by conducting research and intervi ewing potential witnesses. The district court also conclu ded that Kauffman failed to make a showing of prejudice attr ibutable to Zorbaugh's actions.

The district court reasoned that Zorbaugh's failure to pursue any investigation into an insanity defense w as based on two legitimate considerations. First, Kauf fman admitted he had the guns in question and made arrangements with a dealer to sell them for profit. This, Zorbaugh believed, showed that Kauffman knew what h e was doing and appreciated the nature and quality of the

6acts. Second, Kauffman had entered into a prior det ailed

plea colloquy at the state court level in which he acknowledged his guilt on the charge of receiving s tolen property (the guns which are the subject of the fed eral charge). Because Zorbaugh was faced with two impediments to an insanity defense, on the one hand , and the potential for a downward departure motion for substantial assistance on the other, the district c ourt

determined that he had made a reasonable tactical d ecision to advise his client to plead guilty.

II.

A.

A court must be "highly deferential" to counsel's d ecision and there is a "strong presumption" that counsel's performance was reasonable. Strickland v. Washingto n, 466 U.S. 668, 689 (1984). "The defendant must overcome the presumption that, under the circumstances, the chal lenged action `might be considered sound trial strategy.' " Id. at 689. "It is [ ] only the rare claim of ineffective assistance of counsel that should succeed under the properly defe rential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).

In order for a defendant to gain relief because his counsel was ineffective, the defendant must satisfy the two -pronged test announced in Strickland v. Washington, 466 U.S . 668 (1984). The defendant must show "(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error, the resu lt would have been different." United States v. Nino, 878 F. 2d 101, 103 (3d Cir. 1989), citing Strickland, 466 U.S. at 687-96. Both Strickland prongs must be met. Nino, 878 F.2d at 104.

This two-part test is applicable to petitioners who challenge the effectiveness of counsel after the en try of a guilty plea. Hill v. Lockhart, 474 U.S. 52 (1985). When such persons enter a plea of guilty on the advice of cou nsel, the voluntariness of the plea depends on whether there is a

7reasonable probability that, but for counsel's erro rs, the

defendant would have proceeded to trial instead of pleading guilty. Parry # BH-2648 v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1995). A reasonable probability is one which i s "sufficient to undermine confidence in the outcome. " Strickland, 466 U.S. at 694.

B.

In applying the first prong of Strickland's two-par t test, we must determine whether Kauffman's prior counsel exercised reasonable professional judgment despite his failure to pursue an investigation of a letter from Kauffman's treating psychiatrist which stated that Kauffman was manic and psychotic at the time of the

commission of the offense.

As we explained in United States v. Gray, 878 F.2d 702 (3d Cir. 1989), "failure to conduct any pretrial in vestigation generally constitutes a clear instance of ineffecti veness." Gray, 878 F.2d at 711. See also Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986) (counsel's perform ance fell below competency standard where he interviewed only one witness); Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985) ("[A]t a minimum, counsel has the duty t o interview potential witnesses and to make an indepe ndent investigation of the facts and circumstances of the case.").

While counsel is entitled to substantial deference with respect to strategic judgment, an attorney must inv estigate a case, when he has cause to do so, in order to pro vide minimally competent professional representation. Gr ay, 878

F.2d at 711.

Here, Zorbaugh admitted that even though he had a letter from Kauffman's psychiatrist concerning Kauf fman's mental condition, he did not pursue any investigati on into an insanity defense. While we recognize that Zorbau gh may have found the strength of the government's case da unting, we can imagine no reasonable professional calculati on which would support Zorbaugh's failure to conduct a ny pre-trial investigation into the facts and law of a n insanity

defense under the circumstances of this case. See Strickland, 466 U.S. at 690-91 ("[A] court deciding an

8actual ineffectiveness claim must judge the reasona bleness

of counsel's challenged conduct on the facts of the particular case.").

Only if Zorbaugh had investigated Kauffman's long history of serious mental illness, and conducted so me legal research regarding the insanity defense could his counseling be characterized as "strategy." Instead, his failure to investigate or research the insanity iss ue at all resulted in a cursory, uninformed judgment call whi ch deprived Kauffman of the affirmative defense of ins anity and the meaningful representation which the Constit ution requires. Accordingly, we conclude that Zorbaugh's performance fell below an objective standard of reasonableness, and that Kauffman has satisfied the first prong of Strickland.

