1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-28-1997

United States v. Kauffman

Precedential or Non-Precedential:

Docket 96-7287

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Recommended Citation

"United States v. Kauffman" (1997). 1997 Decisions. Paper 73.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/73
Filed 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 Appellant 
 Eric 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 district 

court denying his motion to vacate, set aside or correct 

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 conduct any 

pre-trial investigation, or contact potential witnesses in 

connection with a possible insanity defense. We have 

jurisdiction under 28 U.S.C. SS 2253 and 2255. Because 

ineffective assistance of counsel claims present mixed 

questions of law and fact, our review is plenary. Dooley 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 Edgewater 

Psychiatric Center in Harrisburg, Pennsylvania, where he 

had been involuntarily committed since July 14, 1991.1 On 

July 12, 1991, just two days prior to Kauffman's 

commitment, three shotguns and two rifles were reported 

stolen from a residence in Hellam Township, Pennsylvania. 

_________________________________________________________________ 

1. Prior to Kauffman's discharge, Edgewater petitioned the Court of 

Common Pleas of Dauphin County, Pennsylvania, for an order of 

involuntary commitment for Kauffman. The court denied the hospital's 

petition. 

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

discharge from Edgewater, while attempting to sell four of 

these stolen guns to a firearms dealer in a transaction 

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 discharge 

summary prepared by Dr. Stacks, he stated that Kauffman 

"went into the York County Prison on 7/24/91 with a

charge of receiving stolen property. He was undoubtedly 

psychotic at that time." On March 25, 1992, Dr. Stacks 

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 time of 

the committing of the crime he was charged with." Despite 

the exculpatory nature of this letter, Zorbaugh declined to 

investigate further a possible insanity defense and advised 

Kauffman to plead guilty. 

On February 19, 1993, acting upon the advice of counsel, 

Kauffman pleaded guilty, pursuant to a plea agreement 

with the government, to a one-count indictment which 

charged Kauffman with being a felon in possession of 

firearms in violation of 18 U.S.C. SS 922(g) and 924(c). 

Kauffman was sentenced to 15 years imprisonment 

pursuant to 18 U.S.C. S 924(e), the mandatory minimum 

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 or 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 asserted that 

he was entitled to habeas corpus relief because Zorbaugh 

_________________________________________________________________ 

2. Initially, state charges were brought against Kauffman. Kauffman 

retained Steven Zorbaugh as his lawyer and on July 9, 1992, Kauffman 

pleaded guilty to four counts of receiving stolen property arising out of 

the sale of four of the five guns described above. Zorbaugh was then 

appointed by the district court to represent appellant on the pending 

federal charges which are the subject of this opinion. 

 3 
rendered ineffective assistance by failing to counsel him 

regarding his right to proceed to trial and present an 

insanity defense. Kauffman also contends that his former 

attorney incorrectly advised him that probation was a 

possible sentence if a downward departure motion was 

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 denying 

Kauffman's second petition and remanded for an 

evidentiary hearing on December 6, 1995. At the conclusion 

of the evidentiary hearing, the district court denied the 

habeas petition. Kauffman once again appeals. For the 

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, Steven 

Zorbaugh testified that he remembered Kauffman bringing 

Dr. Stacks' letter, describing Kauffman as manic and 

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 any 

physician or making any review of the medical records, 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 that 

Kauffman had pleaded guilty to state charges of receiving 

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 you 

 understand what you were doing, did you know it was 

 illegal. And you have to answer these questions. And I 

 felt that would be an additional barrier in Federal 

 Court because I felt the prosecutor could use 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 successful 

 4 
insanity defense in that it further enabled the government 

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 example, Dr. 

Denis Milke, a Board Certified psychiatrist who is the 

Medical Director of Edgewater Psychiatric Center and was 

Kauffman's attending physician, testified that as of the date 

of discharge from Edgewater, Kauffman's mental status as 

reflected in the medical records was that of a person whose 

judgment was markedly compromised, with limited insight 

and poor reliability. He also testified that Kauffman was 

released against medical advice just prior to the 

commission of the offense. In fact, Dr. Milke wanted 

Kauffman immediately transferred to Harrisburg State 

Hospital, a long term care facility. 

Dr. Milke identified Kauffman's illness as a bipolar 

disorder. He explained that Kauffman's thought disorder is 

characterized by grandiose thought, loose associations, 

tangentiality, chronic poor judgment, with some degree of 

paranoid perceptions. He also stated that treatment of 

Kauffman's condition required psychotropic drugs, and that 

as of the date of discharge Kauffman did not have sufficient 

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 the 

wrongfulness of his or her conduct. 

