2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-2003

USA v. Lamplugh

Precedential or Non-Precedential: Precedential

Docket No. 02-2001

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"USA v. Lamplugh" (2003). 2003 Decisions. Paper 393.

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PRECEDENTIAL

Filed June 30, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2001

UNITED STATES OF AMERICA

Appellant

v.

THERESA L. LAMPLUGH,

On Appeal from the United States District Court

for Middle District of Pennsylvania

(D.C. Crim. No. 95-cr-00169-2)

District Chief Judge: Hon. Thomas I. Vanaskie

Argued March 11, 2003

Before: SLOVITER, NYGAARD, and ALARCON,*

Circuit Judges

(Filed: June 30, 2003)

Wayne P. Samuelson, Esq. (Argued)

Office of the United States Attorney

240 West Third Street

Suite 316

Williamsport, PA 17791

Attorney for Appellant

*Honorable Arthur L. Alarcon, Senior Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation. 
Stephen C. Smith, Esq. (Argued)

Smith Law Offices

226 East Water Street

Lock Haven, PA 17745

Attorney for Appellee

OPINION OF THE COURT

ALARCON, Circuit Judge. 

The United States appeals from the district court’s order

granting a new trial for Theresa L. Lamplugh (“Mrs.

Lamplugh”) because of the alleged ineffective assistance of

her trial counsel. We reverse because we conclude that by

providing her attorney with fraudulent documents that she

intended to be used at trial to create a reasonable doubt of

her guilt, Mrs. Lamplugh forfeited her right to claim

ineffective assistance of counsel.

I

The facts in this case are undisputed. Theresa and Harry

Lamplugh operated a gun show promotion business in

Pennsylvania and neighboring states. The business

generated a cash flow from gate receipts and display table

rentals that aroused the suspicions of the Bureau of

Alcohol, Tobacco, and Firearms (“BATF ”) and the Internal

Revenue Service (“IRS”). As a result of the facts uncovered

by a joint BATF and IRS investigation, a federal search

warrant was issued. It was executed at the Lamplughs’

house on May 25, 1994. Numerous financial documents

and firearms were seized during the search. The BATF and

IRS subpoenaed the Lamplughs’ bank records. They also

contacted owners of the sites where the Lamplughs held

gun shows in 1991 and 1992. 

On June 29, 1995, the grand jury for the United States

District Court for the Middle District of Pennsylvania

returned a twenty-one-count indictment, accusing Mrs.

Lamplugh, her husband, and her stepson of firearmsrelated offenses. On April 16, 1997, the grand jury returned

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a superseding twenty-five-count indictment. Counts twentyfour and twenty-five charged Mrs. Lamplugh and her

husband with the willful failure to file federal income tax

returns for 1991 and 1992, in violation of 26 U.S.C. § 7203.1

The defendants moved to sever the felon-in-possession

counts. The district court granted the motion and ordered

that the matter proceed in a bifurcated trial, with the tax

charges to be tried first. Mr. Ellenbogen represented Mrs.

Lamplugh at trial. Mr. Lamplugh was represented by Robert

Sanders. 

On October 29, 1998, four days before the trial was

scheduled to begin and four-and-a-half years after the IRS

and BATF searched the Lamplughs’ house pursuant to a

warrant, Mr. and Mrs. Lamplugh delivered a box of

documents to their attorneys. The Lamplughs told their

attorneys that the BATF and IRS had overlooked the box

during a search of their residence, and that “they had only

just found the box.” The box contained what appeared to be

copies of some of the Lamplughs’ 1991 and 1992 tax

returns and financial records (“the disclosed documents”).

Mr. Ellenbogen informed the defendants that in order to

use these documents at trial, he would be required to turn

copies over to the prosecutor pursuant to Rule 16 of the

Federal Rules of Criminal Procedure. The Lamplughs and

their attorneys agreed that if the Government introduced

the documents at trial, Mrs. Lamplugh could preserve her

credibility for the second phase of the trial by avoiding

having to testify regarding the tax charges. 

