United States v. Robert E. Tucker

716 F.2d 576 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. TUCKER, Defendant-Appellant. No. 79-1657. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 6, 1982. Decided Sept. 7, 1983. As Corrected Sept. 30, 1983. Warren P. Reese, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Warren P. Reese, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. Richard Barnett, San Diego, Cal., for defendant-appellant. Appeal from the United States District Court for the Southern District of California. Before ELY, SNEED, and ALARCON, Circuit Judges. ALARCON, Circuit Judge: 1 Following a jury trial, appellant Robert Tucker was convicted of conspiracy to defraud the United States and of making false income tax returns in connection with a scheme to overcharge the Department of the Navy for items manufactured by Tucker's employer, Sells Engineering. Tucker contends that he was incompetently represented at trial by his retained counsel, and that as a result he was denied a fair trial. We agree. 2 After sentencing, Tucker moved for a new trial on the ground that his retained counsel, Karl Keating, had ineffectively represented him at trial.…

(concurring in the result):

I concur in the holding that the appellant was deprived of the effective assistance of counsel and that his conviction should be reversed. The appellant amply has established that his counsel at trial was incompetent and that his right to a fair trial was prejudiced. That is enough to entitle him to a reversal. That is all that need be said.

Regrettably more has been said and because of this I, also regrettably, will say more. The test for ineffective assistance in this circuit has been and remains drawn from Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 *596 (1979). The en banc court in Cooper v. Fitzharris established a two-part inquiry into ineffectiveness of counsel: first, the defendant must show he was denied “reasonably competent and effective representation,” id. at 1327; second, “where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense,” id. Judge Alarcon does not disagree with this.

Incompetent counsel was described in Cooper v.…

Following a jury trial, appellant Robert Tucker was convicted of conspiracy to defraud the United States and of making false income tax returns in connection with a scheme to overcharge the Department of the Navy for items manufactured by Tucker’s employer, Sells Engineering. Tucker contends that he was incompetently represented at trial by his retained counsel, and that as a result he was denied a fair trial. We agree.

After sentencing, Tucker moved for a new trial on the ground that his retained counsel, Karl Keating, had ineffectively represented him at trial. The district court appointed new counsel for Tucker. An evidentiary hearing was held regarding the competency of Keating’s representation. At the hearing, Keating was examined extensively about his trial preparation and trial strategy. 1 Expert testimony was also presented regarding the minimum acceptable trial preparation required in a case of this magnitude.

Tucker’s present counsel requested leave to conduct an investigation to determine whether Tucker had been prejudiced by Keating’s incompetence. The trial court refused his request. 2 The trial court denied Tucker’s motion for a new trial, finding that even if…

concurring:

Under the current law of our court and that of numerous other Courts of Appeals, I must concur in the opinion of my Brother Alarcon. His opinion reflects intensive study and remarkable scholarship. As I express my concurrence, however, I cannot resist the temptation to reiterate my deeply held conviction that ineffective representation by the attorney for an accused should be equated with lack of any representation whatsoever. I have no doubt that one tried for a criminal offense often fares very much worse, especially in a jury trial, if he is represented by incompetent counsel than he would fare if he had no attorney at all. This, I believe, is an undeniable truth. My belief is squarely based not only upon my own personal legal experience for almost fifty years, participating in hundreds of trials as a trial lawyer and subsequently reviewing countless records as a circuit judge for almost nineteen years. It is also founded upon experiences related to me by highly respectable attorneys and judges during my officerships in the Texas Junior Bar Association, the California State Bar, the Los Angeles County Bar Association, particularly during my presidency, and intimate…