The district court also heard testimony from Mr. Patrick 

Gallagher, an employee of York Hospital. Mr. Gallagher had 

been the mental health counselor at York County Prison in 

July, 1991. He testified that he saw Kauffman on his 

admission to York County Prison on July 24, 1991, and 

that Kauffman was clearly psychotic at that time. He 

recalled discussing Kauffman's condition with Dr. Jacob 

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 psychiatric 

facility. 

Mr. Gallagher further stated that on or about July 26, 

1991, Kauffman was engaging in "jerky" movements, was 

 5 
very suspicious and angry, was suffering from a thought 

disorder, was out of touch with reality, did not understand 

the consequences of his actions and would not have 

appreciated the wrongfulness of any criminal conduct. In 

fact, Mr. Gallagher recalled that Kauffman attacked a guard 

on or about July 26, 1991, and as a result was placed in 

isolation. 

Robert H. Davis, M.D., a Board Certified Psychiatrist at 

the Harrisburg State Hospital, also testified on behalf of 

Kauffman as an expert. Dr. Davis testified that Kauffman 

was suffering from a severe mental disease such that he 

was unable to appreciate the wrongfulness of his acts. He 

further stated that had an attorney come to him regarding 

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 psychiatric disorder. 

 The history of the disorder predates the crime for 

 which he is being charged. So it is a well documented 

 history. And the nature of his disorder is one that leads 

 to impaired judgment, psychotic symptoms. And that is 

 the type of disorder that very much often leads to a 

 very successful insanity defense. 

C. 

After hearing the testimony on Kauffman's psychiatric 

condition, the district court concluded that Kauffman's 

former attorney, Steven Zorbaugh, did not render ineffective 

assistance when he declined to pursue investigation into an 

insanity defense by conducting research and interviewing 

potential witnesses. The district court also concluded that 

Kauffman failed to make a showing of prejudice attributable 

to Zorbaugh's actions. 

The district court reasoned that Zorbaugh's failure to 

pursue any investigation into an insanity defense was 

based on two legitimate considerations. First, Kauffman 

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 he 

was doing and appreciated the nature and quality of the 

 6 
acts. Second, Kauffman had entered into a prior detailed 

plea colloquy at the state court level in which he 

acknowledged his guilt on the charge of receiving stolen 

property (the guns which are the subject of the federal 

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 court 

determined that he had made a reasonable tactical decision 

to advise his client to plead guilty. 

II. 

A. 

A court must be "highly deferential" to counsel's decision 

and there is a "strong presumption" that counsel's 

performance was reasonable. Strickland v. Washington, 466 

U.S. 668, 689 (1984). "The defendant must overcome the 

presumption that, under the circumstances, the challenged 

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 deferential 

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 result 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 entry of a 

guilty plea. Hill v. Lockhart, 474 U.S. 52 (1985). When such 

persons enter a plea of guilty on the advice of counsel, the 

voluntariness of the plea depends on whether there is a 

 7 
reasonable probability that, but for counsel's errors, 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 is 

"sufficient to undermine confidence in the outcome." 

Strickland, 466 U.S. at 694. 

B. 

In applying the first prong of Strickland's two-part 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 investigation 

generally constitutes a clear instance of ineffectiveness." 

Gray, 878 F.2d at 711. See also Code v. Montgomery, 799 

F.2d 1481, 1483 (11th Cir. 1986) (counsel's performance 

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 to 

interview potential witnesses and to make an independent 

investigation of the facts and circumstances of the case."). 

While counsel is entitled to substantial deference with 

respect to strategic judgment, an attorney must investigate 

a case, when he has cause to do so, in order to provide 

minimally competent professional representation. Gray, 878 

F.2d at 711. 

Here, Zorbaugh admitted that even though he had a 

letter from Kauffman's psychiatrist concerning Kauffman's 

mental condition, he did not pursue any investigation into 

an insanity defense. While we recognize that Zorbaugh may 

have found the strength of the government's case daunting, 

we can imagine no reasonable professional calculation 

which would support Zorbaugh's failure to conduct any 

pre-trial investigation into the facts and law of an insanity 

defense under the circumstances of this case. See 

Strickland, 466 U.S. at 690-91 ("[A] court deciding an 

 8 
actual ineffectiveness claim must judge the reasonableness 

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 some legal 

research regarding the insanity defense could his 

counseling be characterized as "strategy." Instead, his 

failure to investigate or research the insanity issue at all 

resulted in a cursory, uninformed judgment call which 

deprived Kauffman of the affirmative defense of insanity 

and the meaningful representation which the Constitution 

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 itself 

sufficient to grant relief under Strickland. Under 

Strickland's second prong (the "prejudice" requirement), if 

the ineffectiveness alleged was a failure to investigate 

thoroughly, which in turn caused the defendant to plead 

guilty, the defendant must show a likelihood that some 

evidence would have been discovered which would have 

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 standard 

of reasonableness, and that but for Zorbaugh's errors, 

Kauffman would have insisted on going to trial rather than 

plead guilty. Id. at 56-60. 