C.

The fact that counsel was ineffective is not in its elf sufficient to grant relief under Strickland. Under Strickland's second prong (the "prejudice" requirem ent), if the ineffectiveness alleged was a failure to invest igate thoroughly, which in turn caused the defendant to p lead guilty, the defendant must show a likelihood that s ome evidence would have been discovered which would hav e caused the attorney to change his recommendation to enter into a plea agreement. See Hill v. Lockhart, 474 U. S. 52, 59 (1985). In other words, Kauffman must show that Zorbaugh's representation fell below an objective s tandard of reasonableness, and that but for Zorbaugh's erro rs, Kauffman would have insisted on going to trial rath er than plead guilty. Id. at 56-60.

In this case, minimal factual investigation by Zorb augh would have uncovered Kauffman's long-standing histo ry of bipolar syndrome and his numerous psychotic episode s leading to multiple psychiatric hospitalizations, a ll of which preceded the offense of July 24, 1991. In addition, several doctors were willing to testify that Kauffman was hypomanic on his release from Edgewater Psychiatric Center on July 19, 1991, and totally psychotic by t he time he reached York County Prison.

9While it is unlikely that we can determine with pre cision

what the result of the proceedings would have been if counsel had not erred, the breadth of evidence addu ced at the evidentiary hearing is sufficient to undermine our confidence that Zorbaugh would have advised his cli ent to plead guilty rather than proceed to trial and that Kauffman would have accepted that advice. Parry # BH-2648 v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1995). Thus, t he defendant has met his burden of showing a reasonabl e probability that the outcome of these proceedings w ould

have been different had his counsel not failed in h is duty to investigate the evidence obtainable from various he alth professionals. See United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989), citing Strickland v. Washington , 4 66 U.S. 668, 687-96 (1984). This evidence was crucial in pr oviding background information supporting an affirmative de fense to the crime, and casting doubt on the government's case with respect to Kauffman's criminal intent.

We therefore conclude that the district court's determination that Zorbaugh's ineffective assistanc e did not prejudice Kauffman cannot stand. For these reasons, we will reverse and remand for a new trial.3

III.

For the foregoing reasons, the order of the distric t court denying Kauffman's motion under 28 U.S.C. S 2255 wi ll be reversed, and this case will be remanded with direc tions to grant Kauffman's motion to vacate, set aside or cor rect the sentence and to grant Kauffman a new trial.

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3. Since we are satisfied that Zorbaugh's failure t o conduct the proper pre-trial investigation requires reversal, we need not explore Kauffman's subsidiary arguments regarding Zorbaugh's questiona ble legal advice on the issue of downward departure, nor his contention that Zorbaugh should be deemed per se ineffective due to his own emotional problems, which Zorbaugh himself described to the district co urt.

10ALITO, Circuit Judge, dissenting:

Steven Zorbaugh, Kourtney Kauffman's attorney, advi sed Kauffman that he should plead guilty to a charge of possession of a firearm by a convicted felon rather than proceed to trial and present an insanity defense. T he majority holds that because of Zorbaugh's "failure to investigate or research the insanity issue at all," this advice was "a cursory, uninformed judgment call" (Maj. Op. at 9) so inexcusable as to fall outside "the wide range o f reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689 (1984) (citation omit ted), within which counsel may make tactical decisions wi thout fear of judicial second-guessing. I believe that in light of the particular facts of this case -- specifically, the knowledge that Zorbaugh already possessed by virtue of his pr ior representation of Kauffman on the related state cha rges -- Zorbaugh's advice is properly viewed under our prec edents as a tactical decision that, while perhaps debatabl e, remains safely within the expansive realm of consti tutional reasonableness. I therefore respectfully dissent.