The trial began as scheduled. Although the defense

attorneys had possession of the box of documents during

1. 26 U.S.C. § 7203 reads in pertinent part: 

Any person required under this title to pay any estimated tax or tax,

or required by this title or by regulations made under authority

thereof to make a return, keep any records, or supply any

information, who willfully fails to pay such estimated tax or tax,

make such return, keep such records, or supply such information,

at the time or times required by law or regulations, shall, in addition

to other penalties provided by law, be guilty of a misdemeanor and,

upon conviction thereof, shall be fined [ ] or imprisoned not more

than 1 year, or both, together with the costs of prosecution. 

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the first two days of trial, they did not disclose them to the

Government until the third day of trial. Thus, the

Government was unaware of the existence of the box of

documents during the presentation of its evidence on

November 2 and 3, 1998. The Government presented the

following evidence on November 2 and 3, 1998 to prove that

the Lamplughs willfully failed to file tax returns in 1991

and 1992. The Lamplughs conducted twenty-eight gun

shows in 1991 and twenty-nine in 1992. Figures from the

subpoenaed bank records, and documents seized from the

Lamplughs’ home pursuant to a search warrant, reflected

that the Lamplughs’ gun show operations in 1991 and

1992 produced sufficient income that required them to file

federal tax returns. 

An IRS employee testified that the IRS Philadelphia

Service Center (“the Center”) had no records of any federal

tax returns filed by the Lamplughs for 1991 and 1992. The

Center’s records disclosed that the Lamplughs had filed

federal income tax returns in previous years. 

Barry Bittenbender, an IRS agent, testified that, in

searching the Lamplughs’ home, IRS agents did not find

any copies of the 1991 or 1992 federal income tax returns

or records reflecting the Lamplughs’ income for these years.

Agent Bittenbender also testified that during the

investigation, Mr. Lamplugh stated that federal tax returns

were not filed in 1991 and 1992 because he did not receive

any income during those years. 

Sue Cook, the Lamplughs’ accountant, testified as a

Government witness. She prepared the tax returns for each

of the Lamplughs from 1984 to 1988, and for Mrs.

Lamplugh only in 1989. Ms. Cook did not prepare returns

for either Mr. or Mrs. Lamplugh for 1991 or 1992. Ms. Cook

also testified that the Lamplughs provided her with a

detailed accounting of their expenditures. Ms. Cook stated,

however, that the Lamplughs had no written records of

their income, and would inform her of the total of their

yearly income figures in writing or orally over the phone. 

The Government also introduced an application for a real

estate loan presented by the Lamplughs in 1992 to the

Commonwealth Bank. This credit application was obtained

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from the Commonwealth Bank in response to a

Government subpoena. An assistant loan officer of the

Commonwealth Bank testified that the Lamplughs provided

her with a handwritten copy of their 1989 Schedule C2 that

indicated a yearly total of $61,793.00 in gross receipts for

their business and a profit of $31,034.00. The computergenerated Schedule C form submitted by Ms. Cook for 1989

reflected that the Lamplughs’ business had gross receipts of

$5,200.00 and a loss of $151.00. The Lamplughs also

claimed on their loan application that they earned $15,000

a month in 1992. 

On November 4, 1998, immediately after court was called

to order on the third day of trial, Mr. Ellenbogen told the

court that Mr. Lamplugh had presented him with a box

containing the Lamplughs’ tax documents and financial

records. Mr. Ellenbogen stated to the court that, while he

had not “finished fully inventorying, let alone Xeroxing and

making copies of [the] records” for the prosecutor, the

defense intended to use the contents of the box to cross

examine the revenue agent who was to be the Government’s

final witness. The court recessed the proceedings for the

day so that the prosecution could examine the contents of

the box. The trial resumed on November 5, 1998. 

After receiving the disclosed documents from Mr.

Ellenbogen, the Government recalled Agent Bittenbender to

the stand. He testified that an examination of the disclosed

documents caused him to increase his estimate of the

Lamplughs’ gross income by approximately $10,000 for

1991 and $15,000 for 1992. He also testified that included

in the disclosed documents were what appeared to be

partial or completed copies of federal, state and local

income tax returns for the year 1991, and local income tax

returns for 1992. 

Kimberly Kalacinski, a Wellsboro tax official, testified that

the Lamplughs were on a list of taxpayers who did not file

local tax returns for 1991 and 1992. She stated that she

2. A Schedule C is a tax form submitted to the IRS with an individual’s

tax return that shows the net profit or loss from a sole proprietorship.

