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
Before: Sloviter, Nygaard, and ALARCON,*fn1
The opinion of the court was delivered by: 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.
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 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.*fn2
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 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 ...