The majority relies heavily on our statement in Uni ted States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989), t hat "failure to conduct any pretrial investigation gene rally constitutes a clear instance of ineffectiveness," a nd upon Zorbaugh's admission that he "did not pursue any investigation into an insanity defense." Maj. Op. a t 8 (emphasis in original). This case, however, is cruc ially different from Gray. In that case, the defendant ha d told his attorney that there were numerous eyewitnesses and had provided him with the names of several and informat ion

with which to locate others. 878 F.2d at 711-12. Nevertheless, the attorney did not contact any of t he witnesses, did not visit the scene of the incident that led to the defendant's arrest, did not take any action wha tsoever designed to investigate his client's theory of self -defense, and did not hire or seek funds to hire an investiga tor to perform any of these tasks. Id. Instead, the attorn ey took Gray's case to trial and presented a theory of self -defense without doing anything to try to ensure the viabili ty of that defense. As we emphasized, "[c]ounsel offered no st rategic justification for his failure to make any effort to investigate

11the case, and indeed he could have offered no such

rationale." Id. at 711. In fact, the government con ceded in that case that the attorney's "behavior was not col orably based on tactical considerations but merely upon a lack of diligence." Id. at 712. It was under these circumst ances that we invoked counsel's duty to investigate, expl aining that "[i]neffectiveness is generally clear in the c ontext of complete failure to investigate because counsel can hardly be said to have made a strategic choice against pur suing a certain line of investigation when s/he has not yet obtained

the facts on which such a decision could be made." Id. at

711.

The instant case is significantly different. Here, Zorbaugh had already represented Kauffman in connection with state charges arising out of the same incident as the fed eral charge. During that prior state representation, Zor baugh had discussed the possibility of an insanity defens e with Kauffman but had advised him to plead guilty becaus e the Commonwealth was offering a plea bargain of time se rved and Kauffman was primarily concerned with getting o ut of jail. Thus, when he began to represent Kauffman in the federal case, Zorbaugh was already familiar with th e facts and circumstances of Kauffman's allegedly criminal

conduct and with Kauffman's mental condition. In particular, Zorbaugh knew that Kauffman had hidden the guns in a blanket in a remote barn and had negotiat ed a sale of one of them. At the evidentiary hearing in the district court, Zorbaugh testified that he believed that Kauffman's actions showed planning, concern for sec recy, and desire for profit, all of which, in his view, t ended to show that Kauffman appreciated the nature and wrongfulness of his conduct. Moreover, Zorbaugh kne w that at the state-court plea hearing, Kauffman had admitted, on the record, that he knew what he was d oing and that he knew it was illegal.

Zorbaugh testified that he recalled Kauffman's givi ng him Dr. Stacks' letter, which described Kauffman as man ic and psychotic at the time of the offense and thus indic ated the possibility of an insanity defense. However, Zorbau gh stated that he did not pursue the issue because he believe d that, given Kauffman's actions and his state-court plea c olloquy,

12an insanity defense was not likely to be successful . In

addition, Zorbaugh had known Kauffman for over a ye ar and had observed Kauffman's behavior. As the government's brief points out, Zorbaugh thus knew t hat Kauffman appeared normal, that his mental condition was easily controlled by medication, and that it was Ka uffman's

own choice whether or not to take the medication. W hile it is true that the doctors who testified in support o f Kauffman at the evidentiary hearing were able to ex plain how a manic individual could appear to an observer to understand the nature and wrongfulness of his actio ns and yet suffer from such impaired judgment as to be disconnected from reality, Zorbaugh was familiar wi th Kauffman's behavior and reasonably believed that Kauffman simply did not present the compelling pict ure of insanity that a paranoid schizophrenic, for example , might present. Accordingly, Zorbaugh concluded that a jur y would be unlikely to accept an insanity defense.

Under these circumstances, Zorbaugh's decision, unl ike the dereliction of the defense attorney in Gray , c an be said to be a "strategic choice against pursuing a certai n line of investigation," because Zorbaugh was already in pos session

of "the facts on which such a decision could be mad e." Gray, 878 F.2d at 711. Cf. Jones v. Page, 76 F.3d 8 31, 843 (7th Cir. 1996) ("[i]f it is reasonable in the circ umstances not to conduct a particular investigation, [a] lawy er's failure to do so will not establish ineffective representat ion") (quoting Earl v. Israel, 765 F.2d 91, 93 (7th Cir.) , cert. denied, 474 U.S. 951 (1985)) (emendations in origin al); Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 198 4) (recognizing that "there may be unusual cases when an attorney can make a rational decision that investig ation is unnecessary"), cert. denied, 469 U.S. 1226 (1985). I therefore believe that this case is critically diff erent from Gray.