Frequently Asked Questions, Internal Revenue Service (2002), available

at http://www.irs.gov/faqs/page/0,,id%3D15923,00.html. 

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searched the local records but could not find any tax

returns for 1991 or 1992. She also explained that an

income tax return form would be mailed to the taxpayer in

either December of each tax year or early January the

following year. The Government presented certified records

from the Pennsylvania Department of Revenue that

indicated the Lamplughs had not filed state tax returns for

1991 and 1992. 

In contrast to Mr. Lamplugh’s prior statement to Agent

Bittenbender that he didn’t file tax returns in 1991 and

1992 because he did not receive any income during those

years, the theory of the defense at trial was that the

Lamplughs had filed federal income tax returns in 1991

and 1992 and the IRS misplaced or lost them. 

Mr. Lamplugh called Thomas Griffith to testify as a

defense witness. Mr. Griffith was a distant cousin of Mr.

Lamplugh and had been interviewed in 1995 by BATF

agents regarding the Lamplughs’ gun business. Mr. Griffith

testified that he and his family attended two of the

Lamplughs’ gun shows and were not charged admission.

On cross-examination he testified that during the gun show

he saw “somebody up front collecting money” from “patrons

paying cash.” 

Shelley Davis, also testified as a defense witness. She

stated that she had worked as an IRS historian from 1988

to 1995 and had written a book about the IRS. Ms. Davis

testified that, in the Spring of 1989 she researched the way

tax returns were sent through the Center and interviewed

its director and a number of its employees. After her visit in

1989, Ms. Davis did not return to the Center, although she

remained in contact with a few of its employees. Ms. Davis

testified regarding the Center’s processing methods of tax

returns. Her research included a study of the instances in

the mid 1980’s when the IRS lost tax returns. Ms. Davis

testified that she found that the Center encountered

problems in processing tax returns in late 1984 and 1985

when it implemented an untested new computer software

program. She further stated that after the problems in 1984

and 1985, “there was absolutely no change in any

procedural handling of tax returns.” Ms. Davis also testified

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that she did not discuss in her book whether the same

problems still existed in 1991 and 1992. 

Mr. Sanders introduced a video taken by the BATF of the

Lamplughs’ property during the execution of the search

warrant on May 24, 1994. The video depicted a box sitting

on a shelf in the Lamplughs’ garage. Scott Endy, the case

agent for the BATF during the execution of the search

warrant, testified that he did not look in that box. 

Agent Bittenbender testified during his cross-examination

by Mr. Ellenbogen that the disclosed documents actually

increased the Lamplughs’ tax liability. One of the tax

returns found in the box contained a handwritten note that

stated, “I’m too sick to mess with this, can’t afford to have

anyone to do it. We have our records, so please contact us

if there’s any problem.” During the cross-examination of

Agent Bittenbender, Mr. Ellenbogen introduced copies of

various mortgage and interest reports allegedly filed with

the IRS for the years 1991 and 1992. These copies were

part of the disclosed documents. At the request of the

defense, the court informed the jury that pursuant to Rule

16 of the Federal Rules of Criminal Procedure, the defense

was only obligated to turn over documents to the jury that

it planned to use at trial. Mr. Ellenbogen also referred to

the disclosed documents during his cross-examination of

Kimberly Kalacinski, a Wellsboro tax official. 

Mr. and Mrs. Lamplugh did not testify during the

bifurcated proceedings regarding the alleged violations of

§ 7203. 

On November 10, 1998, the attorneys presented their

arguments to the jury. In his initial argument, the

prosecutor asserted that the Lamplughs’ failure to file

federal income tax returns for the years 1991 and 1992 was

willful. He stated that “[w]ith respect to willfulness, key

exhibits are No. 245, the credit application, 252, 253 and

254. 252, 253 and 254 are documents that came from the

box of exhibits that purport to be copies of Local, State and

Federal tax returns for 1991 and 1992.” The prosecutor

described the alleged copies as “dummy returns.” He also

pointed out in his rebuttal argument that the copies of the

fraudulent federal tax returns disclosed by the defense for

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tax year 1991 were dated March 19, 1991 and the

purported local 1991 tax returns were dated April 3, 1991.

