                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2003

USA v. Lamplugh
Precedential or Non-Precedential: Precedential

Docket No. 02-2001




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Lamplugh" (2003). 2003 Decisions. Paper 393.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/393


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                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.
                             2


                      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 firearms-
related offenses. On April 16, 1997, the grand jury returned
                                    3


a superseding twenty-five-count indictment. Counts twenty-
four 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.
                              4


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
                                   5


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 computer-
generated 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.
                              6


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
                             7


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
                                8


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-cr-
00169-2 (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.
                              9


   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
                                   10


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.
                            11


    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
                              12


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