In this case, minimal factual investigation by Zorbaugh 

would have uncovered Kauffman's long-standing history of 

bipolar syndrome and his numerous psychotic episodes 

leading to multiple psychiatric hospitalizations, all 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 the time 

he reached York County Prison. 

 9 
While it is unlikely that we can determine with precision 

what the result of the proceedings would have been if 

counsel had not erred, the breadth of evidence adduced at 

the evidentiary hearing is sufficient to undermine our 

confidence that Zorbaugh would have advised his client 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, the 

defendant has met his burden of showing a reasonable 

probability that the outcome of these proceedings would 

have been different had his counsel not failed in his duty to 

investigate the evidence obtainable from various health 

professionals. See United States v. Nino, 878 F.2d 101, 103 

(3d Cir. 1989), citing Strickland v. Washington , 466 U.S. 

668, 687-96 (1984). This evidence was crucial in providing 

background information supporting an affirmative defense 

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 assistance 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 district court 

denying Kauffman's motion under 28 U.S.C. S 2255 will be 

reversed, and this case will be remanded with directions to 

grant Kauffman's motion to vacate, set aside or correct the 

sentence and to grant Kauffman a new trial. 

_________________________________________________________________ 

3. Since we are satisfied that Zorbaugh's failure to conduct the proper 

pre-trial investigation requires reversal, we need not explore Kauffman's 

subsidiary arguments regarding Zorbaugh's questionable 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 court. 

 10 
ALITO, Circuit Judge, dissenting: 

Steven Zorbaugh, Kourtney Kauffman's attorney, advised 

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. The 

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 of 

reasonable professional assistance," Strickland v. 

Washington, 466 U.S. 668, 689 (1984) (citation omitted), 

within which counsel may make tactical decisions without 

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 prior 

representation of Kauffman on the related state charges -- 

Zorbaugh's advice is properly viewed under our precedents 

as a tactical decision that, while perhaps debatable, 

remains safely within the expansive realm of constitutional 

reasonableness. I therefore respectfully dissent. 

The majority relies heavily on our statement in United 

States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989), that 

"failure to conduct any pretrial investigation generally 

constitutes a clear instance of ineffectiveness," and upon 

Zorbaugh's admission that he "did not pursue any 

investigation into an insanity defense." Maj. Op. at 8 

(emphasis in original). This case, however, is crucially 

different from Gray. In that case, the defendant had told his 

attorney that there were numerous eyewitnesses and had 

provided him with the names of several and information 

with which to locate others. 878 F.2d at 711-12. 

Nevertheless, the attorney did not contact any of the 

witnesses, did not visit the scene of the incident that led to 

the defendant's arrest, did not take any action whatsoever 

designed to investigate his client's theory of self-defense, 

and did not hire or seek funds to hire an investigator to 

perform any of these tasks. Id. Instead, the attorney took 

Gray's case to trial and presented a theory of self-defense 

without doing anything to try to ensure the viability of that 

defense. As we emphasized, "[c]ounsel offered no strategic 

justification for his failure to make any effort to investigate 

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

rationale." Id. at 711. In fact, the government conceded in 

that case that the attorney's "behavior was not colorably 

based on tactical considerations but merely upon a lack of 

diligence." Id. at 712. It was under these circumstances 

that we invoked counsel's duty to investigate, explaining 

that "[i]neffectiveness is generally clear in the context of 

complete failure to investigate because counsel can hardly 

be said to have made a strategic choice against pursuing 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 federal 

charge. During that prior state representation, Zorbaugh 

had discussed the possibility of an insanity defense with 

Kauffman but had advised him to plead guilty because the 

Commonwealth was offering a plea bargain of time served 

and Kauffman was primarily concerned with getting out of 

jail. Thus, when he began to represent Kauffman in the 

federal case, Zorbaugh was already familiar with the 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 negotiated 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 secrecy, 

and desire for profit, all of which, in his view, tended to 

show that Kauffman appreciated the nature and 

wrongfulness of his conduct. Moreover, Zorbaugh knew 

that at the state-court plea hearing, Kauffman had 

admitted, on the record, that he knew what he was doing 

and that he knew it was illegal. 