Tax returns for that year would not have been due until

early 1992. The prosecutor further argued that each

purported copy of the local tax returns for 1992 was dated

April 20, 1992. 

On November 10, 1998, the jury found Mr. and Mrs.

Lamplugh guilty of failing to file a federal income tax return

for the years 1991 and 1992.3 The trial then proceeded to

the guilt phase of the firearms charges. Mrs. Lamplugh

testified in her own defense and was acquitted by the same

jury. 

II

Mrs. Lamplugh appealed from the judgment of

conviction, United States v. Lamplugh, Civ. No. 95-cr00169-2 (M. D. Pa. Mar. 25, 1999), claiming, inter alia, that

Mr. Ellenbogen “provided ineffective assistance by

producing—during trial—newly discovered documents

which were used by both parties during the trial.”

4

 This

court remanded the matter to the district court for an

evidentiary hearing because “it appears that Lamplugh’s

trial counsel may have turned over the records without

having read all of them.” United States v. Lamplugh, No. 99-

3254, slip op. at 4 (3d Cir. Oct. 3, 2000). 

Mr. Ellenbogen testified at the evidentiary hearing

mandated by this court. He stated that “[a]s best I recall,

Mr. and Mrs. Lamplugh presenting us with a box of records

and information that they indicated had not been found in

the search.” Mr. Ellenbogen also testified that although

“[w]e never made a formal inventory, in terms of a list of,

this is Page 1, this is Page 2, this is Page 3, but we did

open it, we did look through it and we did examine its

contents . . . . We looked at every piece of paper that was

in that box, I can tell you that, and there were four of us.”

3. Mr. Lamplugh also appealed from the judgment of conviction. His

appeal was dismissed as moot after his death. 

4. Ms. Lamplugh did not seek a stay of execution of her sentence

pending her appeal to this court. While awaiting her appeal, Mrs.

Lamplugh served her sentence and paid her fine and assessment. 

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Mr. Ellenbogen also explained that in pretrial

discussions, the Lamplughs and their attorneys developed

the strategy that if the Government would introduce the

disclosed documents Mrs. Lamplugh would not have to

testify. The attorneys believed that by keeping the

Lamplughs from having to testify they could “preserve their

credibility . . . in the second phase of the trial.” Mr.

Ellenbogen testified that they concluded that if Mrs.

Lamplugh was “convicted in the tax matters, those were

only misdemeanor offenses and the potential consequences

. . . were much less than had she been convicted of a

felony.” Mr. Ellenbogen further stated that he believed that

their strategy “prevailed because Mrs. Lamplugh did testify

in the second part of the trial, and she was acquitted of

those offenses.” 

In granting Mrs. Lamplugh’s motion for a new trial, the

district court held that “the Government was supplied with

the ‘key’ exhibits as a result of Attorney Ellenbogen’s failure

to conduct an adequate examination of the documents and

warn his client of the consequences of producing

documents that could be viewed as fabrications,

[undermining] confidence in the jury’s verdict.”

III

The Government asserts that “[b]ased on [Mrs.]

Lamplugh’s obstructive conduct, by duping her attorney

into using false documents, she should not be able to

complain that her counsel was ineffective in failing to

discover her duplicity. More importantly, she should not be

able to benefit from her duplicity by obtaining a new trial.”

Opening Brief for Appellant at 45. Prior to granting Mrs.

Lamplugh’s motion for a new trial based on ineffective

representation by counsel, the district court commented

that it was “troubled that a defendant could produce

fabricated documents, have her attorney present the

fabricated documents during trial, and then challenge her

conviction because her attorney was less than diligent in

discovering the fact that the documents were likely to have

been fabricated.” 

The Government’s contention presents us with this novel

question: Does a defendant forfeit her right to the effective

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assistance of counsel by presenting falsified copies of tax

returns to her attorney in support of her theory of defense

that the originals of such documents were properly filed in

compliance with federal law? We exercise plenary review

over claims alleging “denial of the Sixth Amendment right to

counsel.” United States v. Leggett, 162 F.3d 237, 249 (3d

Cir. 1998). 

