                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             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Precedential or Non-Precedential: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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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