Zorbaugh testified that he recalled Kauffman's giving him 

Dr. Stacks' letter, which described Kauffman as manic and 

psychotic at the time of the offense and thus indicated the 

possibility of an insanity defense. However, Zorbaugh stated 

that he did not pursue the issue because he believed that, 

given Kauffman's actions and his state-court plea colloquy, 

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

addition, Zorbaugh had known Kauffman for over a year 

and had observed Kauffman's behavior. As the 

government's brief points out, Zorbaugh thus knew that 

Kauffman appeared normal, that his mental condition was 

easily controlled by medication, and that it was Kauffman's 

own choice whether or not to take the medication. While it 

is true that the doctors who testified in support of 

Kauffman at the evidentiary hearing were able to explain 

how a manic individual could appear to an observer to 

understand the nature and wrongfulness of his actions and 

yet suffer from such impaired judgment as to be 

disconnected from reality, Zorbaugh was familiar with 

Kauffman's behavior and reasonably believed that 

Kauffman simply did not present the compelling picture of 

insanity that a paranoid schizophrenic, for example, might 

present. Accordingly, Zorbaugh concluded that a jury would 

be unlikely to accept an insanity defense. 

Under these circumstances, Zorbaugh's decision, unlike 

the dereliction of the defense attorney in Gray , can be said 

to be a "strategic choice against pursuing a certain line of 

investigation," because Zorbaugh was already in possession 

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

Gray, 878 F.2d at 711. Cf. Jones v. Page, 76 F.3d 831, 843 

(7th Cir. 1996) ("[i]f it is reasonable in the circumstances 

not to conduct a particular investigation, [a] lawyer's failure 

to do so will not establish ineffective representation") 

(quoting Earl v. Israel, 765 F.2d 91, 93 (7th Cir.), cert. 

denied, 474 U.S. 951 (1985)) (emendations in original); 

Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984) 

(recognizing that "there may be unusual cases when an 

attorney can make a rational decision that investigation is 

unnecessary"), cert. denied, 469 U.S. 1226 (1985). I 

therefore believe that this case is critically different 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 "attempted to 

present an alibi defense with no alibi witnesses." 799 F.2d 

at 1484. As the court unsurprisingly observed, the 

 13 
attorney's conduct was "wholly unsupported by reasonable 

professional judgment; although his sole strategy was to 

present an alibi defense, he terminated his investigation 

without determining whether the one witness he contacted 

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 in 

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 defense but 

took only minimal steps to attempt to contact one alibi 

witness and did nothing to attempt to contact two others, 

resulting in a similar presentation of an alibi defense at 

trial without alibi witnesses. See 764 F.2d at 1175-76. 

Since the attorney did not even argue that his conduct was 

"part of a calculated trial strategy," the court concluded 

that he "simply failed to make the effort to investigate," and 

held that he had furnished constitutionally defective 

assistance. Id. at 1178. 

Under the circumstances of this case, it seems to me that 

Zorbaugh's decision to recommend a guilty plea without 

further investigation of a possible insanity defense did not 

violate Sixth Amendment standards. Familiar with the 

nature of Kauffman's conduct, his state-court guilty plea 

colloquy, his normal appearance, and the other 

circumstances mentioned above, Zorbaugh had grounds for 

questioning the wisdom of going to trial with an insanity 

defense. Moreover, like most experienced defense attorneys, 

Zorbaugh also undoubtedly knew that "successful 

invocation of the insanity defense is rare." AMERICAN 

PSYCHIATRIC ASSOCIATION, STATEMENT ON THE 

INSANITY DEFENSE 5 (1982).1 Accordingly, I am unable to 

_________________________________________________________________ 

1. Only 38 defendants were found not guilty by reason of insanity in 

federal courts nationwide in fiscal year 1995. U.S. Dept. of Justice, 

Statistical Report: United States Attorneys' Offices, Fiscal Year 1995, at 

46. In fiscal year 1994, only 49 defendants were found not guilty by 

reason of insanity. U.S. Dept. of Justice, Statistical Report: United 

States 

Attorneys' Offices, Fiscal Year 1994, at 46. 

 14 
conclude that Zorbaugh's recommendation to plead guilty, 

cooperate with the government, and hope for a motion for 

downward departure was so indefensible as to overcome 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 entitled to 

substantial deference with respect to strategic judgment," 

(Maj. Op. at 8) in my view it fails to heed that important 

admonition.2 

_________________________________________________________________ 

2. I do not believe that Kauffman's "subsidiary arguments", Maj. Op. at 

10 n.3, require extended discussion. Kauffman argues that Zorbaugh's 

representation should be deemed per se ineffective because Zorbaugh 

was experiencing mental problems of his own. He also contends that 

Zorbaugh rendered ineffective assistance by advising 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 with 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 incapacitated to such 

an extent as to merit being deemed per se ineffective. Kauffman's second 

contention is completely meritless. While it is true 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 receiving 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 Kauffman cooperated, he 

might receive probation. However, Kauffman's argument overlooks the 

fact that if the government had moved for a downward 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 Zorbaugh 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 that he would likely 

receive the 15-year mandatory minimum and that he had not been 

promised probation. I perceive no basis to overrule this finding. 

 15 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16