This precise question has not been considered by this or

any other court. Under the law of this circuit, it is clear,

however, that a defendant forfeits her Sixth Amendment

right to counsel by “ ‘engaging in extremely serious

misconduct.’ ” Id. at 250 (quoting United States v. Goldberg,

67 F.3d 1092, 1102 (3d Cir. 1995)). In Leggett, this court

held that a defendant forfeits his right to counsel at

sentencing by physically attacking his lawyer in full view of

the trial court. Id. at 250-251.5

In United States v. Carrara, 49 F.3d 105 (3d Cir. 1995),

the defendant entered a plea of guilty as part of an

agreement in which he promised to provide truthful

testimony to the grand jury and at trial. Id. at 106.

Subsequently, the defendant filed a motion to set aside his

guilty plea. Id. In support of his motion, he filed an affidavit

in which he alleged that he was innocent. Id. This court

noted in Carrara that “[t]his affidavit, however, created

more problems for Carrara than it solved, and placed

Carrara in a real dilemma: if the affidavit were true, his

earlier testimony was perjury; if the trial testimony were

true, the affidavit was perjury.” Id. at 106-07. Based on the

defendant’s affidavit, the Government refused to file a

§ 5K1.1 motion for a downward departure. Id. at 106. The

district court declined the defendant’s request that he was

entitled to specific performance of the plea agreement. Id. at

107. 

Before this court, Carrara argued that he filed the false

affidavit upon the advice of ineffective counsel. In rejecting

this contention, this court stated: 

5. In United States v. McLeod, 53 F.3d 322 (11th Cir. 1995), the Eleventh

Circuit held that a defendant forfeited his right to counsel at a hearing

on a motion for a new trial because his behavior toward his attorney was

“repeatedly abusive, threatening, and coercive.” Id. at 326. 

10
Carrara seeks to absolve himself of this (or these)

falsehoods by contending that he filed the affidavit

upon advice of ineffective counsel. This may be a

reason, but it is not an excuse. The fact of the matter

is, he lied. Having done so, he cannot come before the

court with unclean hands and request that the

government now be ordered to perform his version of

equity. Specific performance requires that the court

enforce every portion of the agreement, which most

specifically here includes the government’s right to

withhold its motion because Carrara gave false

testimony.

Id. at 107. 

The record discloses that Mrs. Lamplugh acted with

unclean hands in this matter in committing the following

misconduct: 

First. Mrs. Lamplugh conspired with her husband to

prepare false copies of federal income tax returns

allegedly filed in 1991 and 1992. 

Second. She falsely represented to her attorney that

these documents were genuine and that they should be

used to demonstrate that she was not guilty of failing

to file her federal income tax returns in 1991 and

1992. 

Third. She obstructed justice by directing her attorney

to disclose the fraudulent tax returns to the

Government as required by Rule 16(b) in order to

introduce them as defense exhibits in an attempt to

raise a reasonable doubt regarding her guilt. 

Fourth. She conspired to maneuver the prosecution

into a Hobson’s choice of abandoning its prosecution

because she had found copies of the tax returns she

allegedly filed in 1991 and 1992, or of appearing to

suppress damaging exculpatory evidence overlooked by

Government agents in executing the search warrant. 

If this court were to grant Mrs. Lamplugh a new trial

based on her claim of ineffective assistance of counsel, we

would allow a defendant to manipulate the justice system

by knowingly presenting fabricated written documents to

11
her counsel in an attempt to deceive the court, the jury,

and the Government into accepting her theory of defense,

or by successfully gaining a new trial when the strategy

failed because the defense counsel did not detect the fraud.

Mrs. Lamplugh seeks to absolve herself of her

misconduct by contending that her counsel was ineffective

because he did not discover her deception. To grant a new

trial under these circumstances would completely

undermine the integrity of the judicial process. 

CONCLUSION

We hold that Mrs. Lamplugh forfeited the right to the

effective assistance of counsel because of her extremely

serious misconduct in presenting falsified copies of federal

income tax returns, in a willful attempt to obstruct the

proper administration of justice. Accordingly, we REVERSE

the order granting a new trial in this matter and

REINSTATE the judgment of conviction as to Mrs.

Lamplugh. See United States v. Coleman, 811 F.2d 804,

808 (3d Cir. 1987).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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