The other two cases on which the majority relies-- Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986), and Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) -- are distinguishable as well. In Code, the attorney "att empted to present an alibi defense with no alibi witnesses." 799 F.2d at 1484. As the court unsurprisingly observed, the

13attorney's conduct was "wholly unsupported by reaso nable

professional judgment; although his sole strategy w as to present an alibi defense, he terminated his investi gation without determining whether the one witness he cont acted could provide an alibi." Id. In contrast, Zorbaugh' s strategy was to obtain a plea agreement, encourage Kauffman to cooperate, and hope that the government would move for a downward departure, and Zorbaugh acted reasonably i n furtherance of that strategy. His conduct can in no way be equated with that of an attorney who goes to trial with only one conceivable defense and no witnesses in support of it.

In Nealy, the attorney also prepared an alibi defen se but took only minimal steps to attempt to contact one a libi witness and did nothing to attempt to contact two o thers, resulting in a similar presentation of an alibi def ense at

trial without alibi witnesses. See 764 F.2d at 1175 -76. Since the attorney did not even argue that his cond uct was "part of a calculated trial strategy," the court co ncluded that he "simply failed to make the effort to invest igate," and held that he had furnished constitutionally defecti ve assistance. Id. at 1178.

Under the circumstances of this case, it seems to m e that Zorbaugh's decision to recommend a guilty plea with out further investigation of a possible insanity defens e did not

violate Sixth Amendment standards. Familiar with th e nature of Kauffman's conduct, his state-court guilt y plea colloquy, his normal appearance, and the other circumstances mentioned above, Zorbaugh had grounds for questioning the wisdom of going to trial with an in sanity defense. Moreover, like most experienced defense at torneys, Zorbaugh also undoubtedly knew that "successful invocation of the insanity defense is rare." AMERIC AN PSYCHIATRIC ASSOCIATION, STATEMENT ON THE INSANITY DEFENSE 5 (1982).1 Accordingly, I am unabl e to

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1. Only 38 defendants were found not guilty by reas on of insanity in federal courts nationwide in fiscal year 1995. U.S. Dept. of Justice, Statistical Report: United States Attorneys' Office s, Fiscal Year 1995, at 46. In fiscal year 1994, only 49 defendants were fo und not guilty by reason of insanity. U.S. Dept. of Justice, Statisti cal Report: United

States Attorneys' Offices, Fiscal Year 1994, at 46.

14conclude that Zorbaugh's recommendation to plead gu ilty,

cooperate with the government, and hope for a motio n for downward departure was so indefensible as to overco me the "strong presumption that [his] conduct falls within the wide range of professional assistance." Strickland, 466 U.S. at 689. While the majority recites that "counsel is en titled to substantial deference with respect to strategic jud gment," (Maj. Op. at 8) in my view it fails to heed that im portant

admonition.2

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2. I do not believe that Kauffman's "subsidiary arg uments", Maj. Op. at 10 n.3, require extended discussion. Kauffman argue s that Zorbaugh's representation should be deemed per se ineffective because Zorbaugh was experiencing mental problems of his own. He als o contends that Zorbaugh rendered ineffective assistance by advisin g Kauffman that, if he did not plead guilty and accept responsibility, he would have no chance of receiving a motion for downward departure , as well as by leading Kauffman to believe that if he cooperated w ith the government, he might receive probation.

As for the first contention, it is undisputed that Zorbaugh experienced emotional problems at or near the times in question , but Kauffman has failed to present any evidence that Zorbaugh was in capacitated to such an extent as to merit being deemed per se ineffecti ve. Kauffman's second contention is completely meritless. While it is tru e that acceptance of responsibility and a motion for downward departure are technically distinct issues, Zorbaugh did not act unreasonably in advising Kauffman that he would be effectively foreclosed from receiv ing the latter unless

he did the former. Kauffman argues that the existence of the 15-year mandatory minimum under which he was sentenced made it unreasonable for Zorbaugh to represent that if Kauf fman cooperated, he might receive probation. However, Kauffman's argume nt overlooks the fact that if the government had moved for a downwar d departure (it did not, apparently because Kauffman was either unable or unwilling to provide the requisite assistance), the court could have departed from the otherwise-mandatory sentence and imposed probation. While this was perhaps unlikely, it was not unreasonable for Zorba ugh to inform Kauffman that the likelihood of receiving probation "really depends on how successful and how much he is able to cooperate ." App. 248. The

district court found that Kauffman had understood t hat he would likely receive the 15-year mandatory minimum and that he h ad not been promised probation. I perceive no basis to overrule this finding.

15A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16